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Matthew Gabriel, Both Individually and As Administrator of the Estate of Michael Dicamillo v. County of Herkimer; Christopher Farber; Thomas Mcgrail

September 6, 2012

MATTHEW GABRIEL, BOTH INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MICHAEL DICAMILLO, PLAINTIFF,
v.
COUNTY OF HERKIMER; CHRISTOPHER FARBER; THOMAS MCGRAIL;
L. T. CODDINGTON;
CHARLENE MACRI; REGISTERED NURSE SHANNON URTZ; REGISTERED NURSE CHRIS FULLEM;
CORRECTIONS OFFICER MICHAEL ORTLIEB; AND CORRECTIONS OFFICER JOAN SMITH; DEFENDANTS.
COUNTY OF HERKIMER AND CHRISTOPHER FARBER, THIRD-PARTY PLAINTIFFS,
v.
LITTLE FALLS HOSPITAL, THIRD-PARTY DEFENDANT,



The opinion of the court was delivered by: David N. Hurd United States District Judge

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 -FACTUAL BACKGROUND.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 -

Friday, June 23--Monday, June 26, 2006.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 -Tuesday, June 27, 2006. . . . . . . . . . - 9 -Wednesday, June 28, 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 11 -Thursday, June 29, 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 12 -Friday, June 30, 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 19 -New York State Commission of Correction Report. . . . . . . . . . . . . . . . . . . . . . . . - 22 -PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -LEGAL STANDARD-SUMMARY JUDGMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 -

Hospital Defendants' Motion for Summary Judgment. . . . . . . . . . . . . . . . . . . . . . - 26 -

Claims against N.P. Macri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 -

Deliberate Indifference: Federal Claim. . . . . . . . . . . . . . . . . . . . . . - 26 -Punitive Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 32 -Third-Party Complaint against the Hospital.. . . . . . . . . . . . . . . . . . . . . . . . - 32 -County Defendants' Motion for Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . - 33 -

R.N. Urtz. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -Deliberate Indifference: Federal Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -

R.N. Fullem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 35 -C.O. Ortlieb and C.O. Smith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 -Herkimer County.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 39 -Personal Involvement of Sheriff Farber, Cpt. McGrail,

and Lt. Coddington. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 44 -Qualified Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 48 -Violation of Due Process: Federal Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 49 -Wrongful Death: State Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 51 -CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 53 -

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Matthew Gabriel ("plaintiff" or "Gabriel"), brought this action both individually and as Administrator of the Estate of Michael DiCamillo ("DiCamillo" or "decedent") against defendants County of Herkimer (the "County"); Christopher Farber ("Sheriff Farber"); Thomas McGrail ("Cpt. McGrail"); L. T. Coddington ("Lt. Coddington"); Registered Nurse Shannon Urtz ("R.N. Urtz"); Registered Nurse Chris Fullem ("R.N. Fullem"); Corrections Officer Michael Ortlieb ("C.O. Ortlieb"); Corrections Officer Joan Smith ("C.O. Smith") (collectively "County defendants"); and Nurse Practitioner Charlene Macri ("N.P. Macri"). Plaintiff asserts a federal law claim on behalf of the Estate for deliberate indifference to DiCamillo's serious medical needs under 42 U.S.C. § 1983; a federal law due process claim brought by plaintiff individually under 42 U.S.C. § 1983; and a state law wrongful death claim on behalf of the Estate.

Currently pending are two motions for summary judgment brought by defendants. Oral argument was heard onMarch 26, 2012, in Utica, New York. Decision was reserved.

II. FACTUAL BACKGROUND

Unless otherwise noted, the following facts are viewed in the light most favorable to plaintiff, the non-movant, as must be done on a summary judgment motion.

In 2006 and at all relevant times, the County and Sheriff Farber contracted with Little Falls Hospital (the "hospital") to provide medical services at the Herkimer County Jail (the "jail"). See Perkins Aff., July 15, 2011, Ex. W, Dkt. No. 123--27 ("Agreement"). Pursuant to the Agreement, the hospital provided the services of N.P. Macri and her collaborating physician, Dr. Luke Handy ("Dr. Handy"). As part of her duties under the Agreement, N.P.

Macri visited the jail on Thursdays from approximately 11 a.m. to 2 p.m. to evaluate new detainees and provide medical treatment to all prisoners.

A. Friday, June 23--Monday, June 26, 2006

On Friday, June 23, 2006, DiCamillo was arrested by the Herkimer Police Department and charged with Resisting Arrest.*fn1 He was arraigned in Herkimer Village Court and remanded to the jail that same day.

