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Jose Ramos v. Lester N. Wright

January 3, 2011


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


Pro se Plaintiff Jose Ramos brings this civil action, pursuant to 42 U.S.C. § 1983, alleging his constitutional rights were violated while he was incarcerated at Shawangunk Correctional Facility when the Defendants denied him adequate medical care for his serious medical needs. See generally Dkt. No. 1, Compl. Defendants move to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted. Dkt. No. 14. Plaintiff opposes the Motion. Dkt. No. 15. For the reasons that follow, we recommend granting Defendants' Motion in part and denying it in part.


Plaintiff asserts that while at Shawangunk, Defendants either denied him or delayed adequate medical care in treating his back condition. The following facts are derived from the Complaint, which on a Motion to Dismiss must be taken as true. See infra Part II. A.

On October 1, 2007, Plaintiff was seen by Defendant Maryann Genovese*fn1 in response to Plaintiff's request for medical attention for his symptoms of numbness in his right leg and chronic back pain. Compl. at ¶ 6a. Defendant Genovese ordered physical therapy and an x-ray; the x-ray was taken that same date. Id. at ¶¶ 6a & 6b. After reviewing the x-ray, Defendant Genovese ordered a magnetic resonance imaging (MRI) for Plaintiff's back, which was completed on November 20, 2007. Id. at ¶¶ 6b & 6c.

On December 6, 2007, Defendant Genovese informed Plaintiff that she was making an appointment for him to see an "ortho/neuro surgeon ('specialist')." Id. at ¶ 6d. Plaintiff assented to this appointment by signing a medical consent form on December 17, 2007. Id. at ¶ 6e. At that point, he had not yet been called for physical therapy. Id. On February 26, 2008, Defendant Genovese informed Plaintiff that the nature of his symptoms was due to the "deterioration of [his] back, herniated discs, spinal stenosis, nerve root, and other related back problems." Id. at ¶ 6f. She revealed that the consult with a specialist was denied and that she would order physical therapy again. Id. at ¶ 6g. On April 7, 2008, Plaintiff wrote Defendant Genovese a letter complaining of his back pain and the fact that he had not yet received physical therapy. Id. at ¶ 6h. Two days later, on April 9, 2008, Plaintiff was seen by a physical therapist, Defendant Doe, who told Plaintiff that he would receive physical therapy each week. Id. at ¶ 6i. But, in a letter to Defendant Genovese, dated May 14, 2008, Plaintiff complained about his deteriorating medical condition and the denial of medical care, including physical therapy. Id. at ¶ 6j.

On June 10, 2008, Plaintiff met with Defendant Doctor Miller. Id. at ¶¶ 3e & 6k. During that meeting, Defendant Miller stated he would schedule an appointment with a back specialist upon Plaintiff's completion of physical therapy. Id. at ¶ 6k. On July 7, 2008, Plaintiff wrote a letter to Defendant Miller complaining of his deteriorating medical condition and the denial/delay of treatment. Id. at ¶ 6l. The following date, Plaintiff met with Defendant Miller, who ordered an electromyography (EMG), which was completed at an outside facility, Albany Medical Center, on August 5, 2008. Id. at ¶¶ 6m & 6n. After reviewing the EMG results, Defendant Miller recommended that follow-up care be arranged with a primary care provider. Id. at ¶ 6o. Thereafter, Defendant Genovese recommended that "no action is required at this time."*fn2 Id. at ¶ 6p.

On August 18, 2008, Plaintiff requested to be seen by a doctor to address the pain in his back, and was told that he would be scheduled for an appointment after his August 22nd family reunion visit. Id. at ¶ 6q. On September 8, 2008, Plaintiff again complained about his chronic pain and the fact that he had not been seen by a doctor. Id. at ¶ 6r. On September 15, 2008, Plaintiff filed a grievance (SHG--24584--08) regarding the denial/delay of adequate medical care since October 1, 2007, and further requested to see a specialist. Id. at ¶ 6s. In response, Defendants claimed that Plaintiff was receiving adequate medical attention.*fn3 Id. at ¶ 6t. On September 30, 2008, Plaintiff met with Defendant Miller who claimed Plaintiff had no back problem, but nevertheless informed Plaintiff that he would be sent for "neurology, physical medicine, [and] rehabilitation." Id. at ¶ 6w. At some point, Plaintiff met with a specialist who issued a consult report indicating that Plaintiff should be seen by a "neuro" surgeon and have his medication changed. Id. at ¶ 6z. Plaintiff signed a "Contract for specialty Care Appointment" on November 3, 2008, and was seen by a surgeon on December 11, 2008. Id. at ¶¶ 6za & 6zb. The surgeon felt Plaintiff would benefit from surgery and ordered an MRI to compare with the one taken the year prior. Id at ¶ 6zb.

In the interim, Plaintiff and his wife separately wrote letters to Defendant Lester N. Wright, M.D., Deputy Commissioner/Chief Medical Officer, regarding Plaintiff's chronic pain and the level of medical care that had been received, not received, and/or delayed.*fn4 Id. at ¶¶ 6u, 6v, 6x, & 6zm.

In his letter, Plaintiff specifically complained about Defendants Genovese and Miller. Id. at ¶ 6x. Defendant Wright, in a letter dated October 16, 2008, responded to Plaintiff's wife by noting that Plaintiff was receiving medical care. Id. at ¶ 6y.

Throughout the rest of December 2008, Plaintiff requested information regarding the consultation appointment and executed a consent form to receive the MRI. Id. at ¶¶ 6zc-6ze. The MRI, conducted on January 21, 2009, and received by Defendant Genovese on January 28, 2009, showed damage to Plaintiff's back. Id. at ¶¶ 6zf & 6zg. On February 2, 2009, Plaintiff signed a consent to see a "neuro" surgeon, and, approximately one month later, on March 8, 2009, Plaintiff requested sickcall in order to discuss the consultation. Id. at ¶¶ 6zh & 6zi. Also on March 8, 2009, Plaintiff wrote a letter to Defendant Genovese complaining about the delay in seeing the surgeon. Id. at ¶ 6zj. A few days later, March 12, 2009, Plaintiff was seen by the surgeon, however, because unnamed medical staff failed to provide the surgeon with Plaintiff's medical records, the surgeon could not treat him. Id. at ¶ 6zk. The surgeon recommended that Plaintiff see another specialist to address his spinal stenosis. Id. On March 22, April 13, and June 21, Plaintiff, claiming that his symptoms and medical condition were worsening due to the delay in obtaining medical treatment, inquired about seeing a specialist and asked to be seen by medical personnel at the facility. Id. at ¶¶ 6zl, 6zn, & 6zp.

On June 28, 2009, Plaintiff filed another grievance (SHG--25224--09) complaining of his chronic pain and seeking the identity of the person who denied his specialist consult. Id. at ¶ 6zq.

In response, Plaintiff was informed that Defendant Genovese denied the follow-up visit because she wanted to try other avenues. Id. at ¶ 6zr. Defendant Smith affirmed this response on July 20, 2009, as did the Central Office Review Committee (CORC) on August 26, 2009. Id. at ¶¶ 6zs & 6zt. ...

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