Dorsainvil v. Gallagher

WEDPENS DORSAINVIL, Plaintiff, v. CAROL GALLAGHER, et al., Defendants.

Civil Action No. 15-3035 (ES) (JSA)

United States District Court, D. New Jersey

December 23, 2022

Not for Publication

OPINION

Esther Salas, U.S.D.J.

Plaintiff Wedpens Dorsainvil is proceeding with a complaint for Eighth Amendment violations under 42 U.S.C. § 1983 (“Section 1983”) and negligence under New Jersey state law in connection with certain medical treatment. (D.E No. 56 (“Second Amended Complaint” or “SAC”) at 1 & ¶¶ 12-49). Before the Court is a motion for summary judgment filed by Defendants Carol Gallagher and Alejandrina Sumicad (collectively “Defendants”) pursuant to Federal Rule of Civil Procedure 56. (D.E. Nos. 113 & 113-2 (“Mov. Br.”)). Having considered the parties'

submissions the Court decides this matter without oral argument. See Fed.R.Civ.P. 78(b); L. Civ. R. 78.1(b). For the reasons set forth below, the motion is GRANTED.

I. BACKGROUND^[1]

Unless otherwise noted, the following facts are not in dispute. On December 16, 2012, a nurse examined Plaintiff, then an inmate at New Jersey State Prison, regarding numbness on the left side of his face. (Def. SUMF ¶ 5; Pl. SUMF ¶ 5). The nurse noted Plaintiff's “loss of smile” on the left side of his face and that his eyebrows only moved slightly. (Def. SUMF ¶ 5; Pl. SUMF ¶ 5). The nurse referred Plaintiff for a follow-up appointment. (Def. SUMF ¶ 5; Pl. SUMF ¶ 5). The next day, Defendant Gallagher, a nurse practitioner, examined Plaintiff regarding the numbness of his face. (Def. SUMF ¶ 6; Pl. SUMF ¶ 6). Gallagher diagnosed Plaintiff with Bell's Palsy and prescribed him a drug known as Prednisone. (Def. SUMF ¶ 6; Pl. SUMF ¶ 6). Gallagher also gave Plaintiff an eye patch and artificial tears to apply to his left eye. (Def. SUMF ¶ 6; Pl. SUMF ¶ 6).

On December 24, 2012, Gallagher again examined Plaintiff in connection with his Bell's Palsy. (Def. SUMF ¶ 8; Pl. SUMF ¶ 8). Plaintiff advised her that he was still experiencing issues moving his face and blinking his eye. (Def. SUMF ¶ 8; Pl. SUMF ¶ 8). Gallagher advised Plaintiff to continue using the eye patch and prescribed him Ibuprofen for facial pain. (Def. SUMF ¶ 8; Pl. SUMF ¶ 8).

On January 9, 2013, Gallagher examined Plaintiff again. (Def. SUMF ¶ 9; Pl. SUMF ¶ 9). Plaintiff advised her that he had not regained full function of his face. (Def. SUMF ¶ 9; Pl. SUMF ¶ 9). Gallagher noted that Plaintiff's ability to blink his left eye had improved, but his Bell's Palsy was persisting, and he still could not blink his left eye completely shut. (Def. SUMF ¶ 9; Pl. SUMF ¶ 9). She advised him to continue to use the eye patch and to follow up in one month or sooner, if needed. (Def. SUMF ¶ 9; Pl. SUMF ¶ 9). Plaintiff testified that he told Gallagher he had heard of another medication a fellow inmate was prescribed for similar symptoms, though he couldn't recall the name of the medication at the time. (Dorsainvil Dep. at 27:13-24). He asked Gallagher if there was another medication he should be taking, to which she replied in the negative. (Id. at 27:24-28:23).

On February 7, 2013, Plaintiff saw Gallagher for a follow-up appointment. (Def. SUMF ¶ 11; Pl. SUMF ¶ 11). Plaintiff advised her that he still had difficulty smiling but the function of his left eye lid was improving. (Def. SUMF ¶ 11; Pl. SUMF ¶ 11). According to Gallagher, she ordered another round of Prednisone and advised Plaintiff to continue to use the eye patch and artificial tears and to follow up in two to three weeks. (Def. SUMF ¶ 11). However, according to Plaintiff, he requested “an alternative medication” during this appointment (Pl. SUMF ¶ 11), and he testified that Gallagher ordered the medication-specifically, a drug known as Acyclovir- upon his request, which he received the following month. (Dorsainvil Dep. at 31:1-33:12).

On March 19, 2013, Gallagher again examined Plaintiff. (Def. SUMF ¶ 15; Pl. SUMF ¶ 15). Plaintiff presented with multiple herpetic lesions on his lips and stated that he was recovering from a cold. (Def. SUMF ¶ 15; Pl. SUMF ¶ 15). Gallagher noted Plaintiff's ongoing treatment for Bell's Palsy. (Def. SUMF ¶ 15). According to Gallagher, she prescribed him Acyclovir during this appointment to treat his herpetic lesions. (Id.). Plaintiff concedes that Gallagher prescribed him Acyclovir, but disputes that she prescribed the medication “solely for the herpetic lesions.” (Pl. SUMF ¶ 15).

