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GIL v. VOGILANO

February 7, 2001

EDGAR GIL, PLAINTIFF,
V.
DR. GEORGE VOGILANO, NURSE LOURI NURSE SHARON, DR. JOHN DAVIRRO, WESTCHESTER COUNTY, AND EMSA LIMITED PARTNERSHIP, IN PRIVATE AND OFFICIAL CAPACITIES, DEFENDANTS.



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

Opinion

Pro se plaintiff Edgar Gil, an inmate at Green Haven Correctional Facility, brought this action for damages suffered allegedly due to improper medical treatment during his detention at the Westchester County Jail. Defendant Westchester County now moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and Fed R. Civ. P. 12(b)(2) for lack of personal jurisdiction. The Court has construed the pro se litigant's papers to raise the strongest arguments they suggest and, for the reasons set forth below, grants the County's motion with respect to Gil's claim for punitive damages against the County and denies it in all other respects.

BACKGROUND

A. Facts

The following facts are taken from the "Prisoner's 1983 Action Amended Complaint" ("Compl.") in this action dated August 8, 2000, and are presumed true for the purposes of this motion:

In August 1995, while incarcerated at the Westchester County Jail pending a trial on unspecified criminal charges, Gil fell in the shower area, injuring his left hand, lower back, and right heel. Compl. at 2. He requested medical attention and was referred to defendant Dr. George Vogliano*fn1 the next day. Id. Dr. Vogliano treated the open wound to Gil's hand, but did not treat any injuries to Gil's back and heel because those areas showed no visible signs of trauma. Id.

Four months later — in December 1995 — Gil once again fell in the shower area. Id. He immediately sought medical attention, but was informed that he would have to wait. Id. Gil continued to request to see a doctor on a daily basis from December 29, 1995 (the day after he fell), to January 10, 1996. Id. at 2-3. On January 9, 1996, Gil was in such extreme pain that correctional staff ordered that he be attended to by medical personnel. Id. at 3. The next day, Gil was examined by defendant Dr. John Davirro, who prescribed antibiotics for a severe infection to Gil's right heel. Id.

Within a week, Gil's condition worsened, and his heel became extremely swollen and painful. Id. Gil was sent to the jail's clinic, where he was examined by defendant Nurse Sharon, who refused to administer any medication or treatment or arrange for Gil to see a doctor, and instead ordered that he be returned to his cell. Id.

Gil then enlisted the aid of his attorney in the then pending criminal action against him, who contacted facility officials. Id. Those officials assured the attorney that Gil would receive the necessary medical treatment. Id. Despite those assurances, Gil did not receive medical treatment. Id.

Gil's medical condition was then brought to the attention of the judge presiding over the criminal action. Id. That jurist allegedly directed jail officials on three separate occasions to give Gil medical treatment. Id. Ultimately, on January 24, 1996, Gil was examined by Dr. Vogliano, who told Gil that he was healing normally. Id. at 3-4.

A few days later, Gil once again complained about his medical condition during a court appearance in the criminal action. Id. at 4. The judge ordered that an x-ray be taken of Gil's foot. Id. Although an x-ray was taken the next day, Gil was allegedly never told the results. Id.

Gil continued to request medical treatment, and he was taken to the jail's clinic on February 5, 1996. Id. At the clinic, however, defendant Nurse Louri directed that Gil be taken back to his cell without being examined or treated. Id. Gil continually renewed his request to see a doctor until March 20, 1996, when he was transferred to the custody of the New York State Department of Correctional Services. Id. He was then diagnosed with osteomylitis-a condition of bone deterioration due to infection — of his right heel. Id. Gil was surgically treated to prevent further damage to the heel of his right foot. Id. However, despite the surgery, Gil asserts that he now walks with a pronounced limp. Id.

B. Procedural History

On November 24, 1997, Gil filed a complaint in the United States District Court for the Southern District of New York naming Dr. Vogliano, Nurse Louri, Nurse Sharon, and Dr. Davirro as defendants. Gil also sought to proceed in forma pauperis but did not include an authorization for the Clerk of Court to collect the full filing fee from his prison account, as required by 28 U.S.C. § 1915(a)(2),(b). The Pro Se Office of the Southern District mailed Gil a Prisoner Authorization Form, notifying him of the required authorization and instructing him to submit a completed form within 45 days or face dismissal of his action.

Gil did not respond, and on May 1, 1998, Chief Judge Grisea dismissed the action without prejudice. See Order of Dismissal, No. 98 Civ. ...


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