THÉRÉSE WILEY DANCKS, Magistrate Judge.
This pro se civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred for Report and Recommendation by the Hon. Gary L. Sharpe, Senior U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3 (c). Plaintiff Devrol Palmer, a former inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges Eighth Amendment deliberate indifference claims against Defendants Dr. Michael Seidman, C. Wheeler, K. Wyen, J. Parks, Grace Kennedy, and C. Hayes. (Dkt. No. 28 at 2.
Defendants, with the exception of K. Wyen who has not been properly served in this action, have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP"). (Dkt. No. 80.) Plaintiff has not opposed the motion despite the Court sua sponte granting an extension of time within which to do. (Dkt. No. 84.) For reasons explained below, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 80) be granted and that Plaintiff's amended complaint (Dkt. No. 28) be dismissed in its entirety.
Dr. Seidman treated Plaintiff for his seizure disorder at Riverview Correctional Facility ("Riverview") from August 2014, through September 2015.
Specifically, Plaintiff claims he missed the following scheduled doses of Keppra:
Id. Plaintiff also claims he missed his morning/early afternoon dose of Keppra on July 25, 2015, at Riverview. Id. at 5. Later that afternoon, on July 25, 2015, Plaintiff suffered two seizures. Id. at 6.
Plaintiff alleges Dr. Seidman was deliberately indifferent to his serious medical needs because he prescribed Keppra on a 1:1 basis, failed to provide appropriate instruction or otherwise ensure Plaintiff received his medication while in transit in July 2015, and was grossly negligent in his supervision of subordinates. Id. at 6-10. Plaintiff alleges Parks, Hayes, Kennedy, and Wheeler were deliberately indifferent to his serious medical needs by failing to administer scheduled doses of Keppra at various point in time in July 2015, thereby contributing to his medication "falling below the therapeutic level" and causing Plaintiff's seizures on July 25, 2015. Id. at 10-17.
Dr. Seidman, Parks, and Hayes have submitted declarations in support of Defendants' motion, along with declarations from non-party Nurse Administrators at Riverview, Watertown, and Ulster. (Dkt. Nos. 80-1 through 80-17.) Generally, Defendants contend Dr. Seidman is entitled to summary judgment because he provided appropriate treatment, does not develop policy, and does not supervise any other Defendant. (Dkt. No. 82 at 10-14.) Wheeler, Parks, Kennedy, and Hayes seek summary judgment for lack of personal involvement because they were either (1) not working during the shift they allegedly failed to administer medication; (2) actually administered the alleged missed dose, and/or (3) Plaintiff was marked as a "No Show" for the alleged missed dosage. Id. at 14-19.
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit.
In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." 426 F.3d 549, 554 (2d Cir. 2005). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "[T]o satisfy [FRCP] Rule 56(e), affidavits must be based upon `concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994) (district court "should have afforded [pro se litigants] special solicitude before granting the . . . motion for summary judgment"). However, "a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999)
When a party fails to respond to a motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the moving party. Id.; see also Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In this case, Plaintiff has failed to respond to Defendants' statement of material facts as required under L.R. 7.1(a)(3).
Where a party has failed to respond to the movant's statement of material facts, the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record,
This Circuit adheres to the view that nothing in FRCP Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute where a nonmovant willfully fails to respond to a properly filed summary judgment motion. Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). However, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.
The law is settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. lqbal, 556 U.S. 662, 676 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). Thus, "[h]olding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934).
To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873 (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure, among other things, that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A claim that prison officials have intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).
To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin, 467 F.3d at 280 ("[T]he objective test asks whether the inadequacy in medical care is sufficiently serious."). Factors informing this inquiry include "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (determining whether a deprivation is sufficiently serious requires a court to examine the seriousness of the deprivation, and whether the deprivation represents "a condition of urgency, one that may produce death, degeneration, or extreme pain[.]" (quotation marks omitted)). Importantly, it is "the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
To satisfy the subjective element, the plaintiff must demonstrate that defendants had "the necessary level of culpability, shown by actions characterized by `wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id.; see also Farmer, 511 U.S. at 837 ("[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).
Disagreements over medication, diagnostics, forms of treatment, and the need for specialists are not adequate grounds for a § 1983 claim, since those issues implicate medical judgment and at worst negligence constituting malpractice. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001). Stated another way, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106; accord Hill, 657 F.3d at 123; see also Smith, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation.").
Since his arrival at Riverview in August 2014, Plaintiff received on-going treatment for his seizure condition and was prescribed Keppra, 500 mg, twice daily. (Dkt. No. 80-1 at 2.) Plaintiff alleges he missed multiple doses of his required seizure medication from July 10, 2015, through July 25, 2015, and, as a result, he suffered two seizures on July 25, 2015. (Dkt. No. 28 at 3-6.) Thus, for purposes of this motion, the Court finds Plaintiff's seizure condition constitutes a serious medical need.
Plaintiff claims Dr. Seidman was deliberately indifferent to his serious medical needs because he (1) prescribed Keppra on a 1:1 basis as opposed to "self-carry" while in transit; (2) failed to ensure Plaintiff would receive his medication as scheduled; and (3) was grossly negligent in his supervision of subordinates. (Dkt. No. 28 at 7-10.)
The Court finds no reasonable fact finder could conclude that Dr. Seidman's treatment was inadequate or, to the extent it could be construed as inadequate, which the Court seriously doubts, that Dr. Seidman acted with a culpable state of mind. Plaintiff's allegations boil down to a disagreement regarding the course of treatment Dr. Seidman chose. The Eighth Amendment does not afford prisoners a right to medical treatment of their choosing, and prison medical personnel are vested with broad discretion to determine what method of care and treatment to provide their patients. Estelle, 429 U.S. at 107.
In addition to work in the private and academic sectors, Dr. Seidman has been employed by DOCCS since 1987, and has been the Medical Director at Riverview since 2005. (Dkt. No. 80-1 at 1-2.
Dr. Seidman prescribed Keppra to Plaintiff, to be taken twice a day on an 1:1 or nurse administrated basis. (Dkt. No. 80-1 at 2; Dkt. No. 80-2.) Generally, Plaintiff alleges Dr. Seidman was deliberately indifferent to his serious medical needs because he failed to prescribe Keppra as "self-carry" or "keep on person" while out to court. (Dkt. No. 28 at 7-8.) In support of Defendants' motion, Dr. Seidman declares:
Id. at 4. Indeed, Dr. Seidman considers nurse administration to be the most appropriate means of dispensing seizure medications. Id. He explains requiring nurse administration of essential medication reduces problems of non-compliance, which otherwise arise frequently in a correctional facility setting. Id. Similarly, requiring nurse administration avoids improper dosing or overdose of seizure medications. Id. In fact, during the many years Dr. Seidman has worked as a DOCCS physician, he has always prescribed seizure medication on a 1:1 basis, and he continues to prescribe these medications on a 1:1 basis for all seizure patients currently housed at Riverview. Id.
As to Plaintiff's claim that Dr. Seidman "failed to provide specific written instruction" or otherwise failed to ensure that Plaintiff would not "miss" his medication while in transit, Dr. Seidman does not develop procedures relating to transport of inmates. Id. at 3. Rather, such policies are contained in DOCCS Directives originating from Central Office. (Dkt. Nos. 28 at 8, 80-1 at 2-3.) Dr. Seidman's role is to issue orders and prescribe medication for the proper treatment of his patients at Riverview. Id. at 2. Thus, when Dr. Seidman's patients are in transit, he relies on DOCCS policies and procedures to ensure continuity of their care. Id. Among those procedures, when transfer of an inmate is anticipated, medical staff complete documentation informing transporting personnel and receiving facilities of an inmate's ongoing medical needs. Id. Accordingly, non-party medical staff issued an Intersystem Transfer/Pre-Screening Form for Plaintiff on June 26, 2015, indicating, among other health information, Plaintiff has a seizure disorder, and requires "1:1 drugs" and a bottom bunk. (Dkt. No. 81-2.) Dr. Seidman explains that completion of that form was to facilitate continuation of Plaintiff's medical treatment pursuant to his orders while in transit. Id. at 4. Plaintiff's claim that Dr. Seidman should have changed his medication regimen prior to his court trip amounts to nothing more than a disagreement and preference over medical treatment. See, e.g., Patterson v. Lilley, No. 02 Civ.6056 NRB, 2003 WL 21507345, at *5 (S.D.Y.Y. June 30, 2003) (finding prisoner's disagreements with method in which medication was administered involved mere difference of opinion rather than deliberate indifference).
As to Plaintiff's contention Dr. Seidman was "grossly negligent in managing subordinates," Dr. Seidman does not supervise any other Defendant in this action. (Dkt. No. 28 at 9.) As Medical Director, Dr. Seidman has supervisory authority over other physicians at Riverview. (Dkt. No. 80-1 at 2.) He does not, however, supervise the nurses at Riverview; these employees are supervised by Nurse Administrator Lisa Cota. Id.; see also Dkt. No. 80-4 at 1.
Nevertheless, at this juncture, Plaintiff has not identified and/or properly served any Riverview employee who allegedly failed to provide him with medication on one of the specified dates at issue. While Plaintiff claims he did not receive his morning dose of Keppra at Riverview on July 10, 2015, the Court notes Plaintiff has not named any individual responsible for this incident, and, notably, Plaintiff's Treatment and Medication Record ("TMR") indicate both scheduled doses were administrated to Plaintiff at Watertown on that date. (Dkt. No. 28 at 11; Dkt. No. 80-11 at 2.) As to Plaintiff's claim that K. Weyn, purportedly a registered nurse at Riverview, failed to provide him with medication on the afternoon of July 23, 2015, no individual identified as K. Weyn had been properly served in this action. A summons addressed to K. Weyn at Riverview was returned unexecuted. (Dkt. No. 28 at 14-15; Dkt. No. 40.) Finally, although Plaintiff claims he missed his scheduled medication on the morning of July 25, 2015, Plaintiff apparently attributes that failure to unnamed corrections officers supervising Riverview's Rastafarian Family Day event on July 25, 2015, rather than to any subordinate of Dr. Seidman. (See Dkt. No. 28 at 5-6, 18.)
Based on the foregoing, the Court recommends granting summary judgment to Dr. Seidman.
Plaintiff claims Parks failed or refused to provide him his morning doses of Keppra on July 13, 2015, and July 23, 2015, prior to his departure from Watertown on each of those dates. (Dkt. No. 28 at 10.) Parks seeks summary judgment for lack of personal involvement. (Dkt. No. 82 at 17-18.) "It is axiomatic that, as with any other type of civil rights violations, personal involvement in the conduct giving rise to a deliberate indifference claim is a prerequisite to a finding of liability." Johnson v. Adams, No. 914-CV-0811 (GLS/DEP), 2016 WL 6604129, at *7 (N.D.N.Y. July 25, 2016) (collecting cases).
Michelle McCormick, Nurse Administrator at Watertown has submitted a declaration in support of Defendants' motion. (Dkt. No. 80-11 at 1.) Her responsibilities in this position include the supervision of the nursing staff, nursing scheduling, monitoring time and attendance of nursing staff, training of nursing staff, and overseeing the provision of nursing care to patients. Id. Attached to her declaration are Watertown's nursing duty records for July 2015 and Plaintiff's TMR. (Dkt. Nos. 80-11; 80-12; 80-13.)
The record demonstrates Parks was the medication administration nurse on duty for the "noon medication runs" on both dates. (Dkt. No. 80-11 at 2.) However, there is no indication Plaintiff ever reported for the noon medication run on either date and/or was denied medication. Id. Plaintiff's TMR indicates Plaintiff was either "No Show" or not present in the facility for the noon medication runs on July 13, 2015, and July 23, 2015. Id., Dkt. No. 80-13. In her declaration, Park states she does not recall seeing Plaintiff or interacting with him during the medication runs at issue. (Dkt. Nos. 80-15 at 2.)
As discussed above, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass, 790 F.2d at 263. Here, the record demonstrates Parks was not personally involved in Plaintiff's alleged missed doses on either July 13, 2015, or July 23, 2015. Therefore, the Court recommends granting summary judgment to Parks for lack of personal involvement.
Plaintiff claims Hayes, a registered nurse at Ulster, failed or refused to provide him with medication on three occasions: (1) July 13, 2015, p.m. dose; (2) July 14, 2015, a.m. dose; and (3) July 15, 2015, a.m. dose. (Dkt. No. 28 at 12.) Defendants argue Hayes is entitled to summary judgment because the record demonstrates Hayes administered medication to Plaintiff on July 13, 2015, and had no personal involvement in the alleged denial of medication on July 14, 2015, and July 15, 2015. (Dkt. No. 82 at 14-16.)
Merri White, Nurse Administrator at Ulster, has submitted a declaration in support of Defendants' motion. (Dkt. No. 80-7 at 1.) Like McCormick, her responsibilities include the supervision of nursing staff, nursing scheduling, monitoring time and attendance of nursing staff, training of nursing staff, and overseeing the provision of nursing care to patients. Id. Attached to White's declaration are Ulster's nursing duty record for July 2015 and Plaintiff's TMR. (Dkt. Nos. 80-8; 80-9.)
Plaintiff's TMR indicates Hayes administered medication to Plaintiff on the afternoon of July 13, 2015. (Dkt. Nos. 80-7 at 1, 80-10 at 2.) To the extent Plaintiff claims Hayes should have administered an "extra" dose of medication to account for an alleged missed dose at Watertown earlier that day, both Hayes and White testify that such unilateral action by Hayes would have violated Ulster's policy. (Dkt. Nos. 80-7 at 2; 80-10 at 2.) Indeed, Hayes declares he has "no authority to `double up' doses or authorize extra doses of medication." (Dkt. No. 80-10 at 2.) Further, both Hayes and White testify an alleged single missed dose would not have prompted any emergency action by medical staff. (Dkt. Nos. 80-7 at 2; 80-10 at 2.) As such, the Court finds Plaintiff's allegations pertaining to July 13, 2015, reflect no more than a dispute as to the appropriate medical treatment for Plaintiff. See Chance, 143 F. 3d at 703 (holding disagreement over the proper treatment does not create a constitutional claim).
Regarding the alleged missed doses of Keppra on July 14, 2015, and July 15, 2015, the record demonstrates Hayes was not the nurse on duty for the morning medication run on either day. (Dkt. Nos. 80-10 at 2; 80-7 at 3.) Further, Plaintiff's TMR was marked "No Show" for the morning medication runs on these days. (Dkt. No. 80-7 at 3.)
Based on the foregoing, the Court finds Hayes was not personally involved in any alleged missed doses of Keppra at Ulster. See, e.g., Gabriel v. Ciy. of Herkimer, 889 F.Supp.2d 374, 396 (N.D.N.Y. 2012) (granting summary judgment to nurse for lack of personal involvement where record demonstrated she was not on duty during times at issue). Therefore, the Court recommends that Hayes be granted summary judgment for lack of personal involvement.
Plaintiff alleges Kennedy, a registered nurse at Ulster, failed or refused to provide Plaintiff with medication in the morning/early afternoon of July 21, 2015, before he left the facility on his return trip to Riverview. (Dkt. No. 28 at 4, 13.) Defendants argue Kennedy is entitled to summary judgment because there is absolutely no evidence that she had any personal involvement in any alleged failure to provide medication to Plaintiff on that date. (Dkt. No. 82 at 16-17.) The Court agrees with Defendants.
The record demonstrates Kennedy was not on duty during the shift at issue. (Dkt. No. 80-7 at 3.) Therefore, the Court recommends granting summary judgment to Kennedy for lack of personal involvement. See, e.g., Gabriel, 889 F. Supp. 2d at 396.
Plaintiff alleges Wheeler, a registered nurse at Riverview, was deliberately indifferent by failing to provide medication to him in the morning/early afternoon on July 25, 2015. (Dkt. No. 28 at 15-17.) Defendants argue Wheeler is entitled to summary judgment because there is no evidence that Wheeler was personally involved in any alleged failure or denial of medication to Plaintiff on that date. (Dkt. No. 82 at 19.)
The record demonstrates Wheeler was not the Riverview nurse on duty during the morning/early afternoon medication run on July 23, 2015. (Dkt. No. 80-4 at 2.) Rather, Wheeler worked the 2 p.m. to 10 p.m. shift that day. Id. Plaintiff's TMR reflects Plaintiff was a "No Show" for the noon medication run. Id. According to Plaintiff, he attended a religious family day event that day scheduled from 8 a.m. until 2:30 p.m. Id. at 15. At approximately 2:50 p.m., all inmates that attended the religious family event were sent back to their housing unit. Id. at 6. Later that afternoon, Plaintiff suffered two seizures. Id.
Here, the Court finds Wheeler had no personal involvement in any alleged failure to provide medication to Plaintiff on July 25, 2015. Therefore, the Court recommends granting summary judgment to Wheeler for lack of personal involvement. See, e.g., Gabriel, 889 F. Supp. 2d at 396.
Plaintiff had a duty to diligently litigate his claims, including a specific duty to identify, name, and serve Defendant K. Weyn, purportedly a registered nurse at Riverview. See Fed. R. Civ. P. 41(b); L.R. 41.2(a); Fed. R. Civ. P. 4(m). Plaintiff has failed to fulfill that duty.
As indicated above, K. Weyn has not been properly served in this action; a summons addressed to K. Weyn at Riverview was returned unexecuted on February 13, 2017. (Dkt. No. 40.) On November 14, 2017, Plaintiff was directed to advise the Court within thirty (30) days whether he actually intended to name "Katherine Weegar" a nurse employed at Riverview on July 23, 2013, as Defendant instead of "K. Weyn." (Dkt. No. 77.) If, however, Plaintiff was not able to determine if K. Weyn was "Katherine Weegar," he was directed to show cause within thirty (30) days of the issuance of the November 14, 2017, Text Order why his claims against Defendant K. Weyn should not be sua sponte dismissed without prejudice for failure to serve Defendant K. Weyn pursuant to FRCP Rule 4(m). Id. To date, Plaintiff has not responded to this directive nor communicated with the Court in any fashion. (See Docket Report.)
"United States Courts are vested with broad discretion to impose sanctions for noncompliance with court orders, and those sanctions can include the severe sanction of dismissing a case." Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006) (Kahn, D.J.) (citing Internet Law Library, Inc. v. Southridge Capital Mgnit., LLC, No. 01 Civ. 6600(RLC), 2005 WL 3370542, at *1 (S.D.N.Y. Dec. 12, 2005) ("Moreover, the court has the inherent authority to dismiss a case when a party disobeys any of its orders.")). Furthermore, FRCP Rule 41(b) provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190 (RSP/RWS), 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996). It is also well-settled that the term "these rules" in Rule 41(b) refers not only to the Federal Rules of Civil Procedure, but also to the local rules of practice for a district court. Tylicki, 244 F.R.D. at 147.
In determining whether such dismissal is appropriate, the court should consider (1) the duration of the delay occasioned by the plaintiff's conduct, (2) whether the plaintiff has received notice that further delay would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4) the plaintiff's right to due process, and (5) the efficacy of lesser sanctions. Lucas v. Miller, 84 F.3d 532, 535 (2d Cir. 1996); Davis v. Citibank, NA., 607 F. App'x 93, 94 (2d Cir. 2015). No one factor is dispositive. See Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001). However, with regards to pro se litigants, Rule 41(b) dismissal "remains a harsh remedy to be utilized only in extreme circumstances," and pro se plaintiff's "should be granted special leniency regarding procedural matters." LeSane, 239 F.3d at 209 (citation omitted).
