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DeMeo v. Koenigsmann

United States District Court, S.D. New York

July 7, 2017

FRANK A. DeMEO, Plaintiff,
CARL J. KOENIGSMANN, MD, Deputy Commissioner, Chief Medical Officer, N.Y.S. Department of Correction and Community Supervision, in an official capacity, et al., Defendants.



         I. Introduction

         Plaintiff Frank A. DeMeo, a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), proceeding pro se, commenced this action against defendants Drs. Carl J. Koenigsmann, Timothy Whalen, Mervat Makram, Jonathan Holder and Frank Lancellotti, pursuant to 42 U.S.C. § 1983, alleging that defendants were deliberately indifferent to injuries to his right shoulder and biceps muscle that were sustained during his incarceration at Woodbourne Correctional Facility ("Woodbourne"). Plaintiff also asserts state law claims for medical malpractice and negligence against defendants. Plaintiff seeks damages, as well as declaratory and injunctive relief. By notice of motion dated January 28, 2016, Drs. Koenigsmann, Whalen and Makram move for summary judgment (Notice of Motion, dated Jan. 28, 2016 (Docket: Item ("D.I.") 91).

         The parties have consented to my exercising plenary jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendants' motion fo2' summary judgment is granted and the complaint is dismissed.

         II. Facts

         A. Background

         Plaintiff had been in DOCCS custody since 19£:4 (Declaration of Steven N. Schulman, Esq., dated Jan. 28, 2016 (D.I. 96) ("Schulman Decl."), Ex. D, at 13:17-13:23). He arrived at Woodbourne in June 2007 (Schulman Decl., Ex. D, at 15:5-15:9).

         Plaintiff had surgery on his shoulders before the alleged events that give rise to this action. In 2003, surgery was performed on his left shoulder to repair a torn rotator cuff (Schulman Decl., Ex. D, at 12:5-12:9). In 2005, a cyst; was surgically removed from plaintiff's right shoulder (Schulman Decl., Ex. D, at 12:5-12:11). In 2007, plaintiff's right rotator cuff was surgically repaired (Schulman Decl., Ex. D, at: 12:5-12:12). As a result of the 2003 and 2007 surgeries, plaintiff has metallic screws in both shoulders (Schulman Decl., Ex. D, at 12:20-12:25, 34:13-34:17 & Ex. F, at MED068-70).

         B. The Injury

         On October 13, 2010, plaintiff was working as a porter in Woodbourne's gym, storing dumbbells on their racks, when he "felt something pop" in his right arm (Schulman Decl., Ex. D, at 19:13-19:17). Prior to that injury, plaintiff had noticed a "clicking" in his right arm for weeks and "felt that something was going to happen" (Schulman Decl., Ex. D, at 25:23-26:4) .

         Plaintiff immediately reported his injury to a correction officer, who called the infirmary (Schulman Decl., Ex. D, at 19:18-19:20). The infirmary said that plaintiff's injury did not warrant an emergency sick call (Schulman Decl., Ex. D, at 19:21-19:25) . After waiting a day or two to see how he felt, plaintiff signed up for regular sick call due to discomfort and a significant loss of strength in his right arm and shoulder (Schulman Decl., Ex. D, at 24:22-25:1).

         C. The Diagnosis

         Plaintiff was seen by a nurse at regular sick .call on October 18, 2010; by that date, plaintiff's arm had turned black and blue (Schulman Decl., Ex. D, at 22:5-22:9, 25:2; Declaration of Dr. Mervat Makram, dated Jan. 14, 2016 (D.I. 95) ("Makram Decl."), Ex. A, at MED136). After noting a bruise on plaintiff's biceps and an "obvious deformity, " the nurse referred plaintiff to a physician's assistant, Genevieve Switz, who saw plaintiff the same day (Schulman Decl., Ex. D, at 25:2-25:4; Makram Decl. ¶ 7 & Ex. A, at MED136). Switz also noted a bruise on the biceps, but reported that plaintiff had "no pain" and "no loss of strength" (Makram Decl., Ex. A, at MED136). Switz diagnosed plaintiff with a "possible rupture of the proximal biceps tendon, " i.e.., a rupture at the shoulder end of the biceps (Makram Decl. ¶ 7 & Ex. A, at MED136). Switz requested a referral for magnetic resonance imaging ("MRI"), directed plaintiff to wear a sling until the MRI report was available and restricted plaintiff's activities (Makram Decl., Ex. A, at MED136). Plaintiff wore the sling for approximately one week (Schulman Decl., Ex. D, at 55:12-55:14).

