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Skyers v. United States

United States District Court, Second Circuit

June 26, 2013



Rebecca S. Tinio, Esq., PREET BHARARA, United States Attorney the New York, NY, Attorneys for Defendants


ROBERT W. SWEET, District Judge.

Defendants the United States of America (the "United States"), Federal Bureau of Prisons ("BOP"), Janice M. Killian ("Killian"), Diane Sommer, M.D. ("Dr. Sommer"), and Dennis Aumick ("Aumick") (collectively, the "Defendants") have moved to dismiss the complaint (the "Complaint") of pro se plaintiff Richard William Skyers ("Skyers" or the "Plaintiff") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

Based upon the conclusions set forth below, the Defendants' motion is granted without prejudice.

I. Prior Proceedings

Plaintiff, currently an inmate at the Federal Correctional Institution ("FCI") in Otisville, New York, filed his pro se Complaint on May 23, 2012. He brings this action against the United States; the BOP; Killian, the former warden of FCI; Dr. Sommer, the clinical director at FCI; and Aumick, a former emergency medical technician and paramedic at FCI. The Complaint alleges that Plaintiff developed a wound on his left hand in January 2010, and that Defendants did not timely treat his condition, resulting in nerve damage and limited use of his hand.

Defendants filed the instant motion to dismiss on November 16, 2012, which Plaintiff opposed on December 14, 2012. The motion was marked fully submitted on January 7, 2013.

II. Background

The following factual background is drawn from the Complaint and from documents referenced in or integral to the Complaint as submitted by the parties. The allegations of the Complaint are accepted as true for the purposes of this motion, see Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002), and do not constitute findings of fact by the Court.

Plaintiff's Allegations as to His Medical Treatment

On January 1, 2010, while residing in the special housing unit ("SHU") in FCI Otisville, Plaintiff noticed a small lesion on his left hand which he reported to the medical staff. (Compl. at Doc. 1, 3 of 58). Plaintiff spoke with Aumick about his hand a few days later. (Id.). Aumick allegedly "took notes and left, " and also "stated that he was busy giving out medication" when Plaintiff asked Aumick to examine him. (Id.). Plaintiff alleges that over the next few days, his hand began to swell and that he suffered pain. (Id.). According to the Plaintiff, despite his numerous complaints, the FCI medical staff, in particular Dr. Sommer, did not examine him and "never came through." (Id.).

According to the Complaint, Plaintiff began receiving antibiotic treatment of Sulfamethoxozole 800 mg/160mg on January 14, 2010. (Id. at 4 of 58). On January 16, 2010, Plaintiff was told that Dr. Sommer had prescribed Acetaminophen with codeine for his pain. (Id.). However, Dr. Sommer still "never once came to the SHU to see [Plaintiff] about [his] hand." (Id.). The following day, Aumick, along with two officers from FCI, took Plaintiff from his cell "into an open area." (Id.). According to the Plaintiff, Aumick cut into the middle of Plaintiff's palm in an attempt to release the "abscess." (Id.). Defendants contend that Aumick was attempting to treat Plaintiff's wound directly. Plaintiff alleges that Aumick then called Dr. Sommer, and Plaintiff was taken to an emergency room at Horton Hospital for further treatment. Id.).

According to the Complaint, the emergency room's medical staff told Plaintiff that prison staff had been giving him "the wrong medication." (Id.). The medical staff of Horton Hospital recommended that Plaintiff see a plastic surgeon at Westchester Medical Center ("Westchester Medical"). (Id.). The Plaintiff underwent surgery and several days of treatment in the local hospital before returning to FCI on January 20, 2010. (Id. at 5 of 58). Over the next few days, Plaintiff received medication twice a day and his bandages were changed throughout his treatment. (Id.).

On January 28, 2010, Plaintiff's hand started to swell again and "got real dark, " and he took notes on "how the dressing changes were being done." (Id.). Plaintiff alleges that he spoke with Defendant Killian to express concern about his treatment. (Id.). On January 30, 2010, Plaintiff was examined and treated by Dr. Sommer for the first time since the injury to his hand. (Id.). Dr. Sommer took the stitches out from Plaintiff's hand and changed his medication to Clindamycin 300 mg. (Id.). After a few days on the new medication, Plaintiff's hand continued to swell and he reported that he was in pain. (Id.).

On February 4, 2010, Plaintiff was taken to Westchester Medical for a follow-up and was admitted. (Id. at 6 of 58). On February 8, 2010, Plaintiff underwent another surgery. (Id.). Plaintiff was then prescribed Vancomycin and Bactoroban Nasal. (Id.). Plaintiff returned to FCI on February 11, 2010 and continued to receive treatment. The Complaint appears to suggest that Plaintiff was not given the proper required medication of Bactoroban over the span of several days. (Id. at 6 of 58 to 7 of 58). On March 4, 2010 he was transferred to the Federal Medical Center ("FMC") at Butner, North Carolina "for shock therapy - aggressive PT/OT." (Id. at 7 of 58). He returned to FCI Otisville in October 2011. (Id.).

