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RIVERA v. DYETT

April 29, 1991

HECTOR RIVERA, PLAINTIFF,
v.
BENJAMIN DYETT, M.D., MEDICAL DIRECTOR OF THE SING SING CORRECTIONAL FACILITY, THOMAS COUGHLIN, III, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, ROBERT JACQUES, M.D., CHIEF OF THE PSYCHIATRIC SATELLITE UNIT OF THE NEW YORK STATE OFFICE OF MENTAL HEALTH AT THE SING SING CORRECTIONAL FACILITY, RICHARD SURLES, COMMISSIONER OF THE NEW YORK STATE OFFICE OF MENTAL HEALTH, AND FRANK SANDOR, M.D., OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, ALL IN THEIR INDIVIDUAL AND REPRESENTATIVE CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Leisure, District Judge:

  ORDER AND OPINION

This is a civil rights action brought pursuant to 42 U.S.C. § 1983, arising from the conditions of plaintiff's incarceration at the Sing Sing Correctional Facility ("Sing Sing"). Plaintiff's complaint seeks declaratory, compensatory and injunctive relief. Plaintiff's counsel now move for an order granting an award of interim attorney's fees in the amount of $44,120, pursuant to 42 U.S.C. § 1988, on the ground that plaintiff was a "prevailing party" with respect to certain preliminary relief plaintiff sought.

BACKGROUND

Plaintiff has been incarcerated at numerous New York State Department of Correctional Services facilities since 1972, and is presently serving a 25-year-to-life sentence for murder. Plaintiff is a diabetic who also suffers from serious psychiatric disorders, and has attempted suicide on at least two occasions. As a result of complications from plaintiff's diabetes, the lower portions of both of plaintiff's legs have been amputated.

In May 1987, plaintiff was transferred from Green Haven Correctional Facility ("Green Haven") to Sing Sing. In a transfer memorandum, the Green Haven medical staff informed the medical staff at Sing Sing that plaintiff had a "chronic history of non-compliance with medication, insulin, diet, lab-work and treatments." Affidavit of Frank Sandor, M.D., sworn to on July 14, 1988 ("Sandor Aff."), Exhibit A, attached as Exhibit 2 to Affidavit of Michael A. Rosas, Esq., sworn to on March 1, 1991 ("Rosas Aff."). From the time of his transfer to Sing Sing until April 22, 1988, plaintiff was generally housed at the Sing Sing infirmary. During this period, plaintiff was hospitalized on several occasions for treatment of diabetes-related infections, including the amputation of plaintiff's left leg below the knee in February 1988. Sandor Aff., ¶ 3.

On April 22, 1988, plaintiff was discharged from the Sing Sing infirmary. Plaintiff's medical records indicate that plaintiff repeatedly refused to go to the emergency room for insulin injections in late April 1988, that on May 2 arrangements were made for plaintiff's admission to St. Claire's Hospital so that he could undergo a sympathectomy, that plaintiff refused the operation and was discharged back to the Sing Sing infirmary on May 11, 1988. Sandor Aff., ¶¶ 7, 8 and Exhibit C. On May 11, 1988, plaintiff refused to allow a Sing Sing staff physician to examine his right big toe. Plaintiff was discharged from the infirmary and given daily insulin injections on May 12 and 13. Sandor Aff., ¶ 9. On May 14, 1988, a Sing Sing physician's assistant examined plaintiff's right big toe and noticed some "disturbed" skin. Betadine soaks were ordered, however plaintiff became loud, demanded an increase in his pain medication, refused his insulin and other medication and left the infirmary. Sandor Aff., ¶ 10.

From May 15 to May 18, 1988, plaintiff accepted insulin injections. On May 18 the physician's assistant noticed that the condition of plaintiff's right big toe had worsened. Antibiotics and betadine soaks were ordered, both of which plaintiff had been refusing. Sandor Aff., ¶ 11. On May 19 a purulent discharge was noticed from plaintiff's right toe. An attempt was made to admit plaintiff to St. Claire's Hospital, but St. Claire's declined, stating that no beds were available. On May 20, Dr. Sandor, who was a primary care physician for plaintiff during his confinement at Sing Sing, arranged for plaintiff's admission to Butterfield Hospital, where plaintiff remained for almost three weeks. Sandor Aff., ¶ 12. On June 9, 1988, however, plaintiff signed out of Butterfield Hospital, against the advice of the attending physician and the hospital authorities, and was admitted to the Sing Sing infirmary. He was examined by Dr. Sandor, who discharged him from the infirmary on June 10, with instructions that plaintiff be housed so he could come to the infirmary by wheelchair. Sandor Aff., ¶ 13.

