United States District Court, N.D. New York
DECISION & ORDER
J. McAVOY, Senior United States District Judge
Walter Hubicki and Donna Julianio move for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
See dkt. # 72. Plaintiff filed a response to Defendants'
motion. See dkt. # 74. The Court has determined to decide the
motion on the submissions without oral argument.
January 10, 2012, prior to his arrest, Plaintiff went to the
emergency room with complaints of chest pains, numbness in
his hands, and feeling cold. See Deposition of
Furman Gilmore from 6/28/2016 (“Gilmore Dep.
6/28/2016”), dkt. # 72-3, at 15. Plaintiff did not
complain of back pain at the time, but was admitted to the
hospital and administered a steroid along with some
medication before being discharged the following day.
Id. at 16, 21, 47. On January 11, 2012, Plaintiff
was arrested on criminal charges and transported to the
Greene County Jail. Id. at 11. During a protective
search of Plaintiff's home incident to his arrest,
Plaintiff stood up while handcuffed to go to the bathroom.
Id. at 77. Officers tackled Plaintiff to the ground
and placed him in a chair. Id. Plaintiff complained
of back pain, a recurrence of chest pains, and numbness in
his hands, wrists, and fingers. Id. at 77-78.
Plaintiff had twice before complained of back pain.
Id. 79-80. The first complaint came in 1994, after
he suffered a gunshot wound to the face. Id. The
second came in 2001, after a neighbor's roof collapsed on
him. Id. X-rays performed in both previous cases
detected no injuries. Id. at 81.
January 13, 2012, Defendant Walter Hubicki, a physician,
performed a routine screening of Plaintiff at the Greene
County Jail. Id. at 98. Plaintiff complained of back
pain and persistent numbness Id. at 99. Plaintiff
told Defendant Hubicki that he needed to schedule an
appointment with a neurologist. Id. He also asserted
he was previously advised to go to the emergency room if
numbness persisted. Id. After examining Plaintiff,
checking for a hernia, and administering a TB test, Defendant
Hubicki prescribed Plaintiff aspirin and obtained
Plaintiff's permission to contact Plaintiff's
hospital to treat the numbness. Id. at 32, 99-100.
In February, 2012, Plaintiff complained to Defendant Donna
Juliano, a nurse, for five consecutive days of partial facial
numbness, slurred speech, and constant watering of the eyes.
Id. at 100-102. Defendant Juliano responded by
looking at Plaintiff without saying anything. Id. at
102. Plaintiff filed a grievance asking to see Defendant
Hubicki, which went unanswered. Id. at 103. After
writing the Inspector General to complain that his grievances
were not being processed, Plaintiff was advised to write the
County Sheriff. Id. Plaintiff wrote the Sheriff but
received no response. Id. at 103-104.
February 7, 2012, Plaintiff slipped and fell in his cell,
causing neck pain. Id. at 105; see Medical
Records from The Neurology Group LLP (“Neurology Med.
R.”), dkt. # 72-5, at 1. Defendant Juliano examined
Plaintiff, administered aspirin, and scheduled an examination
with Defendant Hubicki. See Gilmore Dep. 6/28/2016,
dkt. # 72-3, at 105. At a later date, Defendant Hubicki
examined Plaintiff, who continued to complain of neck pain.
Id. at 102, 105-106. Defendant Hubicki prescribed
aspirin and referred Plaintiff to Columbia Memorial Hospital.
Id. On March 5, 2012, doctors at Columbia Memorial
Hospital conducted several examinations to determine the
cause of Plaintiff's numbness, and concluded that
Plaintiff suffered from Bell's Palsy and Conjunctivitis.
See Columbia Memorial Hospital Medical Record from 3/21/2012
(“Med. R. 3/21/2012”), dkt. # 74, at 40.
March 27, 2012, Plaintiff was examined by Dr. Jeffrey
Burdick, a neurologist, who diagnosed Plaintiff with
Bell's Palsy and ordered a nerve conduction study and an
MRI of Plaintiff's cervical spine. See Neurology
Med. R., dkt. # 72-5, at 1-2. On March 30, 2012, Plaintiff
had an MRI of his cervical spine and a nerve conduction study
by Dr. Richard Levy. See Gilmore Dep. 6/28/2016,
dkt. # 72-3, at 110, 114. On April 20, 2012, Plaintiff met
with Dr. Burdick and discussed the results of the MRI, which
indicated that Plaintiff suffered a cervical spine injury.
