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McKinney v. Hemsley

United States District Court, D. New Jersey

March 21, 2019

IVAN G. MCKINNEY, Plaintiff,
DR. HEMSLEY, et al, Defendants.


          KEVIN MCNULTY, U.S.D.J.


         The plaintiff, Ivan G. McKinney, is proceeding pro se in this civil rights matter filed pursuant to 42 U.S.C. § 1983. The only claim remaining in this matter is one of deliberate indifference to medical needs, asserted against three defendants: Dr. Michael Hemsley, Captain Edward T. Pawson, and Warden Robert J. Bigott. Now before the court are two motions for summary judgment, one brought by Dr. Hemsley (DE 97), and the other brought by Capt. Pawson and Warden Bigott (DE 96). For the reasons stated herein, the motions will be granted.


         Mr. McKinney is currently incarcerated at New Jersey State Prison ("NJSP'), where he is serving a life sentence. See State v. McKinney, No. A-1946-13T1, 2017 WL 370918, at * 1 ( N.J.Super.Ct.App.Div. Jan. 25, 2017). McKinney's present civil action, however, concerns the purportedly deficient medical care he received at a different prison, Bergen County Jail ("BCJ"), during two prior, relatively brief periods of incarceration. McKinney's first stint at BCJ began on February 23, 2011, and lasted "sixty days or so" (see McKinney's Feb. 27, 2018 Dep. Tr., DE 96-4 at 39-41); McKinney's second stint at BCJ began on or about February 22, 2012 and concluded on August 1, 2013. (See DE 96-4 at 30-31.) Dr. Hemsley, Warden Bigott and Capt. Pawson all worked at BCJ throughout Mr. McKinney's time(s) there.

         a. Factual Background

         Documents and other record evidence establish certain underlying facts beyond reasonable dispute.

         On July 6, 2010, McKinney - who was then incarcerated at yet a third institution, Southwoods State Prison ("SWSP") - was examined by Dr. Rajiv Shah at NJSP's Surgery Clinic. (See Dr. Shah's July 6, 2010 Consultation Report, DE 99 at PageID 841.) At that time, Dr. Shah diagnosed McKinney as having an incarcerated, [1] non-reducible, umbilical ventral hernia. (Id.) As explained by Dr. Shah, McKinney was then "a 37-year-old male who [was there] for evaluation of the umbilicus which appeared when he was lifting and going on the top bunk of his bed. He felt a pop and he has been having pain since then." (Id.) Dr. Shah's July 2010 report notes that McKinney had no past medical or surgical history, no nausea, vomiting, or fever, and that "on examination [McKinney's] abdomen [was] soft, nontender, [and] nondistended." (Id.) Dr. Shah concluded that surgery to treat McKinney's hernia would be appropriate, and should be scheduled in two to three weeks. (Id.) Other than a passing reference to McKinney's complaints of "some pain over the bilateral upper and lower extremities," the only medical condition discussed in Dr. Shah's one-page report is the hernia. (Id.)

         On July 22. 2010, McKinney advised SWSP that he would forgo his planned surgery with Dr. Shah - and would instead have the surgery performed by his "doctor on the street" -because he was "going home in 16 days." (Sac McKinney's July 2, 2010 Medical Consent Form, DE 99 at PageID: 773.) At his deposition. McKinney testified that he was released from SWSP on parole on August 8, 2010, but waited until October 2010 to see his general physician, Dr. Bernadette Reyes, about his hernia. (DE 96-4 at 36, 38-40.) Before seeing Dr. Reyes, McKinney did "[n]othing" to treat his hernia. (Id. at 37.) After he saw Dr. Reyes, she faxed a prescription to the University of Medicine and Dentistry of New Jersey ("UMDNJ") to schedule his hernia surgery.[2] (Id. at 38-40.)

