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Yusuf Abdur-Rahman, Pro Se v. Duke Terrell

September 25, 2012

YUSUF ABDUR-RAHMAN, PRO SE, PLAINTIFF,
v.
DUKE TERRELL, WARDEN; C. WILLIAMS, A/W OF MEDICAL DEPARTMENT;
H. GEORGY, MEDICAL DIRECTOR; NER R. NEWLAND, MEDICAL DOCTOR ("MD2"); AND THE UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:

MEMORANDUM AND ORDER

Pro se plaintiff Yusuf Abdur-Rahman ("Plaintiff") brought this Bivens action*fn1 alleging that he did not receive adequate medical care while incarcerated in the Metropolitan Detention Center in Brooklyn, New York ("MDC Brooklyn") and the Metropolitan Correction Center in Manhattan, New York ("MCC Manhattan"). Defendants, Warden Duke Terrell, medical providers Williams, Georgy and Newland, and the United States Department of Justice ("DOJ") (collectively "Defendants")*fn2 moved to dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure and, alternatively, summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposed the motion. For the reasons set forth below, Defendants' motion for summary judgment is granted.

BACKGROUND

Plaintiff is currently serving a 101-month prison sentence stemming from a November 16, 2010 conviction in the United States District Court for the Southern District of New York. (Decl. of Seth D. Eichenholtz, Dkt. Entry 98-3 ("Eichenholtz Decl."), Ex. D.) Plaintiff was incarcerated at MCC Manhattan from March 30, 2009 until January 15, 2010. (Defs.' Statement of Undisputed Material Facts, Dkt. Entry 98-2 ("Defs.' 56.1 Stmnt."), ¶ 2; Aff. in Opp'n to Mot. for Summ. J., Dkt. Entry 98-5 ("Pl.'s Opp'n"), ¶ 2.)*fn3 Plaintiff was then transferred to MDC Brooklyn, where he was incarcerated until April 27, 2011. (Defs.' 56.1 Stmnt. ¶ 3; Pl.'s Opp'n ¶ 2.)

Plaintiff asserts that he suffers from AIDS. (See 2d Am. Compl., Dkt. Entry 67, ¶ 1.) On April 13, 2010, Plaintiff allegedly filed a Request for Administrative Remedy ("BP-9") at MDC Brooklyn, complaining that he was not receiving the correct medication to treat his AIDS and his medical providers had not performed any tests to determine his CD4 cell count and viral load count.*fn4 (Defs.' 56.1 Stmnt. ¶ 74; Pl.'s Opp'n Ex. 13.) Plaintiff claims that he did not receive a response to his BP-9. (Defs.' 56.1 Stmnt. ¶ 75; Pl.'s Opp'n ¶ 67.) Plaintiff maintains that he filed a Regional Administrative Remedy Appeal ("BP-10") on May 2, 2010 because he did not receive a response to his BP-9. (See Defs.' 56.1 Stmnt. ¶ 76; Pl.'s Opp'n ¶ 68.) Plaintiff alleges that, on May 21 or May 23, 2010, he filed a Central Office Administrative Remedy Appeal ("BP-11"). (See Eichenholtz Decl. Ex. B., US193; Pl.'s Opp'n Ex. 14.) Defendants assert that there is no record that Plaintiff filed requests for administrative remedies in April and May 2010. (Defs.' 56.1 Stmnt. ¶ 78; Decl. of Kenneth Bork, Dkt. Entry 89 ("Bork Decl."), ¶ 12, Ex. 2.)

On June 16, 2010, Plaintiff submitted a Request for Informal Resolution ("BP-8"), contending that he had been receiving the wrong antiviral medication for his AIDS. (Pl.'s Opp'n Ex. 15.) The same day, one of his medical providers responded, "if you have a problem with your medication [sic] need to sign up for sick call first and you will be placed on call out and discuss it with the clinician. This is not the right way or form. You were seen on 6/14/10 [sic] did you discuss your issue with the physician [sic]." (Id.)

On September 29, 2010, Plaintiff filed a BP-10, again alleging that he was not receiving adequate treatment for his AIDS and wrote that his claim was "sensitive." (See Eichenholtz Decl. Ex. B., US194-95.) More specifically, Plaintiff complained that he was being administered the drug Atripla, even though it was appropriate for patients with HIV-1, but not "full-blown AIDS." (Id.) On October 1, 2010, the Administrative Remedy Coordinator ("ARC") for the Northeast Regional Office rejected Plaintiff's BP-10. (Id. US194.) The notice explained that Plaintiff's BP-10 was rejected because: i) Plaintiff must first file a BP-9 request and receive a response from the warden before filing an appeal through a BP-10; and ii) the issue Plaintiff raised was not sensitive and, therefore, he could not bypass the BP-9 request. (Id.) The notice also informed Plaintiff that he should "file a request or appeal at the appropriate level via regular procedures." (Id.)