Id. at 110-111; see Neurology Med. R., dkt.
# 72-5, at 4. Dr. Burdick ordered an MRI of Plaintiff's
cervical spine with contrast and an MRI of Plaintiff's
brain with and without contrast. See Neurology Med. R., dkt.
# 72-5, at 4. On April 25, 2012, Plaintiff had the second set
of MRIs conducted by Dr. Levy. See Gilmore Dep.
6/28/2016, dkt. # 72-3, at 113-114. In a medical imaging
consultation report transcribed on April 26, 2012, Dr. Levy
Further evaluation for other etiologies including
demyelinating and infectious is recommended. This includes MR
imaging of the thoracic and lumbar spine, and brain without
and with contrast, as indicated.
Memorial Hospital Medical Imaging Report from 4/25/2012
(“Med. Imaging Rep. 4/25/2012”), dkt. # 1, at 22;
See Gilmore Dep. 6/28/2016, dkt. # 72-3, at 114.
17, 2012, Plaintiff met with Dr. Burdick and discussed the
results of the second set of MRIs, which confirmed that
Plaintiff suffered a cervical spine injury. See
Gilmore Dep. 6/28/2016, dkt. # 72-3, at 111-112; Neurology
Med. R., dkt. # 72-5, at 10. Plaintiff was scheduled to
return for a follow-up appointment in six months, around
October 2012. See Neurology Med. R., dkt. # 72-5, at 11;
Gilmore Dep. 6/28/2016, dkt. # 72-3, at 112. Dr. Burdick
ordered an additional MRI of Plaintiff's cervical spine
with and without contrast to be conducted “in [the] 6
months before the revisit[.]” See Neurology
Med. R., dkt. # 72-5, at 11-12. Defendant Hubicki received
copies of Plaintiff's MRI reports. See Med.
Imaging Rep. 4/25/2012, dkt. # 1, at 20-22. There is no
record indicating that Defendant Hubicki followed-up on Dr.
Burdick's last MRI order. Defendant Hubicki never
discussed the diagnosis or MRI results with Plaintiff.
See Gilmore Dep. 6/28/2016, dkt. # 72-3, at 111.
Plaintiff was transferred to the New York State Department of
Corrections before October, 2012. Id. at 112. While
at the Greene County Jail, Plaintiff met with Defendant
Hubicki approximately five times and with Defendant Juliano
on a daily basis. Id. at 108-109.
New York State Department of Corrections, Plaintiff received
two additional MRIs on his lumbar and thoracic spine on
October 16, 2012 and February 1, 2013, and received treatment
for his back injuries. Id. at 114, 116, 131.
Plaintiff asserts Defendants Hubicki and Juliano worsened his
back condition by failing to follow up on the MRIs.
Id. at 116, 144. Plaintiff's back pain persists
since his January 11, 2012 arrest; he has not received
treatment for the condition in the past three years.
Id. at 118, 131.
proceeding pro se, filed a complaint on January 8,
2015. See Complaint (“Complt.”), dkt. #
1. The Complaint alleges that several of the Defendants used
excessive force in arresting Plaintiff, and that other
Defendants violated his Fourteenth Amendment rights through
deliberate indifference to his serious medical needs while
incarcerated. Id. Plaintiff also moved for leave to
proceed in forma pauperis. See dkt. # 6.
The Court granted that motion and issued summons.
See dkt. #s 7-8. Defendants Donna Juliano and Walter
Hubicki answered the Complaint and filed a crossclaim on May
5, 2015. See dkt. # 13.
point after filing his Complaint, Plaintiff was released from
jail. He did not inform the Court of a change in his address
as required by Local Rule 10.1(c)(2). Defendants moved to
dismiss Plaintiff's Complaint, with prejudice, arguing
that Local Rule 41.2(b) applies and requires dismissal.
Defendants also pointed to Federal Rule of Civil Procedure
41(b). On November 12, 2015, Plaintiff filed a response to
Defendants' motions to dismiss. See dkt. # 51. On June 8,
2016, this Court denied Defendants' motions to dismiss.
See dkt. # 60. Defendants moved to re-open the discovery
period for the limited purpose of taking Plaintiff's
deposition, and the motion was granted. See dkt. #s 61, 63.
At the end of discovery, Defendants filed the instant motion,
bringing the case to its present posture.