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Stanley B. Smith, Jr v. Gary Merline

June 21, 2011

STANLEY B. SMITH, JR., PLAINTIFF,
v.
GARY MERLINE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, District Judge:

This matter is before the Court on two motions for summary judgment regarding a Complaint arising out of Plaintiff Stanley B. Smith, Jr.'s treatment while a pretrial detainee at the Atlantic County Justice Facility ("ACJF") in Mays Landing, New Jersey. Defendants Dr. James Neal and Nurse Jerry Connors*fn1 (collectively, "Medical Defendants") seek summary judgment against Plaintiff's claims of deliberate indifference to a serious medical condition as well as his claims of first amendment retaliation. [Docket Item 90.] Defendants Gary Merline, the Division Director of ACJF, Captain Geraldine Cohen, Sergeant Michael Kelly, and Diana Bader (collectively, "Prison Defendants")*fn2 , seek summary judgment against Plaintiff's retaliation claim, and on the grounds of qualified immunity and a lack of personal involvement beyond respondeat superior. [Docket Item 91.] For the reasons expressed below, the Court will grant both motions for summary judgment and dismiss the action.

I. FACTS AND PROCEDURAL HISTORY

The Court has previously recounted the basic facts about this case in its June 15, 2010 Opinion. See Smith v. Merline, 719 F. Supp. 2d 438 (D.N.J. 2010). The Court will here recount in greater detail those facts relevant to the present motions that are 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.

A. Smith's Medical Conditions and Treatment

Plaintiff was incarcerated as a pre-trial detainee at ACJF from August 4, 2006 until he was sentenced approximately one year later in August of 2007 and transferred to South Woods State Prison. (Classification Status/Disciplinary History Sheet, Dugan Cert. Ex. J.) Throughout his time at ACJF, Plaintiff suffered from end-stage renal failure and congestive heart failure, both serious medical conditions that required frequent medical treatment. (Iannuzzelli Rept. at 1, 2, Medical Defs.' Mot., Ex. F; Neal Dep. at 34-39, 39-40, Ex. E.)

Throughout all times relevant to the case, Plaintiff required regular hemodialysis ("dialysis") treatments to manage his end-stage renal failure. (Iannuzzelli Rept. at 1.) Dialysis treatments, such as Plaintiff experiences, require that a patient's blood be "run through a machine . . . to remove excess fluid from the body, remove waste products from the blood, and balance the blood in terms of potassium, calcium, sodium, and acid levels." (Iannuzzelli Rept. at 1.) While incarcerated at ACJF, Plaintiff was treated by a nephrologist*fn3 and received three dialysis treatments each week lasting approximately four hours per treatment at an outside facility called AtlantiCare. (Smith Dep. at 30:7-15, Medical Defs.' Mot., Ex. A.)

Plaintiff's dialysis treatments required that a "dialysis access" be surgically inserted into Plaintiff's arm beneath the skin to permit easier access to a blood vessel. (Iannuzzelli Rept. at 2.) This "intravenous access area" is described by the parties in this action variously as a "shunt" (Connors Dep. at 33:11-13, Medical Defs.' Mot., Ex. B), a "stint" (Smith Dep. at 27:20-21), and a "port" (Smith Dep. at 111:12-14).

As a side effect of his dialysis treatment, Plaintiff occasionally experienced sudden drops in blood pressure, dehydration, dizziness, temporary loss of vision, and headaches. (Iannuzzelli Rept. at 2; Smith Dep. at 69:17-24.) Additionally, Plaintiff on at least one occasion experienced unexpected bleeding from his dialysis port after departing from the dialysis center; such unexpected bleeding, if not "handled appropriately in a timely fashion . . . could lead to exsanguination and death within a few minutes." (Iannuzzelli Rept. at 2.) Defendant Nurse Connors expressed doubt, however, that Plaintiff's dialysis port could unexpectedly begin to bleed. (Connors Dep. at 34:5-7.)

While at ACJF, Plaintiff developed lesions in the form of calcium crystal deposits on and under his skin. (Neal Dep. at 48:22-49:1.) These lesions may have been caused by calciphylaxis, "a long-term end-stage irreversible complication of renal disease." (Neal Dep. at 53:6-7.) If untreated, calciphylaxis could develop into a serious medical condition with potentially severe health effects. (Iannuzzelli Rept. at 2; Neal Dep. at 54:20-55:12.) Plaintiff's lesions were treated, at least in part, with "topical creams and ointments." (Iannuzzelli Rept. at 2.)