         An x-ray was also taken that same day (Schulman Decl., Ex. D, at 29:10-30:13). A report dated October 21, 2010 and reviewed by Dr. Makram on October 26, 2010 did not disclose a ruptured biceps or torn rotator cuff based on the x-ray (Makram Decl. ¶ 8 & Ex. B, at MED068). However, according to Dr. Makram, the lack of such findings was inconclusive because an MRI is more effective than an x-ray in revealing soft tissue injuries (Makram Decl. ¶ 8) .

         Approval for the MRI required analysis under DOCCS's "utilization review process" for specialist referrals (Schulman Decl., Ex. H; Makram Decl. ¶ 9). Switz and Dr. Lancellotti, plaintiff's primary care physician, initiated the utilization review process the same day that Switz saw plaintiff by electronically entering a request into DOCCS's computer system with an urgency level of "soon"; this designation meant that the MRI should be provided within two weeks (Makram Decl. ¶ 10 & Ex. B, at MED1821). Switz also noted that there were metal fragments in plaintiff's left shoulder (Makram Decl. ¶ 11 & Ex. B, at MED069). DOCCS's contracted utilization reviewer, APS, [1] reviewed the request that same day and determined to defer the decision pending more information (Makram Decl. ¶ 12 & Ex. B, at MED1822). Specifically, APS wanted to know whether any weakness or instability was noted on physical examination (Makram Decl. ¶ 12 & Ex. B, at MED1822) . On October 21, 2010-, Dr. Lancellotti informed APS that plaintiff had "bulging of biceps toward elbow on flexion; decreased motor ability to flex @ elbow; weakness of muscle [] distal [sic! to shoulder; large hematoma on flexor side of upper arm" (Makram Decl. ¶ 13 & Ex. B, at MED1822). Based on this information, on October 22, 2010, APS approved the MRI on a "soon" basis (Makram Decl. ¶ 13 & Ex. B, at MED1822).

         The first radiologist contacted to conduct the MRI refused to do so because of the metal screws in plaintiff's shoulders; according to Dr. Makram, metallic objects in the body require special safety precautions and could adversely affect the images produced by the MRI (Makram Decl. ¶ 16). Accordingly, Dr. Makram spent several days trying to find a radiologist willing to conduct the MRI at a location suitable for a medium security inmate (Makram Decl. ¶ 16). Albany Medical Center agreed to perform the MRI, which took place on November 15, 2010 (Schulman Decl., Ex. D, at 36:20-36:21; Makram Decl. ¶¶ 16, 18).

         Dr. Makram's only role concerning the MRI was finding a radiologist willing to perform it (Makram Decl. ¶ 17). At no point did Dr. Makram disapprove the MRI, nor was she involved in APS's request for more information (Makram Decl. ¶ 17).[2]

         Dr. Whalen was not involved in approving the MRI (Makram Decl. ¶ 15). As Regional Medical Director, Dr. Whalen would not have been involved in the utilization review process unless APS preliminarily denied the request for an MRI, which did not occur here (Schulman Decl., Ex. H ¶ III.A.4; Makram Decl. ¶ 15).[3]

         There is no evidence in the record indicating that Dr. Koenigsmann was involved in the approval of plaintiff's MRI. As Chief Medical Officer, Dr. Koenigsmann would not have ordinarily been involved in the approval of an injury-related MRI (Makram Decl. ¶ 15).

         The MRI report, dated November 22, 2010, arrived at Woodbourne on November 29, 2010; Dr. Makram reviewed it on December 1, 2010 (Makram Decl. ¶ 18 & Ex. B, at MED1191). The report stated that plaintiff had a "full thickness retracted proximal biceps tendon rupture" with an approximately eight-centimeter distal retraction of the biceps tendon, "a large amount of surrounding fluid" and no evidence of muscle atrophy (Makram Decl., Ex. B, at MED1191). It also stated that plaintiff had a "full thickness re-tear of the supraspinatus tendon"[4] (Makram Decl., Ex. B, at MED1191). Dr. Makram referred the report to Dr. Lancellotti (Makram Decl. ¶ 18).

         Plaintiff met with Dr. Lancellotti on December 2, 2010 (Schulman Decl., Ex. D, at 42:7-42:14; Makram Decl., Ex. B, at MED090). Dr. Lancellotti informed plaintiff of the MRI results and requested a referral for plaintiff to see Dr. Holder, an orthopedic specialist, on a "soon" basis (Schulman Decl., Ex. D, at 44:10-44:19 & Ex. F, at MED090).

