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Manns v. Sims

United States District Court, D. New Jersey

May 16, 2018

KENNETH A. MANNS, Plaintiff,

          Kenneth A. Manns, Plaintiff Pro Se


          JEROME B. SIMANDLE U.S. District Judge


         Before the Court is Plaintiff Kenneth Manns' (“Plaintiff”) submission of a civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Docket Entry 1. At this time, the Court must review the complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court concludes that the complaint will proceed in part.


         Plaintiff brings this civil rights action against several officials at FCI Fort Dix, New Jersey, where he was previously incarcerated. The following factual allegations are taken from Plaintiff's declaration in support of his complaint, Exhibit D, and are accepted for purposes of this screening only. The Court has made no findings as to the truth of Plaintiff's allegations.

         Plaintiff states that he tore his right Achilles tendon on September 14, 2014. Exhibit D ¶ 1. A physician's assistant gave him Motrin, a bandage, and crutches and told Plaintiff that his leg was fine aside from a “bad ankle sprain.” Id. Plaintiff requested bottom-bunk and first-floor passes, but the assistant denied the request stating that Plaintiff did not meet the requirements for those passes. Id. The next day, Plaintiff went to sick call to see a doctor about his injury. Id. ¶ 2. He informed the physician's assistant that he tore his Achilles tendon and did not have an ankle injury. Id. The physician's assistant said Plaintiff was going to be put in for x-rays because his chart said he had an ankle injury. Id. Plaintiff told both the physician's assistant and the x-ray technician that he did not have an ankle injury, but both people told Plaintiff that his chart indicated there was an ankle injury so they were going to perform x-rays on the ankle. Id. Plaintiff was told he would see an orthopedic doctor the next day. Id.

         On September 16, 2014, Plaintiff spoke with another physician's assistant about his injury. Id. She told him that his x-rays had not yet been read by the doctor and that Plaintiff should come back later that afternoon. Id. Plaintiff returned at 3:00pm as requested but was told the doctor had left for the day. Id. Plaintiff returned the following day and asked when he would be able to see the doctor. RN Jeff Thomas said if “the Dr. didn't call you yet it's because your injury must not be that serious.” Id. Plaintiff stated he had previously ruptured his left Achilles tendon, making him familiar with the symptoms, and again asked to see the doctor. Id. Thomas replied the doctor would not be back until the next month as he only came to the prison once a month. Id. Plaintiff spoke with Assistant Warden Dynan and told her that he was not receiving medical attention for his injury. Id. She told Plaintiff “she would get on top of the situation and [he] should check the call out list everyday for an appointment with the Dr.” Id.

         Plaintiff brought his concerns to the attention of Administrator Director of Health & Medical, Mr. Chudzinski, on September 22, 2014. Id. ¶ 3. Plaintiff requested to see a doctor immediately and to be given bottom-bunk and first-floor passes. Id. Mr. Chudzinski then paged Dr. Newland and spoke with him over the phone. Id. Dr. Newland came to Mr. Chudzinski's office and examined Plaintiff's leg. Id. He told Plaintiff that it was a very bad ankle sprain, not an Achilles tendon injury. Id. Plaintiff responded that he knew what an Achilles tendon injury felt like because he had had one before, and Dr. Newland “responded in a sarcastic tone and manner, what if you're lying to us to get some type of special medical treatment you could be telling us anything.” Id. Plaintiff responded that Dr. Newland was not qualified to diagnose his injury as he was not an orthopedist. Id. He requested an MRI and told Dr. Newland and Mr. Chudzinski that he wanted bottom-bunk and first-floor passes. Id. Plaintiff was given a walking boot and a 30-day bottom bunk pass. Id. Dr. Newland said he would put in the computer that Plaintiff was to be on the first floor. Id.

         Plaintiff was finally examined by the orthopedist, Dr. Shakir, on October 21, 2014. Id. ¶ 4. Dr. Shakir confirmed that Plaintiff had ruptured his right Achilles tendon and that Plaintiff needed to have surgery right away. Id. When Plaintiff asked when the surgery would take place, Dr. Shakir responded “it could take up to 6 months . . . you're not the only person who needs surgery in Fort Dix.” Id. (ellipses in original).

         Plaintiff met with Mr. Chudzinski and Dr. Newland again on October 28, 2014. Id. He inquired as to when his surgery would take place, and Dr. Newland said it would be alright if Plaintiff had to wait for 6 months. Id. Plaintiff objected to waiting for that length of time, and Dr. Newland said it would take place whenever the Utilization Review Committee approved the procedure. Id. Plaintiff continued to request placement on the first floor from several officials. Id.

         Plaintiff's surgery took place on November 14, 2014. Id. ¶ 5. He was instructed to follow up with the orthopedic surgeon in two weeks. Id. Upon returning to Fort Dix, Plaintiff was taken back to the third floor even though his discharge instructions required him to be on the first floor and bottom bunk and prohibited him from using the stairs for four months. Id. Plaintiff did not receive the Codeine or Percocet that he was prescribed after surgery. Id. ¶ 6. He could not go to the medication line, which was on the first floor, because he could not make it down the stairs. Id.

