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Gilmore v. Carey

United States District Court, N.D. New York

May 16, 2017

FURMAN GILMORE, Plaintiff,
v.
JOSEPH CAREY, Parole Officer, SHANA YANNONE, ANDY JONES, Police Investigator, Catskill Police Department, GREGORY SAGER, Police Lieutenant, Catskill Police Department, FRASCELLO, Police Sargeant, Catskill Police Department, YOUNGBLOOD, New York State Police Sr. Police Investigator, DONN, New York State Police Investigator, AUGIAR, New York State Police Investigator, WALTER HUBICKI, Doctor, Greene County Jail, DONNA JULIANIO, Nurse, Greene County Jail, Defendant.

          DECISION & ORDER

          THOMAS J. McAVOY, Senior United States District Judge

         Defendants 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.

         I. BACKGROUND[1]

         On 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.

         On 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.

         On 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.

         On 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 stated,

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.

         Columbia 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.

         On May, 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.

         At the 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.

         Plaintiff, 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.

         At some 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.

         II. ...


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