Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Court Rules on Consolidated Suits against CMS in New Jersey

The court disposes of summary judgment motions in 15 consolidated cases
concerning medical care provided by Correctional Medical Services at East
Jersey State Prison. The court grants summary judgment against nine of
them (mostly because the prisoners got a reasonable amount of attention, or
because they don't show any harm) and denies it at least in part in the
other six cases in a fact-heavy 48-page opinion.

The court notes that plaintiffs can recover against the corporate medical
provider only upon a showing of corporate policy or custom, then notes
evidence in the form of memos between CMS and DOC expressing concern about
CMS's failure promptly to provide vital medication, the difficulty of
getting appointments with primary physicians, the difficulty of getting
specialist referrals, and the failure adequately to maintain medical
records. The court notes that the surviving plaintiffs (surviving legally,
that is) all complain of these problems, and that a jury could find the
failure of CMS to take affirmative steps to deal with them created a
sufficiently obvious risk as to constitute deliberate indifference. (739)
Highlights of individual cases:

The failure to send an elevated PSA test on three occasions when the
plaintiff was sent to an oncologist, and the failure to notify the
oncologist about of an abnormal bone scan, resulting in significant delay
in diagnosing prostate cancer, raised a material issue of fact as to
deliberate indifference. At 710: ". . . [D]elaying necessary medical
treatment for non-medical reasons may constitute deliberate indifference."
AIDS, Medication (722): Complaints about multiple instances of failing to
receive HIV medication and not being examined by doctors, combined with a
ten-day failure to provide pneumonia medication after the plaintiff
returned from 11 days' hospitalization for pneumonia, were sufficient to
withstand summary judgment.

An allegation that the plaintiff's referral to a neurologist for a serious
problem was made contingent on his pre-agreeing to surgery (which he
refused) withstands summary judgment. (728)
A year's delay in hernia surgery, causing pain and disability in the
interim, withstands summary judgment. (733)

Medication, Facilities and Equipment (733): Delay in the provision of
medical support stockings and antibiotics, which is claimed to have caused
deep skin infections and an ulcer, withstands summary judgment.
Facilities and Equipment (735): Seven months' delay in providing a knee
brace for a painful rheumatoid arthritis condition withstands summary judgment.

Privacy (737): Defendants' failing to file their summary judgment motion
under seal is not an actionable invasion of privacy; the court notes that
the plaintiffs' complaint, which recited much information about their
medical condition, was not under seal.

Pendent and Supplemental Claims; State Law in Federal Courts (740-44): The
court addresses the malpractice claims of those plaintiffs whose federal
claims survive. A prima facie case of "negligence in a medical malpractice
action" requires expert testimony establishing an applicable standard of
care, a deviation from it, injury, and proximate cause. Plaintiffs'
expert, Robert Greifinger, M.D., is not a specialist in all the areas of
medicine at issue here, but "requiring indigent inmates with complaints
about substandard medical treatment to obtain specialists in every
applicable medical field is unreasonably burdensome." (740)

The malpractice claims are not barred by plaintiffs' failure to provide
the "affidavit of merit" required by state law; their claims fell within
the "common knowledge exception" to the relevant statute. A reasonable
jury wouldn't need an expert in these cases to assess negligence. The
affidavit of merit requirement is intended to weed out frivolous lawsuits
early on, but since these cases have survived summary judgment, the
legislative intent has been satisfied.

The corporation can be held liable on a respondeat superior theory under
state law. The court rejects their defense that they are independent
contractors on the ground that the state courts have held that prison
medical care is an exception to the usual independent contractor rule. See:
Jackson v. Fauver, 334 F.Supp.2d 906 (D.N.J. 2004).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Jackson v. Fauver

334 F.Supp.2d 697

United States District Court, D. New Jersey.

JACKSON, et al., Plaintiff,


FAUVER, et al., Defendant(s).

No. CIV.98-2890 WGB.

Sept. 27, 2004.

*702 Robert J. Kipnees, Esq., Emily Kaller, Esq., Kellie Lavery, Esq., Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, LLP, Metro Corporate Campus One, *703 Darren M. Gelber, Esq., John Hogan, Esq., Ellen Torregrossa-O'Connor, Blair Zwillman, Wilentz, Goldman & Spitzer, A Professional Corporation, Woodbridge, NJ, for Plaintiff.
Stephen D. Holtzman, Esq., Jeffrey S. McClain, Esq., Holtzman & McClain, P.C., A Professional Corporation, Linwood, Robert C. Doherty, Office of the New Jersey Attorney General, R.J. Hughes Justice Complex, Trenton, NJ, for Defendants.


BASSLER, District Judge.

Plaintiffs, 15 former and current inmates at East Jersey State Prison ("EJSP"), brought separate actions against Correctional Medical Services and four of its officials, and against officials and employees of the New Jersey Department of Corrections (collectively "Defendants"). Plaintiffs argue that Defendants were deliberately indifferent to Plaintiffs' serious medical needs, in violation of Plaintiffs' constitutional rights under the Eighth Amendment. All Plaintiffs also brought medical malpractice claims against Defendants under New Jersey law.

Plaintiffs seek a judgment against Correctional Medical Services and its named employees, and an award of compensatory damages, punitive damages, litigation costs, and attorneys' fees. Plaintiffs also seek to enjoin the Defendants from continuing the practices that allegedly violate EJSP inmates' constitutional rights. This Court has jurisdiction over Plaintiffs' constitutional and federal claims pursuant to 28 U.S.C. § 1331, and over Plaintiffs' state claims pursuant to 28 U.S.C. § 1367.