In this instance, the Court finds that the above five factors weigh decidedly in favor of dismissal for failure to prosecute and for failure to comply with a court directive. Considering the first factor, L.R. 41.2(a) states that "the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution. L.R. 41.2(a). Here, Plaintiff has failed to take any action in the case for approximately one year. (See Docket Report.)
Regarding the second factor, "[t]he Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction." Folk v. Rademacher, No. 00-CV-199S, 2005 WL 2205816, at *4 (W.D.N.Y. Sept. 9, 2005) (citing Martens, 273 F.3d at 180-81). Here, Plaintiff was ordered on November 17, 2017, to show cause why his claims against K. Weyn should not be sua sponte dismissed. (Dkt. No. 77.) Plaintiff has not responded. See, e.g., Nolan v. Primagency, Inc., No. 07 Civ. 134 (RJS), 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) ("A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.").
With respect to the third factor, "prejudice to defendants resulting from unreasonable delay may be presumed." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Here, the fact that K. Weyn has not been properly served presents an obvious impediment to the case going forward. Moreover, the events giving rise to Plaintiff's claims occurred in July 2015, and the statute of limitations regarding the alleged July 23, 2013, missed dosage of Keppra has since expired. See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (holding statute of limitations applicable to claims brought in New York under 1983 is three years).
As to the fourth factor, the Court finds that the need to alleviate congestion on the Court's docket outweighs Plaintiff's right to receive a further chance to be heard in this case. With respect to the fifth factor, the Court has carefully considered sanctions less drastic than dismissal and finds them to be inadequate.
Based on the foregoing, the Court recommends sua sponte dismissing Plaintiff's claims against K. Weyn with prejudice for failure to diligently litigate. See, e.g., McNamee v. Schoharie Cty. Jail, No. 9:06-CV-1364 (TJM/GHL), 2008 WL 686796, at *1 (N.D.N.Y. Mar. 10, 2008) (sua sponte dismissing the complaint against defendants with prejudice for failure to prosecute); Garcia v. City of New York, No. 14-CV-4160 (NGG) (LB), 2016 WL 1275621, at *4 (W.D.N.Y. Mar. 31, 2016) (same); Baker v. Volpe, No. 9:01-cv-1894 (GLS/GJD), 2006 WL 3150030, at *1 (N.D.N.Y. Nov. 1, 2006) (dismissing complaint in its entirety with prejudice for failure to prosecute).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.
Mr. Craig Cole, Bare Hill Correctional Facility, Malone, New York, Legal Mail, Plaintiff, pro se.
William Toran, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, New York, for Defendant.
PAULEY, J.
ORDERED that the attached report and recommendation of United States Magistrate Judge James C. Francis IV, dated August 20, 1999, is adopted in its entirety; and it is further
ORDERED that defendant Pflueger's motion for summary judgment is granted, and the amended complaint is dismissed; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly and close this case.
FRANCIS, Magistrate J.
The plaintiff, Craig Cole, an inmate at the Green Haven Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983. Mr. Cole alleges that the defendant Richard Pflueger, a corrections officer, violated his First Amendment rights by refusing to allow him to attend religious services. The defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the defendant's motion be granted.
During the relevant time period, Mr. Cole was an inmate in the custody the New York State Department of Correctional Services ("DOCS"), incarcerated at the Green Haven Correctional Facility. (First Amended Complaint ("Am.Compl.") ¶ 3). From June 21, 1993 to July 15, 1993, the plaintiff was in keeplock because of an altercation with prison guards. (Am.Compl. ¶¶ 17-25). An inmate in keeplock is confined to his cell for twenty-three hours a day with one hour for recreation. (Affidavit of Anthony Annucci dated Dec. 1, 1994 ¶ 5). Pursuant to DOCS policy, inmates in keeplock must apply for written permission to attend regularly scheduled religious services. (Reply Affidavit of George Schneider in Further Support of Defendants' Motion for Summary Judgment dated September 9, 1996 ("Schneider Aff.") 3). Permission is granted unless prison officials determine that the inmate's presence at the service would create a threat to the safety of employees or other inmates. (Schneider Aff. ¶ 3). The standard procedure at Green Haven is for the captain's office to review all requests by inmates in keeplock to attend religious services. (Schneider Aff. ¶ 3). Written approval is provided to the inmate if authorization is granted. (Affidavit of Richard Pflueger dated April 26, 1999 ("Pflueger Aff.") ¶ 5). The inmate must then present the appropriate form to the gate officer before being released to attend the services. (Pflueger Aff. ¶ 5).
On August 25, 1993, the plaintiff filed suit alleging that prison officials had violated his procedural due process rights. On December 4, 1995, the defendants moved for summary judgment. (Notice of Defendants' Motion for Summary Judgment dated December 4, 1995). The Honorable Kimba M. Wood, U.S.D.J., granted the motion and dismissed the complaint on the grounds that the plaintiff failed to show that he had been deprived of a protected liberty interest, but she granted the plaintiff leave to amend. (Order dated April 5, 1997). On May 30, 1997, the plaintiff filed an amended complaint, alleging five claims against several officials at the Green Haven Correctional Facility. (Am.Compl.) On November 16, 1998, Judge Wood dismissed all but one of these claims because the plaintiff had failed to state a cause of action or because the statute of limitations had elapsed. (Order dated Nov. 16, 1998). The plaintiff's sole remaining claim is that Officer Pflueger violated his First Amendment rights by denying him access to religious services on July 2, 1993. The defendant now moves for summary judgment on this issue, arguing that the plaintiff has presented no evidence that his First Amendment rights were violated. In addition, Officer Pflueger contends that he is entitled to qualified immunity. (Defendants' Memorandum of Law in Support of Their Second Motion for Summary Judgment).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir.1995); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.1993). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the movant meets that burden, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute concerning material facts. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255; Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Anderson, 477 U.S. at 249-50 (citation omitted). "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.1997) (citation and internal quotation omitted); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible") ((citations omitted)). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co., 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)); Montana v. First Federal Savings & Loan Association, 869 F.2d 100, 103 (2d Cir.1989).
It is well established that prisoners have a constitutional right to participate in congregate religious services even when confined in keeplock. Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir.1993); Young v. Coughlin, 866 F.2d 567, 570 (2d Cir1989). However, this right is not absolute. See Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) (right to free exercise balanced against interests of prison officials). Prison officials can institute measures that limit the practice of religion under a "reasonableness" test that is less restrictive than that which is ordinarily applied to the alleged infringement of fundamental constitutional rights. O'Lone v. Estate of Shaahazz, 482 U.S. 342, 349 (1986). In O'Lone, the Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 349 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The evaluation of what is an appropriate and reasonable penological objective is left to the discretion of the administrative officers operating the prison. O'Lone, 482 U.S. at 349. Prison administrators are "accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979).
The policy at issue here satisfies the requirement that a limitation on an inmate's access to religious services be reasonable. The practice at Green Haven was to require inmates in keeplock to present written approval to the prison gate officer before being released to attend religious services. This policy both accommodates an inmate's right to practice religion and allows prison administrators to prevent individuals posing an active threat to security from being released. The procedure is not overbroad since it does not permanently bar any inmate from attending religious services. Rather, each request is decided on a case-by-case basis by a high ranking prison official and denied only for good cause.
For the reasons set forth above, I recommend that the defendant's motion for summary judgment be granted and judgment be entered dismissing the complaint. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report and recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III, Room 234, 40 Foley Square, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
Not Reported in F.Supp.2d, 1999 WL 983876
Kenneth Carl Groves, Sr., Marcy, NY, pro se.
Hon. GLENN T. SUDDABY, District Judge.
On November 7, 2011, Plaintiff commenced this action pro se by filing a civil rights Complaint, together with a motion to proceed in forma pauperis. (Dkt. Nos. 1, 2.)
Because Plaintiff sets forth sufficient economic need, the Court finds that Plaintiff may properly commence this action in forma pauperis. (Dkt. No. 2.)
In light of the foregoing, the Court must now review the sufficiency of the allegations that Plaintiff has set forth in his Complaint in light of 28 U.S.C. § 1915(e)(2)(B). This is because Section 1915(e)(2)(B) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that ____ (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a "short and plain statement" and requiring that the statement "show[ ]" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed.R.Civ.P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed.R.Civ.P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.Supp.2d at 212, n. 20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing," the pleading standard under Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F.Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F.Supp.2d at 212, n. 18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F.Supp.2d 203, 213 & n. 32 (N.D.N.Y.2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits." 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed.2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n. 22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-52, 173 L.Ed.2d 868 (2009).
Most notably, in Bell Atlantic Corp. V. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.
Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).
This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.Civ.P. 8, 10 and 12.
The Court prefaces its analysis of Plaintiff's Complaint by noting that, although Plaintiff is a civilly committed sex offender and no longer a prisoner, the Court will look to cases addressing prisoner's rights in analyzing Plaintiff's claims, because "confinement of civilly committed patients is similar to that of prisoners." Holly v. Anderson, 04-CV-1489, 2008 WL 1773093, at *7 (D.Minn. Apr.15, 2008); see also Morgan v. Rabun, 128 F.3d 694, 697 (8th Cir.1997) ("The governmental interests in running a state mental hospital are similar in material aspects to that of running a prison."). Thus, whereas claims of excessive force by convicted criminals are analyzed under the Eighth Amendment to the United States Constitution, because Plaintiff is a civilly committed sex offender and no longer a prisoner, his substantive rights to be free from unsafe conditions of confinement arise under the Due Process Clause of the Fourteenth Amendment. In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Court stated "[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed-who may not be punished at all-in unsafe conditions." Youngberg, 457 U.S. at 315-16. As have numerous other courts which have considered the issue, this Court has found that "the standard for analyzing a civil detainee's Fourteenth Amendment [conditions of confinement] claim is the same as the Eighth Amendment standard." Groves v. Patterson, 09-CV-1002, Memorandum-Decision and Order at *15-16 (N.D.N.Y. filed Nov. 18, 2009).
To validly assert a violation of the Eighth Amendment through the use of excessive force, an inmate must allege the following: (1) subjectively, that the defendants acted wantonly and in bad faith; and (2) objectively, that the defendants' actions violated "contemporary standards of decency." Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir.1999) (internal quotation marks omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8 [1992]).
Here, construing the factual allegations of Plaintiff's Complaint with special leniency, the Court finds that Plaintiff appears to have alleged facts plausibly suggesting that he was subjected to excessive force by Defendants Davis and Sill. In addition, by alleging that Defendants Davis, Sill and Nicolette discussed the assault in advance of it occurring, and that Nicolette was in the vicinity of Plaintiff's room and had an opportunity to intervene to prevent it, the Complaint sufficiently alleges that Defendant Nicolette was personally involved and/or failed to protect Plaintiff from the assault. See Bhuiyan v. Wright, 06-CV-0409, 2009 WL 3123484, at *7 (N.D.N.Y. Sept.29, 2009) (Scullin, J.) ("The fact that defendant Davis was not in the room, but was acting as a `lookout' so that no one came into the room while plaintiff was being beaten, would not absolve him from liability for the assault. An officer's failure to intervene during another officer's use of excessive force can itself constitute an Eighth Amendment violation unless the assault is "sudden and brief," and the defendant had no real opportunity to prevent it."); Jeffreys v. Rossi, 275 F.Supp.2d 463, 474 (S.D.N.Y.2003) (holding that an officer may be personally involved in the use of excessive force if he either directly participates in the assault or if he was present during the assault, yet failed to intervene on behalf of the victim, even though the officer had a reasonable opportunity to do so).
As a result, a response to these claims is required from Defendants David, Sill, and Nicolette. In so ruling, the Court expresses no opinion as to whether Plaintiff's claims can withstand a properly filed motion to dismiss or for summary judgment.
Plaintiff alleges that on August 9, 2011, the day after the alleged assault, he attempted to "discuss the incident and what transpired" with Defendants Bill and Carver. (Dkt. No. 1 at 5.) Plaintiff alleges that Defendant Bill told him, "I don't want to discuss this Mr. Groves, we're too busy for your foolishness and the matter is being investigated." (Id.) Plaintiff's effort to explain that he was frightened by the incident was rebuffed by Defendant Bill, who told Plaintiff to "grow up." (Id. at 5-6.) The following day, Plaintiff attempted to discuss the incident with Defendant Carver, his primary therapist, again without success. A further attempt at discussion later that day was met with Defendant Carver "stating to the plaintiff in a snotty tone `grow the hell up!'" (Id. at 6.) On August 10, 2011, Plaintiff attempted to discuss the incident "and his current fears and feelings," during his Monday afternoon "Process Group," which is facilitated by Defendant DeBroize. As alleged, Defendant DeBroize told Plaintiff and the other group members that the matter was under investigation "so no one could discuss the incident with anyone." (Id. at 6.)
With regard to the first element, generally, to be sufficiently serious for purposes of the Constitution, a medical condition must be "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J. dissenting) [citations omitted], accord, Hathaway, 37 F.3d at 66; Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998).).
Here, even when construed with the utmost special liberality, Plaintiff's Complaint fails to allege facts plausibly suggesting that Defendants Bill, Carver, and DeBroize acted with deliberate indifference to Plaintiff's serious mental health condition when they declined to discuss the incident of August 8, 2011. There is nothing in the Complaint that even remotely suggests that the requested conversations were integral to Plaintiff's treatment as a convicted sex offender involuntarily committed to CNYPC, or that Defendants' refusal to discuss the incident with Plaintiff when he requested to do so caused Plaintiff to suffer any harm or worsening of his condition. In addition, Plaintiff does not allege that any of these Defendants acted with the requisite culpable state of mind.
Moreover, the statements made by Defendants Bill and Carver that he should "grow up," even if construed as verbal harassment, do not give rise to a cognizable claim that may be pursued under Section 1983. Allegations of verbal harassment are insufficient to support a Section 1983 claim. Johnson v. Eggersdorf, 8 F. App'x 140, 143 (2d Cir.2001); see also Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986) ("[A]llegations of verbal harassment are insufficient to base a § 1983 claim if no specific injury is alleged.").
To prevail on a claim under 42 U.S.C. § 1983, a defendant must be personally involved in the plaintiff's constitutional deprivation. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977). Generally, for purposes of 42 U.S.C. § 1983, supervisory personnel may be considered "personally involved" only if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring.
Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement. McKinnon, 568 F.2d at 934. Rather, a plaintiff must demonstrate "`a tangible connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas, 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 [2d Cir.1986]) (other citation omitted). An official's failure to respond to grievance letters from inmates, however, "does not establish supervisory liability." Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y.1997).
In his Complaint, Plaintiff alleges in wholly conclusory terms that Defendants Bill, Carver, DeBroize, Nowicki, Maxymillian, and Hogan failed to "adequately train the staff under their supervision and fail[ed] to act within the scope and training of the position and job title they hold." (Dkt. No. 1 at 8.) Plaintiff alleges that he submitted a letter of complaint to Defendant Hogan and wrote to Defendant Nowicki on several occasions expressing concern his complaint had not been responded to, only to be advised that in September, 2011 that an investigation was ongoing. (Id. at 6-7.) Plaintiff does not allege that any of these Defendants personally participated in the alleged assault on August 8, 2011.
Here, even when construed with the utmost special liberality, Plaintiff's Complaint fails to allege facts plausibly suggesting any personal involvement by these Defendants in the alleged used of excessive force on August 8, 2011. As a result, Plaintiff's claims against Defendants Bill, Carver, DeBroize, Nowicki, Maxymillian, and Hogan arising from this incident are sua sponte dismissed pursuant to 28 U.S.C. § 1915(e) (2)(B)(ii) and Fed.R.Civ.P. 12(b)(6). This dismissal is without prejudice to Plaintiff's right to file an Amended Complaint that corrects the above-described pleading defects, and states a viable claim against these Defendants. The Court notes that, at this early stage of the case, Plaintiff has the right without leave of the Court to file an Amended Complaint within the time limits established by Fed.R.Civ.P. 15(a)(1)(B). However, if he seeks to file an Amended Complaint after those time limits, he must file a motion for leave to file an Amended Complaint in accordance with Fed.R.Civ.P. 15(a)(2). In either event, Plaintiff is advised that any Amended Complaint must be a complete pleading that will replace and supersede the original Complaint in its entirety, and that may not incorporate by reference any portion of the original Complaint. See N.D.N.Y. L.R. 7.1(a) (4).
A preliminary injunction is an "extraordinary remedy that should not be granted as a routine matter." Patton v. Dole, 806 F.2d 24, 28 (2d Cir.1986). In most cases, to warrant the issuance of a preliminary injunction, a movant must show (a) irreparable harm and (b) either (1) a likelihood of success on the merits of the claim or (2) sufficiently serious questions going to the merits, and a balance of hardships tipping decidedly in favor of the moving party. D. D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 510 (2d Cir.2006) (quotation omitted). "The purpose of issuing a preliminary injunction is to `preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the . . . merits.'" Candelaria v. Baker, 00-CV-912, 2006 WL 618576, at *3 (W.D.N.Y. Mar.10, 2006) (quoting Devose v. Herrington, 42 F.3d 470, 471 [8th Cir.1994]). Preliminary injunctive relief "`should not be granted unless the movant, by a clear showing, carries the burden of persuasion.' Moore v. Consolidated Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir.2005) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 [1997]). "Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances." Moore, 409 F.3d at 510 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). The same standards govern consideration of an application for a temporary restraining order. Perri v. Bloomberg, 06-CV-0403, 2008 WL 2944642, at *2 (E.D.N.Y. Jul.31, 2008) [citation omitted]. The district court has broad discretion in determining whether to grant a preliminary injunction. Moore, 409 F.3d at 511.
"The Second Circuit has defined `irreparable harm' as `certain and imminent harm for which a monetary award does not adequately compensate,' noting that `only harm shown to be non-compensable in terms of money damages provides the basis for awarding injunctive relief.'" Perri, 2008 WL 2944642, at *2 (citing Wisdom Import Sales Co., L.L. C. v. Labatt Brewing Co., Ltd., 339 F.3d 101, 113-14 [2d Cir.2003]); see also Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.2002) ("To establish irreparable harm, a party seeking preliminary injunctive relief must show that there is a continuing harm which cannot be adequately redressed by final relief on the merits and for which money damages cannot provide adequate compensation.") (internal quotation omitted). Speculative, remote or future injury is not the province of injunctive relief. Los Angeles v. Lyons, 461 U.S. 95, 111-12, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); see also Hooks v. Howard, 07-CV-0724, 2008 WL 2705371, at *2 (N.D.N.Y. Jul.3, 2008) (citation omitted) ("Irreparable harm must be shown to be imminent, not remote or speculative, and the injury must be such that it cannot be fully remedied by monetary damages.").
