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Gonzalez v. Zickefoose

United States District Court, D. New Jersey

April 7, 2017

DONNA ZICKEFOOSE, et al., Defendants.

          Francisco Gonzalez, # 49351-004 D. Ray James Correctional Facility Plaintiff pro se

          David Bober, Esq. Assistant United States Attorney Counsel for Defendants


          NOEL L. HILLMAN United States District Judge.

         Pending before the Court is the motion for summary judgment by Defendant, Pradip Patel, M.D., on the claims of Plaintiff, Francisco Gonzalez, that Defendant violated his Eighth Amendment rights when Defendant revoked Plaintiff's first-floor housing pass because Plaintiff would not reveal who was smoking in his unit. For the reasons that follow, Defendant's motion for summary judgment will be granted.


         Plaintiff, an inmate previously confined at the Federal Correction Institution in Fort Dix, New Jersey, filed this action asserting claims pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).[1] The Court screened the complaint pursuant to 28 U.S.C. § 1915(e), and by way of several motions, the remaining claim in Plaintiff's complaint is his Eighth Amendment violation claim against Patel. On July 22, 2016, the Court denied without prejudice Patel's previous motion for summary judgment because there were unaddressed discrepancies in the medical records that precluded judgment in Patel's favor. Patel has again renewed his motion for summary judgment, arguing that the record clearly shows that he did not violate Plaintiff's Eighth Amendment rights. Plaintiff has opposed Patel's motion.

         The Court incorporates the more detailed procedural history and background facts from the Court's prior Opinions (see Docket No. 56, 67, 70, 77), and will not restate them again here, other than to provide the facts relevant to the instant motion. Plaintiff, who suffers from chronic obstructive pulmonary disorder (COPD), was transferred to FCI Ft. Dix in January 2009. In August 2009, after Plaintiff complained of difficulty walking upstairs, a BOP physicians' assistant, Eric Gostkowski, issued him a first-floor pass and a lower-bunk pass. The passes were good for one year. Plaintiff was seen by Dr. Nicoletta Turner-Foster, a BOP employee, who recommended that both passes be renewed for another year, and on August 9, 2010, the passes were renewed.

         On January 11, 2011, during a chronic care clinic appointment, Dr. Turner-Foster once again recommended that Plaintiff's first-floor pass be renewed, and the pass was renewed on February 11, 2011, with an expiration date of August 11, 2011. On July 15, 2011, Plaintiff was seen by mid-level practitioner Vicente Elias, who extended the first-floor pass until August 11, 2012.

         On September 20, 2011, Plaintiff was transferred from a first-floor room to a second-floor room. Plaintiff was again seen by Elias at Health Services on October 3, 2011, and on that date Elias issued him a “medical convalescence, ” which meant that Plaintiff was permitted, for medical reasons, to stay in his cell and be absent from his BOP work assignment.

         On October 6, 2011, Plaintiff was seen by Patel for complaints of difficulty breathing and shortness of breath. The record for that date reflects that Plaintiff complained about other inmates smoking in his unit. The note states: “He states a lot of inmates are smoking in his unit but is afraid of being attaked [sic] if he tells anyone.” Patel diagnosed Plaintiff with pneumonia and Plaintiff was transferred to a hospital outside of Ft. Dix. Plaintiff spent more than a week in the hospital and was discharged on October 17, 2011.

         On October 19, 2011, Plaintiff once again saw Patel at Ft. Dix Health Services, and requested to be transferred back to the first floor. Although a first-floor pass was already in effect, Patel nonetheless completed an MDS form that “renewed” the pass through April 30, 2012 (though previously it had been set to expire in August 2012). It appears that the pass did expire on April 30, 2012, but Patel renewed it again when he saw Plaintiff on May 23, 2012, and Plaintiff remained in a first floor room for the remainder of 2012.


         A. Summary Judgment Standard

         Summary judgment is appropriate where the Court is satisfied that “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Celotex ...

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