United States District Court, S.D. New York
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.
OPINION AND ORDER
PITMAN, UNITED STATES MAGISTRATE JUDGE
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).
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.
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
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
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) .
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).
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,
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) .
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,  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).
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).
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).
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).
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).
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" (Makram Decl.,
Ex. B, at MED1191). Dr. Makram referred the report to Dr.
Lancellotti (Makram Decl. ¶ 18).
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).
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, " no weakness on abduction or flexing and
"[positive] Biceps Belly deformity"(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). 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).
Return to Activities
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).
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).
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) .
Relevant Procedural History
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).
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).
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,