Gonzalez v. Jones

Full title: PATRICK GONZALEZ, Plaintiff, v. MARIA JONES et al., Defendants

Court: United States District Court, S.D. New York

Date published: Feb 11, 2010

07 Civ. 2126 (LAP) (S.D.N.Y. Feb. 11, 2010)

Opinion

07 Civ. 2126 (LAP).

February 11, 2010

ORDER

LORETTA PRESKA, District Judge

Plaintiff Patrick Gonzalez ("Plaintiff"), a pro se prisoner, brought this action under 42 U.S.C. § 1983 alleging that certain Defendants wrongfully injured him when they treated him for a hypoglycemic episode. On May 15, 2009, Defendants moved for summary judgment dismissing Plaintiff's Amended Complaint in its entirety. [See dkt. no. 39.] Plaintiff did not oppose Defendants' motion. On November 20, 2009, Magistrate Judge Theodore H. Katz issued a Report and Recommendation ("Report") recommending that this Court grant Defendants' motion. [See dkt. no. 46.] At Plaintiff's request, the Court granted two extensions of time for him to file objections to the Report. [See dkt. nos. 47, 48.] On February 8, 2010, Plaintiff submitted a letter (attached) (hereinafter "Pl.'s Objections") contending that certain documents attached as exhibits to the letter raise a genuine issue of material fact that preclude the grant of Defendants' motion (see id. at 2-3). For the reasons set forth below, the Court adopts the Report and grants Defendants' motion.

I. Standard of Review

When reviewing a Report and Recommendation, a District Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The District Court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); Grassia v. Scully, 829 F.2d 16, 19 (2d Cir. 1989). Congress used the phrase "de novo determination" in Section 636(b)(1) "to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. 667, 676 (1980). A District Judge may, in his or her sound discretion, afford a degree of deference to the Magistrate Judge's Report and Recommendation. See id. When a party makes general or conclusory objections, or simply repeats his or her original arguments, the Court reviews the Report and Recommendation only for clear error. See Barratt v. Joie, No. 96 Civ. 0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002).

A. Legal Standard for Summary Judgment

A party moving for summary judgment will prevail only "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). "An issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the non[-]moving party.' A fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law.'" Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In assessing whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to the non-moving party. Lucente v. IBM Corp., 310 F.3d 243, 253 (2d Cir. 2002).

B. Application to the Report and Recommendation

Pursuant to this legal standard, the Court rejects Plaintiff's objections and adopts the Report. The text of Plaintiff's letter merely restates the allegations of the Amended Complaint. (See Pl.'s Objections 2-3.) Exhibit A to that letter is a reproduction of certain parts of the Amended Complaint. (See id. Ex. A.) As such, these documents do not carry Plaintiff's burden. See Parks Real Estate Purchasing Group v. St. Paul Fire Marine Ins. Co., 472 F.3d 33, 41 (2d Cir. 2006) ("[T]he party opposing summary judgment may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." (Citation and internal quotation marks omitted.)).

Exhibits B, C, and D to Plaintiff's letter consist of certain of Plaintiff's medical records. (See id. Exs. B-D.) These records show the following three facts. First, Plaintiff underwent surgery and post-operative treatment to relieve carpal tunnel syndrome. (See id. at 371-72, 380, 390-91; Exs. C-D.) Second, Plaintiff experienced painful swelling in his forearm beginning shortly after Defendants treated him for his hypoglycemic episode. (See id. Ex. B at 371, 391; Exs. C-D.) Third, Plaintiff suffered from diabetes. (See id. at 395.) These facts do not carry Plaintiff's burden because, taken together with the documents attached to the Amended Complaint, they still do not show that any Defendant caused Plaintiff's carpal tunnel syndrome. To the contrary, Dr. Perilli's Declaration shows that Plaintiff's diabetes caused his carpal tunnel syndrome (see Perilli Decl. ¶ 19), and Plaintiff's documents do not suggest otherwise. To the extent Plaintiff's alleged injury is not carpal tunnel syndrome but rather the painful swelling in his arm, nothing in Exhibits B-D suggests that any Defendant acted with a "sufficiently culpable state of mind" when treating Plaintiff for his hypoglycemic episode.Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). Indeed, the only permissible inference from all the evidence is that Defendants treated Plaintiff for his medical emergency with a sincere concern for his well being. (See Jones Decl. ¶¶ 9-21 (providing a detailed description of Defendants' course of action in treating Plaintiff for his hypoglycemic episode).) In short, Exhibits B-D do not carry Plaintiff's burden because Plaintiff still has no evidence tending to prove other elements of his claim.

