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King v. Sherrer

March 5, 2009

MARTE KING, PLAINTIFF,
v.
LYDELL SHERRER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wigenton, District Judge

NOT FOR PUBLICATION

OPINION

Plaintiff, Marte King, currently incarcerated at the Northern State Prison, Rahway, New Jersey, seeks to bring this action alleging violations of his constitutional rights, pursuant to 42 U.S.C. § 1983. He has submitted an application to proceed with this action in forma pauperis, pursuant to 28 U.S.C. § 1915(e).

At this time, the Court must review the complaint, pursuant to 28 U.S.C. § 1915(e)(2), to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the following reasons, Plaintiff's claims against certain defendants, as outlined herein, will be permitted to proceed. All other defendants will be dismissed, without prejudice.

BACKGROUND

Plaintiff seeks to sue numerous defendants for violations of his Eighth Amendment right to medical care. In particular, on March 21, 2007, during a term of incarceration at the Northern State Prison, Plaintiff had surgery on his right knee at St. Francis Medical Center in Trenton. He was returned to the Northern State Prison infirmary, and on March 23, 2007, defendant Dr. Hochberg gave him a five-day prescription for Tylenol-3 and returned him to the general population.

Two days later, Plaintiff's bandages were falling apart and were moist. He had his dressings changed. The next day, he complained to the nurse that his leg was getting worse. The nurse commented that he had just had surgery and that everything was normal.

On March 27, 2007, the next day, Plaintiff continued complaining of worse pain. He was told that he was not getting anymore Tylenol-3, and Plaintiff explained that that was not what he wanted- that something was seriously wrong with his leg.

The next day, on March 28, 2007, Plaintiff was seen by a physician's assistant, defendant Joel Buchholtz, for an unrelated matter. He told defendant Buchholtz that he was in extreme pain and that his kidneys hurt on his right side, and that his leg felt hot and throbbing. Defendant Buchholtz, assuming Plaintiff was asking for more medication, told him that he did not have the authority to extend Plaintiff's medication orders. Plaintiff again noted that he was not looking for meds, but that something was seriously wrong.

By the next day, March 29, 2007, while getting his dressing changed, he "vehemently expressed" that he was in pain and that something was wrong. Plaintiff's leg had swollen to twice its size. Again, it was assumed he was looking for more medication. That night, he felt his symptoms worsening, and went to the nurses' station for an emergency visit. His temperature was taken and he had a fever.

Thereafter, on March 30, 2007, Plaintiff saw defendant Dr. Narshimha Reddy, explained his knee pain and kidney pain and symptoms. Dr. Reddy told him that nothing was wrong with him and that he was not getting any more medication. Plaintiff told him how his weight had dropped eight pounds in one week, and defendant Reddy told him that he may have HIV. When Plaintiff told Dr. Reddy about the kidney pain, Dr. Reddy ordered a urine sample.

The next day, March 31, 2007, Plaintiff was delirious and could not get out of bed. The inmates on his housing unit told the officers, who called the hospital. The officers were told that if Plaintiff wanted help, he would have to walk to the hospital, which was about a quarter mile away from the general population where he was housed. Plaintiff notes that he could not even walk short distances, and was not able to make the walk to the hospital.

After the inmates complained again about Plaintiff's condition the next day, Plaintiff again got the same answer. However, later in the evening, the inmates approached a sergeant and told him that Plaintiff was dying and medical was doing nothing about it. The sergeant forced defendant nurse Wheeler to come to the unit and wheel Plaintiff to the hospital. Defendant Wheeler did so, and Plaintiff was placed in the infirmary and given Bactrim. However, defendant Wheeler also accused Plaintiff of feigning illness, but eventually took Plaintiff's blood pressure, and "somehow realized" that Plaintiff was in extreme pain. The next day, defendant Nurse Ogundana deliberately placed Plaintiff's meds about 10 feet away forcing Plaintiff to have to get up and get them.

On April 3, 2007, Plaintiff was moved back to the general population, instead of the medical unit. On April 4, Plaintiff explained to defendant Dr. Hochberg that he wanted to go to the hospital to have his knee checked, but defendant Hochberg told him that he was a specialist in the field and that nothing was wrong with Plaintiff. About eight days later, Plaintiff was seen by defendant Nurse Buchholtz again, explained the pain and that his condition was worsening. Defendant Buchholtz told him that fluid needed to be removed from his knee. Despite the fact that Defendant Buchholtz ...


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