Presently before this Court are Defendants' motions for summary judgment on Plaintiffs' federal and state law claims. The parties have taken depositions and their experts have submitted reports. Defendants' motions for summary judgment are granted with regard to Plaintiffs Eugene Drinkard, Walter Griggs, Dennis Hanna, John Howard, Geraldo Izquierdo, Abdul Kahliq, Derrick Lewis, Thomas Musto and Isa Saalahudin. The pendent state law claims of these plaintiffs are dismissed without prejudice.

Defendants' motions for summary judgment with regard to Plaintiffs Gustavo Cancio, Stephen Castellano, Randolph Jackson, Mufeed Muhammad, Jerome Perkins and Paul Ratti are granted in part and denied in part.


A. The Parties

a. Plaintiffs

Plaintiffs are 15 current and former inmates who at times material hereto were confined at EJSP, located in Rahway, New Jersey. Plaintiffs filed separate and individual 42 U.S.C. § 1983 and related state law actions against Defendants with regard to the medical treatment they received at EJSP. For the sake of the efficient resolution of these cases, this Court entertains the 15 separate complaints together. This case, however, is not a class action lawsuit. Thus, each individual action is treated independently.

b. Defendants

Seven of the defendants in this action were, at times material hereto, officials and employees of the Department of Corrections of the State of New Jersey ("DOC", collectively the "DOC Defendants"). The DOC Defendants are being sued in their individual and official capacities.FN1
FN1. Prior to the summary judgment hearing, the DOC Defendants submitted to the Court that they fully join the brief that was filed in behalf of CMS and the CMS Defendants, and did not file a separate brief. At the hearing, the DOC Defendants again consented that they fully join CMS and the CMS Defendants. They also suggested, however, that Durmer v. O'Carroll, 991 F.2d 64 (1993), instructs that the DOC Defendants should be granted summary judgment, regardless of this Court's Holding on CMS and the CMS Defendants' motion. The Court rejects this untimely claim. While O'Carroll may or may not apply to the actions at bar, the DOC Defendants' repeatedly submitted that they fully join CMS and the CMS Defendants, and failed to file a brief describing how O'Carroll is applicable here. In denying this argument, the Court take notice of the fact that Plaintiffs seek no damages from the State or the DOC Defendants.

*704 Defendant William H. Fauver ("Fauver") was the Commissioner of the DOC. Defendant Howard L. Beyer ("Beyer") was the Assistant Commissioner of the DOC. Defendant Steven Pinchak ("Pinchak") was the Administrator of EJSP. Defendant Terry Moore ("Moore") was the associate Administrator of EJSP. Defendant Ronald Cathel ("Cathel") was an Assistant Superintendent of EJSP. Defendant Richard Switaj ("Switaj") was an Assistant Superintendent at EJSP.

Defendant Correctional Medical Services Inc. ("CMS") is a Missouri-based corporation. At all times relevant to this action, CMS provided medical services to inmates in DOC facilities, including EJSP, pursuant to a contract with the DOC (the "CMS-DOC contract"). The CMS-DOC contract became operative on April 27, 1996.

Four individuals who, at all times relevant to this action, were officials and employees of CMS are also defendants in this action (collectively the "CMS Defendants"). The CMS Defendants are being sued in their individual and official capacities.

Defendant Carol Holt ("Holt") was a manager of CMS. Defendant Bertha Robinson ("Robinson") was the Regional Administrator of CMS. Defendant James Neal ("Dr. Neal") was the Regional State Medical Director of CMS. Defendant Trevor Parks ("Dr. Parks") was CMS's Medical Director at EJSP.

Finally, Defendants John and Jane Does 1-10 are fictitious names of individuals who were agents of the DOC or CMS at all times relevant to this action. They are all being sued in their individual and official capacities.

B. General Material Facts

Even though Plaintiffs do not bring a class action lawsuit, they all claim to be the victims of the same alleged general policies, adopted by CMS to increase profits while sacrificing the care and health of EJSP's inmates. Thus, the Court will summarize the general context from which these actions arise, and then outline the material facts of each individual action.

Plaintiffs allege that they were victims of profit enhancing policies practiced by CMS from the time it assumed responsibility for EJSP inmates' medical care, on April 27, 1996. Plaintiffs have provided this Court with several memoranda and reports written by Defendants Pinchak, Moore and Switaj throughout 1997 and the beginning of 1998. These documents, which were addressed to various DOC and CMS officials, detail failures and problems in the medical care that CMS provided to EJSP's inmates.

Generally, these documents suggest that from April 1996 to the beginning of 1998, Pinchak, Moore and Switaj accused CMS of: (1) failing to timely provide EJSP inmates with prescribed medication, (2) failing to provide EJSP inmates with prompt medical treatment and doctor visits (mostly due to lack of staffing), and (3) losing or misplacing inmates' medical records on numerous occasions. Also, an investigative report, authored by Defendant Moore on January 27, 1997, notes EJSP inmates' *705 frustration with CMS's medical services and the general feeling among these inmates that CMS does not care about the medical treatment it provides them.

While Defendants correctly point out that none of the Plaintiffs are mentioned by name in these general reports, this Court finds that these general memoranda and reports are relevant for this Court's understanding of the general medical treatment that was provided to EJSP inmates during at least part of the time period that Plaintiffs' actions address. The Court will now address the material facts in each of the individual claims.