On August 13, 2013, Defendant Sumicad, a second nurse practitioner, examined Plaintiff regarding his request to refill his prescription for Acyclovir. (Def. SUMF ¶ 17; Pl. SUMF ¶ 17). Sumicad did not refill the prescription, noting that Plaintiff “currently does not require any antiviral medication as there are no lesions.” (Def. SUMF ¶ 17; Pl. SUMF ¶ 17). She noted Plaintiff's ongoing treatment for Bell's Palsy and encouraged Plaintiff to incorporate massage for his facial palsy. (Def. SUMF ¶ 17; Pl. SUMF ¶ 17).

Plaintiff testified that he requested physical therapy throughout 2013 and 2014, which was denied, in at least one instance, by Gallagher. (Dorsainvil Dep. at 44:21-46:6). Plaintiff testified that no medical provider recommended physical therapy to him while he was incarcerated, or since, and that he requested physical therapy because another inmate had told him that he was receiving physical therapy for his Bell's Palsy. (Id. at 38:21-39:11 & 92:18-93:8). Defendants assert that they did not refer Plaintiff to physical therapy because it is an “‘unproven therapy' that is not indicated for Bell's Palsy,” which Plaintiff does not dispute. (Def. SUMF ¶ 24; Pl. SUMF ¶ 24).

On April 28, 2015, Plaintiff initiated this action pro se, originally alleging constitutional violations, including violations of the right to be tried by an impartial jury and to be free of wrongful imprisonment. (D.E. No. 1). The complaint did not name Gallagher or Sumicad as defendants. (See id.).

On June 1, 2015, Plaintiff was transferred to East Jersey State Prison. (Def. SUMF ¶ 19; Pl. SUMF ¶ 19). On June 24, 2015, a nurse examined Plaintiff in connection with his Bell's Palsy, and the nurse referred Plaintiff for further evaluation. (Def. SUMF ¶ 20; Pl. SUMF ¶ 20). That same day, Sumicad examined Plaintiff and prescribed artificial tears and ointment. (Def. SUMF ¶ 21; Pl. SUMF ¶ 21).

On December 3, 2015, Plaintiff filed an amended complaint, naming Gallagher and Sumicad, among others, as additional defendants. (D.E. No. 9). On July 15, 2019, Plaintiff filed his Second Amended Complaint alleging the following two counts: (i) violation of Plaintiff's Eighth Amendment rights under Section 1983 (Count One); and (ii) negligence under New Jersey state law (Count Two). (See SAC at 1 & ¶¶ 12-49). Plaintiff submits that this Court has federal question jurisdiction as to Count One pursuant to 42 U.S.C. §§ 1331(1) and 1343, and may exercise supplemental jurisdiction as to Count Two pursuant to 28 U.S.C. § 1367. (Id. at ¶¶ 1-2). Plaintiff seeks relief in the form of physical therapy and treatment for his Bell's Palsy, as well as $500,000.00 for “physical and emotional injury,” and $100,000.00 in punitive damages against each named defendant. (Id. at 9).

On August 28, 2019, Gallagher and Sumicad separately filed motions to dismiss the Second Amended Complaint. (D.E. Nos. 60 & 61). On March 24, 2020, the Court, considering both motions together, denied both motions. (D.E. Nos. 71 & 72). On March 30, 2020, the Court granted Plaintiff's motion for the appointment of pro bono counsel. (D.E. No. 73). On April 7, 2020, Defendants filed an answer to the Second Amended Complaint and the matter proceeded to discovery. (D.E. No. 74).

During his deposition, Plaintiff testified that he was never refused medical treatment or denied the opportunity to meet with health care providers while he was in the state prison system. (Dorsainvil Dep. at 20:9-20). Plaintiff further testified that at no point did Gallagher tell him that she would not treat him for any illness or injury. (Id. at 67:17-20).

On August 4, 2021, the parties attended a settlement conference that was unsuccessful, and the Court issued a Scheduling Order for expert discovery. (D.E. No. 90). After the deadlines for expert discovery passed without Plaintiff identifying an expert, Defendants jointly filed the instant motion for summary judgment. (D.E. No. 113). The motion is fully briefed. (D.E. No. 114 (“Opp.”); D.E. No. 115 (“Reply”)).^[2] The Court is prepared to rule.

II. LEGAL STANDARD

A court should grant summary judgment if the evidence in the record, viewed with all reasonable inferences in favor of the nonmoving party, demonstrates that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if a reasonable jury could possibly find in the nonmovant's favor on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is “material” if it influences the outcome under the applicable law. Id. at 248.

On a summary judgment motion, the moving party must first show that no genuine issue of material fact exists. Celotex, 477 U.S. at 323. If the moving party has met its initial burden, the burden then shifts to the nonmoving party to present evidence that a genuine issue of material fact compels a trial, and to demonstrate that he can make a sufficient showing on each essential element of his case for which he bears the burden of proof. Id. at 323. To meet this burden, the nonmoving party must offer specific facts that establish a genuine issue of material fact, not just “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co v. Zenith Radio Corp....