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Garcia v. McLean

United States District Court, N.D. West Virginia, Martinsburg

February 22, 2018

JHONNY MARCELINO NUNEZ GARCIA, Plaintiff,
v.
DIANE McLEAN, MD, Metropolitan Correctional Center, NY, NY; MICHAEL BORECKY, MD, Metropolitan Detention Center, Brooklyn, NY; BRIAN BUSCHMAN, DR, USP Allenwood; BRIAN GERSON, MS/NP-C, USP Allenwood; JODY BENNETT-MEEHAN, PA-C, USP Allenwood; B. WOOD, PA-C, USP Allenwood; ELIZABETE SANTOS, Clinical Director, USP Allenwood; AMY ARMEL, PA-C, USP Hazelton; LEIGH BIRD, PA-C, USP Hazelton; ROBERT BEAUDOUIN, MD Clinical Director, Metropolitan Correctional Center, NY, NY; A. ABOULFATCH, A MLP, Metropolitan Correctional Center, NY, NY; Y. JOAQUIN, MLP, Metropolitan Correctional Center, NY, NY; VICTOR GONZALES, MD, Metropolitan Correctional Center, Brooklyn, NY; JENNIFER HOLTZAPPLE, PA, USP Allenwood; TERRY O'BRIEN, Complex Warden, USP Hazelton; THOMAS O. DUVALL, PHD, LMHC, NCC Psychologist, USP Hazelton; B. FRIEND, RN Health Service Administrator, USP Hazelton; N. Razavi, MD, USP Hazelton; CHRISTOPHER MEYER, MPAS, PA-C, USP Hazelton; JOHN PYLES, FNP-BC, USP Hazelton; and CHARLES CRAIG, PA ALP, USP Allenwood. Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         On November 28, 2016, the pro se Plaintiff, who was then a federal prisoner incarcerated at USP McCreary in Pine Knot, Kentucky, initiated this case by filing an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against 21 individuals, only some of whom were federal employees or agents, claiming a due process violation, and a violation of his Eighth and Fourteenth Amendment rights. ECF No. 1.[1]

         This matter is pending before this Court for an initial review and Report and Recommendation pursuant to Local Rule of Prisoner Litigation Procedure (“LR PL P”) 2 and 28 U.S.C. § 1915A.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Underlying Criminal Conviction in the Southern District of New York case number 1:02-CR-994.

         On April 28, 2010, Plaintiff was indicted in the Southern District of New York. ECF No. 1[2]. A superseding indictment[3] was filed on September 29, 2010. ECF No. 32.

         Another superseding indictment was filed on December 21, 2011. ECF No. 78. On January 24, 2012, a jury returned a verdict of guilty as to Counts 1 and 2 of the second superseding indictment. On January 10, 2013, the Court sentenced Plaintiff to ten years of imprisonment for each count, with those terms to be served consecutively to one another but concurrently with the term of imprisonment imposed on July 29, 2010 in New York County Supreme Court Case 00148N-2010, followed by five years of supervised release ECF No. 133 at 3, 4. Plaintiff appealed his conviction to the Court of Appeals for the Second Circuit, which on October 29, 2014, affirmed the judgment of the District Court but remanded for resentencing on Count Two. ECF No. 175 at 3 - 4.

         On April 30, 2015, the District Court entered an Amended Judgment which sentenced Plaintiff to “a total term of imprisonment of 217 months, which represents a sentence of 240 months minus the 23 months the defendant served in state primary custody prior to the imposition of federal sentence. . .” ECF No. 193 at 2.

         On May 10, 2016, Plaintiff filed a motion to vacate under 28 U.S.C. § 2255, which was assigned the civil case number 1:16-CV-3512. ECF No. 208. On November 8, 2017, the Court held a hearing and amended the judgment in petitioner's underlying case which rendered his habeas petition in 1:16-CV-3512 moot. The Court entered an to that effect on November 9, 2017. ECF No. 254.

         The November 9, 2017, Amended Judgment re-sentenced Plaintiff to “one hundred and twenty (120) months on count one to be followed by ninety-seven (97) months on count two for a total term of imprisonment of two hundred and seventeen (217) months.” ECF No. 253 at 2. Thereafter, Plaintiff filed a notice of appeal on November 13, 2017. ECF No. 255. That appeal is currently pending before the United States Court of Appeals for the Second Circuit in that court's case number 17-3715.