At the core of this litigation are Plaintiffs' § 1983 actions, alleging that Defendants' have violated Plaintiffs' rights under the Eighth Amendment. These federal law claims also set the basis for this Court's jurisdiction. Thus, the Court will initially determine whether Plaintiffs' Eighth Amendment claims survive Defendants' summary judgment challenge.

a. Genuine Issues of Material Fact

Summary judgment is appropriate only if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The applicable substantive law determines whether or not a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505 (citation omitted). In determining whether a genuine issue of material fact exists, all inferences must be drawn, and all doubts must be resolved, in favor of the non-moving party. Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 305-306 (3d Cir.2001) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party satisfies this requirement, the burden shifts to the non-moving party to present evidence that there is a genuine issue for trial. Id. at 324., 106 S.Ct. 2548

Defendants contend that summary judgment is proper because no genuine dispute of material fact exists in any of the actions before the Court. Defendants are wrong. Both parties rely on Plaintiffs' medical records and depositions to support their claims, and generally agree on the events that are documented in these sources. Looking at the same documents, however, the parties' experts reach opposite conclusions with regard to the quality of medical care provided to Plaintiffs.

Summary judgment is inappropriate if the parties dispute the inferences that could be reasonably drawn from the underlying facts. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Because the parties and their medical experts draw opposite inferences from many of the material facts in the cases at bar, the Court is satisfied that a genuine dispute over material facts does exist.

Defendants argue that the opinions of Plaintiffs' expert, Dr. Robert Greifinger ("Dr. Greifinger"),FN2 on several matters are based on mistaken or wrong information, and thus cannot be viewed as reasonable inferences. Further, Defendants contend *706 that Dr. Greifinger is not qualified to provide an expert opinion on many of the medical issues in question. As discussed in further detail below, this Court rejects Defendants argument with regard to Dr. Greifinger's qualifications. As to Defendants' argument with regard to mistaken information, courts are instructed not to determine the truthfulness or the credibility of factual issues at the summary judgment stage. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

FN2. Dr. Robert Greifinger is a pediatrician and the former Chief Medical Officer for the New York State Department of Corrections. He is a nationally recognized expert and consultant in field of health services in correctional facilities. His credentials are discussed in further detail below.

b. Deliberate Indifference under the Eighth Amendment

To establish a claim under § 1983, a plaintiff must show a violation of constitutional right or federal law, committed by an individual acting under the color of state law. Natale v. Camden County Corr. Facility, 318 F.3d 575, 580-581 (3d Cir.2003). It is uncontested that CMS was acting under color of state law when it provided medical care to Plaintiffs. Because no federal laws are implicated by the actions of CMS's employees and agent, this Court must determine whether CMS employees and agents violated Plaintiffs' constitutional rights. Id.

A. Standard

To establish a violation of his Eighth Amendment right to adequate medical care, an inmate "must show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicated deliberate indifference to that need." Natale, 318 F.3d at 582.

A serious medical need is a need diagnosed by a physician, that the physician believes to require medical treatment, or a need that is "so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987) (citation omitted); see also Atkinson v. Taylor, 316 F.3d 257, 273 (3d Cir.2003).

To demonstrate deliberate indifference, an inmate must show that the officials he is suing "knew of and disregarded an excessive risk to [the] inmate['s] health." Natale, 318 F.3d at 582 (citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The Third Circuit has found deliberate indifference "in situations where 'necessary medical treatment is delayed for non-medical reasons.' " Natale, 318 F.3d at 582 (quoting Monmouth County, 834 F.2d at 347). Deliberate indifference has also been found "in situations where there was objective evidence that a plaintiff had serious need for medical care, and prison officials ignored that evidence." Id.

Finally, "only 'unnecessary and wanton infliction of pain' or 'deliberate indifference to the serious medical needs' of prisoners are sufficiently egregious to rise to the level of a constitutional violation." Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (quoting White v. Napoleon, 897 F.2d 103, 108-109 (3d Cir.1990)) (other citation omitted). "Allegations of medical malpractice are not sufficient to establish a Constitutional violation." Id. Also, "mere disagreement as to the proper medical treatment is also insufficient." Id. (citing Monmouth County, 834 F.2d at 346).

B. Analysis

The fact that Defendants were aware of the medical problems about which Plaintiffs complained is uncontested. Thus, to determine that Plaintiffs' Eighth Amendment claims survive a motion for summary judgment, this Court must find that a reasonable jury could hold that: (1) Plaintiffs' medical problems were serious, and (2) Defendants were deliberately indifferent to these medical problems. This Court must determine these issues while looking *707 at the facts in the light most favorable to the Plaintiffs. Hunt, 526 U.S. at 552, 119 S.Ct. 1545.

The Court takes notice of the reports, written by Defendants' medical experts, that contradict or dispute many of Dr. Greifinger's findings, and that suggest that the medical treatment provided to Plaintiffs was proper. These reports constitute relevant evidence that supports Defendants' claims. It is also important to note, however, that a dispute between medical experts is an issue of fact that courts are generally encouraged not to decide on a motion for summary judgment. Anderson, 477 U.S. at 249, 255, 106 S.Ct. 2505.

Defendants have presented documents to this Court which detail numerous doctor's appointments attended by Plaintiffs, and which contain a long list of treatments and medications provided to Plaintiffs at the times relevant to the actions at bar. These documents provide important support for Defendants' motion. Nevertheless, the fact that Plaintiffs were provided with treatment is not, by itself, enough to preclude Plaintiffs' Eighth Amendment claims. Durmer v. O'Carroll, 991 F.2d 64 (1993). In Durmer, the Third Circuit held that a reasonable jury could find that the physician-in-charge at a state correctional facility was deliberately indifferent to an inmate's serious medical need when he failed to provide the inmate with the physical therapy prescribed for the inmate prior to his incarceration. The Third Court accepted Durmer's argument that a reasonable jury could find that the physician was more interested in saving the prison money than in Durmer's well-being, and that is why he referred Durmer to a specialist instead of providing him with physical therapy.

