United States District Court, D. New Jersey
GABRIEL ACOSTA Appearing pro se.
FRANCES C. BAJADA OFFICE OF THE U.S. ATTORNEY On behalf of
L. HILLMAN United States District Judge.
Gabriel Acosta, claims that two current employees and one
former employee of the Federal Correctional Institution at
Fairton, New Jersey, violated his Eighth Amendment rights
relating to his medical care. Plaintiff was treated after a
physical altercation with another FCI Fairton inmate on
October 19, 2010.
have moved for summary judgment, arguing that they are
entitled to judgment in their favor on Plaintiff's claims
because Plaintiff has failed to exhaust his administrative
remedies. They also argue that Plaintiff has failed to offer
sufficient disputed material facts on the issue of whether
Defendants were deliberately indifferent to his serious
medical needs. For the reasons expressed below,
Defendants' motion will be granted.
October 19, 2010, at about 6:40 p.m., Plaintiff was involved
in a physical altercation with another inmate at FCI Fairton.
A Recreation Specialist and Correctional Counselor noticed
that Plaintiff appeared to be severely beaten around the
face. The staff members then secured Plaintiff in the gym
office and escorted him to the Health Services Unit (the
“HSU”) for medical evaluation.
around 6:50 p.m., Registered Nurse Sharon Cooke evaluated
Inmate claims he lost consciousness and does not know how
long he was out. Inmate presents with left eye bruised and
swollen shut. Multiple abrasions on back and right forearm.
Abrasions bilateral knees laterally. Upper lip split
medially. Puncture wound lateral 5th metacarpal area. Lump
left side of head behind left ear, lump right temporal area,
abrasions and lump occipital bone. Bruising left upper arm.
Inmate is awake and is alert to person. Very confused. Unable
to ambulate unassisted. Nausea. Follows simple commands.
Decreased strength left upper extremity. Hemodynamically
stable. Right eye with pupil reactive to light. Unable to
assess left eye at this time.
(Docket No. 55-2, BOP 000230.)
evaluating Plaintiff, Nurse Cooke called Dr. Ruben B.
Morales, the Clinical Director of FCI Fairton, by telephone
to report Plaintiff's medical condition, and Dr. Morales
gave a verbal order authorizing Plaintiff's transport by
ambulance to an outside hospital. On October 19, 2010, at
8:00 p.m., emergency medical services were called to
transport Plaintiff to the hospital. Somewhere between 8:04
p.m. and 8:17 p.m., Plaintiff was transported by ambulance to
the South Jersey Healthcare Regional Medical Center in
Vineland, New Jersey, arriving at 8:58 p.m.
an examination, which included a CT scan of the brain,
Plaintiff was diagnosed with a nasal bone fracture with
extensive left periorbital soft tissue swelling, hand sprain,
abrasion and joint pain of the pelvis. The discharge
instructions recommended a follow-up examination as soon as
possible to re-check his complaints. It was noted that
Plaintiff could take Tylenol for pain, and he needed to see
an Ear, Nose and Throat (“ENT”) specialist for
the nasal bone fracture. The medical notes further provided
that the x-rays were preliminary, and an official reading
would be released from the hospital at a later time. The
records stated that during the next 24 hours, someone had to
stay with Plaintiff, and this person should wake him every
two hours. The report from the CT scan performed at the
hospital provides, in pertinent part: “Moderately
extensive left cheek, periorbital and supraorbital scalp soft
tissue swelling. Left periorbital extracoronal
dematous/hemorrhagic infiltration with preservation of
intraconal fat. Left lobe is grossly intact, ophthalmologic
returned to FCI Fairton on October 20, 2010, at 2:34 a.m.
Upon his return to FCI Fairton, Plaintiff was placed in a
single-person cell in the SHU. At 7:30 a.m. on October 20, 2010,
SIS staff interviewed Plaintiff in the SHU about the physical
altercation, and Plaintiff gave an oral statement. When Dr.
Morales reported to work at 7:30 a.m. on October 20, 2010, he
reviewed Plaintiff's hospital discharge records. At
approximately 9:26 a.m., Dr. Morales performed a follow-up
examination of Plaintiff in the SHU. In the Clinical
Encounter notes from October 20, 2010, Dr. Morales indicated
that Plaintiff had suffered a head concussion, nose fracture,
hand sprain and abrasion, and he complained of pain in the
face and nose. He further noted: “apparently injuries
were the result of an assault, inmate was immediately
transferred to emergency room last night, discharge report
indicated this inmate was diagnosed to have sustained
concussion with wake up, fracture, nose (with X-ray),
abrasion and sprain hand.” (Docket No. 55-2 at 17, BOP
Morales noted that Plaintiff reported a pain level of five,
and he was alert and oriented as to person, place and time.
Dr. Morales noted that Plaintiff had symmetry of motor
function, tenderness on palpation, raccoon eyes, deformity,
abrasion(s), trauma and swelling, while noting there was no
facial asymmetry, fluid/blood from his ears, or fluid/blood
from his nose. Dr. Morales further observed that while the
left orbit, upper eyelid, and zygoma were severely swollen
and tender, Plaintiff had full ocular movement, could read
letters from a distance of five feet, and could open his
mouth without difficulty. Dr. Morales diagnosed Plaintiff
with “[c]oncussion w/prolong loss of conscious and
return” as well as a “[n]ose, fracture,
closed.” Dr. Morales prescribed Meloxicam (a
non-steroidal anti- inflammatory drug) for Plaintiff's
shoulder pain. He instructed Plaintiff to place ice on his
left eye to relieve swelling. Dr. Morales noted that he would
“follow up for the official report of the CT scan and
nasal bone X-ray and will continue monitoring.” He
noted that he would “consider ENT consult for nasal
fracture if necessary.”
October 22, 2010, at 9:12 a.m., Dr. Morales conducted a
follow-up examination of Plaintiff in the HSU. Plaintiff
complained of pain in the back of his neck. He also reported
forgetfulness and difficulty breathing through his nose due
to severe congestion. Dr. Morales' notes reflect that
Plaintiff sustained a brain concussion from an assault,
suffered a nasal fracture and a CT scan of the brain showed
no hemorrhage. During this examination, Dr. Morales conducted
a cover-uncover test and determined that Plaintiff's eyes
were normal, although he suffered periorbital swelling,
tenderness and hematoma. In addition, Plaintiff had full
ocular movement, and his pupils reacted equally to light. Dr.
Morales decided not to refer Plaintiff for an ophthalmology
consultation based upon his clinical impression that such a
referral was not medically necessary.
Plaintiff's nose, Dr. Morales noted “[l]eft
turbinate swollen, ridge of nose slightly swollen and tender,
some blood clot in the wall/turbinates.” He diagnosed
Plaintiff with a closed nasal fracture. He prescribed
Ibuprofen and one puff per nostril two times daily for 30
days of Flunisolide Nasal (Nasalide) for the nasal fracture.
Dr. Morales requested an Otolaryngology consultation because
Plaintiff sustained a nasal bone fracture and complained of
difficulty breathing, and the ridge of his nose was slightly
swollen and tender. Dr. Morales instructed Plaintiff to
return immediately if his condition worsened.
November 4, 2010, at 8:46 a.m., Plaintiff was examined by
mid-level practitioner Satish Limbekar in the SHU. Plaintiff
complained of nasal congestion, a sore throat and myalgia. It
was noted that he had a nasal bone fracture after an assault,
and he was pending an ENT consult. After an examination, he
was diagnosed with an acute upper respiratory infection. He
was prescribed Erythromycin, and his prescription ...