         Throughout the pendency of these proceedings, Plaintiff has been housed in various federal institutions, including: (1) the Metropolitan Detention Center in Brooklyn, New York (“MDC Brooklyn”); (2) Metropolitan Correctional Center in New York, New York (“MCC New York”); (3) Federal Correctional Complex Allenwood in White Deer, Pennsylvania (“FCC Allenwood”); and (4) Federal Correctional Complex Hazelton in Bruceton Mills, West Virginia (“FCC Hazelton”).

         B. The Instant Complaint in 3:16-CV-161.

         In his complaint filed November 28, 2016, Plaintiff named 21 people as defendants. ECF No. 1. Five of those individuals, Diane McLean (“McLean”), Michael Borecky (“Borecky”), Brian Buschman (“Buschman”), Victor Gonzales (“Gonzales”) and N. Razavi (“Razavi”), were identified as “MD” or “DR”. ECF No. 1 at 2, 7, 8. The other sixteen defendants named were identified by job descriptions. All of the named defendants were associated with one of four institutions where Plaintiff was incarcerated, MDC Brooklyn, MCC New York, FCC Allenwood or FCC Hazelton. ECF No. 1.

         The essence of Plaintiff's claims is that while incarcerated in these facilities he was prescribed various antipsychotic medications to treat his bipolar disorder which caused him to develop gynecomastia, a condition where males grow excess breast tissue, which has caused him “extreme mental anguish, embarrassment, shame and depression.” ECF No. 1 at 14. Plaintiff makes 29 claims in his complaint:

1. Claim 1 alleges that the defendants have deprived him of his Eighth and Fourteenth Amendment rights by acting with deliberate indifference to his serious medical needs, which constitutes cruel and unusual punishment. Id. 1 at 12.
2. Claim 2 alleges that in 2010, McLean prescribed him various antipsychotic medications including risperidone and olanzapine. Id. at 13.
3. Claim 3 alleges that on May 5, 2015, Borecky was aware that Plaintiff was treated with antipsychotic medications risperidone and olanzapine in 2013, but was in remission in 2015. Id. at 13.
4. Claim 4 alleges that in 2015, an unnamed endocrinologist recommended cessation of all antipsychotics prescribed to Plaintiff and the possibility of breast reduction surgery for him. Id. at 13.
5. Claim 5 alleges that on July 17, 2015, Buschman decided not to prescribe risperidone to Plaintiff because the medication could exacerbate Plaintiff's gynecomastia. Id. at 14.
6. Claim 6 alleges that on July 17, 2015, Buschman “attempted to” prescribe the antipsychotic risperidone to Plaintiff after an unnamed endocrinologist recommended cessation of antipsychotics. Id. at 15
7. Claim 7 alleges that on July 22, 2015, Jody Bennett-Meehan PA-C (Bennett-Meehan”) advised Buschman that Plaintiff was hearing voices. Id.
8. Claim 8 alleges that on July 20, 2015, Clinical Direction Elizabeth Santos (“Santos”) prescribed ziprasidone, which has the same side effects of risperidone. Id.
9. Claim 9 alleges that in 2016, Plaintiff was taken to Preston Memorial Hospital for an ultrasound and mammogram, which found Plaintiff had “dense retroareolar fibroglandular tissue.” Id.
10. Claim 10 alleges that on December 3, 2015, Amy Armel, PA-C (“Armel”) reviewed Plaintiff's medical records and noted that Plaintiff did not want to take any antipsychotics because of his gynecomastia. Id.
11. Claim 11 alleges that on July 20, 2015, Bennett-Meehan “tried to cover for” Buschman by incorrectly noting in Plaintiff's medical records that Plaintiff did not recall stating he wanted to discontinue risperidone because of his gynecomastia. Id. at 16.
12. Claim 12 alleges that on July 17, 2015, Buschman discontinued antipsychotic medication after Plaintiff advised the medication caused his gynecomastia. Id.
13. Claim 13 alleges that on June 15, 2015, B. Wood (“Wood”) noted Plaintiff was found in 2014 to have benign breast tissue. Id.
14. Claim 14 alleges that on July 28, 2014, Plaintiff was found to have moderate to advanced gynecomastia. Id.
15. Claims 15 through 28 alleges that on unnamed dates, Plaintiff advised various defendants about his gynecomastia, prescribed medications and surgery, including: MCC Clinical Director Robert Beaudouin (“Beaudouin”) (Claim 15); A. Aboulfatch, MLP (“Aboulfatch”) (Claim 16); Y. Joaquin, (“Joaquin”) (Claim 17); Brian Gerson, MS/NP-C (“Gerson”) (Claim 18); Gonzales (Claim 19); Jennifer Holtzapple, PA (“Holtzapple”) (Claim 20); Terry O'Brien, Complex Warden (“O'Brien”) (Claim 21); Charles Craig, PA (“Craig”) (Claim 22); B. Friend, RN (“Friend”) (Claim 23); Thomas Duvall, PhD, LMHC, NCC Psychologist (“Duvall”) (Claim 24); Razavi (Claim 25); Christopher Meyer (“Meyer”) (Claim 26); John Pyles, FNP-BC (“Pyles”) (Claim 27); and Leigh Bird, PA-C (“Bird”) (Claim 28).
16. Claim 29 alleges that Buschman noted[4] that an unnamed endocrinologist advised that olanzapine and risperidone are idiopathic. Id. At 18.

