United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
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.
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).
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.
Court has subject matter jurisdiction under 28 U.S.C. §
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.
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.
31, 2012, Dr. Chakravorty had a blood sample drawn and
ordered a Prostate-Specific Antigen (“PSA”)
test. 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
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.
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.
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
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. This image indicated no deformity of the
spine. Plaintiff was dismissed without medication.
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
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.
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
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.
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).
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.
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.
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
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.
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.
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. 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.
alleges that by January 27, 2014, his PSA level had elevated
to 8.00 ng/ml.
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).
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.
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.
alleges that, at this point, he was still unaware he had
chronic bacterial prostatitis. 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).
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).
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
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.
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 were 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.
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.
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