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Jeffrey Mack, 99-A-4574 v. Dr. Bangsil

February 1, 2011

JEFFREY MACK, 99-A-4574,
PLAINTIFF,
v.
DR. BANGSIL, DEFENDANT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

In accordance with 28 U.S.C. §636(c), the parties have consented to proceed before a Magistrate Judge [14].*fn1 Before me are plaintiff's motion for appointment of counsel

[44] and defendant's motion for summary judgment [52]. Oral argument was held on January 28, 2011. For the following reasons, I order that defendant's motion for summary judgment be granted, and that plaintiff's motion for appointment of counsel be denied as moot.

BACKGROUND

Plaintiff, proceeding pro se, seeks to recover damages pursuant to 42 U.S.C. §1983 for defendant's alleged deliberate indifference to a testicle infection he developed while incarcerated at the Gowanda Correctional Facility ("Gowanda"). Complaint [1], pp. 5-6. Defendant, an employee of the Department of Correctional Services ("DOCS"), is the Health Services Director at Gowanda. Bangsil Declaration [58], ¶1.

Plaintiff was transferred to Gowanda on June 18, 2007. Bangsil Declaration [58], Ex. A, #319. At that time, his reported medical conditions were a recent carpal tunnel surgery, high blood pressure, and hearing loss. Id. Defendant first examined plaintiff on June 26, 2007.

Id., #318. Although plaintiff alleges (in unsworn fashion) that he advised defendant of his condition at that time (plaintiff's statement of facts [60], ¶3), defendant's treatment notes do not reflect this. Bangsil Declaration [58], Ex. A, #318.*fn2 Defendant's treatment notes reflect that he was "unable to complete visit due to inmates behavior". Id. Plaintiff was next examined by defendant on July 3, 2007, but there is no notation in defendant's treatment notes of any complaints by plaintiff about his testicles. Id., #317.

Plaintiff first complained of a burning irritation on his testicles on July 9, 2007. Id., #316. A nurse prescribed Clotrimazole, an antifungal cream, and Ibuprofen for pain. Id. On July 11, 2007, plaintiff was seen by defendant for complaints "scaling/itching" in his right groin and was diagnosed with Tinea Cruris, an inflammation of the scrotal/groin area. Id., ¶9, Ex.A, #315.*fn3 Defendant also "instructed [plaintiff] on health teaching and applying the lotion to his right groin." Id., 9.

Plaintiff returned to sick call July 16, 2007 complaining of "drainage from scrotal rash". Id., Ex. A, #314. Later that day he was seen by defendant, who noted reddening of the scrotal area and ordered Domeboro soaks and Clotrimazole. Id.

On July 23, 2007, plaintiff complained that the Domeboro soaks were ineffective, and an August 2, 2007 appointment with defendant was scheduled. Id., #313. In the interim, he was seen by the medical staff twice for unrelated medical issues and did not complain about his testicles. Id. At the August 2, 2007 appointment, plaintiff complained of persistent irritation/cracks on his penile shaft and left groin and scaling and darkening of his left groin and penile shaft. Id., #312. Defendant diagnosed plaintiff with "Tinea Cruris, persistent", and prescribed Diflucam and Clotrimazole and gave him instructions on hygiene of the groin area. Id. The following day plaintiff was seen by a nurse for complaints of bleeding around the penis, but an examination revealed no bleeding. Id. On August 6, 2007, he was seen by a nurse for penile irritation and brownish drainage. Id. At that time, he returned an empty tube of Clotrimazole, but refused another. Id. The nurse discussed plaintiff's complaints with defendant, but no new treatment was prescribed. Id. Thereafter, plaintiff was seen by medical staff for unrelated conditions on 9 occasions through August 29, 2007, but there is no notation in the treatment notes of any complaints by plaintiff about his testicles. Id., ##309-311.

Plaintiff's complaints resumed August 31, 2007, when he complained of a penile lesion, but defendant's examination revealed that it had healed. Id., #308. Plaintiff next complained of penile lesions on September 11, 2007. Id., #306. A nurse noted "minute redness near head of penis", and prescribed triple antibiotic ointment. Id. On September 18, 2007, plaintiff advised a nurse that he "has cuts on his penis he thinks because the soap burns when he showers". Id., #305.

Plaintiff was examined by a nurse on September 26, 2007 for a fever and complaints of boils on his scrotum, which were confirmed upon examination. Id. Although he was scheduled to see defendant that morning, plaintiff was not examined by defendant until 1:30 p.m. Id., ##304-305. Defendant's examination revealed a left scrotal abscess, which prompted him to have plaintiff remotely examined by an emergency room physician and the Erie County Medical Center ("ECMC"). Id., #304. Within hours, plaintiff was transferred to ECMC, where he was admitted and treated by a urologist, who diagnosed him with left epididymal orchitis, an infection of a testes. Id., ¶20, Ex. A, #348. According to the ECMC admission report, plaintiff stated "that this has been going on for several weeks and has been increasing with regards to intensity of pain, swelling." Id., #348. Plaintiff was discharged from ECMC on October 2, 2007, and then discharged to general population following an examination by defendant. Id., ##355, 358. Defendant scheduled a follow-up examination at ECMC for October 17, 2007. Id., #355.

In moving for summary judgment, Dr. Bangsil argues that no reasonable jury could conclude that his treatment of plaintiff was deliberately ...


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