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Chin v. Burnstein

United States District Court, S.D. New York

March 28, 2017

WAYNE CHIN, Plaintiff,


          Vincent L. Briccetti United States District Judge

         Plaintiff Wayne Chin, proceeding pro se and in forma pauperis, brings this action against defendants Frederick Burnstein, Dr. Harip Chakravorty, Dr. Benhein, Betsy Kelly, Jerrery Hale, and John Does #1-3, under 42 U.S.C. § 1983 for alleged deliberate indifference to his medical needs in violation of the Eighth Amendment.

         Before the Court is defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). (Doc. #27).

         For the reasons set forth below, the motion to dismiss based on Rule 12(b)(6) is GRANTED as to defendants Chakravorty and Burnstein; as to the remaining defendants, the motion to dismiss is converted to a motion for summary judgment, Fed.R.Civ.P. 12(d), 56, and that motion is also GRANTED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.


         For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the complaint as true, and draws all reasonable inferences in plaintiff's favor. “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Because plaintiff references three grievances in his complaint, the Court properly considers these grievances.

         On May 24, 2012, plaintiff visited the medical clinic at Green Haven Correctional Facility (“Green Haven”). He met with Dr. Chakravorty and complained of “urina[ry] complications, [and] pain from the bottom of his stomach to the tip of his penis.” (Compl. ¶10). Plaintiff requested Dr. Chakravorty refer him to a urologist. Plaintiff does not allege whether Dr. Chakravorty diagnosed plaintiff, but does allege Dr. Chakravorty did not refer plaintiff to a urologist or provide any medication.

         On May 31, 2012, Dr. Chakravorty had a blood sample drawn and ordered a Prostate-Specific Antigen (“PSA”) test.[1] Plaintiff had previously undergone PSA tests on August 9, 2009, and December 23, 2009. The results of those tests were 1.86 nanograms of PSA per milliliter of blood (“ng/ml”) and 2.2 ng/ml, respectively. Plaintiff's May 31, 2012, test returned a result of 3.37 ng/ml. Dr. Chakravorty did not prescribe medication or other treatment.

         On August 23, 2012, plaintiff visited sick call complaining of lower back pain, abdominal cramping, and urinary complications. Plaintiff was scheduled for an appointment with Dr. Chakravorty. At the appointment on August 27, 2012, plaintiff informed Dr. Chakravorty he was still experiencing the same symptoms, requested a referral to a urologist, and either a magnetic resonance imaging (“MRI”) or an ultrasound of his urinary tract to diagnose his illness. Dr. Chakravorty denied these requests.

         On September 7, 2012, plaintiff again visited sick call, and he was scheduled for another appointment with Dr. Chakravorty. At an examination on September 17, 2012, plaintiff complained to Dr. Chakravorty that he continued to experience the same symptoms and repeated his request for medical tests, including a PSA test, MRI, ultrasound, and/or urologist examination. Dr. Chakravorty did not offer treatment for plaintiff's symptoms, but submitted a urologist referral consent to Dr. Burnstein, the Facility Health Services Director at Green Haven, who allegedly denied it.

         On September 27, and October 2, 2012, plaintiff visited sick call to request an appointment with Dr. Chakravorty. On October 3, 2012, plaintiff returned to Dr. Chakravorty complaining of urinary complications. Dr. Chakravorty examined plaintiff and determined that neither an MRI nor an ultrasound of plaintiff's kidneys and bladder was warranted.

         On January 28, 2013, plaintiff visited the facility clinic and was seen by Dr. Chakravorty. Plaintiff complained of pain and suffering arising from urinary complications. Dr. Chakravorty reviewed an x-ray image of plaintiff's lower back.[2] This image indicated no deformity of the spine. Plaintiff was dismissed without medication.

