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Willie James Yeldon v. Brian Fischer

March 31, 2011


The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge



Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #34.

On June 11, 2007, plaintiff, appearing pro se, filed this action pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to a serious medical need against Brian Fischer, Commissioner of the New York State Department of Corrections ("DOCS"), Dr. Champagne and Dr. Taesoo Kim,*fn1 physicians at the Franklin Correctional Facility ("Franklin"), Dr. DiRisio, a surgeon at the Albany Medical Center, Dr. Chen George-Pai,*fn2 a surgeon at the Alice Hyde Medical Center, Dr. DePerio and Dr. Shiekh, physicians at the Wyoming Correctional Facility ("Wyoming"), Tom Edwards, a Registered Physician's Assistant at Wyoming, and Dr. Downs, a surgeon at the Wyoming County Community Hospital, alleging that during his incarceration, he received inadequate medical treatment for his back pain. Dkt. #1.

Currently before the Court are defendants' motions for summary judgment. Dkt. #58 & Dkt. #63. For the following reasons, defendants' motions are granted.


Plaintiff has been in DOCS' custody since 1997 and was transferred to Franklin on July 20, 2000. Dkt. #66, ¶ 6. Medical records at Franklin indicate that plaintiff complained of back spasms upon his arrival and was prescribed ibuprofen and given a lower bunk permit and back brace permit. Dkt. #66, ¶ 10. Medical records indicate repeated evaluations by Dr. Champagne and the medical staff at Franklin, physical therapy, and numerous referrals to outside specialists. Champagne Declaration, Exh. A.*fn3 For example, plaintiff received a CT scan of his back at the Alice Hyde Medical Center in October of 2001, which revealed a broad based left disc herniation of moderately large degree. Dkt. #66, ¶ 15. Plaintiff was approved as medically unemployed for the program committee in November of 2001. Dkt. #66, ¶¶ 17.

Shortly thereafter, plaintiff was transferred to the Coxsackie Correctional Facility Regional Medical Unit for a neurosurgical consult and recommendation for an MRI. Dkt. #66, ¶ 18. The MRI was conducted on November 12, 2001 and revealed "a large left posterolateral disc herniation compressing the nerve root as it courses within the left lateral recess" at L5-S1. Champagne Declaration, Exh. A. On January 10, 2002, Dr. Waldman, a neurosurgeon, diagnosed a large left post-lateral L5-S1 disc herniation compressing nerve root with signs of left lower extremity radiculopathy and recommended evaluation for a micro-discectomy as soon as possible. Dkt. #66, ¶ 20.

Dr. DiRisio first examined plaintiff on March 21, 2002. Dkt. #61, ¶ 2. After reviewing the results of an MRI indicating a herniated nucleus pulposus at L5-S1 level on the left side, Dr. DiRisio recommended surgery to relieve the compression on the nerve root. Dkt. #61, ¶ 2. On April 5, 2002, Dr. DiRisio performed a left sided lumbar laminoforamenotomy and discectomy at L5-S1 to decompress the S1 nerve root. Dkt. #61, ¶ 3. Plaintiff was discharged from the Albany Medical Center to the Coxsackie Regional Medical Unit on April 8, 2002. Dkt. #59, ¶ 9.

Plaintiff was transferred to Franklin, where he received follow up care, including a follow up examination with a neurosurgeon. Dkt. #66, ¶ 23. Plaintiff reported that he did not feel that the surgery had resolved his back problem. Dkt. #66, ¶ 23. Plaintiff was prescribed physical therapy in May of 2002, but chose to discontinue on June 13, 2002. Dkt. #66, ¶ 24. An MRI on June 6, 2002 found a previous left L5-S1 laminectomy. Moderate loss of disc signal is noted at this level. Epidural soft tissue is seen on the left lateral side at this location. Following IV gadolinium administration, this area demonstrates enhancement indicating that it represents a scar. No recurrent disc herniation is seen.

Champagne Declaration, Exh. A. Plaintiff was examined by Dr. Emrich on August 1, 2002 and by Dr. Kim on September 10, 2002 for neurosurgery consults. Dkt. #66, ¶¶ 26-27. Upon review of an MRI, Dr. Kim observed a scar at L5-S1 but did not see a recurrent disc. Dkt. #66, ¶ 27. Dr. Kim recorded complaints of pain with no objective findings and suggested a pain management consultant. Dkt. #66, ¶ 27.

On October 16, 2002, plaintiff was examined by Dr. Chen at the Alice Hyde Medical Center for a pain management consultation. Dkt. #66, ¶ 29. Dr. Chen reviewed the MRI from June of 2002 and observed a "possible scar in epidural space from L5 to S1." Champagne Declaration, Exh. A. Dr. Chen diagnosed failed back syndrome and gave plaintiff an epidural steroid injection, noting that scarring could prevent the medication from getting to the source of plaintiff's pain. Dkt. #66, ¶ 29 & Champagne Declaration, Exh. A. Plaintiff received a CT scan in December of 2002 and another epidural injection from Dr. Chen in February of 2003. Dkt. #66, ¶¶ 31-32. On February 19, 2003, Dr. Chen discussed with Mr. Yeldon that because of his scarring that medication may not be able to get to where it needs to be.

We will try another injection just to be sure. My personal recommendation if he does not get signification pain relief is that he should get epidural dye injection with probably Racz catheter for epidurolysis of adhesions.

Champagne Declaration, Exh. A.

Plaintiff transferred from Franklin to the Upstate Correctional Facility ("Upstate"), on March 28, 2003, and shortly thereafter was transferred to Wyoming. Champagne Declaration, ¶ 130 & Dkt. #66, ¶ 39. Dr. Champagne did not treat plaintiff following this transfer. Champagne Declaration, ¶ 131.

Plaintiff was seen by medical staff at Wyoming more than 200 times between and July 28, 2004 and July 13, 2007. Shiekh Declaration, Exh. A.*fn4 Dr. Shiekh examined plaintiff at Wyoming on August 2, 2004 and noted his complaints of low back pain. Dkt. #66, ΒΆ 42. Dr. DePerio first examined plaintiff at Wyoming on November 1, 2004, at which time it was noted he was ...

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