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Mark Angel Pagan v. Correctional Medical Services and the Citizens' Policy and Complaint

June 6, 2012

MARK ANGEL PAGAN, PLAINTIFF,
v.
CORRECTIONAL MEDICAL SERVICES AND THE CITIZENS' POLICY AND COMPLAINT REVIEW COUNCIL; AND DOMINICK ORSINO, JOSEPH RYAN, EDWARD KISTNER, TOM ROOME, BRIAN O'DONOHUE, TERRY HANSON, MARY DELGADO, OLADAYO KEHINDE, CARMAN BURGOS, AND FRANCES SULLIVAN, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



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

OPINION AND ORDER

Pro se plaintiff Mark Angel Pagan brings this suit pursuant to 42 U.S.C. § 1983 against twelve defendants whom he alleges violated his constitutional rights while he was incarcerated at the Orange County Correctional Facility ("OCCF"). Specifically, he claims that the defendants deprived him of his Eighth Amendment right to medical treatment by rejecting his requests for surgery on his left knee.

Mr. Pagan has named two organizations and ten individuals as defendants: (1) Correctional Medical Services ("CMS"); (2) Corrections Administrator Dominick Orsino; (3) Administrative Captain Joseph Ryan; (4) Grievance Coordinator Sergeant Edward Kistner; (5) Health Services Administrator Tom Roome; (6) former Health Services Administrator Brian O'Donohue (sued here as Brian O'Donnell); (7) facility Medical Director Terry Hanson; (8) former facility Medical Director Mary Delgado; (9) Dr. Oladayo Kehinde (originally sued as a John Doe); (10) nurse practitioner Carman Burgos (originally sued as a Jane Doe); (11) the Citizens' Policy and Complaint Review Council ("CPCRC"); and, (12) CPCRC's Chair Frances Sullivan. Second Am. Compl. at 2. Mr. Pagan sues each of the natural person defendants in both their individual and official capacities.

Six motions are before the Court. First, three of the OCCF defendants-Mr. O'Donohue, Ms. Delgado, and Dr. Kehinde-move for summary judgment on the ground that all of Mr. Pagan's claims against them are barred by the statute of limitations. Doc. 75. Second, the CPCRC, which denied appeals of Mr. Pagan's grievances, and its Chair Frances Sullivan, move to dismiss Mr. Pagan's claims against them on multiple grounds. Doc. 84. Third, Ms. Burgos has filed a motion to vacate default and/or compel acceptance of service of answer. Doc. 78. Fourth, Mr. Pagan moves to amend to add Dr. Muhammad Shahid and Dr. Marie Chiao. Doc. 100. Fifth, Mr. Pagan moves for discovery sanctions. Doc. 104. Sixth, Mr. Pagan moves for appointment of pro bono counsel. Doc. 114.

I. Mr. Pagan's Factual Allegations

Mr. Pagan was incarcerated at OCCF from September 16, 2004 to May 27, 2005 and again from December 18, 2007 to July 16, 2008. Second Am. Compl. ¶¶ 2, 23.

Mr. Pagan alleges that, by the time he was processed for his first period of incarceration at OCCF, he was already suffering from an injury to his knee. Id. ¶ 1. He claims he received "nothing more than Tylenol . . . and an x-ray for chronic pain and swelling" despite his requests for additional treatment. Id. ¶ 3. Specifically, he alleges that he asked the facility physician- whom he mistakenly identifies as Dr. Kehinde*fn1 -to let him visit an orthopedic specialist to examine his knee, to no avail. Id. ¶ 4.

Frustrated with what he took to be inadequate medical treatment, on March 13, 2005 Mr. Pagan filed a grievance (hereinafter "First Grievance") against the facility staff. Id. ¶ 5.

Mr. Kistner, the Grievance Coordinator, denied Mr. Pagan's grievance. Id. ¶ 7. Mr. Pagan appealed the denial to Mr. Orsino, who also denied the appeal. Id. Mr. Pagan appealed again, this time to the Citizens' Policy and Complaint Review Council. Id. Ms. Sullivan, on behalf of the CPCRC, denied the appeal. Id.

