CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff Gene M. Coffeey ("Coffeey" or "Plaintiff"), a resident of Central New York Psychiatric Center ("CNYPC") who was, at all relevant times, in the custody of the New York State Office of Mental Health ("OMH"), brings this action pursuant to 42 U.S.C. § 1983. Dkt. No. 1 ("Compl."). Presently before the undersigned is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56. Dkt. No. 24. Coffeey did not oppose the motion. For the following reasons, it is recommended that defendants' motion be granted.
Coffeey failed to submit any opposition papers to defendants' motion for summary judgment. Coffeey requested an extension of time to file his response to the present motion. Dkt. No. 31. Despite the Court granting two extensions, Coffeey has not submitted an opposition to defendants' motion for summary judgment. Dkt. Nos. 32, 36. Coffeey was notified of the consequences of failing to respond to a summary judgment motion.
In support of the motion, defendants filed a Statement of Material Facts.
The facts are related herein in the light most favorable to Coffeey as the nonmoving party.
On May 28, 2013, at approximately 5:36 a.m., Coffeey was observed skipping his turn for the shower. Dkt. No. 25 (Exhibit A to the Affirmation of Colleen D. Galligan ("Galligan Aff.")) at 8.
On May 30, 2013, at approximately 8:20 a.m., a Secure Care Treatment Aide ("SCTA") observed Coffeey become "verbally and physically assaultive once he was told about the restriction" imposed by the Treatment Team. Dkt. No. 25 at 20. Coffeey was "pointing and swinging his . . . closed fist."
On May 30, 2013, at 12:15 p.m., due to Coffeey's "threatening and impulsive behavior," a physician completed a "Physician Order Form — Constant Observation."
On May 30, 2013, at approximately 2:06 p.m., plaintiff began "yelling" and "swearing" at an SCTA and insisted on eating in the dining room. Dkt. No. 25 at 22. Coffeey was "loud and argumentative" as he returned to his room.
On May 31, 2013, Coffeey was observed "mumbl[ing] indiscernibly, pac[ing] in the sideroom[,]" and "glar[ing] at [the] nurse." Dkt. No. 25 at 34. On May 31, 2013, due to plaintiff's "threatening and impulsive behavior," a physician renewed the Observation Order.
On June 1, 2013, Coffeey required numerous prompts to wake for medication, ignored staffs requests and was argumentative. Dkt. No. 25 at 43. On June 1, 2013, due to plaintiff's "threatening and impulsive behavior," a physician renewed the Observation Order.
On June 2, 2013, Coffeey was upset because he slept in the side room. Dkt. No. 25 at 44. Coffeey became argumentative when staff explained the Constant Observation Order.
On June 3, 2013, due to plaintiff's "impulsive" behavior, a physician renewed the Constant Observation Order.
On June 3, 2013, at approximately 1:00 p.m., Coffeey was evaluated by a physician.
On June 4, 2013, at 10:03 p.m., defendant SCTA Nicholas S. Hollenbeck ("Hollenbeck") was on duty in Ward 405 and observed plaintiff consume his dinner, shower and use the bathroom. Dkt. No. 25 at 69. Hollenbeck prepared a Progress Note indicating that, "[r]esident remains on ward 504."
On June 7, 2013, June 8, 2013 and June 10, 2013 Coffeey was confined to Wards 405 and 504. Dkt. No. 25-1 at 1-21; Dkt. No. 26 at 12-17.
On June 7, 2013, Megan E. Dorr ("Dorr"), Esq., Senior Attorney at Mental Hygiene Legal Services, sent a letter to defendant Anthony Gonzalez ("Gonzalez"), Director of Risk Management at CNYPC. Dkt. No. 24-4 (Declaration of Anthony Gonzalez) ¶¶ 1-2; Dkt. No. 26 at 24. Dorr conveyed Coffeey's concerns regarding his confinement to the side room from May 29, 2013 through June 3, 2013 without sheets, blankets, pens or paper. Dkt. No. 26 at 24. Coffeey also claimed that he was not permitted to call his family, receive mail or correspond with his family or counsel.
Gonzalez treated the letter as a complaint and assigned Tad Adams ("Adams"), a Risk Management Specialist, to review the allegations and formulate a response.
On June 12, 2013, Gonzalez received a second letter from Dorr, dated June 11, 2013. Dkt. No. 26 at 4-5. Dorr indicated that Coffeey "fear[ed] for his safety" because he reported the alleged abuse to risk management. ki at 4. Specifically, Coffeey reported to Dorr that, on two occasions, Hollenbeck removed food from Coffeey's tray.
On June 12, 2013, Nester interviewed Coffeey. Dkt. No. 26 at 1-2. Coffeey executed a written statement related to the incidents with Hollenbeck.
On June 19, 2013, Nester interviewed SCTA David Paulson ("Paulson"). Dkt. No. 26 at 1. Paulson executed a written statement indicating that he was working on Ward 504 on June 7, 2013 and June 8, 2013.
On June 20, 2013, Nester interviewed Hollenbeck. Dkt. No. 26 at 1. Hollenbeck executed a written statement and asserted that he was not working on Ward 504 on June 7, 2013, June 8, 2013 or June 10, 2013.
On June 27, 2013, Nester interviewed SCTA Dan Wiginton ("Wiginton"). Dkt. No. 26 at 1. Wiginton executed a written statement stating that he was on Ward 504 for one shift when Coffeey was present.
On June 27, 2013, after interviewing witnesses and reviewing all pertinent documentation, Nester issued a report and concluded that there was no evidence to support Coffeey's contentions. Dkt. No. 26 at 2. On July 3, 2013, Gonzalez responded to Dorr advising that an investigation into Coffeey's complaint was completed and that the summary was available for her review, upon request.
On August 30, 2013, Gonzalez received a letter from Dorr dated August 29, 2013. Gonzalez Decl. ¶ 26; Dkt. No. 26 at 21. Dorr expressed concern that Gonzalez "unilaterally downgraded" Coffeey's allegations without explanation. Dkt. No. 26 at 21. Dorr stated that Gonzalez did not follow procedures set forth in the OMH Manual for Special Investigations that required Gonzalez to consider the allegations "reasonably reliable[.]"
On September 20, 2013, Gonzalez responded to Dorr stating that "each case is addressed on an individual basis and may not require the same level of investigation and analysis." Dkt. No. 26 at 20. Based upon the conclusions of two investigations conducted, Gonzalez determined that there was no evidence of neglect or abuse and that a special investigation was not warranted. Gonzalez Decl. ¶ 28.
On February 26, 2014, Coffeey filed his complaint in this action. Dkt. No. 1. Upon review of Coffeey's complaint, the Court directed defendants to respond to the allegations in the complaint. Dkt. No. 8. On April 1, 2015, defendants filed the within motion pursuant to Fed. R. Civ. P. 56 seeking summary judgment and dismissal of Coffeey's complaint. Dkt. No. 24. Coffeey did not oppose the motion.
In the complaint, Coffeey alleges that he was subjected to Fourteenth Amendment violations related to his conditions of confinement, food tampering, medical treatment and the use of excessive force.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it is supported by affidavits or other suitable evidence, and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(a). The moving party has the burden to show the absence of disputed material facts by providing the court with portions of pleadings, depositions, and affidavits which support the motion. Fed R. Civ. P. 56;
The party opposing the motion must set forth facts showing that there is a genuine issue for trial, and must do more than show that there is some doubt or speculation as to the true nature of the facts.
Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude.
The rights of an involuntarily committed individual should be evaluated under the standard applied to claims brought by pretrial detainees.
Coffeey contends that he was subjected to unconstitutional conditions of confinement when he was placed in a "side room" from May 29, 2013 through June 3, 2013 without sheets, blankets, pens, paper, or phone and mail privileges. Dkt. No. 1 at 4.
"The Constitution does not mandate comfortable prisons but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment."
Coffeey's treatment team made the decision to confine him to the "side room" for four days due to Coffeey's abusive, threatening and impulsive behavior. Dkt. No. 26-1 at 4-5; Dkt. No. 26 at 37-52. The decision to renew the Order confining Coffeey to "constant observation" was made after Coffeey continued to display this behavior and threatened to harm himself.
With respect to the conditions imposed during Coffeey's side room confinement, i.e., the deprivation of sheets, blankets, pens, pencils and a loss of mail and phone privileges, (Compl. at 4), while the conditions may have been unpleasant, Coffeey has failed to present any evidence establishing that the conditions posed a threat to his health or safety.
Even assuming that Coffeey established that his conditions of confinement were objectively inhumane, summary judgment is nonetheless warranted based upon the lack of any evidence that would permit a rational jury to conclude that Hollenbeck or Gonzalez were responsible or personally involved in the alleged unconstitutional conditions. "`[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'"
Conspicuously absent from Dorris letter are the names or any identifying features of any individuals responsible for Coffeey's conditions of confinement in the side room. Moreover, the record is void of any evidence establishing that Hollenbeck or Gonzalez were responsible or involved in the decision to confine Coffeey to the side room or the restrictions imposed during that confinement. Hollenbeck asserts that he did not have any contact with Coffeey until June 4, 2013. Hollenbeck Decl. (Dkt. No. 24-5) ¶ 21. Coffeey has not come forward with any admissible evidence to suggest otherwise. Similarly, Gonzalez avers that he was not personally involved in any incident involving Coffeey's confinement and had no knowledge of the confinement until after the Constant Observation Order was discontinued. Gonzalez Decl. ¶¶ 29-30. Coffeey has failed to present any admissible evidence establishing what personal involvement Gonzalez had with respect to his confinement in the side room.
Accordingly, the undersigned recommends that defendants' motion for summary judgment on this ground be granted.
Coffeey asserts that on June 7, 2013 and June 8, 2013, Hollenbeck took food off of his tray, took bites out of his food and returned the food to Coffeey and directed him to "eat it[.]" Dkt. No. 1 at 4.
The Eighth Amendment requires that prisoners be provided with "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it."
Here, Coffeey does not specifically allege where the alleged food tampering occurred. The evidence establishes that Coffeey was confined in Wards 405 and 504 during the relevant time period. Dkt. No. 26 at 12-17. In his statement to Nester, Hollenbeck claimed that he was not working on Ward 504 on June 7, 2013 and June 8, 2013.
Coffeey alleges that while he was confined for four days in the "side room[,]" he was not seen "regularly" by a doctor.
An Eighth Amendment claim for medical indifference, has two necessary components, one objective and the other subjective.
Under the subjective element, a prison official acts with a culpable state of mind when "the official knows of and disregards an excessive risk to inmate health or 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."
In this case, even assuming that Coffeey's mental condition was a "serious medical condition" sufficient to establish the objective element of the Eighth Amendment analysis, Coffeey's conclusory allegation that "he did not see a doctor regularly," is not supported by admissible proof. Coffeey does not present any evidence that he requested and was denied medical treatment. Indeed, the record belies Coffey's claim and establishes that Coffeey was treated by physicians and nursing staff, and continually monitored by SCTAs during his four day confinement in the side room. Dkt. No. 25 at 7, 15-19, 25-26, 28-57; Dkt. No. 26 at 39-51; Dkt. No. 26-1 at 2-10, 13, 16-18, 25, 31. During an examination by Dr. Elizabeth Farnum on June 3, 2013, Coffeey complained that he did not see a doctor but when he was asked why he needed to be seen, Coffeey stated that he did not request a doctor and that he was not experiencing any problems. Dkt. No. 26-1 at 21. Coffeey's "dissatisfaction" with his level of care and course of treatment does not support a finding of deliberate indifference.
Moreover, Coffeey does not present any evidence from which a reasonable fact finder could conclude that defendants acted with a "sufficiently culpable mental state."
Coffeey claims that on June 10, 2013, Hollenbeck slammed his head into a window screen and put his hands on Coffeey's throat.
The objective element is "responsive to contemporary standards of decency" and requires a showing "that the injury actually inflicted is sufficiently serious to warrant Eighth Amendment protection."
The subjective element requires a plaintiff to demonstrate the "necessary level of culpability, shown by actions characterized by wantonness."
In this case, Coffeey fails to satisfy either prong of the analysis. In viewing the facts in the light most favorable to Coffeey, the evidence fails to establish that he suffered any injury as a result of the alleged altercation with Hollenbeck. Indeed, Coffeey does not plead that he sustained any injury as a result of the alleged altercation. The progress notes and daily logs for June 10, 2013 do not contain any reference to any injury that Coffeey allegedly sustained and there is no medical record of any assault. Dkt. No. 25-1 at 15-17, 19-21; Dkt. No. 26 at 15.
With respect to the subjective prong, the credible evidence fails to establish that Hollenbeck acted with a culpable state of mind. Hollenbeck asserts that he did not work on Ward 405 on June 10, 2013 and denies that the incident occurred at any time.
Coffeey claims that Hollenbeck threatened to "take [Coffeey] out in a body bag."
Accordingly, it is recommended that Coffeey's claim based on verbal threats be dismissed and summary judgment awarded to defendants on this ground.
Supervisory officials may not be held liable merely because they held a position of authority.
Writing letters and grievances to a defendant is insufficient to establish notice and personal involvement.
Absent an underlying constitutional violation by a subordinate, there can be no supervisory liability.
Here, construing the complaint liberally, Coffeey alleges that Dorr notified Gonzalez of constitutional violations and that Gonzalez failed to remedy the alleged violations. Cornpl. at 4, 9-13. Coffeey does not allege, nor does the record support the conclusion that Gonzalez directly participated in any alleged constitutional violations. Gonzalez concedes that he received Dorr's letters and referred Dorr's concerns to staff members. Gonzalez Decl. VI 13-14, 17-18. Gonzalez's responses to Dorr denying Coffeey's accusations are insufficient to establish personal involvement in any incident.
Moreover, as discussed
Defendants argue that even if Coffeey's claims are substantiated, they are nevertheless entitled to qualified immunity. Qualified immunity generally protects government officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Here, the second prong of the inquiry need not be addressed with respect to Coffeey's claims because, as discussed
For the reasons stated above, it is hereby:
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Karl Ahlers, Marcy, NY, pro se.
Hon. Eric T. Schneiderman, Cathy Y. Sheehan, Esq., Asst Attorney General, of Counsel, Albany, NY, for Defendants.
DAVID N. HURD, District Judge.
Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b) (1).
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED; and
2. The complaint is DISMISSED in its entirety.
The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
ROANDOLPH F. TREECE, United States Magistrate Judge.
Plaintiff Karl Ahlers brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourth, Fifth, and Fourteenth Amendment rights as a result of a room search conducted by staff members of the Central New York Psychiatric Center (CNYPC), where Plaintiff is involuntarily civilly committed. See Dkt. No. 1, Compl. Defendants now move for Summary Judgment. See Dkt. No. 18. Plaintiff opposes the Motion. See Dkt. No. 20. For the reasons stated below, we recommend that the Defendants' Motion be
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).
To defeat a motion for summary judgment, the non-movant 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)).
Except where noted, the following facts are undisputed.
At all times relevant to the Complaint, Plaintiff was an involuntarily civilly committed resident at CNYPC. Dkt. No. 18-2, Defs.' Statement of Material Fact Pursuant to Local Rule 7.1(a)(3) ("hereinafter 7.1 Statement"), at ¶ 1. On Wednesday, February 1, 2012, members of CNYPC's security team, searched Ahler's assigned room at CNYPC. Id. at ¶¶ 3, 8, & 12.As a result of the search, security staff found and removed from Ahler's room "2 screws missing fluorescent light/screws loose on desk, 3 ketchup, 3 Lorna Doones [cookies], 1 gallon size plastic bags [sic], 1 quart plastic bag, 1 sandwich bag, 3 mayonnaise relish packets." Id. at ¶¶ 13 & 14. In violation of CNYPC's policy, Plaintiff's possessions were not returned to their original state after the search. His bedding was thrown on the floor and walked on by staff. Compl. at ¶¶ 5(g) & (s). As a result, Plaintiff had to sleep on dirty sheets, or without sheets. Id. at ¶ 5(h). Prior to the search, Plaintiff had verbally complained to CNYPC's business office regarding his phone bill. Dkt. No. 18-6, Karl Ahlers Dep., dated Mar. 12, 2013, at pp. 63-66.
Plaintiff alleges that, without any probable cause or other suitable justification, Defendant Comstock supervised an unconstitutional search of his room, and that Defendants Miller and Nowicki are liable for this search in their supervisory capacity. See generally Compl.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. Amend. IV. "The purpose of the fourth amendment [] is to protect people from arbitrary and oppressive governmental conduct." Aiken v. Nixon, 236 F.Supp.2d 211, 230 (N.D.N.Y. Sept.30, 2002). However, "involuntarily committed individuals do not have a right to privacy in their cells, and therefore cannot challenge a cell search under the Fourth Amendment." See Ahlers v. Bosco, 2012 WL 6649191, at *3 (N.D.N.Y. Dec.20, 2012) (DNH) (citing Lombardo v. Holanchock, 2008 WL 2543573, at *8 (S.D.N.Y. Jun.24, 2008), and rejecting a similar claim bought by Plaintiff Karl Ahlers regarding a search of his sleeping quarters). Likewise, Plaintiff's claims that the search violated CNYPC Policy 5.15 are also insufficient to state a cause of action under § 1983. Id. (quoting Sealed Plaintiff v. Sealed Defendant, 332 F.3d 51, 57 n. 5 (2d Cir.2003) for the proposition that "[e]levating a state-mandated procedure to the status of a constitutionally protected liberty or property interest, would make process an end in itself rather than a requirement whose constitutional purpose is to protect a substantive interest in which the individual has a claim of entitlement") (further citing Taylor v. Fischer, 841 F.Supp.2d 734, 738 (W.D.N.Y.2012) for the proposition that "Plaintiff's allegations that defendants failed to follow New York regulations and prescribed procedures with respect to the disciplinary charges against him also fail to support his § 1983 claims. Those alleged procedural violations do not implicate plaintiff's constitutional rights.").
Plaintiff next argues that the search of his room was conducted in retaliation for verbal complaints he had previously made to CNYPC's business office, regarding his phone bills. See Ahlers Dep. at pp. 63-66.
Claims of retaliation fall within the protections of the First Amendment. Because of the relative ease with which claims of retaliation can be invoked, courts should examine such claims "with skepticism and particular care." Colon v. Coughlin, 58 F.3d at 872. To prevail on a section 1983 retaliation claim plaintiff must prove: (1) that he or she was engaged in constitutionally protected activity, (2) the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action in that alleged conduct was substantially motivated by the protected activity. Gill v. Pidlypchak, 389 F.3d at 380 (citing Dawes v. Walker, 239 F.3d at 492); see also Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir.2002).
However, here, even if we accept that Plaintiff was engaged in a protected exercise,
Accordingly, we recommend that Defendants' Motion for Summary Judgment be
Ahlers claims that his right to due process under the Fifth and Fourteenth Amendments were violated when, contrary to facility procedure, as set forth in § 5.15 of the CNYPC Handbook, he was not given a receipt for the items that were confiscated from his room and because his room was not put back in its original condition after the search. Ahlers Dep. at pp. 50-52.
To the extent that Plaintiff is claiming he had a due process property interest in the items confiscated from his room, such a claim must fail:
Ahlers v. Bosco, 2012 WL 6649191, at *4-5 (N.D.N.Y. Dec.20, 2012) (quoting Collins v. Goord, 438 F.Supp.2d 399, 418-19 (S.D.N.Y.2006)); see also Smith v. Hogan, 2011 WL 4343978, at *9 (N.D.N.Y. Aug.1, 2011) ("This Circuit has held that `confiscation . . . [does] not constitute a Fourteenth Amendment violation for loss of property because of the availability of state court postdeprivation remedies' in the New York Court of Claims.") (quoting Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996)).
Since Ahlers's had an adequate remedy to address the confiscation of his property, and his claim that his room was not put back in order is based upon an alleged violation of CNYPC's room policy, we recommend that Defendants' Motion for Summary Judgment as to Plaintiff's Fourteenth Amendment due process claims be
Although Plaintiff did not explicitly identify conditions of confinement as a cause of action in his Complaint, the Second Circuit has held that in addressing pro se pleadings, a court must read the plaintiff's papers liberally and interpret them to raise the strongest arguments that they suggest. Lane v. Carpinello, 2009 WL 3074344, at *6 (N.D.N.Y. Sept.24, 2009)). Examining Plaintiff's papers liberally, it is possible that his claim that during the search of his room, his sheets were thrown on the floor and stepped on, but not replaced with clean sheets, raises a conditions of confinement claim.
The Eighth Amendment's proscription against the cruel and unusual punishment of convicted criminals is inapplicable to involuntarily civilly confined plaintiffs. Youngberg v. Romeo, 457 U.S. 307, 312, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Rather, any claims arising from the conditions under which involuntarily civilly committed persons are confined are evaluated under the Due Process Clause of the Fourteenth Amendment. Dove v. City of New York, 2007 WL 805786, at *7 (S.D.N.Y. March 15, 2007). However, in practice, courts apply the same legal standards when analyzing either type of claim. Butler v. Suffolk Cnty., 289 F.R.D. 80, 92 (E.D.N.Y.2013).
In order to state a valid conditions of confinement claim under the Eighth Amendment, a plaintiff must allege that (1) the conditions were so serious that they constituted a denial of the "minimal civilized measure of life's necessities," and (2) the prison officials acted with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 297-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (citation omitted) (cited in Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir.1996)). In Phelps v. Kapnolas, 308 F.3d 180 (2d Cir.2002), the Second Circuit set out in detail the requirements that a plaintiff must prove in order to make out a claim that the conditions of his confinement violated the Eighth Amendment:
Phelps v. Kapnolas, 308 F.3d at 185-86.
Here, Plaintiff has claimed that he was forced to sleep on dirty sheets for approximately four nights.
Accordingly, to the extent that Plaintiff may have attempted to raise a conditions of confinement claim regarding his bedding, we recommend that such a claim be
Defendants have argued that they are entitled to qualified immunity; however, having found no evidence of any underlying constitutional violations, we need not, and do not, discuss qualified immunity.
For the reasons stated herein, it is hereby
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.
Bradford Applegate, pro se.
Hon. Andrew M. Cuomo, Office of the Attorney General State of New York, Megan M. Brown, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
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 Peeble'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
DAVID E. PEEBLES, United States Magistrate Judge.
Plaintiff Bradford Applegate, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this civil rights action pursuant to 42 U.S.C. § 1983 against the Deputy Commissioner and General Counsel of the New York State Department of Correctional Services ("DOCS") and several other DOCS employees, complaining of diverse constitutional violations alleged to have occurred during the time of his confinement. In his complaint, Applegate asserts claims stemming from various events at three separate correctional facilities alleging inter alia, the use of excessive force, acts of retaliation, deprivation of procedural due process, and interference with communications relating to legal matters, and seeks recovery of compensatory and punitive damages.
Certain of plaintiff's claims were previously dismissed by the court for failure to state a claim upon which relief may be granted. Now that issue has been joined and pretrial discovery has concluded, the defendants remaining in the action have moved for summary judgment requesting dismissal of the balance of plaintiff's claims, both procedurally based upon his failure to properly exhaust available administrative remedies with regard to a majority of his causes of action, and on the merits. For the reasons set forth below I recommend that the motion, which plaintiff has not opposed, be granted and that Applegate's remaining claims be dismissed.
At the times relevant to his complaint, plaintiff was a New York State prison inmate entrusted into the custody of the DOCS. See Generally Complaint (Dkt. No. 1). Beginning in or around May of 1998, plaintiff was assigned to the Greenhaven Correctional Facility ("Greenhaven"). Id. ¶¶ 22-23. Plaintiff was later transferred into the Upstate Correctional Facility ("Upstate") in July of 1999, where he remained until December, 1999 when he was reassigned to the Elmira Correctional Facility ("Elmira").
After sending a letter on February 21, 1999 to Greenhaven Superintendent C. Artuz complaining of Corrections Officer Carlson's conduct, the harassment experienced by the plaintiff escalated. Complaint (Dkt. No. 1) ¶¶ 30-38. Plaintiff was patfrisked on March 4, 1999 by defendant Carlson as part of a routine security measure implemented for inmates returning to their cell blocks from their workstations in order to detect weapons and other materials attempted to be smuggled out of the area. Carlson Aff. (Dkt. No. 52-13) ¶¶ 14-25; Complaint (Dkt. No. 1) ¶¶ 36-37. Plaintiff asserts that during the course of that pat-frisk defendant Carlson "savagely grabbed [him] by the back of his shirt and attempted to slam his face into the wall." Complaint (Dkt. No. 1) ¶¶ 36-37. Defendant Carlson vociferously denies that allegation, countering that during the course of the March 4, 1999 pat-frisk Applegate engaged in provocative behavior, taking his hands off of the wall where he had been instructed to place them, and turning toward the left prior to conclusion of the pat-frisk, necessitating that Carlson take appropriate counter-measures to ensure the safety and security of corrections officers and other inmates present in the area at the time. Carlson Aff. (Dkt. No. 52-13) ¶¶ 14-23. Defendant Carlson denies having used unnecessary force during the encounter, and specifically denies attempting to push Applegate's face in the wall or otherwise cause him harm. Id. ¶ 19. Plaintiff was not injured as a result of the incident. Brown Aff. (Dkt. No. 52-4), Exh. A at 55.
In or about April of 1999, following an altercation involving several inmates at Greenhaven, plaintiff was charged with participating in the fight and with possession of a weapon based upon the discovery of a sharpened can-top which, he contends, "was planted on his person by prison guards[.]" Complaint (Dkt. No. 1) ¶ 54. Although plaintiff's complaint provides no specifics regarding any ensuing disciplinary proceedings, he was apparently found guilty, following a hearing, of multiple infractions and sentenced to a period of seventy-five days of keeplock confinement for fighting, and an additional six months of SHU confinement based upon the weapon possession charge. Id. ¶ 55.
In mid-July of 1999, plaintiff was transferred to Upstate and placed in that facility's SHU. Plaintiff maintains that while there he was deprived of law library materials for a period of over three months, and during that time was hampered in his ability to pursue a state court application to vacate his state court judgment of conviction and to pursue discovery in Applegate I. Complaint (Dkt. No. 1) ¶¶ 57-71.
In or about December of 1999, after serving his full keeplock and SHU sentences at Upstate, plaintiff was transferred into Elmira. Id. ¶ 74. There, following a fight in March of 2000 involving the plaintiff, a search of his cell revealed an unworked length of metal, claimed by him to have been planted in his locker by staff members. Id. ¶ 75.Plaintiff attributes the incident to his "repeated attempts" to amend or supplement his complaint in Applegate I. Id. Although once again plaintiff's complaint is lacking in specifics in this regard, disciplinary charges were apparently lodged against him as a result of the incident, leading to the imposition of thirty days of keeplock confinement for fighting and 150 days of SHU confinement for possession of a weapon. Id. ¶ 76.
Plaintiff commenced this action on February 26, 2002.
Now that pretrial discovery, which included the taking of plaintiff's deposition, has been completed the remaining defendants having appeared in the action have moved for the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 52. In their motion, defendants assert that with the exception of plaintiff's denial of court access claim, each of plaintiff's causes of action is procedurally barred based upon his failure to exhaust available administrative remedies before commencing suit. Id. Defendants also contend that plaintiff's remaining claims are lacking in merit, as a matter of law, additionally asserting a lack of personal involvement on the part of defendant F.G. Bennett, Jr., the Superintendent at Elmira, in the constitutional deprivations alleged, and renew their claim of entitlement to qualified immunity. Id. Defendants' motion, which plaintiff has not opposed, is now ripe for determination and has 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).
Following the return of this matter to this court from the Second Circuit, summonses were issued by the clerk on September 2, 2004 and forwarded for service to the United States Marshals Service.
A plaintiff's pro se status entitles him or her to a certain degree of leniency insofar as service of process is concerned; courts generally favor resolution of a case on its merits rather than on the basis of a procedural technicality. Poulakis v. Amtrak, 139 F.R.D. 107, 109 (N.D.Ill.1991). When a plaintiff proceeds in forma pauperis, such as is the case in this instance, the court is obligated to issue the plaintiff's process to the United States Marshal, who must in turn effect service upon the defendants, thereby relieving the plaintiff of the burden to serve process once reasonable steps have been taken to identify for the court the defendants named in the complaint. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996). That does not mean, however, that a pro se plaintiff may stand idly by upon being notified that efforts by the U.S. Marshals Service to serve a particular defendant have been unsuccessful. VanDiver v. Martin, 304 F.Supp.2d 934, 938-43 (E.D.Mich.2004). In such instances it is incumbent upon the plaintiff to develop, though pretrial discovery or otherwise, any additional information necessary to permit service by the United States Marshals Service. See VanDiver, 304 F.Supp.2d at 942.
In this case defendant Gardner has not been served or otherwise appeared in the action within the appropriate time period. Based upon a review of the record I am unable to find good cause justifying plaintiff's failure to effectuate timely service, and find no sufficient basis presented to exercise discretion in favor of extending the governing period of service. Accordingly, since this court has never acquired jurisdiction over him, I recommend dismissal of the complaint as against defendant Gardner, without prejudice. See, e.g., Michelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F.Supp. 1279, 1282 (S.D.N.Y.1989) (citing Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 245-46 (1946)) (court lacks jurisdiction until defendants properly served with summons and complaint).
Before turning to the merits of plaintiff's claims, a threshold issue to be addressed is the legal significance, if any, of his failure to oppose defendants' summary judgment motion, and specifically whether that omission automatically entitles defendants to dismissal of Applegate's complaint, based upon their motion.
This court's rules provide that
N.D.N.Y.L.R. 7.1(b)(3). While pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, see Jemzura v. Public Serv. Commn, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, C.J.)), the failure of such a plaintiff to oppose a summary judgment motion does not preclude the court from deciding the motion. Robinson v. Delgado, No. 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, No. 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F.Supp. 106, 106-07 (N.D.N.Y.1997) (Pooler, J. & Hurd, M.J.). As can be seen by the face of Local Rule 7.1(b)(3), however, before summary judgment can be granted under such circumstances the court must review the motion to determine whether it is facially meritorious. See Allen v. Comprehensive Analytical Group, Inc., 140 F.Supp.2d 229, 231-32 (N.D.N.Y.2000) (Scullin, C.J.); Leach v. Dufrain, 103 F.Supp.2d 542, 545-46 (N.D.N.Y.2000) (Kahn, J.).
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security 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, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). 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, 106 S.Ct. at 2510. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When summary judgment is sought, the moving party 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, 106 S.Ct. at 2511 n. 4; Security Ins., 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 issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
In their motion defendants assert that with the exception of his court access claims, which appear to have been the subject of more than one grievance filed over time, plaintiff's claims are procedurally barred based upon his failure to exhaust available, administrative remedies before commencing suit. While acknowledging that some of plaintiff's claims, including claims of harassment, were the subject of letters allegedly written by the plaintiff to prison officials, defendants assert that those letters do not act as a surrogate for the filing and pursuit to completion of a grievance.
With an eye toward "reduc[ing] the quantity and improv[ing] the quality of prisoner suits[,]" Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 988 (2002), Congress altered the inmate litigation landscape considerably through the enactment of the Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), imposing several restrictions on the ability of prisoners to maintain federal civil rights actions. An integral feature of the PLRA is a revitalized exhaustion of remedies provision which requires 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); see Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2382 (2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007). This limitation is intended to serve the dual purpose of affording "prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into courtl[,]" and to improve the quality of inmate suits filed through the production of a "useful administrative record." Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 914-15 (2007) (citations omitted); see Woodford, 548 U.S. at 91-92, 126 S.Ct. at 2386; see also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004). "[T]he 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, 534 U.S. at 532, 122 S.Ct. at 992 (citation omitted).
In a series of decisions rendered since the enactment of the PLRA, the Second Circuit has crafted a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. Macias, 495 F.3d at 41; see Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004). Under the prescribed algorythm, a court must first determine whether administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. If such a remedy existed and was available, the court must next examine whether the defendants have forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it or whether, through their own actions, by preventing the exhaustion of plaintiff's remedies, they should be estopped from asserting failure to exhaust as a defense. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event the proffered defense survives these first two levels of scrutiny, the court lastly must examine whether special circumstances nonetheless exist and "have been plausibly alleged" to justify the plaintiff's failure to comply with the applicable administrative procedural requirements.
New York prison inmates are subject to an Inmate Grievance Program ("IGP") established by the Department of Correctional Services ("DOCS"), and recognized as an "available" remedy for purposes of the PLRA. See Mingues v. Nelson, No. 96 CV 5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004) (citing Mojias v. Johnson, 351 F.3d 606 (2d Cir.2003) and Snider v. Melindez, 199 F.3d 108, 112-13 (2d Cir.1999)). The IGP consists of a three-step review process. First, a written grievance is submitted to the Inmate Grievance Review Committee ("IGRC") within twenty-one days of the incident.
In this instance the record discloses that plaintiff did not follow either of these procedures with regard to his claims of retaliation, instead by-passing the grievance process altogether by allegedly writing letters to the facility superintendent. It is well-established that such communications, however, are insufficient to satisfy the PLRA's exhaustion requirement. See, e.g., Houze v. Segarra, 217 F.Supp.2d 394, 397 (S.D.N.Y.2002).
Despite an inmate's entitlement under most circumstances to file and pursue a grievance in accordance with the IGP, there are circumstances under which the grievance procedure nonetheless is deemed not to have been available to an inmate plaintiff. See Hemphill, 380 F.3d at 687-88. Thus, for example, "[e]xhaustion may be considered unavailable in situations where plaintiff is unaware of the grievance procedures or did not understand it, . . . or where defendants' behavior prevents plaintiff from seeking administrative remedies." Hargrove, 2007 WL 389003, at *8 (citations omitted) (noting, for example, that a defendant's failure to advance plaintiff's grievances or the issuance of threats against an inmate to deter the filing of a grievance may effectively render the administrative process unavailable). When testing the availability of administrative remedies in the face of claims that undue influence from prison workers has caused a plaintiff inmate to forego the formal grievance process, courts employ an objective test, examining whether "a similarly situated individual of ordinary firmness [would] have deemed them available." Id. at 688 (internal quotations and citations omitted); see Hargrove, 2007 WL 389003, at *8.
The second prong of the Hemphill analysis focuses upon "whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Hemphill, 380 F.3d at 686 (citations omitted).
In their answer, defendants have asserted failure to exhaust as an affirmative defense. See Answer (Dkt. No. 41) ¶ 14. Since the record does not disclose any circumstances which would warrant a finding that defendants have relinquished the affirmative defense of non-exhaustion, I find no basis to conclude that the defendants have forfeited their right to assert an exhaustion defense.
The third, catchall factor to be considered under the Second Circuit's prescribed exhaustion rubric focuses upon whether special circumstances have been plausibly alleged which, if demonstrated, would justify excusing a plaintiff's failure to exhaust administrative remedies. Hemphill, 380 F.3d at 689; see also Giano v. Goord, 380 F.3d 670, 676-77 (2d Cir.2004); Hargrove, 2007 WL 389003, at *10. Among the circumstances potentially qualifying as "special" under this prong of the test include where a plaintiff's reasonable interpretation of applicable regulations regarding the grievance process differs from that of prison officials and leads him or her to conclude that the dispute is not grievable. Giano, 380 F.3d at 676-77; see also Hargrove, 2007 WL 389003, at *10 (quoting and citing Giano). In this instance plaintiff does not allege, nor does the record disclose, any special circumstances which would justify excusing the plaintiff from the PLRA exhaustion requirement.
In sum, the record supports a finding, as defendants now assert, that with the exception of his court access claims, plaintiff has forfeited his right to pursue the remaining cause of action in his complaint by failing to satisfy the exhaustion requirement before filing this action. I therefore recommend that the portion of defendants' motion seeking dismissal of plaintiff's claims, with the exception of the court access claim, be granted on this procedural basis.
A plaintiff's constitutional right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citations and quotations omitted); Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir.1999). The lynchpin inquiry in deciding claims of excessive force against prison officials is "whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 998 (1992) (applying Whitley to all excessive force claims); Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied sub nom., John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462 (1973)).
