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Szemple v. Rutgers

United States District Court, D. New Jersey

March 26, 2018



          Craig Francis Szemple, Plaintiff Pro Se, Prison 263906 SBI#729710a, New Jersey State Prison.

          Gurbir 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, Dr. Woodward.




         This 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.


         Plaintiff 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. (Compl.¶¶ 16-17).

         According 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")[1] 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).

         Lt. 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).

         On 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).

         In or 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).

         Rutgers initially continued Plaintiffs cocktail of pain medication drugs, [2] 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).

         Plaintiff 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. ¶ 52).

         On or 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).

         Plaintiff 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 ...

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