DiCamillo arrived at the jail booking office with a box full of numerous, loose medications. During intake, he advised jail staff that he suffered from alcohol dependency issues, drug addiction, mental health problems, high blood pressure, and heart problems, and was receiving treatment for back and heart illnesses. He identified Dr. Sperling as his primary care physician and Dr. Zoppa as his psychiatrist. His medical history form indicated he was on a variety of prescription medications including anti-depressants, pain killers, and muscle relaxers. See Keach Affirm., Nov. 7, 2011, Ex. 49, Dkt. No. 137--24 ("Medical History Form"). The physician and pharmacy identified by DiCamillo were contacted and information regarding his various prescriptions was obtained. DiCamillo was prescribed the following medications: Clonazepam 2mg, four times a day; Toprol XL 100mg, once a day; Temazepam 30mg, at bedtime; Avinza 120mg, once a day; Cyclobenzaprine (Flexeril) 5mg, twice a day; Effexor XR 150 mg, four times a day; Nortriptyline 50mg, at bedtime; Buspirone 10mg, three times a day; Aciphex 20mg, once a day; Topamax 100mg, twice a day; Skelaxin 800mg, twice a day; Lactulose 10g, twice a day; and Albuterol inhaler, as needed.*fn2

That same evening, R.N. Urtz conducted an initial intake and performed a nursing assessment. Her assessment form indicated DiCamillo had a past history of depression, anxiety, tachycardia, angina, mitral valve prolapse, high blood pressure, degenerative back disease, and sciatic nerve problems. Id., Ex. 48, Dkt. No. 137--23 ("Inmate Nursing Assessment"). DiCamillo informed her he was also suffering from "brain atrophy" due to his past alcohol and drug abuse, but was drug and alcohol abuse free for ten years. Id. R.N. Urtz reviewed DiCamillo's entire list of medications, which consisted of approximately thirteen prescription drugs including three narcotics.*fn3 She contends DiCamillo confirmed he was currently taking each of the drugs as prescribed, the only exception being Zyrtec, which DiCamillo indicated he only took seasonally.*fn4

Plaintiff disputes that R.N. Urtz independently confirmed all of the medications with DiCamillo, noting that the medication list is in a different handwriting than R.N. Urtz's other notes; medical records from Dr. Sperling were not requested until Tuesday, June 27, 2006-three days later; and that it was likely apparent DiCamillo was not compliant with a medication regimen since he arrived at the jail with a shoebox of loose medicines.

After R.N. Urtz's assessment and pursuant to jail policy, she called N.P. Macri to provide N.P. Macri with her nursing assessment, review DiCamillo's list of medications, and receive N.P. Macri's orders regarding his prescriptions.*fn5 R.N. Urtz contends she advised N.P. Macri about DiCamillo's physical and mental health issues, as well as his entire list of prescription medications that were confirmed with DiCamillo, his physician, and his pharmacy. N.P. Macri responded "Oh my God, you're kidding me" to the list of medications. See Keach Affirm., Nov. 7, 2011, Ex. 26 at 92:18--20, Dkt. No. 137--1 ("Macri Tr.").

N.P. Macri advised R.N. Urtz to order and dispense the medications to DiCamillo if they were all confirmed. N.P. Macri noted that if DiCamillo had been taking the drugs in the prescribed amounts for many years as he reported, she did not want to change his medications in any way that might cause a problem for him. On N.P. Macri's orders, all medications except for the narcotics were ordered that day from the jail's drug supplier. Pursuant to jail policy, N.P. Macri contacted the supplier directly for the narcotics. N.P. Macri confirmed with R.N. Urtz that she ordered an emergency five day supply of the narcotics by telephone for DiCamillo, which would be enough medication to carry him through Thursday of the following week (June 29, 2006) when N.P. Macri would be at the facility and would be able to order additional prescriptions for the narcotics in the event DiCamillo was still incarcerated. Following her shift on June 23, 2006, R.N. Urtz left for an out-of-state vacation and did not return to the jail until July 10, 2006. There was no nursing coverage at the jail from Saturday, June 24--Wednesday, June 28, 2006.

R.N. Urtz testified that after she left the jail on Thursday, June 23, 2006, the only involvement she had with DiCamillo's case occurred that same evening. She was contacted by telephone by a C.O. after DiCamillo's prescriptions were delivered to the jail. She directed the C.O. as to what medications could be given to DiCamillo that night, and which medications would have to wait and be given to him as prescribed beginning the next morning.

