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Hardy v. City of New York

August 12, 2010

LAWRENCE HARDY, PLAINTIFF,
v.
THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF CORRECTION, CORRECTION OFFICER PATRICK DORVIL, BADGE NO. 11544, FRANTZ MEDARD, M.D. AS AGENTS, SERVANTS, AND EMPLOYEES OF THE CITY OF NEW YORK DEPARTMENT OF CORRECTION, OFFICER RICKY REYNOLDS, OFFICER BRIAN LEWIS, OFFICER GEORGE LEWIS, OFFICER THOMAS LEWIS, NURSE ANN DALECKI, P.A. NORIEL DEGUZMAN, KAMAL PATHAK, M.D., AS AGENTS, SERVANTS, AND EMPLOYEES OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES AND JOHN AND JANE DOES (MEDICAL PROVIDERS, POLICE & CORRECTION OFFICERS IN THE EMPLOY OF THE CITY OF NEW YORK DEPARTMENT OF CORRECTION AND NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES). DEFENDANTS.



The opinion of the court was delivered by: Trager, J.

MEMORANDUM AND ORDER

Lawrence Hardy ("Hardy") brings this action against numerous New York City and New York State defendants as a result of his allegedly unlawful arrest on October 15, 2007, and subsequent incarceration from October 15, 2007, to March 11, 2008. Just prior to his arrest, Hardy had been diagnosed with an ear condition. This condition deteriorated significantly during his subsequent incarceration, ultimately necessitating several surgeries and lengthy rehabilitation. Hardy's primary claim is that the staff of various facilities gave unconscionably little attention to this ear problem, amounting to deliberate indifference to his serious medical condition in violation of 42 U.S.C. § 1983, conspiracy in violation of 42 U.S.C. § 1985 and municipal liability. Read at its broadest, Hardy's complaint can also be construed to allege: (1) false arrest under state law and 42 U.S.C. § 1983; (2) assault and battery; (3) malicious prosecution; and (4) negligence in hiring, retention and training of employees. Defendants to this action include the City of New York (the "City"), the City of New York Department of Correction ("NYCDOC"), Correction Officer Patrick Dorvil, Badge No. 11544 ("Officer Dorvil," together with the City and NYCDOC, "City defendants"), Frantz Medard, M.D. ("Dr. Medard"), Officer Ricky Reynolds ("Officer Reynolds"), Officer Brian Lewis ("Officer B. Lewis"), Officer George Lewis ("Officer G. Lewis"), Officer Thomas Lewis ("Officer T. Lewis," together with Officers Reynolds, B. Lewis and G. Lewis, the "Willard Correction Officers"), Nurse Ann Dalecki ("Nurse Dalecki"), P.A. Noriel DeGuzman, Kamal Pathak, M.D. ("Dr. Pathak," together with the Willard Correction Officers, Nurse Dalecki and P.A. Noriel DeGuzman, "State defendants") and other unnamed medical providers, police officers and correction officers in the employ of NYCDOC and New York State Department of Correctional Services ("NYS DOCS") (collectively referred to as "defendants").

All defendants have filed motions to dismiss. Defendant Dr. Medard moves to dismiss Hardy's § 1983 deliberate indifference claim against him under Fed. R. Civ. P. 12(b)(6), or in the alternative, moves for summary judgment pursuant to Fed. R. Civ. P. 56. City defendants move to dismiss Hardy's amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. State defendants move to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6) and 12(d). For the reasons explained below, defendants' motions are granted in part and denied in part.

Background

(1) Pertinent History of Medical Treatment and Incarceration

For reasons explained infra, defendants' motions are treated as motions for summary judgment with respect to Hardy's claims of deliberate indifference to his medical needs. Accordingly, the following facts are based upon Hardy's amended complaint as well as the medical records submitted along with the parties' motion papers. On October 6, 2007, Hardy sought medical attention at Woodhull Hospital emergency room in Brooklyn, New York ("Woodhull") for pain he was experiencing in his left ear.