         On April 17, 2013, plaintiff visited the facility clinic because he was experiencing urinary retention. Dr. Benhein, the treating physician, instructed two nurses, Kelly and Doe #1, to insert a catheter in plaintiff's urethra to release the pressure on his bladder. Dr. Benhein also instructed the nurses to contact the urologist at Putnam Hospital Center to arrange for plaintiff to be admitted. Plaintiff had a urine sample taken, which showed no signs of infectious microorganisms. Plaintiff alleges Dr. Benhein did not perform any tests himself, nor did he supervise the nurses. The nurses then inserted an allegedly unsterilized Foley catheter rather than a straight catheter and were unable to contact Putnam Hospital Center. Instead, plaintiff was admitted to Green Haven's infirmary for observation until his discharge on April 18, 2013. Plaintiff received a prescription for Tamsulosin, a drug used to treat benign prostate hyperplasia (“BPH”), which is an enlarged prostate.

         On April 21, 2013, plaintiff presented at emergency sick call and informed the nurse on duty he had a urinary bacterial infection and needed urgent treatment. The nurse informed Dr. Bhopale of plaintiff's complaint. Plaintiff was not prescribed medication, but was scheduled for an appointment with Dr. Chakravorty the next morning. At that appointment, plaintiff informed Dr. Chakravorty of his infection and complained the Tamsulosin caused a variety of unpleasant side effects, including headaches, blurred vision, and nausea. Dr. Chakravorty did not prescribe an alternative to Tamsulosin and did not provide plaintiff with antibiotics.

         On April 25, 2013, plaintiff had a urine sample taken and sent for urinalysis testing. The results of the urinalysis were reported on April 28, 2013, and revealed “many” infectious microorganisms in plaintiff's urine. (Compl. at ¶ 27, Ex. 1). On April 28, 2013, Dr. Chakravorty provided plaintiff with a ten-day supply of Ciprofloxacin, an antibiotic. Plaintiff alleges that the treatment did not cure the infection and he developed chronic bacterial prostatitis.[3]

         On May 9, 2013, Dr. Chakravorty examined plaintiff, but plaintiff refused a digital rectal exam of his prostate, and his requested urologist referral was denied. Plaintiff alleges that at some point in May 2013 his PSA level was 5.58 ng/ml.

         On May 12, 2013, plaintiff filed his first grievance in this matter, designated GH-75170-13 (“the first grievance”). It alleges plaintiff complained to Dr. Chakravorty of constant pain in the left side of his back on numerous occasions. The first grievance also describes the April 17, 2013, emergency visit described above, but contains no allegation of wrongdoing on the part of Dr. Burnstein. The first grievance does not name Kelly nor state any wrongdoing with respect to Kelly or any other nurse. The first grievance claims Dr. Chakravorty told plaintiff that his request for an examination by a urologist had been denied “by the administration.” (Doc. #30, Ex. C).

         On June 20, 2013, Dr. Chakravorty, citing plaintiff's 5.58 ng/ml PSA level, referred plaintiff to a urologist requesting a biopsy be performed on plaintiff's prostate.

         On July 7, 2013, plaintiff presented at sick call complaining of pain in his lower back, hips, thigh, and lower legs. Plaintiff alleges these are symptoms of prostatitis.

         On July 21, 2013, Dr. Janis, a urologist, examined plaintiff and performed an ultrasound on plaintiff's prostate, noted abnormalities, and ordered a biopsy. On July 31, 2013, Dr. Janis diagnosed plaintiff with BPH and a recurrent bacterial infection.

         On September 10, 2013, Dr. Janis performed a biopsy, the results of which confirmed that BPH, not prostate cancer, was causing plaintiff's symptoms. Dr. Janis prescribed Tamsulosin.

         On October 10, 2013, plaintiff returned to the facility clinic complaining of a recurrent urinary infection. Dr. Chakravorty prescribed plaintiff a ten-day course of Ciprofloxacin.

         On two occasions, November 19, 2013, and December 2, 2013, plaintiff reported to the facility medical staff that the Tamsulosin had not cured his urinary complications and recurring bacterial infections.[4] Plaintiff alleges prostate surgery should have been approved at that stage, but he does not state whether this was discussed with the treating physician, who is not named.

         Plaintiff alleges that by January 27, 2014, his PSA level had elevated to 8.00 ng/ml.