The Court has reviewed Plaintiff' motion papers thoroughly and considered the claims asserted therein in the light most favorable to Plaintiff, as a pro se litigant. Based upon that review, the Court finds that the harm Plaintiff alleges is purely speculative and, therefore, not "irreparable." Plaintiff' motion is supported only by a recitation of the alleged assault in August, 2011. (Id. at 1-4.) Plaintiff has not supported the claims of ongoing misconduct set forth in his motion papers with any factual allegations, such as the dates on which the misconduct occurred, the nature of the injuries he claims to have suffered, the identities of the persons responsible for the conduct he seeks to enjoin, or the relationship between those actions and the claims asserted in his Complaint. Simply stated, Plaintiff's alleged fear of future wrongdoing by the Defendants is not sufficient to warrant the extraordinary remedy of preliminary injunctive relief.
The Court further notes that the requested injunctive relief cannot be granted unless there is also proof that Plaintiff has a likelihood of succeeding on the merits of his claim, or evidence that establishes sufficiently serious questions going to the merits of his claim and a balance of hardships tipping decidedly toward him. See Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992). Plaintiff has failed to submit proof or evidence that meets this standard. Plaintiff's allegations, standing alone, are not sufficient to entitle him to preliminary injunctive relief. See Ivy Mar Co. v. C.R. Seasons Ltd., 907 F.Supp. 547, 561 (E.D.N.Y.1995) ("[B]are allegations, without more, are insufficient for the issuance of a preliminary injunction."); Hancock v. Essential Resources, Inc., 792 F.Supp. 924, 928 (S.D.N.Y.1992) ("Preliminary injunctive relief cannot rest on mere hypotheticals."). Without evidence to support his claims that he is in danger from the actions of anyone at CNYPC, the Court will not credit Plaintiff's conclusory allegations that he will be retaliated against or harmed in the future.
Plaintiff has failed to establish either of the two requisite elements discussed above. As a result, Plaintiff's request for a temporary restraining order and/or injunctive relief is denied.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir.1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 [2d Cir.1986]). This is not to say that all, or indeed any, of these factors are controlling in a particular case.
Upon due consideration, the Court finds that the relevant factors weigh decidedly against granting Plaintiff's motion at this time. For example, the Court finds as follows: (1) the case does not present novel or complex issues; (2) it appears to the Court as though, to date, Plaintiff has been able to effectively litigate this action; (3) while it is possible that there will be conflicting evidence implicating the need for cross-examination at the time of the trial, as is the case in many actions brought under 42 U.S.C. § 1983 by pro se litigants, "this factor alone is not determinative of a motion for appointment of counsel," Velasquez, 899 F.Supp. at 974; (4) if this case survives any diapositive motions filed by Defendants, it is highly probable that this Court will appoint trial counsel at the final pretrial conference; (5) this Court is unaware of any special reasons why appointment of counsel at this time would be more likely to lead to a just determination of this litigation; and (6) Plaintiff's motion for counsel is not accompanied by documentation that substantiates his efforts to obtain counsel from the public and private sector.
For these reasons, Plaintiff's motion for the appointment of counsel is denied without prejudice. After the Defendants have responded to the allegations in the Complaint which survive sua sponte review, and the parties have undertaken discovery, Plaintiff may file a second motion for the appointment of counsel, at which time the Court may be better able to determine whether such appointment is warranted in this case. Plaintiff is advised that any second motion for appointment of counsel must be accompanied by documentation that substantiates his efforts to obtain counsel from the public and private sector.
Not Reported in F.Supp.2d, 2012 WL 651919
Mr. Richard Austin, Stormville, NY, pro se.
Rory Carleton McCormick, Esq., Corporation Counsel, City of Yonkers, Yonkers, NY, for Defendants.
KENNETH M. KARAS, District Judge.
A district court reviewing a report and recommendation "`may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'" Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007) (quoting 28 U.S.C. § 636(b)(1)(C)). Under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, parties may submit objections to a magistrate judge's report and recommendation. The objections must be "specific" and "written," and must be made "within 10 days after being served with a copy of the recommended disposition." Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1).
Where a party does not submit an objection, "`a district court need only satisfy itself that there is no clear error on the face of the record.'" Donahue, 2007 WL 831816, at *1 (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985)). In addition, a party's failure to object waives that party's right to challenge the report and recommendation on appeal. See Fed. Deposit Ins. Corp. v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir.1995) ("Our rule is that `failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision.' (quoting Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989))).
First, the Court agrees with Magistrate Judge Smith that Defendants' noncompliance with Local Civil Rule 56.2 should be overlooked because any prejudice resulting from noncompliance was cured by the following: (i) Magistrate Judge Smith advised Plaintiff of the nature of summary judgment during a March 23, 2007 conference; and (ii) Magistrate Judge Smith annexed a Rule 56.2 notice to the R & R, a document to which Plaintiff was free to file objections. See Narumanchi v. Foster, No. 02-CV-6553, 2006 WL 2844184, at *2 (E.D.N.Y. Sept. 29, 2006) (refusing to deny defendant's motion for summary judgment based on failure of defendant to comply with Local Civil Rule 56.2 because "[a]ny prejudice to pro se plaintiff's [was] cured" by court's actions).
As expressed in the R & R, though Plaintiff did not file any opposition to Defendants' Motion for Summary Judgment, Defendants were still required to meet their burden of demonstrating to the Court that "no material issue of fact remains for trial." See Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001). The Court finds no clear error in Magistrate Judge Smith's determination that Defendants satisfied this burden.
With respect to Defendants Pappas and Cola, the Court finds that Plaintiff has failed to offer any evidence demonstrating that they were personally involved in the alleged violation of Plaintiff's constitutional rights. The `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.' Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)). For purposes of Section 1983 liability, personal involvement can be established by evidence that:
Id. at 127 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)); accord Hayut v. State Univ. of N. Y, 352 F.3d 733, 753 (2d Cir.2003); Schiller v. City of New York, No. 04-CV-7922, 2008 WL 200021, at *4 (S.D.N.Y. Jan. 23, 2008); Fair v. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *4 (S.D.N.Y. Sept. 28, 2006). Further, a Section 1983 plaintiff must "allege a tangible connection between the acts of the defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986); see also Fair, 2006 WL 2801999, at *4 (citing Bass).
Plaintiff has failed to offer any evidence refuting Defendant Pappas' version of events. In other words, Plaintiff has offered no evidence demonstrating that Defendant Pappas was actually one of the officers who arrested him and allegedly pinned him to the ground while Kelley assaulted him. In fact, during his deposition testimony, Plaintiff admitted that he was not sure whether Defendant Pappas was one of the police officers who arrested him, and that the reason Defendant Pappas was named as a defendant in the present suit was because Plaintiff had seen his name on Plaintiff's felony complaint. (Id., Ex. G, 32-35.) As such, the unrefuted evidence before the Court demonstrates that Defendant Pappas was not one of the officers directly involved in Plaintiff's arrest. Plaintiff therefore has failed to satisfy a prerequisite to liability under Section 1983-namely that Defendant Pappas had personal involvement in the alleged violation of Plaintiff's constitutional rights. See Back, 365 F.3d at 122. Thus, Plaintiff's claim against Defendant Pappas must be dismissed.
Plaintiff alleged that Defendant Cola, Yonkers Police Commissioner at the time of Plaintiff's 2003 arrest, violated Plaintiff's constitutional rights by "authoriz[ing], tolerat[ing], as institutionalized practices, and ratifying] the misconduct [of Defendant Pappas and John Doe Defendants]." (Compl. ¶ 14.) More specifically, Plaintiff charges Defendant Cola with failure to properly: (1) discipline subordinate officers; (2) take adequate precautions in hiring subordinate officers; (3) report criminal acts by police personnel to the Westchester County District Attorney; and (4) establish a system for dealing with complaints about police misconduct. (Id.) Plaintiff does not assert that Defendant Cola directly participated in the violation of his constitutional rights; instead, Plaintiff urges the Court to find Defendant Cola liable under Section 1983 based on his role as supervisor of Defendant Pappas and the John Doe Defendants.
"It is well settled, however, that the doctrine of respondeat superior standing alone does not suffice to impose liability for damages under section 1983 on a defendant acting in a supervisory capacity." See Hayut, 352 F.3d at 753 (citing Monell v. Dept of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, it is necessary to establish a supervisory official's personal involvement in the alleged constitutional violation. See id.; Fair, 2006 WL 2801999, at *4.
In sum, the Court finds that Plaintiff has failed to establish the personal involvement of Defendants Pappas and Cola in the alleged violation of his rights. For reasons set forth more fully in the R & R, the Court also dismisses the Complaint as to the John Doe Defendants because Plaintiff's time limit to amend the Complaint in order to substitute in named defendants has lapsed. Therefore, the Court finds it unnecessary to reach the question of whether Plaintiff has adequately established an underlying violation of his constitutional rights. Finally, having determined that no cognizable federal claims exist, the Court will follow Magistrate Judge Smith's recommendation in declining to exercise jurisdiction over the state law claims.
ORDERED that the Report and Recommendation dated August 2, 2007, is ADOPTED on the grounds set forth in this Order; and it is further
ORDERED that Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 is GRANTED.
The Clerk of Court is respectfully directed to enter judgment in favor of Defendants, to terminate Defendant's Motion (Dkt. No. 28), and to close this case.
Not Reported in F.Supp.2d, 2008 WL 857528
DAVID HARRINGTON, 79 Lamplighter Acres, Fort Edward, New York 12828, Plaintiff, Pro Se.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, The Capitol, OF COUNSEL: KEITH J. STARLIN, ESQ., Assistant Attorney General, Albany, New York 12224, Attorney for Defendants.
DANIEL J. STEWART, United States Magistrate Judge
Defendants filed their Motion for Summary Judgment on December 18, 2015, setting Plaintiff's response deadline for January 19, 2016. Defs.' Mot. Summ. J. As required by the local rules, Defendants advised Plaintiff of the consequences of failing to respond to the Summary Judgment Motion. See id. Plaintiff, however, failed to file a response. See Docket.
Pursuant to this District's Local Rules,
Plaintiff has a history of seizures, dating to childhood, and asserts that he suffers from epilepsy and is autistic. Dkt. No. 57-5, Keith J. Starlin Decl., dated Dec. 18, 2015, Ex. D, Pl.'s Dep., dated Apr. 4, 2014, ("Pl.'s Dep.") at pp. 10-12 & 86. Plaintiff has different types of seizures, including both petit mal and grand mal seizures.
At Marcy, Defendant Dr. Vadlamudi was responsible for overseeing Plaintiff's medical care. Dkt. No. 57-9, Krishna Vadlamudi Decl., dated Dec. 17, 2015, at 4; 4. Currently, and during all relevant events of this action, Dr. Vadlamudi is employed by DOCCS as a physician and Facility Health Director at Marcy. Id. at ¶ 1. On December 23, 2011, Plaintiff saw Dr. Vadlamudi for a five-year physical exam. AHR at p. 142. Plaintiff was noted to be "doing OK" and was instructed to continue with Topamax 200mg, twice daily. Id. Plaintiff's seizures were tracked at follow-up appointments and lab work was periodically run to monitor the levels and effects of Topamax. Vadlamudi Decl. at ¶ 8. At appointments on February 8, June 3, and July 29, 2012, it was recorded that Plaintiff's last seizure had occurred in August 2011. AHR at pp. 133, 135, & 138.
At an appointment on June 7, 2012, Dr. Vadlamudi noted that Plaintiff's seizures began at age 13 and he had a history of head trauma and occasional leg spasms. AHR at p. 135. Dr. Vadlamudi also recorded that a CAT scan had been taken of Plaintiff's head on September 10, 2011, and was negative, as were neurological results. Id. Plaintiff asserts that he informed Dr. Vadlamudi at this appointment that his medication was not working and that he was having petit seizures. 2d Am. Compl. at ¶ 10. Plaintiff requested a referral to a neurologist. Id. at ¶ 11. Dr. Vadlamudi denied the request and instructed Plaintiff to continue on Topamax 200mg, twice daily. Id. at III 12-13; AHR at p. 135.
On September 23, 2012, Plaintiff had a grand mal seizure. AHR at p. 232. Plaintiff, who was unconscious and unable to recall the events, claims that he was told that he walked from his bed to the bathroom and then fell striking his back on a toilet. Id.; Pl.'s Dep. at p. 59. Plaintiff was brought to the infirmary on a stretcher. AHR at p. 132. Plaintiff had a red, bruised area and trauma to his right temple, and complained of pain in his back, although the examining nurse noted no redness or swelling. Id. Plaintiff has a history of lower back pain. Id. Marcy staff arranged for Plaintiff to be sent to Faxton-St. Lukes Hospital that evening. Id. at pp. 132 & 240. At St. Lukes, a CAT scan and follow-up x-rays were taken that showed that Plaintiff had suffered an "acute compression fracture" of the T12 and L1 vertebra. Id. at pp. 230 & 236-37. The imaging also showed chronic spondylolisthesis at L5-S1. Id. at p. 232. Dr. Clifford Soults, who completed a neurosurgical consult, indicated that the fracture at T12 was "mild" and the L1 fracture was "slightly more pronounced." Id. at p. 232. Dr. Jamel Arastu, whom Plaintiff also saw for a neurology consultation, believed that this was a "breakthrough" seizure and recommended that Plaintiff's Topamax dosage be increased to 225mg, and possibly 250mg, twice daily. Id. at p. 235. When Plaintiff was discharged on September 26, 2012, it was ordered that he would use a Thoracolumber Sacral Orthosis ("TLSO") back brace "at all times unless completely flat in bed." Id. at p. 230. Plaintiff was also to take pain medication as needed and to have follow-up x-rays. Id. at pp. 230-31. The day before Plaintiff was discharged, September 25, 2012, Marcy staff contacted St. Lukes and were told that Plaintiff did not require surgery, and should have Dilaudid, twice daily, for pain relief and use a back brace. Id. at p. 130.
Upon being discharged from St. Lukes on September 26, Plaintiff was admitted to Mid-State Correctional Facility infirmary, where he was provided with a back brace, was ambulatory, and had his Topamax increased to 225mg, twice daily. Id. at p. 129. Plaintiff did not complain of pain or further seizure activity while at Mid-State, and on September 28, 2012, Plaintiff returned to Marcy. Id. at p. 127. Plaintiff was issued a permit to use a TLSO brace, a cane, and to be assigned to a bottom bunk. Id. at p. 267. In addition to the back brace that he had received at Mid-State, Plaintiff was also provided with a cane and was assigned to a single bed. Pl.'s Dep. at pp. 22 & 26-27. On October 2, 2012, Dr. Zaki, a physician at Marcy, signed a permit for Plaintiff to use a wheelchair, cane, upper body brace, and to be assigned to a lower bunk. AHR at p. 126. Dr. Zaki also prescribed Motrin 600mg, twice daily. Id. at p. 127. Plaintiff received a wheelchair that same day. Pl.'s Dep. at p. 22. Dr. Vadlamudi saw Plaintiff on October 26, 2012, and recorded that Plaintiff was using the back brace and that there was no need for Ultram. AHR at p. 124.
On November 26, 2012, Plaintiff was evaluated for whether he had a continuing need for a wheel chair. Id. at p. 122. Nurse Coppola determined that there was no longer a medical need and issued a permit permitting Plaintiff to use a cane, upper body brace, and to be assigned to a lower bunk. Id. at p. 123. The permit was signed by Defendant Smith, Nurse Administrator at Marcy, who did not independently examine Plaintiff, but reviewed St. Lukes' discharge instructions and spoke to Nurse Coppola about her exam and evaluation of Plaintiff. Dkt. No. 57-7, Sandra Martin Smith Decl., dated Dec. 15, 2015, at ¶ 14. Smith states that part of the healing of a back fracture requires ambulating and strengthening the back muscles and that use of a wheelchair can impede that process. Id. The permit also switched the type of cane Plaintiff was allowed from a wooden cane to a quad cane. AHR at p. 123; Pl.'s Dep. at p. 23.
Plaintiff claims that Smith withdrew his wheelchair permit in retaliation for having filed grievances. 2d Am. Compl. at ¶ 14. Plaintiff claims that he was summoned to Smith's office and "chewed out" about his grievances and told that St. Lukes had never authorized the wheelchair. Pl.'s Dep. at pp. 24-25. Plaintiff asserts that Smith, more or less, told him that she was taking the wheelchair away because he had filed the Grievance, although he is unable to recall exactly what was said. Id. at p. 34. Plaintiff alleges that he had to walk significant distances across the facility to reach the mess hall and HIV awareness classes that he administered. Id. at p. 25; 2d Am. Compl. at ¶¶ 76-77. Plaintiff saw Dr. Vadlamudi on November 27, 2012, and was referred to Dr. Soults for a follow-up on his back injury. AHR at p. 121. On November 29, 2012, Plaintiff was seen for his regular seizure tracking, was noted to be "doing ok," and was directed to continue taking Topamax 250mg, twice daily. Id. At the follow-up with Dr. Soults on December 8, 2012, Dr. Soults referred Plaintiff for further x-rays. Id. at p. 208. The x-rays were taken on January 10, 2013, and showed that Plaintiff's fractures were healing. Id. at p. 169. On December 7, 2012, Plaintiff filed Grievance No. 16961-12, requesting to see a neurologist and be put onto a different medication. Pl.'s CORC Appeals Records at p. 83. The IGRC was deadlocked, but the Superintendent and CORC both denied Plaintiff's appeals. Id. at p. 82.
On December 27, 2012, Plaintiff reported that he was feeling "seizurish," but denied having any seizures. AHR at p. 120. Plaintiff requested that his seizure medication be changed to Tegretol, which is an anticonvulsant. Id.; Vadlamudi Decl. at ¶ 29. Plaintiff also complained of back pain, but his ambulation was observed to be steady using the quad cane. AHR at p. 120. When Plaintiff was seen on January 22, 2013, he walked without difficulty and a steady gait. Id. Plaintiff reported seizure activity but was directed to continue on Topamax 250mg, twice daily. Id. At this time, Plaintiff was taking Ibuprofen 600mg, twice daily for his back pain. Id. On February 14, 2013, Plaintiff again reported petit seizures and requested different medication. Id. at p. 119. Plaintiff also renewed his complaints of back pain at this appointment, and his next appointment, on February 28. Id. at pp. 118-19. Plaintiff claimed that the Ibuprofen was ineffective and requested different medication. Id. at p. 118.
On March 26, 2013, Plaintiff filed a fourth Grievance, No. 17145-13, requesting to see a back specialist and have an MRI. Pl.'s CORC Appeals Records at p. 97. The IGRC was deadlocked, but the Superintendent and CORC both denied Plaintiff's appeals. Id. at pp. 95-96.
On May 9, 2013, Plaintiff was seen at the Marcy infirmary and was observed to ambulate with a cane with a slow and steady gait. AHR at p. 115. Lab work continued to be conducted, monitoring the levels and effects of Topamax. Defs.' SMF at ¶ 129. On May 23, 2013, Plaintiff visited the infirmary stating that he had a seizure two weeks earlier. Id. at p. 113. Plaintiff also reported that he had stopped taking Tegretol two weeks earlier because it had caused a rash, although the nurse did not observe a rash. Id. at p. 113. Plaintiff complained of back pain and requested different pain medication because the Ibuprofen was ineffective. Id.
Plaintiff commenced this action on July, 8, 2013. See Dkt. No. 1.
