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Johnny James Collier v. Harter

April 26, 2012


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Siragusa, J. Johnny James Collier, ("Plaintiff"), a prison inmate previously in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"),*fn1 brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants for alleged violations of his Constitutional rights under the Eighth Amendment in connection with medical care he received at Livingston, Groveland, and Gowanda Correctional Facilities in 2004-2006. ECF Nos. 1, 53. Prior to entering DOCCS custody, Plaintiff was incarcerated at the Ontario County Jail. He also alleges that his constitutional rights were violated when the medical staff there failed to provide him with adequate medical care. Id.

Now before the Court are the Defendants' motions for summary judgment.*fn2 ECF Nos. 69, 72. For the reasons stated below, Defendants' motions are granted, and this action is dismissed.


The following facts are undisputed and viewed in the light most favorable to the Plaintiff.

From 2004 to 2006, Benjamin C. Augustin ("Augustin") was employed by DOCCS as a physician at the Livingston County Correctional Facility ("Livingston"). Anthony M. DePerio ("DePerio") was employed by DOCCS as a physician in 2004 and provided health care services at Groveland Correctional Facility ("Groveland"). Catherine Felker ("Felker") was the Nurse Administrator at Groveland from March, 2002, to June, 2007. Jose Melendez ("Melendez") was employed as the Deputy Superintendent for Programs at Gowanda Correctional Facility ("Gowanda") during the time Plaintiff was confined there from October 7, 2005, to February 3, 2006.*fn3 Defendant Deborah Harter ("Harter" or "the County Defendant") was employed part-time as a Certified Nurse Practitioner at the Ontario County Jail from May, 2003 to August, 2006.

Ontario County Jail Prior to entering DOCCS custody, Plaintiff was incarcerated in the Ontario County Jail from May 23 to September 11, 2003. On May 23, 2003, Ontario County Jail staff conducted a health assessment of Plaintiff, which indicates that Plaintiff claimed to have fallen in 2001, was experiencing back problems, and was prescribed several medications for his condition. Ontario County Jail has a medical file for Plaintiff that documents and brings to the staff's attention Plaintiff's medical needs and specifically, his back problems. The file indicates that on May 29, 2003, a conference call was held with Plaintiff's physician, Dr. Steven Lasser, who indicated to jail staff that Plaintiff "ha[d] a [worker's compensation] case and is awaiting approval for a myelogram. He is not on any narcotics for pain control and he can wait until his release for further comp work up." Harter Ex. E, ECF No. 80. However, based on Plaintiff's continued complaints, Ontario County Jail staff attempted to contact Dr. Lasser's office again. Ultimately, they were informed on June 26 that it was "appropriate to [continue] muscle relaxant until further eval and work up." Id.

Plaintiff requested a myelogram from Jail staff, who in turn continued to attempt to contact Dr. Lasser. On August 4, Dr. Lasser informed staff that Plaintiff would need to fill out certain paperwork and provide it to the attorney handling his worker's compensation case. A week later, Lasser's office told staff that Plaintiff was scheduled to have a myelogram for his worker's compensation case on May 29, 2003, but a telephone interview had to occur prior to the myelogram appointment. Since Plaintiff was incarcerated at that time, he could not complete the interview or the myelogram screening.

Plaintiff, who was able to care for himself in the months prior to his incarceration, claims that his symptoms were exacerbated while he was in jail. During his confinement at Ontario County Jail, Plaintiff was able to independently care for his personal hygiene, as well as participate in the Jail's scheduled recreation.

Livingston Correctional Facility

Plaintiff arrived at Livingston on October 20, 2003 and remained there until he was transferred to Groveland on July 12, 2004. Plaintiff was transferred back to Livingston for disciplinary reasons on August 6, 2005, and was confined there until October 7, 2005, when he was transferred to Gowanda. Plaintiff was transferred out of Gowanda on February 3, 2006.

When Plaintiff was received by DOCCS on September 11, 2003, at the Elmira Correctional Facility, he advised medical staff that he was under care for three ruptured discs and stated that he was taking Elavil, Neurontin, Soma, and Motrin. Initially, a prescription for these four medications was written, but Soma was discontinued prior to his arrival at Livingston on October 20, 2003. As of that date, Plaintiff received a received permission for a temporary lower bunk, and was prescribed Elavil, Neurontin, and Motrin pending a physician's evaluation scheduled for November 3, 2003.

Between October 20 and November 3, 2003, Plaintiff was seen several times by Augustin's medical staff. At his November 3 appointment with Augustin, the doctor took note that Plaintiff claimed that he had a ruptured disc as a result of a work-related injury that occurred prior to his incarceration and that he suffered chronic lower back pain. Augustin discontinued the prescription for Neurontin and re-prescribed Soma, as well as 600mg of Motrin. However, the prescription for Soma was not approved by the regional health services administration, and the following day Augustin prescribed Flexeril.

During the period Plaintiff was confined at Livingston, he was seen on several occasions by medical staff, and he was treated for high blood pressure, dental issues, and knee problems, as well as for his complaints of continuous back and leg pain. He was provided a back brace and placed on permanent program limits.

