Malouf v. Turner

814 F. Supp. 2d 454, 2011 U.S. Dist. LEXIS 97760, 2011 WL 3859734
CourtDistrict Court, D. New Jersey
DecidedAugust 31, 2011
DocketCivil Action No. 09-2117 (JBS/KMW)
StatusPublished
Cited by17 cases

This text of 814 F. Supp. 2d 454 (Malouf v. Turner) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malouf v. Turner, 814 F. Supp. 2d 454, 2011 U.S. Dist. LEXIS 97760, 2011 WL 3859734 (D.N.J. 2011).

Opinion

OPINION

SIMANDLE, District Judge.

I; INTRODUCTION

This matter comes before the Court on the motion to dismiss for lack of jurisdiction and for summary judgment by Defendants United States of America, Bureau of Prisons, Jeff Grondolsky, Steven Spaulding, Dr. Nicoletta Turner-Foster, and Dr. Abigail Lopez de Lasalle (collectively, “Defendants”). [Docket Item 53.] Plaintiff, a federal prisoner formerly incarcerated at FCI Fort Dix, alleges in his Amended Complaint that Defendants violated his Eighth Amendment rights due to deliberate indifference to his serious medical condition, rights under “both Federal and State Law” due to retaliation, and also alleges they injured him via negligence and medical malpractice during the time of his incarceration at FCI Fort Dix. Defendants argue mainly that the Court should grant summary judgment against Plaintiffs constitutional claims on the basis of Plaintiffs alleged failure to exhaust administrative remedies, and on the basis of various immunities. The Defendants also argue that the Court should dismiss Plaintiffs tort claims for lack of subject matter jurisdiction because Plaintiff did not present an administrative tort claim to Defendant Bureau of Prisons (hereafter “BOP”) prior to filing his original Complaint. As explained below, the Court will grant in part and deny in part Defendants’ motion. The Court will grant in part and deny in part Defendants’ motion to dismiss Plaintiffs Federal Tort Claims (Counts II and III), and will grant Defendants’ motion for summary judgment against Plaintiffs constitutional claims (Counts I and IV).

II. FACTS AND PROCEDURAL HISTORY

The following facts are stated in the parties’ statements of material facts not in dispute, relevant to the present motion, supported in the record, and are not disputed through admissible evidence by the parties. Where facts are disputed, the Court will identify the dispute and determine whether it involves a genuine dispute of material fact defeating summary judgment.

Plaintiff suffered injuries to his back prior to his incarceration at FCI Fort Dix, leading him to take pain medication. • Malouf Deck ¶ 2, Docket Item 62. Plaintiff was transferred to FCI Fort Dix in January or February of 2008. Malouf Deck ¶ 3; Turner Deck ¶ 4, Docket Item 53. Plaintiff was assigned to at least two primary care physicians while at Fort Dix; his first primary physician was non-defendant Dr. Pradip Patel, serving from Plaintiffs arrival until March of 2009. Turner Deck ¶¶ 4, 8.' His second primary physician was Defendant Dr. Turner-Foster, who served as his physician from March 2009 until approximately December of 2009. Turner Deck ¶ 4.

Beginning in October of 2008, Plaintiff was prescribed Oxycodone, which he took for approximately the next four or five months to treat pain in his back. Malouf Deck ¶¶ 4, 6; Turner Deck ¶ 7. At some point in January of 2009, Plaintiff alleges that he slipped and fell on some ice between buildings, which he claimed aggravated the pain in his lower back. Malouf Deck ¶ 5. As a result of this alleged injury, he made use of a wheelchair and increased his dosage of Oxycodone. Id.