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [] affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the nonmovant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Defendants seek summary judgment on the following grounds: (1) Defendants are entitled to judgment as a matter of law on Plaintiff's claims; (2) Plaintiff failed to exhaust administrative remedies on his First Amendment and ADA and Rehabilitation Act claims; (3) Defendants are entitled to qualified immunity; and (4) Plaintiff's ADA and Rehabilitation Act claims are barred by sovereign immunity. Dkt. No. 57-13, Defs.' Mem. of Law.
Plaintiff asserts an Eighth Amendment deliberate medical indifference claim against Defendant Dr. Vadlamudi based on the treatment for Plaintiff's (1) seizure condition and (2) back injury. 2d Am. Compl.
To state an Eighth Amendment claim for denial of adequate medical care, a prisoner must demonstrate that prison officials acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "[T]he plaintiff must allege conduct that is `repugnant to the conscience of mankind' or `incompatible with the evolving standards of decency that mark the progress of a maturing society.' Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir. 1992) (quoting Estelle v. Gamble, 429 U.S. at 102, 105-06). To state a claim for denial of medical care, a prisoner must demonstrate (1) a serious medical condition and (2) deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Hathaway v. Coughlin ("Hathaway I"), 37 F.3d 63, 66 (2d Cir. 1994).
The first prong is an objective standard and considers whether the medical condition is "sufficiently serious." Farmer v. Brennan, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). A court must consider two inquiries in determining whether a deprivation of care is sufficiently serious. Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). First, the court must determine "whether the prisoner was actually deprived of adequate medical care." Id. Medical care is adequate where the care provided is a "reasonable" response to the inmate's medical condition. Id. The second inquiry is "whether the inadequacy in medical care is sufficiently serious." Id. at 280. In cases where there is a failure to provide any treatment, the court examines whether the inmate's medical condition is sufficiently serious. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). The Second Circuit has stated that a medical need is serious if it presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citation omitted). Among the relevant factors to consider are "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). In cases where medical treatment is given, but is inadequate, "the seriousness inquiry is narrower." Salahuddin v. Goord, 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry `focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.'" (quoting Smith v. Carpenter, 316 F.3d at 185).
The specific grounds for Plaintiff's claim based on his seizure condition are that Dr. Vadlamudi refused to refer Plaintiff to a neurologist when Plaintiff reported seizure activity in June through August 2012, which resulted in Plaintiff suffering a grand mal seizure in September 2012. 2d Am. Compl. at ¶ 73. Plaintiff claims that his seizure activity in June through August indicated that his condition was not controlled by his medication and that a neurologist would have changed his medication. Id. Plaintiff also alleges that a neurologist could have implemented other courses of treatment to prevent his petit seizures from developing into a grand mal seizure. Id. For example, Plaintiff claims that a timely administered shot of Ativan may prevent a grand mal seizure as it develops. Pl.'s Dep. at p. 62.
From his arrival at Marcy in November 2011, Plaintiff received on-going treatment for his seizure condition. Plaintiff's seizure condition had been treated with Topamax since 2009, and Plaintiff continued to take Topamax 200mg, twice daily at Marcy. AHR at p. 236. Plaintiff's last seizure, before he arrived at Marcy, occurred on August 11, 2011. Id at p. 138. Plaintiff was regularly seen by Dr. Vadlamudi and other Marcy staff for monitoring of his seizure condition. Id. at pp. 110-43. Plaintiff also had regular lab work done to monitor the levels and effects of Topamax. Vadlamudi Decl. at 118.
Thus, this is not a case where Plaintiff was wholly denied medical treatment, but rather one where Plaintiff was receiving an on-going course of treatment and was denied a requested change in treatment. The Court's objective inquiry therefore focuses on whether the treatment Plaintiff was denied a referral to a neurologist and a change of medication was "sufficiently serious." Salahuddin v. Goord, 467 F.3d at 279; Smith v. Carpenter, 316 F.3d at 185 ("[I]t's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes."). "[T]he severity of the alleged denial of medical care should be analyzed with regard to all relevant facts and circumstances." Smith v. Carpenter, 316 F.3d at 187. "[I]n most cases, the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Id.
Construing the evidence in the light most favorable to Plaintiff, the Court finds that the refusal to refer Plaintiff to a neurologist created a sufficiently serious risk of harm. A seizure condition is a serious medical condition and a failure to respond to an inmate's complaints regarding the possible onset of a seizure may constitute a sufficiently serious deprivation of medical care. See Youngblood v. Artus, 2011 WL 6337774, at *8 (N.D.N.Y. Dec. 19, 2011); see also Boomer v. Lanigan, 2002 WL 31413804, at *7 (S.D.N.Y. Oct. 25, 2002) ("Ignoring requests for medical care made by a prisoner known to be an epileptic may constitute deliberate indifference to serious medical needs, particularly when it is undisputed that the inmate suffered a seizure after those requests."). Here, Plaintiff claims that the minor seizure activity he experienced in July through August 2012 indicated that his condition was not controlled by his medication and that he was at risk of suffering a grand mal seizure. Pl.'s Dep. at pp. 73-74. Plaintiff informed Dr. Vadlamudi, but his request to see a neurologist was denied. Id. at pp. 58 & 74. Plaintiff then suffered a grand mal seizure in September 2012, which caused him to fracture his back. Plaintiff's doctors found this incident a significant episode in Plaintiff's condition. Dr. Arastu, whom Plaintiff saw at St. Lukes, opined that "this was clearly a breakthrough seizure." AHR at p. 230. Plaintiff's Topamax levels were increased following this seizure. Vadlamudi Decl. at ¶ 17. Based on the record, a reasonable fact— finder could find that the failure to respond to Plaintiff's complaints that his seizure condition was not well-controlled exposed Plaintiff to a significant risk of serious harm.
As stated above, Plaintiff received an on-going course of treatment for his seizure condition at Marcy. Plaintiff continued on the medication with which his seizures had been treated since 2009 and the effects and level of that medication were monitored by regular lab work. AHR at p. 236; Vadlamudi Decl. at ¶ 8. Plaintiff was also seen for regular follow-ups at the infirmary to track his seizures. See AHR at pp. 121-22, 129, 133, 135, & 138. At appointments in June, July, and August 2012, Plaintiff complained of minor seizures and requested a referral to a neurologist. Id. at pp. 133 & 135. However, Dr. Vadlamudi determined that a referral to a neurologist was not then indicated and that Plaintiff's seizures were controlled on Topamax 200mg, twice daily. Vadlamudi Decl. at ¶ 11. On August 3, Dr. Vadlamudi noted that while Plaintiff had a series of "minor attacks," he was then "doing ok" and the seizures were stress related. AHR at p. 133. At the time of these appointments, Plaintiff's last previous seizure had been August 2011. Id. at p. 135. Plaintiff had also had a CAT scan on September 10, 2011, which was negative. Id.
Plaintiff's claim against Dr. Vadlamudi evidences disagreement with his medical judgment, which does not amount to deliberate indifference. Dr. Vadlamudi determined that referral to a neurologist was not required because any seizure activity Plaintiff was then experiencing was minor and stress related, and Plaintiff's condition was controlled on Topamax. AHR at p. 135. This was a medical judgment and Plaintiff's claim is, in essence, that that judgment was incorrect. "Disagreements over medications, diagnostic techniques, forms of treatment, the need of specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment." Wright v. Genovese, 694 F.Supp.2d 137, 155 (N.D.N.Y. 2010) (citing Sonds v. St. Baranabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001)). Therefore, Plaintiff's disagreement with Dr. Vadlamudi's judgment that his condition was controlled is insufficient to establish deliberate indifference.
Furthermore, even crediting Plaintiff's assertion that referral to a neurologist and a change in medication might have prevented the grand mal seizure, Plaintiff has not produced any evidence to suggest anything more than negligence. Dr. Vadlamudi's determination that Topamax continued to be indicated for Plaintiff's condition in spite of minor seizure activity in June, July, and August 2012 was consistent with previous and subsequent treatment of Plaintiff's condition. Plaintiff has had seizure activity on other medications and while Plaintiff's medication has been adjusted or changed on several occasions, Pl.'s Dep. at pp. 51-52, the failure to do so at this time does not evidence a "conscious disregard of a substantial risk of serious harm." Chance v. Armstrong, 143 F.3d at 702.
Accordingly, the Court recommends that Defendants be GRANTED summary judgment on Plaintiff's deliberate indifference claim based on his seizure condition.
Here, as to the objective prong, Plaintiff has not shown that an issue of fact exists regarding a deprivation of adequate medical care with respect to his back injury. Immediately following the injury, Plaintiff was sent to St. Lukes where a CAT scan and x-rays were taken. AHR at pp. 230-37. At Marcy, Plaintiff was frequently seen in the infirmary and by Dr. Vadlamudi regarding the injury and progress notes were kept on Plaintiff's ambulation. Id. at pp. 115-22, 124, & 127. Throughout his recovery, Plaintiff used a back brace and cane, and also used a wheelchair, until it was no longer necessary. Id. at pp. 123, 126, & 267. For pain relief, Plaintiff was prescribed Ibuprofen 600mg, twice daily. Id. at pp. 113-20 & 124. Plaintiff was referred twice to Dr. Soults, a neurosurgical specialist whom Plaintiff saw at St. Lukes. Id. at pp. 202-03 & 208-09. In January 2013, another set of x-rays were taken that showed that Plaintiff's fractures were healing. Id. at p. 169. In May 2013, Plaintiff began attending physical therapy. Id. at pp. 190-97.
Plaintiff's claims that Dr. Vadlamudi ignored his specialist's recommendations are unsupported by the record. Surgery was not recommended upon Plaintiff's discharge from St. Lukes, nor did Dr. Soults in subsequent follow-ups indicate that surgery was appropriate. See id. at pp. 130, 202-03, & 208-09. The records also do not indicate that Dr. Soults ordered an MRI. See id. at pp. 202-03 & 208-09. As to Plaintiff's claim that he was denied adequate pain medication, Plaintiff was provided with Ibuprofen 600mg, twice daily, which Dr. Vadlamudi determined was proper for Plaintiff's injury. Vadlamudi Decl. at ¶¶ 29 & 33. While Plaintiff claims that Ibuprofen was ineffective at treating his pain, he also states that many pain medications cause him to have seizures and he has to be "very careful" what he takes. Pl.'s Dep. at p. 80.
Moreover, even if Dr. Vadlamudi's prescription of a weaker pain medication constituted a denial of adequate care, it is insufficient to establish deliberate indifference at the subjective prong. "Differences in opinion between a doctor and an inmate patient as to the appropriate pain medication clearly do not support a claim that the doctor was deliberately indifferent to the inmate's serious medical needs." Wright v. Genovese, 694 F. Supp. 2d at 160; see also Vail v. Lashway, 2014 WL 4626490, at *14 (N.D.N.Y. Sept. 15, 2014) ("[T]he decision to choose one form of pain medication over another, even if the medication causes side effects, is not indicative of deliberate indifference."); Scott v. Perio, 2005 WL 711884, at *6 (W.D.N.Y. Mar. 25, 2005) ("It is not for the Court to second guess plaintiff's medical providers as to what medicine or what dosage should have been prescribed to treat the plaintiff."). Therefore, Dr. Vadlamudi's decision to prescribe Plaintiff Ibuprofen rather than a stronger pain medication does not evidence deliberate indifference.
Accordingly, the Court recommends that summary judgment be GRANTED with respect to Plaintiff's deliberate indifference claims based on his back injury.
The Prison Litigation Reform Act ("PLRA") provides, in pertinent part, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake, ___ S. Ct. ___, 2016 WL 3128839, at *5 (2106) (mandatory language of § 1997e(a) forecloses judicial discretion to craft exceptions to the requirement). The defendant bears the burden of proving that the administrative remedies available to Plaintiff were not exhausted prior to the initiation of this civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).
In New York State, the administrative remedies consist of a three-step review process. First, a grievance is submitted to the Inmate Grievance Resolution Committee ("IGRC"), a committee comprised of both inmates and facility employees. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(b). The IGRC reviews and investigates the formal complaints and then issues a written determination. Id. Second, upon appeal of the IGRC decision, the superintendent of the facility reviews the IGRC's determination and issues a decision. Id. at § 701.5(c). Finally, upon appeal of the superintendent's decision, the Cental Office Review Committee ("CORC") makes the final administrative determination. Id. at § 701.5(d). Only upon exhaustion of these three levels of review may a prisoner seek relief in federal court. Bridgeforth v. Bartlett, 686 F.Supp.2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v. Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516.
In this case, there is no record at Marcy of a grievance filed by Plaintiff relative to retaliation by Smith or disability discrimination by Marcy. Dkt. No. 57-10, Erin Pfendler Decl., dated Dec. 17, 2015, at ¶¶ 7-8. Furthermore, Plaintiff never appealed any grievance to CORC regarding such claims. Dkt. No. 57-11, Jeffery Hale Decl., dated Oct. 8, 2015, at ¶ 12. The Court has reviewed the four grievances
In this case, there is no evidence that administrative remedies were unavailable to Plaintiff. It is undisputed that there was a grievance program in place at Marcy, of which all inmates were informed at orientation. Pfendler Decl. at ¶ 2. Plaintiff does not claim that he was unaware of Marcy's grievance procedures, and filed at least five grievances while he was at the facility. See Hale Decl., Ex. A. Plaintiff alleges an incident where he was "chewed out" and retaliated against by Defendant Smith for filing grievances. Pl.'s Dep. at pp. 24 & 33-35. Intimidation and threats may render administrative remedies unavailable where they would deter a prisoner of "ordinary fitness" from filing a grievance. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). However, Plaintiff does not allege that Smith threatened him with retaliation if he filed further grievances or that this incident deterred him from continuing to file grievances. Indeed, Plaintiff filed at least three grievances after the alleged retaliation incident. See Hale Decl., Ex. A. Furthermore, Plaintiff's allegation that Smith retaliated against him is unsupported and conclusory. See Pl.'s Dep. at pp. 33-35. Thus, Plaintiff has not shown an issue of fact that Smith's statements inhibited him from filing grievances such that administrative remedies were unavailable to him. See Snyder v. Whittier, 428 Fed.Appx. 89, 92 (2d Cir. 2011).
Accordingly, the Court recommends that summary judgment be GRANTED as to Plaintiff's retaliation and disability discrimination claims due to his failure to exhaust administrative remedies.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Date: August 9, 2016.
Not Reported in F.Supp.3d, 2016 WL 4570441
Donald Mack Bennett, White Plains, NY, for Plaintiff, pro se.
Hon. Eliot Spitzer, Attorney General for the State of New York, Nelson Sheingold, Assistant Attorney General, of counsel, Albany, NY, for Respondent Department of Law.
FREDERICK J. SCULLIN, JR., S.D.J.
GEORGE H. LOWE, United States Magistrate Judge.
This matter has been referred to me for Report and Recommendation by the Honorable Frederick J. Scullin, Senior U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). Generally, in this pro se civil rights complaint brought under 42 U.S.C. § 1983, Donald Mack Bennett ("Plaintiff"), formerly an inmate at the Riverview Correctional Facility ("Riverview C.F."), alleges that the Administrative Director of the Medical Department at Riverview C.F., Thomas B. Hunter ("Defendant"), violated Plaintiff's rights under the First, Eighth and Fourteenth Amendments to the United States Constitution when, between July and December of 2000, he was deliberately indifferent to Plaintiff's serious medical needs (which included a heart condition known as "atrial fibrillation," a seizure disorder, a disc problem in his back known as "spondylolisthesis," and a pinched nerve in his right wrist). (Dkt. No. 29 [Plf.'s Second Am. Compl.].)
Currently before the Court is Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 59.) Generally, Defendant's motion raises three issues: (1) whether Plaintiff has failed to establish the elements for a claim of deliberate indifference to a serious medical need; (2) whether Plaintiff has failed to establish any personal involvement by Defendant in the alleged constitutional deprivations, and (3) whether Defendant is protected by qualified immunity. (Dkt. No. 59 [Def.'s Mem. of Law].) For the reasons discussed below, I answer each of these questions in the affirmative. As a result, I recommend that Defendant's motion be granted.
Under Fed.R.Civ.P. 56(c), summary judgment is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material
"If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e) (emphasis added). "The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). "Such a motion may properly be granted only if the facts as to which there is no genuine dispute `show that . . . the moving party is entitled to a judgment as a matter of law.' Champion, 76 F.3d at 486 (quoting Fed.R.Civ.P. 56[c]).
Where a plaintiff has failed to respond to a defendant's Rule 7.1 Statement of Material Fact, the facts as set forth in that Rule 7.1 Statement are accepted as true to the extent those facts are supported by the record.
However, to be sufficient to create a factual issue, an affidavit (or verified complaint) must, among other things, be based "on personal knowledge."
Finally, even where an affidavit (or verified complaint) is based on personal knowledge and is nonconclusory, it may be insufficient to create a factual issue where it is (1) "largely unsubstantiated by any other direct evidence" and (2) "so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint."
Specifically, because Plaintiff fails to include in his opposition papers a Rule 7.1 Response which specifically controverts Defendant's factual assertions in matching numbered paragraphs with specific citations to the record, Defendant's factual assertions in his Rule 7.1 Statement are deemed admitted by Plaintiff.
Defendant recites the correct legal standard that governs Plaintiff's claim of inadequate medical care under the Eighth Amendment. (Dkt. No. 59, Mem. of Law at 9-12.) Generally, to prevail on such a claim, Plaintiff must show two things: (1) that Plaintiff had a sufficiently serious medical need; and (2) that Defendant was deliberately indifferent to that serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998).
Defendant acknowledges, and the record establishes, that, during some or all of the time in question, Plaintiff had a heart condition (atrial fibrillation),
Setting aside the fact that I can find no reference to any foot callouses in Plaintiff's Amended Complaint,
As a result, for purposes of summary judgment, I find that Plaintiff has established a serious medical need only with regard to his heart condition, seizure disorder, and back problem (but not with regard to his wrist pain and calloused feet). However, I note that, even if I were to consider all of Plaintiff's health problems together as constituting one "serious medical need" over the entire relevant time period, it would not change my ultimate recommendation in this report, for the reasons stated below
Based on this evidence, Defendant argues that (1) Plaintiff was receiving more than adequate care for his various health problems at Riverview C.F., and (2) even if he was not receiving adequate care for some of those health problems, absolutely no evidence exists suggesting that Defendant was deliberately indifferent to those health problems (whether they constituted "serious medical needs" or not).
I agree with Defendant, for the reasons stated in his Memorandum of Law. Simply stated, there is no evidence that Defendant's state of mind was equivalent to the sort of criminal recklessness necessary for liability under the Eighth Amendment.
As a result, I find that Plaintiff has not established that Defendant acted with deliberate indifference to any of Plaintiff's various health conditions, including his heart condition, seizure disorder, and back problem.
A defendant's personal involvement in the alleged unlawful conduct is a prerequisite for a finding of liability in an action under 42 U.S.C. § 1983. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citation omitted); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087 (1978). To prevail on a cause of action under 42 U.S.C. § 1983 against an individual, a plaintiff must show some tangible connection between the alleged unlawful conduct and the defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). If the defendant is a supervisory official a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985).