         On April 24, 2014, Dr. Janis again examined plaintiff and recommended a cystoscopy to examine plaintiff's prostate. On July 22, 2014, Dr. Janis performed a cystourethroscopy examination of plaintiff's prostate and bladder. Dr. Janis confirmed plaintiff suffered from “recurrent urinary tract infections[, ] ‘BPH' symptoms[, and] slowing of the urinary stream.” (Compl. ¶42). Dr. Janis recommended a transurethral resection of the prostate, a surgery that plaintiff alleges would eliminate many of his symptoms. In addition, Dr. Janis prescribed Ciprofloxacin. Plaintiff alleges that, at this point, his prolonged use of “Tamsulosin and Finasteride medications . . . threaten[ed] extensive damage to [his] kidneys, bladder[, ] and the risk of impotence.” (Compl. ¶43).

         On September 24, 2014, plaintiff's primary care provider referred plaintiff's case to Dr. Burnstein, who denied plaintiff's request for approval of the surgery.

         On November 17, 2014, plaintiff visited the medical clinic complaining of “inflammation of the urethra, rectal, and perineal pain, lower back aches and other urinal bacterial symptoms.” (Compl. ¶45). Dr. Wolf prescribed Ciprofloxacin and ordered urine and blood tests. The results of those tests came back nine days later, at which point plaintiff was switched from Ciprofloxacin to Sulfamethox, a different antibiotic. No explanation was given for this change.

         He alleges that, at this point, he was still unaware he had chronic bacterial prostatitis.[5] Plaintiff had his family research Sulfamethox, and it was only because of their “research of the antibiotics that plaintiff became aware of the nature and severity of the recurring urina[ry] bacterial infections.” (Compl. ¶45).

         Plaintiff filed a second grievance regarding this matter on November 27, 2014, designated GH-78404-14 (“the second grievance”). In the grievance, plaintiff alleges he was not properly informed about his health or the reason certain drugs had been prescribed to him. He further alleges that, only because of his family's research did he become aware that he suffered from acute bacterial prostatitis. The grievance states, “I believe that the authority in this facility has show[n] indifference to my medical needs in order to save money.” (Doc. #30, Ex. D).

         On November 28, 2014, a computer tomography scan (“CT scan”) was performed at Putnam Hospital Center, at the direction of Dr. Burnstein. The CT scan allegedly showed that plaintiff's bladder had “largely collapsed.” (Compl. ¶47). Plaintiff alleges his primary care physician and Dr. Burnstein withheld this information from plaintiff.

         On January 29, 2015, plaintiff alleges he exhausted his administrative remedies. As support for this allegation, plaintiff attaches the decision of the Central Office Review Committee (“CORC”) regarding his second grievance. Plaintiff alleges this grievance gave defendant Hale, the Assistant Director of the Inmate Grievance Program (“IGP”), notice that plaintiff's bladder had collapsed and Hale conspired to conceal this information. The second grievance does not mention of plaintiff's collapsed bladder. Plaintiff also alleges Hale, in his supervisory capacity, allowed Green Haven's unconstitutional practices of denying medical treatment to inmates to continue.

         On February 10, 2015, plaintiff saw his primary care physician regarding his BPH-related symptoms. Plaintiff's primary care physician “informed [p]laintiff that he could not understand why his superiors w[]ere denying and delaying approval for the surgical operation and had cancelled all further appointment[s] with Dr. Janis.” (Compl. ¶50). Plaintiff's primary care physician referred plaintiff to Dr. Janis.

         On March 20, 2015, Dr. Janis examined plaintiff and instructed plaintiff to complete a prostate-severity form. Plaintiff alleges that completing this form was a prerequisite to receiving prostate surgery. Plaintiff attaches the completed prostate-severity form, which asks seven questions relating to urination on a zero-to-five scale. Plaintiff alleges Dr. Burnstein “used [this] simple questionnaire as a superficial unjustifiable reason to prolong [p]laintiff's pain and suffering, ” because plaintiff's collapsed bladder and recurring bacterial infections demonstrated his need for the requested surgery. (Compl. ¶51). Plaintiff does not explain how his collapsed bladder and bacterial infections relate to his requested surgery, which he alleges is performed to ameliorate symptoms caused by BPH.

         On June 1, 2015, plaintiff was admitted to Putnam Hospital Center due to complications relating to chest pain. Plaintiff informed the treating physician of his urinary problems. Plaintiff alleges the physician wanted to have him examined by the hospital urologist, but the Green Haven medical staff instructed ...

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