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December 1, 2010



Summary Judgment Standard: Summary judgment is proper where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.

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



Appearances by:

Plaintiff, Anthony Stevenson, was incarcerated at Northern State Prison ("NSP") from March 28, 2008 until his release on April 30, 2010. On April 30, 2008 he instituted this action against Defendant, John Hochberg, M.D., who served as Medical Director for NSP until February or March of 2009. Plaintiff's complaint (the "Complaint"), which was originally filed in state court, alleges that Defendant refused to provide Plaintiff with necessary medical treatment in violation of his "State and Federal rights to be free of cruel and unusual treatment."

On March 30, 2009 Defendant filed a Motion to Dismiss the Complaint asserting that Plaintiff had failed to exhaust his administrative remedies. By Order dated May 26, 2009 this court denied Defendant's Motion. Defendant now moves to dismiss the Complaint for failure to state a claim or, in the alternative, for summary judgment. For the reasons set forth below, Defendant's Motion will be denied.


Plaintiff was an inmate in the New Jersey prison system from September 26, 2003 to April 30, 2010. He began suffering from back pain as early as May 22, 2005, when he first submitted a Health Service Request ("HSR") to prison officials seeking medical treatment for such pain. From that date until February 27, 2009 Plaintiff submitted a total of 18 HSRs relating to his back pain.

Plaintiff was treated with pain medication beginning in October of 2006 and was eventually referred to Saint Francis Medical Center for an MRI on February 13, 2008. The MRI showed that Plaintiff had a herniated disc but he did not learn that fact for another year because he was not given the MRI results until February 6, 2009. On March 24, 2008 Plaintiff submitted the first of many HSRs requesting the MRI results. On March 28, 2008 he was transferred to NSP and on April 16, 2008 he submitted another HSR requesting the MRI results. On April 30, 2008, having still not received the MRI results, Plaintiff filed his Complaint in state court. Defendant removed the action to this court on June 30, 2008 and filed his Answer on July 15, 2008.

With his case pending in this court Plaintiff continued submitting HSRs relating to his back pain. On September 5, 2008 he was approved for a consultation with a neurosurgeon. On November 25, 2008 Defendant ordered an injection of ketorolac, an anti-inflamitory, for Plaintiff. On December 1, 2008 Plaintiff learned that the consultation with the neurosurgeon had been cancelled.

Plaintiff contends that the met with Defendant on December 18, 2008 and that Defendant offered to schedule a surgical procedure for Plaintiff called a discectomy if Plaintiff agreed to dismiss this action. When Plaintiff refused, Defendant allegedly prescribed prednisone and declined to schedule the surgery.

On December 19, 2008 Plaintiff asked to be examined by Defendant but was refused. On December 22, 2008, Plaintiff received x-rays. The next day he was again prescribed prednisone. On January 2, 2009 Plaintiff was advised that the x-rays were "normal". On February 6, 2009 Plaintiff was finally given the MRI results showing that he had a herniated disc.

On February 13, 2009 Plaintiff spoke with Defendant about the discectomy and was told that more tests were needed to determine if the surgery was necessary. Plaintiff asserts that Defendant again asked him to dismiss the lawsuit but Plaintiff declined to discuss it. At the same meeting, Plaintiff asked why the consultation with the neurosurgeon was cancelled and was told by another member of the medical staff that the x-rays showed it was not necessary. Plaintiff asserts that this could ...

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