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Gist v. Recktenwald

United States District Court, S.D. New York

June 15, 2017

DARREEL GIST, Plaintiff,



         Plaintiff Darrell Gist, proceeding pro se and in forma pauperis, brings civil rights claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388 (1971), against correction officers, medical staff, and the warden at Federal Correctional Institution Otisville ("FCI Otisville").

         Before the Court is plaintiffs motion for leave to file a Fourth Amended Complaint C'FAC"). (Docs. ##163, 164. 166).'

         For the reasons set forth below, plaintiffs motion is DENIED.[1]

         The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331(a).


         I. Factual Background

         In deciding the pending motion, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in plaintiffs favor. Construed liberally, the proposed FAC alleges the following.

         While incarcerated at FCI Otisville on April 23, 2012, plaintiff had x-rays taken of his neck. Sometime after these x-rays were taken, defendant Sommer, the clinical director and institutional physician at FCI Otisville, and defendant Vander Hey-Wright, a physician's assistant employed by the United States Public Health Service Commissioned Corps ("PHS"), allegedly misread these x-rays. Their error caused Sommer and Vander Hey-Wright to misdiagnose plaintiff with polymyositis instead of realizing plaintiff was developing degenerative disc disease and cervical myelopathy.

         At about 2:30 a.m. on April 11, 2014, plaintiff fell and hit his head and neck, which caused him to lose feeling in his left arm and rendered him paralyzed from the waist down. As plaintiff was lying on the floor, he called out for assistance. Defendant Hunter, a correction officer, was the first to respond. Plaintiff told Hunter, "I fell and hit my head against the locker[.J I can't feel my legsf.] . . . I think I'm [p]aralyzed." (Doc. #166-1 at 3 (omission in original)). Hunter called defendant Pearson, an operations lieutenant, but neither called for emergency medical care. Defendant O'Maliey, a correction officer, asked plaintiff if he was feeling any pain, and plaintiff responded, "No. 1 can['t] feel anything below my waist." (Doc. #166-1 at 4). Plaintiff told O'Maliey he was injured and needed to go to the hospital. Plaintiff instructed O'Maliey not to touch plaintiff. Defendants Pearson. Hunter, O'Maliey, and defendant McGrath, a correction officer, refused plaintiffs request to go to the hospital for medical treatment. Instead, over plaintiffs objections, O'Malley, McGrath, and Hunter lifted plaintiff and carried him to his bed, further injuring plaintiff. O'Malley, McGrath, and Hunter informed plaintiff they would have medical staff address his concerns when staff arrived later that morning.

         At around 6:00 a.m., a non-defendant correction officer arrived and, along with an inmate, moved plaintiff to a wheelchair to transport him to the medical department. However, when the officer left shortly thereafter, plaintiff fell out of the wheelchair, hit his head, and was rendered unconscious. While plaintiff regained consciousness, the non-defendant officer called the medical department. About forty-five minutes later, defendant Walls, the health service administrator at FCJ Otisville, arrived to bring plaintiff to the medical department on a stretcher.

         While in the medical department, plaintiff underwent a CT scan. Plaintiff repeatedly requested to go to the hospital, but defendants Sommer and Walls denied the request. Instead, plaintiff was left unattended for three hours in the medical department before Walls moved him to the suicide watch room.

         In the suicide watch room, defendants Walls and Vander Hey-Wright transferred plaintiff from the stretcher to a mattress, dropping plaintiff onto the floor. Vander Hey-Wright did not provide plaintiff with medication or other treatment at this time.

         Sometime thereafter, Sommer reviewed plaintiffs CT scan and, after not seeing any acute fractures, decided not to provide further treatment, examine plaintiff, or have plaintiff transferred to the hospital.

         Later, plaintiff telephoned his sister to complain about the prison staffs deficient medical care. Plaintiffs sister filed a complaint against Sommer and Vander Hey-Wright. Sommer told plaintiff that if he continued to complain, Sommer "would have [plaintiff] shipped far away from home." (Doc. #166-1 at 8).

         At about 2:00 p.m., Vander Hey-Wright received the results from plaintiffs CT scan, which confirmed that plaintiff suffered from a "severe disc [i]mpedimenf causing severe spinal cord compression that required immediate spinal cord decompression. (Doc. #166-1 at 8).

         Sommer, Vander Hey-Wright, Walls, and defendant Recktenwaid, the warden at FCI Otisville. reviewed plaintiffs medical flies, alerting them to plaintiffs serious medical issues. Despite this knowledge, they had plaintiff transferred to the Special Housing Unit ("SHU") instead of to the hospital. Walls and a non-party officer dragged plaintiff into a hallway where they lifted him onto a wheelchair and transported him to the SHU. Walls and defendant Whinnery, the captain of security at FCI Otisville, ordered all medical staff working in the SHU not to enter plaintiffs cell. Various non-defendant nurses denied plaintiff pain medication from April 12 through April 14, 2014, because he was unable to retrieve the medication for himself.