Mr. Pagan alleges that Mr. Ryan, OCCF's Administrative Captain, responded to the grievance informally as well, telling Mr. Pagan in person that any surgery on his knee would have to wait until he was transferred to another facility. Id. ¶ 6. Mr. Pagan also alleges that the investigation of the First Grievance revealed that Mr. Ryan had personally cancelled scheduled consultations with an orthopedic specialist. Id. ¶ 8.

On May 27, 2005, Mr. Pagan was transferred out of OCCF. Id. ¶ 10. Between that date and December 18, 2007, a period of approximately two and one half years, Mr. Pagan was incarcerated briefly at the Downstate Correctional Facility and then at greater length at the Elmira Correctional Facility and the Attica Correctional Facility. See id. ¶¶ 10-22. At Elmira, Mr. Pagan alleges that he saw an orthopedic specialist and received an MRI, which showed that his left knee was significantly injured. Id. ¶¶ 14-15. At Attica, he alleges that he received physical therapy and was recommended for an unspecified "intervention." Id. ¶¶ 21-22.

Mr. Pagan then returned to OCCF and alleges that he asked to be seen by an orthopedic specialist and to have his medical records sent to OCCF. Id. ¶¶ 24-26. On February 18, 2008, Mr. Pagan filed a second grievance ("Second Grievance"), claiming that his medical treatment had been inadequate because he had not received the surgery he sought. Id. ¶ 28. As in 2005, Mr. Kistner denied the Second Grievance, and Mr. Orsino and the CPCRC-through Ms. Sullivan-denied the appeals. Id. ¶ 30. Mr. Pagan alleges that, in retaliation for filing for the Second Grievance, Mr. Roome required Mr. Pagan to submit to a mental health evaluation. Id. ¶ 29.

Mr. Pagan admits that, despite denying his Second Grievance, OCCF staff did schedule him for a consultation with orthopedist Marc Appel, who examined him on March 4, 2008. Id. ¶

31. Mr. Pagan has submitted to the Court Dr. Appel's report, which does state that Mr. Pagan requires surgery to his ACL, but describes the surgery as "elective." Appel Report ¶ 5.

In April, Mr. Pagan spoke with Mr. Hanson, the OCCF's medical director, about Dr. Appel's recommendation. Second Am. Compl. ¶ 36. Mr. Pagan alleges that Mr. Hanson told him that, because the surgery he sought was elective, it would not be performed with state funds. Id. ¶ 37.

In May, Mr. Pagan saw Dr. Muhammad Shahid, who recommended a second orthopedic consultation. Id. ¶ 38. Dr. Appel examined Mr. Pagan again on May 13, 2008 and again recommended "[e]lective" surgery. Second Appel Report ¶ 4.

Mr. Pagan mistakenly*fn2 alleges that on May 18, 2008, yet another physician, Dr. Marie Chiao, recommended an offsite consultation for surgery. Second Am. Compl. ¶ 40.

On July 15, 2008, Mr. Pagan filed a new grievance ("Third Grievance"), and the next day he was transferred out of the OCCF. Id. ¶¶ 45-46. As a result, the Third Grievance was not adjudicated.

Mr. Pagan alleges that on January 27, 2009, while incarcerated at another facility, he received the surgery he sought and claims that there was additional damage to his knee that could have been prevented had OCCF staff sent him for surgery earlier. Id. ¶ 50.

II. Discussion

A. Motion for Summary Judgment by Ms. Delgado, Dr. Kehinde, and Mr. O'Donohue

Ms. Delgado, Dr. Kehinde, and Mr. O'Donohue move for summary judgment. They argue that Mr. Pagan's claims against them are barred by the relevant statute of limitations.

Summary judgment is granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, a district court is instructed not to "weigh evidence," but to "resolve all ambiguities and draw all inferences in favor of the non-moving party" so as to ascertain "whether any reasonable trier of fact would have to conclude that the evidence was so strongly in the [movant's] ...


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