Pl.'s Aff. Opp'n Defs.' Mot. Dismiss, Ex. D ("Pl.'s Ex. D") at 21; see also Am. Compl. ¶ 26; Tr. Pl.'s § 50-h Hr'g Test. ("50-h Test.") at 11.*fn1 Hardy was given an appointment to see an ear, nose and throat ("ENT") specialist the following day. 50-h Test. at 11-12. When Hardy returned for the appointment, the ENT specialist said that there was "something wr[o]ng, but he didn't know exactly what," and Hardy was given another follow-up appointment for October 18, 2007.*fn2 50-h Test. at 12; Am. Compl. ¶ 27.

a. Arrest

Before this follow-up appointment could occur, however, Hardy was arrested by police officers for an alleged parole violation. Am. Compl. ¶¶ 28-32; 50-h Test. at 12-16. Hardy claims that on October 15, 2007, police officers entered his grandmother's residence "looking to serve a warrant for someone who was renting a room there in 2005." 50-h Test. at 13. Hardy does not know how the police officers entered the residence. 50-h Test. at 13. After entering the residence, the officers woke Hardy up and began to question him as to whether he knew the individual they were looking for. 50-h Test. at 13-14; Am. Compl. ¶ 29. Hardy informed them that he did not know the man in the picture and told them that "it [was] obvious he [was] not in the room with [Hardy] because there [was] nowhere for him to hide." 50-h Test. at 14.

The officers subsequently asked Hardy his name, which he refused to provide. However, after officers saw Hardy's identification on the dresser, they took it out of the room, ran his name and found an alleged parole violation. Am. Compl. ¶ 30; 50-h Test. at 14. Upon returning to the room, they informed Hardy that he had an "active parole violation for absconding" and arrested him. 50-h Test at 14, 16.

Hardy now asserts that his arrest was improper because the alleged parole violation was in error. Although Hardy had previously served a four-year sentence for robbery and had been released in 2006, Hardy contends that he was never properly sentenced to parole for that offense. Am. Compl. ¶ 31; 50-h Test. at 12-16. When asked during his 50-h Testimony whether he was on parole, Hardy responded that "[a]ccording to the State of New York, [he] was on parole," but also stated that he personally did not think he was on parole.*fn3 50-h Test. at 14.

Hardy concedes that his previous arrest and incarceration for robbery would typically give rise to a term of parole.*fn4 50-h Test. at 15. Further, Hardy has clarified that he was in fact subject to a term of Post Release Supervision ("PRS"), which was administratively imposed by NYS DOCS. Pl.'s Aff. Opp'n Defs.' Mot. Dismiss at 16-17. However, the Second Circuit and the New York Court of Appeals have since held that the administrative imposition of PRS is improper. See Earley v. Murray, 451 F.3d 71, 75-76 (2d Cir. 2006); People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 259 (2008); Garner v. N.Y. Dep't Of Corr. Servs., 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590, 889 N.E.2d 467, 470 (2008). Seizing on this fact, Hardy believes that because the method through which he was sentenced to PRS is no longer valid, he could not have violated his PRS term, and thus any arrest and incarceration for such a violation was improper. Nevertheless, he admitted in his 50-H Testimony that "[a]s it stands, the parole violation is a valid parole violation, as it stands currently." 50-h Test. at 20.

After his arrest on October 15, 2007, Hardy had a hearing before a judge at Riker's Island sometime in mid-November and was sentenced to a ninety-day program as a result of his parole violation. Id. at 20-22. It was while awaiting this sentencing and then serving this sentence that Hardy's claims regarding deliberate indifference to his medical condition arose, as explained below.

b. Rikers Island

After his arrest on October 15, Hardy was taken to Otis Bantum Correctional Center ("OBCC"), a facility on Rikers Island. There, Hardy was "processed and taken to medical intake as are all prisoners who initially arrive at Rikers Island."

Am. Compl. ¶ 32-33; 50-h Test. at 17. Hardy claims that he explained to staff, including defendants Officer Dorvil and Dr. Medard, that he was experiencing extreme ear pain and dizziness and had a follow-up appointment scheduled at Woodhull.*fn5 Am. Compl. ¶ 34. According to Hardy's complaint, defendants, including Officer Dorvil and Dr. Medard, "told him he was fine and sent him into lockup." Id. ¶ 35.