Rather, for a supervisory official to be personally involved in unlawful conduct, he or she must have (1) directly participated in that violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986).
Rather, liberally construed, Plaintiff's sole theories of personal involvement appear to be that (1) Defendant knew of various of Plaintiff's complaints about Nurse Holden before and during the misconduct, but negligently failed to act on those complaints, and (2) Defendant failed to remedy Nurse Holden's misconduct (and indeed sought to cover it up) after learning of it through Plaintiff's complaints. (Dkt. No. 29, ¶¶ VII, VIII, IX.) The problem with these theories of personal involvement is that they are completely devoid of any evidentiary support in the record. At most, the record shows that Defendant supervised Nurse Holden (a part-time employee), and dutifully investigated Plaintiff's sole complaint about Nurse Holden, which was contained in Grievance No. RV-5422-01 (filed on January 2, 2001). In pertinent part, Plaintiff's grievance alleged that (1) on December 25, 2000, Nurse Holden gave Plaintiff the wrong liquid in which to soak his feet, making his calloused feet uncomfortable, and (2) on August 27, 2000, Nurse Holden failed to give Plaintiff a new pill after dropping that pill on the floor, and improperly took his pulse.
I can find no evidence in the record that Plaintiff made any complaints to Defendant about Nurse Holden before August 27, 2000, or even before December 25, 2000 (such that Defendant could possibly be said to have been "grossly negligent" or "deliberately indifferent" for failing to act on those complaints before the dates of the alleged misconduct in question). Indeed, he had arrived at Riverview C.F. only in July of 2000. Nor do I have any reason to believe that, if there existed any such complaints, they would have been sufficient to put Defendant on notice of the potential for misconduct by Nurse Holden, given Plaintiff's prolix and confusing use of language.
The crux of Plaintiff's theory of personal involvement appears to be that Defendant failed to remedy Nurse Holden's misconduct during the "foot soak," dropped pill, and pulse reading. Setting aside the issue of whether any discipline of Nurse Holden would even be warranted for such "misconduct," the fact remains that Plaintiff wanted a remedy other than discipline of Nurse Holden.
As a result, I find that, even if Plaintiff had established the elements of a claim for deliberate indifference to a serious medical need, Plaintiff has not established that Defendant was personally involved in any constitutional deprivation.
Finally, Defendant argues that he is entitled to dismissal because he is protected by qualified immunity. Regardless of the merits of this defense, I have already concluded that Plaintiff's Amended Complaint should be dismissed on two alternative grounds (failure to establish the elements of an Eighth Amendment claim, and failure to establish the personal involvement of Defendant in any constitutional deprivation). As I result, I need not address this issue. However, in the interest of thoroughness, I will do so briefly.
Defendant recites the correct legal standard with regard to the qualified immunity defense. (Dkt. No. 59, Mem. of Law at 14-16.) Generally, Defendant has established facts showing that (1) his investigation of Plaintiff's January 2, 2001, grievance was reasonably conducted, and (2) as a result of that investigation, he found no evidence that Nurse Holden had been deliberately indifferent to any of Plaintiff's medical needs (whether those needs were serious or not). Under the circumstances, I can find no violation of a "clearly established" right, much less a right of which a reasonable person would have known.
As a result, I find that Defendant is entitled to qualified immunity.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Not Reported in F.Supp.2d, 2006 WL 1174309
FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro se, 89-A-1042, Upstate Correctional Facility, P.O. Box 2001, Malone, NY 12953.
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, OF COUNSEL: DAVID J. SLEIGHT, ESQ., Assistant Attorney General, Albany, NY 12224.
David E. Peebles, U.S. Magistrate Judge
Currently pending before the court are two motions brought by the three defendants who remain in the action, following earlier court rulings, seeking the entry of summary judgment dismissing plaintiff's claims against them. In their motions, those defendants argue that the record is devoid of evidence from which a reasonable factfinder could conclude that any of them denied plaintiff adequate medical care or otherwise violated his constitutional rights. For the reasons set forth below, I recommend that the pending motions be granted.
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 4. At the times relevant to his claims in this action, he was confined in the Upstate Correctional Facility ("Upstate"), located in Malone, New York.
Plaintiff suffers from several diagnosed medical ailments, including a sinus condition caused by a broken nose, dry skin, allergies, and cardio obstructive pulmonary disease ("COPD"). Dkt. No. 22-5 at 19-20; see also Dkt. No. 4 at 2. Medical personnel at Upstate have provided plaintiff with regular medical treatment for these conditions, including by providing ointments for his skin condition, a Proventil inhaler for his COPD, gas relief medications, and other medications as needed. Dkt. No. 21-1 at 5, 30, 50, 51, 70. Plaintiff alleges that defendants Richard Adams and Patrick Johnston, a medical doctor and physician's assistant employed at the facility, respectively, improperly directed prison medical personnel to stop providing these medications in April and June 2010, and continued to deny him medication through August 2012.
Pursuant to the policy at Upstate, certain medications may not be prescribed without periodic evaluation as to the medical necessity for continuing the medication. Dkt. No. 21 at 3; Dkt. No. 48-3 at 3. Accordingly, an inmate receiving these medications is regularly required to submit to a medical examination by a doctor or nurse practitioner in order to determine the continued need for medication. Id. If an inmate refuses to cooperate, his medications are discontinued. Id.
During the course of a deposition conducted in connection with a lawsuit earlier filed by Johnson, he acknowledged his awareness of the established procedures for receiving medication. Dkt. No. 22-5 at 46-47, 64-67. He further admitted to refusing to provide his name and DIN "every day," stating that he "would rather go through the pain" than give prison medical personnel his name. Id. at 46, 57-58. Plaintiff's medical records confirm this, demonstrating that, between February, 2011 and August, 2012, Johnson refused to comply with nurses' requests for his name and DIN in 258 instances.
Plaintiff contends that he is "exempt" from the requirement that he state his name and DIN because he has been the only resident of his cell since he came to Upstate, and the medical personnel know who he is. Dkt. No. 22-5 at 46-47, 58, 62-63. He also argues that, because he has been diagnosed with COPD, a chronic condition that he alleges will not change, he should not be required to submit to an examination to verify the continuing need for any medications because "the medication speaks for itself." Id. at 37.
Plaintiff commenced this action on or about January 28, 2013 in New York State Supreme Court, Franklin County. Dkt. No. 4 at 5. Plaintiff's complaint named as defendants the following seven Upstate employees or former employees: (1) Dr. Richard Adams, a physician; (2) Patrick Johnston, a physician's assistant; (3) David Rock, the superintendent of Upstate; (4) Nancy Smith, a nurse administrator; (5) George Waterson, a registered nurse; (6) Lester Wright, the DOCCS Deputy Commissioner and Chief Medical Officer; and (7) Heath Baker, a registered nurse. Id. at 1.
Following the close of discovery, defendants Adams, Johnston, Baker, Wright, Waterson, and Smith filed a motion for summary judgment dismissing plaintiff's claims, arguing that the record evidence does not give rise to a genuine dispute of material fact regarding whether (1) defendants Adams and Johnston were deliberately indifferent to plaintiff's serious medical needs; (2) defendants Waterson, Baker, and Smith retaliated against plaintiff; or (3) defendants Wright and Smith were personally involved in the constitutional violations alleged.
Defendants Adams, Johnston and Rock have now moved for summary judgment dismissing plaintiff's remaining claims. Dkt. Nos. 43, 48. Those motions, which are now fully briefed, have been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
In his third cause of action, plaintiff alleges that as the superintendent at Upstate, defendant Rock bears responsibility for failing to remediate the denial by medical personnel at the facility of proper medical treatment for Johnson. Dkt. No. 4 at 3-4. In his motion, defendant Rock seeks dismissal of that claim against him based upon lack of personal involvement. Dkt. No. 43. Plaintiff responds by arguing that, by receiving plaintiff's grievances that placed him on notice of the claimed medical indifference and not taking action to address his complaints, defendant Rock is subject to supervisory liability for the medical staffs deliberate indifference to Johnson's serious medical needs. Dkt. No. 47 at 5.
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1997)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). It is well established that a supervisor cannot be liable under section 1983 solely by virtue of being a supervisor, "and [liability] cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 554 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
In his complaint, plaintiff alleges that despite being notified of the failure of medical personnel at Upstate to provide him with adequate medical treatment through the filing of grievances, defendant Rock failed to intervene, and specifically permitted the continued use of the medical protocol that required plaintiff to recite his name and DIN before receiving medical treatment. Dkt. No. 4 at 4. Plaintiff makes no attempt to provide evidentiary support for his claim that defendant Rock is liable for failing to rectify the alleged harm arising from plaintiff not receiving his medication based on his refusal to follow protocol. Instead, he relies solely on unsupported statements that because he filed grievances while defendant Rock was the superintendent at Upstate, defendant Rock knew or should have known that plaintiff's constitutional rights were being violated, and defendant Rock's failure to act effectively ratified the continued use of the medical protocols in place at the facility.
In his complaint, plaintiff asserts a deliberate medical indifference claim against defendants Adams and Johnston arising from allegations that they discontinued his ointment, inhaler, soap, and stomach medication during the period of February 2011 to August 2012.
The Eighth Amendment prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society [,] or which involve the unnecessary and wanton infliction of pain [.]" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quotation marks and citations omitted). While the Eighth Amendment "does not mandate comfortable prisons, . . . neither does it permit inhumane ones[.]" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation marks and citation omitted). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] [i]n less serious cases, . . . may result in pain and suffering which no one suggests would serve any penological purpose." Id. (quotation marks and citations omitted).
A claim alleging that prison officials have violated an inmate's Eighth Amendment rights through their deliberate indifference to his serious medical needs must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F.Supp.2d 344, 356 (E.D.N.Y. 2010). To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) ("[T]he objective test asks whether the inadequacy in medical care is sufficiently serious."). Factors informing this inquiry include "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted). Determining whether a deprivation is sufficiently serious requires a court to examine the seriousness of the deprivation, and whether the deprivation represents "a condition of urgency, one that may produce death, degeneration, or extreme pain[.]" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted). Importantly, it is "the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
Turning first to the objective element of plaintiff's medical indifference claim, plaintiff alleges that he suffers from dry skin, sinus issues, and COPD. Dkt. No. 4 at 2. Plaintiff contends that these conditions constitute serious medical needs, and require medication for treatment. Dkt. No. 53-2 at 4-5; Dkt. No. 22-5 at 29; Dkt. No. 28 at 6. Plaintiff further alleges that defendants Adams and Johnston were deliberately indifferent to those serious medical needs between February 2011 and August 2012 because they abided by the terms of the prison policy that requires each inmate seeking medication to first provide his name and DIN to the administering nurse, and, in doing so, wrongfully caused him to be denied medical treatment. Dkt. No. 4 at 2-4.
Notwithstanding these contentions, plaintiff's medical records between February 2011 and August 2012 clearly reflect that plaintiff was not in urgent need of any of the medications he contends were discontinued by defendants Adams and Johnston in light of the fact that several days would elapse between plaintiff being provided medications due to his own conduct. See, e.g., Dkt. No. 48-3 at 2; Dkt. Nos. 48-4 and 49-5 (reflecting that, on 258 occasions between February 2011 and August 2012, plaintiff refused to provide medical staff his name and DIN and was not provided any medical treatment on those dates, and that plaintiff was provided treatment on 294 occasions during this same time period). It is clear from the record that any delay in plaintiff's receipt of medication was based upon his refusal to abide by reasonable and medically appropriate safeguards and protocols at Upstate governing sick call and receipt of medication. Any claim of urgency is belied by the simple fact that to receive the prescribed medication, plaintiff had only to state his name and identification number. Under these circumstances, plaintiff cannot now be heard to complain of deliberate indifference to serious medical needs.
In sum, the record evidence in this case fails to support a finding that plaintiff's claims against defendant Adams can meet either the objective or the subjective prong of the governing test. Objectively, plaintiff's evidence fails to establish that the deprivations complained of were sufficiently serious, involving conditions significantly affecting plaintiff's daily activities and causing chronic and substantial pain. Plaintiff also has failed to adduce evidence showing that he can meet the subjective element, in that the record now before the court fails to demonstrate that defendant Adams was actually aware of a substantial risk that, absent proper treatment, serious harm would occur to the plaintiff, and that he failed to act despite that knowledge.
For these reasons, I find that no reasonable factfinder could conclude, based on the evidence in the record, that defendant Adams and Johnston were deliberately indifferent to plaintiff's serious medical needs between February 2011 and August 2012, and therefore recommend that defendants' motion for summary judgment seeking dismissal of plaintiff's medical indifference claim against defendants Adams and Johnston be granted.
The claims remaining in this action include a cause of action against defendant Rock, the superintendent at Upstate, based exclusively upon his failure to intervene and rescind the policies implemented by medical staff at Upstate requiring inmates to follow certain protocols in order to obtain treatment and medication. The only evidence of defendant Rock's involvement comes in the form of plaintiff's speculation that because grievances filed by him addressing those concerns were presumably forwarded to defendant Rock he must have been aware of the deliberate indifference but failed to act. In light of this fact, and additionally because plaintiff failed to demonstrate that defendants Johnston and Adams were deliberately indifferent to his serious medical needs, I conclude that there is insufficient basis to hold defendant Rock liable in his supervisory capacity. Turning to plaintiff's remaining claims against defendants Patrick Johnston and Richard Adams, I conclude that those claims are subject to dismissal based upon lack of personal involvement, with respect to defendant Johnston, and because no reasonable factfinder could conclude that Adams was deliberately indifferent to plaintiff's serious medical needs.
RECOMMENDED that defendants' motions for summary judgment (Dkt. No. 43; Dkt. No. 48) be GRANTED and that plaintiff's remaining claims, asserted against defendants Adams, Johnston, and Rock, be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
Dated: July 25, 2016.
Not Reported in F.Supp.3d, 2016 WL 6604129
Koerner Silberberg & Weiner, LLP, New York, NY, for Internet Law Library, Inc.
Maryann Peronti, of counsel.
Christian, Smith & Jewell, Houston, TX, for Internet Law Library, Inc.
Gary M. Jewell, James W. Christian, of counsel.
Tate & Associates, Richmond, TX, for Internet Law Library, Inc.
Richard L. Tate, James W. Christian, of counsel.
Dla Piper Rudnick Gray Cary U.S. LLP, New York, NY, for Southridge Capital Management LLC, Cootes Drive LLC, Stephen Hicks, Daniel Pickett, Christy Constabile, David Sims, and Navigator Mangement Ltd.
Perrie M. Weiner, Caryn G. Mazin, Palmina M. Fava, of counsel.
Kramer Levin Naftalis & Frankel LLP, New York, NY, for Citco Group Limited.
Michael J. Dell, of counsel.
Law Offices of Michael S. Rosenblum, Los Angeles, CA, for Southridge Capital Management LLC, Cootes Drive LLC, Stephen Hicks, Daniel Pickett, Christy Constabile, David Sims, and Navigator Management Ltd.
Michael S. Rosenblum, Amy M. Caves, of counsel.
Hanley Conroy Bierstein & Sheridan LLP, New York, NY, for Kirwin Drouet, Jack Thompkins and Hunter M.A. Carr.
Thomas I. Sheridan, III, of counsel.
Morrison & Foerster LLP, New York, NY, for Mark Valentine.
Carl H. Loewenson, Jr., James E. Johnson, Joel C. Haims, of counsel.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione, PC, New York, NY, for Thomson Kernaghan & Co, Ltd., and TK Holdings, Inc.
Debra A. Clifford, of counsel.
CARTER, J.
Over the years the court has dealt with various issues, (see e.g., Internet Law Library Inc. v. South Ridge Capital Mgmt., LLC, 223 F.Supp.2d 474 (S.D.N.Y.2002) (Carter, J) (hereinafter "Internet Law I")) with which familiarity is assumed. Most importantly, the court dismissed the plaintiffs' claims with prejudice in Internet Law Library Inc. v. South Ridge Capital Mgmt LLC, 2003 WL 21537782 (S.D.N.Y.2003) (Carter, J.) (hereinafter Internet Law II).
In the instant matter, defendant Cootes Drive moves for partial summary judgment against INL on its third counterclaim for breach of contract for failure to redeem preferred stock pursuant to a stock purchase agreement. Defendant Cootes Drive also seeks partial summary judgment against INL on its fourth counterclaim for breach of contract for failure to honor a promissory note. The plaintiffs cross move to dismiss defendants' counterclaims pursuant to Rule 37(b)(2)(C), F.R. Civ. P., due to alleged abuses of discovery procedures, and move for the court to reconsider its judgment entered July 8, 2005 dismissing plaintiffs' claims with prejudice. Under separate covers, plaintiffs have twice moved to supplement the record of the aforementioned motions and defendants have moved to strike some of plaintiffs' supporting affidavits. We consolidate the former motions with the latter and resolve them all in this opinion. Because of the nature of the issues raised in plaintiffs' motions, we reach them first.
Plaintiffs' motion for reconsideration brought pursuant to U.S. Dist. Ct. S.D.N.Y. Local Civil Rule 6.3 is based on the court's possible oversight of two matters: (a) the res judiciata effect of its June 8, 2003 decision, specifically whether plaintiffs' affirmative defenses are barred, and (b) because Rule 37(b)(2)(C), Fed. R. Civ. P ("Rule 37") allegedly does not authorize sanctions. The parties have also made a request for the to court clarify these two issues, especially as they pertain to the order entered on July 8, 2003.
Under Rule 37, if a party "fails to obey an order entered under Rule 26(f) . . . the court in which the action is pending may . . . (C) . . . strike [ ] out pleadings or parts thereof . . . or dismiss] ] the action or proceeding or any part thereof, or render judgment by default against the disobedient party." Plaintiffs' attempt to read the rule as only being applicable to parties who fail to participate in discovery is inapposite to the plain meaning of the statute. Moreover, the court has the inherent authority to dismiss a case when a party disobeys any of its orders. See Chambers v. Nasco, Inc., 501 U.S. 32, 45 (1991). Plaintiffs flagrantly disregarded the discovery instructions of this court. As a result the court, acting well within its explicit and implicit authority, dismissed the plaintiffs' complaint. The court did not, however, dismiss the defendants' counterclaims or the plaintiffs' affirmative defenses to those counterclaims.
We confirm that the court was within its authority in dismissing plaintiffs' complaint and that plaintiffs' affirmative defenses still stand. The court did not overlook these subjects. Accordingly, the motion for reconsideration is denied.
While arguing that the court lacked the authority to dismiss their claims pursuant to Rule 37, the plaintiffs have the audacity to request that we now dismiss Cootes Drive's counterclaims pursuant to the same rule and for the same alleged conduct. Without delving into the sophistical reasoning that allows them to entertain these contradictory propositions, it bears repeating that plaintiffs flagrantly defied the court's order. The plaintiffs and not Cootes Drive disrespected the court. If Cootes Drive had done so, or if they ever do, the court would not hesitate to impose sanctions. The motion is denied.