B. Smith's Complaints about Medical Staff

Prior to March of 2007, Plaintiff was housed in the Medical Housing Unit ("MHU") of ACJF, in part because of the dialysis port in his arm, which left him vulnerable to assault by other inmates, and in part because of his medical conditions. (Connors Dep. at 33:3-8; Merline Dep. at 18:4-7.) Less than one half of one percent of the total population of the ACJF were housed in the MHU, and inmates are only housed in the MHU upon request of a medical staff member. (Cohen Dep. at 54:7-14, 55:1-2, Dugan Cert. Ex. L.) He served as the "dorm representative" (Cohen Dep. at 30:2-20, Medical Defs.' Mot. Ex. J) or "tier representative" (Smith Dep. at 48), meaning he was charged with forwarding complaints from other inmates in the MHU to jail staff. (Cohen Dep. 30:21-31:4.)

In February and early March of 2007, Plaintiff wrote letters to Defendant (then) Director Merline and Defendant (then) Captain Cohen, complaining about the medical staff. After receiving one such letter, Defendant Merline contacted (non-party) Captain James Murphy, requesting that he address the subject of the complaints with the medical staff, which Cpt. Murphy reported he did by requesting a medical supervisor to instruct the medical staff on the facility's policies. (Murphy Dep. at 21:12-25, Dugan Cert., Ex. M; Murphy e-mail, Medical Defs.' Mot., Ex. I.)

On March 1, 2007, Defendant Nurse Connors approached Defendant Cohen to report that Plaintiff's sister, Officer Gail Smith, who worked as a corrections officer in the ACJF, frequently visited Plaintiff at his cell, during which times, Defendant Connors reported, Officer Smith would "bring[] him things" which she later clarified as being only "miscellaneous paperwork." (Mar. 1, 2007 Cohen Rept., Gorman Decl. Ex. F.; Mar. 15, 2007 Connors Supplemental Rept., Gorman Decl. Ex. G.) These visits were characterized as prohibited "fraternization." Defendant Connors reportedly said that these visits "made him [Plaintiff] even more arrogant and belligerent," which Defendant Cohen believed was the primary reason Defendant Connors reported the fraternization. (Id.) Nurse Connors testified that she reported the fraternization in furtherance of her responsibility to report rule infractions. (Connors Dep. at 57:23-58:2.)

In the ACJF, prohibited fraternization, or informal contact between inmates and prison staff, includes unreported contact between relatives. (Cohen Dep. at 76:12-19.) Because such contact between a corrections officer and an inmate constituted an administrative violation at the ACJF, Director Merline directed Internal Affairs at the facility to investigate the allegations. (Merline Dep. at 38:7-11.)

On March 2, 2007, Plaintiff wrote two letters to Defendant Cohen complaining about the medical staff. (Gorman Decl. Ex. C.) One letter complained that medical staff were disciplining inmates from elsewhere in the facility who socialized with inmates housed in the MHU by expelling such inmates without providing medical care, which Plaintiff described as "a crime that needs to be addressed." (Id.) The second letter, dated the same day, complained of other disciplinary actions taken by the medical staff against inmates in the MHU. The letter included the sentence

I wouldn't be surprised if a physical altercation take [sic] place, only for the member staff to do what it does best and change the facts and make it look as if they were assaulted . . .

Id. (ellipses original.) The letter concluded with the sentence "Please address these issues before something terrible takes place." (Id.)

The record is not entirely clear on who saw this letter and when. Nurse Connors testified that she might have seen the letter, but could not remember for certain. (Connors Dep. at 44:6-7.) She did remember, however, reading a "threatening letter that [she] wasn't sure what to do with" (Id. at 44:16-17) that she believed she had picked up in the MHU.*fn4 (Id. at 45:25-46:10.) She showed the letter to her supervisor, (non-party) Health Services Administrator Sandra Bernavon, explaining that she "didn't feel comfortable with the letter." (Id. at 44:22-45:10.) Connors did not know where the letter went after she gave it to her supervisor. (Id. at 48:10.) She never spoke about the letter again to anyone at the ACJF. (Id. at 48:20-23.)

