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Nowinski v. Coniglio

United States District Court, W.D. New York

March 16, 2017

GERALD CONIGLIO, et al, Defendants.

          DECISION & ORDER

          HON. FRANK P. GERACI, JR. Chief Judge


         Pro 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.


         Fifteen 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.

         On 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.

         On 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 6.

         Sometime 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.”[2] Id. Defendant Dinisio informed Plaintiff that physical therapy was not “medically necessary.” Id.

         Ten 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.

         On 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 specialist. Id.

         Three 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.

         After 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 it.” Id.


         I. Plaintiff's Motion for ...

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