According to plaintiff, a nurse at the jail was required to verify that the medications received from the pharmacy matched what was ordered. Plaintiff alleges this was not done in DiCamillo's case, and as a result, his prescription for Avinza (morphine) was improperly administered. DiCamillo was prescribed one 120 mg pill of Avinza per day. N.P. Macri contends she ordered the Avinza in 120 mg pills, which for a five day emergency supply would have resulted in the delivery of five-120 mg pills. The evidence establishes that the pharmacy instead delivered the Avinza in 30 mg pills, with directions to dispense the medication in four capsules every day (for a total of 120 mg per day). See Keach Affirm., Nov. 7, 2011, Ex. 61, Dkt. No. 138--11 ("Narcotics List"); Ex. 71, Dkt. No. 138--21 ("Medication Blister Packs"). Accordingly, the Avinza package delivered to the jail contained twenty-30 mg pills. This is consistent with administering four-30 mg pills, once a day, for the five days for which N.P. Macri ordered the prescription.

Plaintiff alleges that the change in packaging (30 mg pills instead of 120 mg pills) was not noticed by jail staff, and as a result, instead of receiving one 120 mg pill per day, DiCamillo received one 30 mg pill for the first three days he was at the jail. This is consistent with the records. The Narcotics List indicates that on June 24, 25, and 26, DiCamillo only received one-30 mg pill of Avinza per day.

Plaintiff contends that DiCamillo made numerous attempts to let jail staff know that his medications were wrong. Specifically, on June 24 DiCamillo submitted a sick slip to jail staff stating "Where is my Avinza." See Keach Affirm., Nov. 7, 2011, Ex. 67, Dkt. No. 138--17 ("sick slips"). The sick slip also mentioned his increased back pain, due to the fight he was involved in prior to his arrest, and requested a cane for walking. On June 25, DiCamillo submitted another sick slip advising that he was not taking his proper medications and reiterating his request for a cane. Id.

B. Tuesday, June 27, 2006

DiCamillo again requested a cane on Tuesday. Lt. Coddington advised that a cane would be permitted if deemed medically necessary, but that it presented a security issue. As a result, an inmate using a cane must be confined to a small block with less inmates than the 3 South block where DiCamillo was being housed. Lt. Coddington directed that N.P. Macri be contacted regarding DiCamillo's need for a cane, and further directed that DiCamillo be moved to a smaller block in anticipation that he might be approved for the cane. After DiCamillo was advised of this, he stated that he did not need a cane and would not move cell blocks.

The record establishes that the mistake with the Avinza was noticed on Tuesday, but is unclear who noticed the mistake and whether it was brought to the attention of a nurse.

C.O. Broadbent, cross-designated as a medical officer,*fn6 was working on Tuesday. She testified that she believed she noticed the mistake and brought it to the attention of the nurse on duty. She did not recall which nurse it was, or whether she communicated this information in writing or orally. R.N. Urtz was out on vacation at this time, and records establish that R.N. Fullem did not work on Tuesday. It is undisputed that the mistake was not brought to the attention of N.P. Macri nor Dr. Handy. Records establish that beginning on Tuesday, jail staff abruptly increased DiCamillo's Avinza dose to the proper dosage of four-30mg pills, for a total of 120 mg a day. This was done without the oversight of a nurse or physician.

Plaintiff alleges additional inconsistencies with the administration of DiCamillo's prescriptions on Tuesday, June 27. For example, the Security Log indicates that DiCamillo was administered medication only two times on June 27: at 8:30 a.m. and at 1:15 p.m.. See Keach Affirm., Nov. 7, 2011, Ex. 72, Dkt. No. 138--22 ("Security Log"). The Medication Administration Record, however, indicates DiCamillo was also administered Busparone and Temazapam at 11:30 p.m., but was not given the 11:30 p.m. dose of Nortriptyline as prescribed. See id., Ex. 60, Dkt. No. 138--10 ("Medication Administration Record").*fn7

The Narcotics List also indicates DiCamillo was administered an 8:30 p.m. dose of Clonazepam but this was not documented in the Security Log or the Medication Administration Record.

