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Turner v. Sidorowicz

United States District Court, S.D. New York

February 14, 2014

HALBERT TURNER, Plaintiff,
v.
WLADYSLAW SIDOROWICZ, GENEVIEVE SWITZ, GINGER EGGLER, SHARON LILLEY, HOLLY MILLER, LYNN LILLEY, LESLIE MALIN, and SHAWN KEMP Individually and in their Official Capacities, Defendants.

OPINION AND ORDER

NELSON S. ROMN, District Judge.

Halbert Turner, a state prisoner proceeding pro se ("Plaintiff"), brings this action pursuant to 42 U.S.C. §1983, alleging violations of his constitutional rights during his incarceration at Sullivan Correctional Facility[1] ("Sullivan") against Sullivan employees Wladyslaw Sidorowicz, Director of Health Services ("Dr. Sidorowicz"), Genevieve Switz, Physician Assistant ("PA Switz"), Ginger Eggler, Nurse Administrator ("NA Eggler"), Sharon Lilley, former Nurse Administrator ("NA Lilley"), Holly Miller, Nurse ("Nurse Miller"), Lynn Lilley, Deputy Superintendent of Administration ("DSA Lilley"), Leslie Malin, former Deputy Superintendent of Programs ("DSP Malin"), and Shawn Kemp, Correction Officer ("CO Kemp") (together, "Defendants"). Before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the following reasons, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

I. Factual Background[2]

A. Discontinuance of Plaintiff's Tramadol Prescription

Plaintiff's claims are that certain individuals at Sullivan denied Plaintiff adequate medical treatment, inappropriately revoked his religious diet, and falsified reports and other documents. Plaintiff alleges that on April 10, 2009, Nurse Miller "willfully, purposefully and maliciously falsified an official report" regarding Plaintiff in which she stated that Plaintiff was frisked under suspicion of pocketing tramadol, [3] a pain medication that Plaintiff was taking twice daily for back pain since August 2005, and found to have a cup with a white residue. Relying on this allegedly false report, Dr. Sidorowicz discontinued Plaintiff's prescription for tramadol. Plaintiff states that over a period of over six months, Dr. Sidorowicz continued to refuse Plaintiff the medication and failed to issue Plaintiff substitute medication. Plaintiff alleges that because the "highlyaddictive" prescription was discontinued abruptly, contrary to the manufacturer's recommendations, he was forced to detox cold-turkey. Over the course of six months allegedly without treatment, Plaintiff asserts that he suffered severe pain.

On June 22, 2009, Plaintiff filed a grievance to the Inmate Grievance Resolution Committee regarding the discontinuance of Ultram. Plaintiff's Opposition Exhibit ("Opp'n Ex.") 8. Shortly after, Plaintiff went to sick call and requested that his medication be reinstated. Dr. Sidorowicz refused to reinstate the prescription on July 14, 2009 and Plaintiff alleges he refused to do so in retaliation for Plaintiff's grievance. On July 27, 2009, Dr. Sidorowicz once again denied Plaintiff's request to have his medication restored. Plaintiff alleges that Dr. Sidorowicz directed a nurse to backdate Plaintiff's medical records to falsify the date on which Plaintiff's tramadol had been discontinued. Plaintiff filed another grievance on September 9, 2009, complaining of the continued failure to provide him with tramadol. A further grievance was filed on October 23, 2009, in which Plaintiff complained of continued lack of attention of the medical department to address his medication issue. Dr. Sidorowicz reinstated Plaintiff's medication on October 30, 2009.

