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Kelly v. Tan

United States District Court, Second Circuit

September 10, 2013

JOHN C. KELLY, Plaintiff,
DR. TAN, ET AL., Defendants.

John C. Kelly, Pro se, Manhattan, NY, for Plaintiff.

Hillel Deutsch, A.A.G. New York State Attorney General's, Office Department of Law Rochester, NY, for Defendants.


CHARLES J. SIRAGUSA, District Judge.


Plaintiff, John C. Kelly, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this pro se civil rights action pursuant to 42 U.S.C. ยง 1983, alleging that Defendants violated his Eighth Amendment rights by failing to provide him with adequate medical treatment. Now before the Court is Defendants' motion for summary judgment (Docket No. [# 6]). The application is denied, although at Plaintiff's request Carl Koenigsmann, M.D. is dismissed from the action and is replaced by Ken Jin, M.D.


Unless otherwise noted the following are the facts of the case viewed in the light most-favorable to Plaintiff, the non-moving party. This action arose when Plaintiff was previously confined at Collins Correctional Facility ("Collins"). At all relevant times, Joseph Tan, M.D. ("Tan") was a medical doctor employed as Health Services Director at Collins. Carl Koenigsmann, M.D. ("Koenigsmann") was a medical doctor employed by DOCCS as Regional Medical Director. Robert Ciepiela, DPM ("Ciepiela") was a licensed podiatrist at the Foot Care Center of Buffalo. Eileen DiNisio ("DiNisio") was employed by DOCCS as Regional Health Services Administrator. Karen Bellamy ("Bellamy") was employed by DOCCS as Director of the Inmate Grievance Program. Nurse Administrator Samuelson ("Samuelson") was employed by DOCCS as Nurse Administrator at Collins.

Prior to the events at issue in this case, Plaintiff was an inmate at Livingston Correctional Facility ("Livingston"). At Livingston, medical staff scheduled Plaintiff to see a podiatrist because he was experiencing foot pain and believed there was a piece of glass in his foot. Prior to that appointment, though, Plaintiff was transferred to Collins. After arriving at Collins, in August 2010, Plaintiff had a medical appointment with Tan. Plaintiff told Tan about the podiatric appointment the medical staff at Livingston had scheduled for him. Tan reviewed Plaintiff's medical records, told Plaintiff that there was no glass in his foot, and canceled Plaintiff's trip to the podiatrist.

On August 4, 2010, in response to Tan canceling his podiatric appointment, Plaintiff filed an inmate grievance entitled "Schedule Appt. Outside M.D." in which he complained of having a piece of glass in his foot as well as calluses, both of which caused pain.[1] In his grievance, Plaintiff requested an appointment with an outside physician. On August 17, 2010, the Inmate Grievance Resolution Committee ("IGRC") responded by stating: "IGRC recommends that this grievance by sent before the Superintendent [for] review." (Docket No. [#6-4] at p. 5). On August 27, 2010, the Superintendent denied Plaintiff's grievance, apparently adopting Tan's conclusion "that there was no clinical indication for surgical intervention."[2] Plaintiff signed the "Appeal Statement" at the bottom of the Superintendent's response, and where the form instructs the grievant to explain why he or she is appealing the decision to the Central Office Review Committee ("CORC") Plaintiff wrote, "my records show from x ray I have a foreign body in my foot. The doctor can't assess my foot just by looking at it. I just take this to Regional health Services in Albany." [sic].[3] The appeal was never signed by the grievance clerk and a "Receipt of Appeal" memorandum was never received from CORC.

Subsequently, Plaintiff wrote to Regional Health Services with his concerns. Upon the request of Koenigsmann, Administrator DiNisio replied to Plaintiff's letter on November 2, 2010 stating that she was advised by Nurse Administrator Samuelson that Plaintiff's x-rays did not reveal a definitive foreign body. Plaintiff wrote Regional Health Services a second time, and on November 19, 2010, DiNisio responded to Plaintiff stating that "it was determined that there could possibly be a foreign body present but it was not recommended to attempt to remove it because it would most probably cause more damage."[4]

Plaintiff continued to go to sick call where he was seen by Ken Jin, M.D. ("Jin"). Plaintiff told Jin that there was glass in his foot and that he was in pain, but Jin told Plaintiff that the state would not arrange to have the glass removed. After a year, though, Jin recommended that Plaintiff see a podiatrist. The referral Jin wrote to the podiatrist explicitly stated that there was glass in Plaintiff's foot, and recommended the glass be surgically removed using fluoroscopic procedure. In the interim, Plaintiff wrote to Regional Health Services regarding his foot pain for the third time and received a response from DiNisio on July 28, 2011 which stated an appointment was scheduled for him to see a podiatrist to evaluate and treat his foot.

On August 7, 2011, Plaintiff saw podiatrist Ciepiela at Wende Regional Medical Unit. At the appointment Ciepiela debrided Plaintiff's calluses and recommended that he be measured for medical boots, but did not remove the glass. In his report, Ciepiela acknowledged the presence of a foreign body ("FB") in Plaintiff's foot stating, "FB as per history x-ray, " but reported that the foreign body was "asymptomatic."[5]

On August 15, 2011, Plaintiff filed a second grievance entitled "Remove Glass from Foot."[6] The grievance stated that Ciepiela had not removed the glass, and that his pain was getting worse. On August 24, 2011, Plaintiff agreed to refer his grievance to the Superintendent upon the recommendation of the IGRC. The Superintendent denied Plaintiff's grievance on August 30, 2011. Plaintiff appealed to CORC, stating "I would like to grieve the Superintendent's decision because I'm in pain. They know it."[7] Bellamy subsequently sent Plaintiff a written notice, informing him that his grievance had been received by CORC.[8] On November 9, 2011, CORC issued a notice, signed by Bellamy, stating that Plaintiffs grievance was denied.[9] Plaintiff filed a Complaint [# 1] on December 12, 2011 alleging an Eighth Amendment medical deliberate indifference claim against Defendants.

On April 12, 2012, Defendants filed the subject motion for summary judgment [# 6] in lieu of answering the Complaint. Defendants maintain that; (1) any allegations against them in their official capacities should be dismissed; (2) Plaintiff failed to allege the personal involvement of Ciepiela, DiNisio, Samuelson, and Bellamy; (3) Plaintiff failed to exhaust all administrative remedies; and (4) Plaintiff failed to state a claim for deliberate medical indifference. On May 2, 2012, Plaintiff filed a Response in Opposition to Defendant's Motion for Summary Judgment, to which he attached all documentation pertaining to the grievances filed in this case, as well as the medical report of his treatment by Ciepiela. On May 4, 2012, in further support of their motion, Tan and Koenigsmann submitted reply affidavits [# 10] in which they assert that at no point did either of them examine or treat Plaintiff. Additionally, Ciepiela submitted an affidavit in which he asserts he "found no evidence Plaintiff had glass in his foot". Id.

On May 11, 2012, Plaintiff filed a Sur-Reply in Opposition to Defendant's Motion for Summary Judgment [# 11] in which he stated that he mistakenly named Koenigsmann in the Complaint, and that the doctor who he mistakenly identified as Koenigsmann was Jin. ...

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