Testimony from other inmates at the jail indicates that DiCamillo complained to C.O.s, nurses, and other inmates that he was not being given the right medication and/or that he was being given too much of it. Specifically, Matt Reel, an inmate housed with DiCamillo, testified that DiCamillo complained to R.N. Fullem three days before his death that jail staff were giving him the wrong medication or too much medication. See, e.g., id., Ex. 33 at 19--21, Dkt. No. 137--8 ("Reel Tr."). Reel contends that R.N. Fullem advised DiCamillo that he would check on his prescriptions. According to Reel, DiCamillo asked jail staff to see his outside nurse or doctor but was advised it was not possible and that R.N. Fullem was the nurse on duty.

C. Wednesday, June 28, 2006

Plaintiff alleges that DiCamillo started showing signs of drug intoxication on Wednesday, June 28, one day after his Avinza was abruptly increased. Those symptoms included sweating profusely, confusion, sudden falling, being unable to stand on his own, and extreme lethargy. C.O. Andrew George observed DiCamillo sitting on the floor, sweating profusely, with his eyes almost shut. See id., Ex. 19 at 24:10--14, Dkt. No. 136--19 ("George Tr."); Murphy Aff., July 15, 2011, Ex. D at 9, Dkt. No. 125--5 ("Tower Log"). C.O. George also later told investigators that DiCamillo looked like someone poured a cup of water on his head; that it was hot that day; and that DiCamillo "looked out of it." George Tr. at 55:16--56:2. When C.O. George asked DiCamillo if he was okay, DiCamillo responded "I'm all right." Id. at 24:10--14. Approximately three and a half hours later, at 3:30 p.m., C.O. George observed DiCamillo leave the jail for a court appearance. Id. at 57:9--18. According to C.O. George, DiCamillo appeared to be walking fine at that point. Id.

Plaintiff also alleges DiCamillo was improperly administered his prescriptions on June 28. Specifically, the Narcotics List indicates DiCamillo was given a 4:30 p.m. dose of Clonazepam by Sergeant James Drake, but the Medication Administration Record indicates that dose was not administered. The Medication Administration Record for June 28 also indicates that DiCamillo was not administered his 4:30 p.m. doses of Effexor and Busparone.

D. Thursday, June 29, 2006

On Thursday, June 29, 2006, between approximately 8:00--8:30 a.m., C.O. Sydney Renshaw observed DiCamillo crawling out of his cell trying to get up off the floor. C.O. Rensaw inquired with DiCamillo if he was okay, to which DiCamillo responded, yes he just wanted a drink of water. C.O. Renshaw helped DiCamillo sit on a bench and got him a cup of water. DiCamillo advised jail staff that he had a hard time getting up, particularly in the morning due to his medical condition, and that he did not want to take a chance of falling and that was why he was crawling out of his cell. C.O. Renshaw contacted the medical unit to request a medical check of DiCamillo. C.O. Renshaw testified that at this time, DiCamillo was coherent, not slurring his speech, and his eyes were open.

R.N. Fullem received the call from C.O. Renshaw and arrived to check on DiCamillo. R.N. Fullem had previously been informed that DiCamillo was on a large number of medications. R.N. Fullem took DiCamillo's vital signs which were normal. DiCamillo stated that it takes him awhile to get going in the morning, that he had extensive back problems, and that this was normal for him. R.N. Fullem testified that DiCamillo was coherent, able to answer his questions, and not lethargic, but was sweating a little bit. R.N. Fullem did not document this interaction with DiCamillo as required by jail policies and professional licensing standards.

Meanwhile, N.P. Macri arrived at the jail at approximately 10 a.m.. At some point that morning, she reviewed DiCamillo's medical file. R.N. Fullem testified that he advised N.P. Macri that C.O. Renshaw observed DiCamillo crawling across the floor earlier in the morning and he had difficulty getting up, to which N.P. Macri inquired about DiCamillo's vital signs.

R.N. Fullem explained his assessment to N.P. Macri, who informed R.N. Fullem that DiCamillo would be coming to the medical unit for an initial assessment.

At some point after N.P. Macri's arrival at the jail, C.O. Gary Hadsell (the medical officer on duty) and C.O. Brian Harrod entered the 3 South block (where DiCamillo was housed) to bring inmates down for medical visits. C.O. Hadsell attempted to summon DiCamillo, who said he was having a hard time moving and would not be able to go down to the medical unit. DiCamillo advised C.O. Hadsell that it took him awhile-a half hour or forty minutes-to get his legs going in the morning, and that this was an everyday thing for him. Meanwhile, C.O. Harrod brought inmate Jamie Knapp to the medical unit and advised R.N. Fullem of DiCamillo's condition. R.N. Fullem told C.O. Harrod to assist DiCamillo so he could get to the medical unit.