         Plaintiff saw Dr. Holder on December 9, 2010, at which time Dr. Holder reviewed the MRI images (Schulman Decl., Ex. D, at 40:23-41:17, 44:20-44:22; Makram Decl., Ex. B, at MED090). Dr. Holder reported that an examination of plaintiff's right shoulder indicated that plaintiff had a full range of motion with no restrictions, "no impingement or O'Brien's, "[5] no weakness on abduction or flexing and "[positive] Biceps Belly deformity"[6](Makram Decl., Ex. B, at MED090). He also noted that there was "[n]o clinical Rot[ator] Cuff tear-determined [and that no] orthopedic intervention [was warranted] at [that] time" (Makram Decl., Ex. B, at MED090). Dr. Holder opined that the MRI "reveal[ed] long head Biceps rupture -- supraspinatus tear, " and he opined that plaintiff's right biceps was "rupture-chronic --not surgically amenable for repair at this time" (Makram Decl., Ex. B, at MED090).[7] Dr. Lancellotti reviewed Dr. Holder's findings with plaintiff on December 23, 2010 (Schulman Decl., Ex. D, at 53:9-53:20; Makram Decl., Ex. A, at MED132).

         D. Return to Activities

         On December 31, 2010, plaintiff requested that medical restrictions that had been in place be lifted and that he be allowed to return to work (Schulman Decl., Ex. D, at 56:23-57:6; Makram Decl., Ex. B, at MED115). Dr. Lancellotti cleared plaintiff for "full duty" as a porter (Schulman Decl., Ex. D, at 57:19-58:12 & Ex. F, at MED103), although plaintiff testified that he did not "really perform any weight room activities or porter work" because "there's other porters there[] [a]nd [his] boss at that time, he gave [plaintiff] a lot of leeway" (Schulman Decl., Ex. D, at 58:13-58:22).

         Plaintiff ultimately resumed lifting weights because his pain had ceased and he had a full range of motion (Schulman Decl., Ex. D, at 59:2-59:9). He continued this activity until November 29, 2011, when he was disciplined for fighting (Schulman Decl., Ex. D, at 59:10-60:7).

         By late 2011, plaintiff had a second MRI, which revealed a torn right rotator cuff (Schulman Decl., Ex. D, at 60:25-61:21). This tear was surgically repaired in June 2012, when plaintiff was in the Clinton Correctional Facility (Schulman Decl., Ex. D, at 61:22-62:1). Plaintiff never had surgery on his biceps (Schulman Decl., Ex. D, at 12:7) .

         E. Relevant Procedural History

         Plaintiff commenced this action pro se on October 3, 2011 (Complaint, dated Oct. 3, 2011 (D.I. 2)). He asserted claims against Drs. Koenigsmann, Whalen and Makram in their individual and official capacities and against Drs. Holder and Lancellotti in their individual capacities. Plaintiff alleged that defendants (1) were deliberately indifferent to his right biceps and shoulder injuries by delaying the diagnosis and treatment of his injuries; (2) were deliberately indifferent by denying a request to seek a second medical opinion and a second MRI; (3) were negligent and (4) committed medical malpractice (First Amended Complaint, dated May 15, 2012 (D.I. 45) ("Am. Compl.") ¶¶ 1, 15-83). Plaintiff also alleged that Dr. Koenigsmann was liable under a theory of respondeat superior (Am. Compl. ¶¶ 84-87). Plaintiff sought three million dollars in compensatory damages for physical and emotional injury, a declaratory judgment that defendants violated his Eighth /Amendment rights and an injunction ordering defendants "to carry out without delay adequate medical care of Plaintiff [ ']s injuries and to not impede in any manner Plaintiff[']s physicians['] provision of adequate medical care" (Am. Compl., at 20).

         On June 2, 2014, defendants moved to dismiss plaintiff's claims against them (Notice of Motion, dated June 2, 2014 (D.I. 62)). I issued an Opinion and Order on March 20, 2015 granting the motion in part and denying it in part. Specifically, I dismissed all claims against Drs. Lancellotti and Holder (Opinion and Order, dated Mar. 20, 2015 (D.I. 67) ("Opinion and Order"), at 53). I also dismissed all claims against Drs. Koenigsmann, Whalen and Makram in their official capacities (Opinion and Order, at 27). Additionally, I dismissed all of plaintiff's claims concerning his allegation that defendants were deliberately indifferent in delaying a referral for a second opinion and second MRI after Dr. Holder's December 9, 2010 evaluation (Opinion and Order, at 37-39). I also dismissed plaintiff's state law claims and claims based on the doctrine of respondeat superior (Opinion and Order, at 53). However, I concluded that plaintiff plausibly alleged an Eighth Amendment claim against Drs. Koenigsmann, Whalen and Makram in their individual capacities with respect to whether they were deliberately indifferent and thereby unduly delayed plaintiff's MRI and the referral to Dr. Holder (Opinion and Order, at 27-36).

         On August 31, 2016, Drs. Koenigsmann, Whalen and Makram filed the present motion seeking summary judgment with respect to the remaining claims against them (Notice of Motion, dated Jan. 28, 2016 (D.I. 91)). Plaintiff submitted his opposition to my chambers by letter dated December 28, 2016.[8]

         III. Analysis

         A. Applicable Principles

         1. Summary ...

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