On October 5, 2010, Plaintiff filed a BP-11 appealing the ARC's rejection of his BP-10. (Id. US193.) In the BP-11, Plaintiff referenced the May 21, 2010 BP-11 he claimed to have filed and again asserted that he was not receiving the proper medication for his AIDS. (Id.) On November 2, 2010, the ARC from the Central Office rejected the BP-11 because the issue it raised was not sensitive, and instructed Plaintiff to file a request or appeal at the appropriate level. (Id. US192.)

Plaintiff filed another BP-8 on December 30, 2010, asserting that his latest blood tests showed that his immune cells had decreased dramatically, but that the medical staff would not change his medication. (Id. US198; Defs.' 56.1 Stmnt. ¶ 88; Pl.'s Opp'n ¶ 80.) On January 5, 2011, Plaintiff's counselor responded, explaining that Plaintiff was scheduled to be seen by the staff physician at the chronic care clinic and should discuss his concerns with the doctor during that consultation. (Eichenholtz Decl. Ex. B., US198.)

On January 14, 2011, Plaintiff submitted a BP-9, again asserting that he was not receiving proper care for the same reasons stated in his most recent BP-8. (Id. US 197; Defs.' 56.1 Stmnt. ¶ 90; Pl.'s Opp'n ¶ 82.) Plaintiff added, "[o]n January 6, 2011, Dr. Newland ordered the . . . blood tests, and stated that he wouldn't change my medication(s) until these test [sic] were complete, and up to this date, my blood hasn't been drawn for the above necessary test." (Eichenholtz Decl. Ex. B., US197.) On February 2, 2011, Terrell, the MDC Brooklyn warden, responded, "[o]n January 26, 2011, the physician received the results of your viral load test. The physician is awaiting receipt of the results of your genotype test. Accordingly, your request for relief has been granted." (Id. US196.) Terrell also stated that, if Plaintiff was dissatisfied with the response, he could appeal to the Regional Director. (Id.)

On February 14, 2011, Plaintiff filed a BP-10 appealing Terrell's response, again asserting that he was receiving the incorrect medication to treat his AIDS. (Id. US187.) On March 15, 2011, the Regional Director denied Plaintiff's appeal, finding that he was receiving appropriate care in compliance with applicable Clinical Practice Guidelines and Plaintiff continued to have access to sick call for any concerns. (Id. US188.)

On May 2, 2011, Plaintiff filed a BP-11 with the Central Office appealing the denial of his most recent BP-10. (Defs.' 56.1 Stmnt. ¶ 94; Pl.'s Opp'n ¶ 86.) The Central Office rejected the appeal because Plaintiff did not include copies of his BP-9, BP-10, receipts or verified photocopies of the documents. (Bork Decl. ¶ 17, Ex. 2.) Defendants assert that Plaintiff was told that he could resubmit his BP-11 attaching the necessary documents within 15 days. (Id. ¶ 17.) Plaintiff claims that he had affixed the appropriate documentation and did not receive the rejection notice, probably because, at around the same time, he was being transferred to a prison in Lompoc, California. (Pl.'s Opp'n ¶¶ 87-88.) Plaintiff never submitted an additional BP-11 or any other requests for administrative remedies. (Bork Decl. ¶ 18.)

On June 25, 2010, shortly after he filed his first BP-8, Plaintiff brought the instant action, alleging, inter alia, that he was deprived of proper AIDS treatment while in MCC Manhattan and MDC Brooklyn. (See Compl., Dkt. Entry 1.) On September 13, 2010, the court sua sponte dismissed Plaintiff's claims against all defendants in their official capacities, as well as all claims against Assistant United States Attorney Rachel Kovner on absolute immunity grounds and MDC Staff Attorney Nicole McFarland because there was no allegation that she was involved personally in any of the alleged constitutional violations. See Abdur-Rahman v. Kovner, 2010 WL 3715423 (E.D.N.Y. Sept. 13, 2010).

On October 19, 2010, Plaintiff filed an amended complaint against Terrell, Georgy, Ittayem, Newland and the Federal Bureau of Prisons ("BOP"), again asserting that he was being denied proper medication to treat his AIDS. (See Am. Compl., Dkt. Entry 14.) On August 6, 2011, Plaintiff sought leave to file a Second Amended Complaint in order to clarify his claims. (See Mot. for Am. Pleading, Dkt. Entry 55-1.) The Second Amended Complaint also added the DOJ as a defendant, but did not include any claims against Ittayem and the BOP. (See 2d Am. Compl.) ...


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