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Norman C. Sonberg v. Niagara County Jail

November 10, 2012


The opinion of the court was delivered by: John T. Curtin United States District Judge


Plaintiff brought this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages for the alleged deliberate indifference to his serious medical needs and the deprivation of medical care in violation of the Eighth Amendment to the United States Constitution. Currently pending before the court are the defendants' motions for summary judgment (Items 142, 161).


Plaintiff commenced this action on May 19, 2008 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983 (Item 1). He filed an amended complaint on May 1, 2009 (Item 21) and a motion for leave to file a second amended complaint on November 17, 2009 (Item 43). As there was no opposition to this motion, the motion for leave to file a second amended complaint was granted on January 22, 2010 (Item 49). Answers to the second amended complaint were filed on March 1, 2010 by defendants Hohensee and Aikin (Item 56) and by the remaining defendants (hereafter "the County defendants") on February 26, 2010 (item 55).

Pursuant to a case management order and following the parties' exchange of discovery materials, on December 17, 2010, defendants Hohensee and Aikin moved for summary judgment pursuant to Fed. R. Civ. P. 56 (Item 142). On December 28, 2010, the County defendants filed a motion for summary judgment (Item 161). Defendants assert the following grounds for summary judgment: 1) the plaintiff's failure to exhaust his administrative remedies in accordance with the Prison Litigation Reform Act of 1995; 2) the lack of personal involvement on the part of many of the defendants in plaintiff's medical care; 3) plaintiff's failure to raise a genuine issue of material fact regarding the defendants' deliberate indifference to his medical needs; and 4) the defendants' qualified immunity.

Plaintiff filed his response to the motions for summary judgment on February 7, 2011 (Items 179-232). He asserted that he was "not aware of what had to be done in regards to having to exhaust his remedies" (Item 232). He also stated that he was hospitalized and incapacitated and did not learn of the exhaustion requirement until his transfer to Midstate Correctional Facility in June 2008. Id. Plaintiff stated that he mailed a grievance from Midstate on or about June 26, 2008 and another in October 2009. Id.

On March 22, 2011, defendants Hohensee and Aikin filed a reply in support of their motion (Item 233) and the County defendants filed their reply on March 25, 2011 (Item 235). In an order dated June 22, 2011, the parties consented to the jurisdiction of United States Magistrate Judge H. Kenneth Schroeder for all proceedings in accordance with 28 U.S.C. § 636(c). On October 18, 2012, the case was transferred to the docket of the undersigned (Item 238).

The court has determined that oral argument is unnecessary. For the reasons that follow, defendants' motions for summary judgment are granted and the complaint is dismissed.


Plaintiff was incarcerated at the Niagara County Jail ("NCJ") from February 12, 2007 through December 31, 2007, while awaiting the disposition of criminal charges (Item 142, att. 28). During that time, he was seen by the NCJ Medical Department on 17 occasions and was treated for a number of complaints, including abdominal pain and chronic obstructive pulmonary disease ("COPD")/asthma. Id., ¶ 12.*fn2 On December 31, 2007, plaintiff was released on bail and remained free on bail until he was sentenced on March 14, 2008. Id., ¶ 31. At that time, plaintiff returned to the NCJ and was booked at approximately 4:00 pm. Id. NCJ correctional staff conducted the intake process and completed a suicide screening. Id., ¶ 34. Plaintiff reported multiple medical conditions and medications, but no indications of suicidal intentions, mental illness, or drug withdrawal. Id. The suicide screening resulted in a score of 2. Generally, a score of 8 or more would require notification of a supervisor and institution of constant supervision (Item 142, Exh. J).*fn3