1. Gustavo Cancio FN3

FN3. Plaintiff Cancio suffered from multiple medical problems. Defendants submitted to the court numerous documents containing extensive descriptions of Cancio's medical history. This opinion only addresses the material facts that are in dispute.
Plaintiff Gustavo Cancio ("Cancio") filed a motion to intervene on or about October 26, 1999, which was granted by this Court on March 14, 2000. He died on May 22, 2002. According to the Deputy Medical Examiner of Mercer County, the immediate cause of Cancio's death was "carcinoma of prostate with metastasis.FN4" Pls.' Ex. No. 62.

FN4. Metastasis is the transfer of disease from one organ or part to another not directly connected with it. Cancio died from the spread of his prostate cancer to other parts of his body. All the medical definitions included in this opinion are taken from MOSBY'S MEDICAL, NURSING, & ALLIED HEALTH DICTIONARY (6th ed.2002).

Prior to his death, Cancio suffered from multiple medical problems, including chronic obstructive pulmonary disease, partial kidney failure, prostate cancer, diabetes mellitus and gout. He was incarcerated in EJSP during all times relevant to this action. According to DOC's quality assurance coordinator, Kenneth R. Wolski, Cancio regularly complained about the level of medical care he was getting at EJSP. Specifically, Cancio often complained about difficulties in seeing medical specialists.

Lung Problems

Cancio suffered from left chronic obstructive pulmonary disease since 1994. In January 1996, Cancio was transferred to EJSP and was placed in the facility's infirmary. On February 2, 1996, Cancio wrote to Thomas Farrell, supervisor of the health services unit at the DOC, and advised Farrell about his serious medical condition. Cancio complained about his inability to see a doctor and obtain previously*708 prescribed medication. On February 9, 1996, Cancio received a chest X-ray that showed opacification FN5 with loss of volume on the right upper lobe, bullous changes bilaterally and large bullae FN6 of the left upper lobe, indicating long term damage to his lungs.

FN5. Opacification is an opaque area probably indicating scar tissue.

FN6. Bullae are "blebs" caused by chronic lung disease which effectively reduce the surface area of the lung for oxygen transport.

On April 1, 1996, Cancio wrote to Dr. Bauer, the chief physician at EJSP and complained about the medical treatment he was receiving. Cancio alleged that: (1) he was not getting his prescribed medication, (2) Dr. Bauer reported to Cancio's superintendent about Cancio's medical condition without reviewing Cancio's medical records; and (3) EJSP's medical staff failed to comply with a specialist's recommendation that Cancio's blood pressure should be checked once a week. Cancio also complained about the cancellation of his quarterly visits with lung and kidney doctors. A copy of this letter was sent to Defendant Fauver.

On May 11, 1996, Cancio was admitted to St. Francis Medical Center in Trenton with a total collapse of his right lung. According to Plaintiffs' medical expert, Dr. Greifinger, Cancio's lung collapse was likely caused by a lapse in medication when Cancio was transferred to EJSP, in January 1996. Cancio remained hospitalized for 48 days. During this hospital stay, he underwent procedures to stop an air leak and to re-expand his right lung.

On May 24, 1996, Mr. Farrell responded to a letter of complaint from Cancio dated from March 1996. Farrell wrote that, according to the information he had received, Cancio "was held in the infirmary area as Temporary Housing, not for medical reasons, and therefore frequent medical supervision was not warranted." Pl.'s Ex. No. 59. Mr. Farrell noted that Dr. Bauer reviewed Cancio's medical records on January 18, 1996 and prescribed eight medications that he considered appropriate. He also noted that subsequent to Cancio's letter, Cancio has been seen regularly by EJSP's medical staff, Dr. Bauer and several medical speciality consultants, and that it appeared that Cancio had been receiving "appropriate care." Id.

On September 4, 1996, Cancio was seen by Dr. Ricketti, a pulmonary specialist. Dr. Ricketti observed that Cancio's lung was doing fairly well but ordered that Cancio be returned for consultation in January 1997. For undisclosed reasons, these instructions were not followed.

On March 12, 1997, Cancio wrote to Defendants Pinchak and Fauver and requested their assistance in arranging the non-executed follow-up visit with Dr. Ricketti. On April 30, 1997, Cancio wrote to Pinchak and Fauver again to inquire about this issue and about seeing a kidney specialist.

Cancio was sent to Dr. Ricketti on May 14, 1997. Dr. Ricketti noted that Cancio had been sent without his medical records, and that no pulmonary function test, nor recent blood work had been conducted. Cancio later visited Dr. Ricketti on June 6 and July 17. On both occasions Cancio was sent without his medical records. On July 17, Dr. Ricketti examined Cancio's lung X-ray and noted that Cancio was not receiving proper care for his lung inflammation. Dr. Ricketti also complained that EJSP had failed to provide prior CT scan records to the radiologist who was doing a follow-up evaluation. On July 23, 1997, Dr. Ricketti observed that Cancio was sent to him "again with no medical records; no X-*709 rays available or reports." Defs.' Ex. Cancio-F at 569.

Plaintiffs' medical expert, Dr. Greifinger, alleges that EJSP failed to provide Cancio with Beclovent, an inhaled medication that reduces inflammation in the lung, or a substitute, from September 1997 to February 1998, and again during June of 2000. Defendants, however, claim that Cancio's medical records indicate that Cancio signed for Beclovent, or a substitute medication, in August, October and November of 1997, refused Beclovent in December 1997, and signed for it again in February 1998 and June 2000.

A scheduled visit with Dr. Ricketti for February 1998 was canceled because Cancio was sent without necessary X-rays. On November 28, 1998, Cancio saw Dr. Ricketti, who prescribed antibiotics for him. Dr. Greifinger opines that there was a lag of 10 days until Cancio got his first dose, and that a CT scan of Cancio's chest ordered on December 8, 1998 was not performed until July 28, 1999. Cancio's next visit with Dr. Ricketti was scheduled for February 1999. This visit was cancelled because of transportation problems. On July 28, 1999, Cancio was sent to his appointment with a lung specialist without necessary laboratory test results and records.