When C.O. Harrod returned to DiCamillo's block, he and C.O. Hadsell attempted to stand DiCamillo up with no success. They offered him a wheelchair but he refused. He stated that if he could not get to the medical unit on his own without the use of a wheelchair, he was not going. C.O. Hadsell testified that DiCamillo did not say "I wouldn't go down," he said "I can't go down" to the medical unit. See Keach Affirm., Nov. 7, 2011, Ex. 20 at 32:21--22, Dkt. No. 136--20 ("Hadsell Tr."). He also testified that he never told anyone that DiCamillo refused to see the nurse. C.O. Harrod phoned R.N. Fullem to advise DiCamillo would not be coming down.

According to R.N. Fullem, the reason for DiCamillo's inability to get to the medical unit was relayed to him in the presence of N.P. Macri. C.O. Harrod testified that he did not speak with N.P. Macri directly and did not know whether she knew that DiCamillo was having trouble walking or getting up. However, C.O. Harrod later testified that he advised R.N. Fullem of this information in the presence of N.P. Macri.

R.N. Fullem further testified that DiCamillo's cell was approximately sixty to seventy feet away from the medical unit, and that he suggested to N.P. Macri that they go to see him in his cell, to which N.P. Macri responded that she would see him the following Thursday. Despite being aware of DiCamillo's inability to ambulate to the medical unit, N.P. Macri documented his inability to see her as a "refusal." Jail policy dictates that if an inmate refuses medical treatment, they must fill out a refusal form.*fn8 DiCamillo was never given a refusal slip to sign and N.P. Macri testified that she did not know why she did not make him sign a refusal slip.

N.P. Macri testified that she was never advised that DiCamillo could not get up and was unable to walk. She also denies that R.N. Fullem told her that he had observed DiCamillo earlier in the day having difficulty getting up. She testified that around the time of these events, she was in the medical unit signing charts and a C.O. was speaking to R.N. Fullem. According to her, she was told that DiCamillo refused to come down. Then someone in the room made the comment, "We can make him come down," to which she replied, "No, no, no. That's okay. He can refuse." Macri Tr. at 279:10--16. N.P. Macri then left the jail at some point after 11:00 a.m..

At 11:08 a.m., a phone called was placed by a male C.O. to R.N. Fullem advising that DiCamillo "ain't getting up." Keach Affirm., Nov. 7, 2011, Ex. 123 at 55:4, Dkt. No. 140--23 ("Tr. Telephone Calls"). The male C.O. advised that DiCamillo was "farther on the floor now than he was when I left." Id. 55:14--15. R.N. Fullem advised that N.P. Macri "wants to review his meds and possibly discontinue them because he's so groggy." Id. 55:19--21. Another phone call was placed by a male C.O. to R.N. Fullem at 11:41 a.m. stating "Chris, what are they going to do about DiCamillo? He's right out of it. He's right on the floor up here." Id. at 59:3--5, Dkt. No. 140--23. R.N. Fullem advised he would check on DiCamillo, to which the male C.O. responded, "There's something wrong. He ain't right." Id. 59:7--8.

When R.N. Fullem arrived to check on DiCamillo at 11:54 a.m., DiCamillo was sitting on the floor of his cell.*fn9 R.N. Fullem testified that DiCamillo's vitals were normal, he was alert and oriented, and answered his questions appropriately. Following that visit, R.N. Fullem filled out a nursing note detailing DiCamillo's vital signs and current state.

At 11:58 a.m., R.N. Fullem contacted Eckerd pharmacy to confirm DiCamillo's medications. The audio recording of that call indicates R.N. Fullem advised the pharmacist he was a nurse from the jail and stated, "I'm just trying to verify some meds on a huge guy I got over here. It says they were verified, but it seems like he's on an awful lot." Id. 61:2--5.

After the pharmacist listed DiCamillo's prescribed medications, she stated "He's on so much stuff and he really does take two muscle relaxants and the whole bit," to which R.N. Fullem responded "Unbelievable" and the pharmacist stated "Yep. It's unreal." Id. 63:20--24. R.N. Fullem testified he made the call because DiCamillo's medications were numerous, and because he was concerned they may not have been correctly transcribed. The pharmacist advised of two medications prescribed to DiCamillo-Paxil and Nexium- which the jail did not order nor administer to DiCamillo. Despite this discrepancy, R.N. Fullem did not make any further inquiry.