Eighth Amendment analysis requires both objective and subjective examinations. Hudson, 503 U.S. at 8, 112 S.Ct. at 999; Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 2324 (1991); Griffen, 193 F.3d at 91. The objective prong of the inquiry is contextual, and relies upon "contemporary standards of decency." Hudson, 503 U.S. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290 (1976)). When addressing this component of an excessive force claim under the Eighth Amendment calculus, the court can consider the extent of the injury suffered by the inmate plaintiff. While the absence of significant injury is certainly relevant, it is not dispositive, as the defendants seemingly suggest. Hudson, 503 U.S. at 7, 112 S.Ct. at 999. The extent of an inmate's injury is but one of the factors to be considered in determining a prison official's use of force was "unnecessary and wanton"; courts should also consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Whitley, 475 U.S. at 321, 106 S.Ct. at 1085 (citing Johnson, 481 F.2d at 1033). Under Hudson, even if the injuries suffered by a plaintiff "`were not permanent or severe'", a plaintiff may still recover if "`the force used was unreasonable and excessive.'" Corselli v. Coughlin, 842 F.2d 23, 26 (2d Cir.1988) (quoting Robinson v. Via, 821 F.2d 913, 924 (2d Cir.1987)).
In his affidavit Officer Carlson notes that the incident occurred during a routine pat-frisk of all inmates, accomplished for security reasons. Carlson Decl. (Dkt. No. 52-13) ¶¶ 4-13. Officer Carlson also asserts that the use of force was necessitated by plaintiff's removal of his hand from the walls during the pat-frisk despite instructions that he keep his hands "high and flat on the wall" . . . and not "take them down until [he was] told to do so." Id. ¶ 14. Defendant denies attempting to push the plaintiff's face into the wall and any intent to cause bodily harm, instead stating that he simply took measures calculated to respond to what he believed was a threat of resistence by the inmate. Id. ¶¶ 22-23. Under these circumstances, from an objective point of view, I am unable to find that plaintiff's excessive force claim arises to a level of constitutional significance. See Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir.1997) (the fact that the plaintiff, who claims he was "bumped, grabbed, elbowed, and pushed" by the defendants did not rise to a level of constitutional significance since plaintiff did "not maintain that he experienced any pain or injury as a result of the physical contact"); Cunningham v. Rodriguez, No. 01 Civ. 1123, 2002 WL 31654960, at *5 (S.D.N.Y. Nov. 22, 2002). Accordingly I recommend a finding that objectively, plaintiff's excessive force claim is legally insufficient.
Turning to the subjective element, as defendants argue, to prevail plaintiff must establish that defendant acted with a sufficiently culpable state of mind. Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir.1994) (citing Hudson, 503 U.S. at 8, 112 S.Ct. at 999). That determination is informed by four factors, including 1) the need for application of force; 2) the relationship between that need and the amount of force used; 3) the threat reasonably perceived by the responsible officials; and 4) any efforts made to temper the severity of a forceful response. Whitley, 475 U.S. at 321, 106 S.Ct. at 1085. The principal focus of this inquiry "turns on `whether force was applied in a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm.'" Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d at 1033. When considering the subjective element of the governing Eighth Amendment test, a court must consider that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness since, as the Supreme Court has noted,
Hudson, 503 U.S. at 9, 112 S.Ct. at 1000 (citations omitted); Velasquez v. O'Keefe, 899 F.Supp. 972, 973 (N.D.N.Y.1995) (McAvoy, C.J.) (quoting Hudson, 503 U.S. at 9, 112 S.Ct. at 1000); see Romaine v. Rewson, 140 F.Supp.2d 204, 211 (N.D.N.Y.2001) (Kahn, J.). Even a de minimis use of physical force can constitute cruel and unusual punishment if it is "repugnant to the conscience of mankind."
Analyzing the subjective element, utilizing this test as a backdrop, I conclude that the record does not support a finding of requisite subjective intent. Accordingly, having found that when presented with the evidence now before the court no reasonable factfinder could conclude that plaintiff has met either the objective or the subject component of the controlling test, I recommend the entry of summary judgment dismissing his excessive force claim in its entirety.
Another primary focus of plaintiff's complaint in this action is his retaliation claim. Plaintiff contends that in retaliation for his having brought and prosecuted the claims raised in Applegate I, prison officials at Greenhaven engaged in retaliatory conduct against him. Plaintiff also alleges that after writing to Greenhaven Superintendent C. Artuz regarding harassment on February 21, 1999, he was the subject of further pat-frisks and the use of excessive force by Corrections Officer Carlson on March 4, 1999. Defendants also seek dismissal of this cause of action, asserting that it is stated in purely conclusory terms and that the record is lacking in evidence to establish the requisite connection between the various actions taken against plaintiff and the events which allegedly precipitated them.
In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that 1) he or she engaged in protected activity; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action-in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other grounds, Phelps v. Kapnolas, 308 F.3d 180 (2d Cir.2002). If the plaintiff succeeds in meeting this burden, then the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct" in order to avoid liability, Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. Put another way, if taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).
Now that the matter has progressed to the summary judgment stage, it is no longer sufficient for the plaintiff to engage in mere conjecture; instead, in response to the defendants' motion it was incumbent upon Applegate to come forward with evidence from which a reasonable factfinder could find the requisite nexus between his pursuit of claims in Applegate I-unquestionably activity which is constitutionally protected and the adverse actions taken against him. See Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. It should be noted that none of the defendants in this action were defendants in Applegate I, and that matter appears to have implicated actions taken by DOCS employees at prisons other than those involved in this case, including the Shawangunk Correctional Facility, the Woodburn Correctional Facility, the Downstate Correctional Facility, the Southport Correctional Facility, and the Clinton Correctional Facility. Simply stated, the record discloses no basis to conclude that the defendants in this action had knowledge of the Applegate I suit, nor any basis upon which a factfinder could conclude that the pursuit of plaintiff's claim in Applegate I led to retaliatory animus on the part of the defendants named in this action.
As can be seen, evaluation of claims of retaliation is a particularly fact-laden exercise, since such claims revolve around the engaging in protected conduct, and require establishment of a nexus between that conduct and the adverse action ultimately taken. Because plaintiff's retaliation claims have been alleged in only conclusory form, and are not supported by evidence now in the record establishing a nexus between any protected activity and the adverse actions complained of, I recommend that defendants' motion for summary judgment dismissing plaintiff's retaliation claims be granted. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983).
Without question, an inmate's constitutional right to "meaningful" access to the courts is firmly established. Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495 (1977) (citations and internal quotation marks omitted). Although in Bounds the Supreme Court held that this right of access requires prison authorities "to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law[,]" id. at 828, 97 S.Ct. at 1498, the Court later clarified that
Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180 (1996) (internal quotations and citations omitted). Instead, to prevail on such a claim an inmate "must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Id. In other words, to establish a violation of the right of access to the courts, a plaintiff must demonstrate that defendants' interference caused him or her actual injury-that is, that a "nonfrivolous legal claim had been frustrated or was being impeded" as a result of defendants' conduct. Id. at 353, 116 S.Ct. at 2181.
Plaintiff's court access claims surround the alleged inadequacy of law library facilities at Upstate. See Complaint (Dkt. No. 1) ¶¶ 58-60; see also Brown Aff. (Dkt. No. 52-4) Exh. A at 21-23. Plaintiff asserts that because it was a new facility at the time of his transfer there, Upstate did not then contain a fully stocked law library.
There is another, equally compelling reason for dismissing plaintiff's court access claims. Aside from Corrections Officer Gardner, who was never served and who plaintiff agrees was a mere "pawn" and could not have changed the system at Upstate, there is no one among the named defendants in this case who, plaintiff has demonstrated, had personal involvement in the failure to provide law library facilities. Since personal involvement in a constitutional deprivation is a prerequisite to finding liability, see 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) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282 (1978)), plaintiff's failure to name any defendant personally involved in that deprivation warrants dismissal of the court access claim.
Among the defendants named in plaintiff's complaint is F.G. Bennett, the Superintendent at Elmira during the relevant period. Plaintiff's claims stemming from events at Elmira relate to the loss of property, a claim which was previously dismissed, as well as the alleged planting of a weapon in his cell. Defendants assert that this is an insufficient basis to hold defendant F.G. Bennett personally accountable for the constitutional claims set forth in plaintiff's complaint.
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright, 21 F.3d at 501 (citing Moffitt, 950 F.2d at 885 (2d Cir.1991) and McKinnon, 568 F.2d at 934 (2d Cir.1977)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986).
The record discloses no basis to find personal involvement, or indeed any awareness, on the part of defendant Bennett in connection with plaintiff's weapons planting allegation. While plaintiff does allege that defendant Bennett was aware of the stolen properly claim by virtue of his letter to the superintendent complaining of that incident, the mere writing of the letter to a superintendent, without response, is an insufficient basis to find personal involvement on the part of the Superintendent.
In sum, based upon the lack of any showing of personal involvement on the part of defendant Bennett in the constitutional violations alleged, I recommend his dismissal from the action on this independent basis.
Because plaintiff failed to file and pursue to completion a grievance regarding any of the claims asserted in his complaint, with the exception of the court access claim, the pursuit of those claims in this action is procedurally barred as a result of Applegate's failure to satisfy the PLRA's exhaustion requirement before filing suit. Turning to the merits of the claims advanced by the plaintiff, who has chosen not to file any response to defendants' summary judgment motion, I find that the record lacks any evidence from which a reasonable factfinder could conclude that excessive force was used by defendant Carlson against him during the course of a security-related pat-frisk, or that any of the defendants retaliated against him based upon, inter alia, his commencement of and pursuit of claims in Applegate I. Plaintiff's complaint is also deficient insofar as it alleges the denial of court access, based both upon the lack of any showing of involvement on the part of the defendants in the failure to provide adequate library facilities at Upstate over a brief period of time following its opening, and further based upon the fact that plaintiff has not established the existence of any injury or prejudice resulting from that alleged failure. Finally, I find that by virtue of plaintiff's failure to serve him, defendant Gardner is entitled to dismissal of plaintiff's claims against him, without prejudice, and further find that defendant Bennett is entitled to dismissal of all claims against him based upon the lack of any showing of personal involvement in the constitutional deprivations alleged.
RECOMMENDED, that defendants' motion for summary judgment (Dkt. No. 52) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety, without prejudice against defendant C.O. Gardner, but otherwise with prejudice.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. 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(e), 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.
Domingo Borges, Marcy, NY, pro se.
Gary M. Levine, New York State Office of the Attorney General, Rochester, NY, for Defendants.
CHARLES J. SIRAGUSA, United States District Judge.
Unless otherwise noted, the following facts are taken from defendants' Rule 56 Statement of Facts, which is uncontested.
The observation cell was "a strip cell which is used for one on one drug watch." (Pl.Dep.19). According to Department of Correctional Services' ("DOCS") Directive 4910, inmates suspected of ingesting contraband are kept in such observation rooms until they twice pass stools that are negative for contraband. (McGinnis Aff. [# 56], Ex. A). Plaintiff's observation cell contained only a sleeping platform. There was not a functioning toilet, though plaintiff was provided with a bedpan when he needed to urinate or defecate.
When he was placed in the isolation cell, plaintiff was given a paper gown, paper shoes, and a thin mattress. Plaintiff requested that he also be given a blanket, to which he was entitled pursuant to Directive 4910. However, staff refused to provide a blanket, because they were unaware that it was required by Directive 4910. More specifically, Corrections Officer ("C.O.") Scott Marshall ("Marshall") states, in an affidavit, that he inadvertently failed to provide plaintiff with a blanket, because he thought that plaintiff was supposed to be treated similarly to inmates who are on suicide watch, who do not receive blankets. (Marshall Aff. [# 55]).
On or about November 25th, plaintiff punched a glass window in his cell. Though he did not damage the glass, plaintiff later indicated that he thought his hand was broken. A staff nurse, Carmen Miller, R.N. ("Miller"), examined plaintiff's hand on November 26th and reported "zero swelling, zero deformity. Good range of motion. No apparent distress." (Pl.Dep.71). There is no indication that plaintiff's hand actually was fractured, or that he suffered anything more than temporary discomfort from punching the window.
Early on November 26, 2001, plaintiff covered the video camera monitoring his cell with a piece of his paper gown. Corrections staff gave plaintiff several direct orders to remove the obstruction, but he refused. Later that day, plaintiff asked Sergeant Gary Morse ("Morse") for a blanket. Morse spoke with Captain Joseph Bellinier ("Bellnier"), who indicated that, pursuant to Directive 4910, plaintiff was entitled to receive a pillow, sheets, and blanket. Bellnier also issued a written memorandum to that effect. However, as a result of plaintiff covering the video camera and refusing the direct orders to remove the obstruction, another supervisor, Captain William Wilcox ("Wilcox"), placed a deprivation order against plaintiff, depriving him of "bed linen, pillow, [and] blankets," though he was allowed to keep his mattress and gown. (Wilcox Aff. [# 68] Ex. A). In other words, although plaintiff would have received a blanket pursuant to Bellnier's order had he not covered the camera, he did not receive a blanket due to the resulting deprivation order.
In addition to the personal hygiene items detailed above, corrections staff also provided plaintiff with his regular meals during his stay in the observation room, though he alleges that he was denied breakfast on the morning of November 26th. (Pl.Dep.65-66).
During the three-day period that plaintiff was in the isolation cell, outside temperatures at Southport ranged between 62 and 40 degrees Fahrenheit. Plaintiff contends that a window in his cell was open during this period. However, while it is undisputed that plaintiff complained about the cell being cold, there is no indication that he complained specifically about the window being open. Plaintiff does not know what the temperature was in the cell, but he estimates that it was "probably 50 degrees, around there. Probably less." (Pl.Dep.27). In general, he contends that it was "cold." (Pl.Dep.24-26). Defendants, on the other hand, indicate that the indoor temperature during that period was not extremely cold. (Pl.Dep.26). Plaintiff did not suffer any physical injuries as a result of being kept in the isolation cell, except that he claims to have caught a cold, which lasted "a couple of days." (Pl.Dep.58-60).
Corrections officers observing plaintiff made notes in a log every 15 minutes during his stay in the observation room. (Bellnier Aff. [# 50] Ex. C). Many, if not most, of the entries indicate that plaintiff was lying on the bed, asleep or appearing to be asleep. Other entries indicate that plaintiff was exercising, walking around the cell, sitting on the floor, or looking out the window. (Id.). These observations appear accurate, based on the Court's viewing of randomly-selected portions of the videotape exhibits. Plaintiff was removed from the cell temporarily on the morning of November 27th, so that the cell could be cleaned.
Plaintiff had no problems or "bad blood or ill will" with any of the defendants prior to being placed in isolation. (Pl.Dep.8-9). Although plaintiff contends that corrections staff denied his requests for a blanket, he does not contend that they verbally abused him or used any type of epithet toward him.
Defendants filed the subject summary judgment motion on December 28, 2005. In support of the motion, defendants submitted affidavits from the individual defendants, the aforementioned video tapes, photographs of the cell, log notes, climatological data, and plaintiff's deposition transcript. The affidavits of Superintendent Michael McGinnis ("McGinnis"), Deputy Superintendent Michael Corcoran ("Corcoran"), Assistant Deputy Superintendent Lawrence Weingartner ("Weingartner"), Lt. David Augustine ("Augustine"), Lt. Richard Donahue ("Donahue"), and Lt. Charles Marshall ("Marshall") all essentially indicate that they did not personally know that plaintiff was in the observation cell or that he was complaining of being cold. On the other hand, Bellnier, Wilcox, Morse, Miller, Marshall, Sgt. Richard Moriarty ("Moriarty"), Sgt. John Morton ("Morton"), C.O. William Meck ("Meck"), C.O. James O'Herron ("O'Herron"), C.O. Kevin Qualey ("Qualey"), C.O. Lynn Rice ("Rice"), C.O. Douglas Westervelt ("Westervelt"), C.O. Alan Wheeler ("Wheeler"), and C.O. Byron Potter ("Potter"), all essentially indicate that they knew that plaintiff was in the observation cell, but deny that the cell was dangerously cold, though some acknowledge that plaintiff complained to them of being cold. And finally, defendant Thomas Giltner ("Giltner") indicates that he was not employed at Southport during the relevant three-day period. Defendants contend that: 1) all claims against them in their official capacities must be dismissed; 2) plaintiff has not established a factual basis for imposing supervisory liability; and 3) plaintiff's conditions of confinement did not violate the Eighth Amendment.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 511 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED.R.CIV.P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED.R.CIV.P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Turning, then, to the merits of plaintiff's claim, he is suing pursuant to 42 U.S.C. § 1983. The principles of law applicable to such claims are well settled:
* * *
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122, 127 (2d Cir.2004).
Here, plaintiff contends that defendants violated his Eighth Amendment rights by keeping him in a cold cell for three days without a blanket. For claims alleging unconstitutional conditions of confinement, it is clear that
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). The Second Circuit has stated the elements of such a claim as follows:
Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001) (citations and internal quotations omitted).
As to the objective prong of the analysis set forth above, "an Eighth Amendment claim may be established by proof that the inmate was subjected for a prolonged period to bitter cold." Id. (citing Corselli v. Coughlin, 842 F.2d 23 (2d Cir.1988)). However, an inmate cannot establish an Eighth Amendment claim merely by establishing that he was uncomfortably cold for a short period. For example, in Grant v. Riley, No. 89 Civ. 0359 (MBM), 1993 WL 485600 at *4 (S.D.N.Y. Nov.24, 1993), the court granted summary judgment for defendants, stating:
In this case, plaintiff was kept in an observation cell for three days, because corrections staff were attempting to recover contraband which plaintiff had ingested during a visit with his mother. Defendants' suspicions in this regard were well-founded, and they eventually recovered a quantity of marijuana inside a balloon, which apparently plaintiff had swallowed. Although plaintiff was not given a blanket, he was given a paper gown, paper slippers, and a thin mattress. In this regard, plaintiff was treated in the same manner as inmates on suicide watch. As to the mattress, the Court notes that it was a thin mattress pad that plaintiff actually used as both a shawl and a blanket. Plaintiff spent much of his time lying on the bed, covered with the "mattress," and apparently asleep. For reasons that no one has explained, a window in the cell was open, and the cell temperature was around 50 degrees, which undoubtedly and unfortunately made plaintiff uncomfortable. Plaintiff was provided with meals, personal hygiene items, and medical attention. Moreover, it is undisputed that plaintiff would have been provided with a blanket on November 26th if he had not violated facility rules by covering the security camera.
Overall, plaintiff does not allege that he suffered anything more than frustration and discomfort as a consequence of the coldness of his cell. Thus, his claim does not rise to the level of a condition of confinement that violates the Eighth Amendment. Moreover, even if plaintiff could establish the objective element of an Eighth Amendment claim, he has not submitted evidentiary proof in admissible form to refute defendants' affidavits averring that they were not subjectively deliberately indifferent to his condition. Further, even assuming, arguendo that plaintiff had established an Eighth Amendment violation as to some defendants, which he has not done, the official capacity claims and supervisory liability claims would nevertheless have to be dismissed, as plaintiff has not established any basis for them. Finally, Giltner would be entitled to summary judgment in any event, because there is no evidence that he was employed at Southport on the relevant dates.
For all of the foregoing reasons, defendants' summary judgment motion [# 45] is granted and this action is dismissed.
So Ordered.
Frank Brown, pro se.
Hon. Andrew M. Cuomo, New York State Attorney General, Richard Lombardo, Esq., Assistant Attorney General, of Counsel, for Represented Defendants.
THOMAS J. McAVOY, Senior District Judge.
Reading Plaintiff's Complaint liberally, Plaintiff claims that Defendants conspired and retaliated against him for filing grievances; denied him access to the courts by interfering with his legal mail; were deliberately indifferent to his serious medical needs; failed to protect him from known harm; subjected him to excessive force; conspired against Plaintiff; and denied him due process, all in violation of his rights under the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Presently before the Court is Defendants' Motion to Dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(1) and (6). Dkt. No. 50. Plaintiff has responded in opposition to the Motion. Dkt. No. 65. For the following reasons, Defendants' Motion to Dismiss is granted.
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007);
For purposes of a Rule 12(b)(6) motion, the "complaint" includes any written instrument attached to the complaint and any statements or documents incorporated into it by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2d Cir.1995) (citations omitted). "Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint `relies heavily upon its terms and effect,' which renders the document `integral' to the complaint." Chambers, 282 F.3d at 153 (citation omitted). The Court may also consider "matters of which judicial notice may be taken." Kowalyshyn v. Sobieski, 3:07-CV-687, 2008 WL 1924973, at *1 (D.Conn. Apr.30, 2008).
On November 4, 2004, Defendants Burge and Bellnier failed to protect Plaintiff when they did "nothing to stop" Spanish inmates from contaminating Plaintiff's food tray "by putting ketchup that was sealed and called LA-BINE-YA, which is sealed ketchup with blood inside" and by "paying black porters with drugs and money to let them violate [Plaintiff's] food trays with sperm and blood and chemicals." Comp. at 11. Plaintiff's mail was constantly tampered with at Auburn Correctional Facility by the spanish inmates and, as a result, his grievances and complaints, including a letter to the FBI which included a sample of the ketchup, were never delivered. Comp. at 11-12. Plaintiff's mail was tampered with "to prevent [Plaintiff] from contacting anyone [to] let them know that all the murders of [his] whole family was done by spanish inmates at Great Meadow from Oct, 2006, until Nov, 2007." Comp. at 12. Defendants Burge and Bellnier are "responsible for massive corruption at Auburn from 9/17/2004 until 3/8/2005, so they are responsible for all corrupt acts committed" against Plaintiff. Comp. at 13, 33.
On December 29, 2004, spanish officers gave out Plaintiff's personal information to "their spanish people." Comp. at 13. The sharing of Plaintiff's personal information began in 1999 when he was at Southport, and since then "all spanish inmates have been able to get all information at will." Comp. at 13. John Burge, Glenn Goord, and Lucien J. LeClaire were made aware of all of these "criminal acts by many spanish inmates and officers" but did nothing to protect Plaintiff's federal rights. Comp. at 13, 33-34.
On January 1, 2005 Defendants Nurse Smith
Nurse Smith and Sergeant Nipper gave Plaintiff an "infected medical resource drink with feces and blood inside of it." Comp. at 14. Defendants were deliberately indifferent to Plaintiff's serious medical needs and to his safety in violation of the Eighth Amendment. Comp. at 14, 35.
On January 6, 2005, Defendant Burge was involved in a "massive conspiracy" with Southport Superintendent Michael McGinnis, who is
On January 18, 2005, Defendants Eagan, Bellamy, and Burge denied Plaintiff "access to the open tank cells." Comp. at 16. All Defendants are to blame for this discrimination because they "all had the opportunity to correct this policy that discriminated against [Plaintiff]." Comp. at 16. Defendants' actions were retaliatory in violation of Plaintiff's First Amendment rights. Comp. at 37.
On January 23, 2005, Defendants Meyers and Toomey denied Plaintiff his right to "medical help" by destroying a paper instructing Plaintiff not to eat any food in preparation for a blood test. Comp. at 17. LeClaire, Goord, Eagen, and Bellamy "are all responsible also because they did nothing and knew of all crimes being done to [Plaintiff] many times." Comp. at 17. Defendant Wright is also responsible because it was "his duty to stop crimes against [Plaintiff] for massive infections." Comp. at 17. Defendants were deliberately indifferent to Plaintiff's serious medical needs and safety in violation of the Eighth Amendment. Comp. 38.
On January 26, 2006, Defendant Nurse Vega, who is spanish, destroyed the test results from Plaintiff's stool sample to cover up the conspiracy by spanish inmates and corrupt officers. Comp. at 18. Defendant was deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment. Comp. at 38.
On January 27, 2005, in retaliation for Plaintiff's filing grievances, Defendant Rizzo gave Plaintiff tuna fish with "sperm in it." Comp. at 18-19. Plaintiff wrote many grievances against Defendant Rizzo. Comp. at 19. Defendant retaliated against Plaintiff in violation of his First Amendment rights. Comp. at 39.
On January 30, 2005, Defendant Meyers denied Plaintiff access to the courts "by destroying [Plaintiff's] free legal postage mail," including his Article 78 motions. Comp. at 19-20. Defendant Meyers also destroyed many of Plaintiff's grievances. Comp. at 20. Meyers is the officer "who almost always picks up the mail." Comp. at 20. Defendant Meyers denied Plaintiff access to the Courts in violation of his First Amendment rights. Comp. at 39.
On February 2, 2005, Plaintiff was infected with H. Pylori from the drinking water. Comp. at 21. Defendant Burge, "being the chief person at Auburn in 2004 and 2005 is responsible for [Plaintiff's] well-being." Comp. at 22. Defendant Laux refused to have Plaintiff's blood tested. Comp. at 22. Both Defendants Burge and Laux knew that Plaintiff was "bleeding inside from the drinking water" but did nothing. Comp. at 22. Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Comp. at 40-41.
On February 10, 2005, Defendants Eagen, Bellamy, and Burge denied Plaintiff the right to petition the government without retaliation or reprisals "because the grievance program is not fair and effective." Comp. at 22. Plaintiff has been "infected in every prison . . . most likely by chemicals, sperm, blood by officers, sergeants, medical staff and spanish inmate agents. [He] has been given three (3) life time viruses of Hepatitis A, Herpes and H pyloria. Plus massive infections in [his] stomach, throat and head for only using the grievance programs." Comp. at 23. "The whole corrupt Great Meadow murdered [Plaintiff's] whole family for only using the grievance program." Comp. at 24. Plaintiff was denied due process under the Fourteenth Amendment. Comp. at 42.
On February 23, 2005, Defendants Burge, Bellnier, Nurse Smith, Officer Smith, Portney, Rizzo, Putman, Toomey, LeClaire, Wright, Eagen, Bellany, Laux, Robinson, Vega, Nipper, Meyers, and Goord all conspired with each other to infect Plaintiff with chemicals and to retaliate against him. Comp. at 25. Goord, Wright, LeClaire, Eagen, and Bellamy were all from the Central Office and therefore "in a position to stop all crimes being committed against [Plaintiff] but did nothing." Comp. at 25. Plaintiff claims that no white prisoners would be treated like this, only black prisoners, because there is "class-based discriminatory animus behind this massive conspiracy." Comp. at 25. Plaintiff states that
On February 27, 2005, Defendants Portney and Correctional Officer Smith assaulted Plaintiff "by putting the black strap on [him] at sick call because nurse Androsko told the officers" to get Plaintiff out of there. Comp. at 27. When Plaintiff returned to his cell, Plaintiff put his hands out of the food slot and "all officers which [he] didn't put on this lawsuit because [he] is extremely indigent . . . pulled [Plaintiff's] hands and arms very hard trying to break them and [Plaintiff's] wrists also plus [his] back was in extreme pain." Comp. at 27-28. Plaintiff alleges that he was subjected to excessive force in violation of the Eighth Amendment. Comp. at 44-46.
On February 28, 2005, Defendant Putnam told Plaintiff that he will remember Plaintiff till the day Plaintiff died and then threatened to give Plaintiff food and water infected with feces, urine, and sperm. Comp. at 28-29. Putnam's actions were in retaliation for Plaintiff filing grievances in violation of the First Amendment. Comp. at 29, 47.
On February 28, 2005, Officer Toomey tampered with Plaintiff's food tray by pouring some sort of liquid all over everything. Comp. at 29-30. Toomey planned this with Defendant Putnam. Comp. at 30. Plaintiff alleges that Defendants actions were retaliatory in violation of the First Amendment. Comp. at 48-49.
On March 1, 2005, Defendant Rizzo contaminated Plaintiff's water with chemicals "that put pain in [Plaintiff's] side." Comp. at 30. Many times Defendant Officer Smith put feces and sperm in Plaintiff's hot water. Comp. at 31.
Plaintiff was in the Auburn Special Housing Unit (SHU) from October 30, 2004 until March 7, 2005 under conditions that were an "atypical and significant hardship [and] a deprivation of a liberty interest." Comp. at 31. During this period of SHU incarceration, he was infected with two or maybe three "life time viruses."
Defendants argue that Plaintiff's Complaint should be dismissed because: (1) the Complaint fails to state a claim pursuant to 42 U.S.C. § 1983; (2) Defendants are entitled to qualified immunity; and (3) the First, Second, Third and Fourth causes of action are barred by the applicable statute of limitations. Dkt. No. 50.
The applicable statute of limitations for Section 1983 actions arising in New York requires claims to be brought within three years. Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir.1995) (citing Owens v. Okure, 488 U.S. 235, 250-51, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989); Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.1994)).
Plaintiff's first cause of action asserts allegations against Defendants Burge and Bellnier concerning wrongdoing that occurred on November 4, 2004,
To state a viable claim under Section 1983, a plaintiff must allege that the defendant, while acting under color of state law, deprived him of a right, privilege or immunity secured by the Constitution or by the laws of the United States. See 42 U.S.C. § 1983. The personal involvement of a defendant is a prerequisite for the assessment of damages in a Section 1983 action, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), and the doctrine of respondeat superior is inapplicable to Section 1983 claims. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973). "Further, a Section 1983 plaintiff must `allege a tangible connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas, No. 04-CV7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar.31, 2008) (citing Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986) (other citation omitted). Any complaint that fails to allege personal involvement is "fatally defective on its face." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987) (internal quotations and citations omitted).
A defendant is "personally involved" if he or she "directly participated in the infraction." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citations omitted). Also, a defendant in a supervisory capacity may be "personally involved" within the meaning of Section 1983 if the state actor (1) failed to remedy the wrong after learning of the violation through a report or appeal; (2) created or continued a custom or policy under which unconstitutional practices ensued; or (3) was grossly negligent in managing subordinates who caused the unlawful condition or event. Id.
The Court has reviewed the Complaint in its entirety and afforded it great liberality but is unable to find any allegations to suggest that any of the supervisory Defendants—Burge, Goord, LeClaire, Bellnier, Wright, Eagan, or Bellamy—were personally involved or directly participated in any violation of Plaintiff's civil or constitutional rights. See Johnson, 481 F.2d at 1034 (when monetary damages are sought under Section 1983, the general doctrine of respondeat superior does not suffice and a showing of personal responsibility is required). Defendants Burge, Goord, LeClaire, Bellnier, Wright, Eagan, and Bellamy are
A court may dismiss an in forma pauperis complaint if it determines that the complaint is frivolous. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989)." An action is frivolous when either: (1) the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (internal quotations omitted) (citing Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam) (quoting Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833)).
Moreover, the law in this Circuit clearly provides that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y.1995) (McAvoy, C.J.) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987) (other citations omitted)); Pourzandvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.) (citation omitted).
The Eighth Amendment prohibits cruel and unusual punishment which encompasses punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976) (citations and quotations omitted). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981)).
A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement—the conditions must be "sufficiently serious" from an objective point of view, and the plaintiff must demonstrate that prison officials acted subjectively with "deliberate indifference." See Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (quoting Wilson v. Seiter, 501 U.S. 294, 297-98, 111 S.Ct. 2321, 2323-24, 115 L.Ed.2d 271 (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.). Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or 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, 114 S.Ct. at 1979.
Generally, to prevail on a claim of inadequate medical care under the Eighth Amendment, a plaintiff must show two things: (1) that the plaintiff had a sufficiently serious medical need; and (2) that the defendant was deliberately indifferent to that serious medical need. Estelle, 429 U.S. at 104, 97 S.Ct. at 290-91. Mere disagreement with prison officials about what constitutes appropriate medical care does not state a cognizable claim under the Eighth Amendment. Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.1992). Prison officials have broad discretion in determining the nature and the character of medical treatment afforded to inmates. Id. (citations omitted). An inmate does not have the right to treatment of his choice. Id. at 45 (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986); Jackson v. Fair, 846 F.2d 811, 817-18 (1st Cir.1988)). "Further, a delay in treatment does not violate the constitution unless it involves an act or failure to act that evinces `a conscious disregard of a substantial risk of serious harm.'" Thomas v. Nassau County Correctional Center, 288 F.Supp.2d 333, 339 (E.D.N.Y.2003) (citation omitted). "The Second Circuit has `reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment, ignored a life threatening and fast-degenerating condition for three days, or delayed major surgery for over two years.'" Thomas, 288 F.Supp.2d at 339 (citing Espinal v. Coughlin, 98 Civ. 2579, 2002 WL 10450, at *3 (S.D.N.Y. Jan.3, 2002)). Even if a prisoner is able to establish delay, in order to establish deliberate indifference, he must also show that his condition became worse or deteriorated as a result of the delay. Thomas, 288 F.Supp.2d at 339.
Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs when they gave him a "medical resource drink" containing blood and feces (fourth cause of action); intentionally infected him with Hepatitis A and then denied testing and medical treatment for the disease (sixth and thirteenth causes of action); infected him with H. Pylori (fourteenth cause of action); and served Plaintiff water intentionally contaminated with chemicals (twenty-first cause of action). Plaintiff also alleges that the supervisory Defendants allowed spanish inmates and corrupt correctional officers to contaminate his food tray with blood, semen, urine, and chemicals. These allegations are so fantastic or incredible as to be factually frivolous. Moreover, with respect to the sixth, thirteenth, and fourteenth causes of action, Plaintiff has failed to allege a tangible connection between the acts of any of the Defendants named in those causes of action and the injuries suffered by Plaintiff. Accordingly, Plaintiff's fourth, sixth, thirteenth, fourteenth, and twenty-first causes of action are dismissed
In the context of Eighth Amendment protections, prisoners are to be provided with "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (citation omitted); see also Lunney v. Brureton, No. 04 Civ. 2438, 2005 WL 121720, at *6 (S.D.N.Y. Jan.21, 2005). Consequently, "[d]epriving an inmate of food or serving him contaminated food may constitute a violation of the Eighth Amendment." Moncrieffe v. Witbeck, No. 97-C253, 2000 WL 949457, at *6 (N.D.N.Y. June 29, 2000) (citing Robles v. Coughlin, 725 F.2d at 15). However, as with most of his medical claims, Plaintiff's allegations that his food was contaminated with blood (sealed in packaged ketchup); feces; urine; semen; and chemicals are so conclusory and fantastic as to rise to the level of factually frivolous. Accordingly, these allegations are dismissed
While the Eighth Amendment protects a prisoner against the excessive use of force, it "excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Branham v. Meachum, 77 F.3d 626, 630 (2d Cir.1996) (quoting Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (other quotations omitted)). A truly de minimis use of force will rarely suffice to state a constitutional claim. Hudson, 503 U.S. at 9-10, 112 S.Ct. at 1000 ("[Not] every malevolent touch by a prison guard gives rise to a federal cause of action."); Johnson, 481 F.2d at 1033 ("Not every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights").
Plaintiff also alleges that once back at his cell, he held his hands out through the food slot to have the black strap removed and "all officers which [Plaintiff] didn't name in this law suit started pulling his hands and arms really hard trying to break them and [his] wrists also." Comp. at 27-28. Since Plaintiff has not named any of the officers responsible for this incident, this claim is also dismissed
Defendants' Motion to Dismiss Plaintiff's excessive force claims is granted and those claims (seventeenth and eighteenth causes of action) are dismissed
When adverse action is taken by prison officials against an inmate, motivated by the inmate's exercise of a right protected under the Constitution, including the free speech provisions of the First Amendment, a cognizable retaliation claim under § 1983 lies. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir.1988). Courts must approach claims of retaliation "`with skepticism and particular care' because `virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act.'" Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).
In order to survive a motion to dismiss a complaint, a plaintiff asserting a First Amendment retaliation claim must advance "non-conclusory" allegations establishing:
Davis, 320 F.3d at 352 (quoting Dawes, 239 F.3d at 492). "[A] complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone." Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983).
Plaintiff alleges that he was retaliated against for filing grievances and complaints (third, seventh, tenth, nineteenth, and twentieth causes of action). Since the filing of prison grievances is a constitutionally protected activity, Plaintiff meets the first prong of the retaliation test. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996); Franco, 854 F.2d at 590.
