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Wheeler-Whichard v. Delauro

United States District Court, Second Circuit

August 15, 2013



H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #44.

Plaintiff, a former inmate of the New York State Department of Corrections and Community Supervision ("NYSDOCCS"), filed this pro se action on or about April 30, 2010 seeking relief pursuant to 42 U.S.C. § 1983 based upon allegations of denial of adequate medical care at the Attica, Wyoming and Southport Correctional Facilities. Dkt. ##1 & 45.

Currently before the Court is defendants' motion for summary judgment. Dkt. #85. Although plaintiff filed an affirmation and Memorandum of Law in support of summary judgment, he did not file a notice of motion for summary judgment. Dkt. ##83-84. Despite this omission, the Court has considered his legal arguments. For the reasons set forth below, however, plaintiff's arguments are determined to lack merit and it is recommended instead that defendants' motion be granted.


On May 14, 2009, plaintiff complained of left flank pain to Registered Nurse ("RN"), Mark DeLauro at the Southport Correctional Facility ("Southport"). Dkt. #85-1, ¶ 24. RN DeLauro noted thickening of an old scar on plaintiff's left flank and dispensed Motrin to plaintiff while he remained on the medical call out list. Dkt. #85-1, ¶ 24. On June 11, 2009, plaintiff again complained of pain along the scar on his left flank to RN DeLauro, who noted that plaintiff would continue to be monitored. Dkt. #85-1, ¶ 25.

Dr. Canfield reviewed plaintiff's medical chart on July 17, 2009 following plaintiff's complaints of left heel pain. Dkt. #85-3, p.5. Dr. Canfield did not believe surgery was indicated as x-rays did not reveal a bone spur or growth. Dkt. #85-3, p.5.

Following a hearing on July 22, 2009, the Inmate Grievance Review Committee informed plaintiff that he

is on the eye clinic list which he has been told by the block nurses. The waiting list is 2-3 months and he is on the schedule for the August clinic. His foot problem is callous formation on his heels. He is on the minor surgery clinic list however this is an elective procedure and will be done when time permits. There is an x-ray report in the record that documents no bone spur or other bony malformation in the heel that might cause him to develop a callous. He has an old stab wound site on the flank area where he has pain. He refuses to take pain medication. He has been advised that the pain is most likely related to internal scarring from the old stab wound. Each time he has been seen at sick call issues have been addressed and sick call responses have been sent in repose to his questions. He needs to continue to address his needs at routine sick call. C. Felker, NAI recommends for grievant to try Tylenol or Ibuprofen OTC for pain control.

Dkt. #88, p.22.

On July 27, 2009, plaintiff continued to complain of pain in his left flank and advised RN DeLauro that the Motrin was not effective. Dkt. #85-1, ¶ 27. RN DeLauro instructed plaintiff to await the results of pending urinalysis tests. Dkt. #85-4, p.8. Following similar complaints on July 31, 2009, RN DeLauro noted plaintiff's denial of nausea and absence of changes in bowel or bladder and again advised plaintiff to await urinalysis results. Dkt. #85-4, ¶ 9.

On August 9, 2009, plaintiff advised RN DeLauro that he thought he may have passed out while transferring from his toilet to his bunk, but did not complain of injury, was vague with details and deferred examination of vitals or laboratory tests previously ordered. Dkt. #85-4, p.10.

On August 19, 2009, RN DeLauro noted that plaintiff was able to transfer and ambulate within normal limits, demonstrated no outward signs of pain, did not complain of bowel, bladder or appetite issues, and did not complain of flank pain when seen by PA Oakes on August 13th. Dkt. #85-4, ¶ 11.

On August 21, 2009, RN DeLauro notified PA Oakes that plaintiff sought a medical call out for his left flank plain. Dkt. #85-4, ¶ 12. RN DeLauro noted plaintiff's "long history of complaints" and negative urinalysis results. Dkt. #85-4, ¶ 12.

On August 24, 2009, RN DeLauro confirmed that plaintiff was on the medical sick call list. Dkt. #85-4, ¶ 13.

Dr. Canfield examined plaintiff on September 4, 2009, noting the plaintiff's latisimus, serratus anterior, intercostals and oblique muscles were tender to palpitation. Dkt. #85-3, ¶ 6. Noting no concerns regarding plaintiff's recent blood work, Dr. Canfield prescribed Flexeril 10mg at bedtime for seven days, with three refills, and stretching exercises. Dkt. #85-3, ¶ 6.

On September 11, 2009, plaintiff advised RN DeLauro that the Flexeril was working but requested testing for H. Pylori (a stomach virus), due to his left flank pain. Dkt. #85-4, ¶ 16. RN DeLauro noted that plaintiff did not complain of heart burn, GI issues or upper GI distress during hours of sleep and would continue to be monitored. Dkt. #85-4, ¶ 16.

On September 16, 2009, plaintiff requested a PSA test to screen for prostrate cancer because he feared he had the same cancer as Patrick Swayze, however, RN DeLauro noted that plaintiff reported no symptoms. Dkt. #85-4, ¶ 17.

On September 18, 2009, plaintiff informed RN DeLauro that the current pain medication was not working and, despite a lack of symptoms suggestive of a sexually transmitted disease, requested STD testing. Dkt. #85-4, ¶ 18.

On September 18, 2009, Dr. Canfield reviewed plaintiff's chart in anticipation of plaintiff's transfer to the Attica Correctional Facility ("Attica"), and noted that plaintiff's August 7th urine sample for diagnosis of infection was contaminated (plaintiff had not provided a clean catch sample). Dkt. #85-3, ¶ 7. Dr. Canfield reordered the urine test and ordered follow up subsequent to the urinary test results. Dkt. #85-3, ¶ 7. Dr. Canfield also ordered follow up for plaintiff's complaints of flank pain. Dkt. #85-3, p.7.

Plaintiff transferred to Attica on September 24, 2009. Dkt. #85-4, ¶ 19.

On November 2, 2009, plaintiff was seen by Nurse Practitioner ("NP"), Ruiz for complaints of left foot pain and low back pain. Dkt. #85-8, ¶ 5. NP Ruiz observed that plaintiff was able to perform both active and passive range of motion with his left foot and back and provided plaintiff with ...

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