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Ascenzi v. Diaz

March 30, 2007

MICHAEL J ASCENZI, PLAINTIFF,
v.
DR. R. DIAZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

I. Introduction

On August 15, 2005, Plaintiff, Michael Ascenzi, an inmate presently housed at the Retreat State Correctional Institution ("SCI-Retreat"), Hunlock Creek, Pennsylvania, filed this action pursuant to 42 U.S.C. § 1983. An Amended Complaint, and supporting brief, were filed on December 1, 2005. (Dkt. Entries 14 and 15.) The named defendants, all of whom are represented by separate counsel, are: Dr. Gunnar Kosek, a physician at the Luzerne County Prison; Dr. Renato Diaz, a contract physician at SCI-Retreat; and Joseph P. Mataloni, SCIRetreat's Corrections Health Care Administrator ("CHCA"). Plaintiff alleges that Defendants were deliberately indifferent to his need for narcotic pain medications and corrective surgery for two herniated cervical discs while incarcerated at the Luzerne County Prison, and then at SCI-Retreat. Ascenzi also claims the SCI-Retreat defendants were deliberately indifferent, on two separate occasions, to his skin infections. As relief, Ascenzi seeks an orthopedic consultation and surgery for his neck. Plaintiff also seeks compensatory and punitive damages.

Presently pending are the Defendants' individual Motions to Dismiss. All motions have been briefed, and are ripe for disposition. For the following reasons, the motions will be granted.

II. Statement of Facts

Unless otherwise stated, the following facts are gleaned from Plaintiff's Amended Complaint. (Dkt. Entry 14.) In February 2004, prior to his incarceration at the Luzerne County Prison ("LCP"), Ascenzi injured his neck while working at his former place of employment. Ascenzi's personal physician, Dr. Alex Jung, prescribed Endocet, a narcotic analgesic, three times a day, to treat Plaintiff's discomfort due to his two herniated cervical discs. Plaintiff was scheduled to see Dr. Prosper, a neurosurgeon at Geisinger Hospital, on August 10, 2004, for a consultation regarding the herniated discs.

Ascenzi was incarcerated prior to his appointment with Dr. Prosper. From July 21, 2004, until December 21, 2004, Plaintiff was housed at the LCP. He was examined by Dr. Gunnar Kosek upon his arrival. Ascenzi told Dr. Kosek of his various symptoms associated with his herniated cervical discs: popping, stiffness, twitching, pain, cracking, migraine headaches, itchy sensations, and tension, all of which are exacerbated by cold or wet weather. Dr. Kosek refused to prescribe Endocet or surgery for Ascenzi as requested. Instead, Dr. Kosek prescribed Flexeril (a muscle relaxant) and Ultram (a narcotic like pain reliever) for Ascenzi from July 23, 2004 until July 27, 2004. From July 28, 2004, to August 6, 2004, Dr. Kosek prescribed Plaintiff Piroxicam, a nonsteroidal anti-inflammatory drug ("NSAID"). These medications did not provide Ascenzi with adequate pain relief. Dr. Kosek then prescribed Elavil, from August 3, 2004 through October 30, 2004. On November 28, 2005, Dr. Kosek increased Plaintiff's Elavil to 100 mg "for sleep." Plaintiff remained on the Elavil, a psychotropic medication, until his transfer to SCI-Retreat.

Plaintiff arrived at SCI-Retreat on December 21, 2004. Upon his reception, he was confined in the medical unit for 18 days until his blood test results came back. At this point, Ascenzi's Elavil was discontinued, and he requested that it be restored. When he signed up at sick call to request a prescription for Elavil, he was assured by Dr. Steve Evans (non-defendant), "the [he] would be treated fairly." At some point in January 2005, Plaintiff was examined by Dr. Renato Diaz. Ascenzi advised Dr. Diaz of his family doctor's prescription of Endocet for pain for the herniated cervical discs, as well as his referral to a Geisinger neurosurgeon for the purpose of discussing surgery. After Ascenzi expressed concerns to Dr. Diaz about the appropriate treatment for his neck injury, Dr. Diaz "wanted to cut off [his] 100 mg of Elavil." Plaintiff told him "no way, that's crazy." Dr. Diaz then recommended therapeutic massages that Ascenzi could perform himself. When Plaintiff said he didn't know how, Dr. Diaz told him to learn. Dr. Diaz denied Ascenzi's request for pain medication and surgery.

At some point Dr. Evans (non-defendant), "did a few compression exercises to adjust [Ascenzi's] neck" and prescribed him Elavil for sleep. Dr. Evans allegedly told Ascenzi that "the medical department hates to spend money!"

Ascenzi told Dr. Diaz that the Elavil was not alleviating his pain. Dr. Diaz then prescribed Ibuprofen 600 mg twice daily, Acetaminophen 325 mg daily, and Cyclobenzaprine (a muscle relaxant). Dr. Diaz stated that because Plaintiff had "liver damage," he could not prescribe additional pain medications for him. Dr. Diaz also refused Ascenzi's request for narcotic pain killers due to the possibility that Plaintiff might develop a dependence on the medication. Other medications prescribed by Dr. Diaz for Plaintiff's diabetes and high cholesterol included Gemfibrozil, Enalapril, and Glipizide. Ascenzi contends Dr. Diaz is poisoning him as these medications are "very hard on the liver" and thin his blood.

In February 2005, Plaintiff signed up for sick call to show the physician's assistant ("PA") an infection he had contracted. The PA and Dr. Diaz "tried to convince" Plaintiff that he was suffering from a spider bite. Ascenzi "had a disagreement with about what [he] actually had." Plaintiff believes that had a staphylococcus infection. Plaintiff was treated with antibiotics. Plaintiff claims Dr. Diaz "lied to [him]" about being bitten by a spider.

On May 13, 2005, Plaintiff again complained of a skin infection. He was prescribed Metronidazole, Sulfatrim and a 10 day regimen of antibiotics. In May 2005, Ascenzi was told he had osteoporosis arthritis in his back and that he is losing bone mass. Dr. Diaz was "supposed to give [him] vitamin D, ... but that never happened." Dr. Diaz was also supposed to assign him to a lower bunk, but that too never transpired.

On July 7, 2005, Dr. Diaz diagnosed Ascenzi as suffering from a pinched nerve in his neck. According to Ascenzi, "[a]ll Dr. Diaz had to do is to either set [him] up ...


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