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Bennett v. Erie County Holding Center Medical Dep't

March 31, 2006


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge


Plaintiff Tony Bennett ("Bennett") has filed suit against the Erie County Holding Center Medical Department (the "Medical Department") under 42 U.S.C. § 1983, alleging that it was deliberately indifferent to his medical needs in violation of the Eighth Amendment. (Docket # 1). Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 14). Currently before this Court is the Medical Department's motion for summary judgment. (Docket # 34). For the reasons discussed below, the Medical Department's motion is granted.


Shortly before his admission to the Erie County Holding Center (the "Holding Center"), Bennett underwent surgery at Strong Memorial Hospital for a fractured jaw.*fn1 (Docket # 36, Ex. A, Declaration of Nkechi Ilogu, R.N. ("Ilogu Decl.")). Upon admission to the Holding Center on the evening of March 27, 2003, Bennett was seen by a physician's assistant, Susan Mascoti. (Ilogu Decl. ¶ 6). Ms. Mascoti noted in Bennett's medical file that he had a fractured jaw, and she prescribed for him an antibiotic, Clindamycin, as well as Tylenol with codeine and a peridex rinse. (Ilogu Decl. ¶ 6). Ms. Mascoti further proscribed recreation and ordered a clear liquid diet; she recommended that he follow-up with a Ear, Nose and Throat ("ENT") physician at the Erie County Medical Center ("ECMC"). (Ilogu Decl. ¶ 6). According to Bennett's medical records, Nurse Amy MacKinnon administered the medication to Bennett as Ms. Mascoti had directed. (Ilogu Decl. ¶ 6). Bennett disputes that he was given the prescribed medicine before being admitted to the hospital the next day. (Docket # 43 at p. 1).

The following day, March 28, 2003, Bennett complained of severe pain and increased swelling and was seen by Nkechi Ilogu, a registered nurse. Nurse Ilogu recommended that Bennett be sent to ECMC that afternoon for an evaluation by an ENT specialist. (Ilogu Decl. ¶ 7). Dr. Dunlop, a physician with the Medical Department, approved Nurse Ilogu's recommendation, and Bennett was sent to ECMC, where he was admitted and remained as a patient until April 11, 2003. (Ilogu Decl. ¶ 7). During his hospital stay, he was treated for a surgical wound abscess. (Ilogu Decl. ¶ 8).

At the time of his discharge from ECMC, Bennett's Discharge Summary noted: The patient was admitted to the 9th floor prisoner lock up unit, room 952. The patient progressed positively on a daily basis. The patient remained ambulatory. The patient's surgical wound abscess was addressed by incision and drainage and subsequently followed by iodoform packing with daily changes of iodoform packing along with peroxide and water cleansing of the wound area. The patient was placed on Clindamycin [an antibiotic] 900 mg IV q.8h., Paradox solution rinses with rinse, gargle and spit 15 cc q.i.d., Tylenol #3 . . . [every 4 hours as needed] . . . for pain.

As stated above, the patient progressed positively throughout his stay. Clindamycin IV was [discontinued] on 04/10/03. The patient was then begun on Cleocin [another antibiotic] 150 mg p.o.q.i.d., Tylenol #3 . . . [every 4 hours or as needed for pain] remain in place . . .. Would steadily healing well . . .. Wound edges healthy. Wound closure progressing properly and discharge completed by 04/10/03 . . . Pain scale 5/10 without analgesia and 0/10 with analgesia, Tylenol #3. As of 04/09/03 the patent has been doing well without supplemental analgesia. (Ilogu Decl. ¶ 6; Docket # 36, Ex. C).

In addition, the Discharge Summary reflected the following discharge instructions:

Follow up as soon as possible with Rochester Strong Memorial Hospital, Head and Neck Surgery Department for re-evaluation with potential repair revision of ORIF right mandibular fractures.

Discharge medications: Cleocin [an antibiotic] 150 mg p.o.q.i.d. times 10 days, Tylenol #3 2 at p.o.q.4h.p.r.n pain as directed.

Local wound care if necessary peroxide and water half and half 3 times a day. Due to malocclusion, the patient advised to continue liquids and soft diet, to chew as tolerated, regular diet as tolerated.

The patient to follow up with ECMC on an acute care basis only.

Again, long term care including repair and revision of ORIF right mandibular fractures done at Strong Memorial Hospital 03/25/03 and needs to be followed up with surgeons at Rochester General. (Ilogu Decl. ¶ 9; Docket # 36, Ex. C). On April 11, 2003, the Holding Center received the Discharge Summary, which was noted and written into Bennett's medical chart. (Ilogu Decl. ¶ 10). In her declaration, Nurse Ilogu summarily affirms that the discharge instructions were followed. (Ilogu Decl. ¶ 10). No indication exists in Bennett's medical records, however, that he was ever evaluated by a surgeon at either Strong Memorial Hospital or Rochester General Hospital despite the instruction that such "follow up" occur "as soon as possible."*fn2 Indeed, Bennett states that no surgical evaluation at Strong Memorial Hospital was facilitated by the Medical Department. (Docket # 43 at pp. 1-2).

On April 16, 2003, Bennett asked to speak with a doctor about the way his jaw was healing. Later that day, Bennett was seen by Kathleen Davidson, a registered nurse. (Ilogu Decl. ¶ 11). Thereafter, on April 20, 2003, Bennett was seen by Dr. Merrill, a facility physician, because he was experiencing increased swelling and drainage from an abscess. Dr. Merrill prescribed Augmentin (an antibiotic) for fourteen days, Ultram (a pain medication) for ten days and Motrin as needed, and referred Bennett to a dentist. (Ilogu Decl. ¶ 12).

Slightly more than two weeks later, Bennett complained of an abscess in his mouth. A notation in his medical records that day reflects that Nurse MacKinnon recognized that Bennett had just completed an antibiotic regimen and had an appointment scheduled with the ENT clinic at ECMC. Thus, she recommended that Bennett await the appointment -- a recommendation that was reviewed and signed by Dr. Dunlop. (Ilogu Decl. ¶ 13). The records do not make clear whether Nurse MacKinnon actually examined or spoke to Bennett before making her recommendation. (Docket # 36, Ex. B at p. 5).

Thirteen days later, on May 20, 2003, Bennett was examined at the ECMC ENT clinic. According to a report from the examination, Bennett was prescribed a daily dose of 2000 milligrams of Augmentin XR (another antibiotic), which was provided to him, and was also advised that he could resume his regular diet. The report also instructed that Bennett should return for a follow-up appointment at the ENT clinic and "F/U [follow up] [at] Strong Hospital for repair ORIF." (Docket # 36, Ex. C at p. 6). Although there are check marks and initials next to each of the instructions (id.), Bennett's records contain no other indication the Bennett was examined at Strong Memorial Hospital or that the Medical Department made an appointment for him there. By contrast, the records reflect that a follow-up appointment was scheduled with the ENT clinic for June ...

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