However, the record contradicts Hardy's claims that Rikers Island intake staff completely ignored his medical issue. Specifically, Hardy's "Intake History and Physical Exam" form from October 15 indicates that medical staff noted Hardy's ear problem and placed him on oral medication, which pharmacy records show was Amoxicillin. Decl. Laura A. Del Vecchio Supp. Def.'s Mot. Dismiss ("Del Vecchio Decl."), Ex. I at NYC6-9; Del Vecchio Decl., Ex. J at NYC66.

Moreover, the evidence indicates that the named individual City defendants played limited roles. Officer Dorvil appears to have completed certain forms relating to Hardy at intake, including a discharge planning questionnaire and a suicide prevention screening form. Del Vecchio Decl., Ex. I at NYC45-46. The latter form seems to indicate that Hardy was not referred to the medical unit by Officer Dorvil at the time it was completed. Id. at NYC46. Dr. Medard, on the other hand, appears to have been entirely absent from Hardy's intake. Dr. Medard has submitted a declaration stating that in 2007, he did not work at OBCC or conduct intake evaluations at Rikers Island. Del Vecchio Decl., Ex. K. Instead, Dr. Medard explains that at the time of Hardy's arrest he was employed at the medical clinic at George Motchan Detention Center ("GMDC"),*fn6 a separate facility on Rikers Island. Id. Thus, according to Dr. Medard, the only way inmates could come into contact with him would be by scheduling a sick call. Id.

Although the circumstances of the transfer are not made clear, at some point in mid-October Hardy was transferred to GMDC. There, he had a follow-up appointment for evaluation of otitis media (ear infection or swelling of the middle ear) on October 25, 2007. Del Vecchio Decl., Ex. I at NYC14-15. Notes from the October 25 evaluation*fn7 state that Hardy claimed his ear felt much better and that he denied swelling, painful cervical lymph nodes, discharge or pain. Id. at NYC14. The examination of Hardy's left ear showed no erythema (redness) or cerumen (earwax). Id. No treatment was indicated and no follow-up was scheduled. Id. As this medical visit was ten days after intake, it would have taken place toward the end of the course of antibiotics that were prescribed to Hardy during intake. See Del Vecchio Decl., Ex. J. at NYC66-67.

Although it is unclear what prompted the visit, approximately ten days later, on November 5, 2007, Hardy was seen by defendant Dr. Medard. Del Vecchio Decl., Ex. I at NYC13. Dr. Medard, an internist, claims that this was the only time that he saw Hardy. This claim is supported by the medical records that relate to Dr. Medard, all of which bear the date November 5. See Del Vecchio Decl., Ex. I at NYC13, 21, 33, 36. At this November 5 appointment, Hardy told Dr. Medard that he had been diagnosed with a perforated tympanic membrane (ear drum) and had been given antibiotic drops prior to his arrest. Id. at NYC13. Hardy complained to Dr. Medard of pain and decreased hearing in his left ear and stated that he could "feel it draining." Id. After examining Hardy,*fn8 Dr. Medard noted that Hardy had left otitis media. Id. He prescribed another course of antibiotics and placed orders for Augmentin and Cortisporin ear drops.*fn9 Id. at NYC13, 33. He also referred Hardy to an ENT. Id. at NYC13, 21. It is unclear for what date this ENT appointment was originally requested, but Hardy's complaint contends that it was only after a fainting spell a few weeks later that he was finally permitted to see an on-site ENT. Am. Compl. ¶ 36.

An On-Island Specialty Clinic form indicates that Hardy saw the on-site ENT on November 15, 2007.*fn10 Del Vecchio Decl., Ex. I at NYC22. Hardy testified that at the time of this appointment he had swelling in his neck about "the size of a small golf ball." 50-h Test. at 19. The ENT placed an order for Cortisporin and Ciprofloxacin ("Cipro"). Del Vecchio Decl., Ex. I at NYC23. Hardy received these prescriptions, but claims they were ineffective. 50-h Test. at 19; Am. Compl. ¶ 39.*fn11 Although an order was written for a follow-up appointment in two weeks time with the ENT, Del Vecchio Decl., Ex. I at NYC24, Hardy would miss this appointment because of his subsequent transfer to Downstate Correctional Facility ("Downstate"). See Am. Compl. ¶¶ 38, 40; see also 50-h Test. at 22-23 (explaining that Hardy's request for a medical hold to delay transfer was denied).