         On February 23. 2011, McKinney - who. at that time, had still not had hernia surgery -was arrested for a parole violation and taken to BCJ. He was thereafter detained at BCJ for a period of "sixty days or so" before he "went back to [SWSP]." (Id. at 39-41; accord McKinney's Feb. 28. 2011 Grievance Form, DE 99 at PageID: 769.) In other words. McKinney first arrived at BCJ roughly six months after being released from SWSP on parole, and nearly seven months after Dr. Shah first recommended surgical treatment for his hernia.

         On February 28.2011, Mr. McKinney submitted a grievance to Warden Bigott in which he stated the following:

On 02-23-111 was placed in custody in your facility. Prior to being locked up I was due for umbilical hernia surgery. It was ordered by Dr. Bernadette Reyes in Passaic NJ. I have a meniscus tear in my left knee. Disc issues in my neck. And back pain from bulge L4-L5. I'm having severe pain in the umbilical area. I need surgery. I'm having severe pain in my knee and also need surgery. Severe pain in my back, neck, maybe P.T. or surgery will help.[3] Severe Constipation. I need surgery very bad on my hernia and knee. And PT [and/or] surgery on my back and neck.

(DE 99 at PageID: 769.)

         On March 10, 2011, McKinney submitted a second grievance to Warden Bigott about "being dented [umbilical hernia] surgery by Doctor Hemsley." (DE 99 at PageID: 767.) McKinney further stated that he was "having severe neck, back, and left knee pain [for which he needed] surgery also.v (Id.) The two foregoing grievances are the only documents in the record related to McKinney's roughly sixty-day stint at BCJ beginning on February 23, 2012[4]

         Approximately one-year later, on February 22. 2012, McKinney - who still had not had hernia surgery - returned to BCJ. (See SWSP"s Feb. 15, 2012 Patient Information Report, DE 97-4 at PageID: 693; BCJ's Feb. 22, 2012 Intake Report, Id. at PageID: 694-95.) There, BCJ medical personnel evaluated McKinney. (See DE 97-4 at PageID: 694-95.) BCJ's intake report notes that McKinney then had a left meniscus tear and an umbilical hernia, and also indicates that he had herniated discs in his neck and back, (hi.) That report also expressly notes, however. that McKinney had no mobility issues and that none of McKinney" s medical ailments were emergent in nature. (Id.) BCJ"s February 22nd report is consistent with the list of McKinney's medical ailments detailed in SWSP's February 15, 2012 report. (See DE 97-4 at PageID: 693 (noting that McKinney's medical problems as of that date included back pain, an umbilical hernia, neck pain, and a left meniscus injury).)

         On March 1, 2012, Dr. Hemsley prescribed Colace and Metamucil. (See Mar. 1, 2012 BCJ's Patient Notes/Physician Orders, DE 97-4 at PageID: 696.)

         On March 6, 2012, Dr. Hemsley personally examined McKinney. as evidenced by his signature at the bottom of his March 6th physical examination report. (See DE 99 at PageID: 837.) Hemsley's March 6th report notes that McKinney's umbilical hernia was "reducible." (Id.) Moreover, nothing in that report suggests that any of McKinney's ailments - including his umbilical hernia - then required surgery or were otherwise emergent in nature.

         On April 13, 2012. McKinney sent a handwritten note to BCJ"s medical department requesting that they "continue [his] fiber supplement [i.e., Metamucil] for twice a day and discontinue the Colace at night. (DE 97-4 at PageID: 697.) BCJ"s April 16. 2012 medical notes indicate that Dr. Hemsley honored that request. (DE 97-4 at PageID: 696.)

         On July 24, 2012. McKinney complained to BCJ medical staff of "being in pain from several past injuries" and requested Motrin (ibufrofen. a pain reliever and non-steroidal anti-inflammatory drug) to treat that pain. (See BCJ's July 24.2012 Nursing Notes, DE 97-4 at PageID: 701.) At that time, McKinney was advised that he could purchase Motrin from BCJ's commissary. (Id.)

