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Encarnacion v. Wright

September 28, 2007

BERNABE ENCARNACION, 91-B-0943, PLAINTIFF,
v.
LESTER WRIGHT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action pursuant to 42 U.S.C. § 1983 in which the plaintiff, Bernabe Encarnacion ("Plaintiff"), a prison inmate confined at Southport Correctional Facility ("Southport"), alleges that Defendants were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment to the United States Constitution. Now before the Court is the Defendants' summary judgment motion [#32], and two applications by Plaintiff for injunctive relief [#31] [#47]. For the reasons that follow, Defendants' application is granted, Plaintiff's applications are denied, and this action is dismissed.

BACKGROUND

Plaintiff is suing four individuals who, at all relevant times, were employed by the New York State Department of Correctional Services ("DOCS"): Lester Wright ("Wright"), DOCS Health Commissioner; Michael McGinnis ("McGinnis"), Superintendent of Southport; Jose Lopez, M.D. ("Lopez"), a physician at Southport; and Karen DyalWeaver, R.N. ("Dyal-W eaver"), a nurse at Southport. The Complaint [#1] in this action alleges that Defendants were deliberately indifferent to medical conditions involving Plaintiff's right foot, left eye, hips, and back. (Complaint [#1]). Plaintiff maintains that, as a result of Defendants' failure to provide medical care, he has suffered pain, weight loss, internal bleeding, mouth and stomach ulcers, fatigue, and sleeplessness. (Complaint ¶ 23). In general, Plaintiff's ambulatory health record, which is several inches thick, indicates that he was seen by medical staff on at least a weekly basis, and more often, on a daily basis.*fn1 The record further indicates that Plaintiff was regularly treated with medications including Loratadine, Naprosyn, Ultram, Percogesic, Ibuprofen, eye drops, and Zantac.

Plaintiff's Foot Injury

Plaintiff's foot injury occurred in 1978, when he sustained a shotgun wound to his right foot while living in Puerto Rico. This injury resulted in the amputation of one toe, and left a number of buckshot pellets embedded in Plaintiff's foot. Plaintiff indicates that his resultant foot deformity is extremely painful. Nevertheless, Plaintiff is able to run and exercise. For example, a medical note dated August 5, 1991, indicates: "Deformity right foot [gun shot wound] in 1978 had surgery done on it[.] Able to ambulate and wt. [weight] bear able to do sports and exercises. Give pass to wear sneakers all the time." Further, medical notes dated May 20, 1994 and July 5, 1994 indicate that Plaintiff is able to run.

Prior to 1999, Plaintiff was housed at Elmira Correctional Facility ("Elmira"). In 1991, doctors at Elmira provided Plaintiff with specially-designed orthopedic shoes. According to Plaintiff, the doctors told him that he would receive a new pair of orthopedic shoes each year. In 1993, plaintiff requested a new pair of orthopedic boots, but never received them. In that regard, Plaintiff's medical records indicate that he was provided orthopedic arch supports and sneakers, because he was housed in the Segregated Housing Unit ("SHU") where inmates were not permitted to have boots.

Subsequently, Cheng Yin, M.D. ("Yin"), a physician at Elmira, referred Plaintiff for an orthopedic consultation regarding the injured right foot. On December 15, 1997, an unnamed*fn2 orthopedic specialist examined Plaintiff and indicated that Plaintiff "may benefit from reconstruction grafting." The specialist further indicated that Plaintiff should wear "high top sneakers for now." On March 3, 1998, another orthopedic consultant, Dr. Henry, indicated that he wanted to schedule Plaintiff for foot surgery. However, on March 11, 1998, a Review Committee denied Plaintiff's request for surgery. The comments accompanying the Committee's decision state: "Repair of twenty year old injury in a 42 year old man does not appear to be medically necessary. Is there new evidence of interference with daily activities? Is there any assurance of benefit not harm from RX?"

In 1999, Plaintiff was transferred to Southport. In January 2000 and August 2002, Plaintiff was examined by orthopedic specialists, neither of whom recommended surgery. Apparently, the first specialist was Lopez, who, Plaintiff alleges, told Plaintiff in January 2000 that he was not a candidate for surgery, based on the decision of the Review Committee. (Pl. Aff. [#44-1] p. 8) The second specialist, Dr. Kaempffe, indicated that Plaintiff was not a candidate for surgery because of the nature of the injury and the risk for infection. Nevertheless, Plaintiff continued to request surgery. In August 2002, Plaintiff asked Dyal-W eaver if he could obtain a second opinion regarding surgery, to which Dyal-W eaver responded that such a consultation would be at Plaintiff's own expense. (Complaint ¶ 21). On October 4, 2002, Plaintiff again requested surgery, and non-party Nurse Practitioner Jill Northrop advised him that he was not a good candidate for such surgery, "per consult 7/26/02."

On May 6, 2003, Plaintiff told a non-party nurse that he wanted "special sneakers." The nurse, noting that Plaintiff did not have a boot permit, advised Plaintiff to have his feet measured by the "state shop." On October 31, 2003, Plaintiff asked another non-party nurse that he be given medical boots for "foot problems." However, the nurse reviewed Plaintiff's medical chart and found no recommendation for such boots. On November 26, 2003, Plaintiff again requested "medical shoes," and a note made the following day indicates that Plaintiff would need a boot permit. On December 10, 2003, a note indicates that Plaintiff was asked to sign a permit for boots, but refused, indicating that he preferred to wear sneakers. On July 16, 2004, in response to another request by Plaintiff for "medical boots," a non-party medical staff member indicated that Plaintiff's "boot permit" had been discontinued, because Plaintiff had refused to sign the boot permit in December 2003.

Plaintiff's Back and Hip Pain

Plaintiff also suffers from hip and back pain. On May 20, 1994, an x-ray was taken of Plaintiff's right hip, which showed "mild degenerative changes." On May 28, 2002, an x-ray of Plaintiff's back showed some degenerative disease of the lower spine. Subsequently, medical staff at Southport have provided Plaintiff with Ultram and Percogesic for hip and back pain, although the Percogesic has been discontinued at various times because it was causing rectal bleeding. Ultram has also been discontinued at various times, based on Plaintiff's alleged noncompliance in taking the medication. For example, on June 23, 2004, a note indicates that Plaintiff refused his Ultram, because it was given to him in crushed form, rather than pill form. On June 25, 2004, a note indicates that Plaintiff's Ultram prescription was discontinued, after Plaintiff threw his Ultram on the floor, stating, "I'm not taking that." On June 28, 2004, a note indicates that ...


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