Plaintiff's Medical Records

The earliest-dated record indicates that on January 15, 2010, Plaintiff was examined by FCI employee Gerard Travers ("Travers"). (Compl. at Doc. 2-1, 19 of 47). Plaintiff stated that he had an infection in his hand that had begun "1-2 days" earlier and reported that the swelling had increased "over the past few days." (Id.). Travers noted that Plaintiff "appear[ed] to be in no acute distress, " and that upon consultation, Dr. Sommer prescribed the antibiotic Bactrim for Plaintiff. (Id.). The report was co-signed by Dr. Sommer. (Id. at 21 of 47).

The next morning, Travers examined Plaintiff after he again reported that his hand infection had begun only in recent days. (Id. at 24 of 47) (noting onset/duration of "3-5 days"). (Id.). Upon phone consultation, Dr. Sommer prescribed Acetaminophen with codeine for Plaintiff's pain. (Id.). Dr. Sommer also requested that medical staff be called to treat the wound. (Id.). Later that day, Travers examined Plaintiff again. (Id. at 22 of 47). Although there was no medical staff immediately available to treat the wound, Travers reported that Plaintiff had responded well to the pain medication. (Id.). Dr. Sommer again prescribed Acetaminophen with codeine. (Id.).

On the morning of January 17, 2010, Aumick attempted to treat Plaintiff's wound, which he described as an "abscess to left hand." (Id. at 27 of 47). Aumick attempted an "I and D [incision and drainage] with needle to relieve pressure" and noted a "[s]mall amount [of] bright yellow drainage...." (Id.). Plaintiff again reported the onset/duration of his wound to be "3-5 days." (Id.). Aumick noted that Plaintiff had been given antibiotics for the last three days. (Id.). Aumick reported Plaintiff's condition to Dr. Sommer, who ordered that Plaintiff be taken to an outside hospital for evaluation. (Id.).

Plaintiff was admitted to the Orange Regional Medical Center that same day. (Compl. at Doc. at 28 of 58). The record of his admission reports that "[a]ccording to the patient, the past Thursday he started having some left hand pain." (Id.). Plaintiff was then sent to Westchester Medical when it was determined that he should have a surgical procedure. (Id. at 29 of 58, 54 of 58). The report of Plaintiff's admission to Westchester Medical relays that Plaintiff complained of a "painful mass... first noted 4 days back." (Id. at 54 of 58).

According to the Westchester Medical's Operative Report, physicians performed: (1) drainage of a deep abscess on Plaintiff's left palm, (2) incision of his tendon sheath, and (3) fasciotomy of Plaintiff's palm and carpal tunnel on January 17, 2010. (Id. at 30 of 58). The report observes that Plaintiff "presented with a one week history of left hand pain." (Id. at 31 of 58). Plaintiff was discharged from Westchester Medical on January 20, 2010. (Id. at 33 of 58). The discharge summary notes that Plaintiff had presented with "about a four-day course of increased pain and swelling." (Id.). The summary also reports that the bacterium MRSA had been found in Plaintiff's wound, and that the bacterium would be sensitive to treatment by antibiotics, including Bactrim. (Id. at 35 of 58). Bactrim, however, was among the medications prescribed for Plaintiff upon his discharge. (Id.; see also id. at 58 of 58).

On January 24, 2010 upon Plaintiff's return to FCI Otisville, Dr. Sommer noted his diagnosis and the prescription of Bactrim. (Compl. at Doc. 2-1, at 34 of 47). Plaintiff received frequent treatments over the next several days and he was encouraged by prison medical staff to exercise his left hand and fingers, although he stated that it was "painful to move them." (Id. at 39 of 47). Aumick advised the Plaintiff that "if he did not perform range of motion exercises, he would have more pain, longer recovery and may even lo[se] some function of them." Id.

On January 29, 2010, Dr. Sommer examined and treated Plaintiff. (Id. at 43 of 47). Plaintiff complained of increasing pain and stated that "the wound does not look right." (Id.). Plaintiff reported that his thumb felt numb, but that he was doing the range of motion exercises daily. (Id.). Plaintiff's stitches were removed and the wound was cleaned and dressed. (Id.). He also refused to continue taking Tylenol for his pain, as he stated it was causing him abdominal discomfort. Id.

On February 4, 2010, Plaintiff was sent back to Westchester Medical. (Compl. at Doc. 2-2, at 7 of 24; id. at Doc. 2-1, at 16 of 47). The following day, Dr. Sommer noted that she had spoken with medical personnel at Westchester Medical, and they believed that Plaintiff did not have "any active infection" and that he "does not want to move his fingers." (Id. at Doc. 2-2, at 10 of 24). Personnel at Westchester Medical placed Plaintiff "in a splint to encourage movement of his fingers." (Id.).

Plaintiff underwent another surgical procedure on February 8, 2010. (Id. at Doc. 2, at 38 of 58). The discharge summary reports that no "infectious process" was found, and that Plaintiff's described pain "was consistent more with stiffness due to limitation from the splint than infectious." (Id. at 44 of 58; see also id. at 40 of 58, 42 of 58) (also noting that no infection was found). Upon his return to FCI on February 11, 2010, Dr. ...

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