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Tafari v. Stein

February 9, 2009

INJAH TAFARI #89A4807, PLAINTIFF,
v.
SHELDON STEIN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Decision & Order

Before the Court is the defendants' motion for summary judgment (Docket No. 94).*fn1

BACKGROUND

Plaintiff, Injah Tafari ("Plaintiff") commenced this action pro se, seeking relief under 42 U.S.C. § 1983 against defendants Greenhaven Correctional Facility ("Greenhaven") Dr. Norman H. Selwin, Dr. Harry Mamis; Lakeview Correctional Facility ("Lakeview") Dr. Jose Galindo , Dr. Jacob Piazza; Southport Correctional Facility ("Southport") Dr. John Alves; Clinton Correctional Facility ("Clinton") Dr. Kang Lee and Dr. I. Ellen; Attica Correctional Facility ("Attica") Dr. Sheldon Stein, Dr. Robert Takos and Dr. Stephen Laskowski; and New York State Department of Correctional Services ("DOCS") Medical Director Dr. Lester Wright and Commissioner Glenn S. Goord, all sued in their personal and official capacity.*fn2 (Docket No. 1) The plaintiff claims that the defendants violated his Eight Amendment right to be free from cruel and unusual punishment by failing to provide adequate medical treatment for the pain caused by a broken surgical screw in his left shoulder. (Compl. ¶¶ 44, 45, 46.)*fn3

It appears undisputed that at sometime in 1984, the plaintiff underwent surgery in which a surgical screw was inserted in his left shoulder. The plaintiff's claims in the Complaint first relate to his medical treatment while incarcerated at the Greenhaven Correctional Facility in 1998. While at Greenhaven, Tafari was seen by Dr. Mamis and Dr. Selwin.*fn4 On November 4, 1998, Tafari was seen by Dr. Mamis. At that time, the plaintiff complained of pain in his left shoulder. Dr. Mamis noted the plaintiff's prior surgery and arranged for Tafari to be examined by a consulting orthopedist. (Docket No. 97 at ¶¶ 10; Docket No. 115*fn5 at page 400). It appears undisputed that the plaintiff was seen by an orthopedist who recommended removal of the screw. According to Dr. Mamis, surgery was scheduled to take place on December 16, 1998, but that Tafari refused to go to the hospital (Docket No. 97 at ¶¶ 11-12); (Docket No. 115 at page 506).*fn6

Because Tafari allegedly refused to be treated by the orthopedist, the referral was cancelled. (Docket No. 97 at ¶13). Dr. Mamis states that there are no further documented complaints by the plaintiff regarding pain in his left shoulder while at Greenhaven. (Docket No. 97 at ¶ 15).

The plaintiff was transferred to the Lakeview Correctional Facility on January 20, 1999. (Docket No. 98 at ¶ 2). While at that facility, Tafari was seen by various medical professionals including Dr. Piazza and Dr. Galindo. Dr. Piazza states that he had one encounter with the plaintiff while he was housed in the Special Housing Unit. On March 6, 1999, Dr. Piazza refilled a medication for Tafari to treat toenail fungus. (Docket No. 115 at page 374). Dr. Piazza saw the plaintiff again on March 15, 1999. At that time, Tafari complained of an itchy scalp and pain in his left shoulder. Dr. Piazza ordered an x-ray of the plaintiff's shoulder. (Docket No. 155 (sealed) at page 374). On March 19, 1999, Dr. Piazza reviewed the x-ray and determined that "there were no new findings" He directed that Tafari was to be seen by a physician if he had any more complaints regarding his left shoulder. (Docket No. 115 at page 374). According to Dr. Piazza, there is no record of further complaint by plaintiff of pain while he was at Lakeview. The medical records reflect that Tafari was seen, apparently by a nurse, on March 24, 1999, at which time he complained of shoulder pain. That note indicates that Tafari was scheduled for a "M.D. callout next week" (Docket No. 115 at page 373). Again, on April 2, 1999, the plaintiff complained of shoulder pain. The progress note for that date indicates that the plaintiff was to scheduled see a physician on April 3, 1999. (Docket No. 155 (sealed) at page 370). Although the records reflect that the plaintiff was seen on April 5, 1999, April 7, 1999, April 8, 1999, April 10, 1999, April 11, 1999, May 11, 1999, and May 13, 1999 -- there is no record of any complaint of left should pain by the plaintiff on those occasions. (Docket No. 115 at pages 367-374). Dr. Galindo asserts that he has no recollection of ever having treated the plaintiff while he was incarcerated at Lakeview and that the medical records do not reflect any instance in which Tafari was seen by Dr. Galindo. In his response to the instant motion, the plaintiff does not dispute this assertion by Dr. Galindo and does not point to evidence that Dr. Galindo treated the plaintiff on any occasion. (Docket No. 118). The plaintiff transferred out of Lakeview on May 13, 1999. (Docket No. 98 at ¶ 2). The record does not reflect, and the plaintiff's responding papers do not allege, that the plaintiff advised Dr. Piazza that he had been scheduled for surgery while at Greenhaven or that the plaintiff requested that the proposed shoulder surgery to remove the broken screw be rescheduled while he was incarcerated at Lakeview.