Hardy claims, and defendants' papers do not dispute, that this November visit to the on-site ENT was the only time Hardy was treated by an ENT during his time on Rikers Island. 50-h Test. at 33. Hardy contends that over the four- to five-week period spanning from his arrival at OBCC on October 15, 2007 until he finally saw this on-site ENT in mid-November,*fn12 the only treatment he received was several appointments with "typical Rikers Island medical staff [who] told [him] there was nothing wrong with [him]." 50-h Test. at 18.

c. Downstate

Hardy was transferred to Downstate on or about November 27, 2007. See Decl. Wesley E. Bauman Supp. Defs.' Mot. Dismiss ("Bauman Decl."), Ex. B at MED 099. Hardy testified that throughout medical intake processing at Downstate, he was experiencing extreme pain, blurred vision, discharge from his left ear, hearing loss and increased swelling in his neck, "noticeable to the naked eye." 50-h Test. at 23; see also Am. Compl. ¶ 40. Hardy contends he "literally begged" the medical staff at Downstate to send him to a specialist. 50-h Test. at 23. However, the correction officer at the medical intake area and defendant P.A. Noriel DeGuzman allegedly denied Hardy's request, stating that Downstate was a transit facility and that the issue would be addressed at Hardy's permanent jail. Id. at 25; Am. Compl. ¶¶ 41-42.

Downstate medical records show that staff was aware of Hardy's ear problem. See, e.g., Bauman Decl., Ex. B at MED 006 (stating on an undated inquiry and response form that Hardy had a current hearing problem and a current health problem described as a "ruptured L eardrum since 10/07"); see also id. at MED 099, 100. However, whether any action was taken at Downstate to address the issue is far from clear. Hardy appears to have undergone a standard medical evaluation,*fn13 and was then sent to the general population of the facility without referral to a physician. See id. at MED 007. No on-going or newly-prescribed medications are indicated on the forms.*fn14 See, e.g., id. at MED 100; see also Del Vecchio Decl., Ex. I at NYC27.

Hardy remained at Downstate until at least December 4, 2007, after which he was transferred to Willard Drug Treatment Campus ("Willard"). Bauman Decl., Ex. C at MED 002. No further evidence has been submitted that would indicate that Hardy received any medical attention for his ear at Downstate.*fn15

d. Willard

Upon arrival at Willard on or about December 5, 2007, Hardy was processed through medical intake by staff, including defendants Willard Correction Officers and Nurse Dalecki. Am. Compl. ¶¶ 43-44. Hardy claims that at this point his vision and hearing were dramatically reduced, he had difficulty walking and standing, the swelling in his neck was about the size of a tennis ball and puss was emanating from his ear in a constant flow.*fn16 Id.; 50-h Test. at 25-26. These claims are not in conflict with the State's health records, which include handwritten progress notes indicating that on the day following Hardy's arrival at Willard, Hardy complained that his ear was in "excruciating pain" and that it was "draining green/yellow." Bauman Decl., Ex. C at MED 023. The notes indicate that Hardy had a wad of toilet paper in his ear and that when he removed the paper, "cream colored drainage" appeared. Id.

Intake notes indicate that Nurse Dalecki was involved in Hardy's Willard intake. The Willard "Intake Summary" form, dated December 5, 2007, lists a possible ruptured ear drum as a current health problem and appears to be signed by Nurse Dalecki. Id. at MED 002. The form describes Hardy's past prescriptions for Cipro and Cortisporin, but it is unclear whether any medication was ordered for Hardy at that time. See id. An appointment for evaluation of Hardy's ear was set for December 6, 2007. Id. at MED 002, 023.

Hardy acknowledges that he was frequently seen by nurse practitioners at Willard. 50-h Test. at 26 (testifying that he "literally was in the medical untit [sic] there at least four days out of the week every single week"); see also Am. Compl. ¶ 45. State progress notes indicate that Hardy was evaluated by Willard's medical staff on December 6, 10, 11 and 17. Bauman Decl., Ex. C at MED 020-022. Over this period of time, from December 6 through December 17, 2007, progress notes indicate that Hardy received some treatment for left otitis media, perforation and mastoiditis. See id. at MED 020-022.

