Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PEREZ v. HAWK

February 10, 2004.

VICTOR PEREZ, Plaintiff -against- KATHLEEN HAWK, Director of the Federal Bureau of Prisons, SUSAN GERLINSKI, LSCI Allenwood Safety Manager, D. DESANTIS, Allenwood Health Services Administrator, DR. TOA CHAW, Allenwood Clinical Director, PA KOHLER, Allenwood Physician's Assistant, UNKNOWN ALLENWOOD LIEUTENANT, UNKNOWN PERSONNEL AT ALLENHOUSE POWERHOUSE, DENNIS W. HASTY, MDC Brooklyn Warden, DR. BERECKY, MDC Doctor, PA SMITH, MBC Physician's Assistant UNKNOWN PERSONNEL AT MDC BROOKLYN POWERHOUSE, THE METRO GROUP, INC., JOHN DOE, UNKNOWN BOP PERSONNEL, Defendants


The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2

MEMORANDUM OF DECISION AND ORDER

Victor Perez ("Perez" or the "plaintiff"), proceeding pro se, seeks monetary, declaratory, and injunctive relief for alleged violations of his Fifth and Eighth Amendment rights that allegedly occurred during the plaintiff's incarceration at the Low Security Correctional Institution Allenwood ("LSCI Allenwood") and at the Metropolitan Detention Center in Brooklyn, New York ("MDC Brooklyn"). Presently before the Court is a motion to dismiss by Kathleen Hawk ("Hawk"), Susan Gerlinski ("Gerlinski"), D. DeSantis ("DeSantis"), Dr. Toa Chaw ("Dr. Chaw"), Physician's Assistant ("Kohler"), Unknown Allenwood Lieutenant, Unknown Personnel at Allenhouse Powerhouse, Denis W. Hasty ("Hasty"), Dr. Berecky, Physician's Assistant Smith ("PA Smith"), Unknown Personnel at MDC Brooklyn Powerhouse (collectively, the "Federal Defendants") for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.) Page 3 or, in the alternative, for summary judgment.

  I. BACKGROUND

  The facts are taken from the complaint and taken as true for the purposes of this motion. The plaintiff is a federal prisoner currently incarcerated at FCI Fort Dix, New Jersey. On September 19, 2000, while incarcerated at LSCI Allenwood the plaintiff was examined by Dr. Chaw at LSCI Allenwood's Health Services Facility (the "Health Services Facility"). The plaintiff complained of "itching, swelling and red rashes on his body that expanded upon touching, and that these symptoms were spreading all over the [p]laintiff's body. Compl. ¶ 5. Dr. Chaw diagnosed the plaintiff as having an allergic reaction to something that the plaintiff had earlier consumed or touched and prescribed antihistamines for the Plaintiff.

  Two days later, the plaintiff was examined by Physician's Assistant Fascina ("PA Fascina") and Dr. Chaw at the Health Services Facility because the plaintiff's feet "had swollen to the size of [a] football" and the plaintiff was once again suffering from itching and swelling on his entire body. PA Fascina gave the plaintiff a "shot of Benadryl," ordered an HIV test and asked the plaintiff to return to the Health Services Facility several days later. Compl. ¶ 6. At the plaintiff's return visit, the plaintiff was again examined by PA Fascina who concluded that the plaintiff's rashes were attributable to something that the plaintiff consumed or touched. PA Fascina told the plaintiff that because the Bureau of Prisons (the Page 4 "BOP") would not pay for an allergist or dermatologist, the plaintiff would have to determine the specific source of the irritation himself. PA Fascina again prescribed antihistamines for the plaintiff.

  On October 5, 2000, the plaintiff returned to the Health Services Facility because of his ongoing chronic itching, swelling and rashes. Although the plaintiff explained to PA Fascina that the previously prescribed antihistamines "simply were not working," Compl. ¶ 8, the same medications were prescribed to the plaintiff. On October 12, 2000, the plaintiff reported to the Health Services Facility complaining of swollen lips and unhealed rashes on his body "from head to foot." Compl. ¶ 9. The plaintiff suggested to Dr. Chaw and PA Fascina that LSCI Allenwood's water supply was the source of his condition. Dr. Chaw prescribed a different type of antihistamine for the Plaintiff.