Dr. John Alves states that he saw the plaintiff on 18 occasions between May 13, 1999 and June 5, 2000, while Tafari was incarcerated at the Southport Correctional Facility. (Docket No. 100 at ¶ 8).*fn7 Dr. Alves states that only 5 of the 18 encounters with Tafari related to the plaintiff's complaints of shoulder pain. Id. On November 7, 1999, Dr. Alves examined Tafari at which time the plaintiff indicated that he was experiencing shoulder discomfort and that the Roboxin and Feldine that he was prescribed was not helping. Dr. Alves found that the plaintiff did not have any decreased range of motion. (Docket No. 100 at ¶ 9; Docket No. 115 at page 329). Dr. Alves refilled his prescription of Feldine on November 11, 1999. (Docket No. 115 at page 328). With respect to complaints of shoulder pain, Dr. Alves next saw Tafari on November 21, 1999. He noted that Tafari had been on pain medications for his back and shoulder since September. Dr. Alves noted that Tafari complained that the medication was not working. (Docket No. 100 at ¶ 11). Dr. Alves was apparently scheduled to see Tafari on December 15, 1999, but Tafari refused to come to the appointment and allegedly told the escort that he "was too busy to see the doctor today." (Docket No. 100 at ¶ 12; Docket No. 115 at page 319). The plaintiff purportedly refused to see the doctor again on December 16, 1999, this time allegedly because he was denied "front handcuffing." Tafari instead went to recreation on that date. (Docket No. 100 at ¶13; Docket No. 115 at page 319).*fn8 The plaintiff went to his appointment on December 17, 1999. Examination on that date reflected that Tafari had good range of motion, and was not in pain or distress. A refill of Roboxin was ordered. (Docket No. 115 at page 319).

Dr. Alves stated that his last encounter with Tafari regarding his shoulder occurred on January 14, 2000. On that date, according to Dr. Alves, the plaintiff requested refills for his pain medications and the refills were provided. (Docket No. 100 at ¶15; Docket No. 155 (sealed) at page 315). Dr. Alves states that while the plaintiff was under his care at Southport he did not request to see an orthopedist. (Docket No. 123 at ¶ 6). It appears that the plaintiff was seen by other medical professionals while at Southport, and that on two occasions he complained of shoulder pain. See progress notes for January 26, 2000 (Docket No. 115 at page 313); February 11, 2000 (Docket No. 115 at page 312). However, subsequent to February of 2000 until his transfer on June 6, 2000, the progress notes reflect entries on the following dates by various medical professionals without mention of any complaint by the plaintiff of shoulder pain: February 12, 2000, February 28, 2000, March 8, 2000, March 13, 2000, March 17, 2000, March 20, 2000, March 23, 2000, March 27, 2000, March 29, 2000, March 30, 2000, March 31, 2000, April 5, 2000, April 7, 2000, April 8, 2000, April 12, 2000, April 13, 2000 April 14, 2000, April 17, 2000, April 19, 2000, April 20, 2000, April 21, 2000, April 24, 2000, April 25, 2000, April 27, 2000, April 28, 2000, April 29, 20000, May 2, 2000, May 3, 2000, May 4, 2000, May 5, 2000, May 7, 2000, May 8, 2000, May 9, 2000, May 11, 2000, May 12, 2000, May 15, 2000, May 18, 2000, May 20, 2000, May 21, 2000, May 25, 2000, May 26, 2000, May 30, 2000, June 1, 2000, June 6, 2000. (Docket No. 115 at pages 292- 312). The record does not reflect, and the plaintiff's responding papers do not allege, that the plaintiff advised Dr. Alves that he had been scheduled for surgery while at Greenhaven or that the plaintiff requested that the proposed shoulder surgery to remove the broken screw be rescheduled while he was incarcerated at Southport during the time periods relevant in this matter.

