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Summerville v. Faciuna

August 5, 2009


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



Siragusa, J. This is an action by pro se Plaintiff, a prison inmate, brought under 42 U.S.C. § 1983, asserting Eighth Amendment claims of inadequate medical care and inadequate conditions of confinement. Now before the Court is Defendants' Motion for Summary Judgment. (Docket # 24.) For the reasons set forth below, Defendants' motion is granted.


Unless otherwise noted, the following are the undisputed facts of this case viewed in the light most favorable to Plaintiff. At all relevant times, Anthony Summerville ("Plaintiff") was a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"). (Am. Compl. ¶ 2.) On September 7, 2005, Plaintiff filed a Complaint against four individuals who, at all relevant times, were employed by DOCS at Collins Correctional Facility ("Collins"): Superintendent J. Berbary ("Berbary"), Joseph Tan, M.D. ("Tan"), Nurse Elieen Faciuna ("Fucina")*fn1, and Sergeant Polike ("Polike"). (Compl. ¶ 3; Am. Compl. ¶¶ 4-6.)

Around 1:40 a.m. on July 14, 2005, Plaintiff awoke in distress because of what felt like an insect inside his ear. (Am. Compl. ¶ 1.) Plaintiff screamed in pain, and his cell-mate called for assistance. (Id.) Plaintiff spoke with a Sergeant, who directed two correction officers to escort Plaintiff to the bull pen until Nurse Fucina could see him. (Id.) When Nurse Fucina examined Plaintiff, she told him there was no bug in his ear and suggested that he had stuck something in his ear. (Am. Compl. ¶ 4.) Plaintiff continued to experience pain and begged Nurse Fucina to flush the bug out of his ear. (Am. Compl. ¶ 5.) Nurse Fucina refused and told the correction officers to escort Plaintiff back to his cell. (Id.)

Plaintiff refused to be put back in his cell. (Am. Compl. ¶ 7.) According to Plaintiff, one of the correction officers told Nurse Fucina that he might really have a problem because he refused to go back in his cell. (Id.) The correction officer put Plaintiff in the bull pen until he could see a doctor at Erie County Medical Center ("ECMC") via teleconference ("Telemed"). (Id.) Before Plaintiff could consult with the doctor, he again begged Nurse Fucina to re-examine his ear because he felt dizzy, had trouble hearing, and felt severe pain. (Am. Compl. ¶ 8.) Plaintiff alleges that Nurse Fucina accused him of faking his distress and refused to provide any assistance to Plaintiff. (Am. Compl. ¶ 9.)

Nurse Fucina, however, states in her declaration that she examined Plaintiff's ear several times and made multiple attempts to get a consultation for Plaintiff. (Fucina Decl. ¶¶ 3-7, Ex. A.) Plaintiff's medical records show that Nurse Fucina observed and noted that his left ear drum was bulging and red. (Fucina Decl., Ex. A.) Furthermore, Plaintiff admits that Nurse Fucina examined his ear. (Pl.'s Dep. 15:18-19.) At 6:40 a.m., she gave Plaintiff Tylenol to alleviate the pain. (Fucina Decl. ¶ 6; Tan Decl., Ex. A.) Contrary to Plaintiff's assertions that Nurse Fucina did not consult other medical staff (Pl.'s Resp. ¶ 5), she notified the on-call physician, Dr. Bangsil, who ordered an ECMC consult via Telemed (Fucina Decl. ¶ 4; Tan Decl., Ex. A). Nurse Fucina made four attempts to connect with ECMC via Telemed. (Fucina Decl. ¶ 5.)*fn2

Nurse Fucina, though, was unable to connect with ECMC via Telemed. (Id.) Consequently, she notified the Nurse Administrator of the connection problem. (Fucina Decl. ¶ 7.) At 7:10 a.m., the Nurse Administrator obtained authorization for Plaintiff's transport to ECMC. (Fucina Decl., Ex. A.) The Patient Referral Form notes that the reason for referral was "c/o a bug flew in his L ear while sleeping & felt something inside... bulging 'RED' tympanic membrane [ ] scant amount of bleeding & c/o muffled hearing from L ear. Denies any dizziness." (Tan Decl., Ex. A.)

