Opinion
00 CIV. 4709 (DLC)
October 28, 2002
For Plaitiff: Rodney Boomer, Pro Se, Elmira, N.Y.
For Defendants: Lanigan, Grant, Barry, Caruso, Brown, and Samuel: Concepcion A. Montoya, New York, N.Y.
For defendants: Wright and St. Barnabas Hospital: Andrew Zwirling Garbarini Scher, New York, N.Y.
OPINION AND ORDER
Plaintiff Rodney Boomer ("Boomer"), who is proceeding pro se, brought this action on June 26, 2000, pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging excessive force and deprivation of medical treatment in violation of the Fourteenth Amendment in connection with an alleged January 5, 2000 assault on him by corrections officers at the Bronx County Courthouse and his subsequent treatment at the Bronx House of Detention and Harlem Hospital. Boomer also alleges assault, battery, and negligence under state law. Defendants Gary M. Lanigan ("Lanigan"), Commissioner of the New York City Department of Correctional Services ("NYC DOCS"), Leroy Grant ("Grant"), Warden of the Otis Bantum Correctional Center at Riker's Island ("OBCC"), Deputy Warden James Barry ("Barry"), Michael Caruso ("Caruso"), the Inspector General for NYC DOCS, Dr. Patrick Brown ("Brown") of the New York City Health and Hospitals Corporation, and Dr. George Samuel ("Samuel") of Harlem Hospital move for summary judgment. St. Barnabas Hospital and Dr. Wright ("Wright") also move for summary judgment. For the reasons stated, defendants' motions for partial summary judgment are granted in part.
Background
The following facts are undisputed or as alleged by Boomer unless otherwise noted. Boomer has a history of epilepsy, resulting from a head injury sometime in 1996 or 1997, and walks with a cane because of an injury sustained during a fight with an inmate. Boomer also has a long history of back pain for which he has received physical therapy.
On January 5, 2000, while a pretrial detainee, Boomer was taken to the Supreme Court in Bronx County for a meeting with his attorney scheduled for 1:00 p.m. After meeting with his attorney, he was taken to a holding cell on the fourth floor of the courthouse, where he waited for approximately twenty minutes. Several corrections officers, who have not moved for summary judgment, then entered Boomer's cell and placed restraints on his arms and legs. One of the corrections officers, whom Boomer identifies as Captain Cruse ("Cruse"), then asked Boomer if he had a cane permit. In his third amended complaint (the "Complaint"), Boomer states that before he could answer, Cruse "snatched the plaintiff's cane and legal documents. The plaintiff tried to verbally protest and was swiftly cut off by Defendant M. Kanner who sprayed chemical agent into plaintiff's eyes, face and hair." Boomer further states that Cruse ordered the other corrections officers to assault him, after which he was "kicked and punched about the body and head."
Boomer states that he was then "dragged" to a holding cell on the first floor of the courthouse, where he suffered a seizure. As he recovered from the seizure, Cruse ordered Corrections Officer Shipmon ("Shipmon") to pour cold water on Boomer's face. Boomer states that he "choked violently" from the water. When Boomer tried to stand up, Cruse ordered Kanner to spray a second burst of chemical agent at Boomer.
Boomer was then taken by bus to the Bronx House of Detention, "dragged" to the intake shower area, and then "dragged" again to the nurses' station. Boomer states that he was experiencing "excruciating back pain" at that time. At the nurses' station, Dr. Laroche ("Laroche") attempted to wipe the chemical agent out of Boomer's eyes. According to Laroche's "Injury to Inmate Report," which he completed at the time of the incident, Laroche attempted to administer a blood test to determine Boomer's Dilantin levels, but Boomer refused to be tested. Boomer states that he did not refuse the test. At the nurses' station, Boomer went into another seizure. Another bucket of water was poured on his face.
Dilantin is an anticonvulsant drug used for the treatment of epilepsy. A certain blood level of Dilantin is necessary for the drug to be effective.
When Boomer recovered, he was taken by ambulance to the emergency room of Harlem Hospital. He was then examined by an unidentified doctor. Boomer states that the doctor indicated to him that x-rays of his upper and lower back and left elbow would be taken, and that a blood test would be administered to determine his Dilantin level. Boomer states, however, that no x-rays were ever taken and no blood test was administered. After being examined by the doctor, Boomer was given Toradol, a non-steroidal anti-inflammatory drug used to treat pain, and Robaxin, a muscle relaxant used to treat muscle pains and spasms. Boomer was also given Motrin.
