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Walter A. Tormasi v. George W. Hayman

February 2, 2011


The opinion of the court was delivered by: Thompson, U.S.D.J.




This matter comes before the Court upon Plaintiff Walter Tormasi's Motion for Partial Summary Judgment [docket #222]; Defendants' Motion for Summary Judgment [275]; and Plaintiff's Cross-Motion for Partial Summary Judgment [308]. This opinion considers only those portions of the motions that address whether Plaintiff exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a).*fn1 The Court has decided the matter upon consideration of the parties' submissions, without holding oral argument, pursuant to Fed. R. Civ. P 78(b). For the reasons set forth below, Defendants' motion for summary judgment is denied, and Plaintiff's motions are granted in part and denied in part.


Plaintiff is an inmate confined at New Jersey State Prison ("NJSP") by the New Jersey Department of Corrections ("DOC"). (Third Am. Compl. ¶ 3) [159]. While confined at NJSP, Plaintiff was diagnosed with nearsightedness by personnel working for Correctional Medical Services, Inc. ("CMS")-a business contracted with the responsibility of providing medical services to NJSP. (Third Am. Compl. ¶¶ 4(e), 7); (see Hutton Decl. Ex. B) [113-2, at 18]. Several years later, in December 2006, Plaintiff began experiencing further vision loss, and he submitted a medical request seeking optometry services. (Third Am. Compl.¶¶ 7, 10); (Defs.' Cross-Mot. for Summ. J. 7) [382]. Plaintiff was scheduled for an optometry appointment on January 11, 2007, but he missed the appointment because he was remanded to Somerset County Jail at the time. (Tormasi Decl. Ex. B) [308-3]; (Defs.' Cross-Mot. for Summ. J. 7) [382]. During March and May 2007, Plaintiff made verbal inquiries about his medical request to unidentified CMS employees, who told him he would get an optometry examination. (Third Am. Compl.¶¶ 12, 13.) Then on August 13, not having had his exam, Plaintiff submitted a grievance to DOC on the prescribed Inmate Remedy Form ("IRF"). (Tormasi Decl. Ex. A) [308-2]. He received a response in August from Defendant Jawana Bethea-the CMS Ombudsman- which stated that Bethea would "contact the scheduler to reschedule" and directed him to file another medical request slip. (Id.) Plaintiff complied, and the new request was again referred to the medical department in early September 2007. (Third Am. Compl. ¶¶ 16--17.) Plaintiff submitted another IRF in late September, which prompted a response from Defendant Bethea explaining that there had been a "mix up" and that Plaintiff would now be scheduled for an optometry appointment. (Tormasi Decl. Ex. B) [308-3]. Plaintiff appealed this response to the prison administration on October 27 after several weeks passed without his appointment being scheduled. (Id.) His appeal was denied with the notation, "Response appropriate." (Id.)

On November 5, Plaintiff submitted a letter to Malaka Umrani, the CMS hospital administrator, explaining his failed efforts to see an optometrist. (Hutton Decl. Ex. B, at D28)

[275-6]. Plaintiff claims this letter was later forwarded to Defendant Jason Pugh and Paula Azara-Umrani's successors as hospital administrator. (Third Am. Compl. ¶ 22.) A little over a week later, he submitted a similar letter to Kathy O'Donnell, a CMS Ombudsman. (Hutton Decl. Ex. B, at D29) [275-6]. He claims he received a response from O'Donnell, who informed him that Defendant Lucile Roach, a CMS Nurse, would schedule his "long overdue exam." (Third Am. Compl. ¶ 22.) In mid-December 2007, Plaintiff received a copy of a CMS memorandum, sent by Defendant Bethea to an NJSP administrator, stating that Plaintiff would be seen for an eye exam as soon as scheduling would permit. (Hutton Decl. Ex. B, at D30) [275-6]. However, the eye exam was not scheduled until April 11, 2008, and in the interim Plaintiff submitted two more grievance letters to Defendant Bethea and made multiple verbal complaints. (Third Am. Compl.¶¶ 25--28)

On April 11, CMS optometrist Robert A. Bucchino examined Plaintiff and wrote him a prescription for new eyeglasses. (Hutton Decl. Ex. B) [113-2, at 24--25]. Plaintiff alleges that this examination was done incorrectly and that as a result the prescription was not appropriate for his condition. (Third. Am. Compl. ¶ 28.) On May 9, Plaintiff filed a third IRF complaining that he had not yet received his eyeglasses; he did not receive a response on the grievance form. (Tormasi Decl. Ex. C) [308-4]. He then filed another IRF in June 2008 and received a response on June 10, directing him to seek redress through the medical request system rather than the administrative grievance system. (Tormasi Decl. Ex. D) [308-5]. Plaintiff claims that he complied and his medical request was endorsed. (Third Am. Compl. ¶¶ 34-35.) Then in early July, Plaintiff sent another letter to Umrani (which he alleges was again forwarded to Defendant Pugh) and two more letters to Defendant Bethea. (Id. ¶¶ 36, 38.) According to Plaintiff, Bethea visited his cell on July 24, admitted there had been a problem with producing Plaintiff's eyeglasses, and told him that Defendant Roach was responsible for the matter. (Id. at ¶ 39.) Plaintiff states that he again sent letters to Umrani (forwarded to Pugh and Azara) and Defendant Bethea and submitted another administrative grievance in August 2008. (Id. ¶¶ 40--42.) Then on September 5, Plaintiff again met with Bucchino, who assured him that he would receive his eyeglasses in the near future. (Id. at ¶ 43); (Defs.' Cross-Mot. for Summ. J. 9) [382]. Finally, on September 26, 2008, Plaintiff received his prescription eyeglasses. (Third Am. Compl. ¶ 44); (Defs.' Cross-Mot. for Summ. J. 9) [382]. However, Plaintiff found the eyeglasses were the wrong prescription and were thus ineffective. (Third Am. Compl. ¶ 44.)

Plaintiff claims that Defendants' failure to give him an eye exam and a pair of functional eyeglasses has resulted in permanent loss of vision and physical injury to his eye. (Id. ¶ 45.) This loss of vision is allegedly responsible for dizziness, headaches, disorientation, and loss of equilibrium which caused Plaintiff to fall and injure himself. (Id.) These physical injuries have in turn caused emotional distress. (Id.)

Plaintiff instituted this lawsuit on October 7, 2008. Extended motion practice has resulted in the dismissal of several defendants. The remaining defendants are Lucile Roach, Jawana Bethea, and Jason Pugh, who Plaintiff claims were deliberately indifferent to his serious medical need in violation of the Eight Amendment. A claim against Defendant Roach for violation of the Equal Protection Clause also remains.


A.Legal Standard

Summary judgment is proper when "the pleadings, the discovery and disclosure materials, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court will "view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion." Id.; Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). In resolving a motion for summary judgment, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). More specifically, the Court must grant summary judgment against any party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant's motion is supported by facts, the party opposing summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for ...

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