United States District Court, W.D. New York
DECISION & ORDER
FRANK P. GERACI, JR. Chief Judge
se plaintiff Spencer Nowinski (“Plaintiff”)
brings this action under 42 U.S.C. § 1983 against ten
defendants (“Defendants”) alleging violations of
his Eighth Amendment rights. ECF No. 1. Before the Court are
Plaintiff's Motion for Preliminary Injunction, Defendant
Dolan's Motion to Join the Motion to Dismiss,
Defendants' Motion to Dismiss, and Defendants' Motion
for Summary Judgment. ECF Nos. 6, 23, 26. For the reasons
discussed below, Plaintiff's Motion for Preliminary
Injunction (ECF No. 6) is DENIED, Defendant Dolan's
Motion to Join the Motion to Dismiss (ECF No. 26) is GRANTED,
Defendants' Motion to Dismiss (ECF No. 23) is GRANTED in
part and DENIED in part, and Defendants' Motion for
Summary Judgment (ECF No. 23) is DENIED.
years ago, Plaintiff tore his anterior cruciate ligament
(“ACL”). ECF No. 1 at 3. Plaintiff did not seek
medical treatment for that injury until February 2002, when
he was arrested and incarcerated in Cattaraugus County Jail.
Id. Over the next nine years, Plaintiff received
treatment periodically. Id. at 3-5. During that
time, Plaintiff was transferred to and from various
correctional facilities. Id. The treatment he
received included knee surgery in 2003 and a number of
prescriptions for pain medication between 2003 and 2011.
Id. at 4. Despite that treatment, Plaintiff's
knee pain continued, and indeed increased, over time.
Id. at 5.
October 26, 2011, Defendant Coniglio, an orthopedist,
performed Plaintiff's second knee surgery. Id.
Defendant Coniglio replaced Plaintiff's right knee with a
“significantly oversized prosthesis.”
Id. Nineteen days after the surgery, Plaintiff met
with a prison nurse and explained that he was experiencing
excruciating pain in his knee. Id. Plaintiff asked
the nurse to arrange a consultation between him and Defendant
Coniglio. Id. Additionally, Plaintiff wrote letters
to Defendant Rao, a prison physician, complaining of the
persistent pain. Id.
November 28, 2011, Plaintiff still had not yet received a
response from Defendant Coniglio or Defendant Rao.
Id. For that reason, Plaintiff went to the facility
clinic. Id. There, he spoke to Defendant Drankhan, a
prison nurse. Id. He asked Defendant Drankhan why
his pain medication was discontinued, why he had not been
prescribed physical therapy, and why he had not yet had a
consultation with Defendant Coniglio. Id. Defendant
Drankhan did not answer Plaintiff's questions, but
instead recommended that Plaintiff stop using his crutches to
help his knee regain strength. Id. Defendant
Drankhan noted in an Ambulatory Health Record that Plaintiff
could “ambulate with difficulty.” Id. at
after his surgery, Plaintiff wrote a letter to Defendant
Koenigsmann, the Deputy Commissioner. Id. at 9. On
August 28, 2012, Plaintiff received a letter from Defendant
Dinisio, the Regional Health Services Administrator.
Id. Defendant Dinisio noted that Defendant
Koenigsmann asked her to respond to Plaintiff's concerns.
Id. Defendant Dinisio also noted that she spoke to
Defendant Michalek, a nurse administrator at Attica
Correctional Facility, and Defendant Michalek told Defendant
Dinisio that Plainitff had been “evaluated by his
primary care provider recently.” Id.
Defendant Dinisio informed Plaintiff that physical therapy
was not “medically necessary.” Id.
days after receiving Defendant Dinisio's letter,
Plaintiff met with Defendant Graf, a prison nurse.
Id. Defendant Graf told Plaintiff she could
prescribe him physical therapy and pain medication.
Id. But Plaintiff expressed concern about seeing a
physical therapist, given the amount of pain he was
experiencing, before seeing an orthopedist. Id.
Defendant Graf explained that she could not arrange for
Plaintiff to see an orthopedist, noted that she could
prescribe physical therapy and pain medication, and insisted
that Plaintiff take the pain medication and complete the
physical therapy. Id. at 7.
October 15, 2012, Plaintiff saw Defendant Dolan, a prison
physician. Id. Defendant Dolan told Plaintiff that,
per “Albany's directive, ” he could only
prescribe a certain number of weeks of physical therapy.
Id. Plaintiff asked Defendant Dolan if he should see
a specialist. Id. Defendant Dolan told him no-that
“Albany” would not approve his request to see a
days later, Plaintiff consulted Defendant Nyoni, a physical
therapist. Id. at 7. He explained to Defendant Nyoni
that he was in substantial pain, and that physical therapy
exacerbated that pain. Id. at 8. Plaintiff asked
Defedant Nyoni if he should see a specialist for pain
management. Id. Defendant Nyonia told Plaintiff he
would speak to Defendant Kooi, the Regional Director, about
it. Id. Plaintiff continued physical therapy for
months, despite the pain it caused him. Id.
Defendant Nyoni never contacted Defendant Kooi. Id.
Defendant Dolan retired, Plaintiff began to see Defendant
Kooi regularly. Id. at 8. Defendant Kooi told
Plaintiff that “these kinds of things happen with total
knee replacements.” Id. When Plaintiff asked
Defendant Kooi if he could refer Plaintiff to a specialist,
Defendant Kooi responded, “Albany won't do
Plaintiff's Motion for ...