At 1:45 p.m., recreation time was announced. All inmates went except for DiCamillo. R.N. Fullem testified that he checked on DiCamillo for a third time at 1:45 p.m. because he knew there would not be any medical coverage at the jail for the next twenty four or forty eight hours, or possibly longer because there was no full-time nurse employed by the jail. According to R.N. Fullem, DiCamillo was again alert and oriented, his vital signs were good, and DiCamillo advised that his present state was "normal for him." Again, R.N. Fullem failed to document the interaction as required by jail policies and professional licensing standards.

R.N. Fullem testified that at no time during his three interactions with DiCamillo on June 29 did DiCamillo complain to him about his medications. Plaintiff disputes this and contends inmate Matt Reel heard DiCamillo complain to R.N. Fullem that he was receiving either the wrong medication or too much medication, to which R.N. Fullem responded that he would check to see whether his medications were correct. R.N. Fullem testified that he called the pharmacy to confirm DiCamillo's medications because of the extent of the medications coupled with what the C.O.s had reported to him regarding DiCamillo's inability to get off the floor. Based on this, R.N. Fullem testified that he thought that maybe something was transcribed wrong, so he called the pharmacy to double check just to be on the safe side. R.N. Fullem also testified that on June 29, he reviewed one of DiCamillo's sick slips which stated he was not receiving the right medications. Finally, R.N. Fullem was aware that N.P. Macri planned on reviewing DiCamillo's medications and possibly decreasing or discontinuing some of them because he was "so groggy." Telephone Tr. 55:19--21.

At 2:58 p.m., C.O. Harrod telephoned R.N. Fullem. C.O. Harrod advised that an inmate was released, and stated "That's one good thing. If we can get rid of the other dink upstairs, we'll be all set." Id. 66:5--9. R.N. Fullem replied, "I know it." Id. 66:10. C.O. Harrod asked R.N. Fullem "What'd you go up there for? What's his problem now?" Id. 66: 11--12. It is clear from the remainder of the conversation they were referring to DiCamillo. R.N. Fullem advised that he recently checked on DiCamillo, who had relayed that his body was challenged. C.O. Harrod then said that DiCamillo stated "I need help" and that he and C.O. Hadsell tried to get DiCamillo up, but that they were doing all the work, and still could not stand him up. Id. 67:3--4. R.N. Fullem responded, "I mean, that's just manipulation, you know, I mean, because he sure the hell wasn't like this when they arrested him. Id. 67:7--9.*fn10

R.N. Fullem advised that he completed a Med 6 form*fn11 and copied DiCamillo's medication sheets if "by some remote chance" he had to go to the hospital. Id. 67:14--17. He then stated that even if DiCamillo went to the hospital, all they would do is "put a liter of fluid in him and send him back." Id. 67:17--19. He further explained that DiCamillo was alert, oriented, and talking.

Before leaving the jail at approximately 3:00--4:00 p.m., R.N. Fullem left the completed Med 6 form in the event DiCamillo needed to go to the hospital. The form noted DiCamillo's chief symptoms as "lethargy, altered level of consciousness." R.N. Fullem testified that before leaving the jail, he told the people at the front desk to send DiCamillo to the hospital if he needed to go.

At 4:24 p.m., C.O. Jeff Fahey called Sergeant James Drake to advise that DiCamillo would not respond to have his pulse taken. Id. 69:1--2. Sergeant Drake stated that R.N. Fullem informed him DiCamillo was fine.*fn12 C.O. Fahey told Sergeant Drake that DiCamillo was positioned against the wall where he could not breath and that his head was pressed against the middle of his chest. Id. 69:12--14. A subsequent phone call advised that DiCamillo had not eaten all day.

Plaintiff also alleges there are inconsistencies regarding when DiCamillo was administered medication on Thursday, June 29. According to the Medication Administration Record, he was administered medication four times on that date, while the Security Log reflects he was administered medication five times. While the hospital's Medication Administration Record (exhibit 59) documents four occurrences, the jail's Medication Administration Record (exhibit 60) indicates medication was administered to DiCamillo a fifth time at 11:30 p.m. by the initials "JF" (presumably C.O. Jeff Fahey). Plaintiff alleges C.O.s did not initial the jail's Medication Administration Record (exhibit 60) as required until after DiCamillo's death on Friday, June 30.

After his shift ended on the afternoon of Thursday, June 29, R.N. Fullem left the jail and had no further contact ...


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