On February 12, 2004 and on April 6, 2004, plaintiffs filed motions to supplement the record. The documents that are the subject of these motions were produced in connection with an action pending in Georgia. The documents themselves are the organizational documents and various agreements between companies affiliated with Cootes Drive. There are also letters and memoranda sent to and from these affiliated companies and the law firm of Dorsey & Whitney LLP, their transactional counsel. Plaintiffs assert that these documents demonstrate that the defendants operated their businesses in a tiered structure in order to limit liability. Even if true, this assertion does not make the documents relevant to Cootes Drive's claims of breach or plaintiffs' motions to dismiss and for reconsideration. Indeed, many of the documents predate the note and agreement by several years. Because plaintiffs have not sufficiently demonstrated the relevance of the documents to the motions that they seek to supplement, plaintiffs' two motions to supplement the record are denied.
The Citco Group Limited and Citco Trustees (Cayman) Limited (the "Citco defendants") move to strike the Affidavit of Richard L. Tate, dated October 20, 2003 (the "Second Tate Affidavit"). The Second Tate Affidavit is submitted as a response to the Citco Defendants' motion for summary judgment. However, to the court's best knowledge or that of the Citco defendants, there never was such a motion. Submission of a reply to a nonexistent motion is clearly inappropriate; furthermore, even if the submission of the affidavit was appropriate, the contents are not. An attorney's affidavit is typically used to present documents to the court and should not be used as counsel's personal vehicle to lobby the court. Universal Film Exchanges, Inc. v. Walter Reade, Inc., 37 F.R.D. 4, 5 (S.D.N.Y.1965) (Levet, J.). In the Second Tate Affidavit, Tate, attorney for the plaintiffs, engages in extensive argumentation and draws numerous conclusions of law. Tate further swears to several matters of which he could have no direct personal knowledge of as an attorney that came upon this matter after the fact. The Second Tate Affidavit is more akin to a memorandum of law than to an attorney's affidavit. The motion to strike the Second Tate Affidavit in its entirety is granted.
In deciding a motion for summary judgment, the court's role is not to determine the truth of the matter but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A party is entitled to summary judgment when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), F.R. Civ. P.
After several months of negotiations, on or about May 11, 2000, Cootes Drive
To prevail on a claim for breach of contract under New York law, a party must show: 1) the existence of an agreement between the parties; 2) adequate performance of the contract; 3) breach of the contract; and 4) damages resulting from the breach.
Plaintiffs contend that they relied upon a number of false statements made by the defendants outside of the agreement. Before deciding the underlying question of the merits of the fraudulent inducement claims, the court must first determine whether plaintiffs will be allowed to offer evidence pertaining to their claim. Under New York law, if a contract contains a merger clause, parol evidence is not admissible to "vary, or permit escape from the terms of an integrated contract."
The agreement between the parties contains both a merger clause
The court held previously that plaintiffs have successfully pleaded claims to meet the elements of an action for breach of contract. Internet Law I, 223 F. Supp at 490. The court now searches the record to see if there is sufficient evidence to prove these allegations. What is in dispute is whether Cootes Drive's breach, namely, selling shares short in violation of the agreement, was material.
The one piece of evidence that plaintiffs produced which tends to mitigate in their favor are the trading records showing that Thomas Kernaghan, an agent and broker for Cootes Drive, was shorting INL stock. However, these trades begin well before the agreement and plaintiffs do not show that the trades were done at the behest of Cootes Drive. Plaintiffs have requested additional discovery to flesh out these particular weaknesses in their defense of breach. Plaintiffs have already been given ample time for discovery. In light of this and plaintiffs' conduct during such discovery, no additional discovery will be granted.
INL's defense of breach is hereby struck as it pertains to the third counterclaim. Plaintiffs have also included in their pleadings an everything-but-the-kitchen-sink list of affirmative defenses that they do not even attempt to support.
Cootes Drive's fourth counterclaim for breach of contract is for failure to repay a promissory note. In New York, proof of a promissory note, demand and nonpayment establishes a prima facie case for recovery.
Plaintiffs offer no theories as to how Cootes Drive has breached the conditions of the note. Plaintiffs merely allege that after entering the agreement, their position with creditors had become so poor that they had no one else to turn to for money. Even assuming this is an attempt to contrive a non-frivolous economic duress defense, the court finds no merit in it. Plaintiffs were not "forced to agree to [the note] by means of a wrongful threat precluding the exercise of his free will."
Plaintiffs' request for the court to reconsider the judgment entered July 8, 2005 is DENIED. Plaintiffs' motion to dismiss Cootes Drive's counterclaims is DENIED. Both of plaintiffs' motions to supplement the record are DENIED. Cootes Drive's motions to strike the Carr Affidavit and First Tate Affidavit are DENIED. The Citco defendants' motion to strike the Second Tate Affidavit is GRANTED. Partial summary judgment in favor of Cootes Drive on its third and fourth counterclaims is GRANTED.
IT IS SO ORDERED
Not Reported in F.Supp.2d, 2005 WL 3370542
POOLER, District Judge.
A copy of the Order was served on Freeman at her last known address by regular mail on February 6, 1996. On February 12, 1996, the Order was returned to the Court marked "No Longer at This Facility Please Return to Sender." See Dkt. No. 12.
On June 19, 1996, Steven A. Smith, Esq., attorney for the defendant, filed an affidavit with the Court stating that he had attempted to serve a first set of interrogatories on Freeman at the address listed on the summons, and that it was returned to him by the Post Office marked "RTS" or return to sender. See Dkt. No. 14.
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute an action or comply with any order of the court. Link v. Wabash Railroad County Independent School District, 370 U.S. 626 (1962). This power to dismiss an action may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Rodriguez v. Walsh, No. 92-Civ-3398, 1994 WL 9688, *1 (S.D.N.Y. Jan. 14, 1994) (citations omitted).
Additionally, this Court specifically cautioned Freeman that her failure "to promptly notify the Clerk's Office of any change in her address . . . [would] result in the dismissal of the instant action." See Dkt. No. 3 at 7.
Moreover, a plaintiff has the duty to inform the Court of any address changes. As I have stated:
Dansby v. Albany Cty Corr. Facility, No. 95-CV-1525, 1996 WL 172699, *1 (N.D.N.Y. Apr. 10, 1996) (Pooler, J.) (quoting Perkins v. King, No. 84-3310, slip op. at 4 (5th Cir. May 19, 1985) (other citations omitted)); see generally Rule 41.2(b) of the Local Rules of Practice for the Northern District of New York.
This matter cannot proceed without notification to the Court by Freeman of her current address. Therefore, it is hereby:
ORDERED, that this action is dismissed, See Rule 41.2(b) of the Local Rules of Practice for the Northern District of New York, and it is further;
ORDERED, that the Clerk serve a copy of this Order on Freeman by regular mail at her last known address and on Steven A. Smith, Esq., attorney for the defendant.
Not Reported in F.Supp., 1996 WL 481534
SKRETNY, J.
This motion arises from a discovery ruling issued by the Honorable Hugh B. Scott, United States Magistrate Judge. On October 15, 2002, Defendants filed a Motion to Compel Plaintiff to respond to their First Set of Interrogatories because Plaintiffs initial response had been inadequate. On May 27, 2003, Judge Scott granted Defendants' Motion to Compel and directed Plaintiff to file appropriate interrogatory responses within twenty days. Despite being granted an extension of time in which to respond, Plaintiff failed to file his interrogatory response. As a result, on August 19, 2003, Defendants filed a Motion to Dismiss pursuant to Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure.
On November 5, 2003, this Court denied Defendants' Motion to Dismiss after Plaintiff satisfactorily explained the reason he failed to comply with Judge Scott's Order. This Court granted Plaintiff an additional thirty days within which to file his response to Defendants' First Set of Interrogatories. Plaintiff filed and served his response to Defendants' First Set of Interrogatories on November 21, 2003. This response, however, was simply a photocopy of the response Plaintiff initially filed on August 29, 2002, the one Judge Scott found to be inadequate.
Consequently, Defendants filed a second Motion to Dismiss on December 19, 2003. Plaintiff filed a response in opposition. Therein, Plaintiff did not deny that he simply re-filed his initial interrogatory response. Rather, he argued that Judge Scott did not have dispositive jurisdiction, and therefore lacked the proper authority to find his initial interrogatory response inadequate. Further, Plaintiff argued that he did not fail to respond as Defendants alleged because he did indeed file a response.
On May 24, 2004, this Court denied Defendants' Second Motion to Dismiss. In doing so, however, this Court rejected Plaintiffs arguments and excuses for not complying with Judge Scott's Order. Nonetheless, because Plaintiff is proceeding pro se, this Court determined that granting the relief Defendants requested would be too drastic a measure at that stage of the litigation. See Bohol v. Rensselaer Polytecnic Inst., 916 F.2d 759, 764 (2d Cir.1990) ( "dismissal with prejudice [under Rule 37] is a harsh remedy to be used only in extreme situations . . ."). This Court warned Plaintiff that his lawsuit may be dismissed with prejudice if he did not file and serve appropriate responses to Defendants' First Set of Interrogatories within thirty days. Cf id. at 764 (discussing that a court may dismiss an action brought by a pro se plaintiff if such plaintiff has been advised by the court that further non-compliance with a court order could result in dismissal of the case with prejudice).
On September 2, 2004, Defendants filed their instant Third Motion to Dismiss pursuant to Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure. By Order filed October 7, 2004, this Court directed Plaintiff to file a response to Defendants' motion on or before October 29, 2004. On October 29, 2004, Plaintiff filed a Motion for Extension of Time to respond. By Order filed November 4, 2004, this Court extended Plaintiff's response deadline to November 29, 2004, and warned Plaintiff that his failure to file a response could lead to Defendants' motion being granted as uncontested. To date, Plaintiff has not filed a response to Defendants' motion.
A. Dismissal under Rule 41(b) For Failure to Prosecute This case first warrants dismissal based on Plaintiff's failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:
FED. R. CIV. P. 41(b).
Rule 41(b) does not define what constitutes failure to prosecute. However, the Second Circuit has stated that failure to prosecute "can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory tactics." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir.1982). Dismissal pursuant to Rule 41(b) falls within the court's discretion. See id. at 42-43 ("the scope of review of an order of dismissal is confined solely to whether the trial court has exercised its inherent power to manage its affairs within the permissible range of its discretion"). It is, however, "a harsh remedy to be utilized only in extreme situations." Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d Cir.1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir.1972) (per curiam); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir.1980) (discussing the sanction of dismissal for failure to prosecute as "pungent, rarely used, and conclusive"). This is particularly true in cases involving pro se litigants, where dismissal for failure to prosecute should only be granted "when the circumstances are sufficiently extreme." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) (citing Nita v. Connecticut Dept of Envtl. Prot., 16 F.3d 482, 487 (2d Cir.1994)).
The relevant inquiry on this factor is twofold: (1) whether the plaintiff is at fault for failing to prosecute, and (2) whether the plaintiff's failures were of significant duration. See Norden Sys., 375 F.3d at 255. In this case, Plaintiff has failed in two ways. First, as noted above, Plaintiff has failed to respond to Defendants' Third Motion to Dismiss, despite twice being directed by this Court to do so. Second, and more significant, Plaintiff has failed to adequately comply with Judge Scott's discovery Order of May 27, 2003. Plaintiff has been afforded numerous opportunities to file an appropriate response to Defendants' First Set of Interrogatories. This Court alone has twice extended Plaintiff the benefit of the doubt by denying two Motions to Dismiss for Plaintiff's failure to engage in discovery. While Plaintiff did, in fact, file a response to Defendants' First Set of Interrogatories on August 13, 2004, his response is wholly inadequate. Plaintiff's response contains multiple objections to Defendants' basic interrogatory requests and does not provide anything by way of meaningful discovery. In fact, no useful information whatsoever is contained in Plaintiff's response. Clearly, Plaintiff alone is responsible for repeatedly filing inadequate responses to Defendants' discovery request. As a result, Defendants still have not received any meaningful response to their interrogatory requests.
With respect to the second inquiry, which concerns the duration of Plaintiff's failures, it has been almost one year that Plaintiff has failed to file a response to Defendants' Third Motion to Dismiss. The delay caused by Plaintiff's failure to response to Defendants' interrogatory request is even more significant. Defendants filed and served their First Set of Interrogatories on August 17, 2001. It has thus been more than four years and Plaintiff still has not filed an adequate response. This is a failure of significant duration. Cf. Chira, 634 F.2d at 666-67 (delay of six months sufficient to warrant dismissal for failure to prosecute); Antonios A. Alevizopoulos & Assoc., Inc. v. Comcast Int'l Holdings, Inc., No. 99 Civ. 9311, 2000 WL 1677984, at *2 (S.D.N.Y. Nov.8, 2000) (delay of four months warranted dismissal). Thus, this Court finds that this factor weighs in favor of dismissal. In this Court's view, all delay in this case is attributable to Plaintiff and it is of significant duration.
The third factor requires an inquiry into whether the defendant has been prejudiced by the plaintiff's inaction. "Prejudice to defendants resulting from unreasonable delay may be presumed, but in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionately greater." Lyell Theatre, 682 F.2d at 43 (citations omitted). In Lyell Theatre, the court presumed prejudice where the plaintiff on numerous occasions failed to file documents as directed by the court. Id. at 39-40, 43. Similar to the present case, the plaintiff in Lyell Theatre continued to ignore the court's orders even after he had been warned that he was risking dismissal. Id. at 39. Under Lyell Theatre, the prejudice to Defendants in this case may be presumed. Thus, this factor weighs in favor of dismissal.
The fourth factor requires the court to consider the balance between calendar congestion and the plaintiff's right to present his or her case. See Norden Sys., 375 F.3d at 257. In this regard, "`a court must not let its zeal for a tidy calendar overcome its duty to justice.'" Feurtado, 225 F.R.D. at 480 (quoting Davis v. United Fruit Co., 402 F.2d 328, 331 (2d Cir.1968)). Plaintiff's failure to comply with Judge Scott's discovery order has resulted in this Court having to prepare and file numerous scheduling orders, as well as decide three separate motions to dismiss. While this has been a needless expenditure of judicial resources, this Court cannot conclude that the overall effect on docket congestion has been significant.
Finally, the Second Circuit requires district courts to consider whether lesser sanctions would sufficiently remedy any prejudice resulting from the plaintiff's inaction. See Norden Sys., 375 F.3d at 257. Upon reviewing the entire record in this case, it is the opinion of this Court that Plaintiff has no intention of complying with this Court's Orders or properly litigating this case. Plaintiff has repeatedly ignored court orders by failing to file a response to Defendants' Third Motion to Dismiss and to Defendants' First Set of Interrogatories. Given the procedural history of this case, this Court finds that any sanction short of dismissal would be ineffective. See Smith v. Human Res. Admin. of New York City, 2000 WL 307367, at *3 (S.D.N.Y. Mar.24, 2000) (finding lesser sanctions inappropriate where past court orders did not motivate the plaintiff to move the case forward); Alevizopoulos, 2000 WL 1677984, at 4 (finding lesser sanctions inappropriate based on repeated failures to comply with court orders). Thus, this final factor also weighs in favor of dismissal.
Accordingly, this Court finds that dismissal of this case is warranted under Rule 41(b) for Plaintiff's failure to prosecute.
B. Dismissal under Rule 37(b) For Failure to Comply with Discovery Orders
"A district court may impose sanctions when `a party . . . fails to obey an order to provide or permit discovery.'" Burns v. Imagine Films Entm't, Inc., 164 F.R.D. 594, 598 (W.D.N.Y.1996) (quoting FED. R. CIV. P. 37(b)). Rule 37 of the Federal Rules of Civil Procedure, which concerns the discovery obligations of civil litigants, vests district courts with "broad power" and discretion to impose sanctions, including dismissal, on parties who fail to adhere to discovery orders. See Friends of Animals, Inc. v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir.1997) (per curiam); see also Jones v. J. C. Penney's Dep't Stores, Inc., 228 F.R.D. 190, 195 (W.D.N.Y.2005) (identifying dismissal of the action as an available sanction under Rule 37); JSC Foreign Econ. Ass'n. Technostroyexport v. Int'l Dev. & Trade Servs., Inc., No. 03 Civ. 5562, 2005 WL 1958361, at *9 (S.D.N.Y. Aug. 16, 2005).
For all of the reasons discussed above, this Court finds that dismissal of this case is also proper under Rule 37(b) for Plaintiff's failure to comply with discovery orders.
Mindful of the fact that pro se cases should not easily be dismissed for procedural deficiencies, this Court concludes that Plaintiff's failures in this case go beyond procedural deficiencies, and constitute actual neglect. Plaintiff has failed to diligently prosecute this action in any manner, and has failed to comply with orders of this Court. As such, because each of the factors relevant to the Rule 41(b) and Rule 37(b) analysis favor dismissal, this Court will dismiss this case with prejudice.
IT HEREBY IS ORDERED, that Defendants' Third Motion to Dismiss (Docket No. 145) is GRANTED.
FURTHER, that this case is dismissed with prejudice pursuant to Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure.
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Not Reported in F.Supp.2d, 2005 WL 2205816
RICHARD J. SULLIVAN, District Judge.
The Court presumes the parties' familiarity with the facts relevant to this Order, which are recounted in detail in the OSC, as well as prior orders and transcripts in this matter, including Nolan I. However, certain facts post-date those orders and are recounted here.
The Court in Nolan I imposed civil contempt sanctions on Mr. Piccone and Mr. Flaum, in the amounts of $750.00 and $200.00, respectively. See Nolan I at *1-4. Nolan I also included the following directives:
Nolan I, 2008 WL 650387 at *3 (emphasis added). With regard to Mr. Flaum, Nolan I contained the following directives:
Incredibly, as of April 8, 2008, as noted in the record on that day's conference,
Rule 41(b) expressly authorizes involuntarily dismissal "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Fed.R.Civ.P. 41(b); see also LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.2001). The "primary rationale" for dismissal pursuant to Rule 41(b) is "the failure of plaintiff in his duty to process his case diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.1982). Dismissal pursuant to Rule 41(b) is committed to the discretion of the district court, and may be imposed sua Aponte. See Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962); LeSane, 239 F.3d at 209. Rule 41(b) provides that such a dismissal "operates as an adjudication on the merits" unless the dismissal order states otherwise. See Lyell Theatre, 682 F.2d at 42-43.
Dismissal is an extreme and "harsh" remedy only to be imposed in the most "extreme" situations, and the Court must consider the entire record in deciding whether dismissal is appropriate. See Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996); Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir.1993). However, in appropriate cases, dismissal must be available, "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). While dismissal based on the actions of a party's attorney may have serious consequences for the represented party, the Supreme Court has recognized that "[t]here is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client." Link, 370 U.S. at 633.
Lucas, 84 F.3d at 535 (2d Cir.1996); see also United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.2004). Generally, no one factor is diapositive. Shannon v. Gen. Elec. Co., 186 F.3d 186, 194 (2d Cir.1999) (citing Nita v. Conn. Dept of Envtl. Prot., 16 F.3d 482, 485 (2d Cir.1994)).
Weighing all of the above factors, the Court dismisses this case with prejudice pursuant to Rule 41(b).
