United States District Court, D. New Jersey
Francis Szemple, Plaintiff Pro Se, Prison 263906 SBI#729710a,
New Jersey State Prison.
S. Grewal, Attorney General of New Jersey, Michael Ezra
Vomacka, DAG, New Jersey Department of the Attorney General,
Richard J. Hughes Justice Complex, Attorneys for Defendant,
HONORABLE PETER G. SHERIDAN, JUDGE.
matter comes before the Court on Plaintiff Craig Francis
Szemple's Motion for Summary Judgment. (ECF No. 131) and
Defendant Dr. Woodward's Motion for Summary Judgment (ECF
No. 143). Dr. Woodward and the Rutgers defendants,
collectively consisting of Richard Cervasco, Colleen Courter,
Rutgers, the State University of New Jersey, Herbert Smyczek,
oppose Plaintiffs motion. (ECF Nos. 133, 134). Plaintiff did
not file written opposition to Dr. Woodward's motion. For
the reasons set forth below, the Court will deny Plaintiffs
motion and grant Dr. Woodward's motion.
has been incarcerated in the New Jersey Department of
Corrections ("NJDOC") since 1994. He suffers
numerous medical problems and states that his medical
conditions have deteriorated to the point where he suffers
extreme pain and loss of spine movement, among other issues.
to the complaint, Plaintiff had an MRI on both knees and his
lumbar spine at St. Francis Hospital on November 27, 2006.
The MRI showed severe degenerative changes in both knees.
(Id. ¶ 18). On December 2, 2006, Dr. Sackstein,
a pain management doctor, ordered a flat-sheeted bed for
Plaintiff, called for an increase in Plaintiffs pain
medications, and prescribed hot therapeutic baths to relieve
Plaintiffs back pain. (Id. ¶ 19). Plaintiff saw
a neurologist, Dr. Tahmoush, on December 3, 2006.
(Id. ¶ 21). Dr. Tahmoush said that Plaintiffs
overall health was in severe decline. The deterioration of
Plaintiff s physical health caused Plaintiff to become
depressed and to lose sleep. (Id.). Subsequent MRIs
performed by Drs. Pizzi and Tahmoush indicated that Plaintiff
has degenerative disk disease and bulging disks of the lumbar
spine, stenosis, advanced arthritis in the spine, complex
regional pain syndrome, and other problems. (Id.
¶ 22). Plaintiff reports that doctors have said his back
problems stem from the bed and mattress assigned to him by
NJDOC per EJSP Administrator Donald Mee's instructions.
(Id. ¶ 23), Plaintiff alleges Mee, UMDNJ (now
"Rutgers"), UCHC ("University Correctional
Healthcare") and NJDOC have refused to comply with Dr.
Sackstein's directions to provide Plaintiff with three
mattresses. (Id. ¶ 24). Plaintiff must instead
sleep on a 10-year old mattress in his 5' X 12' cell.
(Id.) Plaintiff alleges that he was placed in these
conditions as "punishment" for his complaints and
current litigation. (Id. ¶ 25).
Laptenta, an area supervisor at EJSP, approved Plaintiffs
request for a cell improvement in writing, but allegedly
later said that UMDNJ/UCHC, through EJSP's Medical
Director, Dr. Herbert Smyczek, Ph.D., denied the move.
(Id. ¶ 26). Dr. Miller, an orthopedic surgeon,
saw Plaintiff on December 14, 2006 and said that both knees
had to be replaced. Plaintiff alleges that an orthopedic
group had recommended knee replacement for his left knee
several times over a four-year period, but Defendants had
refused the operation, allegedly leading to the worsening
condition of his right knee. (Id. ¶ 30).
December 19, 2006, cardiologist Dr. DeStefano said that the
decline in Plaintiffs overall health was leading to a
worsening in his heart condition, and could possibly lead to
a heart attack. (Id. ¶ 33).
about 2009, Rutgers/UCHC contracted with NJDOC to act as the
exclusive provider of medical care to the New Jersey prison
inmate population. (Id. ¶ 34). Plaintiff
alleged that he has not seen a medical specialist since
Rutgers took over. (Id. ¶ 35). He claims
Defendants have failed to treat the conditions in his arms
(nerve palsy, carpal tunnel, and more) properly, so that
surgery had to be performed in order to restore usage and
alleviate pain. (Id. ¶¶ 37-38). However, a
neurologist said that the procedure did little to improve
Plaintiffs condition due to the delay in the treatment, and
that Plaintiffs condition would continue to worsen in his
living environment. (Id. ¶ 38).
initially continued Plaintiffs cocktail of pain medication
drugs,  but told Plaintiff they would be
discontinuing the mediation in August 2010. (Id.
¶ 40). Plaintiff was "told that he must choose
between getting pain medication and staying permanently in
the infirmary, or staying in general population and be taken
off all pain medication." (Id.). When Plaintiff
asked why the medication was being stopped, Dr. Smyczek
allegedly responded sarcastically, "Because 1 can,
" and that he was just "following orders, "
although he was not able to cite the relevant NJDOC policy.
Dr. Smyczek also purportedly said that he "had a great
malpractice insurance policy. So sue me." Dr. Smyczek
also allegedly said that all the tests performed on Plaintiff
and consults "mean nothing here." (Id.
¶ 45), and that his only recourse was "to file a
Remedy Form." (Id. ¶ 50).
claims that around this time he wrote letters asking for
assistance from Defendants UCHC Director of Standards and
Accreditation Richard Cevasco, NJDOC Supervisor of Health
Services Unit Thomas Farrell, EJSP Medical Ombudsman Colleen
Courier, and NJDOC Commissioner Gary Lanigan. (Id.
¶ 51). Only Defendant Courier responded. She had
Plaintiff come to her office, but did nothing to remedy the
situation. (Id. ¶ 52). Plaintiff was then
"capriciously transferred" to New Jersey State
Prison in Trenton, N.J. on September 15, 2010. (Id.
about September 17, 2010, Plaintiff visited Defendant Dr. Abu
Ashan, an employee of UCHC, in New Jersey State Prison. Dr.
Ashan said that Plaintiffs pain management was now
conditional in New Jersey prisons per internal NJDOC
memorandum #012, signed by Defendant NJDOC Director of
Medical Services Dr. Woodward. The Complaint alleges that
Plaintiff would only be given his prescribed pain medication
if he agreed to their "new conditions of solitary
confinement in the infirmary." (Id. ¶ 53).
Dr. Ashan apparently agreed that Plaintiff needed pain
medication but would not provide it unless Plaintiff agreed
to the terms of the NJDOC policy. (Id. ¶). On
September 22, 2010, neurologist Dr. Pizzi ordered MS Contin
and Percocet for Plaintiffs pain, but Defendants would not
provide this medication. (Id. ¶ 54).
filed the Complaint pro se on October 10, 2010. On May 7,
2012, this Court dismissed Defendants NJDOC, Lanigan and Mee
sua sponte from the action. (ECF No. 9). Plaintiff applied
for pro bono counsel several times after the filing of the
complaint, and Magistrate Judge Arpert granted the request on
September 4, 2013. (ECF No. 43). On July 14, 2014, counsel
filed a letter with the Court indicating he could not raise
any good faith defenses to a pending motion to dismiss and
that Plaintiff was dissatisfied ...