         On September 12. 2012. BCJ nursing staff noted that McKinney complained of "not being able to defecate." stated that he needed Metamucil, and requested a "follow-up consultation." (DE 97-4 at PageID: 704.)

         On September 18, 2012, McKinney submitted a formal grievance to Captain Pavvson in which he complained that he had been "denied medical treatment for a month or so.*' was being "denied medicine for constipation and pain," was "in severe pain in the umbilical area due to a hernia," that his "knee [has] given out on [him]," that he had "severe pain in [his] back and neck," and that he needed surgery. (DE 99 at PageID: 759.) It appears that McKinney made similar complaints and requests to BCJ medical personnel on that date. (See BCJ's Sept. 18, 2012 Nursing Notes, DE 97-4 at PageID: 703.)

         On September 19, 2012, McKinney submitted a separate letter to Pawson reiterating his September 18th grievances. (DE 99 at PageID: 770-71.) McKinney's September 19th letter expressly notes that he "[did not] mind buying Motrin [from the commissary] but the ones from the canteen [were] not strong enough"; instead, he wrote, he needed "800 [milligrams] of Motrin to take [his] pain away." (DE 99 at PageID: 770.) McKinney's September 19th letter tends to confirm that his pain was controlled with Motrin, and that he could obtain it without permission or a prescription from BCJ medical personnel.

         On September 25, 2012, McKinney met with Dr. Hemsley. (See BCJ's Sept. 26, 2013 Physician Progress Record, DE 97-4 at PageID: 705.) At that time, Hemsley observed that McKinney did not appear to have "acute or obvious distress"; that "[he was] seated up-right on the exam table"; and that he had a "nontoxic appearance." (Id.) Hemsley also explained to McKinney that he could simply take additional 200 milligram Motrin pills purchased from the commissary to obtain a total 800-milligram dose. McKinney agreed. (Id.)[5] With respect to McKinney's umbilical hernia, Hemsley observed saw no signs of obstruction and, yet again, expressly noted that it remained nonincarcerated. (Id.) Hemsley prescribed Naprosyn to address McKinney's complaint that "his umbilical hernia [was] causing him some discomfort" and also prescribed more Metamucil for him. (Id.)

         On October 3, 2012, McKinney submitted a formal grievance to Warden Bigott indicating that he "saw Dr. Hemsley about a week ago*' and that Hemsley was "still denying [him] hernia surgery." (DE 99 at PageID: 760.)

         On November 3, 2012, McKinney filed another formal grievance to the attention of Bigott and Pawson that reads, in its entirety, as follows:

What is it going to take you dumb ass people to answer my grievances. I need hernia surgery. I keep getting denied. I have a bad hernia [that is] causing me pain and severe constipation. My left knee has a [tear]. My back has a bulge and neck disc issues. I'm calling my family and lawyer. I'm sick of your dumb asses. I need surgery very bad jerks.

(DE 99 at PageID: 768.)

         Dr. Hemsley again saw McKinney on January 15. 2013, at which time McKinney again requested that his umbilical hernia be repaired. (See BCJ"s Jan. 15. 2013 Physician Progress Record, DE 97-4 at PageID: 709.) During that visit. Hemsley observed that McKinney had no constipation, a nontoxic appearance, and that the condition of McKinney's umbilical hernia remained "unincarcerated" and otherwise "unchanged." (Id.) Hemsley determined "that at this point a repair of [McKinney's] hernia [was] elective." (Id.)

         On January 19.2013. McKinney submitted a formal grievance to the attention of, among others, Warden Bigott and Captain Pawson. (DE 99 at PageID: 764.) McKinney complained that he "saw Dr. Hemsley a few days ago and he's still denying me surgery." (Id.) McKinney reiterated that was unable to "take the pain and constipation any longer from [his] hernia" and that he continued to experience "left knee pain from a meniscus [tear]" and "back and neck pain also." (A/.)

