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Cole v. Fischer

June 9, 2010


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



Before the Court is defendants' motion for summary judgment (Docket No. 114*fn1 ). On April 13, 2009, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 43). In response to plaintiff's partial summary judgment motion (Docket No. 44), defendants stated that they intended to move for summary judgment at the conclusion of discovery (Docket No. 54, Defs. Atty. Decl. ¶ 7). On November 4, 2009 (Docket No. 101), this Court denied plaintiff's motion for summary judgment (Docket No. 44). Later, defendants moved for leave to file this present motion (Docket No. 106; cf. Docket No. 110 (plaintiff's motion to dismiss motion for extension of time to file dispositive motions)), which was granted on February 19, 2010 (Docket No. 113). Familiarity with those prior rulings is presumed.

Response to the present motion was due by May 7, 2010, any reply was due by May 14, 2010, and the motion was deemed submitted as of May 14, 2010 (Docket No. 113).


In this § 1983 action, plaintiff, a pro se inmate, alleges that he suffered second degree burns from a makeshift heating pad made by one of the defendants in 2007, the result of alleged deliberate indifference to his medical needs in violation of his Eighth Amendment rights (see Docket No. 59, Pl. Br. at 1), among other allegations (see Docket No. 1, Compl.). Defendants*fn2 each filed separate Answers (Docket Nos. 20-27, 29-31, 33-36).

On December 29, 2007, while housed at Wende Correctional Facility (hereinafter "Wende"), plaintiff complained of back pain. Plaintiff claims that defendant nurse Richard Nagel placed a heating pad into a microwave oven. Plaintiff questioned why he did not get an electric heating pad and Nagel purportedly stated that he did not have time to look for an electric heating pad and asked if plaintiff was rejecting treatment. Nagel then left and returned with a blue chuck pad placed into a ball with white nylon tape and instructed plaintiff to wrap that inside a towel (Docket No. 1, Compl. ¶ 20, at page 13 of 57). Plaintiff tried to use it for a half hour and then attempted to press a call button, which did not work. On the next day, plaintiff awoke to stinging pain on the right side of his back, claiming that the heating pad ordered by Nagel burned him. Defendant Dr. Mary Clemens ordered discontinuation of the heating pad. He claims that he has a blister on his back the size of a fifty cent piece (id. ¶ 27), and suffering from mental anguish (id. ¶ 53). In his subsequent grievance, defendants stated that he developed a blister which was treated with an antibiotic ointment and no permanent injury was noted (see Docket No. 140, Pl. Aff., Ex. 4, Grievance No. WDE-27919-08, Central Office Review Committee dated Feb. 27, 2008, for grievance filed Jan. 3, 2008; see also id., Ex. 6, Inmate Injury Report, Dec. 29, 2007, plaintiff complaining that he had a blister as a result of applying the hot pack, Facility Health Services Report, Dec. 30, 2007, noting that plaintiff had a blister the size of a fifty cent piece).

On January 23, 2008, plaintiff filed a grievance regarding this treatment, which defendant Susan Schumacher denied (Docket No. 1, Compl. ¶ 33). He appealed this grievance, writing to defendants Superintendent, Commissioner, Dr. Lester Wright, Schumacher, Susan Post, Dr. Clemens, Dr. Bukowski, Jennifer Wrest, Donna Constant, B. Aiello-Baxter (id. ¶ 34), each denying plaintiff. Plaintiff then alleges that defendant Joyce Radder retaliated against him for one month because he filed grievances against defendants and Radder (id. ¶ 35). On April 1, 2008, plaintiff claims that Radder filed false misbehavior reports against plaintiff (id.). Defendant Lieutenant Andrew Sheridan apparently had Radder file a new misbehavior report against plaintiff on April 2, 2008 (id. ¶ 37). At the Tier II hearing on these misbehavior reports, plaintiff was found guilty, although he contends Radder lied (id. ¶ 39), with plaintiff being fined a $5 surcharge.

