United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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].
and Procedural History
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.
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
was deposed on August 1.
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
relevant to the medical care of 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
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
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).
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.
Br. Ex. D) (emphasis in original ...