II. CONCLUSION

Having reviewed the Report and Recommendation and finding it thorough and well reasoned, and having reviewed Plaintiff's objections and finding them meritless, the Court adopts the Report and Recommendation to the extent consistent with this Order. Defendant's motion for summary judgment [dkt. no. 39] is GRANTED, and Plaintiff's Amended Complaint [dkt. no. 20] is DISMISSED in its entirety. The Clerk of Court shall mark this action CLOSED and all pending motions DENIED as moot.

SO ORDERED.

EXHIBITS EXHIBIT "A"

D. Facts: On 2-20-04, at approximately 5:00 p.m., I was taken to the Sing-Sing C.F. Emergency Room by 4 inmates and Officer Crespo to be treated for a diabetic hypoglycemic (low sugar) reaction. Iwas treated by Nurse Jones, M., Registered Nurse. I was unconscious, therefore I should have received a glucagon shot, which was available in the E.R. locker for this type of situation. However, Nurse Jones opted to insert an I.V. in my arm. She stabbed me in both arms repeatedly, unable to insert the I.V. needle appropriately. I bled all over the gurney due to her failed attempts. Nurse Administrator Hansen came to Jones' aid, and between the two the I.V. was inserted improperly and tape my arm to the side of the gurney, securing it. I was left unattended by both for a long period of time. I woke in excruciatring pain in my arm/hand, especially at needle insertion area (left backhand). My hand/arm were extremely swollen (edema). I asked Officer Crespo to call the nurse as I couldn't tolerate the pain. When Jones appeared I complained of the pain/swelling. I demanded to be seen by aspecialist in an outside hospital to alleviate the pain and eliminate the swelling. I was taken to Phelps Memorial Hospital, waited about an hour, and was seen by R.C. Nowek, M.D. He took a cursory glance, and despite my requests to be seen by a Specialist, he sent me back to the Sing-Sing Facility Hospital with instructions to keep me over-might to observe for Necrosis (nerve/tissue/cell damage or death), instead of referring me to be seen by a Specialist (Orthopedist), to ascertain and treat me accordingly. being that I'm a diabetic. I contracted Carpal Tunnel Syndrome that required surgery. I have nerve damage and atrophy. Two inmates and Officer Crespo witnessed what occurred at the Sing-Sing C.F. Hospital and two Officers, Sosa, (and John Doe) witnessed what transpired at Phelps Memorial Hospital. which, as all of the aforementioned, constitute deliberate indifference.

III. Injuries:

IV. Exhaustion of Administrative Remedies:

Due to theextreme loss of strength in my arm and the constant pain and tingling feeling in my hand/forearm, which was later diagnosed as Carpal Tunnel Syndrome, I was operated on for release. Presently I still suffer from the constant pain and tingling feeling with loss of strength and atrophy with nerve and irreparable muscle damage. The lack of post surgery Physical Therapy I was subjected to and then completely negated, attributed to my present condition. My arm stiffens up completely at times.42 U.S.C. § 1997e

X

A. Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility? Yes No ___

"CONTINUATION OF FACTS" (from page 33)

The HMO's role was vital to Plaintiff's getting treated as w***ILLIEGIBLE TEXT***-ranted. The HMO was denying requests made for treatments that he/she biasedly deemed unworthy of any treatment. (i.e. to be seen by a Specialist (Orthopedist) for assessment ofr surgery, ditto an EMG/NCS technician. Post-surgery Physical Therapy was wrongfully delayed due to the unjustified HMO denials, furthermore of check-ups by the Orthopedist/surgeon for any other treatment necessary. Sing-Sing Correctional Facility. X of not X X Sing-Sing C.F. If YES, name the jail, prison, or other correctional facility where you were confined at the time of the events giving rise to your claim(s). ___________________________________________________________________________________________ B. Does the jail, prison or other correctional facility where your claim(s) arose have a grievance procedure? Yes No ___ Do Not Know ___ C. Does the grievance procedure at the jail, prison or other correctional facility where your claim(s) arose cover some or all of your claim(s)? Most, minus the HMO as in this case and Yes ___ No ___ Do Not Know all. possibly others. If YES, which claim(s)? ______________________________________________________________________________ D. Does the grievance procedure at the jail, prison or other correctional facility where your claim(s) arose cover some of your claim(s)? Yes No ___ Do Not Know ___ If YES, which claim(s)? _______________________________________________________________________________ E. Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose? Yes No ____ If NO, did you file a grievance about the events described in this complaint at any other jail, prison, or other correctional facility? Yes ___ No ___ F. If you did file a grievance, about the events described in this complaint, where did you file the grievance? 1. Which claim(s) in this complaint did you grieve? Nurse Jones' injuring me (deliberate indifference). Denials (a) medical treatment for injury, b) HMO treatment denials, c) delays and/or no Physiacal Therapy provided

