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Durmer v. O'Carroll

filed: March 30, 1993.

JOEL E. DURMER
v.
DR. J. O'CARROLL, M.D.; ROBERT C. BARKER; WILLIAM FAUVER JOEL DURMER, APPELLANT



On Appeal From the United States District Court For the District of New Jersey. (D.C. Civil Action No. 89-02286).

Before: Stapleton, Scirica and Nygaard, Circuit Judges.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

This appeal arises out of the district court's grant of summary judgment for defendants in a civil rights action brought by plaintiff Joel Durmer, an inmate in the New Jersey correctional system. Mr. Durmer claims that the defendants violated his civil rights through their deliberate indifference to his medical needs during his period of incarceration. The district court concluded that, as a matter of law, no deliberate indifference was present here and thus, summary judgment in favor of the defendants was appropriate. For the reasons outlined below, we disagree with this Conclusion with respect to defendant O'Carroll and will reverse and remand for further proceedings.

I.

In March 1987, Durmer suffered a cerebral vascular incident which caused his left leg to drag and weakness in his left arm. In June 1987, he was involved in an automobile accident which caused, among other things, an injury to his back. On October 1, 1987, Durmer allegedly suffered another stroke which further weakened his left leg and arm. On October 2, 1987, Durmer began his period of incarceration in the New Jersey prison system, a period which ended with his release on April 10, 1989. Prior to his incarceration, Durmer was treated by Dr. Campollataro, an orthopedic physician. At Dr. Campollataro's orders, Durmer had received extensive physical therapy until the date of his incarceration. Durmer's first six months in the New Jersey prison system were spent in the Ocean County jail. There, he was permitted to use a TENS unit (transcutaneous electrical stimulator) and a cane, but was unable to continue with the physical therapy prescribed by Dr. Campollataro.*fn1 Allegedly, upon notifying the prison authorities of his need for physical therapy, Durmer was told that such therapy was unavailable at the County jail but would be available once he was transferred to the state system. Durmer claims that his condition deteriorated during his time at the Ocean County jail.

On April 22, 1988, Durmer was transferred to the Yardsville Correctional Center where he saw Dr. DelCastillo, a psychiatrist, who examined him and concluded that his medical complaints were valid. On or about May 5, 1988, Durmer was transferred to Mid-State Correctional Facility where he remained for the duration of his incarceration. Shortly after that date, Durmer saw Dr. O'Carroll, the physician-in-charge at Mid-State and advised him of his physical problems. In particular, Durmer told Dr. O'Carroll of his strokes, his increasing left-side weakness, and his immediate need for physical therapy pursuant to Dr. Campollataro's orders.*fn2

Dr. O'Carroll did not reinstitute any physical therapy but instead chose to wait for Durmer's medical records to arrive and send him for further examination. On June 29, 1988, Durmer was sent to the Trenton State Prison-Neurology Clinic where he was examined by a neurologist, Dr. Chaudry. Dr. Chaudry's report indicated that Durmer had, in the past, suffered a stroke and

it concluded with two recommendations. First, it recommended physical therapy and second, it recommended that Durmer also see a neurosurgeon to examine Durmer's back problems and explore the possibility of disc disease. Durmer did not receive physical therapy, however. Instead, Dr. O'Carroll sent Durmer to see a neurosurgeon, Dr. Sheuerman, on July 6, 1988.*fn3 Dr. Sheuerman recommended a bed board and medication with Motrin. Allegedly, he also told Durmer that physical therapy would not be effective more than 15-18 months after a stroke, and that water therapy (one of the forms of therapy originally recommended by Dr. Campollataro) was not available in prison.

Over the next three months, Durmer continued to complain about the lack of physical therapy to Dr. O'Carroll and allegedly wrote letters expressing the same complaints to Mr. Barker (the warden of Mid-State) and Mr. Fauver (the State Commissioner for Corrections). He claims that his condition grew progressively worse over that period as he lost movement in his left leg and foot. In October 1988, Dr. O'Carroll sent Durmer to see Dr. Sheuerman again, apparently to evaluate whether physical therapy would be effective. Dr. Sheuerman recommended that Durmer see a physiatrist*fn4 regarding physical therapy and that he use his TENS unit full time.*fn5 Pursuant to the first part of this recommendation, Dr. O'Carroll sent Durmer to be evaluated by Dr. Carrabelli, a physiatrist, on November 9, 1988. Dr. Carrabelli recommended an orthotic device for Durmer's left foot and a limited three-week physical therapy program to instruct and train Durmer in the use of that device. However, Dr. Carrabelli recommended against any other physical therapy because, at that point, too much time had elapsed for the therapy to be effective.*fn6 Durmer did receive the orthotic device, but never was given the three-week program suggested by Dr. Carrabelli, nor, for that matter, any other physical therapy.

Durmer contends that the defendants' failure to provide the appropriate physical therapy during his stay in the New Jersey prison system caused him to lose substantial use of his left leg and foot. This contention forms the basis of Durmer's § 1983 action against O'Carroll, Barker, and Fauver.

II.

The district court properly exercised jurisdiction over Durmer's suit pursuant to 28 U.S.C. ยง 1343. We have jurisdiction over the district court's grant of summary judgment for ...


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