The opinion of the court was delivered by: Pisano, District Judge
Plaintiff is a pro se litigant who filed this action on March 20, 2006, alleging that certain administrative and medical personnel at the New Jersey State Prison violated his civil rights under 42 U.S.C. § 1983. Plaintiff alleges that he received inadequate medical care for an injury he received while playing football in the prison recreation yard. Specifically, plaintiff complains that medical personnel never performed an MRI on his injured shoulder.
Defendants Malaka Umrani, R.N., George Achebe, M.D., Zhu-Ping Chang, M.D., and Paul Talbot, M.D. (herein referred to as the "Medical Defendants") have filed a motion for summary judgment arguing that plaintiff cannot establish an Eighth Amendment violation of deliberate indifference to a serious medical need and plaintiff has not exhausted his administrative remedies. Defendant Donald Mee, an Assistant Superintendent at New Jersey State Prison, has filed a motion for summary judgment similarly arguing that plaintiff cannot establish an Eighth Amendment violation for medical deliberate indifference and also that plaintiff's claims are improperly based upon a theory of respondeat superior liability. For the reasons set forth herein, defendants' motions shall be granted and plaintiff's complaint shall be dismissed.
Plaintiff is presently incarcerated at New Jersey State Prison serving a 40-year sentence for robbery, conspiracy and felony murder. On December 7, 2003, plaintiff fell while playing football in the prison yard and two other inmates fell on top of him. Afterwards, he went to his bunk to lie down but had difficulty getting back up due to pain in his shoulder. See Affidavit of Sarah Campbell at Ex. C (Deposition Transcript of James Caines) (hereinafter referred to as "Dep. Tr.") at 57:13-18.
Plaintiff received an emergency pass to medical where he was examined by a nurse.*fn1 Affidavit of George Riehm ("Riehm Aff.") at Exh. A at EMR1. Medical records show that this examination revealed swelling and tenderness to plaintiff's right clavicle. Id. The nurse called defendant Dr. Chang, who ordered that plaintiff be placed in a sling, medicated with Darvocet, and sent to the infirmary to be reevaluated by a physician the next morning. Id. at EMR1-4.
On December 8, 2003, defendant Dr. Achebe examined plaintiff. Medical records indicate that plaintiff was able to move all of his extremities without limitation and did not suffer from any joint enlargement or tenderness. Id. at EMR9. Dr. Achebe diagnosed plaintiff with a contusion to his right shoulder. Plaintiff testified at his deposition that the doctor told him he would be scheduled for an x-ray later that day, and plaintiff was discharged from the infirmary and given medication (Motrin) for his pain. Plaintiff was also seen on this same date by a nurse and pain medication was provided per orders. Id.
On December 14, 2003, plaintiff submitted a Health Services Request Form ("HSRF") stating that he did not receive an x-ray he alleged was previously ordered. That same day plaintiff also submitted an Administrative Remedy Form ("ARF") stating that he was "[n]ot receiving the proper medical attention." Complaint at 33-34. The written response to the ARF was from defendant Umrani and stated that the plaintiff "was seen by Dr. Achebe on 12/8/03 for an injury to clavicle. Assessment completed and medication ordered. Dx contusion to right shoulder." Id. Pursuant to the Department of Corrections ("DOC") grievance procedure, defendant Mee signed the ARF on January 2, 2004, as confirmation that plaintiff's grievance had been responded to by the medical department. Affidavit of Donald Mee at ¶¶ 9-16.
On December 20, 2003, plaintiff was seen by a nurse for a renewal of his medication. The next day, plaintiff, complaining of pain and requesting an x-ray, was again seen by a nurse. Riehm Aff., Ex. A at EMR11-13. A few days later, on December 26, 2003, plaintiff was seen by a physician, defendant Dr. Talbot, for a follow-up regarding his shoulder injury. Id. at EMR15. Dr. Talbot noted that plaintiff complained of pain but continued to do his regular job and was not wearing any support for the shoulder. Dr. Talbot diagnosed a right shoulder strain/sprain and prescribed Motrin and an analgesic balm. Medical records show that Dr. Talbot planned to obtain an x-ray and follow-up with plaintiff in two months. Id.
