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Benn v. Nassau County

July 22, 2010

DENNIS BENN, PLAINTIFF,
v.
NASSAU COUNTY, THOMAS R. SUOZZI, EDWARD REILLY, NASSAU COUNTY CORRECTIONAL CENTER, DR. KENT, NILOFAR HAVA, WANDA EVELYN, S. MISONALD, E. YUSUPOR, CORRECTIONAL OFFICERS WHO MADE ROUNDS IN HOUSING AREA (B2B) ON 3/17/09, NASSAU HEALTH CARE CORPORATION, NASSAU UNIVERSITY MEDICAL CENTER, DANIEL MCCULLY, LISA MUSELL, G.E.O. GROUP, DR. DUPONT, ZERRILLO WILLIAMS, JAMAICA HOSPITAL, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

Presently pending before the Court is incarcerated pro se Plaintiff Dennis Benn's ("Plaintiff") application to proceed in forma pauperis and Complaint brought pursuant to 42 U.S.C. § 1983 ("Section 1983"). The application to proceed in forma pauperis is GRANTED, and for the reasons discussed herein, the claims asserted against Defendants Nassau County Correctional Center ("NCCC"), Nassau Health Care Corporation ("NHCC"), Nassau University Medical Center ("NUMC"), and Jamaica Hospital Medical Center ("Jamaica Hospital") are DISMISSED WITH PREJUDICE. Plaintiff's Section 1983 claim that purport to allege violation of his rights under the Fifth and Fourteenth Amendments and Plaintiff's claims against Defendants Suozzi, Reilly, Hava, McCully, Musell, Dupont and Yusupor are DISMISSED WITHOUT PREJUDICE and with leave to amend. The United States Marshal for the Eastern District of New York is directed to serve the Complaint on Defendants Nassau County, Kent, Evelyn, Misonald, G.E.O. Group, Williams, and the Correctional Officers who made rounds in housing area B2B.*fn1

BACKGROUND

According to the Complaint, Plaintiff suffers from Crohn's Disease and Primary Sclerosing Cholangitis. (Compl. at ¶ 2). Plaintiff alleges that he was extradited from Trinidad on March 6, 2009 and placed in the custody of "G.E.O. Group 182-22" ("G.E.O. Group") in Jamaica, New York. (Compl. at ¶ 2). On March 7, 2009, Plaintiff claims that he complained of dehydration related to his Crohn's Disease and was transported to Jamaica Hospital. (Compl. at ¶ 3). While there, Plaintiff alleges that the hospital "failed to provide standardized diagnosis related to Crohn's Disease coupled with deprivation of proper diet that collectively led to Plaintiff's injury." (Compl. at ¶ 4).

According to the Complaint, on March 11, 2009, Plaintiff was transferred back to the G.E.O. Group and that while there the G.E.O. Group "refused to provide supplementary diet Dr. C. Dupout [sic] prescribed." (Compl. at ¶ 5). Plaintiff alleges that he did not attend his arraignment on March 12, 2009 because of his medical condition and that upon inquiry from United States District Court Judge Irizarry regarding Plaintiff's absence, his criminal defense counsel apprised the court of his medical history and present condition. (Compl. at ¶ 6). Plaintiff alleges that Judge Irizarry ordered that Plaintiff be transferred to an adequate medical facility and that notwithstanding such Order, Plaintiff was kept at G.E.O. Group's facility for an additional four days before being transferred to NCCC. (Id.).

After being transferred to NCCC, Plaintiff alleges that he complained of "severe pain in his abdomen and left side." (Compl. at ¶ 7). According to the Complaint, the unidentified Correctional Officers making rounds in his housing area refused to comply with Plaintiff's request for medical attention. (Id.). Plaintiff describes that he was admitted to NUMC on March 19, 2009 and an X-ray and CAT scan revealed that he had a kidney stone. Plaintiff's condition is alleged to have worsened and he was thus placed in the Intensive Care Unit. (Compl. at ¶ 8). On March 20, 2009, Plaintiff alleges that while at NUMC, Dr. David McCally performed an "eystoscopy and left retro-grade inserion [sic] of double-J agent." According to the Complaint, post-operation instructions included a specific dietary regimen together with extensive nutritional therapy by registered dietitian Defendant Lisa Musell. (Compl. at ¶ 9).

Plaintiff was discharged from NUMC and returned to NCCC on April 3, 2009. According to the Complaint, NCCC refused to provide Plaintiff with the diet therapy prescribed by his doctors and that his Prednisone was inconsistently administered and discontinued prematurely. (Compl. at ¶ 10).

The Complaint describes that, on April 21, 2009, Plaintiff was readmitted to NUMC due to a relapse in his condition, and was re-admitted for a total of eight times between April 21, 2009 and December 22, 2009. (Compl. at ¶ 11). According to the Complaint, although Plaintiff's follow-up procedure to remove the double-J stent was supposed to occur within thirty days, it was not attended to until six months later. Additionally, Plaintiff alleges that, contrary to doctor's orders, he went fourteen days without any pain medication following his procedure.

On October 30, 2009, the Complaint alleges that District Judge Dora Irizarry instructed Plaintiff's defense counsel in the underlying criminal case to get medical clearance from NCCC and NUMC so Plaintiff could be transferred to a Bureau of Prisons facility. (Compl. at ¶ 12). This request went unanswered and Plaintiff allegedly went an additional (120) one-hundred twenty days without pain medication. (Compl. at ¶¶ 12 and 13).

As a result of the foregoing, Plaintiff claims the deliberate indifference and negligence regarding his medical needs exacerbated his medical condition. Plaintiff describes that prior to his incarceration, he was only hospitalized twice for dehydration in a one-year span. While incarcerated, Plaintiff claims he was hospitalized twelve times in 2009 as a result of complications from the denial of proper medical care. (Compl. at ¶ 10). Plaintiff asserts Section 1983 claims purporting to allege violation of his rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and seeks compensatory and punitive damages "in the amount to be determined by the jury."

DISCUSSION

I. In Forma Pauperis Application

Upon review of Plaintiff's declaration in support of his application to proceed in forma pauperis, the Court finds that Plaintiff's financial status qualifies him to commence this action without prepayment of the filing fees. See 28 U.S.C. ยง 1915(a)(1). Accordingly, ...


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