Chronic Kidney Failure

In 1992, Cancio developed kidney failure which was attributed to one of the chemotherapy agents used to treat his lung cancer. Cancio testified that prior to being transferred to EJSP, he had been seen by a nephrologist on a quarterly basis, and that this practice was discontinued at EJSP.

Cancio alleges that in December 1997, a primary physician requested an ultrasound examination of his kidneys but this test was not performed until November 3, 1998. Cancio's medical records, however, indicate that this procedure was performed on December 20, 1997. Cancio also alleges that an ultrasound he received on November 3, 1998, showed abnormal results, and the physician who examined the ultrasound, Dr. Krakovitz, recommended that a follow-up CT scan be conducted. Cancio maintains that the CT scan was not conducted until April 24, 1999. Defendants point out that Dr. Krakovitz's report indicated: "[n]o definite abnormality involving the kidneys"""If further imaging is desired, correlation with CT examination on the abdomen might be considered for more complete evaluation." Defs.' Ex. Cancio-F at 757. Defendants claim that Cancio's non-defendant treating physician decided that further imaging was not desired.

On July 23, 1999, Cancio was seen by Dr. Somerstein, a nephrologist. Cancio alleges that CMS's staff failed to provide him with a consultation with a nephrologist for over two years prior to this visit. Defendants contend that Cancio refused a consultation on February 3, 1999, and was seen by a nephrologist on April 30, 1999. On February 4, 2000, Dr. Somerstein requested that Cancio be referred for evaluation for a kidney transplant. Cancio claims that there is no indication that steps were taken to comply with this recommendation.


Cancio alleges that he was diagnosed with gout in October 2000. He maintains that CMS failed to treat this disease. Defendants do not address this allegation.

Prostate Cancer

Cancio was referred to a urologist on March 17, 1999, due to highly abnormal blood test results that are indicative of prostate cancer. This visit was cancelled for undisclosed reasons. In April 2000, Cancio received a prostate specific antigen test ("PSA") that showed abnormally high results. An EJSP physician requested that Cancio be referred to a urologist on *710 April 24 and May 3, 2000. On May 10, 2000, Cancio was sent to a urologist but the visit was cancelled because Cancio was sent to the wrong doctor. Cancio ultimately saw a urologist on May 24, 2000. The urologist determined that Cancio should undergo a biopsy and see a radiation oncologist. Cancio's biopsy took place on August 23, 2000, approximately three months after the urologist's recommendation. The oncologist prescribed Cancio 30 doses of radiation therapy. Cancio missed his radiation treatments on October 10 and 16, 2000, due to prison transportation problems.

During 2001, Cancio was seen by the radiation oncologist three times to follow up on the progress of Cancio's prostate cancer. Dr. Greifinger asserts that despite the oncologist's instructions, CMS's staff failed to send the results of Cancio's PSA on those visits.

In August, 2001 Cancio had an abnormal bone scan. According to Plaintiffs' medical expert, Dr. Greifinger, the combination of an abnormal PSA and an abnormal bone scan suggests the possibility of metastasis. Cancio alleges that CMS's medical staff failed to inform the radiation oncologist of the abnormalities in Cancio's tests until October 12, 2001. Plaintiffs' expert argues that this failure resulted in a delay of the diagnosis of Cancio's metastasized prostate cancer. Further, Dr. Greifinger opines that the delayed diagnosis contributed to the rapid advance of the disease. On May 22, 2002, Cancio died after suffering severe pain due to the spread of the cancer throughout his body.

Cancio's Eighth Amendment Claim

A reasonable jury could find that Defendants were deliberately indifferent to Cancio's prostate cancer. There is no doubt that prostate cancer is a serious medical problem, and that the CMS's personnel who treated this problem were well aware of its existence. Plaintiffs' medical expert, Dr. Grefinger, maintains that CMS staff failed to send the results of Cancio's PSA test to an oncologist on Cancio's three oncologist visits in 2001. He also maintains that CMS staff did not notify in a timely manner the radiation oncologist who monitored Cancio's prostate cancer about the abnormal results of Cancio's July 2001 bone scan. Plaintiffs' expert argues that these failures resulted in significant delay in the diagnosis of Cancio's prostate cancer, which contributed to the rapid advance of Cancio's illness and ultimately led to his premature death. As noted before, the Third Circuit has found that delaying necessary medical treatment for non-medical reasons may constitute deliberate indifference. Natale, 318 F.3d at 582.

The Court rejects Cancio's Eighth Amendment claim with regard to the treatment he received for his other illnesses. Defendants correctly point out that the bulk of Cancio's complaints about the treatment of his chronic obstructive pulmonary disease ("COPD") pertain to actions that were taken prior to the CMS-DOC contract. While Cancio provides several examples in which CMS actions with regard to Cancio's COPD and kidney problems were potentially negligent, i.e. sending Cancio to specialty consultations without requested tests or medical records, Cancio fails to show how he was injured by these actions. Further, it is well settled that allegations of negligence or malpractice are not sufficient to establish an Eighth Amendment violation. Spruill, 372 F.3d at 235.

Finally, Cancio did not provide this Court with any proof that he ever complained about this issue to EJSP personnel. Further, the mere fact that Cancio's medical records do not document the treatment of Cancio's gout is insufficient, in this *711 Court's opinion, for a reasonable jury to find that Cancio was not treated.

2. Stephen Castellano

Plaintiff Stephen Castellano ("Castellano") has been incarcerated at EJSP since 1992. He suffers from heart problems and diabetes.


