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Lopez v. Brady

June 3, 2008


The opinion of the court was delivered by: Judge McClure



Radames Lopez ("Plaintiff"), an inmate presently confined at the Northeast Ohio Correctional Center, Youngstown, Ohio, initiated this pro se combined civil rights/Federal Tort Claims Act ("FTCA") action. Lopez's Complaint regards actions which purportedly transpired during his prior confinements at the Allenwood Low Security Correctional Institution, White Deer, Pennsylvania ("LSCI-Allenwood") and the Allenwood Federal Correctional Institution, White Deer, Pennsylvania ("FCI-Allenwood"). Service of the Complaint was previously ordered.

Named as Defendants are the United States Public Health Service; the Federal Bureau of Prisons ("BOP"); William Banks, M.D.; and the following BOP employees, Clinical Directors Doctor James Brady and Doctor Olatokunbo Ojundaye; Physicians Assistants Leonard Weber, Joseph Freynik, Charles Craig, Ralph Roces, and Robert Manenkoff; Connie Woodhead; Disciplinary Hearing Officer ("DHO") Todd Cerney; Paramedic Gregory George; Correctional Officers Free and Kevin. Lopez also indicates that he is proceeding against numerous John Doe Defendants.

Plaintiff states that he suffered facial injuries on September 18, 2004 while playing basketball in the FCI-Allenwood recreation yard. His injuries resulted when Lopez "collided with the steel pole" supporting the basket and fell to the ground. Record document no. 1, ¶ 18. The Complaint describes the mishap as being "preventable" because the pole was not "protected by any padding."*fn1 Id.

Following the incident, Plaintiff although bleeding from a laceration near his left eye, purportedly remained on the basketball court accompanied by Correctional Officer Kevin without medical attention being summoned for approximately one (1) hour while Correctional Officer Free verified Lopez's version of the underlying events. Plaintiff was eventually instructed by Free to walk unescorted to the FCI-Allenwood Medical Department for treatment. His Complaint contends that the conduct of Defendants Kevin and Free constituted deliberate indifference to his injuries.

Upon his arrival at the Medical Department, a laceration near Plaintiff's left eye was treated by Physician's Assistant ("PA") Freynik. However, it is alleged that Freynik failed to have Lopez transported to an outside hospital for an assessment of the obvious serious injury to his right eye. See id. at ¶ 24. Plaintiff acknowledges that three (3) days later, x-rays were taken of his right eye injury by the Medical Department. According to the Complaint, a radiologist, Doctor Gould-Earley, reviewed those x-rays that same day and recommended via a fax to Doctor Ojundaye that Lopez undergo a CT-scan. However, Ojundaye purportedly did not review this recommendation until the following day and although he approved the request, the Defendant allegedly failed to indicate the urgent need for the CT-scan.

Twelve (12) days later, on September 30, 2004, Plaintiff underwent a CT-scan at an outside facility. The resulting report from that test, which recommended that Lopez have an immediate consultation with an Ear, Nose, and Throat specialist ("ENT"), was allegedly faxed to Doctor Ojundaye that same day. However, it is similarly asserted that Okundaye did not review the report until the next day. Plaintiff adds that he was not seen by Doctor Banks, an ENT specialist, until October 7, 2004 (three (3) weeks after sustaining the eye injury).

It is next alleged that although Dr. Banks recommended that Lopez undergo surgery at the earliest possible date, that Defendant was allegedly negligent for not performing immediate surgery. See id. at ¶ 30. Plaintiff admits that he underwent surgery on October 14, 2004. However, due to the delay in undergoing surgery, Lopez concludes that he may have suffered continued pain and loss of vision and may require additional surgeries with limited chance of success. It is also asserted that Doctor Banks delayed surgery due to BOP budgetary concerns. See id.

Following surgery, Plaintiff states that he was prescribed Tylenol for pain, however, he claims to have suffered side effects from that medication, including rapid heart beat, which were "never addressed" by Defendants. Id. at ¶ 31.

On October 25, 2004, Lopez had a post-surgical examination with Doctor Banks. Banks allegedly informed Plaintiff that "everything was healing normally" and another follow up appointment would be scheduled within eight (8) weeks from the date of surgery. Id. at ¶ ¶ 32 & 35. According to the Complaint, Banks was allegedly pressured by Doctor Ojundaye into subsequently agreeing that another follow up appointment was not necessary.

The remainder of the Complaint sets forth additional allegations of medical deliberate indifference as well as other claims of negligence and constitutional misconduct which subsequently transpired at both FCI-Allenwood and LSCIAllenwood (on August 24, 2005 Plaintiff was transferred to LSCI-Allenwood). There is no indication that Doctor Banks was involved in the conduct underlying those additional claims.

Presently pending is Defendant Banks' motion to dismiss the Complaint. See Record document no. 11. The motion has been fully briefed and is ripe for disposition.


Defendant Banks claims entitlement to entry of dismissal on the grounds that: (1) Plaintiff's claims under § 1983, 1985 & 1986 are barred by the statute of limitations; (2) a viable § 1985 claim has not been set forth; and (3) Plaintiff's state claim of medical ...

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