On January 5 and January 6, 2004, respectively, plaintiff submitted HSRFs complaining that he was "still having pain due to December 7, 2003 injury" and that the "medication is not working." Plaintiff also stated that he is "still awaiting to be scheduled for an x-ray." Certification of David Bishop ("Bishop Cert.") at Ex. B. The written response to the January 5th HSRF states that plaintiff was referred to a physician. Id. The written response to the January 6th HSRF states that plaintiff was seen on December 26, 2003 for a shoulder strain. Id.
On January 6, 2004, plaintiff was seen at sick call by a nurse complaining that he was still having pain. Medical records state that the nurse's plan was to "refer to MD." Riehm Aff. at EMR18. Plaintiff was scheduled for a follow-up on January 8, 2004. Id.
In an HSRF dated January 11, 2004, plaintiff complains that he is "still having pain in [his] clavicle and deltoid" and that he is still "awaiting an x-ray and MRI." Bishop Cert. at Ex. B. On January 12, 2006, plaintiff was again seen at sick call by a nurse for pain in his right shoulder. Plaintiff complained that his pain medication was not working and requested an x-ray. Plaintiff was scheduled for follow-up at the medical clinic for January 14, 2004. Riehm Aff. at EMR20.
On February 4, 2004, plaintiff was seen by a nurse at sick call complaining of continuing shoulder pain and a new pain to his neck. Plaintiff again complained that he had not had an xray. Plaintiff was referred to a physician for a follow-up. Id. at EMR22.
On February 10, 2004, plaintiff completed an HSRF complaining that he is "still having pain in right clavicle as well as pain in my deltoid and neck." Bishop Cert. at Ex. B. On February 11th, plaintiff was seen by a nurse, and the nurse noted that plaintiff was scheduled to see a physician. Riehm Aff. at EMR24. Later that same day plaintiff was seen by Dr. Talbot. Dr. Talbot's assessment continued to be right should sprain/strain. Medical records show that Dr. Talbot continued plaintiff on Motrin and analgesic balm, and planned to have an MRI done on plaintiff's right shoulder as well as get an orthopedic consult. Dr. Talbot also entered a work restriction for plaintiff. Id. at EMR26-29.
On February 26, 2004, plaintiff's was seen by an orthopedic physician. The orthopedic physician's assessment was acromoclavicular joint separation and bursitis. Plaintiff's treatment plan included performing an MRI to rule out a rotator cuff tear, shoulder x-rays and a prescription for pain medication (Tylenol). Id. at EMR30.
On April 5, 2004, an x-ray taken of plaintiff's shoulder was normal. Id. at EMR32. Shortly thereafter, on April 19, 2004, plaintiff completed a HSRF complaining of "pain in [his] shoulder and clavicle" and stating that his "pain medication is not working." Bishop Cert. at Ex. B. On April 21, plaintiff was seen by a nurse for continued pain in his right shoulder. Plaintiff complained that his pain medication was not working. The nurse noted that the medication plaintiff had been previously prescribed was Motrin, Tylenol and an analgesic balm. The nurse further noted that plaintiff's x-ray was normal, but referred plaintiff to a physician for a consultation. Riem Aff. at EMR33.
The next day plaintiff was seen by a physician. Plaintiff complained of pain in his right shoulder and advised the doctor that he was waiting for an MRI and inquired as to its status. The doctor noted in the records that plaintiff was to continue his medication and that an "MRI is being scheduled." Id. at EMR35.
On May 7, 2004, plaintiff completed a HSRF complaining of right shoulder pain. Plaintiff also noted that he had an x-ray done but he was still awaiting an MRI. Bishop Cert. at Ex. B. Shortly thereafter, on May 11, 2004, plaintiff was at sick call seen by Dr. Talbot. Plaintiff complained that he was still having right shoulder pain which the analgesic balm helped relieve but the medication did not. Dr. Talbot's assessment was a right shoulder sprain, and he refilled the analgesic balm and Tylenol. The doctor also temporarily restricted plaintiff to a lower bunk only. Plaintiff was advised to return as needed. Riehm Aff. at EMR 40.
On May 12, 2004, apparently in preparation for an MRI, Dr. Talbot ordered an x-ray of plaintiff to determine if there were any foreign ...