The plaintiff was transferred to the Clinton Correctional Facility on June 6, 2000. He spent only 4 months during that stay at Clinton.*fn9 The records reflect that the plaintiff was treated by Dr. Lee on one occasion during this time period. On September 27, 2000, Dr. Lee saw the plaintiff who complained of a skin problem and chronic back pain. (Docket No. 107 at ¶ 7). Dr. Lee noted that the plaintiff had no unusual symptoms and ordered Dove soap for his skin condition and Motrin for back pain. (Docket No. 115 at page 272).*fn10 The records do not reflect that Dr. Lee treated Tafari with respect to his shoulder during this stay at Clinton.*fn11 Similarly, the records reflect that Dr. Ellen*fn12 saw the plaintiff on three occasions, but that none of those encounters involved complaints of shoulder pain by the plaintiff. (Docket No. 115 at pages 279, 281, and 286). In response to the instant motion, the plaintiff fails to point to any specific encounter with Dr. Ellen regrading the plaintiff's complaints of shoulder pain. The progress notes reflect entries on the following dates by various medical professionals during the plaintiff's stay at Clinton in 2000 without mention of any complaint by the plaintiff of shoulder pain: June 8, 2000, June 15, 2000, June 23, 2000, June 28, 2000, June 29, 2000, June 30, 2000, July 5, 2000, July 7, 2000, July 10, 2000, July 12, 2000, July 14, 2000 July 17, 2000, July 18, 2000, July 20, 2000, July 23, 2000, July 25, 2000, July 26, 2000 July 28, 2000, July 31, 2000, August 1, 2000, August 2, 2000, August 3, 2000, August 7, 2000, August 9, 2000, August 10, 2000 August 14, 2000, August 16, 2000, August 21, 2000, August 23, 2000, August 28, 2000, August 29, 2000, September 5, 2000, September 7, 2000, September 8, 2000, September 11, 2000, September 12, 2000, September 15, 2000, September19, 2000, and September 24, 2000.*fn13 The record does not reflect, and the plaintiff's responding papers do not allege, that the plaintiff advised Dr. Lee or Dr. Ellen that he had been scheduled for surgery while at Greenhaven or that the plaintiff requested that the proposed shoulder surgery to remove the broken screw be rescheduled while he was incarcerated at Southport during the time periods relevant in this matter.

On October 2, 2000, Tafari was transferred to the Attica Correctional Facility. He remained at Attica until July 20, 2001. (Docket No. 103 at ¶ 2). The plaintiff's names as defendants three physicians who treated him in some manner while he was incarcerated at Attica during that time period: Dr. Laskowski, Dr. Takos, and Dr. Stein. Dr. Takos states that he saw Tafari on October 4, 2000. At that time, the plaintiff complained of having had warts removed and requested a daily shower. Dr. Takos denied this request as not being medically necessary.

On that same occasion, a physician's assistant informed Dr. Takos that Tafari complained of shoulder pain. Dr. Takos states that the plaintiff did not tell him that he had shoulder pain. Dr. Takos reviewed an x-ray that showed a broken screw and referred Tafari to Dr. Stein, an orthopedic surgeon (Docket No. 101 at ¶¶ 8, 12; Docket No. 115 at page 270). At Dr. Stein's request, Dr. Takos ordered a CT scan to locate the broken screw. (Docket No. 101 at ¶ 9). Following his referral of the plaintiff to Dr. Stein, Dr. Takos did not treat the plaintiff in connection with his shoulder pain. (Docket No. 101 at ¶¶ 14). Dr. Takos notes that he saw Tafari on February 16, 2001 and May 18, 2001. On February 16, 2001, Dr. Takos advised the plaintiff that he did not have a condition that warranted wearing dark glasses. (Docket No. 101 at ¶ 14; Docket No. 115 at page 241). On May 18, 2001, Dr. Takos again advised the plaintiff that he saw no signs of photophobia. Further, Dr. Takos noted that the plaintiff refused to have a toe nail removed which would permit Tafari to wear regular shoes. (Docket No. 101 at ¶ 15; Docket No. 115 at page 222). In his response to the instant motion, the plaintiff fails to identify any specific encounter with Dr. Takos, or to refer to any specific medical record relating to Dr. Takos' treatment of the plaintiff. The plaintiff does not dispute Dr. Takos' description of their interactions as the relate to his complaints of shoulder pain, or Dr. Takos' referral of the plaintiff to Dr. Stein.

