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Dykeman v. Ahsan

United States District Court, D. New Jersey

November 28, 2017

WILLIAM DYKEMAN Plaintiff,
v.
ABU AHSAN, et al. Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before this Court on Defendant's motion for summary judgment [ECF No. 94] and Plaintiff's motion for appointment of pro bono counsel. [ECF No. 95].

         I.

         Facts and Procedural History

         Soon after entering prison, Plaintiff, a New Jersey state prisoner, was diagnosed with degenerative arthritis of his right hip. In July 2012, Plaintiff, proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges, in his original Complaint, that his Eighth Amendment rights were violated when prison officials failed to properly treat pain in his right hip. Specifically, Plaintiff alleges that prison officials acted with deliberate indifference when they failed to secure an extra mattress prescribed by Dr. Ahsan, a prison doctor, and failed to renew a prescription after it expired. Plaintiff also alleges that the prison failed to provide recommended shoes to alleviate pain.[1]

         Initially, this Court screened the Complaint and sua sponte dismissed all claims for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Thereafter, Plaintiff moved for reconsideration and to supplement the record, and the District Court vacated its dismissal Order. After reconsidering the supplemented Complaint, the District Court concluded that Plaintiff had failed to state a claim and again dismissed the Complaint. Plaintiff appealed, and the United States Court of Appeals for the Third Circuit affirmed in part, vacated in part, and remanded, finding that the facts alleged by Plaintiff were sufficient to state a claim under the Eighth Amendment. See Dykeman v. Ahsan, 560 Fed.Appx. 129 (3d Cir. 2014). The Court held:

Here, Dykeman alleged that in December 2008 Doctor Ahsan prescribed an extra mattress to alleviate discomfort at night. Dykeman asserted that prison officials never provided him with the mattress and that Doctor Ahsan did not renew the prescription after it expired. Additionally, Dykeman alleged in his complaint and supplement that he was prescribed cushioned shoes, but that, like the mattress, they were not provided. Dykeman's allegations concerning the cushioned shoes are not as clear as his allegations regarding the mattress, but it does appear that he alleged that he never received the prescribed footwear. Reading these allegations, Dykeman has stated Eighth Amendment claims that should not have been dismissed for failure to state a claim.

Id. at 132-133. After the decision, parties engaged in discovery.

         Plaintiff was deposed on August 1.

         Defendant moved for Summary Judgment to be granted for Plaintiff's failure to provide any evidence sufficient to state a prima facie case of Eight Amendment deliberate indifference. Oral argument was held via telephone conference on November 8, 2017. On that date, the Court requested that Defendant file a supplemental response to Plaintiff's interrogatory No. 12, which asked “Is there any reason you can provide as to why you would not renew this 2008 order [] for an extra mattress after it expired in 2009?” [ECF No. 103]. Defendant filed a supplemental response on November 14. [ECF No. 106]. He stated:

In or about September of 2009, I was informed by the Department of Corrections, Health Services Unit, that requests for mattresses were processed through the Department of Corrections, not the medical department and that the Department of Corrections was assessing Plaintiff's request for an additional mattress. I had no authority over the decision to provide Plaintiff with an additional mattress.

         Facts relevant to the medical care of Plaintiff

         Plaintiff stated in his interrogatories that his hip injury was caused by a fall in the late 1990s when he was framing the second story of a construction project. (Def. Br. Ex. A). After the fall, Plaintiff received an x-ray that did not show a fracture, and he did not seek further treatment. (Id. Ex. B). Plaintiff testified that his pain returned shortly after being incarcerated, in 2005, due to inactivity. (Id.).

         On November 15, 2005, Plaintiff was examined by Grace Malendez, M.D. and she reported chronic right hip pain. Dr. Malendez offered to provide Plaintiff pain medication, which he refused. (Id. Ex. C at 390). The x-ray showed degenerative joint disease. (Id. at 364). On January 9, 2007, Plaintiff saw Dr. Malendez again and he requested shoe insoles and a double mattress. She ordered “Arch Support/Insoles.” (Id. at 361). Plaintiff was seen by Barbara Brown, RN, on May 7, 2007 and requested better shoes and a softer mattress. He was advised that a softer mattress was not possible per Department of Corrections (DOC.) (Id. at 358). A new x-ray on December 6, 2007 showed “[d]egenerative joint disease bilaterally of the hip joint slightly greater at the right hip compared to the left hip. No apparent fracture or dislocation.” (Id. at 353). On May 22, 2008, Plaintiff was seen by James Brewin, APN who told him that “MRI [was] not warranted at this time for osteoarthritic and degenerative changes. Treatment is analgesia.” (Id. at 341). Plaintiff was seen again by Mr. Brewin on June 10, 2008, when he requested medical shoes but was told that they were not advised at that time. Mr. Brewin entered an order for arch support/insoles instead. (Id.)

         Plaintiff first saw Defendant Abu Ahsan, M.D., on December 9, 2008. At the time he complained of chronic right hip pain and Defendant noting his diagnosis, planned to order a repeat hip x-ray, an extra mattress, and arch supports. The order stated: “Arch Supports/ Insoles, ” and “Other Medical Equipment.” He specified that he was ordering an extra mattress in his notes. (Id. Ex. C at 334). On December 11, 2008, the repeat x-ray showed advanced arthritis but no evidence of a fracture. (Id. at 332). On February 19, 2009, Plaintiff was seen by Donique Ivery, APN, and he complained that he had not received an extra mattress and that he wanted medical boots. (Id. Ex. C at 253). Plaintiff was again seen by Defendant on June 12, 2009, to discuss his right hip condition. Defendant submitted a request for a prosthetic consultation and advised Plaintiff to return in two weeks time. (Id. at. 250). On July 21, 2009, Ivery informed Plaintiff that his request for a prosthetic consultation was denied. Ivery entered a request for an MRI at Plaintiff's request. (Def. Br. Ex. C at 234).

         On September 22, 2009, Plaintiff received a letter from Sharon Felton, B.A., Health Services Unit, Division of Operations, regarding his right hip complaints and requested treatment.

         The letter stated:

         (Matter Omitted)

         (Def. Br. Ex. D) (emphasis in original ...


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