On March 8, 2007, Plaintiff wrote a letter to Internal Affairs, complaining that not every inmate in the MHU was being seen by the medical staff as often as he believed they should, and requesting an investigation into the matter. Specifically, he complained that MHU inmates "vitals" were not being taken every day, and inmates were only being seen by doctors when they fill out a medical request form, rather than as a matter of course. (Mar. 8, 2007 Letter, Medical Defs.' Mot., Ex. H.) Specifically, Plaintiff wrote that "it's my right, to receive this medical attention and it just isn't happening . . ." (Id.)

C. Smith's Transfer to High Security

Defendant Cohen received the second March 2, 2007 letter some days later and forwarded it to Cpt. Murphy to review because it dealt with complaints about the medical staff. (Cohen Dep. at 25:2, 27:8-15.) Defendant Cohen testified that she did not read the letter before sending it to Cpt. Murphy. (Id. at 27:3-12.) Cpt. Murphy, reviewed the letter on March 14, 2007; he interpreted its contents as threatening and "became concerned with the safety of the medical staff." (Mar. 14, 2007 Murphy Rept., Dugan Cert., Ex. D.) He "interpreted [the] statements as a warning that [Plaintiff] was planning to assault a member of the medical staff." (Id.) Cpt. Murphy contacted HSA Sandra Bernavon in the medical unit and shared the letter with her. (Id.; Murphy Dep. at 27:20-23.) She also interpreted the statements in the letter as threatening and "expressed concern for the medical staff as a whole." (Id.; Mar. 14, 2007 Bernavon Memo, Dugan Cert. Ex. E.) Consequently, Cpt. Murphy "filed a disciplinary charge [against Plaintiff] for making threats . . ." (Murphy Dep. at 26:22-23.) Cpt. Murphy then charged Plaintiff with violation code *.005 for threatening to assault a staff member. (Mar. 14, 2007 Cohen Rept., Dugan Cert. Ex. G.)

Cpt. Murphy then inquired of HSA Bernavon whether Plaintiff could be medically cleared for a transfer to a high security cell. (Mar. 14, 2007 Murphy Rept.) Murphy felt that, while Plaintiff was awaiting a disciplinary hearing on the threat charge, he should be housed in a high security cell, explaining that "[a]ny inmate who is charged with a serious offense in the facility is transferred to high security." (Murphy Dep. at 29:14-16.) HSA Bernavon approved the transfer to a high security cell in "Intake Left,"*fn5 provided that he be put on a regular watch and housed in a cell alone. (Mar. 14, 2007 Murphy Rept.) Specifically, Bernavon reported to Cpt. Murphy in writing that

Upon review of the current medical record, the inmate warrants a medical watch if he is moved from the observation room in medical. The patient is currently under the care of nephrologists and receives dialysis three times a week. Regardless of the stated threat, the healthcare department will continue to provide services without bias. The healthcare staff will be made aware of the inmates [sic] High Security Status. (Mar. 14, 2007 Bernavon Memo.)

Defendant Cohen was then the captain in charge of classifications, which is the department in ACJF that manages inmate cell transfers. (Cohen Dep. at 9:9-21.) Cpt. Murphy communicated that Plaintiff would need to be transferred from the MHU to a cell in a high security unit, and conveyed the medical restrictions HSA Bernavon had placed on such a transfer. (Mar. 14, 2007 Murphy Rept.) Defendant Cohen indicated that such conditions could be met in I-Left Cell #7, and sent out an interoffice memo emphasizing the importance of maintaining the 30-minute watch and that Plaintiff be housed alone. (Mar. 14, 2007 Cohen Memo, Dugan Cert. Ex. H.) Cohen's memo also emphasized that in Cell #7, Plaintiff could be "directly observed by the Officer assigned to I-Pod." (Id.; Merline Dep. at 83:16-21.)

Plaintiff was outside the facility as the officers prepared to transfer his cell assignment. (Mar. 14, 2007 DiGerolamo Rept., Dugan Cert. Ex. C.) In preparation for the transfer, Plaintiff's cell was searched and his property was transferred from the Medical Unit to I-Left #7. (Mar. 14, 2007 Cohen Rept.) Sergeant Charles DiGerolamo conducted the search of Plaintiff's cell and discovered several prescription pills for his renal disease still in the plastic medical serving cups and two glass vials of a perfumed oil, both considered to be contraband. (Id.; Mar. 14, 2007 DiGerolamo Rept.) Consequently, Plaintiff was subsequently charged with violations *.205 (misuse of authorized medication) and *.210 (possession of anything not authorized for retention). (Mar. 14, 2007 DiGerolamo Rept.)

