United States District Court, D. New Jersey
DAVID P. SCHROTH, ESQ., Trenton, NJ, Counsel for Plaintiff.
MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C. Christian M. Scheuerman, Esq., Frances Wang-Deveney, Esq., Pennsauken, NJ, Counsel for Defendants.
JOSEPH E. IRENAS, Senior District Judge.
Plaintiff Brian Grimaldi, an inmate who suffers from asthma, filed a two count Complaint on April 2, 2010 (Dkt. No. 1, "Compl.") against Defendants Corizon, Inc., f/k/a Correctional Medical Services ("CMS") and Nurse Annie Grey ("Nurse Grey"). Plaintiff alleges a violation of his Eighth Amendment right to be free from cruel and unusual punishment, in the form of deliberate indifference to serious medical needs (brought pursuant to 42 U.S.C. § 1983), and negligence. (Compl. ¶ 1) Present before the Court today is Defendants' motion for summary judgment (Dkt. No. 51).
I. Relevant Facts
Plaintiff suffers from asthma. On or about April 5, 2008, while Plaintiff was housed at the Central Reception & Assignment Facility ("CRAF") in Trenton, New Jersey, awaiting assignment to a specific state prison, he experienced difficulty breathing and received one treatment on a nebulizer machine from Nurse Grey. (Defs.' Statement of Material Facts Not in Dispute, Dkt. No. 51-3 ("DSOF") ¶¶ 7-10) He returned to the infirmary later that night, around midnight, after Nurse Grey's shift was over, and received another breathing treatment from Nurse Beatrice Teel, which proved ineffective. (Pl.'s Supp. Statement of Material Facts, Dkt. No. 53-2 ("PSSOF") ¶¶ 49, 51) Plaintiff then became unresponsive and had no pulse. (Id. ¶ 52) He received CPR but was ultimately hospitalized with respiratory arrest and cardiac arrest and remained in the hospital for 12 days. (DSOF ¶¶ 34-36, PSSOF ¶¶ 52-54)
In Plaintiff's extensive supplemental statement of facts, he asserts that he has had a long history of asthma, initially diagnosed in 2000, that is more severe than average and is complicated by a history of emphysema and chronic obstructive pulmonary disease. (PSSOF ¶ 2-4) He has received emergency room treatment for asthma "[o]n many occasions prior to the incident in question, " including while in custody at the Middlesex County Jail, prior to his arrival at CRAF, and these treatments typically "consisted of about five treatments on a nebulizer machine, which allowed him to breathe a mist for about an hour, followed by a shot of Prednisone or magnesium." (Id. ¶¶ 5-7) Medical personnel at CRAF were familiar with Plaintiff's asthma, and Plaintiff states that he received at least two breathing treatments in the days leading up to the incident in question. (Id. ¶ 9, 16; DSOF ¶ 19)
No physicians were on duty at CRAF on weekends, but one was apparently on call at the time of the incident, which took place on a Saturday. (PSSOF ¶ 30) CMS protocol provides that in an emergency, a nurse may "[c]arry out individualized physician order which may include nebulizer." (Emergency Nursing Protocol, Dkt. No. 53-5 ("Protocol") at 6) Nurse Grey did not have such an order from a nurse practitioner or doctor on April 5, 2008, but she did provide Plaintiff one nebulizer treatment. (PSSOF ¶¶ 33-34) There is no evidence that anyone at CMS contacted a physician for Plaintiff on the relevant date, prior to his hospitalization.
The parties agree that both Defendants acted under color of state law at all relevant times, as CMS contracted with the State of New Jersey to provide health and medical care for the Department of Corrections, and Nurse Grey was a registered nurse at CMS. (DSOF ¶¶ 5-6)
Beyond these largely undisputed facts, there are several facts regarding the time between Plaintiff's first asthma treatment on April 5, 2008, and the time he became unresponsive shortly after midnight on April 6, 2008, that the parties dispute heavily.
First, the parties dispute Plaintiff's condition at the conclusion of the first treatment. Defendants cite Nurse Grey's chart entry for April 5, 2008, which states:
Lungs slightly congestion [sic] upon evaluation. [Plaintiff] exhibited no difficulty in breathing. Color was good with no cyanosis noted. Given one nebulizer treatment.
(DSOF ¶ 12)
Plaintiff, on the other hand, asserts that "the chart entry was incorrect regarding a lack of difficulty breathing, his good' color, and the condition of his lungs." (Pl.'s Resp. Statement of Material Facts, Dkt. No. 53-2 ("PRSOF") ¶ 12) He states instead that "Grey never listened to his lungs, and that his color was not good because he was panting and soaking-wet with sweat." (Id.) Moreover, Plaintiff asserts that Nurse Grey did not record the relevant entry in Plaintiff's chart until nearly a week after the incident and that numerous required entries such as Plaintiff's pulse, breath flow, and other vital signs were missing from the chart account. (PSSOF ¶¶ 57-58)
Even more significantly, the parties dispute whether Plaintiff requested additional care after receiving his first breathing treatment. Plaintiff asserts that he requested such assistance and Nurse Grey denied his requests. (DSOF ¶¶ 10-11, 22) Specifically, he states that he said, "Nurse, I can't breathe, I still need another breathing treatment, " but she responded simply by unplugging the nebulizer machine and saying, "You're lucky you got that, " referring to the one treatment she did give him. (PSSOF ¶ 36) When Plaintiff asked for a doctor, another nebulizer treatment, or Prednisone, a steroid to open up the lungs (Grimaldi Dep. Tr. 92:10, Dkt. No. 53-4 at 20), "Grey just turned and walked away." (PSSOF ¶ 38) After being sent back to his cell, Plaintiff asserts that he made a written request to see a doctor, noting "[o]n the form... I'm an asthmatic having hard time breathing need to see doctor ASAP.'" (PRSOF ¶ 23) Plaintiff also adds that later that evening, after he showered, he still could not breathe but Nurse Grey "would not take him back at the infirmary." (PSSOF ¶ 45)
Defendants assert generally that Plaintiff was "sent back to his cell" after his first treatment "and never made another request to go back to the infirmary on April 5, 2008, for another breathing treatment." (DSOF ¶ 23) However, Nurse Grey states that she has no specific recollection of seeing Plaintiff at all on the date in question and does not deny or admit any of his assertions. ...