Specifically, Hardy appears to have had an ear culture on December 6, 2007. Id. at MED 029. A December 6 progress note reports "copious yellow discharge from [Hardy's] ear canal" and an evaluation of left otitis media and perforation. Id. at MED 022. The note lists various medications and a follow-up appointment scheduled for December 13, 2007. Id. Notes further indicate that on December 10, Hardy complained of increased pressure and dizziness and that drainage, some of which may have been bloody, was observed. Id. at MED 021. Hardy was instructed to take his medication as directed and the future December 13, 2007 appointment was again noted. Id. Hardy was back the following day, December 11, 2007, complaining of increased discomfort. Id. The corresponding progress note indicates that the December 13 appointment was moved up to that same day, December 11. Id. The subsequent note, also dated December 11, goes on to state that Hardy was experiencing continued pain; copious yellow drainage and possibly an odor were observed. Id. A thirty-day supply of Cipro, an issuance of cotton balls, an otolaryngology ("OTO") referral and an order for a CT Scan were provided for Hardy at this time. Id. The OTO referral was made with the urgency of care marked "Soon" (which the form defines as "14 DAYS") as opposed to "Emergency" ("24 HOURS") or "Urgent" ("5 DAYS"). Id. at MED 067. Hardy claims he was promised that he could see an ENT when one was available, Am. Compl. ¶ 46, but that he was never treated by an ENT on-site at Willard. 50-h Test. at 27.

On December 17, 2007, Hardy returned to the infirmary complaining of pain and dizziness and stated, "I need to go to a hospital." Bauman Decl., Ex. C at MED 020. Progress notes from that date indicate "copious" and "chronic" drainage. Id. Hardy explained to staff that he had not been taking his Cipro as directed because the information sheet stated not to take it in combination with his other medication; staff directed Hardy to begin his course of Cipro as previously ordered. Id. Staff also noted that Hardy's ear culture revealed "no growth." Id. at MED 020, 029. No follow-up appointment appears to have been scheduled,*fn17 see id., but, as mentioned supra, an OTO referral had already been made on December 11. Id. at MED 067.

Two days later, a progress note dated December 19, 2007 indicates that staff received a call from Hardy's mother regarding Hardy's ear problems.*fn18 Id. at MED 020. Hardy claims that his mother called the facility threatening to take legal action, which was what prompted officials to allow Hardy finally to see a specialist. Am. Compl. ¶ 46.

On December 21, 2007, ten days after the initial OTO referral was made, Hardy was seen by defendant Dr. Pathak (presumably an otolaryngologist). Bauman Decl., Ex. C at MED 067. Although the paperwork from this appointment does not specify where it took place, and State defendants have provided no additional information regarding Dr. Pathak, Hardy recalled an appointment outside of the facility on or about December 18, 2007, with a doctor retained by Willard. See Am. Compl. ¶ 46. Dr. Pathak's handwritten notes from this appointment restate Hardy's symptoms of constant drainage, pressure, pain and minimal hearing. Bauman Decl., Ex. C at MED 067. Hardy recalled that the doctor drained puss from an abnormally large abscess in the back of Hardy's head and scheduled an operation for January 3, 2008. Am. Compl. ¶ 47; Bauman Decl., Ex. C at MED 044, 034. Dr. Pathak's orders included a course of Cipro until time of surgery, a CT scan "ASAP" and a mastoidectomy needed "soon" to relieve the abscess. Bauman Decl., Ex. C at MED 067; see also 50-h Test. at 28 (stating that the doctor "made it very clear [Hardy] was going to need an operation to correct the problem because of the severity of it as a direct result of it going untreated for almost two months at that point").