Castellano has been suffering from diabetes since 1995. It is Dr. Greifinger's opinion that the high levels of sugar in Castellano's blood, throughout Castellano's incarceration at EJSP, indicate a failure by CMS and EJSP to properly treat Castellano's diabetes.

Dr. Greifinger states that CMS failed to annually test Castellano for the presence of protein in Castellano's urine, as required by nationally accepted guidelines for the treatment of diabetes. Dr. Greifinger opines that this failure, in conjunction with CMS's alleged failure to control Castellano's blood sugar level, has resulted in irreversible damage to Castellano's kidneys and heart, and has placed him at greater risk for damage to his eyesight.

In March 1999, Castellano underwent his first urine-protein test. The test found protein in Castellano's urine and indicated that Castellano's kidneys were failing. Since November 2001, Castellano has treated his kidney failure with self-administered medication. Castellano asserts that before he was placed on self-medication, CMS's staff often failed to provide him with his medication in a timely manner.

Defendants' expert witness, Dr. Seth Braunstein, associate professor of medicine at the University of Pennsylvania Endocrinology Department, notes that after protein was detected in Castellano's urine, Castellano was promptly provided with proper medications. Dr. Braunstein also observes that Castellano was free to obtain finger stick glucose readings to monitor the level of sugar in his blood. With regard to potential eye damage, Dr. Braunstein points out that Castellano had several appointments with an eye physician and was never diagnosed with end-organ damage to his eyes.

Heart Disease

In August 1999, Castellano developed chest pain and received an electrocardiogram ("EKG"). The results of this EKG were not disclosed to the Court. On November 26, 1997, Castellano experienced severe pain in his chest. He was treated in the prison's health clinic, and was given another EKG. This EKG was highly abnormal, and Castellano was provided with nitroglycerine. Castellano alleges that what he suffered was a misdiagnosed heart attack. In his deposition, Castellano testified that he was not advised of his abnormally high EKG results and was not made aware of the fact that this heart attack damaged his heart muscle.

On December 15, 1997, Castellano experienced chest pains again. The nurse practitioner who examined him thought that Castellano's pain might be related to his gall bladder. Dr. Greifinger opines that the nurse's failure to consider Castellano' cardiac history, the fact that Castellano was not seen or examined by a physician, and the fact that no EKG was performed, all demonstrate unreasonable and improper treatment.

Defendants counter that the medical staff who treated Castellano's cardiac problems are not defendants in this action. CMS, however, is contractually responsible for providing health care in EJSP, and on-site prison health care providers, including this nurse, are CMS employees. As noted above, Plaintiffs sued John and Jane Does 1-10 and asked for the opportunity to identify other CMS and EJSP defendants after further discovery.

*712 Sanitary Conditions

Plaintiff alleges that his exposure to blood-born diseases and the risk of contracting such diseases is increased by virtue of his diabetes, for which he receives two insulin injections per day as well as routine pricks to monitor his blood sugar level. Castellano further alleges that his risk of contracting blood-born diseases is amplified by what he describes as CMS's failure to implement safety precautions or follow basic sanitary procedures. Specifically, Castellano claims that CMS's staff used unsterilized needles in administering insulin to him. He further asserts that on many occasions CMS's nurses failed to use gloves when they took his blood.

Defendants point out that Castellano fails to state any injury that he suffered due to the alleged unsanitary conditions. Defendants also note that the doctor and the nurse that Castellano identified as the individuals who failed to wear gloves, no longer work in the prison's clinic and are not named defendants in this case.

Castellano's Eighth Amendment Claim

The Court holds that Castellano presented sufficient support to survive a motion for summary judgment with regard to the treatment of his diabetes. Dr. Greifinger unequivocally states that Defendants failed to properly monitor and control the level of sugar in Castellano's blood, and that this failure resulted in irreversible damage to Castellano's heart and kidneys. In light of Dr. Greifinger's opinion and findings, a reasonable juror could infer that Defendants were deliberately indifferent to Castellano's serious need for medical care. Natale, 318 F.3d at 582.

The Court rejects Castellano's claim with regard to the treatment of his cardiac problems. Castellano fails to show that Defendants ignored or refused to treat his cardiac problems. Castellano also fails to demonstrate that he was injured in any way by the allegedly improper care that he received on December 15, 1997.

The Court finds that Castellano failed to provide sufficient support for his claim that he was exposed to treatment under unsanitary conditions. The Court bases its conclusion on the fact that Plaintiffs' medical expert did not comment on this issue, and the fact that Castellano fails to show that he was injured by this allegedly improper action by former CMS employees.

3. Eugene Drinkard

Plaintiff Eugene Drinkard ("Drinkard") was incarcerated in EJSP from October 17, 1995 FN7 through February 1999. He was then transferred to New Jersey's Northern State Prison in Newark, New Jersey where he remained until his death on June 26, 2001. According to Drinkard's "mortality report," he "died unexpectedly" at the age of 48. Pls.' Ex. No. 63.
FN7. In their brief, Defendants submit to this Court that Drinkard's term in EJSP started on April 27, 1997; however, his transfer/discharge form from Essex County Jail to EJSP is dated October 17, 1995. Defs.' Ex. D-Drinkard at 2.
Plaintiff Drinkard suffered from multiple medical ailments including HIV, diabetes, hepatitis C, high blood pressure, syphilis, macrocytic anemia, liver failure and paranoid schizophrenia. Drinkard alleges that the medical care that CMS provided to him was marked by recurring lapses in his medication and frequent delays in necessary treatments and tests.

In his November 2000 deposition, Drinkard testified that he did not receive any medication during his first three weeks at EJSP. As a result, he caught a severe cold, suffered from dizziness and fainting spells, and was unable to get out of bed.