         As of January 15, 2015, Plaintiff still had not had his two-week follow-up with Dr. Shakir to remove his cast and sutures. Id. ¶ 7. Plaintiff asked CO Grant why he had not been able to see Dr. Shakir, but CO Grant only told him to come back the next morning at sick call. Id. Plaintiff was called down to medical in the afternoon of January 15 to have his cast and sutures removed. Id. When Plaintiff arrived at medical, Dr. Shakir was not there. A physician's assistant said the cast and sutures were going to be removed and a new cast would be put on. Id. The physician's assistant removed the cast and sutures and told Plaintiff that it looked like his leg was healing well. Id. He told Plaintiff to wash the leg and return the next day. Id. He gave Plaintiff a bandage and told Plaintiff to put his walking boot back on. Id.

         Plaintiff went back to medical the next day as instructed. Id. When he arrived, the person on duty asked him why he was there. Id. He told her that the other physician's assistant had instructed him to return; the on-duty assistant made a phone call describing Plaintiff's leg to someone, and then told Plaintiff to keep his boot on for 8 weeks and to flex his foot every day. Id.

         Plaintiff saw Dr. Shakir again about a month later on February 10, 2015. Id. ¶ 8. Dr. Shakir asked why Plaintiff was wearing a walking boot, and Plaintiff responded that he had been told by the physician's assistant to wear it. Id. Dr. Shakir responded that Plaintiff was supposed to be walking on his own. Id. Plaintiff said that he could not walk on his own due to the pain, and Dr. Shakir told Plaintiff to use the boot for another three weeks. Id. Plaintiff requested a soft-shoe pass, and Dr. Shakir said he did not issue those passes so Plaintiff would have to speak to someone else. Id. Plaintiff also asked about physical therapy, but Dr. Shakir said Plaintiff was not entitled to physical therapy “because you are a prisoner in a federal prison.” Id.

         Plaintiff went to renew his bottom bunk and first floor pass on February 20, 2015, but he was told that they could not be renewed because there was no record of him having those passes. Id. ¶ 9. When Plaintiff objected, Dr. Newland said he would only renew the passes for three months. Id. Plaintiff removed his cam boot on March 1, 2015. Id. Since then his leg has been in extreme pain. Id.

         Plaintiff was expelled from the Residential Drug Abuse Program (“RDAP”) on February 26, 2015 and was moved from the first floor to the third floor. Id. ¶ 10. He spoke with counselor T. Simms about his passes for the first floor and bottom bunk, and Simms said “I don't care what you have it's other guys in here that's in worse shape than you so I don't care what pass you have.” Id. Simms then said there was nothing in the computer system about Plaintiff having a first floor pass. Id.

         Plaintiff saw a different doctor, Dr. Patel, on April 13, 2015. Id. ¶ 11. He complained about being on the third floor and requested soft shoes because of the pressure on his Achilles tendon from the tennis shoes. Id. Dr. Patel said that only diabetics or people with deformed feet could have soft shoes. Id. Dr. Patel authorized the soft shoe after Plaintiff showed Dr. Patel his swollen foot. Id. Dr. Patel said Dr. Newland should have put Plaintiff in soft shoes back in September 2014. Id. Plaintiff requested a transfer to a medical center, but Dr. Patel said Plaintiff did not meet the criteria. Id. Plaintiff said that he had checked the eligibility criteria and believed he qualified, but Dr. Patel said “the bosses would be mad at me because I moved you and I won't be put in for a promotion because the government would be mad.” Id. Dr. Patel gave Plaintiff a physical therapy printout for Achilles tendonitis and renewed Plaintiff's prescription for Ibuprofen. Id.

         On April 16, 2015, Plaintiff spoke with Mr. Chudzinski about not yet receiving his soft shoes. Id. ¶ 12. Mr. Chudzinski sent Plaintiff down to medical where he received a pair of size 10 shoes. Id. While Plaintiff was being fitted for his shoes, he asked Mr. Chudzinski how he could be transferred to the medical facility. Id. Mr. Chudzinski told Plaintiff to talk to Dr. Patel. Id.

         Plaintiff saw Dr. Shakir on May 5, 2015. Id. ¶ 13. He told Dr. Shakir that his foot and Achilles tendon were in constant pain and were always swollen. Id. He also stated that the soft shoes hurt his feet. Id. Dr. Shakir told Plaintiff that he needed hi-top boots. Id. A week later, Plaintiff saw Nurse Maruska and was told to pick up his pain medication that afternoon. Id. ¶ 14. When he arrived at pill call, he was told that his prescription had been rejected. Id. Plaintiff saw a doctor on July 28, 2015 and informed him he was having head and neck pain, and the doctor said he would ...

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