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Cunningham v. City of New York

January 5, 2006

KENNETH CUNNINGHAM, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.

REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD C. CASEY

I. Introduction

Plaintiff Kenneth Cunningham ("Cunningham") brings this pro se civil rights action, pursuant to 42 U.S.C. § 1983, against the City of New York ("City"), Laurence Rezkalla, M.D. ("Rezkalla"), and Kyaw Aung, M.D. ("Aung") (collectively, the "defendants"), alleging that they violated his constitutional rights by denying him adequate medical treatment after he suffered a back and hip injury while he was a pretrial detainee at the George Mochtan Detention Center ("GMDC") on Rikers Island. More specifically, Cunningham contends that GMDC medical staff failed to monitor his condition properly, denied him needed physical therapy, and refused to refill his prescription for Naprosyn, a pain killer.

Following the close of discovery, the City has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (See Docket Nos. 21, 22). For the reasons set forth below, the City's motion for summary judgment should be granted and this case dismissed.

II. Facts

Unless otherwise noted, the following facts are undisputed or are set forth in the light most favorable to Cunningham.

A. Alleged Deliberate Indifference

Cunningham was detained at the GMDC from November 2002 to July 2003. (See Def.'s R. 56.1 Stmt. ¶ 4). On February 20, 2003, Cunningham pulled a muscle in his right knee while exercising in his cell. (Id. at ¶ 5; Dep. of Kenneth Cunningham, taken on March 10, 2005 ("Cunningham Dep."), at 129). GMDC medical personnel gave Cunningham crutches as a result of this injury. (Def.'s R. 56.1 Stmt. ¶ 5; Cunningham Dep. at 133-34).

On February 21, 2003, as he was walking with his crutches at approximately 11:25 a.m., Cunningham fell down a flight of stairs, injuring his back and hip. (Def.'s R. 56.1 Stmt. ¶ 6; Decl. of Brian Morgan, Esq., dated June 3, 2005 ("Morgan Decl."), Ex. D (Feb. 21, 2003 Injury to Inmate Report); Cunningham Dep. at 133-35, 137). With the assistance of two other inmates, Cunningham proceeded to the mess hall. (Cunningham Dep. at 137). There, Correctional Officer Kiesha Gorham ("Gorham") was directed to file a report and call the medical unit. (Id. at 137-38).

After he left the mess hall, Cunningham walked up three flights of stairs with the assistance of other inmates and returned to the housing unit. (Id. at 139, 141). Once Cunningham arrived there, Gorham locked the inmates in their cells, called the medical unit, filled out an incident report, and gave Cunningham his own report to complete. (Id.; see also Morgan Decl. Ex. D). By no later than 5:05 p.m., Cunningham was examined and treated by Ida Brown ("Brown"), a physician's assistant at the GMDC Clinic. (Def.'s R. 56.1 Stmt. ¶ 11; Morgan Decl. Ex. C at 13).*fn1 Brown noted "no visible injury" and observed further that Cunningham had "mild tenderness," but was "comfortable . . . [and] not in severe pain." (Def.'s R. 56.1 Stmt. ¶ 12; Morgan Decl. Exs. C at 13-14, D). Brown requested that Cunningham be x-rayed and gave him a four-day supply of Motrin. (Def.'s R. 56.1 Stmt. ¶ 14; Cunningham Dep. 158; Morgan Decl. Ex. C at 14).

On February 27, 2003, when Cunningham returned to the GMDC Clinic to learn the results of his X-rays, Rezkalla informed him that he had a "spinal defect" from birth which was exacerbated by his fall down the stairs. (Cunningham Dep. 159; Morgan Decl. Ex. C at 16). Cunningham disagreed, telling Rezkalla that he had limited range of movement in his back following a car accident in 1996. (Cunningham Dep. 159). Cunningham also gave Rezkalla contact information for the chiropractor who had been treating him prior to his confinement. (Id.). That same day, after reviewing Cunningham's X-rays, Aung, who was the Site Medical Director at GMDC, scheduled Cunningham for a consult at the Orthopedic Clinic. (Def.'s R. 56.1 Stmt. ¶ 18; Morgan Decl. Ex. C at 16).

From February 2003 to April 2003, Cunningham was treated by medical personnel at the GMDC Clinic at least four times for his back injury. (See Cunningham Dep. 180; Def.'s R. 56.1 Stmt. ¶ 16; Morgan Decl. Ex. C at 13-21). During this same period, however, Cunningham refused to go to the Orthopedic Clinic on at least four occasions. (Cunningham Dep. at 188-89; Morgan Decl. Ex. C at 18-24). Cunningham allegedly refused because the clinic physician originally had recommended that he see a physical therapist and because attendance at the Orthopedic Clinic would have required that he wake up at 5:30 a.m. (Cunningham Dep. 192).

On March 6, 2003, Cunningham woke up and "couldn't move [his] legs." (Cunningham Dep. 150). Cunningham started screaming and was carried down the stairs to a stretcher by two inmates. (Id. at 165-66). The medical staff "came immediately" after Cunningham began to scream. (Id. at 166). When Cunningham arrived at the GMDC Clinic, a nurse gave him 500 milligrams of Naprosyn and the "pain went away." (Id. at 176; Morgan Decl. Ex. C at 17). He returned to the clinic on March 10, 23, and 31, 2003, complaining of back pain. (Morgan Decl. Ex. C at 17-19). During at least one of these visits, Cunningham received a prescription of Naprosyn for his pain. (Id. at 17, 19; Cunningham Dep. at 149-50). Despite this treatment, Cunningham contends that he should have been given more pain medication and "needed to see a doctor more" for his back injury. (Cunningham Dep. at 156, 180, 197). Although he complains about the severity of his condition, Cunningham went back to work at a job in the GMDC that required him to pick up garbage and strip, buff, and wax floors. (Id. at 171-72).

Cunningham filed two grievance complaints regarding his inadequate medical treatment in March and April 2003. (Id. at 197; Def.'s R. 56.1 Stmt. ¶ 31). He put the first complaint in the grievance box himself. (Cunningham Dep. at 197). After receiving no response over the next several weeks, Cunningham delivered his second complaint personally to a grievance officer, who explained that the office was "real backed up," but that he would "try to push [Cunningham's grievance] forward." (Id. at 197, 202).*fn2

B. Procedural History

Cunningham's original complaint is dated December 17, and was received by the Pro Se Office of the Court on December 22, 2003. (See Docket No. 2 at 1). Thereafter, by order dated November 15, 2004, Chief Judge Mukasey granted Cunningham's request to proceed in forma pauperis, but directed that he submit an amended complaint within sixty days. (See Docket No. 3).

On or about April 2, 2004, Cunningham filed an amended complaint substituting the "City of New York" for the "Department of Corrections" as a named defendant and naming several "John Doe" defendants. (See Docket No. 5). On or about April 9, 2004, the case was reassigned to Your Honor, who referred the case to me on June 2, 2004, for general pretrial supervision and a report and recommendation regarding any dispositive motions. (See Docket Nos. 4, 6).

On April 8, 2005, I directed the City to provide Cunningham with service addresses for Brown, Gorham, Rezkalla, and Aung, the four individuals whom Cunningham sought to substitute for the previously-named "John Doe" defendants. (See Docket No. 15). On April 15, ...


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