*713 Drinkard testified that on or about April 1996 he was placed in administrative segregation. He complained that while in segregation, he did not receive any medication for two to three weeks.FN8 Drinkard further complained that during this time he was not physically examined, his blood pressure was never taken, and he was seen by a doctor only after approximately three weeks into his segregation. Drinkard testified that during this time he constantly complained to the nurse about not receiving his medications and was told that he must wait until his medicine would be renewed.
FN8. It is impossible to determine from the parties' submissions when exactly Drinkard was in administrative segregation and when the three week period in which he allegedly did not receive medication occurred. Both parties rely on Drinkard's November 9, 2000 deposition. This deposition indicates that Drinkard was placed in administrative segregation sometime after April 15, 1996, and that he did not receive any of his medications during the first three weeks that he was in administrative segregation.

Dr. Greifinger states that Drinkard's medical records seem to suggest that he did not receive much of his prescribed medication between 1997 and 1999. Dr. Greifinger opines that if Drinkard did not get much of his HIV medication promptly, "it would have contributed to an increasing viral load and possible resistance to the medication [Drinkard] took later." Pls.' Ex. No. 1 at 9. Dr. Greifinger concludes that the lapses in medication most likely contributed to Drinkard's profound anemia, diminished his immune system and played a significant factor in Drinkard's early death.

Liver Damage

Drinkard claims that medicines prescribed for his HIV and schizophrenia were improper and damaged his liver. Drinkard also claims that CMS jeopardized his health by entrusting him, a mentally ill person, with responsibility for administering his own medications. He contends that his inability to reasonably administer his own medications caused him to over- or under-medicate himself.

Drinkard's Eighth Amendment Claim

The Court finds that Drinkard's Eighth Amendment claim is not supported by sufficient evidence to survive a motion for summary judgment. In evaluating a claim for deliberate indifference to an inmate's medical needs, a court should consider the severity of the inmate's medical problems, and the potential for harm if the medical care is denied or delayed. Maldonado v. Terhune, et al, 28 F.Supp.2d 284, 289-290 (D.N.J.1998). A court may also consider the actual harm that resulted from the defendant's alleged indifference to the plaintiff's serious medical needs.

Drinkard fails to show how he was injured from his alleged lapses of medication. In fact, Plaintiffs' expert concedes that it is not clear whether these lapses of medication actually occurred. As to the allegedly inadequate medical treatment that Drinkard suffered while in administrative segregation, it is impossible to determine from the information submitted by Drinkard whether this incident happened before or after the CMS-DOC contract commenced. Further, Drinkard fails to show that he was injured due to the allegedly poor treatment he received while in administrative segregation.

Drinkard provides no medical authority to supports his claim regarding the allegedly improper medication that allegedly damaged his liver. Drinkard also fails to identify the physicians who supposedly prescribed him with the improper medication.

Finally, Drinkard's allegation that CMS damaged his health by entrusting him with the administration of his own drugs, has no medical or evidentiary support. The *714 Court finds that a reasonable jury could not find that Defendants were deliberately indifferent to Drinkard's multiple problems.

4. Walter Griggs

While at EJSP, Plaintiff Walter Griggs ("Griggs") sustained an injury to his right middle finger on or about March 10, 1997. He was seen by a nurse who reported the injury to the doctor on duty. The doctor ordered that Griggs be sent to the emergency room at Rahway General Hospital.

The emergency room physician observed that Griggs's right middle finger was partially amputated. The X-rays of the injured finger showed a comminuted FN9 displaced fracture of the middle finger and a soft tissue injury. Griggs was prescribed antibiotics and pain medication, and he was discharged with instructions to clean the wound daily and to follow up with a doctor.

FN9. A comminuted fracture is a fracture in which a bone is broken in several pieces.
Back at EJSP, Griggs's injury was noted on his medical chart by Dr. Reddy. The chart provided that "[i]nmate jammed his finger """ in the door """ went to Rahway [H]ospital, had stitches, needs daily dressing. The ER sheet was not available on the chart." Defs.' Ex. D-Griggs at 30. Dr. Reddy also noted that the stitches should be taken out in seven to ten days.

Griggs alleges that CMS's staff ignored the hospital and Dr. Reddy's instructions for daily care. As proof, he presents the fact that though he was returned to EJSP from the hospital on March 11, the next entry on his medical chart is dated March 18. On that date, Griggs filed a grievance with the Prisoner's Representative Committee ("PRC") alleging that he informed EJSP's medical staff that his wound was bleeding for days after the injury but was refused the sling that he requested to immobilize his hand. The grievance also stated that Griggs had requested a plastic covering for his finger so that he could take a bath, and was provided with an unsanitary piece of cellophane from a small box. The PRC forwarded Griggs's complaint to Defendant Robinson, who was then a Regional Administrator for CMS.

The parties disagree on the date that Griggs was supplied with antibiotic medication for his bleeding wound. Defendants claim that Griggs was supplied with antiobiotics within two days of his March 18 complaint. Griggs claims that a week and a half passed before he received antiobiotics.

EJSP physician, Dr. Desai, saw Griggs on March 28, 1997. He requested an orthopedic consultation for Griggs's finger. Griggs claims he did not receive this consultation. On April 2, 1997, Griggs was seen by Dr. Desai again. Dr. Desai noted Griggs's injury on the master problem list. He instructed that Griggs be provided with daily sterilizing soaks for two weeks, and follow up with a doctor every other day.

Griggs was next seen by Dr. Desai on April 4 and April 7, 1997. An X-ray of Griggs's fingers revealed a comminuted fracture. Dr. Desai ordered an orthopedic consultation, which was approved by Dr. Neal, the Regional State Medical Director of CMS, and Dr. Parks, CMS's Medical Director at EJSP. For undisclosed reasons, this orthopedic consultation was not conducted.