Inmates have a First Amendment right to "petition the Government for a redress of grievances." This right, which is more informally referred to as a "right of access to the courts," requires States "to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights." Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), modified on other grounds, Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); see also Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir.2004) (citations omitted). "However, this right is not `an abstract, freestanding right to a law library or legal assistance' and cannot ground a Section 1983 claim without a showing of `actual injury.'" Collins v. Goord, 438 F.Supp.2d 399, 415 (S.D.N.Y.2006) (quoting Lewis, 518 U.S. at 351). As a result, to state a claim for denial of access to the courts, a plaintiff must assert non-conclusory allegations demonstrating both (1) that the defendant acted deliberately and maliciously, and (2) that the plaintiff suffered an actual injury. Lewis, 518 U.S. at 353; Renelique v. Duncan, 03-CV1256, 2007 WL 1110913, at *9 (N.D.N.Y. Apr.12, 2007) (Strom, J.) (same) (citing Howard v. Leonardo, 845 F.Supp. 943, 946 (N.D.N.Y.1994)).
Plaintiff alleges that Defendant Meyers denied Plaintiff access to the courts by destroying Plaintiffs' free legal postage mail, including Plaintiff's Article 78 motions (eleventh cause of action). Comp. at 19-20. Plaintiff does not allege any actual injury as a result of Defendant's alleged conduct. Plaintiff fails to state a claim for denial of access to the Courts, and therefore his eleventh cause of action is dismissed
To survive a motion to dismiss, a conspiracy claim under § 42 U.S.C.1983 must allege that: (1) an agreement existed between two or more state actors to act in concert to inflict an unconstitutional injury on plaintiff and (2) an overt act was committed in furtherance of that goal. Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir.2002); see also Concepcion v. City of New York, No. 05 Civ. 8501, 2008 WL 2020363, at *5 (affirming the continued viability of the Ciambriello standards when analyzing a conspiracy claim vis a vis a motion to dismiss).
Plaintiff also asserts conspiracy claims under 42 U.S.C. § 1985(3). To state a claim under 42 U.S.C.1985(3) a plaintiff must allege:
Mione v. McGrath, 435 F.Supp.2d 266, 271-72 (S.D.N.Y.2006). Under § 1985(3), the language requiring intent to deprive of equal protection of the laws "means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action." Segreto v. Kirschner, 977 F.Supp. 553, 565 (D.Conn.1997) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971)).
However, "[a]s the Second Circuit has noted repeatedly, conspiracy claims are to be viewed with skepticism and must be supported by more than mere conclusory allegations." Webb, 340 F.3d at 110 ("In order to maintain an action under Section 1985, a plaintiff must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.") (internal quotation marks omitted). Plaintiff's conclusory allegations of a conspiracy against him fail to provide any factual basis to plausibly support a meeting of the minds between the Defendants or that Defendants entered into an agreement to violate Plaintiff's rights.
Finally, even if Plaintiff's allegations of conspiracy were found to be more than merely conclusory, Plaintiff's conspiracy claims are barred by the "intra-corpo rate conspiracy" doctrine, also sometimes referred to as the intraenterprise conspiracy doctrine. The "intracorporate conspiracy" doctrine provides that a corporation or public entity "generally cannot conspire with its employees or agents as all are considered a single entity." Everson v. New York City Transit Auth., 216 F.Supp.2d 71, 76 (E.D.N.Y.2002) (citation omitted); see also Orafan v. Goord, 411 F.Supp.2d 153, 165 (N.D.N.Y.2006) (holding that the conspiracy claim failed because the alleged co-conspirators were all DOCS officials and employees acting within the scope of their employment) (internal citations and quotations omitted), vacated and remanded on other grounds by Orafan v. Rashid, 249 Fed. Appx. 217, 2007 WL 2875968 (2d Cir.2007). An exception exists if the individuals are motivated by personal interests, separate and apart from the entity. Orafan, 411 F.Supp.2d at 165. To allege facts plausibly suggesting that defendants were pursuing personal interests, more is required than merely alleging defendants were motivated by personal bias. See Peters v. City of New York, 04-CV-9333, 2005 WL 387141, at *3 (S.D.N.Y. Feb.16, 2005) ("[P]ersonal bias is not the sort of individual interest that takes a defendant out of the intraenterprise conspiracy doctrine") (internal quotation marks and citation omitted); accord, Johnson v. City of New York, 01-CV-1860, 2004 WL 502929, at *5 (E.D.N.Y. Jan.12, 2004).
For all of the foregoing reasons, Plaintiff's conspiracy claims (the fifth and sixteenth causes of action) are
To state a claim for violation of procedural due process, Plaintiff must allege first that he had a protected liberty interest and, second, if he had such an interest, that he was deprived of that interest without being afforded due process of law. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997); see generally Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Plaintiff alleges that Defendant Burge violated Plaintiff right to due process because he was involved in "massive conspiracy" to keep Plaintiff on mental health status and medicated in order to silence Plaintiff (fifth cause of action). Comp. at 15. This claim is dismissed as conclusory and for failure to state any sort of claim for denial of due process.
Plaintiff also alleges that Defendants Eagen, Bellamy, and Burge denied Plaintiff due process by having in place a "grievance program [that is] not fair and effective." (fifteenth cause of action). Comp. at 22-23. Inmates do not have a constitutional right to have grievances processed or to ensure that grievances are processed properly. See e.g. Torres v. Mazzuca, 246 F.Supp.2d 334, 342 (S.D.N.Y.2003) (prison grievance procedures do not confer any constitutionally protected right on an inmate). A violation of the inmate grievance procedures does
Finally, Plaintiff alleges that he was subjected to an "atypical and significant hardship" during his SHU incarceration at Auburn in violation of his due process rights (twenty-second cause of action). Comp. at 31. Plaintiff has not however alleged that he received insufficient process prior to being confined in SHU nor does he indicate what Defendants, if any, were personally involved in the alleged denial of due process. Plaintiff fails to allege a plausible claim for denial of due process.
Defendants raise the affirmative defense of qualified immunity. Dkt. No. 50-2, Memorandum of Law at 24-25. "Qualified immunity is an affirmative defense that shields government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir.2003) (quoting McCardle v. Haddad, 131 F.3d 43, 50 (2d Cir.1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Plaintiff's recounting of the facts is conclusory at best and wholly fantastic. Plaintiff claims that he is the target of a "massive conspiracy" to infect him with three "life-time" viruses; contaminate his food; and destroy his mail. Plaintiff claims that spanish inmates have been putting "LA-BINYA" on Plaintiff's food tray, which he describes as "sealed ketchup with blood inside." Plaintiff also claims that spanish officers are giving out Plaintiff's personal information; Plaintiff is being kept at "mental health level one" and medicated to prevent him from litigating his actions in the courts; he has been deliberately infected with Hepatitis A, H. pylori, and herpes; and his food has been contaminated with feces, sperm, blood, urine, and chemicals. Additionally, Plaintiff alleges that as part of this conspiracy, his whole family has been murdered. Plaintiff claims that "[t]his is the biggest conspiracy in the history of the United States." Comp. at 26.
Even reading Plaintiff's Complaint in the most generous manner, the Court finds Plaintiff's allegations as a whole to be unbelievable. Moreover, Plaintiff's history of mental illness, as documented in the psychiatric evaluations attached as exhibits to Plaintiff's Complaint (see Comp., Exhibits at 8-15), further supports a finding that his allegations are the product of delusion. The Court finds that the Complaint is factually frivolous under the standards delineated in Denton, Neitzke, and Livingston (see Section V.C., supra) and therefore dismisses the Complaint in its entirety.
WHEREFORE, based on the findings above, it is hereby
ORDERED, that Defendants' Motion to Dismiss (Dkt. No. 50) is
Donnell Harris, pro se.
Hon. Andrew M. Cuomo, Attorney General of the State of New York, Meghan M. Brown, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendant.
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 Peeble'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.
Additional grounds for dismissal of this matter are provided by Local Rule 41.2(b) of the Northern District of New York which states that "Failure to notify the court of a change of address in accordance with L.R. 10.1(b) may result in the dismissal of any pending action." N.D.N.Y. L.R. 41.2(b). Local Rule 10.1(b)(2) states that ". . . pro se litigants must immediately notify the court of any change of address. The notice of change of address is to be filed with the clerk. . . ." N.D.N.Y. L.R. 10.1(b)(2). Copies of the Report-Recommendation were mailed to the parties, with Petitioner's copy postmarked November 14, 2007. On November 19, 2007 the Report-Recommendation that had been mailed to Petitioner was returned to the Clerk of the Court, with the notation that Plaintiff had been discharged. See Dkt. No. 21. The Clerk had no forwarding address from Petitioner, who has failed to notify the Court of his change of address. Thus, in accordance with the Local Rules, this action is dismissed.
Accordingly, it is hereby
DAVID E. PEEBLES, United States Magistrate Judge.
Plaintiff Donnell Harris, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983, claiming deprivation of his civil rights. At the center of plaintiff's complaint is his assertion that certain of the defendants tampered with one of his meals, and that when he complained and requested to see a high ranking corrections official in order to register a complaint regarding the matter he was ordered to exit his cell and, after refusing to do so, was forcibly extracted through the use of a chemical agent. Plaintiff's complaint asserts claims of cruel and unusual punishment, in violation of the Eighth Amendment, based both upon the defendants' alleged tampering with his food and their purported use of excessive force, and seeks injunctive relief as well as an award of compensatory and punitive damages.
Plaintiff is a prison inmate entrusted to the custody of the New York State Department of Correctional Services (the "DOCS"); at the times relevant to his claims, plaintiff was designated by the DOCS to the Upstate Correctional Facility ("Upstate"), located in Malone, New York. Complaint (Dkt. No. 1) at pp. 1, 7. Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined, generally though not always for disciplinary reasons, for twenty-three hours each day. See Samuels v. Selsky, No. 01 CIV. 8235, 2002 WL 31040370, at *4 n. 11 (S.D.N.Y. Sept. 12, 2002).
On the morning of December 27, 2006, while at Upstate, plaintiff received a meal delivered to his cell by defendants T. Ashlaw and B. Snell, two corrections officers employed at the facility. Complaint (Dkt. No. 1), ¶ 6 A. After observing the two corrections officers "do something" to his water in the process, plaintiff requested a replacement water. Id. That request was denied, plaintiff's water was knocked off the feed-up slot and, apparently after delivery of his food tray, his milk and juice were placed on the floor in front of his cell. Id. After Corrections Officers Ashlaw and Snell left the area, plaintiff noticed that the spoon on his tray was broken, the seal on his peanut butter was compromised, and his bread had what appeared to be finger holes in it. Complaint (Dkt. No. 1) ¶ 6 B. When plaintiff attempted to complain to defendants Ashlaw and Snell regarding the matter, his complaints were ignored. Id.
Matters apparently escalated when plaintiff once again complained to defendant Ashlaw, who had come to retrieve his tray, and, after not receiving satisfactory response from the officer, demanded to see a higher ranking officer in order to complain regarding his food. Id. ¶¶ C-F. While in the process of voicing complaints to a corrections lieutenant and corrections captain who had arrived on the scene, plaintiff was directed to exit his cell and advised that corrections officers intended to conduct a search of his cell. Id. ¶¶ F, G. In defiance over the refusal of corrections officers to listen to his complaints, plaintiff placed his tray on his table and walked to the back of his cell, ignoring the orders of corrections officers to exit. Id.
As a result of plaintiff's refusal to exit his cell, corrections officers contacted Upstate Superintendent R. Woods for the purpose of requesting permission to use gas to assist in extricating the plaintiff from his cell. Complaint (Dkt. No. 1) ¶ 6 H. After the requisite authorization was given by defendant Woods, a chemical substance was introduced into plaintiff's cell, eventually forcing him to come to the front, where he was handcuffed and removed. Id. ¶ H.
In response to plaintiff's complaint, defendants moved on August 9, 2007 seeking dismissal of his complaint pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, arguing that plaintiff's claims fail to rise to a level of constitutional significance. Dkt. No. 19. Plaintiff has since failed to submit any papers in opposition to defendants' motion, which is now ripe for determination and has 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).
A motion to dismiss a complaint, brought pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which is particularly unexacting in its requirements. Rule 8 of the Federal Rules of Civil Procedure requires only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Absent applicability of a heightened pleading requirement such as that imposed under Rule 9, a plaintiff is not required to plead specific factual allegations to support the claim; rather, "the statement need only `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200 (2007) (quoting Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964 (2007) (other quotations omitted)); cf. Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (acknowledging that a plaintiff may properly be required to illuminate a claim with some factual allegations in those contexts where amplification is necessary to establish that the claim is "plausible"). Once the claim has been stated adequately, a plaintiff may present any set of facts consistent with the allegations contained in the complaint to support his or her claim. Twombly, 127 S.Ct. at 1969 (observing that the Court's prior decision in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957), "described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival").
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true, and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1722, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v. Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y.2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "`but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F.Supp.2d 435, 441 (S.D.N.Y.2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (other quotations omitted)). Accordingly, a complaint should be dismissed on a motion brought pursuant to Rule 12(b)(6) only where the plaintiff has failed to provide some basis for the allegations that support the elements of his or her claim. See Twombly, 127 S.Ct. at 1969, 1974.
The two components of plaintiff's complaint, asserting constitutional deprivations growing out of defendants' tampering with his food and their use of excessive force to remove him from his cell, both implicate the Eighth Amendment's prohibition against cruel and unusual punishment. In their motion, defendants challenge the sufficiency of both aspects of plaintiff's Eighth Amendment claim.
The Eighth Amendment's prohibition of cruel and unusual punishment encompasses punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976) (citations and quotations omitted); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)).
A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement-the conditions must be "`sufficiently serious'" from an objective point of view, and the plaintiff must demonstrate that prison officials acted subjectively with "`deliberate indifference.'" See Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (quoting Wilson v. Seiter, 501 U.S. 294, 297-98, 111 S.Ct. 2321, 2323-24 (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.); see also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321. Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or 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, 114 S.Ct. at 1979; Leach, 103 F.Supp.2d at 546 (citing Farmer); Waldo, 1998 WL 713809, at *2 (same).
The mere allegation of food tampering alone, however, is insufficient to establish a claim under the Eighth Amendment. To state a cognizable claim under the Eighth Amendment in such circumstances, a plaintiff must allege he or she suffered "`distinct and palpable injury.'" M.F. v. Reish, No. 95 CIV 4904, 1996 WL 345953, at *4 (S.D.N.Y. June 21, 1996) (citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206 (1975)). Accordingly, inmate suits predicated upon claims of adulterated food brought under the Eighth Amendment are subject to dismissal where the plaintiff fails to allege he or she was actually harmed by food tampering. McNatt v. Unit Manager Parker, No. 3:99 CV 1397, 2000 WL 307000, at *6 (D.Conn. Jan. 18, 2000) (inmates failed to state a cognizable claim when failing to allege ill effects from reduced food portions); Reish, 1996 WL 345953, at *4 (no actual injury where plaintiffs allege numerous incidents of food tampering by defendants and that defendants served food "riddled with rodent excrement", but did not allege that they were actually harmed by such food) (quotations omitted); but see Moncrieffe v. Witbeck, No. 97-CV-253, 2000 WL 949457, at *6-7 (N.D.N.Y. June 29, 2000) (Mordue, J.) (allegations that defendants denied the plaintiff food on six occasions and on at least two others contaminated his food with spit or perfume found sufficient to raise issue of fact regarding Eighth Amendment violation for purposes of summary judgment motion).
In this instance plaintiff's food tampering claim has as its focus one incident, occurring on December 27, 2006, although he additionally asserts in passing that he experienced similar "foul play" [to his] food" on four other occasions during the period between approximately September 21, 2006 and November 14, 2006. Complaint (Dkt. No. 1) ¶ 6 I. Because plaintiff has not alleged in his complaint that he received nutritionally inadequate food, or that it was prepared or served in a manner presenting an imminent danger to his health and well-being, this aspect of his Eighth Amendment claim is legally deficient. Quintana v. McCoy, No. 9:03-CV-0924, 2006 WL 2827673, at *6 (N.D.N.Y. Sept. 29, 2006) (McAvoy, S.J. and Treece, M.J.). Accordingly, I find that plaintiff's food tampering claim, although alleging conduct which is both despicable and surely remediable through other channels, fails to rise to a level of constitutional significance, and therefore recommend its dismissal.
The primary focus of defendant's motion addressing plaintiff's excessive force claim is upon the subjective element of the prescribed analysis. Under that test, a plaintiff's constitutional right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley, 475 U.S. at 319, 106 S.Ct. at 1084 (emphasis added) (citations and quotations omitted); Griffin, 193 F.3d at 91. The lynchpin inquiry in deciding claims of excessive force against prison officials is "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6-7, 112 S.Ct. at 998 (applying Whitley to all excessive force claims); Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied sub nom., John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462 (1973)). To prevail on his excessive force claim, the plaintiff must therefore establish that defendants acted with a sufficiently culpable state of mind. Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir.1994) (citing Hudson, 503 U.S. at 8, 112 S.Ct. at 999). That determination is informed by four factors, including 1) the need for application of force; 2) the relationship between that need and the amount of force used; 3) the threat reasonably perceived by the responsible officials; and 4) any efforts made to temper the severity of a forceful response. Whitley, 475 U.S. at 321, 106 S.Ct. at 1085. The principal focus of this inquiry "turns on `whether force was applied in a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm.'" Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson, 481 F.2d at 1033). When considering the subjective element of the governing Eighth Amendment test, a court must consider that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness since, as the Supreme Court has noted,
Hudson, 503 U.S. at 9, 112 S.Ct. at 1000 (citations omitted); Velasquez v. O'Keefe, 899 F.Supp. 972, 973 (N.D.N.Y.1995) (McAvoy, C.J.) (quoting Hudson, 503 U.S. at 9, 112 S.Ct. at 1000); see Romaine v. Rewson, 140 F.Supp.2d 204, 211 (N.D.N.Y.2001) (Kahn, J.). Even a de minimis use of physical force can constitute cruel and unusual punishment if it is "repugnant to the conscience of mankind."
Plaintiff's complaint, which alleges that his food was modestly tampered with by prison officials on roughly five separate occasions over a four month period, fails to allege that he suffered any injury or adverse consequences associated with that tampering, and thus fails to establish an Eighth Amendment claim of cruel and unusual punishment. The second prong of plaintiff's complaint, alleging the unlawful use of excessive force to remove him from the cell, similarly fails to state a cognizable claim in light of the fact that, by his own account, it was his own refusal to obey a proper order of prison officials that precipitated defendants' response and necessitated the use of force to remove him from his cell after he refused to exit voluntarily. Under these circumstances, I recommend that defendants' motion be granted and plaintiff's complaint be dismissed, though with leave to replead. See Branum, 927 F.2d at 704-05.
RECOMMENDED that defendants' motion to dismiss plaintiff' complaint (Dkt. No. 19) be GRANTED, and that plaintiff's complaint be DISMISSED in all respects, with leave to replead; and it is further
ORDERED that defendants' request to stay discovery in this matter pending the court's final determination of this motion, as articulated in their memorandum of law in support thereof, is GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1), 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. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is further 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.
ANDREW J. PECK, United States Magistrate Judge.
Pro se plaintiff Mark Inesti (a/k/a Hector Ortiz) brings this § 1983 action alleging violations of his federal constitutional rights by New York City and New York State officials. Inesti asserts claims against Captain Sherma Dunbar (now Assistant Deputy Warden) and Captain Anna Pressley ("City defendants") arising out of alleged conditions of his confinement and failure to treat his mental illness while he was held in the Mental Health Assessment Unit for Infracted Inmates ("MHAUII") at the George R. Vierno Center ("GRVC") on Rikers Island. (Dkt. No. 38: Compl. ¶¶ 5-6, 16-40, 79-86, 90-92, 94-96, 104-05, 138, 143-44.)
The background facts underlying this dispute are set forth in the Court's prior Report and Recommendation, familiarity with which is assumed. See Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 (S.D.N.Y. June 22, 2012) (Peck, M.J.), report & rec. adopted, 2012 WL 3822224 (S.D.N.Y. Sept. 4, 2012) (Crotty, D.J.).
Beginning in 2007, Captain Anna Pressley was assigned to MHAUII's Housing Area 13. (Dkt. No. 84: City Defs. Rule. 56.1 Stmt. ¶ 2; Dkt. No. 83: Dunbar Aff. ¶ 5.) Captain Sherma Dunbar was assigned to MHAUII's Housing Area 11 beginning in June 2008. (City Defs. Rule 56.1 Stmt. ¶ 1; Dunbar Aff. ¶ 4.) MHAUII correction officers manage inmates' food, showers, and recreation time, but not medication, which is dispensed by medical staff twice a day. (City Defs. Rule. 56.1 Stmt. ¶¶ 5-6; Dunbar Aff. ¶¶ 8-9.) Food is served three times a day, generally between 5 a.m. and 6 a.m., 11 a.m. and noon, and 5 p.m. and 6 p.m. (City Defs. Rule. 56.1 Stmt. ¶ 7; Dunbar Aff. ¶ 10.) If an inmate refuses food, the matter is referred to the mental health department. (City Defs. Rule. 56.1 Stmt. ¶ 7; Dunbar Aff. ¶ 10.) While showers are offered daily, inmates may refuse a shower or be denied one if they fail to comply with security procedures. (City Defs. Rule. 56.1 Stmt. ¶ 8; Dunbar Aff. ¶ 11.) MHAUII inmates are allowed one hour of out-of-cell recreation daily; inmates may refuse recreation or be denied recreation for failing to comply with security procedures. (City Defs. Rule. 56.1 Stmt. ¶ 9; Dunbar Aff. ¶ 12.) Searches of an inmate's person are only conducted when an inmate returns after having left the housing area or when an area-wide search for a particular purpose is required. (City Defs. Rule. 56.1 Stmt. ¶ 10; Dunbar Aff. ¶ 13.)
On August 8, 2008, Inesti was arrested for attempting to steal clothing from a department store and admitted to Rikers Island. (City Defs. Rule 56.1 Stmt. ¶¶ 23-24; DiCarlo Aff. Ex. J: Det. Alfonso Aff.) From August 9, 2008 to September 12, 2008, Inesti was housed in the Anna M. Kross Center ("AMKC") on Rikers Island. (City Defs. Rule 56.1 Stmt. ¶¶ 24, 26; DiCarlo Aff. Ex. I: Inesti Movement History at 5-6.) From September 12, 2008 to October 2, 2008, Inesti was housed in non-punitive dormitories at the Otis Bantum Correctional Center ("OBCC"). (City Defs. Rule 56.1 Stmt. ¶ 26; DiCarlo Aff. Ex. I: Inesti Movement History at 7-8.) On October 2, 2008, Inesti was sent to Bellevue Hospital Prison Ward where he was psychiatrically evaluated pursuant to a C.P.L. Article 730 Order; Inesti was released back to OBCC on October 15, 2008. (City Defs. Rule 56.1 Stmt. ¶ 27; Dkt. No. 80: Carey 12/10/12 Aff. Ex. C: C.P.L. Art. 730 Exam. of Inesti; DiCarlo Aff. Ex. I: Inesti Movement History at 8.)
Inesti was found guilty of an assault on DOC staff with a weapon on October 19, 2008 and sent to MHAUII Housing Area 13-A. (DiCarlo Aff. Ex. H: Inesti Infraction History at 2; DiCarlo Aff. Ex. I: Inesti Movement History at 9.) In relation to his incarceration at MHAUII Housing Area 13-A, Inesti testified: "I wasn't really too stable or anything. I was argumentative and probably even abusive or violent because of what I was going through or not taking any medication, or anything like that, or getting any mental health treatment." (City Defs. Rule 56.1 Stmt. ¶ 29; Carey 12/10/12 Aff. Ex. A: Inesti Dep. at 32, 46-47, 60; see also Dkt. No. 91: Buskin Aff. Ex. A: Inesti Dep. at 93-94, 134-35.)
"The log book from Housing Area 13-A during the relevant time period clearly shows that Mr. Inesti was entitled to and offered three meals a day, regular sanitation, access to showers, out-of-cell relief, and medication (which he admits he sometimes refused)." (City Defs. Rule 56.1 Stmt. ¶ 30; Dkt. No. 82: Kril Aff Ex. L: GRVC 13-A Logbook.) Deviations from standard procedure would be noted in the logbook. (City Defs. Rule 56.1 Stmt. ¶ 31; see generally Kril Aff. Ex. L: GRVC 13-A Logbook.) On October 22, 2012, Inesti missed lunch because there was not enough food on the meal cart. (City Defs.Rule 56.1 Stmt. ¶ 31; Kril Aff. Ex. L: GRVC 13-A Logbook at 35.) Inesti, however, also claims that he only received one meal a day, dinner, because of Captains Dunbar and Pressley. (Carey 12/10/12 Aff. Ex. A: Inesti Dep. at 35.) Inesti's claim is contradicted by the logbook. (Kril Aff. Ex. L: GRVC 13-A Logbook.) On several occasions, Inesti refused recreation. (Kril Aff Ex. L: GRVC 13-A Logbook at 30, 39, 43, 51, 55, 59, 64, 69, 76, 81, 89, 93-94, 98, 119, 132, 136, 150, 163, 167, 171, 179, 184.)
On September 24, 2007, Inesti was admitted to MPC pursuant to a final C.P.L. Article 730 Order. (Dkt. No. 96: State Defs. Rule 56.1 Stmt. ¶ 5; Dkt. No. 90: Rabinowitz Aff. ¶ 3.) During this period of commitment, Inesti wrote to OMH Commissioner Hogan complaining that MPC nurses were injecting him with psychotropic medication. (State Defs. Rule 56.1 Stmt. ¶¶ 2, 7; Dkt. No. 91: Buskin Aff. Ex. A: Inesti Dep. at 103-05.) Inesti never received a response from Commissioner Hogan, and OMH has no record of Inesti's letter to Commissioner Hogan. (State Defs. Rule 56.1 Stmt. ¶¶ 8-9; Buskin Aff. Ex. A: Inesti Dep. at 104; Dkt. No. 92: Blasen Aff. ¶¶ 2-3; Dkt. No. 93: Flagler Aff. ¶¶ 2-3; Dkt. No. 94: McNamara Aff. ¶¶ 2-3.) Inesti also made several complaints to Dr. Rabinowitz, the Executive Director of MPC and Kirby. (State Defs. Rule 56.1 Stmt. ¶¶ 3, 10; Buskin Aff. Ex. A: Inesti Dep. at 108-10, 112-13.) As a result, Rabinowitz "called [Inesti] to his office and [Rabinowtiz] gave [Inesti] the transitional services that [Inesti] requested for a treatment plan." (Buskin Aff. Ex. A: Inesti Dep. at 113; id. at 108-10, 115, 123; State Defs. Rule 56.1 Stmt. ¶ 11.) Accordingly, Inesti was transferred to MPC's Transitional Living Residence ("TLR") on November 23, 2007. (State Defs. Rule 56.1 Stmt ¶¶ 11-12; Rabinowitz Aff. ¶ 3; Buskin Aff. Ex. A: Inesti Dep. at 108-10, 113.) Inesti subsequently struck a TLR nurse and was arrested for assault. (State Defs. Rule 56.1 Stmt. ¶ 14; Buskin Aff. Ex. A: Inesti Dep. at 83.) Inesti never saw Rabinowitz again after leaving MPC. (State Defs. Rule 56.1 Stmt. ¶ 13; Buskin Aff. Ex. A: Inesti Dep. at 115.)
On November 21, 2008, Inesti was ordered to the custody of OMH after being indicted for robbery and found unfit for trial. (State Defs. Rule 56.1 Stmt. ¶ 15; Buskin Aff. Ex. B: Commitment Order.) On November 26, 2008, pursuant to a C.P.L. Article 730 Order, Inesti was admitted to Kirby where Dr. Tuzel was his treating doctor. (State Defs. Rule 56.1 Stmt. ¶¶ 16-17; Rabinowitz Aff. ¶ 3; Dkt. No. 89: Tuzel Aff. ¶ 4.) Inesti received psychotropic intramuscular medication on four occasions while at Kirby, three of which were administered without Inesti's consent. (State Defs. Rule 56.1 Stmt. ¶¶ 18-19; Tuzel Aff. ¶ 6 & Ex. B: Inesti Med. Records.)
On December 22 and 29, 2008, Inesti also received psychotropic injections without his consent, but these injections were not ordered or administered by Dr. Tuzel. (State Defs. Rule 56.1 Stmt. ¶ 29; Tuzel Aff. ¶ 9 & Ex. B: Inesti Med. Records at 192, 209.) On January 12, 2009, Inesti consented to and received psychotropic intramuscular medication. (State Defs. Rule 56.1 Stmt. ¶ 32; Tuzel Aff. ¶ 10 & Ex. B: Inesti Med. Records at 242.) By January 14, 2009, Inseti's standing order for pshychotropic medication was discontinued, but Inesti continued to request and receive Risperidone. (State Defs. Rule 56.1 Stmt. ¶¶ 33-34; Tuzel Aff. ¶¶ 13-14 & Ex. B: Inesti Med. Records at 249-50; Tuzel Aff. Ex. C: Discharge Summary at 275.) On January 21, 22, 23, and 26, 2009, Inesti requested and received Risperidone. (State Defs. Rule 56.1 Stmt. ¶¶ 36-40; Buskin Aff. Ex. D: Inesti Med. Records at 263, 269-71, 273.)
On January 5, 2009, Kirby forensic psychiatrists determined that Inesti was competent to stand trial. (State Defs. Rule 56.1 Stmt. ¶ 30; Rabinowitz Aff. Ex. A: Model Report in Support of Competency Restoration.) On January 15, 2009, the New York Supreme Court ordered Inesti to be delivered to DOC custody and to appear in court on January 28, 2009. (State Defs. Rule 56.1 Stmt. ¶ 35; Buskin Aff. Ex. C: Order to Produce.) On January 27, 2009, Inesti was discharged from Kirby. (State Defs. Rule 56.1 Stmt. ¶ 41; Tuzel Aff. ¶ 4; Rabinowitz Aff. ¶ 3.)
On February 25, 2010, Inesti was convicted and sentenced to twenty years to life imprisonment. (State Defs. Rule 56.1 Stmt. ¶ 48.) See New York v. Inesti, 95 A.D.3d 690, 944 N.Y.S.2d 148 (1st Dep't), appeal denied, 19 N.Y.3d 1026, 953 N.Y.S.2d 559 (2012).
Inesti mailed his original complaint from the Clinton Correctional Facility, but listed his address as Downstate Correctional Facility. (Dkt. No. 2: Orig. Compl. at 1.) Inesti's original complaint was signed on April 20, 2010 (id. at 14), but the mailing envelope was postmarked April 7, 2011. Inesti does not indicate when he gave his original complaint to prison officials for delivery to the Court. The Court received Inesti's original complaint on April 12, 2011. (Id. at 1.)
The City and State defendants moved to dismiss Inesti's Second Amended Complaint. (Dkt.Nos.40, 42.)The Court granted in part and denied in part the motions to dismiss. See Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 (S.D.N.Y. June 22, 2012) (Peck, M.J.), report & rec. adopted, 2012 WL 3822224 (S.D.N.Y. Sept. 4, 2012) (Crotty, D. J.).
Presently before the Court are the City and State defendants' motions for summary judgment on the remaining claims in Inesti's second amended complaint. (Dkt. Nos. 78, 87.)
The State defendants' summary judgment motion argues that: (1) Inesti's claims arising out his incarceration at MPC are time-barred, (2) Hogan was not personally involved in the alleged deprivation of Inesti's rights, (3) Rabinowitz was not personally involved in the alleged deprivation of Inesti's rights and did not retaliate against Inesti, (4) Dr. Tuzel did not violate Inesti's rights, and (5) the State defendants are entitled to qualified immunity. (See Dkt. No. 88: State Defs. Br.; Dkt. No. 104: State Defs. Reply Br.)
The City defendants' summary judgment motion argues, inter alia, that: (1) Inesti's claims against Dunbar and Pressley arising out of his first period of incarceration at MHAUII are time-barred, (2) Inesti failed to exhaust his administrative remedies, and (3) the City defendants were not deliberately indifferent to Inesti's confinement conditions or medical needs. (See Dkt. No. 85: City Defs. Br.; Dkt. No. 105: City Defs. Reply Br.)
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRIVI Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must do "more than 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, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is generally disputed." Fed.R.Civ.P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, "[t]he time has come . . . `to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S.Ct. 53 (2003).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment [,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.
The heart of Inesti's complaint is that he was caught in a "revolving door" cycle between 2006 and 2008 where he was arrested, treated or not treated while in custody, and eventually released without a treatment plan, only to be arrested again because he was not receiving mental health treatment when not in custody. (Dkt. No. 38: Compl. ¶¶ 72-99; see also Dkt. No. 80: Carey 12/10/12 Aff. Ex. A: Inesti Dep. at 48-49; Dkt. No. 103: Inesti Opp. Br. at ¶¶ 3, 15.) While the City and State have a duty of responsibility for an individual while he is in their custody, that duty does not extend beyond the individual's release from custody.
"[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005 (1989).
The City and State's duty to Inesti ended upon Inesti's discharge from custody. While this may not be sound policy, it is beyond the province of this Court to create a duty for City and State defendants to assume responsibility for Inesti's safety and general well-being after being released from custody. See, e.g., McGhie v. Main, No. 11-CV-3110, 2011 WL 4852268 at *5 (E.D.N.Y. Oct. 12, 2011) (denying deliberate indifference claim where plaintiff, who was on supervised release, "was not incarcerated or institutionalized when, as he alleges, he was deprived of necessary psychiatric care . . . [even] though the Probation Department had previously been providing him with necessary care, he was, upon the cessation of that care, free to find treatment on his own"); Cerbelli v. City of N.Y., 600 F.Supp.2d 405, 413 (E.D.N.Y.2009) (where psychiatric patient was released, after which he caused a disturbance at a police station resulting in his fatal shooting, the City was not liable since the N.Y.C. psychiatric facility "did not have a constitutional duty to protect him or provide him with medical services once he was no longer in its custody"); Luna v. Weiner, No. Civ.A. 05-2298, 2006 WL 1517747 at *3-4 (D.N.J. May 23, 2006) ("As a parolee, [plaintiff] had the freedom to `exercise normal responsibility for his own welfare,' and could have secured any medical attention of his choosing. Once the plaintiff walked beyond the walls of the prison in which he was being held, he regained his ability to care for himself and moved beyond the factual context for his `cruel and unusual punishment' claims before this Court about medical care." (citation omitted)).
The statute of limitations for a § 1983 action is three years. See, e.g., Melendez v. Greiner, 477 F. App'x 801, 803 (2d Cir.2012) ("The applicable statute of limitations for a § 1983 action arising in New York State is three years."), cert. denied, ___ S.Ct. ___, 2013 WL 598715 (Feb. 19, 2013); Donaldson v. N.Y.C. Dep't of Educ., 442 F. App'x 601, 602 (2d Cir.2011) (Plaintiff's "complaint falls well outside the three-year statute of limitations for section 1983 claims brought in New York." (citing Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir.2004))); Harper v. City of N.Y., 424 F. App'x 36, 39 (2d Cir.2011) (statute of limitations for § 1983 claims is three years, which begins to run when plaintiff knows or has reason to know of the harm); Storman v. Klein, 395 F. App'x 790, 792 (2d Cir.2010); Warren v. Altieri, 59 F. App'x 426, 427 (2d Cir.2003) ("Plaintiff's § 1983 action is governed by New York's three-year statute of limitations as set out in N.Y. C.P.L.R. § 214, the provision applicable to actions for personal injury.").
"[F]ederal law governs the determination of the accrual date (that is, the date the statute of limitations begins to run) for purposes of the statute of limitations in a section 1983 action." Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997); accord, e.g., Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 710-11 (2d Cir.2002); Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.1994), cert. denied, 516> U.S. 808, 116 S.Ct. 53 (1995). In general, under federal law, "the time of accrual [is] that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action." Covington v. City of N.Y., 171 F.3d 117, 121 (2d Cir.) (quotations omitted), cert. denied, 528 U.S. 946, 120 S.Ct. 363 (1999).