Plaintiff did not request sick call between March 14, 2008 and March 17, 2008 (Item 142, att. 28, ¶ 37). On March 17, 2008, Chris Aikin, N.P., the nurse practitioner at NCJ, reviewed plaintiff's chart, cleared him for over-the-counter medications, and instructed the nursing staff to fax a request to the Veteran's Administration ("VA") to verify plaintiff's medications. Id., ¶ 39. Later that day, plaintiff was seen by Jeremy Johnson, R.N., who took plaintiff's medical history and conducted a physical examination (Item 142, att. 30, ¶ 10). Plaintiff provided a history of hepatitis C, pancreatitis, and chronic obstructive pulmonary disease ("COPD"). He told Mr. Johnson that he was taking Albuterol, Flovent, Azmacort, Zoloft, morphine, valium, aspirin, and colace. Id., ¶ 15. Plaintiff's vital signs were normal and he did not exhibit any signs or symptoms of drug withdrawal. Id., ¶ 18. Plaintiff did not report any suicidal ideations. Id., ¶ 19.

Mr. Aikin stated that, although plaintiff related to the booking officer that he was taking morphine on admission on March 14, 2008, this information was not relayed to the Medical Department (Item 142, att. 28, ¶ 44). Generally, inmates taking opiate medication upon admission are placed on a detoxification protocol. Id. As plaintiff's physical examination on March 17, 2008 did not document withdrawal symptoms, the detoxification protocol was not instituted. Id.

On March 18, 2008, plaintiff was seen by Cindy Quigley, RN, a mental health nurse with the Niagara County Department of Mental Health Services (Item 142, att. 31). She met with plaintiff because of his previous mental health issues, which had been documented during his incarceration in 2007. Id., ¶¶ 12-13. At the time of her evaluation, plaintiff was "awake and coherent" and was "not displaying any symptoms or signs" of drug withdrawal. Id., ¶ 15. Additionally, plaintiff did not complain of withdrawal symptoms, nor did he complain that he was being denied any medical treatment. Id., ¶ 16. It did not appear that plaintiff was in any distress and he specifically denied that he had any intentions of harming himself. Id., ¶¶ 18-19. That same day, Mr. Aikin wrote an order to start plaintiff on the facility's asthma protocol, which included the administration of Albuterol and Qvar (Item 142, att. 28, ¶ 45). Additionally, on March 18, 2008, plaintiff completed a request to be seen by medical personnel. Id., ¶ 47.

On March 19, 2008, in response to plaintiff's request to be seen by the Medical Department, Mr. Aikin went to plaintiff's cell (Item 142, att. 28, ¶ 50). Mr. Aikin found plaintiff on his bed, unresponsive, and with shoelaces wrapped around his neck. Id., ¶ 51. Mr. Aikin called a "Code Red," and several officers responded. They cut the laces from plaintiff's neck and he began to breathe. Id., ¶ 51. Mr. Aikin provided first aid and a neck collar. Plaintiff's vital signs were stable and he was transported to Lockport Memorial Hospital on a back board. Id.

When he was examined at the hospital, plaintiff's vital signs were as follows: blood pressure was 130/64, pulse was 64, respiration was 24, temperature was normal, and pulse oxygen was 100%. A CT scan of plaintiff's cervical spine indicated no acute fracture or subluxation. Plaintiff was discharged that afternoon at 2:25 p.m. (Item 142, Exh. P). He was prescribed Zoloft and was placed on active supervision (Item 142, att. 28, ¶ 52).

On March 19, 2008, Mr. Aikin received plaintiff's records from the VA and was able to verify plaintiff's medications (Item 142, att.129, ¶ 54). He wrote orders for Prilosec, aspirin, colace, and MS Contin, an opiate pain reliever. Id. On March 20, 2008, Mr. Aikin wrote an order for Zoloft, an anti-depressant. Id., ¶55. The dosage of Zoloft was increased by the Mental Health Department on March 20, 2208 and again on March 24, 2008. Id., ¶¶ 56-57.

Dr. James Hohensee stated in an affidavit that, while he treated the plaintiff from approximately 1997 through 2002 as his private physician and again during his incarceration in 2007, Dr. Hohensee had no involvement with the plaintiff's medical care between March 14, 2008 and his transfer to ...

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