Treatment records from December 21 onward give the impression that Dr. Pathak was, to at least some extent, responsible for Hardy's care during the remainder of his sentence at Willard. See, e.g., Bauman Decl., Ex. C at MED 034, 044, 048. However, a different physician appears to have signed the "Request" portion of a "Request and Report of Consultation" form filled out on either December 25 or December 28, 2007,*fn19 which requests a consultation for Hardy with the urgency of care marked "Emergency." Id. at MED 038 (the "Consult Requested By:" line appears to say "Dr. Graceffo/To A. Dalecki"). It appears that it was only after this "emergency" request that Hardy was finally taken to Cayuga Medical Facility ("Cayuga") for the CAT scan that Dr. Pathak ordered "ASAP" on December 21. Id. There is no documentation from the time period between December 21, when Hardy was first examined by Dr. Pathak, and December 25/28, when the new "emergency" request was made, to indicate what prompted this emergency request from Dr. Graceffo.

On December 28, 2007, Hardy was taken to Cayuga, where he had a CT scan. Id.; Pl.'s Ex. D at 224. Hardy claims that the Cayuga radiologist told prison officials that Hardy "needed emergency surgery because the infection was life threatening." Am. Compl. ¶ 48; see also 50-h Test. at 28-29 (explaining that the radiologist called Willard and told officials to bring Hardy back to the hospital to be admitted for emergency surgery). Hardy's claims are in part corroborated by the December 28 DOCS "Consultant Report," where a doctor whose name is illegible noted that after the CT scan, which was done "for pre-surgical planning," the radiologist called the medical office at Willard and suggested a transfer. Bauman Decl., Ex. C at MED 038. The notes go on to state that the writer spoke to Dr. Pathak and another doctor, that the "CT results [were] not unexpected," that Hardy should continue taking his Cipro and that surgery would be conducted as previously arranged. Id.

State defendants believe that Hardy's claim of a "life threatening" condition is contradicted by the December 28 report from the radiology center at Cayuga, which states "[t]he patient should be evaluated for timely surgical evacuation." Id. at MED 039. However, Cayuga staff also indicated that Hardy should return earlier "if fever, chills, increased pain otherwise follow up with Dr. Pathak as previously arranged." Id. at MED 061. In spite of this instruction, it appears that Hardy was running a fever of 100.3 degrees at the time of his discharge from Cayuga. Pl.'s Ex. D at 35. It is not clear whether this fever persisted in the coming days, as there is no documentation for the period between Hardy's December 28 visit to Cayuga and his January 3 operation.

Although there are no medical records that confirm a December 29 visit to Cayuga, Hardy claims that the following day, more tests were run at Cayuga Medical Facility. Am. Compl. ¶ 49; 50-h Test. at 29. Hardy claims that "[u]nbelievably, the doctor retained by Willard DTC, upon information and belief Kamal Pathak, M.D., ordered [Hardy] back to prison because he already had a surgery date scheduled even though the Cayuga radiologist explained that [Hardy's] life was in danger." Am. Compl. ¶ 50.

Hardy, therefore, remained at Willard awaiting his scheduled surgery. Hardy claims that in the days preceding the scheduled surgery he "passed in and out of consciousness and was unable to eat, see, or hear." Am. Compl. ¶ 51. As noted above, no medical records exist to indicate that Hardy's condition was monitored by Willard staff during this period.

A mastoidectomy was performed on January 3, 2008, apparently by Dr. Pathak. See Bauman Decl., Ex. C at MED 048 (noting, post-surgery, a chronic mastoid abscess causing a Bezold's abscess); Am. Compl. ¶ 52 (claiming that surgery was performed by Dr. Pathak at Cayuga). Hardy was admitted to Willard's infirmary after the operation and was scheduled to remain there until January 7, 2008. See Pl.'s Ex. D at 241; see also 50-h Test. at 31 (testifying that staff kept him in the facility infirmary for three days following the surgery). Hardy claims that upon his immediate return to Willard after the surgery, defendants Willard Correction Officers "refused him follow-up treatment or appointments with the doctor," Am. Compl. ¶ 53, which Hardy requested daily. 50-h Test. at 36. However, state records indicate that a consultation with an ENT specialist was requested on January 4, 2008 and scheduled for January 15, 2008. See Bauman Decl., Ex. C at MED 048. A progress report from January 8 notes swelling in the mastoid area, but observes that Hardy stated he was no longer having any pain and was feeling much better. Pl.'s Ex. D at 246. A consultation with defendant Dr. Pathak was held on January 14, 2008, at which point it was noted that most of Hardy's ear pain had subsided, ear drainage had decreased significantly and the ear canal was visible, although there seems to have been continued swelling. See Bauman Decl., Ex. C at MED 048. "Satisfactory progress" was indicated. Id.