         On April 16, 2014, plaintiff requested an examination from Sommer, who initially refused. Instead, Sommer allowed plaintiff to remain in the SHU despite his extreme pain and severe neck and spinal cord injuries. On April 21, Sommer responded to plaintiffs request and explained to plaintiff the CT scan showed plaintiff suffered from bulging disc arthritis, which caused plaintiffs pain. Sommer flat out lied to [plaintiff] in her reply, she knew that a herniated disc was causing sever[e] cord imping[e]ment and compression." (Doc. #166-1 at 11).

         On April 30, 2014, plaintiff asked Walls why he was being denied treatment. Walls responded that plaintiffs requested treatment was too expensive and would affect FCI Otisville's insurance. Throughout the complaint, plaintiff alleges various defendants and other prison personnel indicated they believed plaintiff was exaggerating the extent of his medical issues.

         On May 7, 2014. plaintiff was transferred from FCI Otisville to Federal Medical Center Burner. There, plaintiff was examined by various medical personnel and underwent extensive testing. On June 6. plaintiff was diagnosed with cervical myelopathy and impaired functions, and an MRI was ordered. On June 9, the results of plaintiff s MRI showed he suffered from severe spinal cord compression in his cervical spine. Plaintiff underwent spinal cord surgery on June 26, 2014.

         Plaintiff claims his severe spinal cord impingement caused irreversible spinal cord damage. He is now classified as a paraplegic with severe spasticity. "

         II. Procedural Background

         The procedural background of this case is recited only to the extent necessary for deciding plaintiffs motion.

         Plaintiff filed the original complaint on August 18, 2014, naming as defendants Sommers, Walls, and "a variety of unknown medical staff members." (Doc. #1). On September 25, the Court issued an order directing service on the named defendants and informing plaintiff the allegations in his complaint were insufficient to assist the Court in identifying the unidentified defendants. (Doc. #6). On December 29, plaintiff filed a letter with the Court providing further information about the unidentified defendants. (Doc. #9). On January 7, 2015, the Court issued an order directing the United States Attorney to ascertain the identities of unidentified defendants pursuant to Valentin v. Dinkins. 121 F.3d 72, 76 (2d Cir. 1997), and directed plaintiff to file an amended complaint naming the defendants once identified, (Doc, #10). The Court informed plaintiff "ft]he amended complaint will replace, not supplement, the original complaint." (Doc. #10 at 2).

         On December 12, 2015, Walls and Sommers, the only then-identified defendants, answered the complaint. (Docs. ##47-48). On December 14, after receiving several extensions, the United States Attorney provided the identities of the unidentified defendants. On January 11. 2016, plaintiff filed the First Amended Complaint, alleging substantially the same events alleged in the proposed FAC and naming the newly-identified defendants Whinnery, Vander Hey-Wright, Hunter, McGrath, O'Malley, and Pearson, along with already-identified defendants Walls and Sommers. (Doc. #52). On January 15, plaintiff moved to correct the amended complaint to add further allegations. (Doc. #53). The Court granted the motion, making the "'Corrected Amended Complaint" the operative complaint. (Doc. #55). Walls, Sommers, Hunter, McGrath, Pearson, Whinnery, and O'Malley's Estate answered the Corrected Amended Complaint. (Docs. ##58-59, 76-79, 86). Vander Hey-Wright moved to dismiss the Corrected Amended Complaint. (Doc. #73). By Memorandum Opinion and Order dated August 1, 2016, the Court granted Vander Hey-Wright's motion to dismiss based on her immunity under the Public Health Service Act ("PHSA"), 42 U.S.C. § 233(a). (Doc. #105 at 4-6). Plaintiff objected to Vander Hey-Wright's dismissal (Doc. #116) and moved "for leave of Court to exhaust administrative FTCA remedy." (Doc. #117). The Court denied both motions. (Doc. #119).

         On July 19, 2016, plaintiff moved for leave to file a Third Amended Complaint (•'TAC") to add more detailed allegations regarding the same events described in the prior pleadings, add Warden Recktenwald as a defendant, and add claims. (Doc. #103). The Court granted plaintiffs motion (Doc. #107), making the TAC the operative complaint, (Doc. #108). After the Court ruled on plaintiffs motion, defendants opposed the motion by filing a memorandum of law in opposition (Doc. #106) and seeking reconsideration. (Doc. #109). The Court denied reconsideration. (Doc. #112).

         On July 25, 2016, plaintiff received discovery material regarding his alleged ...

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