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Thomas v. Toporek

United States District Court, W.D. New York

March 6, 2014

TIMOTHY THOMAS, Plaintiff,
v.
DIANE TOPOREK, ROSALYN KILLINGER, and CARL J. KOENIGSMANN, M.D., Defendants.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se plaintiff Timothy Thomas ("Plaintiff"), an inmate in custody of the New York State Department of Corrections and Community ("DOCCS") at Wende Correctional Facility ("Wende"), instituted this action pursuant to 42 U.S.C. § 1983 against Defendants, alleging that he was denied adequate medical care in violation of his Eighth Amendment rights.

II. Factual Background and Procedural History

Plaintiff is an inmate in DOCCS' and was housed at Wende during all times relevant to this Complaint. Diane Toporek ("Toporek") is a Nurse Administrator with DOCCS; Rosalyn Killinger ("Killinger") is the DOCCS' Deputy Superintendent of Health Services; and Carl J. Koenigsmann, M.D. ("Dr. Koenigsmann") is the Deputy Commissioner/Chief Medical Officer of DOCCS.

The following factual summary is gleaned from Plaintiff's Complaint (Dkt #1). In June of 2012, Plaintiff complained of eye problems to officials at Wende. It seems that he had broken his prescription glasses by sitting on them, and he was having difficulty reading without them. In July of 2012, Plaintiff saw an "eye doctor" but "[his] glasses couldn't be repaired because [he] didn't have them anymore." SOF, ¶ 4.[1] The eye doctor wrote in Plaintiff's chart that he "need[ed] to see [sic] eye exam'" but that he was not "due until 1/20/2013" for such an exam. Id . Plaintiff states that at his last sick call-out regarding his eye issues, the eye doctor did not "fix the problem" and "kept [him] with the same prescription" that he had received on June 9, 2010. Id . Plaintiff asserts that he "should not be punished" for the 2011 call-out because the doctor "was examining [his] eye's [sic] to see if he gave [him] the wrong prescription in [his] glasses." Id.

Plaintiff then filed a grievance on July 16, 2012, requesting to see an eye doctor because he was "having pain and stress on the eyes". SOF, ¶ 3. He states that he was told that he would not be able to see the eye doctor until January 2013. Id . However, Plaintiff does not appear to have attached the response to this grievance to his Complaint.

Plaintiff indicates that he went to see the "eye doctor" on July 26, 2012, but states, cryptically, that his "glasses couldn't be repaired because [he] didn't have them anymore." SOF, ¶ 4. The "eye doctor" indicated that he needed to have a new eye exam. Id . Plaintiff filed a second grievance on July 30, 2012. Id., ¶ 5.

On August 6, 2012, and August 9, 2012, Plaintiff went to sick call "complaining about eye strain", "pain", and "discomfort in trying to see things." SOF, ¶ 6. Apparently, Plaintiff was told by the medical staff during his sick call visits that he was scheduled to the see the eye doctor in January 2013. Dissatisfied with having to wait that long, Plaintiff submitted two grievances and also wrote a letter complaining to the nurse administrator.

On August 14, 2012, Plaintiff saw "care provider Ms. Wrest" regarding his asthma. Plaintiff explained to Ms. Wrest the "pain and discomfort" he was experiencing with regard to his eyes, and she agreed that waiting until January 2013 to see an eye specialist was too long. Accordingly, she "pulled out a contract to have [him] sign" so that he could see an eye specialist at an earlier date. SOF, ¶ 8.

Plaintiff still did not get on the schedule to see an eye specialist, so he wrote a letter to the Deputy Superintendent of Health Services on September 2, 2012, setting forth the problems he was having with his eyes. He also mentioned the contract that he had signed in front of Ms. Wrest. SOF, ¶ 9. Acting Nurse Administrator T. Walsh responded to his letter on September 12, 2012, reminding him that he saw the medical provider on August 14, 2012, at which time she scheduled him for an eye exam next month, i.e., October of 2012. Walsh noted that the optometrist only comes in once a month.

On September 27, 2012, Plaintiff received a decision on his Superintendent's Appeal of his grievances filed in July 2012. The grievance appeal was "granted to the extent" that

[p]er investigation, it has been reported that the grievant requested to see an eye doctor. Grievant is scheduled to see the optometrist in October. The optometrist is scheduled for one visit per month and sees approximately 40 inmates. Due to no optometrist available, the clinic fell behind in scheduling but will be caught up by next month.

On October 2, 2012, Plaintiff signed the Superintendent Appeal form, indicating that he was appealing the matter to the Central Office Review Committee ("CORC") "because the fact of the matter is that [he] was denied medical ...


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