  Between October 12, 2000 and November 30, 2000, the plaintiff began to experienced rapid heartbeats, a swollen tongue, shocks in the middle of the night, swelling in all of his joints and, on occasion, numbness in his entire body. The plaintiff's groin area became "grotesquely swollen" and he saw a mucuous-like substance after using the bathroom. Compl. ¶ 10. The plaintiff claims that he was "brushed off" by the staff members to whom he complained. PA Kohler indicated to the plaintiff that the problems could be related to the HIV virus and ordered the plaintiff to be tested again. Id. During this time, the plaintiff received prescriptions for antihistamines. Page 5

  On December 5, 2000, the plaintiff contacted his attorney and expressed his strong fear of losing his life during his incarceration because of his severe and worsening medical condition. The plaintiff's attorney indicated that he would write a letter to Warden Susan Gerlinski ("Gerlinski"), the warden of LSCI Allenwood, to expedite a transfer. This transfer was previously proved by the BOP's Northeast Regional Director. On December 7, 2000, after he placed another call to his attorney, the plaintiff claims he was threatened by an unnamed Lieutenant that if the "plaintiff continued to `expose' the situation to anyone `outside or inside' the Allenwood facility" he would be placed in solitary confinement. Compl. ¶ 19. This Lieutenant also demanded that the plaintiff formally accept a finding that bathing soap was the sole cause of the plaintiff's illness. The plaintiff responded by showing the Lieutenant his rashes who immediately sent the plaintiff to Dr. Chaw.

  On December 7, 2000, the plaintiff complained to Dr. Chaw that his symptoms were increasingly more severe and included swelling, different types of irritating rashes, tightness of the chest, erratic heartbeats and night shocks. Dr. Chaw declined to order that the plaintiff be examined by an allergist or dermatologist. Rather, Dr. Chaw prescribed antihistamines and calamine lotion. Dr. Chaw also dismissed the plaintiff's notion that the water supply was the source of the plaintiff's symptoms.

  On December 18, 2000, DeSantis, the Health Service Administrator at LSCI Allenwood, told the plaintiff that his transfer would be barred if the plaintiff does not accept Page 6 the conclusion that the plaintiff's medical problems were caused by the bathing soap. DeSantis also dismissed Dr. Chaw's written recommendation that would allow the plaintiff to purchase extra bottles of water from the commissary which forced the plaintiff to consume only the water at LSCI Allenwood. DeSantis also stated that he would monitor the plaintiff closely to make certain that the plaintiff purchased a different brand of soap.

  On or about December 21, 2000, Gerlinski told the plaintiff that no transfer could be effectuated because the plaintiff's records contained open medical problems. Gerlinski also informed the plaintiff that MDC Brooklyn treats its water supply with chemicals pursuant to an order of the Bureau of Prisons. Gerlinski also indicated to the plaintiff that she directed DeSantis to tell the plaintiff that unless the plaintiff accepted conclusion that the plaintiff's medical problems were caused by the bathing soap, his transfer would be barred. At this meeting, Gerlinski reiterated the position that the plaintiff had to formally accept the conclusion that his medical problems were bring caused by the brand of soap he was using. The plaintiff alleges that Gerlinski acknowledged that she oversaw all of the acts complained of and acknowledged the use of chemicals in the Allenwood water supply.

  On December 25, 2000, the plaintiff submitted a form to LSCI Allenwood Safety Manager Mudge requesting that an investigation be made of the chemicals used in the treatment of the LSCI Allenwood water supply. Mudge told the plaintiff to address his complaints to the Health Services Department. Page 7

  Thereafter, the plaintiff was transferred to MDC Brooklyn. On or about December 26, 2000, the plaintiff visited MDC Brooklyn's Health Services Facility to register his medical condition. The MDC Brooklyn medical staff did nothing other than prescribe antihistamine medications to the plaintiff.

  On February 20, 2001, the plaintiff complained to the MDC Brooklyn Health Services staff that in addition to his previous symptoms, the plaintiff noticed that there was "highly-visible yellow gel-like discharges mingled with blood in his waste." Compl. ¶ 14. The MDC Brooklyn Health Services staff only made a "perfunctory examination" and prescribed antihistamines. Compl. ¶ 14.