         It appears that Dr. Hemsley examined McKinney again on February 8, 2013. as evidenced by his signature at the bottom of BCJ's contemporaneous physical examination report. (DE 99 at PageID: 834.) Although that report is largely illegible, it does clearly state that during McKinney's February 8th examination, he again complained of constipation, and again stated that he wanted to have his umbilical hernia repaired. (Id.)

         On March 30, 2013, McKinney complained to BCJ medical staff about hernia-related pain. (See DE 97-4 at PageID: 712.) BCJ's medical notes memorializing the same indicate that McKinney's "hernia [remained] reducible" and that McKinney did not "appear [to be] in acute distress." (Id.) In a handwritten letter addressed to Dr. Hemsley dated April 1, 2013, McKinney explained that "if [he] didn't have the hernia [he] could work out," and that he needed Hemsley "to advocate for [him]" so that McKinney could "get back to moving around." (DE 99 at PageID: 778-79.)

         On April 8, 2013, McKinney submitted a formal grievance to Dr. Hemsley indicating that he was in "serious pain" from his hernia, that he needed hernia surgery, and that his "knee. back. and neck [were also] bothering [him]." (DE 99 at PageID: 765.) On that same day. McKinney also submitted a "follow-up sick call slip" to BCJ medical staff regarding these "multiple symptoms." (See BCJ's Apr. 8.2013 Nursing Notes, DE 97-4 at PageID: 714.)

         On April 12. 2013. McKinney's attorney, Jeffrey B. Steinfeld, sent a letter to the Bergen County Sheriffs Department asking Undersheriff Steven Librie to "immediately speak with the Medical Unit at [BCJ]. most specifically Dr. Hemsley, and arrange for [hernia] surgery for Mr. McKinney to abate his deteriorating medical condition."[6] (DE 99 at PageID: 755-56.) In that letter, Mr. Steinfeld states that "Dr. Hemsley advised Mr. McKinney that surgery will not be scheduled for him because [Bergen County] will not pay for the same." (Id.) On April 20, 2013. McKinney submitted a formal grievance to Warden Bigott again emphasizing his "need [for] hernia and knee surgery." (DE 99 at PageID: 766.)

         In late May 2013, McKinney was admitted to the BCJ infirmary after complaining about numbness, weakness, and tingling in his arms. (DE 99 at PageID: 762.) BCJ's nursing notes make clear that McKinney received extensive medical attention during that time, notwithstanding that he acted in a ''disruptive" manner. (See DE 97-4 at PageID: 718-29.) Nothing in the record suggests that this infirmary visit related to the prior complaints about the hernia or other knee, back, and neck ailments.

         McKinney does not appear to have filed any additional grievances with BCJ about his medical care after June 3. 2013.[7] BCJ's medical notes during that period, however, do indicate that McKinney met with BCJ medical staff on June 5th and 14tfr. 2013 (see DE 97-4 at PageID: 722). and that he was prescribed various medications on June 24th and July 5th. 6th, 11th, 25th, and 31st, 2013 (see DE 97-4 at PageID: 723-726.) McKinney remained at BCJ until August 1, 2013, at which time he was transferred to NJSP. (See McKinney's Feb. 27. 2018 Dep. Tr. 31, DE 96-4.)

         On October 1. 2013 - two months after McKinney arrived at NJSP - an abdominal sonogram appeared to indicate that his hernia was growing. At that point, he was diagnosed with a "[n]onreducible 3.5 x 1.5 cm protrusion of the umbilicus, pain” and an "[i]nfrahumbilical hernia measuring 7.5 x 4.9 x 6.2 cm." (NJSP"s Oct. 7, 2013 Diagnostic Report. DE 99 at PageID: 782.) On June 17, 2014 - over ten months after McKinney arrived at NJSP - Dr. Shah evaluated McKinney's "longstanding" hernia. (See NJSP's June 19, 2014 Consultation Report. DE 99 at PageID: 781.) Dr. Shah then noted that McKinney was not then experiencing any pain, nausea, or vomiting, ...

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