United States District Court, S.D. New York
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
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
the Court is plaintiffs motion for leave to file a Fourth
Amended Complaint C'FAC"). (Docs. ##163, 164.
reasons set forth below, plaintiffs motion is DENIED.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
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.
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
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.
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.
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.
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
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.
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).
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).
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.
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).
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.
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.
claims his severe spinal cord impingement caused irreversible
spinal cord damage. He is now classified as a paraplegic with
severe spasticity. "
procedural background of this case is recited only to the
extent necessary for deciding plaintiffs motion.
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).
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).
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).
25, 2016, plaintiff received discovery material regarding his