Defendants have submitted copies of Boomer's emergency room records for the evening of January 5, 1999, which consist of four pages in at least three different hand-writings, each of which is largely illegible. It appears from notations in these records that a "CBC" (complete blood count) was administered as well as a test to determine Boomer's dilantin level. Defendants have failed, however, in their submissions to explain these notations, nor have they submitted affidavits from the medical personnel who completed them. The records also indicate that "p[atien]t got up and walked in ER to get to DOC officer to spit at him," (emphasis in original) and that Boomer's condition had improved and he was "malingering."
At approximately 9:30 p.m., Boomer was "dragged" out of the emergency room of the Harlem Hospital and transported by bus back to the Central Punitive Segregation Unit ("CPSU") of the Otis Bantum Correctional Center ("OBCC") at Riker's Island. At the OBCC, Boomer was carried off the bus by stretcher and into the CPSU clinic. Boomer states that his removal from the emergency room at Harlem Hospital and transportation to the CPSU clinic were video taped. No video tape evidence has been submitted, however.
At the CPSU clinic, Boomer was examined by Physician's Assistant Beckford ("Beckford"). Boomer states that he was "still experiencing excruciating back pain, severe left elbow and [w]rist pain with weakness in both legs, knees and ankles." Boomer further states that he was unable to walk, sit up, or stand. Boomer was then taken by stretcher to the main clinic of the OBCC, where he was placed in a holding cell for several hours. According to Boomer, Beckford then told Boomer that Dr. Wright ("Wright") had instructed Beckford to have Boomer returned to his cell. Boomer was then returned by stretcher to his cell in the CPSU.
Boomer states that later than night, he had approximately three more seizures caused by the "yelling," "screaming," and "banging on [his] wall" of other inmates. Boomer also states that a corrections officer looked into his cell at some point during the night but took no further action.
Boomer's medical records show that he sought medical treatment on January 6 and January 11, 2000, and in neither case complained of a seizure. Boomer states that several months after the attack, he was seen by a neurologist, who recommended that he be given an M.R.I. scan and that his brain waves be tested. Boomer states that he was never given either exam.
On March 1, 2000, Boomer was examined by Dr. Ronald Silverman ("Silverman"). Silverman reported the following:
[T]he neurologic examination was essentially normal. The claimant walked slowly with an exaggerated sense of pain. He preferred to use a cane. There was otherwise no objective finding of weakness in the arms or legs. Reflexes were just barely obtainable and symmetrical. Sensory examination to vibration and pinprick in the arms and legs was normal. There was no palpable spasm in the cervical or lumbar paraspinal muscles.
In summary, Mr. Boomer, while he has complaints of neck and back pain and pain and numbness in the legs, has no objective findings on neurologic examination to substantiate this claim. At the present time, based on the history and examination, I find no objective evidence of any neurologic injury as a result of the claimed incidents in 1999 or 2000.
Boomer states in his Complaint that on January 17, 2000, he filed an institutional grievance complaint with regard to the events of January 5, but that it was returned to him by OBCC staff, who informed him that the grievance program at OBCC does not address grievances concerning the use of force and medical treatment. Boomer states that OBCC staff "did not inform [him] of any other alternative to have his complaint filed or grieved, other th[a]n stating that the Inspector General for NYC DOCS has personal jurisdiction in the above matters." (Emphasis omitted) Boomer admits in his "Second Opposition" that he took no action to appeal the CPSU staff's refusal to accept his grievance. Boomer states, however, that he "was powerless in this matter because he was CPSU-confined (23) twenty-three hours a day with absolutely no available hands on access to IGP [Inmate Grievance Procedure] Department, committee, warden or IGP staff person." In this connection, Boomer has submitted an affidavit by inmate Ronald Henderson ("Henderson") in which Henderson states that DOCS' staff frequently mishandles inmate grievances.
Boomer also wrote a complaint letter dated February 23, 2000, addressed to the Board of Corrections, Dr. Van H. Dunn, the "N.Y.C. Inspector General," the "N.Y.C. investigation unit for complaints against DOCS staff," and defendants Wright, Grant, and Lanigan. of those to whom Boomer addressed his complaint letter, only Dr. Dunn acknowledged its receipt, and in a letter dated May 24, 2000, informed Boomer that he was forwarding the letter to Dr. Patrick Brown, the Medical Director of Correctional Health Services. Boomer filed the instant action on June 26, 2000.
Standard
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue. Where, as here, a party is proceeding pro se, this Court has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). Discussion
Both the Court and the defendants provided Boomer with a formal notice of the Rule 56 requirements for opposing defendants' summary judgment motions.
Defendants do not move for summary judgment on Boomer's claim of excessive force. They do, however, move for summary judgment on his claim of deliberate indifference to medical needs and negligence under state law.