On March 10, 2009, Defendant Dr. Turner, along with Defendant Dr. Lopez de Lasalle, met with Plaintiff regarding his Oxycodone prescription. Malouf Deck ¶ 6; Turner Deck ¶ 7; Lopez de Lasalle Deck [457]*457¶4. The Defendants believed that Oxycodone was not appropriate for long-term use treating chronic pain like Plaintiffs. Turner Decl. ¶ 7; Lopez de Lasalle Deck ¶ 4. Consequently, Defendants Turner and Lopez de Lasalle decided to reduce Plaintiffs use of Oxycodone and prescribe him different pain medicines. Id. Plaintiff declares that after this meeting, his access to Oxycodone was terminated immediately, whereas Dr. Lopez de Lasalle declares that she tapered his Oxycodone use during a transition period. Malouf Deck ¶ 6; Lopez de Lasalle ¶ 4. Regardless, after this appointment, Plaintiffs pain was primarily treated through other pain medications. Turner Deck ¶7. Specifically, Defendant Turner prescribed or authorized a prescription for approximately eight different pain medications from the BOP list of approved medications. Turner Deck ¶¶ 5, 6. Plaintiff declares that these other medications were ineffective at treating his pain. Malouf Deck ¶ 9.

The pain in Plaintiffs back caused him to collapse in his cell in the middle of the night later in March of 2009. Malouf Deck ¶ 7. Plaintiff claims that Defendant Spaulding, the Health Services Administrator for Fort Dix, denied Plaintiffs request to transfer to the medical unit or to the hospital for evaluation. Id. Defendant Turner declares that a nurse was called to evaluate Plaintiff in his cell and found him lying on the floor of his housing unit, whereupon he was moved to health services for evaluation and treatment. Turner Deck ¶ 17, Ex. 1 to Answer, Docket Item 22.

Later that month, Defendant Turner recommended Plaintiff be given a CT scan and an MRI scan of his spine at different times, which were approved and provided. Turner Deck ¶ 8. Defendant Turner additionally recommended Plaintiff see a neurosurgeon for consultation, which was also approved. Id. Plaintiff met with Defendant Turner at least eight more times over the nine month period she was treating him, and he was treated at least 17 other times by other medical personnel. Id. Plaintiff claims that he suffered extreme pain during this period, and all individual Defendants, including Defendant Spaulding and Defendant Grondolsky, the Warden at Fort Dix at the time, were aware of his pain but “engaged in a course of conduct that ignored [his] complaints and made them worse.” Malouf Deck ¶ 9. Plaintiff describes this course of conduct as including “ineffective modifications” to his pain medication. Id. He also declares that at some point, Defendant Lopez de Lasalle ordered that his wheelchair be taken away. Malouf Deck ¶ 13. Plaintiff was ultimately transferred to FMC Devens, Massachusetts, in May of 2010. Plaintiff alleges that the medical treatment he received, which he believes to have been inadequate, was as a result of retaliation for his complaints and for filing the instant lawsuit. Malouf Deck ¶ 28.

Plaintiff filed an administrative grievance (“Remedy 532854”) with Defendant Warden Grondolsky in April of 2009, claiming that he was suffering extreme pain as a result of Defendant Turner’s treatment, specifically, her decision to end his Oxycodone prescription, and requested that he be assigned a different doctor or be transferred immediately to a medical facility. Moran Deck Ex. 3. Defendant Grondolsky denied this grievance on May 4, 2009, after reviewing the treatment Plaintiff was receiving. Id. Grondolsky explained that Plaintiff could appeal the grievance to the regional director within 20 days. Id.

Plaintiff filed his original Complaint pro se in this matter on May 1, 2009, seeking injunctive relief and damages for various constitutional violations, including Eighth Amendment cruel and unusual punishment [458]*458as a result of his medical care, retaliation by Defendant Turner, and medical negligence, and included an emergency motion for injunctive relief. [Docket Item 1.]

Despite having filed his Complaint in this Court, Plaintiff appealed his administrative grievance to the regional director on May 11, 2009. Moran Deck Ex. 3.

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814 F. Supp. 2d 454, 2011 U.S. Dist. LEXIS 97760, 2011 WL 3859734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malouf-v-turner-njd-2011.