The Court previously found that Inesti's original complaint was filed on April 7, 2011. See Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 at *7-8 & n. 9 (S.D.N.Y. June 22, 2012) (Peck, M.J.) (citing cases), report & rec. adopted, 2012 WL 3822224 (S.D.N.Y. Sept. 4, 2012) (Crotty, D.J.). Absent tolling, Inesti's § 1983 claims prior to April 7, 2008 would be untimely.
"Although federal law determines when a section 1983 claim accrues, state tolling rules determine whether the limitations period has been tolled, unless state tolling rules would `defeat the goals' of section 1983." Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir.2007) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002), cert. denied, 538 U.S. 922, 123 S.Ct. 1574 (2003)).
C.P.L.R. § 208. This tolling provision has been held not to defeat § 1983's goals. See Shonowsky v. City of Norwich, No. 10-CV-0745, 2011 WL 4344028 at *3 (N.D.N.Y. Apr. 18, 2011) (C.P.L.R. § 208 held not to be inconsistent with the policy underlying § 1983 in an unlawful arrest, excessive force and deprivation of due process case), report & rec. adopted, 2011 WL 4344039 (N.D.N.Y. Sept. 14, 2011); Keitt v. City of N.Y., 09 Civ. 5663, 2010 WL 3466175 at *7 (S.D.N.Y. Aug. 9, 2010), report & rec. adopted, 2010 WL 3466079 (S.D.N.Y. Sept. 2, 2010).
C.P.L.R. § 208's "toll for insanity [is] to be narrowly interpreted" to apply "to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society." McCarthy v. Volkswagen of Am., Inc., 55 N.Y.2d 543, 548, 450 N.Y.S.2d 457, 459-60 (1982).
Because § 208 provides no definition for the term "insanity," "an individual's mental capabilities is largely a factual question." McCarthy v. Volkswagen of Am., Inc., 55 N.Y.2d at 548, 450 N.Y.S.2d at 459.
In some cases, courts conduct hearings to determine whether a plaintiff's mental state met the § 208 standard for insanity, but a hearing is not necessary here because Inesti failed to meet his burden of establishing that he suffered from "severe and incapacitating" mental illness that was continuous during the relevant period. See, e.g., Keitt v. City of N.Y., 09 Civ. 5663, 2010 WL 3466175 at *8 (S.D.N.Y. Aug. 9, 2010) ("In this case, no evidentiary hearing is necessary for the Court to determine whether Plaintiff is entitled to tolling under Section 208, as, even assuming that all of Plaintiff's factual allegations regarding the nature of his disability are true, they would not be sufficient to demonstrate the type of `severe and incapacitating disability' that could render him eligible for statutory tolling."), report & rec. adopted, 2010 WL 3466079 (S.D.N.Y. Sept. 2, 2010); Carter v. Doe, 05 Civ. 8432, 2006 WL 2109461 at *3 (S.D.N.Y. July 26, 2006) ("[N]o hearing is necessary because plaintiff's litigation history and medical records clearly preclude a finding that [plaintiff's] mental illness was sufficiently severe or continuous to warrant tolling the statute of limitations under Section 208."); Swartz v. Berkshire Life Ins. Co., 99 Civ. 9462, 2000 WL 1448627 at *4 (S.D.N.Y. Sept. 28, 2000) (Plaintiff "has not produced evidence sufficient to create an issue of fact as to his insanity as of April 1991, or to warrant a hearing on the subject"); de los Santos v. Fingerson, 97 Civ. 3972, 1998 WL 740851 at *5 (S.D.N.Y. Oct. 23, 1998) ("[I]t would strain logic to require that a hearing be held where a plaintiff has not only failed to satisfy his burden of showing insanity, but has also himself submitted evidence that establishes conclusively the lack of such disability.").
Inesti acknowledges that during his incarceration at MPC from September 24, 2007 to November 23, 2007, he sent one letter to Hogan and several complaints to Rabinowitz. (See page 6 above.) Inesti further admits that his complaints effectively got him transferred to a transitional program that he desired. (See page 6 above.) Inesti's admitted ability to pursue extrajudicial remedies demonstrate that he experienced lucid intervals and was able to protect his rights during the statutory period, thus further militating against the application of § 208's tolling provision. See, e.g., Hills v. Praxair, Inc., No. 11-CV-678, 2012 WL 1935207 at *12 (W.D.N.Y. May 29, 2012) (asserting workers' compensation claim and engaging in settlement discussions evidenced plaintiff's ability to assert his legal rights); Brown v. Greene, No. 11 Civ. 4917, 2012 WL 911560 at *3 (E.D.N.Y. Mar. 16, 2012) (denying § 208 tolling where plaintiff complained to the mayor's office and other City officials, and was awarded custody of son in Family Court proceedings during the relevant period); Shonowsky v. City of Norwich, No. 10-CV-0745, 2011 WL 4344028 at *7 (N.D.N.Y. Apr. 18, 2011) (Upon "being advised of his right to consult with an attorney concerning his circumstances, [plaintiff] requested such a consultation. The record also reflects plaintiff's manifest intention from the outset to bring suit based upon the circumstances surrounding his arrest and involuntary commitment, and that to further that intention he made arrangements two days after his admission to have photographs taken of his injuries. These actions suggest plaintiff's ability to protect his legal rights notwithstanding his mental condition and involuntary commitment and therefore militate against the applicability of section 208."), report & rec. adopted, 2011 WL 4344039 (N.D.N.Y. Sept. 14, 2011); Carter v. Doe, 2006 WL 2109461 at *3 (no tolling under § 208 where plaintiff litigated two lawsuits pro se during the relevant period); de los Santos v. Fingerson, 1998 WL 740851 at *5 (§ 208 tolling denied where plaintiff maintained psychiatric appointments and pursued rights before Worker's Compensation Board); Bedeau v. Santi, 221 A.D.2d 396, 397-98, 633 N.Y.S.2d 533, 535 (2d Dep't 1995) (denying § 208 tolling where, inter alia, plaintiff pursued a Workers' Compensation claim), appeal denied, 88 N.Y.2d 1002, 649 N.Y.S.2d 370 (1996); Cordero v. Epstein, 22 Misc.3d 161, 166-67, 869 N.Y.S.2d 725, 729 (Sup.Ct.N.Y.Cnty.2008) (plaintiff not insane for purposes of § 208 where she verified several complaints, executed numerous affidavits, and executed several contracts).
"It is well settled in this Circuit 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); accord, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948 (2009) ("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."); Murphy v. Cnty. of Chemung (In re Murphy), 482 F. App'x 624, 627 (2d Cir.2012); Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.2010); Warheit v. City of N. Y., 271 F. App'x 123, 126 (2d Cir.2008); Dyno v. Vill. of Johnson City, 240 F. App'x 432, 434 (2d Cir.2007), cert. denied, 552 U.S. 1310, 128 S.Ct. 1874 (2008).
In 1995, the Second Circuit held that:
Colon v. Coughlin, 58 F.3d at 873.
These decisions may overstate Iqbal's impact on supervisory liability. Iqbal involved allegations of intentional discrimination. Ashcroft v. Iqbal, 556 U.S. at 666, 129 S.Ct. at 1942. Where the alleged constitutional violation involved "invidious discrimination in contravention of the First and Fifth Amendments," Iqbal held that "plaintiff must plead and prove that the defendant acted with discriminatory purpose," whether the defendant is a subordinate or a supervisor. Id. at 676-77, 129 S.Ct. at 1948-49. It was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." Id. at 677, 129 S.Ct. at 1949. Where the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth, Eighth or Fourteenth Amendments, the personal involvement analysis set forth in Colon may still apply.
Even if Inesti's claims against Hogan are not dismissed as time barred, they still should be dismissed for lack of personal involvement. During Inesti's incarceration at MPC from September 24, 2007 to November 23, 2007, Inesti sent one letter to Hogan, in which he complained that MPC nurses were injecting him with psychotropic medication without his consent. (See page 6 above.) Inesti never received a response from Commissioner Hogan, and OMH has no record of Inesti's letter to Commissioner Hogan. (See page 6 above.) During his incarceration at Kirby from November 2008 to January 2009, Inesti did not complain to Hogan. (See page 8 above.)
Accordingly, the State defendants' summary judgment motion should be GRANTED as to Inesti's claims against Hogan.
Inesti asserts that Rabinowitz is personally involved because Inesti complained to Rabinowitz. (Dkt. No. 103: Inesti Opp. Br. ¶ 19.) While at Kirby, Inesti wrote one or two letters to Rabinowitz but never spoke with Rabinowitz regarding his treatment. (See page 8 above.) Inesti argues that "[i]f no action is taken and the complaints are simply ignored or not filed then a personal involvement is being acted out by these authorit[ie]s in position to investigate and rectify matters." (Inesti Opp. Br. ¶ 19.) Case law does not support Inesti's argument. To the contrary, as discussed in relation to Commissioner Hogan's personal involvement, a few complaints alone are insufficient to establish personal involvement. (See cases cited on pages 27-28 above.)
Inesti also has failed to establish Rabinowitz's personal involvement in relation to his First Amendment retaliatory transfer claim. Inesti was admitted to Kirby pursuant to a C.P.L. Article 730 Order on November 26, 2008 after being indicted and found unfit for trial. (See page 5 above.) On January 5, 2009, Kirby forensic psychiatrists determined that Inesti was competent to stand trial. (See page 8 above.) "[W]hen clinical staff [find] a patient referred pursuant to CPL 730 to be fit," the Executive Director (Rabinowitz) normally would "certify that defendants were no longer incapacitated and were capable of understanding the proceedings against him." (Dkt. No. 90: Rabinowtiz Aff. ¶ 9.) Rabinowitz normally "would sign a `Notification of Fitness to Proceed' based on the competency report of the defendant's treatment team at Kirby." (Rabinowtiz Aff. ¶ 9.) In Inesti's case, however, Deputy Director Vinny Miccoli "signed the `Notification of Fitness to Proceed'" based on the competency report of Kirby's forensic psychiatrists. (Rabinowtiz Aff. ¶ 10 & Ex. A: Notification of Fitness to Proceed.) Thus, Miccoli, not Rabinowitz, certified that Inesti was no longer incapacitated and was capable of understanding the proceedings against him.
Accordingly, the State defendants' summary judgment motion should be GRANTED as to Inesti's claims against Rabinowitz.
Inesti alleges that Dr. Tuzel was deliberately indifferent to Inesti's mental health needs and also that Dr. Tuzel injected him with psychotropic medication without Inesti's consent while Inesti was physically restrained. (Dkt. No. 38: Compl. ¶¶ 134, 136, 140; Dkt. No. 103: Inesti Opp. Br. ¶¶, 6-7, 15, 21.) Because Inesti was a pretrial detainee, his claim is analyzed under the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment. See, e.g., Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 at *12 & n. 21 (S.D.N.Y. June 22, 2012) (Peck, M.J.) (citing cases), report & rec. adopted, 2012 WL 3822224 (S.D.N.Y. Sept. 4, 2012) (Crotty, D.J.).
To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749 (1994).
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996).
As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996).
The Second Circuit has stated that determining whether a deprivation is objectively serious entails two inquiries:
Salahuddin v. Goord, 467 F.3d at 279-80 (citations omitted, emphasis added).
"`Courts have repeatedly held that treatment of a psychiatric or psychological condition may present a serious medical need. . . .'" Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000); see, e.g., Hamm v. Hatcher, 05 Civ. 503, 2013 WL 71770 at *8 (S.D.N.Y. Jan. 7, 2013); Hale v. Rao, 768 F.Supp.2d 367, 378 (N.D.N.Y.2011) ("Mental illness can constitute a serious medical need." (citing Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir.1989)); Covington v. Westchester Cnty. Dep't of Corr., 06 Civ. 5369, 2010 WL 572125 at *6 (S.D.N.Y. Jan. 25, 2010).
Where the plaintiff alleges delay or interruption in treatment rather than failure to receive treatment, "the serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner." Smith v. Carpenter, 316 F.3d at 186. "[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 [these] purposes: Id. (citing Chance v. Armstrong, 143 F.3d at 702-03)." The absence of adverse medical effects or demonstrable physical injury is one . . . factor that may be used to gauge the severity of the medical need at issue. Indeed, in 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. at 187 (citations omitted).
Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison [officials or] guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291 (1976) (fn.omitted). However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." 429 U.S. at 105-06, 97 S.Ct. at 292; accord, e.g., Burton v. N.Y.S. Dep't of Corr., 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. Mar. 21, 1994) (Sotomayor, D.J.)." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim. . . ." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292.
Inesti alleges that Dr. Tuzel was deliberately indifferent to his need for proper mental health treatment. (Dkt. No. 103: Inesti Opp. Br. ¶¶ 6-7, 15, 21.) Inesti cites McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992), for the proposition that a serious medical need may exist where "a medical condition . . . significantly affects an individual's daily activities" and asserts that his "medical condition p[e]rtaining to his mental illness has had serious consequences for him that at times he is unable to work, sleep, read, write or participate in every day normal activities." (Inesti Opp. Br. ¶ 6.) Inesti also asserts that Dr. Tuzel "abrupt[]ly stopped plaintiffils medication causing plaintiff sever[e] mental distress and pain" and falsely diagnosed Inesti of malingering, which ultimately led to him being found fit for trial, convicted, and sentenced to twenty years to life. (Inesti Opp. Br. at ¶¶ 6, 7, 15, 21.) Inesti also seems to argue that because Dr. Tuzel later prescribed medication to Inesti, Dr. Tuzel was deliberately indifferent for discontinuing Inesti's medication in the first place. (Inesti Opp. Br. ¶¶ 7, 21 & Ex. E: Inesti 4/9/09 Prescription.)
Inesti appears to disagree with the treatment offered and received, but he fails to provide any evidence that his mental health treatment or lack thereof while at Kirby resulted in an urgent threat to his health or was otherwise so grossly inadequate to rise to the level of deliberate indifference. See, e.g., Bellotto v. Cnty. of Orange, 248 F. App'x 232, 237 (2d Cir.2007) (Plaintiff's "treatment, which allegedly included missed medication dosages and inadequate monitoring of medications, also could not be found to rise to the level of a constitutional violation because the risk of harm that [appellant] faced as a result of the alleged treatment was not substantial. . . . [T]he only medical consequence he alleges was an anxiety attack, which . . . resulted in no physical injuries and `no acute distress.'"); Hamm v. Hatcher, 05 Civ. 503, 2013 WL 71770 at *9 (S.D.N.Y. Jan. 7, 2013) (ten-day interruption in medication resulting in withdrawal symptoms, including "exacerbated depression, nightmares, hopelessness, and suicidal thoughts" was insufficient to establish significant risk of serious harm); Mastroianni v. Reilly, 602 F.Supp.2d 425, 434 (E.D.N.Y.2009) (granting summary judgment for psychiatry department where medications were changed and discontinued but later reinstated because psychiatry department's actions "did not pose any particular risk of harm or result in actual adverse consequences to the plaintiff'); Goodson v. Evans, 438 F.Supp.2d 199, 202 (W.D.N.Y.2006) (granting summary judgment for defendants where plaintiff's course of treatment was changed but there was "no evidence, however, that those changes were incorrect or medically inappropriate"); Atkins v. Cnty. of Orange, 372 F.Supp.2d 377, 409-11 (S.D.N.Y.2005) (granting summary judgment where plaintiffs' broad allegations—"`over-medication with psychotropic drugs; denial of timely psychiatric evaluations; denial of emergency psychiatric care; denial of timely prescription drug administration; denial of adequate staffing of observation holding cells; denial of adequate therapeutic psychiatric care; and, denial of discharge planning and treatment plans'"—did not rise to a level of constitutional deprivation), aff'd on other grounds, 248 F. App'x 232 (2d Cir.2007); Beckford v. Portuondo, 151 F.Supp.2d 204, 218 (N.D.N.Y.2001) (Even "accepting that Plaintiff's mental health care was far from optimum, he was provided significant psychotropic medication, bi-weekly individual therapy sessions, and monthly medical reviews. . . . At most, Plaintiff disagrees with the treatment offered and alleges that he should have received more time with a psychiatrist, additional group therapy treatment, access to the facility's Intermediate Core Program, and increased out of cell and outdoor activity. Nowhere does Plaintiff allege that the failure to provide him these additional treatments resulted in an urgent threat to his life or limb or was otherwise so grossly inadequate to rise to the level of deliberate indifference.").
Accordingly, State defendants summary judgment motion as to Inesti's deliberate indifference claims against Dr. Tuzel should be GRANTED.
Psychiatric patients have a "significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 1036 (1990); see, e.g., Kulak v. City of N.Y., 88 F.3d 63, 74 (2d Cir.1996) ("It is a firmly established principle of the common law of New York that every individual of adult years and sound mind has a right to determine what shall be done with his own body and to control the course of his medical treatment." (quotations omitted)).
However, "it is well-settled that a patient's liberty interest in not being involuntarily medicated is overridden in an emergency, where failure to medicate forcibly would result in a substantial likelihood of physical harm to that patient, other patients, or to staff members of the institution." Odom v. Bellevue Hosp. Ctr., 93 Civ. 2794, 1994 WL 323666 at *3 (S.D.N.Y. July 5, 1994); see, e.g., Kulak v. City of N.Y. 88 F.3d at 74 ("Such a right may be set aside only in narrow circumstances, including those where the patient `presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution.").
A "decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg v. Romeo, 457 U.S. 307, 323, 102 S.Ct. 2452, 2462 (1982) (fn.omitted); see, e.g., Kulak v. City of N.Y., 88 F.3d at 75 (A "doctor will not be liable under § 1983 for the treatment decisions she makes unless such decisions are `such a substantial departure from accepted judgment, practice, or standards as to demonstrate that [she] actually did not base the decision on such a judgment.'"); Vanbrocklen v. Gupta, No. 09-CV-897, 2010 WL 5575325 at *5 (W.D.N.Y. Nov. 23, 2010); McNair v. Kirby Forensic Psychiatric Ctr., 09 Civ. 6660, 2010 WL 4446772 at *9 (S.D.N.Y. Nov. 5, 2010). "This standard requires more than simple negligence on the part of the doctor but less than deliberate indifference." Kulak v. City of N.Y., 88 F.3d at 75; see, e.g., Britt v. Buffalo Mun. Hous. Auth., 827 F.Supp.2d 198, 208 (W.D.N.Y.2011); Vanbrocklen v. Gupta, 2010 WL 5575325 at *5.
The record establishes that Dr. Tuzel decided to medicate Inesti without his consent on December 26, 2008 because Inesti was a danger to himself and others. See, e.g., Anthony v. City of N.Y., 339 F.3d 129, 142 (2d Cir.2003) (Sotomayor, C.J.) (involuntary medication did not violate due process rights where staff reasonably believed that plaintiff was a danger to herself or others); Kulak v. City of N.Y., 88 F.3d at 74 (granting summary judgment to a prison doctor who forcibly administered Haldol to an inmate who was "`extremely angry,'" had extensive history of mental illness, and was considered "`imminently likely to engage in conduct posing a risk of physical harm to himself or others'"); Murray v. Melendz, 2011 WL 4595213 at *6 (granting summary judgment for doctor who injected plaintiff without his consent to calm him down and ensure his safety and the safety of prison staff); Lombardo v. Stone, 99 Civ. 4603, 2001 WL 940559 at * 10 (S.D.N.Y. Aug. 20, 2001) (granting summary judgment for defendants where defendants assert "plaintiff was assaultive and dangerous throughout this period and that medication was therefore necessary to protect his safety and the safety of others" and finding plaintiff's "conclusory allegations of a purported conspiracy by defendants do not raise a triable issue of fact").
Moreover, Dr. Tuzel's decision is presumptively valid, and Inesti has failed to establish that Dr. Tuzel's decision was a "substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." See, e.g., Kraft v. City of N.Y. 696 F.Supp.2d 403, 415 (S.D.N.Y.2010) ("Because plaintiff fails to offer any evidence that the doctor defendants' diagnoses, actions, and subsequent determinations . . . fell substantially below accepted medical standards, no reasonable jury could conclude that they violated plaintiff's substantive due process rights under the Fourteenth Amendment"), aff'd, 441 F. App'x 24 (2d Cir.2011); Capellupo v. Nassau Health Care Corp., No. 06-CV-4922, 2009 WL 1705749 at *12 (E.D.N.Y. June 16, 2009) ("[T]he Court finds that plaintiff has failed to raise any genuine issues of material fact regarding defendants' comportment with the generally accepted standards of medical care and, by extension, their compliance with the requirements of the Mental Hygiene Law."); Fisk v. Letterman, 501 F.Supp.2d at 524 (granting summary judgment where plaintiff "has offered no evidence to support a claim that the defendants' decision to medicate her against her will deviated from accepted medical standards").
The Supreme Court has held that because:
Bell v. Wolfish, 441 U.S. 520, 536-37, 99 S.Ct. 1861, 1872-73 (1979); see, e.g., Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995); Schall v. Martin, 467 U.S. 253, 269, 104 S.Ct. 2403, 2412 (1984); Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir.2009) (pretrial detainees are protected by the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment, because pretrial detainees cannot be punished); Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir.2001).
Bell v. Wolfish, 441 U.S. at 537, 99 S.Ct. at 1873.
In regard to the demonstration of punishment,
Benjamin v. Fraser, 264 F.3d at 188 (quoting Bell v. Wolfish, 441 U.S. at 538, 995 S.Ct. at 1874) (alteration in original). This has been applied in the context of the distribution or allowances of food, water, showers, periods of exercise, and medical and mental health treatment to pretrial detainees. See, e.g., Azor v. City of N.Y. No. 08 CV 4473, 2012 WL 1117256 at *4 (E.D.N.Y. Mar. 30, 2012) (food and bathing); Felmine v. City of N.Y., No. 09-CV-3768, 2011 WL 4543268 at *22 (E.D.N.Y. Sept. 29, 2011) (food); Waters v. Luxama, 09 Civ. 4728, 2011 WL 1226421 at *2 (S.D.N.Y. Mar. 24, 2011) (food); Smart v. City of N.Y. 2009 WL 862281 at *9 (food, water and bathroom); Ruffino v. Lantz, No. 08-CV-1521, 2009 WL 3571306 at *3 (D.Conn. Oct. 28, 2009) (recreation); Webster v. City of N.Y. 333 F.Supp.2d 184, 200 (S.D.N.Y.2004) (food and water); Curry v. Kerik, 163 F.Supp.2d 232, 235-36 (S.D.N.Y.2001) (unsanitary and hazardous showering); Heisler v. Kralik, 981 F.Supp. 830, 838 (S.D.N.Y.1997) (showers and recreation), aff'd, No. 97-2869, 164 F.3d 618 (table), 1998 WL 636985 (2d Cir. July 21, 1998); Davidson v. Coughlin, 968 F.Supp. 121, 134 (S.D.N.Y.1997) (exercise); Cuoco v. Hershberger, 93 Civ. 2806, 1996 WL 648963 at *8 (S.D.N.Y. Nov. 6, 1996) (medical care); Irrizarry v. Kenny, 92 Civ. 1511, 1995 WL 678747 at *4 (S.D.N.Y.1995) (medical care); see also, e.g., Silvera v. Conn. Dep't of Corr., 726 F.Supp.2d 183, 190 (D.Conn.2010) (mental health treatment); Atkins v. Cnty. of Orange, 372 F.Supp.2d 377, 407-10 (S.D.N.Y.2005) (mental health treatment), aff'd on other grounds, 248 F. App'x 232 (2d Cir.2007); Burke v. Warren Cnty. Sheriff's Dep't, No. 90-CV-597, 1994 WL 675042 at *5 (N.D.N.Y. Nov. 25, 1994) (mental health treatment).
Absent a demonstration of an intent to punish, allegations of deprivation of the life necessities of a pretrial detainee are subject to the deliberate indifference analysis discussed above. (See cases on pages 31-36 above.) See, e.g., Cruz v. Reiner, No. 11 Civ. 2131, 2011 WL 6204101 at *4 (E.D.N.Y. Dec. 12, 2011); Lesane v. City of N.Y. 11 Civ. 2104, 2011 WL 5242721 at *2 (S.D.N.Y. Nov. 3, 2011); Felmine v. City of N.Y., 2011 WL 4543268 at *21; Kondziela v. Cnty. of Erie, No. 09-CV-601, 2011 WL 4055163 at *3 (W.D.N.Y. Sept. 12, 2011); Dilworth v. Goldberg, 10 Civ. 2224, 2011 WL 3501869 at *19 (S.D.N.Y. July 28, 2011), report & rec. adopted, 2011 WL 4526555 (S.D.N.Y. Sept. 30, 2011); Waters v. Luxama, 2011 WL 1226421 at *2; Bourdon v. Roney, No. 99-CV-0769, 2003 WL 21058177 at * 10 (N.D.N.Y. Mar. 6, 2003); Curry v. Kerik, 163 F.Supp.2d at 236.
Inesti's claims against the City defendants arising out of his incarceration at MHAUII from November 16, 2006 to January 16, 2007 are time-barred. (See page 23 above.)
Inesti also was incarcerated at MHAUII from October 19, 2008 to November 26, 2008 (see pages 4-5 above), but Inesti fails to provide any evidence to support his allegations.
Moreover, City defendants established that MHAUII correction officials manage inmates' food, showers, and recreation time, but not medication, which is dispensed by medical staff twice a day. (See page 3 above.) Deviations from standard procedure are noted in the logbook. (See page 5 above.) "The log book from Housing Area 13-A during the relevant time period clearly shows that Mr. Inesti was entitled to and offered three meals a day, regular sanitation, access to showers, out-of-cell relief, and medication (which he admits he sometimes refused)." (See page 5 above.) While it is unlikely that prison logbooks would reflect the wrongful denial of a condition of confinement, Inesti does not contest the accuracy of the logbooks. Inesti's conclusory allegations without more are insufficient to defeat City defendants motion for summary judgment.
While Inesti alleges he was denied food (see Inesti Opp Br. ¶¶ 8-9, 13, 23), he failed to support his allegation with any evidence. At MHAUII, food is served three times a day, and if an inmate refuses food, the matter is referred to the mental health department. (See page 3 above.) While Inesti missed one lunch on October 22, 2012 because there was not enough food in the meal cart (see page 5 above), missing one meal is not sufficient to establish a constitutional violation. See, e.g., Hooks v. Howard, No. 07-CV-0724, 2010 WL 1235236 at *13 (N.D.N.Y. Mar. 30, 2010) (Being "`denied the morning meal,'" "alleged by plaintiff to have occurred only on one occasion, while not to be condoned, are nonetheless de minimis and do not rise to a level of constitutional significance."); Benjamin v. Kooi, No. 07-CV-0506, 2010 WL 985844 at *11 (N.D.N.Y. Feb. 25, 2010) ("Based on this record, no reasonable fact-finder could conclude that . . . being denied two or three meals would deprive [plaintiff] of the minimal measures of necessities required for civilized living."), report & rec. adopted, 2010 WL 985823 (N.D.N.Y. Mar. 17, 2010); Parker v. Peek-Co, No. 06-cv-1268, 2009 WL 211371 at *4 (N.D.N.Y. Jan. 27, 2009) ("While plaintiff alleges that he was deprived of two meals on that date as a result of the defendant's actions, such a deprivation, while not to be condoned, is de minimis and does not rise to a level of constitutional significance."); Cruz v. Church, No. 05-CV-1067, 2008 WL 4891165 at *12 (N.D.N.Y. Nov. 10, 2008) ("If . . . meals[] are withheld from a prisoner on an isolated basis, such conduct, though not necessarily to be condoned, does not typically rise to a level of constitutional significance."); Cagle v. Perry, No. 04-CV-1151, 2007 WL 3124806 at *14 (N.D.N.Y. Oct. 24, 2007) (deprivation of two meals is "not sufficiently numerous, prolonged or severe to rise to the level of an Eighth Amendment violation"); Barclay v. New York, 477 F.Supp.2d 546, 555 (N.D.N.Y.2007) (being denied food for two or three days for a messhall violation did not constitute a constitutional violation).
Inesti contends that he was denied recreation. (Inesti Opp Br. ¶¶ 8-9, 13, 23.) According to MHAUII procedures, inmates are allowed one hour of out-of-cell recreation daily, which the inmate may refuse or recreation may be denied for failure to comply with security procedures. (See page 3 above.) City defendants established that Inesti was offered recreation, but that he refused recreation on a regular basis. (See page 5 above.) Inesti's access to but refusal to participate in recreation, for no more than 37 days, does not establish a constitutional violation. See, e.g., Willard v. Ramsey, No. 07-CV-1156, 2010 WL 786296 at *3 n. 10 (N.D.N.Y. Mar. 2, 2010) ("While [plaintiff] contends that he was deprived of showers and recreation, such claims are contradicted by the record which establishes that [plaintiff] was offered such activities and he refused to participate in them on numerous occasions. [Plaintiff's] access to, and refusal to accept, showers were the result of his own decisions and not unconstitutional conditions of confinement. The same is true of his recreational time."); Davis v. Castleberry, 364 F.Supp.2d 319, 322 (W.D.N.Y.2005) (granting summary judgment for defendants where "DOCS records indicate that plaintiff himself chose not to avail himself of his opportunities for exercise"); see also, e.g., Barnes v. Craft, No. 04-C1269, 2008 WL 3884369 at *9 (N.D.N.Y. Aug. 18, 2008) (Denial of outdoor exercise "for six days [was] simply not sufficiently severe and prolonged to rise to the level of an Eighth Amendment violation."); Barclay v. New York, 477 F.Supp.2d at 555 (There "is no evidence that [plaintiff] suffered any ill effects from denial of exercise, and there is no evidence that plaintiff was denied recreation for any reason other than as a disciplinary measure."); Gibson v. City of N.Y., 96 Civ. 3409, 1998 WL 146688 at *3 (S.D.N.Y. Mar. 25, 1998) ("[T]he deprivation of the opportunity to participate in recreation for eight days in a sixty day period, even when coupled with the deprivation of an opportunity to exercise on two consecutive days, is not sufficiently serious to constitute punishment under the Fourteenth Amendment"); Gill v. Pact Org., 95 Civ. 4510, 1997 WL 539948 at *10 (S.D.N.Y. Aug. 28, 1997) (twenty-six days of administrative segregation with deprivation of exercise "does not state a claim for denial of a cognizable liberty interest"); Davidson v. Coughlin, 968 F.Supp. 121, 131 (S.D.N.Y.1997) (deprivation of outdoor exercise for fourteen days did not violate Eighth Amendment).
The City defendants' summary judgment motion should be GRANTED as to Inesti's conditions of confinement claims against Dunbar and Pressley.
Inesti further alleges that Captains Dunbar and Pressley were deliberately indifferent to his need for proper mental health treatment. (Dkt. No. 38: Compl. ¶ 16, 105.) While Inesti asserts that he was not getting any mental health treatment while at MHUAII, he acknowledges being offered and taking medication, as well as refusing medication when he was delusional. (Dkt. No. 80: Carey 12/10/12 Aff. Ex. A: Inesti Dep. at 44-45.) Inesti also admits that counselors went around at MHAUII but he "was not getting no out-of-cell relief." (Carey 12/10/12 Aff. Ex. A: Inesti Dep. at 44.)
In any event, Inesti has failed to establish the personal involvement of Dunbar and Pressley as to his mental health treatment; it would be entirely appropriate for Captains Dunbar and Pressley to defer to medical staff as to Inesti's mental health treatment. See, e.g., Daley v. VonHagen, No. 1 1-CV-1071, 2012 WL 4464861 at *5 (W.D.N.Y. Sept. 20, 2012) ("Superintendents and deputy superintendents . . . `are not generally involved in the treatment of inmates . . .,' and it is generally reasonable for non-medical personnel to rely on qualified medical staff to deal with an inmate's medical needs." (citation omitted)); Hardy v. Diaz, No. 08-CV-1352, 2010 WL 1633379 at *7 (N.D.N.Y. Mar. 30, 2010) ("The Superintendent cannot be liable under Section 1983 for failure to supervise the prison medical staff, because he lacks the medical training and authority to do so."), report & rec. adopted, 2010 WL 1633390 (N.D.N.Y. Apr. 21, 2010); Gonzales v. Wright, No. 06-CV-1424, 2010 WL 681323 at *10 (N.D.N.Y. Feb. 25, 2010) ("The Superintendent's and Deputy Superintendent's delegation of medical judgment to appropriate staff was proper as the Second Circuit has cautioned that non-medical Defendants should not intercede in the medical care and treatment of an inmate. . . . Concomitantly, the Second Circuit has also explicitly held the denial of a grievance on medical matter is insufficient to demonstrate personal involvement on behalf of a prison Superintendent." (citations omitted)); Kemp v. Wright, No. 01 CV 562, 2005 WL 893571 at *9 (E.D.N.Y. Apr. 19, 2005) (dismissing personal involvement claim against nonmedical superintendents where plaintiff claims that they failed to intercede in his medical treatment); McKenna v. Wright, 01 Civ. 6571, 2004 WL 102752 at *5 (S.D.N.Y. Jan. 21, 2004) (Plaintiff's "position that [commissioner] is personally liable for `his failure to ensure' that [associate commissioner and chief medical officer] properly resolved [plaintiff's] grievance, is merely an end-run around the legal standard and fails to establish [commissioner's] personal involvement." (citation omitted)).
For the reasons stated above, the State defendants' and City defendants' motions for summary judgment (Dkt. Nos. 78, 87) should be GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6.
SCHEINDLIN, District Judge:
In evaluating a motion to dismiss, a court must accept as true the factual allegations contained in the complaint. See Cohen v. Koenig, 25 F.3d 1168, 1171 (2d Cir. 1994). All reasonable inferences must be drawn in favor of the non-moving party on such a motion. See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). Moreover, "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When considering the sufficiency of a pro se complaint, a court "must construe it liberally, applying less stringent standards than when a plaintiff is represented by counsel." Robles v. Coughlin, 725 F.2d 12, 14 (2d Cir. 1983).
The Supreme Court has established that a prisoner plaintiff's Eighth Amendment claims must meet both parts of a two-pronged test. Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, the plaintiff must allege an objectively serious violation of his constitutional rights. "[O]nly those deprivations denying `the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) ("the plaintiff must establish that the deprivation alleged is `sufficiently serious,' or `harmful enough,' to reach constitutional dimensions"). Second, the plaintiff must allege the subjective intent of the offending prison officials to inflict punishment wantonly upon him. See Wilson, 501 U.S. at 302. In cases concerning conditions of confinement (as opposed to physical injury), the "wantonness" requirement for state of mind is met by a showing that prison officials acted with "deliberate indifference" to the inmate's needs. Id. at 303.
Cplt. ¶ 19 (quoting Witness Protection Program Plan). Plaintiffs make similar allegations regarding the lack of educational and vocational programs ¶¶ 20-21, 28, 45), failure of executive staff of the MCC to make required visits (¶ 22), lack of mental health counseling (¶ 24), lack of hobby craft programs (¶ 25), lack of recreation, including tournaments, cassette tapes, CDs, and CD and tape players (¶ 26), and lack of personal enhancement courses (also called social education) (¶ 27).
Because I have already concluded that Plaintiffs have not alleged sufficiently serious deprivations in Paragraphs 19-22, 24-28, and 45, I need not consider whether Plaintiffs' allegations meet the subjective component necessary to sustain Eighth Amendment claims. I note, however, that Plaintiffs have made no allegation regarding Defendants' state of mind, and thus have not alleged that Defendants acted with "deliberate indifference" in violating the above-stated regulations.
Plaintiffs allege that a Catholic chaplain makes weekly visits to Unit 3 and conducts Catholic services only. Cplt. ¶ 23. Plaintiffs further allege that "all Unit 3 inmates who were/are NOT Catholic, did/do NOT receive the opportunity for religious services conducted according to the rites of their respective religion" (sic). Id.