The first element of the balancing test, the duration of plaintiffs failures, requires that the court consider "(1) whether the failures to prosecute were those of the plaintiff; and (2) whether these failures were of significant duration." Martens v. Thomann, 273 F.3d 159, 180 (2d Cir.2001) (citing Spencer v. Doe, 139 F.3d 107, 113 (2d Cir.1998)); see also United States ex rel. Drake, 375 F.3d at 255. The court must also consider whether any of the delays are attributable to the defendant. See Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir.1994).
Here, while the various failures to follow court orders can be attributed to both parties, plaintiff is primarily to blame for the fact that this case has not advanced in more than six months. See Nolan I, 2008 WL 650387, at *5. This period of delay is particularly significant given that, during that time, the action did not merely lie dormant, but the parties ignored and disobeyed multiple court orders designed to move the case along. The six-month period at issue here thus is of sufficient duration to weigh in favor of dismissal. See Lyell Theatre Corp., 682 F.2d at 42-43 (noting that Rule 41 dismissal may be warranted "after merely a matter of months").
The second element to be considered is whether the plaintiff was on notice that further delay would result in dismissal of the case. See Lucas, 84 F.3d at 535 (2d Cir.1996). The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met. See Shannon, 186 F .3d at 194-95.
The notice element strongly weighs in favor of dismissal of this case. Plaintiff was given notice of the Court's intent to dismiss the action in Nolan I, which stated three times that the action would be dismissed in the event of the plaintiff's failure to comply with its directives. See Nolan I, 2008 WL 650387, at *1-5. In addition, the OSC gave both parties an opportunity to submit papers and to appear in Court to contest dismissal. Plaintiff failed to submit papers in response to the OSC, or to appear on the return date, and failed to follow even one of the directives in Nolan I Furthermore, the parties had previously been warned that the Court would consider sanctioning the parties for failure to comply with Court orders. (See Jan. 2, 2008 Order.) Finally, plaintiff himself appeared at the January 30, 2008 conference before the Court, and was informed of the Court's intention to issue the OSC and consider dismissing the case absent further action. (See Jan. 30, 2008 Tr. at 3-5.) Thus, because it is abundantly clear that the Court gave plaintiff notice of the impending dismissal of the case, the second element weighs in favor of dismissal.
Defendants' counsel is to blame for at least some of the delay in this matter. Because of this, and because only six months have passed, the Court will not presume prejudice. While it is demonstrably unreasonable to fail to comply with court orders for six months, the unreasonable delay present in other cases in which courts presumed prejudice is absent here. See Shannon, 186 F.3d at 195 (finding presumption of prejudice because events at issue in lawsuit had taken place over a decade earlier); Peart v. City of New York, 992 F.2d 458, 462 (2d Cir.1993) (citing potential for witness recollection to diminish or witness unavailability as the reason for a presumption of prejudice due to unreasonable delay); Dodson, 957 F.Supp. at 470 (S.D.N.Y.1997) (holding that dismissal was appropriate after a five-year delay because the court can presume that witnesses'"memories have faded" when eleven years have passed since the events giving rise to plaintiff's cause of action). Thus, the Court finds that the prejudice factor does not weigh in favor of dismissal.
With respect to the fourth element, the balancing of the court's interests and the plaintiff's right to a fair adjudication on the merits, the Second Circuit has instructed that "[t]here must be compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of the court." Lucas, 84 F.3d at 535-36. As such, the plaintiff's failure to prosecute must be "vexatious and burdensome" on the Court's ability to manage its docket, as opposed to being merely "silent and unobtrusive." LeSane, 239 F.3d at 210.
Plaintiff's right to an opportunity to be heard is not taken lightly by this Court. However, this action has been pending for over a year, and there has been no significant progress of any kind for six months. During that time, this Court has issued six separate orders relating to the parties' various failures, and held three conferences relating to the parties' inability to advance the case. While the Court has less knowledge of what transpired prior to this action being reassigned to the undersigned on September 4, 2007, the parties' ongoing failure to comply with orders of this Court has taken up a grossly disproportionate amount of the Court's time since October, 2007. Plaintiff's duty to prosecute the case diligently "is designed to achieve `fairness to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources. . . .'" Dodson, 957 F.Supp. at 470 (quoting Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 668 (2d Cir.1980)). As such, the Court finds that plaintiff's failures have been "vexatious and burdensome" and accordingly, the fourth element weighs in favor of dismissal.
Although it is without question that plaintiff's failures in this case are solely attributable to his counsel, Mr. Piccone, plaintiff himself was on notice of Mr. Piccone's shortcomings up to and including his failure to appear on January 30, 2008. Nevertheless, as of the April 8, 2008 telephone conference, Mr. Piccone was still the counsel of record in this matter. Plaintiff voluntarily chose Mr. Piccone to represent him in this action. Thus, while dismissal is an unfortunate result for plaintiff, it is not an unjust result. See Link, 370 U.S. at 633-34.
As to the consideration of lesser sanctions, this factor clearly weighs in favor of dismissal. As reflected in the record of this case, the Court has given plaintiff numerous opportunities to be heard in relation to his failure to follow court orders. Prior admonishments and warnings have been wholly ineffective. Indeed, the Court previously issued a civil contempt sanction against Mr. Piccone in the amount of $750.00 in order to induce his compliance with future orders. See Nolan I, 2008 WL 650387 at *3. As of the date of this Order, that sanction has not been paid. Moreover, as noted above, counsel has not complied with any of the directives contained in Nolan I. As such, and based on the record in this case, the Court is convinced that lesser sanctions will have no impact on plaintiff's, or his counsel's, conduct or compliance with this court's orders.
As four of the five elements favor dismissal under Rule 41(b), the Court finds that dismissal is appropriate, and this case is accordingly dismissed with prejudice pursuant to Rule 41(b). While the Court is sympathetic to the personal issues encountered by plaintiffs counsel over the past few months, as alluded to by Mr. Piccone during the April 8, 2008 telephone conference, that fact does not alleviate Mr. Piccone's duties to the Court and his client. A simple letter to the Court explaining his plight could have resulted in the extension of deadlines, a short stay of the action, or other relief, including obtaining new counsel for plaintiff. Mr. Piccone has made no showing that he was unable to contact the Court during the time that he was preoccupied with personal matters. The Court recognizes that dismissal of this case with prejudice may have the result of denying plaintiff any relief that he might have obtained on his claims. However, plaintiff is responsible for his choice of counsel, and did not choose at any point, even after being advised of Mr. Piccone's failures, to replace him as counsel. See Lastra v. Weil, Gotshal & Manges LLP, No. 03 Civ. 8756(RJH) (RLE), 2005 WL 551996, at *4 (S.D.N.Y. Mar. 8, 2005) ("Claims by a litigant that he should be excused from his attorney's actions because of alleged fraudulent conduct and disobeyance of the litigant's orders may give rise to a claim for malpractice, but does not constitute an extraordinary circumstance or excusable neglect.")
SO ORDERED.
Not Reported in F.Supp.2d, 2008 WL 1758644, 70 Fed.R.Serv.3d 397
LAWRENCE E. KAHN, District Judge.
Within ten days, excluding weekends and holidays, after a party has been served with a copy of a Magistrate Judge's Report-Recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations," FED. R. CIV. P. 72(b), in compliance with L.R. 72.1. No objections have been raised in the allotted time with respect to Judge Lowe's Report-Recommendation. Furthermore, after examining the record, the Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice.
Accordingly, it is hereby
GEORGE H. LOWE, United States Magistrate Judge.
This pro se prisoner civil rights action, brought pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Generally, the Amended Complaint of Ryan S. McNamee ("Plaintiff") asserts claims under the First and Eighth Amendments against the Schoharie County
Jail, the County Medical Department, and nine employees of the Jail arising from Plaintiff's incarceration at the Jail between September of 2005 and November of 2006. (See generally Dkt. No. 5 [Plf.'s Am. Compl.].) Among these claims is a claim that, in September and October of 2006, Defendants Zeev Weitz (a physician) and David Belanger (a nurse)
Currently pending before the Court is a motion by Defendants Weitz and Belanger to dismiss Plaintiff's Eighth Amendment inadequate-medical-care claim against them for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 16.) Despite having been specifically advised of the consequences of failing to respond to Defendants Weitz and Belanger's motion, and having been sua sponte granted an extension of the deadline by which he had to so response, Plaintiff has failed to so respond. (Dkt. No. 30.)
Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). It has long been understood that a defendant may base such a motion on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed.R.Civ.P. 8(a) (2);
Rule 8(a)(2) requires that a pleading include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Such a statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."
The Supreme Court has long characterized this pleading requirement under Fed.R.Civ.P. 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement.
Most notably, in the recent decision of Bell Atlantic Corporation v. Twonibly, the Supreme Court, in reversing an appellate decision holding that a complaint had stated a claim upon which relief could be granted, "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." ___ U.S. ___, ___ ___, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007).
Moreover, when addressing a pro se complaint, generally a district court "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."
Liberally construed, Plaintiff's Amended Complaint sets forth the following claims:
(1) Between September of 2005 and November of 2006, Defendants Hazzard, Cronk, Marsh, Hirst, Alexander, and Grippin (and the Jail and the County Medical Department) violated Plaintiff's First Amendment rights by denying him access to the courts and interfering with his ability to practice his Catholic religion, and violated his Eighth Amendment rights by failing to protect him from an assault by a violent inmate, which occurred on November 7, 2005;
(2) During the days following November 7, 2005, Defendant "Jane Doe # 1," who was a physician at the Schoharie County Jail, violated Plaintiff's Eighth Amendment rights by "misdiagnos[ing] [Plaintiff's injury] and prescrib[ing] the wrong medication to [Plaintiff] for headaches that were occurring" as a result of a head injury he suffered during the referenced assault;
(3) On or about September 25, 2006, "with no valid explanation" but merely "to save money for the Schoharie County Jail," Defendant Weitz "abruptly" took Plaintiff off the prescription drug Lexapro (which he had been taking regularly since September 2005 for "anxiety, depression and uncontrollable rage attacks"), causing Plaintiff to suffer "loss of sleep, disorientation, and illusions [sic]."; and
(4) During the early weeks of October 2006, after three requests to see medical staff about the discontinuation of his Lexapro medication, Plaintiff was finally seen by Defendant Belanger, who failed to discover why Plaintiff had been taken off Lexapro, failed to cause Plaintiff to be placed back on Lexapro, and callously stated that Plaintiff should not be experiencing the side effects he was claiming (although a year before Defendant Belanger had told Plaintiff that an "abrupt" discontinuation of the drug would be "dangerous"). (Dkt. No. 5 [Plf.'s Am. Compl.].)
Defendants Weitz and Belanger filed their motion to dismiss on May 15, 2007. (Dkt. No. 16.) In light of Plaintiff's special status as a pro se civil rights litigant, on August 14, 2007, the Court advised Plaintiff that, while he was not required to respond, Defendants Weitz and Belanger's motion could be granted if the Court determined that they had met their requisite burden, thereby resulting in their dismissal from Plaintiff's action. (Dkt. No. 30.) The Court also sua Aponte granted Plaintiff an extension of time in which to respond to their motion, until September 13, 2007. (Id) Still, Plaintiff did not respond to the motion. "Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the nonmoving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown." N.D.N.Y. L.R. 7.1(b)(3).
Here, Defendants Weitz and Belanger's motion to dismiss has been properly filed, Plaintiff has failed to oppose it (despite being warned of the possible consequences of that failure), and Plaintiff has failed to show good cause as to why his failure to oppose the motion should not be deemed as "consent" to the granting of the motion. Therefore, the sole issue remaining before the Court is whether Defendants have met their "burden to demonstrate entitlement to the relief requested" in their motion. N.D.N.Y. L.R. 7.1(b)(3).
As a practical matter, an inquiry into whether a movant has met its "burden to demonstrate entitlement" to dismissal under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion to dismiss.
For these reasons, I recommend that the Court grant Defendants Weitz and Belanger's motion to dismiss. Because adequate reason exists to grant Defendants Weitz and Belanger's unopposed motion, the Court need proceed no further in its analysis of Plaintiff's Amended Complaint. However, in the interest of thoroughness, and toward the end of describing an alternative basis for dismissal of Plaintiff's claims against Defendants Weitz and Belanger, I will subject their motion to the more rigorous scrutiny appropriate for a contested motion to dismiss.
A prisoner's allegation of deliberate indifference to a serious medical need arises under the Eighth Amendment when the alleged deliberate indifference occurred while prisoner was incarcerated on a sentence of conviction, and under the Fifth Amendment when the alleged deliberate indifference occurred while prisoner was detained awaiting trial. Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000). Under either constitutional amendment, the legal standard (for a deliberate indifference claim) is the same. Cuoco, 222 F.3d at 106.
Generally, to state a claim for inadequate medical care under the United States Constitution, a plaintiff must allege facts plausibly suggesting two things: (1) that he had a sufficiently serious medical need; and (2) that the defendants were deliberately indifferent to that serious medical need. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998).
To be sufficiently serious for purposes of the Constitution, a medical condition must be "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J. dissenting) [citations omitted], accord, Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1996), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995); Chance, 143 F.3d at 702.
Here, Plaintiff alleges that, during the time in question, he suffered from "mental health problems," specifically, "anxiety, depression and uncontrollable rage attacks." (Dkt. No. 5, at 13 [Plf.'s Am. Compl.].) Conspicuously absent from Plaintiff's Amended Complaint (which is otherwise very lengthy and detailed) is any allegation that, during the time in question, he suffered from panic attacks or that he had attempted (or even contemplated) suicide.
In any event, even if I were to assume, for the sake of argument, that Plaintiff has alleged facts plausibly suggesting that (during the time in question) he suffered from a serious medical need, I would find that he has not alleged facts plausibly suggesting that either Defendant Weitz or Belanger possessed a sufficient state of mind during the time in question to make him deliberately indifferent to that need.
An official is "deliberately indifferent" to a serious medical need when he "`knows of and disregards an excessive risk to inmate health or safety.'"
There is no such criminal recklessness alleged in Plaintiff's Amended Complaint. (See Dkt. No. 5, at 10-13 [Plf.'s Am. Compl.].) Plaintiff alleges facts plausibly suggesting that, for some if not all of the relevant time period, both Defendants Weitz and Belanger were acting under the mistaken belief that, during the weeks before Plaintiff had been taken off of Lexapro, he had not been taking the drug. (Id. at 12.) Moreover, Plaintiff does not even conclusorily allege that Defendant Weitz was aware of the withdrawal symptoms that Plaintiff was allegedly experiencing. (Id. at 11-13.) At most, there might be a hint of negligence alleged. However, negligence is not sufficient to state a claim for deliberate indifference. Nor is a disagreement over a treatment decision-which is what Plaintiff is essentially alleging. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001) ("[D]isagreements [between a prisoner and prison officials] over medications . . . are not adequate grounds for a section 1983 claim. These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.") [citation omitted]. As the Second Circuit once observed:
Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986) [internal quotations and citations omitted].
For the above reasons, I recommend that, in the alternative, the Court dismiss Plaintiff's claims against Defendants Weitz and Belanger due to Plaintiff's failure to allege facts plausibly suggesting that either Defendants Weitz or Belanger was deliberately indifferent to any serious medical need possessed by Plaintiff.
In the alternative, Defendants Weitz and Belanger argue that Plaintiff's claim against them should be dismissed because Plaintiff's Amended Complaint "contains no allegation that plaintiff ever complained administratively about the same medical decisions by Dr. Weitz and Mr. Belanger about which plaintiff complains at pages 11 through 13 of his complaint." (Dkt. No. 16, Part 3, at 10 [Defs.' Mem. of Law].)
Although I agree with the main thrust of this argument (i.e., that Plaintiff's claim against Defendants Weitz and Belanger should be dismissed due to Plaintiff's failure to exhaust his available administrative remedies), I disagree somewhat with Defendant Weitz and Belanger's reasoning.
For some years now, it has been the majority rule (followed by the Second Circuit) that a prisoner's fulfillment of his duty to exhaust his available administrative remedies under the Prison Litigation Reform Act ("PLRA") is not a fact that the prisoner had to plead in order to state a claim under 42 U.S.C. § 1983 but a fact that may be challenged by a defendant through an affirmative defense (such as on a motion for summary judgment pursuant to Fed.R.Civ.P. 56, or a motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12[b][1]) established by the PLRA. See, e.g., Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.1999) ("Because, under the PLRA, a prisoner must exhaust administrative remedies before filing a § 1983 suit . . ., a defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiff's failure to comply with the PLRA's requirements."); Snider v. Melindez, 199 F.3d 108, 114 (2d Cir.1999) ("A court may not dismiss for failure to exhaust administrative remedies unless the court determines that such remedies are available. Snider's answers [on a form complaint] cannot establish that.").
This is what has happened here. Addressing the exhaustion requirement in his Amended Complaint, Plaintiff alleges as follows:
Granted, Plaintiff appears to attempt to invoke the "unavailability," "estoppel," and "special circumstances" exceptions to the exhaustion rule. More specifically, Plaintiff appears to rely on the three-part inquiry that the Second Circuit has held is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA.
For the above reasons, I recommend that, in the alternative, the Court dismiss Plaintiff's claims against Defendants Weitz and Belanger due to Plaintiff's having alleged facts demonstrating that, before filing this action in federal court, he failed to exhaust his administrative remedies with regard to his inadequate-medical-care claim against Defendants Weitz and Belanger.
Plaintiff had a duty to diligently litigate his deliberate-indifference claim against Defendant "Jane Doe # 1," including a specific duty to identify, name and serve her. See Fed.R.Civ.P. 41(b); N.D.N.Y. L.R. 41.2(a); Fed.R.Civ.P. 4(m); Fed.R.Civ.P. 16(e),(f). (See also Dkt. No. 6, at 2-4 [Order of Judge Kahn, filed 1/22/07, advising Plf. that "the U.S. Marshals cannot effect service on a `Jane Doe' defendant," and that "if this individual is not timely served, this action will be dismissed as against her," and directing Plf. to "take reasonable steps to ascertain her identity" and "file a Motion to amend his Complaint and add such individual[ ], by name, as [a] defendant[ ] to this lawsuit"].) Plaintiff has failed to fulfill that duty, and has not shown good cause excusing that failure.
Furthermore, using the well-known five-part balancing test appropriate for a failure-toprosecute analysis,
For all of these reasons, I recommend that the Court sua sponte dismiss Plaintiff's deliberate indifference claim against Defendant "Jane Doe # 1" due to Plaintiff's failure to name or serve her, and/or his failure to state a claim against her upon which relief may be granted.
As indicated above in Part III.C. of this Report-Recommendation, Plaintiff had a duty to diligently litigate his claims against Defendant Schoharie County Medical Department (if there exists such an entity), including a specific duty to serve that entity. See Fed.R.Civ.P. 41(b); N.D.N.Y. L.R. 41.2(a); Fed.R.Civ.P. 4(m); Fed.R.Civ.P. 16(e),(f). (See also Dkt. No. 8, at [Order of Magistrate Judge Lowe, filed 3/5/07, directing that Plf. "must comply with the requests by the Clerk's Office for any documents [including accurate USM 285 Forms] that are necessary to maintain this action."].)
