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Brian Frank v. County of Ontario

July 9, 2012


The opinion of the court was delivered by: David G. Larimer United States District Judge



Plaintiff Brian Frank, a former pretrial detainee at the Ontario County Jail ("Jail"), brought an action in New York state court against the County of Ontario, Phillip C. Povero, Alice Haskins, Terry Toe, Sandy Doe, Debbie Doe, John Does 1-5, Mary Does 1-5, and John Doe Corporation (collectively "the County defendants"), and Benjamin Lankheet, M.D., alleging medical malpractice by Lankheet, and civil rights claims against the County defendants under 42 U.S.C. §§ 1983 and 1985 (Dkt. #1). Defendants removed the action to this Court based on federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441.

At all times relevant to this action, Dr. Lankheet was a physician at the Jail, and Medical Director of Public Health for Ontario County.*fn1 Following discovery, "Debbie Doe" has been identified as Deborah Harter, a Nurse Practitioner employed at the Jail. Plaintiff has conceded that there is no basis for a claim against defendants Alice Haskins and Sandy Doe (who has been identified as Sandy LaFleur), and the claims against those defendants are dismissed.

Although the complaint names "John Does - 5," "Mary Does 1-5," and "Terry Doe" as persons allegedly "involved in denying and/or delaying medical care," plaintiff has not identified those defendants, and the discovery period has long since closed. The Court will therefore dismiss the complaint as against the unnamed "Doe" defendants. Likewise, the complaint is dismissed with regard to "John Doe Corporation."

The County defendants and Lankheet have filed motions for summary judgment dismissing the Plaintiffs' claims (Dkt. #26, #28). For the reasons that follow, the motions for summary judgment are granted, and the complaint is dismissed.


The following facts, taken from the parties' statements of facts and affidavits, are undisputed unless otherwise indicated.*fn2

Plaintiff has an extensive medical history for a multitude of ailments, primarily involving digestive problems and drug abuse, dating back some twenty years, long before the events giving rise to this lawsuit. That history will only be summarized here, with additional details set forth as necessary in the Discussion section below.

Plaintiff was arrested in April 2005, and brought to the Jail, where he was held in pretrial custody. At that time, he was given a health assessment by medical staff at the Jail, pursuant to Jail practice and policy. That assessment, which was based in large part on plaintiff's own statements, indicated that plaintiff reported having been diagnosed with Crohn's disease, and that he had been prescribed certain medications within the past year. See County Defs. Ex. B at 29.

Over the next few weeks, plaintiff was also examined by Jail medical staff, who also took some steps to verify plaintiff's medical history by contacting the offices of physicians who had seen or treated plaintiff prior to his arrest. The information provided by those offices indicated that plaintiff had a history of drug use, and that in general, his test results (most of which centered on plaintiff's complaints of digestive problems) were normal.

In late April 2005, based in part on plaintiff's report of ulcerative colitis, defendant Harter ordered blood tests for plaintiff, which yielded generally normal results. On May 3, 2005, Lankheet conducted a physical examination of plaintiff in response to plaintiff's complaints of abdominal pain and bloody stools. Lankheet found that plaintiff's vital signs and blood test results were inconsistent with a diagnosis of ulcerative colitis, which had been reported by plaintiff. County Defs. Ex. C at 30, Ex. D (EBT Ex. 18).

Lankheet's notes further indicate that he discussed plaintiff's case with two outside gastroenterologists, and that based on their advice and with plaintiff's consent, Lankheet prescribed Prednisone and Asacol, with the understanding that if plaintiff's condition did not improve, he would be referred to an outside specialist.

In a May 3, 2005 entry by Harter in plaintiff's medical file, she also noted that just after Dr. Lankheet had finished his examination of plaintiff on that day, plaintiff stated, "I guess I really screwed myself by trying to get all those pain meds in the past, because now if I go to another doctor and they find that out, I don't know what they will do." Harter said that she then "explained to the patient that more importantly, he's given our staff only bits and pieces and misinformation about his past medical history, caused [sic] greater time lapse for us to obtain verification." County Defs. Ex. B at 37, Ex. D (EBT Ex. 8), Ex. C at 34-35.

Over the following days and weeks, plaintiff continued to complain of various symptoms, in response to which the medical staff performed further examinations and testing. Again, plaintiff's test results, vital signs, and physical appearance were all normal and unremarkable.

Harter's noted from May 17 indicated that plaintiff stated that he had "screwed up" by not following his previous doctor's advice to have surgery, and that he demanded to go to the hospital. Later that day, plaintiff reported that he had vomited blood, but the attending nurse stated that the "blood" resembled tomato sauce, and noted that plaintiff stated he had eaten tomato sauce with meatballs for supper. County Defs. Ex. D, EBT Ex. 17.

More tests, including an abdominal pelvic ultrasound, followed, which continued to yield normal results. Eventually, although the cells from Plaintiff's biopsy were not typical of ulcerative colitis, Lankheet settled on that diagnosis "given the clinical scenario." County Defs. Ex. C at 45. Lankheet determined that the next logical step was to order pelvic and abdominal CT scans, but on May 19, 2005, plaintiff was released from custody and was no longer under Lankheet's care.

After plaintiff's release, he was admitted to F.F. Thompson Hospital in Canandaigua, New York, and during his eleven-day stay there, he was diagnosed with ulcerative colitis exacerbation, cellulitis secondary to PICC line inflection, and probable narcotic dependency. Plaintiff's hospital records indicate that surgery was not indicated, and they also contain notations of a "difficult situation since [patient] is not trustworthy regarding his symptoms ... manipulative to ...

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