This allegation suffers from a defect similar to those described above. Despite the foregoing, no plaintiff alleges that he is not Catholic. Because no plaintiff alleges that his personal right to practice his religion has been violated, the allegation fails to state a claim upon which relief may be granted. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474 (1982) (plaintiffs must assert their own rights, not the rights of third parties) (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (same).
Plaintiffs allege that in spite of the MCC Protective Custody Handbook, which states that "[r]outine sick call is held daily on the Unit," Unit 3 inmates have not been able to sign up to receive medical, dental, psychiatric, or eye care. Cplt. ¶ 32; see also id. ¶ 42. They further allege that Defendant Reed specifically refused the request of a Unit 3 inmate to see an ophthalmologist, explaining that "no Unit 3 inmate will be treated/examined by [an ophthalmologist] unless . . . at least four (4) other Unit 3 inmates request [[[] the same examination/treatment. . . ." Cplt. ¶ 32. Each Plaintiff also alleges that Defendants have acted with "deliberate indifference" and that the deprivation of "reasonable health care" has caused him "undue suffering." Id.
These allegations fail to state a claim. No Plaintiff alleges that he was the inmate who wanted to see an ophthalmologist but was refused by Defendant Reed Id. Indeed, no Plaintiff alleges any facts regarding when he wanted to see a doctor, his reason for wanting to see a doctor, or the explanation given by a defendant prison official for declining a request for medical care. Without any specific factual allegations from any Plaintiff, the Court is unable to determine whether any Plaintiff has suffered "the `unnecessary and wanton infliction of pain' . . . [that is] proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion)); see also Lee v. Carlson, 645 F.Supp. 1430, 1437 (S.D.N.Y. 1986) (complaint insufficient to state Eighth Amendment claim where prisoner did not allege specific facts describing intentional denial or delaying of access to medical care, or intentional interference with treatment once prescribed), aff'd, 812 F.2d 712 (2d Cir. 1987). Thus the Court cannot determine whether any actual, serious medical needs are alleged to have been met with deliberate indifference by the Defendants.
The allegations that Plaintiffs are subject to possible poisoning, and that numerous incidents of tampering have occurred, are insufficient to state a claim because Plaintiffs lack standing. While Plaintiffs state that they fear that their food may be tainted, no Plaintiff alleges that he has actually been harmed by tainted food. In addition, no Plaintiff alleges any harm resulting from the tampering that Plaintiffs say has already occurred. As no Plaintiff has alleged the requisite "distinct and palpable injury to himself," the claim must be dismissed to the extent it alleges an Eighth Amendment violation. See Warth v. Seldin, 422 U.S. 490, 501 (1975).
Plaintiffs' claim that they are deprived of adequate utensils fails because it does not state a sufficiently serious deprivation. To be sure, the Eighth Amendment "require[s] that prisoners be served `nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it.'" Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (quoting Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981)). However, Plaintiffs do not allege facts that suggest an "immediate danger" to their health. Nor do prisoners have a constitutional right to food that "augment[s] food prepared by the general inmate population." Further, "[t]he Constitution does not require that sentenced prisoners [receive] every amenity which one might find desirable." Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), rev'd on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520 (1979).
Similarly, Plaintiffs' allegation that they are deprived of "adequate and safe alternative nutrition" fails to state a claim because prisoners are not constitutionally guaranteed an alternative source of food in the absence of an original source that is nutritionally inadequate. Plaintiffs have alleged no facts that would allow this Court to conclude that the food prepared by the general inmate population
Finally, even if I were to find that Plaintiffs' allegation states an objectively serious violation of their constitutional rights, Plaintiffs' food claims would still fail to state an Eighth Amendment violation. Plaintiffs make no allegation regarding Defendants' state of mind, and thus fail to allege that Defendants acted with deliberate indifference in depriving them of adequate food.
Plaintiffs contend that, contrary to the written philosophy of the Witness Protection Program, inmates in Unit 3 must do "harder time" in prison "as a consequence of having cooperated with the Government." Cplt. ¶ 29, 30, 36, 41. Plaintiffs cite a Senate subcommittee report which recommends that the BOP assign specially trained personnel to work with prisoner-witnesses, and that these personnel not be rotated throughout the prison population. In addition, the report recommends that such personnel should consist of people who "believe in" the Witness Protection Program. However, Plaintiffs allege that the BOP has failed to comply with these recommendations, and that this failure leads to prisoner-witnesses serving "harder time" in prison. Plaintiffs also make the general allegation that Defendants have "violated [their] constitutional rights in/at every opportunity available to them'" Id. ¶ 35.
Plaintiffs' allegations are too vague to state a claim. None of the claims suggests that "a prison official's act or omission . . . result[ed] in the denial of `the minimal civilized measure of life's necessities.`" Farmer v. Brennan, 114 S.Ct. 1970, 1977 (1994) (quoting Rhodes, 452 U.S. at 347); see also Wilson, 501 U.S. at 298. As described above, this is the standard which must be met for Plaintiffs to proceed with an Eighth Amendment claim.
Plaintiffs make a number of allegations suggesting that their confidentiality is not adequately protected within the prison. They contend that copying facilities are not properly secured to protect the confidentiality of Unit 3 inmates (Cplt. ¶¶ 33, 43, 46); that Defendant (and Unit 3 Manager) Muhammad's assignment to another unit within the MCC results in "matters pertaining to Unit 3 inmates" being discussed elsewhere in the prison (id. ¶ 33); and that Muhammad works with a correctional counselor who does not have security clearance for Unit 3 (id. ¶ 37). Specifically, Plaintiffs allege that on at least one occasion, the lack of secured photocopying facilities resulted in a Unit 3 inmate's sponsoring Assistant United States Attorney learning of that inmate's intent to file a complaint in this action before the inmate had actually filed the complaint. Id. ¶ 38. Plaintiffs allege more generally that sensitive documents belonging to Unit 3 inmates "are left, for days, . . . on another floor [of] the MCC." Id.
Plaintiffs' allegations are speculative and thus fail to state a claim. As discussed earlier, a plaintiff must allege a distinct harm that he personally has suffered. In the instant case, no Plaintiff alleges that he was the inmate whose sponsoring AUSA learned about a complaint he planned to file; indeed, no Plaintiff alleges that he has suffered any harm as a result of perceived breaches of security. Therefore the claims regarding the security of documents and the confidentiality of Unit 3 inmates, to the extent they state Eighth Amendment violations, must be dismissed.
Without elaboration, Plaintiffs allege that they "face asbestos poisoning [[[,] second-hand smoke poisoning[, and] radiation poisoning." Cplt. ¶ 33. In addition, they complain of improper "ventilation, pest control, lighting, [and] plumbing" on Unit 3. Id. ¶ 42. They repeat the allegation that "rodent and insect infestation is rampant within Unit 3" (id. ¶ 34) as well as the allegation that Unit 3 lacks "adequate operable lighting" and "safe, hyg[i]enic plumbing." Id.
These allegations are quite serious and troubling. But because Plaintiffs provide no details to support their claims, it is impossible to determine whether Plaintiffs can make the required showing of "extreme deprivation." See Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Further, no Plaintiff has alleged that he has suffered any injury as a result of the above-named conditions. Thus the allegations fail to state an Eighth Amendment claim upon which relief may be granted.
Plaintiffs allege that Defendants "have repeatedly refused to allow application for donation" of equipment such as a copy machine, typewriter, and exercise and recreational equipment. Cplt. ¶ 39. Plaintiffs contend that this refusal violates BOP regulations regarding the acceptance of donations, 28 C.F.R. §§ 504.1 and 504.2 (1995). This allegation fails to state a claim upon which relief may be granted. First, Plaintiffs do not allege that Defendants refused to allow them to apply for donations. Second, even if Plaintiffs had asked for permission to apply for donations, and Defendants had refused, this action could not form the basis of an Eighth Amendment claim. The BOP regulations do not mandate that prisoners be allowed to apply for donations. Rather, the regulations redelegates the authority of the Director of the BOP to accept donations, and addresses the circumstances under which donations may be accepted. The regulations cited by Plaintiffs do not address a procedure, if any exists, by which prisoners may apply for donations.
Plaintiffs allege that Unit 3 inmates have made "repeated attempts" to "initiate organization(s)" as permitted by 28 C.F.R. § 551.31 et seq., but that Defendants "have refused, without reason, to permit the establishment of such an inmate organization." Cplt. ¶ 31. However, no inmate has alleged that he himself was prevented from forming an organization, or that he was harmed by the refusal to allow Unit 3 inmates to form organizations. Even if such allegations had been made, the claim does not allege a deprivation of the "minimal civilized measure of life's necessities." See Wilson, 501 U.S. at 298. Thus the allegation is insufficient to support an Eighth Amendment claim.
Plaintiffs also suggest that the alleged violations of BOP regulations constitute a due process violation. See Cplt. ¶¶ 18, 30. However, a "prisoner must have a liberty interest before challenging its denial without due process." Pacheco v. Comisse, 897 F.Supp. 671, 680 (N.D.N.Y. 1995) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)); see also Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (a prisoner must establish that he possessed a liberty or property interest protected by the Constitution or a federal statute in order to state a claim for denial of procedural due process). In Sandin v. Conner, 115 S.Ct. 2293, 2299-2300 (1995), the Supreme Court recently held that "the mere enactment of a state or prison regulation does not necessarily create a protected liberty interest for prisoners." Schmelzer v. Norfleet, 903 F.Supp. 632, 634 (S.D.N.Y. 1995) (citing Sandin). While a state "may under certain circumstances create liberty interests which are protected by the Due Process Clause, . . . these interests will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 115 S. Ct. at 2300.
Under the Sandin standard, the first question is whether the deprivations alleged by Plaintiffs are a significant departure from ordinary prison conditions. See Malsh v. Austin, 901 F.Supp. 757, 761 (S.D.N.Y. 1995) ("After Sandin . . . the inquiry must focus not on the mandatory nature of a State's rule governing the imposition of the deprivation, but rather on the nature of the deprivation itself."). The regulatory violations alleged by Plaintiffs, as described in Part II.A.1., supra, primarily concern educational and recreational programs. "In the present case, even upon according a liberal construction to [Plaintiffs'] pro se complaint," I am unable to conclude that the violations alleged by Plaintiffs imposed an "atypical and significant hardship [upon them] in relation to the ordinary incidents of prison life." Walker v. Mahoney, 915 F.Supp. 548, 553 (E.D.N.Y. 1996); Sandin, 115 S. Ct. at 2300. Recent decisions of courts in this Circuit have held that more serious deprivations than those alleged by Plaintiffs do not meet the Sandin standard. See, e.g., Arce v. Walker, 907 F.Supp. 658, 662 (W.D.N.Y. 1995) (no liberty interest implicated under Sandin where plaintiff was denied exercise for a period of nineteen days); Carter v. Carriero, 905 F.Supp. 99, 104 (W.D.N.Y. 1995) (270 days' disciplinary confinement in Special Holding Unit does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life); Malsh, 901 F. Supp. at 761 (a "rescheduled dental appointment is not atypical, nor [does] it pose a significant hardship to the plaintiff in relation to the ordinary incidents of prison life, nor did it involve any restraint against plaintiff; plaintiff was simply forced to wait three weeks for nonemergency dental care"); Cody v. Jones, 895 F.Supp. 431, 441 (N.D.N.Y. 1995) (no liberty interest triggered through failure of prison regularly to accord plaintiff (i) one hour of daily outdoor exercise for a period of several months, (ii) two meals out-of-cell per day for a period of 32 days, or (iii) three hours out-of-cell time per day for a period of 32 days); see also Walker, 915 F. Supp. at 553 (collecting cases). Therefore Plaintiffs' due process claims must be dismissed.
SO ORDERED.
Gabriel Midalgo, Plaintiff, Pro Se.
Eliot Spitzer, Attorney General for the State of New York, Senta B. Siuda, Esq., Assistant Attorney General, Syracuse, NY, Attorney for Defendants.
NORMAN A. MORDUE, Chief U.S. District Judge.
Defendants' motion was referred to United States Magistrate Judge Randolph F. Treece for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). In a thorough Report and Recommendation (Dkt. No. 110), Magistrate Judge Treece recommends that the Court grant the motion for summary judgment. Plaintiff objects (Dkt. No. 112). After the Court extended time for plaintiff to file additional objections to the Report-Recommendation (Dkt. No. 113), plaintiff filed a second objection (Dkt. No. 114). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of those parts of a magistrate judge's Report and Recommendation to which a party specifically objects. Where only general objections are filed, the Court reviews for clear error. See Brown v. Peters, 1997 WL 599355, *2-*3 (N.D.N.Y.), aff'd without op., 115 F.3d 1007 (2d Cir.1999). Failure to object to any portion of a Report and Recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993).
Plaintiff's objections include a variety of allegations. A number of them revisit issues which are the subject of the Report and Recommendation. They do not, however, demonstrate the existence of material questions of fact which would warrant denial of summary judgment. Other allegations concern events allegedly occurring subsequent to the filing of the amended complaint herein; these are not properly the subject of this action. Upon thorough de novo review, the Court accepts and adopts the Report and Recommendation.
It is therefore
ORDERED that the Report and Recommendation (Dkt. No. 110) is accepted and adopted in its entirety; and it is further
ORDERED that defendants' motion for summary judgment (Dkt. No. 105) is granted and the action is dismissed.
IT IS SO ORDERED.
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff Gabriel Midalgo brings a civil action pursuant to 42 U.S.C. § 1983, alleging deliberate indifference towards his health and safety in violation of the Eighth Amendment, interference with mail and access to the law library in violation of the First Amendment, inadequate visitation, and harassment. Dkt. No. 8, Am. Compl. at ¶¶ 42-54. Defendants Bass, Sergeant at the Upstate Correctional Facility ("Upstate"), Correction Officer ("C.O.") Spinner, C.O. Streeter, C.O. Bennett, Trimm, Sergeant at Upstate, and C.O. Bouyea, bring this Motion for Summary Judgment. Dkt. No. 105. Plaintiff opposes the Motion. Dkt. No. 106. For the reasons to follow, it is recommended that the Motion for Summary Judgment be
On June 21, 2003, Plaintiff filed a grievance concerning "continuous harassment" regarding Plaintiff's legal mail as well as complaints made about his food and recreation. Defs.' 7.1 Statement, Ex. A, Grievance, dated June 21, 2003, & Case History & Record, UST 16208-03. C.O. Streeter provided a memo based on Plaintiff's grievance stating that he did not provide Plaintiff with spoiled food and that the meal "is inspected and packed in the mess" and then it is inspected once again by him prior to going into Plaintiff's cell. Id., Ex. A, Streeter Lt. to Sgt. King, dated July 20, 2003. Correction Officers Spinner and Trimm also submitted memos regarding the grievance and noted they did not refuse recreation time and the grievance may have been a result of a misbehavior report filed against Plaintiff. Id., Ex. A, Spinner Lt. to Sgt. King, dated July 23, 2003, & Trimm Lt. to Sgt. King, dated July 29, 2003. Sergeant King then submitted a memo to Captain Bezio stating that after he spoke to Plaintiff, and after interviewing several corrections officers on the matter, he could find no evidence to support the allegations. Id., Ex. A, Sgt. King Lt. to Captain Bezio, dated Aug. 1, 2003. Based on the above investigation, the Inmate Grievance Resolution Committee ("IGRC") recommended that the grievance complaint pass through to the Superintendent. Id., Ex. A, Case History & Record on Grievance dated June 21, 2003. Thereafter, the Superintendent found that the complaint had been investigated and that there was "no evidence to support [the] complaint[.]" Id., Ex. A, Superintendent's Appeal, dated Aug. 6, 2003. Plaintiff then appealed to the Central Office Review Committee ("CORC"). The CORC made several findings which included that the Superintendent's determination be upheld based on the same reasoning provided by the Superintendent and that there was no substantiation to the claim that Plaintiff was harassed nor was there sufficient evidence to conclude there was harassment and that performance of the employees' duties should not be construed as harassment.
On July 1, 2003, Plaintiff sent Captain Bezio a letter stating that a known enemy had been placed in his cell and that his cell had been searched and that no contraband slip was received by Plaintiff.
On July 10, 2003, Plaintiff filed a grievance regarding bunking with an alleged known enemy, harassment, and other complaints. Id., Ex. A, Grievance, dated July 10, 2003. C.O. Spinner submitted a memo to Sergeant Trimm stating that no legal material was removed from the cell and only items which were of excess were removed and logged, for which Plaintiff received a copy. Id., Ex. A, Spinner Lt. to Sgt. Trimm, dated July 6, 2003. The Cell Search or Inspection Notice listed the items that were removed. Id., Ex. A, Cell Search or Inspection Notice, dated June 27, 2003. Similarly, Sergeant Trimm sent a memo to Captain Bezio on July 6, 2003, stating that he had interviewed Plaintiff and that Plaintiff could provide no information as to the law books removed or any legal work that was missing. Id., Ex. A, Sgt. Trimm Lt. to Captain Bezio, dated July 6, 2003. In addition, Trimm stated that Midalgo was not in a cell with a known enemy. Id. The IGRC recommended that the grievance complaint filed pass through to the Superintendent. Id., Ex. A, Case History & Record for Grievance dated July 10, 2003. The Superintendent found that after an investigation, there was no evidence to show that Plaintiff was placed in a cell with a known enemy and that inmates are bunked together based on "[a]n assessment of compatibility" and that there was no evidence to support any of the other complaints. Id., Ex. A, Superintendent's Appeal, dated July 15, 2003. Plaintiff appealed to the CORC, which found the complaint to be without merit.
On July 17, 2003, Plaintiff wrote to food services stating he was receiving spoiled food. Am. Compl., Ex. "Exhaustion of my Administrative Remedies Some Material Lost. . .," Food Services Lt., dated July 17, 2003. On August 5, 2003, in a letter from Captain Racette to Plaintiff, Captain Racette stated that after conducting an investigation "a check with the messhall indicates that the trays were received in the proper condition" and that no other inmate had any problems with the trays. Id., Ex. "Exhaustion of my Administrative Remedies Some Material Lost. . .," Mem. from Captain Racette, dated Aug. 5, 2003.
Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party 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) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).
To defeat a motion for summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the moving party. FED. R. CIV. P. 56(e); 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 Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)).
Plaintiff brings suit against Defendants Bass, Spinner, Streeter, Bennett, Trimm, and Bouyea in both their individual and official capacities. See Am. Compl. Plaintiff seeks injunctive relief as well as compensatory damages against these individuals in their individual and official capacities. Id. at Wherefore Clause.
The Eleventh Amendment states "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The Eleventh Amendment bars a suit against the state in federal court unless the state consents to being sued or Congress legislatively overrides a state's immunity. Huang v. Johnson, 251 F.3d 65, 69 (2d Cir.2000). The state's immunity extends to state officials "act[ing] on behalf of the state" when the state is the "real, substantial party in interest." Id. at 69-70 (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddie, Inc., 506 U.S. 139, 142-47 (1993) & quoting Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)). Moreover, the Eleventh Amendment will bar recovery for money damages in a suit "against state officials in their official capacities." Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003).
Therefore, the Defendants cannot be sued in their official capacities in a claim for money damages. However, Midalgo may seek damages from them in their individual capacities. Furthermore, Plaintiff may sue the Defendants for injunctive relief in both their individual and official capacities because "official-capacity actions for prospective relief are not treated as actions against the State." Cruz v. Gomez, 202 F.3d 593, 595 n. 2 (2d Cir.2000) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n. 10 (1989)).
Defendants claim that Plaintiff has failed to exhaust his administrative remedies as to the following claims: 1) medical care;
The Prisoner Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997(e)(a), states that "[n]o action shall be brought with respect to prison conditions under [section 1983], 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." This 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); see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004).
The Second Circuit has suggested a three-step inquiry when the inmate opposes a defendant's assertion that the inmate did not exhaust his remedies.
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004); see also Braham v. Clancy, 425 F.3d 177, 181-82 (2d Cir.2005).
Here, the Amended Complaint was filed on October 24, 2003. Dkt. No. 8. Any grievances filed subsequent to that date are untimely and irrelevant to the current action.
Plaintiff's June 21st complaint grieved the issues of harassment, food, and recreation. See Defs.' 7.1 Statement, Ex. A, Grievance, dated June 21, 2003. Plaintiff's other complaint in July addressed the issues of a known enemy in his cell, harassment, and a cell search where items were taken. Id., Ex. A., Grievance, dated July 10, 2003. Both of these grievances were appealed to the Superintendent and CORC, thus, they are exhausted.
As to Plaintiff's claims regarding the law library, outgoing/incoming mail, and visitation, Defendants assert such were not fully exhausted. Plaintiff states that he did exhaust all his remedies as shown by the Exhibits to his Amended Complaint. Dkt. No. 106, Pl.'s Mem. of Law at Point Two. Plaintiff claims that Defendant Spinner destroyed legal documents that showed he attempted to exhaust. Id. Midalgo also alleges that he "filed and appealed at least ten grievances" and that "more than half were ignored or intercepted" by Defendant Streeter. Id.
Plaintiff did provide a copy of his grievance on the law library, outgoing/incoming mail, and visitation issues, which was dated April 26, 2003; however, the CORC stated they never received any grievances from April 2003. Am. Compl., Ex. A, Grievance, dated Apr. 26, 2003; Defs.' 7.1 Statement, Ex. A, CORC Appeal, dated Oct. 1, 2003. Plaintiff also submitted a letter stating that since he received no response that he sought an appeal to the Superintendent. Am. Compl., Ex. A, Grievance Lt., dated May 27, 2003. No other appeals were instituted on that grievance. Nonetheless, even if the CORC stated they did not receive the grievance, Plaintiff attempted to fulfill the exhaustion requirement by seeking an appeal to the next level as required when he received no response. See Walters v. Carpenter, 2004 WL 1403301, at *3; N.Y. COMP.CODES R. & REGS. tit. 7, § 701.8.
As remedies were "available," it must be determined if the Defendants' own actions estop them from raising the failure to exhaust affirmative defense. The Second Circuit has held that "prison officials' threats or other inhibiting conduct may estop defendants from asserting the affirmative defense of non-exhaustion." Hemphill v. New York, 380 F.3d at 688. Also, in making a determination based on the second inquiry, "[t]o establish equitable estoppel, the party claiming estoppel must show: (1) a misrepresentation by the opposing party; (2) reasonable reliance on that misrepresentation; and (3) detriment." McCullough, 2005 WL 3164248, at *4 (quoting Lewis v. Washington, 300 F.3d 829, 834 (7th Cir.2002)). In addition, "[w]hen asserting equitable estoppel against the government, one must also prove affirmative misconduct." McCullough, 2005 WL 3164248, at *4 (quoting Lewis v. Washington, 300 F.3d at 834). In this case, Plaintiff claims that Defendant Spinner destroyed legal documents showing he attempted to exhaust his administrative remedies and that "more than half [of the grievances] were ignored or intercepted" by Defendant Streeter. Pl.'s Mem. of Law at Point Two. Plaintiff's claim raises a matter of credibility but, for the purposes of this Motion, drawing all inferences in favor of Plaintiff, since Plaintiff set forth allegations of affirmative misconduct that could be considered "inhibiting," Defendants shall be deemed estopped from asserting the affirmative defense of failure to exhaust. Since we are considering Defendants actions as inhibiting, again for the purposes of this Motion, the claims will be deemed exhausted.
The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment. Prohibited punishment includes that which "involve[s] the unnecessary and wanton infliction of pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). To state a claim under § 1983, the inmate "must allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence will not suffice." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996).
The Supreme Court has delineated a two-part test for deliberate indifference. First, the "depravation alleged must be, objectively, sufficiently serious," and "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, the prison official must "know[] of and disregard[] an excessive risk to inmate health or 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." Id. at 837; see also Hayes v. New York City Dep't of Corr., 84 F.3d at 620.
The Eighth Amendment also imposes on prison officials "a duty . . . to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. at 833 (citation omitted). Nonetheless, prison officials may not be constitutionally liable for every injury an inmate suffers at the hands of other inmates. Id. at 834.A plaintiff may recovery for injuries received while in custody "if the injury resulted from the defendant prison official's purposeful subjection of the prisoner to a `substantial risk of serious harm' or from the official's deliberate indifference to that risk." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997) (quoting Farmer v. Brennan, 511 U.S. at 834). The Second Circuit has stated that "[t]he failure of custodial officers to employ reasonable measures to protect an inmate from violence by other prison residents has been considered cruel and unusual punishment." Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) (citing United States v. Bailey, 444 U.S. 394, 423 (1980)). However, "[a]n isolated omission to act by the state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequences of his conduct for those under his control and dependent upon him." Id. (quoting Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974)). Instead, "reckless disregard of plaintiff['s] right to be free from attacks by other inmates may be shown by the existence of a pervasive risk of harm to inmates from other prisoners and a failure by prison officials to reasonably respond to that risk." Knowles v. New York City Dep't of Corr., 904 F.Supp. 217, 221-22 (S.D.N.Y.1995) (citing Rucco v. Howard, 1993 WL 299296, at *4 (S.D.N.Y. Aug. 4, 1993) & Martin v. White, 742 F.2d 469, 474 (8th Cir.1984)) (internal quotation marks omitted) (alteration in original). Furthermore, "an inmate must inform a correctional official of the basis for his belief that another inmate represents a substantial threat to his safety before the correctional official can be charged with deliberate indifference." Sims v. Bowen, 1998 WL 146409, at *3 (N.D.N.Y. Mar. 23, 1998). Moreover, there is no constitutional right to the cellmate of a prisoner's choice even if a prisoner is not getting along with his cellmate. Harris v. Greer, 750 F.2d 617, 618 (7th Cir.1984).
When questioned about how Plaintiff knew there was a known enemy placed in his cell, Plaintiff stated that his "circumstantial evidence clearly proves that [he] was placed in the cell with a known enemy. The timing, the dates, [his] grievances, [his] appeals, the coincidences, everything[.]" Dkt. No. 105, Ex. A., Pl.'s Dep. at p. 63, lines 5-8. He also stated he told his correction counselor he was in danger from "all gang members" but then stated that he did not tell his counselor anything of such nature since "there was no counselor for [him] to speak to" until after the incident occurred. Id. at pp. 63, lines 12-14, 64, lines 17-20, & 65, lines 17-23. Plaintiff further stated that the fights he had with his cellmate occurred because his cellmate made "homosexual advances" on him. Id. at p. 16, line 14. After that cellmate, Plaintiff had approximately twenty (20) more cellmates because "things weren't working out" and he was fighting with them as well over alleged homosexual advances. Id. at pp. 25, lines 11-14 & 30, lines 21-24, & 31, lines 1-11. Plaintiff stated he had "plenty of fights" with other cellmates. Id. at p. 31, lines 16-24.
Midalgo has failed to meet the Eighth Amendment standard of deliberate indifference. First, Midalgo must show that he was incarcerated under conditions that posed a substantial risk of serious harm. Plaintiff has stated he fought with many of his cellmates and was injured, especially with his first cellmate whom "Sergeant Bass thought was a rival gang member." Am. Compl., Ex. "Exhaustion of my Administrative Remedies . . . [with fight investigation]. . .," Fight Investigation Form, dated June. 27, 2003. However, Plaintiff has not shown that the injuries he received were based on the purposeful subjection of Midalgo to a substantial risk of serious harm or by deliberate indifference to the risk. Plaintiff's claims were investigated and found to be without merit as there were no known enemies in the facility. Furthermore, after Plaintiff's fight with his cellmate, they were separated and placed in different cells. Id. Moreover, Plaintiff, over time, had numerous cellmates because they were not compatible. Prison officials took appropriate measures to protect Midalgo after the fights by removing the other inmate from the cell. Therefore, Plaintiff has failed to prove that any depravation alleged was serious and that he was incarcerated under conditions that posed a substantial risk of harm.
Plaintiff also claims that Defendants Spinner, Streeter, and Bouyea brought him spoiled or rotten food on several occasions and that from June to September 2003, Defendants Spinner and Streeter served Midalgo "moldy cheese, bread, spoiled milk and rotten fruits." Id. at p. 14, lines 3-6; Am. Compl. at ¶ 28.
The Eighth Amendment places a duty upon prison officials to ensure that prisoners receive adequate food. Farmer v. Brennan, 511 U.S. at 832. In that context, prisoners are to be provided with "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (citation omitted); see also Lunney v. Brureton, 2005 WL 121720, at *6 (S.D.N.Y. Jan. 21, 2005).
Here, C.O. Streeter stated that he did not provide Plaintiff with spoiled food and that meals are inspected and placed on the trays at the messhall and then are further inspected once again by him prior to Plaintiff receiving the food. Defs.' 7.1 Statement, Ex. A, Streeter Lt. to Sgt. King, dated July 20, 2003. The Superintendent found no evidence to support Plaintiff's claim on this issue. Id., Ex. A, Superintendent's Appeal, dated Aug. 6, 2003. Plaintiff admits that the officers do not prepare food trays and that they merely inspect them before they get to Plaintiff. Pl.'s Dep. at pp. 36, lines 19-24, & 37, lines 1-5. Midalgo also stated that while in the normal population, all the meals are sealed but in SHU some items are not sealed, however some do remain sealed such as cheese and meat. Id. at p. 38, lines 2-14. Plaintiff further stated that he received expired milk from the correction officers and that Defendants Spinner and Streeter provided spoiled food during breakfast and lunch from June to September 2003. Id. at pp. 41, lines 23-24, 42, lines 1-13, 50, lines 16-24, & 51, lines 1-12. On October 10, 2003, Plaintiff received a memo from the Food Services Administrator stating that his kosher meal was prepared in accordance with the guidelines set by the Department of Correctional Services. Pl.'s Mem. of Law, Ex., Inter-Departmental Memo from Haug to Midalgo, dated Oct. 10, 2003. The memo also states that items such as milk and bread are prepackaged and the trays are checked and wrapped with cellophane before they are delivered to the inmates. Id. The Superintendent further stated that after an investigation was conducted with the Food Service Administrator, since the food is prepackaged, contact between an officer and the trays are limited. Pl.'s Mem. of Law, Ex. Superintendent's Appeal, dated Oct. 28, 2003. Midalgo states, however, that he had to beg other prisoners to sell him food so that he "wouldn't starve or get sick" and that as a result he received psychological harm which include "anxiety, nightmares about being poisoned, delusions and dizziness." Id. at p. 50; Am. Compl. at ¶ 54.
Therefore, it is recommended that the Motion for Summary Judgment on Plaintiff's Eighth Amendment claims be
Plaintiff claims that Sergeant Trimm and "her C.O.s" were misplacing or destroying his magazine and newspaper subscriptions and that his outgoing mail/legal mail was read by Defendant Bouyea in order to "play mind games with [Plaintiff]." Am. Compl. at ¶¶ 22 & 46. Plaintiff further alleges that Defendant Bennett purposefully gave him the wrong books and cases and lost legal documents which resulted in frustrating Plaintiff's lawsuit and an inability to file a 440 motion pursuant to New York State's Criminal Procedure Law. Id. at ¶ 48.
"Interference with legal mail implicates a prison inmate's rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution." Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003). In order to state a claim for lack of access to the courts by interference with legal mail, "an inmate must allege that a defendant's deliberate and malicious interference actually impeded his access to the court or prejudiced an existing action." Cancel v. Goord, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001) (citing Lewis v. Casey, 518 U.S. 343, 349 (1996)). However, "[a] delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation." Cancel v. Goord, 2001 WL 303713, at *5 (citing Jermosen v. Coughlin, 877 F.Supp. 864, 871 (S.D.N.Y.1995) & Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir.1986)). But, if an adverse judgment to an "otherwise meritorious" motion resulted from defendants' delay, then a § 1983 claim is stated. Id.
A prisoner maintains the right to the flow of incoming and outgoing mail as protected by the First Amendment. Davis v. Goord, 320 F.3d at 351 (citing, inter alia, Heimerle v. Attorney General, 753 F.2d 10, 12-13 (2d Cir.1985)). Any "[r]estrictions on prisoners' mail are justified only if they `further [] one or more of the substantial governmental interests of security, order, and rehabilitation . . . [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved.'" Id. (quoting Washington v. James, 782 F.2d 1134, 1139 (2d Cir.1986)) (alterations in original). Therefore, "in balancing the competing interests implicated in restrictions on prison mail, courts have consistently afforded greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail than to incoming mail." Id. (citing, inter alia, Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)). Although an inmate has the right to be there when his legal mail is opened, an isolated event of tampering will be insufficient to allege a constitutional violation unless the inmate can show "that prison officials `regularly and unjustifiably interfered with the incoming legal mail.'" Id. (quoting Cancel v. Goord, 2001 WL 303713, at *6); see also Wolff v. McDonnell, 418 U.S. 539, 574-76 (1974); Morgan v. Montanye, 516 F.2d 1367, 1371 (2d Cir.1975); Gill v. Riddick, 2005 WL 755745, at *15 (N.D.N.Y. Mar. 31, 2005).
With regard to Plaintiff's legal mail being read, Plaintiff states that C.O. Bouyea "mumble[d] something similar to what [Plaintiff] wrote in [his] legal mail under his breath." Am. Compl. at ¶ 26. Bouyea purportedly repeated "something verbatim to a letter" Midalgo had written to a legal organization and that there were similar occurrences on several occasions. Pl.'s Dep. at pp. 39, lines 19-24, & 40, lines 1-6. Plaintiff claims that Bouyea whispered so that only Plaintiff could hear the statements. Id. at p. 40, lines 19-23. When Plaintiff was asked about the statement made in his Amended Complaint that "outgoing mail/legal mail was being read due to a fabricated penological interest" Midalgo stated that he believed his mail was read because he "agitated [the facility's] security interest and that . . . gave them a reason to read [his] mail and things [he] was writing in [his] mail." Id. at p. 83, lines 3-8. Another reason Plaintiff believed the mail was read was because the inmates who became his cellmates "would try to start a whole situation based on letters" that Plaintiff had written. Id. at p. 83, lines 9-12. Plaintiff had submitted a grievance about his legal mail and it was found to have no merit and that there was no evidence to support his complaint. Defs.' 7.1 Statement, Ex. A, Sgt. King Lt. to Captain Bezio, dated Aug. 1, 2003; Ex. A, Superintendent's Appeal, dated Aug. 6, 2003.
Here, Plaintiff has failed to show that there was interference with his legal mail. Plaintiff has not alleged any deliberate and malicious interference that actually impeded his access to the courts nor prejudiced an existing action. Plaintiff also provides no proof that his mail was read except that he states Defendant Bouyea was mumbling under his breath something similar to what had been written in Plaintiff's letters. Moreover, Midalgo has not shown that Bouyea opened and read his mail on a regular and unjustifiable basis.
Plaintiff further states he was not receiving his magazine and newspaper subscriptions and that Defendant Trimm "was aware that her C.O.s were purposefully misplacing [his] magazines and newspaper subscription" or providing them to other inmates. Am. Compl. at ¶ 22; Pl.'s Dep. at p. 34. Midalgo says he knew some of his magazines that were in the "rec room" were his because he saw his name on the label. Pl.'s Dep. at p. 34, lines 2-4. He also stated he wrote to the mail clerk to inquire about his mail, the mail clerk told him that magazines were given to the correction officers to be handed out, that they were not delivered to him. Id. at p. 34, lines 8-12. Then when Plaintiff spoke to Sergeant Trimm about the situation, she gave him "a devious smile and wrote something out on a pad and said she would look into it and she never did." Id. at p. 34, lines 16-19.
In addition, "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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Even if the Court were to draw all inferences in favor of Plaintiff that a pattern and practice has been established, Plaintiff has failed to allege the personal involvement of Defendant Trimm or any other Defendant. Furthermore, to the extent Plaintiff states that Defendant Trimm would be liable in a supervisory capacity, Plaintiff has failed to show what supervisory position Defendant Trimm holds as to the corrections officers who may have misplaced or destroyed his magazines.
Plaintiff further makes the claim that he received the wrong books and cases from the law library or that he never received the books requested. Id. at ¶ 48. Midalgo also alleges that his legal documents were lost and he was unable to file court documents as a result. Id.