I. Federal Claims
A. Deliberate Indifference to Medical Needs
The legal standard for a pretrial detainee's claim that he was denied medical care is set forth in the Opinion of October 24, 2002, issued in a companion case filed by Boomer. Boomer v. Lanigan, No. 00 Civ. 5540 (DLC), at 14-16 (S.D.N.Y. Oct. 24,
Boomer argues that the defendants were deliberately indifferent to his medical needs when (1) Laroche failed to administer a blood test to determine his Dilantin level, (2) Harlem Hospital staff failed to administer an x-ray of his back and left elbow and failed to administer a blood test, (3) the pain medication administered by Harlem Hospital staff failed to mitigate his pain, and (4) Wright and Beckford directed that he be sent back to his cell in the CPSU despite his history of epilepsy.
With respect to the first alleged instance of deliberate indifference, Boomer has raised a question of fact as to whether Laroche attempted to test Boomer's Dilantin level. Even if Laroche failed to administer the test, however, Laroche ordered that Boomer be sent by ambulance to the emergency room of Harlem Hospital. Boomer has not explained how this decision is consistent with deliberate indifference to his medical needs.
The defendants are also entitled to summary judgment on Boomer's claim that the pain medication did not alleviate his pain. Boomer does not dispute that he was given three different kinds of pain medication. In such circumstances, he has not raised an issue of fact as to the defendants' deliberate indifference to his pain.
With respect to the final instance of alleged deliberate indifference, while Boomer may have a difference of Opinion as to when he should have been returned to his cell, he has failed to present any evidence to show that defendants knew of and when he should have been returned to his cell, he has failed to present any evidence to show that defendants knew of and disregarded a serious risk to his health. Boomer does not dispute that they sent him to Harlem Hospital, examined him in order to determine whether his health was at risk from his seizures, kept him at the CPSU clinic for several hours upon his return from the hospital, and that he did not suffer any seizures while at the hospital or upon his return to the clinic. Boomer's disagreement with the timing of his return to his cell is not sufficient to prevent summary judgment on this claim.
With respect to Boomer's claim that the medical personnel at Harlem Hospital failed to take x-rays of his back and elbow, Boomer has not identified why such x-rays were necessary or how the failure to take them affected his health or care. With respect to his claim that the Harlem Hospital personnel failed to administer a Dilantin test, the defendants have submitted medical records which appear to indicate that a Dilantin test was in fact given. Defendants have not, however, explained the meaning of the notations in Boomer's emergency room records or drawn Boomer's attention to those notations. For this reason, it would be premature at this stage to grant summary judgment on this claim. The parties shall be given an opportunity to make further submissions to clarify whether a Dilantin test was administered.
B. Exhaustion
As set forth in the October 24 Opinion, because Boomer's deliberate indifference to medical needs claims fall within 42 U.S.C. § 1997(e)(a)'s exhaustion requirement, Boomer must have exhausted his administrative remedies for those claims prior to filing his complaint. Boomer states that he submitted a grievance regarding the defendants' indifference to his medical needs on January 5 but that the grievance was returned to him and that we was told, in effect, that the CPSU grievance process did not handle the claims he was grieving. Boomer failed to appeal this refusal to accept his grievance, but contends that he was unable to do so because of the restrictions associated with his confinement in CPSU. Boomer has also presented evidence, in the form of Henderson's affidavit, that the CPSU staff often failed properly to handle grievances. Boomer presents this evidence in support of the argument that but for the CPSU staff's failure to handle his grievance properly, he would have exhausted his administrative remedies. This evidence creates issues of fact regarding Boomer's exhaustion of his administrative remedies.
C. Personal Involvement and Qualified Immunity
In the event that Boomer is able to raise a question of fact as to whether a Dilantin test was administered at Harlem Hospital, defendants' defenses of lack of personal involvement and qualified immunity will be considered.
As explained above, Boomer has failed to identify any breach by defendants of their duty of care other than defendants' alleged failure to administer a Dilantin test at Harlem Hospital. As stated above, it would be premature at this stage to grant summary judgment on this claim. In the event that Boomer is able to raise a question of fact concerning the administration of the Dilantin test, defendants' defense that Boomer failed to file a notice of claim will be considered.
Conclusion
For the reasons stated, defendants' motions for partial summary judgment on the claims of deliberate indifference to medical needs and negligence are granted with the following exception. Defendants shall submit any further evidence or argument no later than November 15, 2002 concerning Boomer's claim that he did not receive a Dilantin test at Harlem Hospital on January 5, 2000. Boomer shall reply no later than December 6, 2002.