2. What was the result, if any? Denied all with the exception of one being granted in part regarding no retaliation behalf of the medical dept. or by Corrections Officers or staff for filing my grievance against Jones.

3. What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to the highest level of the grievance process. In all the grievances I appealed to theSuperintendent. Brian Fischer, then appealed all his denials to the Inmate Grievance Program Central Office Review Committeee, hence, exhausting all available remedies afforded to me by the N.Y.S. Department Of Correctional Services.

G. If you did not file a grievance, did you inform any officials of your claim(s)?

EXHIBIT "B" THE MOUNT VERNON HOSPITAL Mt. Vernon, New York 10550

GONZALEZ, PATRICK #000291236 DATE OF OPERATION: SEPTEMBER 22, 2004 SURGEON: RICHARD M. MAGILL, M.D. ASSISTANT: MAZDA ALAIE, S.A. PREOPERATIVE DIAGNOSIS: LEFT CARPAL TUNNEL SYNDROME AND ADHESIONS OF THE INDEX AND LONG FINGER FLEXOR TENDONS POSTOPERATIVE DIAGNOSIS: SAME OPERATIVE PROCEDURE: LEFT CARPAL TUNNEL RELEASE. EXPLORATION AND TENOLYSIS OF THE FLEXOR TENDONS IN THE FOREARM. PROXIMAL MUSCULOTENDINOUS LENGTHENING OF THE INDEX AND LONG SUPERFICIALIS TENDONS ANESTHESIA: GENERAL ENDOTRACHEAL ESTIMATED BLOOD LOSS: MINIMAL REPLACEMENT: CRYSTALLOID COMPLICATIONS: NONE CONDITION: STABLE TOURNIQUET TIME: APPROXIMATELY 60 MINUTES

OPERATIVE INDICATIONS AND FINDINGS:

Fifty-one year old male diabetic presents with left carpal tunnel syndrome and in addition has evidence of adhesions of the index and long finger flexor tendons. He had a history of an IV infiltration and significant swelling of the proximal forearm and he reports that his symptoms started soon after this. His EMG's are positive. He has thenar atrophy. He is indicated for carpal tunnel release and a tenolysis of his flexor tendons with exploration of the tendons for the point of adhesion.

DESCRIPTION OF OPERATION:

The patient was brought to the Operating Room where general endotracheal anesthesia was administered. The left upper extremity was prepped with Betadine solution and draped in the usual sterile fashion. An extended carpal tunnel incision is made into the left wrist. Using sharp and blunt dissection the incision is carried down to the flexor retinaculum which is released from distal to proximal after placing a hemostat into the carpal canal and transecting the flexor retinaculum on its ulnar border. The incision extended proximally and the nerves and tendons are identified proximally. There is no evidence of adhesions in the tendons in the carpal canal or in the distal forearm. The incision was extended proximally towards the elbow in 2 inch increments and each of the tendons of the fingers are traced proximally. The incision is carried up to the proximal muscle tendon junction of the tendons and this is where adhesions and scarring are found and as noted with attempted passive extension of the long and ring fingers that these areas are tight. The tendons are lengthened at the musculotendinous junction making step-cuts in each of the tendons to allow the finger to be fully extended with the wrist extended. The wounds are irrigated. The skin is closed with 4-0 nylon suture. A bulky soft dressing is applied with a splint. The patient was awakened and taken to the Recovery Room in stable condition having tolerated the procedure well. _______________________________ RICHARD M. MAGILL, M.D. Fri Sep 24, 2004 09:59 am Copy Copy Surgical Pathology Report Patient: GONZALEZ, PATRICK Age: 51Y Sex: M Unit#/Acct#: V000291236/V10088565 Case#: S04-2236 Location: ASM Accn#: 5020248 Att Phys-Serv: MAGILL, RICHARD — V-AMBULATORY SURGCompleted: 09/24/04 0959 Ordering Phys: MAGILL, RICHARD Received: 09/23/04 0907 Order Dx: LT CARPAL TUNNEL RELEASE W/TEN Collected: 09/22/04 0000 ********************** SURG PATH, GROSS MICRO LEV IV ********************** Specimen(s):

Specimen Type:

Muscle tendon junction, left hand.

