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July 22, 1995

THOMAS BROWN, Plaintiff,

The opinion of the court was delivered by: THOMAS J. MCAVOY

 I. Background:

 This action seeking damages under 42 U.S.C. § 1983 and under state law negligence principles for personal injuries allegedly suffered by plaintiff through defendants' violation of his rights under the Eighth and Fourteenth Amendments came before the Court for a bench trial on April 17, 1995. Plaintiff is an inmate of the New York State Department of Correctional Services ("DOCS") and from December 22, 1987, through January 5, 1988, the period relevant to plaintiff's complaint, plaintiff was confined at Clinton Correctional Facility, Dannemora, New York. Plaintiff's cause of action stems from the defendants' alleged failure to treat injuries he received during a use of force incident at the prison. In plaintiff's opening statement he conceded that his claim was being prosecuted at trial against only Wayne Crosier, director of the Mental Health Satellite Unit ("MSHU") at which plaintiff was treated/mistreated, and Correction Officer Randall Lodge, who was assigned to that unit during the relevant period.

 Plaintiff Thomas Brown has a long history of psychiatric treatment and has been diagnosed as a bi-polar personality with psychotic features. Defendant Crosier, chief of the MSHU at Clinton testified that plaintiff's observable symptoms included paranoia, grandiosity and pressure of speech. *fn1" The Court observed all three features during plaintiff's testimony. *fn2" Notwithstanding the foregoing, the Court was able to understand plaintiff's testimony. Neither did the Court reject plaintiff's testimony based on any of the foregoing, but rather, the Court weighed plaintiff's testimony and credibility against the competing evidence in drawing its conclusions.

 The Court now makes the following findings of fact and conclusions of law based on the evidence at trial.

 II. Findings of Fact:

 On December 22, 1987, plaintiff was involved in a use-of-force incident with a number of correction officers at Clinton Correctional Facility. *fn3" After plaintiff was subdued he was escorted to the facility hospital and examined by Physician's Assistant Jay Belkin. Plaintiff was extremely agitated at that time and Belkin failed to diagnose any injuries to plaintiff's leg other than a contusion behind the right knee. (Belkin Dep. at 59). Plaintiff did not complain about his right leg to Belkin. (Belkin Dep. at 58).

 After this examination Dr. Kanar, a Clinton psychiatrist, attempted to interview plaintiff. Based on the testimony of all concerned, including plaintiff, the Court finds that plaintiff was belligerent towards, resentful of, and rebuffed any and all attempts to treat him by the MSHU psychiatric staff. *fn4"

 Plaintiff refused to cooperate with Dr. Kanar and was placed in a mental observation cell in OBS I, a temporary isolation unit for inmates with serious mental health problems. On plaintiff's mental health progress chart Kanar noted that "further observation [of plaintiff was] needed." (Ex. D 11). Since plaintiff was deemed a danger to himself he was placed in the isolation cell naked and with no possessions. The cell contained only a metal bed, a toilet and a sink.

 There are no entries in plaintiff's progress notes from his 12/22/87 admission, (see N.4 infra), until Dr. Kanar's 12/29/87 entry in which Kanar notes that plaintiff "complains of pain in his right leg and ankle." (Ex. D 11). Upon complaining to Dr. Kanar on 12/29/87, DOCS medical staff was consulted, at which time X-rays were taken and plaintiff was referred to Champlain Valley Physician's Hospital for further care. Plaintiff was ultimately diagnosed with a fractured fibula in his right leg. On January 5, 1988 plaintiff was transferred out of OBS I to the Central New York Psychiatric Center where he was fitted with a cast for his leg.

 Plaintiff's own medical expert indicated in his deposition that the delay in medical care herein addressed caused very little difference in plaintiff's recovery from the injury. In his closing arguments plaintiff's counsel acknowledged as much, but pointed out that plaintiff endured unnecessary and avoidable pain and suffering as a result of the delay, and that plaintiff was entitled to be compensated for such if it was attributable to the wrongful acts or omissions of the defendants.

 Defendant Crosier testified at trial that standard procedure in OBS I requires that the assigned corrections officer (such as defendant C.O. Lodge) visually check each inmate every fifteen minutes and that nurses make twice-daily rounds. Crosier testified that MSHU psychiatrists do not necessarily visit every patient every day, but rather MSHU psychiatrists monitor by client needs. Crosier also testified during his deposition that psychologists and social workers also make daily rounds of the various housing units. (Crosier Dep. at 51-55). Finally, Crosier testified that each round made would not necessarily result in a record being made of that visit, but rather, only salient changes of behavior would be recorded. Crosier did state, however, that each visit to OBS I should be noted in the log-book maintained thereat. Finally, Crosier testified that DOCS (as opposed to MHSU personnel) is responsible for security and medical problems which come to their attention. In his testimony Crosier also pointed out an entry in the OBS I logbook on 12/22/87 (Ex.D15, p. 278) reflecting that at 12:30 p.m. OBS I inmate Lafata requested a sick call and that the satellite unit nurse had been notified. The log further reflects that at 12:55 a satellite nurse visited inmate Lafata.

 In his deposition, however, plaintiff testified that he complained to the C.O.s "several times," (Brown Dep. at 67), although he couldn't name a particular Corrections Officer he spoke with. Plaintiff expressly testified at that deposition that he didn't speak to the psychiatric staff while he was in OBS I and that he never complained about his leg to the psychiatric staff. At trial he explained the discrepancy between his prior testimony of no communication with psychiatric staff and his later ...

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