Finally, using the balancing test appropriate for a failureto-prosecute analysis, I find that this failure to name and serve has persisted for approximately nine months; Plaintiff has had specific notice of the failure and the consequences of the failure; the entity designated as "The Schoharie County Medical Department" (whichever entity that may be) has been prejudiced by the failure; and no sanction less drastic than dismissal would be appropriate. Under the circumstances, I find that Plaintiff's claims against Defendant Schoharie County Medical Department should be dismissed under a variety of authorities. (See, supra, note 30 of this Report-Recommendation.)
As indicated above in Part III.C. of this Report-Recommendation, Plaintiff had a duty to diligently litigate his claims against the remaining Defendants (i.e., Defendants Hazzard, Cronk, Marsh, Hirst, Alexander, Grippin, and Schoharie County Jail). See Fed.R.Civ.P. 41(b); N.D.N.Y. L.R. 41.2(a); Fed.R.Civ.P. 4(m); Fed.R.Civ.P. 16(e),(0.
Using the balancing test appropriate for a failure-to-prosecute analysis, I find that Plaintiff has failed to diligently prosecute this action for approximately eight months, i.e., since about June 4, 2007. I reach this conclusion for two reasons. First, June 4, 2007, was the original deadline for Plaintiff's papers in response to Defendants Weitz and Belanger's motion to dismiss. Since that date, the Court has delayed deciding the motion to dismiss, in large part, out of special solicitude to Plaintiff, to permit him an adequate opportunity to respond. I note that Local Rule 7.1(b)(3) gives a non-movant a duty to promptly notify the Court when he intends to not respond to a motion, and makes the failure to fulfill such a duty punishable by the imposition of sanctions. N.D.N.Y. L.R. 7.1(b)(3). Plaintiff has failed to provide such notice to the Court. Second, Local Rule 41.2(a) of the Local Rules of Practice for this Court provides that "[i]n the absence of an order by the assigned judge or magistrate judge setting any date for any pretrial proceeding or for trial, the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution." N.D.N.Y. L.R. 41.2(a). As of June 4, 2007, the last time that Plaintiff had taken any action in this matter was about four months before, i.e., on February 2, 2007. (Dkt. No. 7 [Plf.'s IFP App., filed 2/2/07].)
Furthermore, I find that Plaintiff has had adequate notice of his failure to prosecute and the consequences of the failure, due to (1) Local Rules 7.1(b)(3) and 41.2(a) of the Local Rules of Practice for this Court, which were available at Plaintiff's correctional facility when he signed his Complaint in this action in August of 2006, and (2) the several Orders that have been filed in this action reminding Plaintiff, in part, of his various litigation duties. (See Dkt. Nos. 4, 6, 8, 30, 31.)
Moreover, I find that the remaining Defendants have been prejudiced by Plaintiff's failure to prosecute, and will continue to be prejudiced by a further failure to prosecute. Further delay by Plaintiff may very well result in the fading of memories, the discarding of relevant documents, and the retirement or transfer of witnesses.
Additionally, I find that the need to alleviate congestion on the Court's docket outweighs Plaintiff's right to receive a further chance to be heard in this action. It is cases like this one that delay the resolution of other cases, and that contribute to the Second Circuit's dubious distinction as having (among the twelve circuits, including the D.C. Circuit) the longest median time to disposition for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national average of 5.7 months). Simply stated, I am unable to afford Plaintiff with further special solicitude without impermissibly burdening the Court and unfairly tipping the scales of justice against the remaining Defendants.
For these reasons, I recommend that the Court dismiss Plaintiff's claims against the remaining Defendants (i.e., Defendants Hazzard, Cronk, Marsh, Hirst, Alexander, Grippin, and Schoharie County Jail) due to Plaintiff's failure to diligently litigate his claims against them, unless Plaintiff shows cause for this failure within ten (10) days of the date of this Report-Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Not Reported in F.Supp.2d, 2008 WL 686796
NICHOLAS G. GARAUFIS, United States District Judge
On July 7, 2014, Plaintiffs filed their Complaint, but they did not file any proposed summonses.
On October 21, 2014, the City's counsel emailed Plaintiffs' counsel to inform him that no Defendant had been properly served with a summons. (Fogarty Decl. ¶ 8.) Plaintiffs' counsel responded that he would presently file proof of service. (
On November 6, 2014, the City filed a letter seeking a premotion conference. (Nov. 6, 2014, Ltr-Mot. (Dkt. 8).) The City noted the deficiencies in Plaintiffs' attempted service. Specifically, the City indicated that (1) "[a] further review of the summons and complaint that was purportedly served on the City . . . on July 21, 2014, revealed that, in fact, no summons was served on the City . . ."; (2) lain additional review of the summonses purportedly served on defendants Nicole Perl and Louis Stephenson shows they were neither signed by the Clerk of the Court nor bear the Court's seal as is required by Fed. R. Civ. P. 4(a)(1)(F) and (a)(1)(G)"; and (3) "there is no adequate proof of service on Police Officer Michael Demonda or Sergeant Nathan Mole on the docket sheet, an issue which was raised in both of defendant City's requests for an enlargement of time to respond to plaintiffs' complaint." (
Consequently, on January 11, 2016, the court ordered Mr. Aranda to inform Plaintiffs that he can no longer represent them and ordered Plaintiffs, within 30 days, to inform the court whether they wished to secure new counsel, proceed pro se, or discontinue the case. (
On March 1, 2016, the City moved to dismiss the case for failure to prosecute. (Ltr.-Mot. to Dismiss (Dkt. 28).) Plaintiffs have not responded in any way.
"If the plaintiff fails to prosecute . . . a defendant may move to dismiss the action." Fed. R. Civ. P. 41. However, "dismissal is `a harsh remedy to be utilized only in extreme situations.'"
In deciding whether to dismiss a case for failure to prosecute, the Second Circuit has instructed district courts to consider whether: "(1) the plaintiffs failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiffs right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions."
"In analyzing the factors, the court reviews the record as a whole."
The first factor asks whether Plaintiffs are at fault for causing a significant delay. "The first factor . . . breaks down into two parts: (1) whether the failures to prosecute were those of the plaintiff, and (2) whether these failures were of significant duration."
With regard to the first element. Plaintiffs have failed to respond in any way to the court's January 11, 2016, Order. This failure is plainly attributable to Plaintiffs. Moreover, even if Plaintiffs were to argue that their counsel, Mr. Aranda, was responsible for the failure to respond, "apportionment of blame between counsel and client, . . . is best considered when [the court gets] to the fifth factor."
Moreover, the court is reluctant to view Plaintiffs' failure to prosecute as simply failing to respond to the January 11, 2016, Order. Throughout the case, Plaintiffs have failed to carry out even the most basic tasks associated with prosecuting the case.
In any event, even if the court only considered Plaintiffs' failure to respond to the January 11, 2016, Order standing alone, and even if that delay was itself not sufficiently substantial to warrant dismissal, the court would still find the delay here sufficient to counsel in favor of dismissal because Plaintiffs are unreachable. "Courts have found dismissal appropriate for [delays shorter than several months] when a party has become completely inaccessible, as inaccessibility `strongly suggests that [Plaintiffs are] not diligently pursuing [their] claim.'"
Accordingly, the court finds that the first factor favors dismissal.
The second factor asks whether Plaintiffs are on notice that their failure to prosecute could cause their case to be dismissed. Generally, a party should be given notice prior to dismissal of their complaint for failure to prosecute.
"In any event, given that the Court and counsel have no way to contact [Plaintiffs], any further attempt to warn them would be futile."
Thus, the court finds that the second factor favors dismissal.
The third factor asks whether Defendants are likely to be prejudiced by further delay. "Where a plaintiff has become inaccessible for months at a time, courts presume prejudice."
Consequently, the court finds that the third factor favors dismissal.
The fourth factor considers whether dismissal of the case would alleviate the court's docket. The court is cognizant that it "must not let its zeal for a tidy calendar overcome its duty to do justice."
The fifth factor asks whether a sanction less than dismissal could sufficiently remedy the plaintiffs delay. "Courts consistently find that dismissal is the only adequate remedy for failure to prosecute where a plaintiff cannot be contacted because the plaintiff would be unaware of any lesser sanction that could be imposed."
Because Plaintiffs are unreachable here, the court finds that the fifth factor weighs in favor of dismissal.
Because all five factors weigh in favor of dismissal, the court concludes that Plaintiffs' failure to prosecute warrants dismissal. The City's motion to dismiss is therefore GRANTED. In addition, the court
SO ORDERED.
Not Reported in F.Supp.3d, 2016 WL 1275621
GARY L. SHARPE, District Judge.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby
ORDERED, that the Report-Recommendation of Chief Magistrate Judge Gustave J. DiBianco filed October 6, 2006 is ACCEPTED in its entirety for the reasons state therein, and it is further
ORDERED, that defendants' motion to dismiss for failure to prosecute (Docket No. 45) is GRANTED, and the complaint
ORDERED, that the Clerk of the Court is to enter judgment in favor of Defendants and close this case.
IT IS SO ORDERED.
GUSTAVE J. DI BIANCO, Magistrate Judge.
This matter has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
In this civil rights complaint, plaintiff alleges a variety of constitutional violations, including excessive force; failure to protect; and cruel and unusual punishment. Plaintiff also states that he has been subjected to false disciplinary charges and wrongful confinement. (Dkt. No. 1).
Presently before the court is defendants' motion to dismiss this action for failure to prosecute. (Dkt. No. 45). Plaintiff has not responded to the motion. For the following reasons, this court agrees with defendants and will recommend dismissal of the complaint.
Plaintiff filed this action on December 12, 2001. (Dkt. No. 1). Plaintiff complains of defendants' conduct, allegedly occurring between April and June of 2001. The case was originally assigned to the Honorable Lawrence E. Kahn. On December 28, 2001, I issued an order, granting plaintiff in forma pauperis status and ordering service of the complaint by the Marshal. (Dkt. No. 4). In my December 28, 2001 order, I specifically stated that plaintiff was to promptly notify the court and defendants of any change of address. (Dkt. No. 4 at p. 3). I also specifically warned plaintiff that the failure to do so could result in dismissal of the complaint. Id.
Defendants filed their answer on May 8, 2002. (Dkt. No. 21). On July 10, 2002, I issued a scheduling order, setting a discovery deadline of January 30, 2003 and a dispositive motion deadline of May 30, 2003. (Dkt. No. 25). During the period between September 18, 2002 and July 29, 2004, plaintiff filed
On June 12,
"The demand that plaintiffs provide contact information
The Second Circuit has held that generally, a determination of whether to dismiss for failure to prosecute involves a consideration of whether plaintiffs failure caused a delay of considerable duration; whether plaintiff was given notice that further delay would result in dismissal, and whether defendants will be prejudiced by further delay. United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.2004). The court must also carefully balance the need to alleviate court congestion with plaintiffs right to have his day in court, and the court must consider the efficacy of lesser sanctions. Id. Dismissal is a harsh remedy to be utilized only in "extreme situations." Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir.1993).
Defendants have now moved to dismiss this action. Certainly there has been a great delay in this case due to plaintiffs failure to participate. The events giving rise to plaintiffs claims allegedly occurred in mid-2001. It is now more than five years later, and there appears to have been no discovery. On September 20, 2002, defendants obtained an order pursuant to FED.R.CIV.P. 30(a) to depose plaintiff, but it is unclear whether any deposition occurred. Any further delay will certainly prejudice defendants' ability to defend this action. Plaintiff was
Because plaintiff has failed to keep the court informed of his whereabouts, it is impossible to contact him for any purposes. It is also impossible to consider or impose any lesser sanction than dismissal of the action. At the request of the court, defense counsel even contacted the Division of Parole to determine if plaintiffs current address could be found. Defendants have no further obligation to pursue this inquiry. It is neither defendants', nor the court's responsibility to make extraordinary efforts to locate a plaintiff who has clearly abandoned his action.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Not Reported in F.Supp.2d, 2006 WL 3150030
BUCHWALD, J.
Plaintiff alleges that on December 19, 2001, at approximately twelve o'clock midnight, he arrived at Sullivan Correctional Facility ("Sullivan"). Upon arrival, he advised the processing officer that he was an asthmatic and had not received his medication for that day. The processing officer notified the nurse of plaintiffs condition. Shortly thereafter, the processing officer returned and informed plaintiff that Nurse Ginger Eggler said plaintiff would have to wait until morning to be seen by anyone. Plaintiff was then escorted to a housing unit without being screened for medical or mental disorders and without receiving any asthma medication.
The following morning, December 20, 2001, at approximately 8:20 a.m., plaintiff maintains he suffered an asthma attack. Plaintiff was examined at the facility clinic, given breathing treatment, and provided oral medication. He was advised he would be called to the clinic to pick up his asthma medication that evening, but was never called. The following morning, plaintiff reported to the facility clinic to inquire why he had not been called to pick up his medication. Plaintiff avers he was informed that the doctor had lowered the dosage of his medication. Plaintiff inquired as to why his dosage had been lowered without a personal consultation by a doctor. Plaintiff does not state what the response was to this inquiry.
Plaintiff claims that because the dosage had been lowered, and because he was never evaluated properly, he suffered five additional asthma attacks on January 6, 9, 11, 13, and 14, 2002. However, plaintiff does not allege that he sought treatment at the infirmary for any of the attacks in January. Nonetheless, on January 14, 2002, plaintiff was examined by Dr. Wladyslaw Sidorowicz. During this examination, Dr. Sidorowicz put plaintiff on a different medication and further advised plaintiff to let him know if the new medication did not work and he would change it. Plaintiff also alleges that during this same examination, Dr. Sidorowicz told him that he intended to stop plaintiffs asthma medication in an effort to keep the budget down.
Although the precise timing is unclear, plaintiff claims he wrote a letter to Nurse Administrator ("N.A.") Sharon Lilley explaining his unhappiness with the treatment he was receiving for his asthma. In her response letter, plaintiff claims N.A. Lilley justified Nurse Eggler's screening upon his initial intake at Sullivan and Dr. Sidorowicz's decision to discontinue his medication. Plaintiff also claims he wrote a letter to Deputy of Administrative Services William Brown. Plaintiff does not describe the contents of his own letter, only that Deputy Brown advised plaintiff that his medication had been changed to a better regime with more effective medication. Plaintiff further avers that in a later letter from Deputy Brown, he was advised that "testing at this facility does not support your self diagnosis of asthma."
Plaintiff claims that as a result of the mental duress caused by this situation, he chose to cut his right forearm with a shaving razor on March 25, 2002. Plaintiff further avers that Dr. Sidorowicz initially refused to send him to an outside hospital to treat the wound, but that after being pressured by the mental health staff, the doctor sent him to an outside medical center where he received twenty stitches. Thereafter, on April 3, 2002, Dr. Sidorowicz placed plaintiff back on his original asthma medication.
Plaintiff herein has four complaints: (1) Nurse Eggler denied plaintiff his asthma medication upon his initial intake at Sullivan and did not properly screen him, such that if he were properly screened, he would not have been given a shaving razor due to his mental disorder; (2) Dr. Sidorowicz did not properly treat and failed to examine him earlier than January 14, 2002, and that prior thereto, plaintiff suffered six asthma attacks; (3) N.A. Lilley failed to act on the content of the plaintiffs complaint letter; and (4) Deputy Brown, a non-medical professional, should not have given a medical opinion in response to plaintiffs complaint letter, and failed to remedy the inadequate medical care of which plaintiff complained.
Plaintiff filed suit on August 23, 2002. He moved to have counsel assigned, which we denied on October 10, 2002. Defendants moved to dismiss on November 22, 2002.
In an action brought under 42 U.S.C. § 1983, the plaintiff must establish that a person acting under color of state law deprived him of a federal constitutional right. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Here, plaintiff claims that defendants Nurse Eggler and Dr. Sidorowicz violated his Eighth Amendment rights by failing to provide him with proper medical care, and that defendants N.A. Lilley and Deputy Brown violated his Eighth Amendment rights by failing to properly address his complaints regarding such inadequate care.
The Eighth Amendment, made applicable to the states by the Fourteenth Amendment, prohibits the infliction of "cruel and unusual punishment." See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (holding that the Eighth Amendment is applicable to treatment and conditions of confinement for prison inmates). We are additionally mindful of the state's constitutional obligation to provide inmates with adequate medical care. See Id. at 832. Indeed, it is well-established that a prison official's denial of access to medical care or interference with prescribed treatment may constitute the "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977). To state a cognizable claim under § 1983 for inadequate medical care, an inmate must allege acts or omissions sufficiently harmful to evidence "deliberate indifference" to his serious medical needs. Estelle, 429 U.S. at 104. As such, the plaintiff must allege conduct that is "an unnecessary and wanton infliction of pain," or that is "repugnant to the conscience of mankind." Id. at 105-06.
The deliberate indifference standard "embodies both an objective and subjective prong" and the plaintiff must satisfy both prongs in order to establish that prison officials unconstitutionally deprived him of adequate medical care. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied, sub nom. Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). First, the inmate's medical condition must be, in objective terms, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). A condition is "sufficiently serious" under the Eighth Amendment if it is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, 37 F.3d at 66 (citing Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J., dissenting). Second, the charged official must act with a sufficiently culpable state of mind. See Wilson, 501 U.S. at 298. "Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66 (citing Farmer, 511 U.S. at 835-36). More specifically, a prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
At the time of Nurse Eggler's involvement, around midnight on December 19, 2001, she was informed only that plaintiff was an asthmatic and that he desired his medication. Plaintiff did not allege any discomfort or any symptoms of an emergent attack. Thus, plaintiff does not satisfy the objective component of a deliberate indifference claim. More than minor discomfort or injury is required for plaintiff to meet the objective prong of demonstrating a "sufficiently serious" medical need.
Being an asthmatic (a person susceptible to asthma attacks) is not a condition, in Eighth Amendment parlance, that is severe or "sufficiently serious." The existence of the condition is distinct from the situation in which an inmate is suffering an actual attack. Cf. Ennis v. Davies, No. 87 Civ. 1465, 1990 WL 121527 (S.D.N.Y. Aug.15, 1990) (denying a motion for summary judgment based on prison official's refusal to provide an inmate his asthma medication during an actual attack). Indeed, in Sulkowska v. City of New York, 129 F.Supp.2d 274 (S.D.N.Y.2001), where plaintiff was denied her asthma medication while a detainee in police custody, the court found that such conduct amounted to no more than mere negligence, not deliberate medical indifference, as asthma was not sufficiently serious to warrant Eighth Amendment protection in the absence of an attack or symptoms of an attack.
It is well-established that liability for damages under § 1983 may not be based on the respondeat superior or vicarious liability doctrines. Monell v. Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Koehl v. Dalsheim, No. 94 Civ. 3351, 1995 WL 331905, at *2 (S.D.N.Y. June 5, 1995). The mere fact that a defendant occupies a position of authority will not merit the imposition of § 1983 liability. See Al Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989). A supervisor is not liable for civil rights violations committed by his subordinates;
A pro se complaint can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Even applying these liberal standards, plaintiffs claims against each of the defendants is not cognizable under § 1983. Accordingly, we conclude that plaintiffs allegations of deliberate indifference to his medical needs fail to state a claim upon which relief can be granted. Defendants' motion to dismiss is granted.
Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of the Court is hereby requested to close this case on the Court's docket.
IT IS SO ORDERED.
Not Reported in F.Supp.2d, 2003 WL 21507345.