Under the First Amendment, "prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977); Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir.2004). This right "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. at 828; Bourdon v. Loughren, 386 F.3d at 92 (quoting Bounds). However, there is no "abstract, freestanding right to a law library or legal assistance, [and] an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis v. Casey, 518 U.S. at 351. The Supreme Court held that in order to fulfill the actual injury requirement, derived from the constitutional doctrine of standing, on a law library claim where there is a lack of access to the courts, the inmate must be pursuing direct appeals from the conviction for which he or she was incarcerated, a habeas corpus petition, or a civil rights claim pursuant to § 1983 "to vindicate basic constitutional rights." Lewis v. Casey, 518 U.S. at 354.
Additionally, Plaintiff states that he was trying to find out how to copyright some of his poetry. Id. at p. 74, lines 22-23. Midalgo further acknowledges he was trying to file a N.Y. CRIM. PROC. LAW 440 motion because he claims he was wrongfully convicted and that he is still unable to file the motion because he received the wrong books and cases. Id. at pp. 74, line 24, & 75, lines 1-20. Plaintiff claims that he sent legal documents, which were exhibits Plaintiff wanted to attach to his 440 motion, to the law library to be copied, but that they were never returned even though the request was made. Id. at pp. 79, lines 16-24, & 80, lines 1-8. As a result, Plaintiff claims that this was another reason why he was unable to file the motion. Id. at p. 80, lines 1-5. Midalgo stated that he did not file the 440 motion prior to arriving at Upstate because he had been studying the process and procedures. Id. at p. 81, lines 18-21. Plaintiff alleges that if not Defendant Bennett, then either Defendants Streeter or Spinner lost his copies because "[t]hey colluded together" and conspired against Plaintiff. Id. at pp. 87, lines 10-24, & 88, lines 1-4. Midalgo avers that his claim could be proven by "circumstantial evidence," which would include his grievances and hearings. Id. at p. 88, lines 7-17.
However, the Second Circuit has held 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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). In this case, as only Plaintiff's law library claim as to his 440 motion could proceed, Plaintiff has failed to allege any personal involvement on the part of any of the Defendants. Plaintiff states that Defendant Bennett was not at fault for the missing books. That statement belies the notion that there was any personal involvement. In addition, Plaintiff fails to state a claim for supervisory liability against Defendant Bennett for the missing books as Plaintiff does not state which Defendants Bennett was supervising. Furthermore, as to the missing copies of exhibits for the 440 motion, Plaintiff merely claims that Defendants Bennett, Streeter, and Spinner were involved because he believes there was a conspiracy. That allegation does not constitute personal involvement.
Therefore, it is recommended that the Motion for Summary Judgment be
Plaintiff alleges that Defendant Trimm delayed his visit with his mother for several hours causing him emotional distress. Am. Compl. at ¶ 50.
"Although inmates do not relinquish their constitutional rights when imprisoned, implicit with incarceration is the fact that confinement imposes a limitation on privileges and rights." Henry v. Coughlin, 940 F.Supp. 639, 642 (S.D.N.Y.1996) (citing, inter alia, Sandin v. Conner, 515 U.S. 472, 485 (1995)). Restrictions that are placed upon an inmate's constitutional rights "may be upheld as long as they are `reasonably related to legitimate penological interests.'" Hernandez v. McGinnis, 272 F.Supp.2d 223, 226 (W.D.N.Y.2003) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). However, family visitations for inmates only constitute a privilege and not a right. See Block v. Rutherford, 468 U.S. 576, 589 (1984); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125-26 (1977) (holding that one of the more obvious constitutional rights curtailed by confinement is the right to freely associate with those outside the penal institution); see also Lynott v. Henderson, 610 F.2d 340, 342 (5th Cir.1980) (stating that "[c]onvicted prisoners have no absolute constitutional right to visitation"); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975) (holding that a "[prisoner] has no constitutional right to physical contact with his family"); Hernandez v. McGinnis, 272 F.Supp.2d at 227.
Therefore, it is recommended that the Motion for Summary Judgment be
Plaintiff claims that Defendants Trimm and Bass harassed him by placing a wiretap in his cell as well as confidential informants and/or hired help in order to cause him physical and psychological harm.
In terms of the wiretap, the claim would turn on whether a plaintiff had a legitimate expectation of privacy with respect to his conversations. To assess the expectation, "the person asserting a privacy interest must demonstrate a subjective expectation of privacy." George v. Carusone, 849 F.Supp. 159, 165 (D.Conn.1994) (citing California v. Greenwood, 486 U.S. 35, 39 (1988)) (further citations omitted). Then "that person's subjective expectation must be one that society accepts as reasonable." Id. (citing California v. Greenwood, 486 U.S. at 39) (further citations omitted). The Second Circuit has held that "a convict has no expectation of privacy in his prison cell" because "society is not prepared to recognize as legitimate any subjective expectation of privacy that a [prisoner] might have in his prison cell[.]" Willis v. Artuz, 301 F.3d 65, 66, & 69 (2d Cir.2002) (citing Hudson v. Palmer, 468 U.S. 517, 526 (1984)).
Here, besides alleging that a wiretap was placed in his cell, Plaintiff does not provide a shred of evidence that there was actually a wiretap placed within his cell. Plaintiff sets forth certain circumstances, which to him seem like too much of a coincidence that a wiretap had to have been placed in his cell. Pl.'s Mem. of Law at Point Eight. Plaintiff merely states that he
With regard to his claim of a confidential informant or hired help being placed in his cell to harass him, Plaintiff states that he believes his cellmate was a confidential informant because Officer Bouyea, Officer Streeter, and others gave the cellmate extra food trays, magazines, and books. Pl.'s Dep. at pp. 17, lines 4-12 & 29, lines 4-10. Other than supposition, Plaintiff has not provided any proof or evidence that his cellmate was a confidential informant. Midalgo's claims are merely conclusory and unsupported by any facts. Furthermore, the Superintendent stated that inmates are placed together based on compatibility. Defs.' 7.1 Statement, Ex. A, Superintendent's Appeal, dated July 15, 2003. Plaintiff has not stated any type of claim available and moreover, Plaintiff would not have any choice in who was placed within his cell as inmates do not a have a constitutional right to the cellmate of their choice. Harris v. Greer, 750 F.2d 617, 618 (7th Cir.1984).
As noted previously, Defendant John Doe has not been identified or appeared in this action. See Dkt No 12. FED.R.CIV.P. 4(m) states that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, then the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time[.]" Furthermore, pursuant to the Local Rules for the Northern District of New York, "service of process [is required] upon all defendants within sixty (60) days of the filing of the complaint." N.D.N.Y.L.R. 4.1. Plaintiff's time for service on John Doe has expired, per both the Local Rules and the Federal Rules, as the date of the filing of the Amended Complaint was October 24, 2003. See Dkt. No. 8. Since Plaintiff has failed to properly identify this Defendant, such claims should be dismissed.
For the reasons stated herein, it is hereby
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Richard F. Mills, Romulus, NY, pro se.
Brian P. Fitzgerald, Napier, Fitzgerald and Kirby LLP, Buffalo, NY, for Plaintiff.
Shawn P. Martin, Hurwitz & Fine, P.C., Buffalo, NY, for Defendants.
JEREMIAH J. McCARTHY, United States Magistrate Judge.
Mills initially commenced this 42 U.S.C. § 1983 action pro se by complaint filed January 6, 2004 (Dkt. #1). His claims arise from his incarceration at the Genesee County Jail from October 2003 through December 2004.
In July 2004 the complaint was amended to add plaintiff David Haskins (Dkt. #11). Thereafter, plaintiffs were granted leave to file a second amended complaint (Dkt. #14, 18), and a supplemental complaint (Dkt. #31). In June 2006, they moved for leave to file a third amended complaint, which inter alia, sought to join the second amended and supplemental complaints and to add certain defendants to the sixteenth cause of action (Dkt. #86). On February 8, 2007, Hon. H. Kenneth Schroeder, Jr. granted plaintiffs' motion for leave to file a third amended complaint, stating that "the proposed third amended complaint shall be accepted as the third amended complaint insofar as it seeks to name Dr. Singh and Dr. Barry as defendants. Nicole Desmond shall be added as a defendant . . ." (Dkt. #196). The Third Amended Complaint was filed that day (Dkt. #204).
Mills previously moved for summary judgment (Dkt. #346). This motion was denied (Dkt.415 and 441).
Mills requests appointed counsel because of the large number of defendants, witnesses and documents, the complexity of the dental, medical and psychiatric issues, the complexity of his claims, and his psychological disability, which prevents him from competently litigating his claims. Mills' Declaration (Dkt. #449), ¶ 12. Mills' prior motions for appointment of counsel have been denied (Dkt.23 & 28).
There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See Sears, Roebuck & Co. v. Charles W. Sears Real Estate. Inc., 865 F.2d 22, 23 (2d Cir.1988). The decision as to whether or not to assign counsel lies clearly within the court's discretion. See In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir.1984). The factors to be considered by the court include the following: (1) whether the indigent's claims seem likely to be of substance; (2) whether the indigent is able to investigate the crucial facts concerning his claim; (3) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (4) whether the legal issues involved are complex; and (5) whether there are any special reasons why appointment of counsel would be more likely to lead to a just determination. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997). See also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001).
Mills has made no showing that he is incapable of investigating the facts of this case or conducting discovery. He has ably pursued discovery by filing several motions to compel (Dkt.91, 158, 244) and complying the voluminous discovery exchanged into well organized appendices. Mills has demonstrated his ability to present his legal theories in his motions to strike (Dkt.189, 357), for summary judgment (Dkt.184 and 193, 346), and for injunctive relief (Dkt. # 25). Although Mills' claims may not be frivolous, nor is there an indication that they are necessarily likely to have merit.
While Mills indicates that he has asked his court appointed counsel in another civil matter he has pending in this District to act as his appointed counsel in this case (Dkt. #467), Mills has failed to establish that appointment of counsel is necessary in this case. Therefore, Mills' motions for appointment of counsel are denied without prejudice. It remains Mills' responsibility to retain an attorney or to prosecute this action pro se. 28 U.S.C. § 1654.
Mills also requests court-appointed medical experts to assist in the prosecution of his action. Mills' Motion (Dkt. #449), ¶ 2. "Pursuant to Fed.R.Evid. 706, a court may, on its own motion or on a motion by any party, appoint an expert witness. The determination to appoint an expert rests solely in the Court's discretion and is to be informed by such factors as the complexity of the matters to be determined and the Court's need for a neutral, expert view. The appointment of an expert pursuant to Rule 706 is not intended to further partisan interests of any party, but to aid the Court, through the services of an impartial expert in its assessment of technical issues." Byng v. Campbell, 2008 WL 4662349, *7 (N.D.N.Y.2008).
"The Court must . . . be concerned with the substantial expense associated with appointing experts. In this regard, the mere fact that [plaintiff] has been permitted to proceed with this action in forma pauperis entitles him only to the right to proceed without prepayment of filing fees and the cost of service. . . . Under the circumstances, the Court is unable to find, at this time, that the appointment of an expert medical witness is warranted pursuant to Rule 706(a). `As a general matter, such measures should be taken sparingly, particularly given the large volume of cases in which indigent prisoners allege the improper deprivation of medical care, and the substantial expense that defendants may have to bear if the Court does appoint an expert.'" Id. Therefore, Mills' motion for appointment of medical experts is denied, without prejudice.
After defendants' motions for summary judgment were filed against Mills and Haskins, I ordered that "plaintiffs' responses to defendants' motions for summary judgment (Dkt.376, 389) shall be served and filed on or before August 1, 2008; replies, if any, shall be served and filed on or before August 11, 2008." Text Order dated July 1, 2008 (Dkt. #400) (emphasis added). Thereafter, I granted Haskins' motion (Dkt. #419) for an extension of time to respond to defendants' motion for summary judgment and, in an effort to keep both motions on a single briefing schedule, I directed that "plaintiffs' responses to defendants' motions for summary judgment (Dkt.376, 389) shall be served and filed on or before September 1, 2008; replies, if any, shall be served and filed on or before September 15, 2008, after which time the motions (Dkt.376, 389) will be taken under advisement." Text Order dated July 24, 2008 (Dkt. #420) (emphasis added).
Mills' response to defendants' motion for summary judgment was docketed on July 29, 2008. Consequently, when Haskins moved for an additional extension of time to file his response, I ordered that his "response to defendants' motion for summary judgment [389] shall be served and filed on or before September 30, 2008; a reply, if any, shall be served and filed on or before October 15, 2008, after which time the motion [389] will be taken under advisement." August 21, 2008 Text Order (Dkt. #439) (emphasis added). Several additional extensions were requested by Haskins, which were granted by similar orders, including my November 10, 2008 order which gave defendants until December 15, 2008 to file their reply to Haskins' opposition (Dkt. 443, 445, 447). However, the deadline for defendants' reply to Mills' opposition to their motion for summary judgment was never extended beyond September 15, 2008.
Although it is evident that defendants did not timely file their reply, Mills has failed to allege any prejudice as a result of late filing. Therefore, I deny Mills motion to strike. See Minitti v. Speiser. Krause. Nolan & Granito. P.C., 2006 WL 3740847, *11 n. 6 (S.D.N.Y.2006) (denying motion to strike untimely reply papers because "Guimaraes does not claim any prejudice as a result of the delay, and it is unclear why any would result from the late filing of reply papers to which Guimaraes had no right of rejoinder").
By Decision and Order dated December 11, 2008, I denied Mills' motion to strike Anthony Racaniello M.D.'s affidavit on the basis that it was untimely, believing that he was seeking to strike the materials submitted in opposition to his motion for summary judgment. Decision and Order dated December 11, 2008 (Dkt. #450). To the extent that Mills is moving to strike Dr. Racaniello's affidavit submitted in support of defendants' motion for summary judgment (Dkt. #435), I grant his motion for reconsideration. Nevertheless, I deny his motion to strike.
Giving Mills every possible favorable inference as a pro se litigant, I will consider this a motion to strike Dr. Racaniello's affidavit. Dr. Racaniello's affidavit's merely attaches his various medical records from his treatment of Mills and offers no medical opinions (Dkt. #435). Because Dr. Racaniello was Mills' treating psychiatrist and he offers no opinions concerning Mills' condition beyond what is contained in his medical records, I find no basis to strike Dr. Racaniello's affidavit. "Caselaw within this district provides that an expert report is not required unless [the doctor] will testify as to matters outside the scope of treatment provided." Abdul-Jabbar v. West. 2008 WL 596884, *2 n. 3 (W.D.N.Y.2008) (Foschio, M.J.). Therefore, upon reconsideration, I affirm my denial of Mills' motion to strike Dr. Racaniello's affidavit.
Mills also seeks reconsideration of my December 11, 2008 Decision and Order denying his request "for permission to exceed any page limits as needed in this instant proceeding." Mills' Declaration (Dkt. #421), ¶ 10. In denying this request, I noted that "I cannot grant Mills blanket authority to exceed the page limits in this case. However, I will consider any specific future request." Decision and Order dated December 11, 2008 (Dkt. #450), p. 4.
Mills concedes that his initial request was "admittedly vague and inartfully pled", and now clarifies that he is seeking permission to exceed the page limitations for his memorandum of law in opposition to defendants' motion for summary judgment (Dkt. #422), which is 43 pages.
Mills also seeks a ruling on his request for sanctions for defendants' failure to timely provide their exhibits in support of their motion for summary judgment, which was not addressed in my December 11, 2008 Decision and Order (Dkt. #450). According to Mills, although all summary judgment motions were to be filed by June 30, 2008, defendants sent him their exhibits a day later on July 1, 2008. Mills' Declaration (Dkt. #421), ¶ 13.
Absent any showing of prejudice from Mills having received the defendants' exhibits a day late, I find no basis to sanction defendants. Therefore, upon reconsideration, I deny Mills' request for sanctions.
However, while the moving party must demonstrate the absence of any genuine factual dispute, the party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Defendants argue that Genesee County Jail is not a proper defendant and should be dismissed. Defendants' Memorandum of Law (Dkt. #378), p. 18. I agree. "It is well settled that, under New York law, `departments which are merely administrative arms of a municipality, do not have a legal identity separate and apart from the municipality and cannot sue or be sued.'" Pierce v. Chautauqua County, 2007 WL 2902954, *3 (W.D.N.Y.2007) (Curtin, J.); Latona v. Chautauqua County Jail, 2004 WL 2457797, *3 (W.D.N.Y.2004) (Scott, M.J.) ("In New York, departments like the [Chautauqua County Jail], which are merely administrative arms of a municipal corporation, do not have a legal identity separate and apart from the municipality and cannot be sued"). Therefore, I recommend that defendant Genesee County Jail be dismissed from the case.
Mills asserts a number of claims pursuant to the Americans with Disability Act ("ADA"), 42 U.S.C. §§ 12132 and 12203, and Rehabilitation Act, 28 U.S.C. § 794. Defendants argue that these claims should be dismissed against the individual defendants as such claims are not authorized by the ADA or Rehabilitation Act. Defendants' Memorandum of Law (Dkt. #378), Point VII. I agree. "Because the ADA and Rehabilitation Act do not provide for liability against individual defendants, plaintiff's claims under these statutes are dismissed against [the individual] defendants". Allah v. Goord, 405 F.Supp.2d 265, 279 (S.D.N.Y.2005). See also Menes v. CUNY University of New York, 92 F.Supp.2d 294, 306 (S.D.N.Y.2000) ("Nor can individuals be named in their official or representative capacities as defendants in ADA or Rehabilitation Act suits.").
Mills argues that he qualifies as disabled under the ADA "based upon chronic/major depression . . . as well as Bi Polar disorder." Mills' Memorandum of Law (Dkt. #422), p. 13. "However, `[i]t is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial'" Menes v. City University of New York Hunter College, 578 F.Supp.2d 598, 618 (S.D.N.Y.2008). Mills has offered no evidence indicating that his depression, or any other condition limited any "major life activity."
Mills also argues that he was denied access to mail, the law library, the commissary, the law library, and the legal program on the basis of his disability. Mills' Memorandum of Law (Dkt. #422), pp. 13-14. "Quite simply, the ADA's broad language brings within its scope `anything a public entity does.' . . . This includes programs or services provided at jails, prisons, and any other `custodial or correctional institution.' . . . `[A]lthough [i]ncarceration itself is hardly a `program' or `activity' to which a disabled person might wish access,' mental health services and other activities or services undertaken by law enforcement and provided by correctional facilities to those incarcerated are `services, programs, or activities of a public entity' within the meaning of the ADA.'" Lee, supra, 250 F.3d at 691. However, as discussed infra, Mills has failed to establish that he was denied these services. Therefore, I recommend that Mills' ADA and Rehabilitation Act claims be dismissed.
Defendants argue that "Mills has failed to identify any physical injury as outlined in 42 U.S.C. § 1997e(e) and thus is not entitled to the relief that he requests." Defendants' Memorandum of Law (Dkt. #378), Point III.
"Section 1997e(e) of Title 42 provides that [n]o federal civil action may be brought by a prisoner confined to a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.' That provision bars recovery of compensatory damages for mental and emotional injuries, absent physical injury, in § 1983 actions." Nash v. McGinnis. 2008 WL 4898999, *6 (W.D.N.Y.2008) (Larimer, J.)." `Courts have strictly construed this requirement, barring claims by prisoners who demonstrate solely emotional or mental injury and barring physical injury claims where the injury alleged is de minimis.'" Abdur-Raqiyb v. Erie County Medical Center, 536 F.Supp.2d 299, 304 (W.D.N.Y.2008) (Larimer, J.). "Section 1997e(e) applies to all federal civil actions including claims alleging constitutional violations. Because Section 1997e(e) is a limitation on recovery of damages for mental and emotional injury in the absence of or showing of physical injury, it does not restrict a plaintiff's ability to recover compensatory damages for actual injury, nominal or punitive damages, or injunctive and declaratory relief "Thompson v. Carter, 284 F.3d 411, 416 (2d Cir.2002) (emphasis added). "Section 1997e(e) purports only to limit recovery for emotional and mental injury, not entire lawsuits." Id. at 418.
Thus, even if I were to conclude that Mills had not sustained a physical injury, it would not follow that his claims must be dismissed in their entirety.
As a result of this conduct, Mills claims that he is entitled to recover under the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241, 242, 1503 and 1505, 42 U.S.C. §§ 12132 and 12203(ADA), 29 U.S.C. § 794 (Rehabilitation Act), 28 C.F.R. part 35, and New York State law. Id. at ¶ 142. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at 143.
Defendants argue that Mills failed to exhaust his administrative remedies for this claim. Defendants' Memorandum of Law (Dkt. #378), Point II. "Prisoners may not sue under Section 1983, or any other federal law, to challenge prison conditions unless they first exhaust their administrative remedies." Black v. Goord. 2007 WL 3076998, *4 (W.D.N.Y.2007) (Siragusa, J.). To properly exhaust a claim, "inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004). New York has established grievance procedures for county jail inmates. See 9 N.Y.C.R.R. § 7032.4.
After filing a grievance request on November 24, 2003 (Appendix D, Vol. 1 (Dkt. #105), p. 33); Mills' Declaration (Dkt. #423), 15(D)), Mills' mental health grievance (# 2004-10) was filed on July 27, 2004. In it, he complained that "it has been about 10 months now and I only have a counselor for mental health", which arguably encompasses the claim at issue. Appendix D, Vol. 1 (Dkt. #105), p. 7. According to defendants, this grievance was denied at the lower level and unsuccessfully appealed to the Commission of Corrections. Declaration of Shawn Martin, Esq. (Dkt. #381), p. 7. Therefore, I find that Mills did exhaust his administrative remedies with respect to this claim. Nevertheless, I find that defendants are entitled to summary judgment on the merits of his claim.
Defendants argue that Mills' placement in isolation was necessary for institutional security-a legitimate penological objective-due to his suicidal statements, his history of suicidal behavior, and his refusal to allow representatives from the Genesee County Jail to contact Five Points Correctional Facility (his prior facility) regarding his mental health history and medication. Id. at Point IV(1); Affidavit of Augusta Welsh (Dkt. #432), ¶¶ 3-5; Affidavit of Ronald Greer (Dkt. #431), ¶ 3; Affidavit of Philip Mangefrida (Dkt. #384), Ex. 3. Defendants also argue that "Mills has not established the state of mind of jail officials to warrant relief and that his "discomfort, if any, was not cruel and unusual and did not extend beyond what should be considered routine discomfort." Affidavit of Shawn Martin (Dkt. #377), ¶ 20; Defendants' Memorandum of Law (Dkt. #378), p. 10. Defendants further argue that the six days Mills remained in isolation pending his mental health evaluation does not constitute an atypical, significant hardship implicating a protected liberty interest. Defendants' Memorandum of Law (Dkt. # 378), p. 10. Moreover, they argue that Mills failed to allege that he sustained an actual injury as required by 42 U.S.C. § 1997e(e).
In accordance with 9 N.Y.C.R.R. § 7013.7(a), which provides that "each inmate upon admission to a facility shall undergo an initial screening and risk assessment which shall consist of a screening interview, visual assessment and review of commitment documents", Kelly Kozak, MS. Ed, a mental health clinical therapist, performed a mental health consultation with Mills on October 17, 2003. Affidavit of Augusta Welsh (Dkt. #432), Ex. 1.
At that time, Mills refused to sign a release for his mental health records from Five Points or to disclose what medication or treatment he had been receiving. Affidavit of Augusta Welsh (Dkt. #432), ¶ 4. Upon signing a consent for the release of his confidential information and a contract for safety wherein he indicated that he would not harm himself or anyone else, Mills was released from isolation on October 21, 2003. Id. at ¶¶ 5-6.
The threshold issue on any of procedural due process claim involving an inmate "is always whether the plaintiff has a property or liberty interest protected by the Constitution". Narumanchi v. The Board of Trustees of the Connecticut State University. 850 F.2d 70, 72 (2d Cir.1988). "An inmate has a protected liberty interest in not being confined only if `the deprivation . . . is atypical and significant and the state has created the liberty interest by statute or regulation.'" Durran v. Selsky, 251 F.Supp.2d 1208, 1214 (W.D.N.Y.2003) (Larimer, J.) (emphasis added). "Although determining whether a particular confinement `imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life'. . . will involve factual determinations . . . `the ultimate issue of atypicality is one of law.' Among the factors to be considered are `(1) the effect of disciplinary action on the length of prison confinement; (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions; and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement.'" Id. (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
Mills cannot establish that this six-day period in isolation constituted an "atypical and significant" deprivation of a protected liberty interest. See Johnston v. Maha, 2008 WL 4823607, *2 (W.D.N.Y.2008) (Larimer, J.) (Where plaintiff was placed in isolation for 3 or 4 days the court concluded that "although it appears that Johnston lost some privileges during his brief period of isolation, there is no basis upon which one could reasonably conclude that his conditions of confinement were unusually harsh."); Schmelzer v. Norfleet, 903 F.Supp. 632, 634 (S.D.N.Y.1995) (holding that an "eleven day confinement in keeplock does not constitute an atypical, significant hardship implicating a protected liberty interest").
Mills has also failed to establish an Eighth Amendment violation.
Contrary to Mills' allegations, he was not denied mental health treatment while in isolation. As discussed supra, mental health consultations were performed by Kelly Kozak, MS.Ed, a mental health clinical therapist, on October 17, 2003 and October 21, 2003. Affidavit of Augusta Welsh (Dkt. #432), Exs. 1 and 3.
Even accepting Mills' remaining allegations that during this six-day period of isolation he was denied law library services, recreation, television and access to grievance protocols (Third Amended Complaint (Dkt. #204), ¶ 40), I find that such deprivations over this brief period and under these circumstances do not violate contemporary standards of decency.
Additionally, the record does not establish that defendants acted with deliberate indifference to Mills' health and safety. In fact, Mills' confinement arose at least in part from his own refusals to provide the consent and information necessary for defendants to assess whether he posed a danger to himself or others. See Jackson v. Johnson, 15 F.Supp.2d 341, 363 (S.D.N.Y.1998) (plaintiff "does not allege or provide any evidence as to how 99 days of keeplock deprived him of `the minimal civilized measure of life's necessities,' or that defendants acted with `deliberate indifference' to his health and safety.").
Mills' first cause of action also alleges First and Sixth Amendment violations, which are not addressed in defendants' motion. "However, notwithstanding that omission, under 28 U.S.C. § 1915(e) (2)(B)(ii),
However, Mills' First Amendment retaliation claims cannot be dismissed at this time. "A plaintiff alleging retaliatory punishment" `bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff.' "Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). "To survive a motion to dismiss on a retaliation claim, the prisoner must allege `(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'" Abascal v. Fleckenstein, 2008 WL 3286353, *7(W.D.N.Y.2008) (Skretny, J.). Mills alleges that he was placed in solitary confinement "to intimidate, harass and cause severe mental trauma in retaliation for [his] civil suit of 03-cv-00196. "Third Amended Complaint (Dkt. #204, ¶ 131).
"Plaintiff undisputedly has a constitutionally-protected right of access to courts." Abascal, supra, 2008 WL 3286353, at *8. He also alleges that an adverse action was taken against him for exercising this right. Consequently, I find that Mills' has stated a First Amendment retaliation claim.
Mills alleges that Superintendent Greer, Sheriff Maha, and corrections officers Luplow, Zipfel, Zehler, Hoy, Sage, Wolff, Klometz and Austin failed to return his legal materials until November 11, 2003. Third Amended Complaint (Dkt. #204), ¶¶ 144-15. As a result of this conduct, Mills alleges that he is entitled to recover under the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241, 242, 1503 and 1505, 42 U.S.C. §§ 12132 and 12203, 29 U.S.C. § 794, 28 C.F.R. part 35, and New York State law. Id. at ¶ 154. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at ¶ 155.
Defendants argue that Mills failed to exhaust his administrative remedies for this claim, which is otherwise meritless. Defendants' Memorandum of Law (Dkt. # 378), Point II, pp. 11-12. There is no complaint, grievance or other indication in the record suggesting that Mills complied or attempted to comply with the exhaustion requirements of the Genesee County Jail. See 9 N.Y.C.R.R. § 7032.4. However, Mills alleges that "no grievances were issued, no informal slips were completed as [he] had nothing to write with or the slips went missing in action once completed, only until about March or April of 2004 when Mills made his own carbon paper out of pencil did he obtain grievances or the slips back." Mills' Declaration (Dkt. #423), ¶ 41.
Moreover, these claims are without merit in any event. Defendants allege that on October 17, 2003 they received a request from Mills' attorney that Mills' materials be provided to him. Affidavit of Ronald Greer (Dkt. #431), ¶ 6, Ex. 3. Mills' attorney was provided with Mills' legal documents on October 20, 2003, after Mills executed an authorization permitting defendants to release these materials to his attorney. Id. at ¶ 6, Exs. 4 and 5. Defendants argue that Mills has failed to demonstrate that any of their conduct hindered his efforts at pursuing a legal claim. Defendants' Memorandum of Law (Dkt. #378), p. 11.
In response, Mills argues that while in isolation from October 15, 2003 to October 21, 2003, he was denied access to his personal property, legal materials (which were impermissibly confiscated), the law library, mail, paper, attorney, and writing utensils. Mills' Declaration (Dkt. #423), ¶¶ 39-46.
"Prisoners, including pretrial detainees, `have a constitutional right of access to the courts'". Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir.2004). "The right, which is grounded in the guarantees of the First, Fifth, and Fourteenth Amendments, `requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.'" Wesley v. City of New York, 2006 WL 2882972, *2 (S.D.N.Y.2006). However, "the mere limitation of access to legal materials, without more, does not state a constitutional claim, `as the Constitution requires no more than reasonable access to the courts.'. . . [I]n order to state a constitutional claim, a plaintiff must make a showing that []he has suffered, or will imminently suffer, actual harm; that is, that []he was `hindered in h[is] efforts to pursue a legal claim.'" Nolley v. County of Erie, 2008 WL 859165, *4 (W.D.N.Y.2008) (Skretny, J.). "Thus, Plaintiff must show that []he has suffered an actual injury traceable to the challenged conduct of jail officials. A plaintiff has not shown actual injury unless []he shows that a `nonfrivolous legal claim had been frustrated or was being impeded' due to the actions of prison officials." Id.
Mills' second cause of action also alleges Sixth and Eighth Amendment violations, which are not addressed in defendants' motion. Notwithstanding this omission, I may review Mills' complaint for failure to state a claim. See Ochoa, supra, 2008 WL 4517806, at *4. The allegations of the claim, which pertain to Mills' treatment while in jail, do not support a Sixth Amendment violation. See Green, supra, 490 U.S. at 510.Likewise, as discussed supra, these allegations do not support an Eighth Amendment cruel and unusual punishment claim. Therefore, I recommend that Mills' second cause of action be dismissed in its entirety.
Mills alleges that defendants Wolf, Manley, Ridder, Klometz, Klein, Mattice, Conway, Stack, Itijen, Smith, Aratari, Lindsey, and Cawkins "knew that he was being deprived of his legal/correspondence materials, his liberty, and failed to interveen [sic] and assist [him]." Third Amended Complaint (Dkt. #204), ¶ 157. He also alleges that these defendants "created serious danger to the plaintiff by failing to protect plaintiff Mills from the intentional discriminatory acts of there superiors as well as Genesee County Mental Health Workers." Id. at ¶ 159, and that "defendants failed to protect plaintiff Mills from the substantial deprivation of his rights to be free from cruel and unusual punishment, free from retaliation." Id. at ¶ 160.
As a result of this conduct, Mills claims that he is entitled to recover under the First and Fourteenth
Defendants argue that Mills has failed to exhaust his administrative remedies with respect to this claim. Defendants' Memorandum of Law (Dkt. #378), Point II. Defendants also argue that this claim "merely summarizes the first two and alleges that various other defendant other Defendants were aware of the allegations contained in the first two causes of action and failed to correct them and were otherwise liable under the doctrine of respondeat superior", Declaration of Shawn Martin, Esq. (Dkt. #381), ¶ 30, and that Mills' "conclusory allegations are insufficient to support personal liability of a supervisory defendant in an action brought under 42 U.S.C. Section 1983." Defendants' Memorandum of Law (Dkt. #378), p. 12. In response, Mills argues that "there are two potential claims in the third cause of action, failure to protect and supervisory liability." Mills' Memorandum of Law (Dkt. #422), p. 14.
With respect to Mills' surviving retaliation claim, I find that he has failed to establish defendants' personal involvement. "Personal involvement of a named defendant in any alleged constitutional deprivation is a prerequisite to an award of damages against that individual under section 1983. . . . In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. . . . As is true of other types of claims, this principle applies to causes of action claiming unlawful retaliation." Amaker v. Kelley, 2009 WL 385413, *17 (N.D.N.Y.2009).
Although defendants argue that the allegations are insufficient to support personal liability of these supervisory defendants because a supervisor cannot be held liable based solely upon a theory of respondeat superior, a number of the defendants are alleged to be corrections officers at the Genesee County Jail, rather than supervisory officials (see, e.g., defendant officers Wolf, Conway, Klometz, Klein, Ridder, Manley, Klometz, Mattice, Stack, Itijen, Smith, and Aratari (Third Amended Complaint (Dkt. #204), ¶¶ 14-15, 17, 20-25, 35)). In fact, Mills alleges that these defendants "knew that their superior officers and colleagues created danger to plaintiff. "Third Amended Complaint (Dkt. # 204), ¶ 158 (emphasis added).
Nevertheless, the only basis for the personal involvement of these defendants in Mills' retaliation claim appears to be that they were "assinged [sic] to or working Mills housing floors." Mills' Memorandum of Law (Dkt. #422), p. 14. "Because plaintiff has failed to make the requisite showing [of personal involvement], summary judgment in favor of [these] defendants is appropriate." Taylor v. Santana, 2007 WL 737485, *7 (S.D.N.Y.2007).
The only supervisory defendant alleged by Mills to have personal involvement in the constitutional deprivations appears to be defendant Cawkins. "Culpability on the part of a supervisory official for a civil rights violation can, however, be established in one of several ways, including when that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has 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." Cicio v. Graham. 2009 WL 537534, *7 (N.D.N.Y.2009).
Mills alleges that Ted Miller, Community Services Director of Genesee County Mental Health Services, Augusta Welsh, Clinical Director of Genesee County Mental Health Services, Nicole Desmond, M.S. Forensic Coordinator at Genesee County Mental Health Services, Superintendent Greer, Sheriff Maha, Genesee County, and Genesee County Mental Health deliberately denied him mental health treatment from October 15, 2003 through September 2004. Third Amended Complaint (Dkt. #204), ¶ 164. Mills alleges that he was only treated by social workers and not a psychologist or psychiatrist. Id. at ¶¶ 165-171. He also alleges the defendants knew that he "requires alternative methods of care and treatment due to adverse medication reactions. . . . Psychotherapy is required." Id. at ¶ 172. Moreover, Mills' alleges that he was "denied . . . all mental health services other than routine checks for lethality" Id. at ¶ 177.
As a result of this conduct, Mills claims that he is entitled to recover under the Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241, 242, and 245, 42 U.S.C. §§ 12132 and 12203, 29 U.S.C. § 794, 28 C.F.R. part 35, and New York law. Id. at ¶ 173, 180. He seeks compensatory and punitive damages, as well as injunctive relief, and reimbursement of all medical and mental health expenses. Id. at ¶¶ 174 and 181.
To establish a violation of the Eighth Amendment arising out of inadequate medical treatment, a prisoner is required to prove "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The "deliberate indifference" standard consists of both objective and subjective components. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Under the objective component, the alleged medical need must be "sufficiently serious." Id. A "sufficiently serious" medical need is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Id. "Factors that have been considered include the 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 ain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). "The medical condition does not have to occur immediately; it suffices if the condition presents itself in the next week or month or year." Moore v. McGinnis, 2004 WL 2958471, *6 (W.D.N.Y.2004) (Siragusa, J.).