On May 2, 1997, Dr. Desai noted pain and numbness in Griggs's middle finger, and rescheduled the orthopedic consultation. Griggs alleges that the consultation order was not completed by Dr. Desai until May 20, 1997. On May 21, Dr. Sheppard, an orthopedist, recommended physical or occupational therapy and a follow up *715 appointment in four to six weeks. Griggs was in physical therapy from June 3 to July 10, 1997. In addition, on June 6, 1997, a metal splint was placed on Griggs's middle finger.

On August 18, 1997, Griggs was seen by Dr. Ziauddin Ahmed, an orthopedist, who noted that Griggs had asked for reconstruction of his right middle finger. Dr. Ahmed advised Griggs that the injured finger's nail would not grow back but that what was left of the damaged nail could be removed. On September 5, 1997, Griggs complained to Dr. Desai about pain and a lack of sensation in his injured finger. Dr. Desai referred Griggs to Dr. Ahmed to address this issue and follow-up on the removal of Griggs's nail. On October 13, 1997, Griggs advised Dr. Sweeting that he had yet to be seen by Dr. Ahmed. Dr. Sweeting completed another consultation request, which was approved by Dr. Parks on October 15. An appointment was scheduled for January 22, 1998.

On October 24, 1997, Desai noted that Griggs was still complaining of pain and a lack of feeling in his injured finger. Desai ordered pain medication and a follow-up visit in four weeks. On January 29, 1998, Griggs was seen by Dr. Ahmed, who recommended a radical excision of Griggs's partial nail growth. The recommended procedure was approved by Dr. Sweeting and Dr. Parks, and was scheduled for August 4, 1998.

On August 4, 1998, a surgical consultation was conducted by Dr. Pagliano, who recommended a complete nail bed ablation.FN10 On August 31, Griggs was admitted to St. Francis Medical Center to undergo surgery. After the risks and benefits of the procedure were explained to him, Griggs chose to decline the recommended nail bed ablation. Instead, he chose a right long finger trigger release, which was performed on September 1, 1998.

FN10. Ablation of the nail bed is removal of the nail bed.

On September 15, 1998, an orthopedist recommended an EMG/Nerve Conduction Study.FN11 The EMG was conducted on November 9, 1998, and showed carpal tunnel syndrome with evidence of selective impairment of the nerve branches to the right middle finger.

FN11. EMG (Electromyography)is a test that measures muscle response to nervous stimulation.
Dr. Fletcher, an orthopedist, saw Griggs on November 24, 1998, and recommended a cockup wrist brace and an elbow pad. Griggs was fitted for the cockup and elbow pad on December 23, 1998, and again on January 20, 1999. Griggs claims that he never received the brace. On February 9, 1999, Dr. Fletcher saw Griggs again and recommended that Griggs undergo surgical decompression of nerves in the injured area, in order to alleviate Griggs's suffering from numbness and pain in his injured hand. Griggs refused the surgery.

On December 27, 1999, Griggs was referred to a physician after he complained of numbness in his hand and arm. About a week later, Griggs was seen by Dr. Moody and consented to have a carpal tunnel release surgery, which was conducted on January 5, 2000. The surgical decompression of nerves, which was refused by Griggs on May 11, 1999, was ultimately performed on February 15, 2000.

Plaintiffs' medical expert, Dr. Greifinger, claims that Griggs experienced unreasonable delays in access to specialty care, which caused Griggs ongoing pain and disability. According to Dr. Greifinger, Griggs's hand injury could have led to a deterioration in function with an impact on Griggs's daily living.

Defendants' expert, Dr. Edward Resnick, an orthopedic surgeon at Temple *716 University Hospital, found no fault in the treatment that was provided to Griggs. Dr. Resnick noted that Griggs had declined surgery for a considerable period of time, and that when Griggs agreed to undergo the recommended nerve decompression surgery, his medical condition quickly improved. Defendants maintain that looking beyond Griggs's refusal of surgery, any delay in the performance of surgery on Griggs's hand was based on the opinions of medical experts who are not defendants in this case.

Griggs's Eighth Amendment Claim

The Court finds that Walter Griggs's Eighth Amendment claim lacks sufficient support to survive a motion for summary judgment. While Griggs and Dr. Greifinger point out that Griggs suffered a delay in treatment, they provide no proof that this alleged delay caused Griggs any significant damage.

Prison authorities are allowed considerable latitude in the diagnosis and treatment of inmates. Durmer, 991 F.2d at 67. Griggs was evaluated by physicians and specialists, prescribed medication, and given physical therapy. In addition, he had multiple surgeries. His personal belief that the treatment he received was inadequate is insufficient to establish deliberate indifference. Spruill, 372 F.3d at 235.

Based on the affidavits presented by Griggs, this Court holds that a reasonable jury could not find that Defendants were deliberately indifferent to Griggs's hand condition.

5. Dennis Hanna

Plaintiff Dennis Hanna ("Hanna"), an inmate in EJSP, suffers from chronic hypertension.FN12 According to Dr. Greifinger, the standard of care in correctional medicine FN13 for inmates with chronic diseases requires that they be seen by a physician on a quarterly basis. Dr. Greifinger claims that accepted national guidelines further provide that patients with hypertension should have an annual EKG and an annual testing for blood lipids.

FN12. Hypertension is an arterial disease in which high blood pressure is the primary symptom.

FN13. Correctional medicine is the field of providing medical care in correctional facilities.
Hanna complains that his hypertension was not monitored between 1997 and 2000. He claims that his entire medical record was lost in 2000. He alleges that he was never offered treatment and was not on EJSP's chronic disease list. Dr. Greifinger opines that CMS's failure to monitor and control Hanna's hypertension created a risk of end-organ damage to Hanna's heart and kidneys, and increased his chances of suffering a stroke and premature death.