  Toward the end of February and the beginning of March, 2001, the plaintiff was examined by PA Smith at MDC Brooklyn Health Services Facility. At this examination, the plaintiff complained of stomach pains, yellow mucous in his stool, and irritating itching red-dots appearing on the plaintiff's pores after he perspired. PA Smith promised the plaintiff that he would speak to one of the doctors on staff to obtain a resolution of the matter.

  On March 12, 2001, while the plaintiff was working at his assigned duties at MDC Brooklyn's food service facility, he suddenly experienced excruciating stomach pain and later noticed that there were substantial amounts of blood in his stool. Later that day, PA Smith told the plaintiff that he had contracted either a severe strain of the herpes virus or gonorrhea. PA Smith prescribed a combination of antibiotics for the plaintiff. Page 8

  Three months later, the plaintiff once again visited MDC Brooklyn's Health Services Facility, where he was once again examined by PA Smith. The plaintiff advised PA Smith that other inmates in the plaintiff's housing unit had been complaining about similar symptoms and that he believed that the problems were related to the water supply at MDC Brooklyn. PA Smith informed the plaintiff that he spoke with other members of the facility's health services staff about the plaintiff's concerns regarding the water supply and that Dr. Berecky, a doctor at MDC Brooklyn, dismissed the plaintiff as being "psychotic." Compl. ¶ 17.

  On June 29, 2001, the plaintiff met with Dr. Berecky. The plaintiff explained that he uncovered "conclusive evidence" that the MDC Brooklyn Powerhouse was treating the water supply and causing illness among the prison population. Compl. ¶ 18. The plaintiff asked to be examined by an allergist or dermatologist but instead Dr. Berecky ordered the plaintiff to see the staff psychologist.

  On March 27, 2002, Perez visited MDC Brooklyn's Health Services Unit. The attached medical record for this visit indicates that Perez "states he feels fine . . .[and that his] rash is under control." Medical Record dated March 27, 2002.

  At some point, the plaintiff approached Mr. Butler ("Butler"), the MDC Brooklyn Safety Manager inquiring why potentially unsafe chemicals were being added to the Institution's water supply. The plaintiff claims that Mr. Butler has never accepted responsibility for determining the level and safety of the chemicals being used in the water Page 9 supply. The plaintiff claims that the chemicals are distributed by the defendant The Metro Group, Inc. and these chemicals contain compounds that can have serious adverse effects on the inmate population. The staff at MDC Brooklyn deny that chemicals are being added to the MDC Brooklyn water supply.

  On September 12, 2002, the plaintiff filed this complaint alleging that the Federal Defendants: (1) failed to provide the plaintiff with appropriate medical care and provide measures to secure the plaintiff's health; (2) threatened, coerced and intimidated the plaintiff because of his complaints; (3) as a result of the Federal Defendants' "policies, practices, procedures, acts and omissions, the plaintiff has suffered, does suffer and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury." Compl. p. 12.; and (4) the conditions at LSCI Allenwood and MDC Brooklyn are incompatible with contemporary standards of decency and have caused unnecessary and wanton infliction of pain and suffering. In addition, the plaintiff claims that the Federal Defendants at MDC Brooklyn gave misleading diagnoses of the plaintiff's serious health problems, acted negligently, and failed to inform the inmate population of actions taken at the MDC Brooklyn Powerhouse which a llegedly endangered the inmates' health and safety. The plaintiff claims that the water supply in both LSCI Allenwood and MDC Brooklyn contains harmful chemicals that are distributed by defendant The Metro Group, Inc. and these chemicals contain compounds that can have serious adverse effects on the inmate Page 10 population.

  Presently before the Court is the Federal Defendants' motion to dismiss or, in the alternative, for summary judgment. In particular the Federal Defendants argue that: (1) there is no personal jurisdiction over several of the federal defendants because they were not properly served; (2) Perez's allegations concerning his incarceration at LSCI Allenwood should be dismissed or, in the alternative, transferred to the Middle District of Pennsylvania; (3) the complaint must be dismissed to the extent that the plaintiff sues the Federal Defendants in their official capacities; (4) the plaintiff has failed to state a claim under 42 U.S.C. § 1983 ("Section 1983"); and (5) the plaintiff's allegations concerning inadequate medical care do not rise to the level of a constitutional violation.

  ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.