"If sufficiently serious, the denial of mental health care may constitute a violation of the Eighth Amendment." Selah v. N.Y.S. DOCS Commissioner, 2006 WL 2051402, *5 (S.D.N.Y.2006)." Here, however, there is no allegation, as required, of `pain, discomfort or risk to health'". Id. Even assuming that Mills' mental health condition rises to the level of a serious medical need, the record is devoid of evidence from which a reasonable fact finder could conclude that defendants were indifferent to that need. As ppreviously discussed, mental health consultations were performed by Kelly Kozak, MS.Ed, a mental health clinical therapist, on October 17, 2003 and October 21, 2003, while Mills was in isolation. Affidavit of Augusta Welsh (Dkt. #432), Exs. 1 and 3. On October 21, 2003, Mills advised Ms. Kozak that Steve Benjamin, CSW, had assisted him with eye movement desensitization reprocessing ("EMDR") therapy while he was incarcerated at Five Points. Id. at Ex. 3 Five Points reported to Ms. Kozak that Mills "did well" at their facility with EMDR therapy. Id.
On October 28, 2003, Mills declined a psychiatric assessment by a doctor because he was unable to take medications and reported that he was doing "okay". Id. at Ex. 4. Shortly thereafter, on October 30, 2003, Mills requested to be seen by mental health and was promptly seen by Ms. Kozack on October 31, 2003. Id. at Ex. 5. On November 12, 2003, Mills requested EMDR therapy and threatened to sue Genesee County if he did not. Id. at Ex. 6. At that time Ms. Kozak advised him that Genesee County Jail provides "MH services . . . for lethality issues + to arrange psychotropic med consultations. We do not provide EMDR therapy or ongoing therapy in jail." Id. A week later, Mills made a similar demand for EMDR therapy, and at that time was informed by Ms. Kozak that "clinical directors are researching GCMH/Jail responsibility to provide EMDR therapy." Id. at Ex. 7. On November 25, 2003, Mills was evaluated by Ms. Kozak after he complained that he was having a "bad spell[]." Id. at Ex. 8. At that time he was informed by Ms. Kozak that she would keep him updated about the possibility of EMDR therapy. Id.
*17 On December 16, 2003, Mills agreed to receive an updated psychiatric evaluation to determine whether he continued to be in need of EMDR therapy. Id. at Ex. 9. However, on January 6, 2004, Mills advised that he wanted to see Dr. Sam Adegbite to complete his psychiatric evaluation. Id. at Ex. 10. On January 23, 2004, a psychiatric evaluation was performed by Dr. Rancaniello, a consulting psychiatrist with the Genesee County Mental Health Department. Affidavit of Anthony Racaniello, M.D. (Dkt. #435), ¶ 1, Ex. 1. As a result of his evaluation, Dr. Racaniello concluded that "EDMR Therapy was not warranted for Mr. Mills' condition." Id. Dr. Racaniello recommended that Mills receive an "independent evaluation by a psychiatrist not connected to his current or past treatment." Id. at Ex. 1.
Despite Dr. Racaniello's recommendation, Mills was seen at the Genesee County Jail by Steven Benjamin for EMDR therapy (albeit at his own expense, see Third Amended Complaint (Dkt. #204), ¶ 178) on January 23, 2004, February 6 and 20, 2004, March 5 and 19, 2004, April 2, 16, and 30, 2004, May 17 and 28, 2004, June 11 and 25, 2004, July 13 and 30, 2004, August 13 and 30, 2004, October 5, 15, and 29, 2004, November 12 and 19, 2004 and December 8, 2004. Affidavit of Ronald Greer (Dkt. #431), Ex. 8; Affidavit of Nicole Desmond (Dkt. #433), Ex. 4 (Mills "currently seeing Steven Benjamin for EMDR").
On April 6 and June 1, 2004, Mill was scheduled to be seen by Genesee County Mental Health Services at the Genesee County Jail, but he refused. Affidavit of Augusta Welsh (Dkt. #432), ¶¶ 14 and 15, Exs. 11 and 12. On June 8, 2004, he was evaluated by Scott R.W. Grefrath, CSW, of Genesee County Mental Health Services on June 8, 2004. Id. at Ex. 13.
A chemical dependency evaluation of Mills was conducted at the Parkridge Mental Health Clinic on July 15, 2004. Affidavit of Therese Bryan (Dkt. #434), Ex. 1. Mills was treated by Dr. Racaniello on August 18, 2004 and prescribed medication. Affidavit of Anthony Racaniello (Dkt. #435), ¶ 3, Ex. 2. Mills was kept on medication and seen by Dr. Racaniello on September 1 and 15, 2004, October 25, 2004, and December 14, 2004. Id. at ¶¶ 4-6, 8, Exs. 3-5, 7.
Mills was also seen by Nicole Desmond, MS, a Mental Health Clinical Therapist Forensic Coordinator with Genesee County Mental Health, on August 10, 17 and 24, 2004, September 17 and 21, 2004, and November 9, 2004. Affidavit of Nicole Desmond (Dkt. #433), 3-8, Exs. 1-6.
The record demonstrates that Mills received adequate care for his mental health condition while incarcerated at the Genesee County Jail. Mills was seen by the prison's mental health staff each time he requested. As a result, "it does not appear here that plaintiff suffered any serious adverse effects as a result of the temporal gap between his request for mental health care . . . and his psychiatric examination" Swift v. Tweddell, 582 F.Supp.2d 437, 445 (W.D.N.Y.2008) (Larimer, J.) (approximate three month gap in receiving a psychiatric examination from December 2004 through February 2005)." Although plaintiff may subjectively believe that his care was not adequate or correct, that difference of opinion does not demonstrate deliberate indifference and does not give rise to an Eighth Amendment claim." Flemming v. Wurzberger, 490 F.Supp.2d 320, 324 (W.D.N.Y.2007) (Larimer, J.) (finding no Eighth Amendment violation where the plaintiff was transferred to a special housing unit where there was no on-site psychiatric coverage)." Negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim." Chance, supra, 143 F.3d at 703.
Defendants' denial of Mills' requests for EMDR therapy was based on Dr. Racaniello's opinion that it was unwarranted. Although Mills argues that EMDR therapy was warranted, "the question of what diagnostic techniques and treatments should be administered to an inmate is a `classic example of a matter for medical judgment'; accordingly, prison medical personnel are vested with broad discretion to determine what method of care and treatment to provide to their patients." Smith v. Woods. 2008 WL 788573, *8 (N.D.N.Y.2008). Moreover, defendants did not prevent Mills from treating with Mr. Benjamin, albeit at his own expense. Under these circumstances, I recommend that Mills' fourth and fifth causes of action be dismissed.
Mills alleges that Superintendent Greer, Sheriff Maha, Genesee County, and Genesee County Jail have denied him sufficient legal materials and assistance. His specific complaints include that the books in the law library are "insufficient by title nine NYCRR standard", there was no free legal mail, paper or pens, no trained personnel to provide legal assistance. Third Amended Complaint (Dkt. #204), ¶¶ 183, 184, and 186. Mills alleges that these deficiencies "caused huge delays and complications on a regular basis" in his pursuit of "several state civil routes of action such as Article 78, writ of habeas corpus, and this federal matter herein", prevented him from appealing "this Court's decision herein . . . to dismiss certain causes of action of the First Amended Complaint."Id. at ¶¶ 187-191.
As a result of this conduct, Mills alleges that he is entitled to recover under the First, Fifth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241 and 242, and New York State law. Id. at ¶ 196. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at ¶ 197.
Defendants argue that the filing of 9 lawsuits in the past five years by Mills, and the fact that he was represented by counsel in his criminal case, demonstrate that his rights to access to the law library were not infringed. Defendants' Memorandum of Law (Dkt. #378), pp. 15-16. Moreover, defendants argue that there is no evidence that Mills sustained any actual injury from the alleged deprivations. Id.
In opposition to defendants' motion, Mills has submitted a declaration detailing, inter alia, various alleged injuries as a result of the defendants' conduct. He alleges that the lack of access to case law deprived him of the opportunity to "properly asist [sic] counsel when there was problems with CPL 730 evals in Genesee County Court" because "counsel was completely lost with the `appropriate law'" Mills' Declaration (Dkt. #423), ¶ 134.
"The Second Circuit has held that `the appointment of counsel can be a valid means of fully satisfying a state's constitutional obligation to provide prisoners, including pretrial detainees, with access to the courts' in conformity with constitutional requirements. . . . In other words, if a state supplies an inmate with `adequate assistance from persons trained in the law' through the provision of a court-appointed lawyer . . ., it is not also obligated to give the inmate access to a legal library." Wesley, supra, 2006 WL 2882972 at *3.
Mills also alleges that "an order was issued on 8/23/04 to file an second amended complaint . . . and an order which cited numerous cases to look up an [sic] research. A second amended complaint was filed on 9/15/04 . . . Right in the middle of all this Superintended Ronald Greer . . . tels [sic] plaintiff Mills `I will no longer be doing any research for any of the requested law cased in my possession or any future request.'" Mills' Declaration (Dkt. #423), ¶ 135.
Mills' allegations fail to demonstrate how he suffered any injury from defendant Greer's conduct. See Nolley, supra, 2008 WL 859165 at *4. In fact, even if Greer's conduct did hinder his ability to file his second amended complaint, Mills was permitted to file a third amended complaint, which he does not allege was impeded by defendants' conduct.
Mills further alleges that he "filed two state court habeas corpus actions, attempted to proceed with an state court article 78, and was filing pro se motion in the State Criminal case to preserve appellate issues. Just ruled in 06-CV-00842 is that Mills did not file his Speedy trial pro se motion in time, nor did he articulate such motion right thus losing his Federal Habeas Corpus action. Further in 06-cv-00842 ruled that Mills waived insufficient trial evidence for the failure to properly preserve such at trial." Mills' Declaration (Dkt. #423), ¶ 136.
However, in denying Mills' habeas claims arising from the alleged denial of his right to a speedy trial, the court nevertheless concluded that the delay was not "extraordinary or presumptively prejudicial." (May 14, 2008 Report and Recommendation of Magistrate Judge Bianchini, in Mills v. Poole (6-CV-842), supra, at p. 40).
Mills also alleges that "at one point in the State Criminal Case in 2004[he] considered proceeding pro se but due to the alck [sic] of proper law research materials at the Genesee County jail [he] was unable to intellignetly [sic] make a decision like this in fear of not haveing [sic] access to case law." Mills' Declaration (Dkt. #423), ¶ 137. "The Second Circuit has previously expressed deep skepticism about the proposition that `even if the state provides adequate legal services to prisoners, complete libraries must still be maintained to serve those who do not wish to be represented by counsel.'. . . Although the circuit recognized `that the right to represent oneself in criminal proceedings is protected by the Sixth Amendment,' it stated that `the right does not carry with it a right to state-financed library resources where state-financed legal assistance is available.'. . . This view accords with those of most other circuits, which have found that defendants who voluntarily decline publicly funded counsel and choose to represent themselves have no constitutional right of access to a law library". Wesley, supra, 2006 WL 2882972 at *3.
Because Mills would not have a constitutional right to access to a law library even if he had decided to decline appointed counsel and proceed pro se in his criminal case, this claim fails. Therefore, I recommend that Mills' sixth cause of action be dismissed.
Mills alleges that the Genesee County Jail lacks a written protocol for sick call and mental health care visits, and that it was the official policy of Sheriff Maha and Superintendent Greer that inmates disclose to their floor officers their confidential medical and mental health issues in order to receive treatment. Third Amended Complaint (Dkt. #204), ¶¶ 199-201. He also alleges that there were an insufficient number of doctors available, which led to him being denied medical attention for days. Id. at 203.
As a result of this conduct, Mills alleges that he is entitled to recover under the Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241 and 242, 42 U.S.C. §§ 12132; and New York State law. Id. at ¶ 204. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at ¶ 205.
There is no complaint, grievance or other indication in the record that Mills complied or attempted to comply with the exhaustion requirements of the Genesee County Jail for this claim. See 9 N.Y.C.R.R. § 7032.4. Mills alleges that he "attempted to file a grievance on the issue of medical confidentiality but none was received, the slips went missing, or point blank were not issued." Mills' Declaration (Dkt.# 423), ¶ 138.
However, if Mills had properly exhausted this claim, I would recommend denying defendants' motion insofar as it seeks to dismiss Mills' Fourteenth Amendment claim that his confidential medical information was impermissibly disclosed.
Defendants also argue that "when an inmate requests to see the doctor or mental health he places his name on a list. Nothing more is required and no confidential information need be disclosed to the floor officers: Declaration of Shawn Martin, Esq. (Dkt. #381), ¶ 50, Ex. C, Deposition Transcript of Terese Bryan, p. 316 ("Q. . . . If any—inmate wanted to be seen by mental health, how—how did that take place? A. They filled out a slip saying I want to be seen by mental health. And the corrections officer would put it in the mental health mailbox."). However, defendants' argument is belied by their own rules, which provide that "if you wish to see the Jail Medical Staff give your name to the duty officer, and explain to him the nature of your illness. He will place your name on the `Sick Call' list." Mills' Declaration (Dkt. #423), ¶ 139; Appendix F, Volume 1 (Dkt. #117), Ex. 4.
Defendants argue that to the extent the procedure impinged upon Mills' rights of privacy, their actions were reasonably related to penological interests: "If an inmate did not request to see the jail medical there would be no indication that they would need to be brought to the medical unit. Simply requesting to see the doctor is not an infringement of any right of privacy." Defendants' Memorandum of Law (Dkt. #378), p. 18. While inmates have a constitutional right to privacy against disclosure of their medical records and condition, "prison officials can impinge on that right . . . to the extent that their actions are `reasonably related to legitimate penological interests'". Powell v. Schriver, 175 F.3d 107, 112 (2d Cir.1999); see Nolley v. County of Erie, 776 F.Supp. 715, 729, 731 (W.D.N.Y.1991) (Curtin, J.). "Courts must evaluate four factors in making the reasonableness determination: whether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; whether prisoners have alternative means of exercising the burdened right; the impact on guards, inmates, and prison resources of accommodating the right; and the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests." Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir.2006).
*22 "Prison authorities cannot rely on general or conclusory assertions to support their policies. Rather, they must first identify the specific penological interests involved and then demonstrate both that those specific interests are the actual bases for their policies and that the policies are reasonably related to the furtherance of the identified interests. An evidentiary showing is required as to each point." Nolley, supra, 776 F.Supp. at 732 (emphasis added).
Because defendants have introduced nothing other than an attorney affidavit, they have not satisfied their burden of establishing the reasonableness of their sick call procedure. Therefore, if this claim had been properly exhausted, I would recommend that it not be dismissed.
Mills alleges that defendants Sheriff Maha, Superintendent Greer, Corrections Officers Zipfel, Luplow and Zehler, Genesee County and Terese Bryan repeatedly denied him access to a dentist for extended periods of time, which resulted in him being left in severe pain and discomfort for weeks and months. Third Amended Complaint (Dkt. #204), ¶¶ 215-226.
As a result of this conduct, Mills alleges that he is entitled to recover uunder the Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241 and 242, 42 U.S.C. §§ 12132, and New York State law. Id. at 1227. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at 1228.
Defendants argue that there is no evidence that they acted with deliberate indifference to Mills' dental condition. Defendants' Memorandum of Law (Dkt. # 378), pp. 18-20. In response, Mills argues that "to be fair, Plaintiff needed some filing [sic] work done, due to inattention by the Jail Staff from 10/16/2003 to at least mid to late 2004 caused Mills teeth to break down to the gums." Mills' Declaration (Dkt. #423), ¶ 147(D).
On April 2, 2004, 2004, Mills informed Nurse Bryan that he broke a tooth while eating, but stated that it was relieved by Excedrin Migraine tabs. Affidavit of Terese Bryan (Dkt. #434), ¶ 4. As a result, Mills was placed on a list to see the dentist. Id.
On June 11, 2004 Nurse Bryan saw Mills for a complaint that he had broken another tooth while eating. Id. at ¶ 5, Ex. 4. Mills was given Motrin and theragesic cream and advised to see medical staff if he felt that something stronger was needed. Id. Mills was seen by a dentist on June 28, 2004, and was given new fillings on August 31, 2008, on his second visit to the dentist. Id. at 6 and 7, Ex. 5.
"`[M]dical officers have wide discretion in treating prisoners, and Section 1983 is not designated to permit federal courts to interfere in the ordinary medical practices of state prisons.'. . . Federal courts are generally hesitant to second guess medical judgments and to constitutionalize claims which sound in state tort law. . . . So strong is this view that determinations of medical providers concerning the care and safety of patients are given a `presumption of correctness.'" Smith, supra, 2008 WL 788573 at *9. Even assuming that Mills' tooth condition constitutes sufficiently serious medical condition, I find that Mills has not overcome the presumption of correctness defendants actions are entitled to.
I find that Mills has failed to raise a triable issue of fact as to defendants' deliberate indifference. Deliberate "indifference is manifested by . . . by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, supra, 429 U.S. at 104.Although there was an approximately two month delay between Mills' initial complaint and him being seen by a dentist, I do not find that Mills could establish that defendants were deliberately indifferent to his dental needs.
Mills further argues that defendants "have not produced any written sick call procedure or policy for dental, and the defendants have no documentation at all that dental appointments were made, or who they were made by." Mills' Declaration (Dkt. #423), ¶ 157. However, the record establishes that Mills was treated on two occasions by an outside dentist.
Therefore, I recommend that Mills' ninth cause of action be dismissed.
Mills alleges that Superintendent Luplow and corrections officers Maha, Zehler, Zipfel, and Cawkins denied him access to the Genesee County Jail's grievance procedure by denying him access to grievance forms. Third Amended Complaint (Dkt. #204), ¶¶ 230-237. In response, defendants argue that Mills has failed to exhaust his administrative remedies for this claim, and that in any event, there is no constitutional right to a grievance procedure. Defendants' Memorandum of Law (Dkt. #378), Point II, pp. 20-21.
As a result of this conduct, Mills alleges he is entitled to recover under the First, Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241 and 242, 42 U.S.C. §§ 12132, 28 CFR part 35
There is varying authority on whether there is a constitutional right to a grievance procedure. Compare Chadwick v. Mondoux, 2007 WL 2891655, *6 (N.D.N.Y.2007) ("Courts have consistently held that because grievances procedures are undertaken voluntarily by the New York and other states, they are not constitutionally required. Because the grievance procedures are not constitutionally required, a violation of those procedures or the failure to enforce them does not give rise to a claim under section 1983"), Nolley, supra, 2008 WL 859165 at *3 ("The `occasional failure of prison personnel to provide plaintiff with grievance forms does not constitute a cognizable claim under § 1983'"), Harnett v. Barr, 538 F.Supp.2d 511, 522 (N.D.N.Y.2008) ("It has been held that because grievance procedures are undertaken voluntarily by the State, refusal to process a grievance or the improper handling of a grievance does not by itself rise to the level of a constitutional violation"), Johnson v. New York City Department of Health. 2008 WL 5378124, *3 (S.D.N.Y.2008) ("even if Jenkins is correct that inmate medical complaints are knowingly excluded from the institutional grievance process at Rikers Island, that allegation does not state a constitutional claim,"), Liggins v. Parker, 2007 WL 2815630, *17 (N.D.N.Y.2007) ("The plaintiff's allegations regarding the lack of a meaningful grievance procedure . . . do not rise to a level of constitutional significance"), with Benitez v. Locastro, 2008 WL 4767439, *11 (N.D.N.Y.2008) ("Notwithstanding some recent District Court caselaw suggesting otherwise, the Second Circuit in [Franco v. Kelly, 854 F.2d 584 (2d Cir.1988) ] was clearly placing a prisoner's right of redress of administrative grievances on par with a prisoner's right to seek redress in judicial forums when it held that `Mike the right of access to the courts, the right to petition is substantive rather than procedural and therefore `cannot be obstructed regardless of the procedural means applied.' ". . . and further noting that `intentional obstruction of a prisoner's right to seek redress of grievances is precisely the sort of oppression that . . . section 1983 [is] intended to remedy.'")
While Mills argues that the denial of access to grievance forms has prevented him from exhausting his claims in the this suit, at his deposition Mills only specifically identified several claims he was prohibited from grieving, including recreation, cold lunches at lunchtime, and insufficient heat. Declaration of Shawn Martin, Esq. (Dkt. #381), Ex. B, pp. 163-164. However, Mills does not assert claims for cold lunches and insufficient heat in this case. Further, as argued by defendants (Declaration of Shawn Martin, Esq. (Dkt. # 381), ¶ 62), Mills' claim for cold lunches in Mills v. Bryan, 06-CV-751 was dismissed with prejudice by Judge Skretny, who found that "the provision of cold food is not, by itself, a violation of the Eighth Amendment". February 8, 2008 Decision and Order (Dkt. #6), p. 21. Moreover, although Mills alleges that he was prohibited from filing a grievance regarding his complaints about recreation, he did file a grievance concerning at least one of his complaints about recreation. See Grievance No. 2004-21, Appendix C, Volume 2 (Dkt. #90), pp. 206-207 (complaining of being stripped searched during recreation).
Mills also alleged that the filing of his mental health grievance was delayed for four or five months. Declaration of Shawn Martin, Esq. (Dkt. #381), Ex. B, pp. 163-164. However, defendants do not challenge his lack of mental health care claims (fourth and fifth causes of action) as being unexhausted. Therefore, I recommend that Mills' tenth cause of action be dismissed.
Mills alleges that defendants Miller and Welsh have retaliated against him by denying him mental health services for the filing of this action and a prior action (03-CV-00196). Third Amended Complaint (Dkt. #204), H241-242. He alleges that he was left with no "treating psychologist or psychiatrist for over nine (9) months, had to get private care, this continued until plaintiff won a grievance some eight months later, in August or September of 2004". Id. at 1244.
As a result of this conduct, Mills alleges that he is entitled to recover under the Eighth and Fourteenth Amendments to the
United States Constitution,
"A prisoner's retaliation claim must also be examined with `skepticism and particular care.' The Second Circuit has cautioned that retaliation claims by prisoners are `prone to abuse' as [v]irtually every prisoner can assert such a claim as to every decision which he or she dislikes.' Thus, a prisoner's claim of retaliation must be supported by specific and detailed factual allegations . . . and must demonstrate that challenged conduct was a substantial or motivating factor in adverse actions taken by the prison officials. The alleged retaliation must be more than de minimis; that is, it must be sufficient to deter a similarly situated person of ordinary firmness from exercising his or her rights." Id.
"The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Suarez, supra, 2008 WL 4239214 at *10. However, Mills has failed to submit any evidence of a causal connection between the filing of his suits and the denial of mental health care treatment. Instead, he merely relies on the allegations in the second, fourth, and fifth causes of action, and on an undated e-mail from Terese Bryan to an individual identified as Scooter in which she states: "Where did the decision end up concerning Mr. Mills and an `outside' psych eval?. . . . I know that Tony doesn't care to get involved with this mess, but we need some guidance as to where else we can have him evaluated. "Appendix G, Volume 1 (Dkt. #142), p. 120. As previously discussed, the mental health treatment provided to Mills while incarcerated in the Genesee County Jail was not deficient.
Therefore, I recommend that Mills' eleventh cause of action be dismissed.
Mills alleges that Genesee County Jail denied him sufficient recreation while he was incarcerated. Third Amended Complaint (Dkt. #204), ¶ 250. He claims that "there is a indoor room with nothing to do at all. There is a SWUARE [sic] room with mats on a small part of the floor and said room has no more than one 400 square foot", that the windows in this room "are usually closed in the winter months", that he did not receive outdoor clothing to wear in this room which is not heated, and that he was strip searched before entering this room. Id. at ¶¶ 250-255. He also alleges that he "did not go to recreation [because he] can do more in his cell, [he] can at least do pull ups on the bars for the showerrod [sic]." Id. at ¶¶ 253.
While Mills did file complaints concerning this claim (Dkt. #110 (Appendix D, Vol. 3), pp. 1-3), he contends that defendants failed to provide him grievance forms to pursue it (Dkt. #184, Affidavit, ¶ 6). However, Mills did file a grievance concerning being strip searched during recreation. See Appendix C, Volume 2 (Dkt. #90), pp. 206-207. Nevertheless, even assuming that Mills had exhausted this claim, I would recommend dismissing it on its merits.
"Exercise is a basic human need protected by the Eighth Amendment to the United States Constitution." Dabney v. McGinnis, 2006 WL 1285625, *4 (W.D.N.Y.2006) (Arcara, J.)." However, not every deprivation of exercise amounts to a constitutional violation. Rather, a plaintiff must show that he was denied all meaningful exercise for a substantial period of time. Factors to consider in making this determination are: (1) the duration of the deprivation; (2) the extent of the deprivation; (3) the availability of other out-of-cell activities; (4) the opportunity for in-cell exercise; and (5) the justification for the deprivation." Id.
Defendants argue that this cause of action should be dismissed because it is brought against the Genesee County Jail which is not a proper defendant. Affidavit of Shawn Martin, Esq. (Dkt. #381), ¶ 73. I agree, for reasons previously discussed. Therefore, I recommend dismissal of Mills' twelfth cause of action on this basis.
Defendants also argue that by his own admission, Mills was offered recreation, but chose not to participate. Id. at 172. Mills does not argue that he was denied access to recreation. In fact, he concedes that he is able to exercise in his cell. Third Amended Complaint (Dkt. #204), 1253). Rather, his claim appears to center on the lack of outdoor recreation (Mills' Declaration (Dkt. #423), ¶¶ 164 and 166), but he has failed to establish that this rises to the level of an Eighth Amendment violation. See Liggins, supra, 2007 WL 2815630 at *19 ("While it is true that inmates at the HCJ are not provided with an outdoor exercise area, in light of practical constraints, they are free to exercise both in their cells and anywhere else in the jail facility during the sixteen hours that they were permitted to remain outside of their cells.").
Mills relies on 9 N.Y.C.R.R § 7028.2(a), governing the operation of county jails (Mills' Memorandum of Law (Dkt. #422), p. 29), which provides that "all exercise periods shall be held in the outdoor exercise area, except during inclement weather when exercise must be held in the indoor exercise area . . ." "The violation of a state law regulation, standing alone, however, does not arise to a level of constitutional significance actionable under section 1983." Liggins, supra, 2007 WL 2815630 at *20. Therefore, I find that no reasonable factfinder could conclude that Mills' Eighth Amendment rights were violated in this regard.
Mills alleges that defendants Miller, Welsh and Desmond "somehow got a court order to release [his] personal mental health records" Third Amended Complaint (Dkt. #204), ¶ 268. He also alleges that defendants Dr. Barry and Dr. Singh "not only obtained the plaintiff's [sic] confidential mental heath records with out written consent but also exposed the past confidential material of the plaintiff in two Court Ordered CPL 730 evals." Id. at ¶ 271.
As a result of this conduct, Mills alleges that he is entitled to recover under the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241 and 242, and New York State law. Id. at ¶ 280. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at ¶ 281.
Defendants argue that they are entitled to quasi-judicial immunity because they were acting pursuant to the orders of Judge Noonan. Defendants' Memorandum of Law (Dkt. #378), pp. 23-24. Additionally, defendants Miller and Welsh argue that they are entitled to summary judgment because as supervisory officials they were not personally involved in this matter. Declaration of Shawn Martin, Esq. (Dkt. #381), ¶ 79.
In Mills' criminal proceeding, Judge Noonan directed that Mills undergo a psychiatric evaluation pursuant to N.Y. Crim P. Law ("CPL") Article 730 to determine whether he was competent to stand trial. Appendix C, Vol. 24 (Dkt. #342), Ex. 3. In order to facilitate this examination, by letter dated June 16, 2004, defendant Desmond requested an order to permit the release of Mills' mental health records to Drs. Singh and Barry, the psychiatrists retained to conduct the competency evaluation. Id. at Ex. 2; Affidavit of Nicole Desmond (Dkt. #383), ¶ 10. Consequently, Judge Noonan issued an Order dated June 24, 2004, directing Genesee County to release Mills' records to the examining psychiatrists. Id. at Ex. 4.
N.Y. Mental Hygiene Law § 33.13(c)(1) provides that confidential medical records may be released pursuant to court order. In this instance, defendants were merely acting pursuant to Judge Noonan's order authorizing the disclosure of Mills' records. While Mills alleges that defendants Miller, Welsh and Desmond "transgressed the statutorily granted authority and transgressed the original court order to have the Article 730 evaluation done" (Mills' Memorandum of Law (Dkt. #422), p. 31), he has offered no evidence to support this allegation.
Mills also alleges that defendants "were not statutorily authorized to include [his] private files in the 730 reports, not authorized by statute to produce the reports on no [sic] court approved forms". Mills' Declaration (Dkt. #423), ¶ 186. However, there is no indication in the report prepared by Drs. Singh and Barry that his private medical files were attached. See Appendix C, Vol. 24, Exs. 5 and 6. Moreover, even if the reports were not in the prescribed form, they were in substantial compliance with N.Y. CPL § 730.10(8) as they contained the required information. See People v. Kane, 6 A.D.3d 876, 877, 774 N.Y.S.2d 451 (3d Dep't. 2004) ("while defendant also takes issue with the form of the reports prepared by the psychiatric experts, we do not find them deficient inasmuch as they complied with the requirements of CPL 730.10(8)"). Furthermore, these arguments are directed at defects in the reports prepared by Drs. Singh and Barry, which go to the propriety of Judge Noonan's competency determination. This does not alter the fact that Mills' mental health records were released and the competency reports were prepared pursuant to Judge Noonan's orders.
Mills argues that Judge Noonan's orders were invalid because no hearings were held on the release of his medical records and no notice was provided to Mills or his attorney. Mills' Declaration (Dkt. #423), ¶¶ 177-178, 180-185. Even assuming this to be true, defendants are entitled to immunity as to Mills' individual capacity claims
Moreover, defendants argue that the claims against defendant Welsh, the Director of Clinical Services with Genesee County Mental Health, and defendant Miller, the Community Services Director of Genesee County Mental Health, should be dismissed because they had no personal involvement in the disputed conduct. However, defendant Miller investigated Mills' complaints regarding the competency exam and prepared a written report (Appendix G, Volume 1 (Dkt. #142), Ex. C, p. 61.), which is sufficient to establish personal involvement. See Atkins v. County of Orange, 251 F.Supp.2d 1225, 1234 (S.D.N.Y.2003) ("Personal involvement will be found . . . if an official acts on a prisoner's grievances or otherwise responds to them."). Nevertheless, Mills does not dispute the lack of personal involvement of defendant Welsh. Therefore, the claim against defendant Welsh should be dismissed based for lack of personal involvement.
Mills alleges that "upon information and belief Ms. Bryan destroyed pages in a medical logbook and tampered with dates in both plaintiffs' medical files-records at the Genesee County Jail", and that Superintendent Greer and Sheriff Maha failure to supervise Nurse Bryan resulted in this conduct. Third Amended Complaint (Dkt. #204), ¶¶ 308, 313. Mills contends that these actions have denied him meaningful access to the federal courts. Id. at ¶ 309.
As a result of this conduct, Mills alleges that he is entitled to recover under the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, 18 U.S.C. §§ 241, 242, and 1503, and New York State law. Id. at ¶¶ 10, 316. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at ¶¶ 311, 317.
Defendants argue that "there is no federal right to this notebook that was used for mundane communications between Terese Bryan and Greg Groth, P.A. Mills has been provided with his medical chart and mental health records." Defendants' Memorandum of Law (Dkt. #378), pp. 25-26. In response, Mills argues that "the Eighth and Fourteenth Amendment is implicated when inadequate, inaccurate, and unprofessionally maintained medical records give rise to the possibility for disaster stemming from failure to properly chart the medical care received by inmates." Mills' Memorandum of Law (Dkt. #422), pp. 35-36.
Nurse Bryan testified that she maintained a black notebook that she used as a communication log that recorded her communications with P.A. Groth and others concerning inmates whom they treated. Declaration of Shawn Martin (Dkt. #381), Ex. C, Deposition Transcript of Terese Bryan, pp. 176-178, 324. When the notebooks were filled, they were thrown away. Id. at p. 177.As detailed by Nurse Bryan, the notebook was utilized for "mundane communication between medical personnel who were not working at the same time." Affidavit of Terese Bryan (Dkt. #434), ¶ 10. The "notebook was not used to record medical treatment records of inmates at the jail. Mr. Mills' medical file that was maintained by the jail contains his full treatment history." Id.
Mills has also failed to establish how Nurse Bryan's actions in destroying the notebook, even if true, denied him meaningful access to federal courts, as he has not shown that these actions "materially prejudiced a pending legal action or one that he sought to file in the courts." Smith, supra, 901 F. Supp. at 649.
Mills also alleges that "the jail Medical Unit had direct notice not to destroy the Black composition note book and did so intentionally." Mills' Declaration (Dkt. #423), ¶ 188. However, even if I were to accept the premise that the alleged intentional destruction of evidence constitutes a § 1983 violation, Mills has not introduced any evidence to rebut Nurse Bryan's testimony that these notebooks were destroyed as a matter of course.
Mills alleges that defendant Genesee County is responsible for the actions of its employees because they have created "a policy, custom or practice that allows the actors in office to be the final decision makers" and "has allowed complete and total breakdown, systematic failure, in the judicial system of Genesee County so as the officers, agents, employees are allowed to do as they wish without proper supervision." Third Amended Complaint (Dkt. #204), ¶¶ 320-321. He alleges that "the following laws apply to municipality liability herein the foregoing complaint": United States Constitution, Amendment 14; 29 U.S.C. § 794; 42 U.S.C. §§ 12132 and 12131(1)(A) & (B); 28 C.F.R. § 35.101, et seq.; and various New York State law claims. Id. at ¶¶ 322. He seeks compensatory and punitive damages, as well as injunctive relief. Id. at ¶¶ 323.
Defendants argue that because Mills is not entitled to relief on any of his claims, Genesee County is not liable. Declaration of Shawn Martin, Esq. (Dkt. #381), ¶ 96. I agree, and recommend dismissal of Mills' twenty-second cause of action on this basis.
Moreover, Mills has not established any policy or custom warranting imposition of municipal liability. "A municipality is a `person' to whom § 1983 applies." Rochez v. Mittleton, 839 F.Supp. 1075, 1078 (S.D.N.Y.1993). To hold a municipality liable under § 1983, a plaintiff must "plead and prove three elements: (1) an official custom or policy that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right". Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). See Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987).
In order to prove the existence of a custom or policy, a plaintiff must present evidence of either a formal policy which is officially endorsed by the municipality, or a practice so persistent and widespread that it constitutes a "custom or usage" and implies the constructive knowledge of policymaking officials. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A custom or policy may also be established if the challenged conduct was by government officials responsible for establishing municipal policies. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)." The inference that a policy existed may . . . be drawn from circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir.1991).
Mills alleges that "it has been established as a mater [sic] of custom or policy (1) inmates must pay for dental care; (2) inmates are locked in isolation without compliance with the own policy of the Jail or Corrections Law; (3) the jail has no adequate law library; (4) inmates only get mental health consults by a Social Worker and [sic] there is evidence in the record the County attorney endorsed such . . .; (5) the recreation at the jail could be policy or custom endorsed by the county; (6) the refusal to provide services to psychiatric individuals in jail other then consults is a matter of policy." Mills' Declaration (Dkt. #423) ¶ 197. However, Mills fails to offer any evidence that this conduct was as a result of a formal policy, a persistent and widespread practice, or the result of conduct or deliberate indifference by Genesee County policymakers.
Mills "brings this cause of action for all NEW YORK STATE Law violations alleged as detailed in each and every cause of action herein." Third Amended Complaint (Dkt. #204), ¶ 325. To the extent that I have recommended dismissal of Mills' federal law claims (all claims other than the retaliation claim alleged in the first cause of action), I decline to exercise supplemental jurisdiction over Mills' related state law violations pursuant to 28 U.S.C. § 1367. See Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir.1998) ("In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well."). Therefore, I recommend that all of plaintiff's state claims, with the exception of those related to his retaliation claim, be dismissed.