On January 8, 2004, following an x-ray of Plaintiff's back, Plaintiff was diagnosed with degenerative disc disease. Plaintiff was again prescribed Neurontin, and he continued to take Flexeril and Elavil. He was also was permitted to use a cane. His request for Soma (which had previously been denied) and his request to discontinue Felxeril were granted. Adjustments were also made to Plaintiff's medications for high blood pressure.

In April, 2004, an MRI was ordered for Plaintiff, and he was referred by Augustin for an orthopedic consultation. Plaintiff received a new back brace and cane the following month. The MRI indicated degenerative changes at L5-S1 and a disc protrusion in May of 2004.

Plaintiff was seen by Dr. Robert Lifeso ("Lifeso") at the Erie County Medical Center ("ECMC") in June, 2004. Lifeso requested that the MRI and the January, 2004 x-ray be provided to him in order to develop a treatment program for Plaintiff's back pain. In addition, staff at Livingston provided Plaintiff's medical records from the Ontario County Jail on June 25, 2004. On July 12, 2004, Plaintiff was transferred to Groveland. Groveland Correctional Facility

Upon Plaintiff's arrival at Groveland, he underwent a routine health screening and orientation. The records from Groveland indicate that he was treated for high blood pressure with hydrochlorothiazide ("HCTZ") and Vasotect, and continued to take Neurontin and Elavil for his back problems. On July 12, 2004, Plaintiff was issued a cane, a back brace, and a temporary lower bunk permit through August 18, 2004.

On July 26, 2004, Plaintiff was scheduled for another orthopedic consultation at ECMC, however, Plaintiff advised the consultant that he preferred conservative management of his condition in lieu of surgery. As a result, Plaintiff was prescribed nonsteroidal anti-inflammatory drugs, physical therapy, and continued on Soma.

On August 4, 2004, Plaintiff appeared at sick-call and requested an elevator permit, and his request was denied at that time. On August 13, 2004 Plaintiff was seen by DePerio, who re-issued him a lower bunk permit, a cane, back brace, and prescribed an analgesic balm and hot compresses for Plaintiff's lower back pain. During that appointment, DePerio refused Plaintiff's' request for a Soma prescription. Following those two appointments, Plaintiff filed a grievance regarding his medical treatment at Groveland. The Inmate Grievance Program Superintendent denied Plaintiff's grievance on the grounds that Plaintiff's medical condition did not require an elevator permit and because Soma was no longer an approved non-formulary medication.

Plaintiff again appeared at sick-call at Groveland on August 25 and August 26, 2004. During the first appointment Plaintiff was issued a lower bunk permit, a cane, and a back brace. During the second appointment the following day, Plaintiff told the nurse his back pain was "too persistent to live" and requested back surgery. Augustin Decl., Ex. A, ECF No. 81, at 260. He was scheduled for an evaluation by a physician's assistant.

On August 30, 2004, Plaintiff declined physical therapy treatment due to his level of pain, and stated that he would attempt to get surgical intervention. Id. at 259. That day, Plaintiff wrote a letter addressed to "Medical Records" indicating that he wanted surgery because he believed his back pain was worsening. Id. at 258. Felker, the Nurse Administrator at Groveland, responded, stating that his request to return to the orthopedic clinic would be discussed at a subsequent appointment.

In September, 2004, Plaintiff continued to receive his prescribed medications. Plaintiff saw DePerio again on September 11, 2004, during which time DePerio noted that Plaintiff had requested surgery for his back. As a result, DePerio referred Plaintiff an orthopedic specialist at ECMC for a follow-up orthopedic consultation for surgical consideration. On October 25, 2004, Plaintiff was seen by orthopedic consultant Dr. Daniel Downs ("Downs"), at the Wende Regional Medical Unit.*fn4 Downs increased Plaintiff's pain medication, restrictions on activities, and physical therapy, and ordered a discogram.

Plaintiff was seen several times by medical staff at Groveland between October 25, 2004, and January 11, 2005. During those examinations, Plaintiff requested a prescription for Soma, but his request was not approved. During this time, Plaintiff continued to take Neurontin, Motrin, and Elavil. Plaintiff again requested, and was finally granted, an elevator permit in November, 2004, at Felker's recommendation. Felker's notes dated November 5, 2004, read: "Has 2 classes on 2nd floor of Peterson bldg. Will be issued a permit to use elevator on Tues/Thurs x 3 months. Hopefully he will be recovered from surgery by then and will not require a renewal." Augustin Decl., Ex. A at 239.

Plaintiff received a discogram on December 17, 2004 at Wyoming County Community Hospital. Following that procedure, Downs discussed the results of the discogram with Plaintiff on January 11, 2005, and ordered surgical intervention for Plaintiff.

Plaintiff underwent spinal fusion back surgery at Wyoming County Community Hospital on March 4, 2005, after which he was returned to the Groveland infirmary and then released to the general population one week later, on March 11, 2005.

On March 15, 2005, Plaintiff reported to medical staff that he fell while he was in the infirmary approximately six days prior. X-rays taken the ...

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