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Berchiolly v. Ashcroft

March 6, 2007

THOMAS BERCHIOLLY, PLAINTIFF,
v.
JOHN ASHCROFT, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for consideration of the defendants' pending motion to dismiss and/or motion for summary judgment. [d/e 33]

The plaintiff filed this lawsuit pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) alleging that his constitutional rights were violated at the Federal Correctional Institution in Pekin, Illinois. On November 8, 2004, the court conducted a merit review of the complaint and found that the plaintiff had adequately alleged that Defendants Clinical Director Eddie Samalio, Dr. Angel Ortiz, Pharmacist William Gould, Physicians Assistants Robert Jackson and Physicians Assistant Otto Hanson violated his Eighth Amendment rights when they intentionally delayed or interfered with treatment for skin cancer. See November 8, 2004 Court Order.

The defendants have filed a motion to dismiss and/or motion for summary judgment. The plaintiff has filed a response.

FACTS

The following facts are taken from the defendants' statement of undisputed facts, the plaintiff's response and the exhibits presented by the parties.

During the time frame of his complaint, the plaintiff resided at the Federal Correctional Institution in Pekin, Illinois. (Herein FCI Pekin). The plaintiff arrived at this institution on August 24, 1995.

Defendant William Gould is a commissioned officer of the United States Public Health Service who has been assigned to the FCI Pekin. Defendant Samalio says he was the Health Services Administrator at FCI Pekin who was responsible only for the administrative functions of the health care unit including housekeeping, sanitation, maintenance, personnel, budget, procurement and supply functions. Defendant Samalio says he is a foreign medical graduate and has worked as a Physician's Assistant. However, is not authorized to see patients in a clinical role. Defendant Samalio says he did not see the plaintiff in a clinical role, nor did he medically assess the plaintiff or provide treatment to him. (Def. Memo, Samalio Aff.) The plaintiff disagrees with Samalio's claims and says Samalio did in fact examine his skin condition.

On or about October 22, 2002, the plaintiff noticed a growth on his forehead and submitted an inmate request for a medical appointment. An appointment was scheduled and the plaintiff saw Physicians Assistant Jackson on November 6, 2002. Defendant Jackson says he saw an irregular, slightly raised lesion on the plaintiff's forehead. Defendant Jackson's notes also indicate he planned to schedule a biopsy to rule out skin cancer, but the appointment was not made. The defendants claim they do not know why there was a delay in scheduling the appointment. Further, the defendants say the plaintiff did not mention the lesion again until July of 2003.

On July 7, 2003, the plaintiff filed another inmate request expressing concerns about the growth on his face and his cholesterol medication. An appointment was scheduled and the plaintiff was seen in Health Services on July 17, 2003. The plaintiff again raised concerns about the lesion on his forehead as well as other health concerns to Defendant Jackson. Defendant Jackson again wanted to rule out skin cancer and referred the plaintiff to Dr. Ortiz.

Dr. Ortiz met with the plaintiff on July 18, 2003. Dr. Ortiz says he spoke to the plaintiff on this date "about issues related to his knee condition, but Berchiolly also mentioned a skin rash." (Def. Memo, Ortiz Aff., p 2) The doctor ordered Benadryl for the skin rash.

On July 21, 2003, the Utilization Review Committee recommended that the plaintiff undergo arthroscopic surgery for his knee problems.

Dr. Ortiz says on September 2, 2003, he "noted in the medical record a small tumoration on Berchiolly's right forehead, which was pending biopsy." Id. The doctor referred the plaintiff to a general surgeon. Again, the defendants offer no explanation for the delay. The Utilization Review Committee approved the biopsy on September 11, 2003.

Dr. Ortiz says he spoke with the plaintiff again on September 22, 2003 and told him the lesion would be biopsied and he would be seen by a general surgeon soon. The doctor also discussed the plaintiff's cholesterol and knee problems. Dr. Ortiz says he had no further contact with the plaintiff since he transferred to another location after this appointment.

The plaintiff was seen by a general surgeon, Dr. Reid, on September 30, 2003. Dr. Reid recommended excision of the right temple nodule and the surgery was conducted on November 18, 2003. The pathology report indicates that the plaintiff did have skin cancer. "The pathology also noted that the lines of the excision were negative which indicates that the entire cancerous area was removed." Id. , p 3. Dr. Reid indicated that he required no further follow-up with the plaintiff. The sutures were removed on November 26, 2003 by Defendant Hansen and he noted that the wound was healing well.

On December 8, 2003, the plaintiff submitted an inmate request form complaining of dizziness and expressing concerns over the lesion that was removed from his forehead. The plaintiff was seen for a medication refill on December 12, 2003 and was seen by a doctor the his dizziness complaint on December 15, 2003.

In January of 2004, the plaintiff was seen by Defendant Hansen with a complaint regarding new lesions on his right temple area. The plaintiff stated they had increased in size in the last three months, they were tender and occasionally bled when he washed. Defendant Hansen noted a slightly raised lesion that measured approximated 3 by 5 millimeters. Hansen recommended an outside consultation to rule out skin cancer and a request was submitted that day.

On March 3, 2004, the plaintiff was seen by Dr. Sutherland. The doctor recommended a cream that is an anti-cancer drug used to treat pre-cancerous and cancerous skin growths. The plaintiff says the doctor explained the use and potential side effects of the ...


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