Dr. Laskowski states that he saw Tafari on approximately 30 occasions while the plaintiff was incarcerated at Attica, but that only 7 of those encounters related to the plaintiff's complaints of shoulder pain. (Docket No. 103 at ¶ 8). On October 6, 2000, he examined the plaintiff and found that his range of motion and reflexes were all within normal limits. (Docket No. 103 at ¶ 10; Docket No. 115 at page 267). On October 13, 2000, Dr. Laskowski issued a "front cuff" order based upon the plaintiff's subjective complaints of pain. (Docket No. 103 at ¶ 11; Docket No. 115 at page 265). On October 21, 2000, the plaintiff complained that he did not receive the first "front cuff" order. Dr. Laskowski issued a second "front cuff" order. (Docket No. 103 at ¶ 12; Docket No. 115 at page 264). On November 18, 2000, Dr. Laskowski also referred the plaintiff to Dr. Stein for an orthopedic consult. (Docket No. 103 at ¶ 13; Docket No. 115 at page 258). On December 17, 2000, Dr. Laskowski received a note from a correction officer in the Special Housing Unit questioning the "front cuff" order because he observed Tafari "doing pullups by his fingertips." (Docket No. 115 at page 255). It appears that on January 25, 2001, Dr. Stein terminated the "front cuff" order as being medically unnecessary. On January 27, 2001, Tafari requested a "front cuff" order from Dr. Laskowski, who denied the request based upon the determination by Dr. Stein, the orthopedic surgeon treating Tafari for his shoulder issue. (Docket No. 103 at ¶ 14; Docket No. 115 at page 248). On February 3, 2001, Tafari advised Dr. Laskowski that he would like the screw removed from his shoulder. Dr. Laskowski, who is not an orthopedic surgeon, deferred to Dr. Stein. (Docket No. 103 at ¶ 15; Docket No. 115 at page 246). On May 11, 2001, Tafari requested a second opinion regarding the screw in his left shoulder. Dr. Laskowski stated that he followed the instruction and care suggested by the orthopedic specialist, Dr. Stein, and did not see symptoms indicating that a second opinion was necessary. (Docket No. 103 at ¶¶ 17-20; Docket No. 115 at page 224).

Dr. Stein states that he saw the plaintiff on October 26, 2000 and January 25, 2001. On October 26, 2000, the plaintiff complained of limited range of motion in his left shoulder and raised the question of whether it was necessary to remove the broken screw. Dr. Stein states that his upon examination, Tafari's complaints were "contrary to the objective tests that" he performed. Dr. Stein determined that the plaintiff was not restricted as he claimed, but "actually had over twice the degree of range of motion that he claimed." (Docket No. 102 at ¶ 10; Docket No. 115 at page 67). Dr. Stein noted that he found the plaintiff to be "uncooperative and untruthful" regarding his complaints. (Docket No. 115 at page 67).*fn14 X-rays of the plaintiff's shoulder were not available for Dr. Stein to review on that occasion. He determined that a CT scan would be the best way to determine if it was necessary to remove the screw. Until he had an opportunity to review the x-rays, Dr. Stein determined it was best to continue the "front cuff" order. (Docket No. 102 at ΒΆ 11; Docket No. 115 at page 67). According to Dr. Stein, the CT scan confirmed that both fragments of the fractured screw were within the bone. (Docket No. 115 at page 65). After reviewing the CT scan results, Dr. Stein examined the plaintiff on January 25, 2001. At that time he determined that because both fragments of the screw were within the bone and not in contact with other structures, it is medically accepted that the screw poses no risk. Based upon his medical judgment as an orthopedic specialist, Dr. Stein ...


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