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Crum v. Marini

August 27, 2008

JOSEPH A. CRUM, PLAINTIFF,
v.
DR. DAWN MARINI, CLINICAL DIRECTOR; BRADLEY R. CINK, PHYSICIAN ASSISTANT; MILLER, HEALTH SERVICE ADMINISTRATOR; T.R. CRAIG, WARDEN; SCOTT DODRILL, REGIONAL DIRECTOR; HENRY J. SADOWSKI, REGIONAL COUNSEL; AND UNITED STATES, DEFENDANTS.



DAVID R. HOMER U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER*fn1

Plaintiff pro se Joseph A. Crum ("Crum"), an inmate in the custody of the United States Bureau of Prisons ("BOP"), brings this action against six individual BOP employees and the United States under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Docket No. 27.*fn2 Presently pending is defendants' motion to dismiss the FTCA claim or for summary judgment pursuant to Fed. R. Civ. P. 12(b)(6) and 56. Docket No. 28. Crum opposes the motion. Docket No. 29. For the reasons which follow, it is recommended that defendants' motion for summary judgment be granted.

I. Background

The facts are related in the light most favorable to Crum as the non-moving party. See subsection II(A) infra. Because the course of medical treatment received by Crum is at the core of his claim and defendants' motion, the record of that treatment is described herein in detail.

A. Ray Brook

Crum was an inmate in the custody of the Federal Correctional Institution at Ray Brook, New York ("Ray Brook") from January 16, 2003 through August 5, 2005. See Ward Decl. (Docket No. 18) at Ex. 1D. During this time, Crum suffered "injuries [to his] lower back, shoulder, neck, cervical spine, and head pain . . . ." Compl. at 4. Crum contends that defendants were, on numerous occasions, deliberately indifferent to these injuries. See Compl.

On January 27, 2003, Crum's health record reflects the beginning of a long list of complaints and medical interventions for his chronic headaches. Docket No. 18-12 at 30; Docket No. 18-14 at 30. On January 27, 2003, Crum was prescribed Naproxyn for his headaches. Docket No. 18-12 at 30; Docket No. 18-14 at 30. Two days later, Crum told the medical department that the Naproxyn was providing little relief and his prescription was changed. Docket No. 18-12 at 27; Docket No. 18-14 at 29. On February 4, 2003, Crum continued to complain that he was having headaches on a daily basis, with the pain peaking around noon and at night while he was sleeping. Docket No. 18-12 at 27; Docket No. 18-14 at 28. Crum's prescription was changed again, with instructions to follow up with the medical department in two weeks. Docket No. 18-12 at 28; Docket No. 18-14 at 29.

Crum was seen on February 20, 2003 with no mention of continued headaches. Docket No. 18-12 at 25; Docket No. 18-14 at 27. Instead, Crum stated that he had lower back pain which persisted for the past week. Docket No. 18-12 at 25; Docket No. 18-14 at 27. Crum was still ambulatory and was prescribed Motrin for the pain. Docket No. 18-12 at 25; Docket No. 18-14 at 27. However, on April 14, 2003, Crum was again treated for complaints of chronic headaches which were not relieved by over-the-counter medication. Docket No. 14-25 at 26; Docket No. 18-12 at 24.

On July 15, 2003, Crum presented to the medical department with complaints of right neck pain which appeared while he was lifting weights and doing pull-ups. Docket No. 18-12 at 24; Docket No. 18-14 at 21. Crum stated that he felt his shoulder pop and then felt pain which had continued for the past three days. Docket No. 18-12 at 24; Docket No. 18-14 at 21. Upon examination, Crum was able to rotate his arm but unable to lift it above his head, was diagnosed with a shoulder strain, was recommended to apply ice to the shoulder and neck, and was written a prescription for a pain reliever. Docket No. 18-12 at 22, 24; Docket No. 18-14 at 21, 24. Two months later, Crum was seen again for shoulder pain, complaining that his right shoulder was sore after doing any overhead activities and that the pain reliever which had previously been prescribed was not helping. Docket No. 18-12 at 22; Docket No. 18-14 at 21. Crum was diagnosed with a rotator cuff injury, scheduled for an x-ray, and given physical restrictions to refrain from engaging in overhead activity. Docket No. 18-12 at 22; Docket No. 18-14 at 21.

On October 6, 2003, Crum's x-ray was interpreted by Dr. Lawrence Liebman, a radiologist. Docket No. 18-12 at 37. The x-ray showed no evidence of fracture, dislocation, or lesion and the joint spaces were relatively well maintained. Dr. Liebman diagnosed Crum with early degenerative joint disease. Id.

On November 5, 2003, Crum was seen for complaints of left knee pain and swelling that had persisted for approximately one week. Docket No. 18-12 at 20; Docket No. 18-19 at 30. An x-ray was order and Crum was prescribed a pain reliever. Docket No. 18-12 at 20; Docket No. 18-19 at 30. The x-ray was interpreted on November 28 and revealed no evidence of fracture, dislocation, or bony lesion, the joint spaces were relatively well maintained, and there was a small patellar osteophyte, or bony outgrowth. Docket No. 18-12 at 36.

On February 9, 2004, Crum requested an administrative grievance alleging that he had been seeking an evaluation by a physician and not a physician's assistant since his arrival at Ray Brook, he had been unable to see anyone other than a physician's assistant because the facility negligently placed the physician in training and was understaffed, and the prescription medication he was receiving was not relieving his pain. Docket No. 18-8 at 1. While awaiting a response to his grievance, Crum was seen for complaints of right shoulder pain. Docket No. 18-12 at 15, 18; Docket No. 18-14 at 16-17. Upon examination, Crum retained full range of motion and bilateral strength in his shoulder, was diagnosed with bursitis,*fn3 and was given his first steroid injection. Docket No. 18-12 at 15, 18; Docket No. 18-14 at 16-17.

Crum received a response to his grievance on March 8, 2004 stating that he had been seen on January 30 for lower back and right shoulder pain, he had a long record of receiving prescription medication for his headache, the radiology reports revealed only degenerative changes, his medication had been changed multiple times based on his contentions of poor pain relief, his shoulder pain was recently diagnosed as bursitis and treated with steroid injections, a physician had reviewed all of the charts, and during such review the physician determined that it was "not medically necessary for [Crum] to see a physician . . . ." Docket No. 18-8 at 2. On April 29, 2004, Crum's shoulder was evaluated again and found to have retained full range of motion and strength, still exhibited symptoms of bursitis, and Crum received his second steroid injection. Docket No. 18-12 at 15-16; Docket No. 18-14 at 15-16.

On November 1, 2004, Crum began complaining of right knee pain. While Crum had a history of knee problems and had undergone surgery on his meniscus, no trauma or swelling was noted, he retained full range of motion, and he was diagnosed with tendinitis and prescribed pain medication. Docket No. 18-12 at 9; Docket No. 18-14 at 14. Subsequent radiology reports received on November 22, 2004 revealed that Crum's right knee "demonstrate[s] no evidence of acute fracture but did exhibit mild [degenerative joint disease] in the medial and patellofemoral compartments." Docket No. 18-16 at 35.

On March 23, 2005, Crum met with a clinical consultant regarding complaints of back pain. Docket No. 18-12 at 10; Docket No. 18-14 at 13. An x-ray taken on March 22, 2005 confirmed multi-level degenerative disc disease with no acute changes and a recommendation to receive further evaluation via an MRI if radicular signs*fn4 developed. Docket No. 18-12 at 10; Docket No. 18-14 at 13; Docket No. 18-16 at 1, 33. On April 9, 2005, Crum ...


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