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Tolentino v. Mitchell

June 14, 2006


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge


Plaintiff brings this action, pro se, pursuant to 42 U.S.C. § 1983, alleging that defendants failed to provide him adequate medical care during his incarceration at Arthur Kill Correctional Facility ("Arthur Kill"). Defendants moved for summary judgment pursuant to Fed. R. Civ. P. 56. By order dated July 1, 2005, this court referred the motion to U.S. Magistrate Judge ("MJ") Lois Bloom who issued a Report and Recommendation ("R&R"), dated March 31, 2006, recommending dismissal of this action.*fn1 After a de novo review of those portions of the R&R to which Tolentino objects, see Fed. R. Civ. P. 72 (b); 28 U.S.C. § 636(b), this court adopts Judge Bloom's R&R in its entirety.


Pro se plaintiff Tolentino filed this Section 1983 (42 U.S.C. § 1983) action alleging constitutional violations, including the Eighth and Fourteenth Amendments of the U.S. Constitution. (See Am. Compl. ¶¶ 12-17.) Specifically, plaintiff claims that while incarcerated at Arthur Kill, defendant Mitchell was deliberately indifferent to plaintiff's medical condition when plaintiff reported to Arthur Kill's "emergency sick call" on June 4, 2003. (See Am. Compl. ¶ 10.) Plaintiff further alleges that defendant Kaplan caused plaintiff to suffer a hypertensive crisis when Kaplan improperly administered the drug Epogen to plaintiff. (See Am. Compl. ¶ 7.) Moreover, plaintiff alleges that defendants Mitchell and Kaplan "failed to properly and routinely monitor plaintiff's response to [] Epogen, despite the well-known dangers posed by its use." (See Am. Compl. ¶ 8.)

Plaintiff suffers from End Stage Renal Disease ("ESRD") and underwent dialysis treatment approximately three times a week at Arthur Kill. (See Pl's Dep. at 14, 109, 121.) Nephrologists, Defendant Kaplan and Dr. Saggi supervised Plaintiff's dialysis treatment at Arthur Kill. (See Stern Decl. at ¶ 6.) As a result of muscle cramps and fatigue, plaintiff decided to end his dialysis treatments before the scheduled conclusion. (See Pl's Aff. at ¶¶ 5, 7.) Upon termination of his dialysis treatments, plaintiff signed an acknowledgment informing him of the medical risks, associated with premature termination of dialysis. (Kaplan Decl. at ¶ 14; Mitchell Decl. Ex. B.) Among the risks is hypertension. (Id.)

In conjunction with dialysis, plaintiff was administered Epogen, a drug used to prevent anemia in dialysis patients. (Pl.'s Dep. at 70-73; Kaplan Decl. at ¶ 12.) A side effect associated with Epogen is hypertension. (Pl.'s Aff. Ex. C.) In an attempt to manage his hypertension, plaintiff's dosage of Epogen was routinely reviewed and adjusted, sometimes reduced or "held" altogether. (See Kaplan Decl. at ¶ 13; Kaplan Decl. Ex. A at 59; Kaplan Decl. Ex. A at 188.)

Plaintiff's medical records reveal that Plaintiff was not compliant with fluid and dietary restrictions imposed by his medical providers. (See Kaplan Decl. at 21, 25, 27, 29.) In addition, plaintiff often had difficulty remembering to re-order his hypertension medication and often indicated that he was out of blood pressure medication during his post-dialysis consultations. (See Kaplan Decl. at 21.) The medical records further reveal that plaintiff experienced excessive weight gain between dialysis sessions and that his blood pressure was often uncontrolled. (See Kaplan Decl. at 21, 27.)

On June 4, 2003, at approximately 7:40 a.m., plaintiff reported to"emergency sick call" complaining of numbness in his right side and arm area, vomiting and severe headaches. (Pl.'s Am. Compl. ¶ 5; Mitchell Decl. Ex. A at 14.) Plaintiff's blood pressure was checked upon his arrival and two times thereafter.*fn2 (Mitchell Decl. Ex. A at 14-15.) Mitchell directed the resident nurse to give plaintiff Catapres, a medication used to treat hypertension. (Id.) At approximately 10 a.m., plaintiff was found on the floor of the emergency room where he vomited. (Mitchell Decl. Ex. A at 15.) Medical personnel called 911 and administered sublingual nitroglycerin and oxygen. (Id.) When EMS personnel arrived, plaintiff claimed he was "alright" and refused to get in the ambulance. (Id.)

Plaintiff was placed in the infirmary for further observation.

At approximately 11:20 a.m., plaintiff suffered a grand mal seizure and was taken to the Staten Island Hospital. (Id.) Plaintiff was diagnosed with hypertensive crisis. (Mitchell Decl. Ex. A at 43-44.) Defendant Kaplan examined plaintiff during his hospitalization on June 4 and June 5, 2003. (Kaplan Decl. at ¶ 17.) During the examinations, Kaplan questioned plaintiff concerning plaintiff's compliance with the prescribed fluid and dietary restrictions and anti-hypertensive medication. (Id.) Kaplan noted during the exam that plaintiff's significant weight gain during dialysis contributed to the hypertensive crisis. (Id.) Plaintiff was discharged and returned to Arthur Kill on June 5, 2003. (Kaplan Decl. at ¶18.) Kaplan recommended that plaintiff continue taking his medications, except Epogen, which should be withheld until plaintiff's blood pressure was better controlled. (Id.)

On June 7, 2003, plaintiff was re-admitted to Staten Island Hospital for hypertension and released on June 12, 2003 after his blood pressure stabilized. (Mitchell Decl. Ex. A at 51.) Following his release, plaintiff was treated with various medications, including Epogen. (Pl.'s Dep. at 193; Kaplan Decl. Ex. A at 57-59.) Plaintiff's physical limitations have remained the same since before his hospitalization. (Pl.'s Dep. at 196.) Plaintiff's current health is stable and he has been approved for a kidney transplant. (Pl.'s Dep. at 219; Goldfarb Decl. at ¶ 14; Mitchell Decl. Ex. A at 89-91.)

On December 1, 2003, plaintiff timely filed his complaint in this action. With the court's permission, plaintiff filed an amended complaint on June 22, 2004, alleging violations of the constitutional prohibition against cruel and unusual punishment and guarantee of due process of the law. U.S. Const. amend. VIII, XIV. Defendants joined issue on July 14, 2004. After the completion of discovery, defendants filed motions for summary judgment.


Because plaintiff is a pro se litigant, the court, in deciding this motion, has construed plaintiff's papers broadly, interpreting them to raise the strongest arguments they suggest. Weixel v. Bd. of Educ. of the City of New York,287 F.3d 138, 146 (2d Cir. 2002). However, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1993). In addition, because plaintiff objects to Judge ...

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