ECF No. 1 at 12 - 18. In support of his claims, Plaintiff references various exhibits. Claims 3 through 14 reference Exhibits A, B, C, D, E, F, G, H, I, J, K and N. Claims 28 and 29 reference Exhibits L and M. However, no such exhibits are attached to the Complaint. The actual attachments to the complaint are identified as: “Attachment.1A” [ECF No. 1-1]; “Attachment.2A” [ECF No. 1-2]; “Attachment.3A” [ECF No. 1-3]; “Attachment.4A” [ECF No. 1-4]; “Attachment.5A” [ECF No. 1-5]; and “Attachment.6A” [ECF No. 1-6]. Plaintiff seeks ten million dollars in compensatory and fifteen million dollars in punitive damages, as well as costs and fees. ECF No. 1 at 14.

         Plaintiff paid an initial partial filing fee of $20.00 on March 23, 2017. ECF No. 11. On July 12, 2017, the Court entered an order directing Defendants to file an answer, motion or other responsive pleading. ECF No. 14. Defendants were twice granted an extension of time to file an answer by orders entered on September 12, 2017 and October 25, 2017. ECF Nos. 30, 63.

         On October 13, 2017, Razavi filed a motion to dismiss for failure to state a claim, and a memorandum of law in support thereof. ECF Nos. 52, 53. On October 20, 2017, Defendants Buschman, Gerson, Bennett-Meehan, Wood, Santos, Armel, Bird, Beaudouin, Joaquin, Holtzapple, O'Brien, Duvall, Friend, Meyer, Pyles, and Craig (“the Federal Defendants”) filed a motion to dismiss, or in the alternative for summary judgment, with an accompanying memorandum and five attachments thereto. ECF Nos. 56, 56-1, 56-2, 56-3, 56-4, 56-5, 56-6. A corrected declaration for Defendant Buschman (“Buschman”) was filed on November 2, 2017. ECF No. 65. McLean, Santos, Borecky, Aboulfatch and Gonzales were never served by Plaintiff. A sealed summons for each of those five named defendants was returned as “unexecuted” on July 19, 2017. ECF Nos. 20, 21, 22, 23, 24.

         A Roseboro notice issued on October 24, 2017. ECF No. 59. On November 13, 2017, Plaintiff filed a motion to stay on the ground that an evidentiary hearing was to be held in a case filed pursuant to 28 U.S.C. § 2255 in the Southern District of New York in case numbers 10-CR-367 and 16-CV-3512, and that until the evidentiary hearing was completed, Plaintiff would “not be able to adequately litigate his pending civil case[ ].” ECF No. 70. On November 27, 2017, Razavi filed a response to Plaintiff's motion to stay. ECF No. 72. On December 7, 2017, the Court denied Plaintiff's motion as moot because at the ...


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