Plaintiff received insulin injections on June 10, 11 and 12, 1988. On the afternoon of June 13, plaintiff suffered a "seizure" because his sugar level was low. He was admitted to the infirmary and given sugar and orange juice, and his condition improved. On June 14, 1988, Dr. Sandor again examined plaintiff and discharged him from the infirmary, with orders for daily sugar level testing. Sandor Aff., ¶ 14. Over the following two weeks, plaintiff received regular insulin injections. Twice plaintiff failed to appear for sick call, but on June 28, 1988, plaintiff came to the emergency room, where a physician's assistant examined him and noticed dead tissue surrounding ulcers on his right big toe. Betadine soaks were again ordered, as was a surgical evaluation. On June 30, 1988, plaintiff reported that he was becoming dizzy in the evenings, and an adjustment was made in the timing of plaintiff's sugar level testing. Sandor Aff., ¶ 15. On July 6 and 7, 1988, plaintiff's right foot was again examined, and betadine soaks were continued. Sandor Aff., ¶ 16. On July 13, 1988, plaintiff was transferred to Auburn Correctional Facility ("Auburn"). According to Dr. Sandor, throughout plaintiff's confinement at Sing Sing plaintiff was "extremely uncooperative with and overtly hostile to medical staff . . . [and] refused to accept recommended treatment on many occasions and thus impaired our efforts to attend to his serious medical needs." Sandor Aff., ¶ 6. Dr. Sandor's final diagnosis of plaintiff stated that plaintiff's condition "may call for hospitalization and may eventually require amputation. In my judgment, however, immediate hospitalization is not necessary. Local wound care and antibiotics are adequate pending the surgical evaluation."

On July 7, 1988, before his transfer to Auburn, plaintiff commenced this action. On July 8, 1988, plaintiff moved, by order to show cause, for a preliminary injunction

Order to Show Cause, July 8, 1988.

Upon plaintiff's arrival at Auburn, he was placed in the infirmary and examined by Dr. Roger D. Spier, M.D. ("Spier"), who performed an evaluation on July 13, 1988, and again on July 20, 1988. Affidavit of Roger D. Spier, M.D., sworn to on July 22, 1988 ("Spier Aff."), attached as Exhibit 3 to Rosas Aff. Rivera was placed on a diet approved by the American Diabetic Association. Spier Aff., ¶ 4. Spier concluded on July 22, 1988 that "oral antibiotics should be sufficient to deal with [plaintiff's] condition," and that "intravenous antibiotics and debridement are not necessary at this point. Therefore, immediate hospitalization is not appropriate." Spier Aff., ¶¶ 5, 6. Spier also noted that plaintiff "was extremely uncooperative with medical staff and disruptive of the functioning of the infirmary. Mr. Rivera failed to follow instructions of medical staff and refused insulin injections. Subsequently, Mr. Rivera became less hostile and began accepting the treatment offered. However, he continues to refuse to stop smoking cigarettes, which impairs his circulation." Spier Aff., ¶ 3.

On August 1, 1988, this Court "so ordered" a stipulation signed by the parties (the "Stipulation"), providing that:

  IT IS HEREBY STIPULATED AND AGREED, pursuant to
  F.R.C.P. 35, that as soon as practically possible
  Defendants shall cause Plaintiff to be medically
  evaluated by physicians not employed by the New
  York State Department of Correctional Services.
  The evaluations shall include (a) bone scans of
  the Plaintiff's right toes and foot; (b)
  evaluations by physicians to determine the
  Plaintiff's need for surgical debridement of areas
  on his right toes and foot; (c) evaluations by a
  diabetologist; and it is further
  STIPULATED AND AGREED, that upon a finding by the
  physicians and other medical personnel that
  Plaintiff requires hospitalization that Defendants
  shall take all necessary steps to assure that
  Plaintiff is immediately hospitalized in a
  facility able to meet Plaintiff's medical care
  needs; and it is further
  STIPULATED AND AGREED, that Defendants shall not
  take any steps to remove Plaintiff from any
  hospital unless Plaintiff is discharged by the
  hospital's medical staff or ...

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