Unfortunately, though, Hardy's condition appears to have again deteriorated significantly between this time and the time of his release from Willard on March 11, 2008. Hardy testified that, despite continued use of oral antibiotics after the operation, in the following weeks his hearing only worsened and he developed a staph infection from unsanitary post-operation care. 50-h Test. at 31, 36; see also Am. Compl. ¶ 54. Medical records appear to confirm that two ear cultures taken in February 2008 found the existence of some staphylococcus.*fn20

According to Hardy, this staph infection caused significant puss build-up in his face, which Willard staff allowed to fester there for months. 50-h Test. at 39. Although requesting treatment daily, Hardy claims to have been given nothing more than "Motrin and a Band-Aid." 50-H Test. at 36, 39. Treatment notes from January and February are in conflict with Hardy's claim to have received nothing more than Motrin, but repeatedly acknowledge that Hardy continued to experience symptoms of drainage, swelling, pressure and pain, which were treated -- apparently ineffectively -- with antibiotics. Pl.'s Ex. D at 178-85; Bauman Decl., Ex. C at MED 044.

More specifically, progress notes from appointments at the infirmary on January 22, 2008, and again on January 29, 2008, indicate that Hardy was complaining of thick yellowish drainage and swelling in his left ear. Pl.'s Ex. D at 182-83. An appointment was scheduled for February 1, 2008 at which Hardy complained of head pain, dizziness and pressure over his left eye. Pl.'s Ex. D at 182. Copious yellow drainage was observed. Id. A report by Dr. Pathak, dated February 5, 2008, notes continued drainage, pressure and pain, that the abscess was still present and that if there was no improvement within two weeks, another CT scan should be run. Bauman Decl., Ex. C at MED 044. Hardy continued to be treated with antibiotics. Id.

A follow-up appointment was requested on February 6, 2008 to be scheduled in 30 days time. Id. at MED 034.

It appears that Hardy had an additional CT scan at Cayuga on February 25, 2008, which indicated continued "extensive left mastoid sinus mucosal inflammatory disease." Id. at MED 041-042. Progress notes from around this time, dated February 14, 19, 24, 25, 27, 28 and 29, as well as March 3 and 4, 2008, report that Hardy was continuing to experience drainage. See Pl.'s Ex. D at 178-81. One note from February 29, 2008 describes that the provider opened up the "area behind [left] ear that [was] swollen and infected" and "drained [a] copious am[ount] [of] purulent drainage," after which Hardy said his ear felt "much better." Id. at 178. Other notes reference the results of an ear culture, continued use of antibiotics and a future appointment that had been scheduled with the ENT. Id. at 177.

During an ENT consultation on or about March 5, 2008, Dr. Pathak noted renewed draining and continued swelling, concluding that Hardy needed a revision of mastoidectomy for a persistent left mastoid abscess. Bauman Decl., Ex. C at MED 034. A medical form completed March 5, 2008, marked that Hardy "needs outpatient care/medical follow-up within two weeks of release," Pl.'s Ex. D at 252, and Dr. Pathak's consultation notes from the same day indicate an appointment Hardy scheduled at Manhattan Eye and Ear ("MEE") hospital for April 14, 2008, following Hardy's release. Bauman Decl., Ex. C at MED 034. A progress note dated March 7, 2008 states "No med. emerg." Id. at 176. The next and seemingly final note is a stamp from March 11, 2008, that reads "COMPLETED PROGRAM TODAY." Id.

e. Post-Release

On March 11, 2008, Hardy was released from custody. Am. Compl. ¶ 55. Hardy claims that he "first reported to his parole officer in order to avoid re-imprisonment." Id. The complaint states that on March 14, 2008, Hardy reported to MEE where he was admitted immediately and diagnosed with a life-threatening infection. Id. ¶ 56. However, medical records from the hospital indicate an admission date of March 17, 2008. Pl.'s Ex. D at 587. Hardy testified that at the time of his admission, the knot in his neck was gone, but his face was severely swollen and ...


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