At about 1:20 in the afternoon, Plaintiff returned to the facility and was informed of the charges that he was facing and was led to his new cell in I-Left. (Id.)

D. Smith's Stay in High Security

Plaintiff was held in I-Left #7 for approximately twenty one days before being transferred back to the Medical Unit. (Smith Cell Transfer Sheet, Gorman Decl. Ex. U.) While he was there, he continued to be sent to his dialysis treatments three times a week, nurses continued to visit him regularly to dispense his prescription medications, and he continued to be treated for side effects of his conditions such as headaches and dizziness. (Smith Dep. at 93:6-94:24.) For example, at approximately 1:00 a.m. on March 15, Plaintiff complained to a guard of a severe headache and requested evaluation from the medical staff. Two guards and a nurse responded and the nurse measured Plaintiff's vital signs before providing him with Tylenol and clearing him to return to his cell. (Mar. 15, 2007 Langdon Rept., attached to Smith Dep., Medical Defs.' Mot., Ex. A.) Defendant Connors testified that ACJF nurses conduct rounds through the high security sections of the facility every day, dispensing medications and collecting sick call slips. (Connors Dep. at 17:22-18:5.) Nurse Connors testified that she, personally, delivered Plaintiff's medication to him at times while he was held in I-Left #7. (Connors Dep. at 49:23-25.)

However, on at least one occasion, Plaintiff reported requesting medical assistance due to low blood pressure and dizziness and was not seen by a medical professional for an undetermined period of time that he reported was more than four minutes. (Mar. 22, 2007 Smith Letter at 2, Gorman Ex. J.) When he did eventually receive medical attention, he was treated by being given additional water to drink but was not sent to the hospital as he would have preferred and as he had been on other occasions. (Smith Dep. at 67:10-17.)

Plaintiff's cell in I-Left was located "right next door" to the medical unit, only about forty feet, or two minutes away from the medical clinic. (Merline Dep. at 22:23-23:5; Murphy Dep. at 19:10-14.) Despite this close proximity, Plaintiff experienced pronounced anxiety that he would "pop a port," meaning that he would begin to bleed profusely from the dialysis access in his arm and perish from blood loss before he would receive medical attention. (Smith Dep. at 111:21-24; Mar. 22, 2007 Smith Letter.)

On March 22, 2007, Plaintiff was found not guilty at his administrative hearing of making threats, but was found guilty of the contraband charges. (Smith Classification Status Disciplinary History Sheet, Dugan Ex. J.) He was sentenced to a loss of privileges of five days for each of the contraband violations. (Apr. 5, 2007 Smith Disciplinary Appeal Rept., Dugan Cert. Ex. C.) Plaintiff addressed a letter to Defendant Merline on that same date, expressing his concerns and fears about bleeding to death from popping a port and doubts that, were that to occur, medical professionals would be alerted in time because he could not be heard over the din of other prisoners in the unit. (Mar. 22, 2007 Smith Letter.) Defendant Merline testified that, in part because there were 1,200 inmates in the ACJF, he had no specific memory of receiving this or any other particular letter from Plaintiff. (Merline Dep. at 24:21-25:5.)

Despite being found not guilty of the threats charge on March 22, 2007, Plaintiff was not returned to the MHU until April 4, 2007. (Smith Cell Transfer Sheet, Gorman Cert. Ex. U.) Defendant Cohen testified that this was because the Classifications department only reviewed the disciplinary status of inmates being held in high security every thirty days. (Cohen Dep. at 57:18-24; Mar. 14, 2007 Notice of Assignment at 2, Dugan Cert. Ex. I.) She speculated, without specifically remembering, that in Plaintiff's case, they might have been able to review his status earlier than the review deadline of April 14 because "maybe it was a little slow and we got a chance to do some of our reviews early because we try to do them when we can." (Id. at 57:25-58:2.) She also testified that she was not notified by the hearing officer of the outcome of Plaintiff's March 22, 2007 disciplinary hearing until April 5, 2007, after she had already reviewed his status and transferred him back to the MHU. (Cohen Dep. at 58:12-59:7.)

E. Smith's Request to See a Dermatologist

During Plaintiff's incarceration at ACJF, he developed lesions resulting from calcium ...


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