CLINICAL INFORMATION:

Carpal tunnel syndrome, left middle finger.

GROSS EXAMINATION:

In formalin and labeled as muscle and tendon of left hand, the specimen consists of three irregular fragments of gray-white to tan, rubbery, fibromuscular tissue, the largest measures 1.5 × 1 × 0.7 cm in dimension. Submitted entirely.

MICROSCOPIC EXAMINATION:

The slide is reviewed.

DIAGNOSIS:

Fibromatosis,

Tendon, left middle finger, excision of.

2B

By: Kun-Young Chung, M.D. Signature on file: Kun-Young Chung, M.D. End of Report — 09/24/04 10:00am

Surgical Pathology Report GONZALEZ, PATRICK Final V000291236/V10088565 LABORATORY (V) Exhibit THE MOUNT VERNON HOSPITAL MOUNT VERNON, N.Y. NURSING DIAGNOSIS: ALTERATION IN COMFORT RE: __________________ A. OUTCOME OBJECTIVES AND GOALS: B. NURSING ACTIONS AND INTERVENTIONS C. TEACHING 1. Patient's comfort level will improve as evidenced by decreases or absent discomfort, either verbalized or non- verbalized (decreased grimacing, crying, etc). 2. 3. 4. 5. 6. 1. Assess for pain and medicate as indicated. 2. Promote comfort: imagery, quiet environment, ___________________, ____________________, ____________________. 3. Reassess for pain when vital signs are taken, and more frequently 4. as needed. 5. 6. 7. 8. 9. 1. Teach patient means of achieving comfort. 2. Initiate health referral prn. 3. 4. 5. DATE STARTED: ***ILLIEGIBLE TEXT***/22/04 SIGNATURE __________ DATE STOPPED: ________ SIGNATURE __________ Exhibit

EXHIBIT "C"

Exhibit

EXHIBIT "D"

NEW YORK MEDICAL COLLEGE

DEPARTMENT OF ORTHOPAEDIC SURGERY 19 BRADHURST AVENUE, SUITE 1300N HAWTHORNE, NEW YORK 10532 RICHARD M. MAGILL, M.D. HAND UPPER EXTREMITY SURGERY 914-789-2733 MICROVASCULAR SURGERY 914-789-2743 FAX August 12, 2004

Dr. Halkow

Sing Sing Correctional Facility

354 Hunter Street

Ossining, NY 10562

Re: PATRICK GONZALEZ

Dear Dr. Halko:

Mr. Patrick Gonzalez was seen in the Clinic on 7/29/04. He is a 51 year old male with a history of diabetes, I ***ILLIEGIBLE TEXT*** development of ***ILLIEGIBLE TEXT*** with positive NCS and EMG's suggestive of carpal tunnel with supraimposed diabeti***ILLIEGIBLE TEXT*** in his complaint he reports numbness, weakness, constant pain which wakes ***ILLIEGIBLE TEXT*** at night and he has to shake the hand our. He has a history of an IV infiltration causing a significant edema of the forearm. He relates the symptoms after this injury.

On exam he is noted to have thenar atrophy, atrophy also of the first dorsal interosseous. He also is noted to have contracture of his long and ring finger IP joints with wrist extension suggestive of adhesions of the long and ring finger superficialis tendons. Based on his positive EMG and nerve conduction velocity studies, his history especially of numbness, weakness, waking at night and having to shake the hand out which is very characteristic of carpal tunnel syndrome and the physical evidence of thenar atrophy and the tendon adhesions I have recommended a carpal tunnel release with tenolysis of the flexor tendons. The tendon contractors may also indicate that the patient had a mild form of compartment syndrome at the time of his IV infiltration. It is unlikely conservative treatment will correct the adhesion that have developed in his tendons and the approach to the tendons would involve a standard carpal tunnel release as well as an incision above the wrist to completely address the adhesions that he has developed after this IV infiltration.

If you have any questions feel free to contact me.

Sincerely,

Richard M. Magill, M.D.

RMM/lp

T 08/13/04