B. Administration of Tramadol

When Plaintiff began receiving tramadol again, it was administered crushed rather than as a pill. Plaintiff did not want to receive the medication crushed and presented Dr. Sidorowicz with certain documentary evidence that it was dangerous to ingest crushed Tramadol Immediate Release. Dr. Sidorowicz told Plaintiff that the medication was administered in crushed form in order to ensure that inmates did not smuggle their medication outside of the clinic area. Plaintiff alleges that NA Eggler falsified her response to the grievance committee, stating that Plaintiff was receiving tramadol rather than tramadol immediate release. Plaintiff believes that he was receiving tramadol immediate release because documents Plaintiff received from the prison's pharmacy state that the pharmacy does not stock tramadol. Id at p. 5. Plaintiff claims that tramadol immediate release is dangerous to ingest crushed. Opp'n Ex. 24 p. 7 (Manufacturer's instructions for tramadol immediate release state, "Do not crush, chew, break, or open a controlled-release, delayed-release, or extended-release tablet or capsule.").

Plaintiff alleges that in addition to Dr. Sidorowicz, NA Lilley and DSA Lilley falsified records in order to mislead Plaintiff and the rest of the prison population regarding the dangers of taking tramadol in crushed form. Specifically, Plaintiff alleges that NA Lilley and Dr. Sidorowicz "attempt[ed] to fabricate alibis and further falsify official records" regarding the decision to crush Ultram before giving it to prisoners. Plaintiff alleges that the order to crush the prescription did not come from the central office, as prison officials stated, but was a unilateral decision made by medical personnel at Sullivan.

C. Kosher Diet

Plaintiff's religious beliefs are based on the Old Testament and as such, Plaintiff follows a kosher diet and was receiving the cold alternative diet ("CAD") at Sullivan. On January 13, 2011, Plaintiff received a memo from DSP Malin and DSA Lilley informing him that he would no longer be receiving the CAD because it was reported that Plaintiff took two pieces of cake and cool-aid from the regular meal line on January 4, 2011. Opp'n Ex. 46. Plaintiff claims that such report of his infraction does not exist and that DSP Malin and DSA Lilley acted in retaliation for the grievances that Plaintiff filed against the medical department. Plaintiff claims that DSA Lilley told Plaintiff that it was not necessary to file a misbehavior report or conduct a hearing before "imposing the sanction[] of removing... your Kosher Meal" and that if Plaintiff wanted to resume his kosher meals, he "should just change your religious denomination from Messianic Jew, and convert to Orthodox/Conservative Judaism[.]" Am. Compl. ¶47.

D. Plaintiff's TENS Unit

On April 7, 2011, while attending an appointment to have his knee braces reissued, Plaintiff had a disagreement with PA Switz because the appointment stated that Plaintiff was scheduled to be seen about wrist braces rather than knee braces. Plaintiff was then directed to return to the clinic later that day with his Transcutaneous Electrical Nerve Stimulator ("TENS") Unit, which had been prescribed to him by a physical therapist for his lower back pain. Plaintiff alleges that when he returned later in the day, he was told that his TENS Unit was being revoked. Plaintiff claims that the revocation was initiated by PA Switz as retaliation for the earlier disagreement.

E. September 2011 Tramadol Prescription

Later in 2001, on September 24, 2011, CO Kemp came to Plaintiff's cell and told Plaintiff that he had to sign a form stating that he had refused to take his medication that morning. Plaintiff did not sign the form and stated that his medication was prescribed as needed and that it was not mandatory that he take it. On the medical refusal form, CO Kemp wrote "I ain't going" as Plaintiff's reason for refusal of the medication. On September 26, 2011, Dr. Sidorowicz discontinued Plaintiff's medication. The apparent reason for the failure to provide Plaintiff with the medication was that he had refused to take it for two consecutive days. Plaintiff met with Dr. Sidorowicz on September 29, 2011 where Dr. Sidorowicz stated that he was "confused" regarding the medication because Plaintiff had signed a medical refusal form. Dr. Sidorowicz reinstated Plaintiff's medication on September 29, 2011.

II. Discussion

A. Claims against CO Kemp Voluntarily Dismissed

Plaintiff filed a letter with the Court requesting to voluntarily discontinue the action as against C.O. Kemp. Docket No. 53. Accordingly, ...


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