Plaintiff next contends that defendant Dr. Bukowski retaliated against plaintiff for his complaints to the Department of Health regarding Bukowski and Wrest allegedly falsifying entries in plaintiff's 2008 medical records (noting conditions, sinus infection, that plaintiff was never examined for) (id. ¶ 40). Plaintiff was denied access to the medical file in retaliation of complaint against defendant Dr. Bukowski (id. ¶ 43). Plaintiff claimed that Dr. Bukowski would deny seeing or treating plaintiff, claiming that plaintiff had refused treatment. Plaintiff contends that his complaints were not addressed (id. ¶ 44). Dr. Bukowski and Wrest did not tell plaintiff of this sinus infection. When plaintiff filed a written complaint to Dr. Clemens, she failed to act upon it (id. ¶ 45).

Plaintiff believes that the practice of using a kitchen microwave oven to heat medical appliances was longstanding and condoned by defendants (id. ¶ 47).

In this Complaint (id.), plaintiff alleges that defendants were deliberately indifferent to his medical needs, that they failed to protect, failed to act to remedy a wrong, and created and allowed an unconstitutional custom to exist. For the supervisory defendants, plaintiff claims that they failed to train, supervise, manage subordinates, were deficient in their management in allowing continued retaliation of false misbehavior reports, all of these in violation of Eighth and Fourteenth Amendments. Plaintiff sought $200,000 against Fischer, $500,000 each against Nagel, Radder, $300,000 each against remaining defendants in punitive damages (id. ¶ 56 b)); compensatory damages of $250,000 (id. ¶ 56 c)); and court costs, attorney's fees (id. ¶ 56 d)). He also seeks removal of all false misbehavior reports from his file, an end of retaliation against him, and treatment of a sinus infection (id. ¶ 56 a), at page 26 of 57).

Defense Motion

Defendants now move for summary judgment (Docket No. 114). First, they contend that plaintiff was in the special housing unit at the time of the heating pad incident (Docket No. 117, Defs. Atty. Decl ¶ 6, Ex. D; Docket No. 142, Clemens Reply Decl. ¶ 5). They assert that Nagel dispensed a hot pack to plaintiff on December 29, 2007, for his back (Docket No. 116, Defs. Statement ¶ 4), with Wrest documenting the order in plaintiff's medical record (id. ¶ 5). Corded electric heating pads are not permitted for use in the medical unit (id. ¶ 6; Docket No. 142, Clemens Reply Decl. ¶¶ 3-5, Exs. A, B, C (DOCS directives against corded electrical devices for inmates in special housing unit) and Nagel warmed the pad in a microwave oven (Docket No. 116, Defs. Statement ¶ 6). Plaintiff was warned to use a towel with the hot pack (id. ¶ 7; Docket No. 131, Nagel Decl. ¶ 14; Docket No. 134, Hodges Decl. ¶ 5). Plaintiff reported a burn in his back on December 30, 2007, to nurse Mary Porto (Docket No. 116, Defs. Statement ¶ 14). Porto reported this to Dr. Clemens who discontinued the hot pack treatment and ordered a gauze dressing (id. ¶ 16; see also id. ¶ 17). Dr. Bukowski had three encounters with plaintiff regarding the burn and Dr. Clemens investigated plaintiff's subsequent complaint about the burn (id. ¶¶ 19-20, 22). Dr. Clemens spoke with plaintiff about his complaint against Dr. Bukowski and addressed plaintiff's concerns about the confidentiality of medical information (id. ¶¶ 23, 24). Other defendants were involved in investigating or processing plaintiff's grievance surrounding this burn (id. ¶¶ 28-31, 34).

Defendant Radder wrote a misbehavior report against plaintiff on April 1, 2008, because he yelled at her "what the hell's a matter with you" (id. ¶¶ 35-36). Plaintiff was found guilty of physical or verbal obstruction or interference with an employee, receiving a penalty of counsel and release (id. ¶ 37). The misbehavior report was endorsed (id. ¶ 39*fn3 ) and ...

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