The following represents Plaintiff's account of his visit to the ECMC emergency room ("ER"). (See Am. Compl.) Two doctors at ECMC looked in Plaintiff's ear and said they saw a bug. (Am. Compl. ¶ 19.) One of the doctors attempted to flush it out but could not. (Id.) The doctor said if the ear had been irrigated promptly, it would not have swollen and trapped the bug inside. (Id.) Correction Officer Gill ("Gill") was present for Plaintiff's examination. (Id.) The doctor told Gill to report back to medical staff that he was unable to remove the bug due to the swelling and that Plaintiff should be sent to an ear, nose, and throat specialist ("ENT") if he continue to experience pain, dizziness, or loss of hearing. (Am. Compl. ¶ 20.) The doctor gave Plaintiff an antibiotic to prevent infection of his ear. (Am. Compl. ¶ 19.) The doctor also stated that any complaint of hearing loss warrants referral to an ear specialist within seventy-two hours. (Am. Compl. ¶ 20.)

However, the ER physician's report, which was sent back to the prison, does not show any of the instructions Plaintiff claims were given. Rather the ER report states:

Diagnosis: Left Ear Pain

Medications/Changes: [illegible] Take As Directed Patient Instructions: Please-Follow Up With Facility Doctor In 5 Days. Take Medication As Instructed-Return To ER For Any Concerns-Fever, Dizziness (Pl.'s Resp., Attach. 2.)

Five days later, on July 19, 2005, Dr. Tan followed these instructions and reexamined Plaintiff's ear. (Pl.'s Resp., Attach. 2.) Plaintiff still complained that the bug in his ear impeded his hearing. (Am. Compl. ¶ 23.) Plaintiff alleges that during this examination, Dr. Tan killed a fly and said, "look Summerville, the bug jumped out of your ear." (Am. Compl. ¶ 21.) Although Plaintiff also maintains that Dr. Tan refused Plaintiff's request to see an outside physician (Am. Compl. ¶ 21), on that same day, July 19, 2005, Dr. Tan submitted a request for consultation form (Pl.'s Resp., Attach. 2). In the referral form, Dr. Tan noted that the reason for consultation was, "pain[f]ul mass growing left ext auditory canal causing conductive hearing loss... initially, inmate thought it was a bug that went inside left ear [ ] no bug was recovered." (Id.)

On July 21, 2005, Dr. Tan's request for consultation was approved. (Id.) Before that consultation took place, Dr. Tan prescribed Plaintiff three different kinds of medication, and nurses checked his ear every day. (Am. Compl. ¶ 25.) The nurses always stated that they did not see anything in Plaintiff's ear. (Id.) On August 2, 2005, Plaintiff saw an ENT specialist, Dr. Beverly Prince ("Prince"), who removed a Japanese beetle from his ear, ordered a hearing test, and recommended a follow-up in two weeks. (Pl.'s Resp., Attach. 2.) Further, Dr. Prince noted that she was not able to get a few of the beetle's appendages out of Plaintiff's ear. (Id.) In accordance with Dr. Prince's instructions, Dr. Tan immediately referred Plaintiff for a hearing test. (Id.) Plaintiff received a hearing test later that same day. (Id.) The doctor performing the hearing test noted, "unreliable audiogram L ear [ ] follow up w/ Dr. Prince as ordered." (Id.)*fn3

On August 3, 2005, the day after Plaintiff's outside consultation, Dr. Tan requested a follow-up consultation for Plaintiff, in accordance with Dr. Prince's orders. (Id.) On August 23, 2005, Plaintiff had his follow-up appointment with Dr. Prince. (Tan Decl., Ex. A.) In the report, Dr. Prince wrote:

Physical Exam:... drum is somewhat swollen. There is a small remnant attached to the drum that I am not removing.

Assessment and Plan: The hearing test shows normal thresholds and they felt it was unreliable because there was blood. The plan is to let the remnant [of the ...

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