For these reasons, I recommend that defendants' motion for summary judgment (Dkt. #376) be DENIED in part and GRANTED in part. I also order that Mills' motions for appointment of counsel (Dkt.449 and 467) be DENIED, to strike defendants' reply (Dkt. #455) be DENIED, and for reconsideration (Dkt. #456) be GRANTED. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
The district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but was not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Report. Recommendation and Order), may result in the District Judge's refusal to consider the objection.
Shawn Moncrieffe, Auburn Correctional Facility, Auburn, New York, Plaintiff, pro se.
Hon. Dennis C. Vacco, Attorney General for the State of New York, Steven H. Schwartz, Assistant Attorney General, Department of Law, the Capitol, Albany, New York, for Defendants.
MORDUE, J.
Presently before the Court is the Report-Recommendation of the Hon. Magistrate Judge David R. Homer dated December 23, 1998, recommending that plaintiff's motion be denied and defendants' cross-motion be granted in part and denied in part.
Plaintiff filed timely objections to the Report-Recommendation.
In his complaint, plaintiff alleges that between August and November, 1996, while he was housed in the Special Housing Unit of Coxsackie Correctional Facility, defendant Correctional Officer Linda Witbeck deprived him of a food tray six times; that Witbeck deprived him of things such as recreation and supplies six times; that Witbeck laughed at him four times while he was in the shower; that Witbeck sexually harassed plaintiff once "when she felt [plaintiff's] genitals and rear end during a regular recreation pat frisk;" that Witbeck ransacked his cell; and that in some unspecified manner Witbeck gave him a death threat. Plaintiff further alleges that during the same period defendant Correctional Officer Weeks sexually harassed him during a routine pat frisk when Weeks "felt [plaintiff's] genitals a few times." Plaintiff claims that on two occasions defendant Correctional Officer McFarlene entered his cell and ransacked it while plaintiff was in the shower and once confiscated "a few of [plaintiff's] things." Plaintiff also claims that defendant Correctional Officer Jensen threatened him once and assaulted him once by kicking him in the back. Plaintiff states that the grievance supervisor, defendant Schwebler, did not log and number plaintiff's grievances as required and that Superintendent Dominic J. Mantello disregarded plaintiff's numerous complaints.
Magistrate Judge Homer recommended denial of plaintiff's motion for summary judgment and dismissal of all of plaintiff's claims except his Eighth Amendment claim against Witbeck for denial of food.
Pursuant to 28 USC § 636(b)(1)(C), this Court must make a de novo determination of those portions of the Magistrate Judge's Report-Recommendation to which plaintiff has specifically objected. Here, plaintiff objects to Magistrate Judge Homer's recommendations except with respect to the issues of verbal harassment, threats and denial of recreation. He erroneously states that the Report-Recommendation does not address the claim that Witbeck laughed at him while he was in the shower; however, this allegation amounts to a claim of verbal harassment, which is not actionable under 42 U.S.C. § 1983. Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y.1998). Accordingly, the Court will address all other issues de novo.
Summary Judgment is appropriate when the pleadings, affidavits, and any other supporting papers demonstrate 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; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Facts, inferences therefrom and ambiguities must be examined in a context which is most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Where summary judgment is sought against a pro se litigant the Court must afford him special solicitude. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).
Plaintiff alleges that defendant Mantello is liable because, as Superintendent of the Coxsackie Correctional Facility, he "disregarded" numerous complaints made to him by plaintiff. More specifically, plaintiff alleges that (1) Mantello failed to remedy a wrong after having learned of it and (2) that Mantello was negligent in his supervision of subordinate employees.
Magistrate Judge Homer concluded in his Report-Recommendation that plaintiff failed to demonstrate a claim against Mantello. With respect to plaintiff's first allegation that Mantello failed to remedy a wrong, the Magistrate Judge determined that either Mantello or his subordinates investigated plaintiff's grievances. Because plaintiff's complaints were investigated and it was concluded that the grievances were without merit, Mantello satisfied his obligations with respect to plaintiff's grievances.
The Magistrate Judge similarly rejected plaintiff's second claim that Mantello negligently supervised subordinate employees who were allegedly violating his constitutional rights. Magistrate Judge Homer concluded that no claim was stated because, whereas the law requires gross negligence to impose supervisor liability, plaintiff merely alleged negligence. In addition to determining that plaintiff's claim was without merit for failure to plead and prove gross negligence, Magistrate Judge Homer also concluded that plaintiff had failed to establish even ordinary negligence on the part of Mantello.
Plaintiff objects to Magistrate Judge Homer's conclusion that he failed to establish supervisor liability. Plaintiff argues that the record establishes gross negligence in that Mantello was aware that plaintiff's rights were being violated but chose to ignore them by failing to investigate or remedy same.
In order to establish a successful § 1983 claim, a plaintiff must establish that a defendant was personally involved in the alleged rights violation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). An official is not liable in a section 1983 action under the doctrine of respondeat superior. Polk County v. Dodson, 454 U.S. 312, 325 (1981). However, an individual who occupies a supervisory position may be found personally involved by: (1) direct participation; (2) failing to remedy a wrong after learning of the violation through a report or appeal; (3) creating a policy or custom under which unconstitutional practices occurred or allowing the policy or custom to continue; or (4) gross negligence in managing subordinates whose conduct caused the unlawful condition or event. See Wright, 21 F.3d at 501.
As Magistrate Judge Homer correctly stated, the record clearly reveals that Mantello or his subordinate employees investigated plaintiff's grievances and rejected them as being without merit. As such, there is nothing in the record indicating that Mantello either turned a blind eye to plaintiff's complaints. Simply stated, plaintiff's assertion that Mantello ignored his complaints is refuted by the investigations conducted regarding the complaints. Similarly, plaintiff's allegation that Mantello failed to remedy a wrong is without merit because the record reflects that the investigation of the complaints came to the conclusion that no wrongs were being committed.
Aside from reiterating his initial arguments, plaintiff has failed to provide the Court with anything further in his objection which would warrant disturbing the sound conclusion of the Magistrate Judge. Accordingly, this Court accepts Magistrate Judge Homer's determination to dismiss plaintiff's claim with respect to defendant Mantello.
Plaintiff alleges that he was subjected to verbal threats and harassment in that corrections officers laughed and insulted him while he showered. Plaintiff also maintains that he was subjected to threats of violence. Magistrate Judge Homer recomended that defendants were entitled to summary judgment because plaintiff failed to establish an actual injury resulting from the alleged threats or harassment.
A claim for verbal harassment is not actionable under 42 U.S.C. § 1983. Aziz Zarif Shabazz v. Picco, 994 F.Supp. 460, 474 (S.D.N.Y.1998); Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y.1995). As correctly noted by the Magistrate Judge, "verbal harassment or profanity alone, unaccompanied by an injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983." Picco 994 F.Supp. at 474. Similarly, "threats do not amount to violations of constitutional rights." Malsh, 901 F.Supp. at 763.
Even assuming that the alleged verbal harassment and threats ocurred, plaintiff has failed to plead or prove that there were any accompanying actual injuries. Furthermore, plaintiff does not object to the findings of the Magistrate Judge with respect to verbal threats and harassment. After a thorough review of the Report-Recommendation the Court adopts the recommendation of the Magistrate Judge.
Magistrate Judge Homer found that plaintiff had failed to annunciate an actionable claim for excessive force. More particularly, he concluded that the alleged kick, even if true, was of limited duration and that there was no malicious intent on the part of the corrections officer.
It is well settled that "the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312 (1986))(internal quotation marks omitted). In reviewing a prisoner's claim a Court must consider whether the prison official acted with a sufficiently culpable state of mind and whether the alleged wrongdoing was objectively harmful enough to establish a constitutional violation. Hudson at 8. In considering whether the prison official possessed a culpable state of mind while engaging in the use of force, the inquiry is whether the prison official applied force maliciously and sadistically to cause harm. Id. at 7. The extent of an inmate's injuries is relevant to this inquiry, as is the nature and duration of the act. James v. Coughlin, 13 F.Supp.2d 403, 409 (W.D.N.Y.1998); Reyes v. Koehler, 815 F.Supp. 109, 113-14 (S.D.N.Y.1993). Important in considering the alleged wrongdoing is determining whether the force was applied in a good faith effort to maintain or restore prison discipline or maliciously and sadistically to cause harm. Hudson at 7.
With respect to the nature of the wrongdoing, a prisoner must demonstrate that the deprivation alleged is sufficiently serious or harmful enough to reach constitutional dimensions. Romano v. Howarth, 998 F.2d 101, 104-05 (2d Cir.1993). A prisoner is not required to demonstrate that he sustained a serious injury; de minimis use of force does not, however, give rise to an Eighth Amendment claim. Hudson at 9-10.
Plaintiff's allegations, even if true, do not support a determination that Jensen acted maliciously or sadistically. Interestingly, in his objections to the Report-Recommendation, plaintiff admits that the kick was of limited duration. In the balance of his objection plaintiff merely reiterates his opinion that the evidence submitted supports an inference of malice. The Court concludes that the conduct alleged is not sufficiently serious or harmful to reach constitutional dimensions. Accordingly, defendants are entitled to summary judgment dismissing plaintiff's excessive force claim.
Plaintiff alleges that he was denied access to the courts as a result of cell searches, confiscation of documents and denial of supplies between August and November 1996. Plaintiff alleges that these actions were motivated to frustrate his efforts to litigate.
It is well established that prisoners have a constitutional right to access to the courts. "To state a claim that his constitutional right to access the court was violated, plaintiff must allege facts demonstrating that defendants deliberately and maliciously interfered with his access to the courts, and that such conduct materially prejudiced a legal action he sought to pursue." Smith v. O'Connor, 901 F.Supp. 644, 649 (S.D.N.Y.1995); see Morello v. James, 810 F.2d 344, 347 (2d Cir.1987). In other words, in order to establish a violation of his right of access to the courts, an inmate must demonstrate that he has suffered or imminently will suffer actual harm in presenting a claim to the court. Lewis v. Casey, 518 U.S. 343 (1996).
In his objections to the Report-Recommendation, plaintiff restates arguments already considered by Magistrate Judge Homer. He states that "[p]laintiff further reiterates that he has incurred irreparable harm and injury as a result of the lack of legal services he received while confined in Coxsackie SHU." Plaintiff goes on to note that his complaints would not have been able to have been brought had he not been transferred to the Elmira Correctional Facility. Implicit in this statement is that plaintiff was in fact allowed to bring his claims. Assuming arguendo that plaintiff was not allowed to bring his claims until after transfer, the fact still remains that plaintiff did in fact have the ability to air his grievances. Therefore, at best, plaintiff's hardship was delay in bringing his claims. As plaintiff has not established how such an alleged delay has prejudiced his rights or amounted to an injury, he fails to make the requisite showing of actual injury for a successful claim. As such, the Court accepts Magistrate Judge Homer's recommendation and grants defendant's motion as to this claim.
With respect to plaintiff's sexual harassment claim, Magistrate Judge Homer concluded that plaintiff failed to establish an actionable case. Magistrate Judge Homer found that the conduct involved was de minimus and, therefore, did not violate a constitutionally protected right.
Sexual abuse of an inmate by a corrections officer may reach constitutional dimensions and give rise to an Eighth Amendment claim. Boddie v. Schnieder, 105 F.3d 857, 859 (2d Cir.1997). When reviewing an Eighth Amendment claim stemming from an allegation of sexual abuse, a Court must consider whether the conduct alleged is sufficiently serious to violate contemporary standards of decency and cause severe physical and psychological harm. Id at 861. The Court must further consider whether the prison official involved possessed a sufficiently culpable state of mind. Where no legitimate law enforcement or penological purpose can be inferred from the defendant's alleged conduct, the abuse itself may be sufficient evidence of a culpable state of mind. Id. at 861.
Plaintiff alleges that he was subjected to cell searches which were designed to harass. Plaintiff's initial pleadings merely allege same with no evidence to support the claim. As a result, Magistrate Judge Homer concluded that plaintiff's claim was without merit and recommended that defendant's motion be granted.
"[T]he Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell," Hudson v. Palmer, 468 U.S. 517, 526 (1984), even where the search is retaliatory in nature. Higgins v. Coombe, 1997 WL 328623, at *7 (S.D.N.Y.1997). Prisoners do, however, enjoy Eighth Amendment protection from searches that lack any legitimate penological interest and are intended solely to harass. Nilsson v. Coughlin, 1987 WL 129823, at * 4 (S.D.N.Y.1987), see also Hudson at 530.
Plaintiff fails to raise anything in his objections to the Magistrate Judge's Report-Recommendation which would warrant disturbing the sound conclusion and recommendation found therein. As Magistrate Judge Homer correctly stated the law with respect to plaintiff's claim, and since plaintiff fails to provide any evidence to support his argument that the alleged searches were improper, the Court concludes that this claim is without merit and grants defendant's motion.
Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement: adequate food, clothing, shelter and medical care. Denial of a minimal civilized measure of life's necessities violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825 (1994). Depriving an inmate of food or serving him contaminated food may constitute a violation of the Eighth Amendment. Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983); Odom v. Sielaff 1995 WL 625786, at * 5 (E.D.N.Y.1995); see also Rhodes v. Chapman, 452 U.S. 337, 348 (1981).
Plaintiff alleges that corrections officer Witbeck denied him food on six occasions and on at least two occasions contaminated his food with spit or perfume. In support of their motion to dismiss, defendants rely on an affidavit from Witbeck denying the allegations. Defendants also rely on copies of logbook entries for the SHU in which plaintiff was housed. Because these logbooks do not contain clear entries for some of the dates in issue and would not likely reflect the wrongful denial of meals to an inmate by a corrections officer, they do not establish as a matter of law that defendants never denied plaintiff food. Credibility assessments and choices between conflicting versions of events are matters for a fact-finder at trial, not for the Court on a summary judgment motion. Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997). Thus, plaintiff's motion and defendants' cross-motion for summary judgment are denied with respect to the issue of whether plaintiff's Eighth Amendment rights were violated by deprivation of food.
Although prisoner's have a constitutional right to exercise, a claim alleging deprivation of this right requires a showing of a serious deprivation and deliberate indifference on the part of prison officials. Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir.1996); Barnham v. Meachum, 77 F.3d 626, 630 (2d Cir.1996). As illustrated by the Report-Recommendation, denial of recreation for eighteen out of nineteen days has been upheld in the Second Circuit and denials of up to seventy-five days have been upheld elsewhere. Arce v. Walker, 907 F.Supp. 658 (W.D.N.Y.1995), aff'd in part, vacated in part 139 F.3d 329 (2d Cir.1998); Green v. Ferrell, 801 F.2d 765 (5th Cir.1986).
Based on the foregoing, the Court concludes that the alleged denial of recreation on a single occasion does not support a claim for deprivation of constitutional rights. Accordingly, defendant's motion is granted with respect to this element of plaintiff's claim.
After a careful review of the file, party submissions and applicable law, it is hereby
ORDERED that Magistrate Judge Homer's Report-Recommendation dated December 23, 1998 is ACCEPTED IN FULL; and it is further
ORDERED that plaintiff's motion for summary judgment is DENIED in all respects; and it is further
ORDERED that defendant's cross-motion for summary judgment be DENIED with respect to plaintiff's claim against defendant Witbeck regarding the alleged deprivation of food and GRANTED in all other respects.
IT IS SO ORDERED.
CASTEL, U.S.D.J.
Discovery is now closed, and the individual defendants, other than Detective Fahim, Detective Raggi and Captain Russo, move for summary judgment in their favor pursuant to Rule 56, Fed. R. Civ. P. Captain Russo moves for summary judgment as to all claims except the failure to intervene claim. Defendant City of New York also moves to dismiss Patterson's
On June 5, 2014, a search warrant was executed on Patterson's apartment at 19 Wood Court in Staten Island. (Def. 56.1 ¶ 1; Pl. 56.1 Resp. ¶ 1.) The warrant authorized law enforcement to search for and seize evidence related to the sale and possession of heroin and other controlled substances. (Passeser Dec. Ex. A.)
While the warrant was being executed, Patterson was present in the first-floor living room, as was non-party witness Laurie Sperring. (Def. 56.1 ¶ 2.) Patterson alleges that during the search, an officer placed a knee on his hand while he was handcuffed, and that the officer pressed down on Patterson with "the full weight of his body." (Third Amended Complaint (the "Complaint") ¶ 22.) The defendants contend that the contact lasted for approximately 15 seconds, but Patterson contends that it lasted for a longer period of time. (Def. 56.1 ¶ 3; Pl. 56.1 Resp. ¶ 3.) Patterson alleges that the incident caused "severe injuries" to his hand and ribs. (Compl't ¶ 22.)
Patterson testified in his deposition that defendant Fahim directly used excessive force against him, whereas Sperring testified in her deposition that defendant Raggi was the officer who used force on Patterson. (Def. 56.1 ¶ 6.) Patterson does not contend that any other individual defendant directly used force against him. (Def. 56.1 ¶¶ 7-14; Pl. 56.1 Resp. ¶¶ 7-14.)
According to the defendants, at the time that force was used against Patterson, only Fahim, Raggi and defendant William Russo were in the vicinity of Patterson. (Def. 56.1 ¶ 15.) The other individual defendants contend that they were spread throughout the premises at the time. (Def. 56.1 ¶¶ 16-19.) Patterson disputes these accounts, not with a different version of events, but on the grounds that the defendants' recollections are not credible. (Pl. 56.1 Resp. ¶¶ 16-19.) At oral argument, acknowledged that there is no evidence to support his contention that they were near Patterson at the time force was used.
Summary judgment "shall" be granted "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." Rule 56(a), Fed. R. Civ. P. A fact is material if it "might affect the outcome of the suit under the governing law. . . ."
If the moving party meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment."
All defendants but Fahim and Raggi move for summary judgment on Patterson's claim for the direct use of excessive force. "An individual may be held liable under §§ 1981 and 1983 only if that individual is personally involved in the alleged deprivation."
Defendants have come forward with evidence that Fahim and Raggi are the only defendants who could have directly used force against Patterson. In his deposition, Patterson testified that only defendant Fahim directly utilized force against him during the time that the search warrant was being executed. (Patterson Dep. 73-75.) Sperring testified in her deposition that defendant Raggi used force against Patterson's back and hand when handcuffing him. (Sperring Dep. 21-22.) Patterson does not contend that any other defendant directly used excessive force against him.
Defendants move for summary judgment as to the failure to intervene claim against defendants Zak, Ricci, Bruno, Woodhouse, Edelman, Ricci, Spinelli and Conca.
"It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence."
Defendants Zak and Ricci testified in their depositions that they were going to the apartment's second floor to conduct a sweep at the relevant time. (Def. 56.1 ¶ 16.) Zak testified that he observed Raggi and Fahim attempting to cuff Patterson, but that he only had "a quick look" and was focused on securing the unit's second floor. (Zak Dep. 29-31.) Ricci testified that he observed Patterson lying on the floor, without handcuffs, at the time that he was going to the second floor. (Ricci Dep. 52-53.) Patterson testified in his deposition that after the incident, he observed "a couple officers" nearby, and stated that "[a]pparently they were upstairs" when force was being used. (Patterson Dep. 78-79.)
Defendants Edelman, Bruno and Woodhouse testified that they were attempting to subdue Patterson's pit bull at the time that force allegedly was used. (Def. 56.1 ¶ 17.) Edelman testified that the first thing he saw on the premises was a pit bull "charging" at him, and that he attempted to contain the dog by using a canine noose. (Edelman Dep. 38, 40-41.) He testified that he backed the dog into the apartment kitchen and onto an outside balcony, and then remained in the kitchen area to guard the dog. (Edelman Dep. 41-43.) Edelman testified that he briefly observed Patterson being handcuffed on the living room floor, and that he was not resisting arrest or being assaulted. (Edelman Dep. 44-45.) Bruno testified that the dog was "running around kind of frantic," and that he used items of living room furniture to "funnel it into the kitchen. . . ." (Bruno Dep. 66-67.) He testified that he observed Patterson in handcuffs at some point. (Bruno Dep. 69, 71.) Woodhouse testified that a pit bull was "barking, coming at us, and it was basically going back and forth trying to, you know, get through us," and that it took approximately five minutes to subdue the dog. (Woodhouse Dep. 43-44, 46.) Woodhouse testified that he observed Patterson and Sperring on the premises, and that at one point he saw that Patterson was in handcuffs. (Woodhouse Dep. 46.)
Defendant Spinelli testified at his deposition that as he was about to enter the premises, other officers told him to retrieve a fire extinguisher, which is commonly used to corral and intimidate aggressive dogs. (Def. 56.1 ¶ 19; Spinelli Dep. 30, 32.) When he later entered the apartment with the extinguisher, "everything was fine": "People were sitting down on the couches and I remember a dog was in the kitchen blocked off." (Spinelli Dep. 30.)
In opposition to the defendants' motion, Patterson attacks the credibility of the officers' testimony, arguing that "these defendants have little if any regard for the obligations of the oaths they took at their depositions. . . . They will lie to protect each other, and they will lie to protect themselves. . . . The reason one knows that these defendants were not in close proximity to the plaintiff is because they say so." (Opp. Mem. at 2;
Patterson's conclusory arguments are insufficient to defeat defendants' summary judgment motion. At the December 1 argument, Patterson's counsel acknowledged that there was no evidence contradicting the defendants' recollections as to their locations at the time excessive force allegedly was used. "In order to defeat a motion for summary judgment supported by proof of facts that would entitle the movant to judgment as a matter of law, the nonmoving party is required . . . to set forth specific facts showing that there is a genuine issue of material fact to be tried."
For example, in
Defendants move for summary judgment on Patterson's supervisory liability claim against defendants Conca and Russo. They contend that because Conca was unaware of his subordinates' alleged actions, and because Russo was not a direct supervisor of defendants Fahim or Raggi, no reasonable jury could find them liable in a supervisory capacity. Because Patterson has not come forward with evidence sufficient to defeat the defendants' motion, the motion is granted.
"A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort."
Defendant Conca is the direct supervisor of defendants Fahim and Raggi. (Def. 56.1 ¶ 24; Conca Dep. 28, 30.) As noted, Conca testified that during the time that force allegedly was used against Patterson, he was in the yard area behind the apartment, and that when he entered the premises, Patterson was seated on the living room couch in handcuffs. (Conca Dep. 40-41, 48.) Conca testified that he had never reprimanded either Fahim or Raggi for their performance. (Conca Dep. 28-30.) He argues that, based on this record, no reasonable jury could find for Patterson on his supervisory liability claim.
In opposition, Patterson argues that a reasonable jury could conclude that Conca is liable in his supervisory capacity based on his role as a supervisor. (Opp. Mem. 5.) He argues, "If [Conca] was not at the place where plaintiff was injured, he should have been." (Opp. Mem. 5.) Again, Patterson fails to cite any evidence to defeat summary judgment. In essence, this amounts to an argument that Conca should be subject to supervisory liability solely because Fahim and Raggi were his subordinates. But this is contrary to the law of this Circuit, which instructs that a supervisory may not be liable "merely because his subordinate committed a constitutional tort,"
Defendant Russo is the commanding officer of the Staten Island gang squad. (Russo Dep. 18.) He is Conca's immediate supervisor, but also has general supervisory authority over the other defendants. (Russo Dep. 23.) Defendants' submissions do not further explain his role at the time that the search was executed, but they do not dispute that he was in the vicinity of Fahim and Raggi at the time that force was used on Patterson, and have not moved for summary judgment as to Russo on the failure to intervene claim.
Defendants contend that the supervisory liability claim against Russo is only cognizable as a failure-to-intervene claim, and that no evidence supports a claim that Russo failed to properly train or discipline any officers concerning the use of force. In opposition to the motion, Patterson notes only that Russo was in the vicinity of the alleged use of force, and that he was the overall supervisor of the warrant's execution. (Opp. Mem. 6.) Russo's proximity is relevant to the failure-to-intervene claim, but does not go toward his liability as a supervisor. As noted, a defendant's position in the chain of command is insufficient evidence to establish supervisory liability.
Because the evidence cited by Patterson is relevant to a defendant's failure to intervene but not as to supervisory liability, he has failed to defeat the defendants' motion for summary judgment. Defendants' motion is therefore granted as to the supervisory liability claim against Russo.
The defendants move to dismiss Patterson's
To survive a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' +"
The Complaint's allegations as to municipal liability are conclusory and irrelevant. It alleges that the New York Police Department ("NYPD") has "procedures, customs, usage, practices, rules and/or regulations" that include but are not limited to "subjecting citizens to excessive force, arresting people without probable cause and engaging in a practice of falsification to conceal their abuse of authority." (Compl't ¶ 46.) The Complaint alleges that these practices include "testilying" (which the Complaint defines as lying under oath), "flaking" (which the Complaint defines as "perjurious statements with regard to controlled substances") and "collars for dollars" (defined as making false arrests to obtain overtime compensation). (Compl't ¶ 46.) It alleges that the NYPD has a policy of inadequate screening, hiring and training. (Compl't ¶¶ 47, 59.) As supporting evidence, it cites "numerous" civil actions filed against the NYPD, as well as the criminal conviction of former NYPD Commissioner Bernard Kerik on corruption-related charges. (Compl't ¶¶ 47-54.) The Complaint also recites civil actions brought against defendant Fahim and administrative complaints filed against other defendants. (Compl't ¶¶ 55-56.)
When a plaintiff alleges municipal liability, "allegations which are nothing more than broad, simple and conclusory statements are insufficient."
Moreover, "[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on failure to train."
Summary judgment is granted to defendants Russo, Zak, Ricci, Conca, Bruno, Woodhouse, Edelman and Spinelli on Patterson's claim asserting the direct use of excessive force. Summary judgment is granted to defendants Zak, Ricci, Conca, Bruno, Woodhouse, Edelman and Spinelli as to the failure to intervene claim, and to defendants Conca and Russo on the supervisory liability claim. The City's Rule 12(b)(6) motion is granted as to the
SO ORDERED.
JAMES L. COTT, United States Magistrate Judge.
Plaintiff Pedro Soto ("Soto"), an inmate in New York State custody, brings this action against two nurses at Sing Sing Correctional Facility, Elizabeth Hamawy, R.N. ("Hamawy") and Suzette Camper, R.N. ("Camper"), and the retired chief medical officer of the New York State Department of Correctional Services ("DOCS"), Dr. Lester Wright ("Wright"), who was previously dismissed from this case by the Court. Soto's allegations arise from a visit to "sick call" on August 14, 2009. Soto contends that Hamawy and Camper refused to treat him for a heart attack, and that Hamawy subsequently retaliated against him after he filed a grievance against her. Proceeding pro se, Soto seeks declaratory relief and damages under 42 U.S.C. § 1983 for alleged violations of his rights under the First, Eighth, and Fourteenth Amendments. The remaining defendants, Hamawy and Camper, now move for summary judgment. For the reasons set forth below, I recommend that the motion be granted.
Soto is an inmate at Sing Sing Correctional Facility ("Sing Sing") in Ossining, New York. See Complaint ("Compl."), filed March 31, 2011, ¶ I.A (Dkt. No. 2). He brings this action, alleging claims of deliberate indifference and retaliation, following final decisions by the authorities at Sing Sing that are responsible for inmate grievances: the Inmate Grievance Review Committee ("IGRC"), the Sing Sing Superintendent, and the Central Office Review Committee ("CORC"). See Motion for Summary Judgment, Declaration of Maria B. Hartofilis, Esq. ("Hartofilis Decl."), dated August 3, 2012, Ex. B (Dkt. No. 31); Motion for Summary Judgment, Declaration of Elizabeth Hamawy, R.N. ("Hamawy Decl."), dated July 28, 2012, Ex. C (Dkt. No. 31).
As an initial matter, I note that Soto has been inconsistent regarding the date of the incident giving rise to his claim of deliberate indifference. Soto states in his complaint that Hamawy and Camper refused to treat him for a heart attack on September 14, 2009. Compl. ¶ II.C. However, in his opposition to the defendants' motion for summary judgment, Soto states that the incident about which he complains actually occurred on August 14, 2009. Opposition to Summary Judgment Motion of Defendants ("Pl.'s Opp'n"), filed August 27, 2012, ¶ 2 (Dkt. No. 35). In their reply papers, Hamawy and Camper confirm that they provided medical care to Soto on August 14, 2009, but deny seeing him on September 14, 2009. Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment ("Defs.' Reply"), dated October 12, 2012, at 6 (Dkt. No. 37). Moreover, an incident date of August 14, 2009 is consistent with the grievance records from Sing Sing, which note that "the incident took place on 8/14/09 not 9/14/09 described by grievant . . ." Hartofilis Deck Ex. B (IGRC findings dated December 17, 2009). I therefore proceed under the assumption that the incident giving rise to Soto's deliberate indifference claim occurred on August 14, 2009 rather than on the date provided in the complaint.
Soto alleges that he went to "emergency sick call" a few hours later, where he met with Nurse Camper. Id. ¶¶ 3-4. Soto further alleges that Camper gave him "gas" medication for his chest pressure and stated: "Don't tell me anything about your pacemaker or your heart surgery, because I don't want to hear!" Id. ¶ 4. Soto argues that, given his medical condition, Camper should have "consult[ed] with a doctor so that [he] could be evaluated, use[d] an EKG to ascertain if their [sic] were irregularities, or admit[ted] [Soto] into the facility's hospital for observation." Id. ¶ 5.
Soto was examined by a doctor three days later, on August 17, 2009. Compl. ¶ 7; see also Hamawy Decl. Ex. B (Soto's medical records documenting treatment by Dr. David on August 17, 2009). The doctor prescribed a medication for high blood pressure. Compl. ¶ 7.
On September 24, 2009, Soto met with his cardiologist, Dr. Joseph J. Tartaglia, who examined his pacemaker. Compl. ¶ 8. Soto claims that the analysis of his pacemaker demonstrates that he experienced a minor heart attack on the day he met with Hamawy and Camper. Id. Considering Soto's allegations in the light most favorable to him, I construe Soto's complaint and his opposition papers to allege that, by refusing to take a more aggressive course of treatment for his chest pains and possible heart attack, Hamawy and Camper were deliberately indifferent to his serious medical needs.
On October 20, 2009, Soto filed a grievance through the IGRC, alleging that he was denied proper treatment for a heart attack. Compl. ¶ 9; Hartofilis Decl. Ex. B.
Soto filed an opposition on August 27, 2012, asserting that August 14, and not September 14, was likely the correct date. Pl.'s Opp'n ¶¶ 2-3. Hamawy and Camper filed reply papers on October 12, 2012. They argued that Soto should not be permitted to change the date of the challenged conduct so late in the litigation. Defs.' Reply at 1. They also contended that Soto did not have a heart attack on either August 14 or September 14, 2009, and that Defendants were still entitled to summary judgment even if August 14 was accepted as the correct date. Id. at 2-3, 6-7.
On November 27, 2012, Soto filed additional undated opposition papers and medical records. Opposition to Defendants['] Motion ("Pl.'s Further Opp'n") (Dkt. No. 40). Soto argued that he did have a heart attack on the date in question, that Defendants' witnesses were not truthful in their affidavits, and that the case should be permitted to proceed to trial. Id. ¶¶ 3-5.
Defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Under Rule 56, summary judgment may be granted when the record demonstrates 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The materiality of a dispute "runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The evidence of the party opposing summary judgment is `to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Graham, 89 F.3d at 79 (quoting Anderson, 477 U.S. at 255).
When reviewing a summary judgment motion involving a pro se party, "the submissions of [the] pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (internal quotation marks and citation omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is `to be liberally construed.'") (quoting Estelle, 429 U.S. at 106). However, proceeding pro se does not relieve a litigant from the usual requirements of summary judgment. Tavares v. City of New York, No. 08 Civ. 3782(PAE) (JCF), 2011 WL 5877550, at *4 (S.D.N.Y. Oct. 17, 2011) (Report & Recommendation) (citing Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995)), adopted by, 2011 WL 5877548 (S.D.N.Y. Nov. 23, 2011). Rule 56 requires that a party opposing the motion for summary judgment support its argument by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations . . ." Fed.R.Civ.P. 56(c)(1)(A). An affidavit or a declaration "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c) (4). Accordingly, "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (citations omitted); see also Fed.R.Civ.P. 56(e)(3). Thus, a pro se party's "`bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee, 902 F.Supp. at 429 (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)); Kadosh v. TRW, Inc., No. 91 Civ. 5080(PKL), 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("[t]he work product of pro se litigants should be generously and liberally construed, but [the litigant's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual.").
The objective element requires that "the prisoner was actually deprived of adequate medical care" and "the inadequacy in medical care [was] sufficiently serious." Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir.2006) (internal citation and quotation marks omitted). A plaintiff need not suffer an actual injury in order to establish a serious medical need because "the Eighth Amendment protects against future harm to inmates" and thus "a remedy for unsafe conditions need not await a tragic event." Helling v. McKinney, 509 U.S. 25, 33 (1993). Rather, a serious medical need "exists where `the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir.2000) (quoting Chance v. Armstrong. 143 F.3d 698, 702 (2d Cir.1998)). This standard has also been described as requiring "`a condition of urgency, one that may produce death, degeneration or extreme pain. . . .'" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)). Where, as here, the prisoner has been receiving ongoing treatment for a serious medical condition, the Court must focus on "`the particular risk of harm faced by the prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition . . .'" Goris v. Breslin, 402 F. App'x 582, 584-85 (2d Cir.2010) (quoting Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.2003)); see also Bilal v. White, No. 104594pr, 2012 WL 3734376, at *1 (2d Cir. Aug. 30, 2012).
"To satisfy the subjective element, `the charged official must act with a sufficiently culpable state of mind.'" Hall v. New York, 476 F. App'x 474, 477 (2d Cir.2012) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994)). This "requires a state of mind that is the equivalent of criminal recklessness[.]" Hathaway, 99 F.3d at 553 (citation omitted). 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. In contrast, mere malpractice or negligent treatment is generally not a constitutional violation. Estelle, 429 U.S. at 106. Prison officials will not be liable under Section 1983 for "a delay in treatment based on a bad diagnosis or erroneous calculus of risks and costs, or a mistaken decision not to treat based on an erroneous view that the condition is benign or trivial or hopeless[.]" Harrison, 219 F.3d at 139 (citing Estelle, 429 U.S. at 105-06). Moreover, "prison officials . . . may be found free from liability if they respond[] reasonably to the risk, even if the harm ultimately [is] not averted." Farmer, 511 U.S. at 844. Still, "certain instances of medical malpractice may rise to the level of deliberate indifference . . . when the malpractice involves culpable recklessness [.]" Hathaway, 99 F.3d at 553 (citation omitted).
"It is well-established that mere disagreement over the proper treatment does not create a constitutional claim." Chance, 143 F.3d at 703. "[D]eliberate indifference [will not] be found when an inmate simply prefers an alternative treatment or feels that he did not get the level of medical attention that he desired." Cherry v. Edwards. No. 01 Civ. 7886(FM), 2005 WL 107095, at *8 (S.D.N.Y. Jan. 18, 2005) (citation omitted); aff'd 155 F. App'x 529 (2d Cir.2005). Rather, "`disagreements over medications, diagnostic techniques . . ., forms of treatment or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim.'" Id. (quoting Sonds v. St Barnabus Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001)). "So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at 703 (citation omitted).
It is uncontradicted that when Soto sought treatment on August 14, 2009, Hamawy told Soto that he would have to wait his turn to see a doctor at regular sick call, but that he should go to emergency sick call if he had chest pains. Compl. ¶¶ 2, 9; Pl.'s Opp. Ex. 1 (Hamawy's notes in Soto's medical chart that she "[i]nstructed [Soto that] when he has c.p., to go to E.R."); see also Defs.' Reply at 6. Soto followed Hamawy's advice and saw Camper later that day. PL's Opp. Ex. 1 (Soto's medical chart showing examination and treatment by Camper). Camper did not think Soto was having a heart attack and treated him for non-cardiac sources of chest pain, but told him to return if his symptoms did not improve. Compl. ¶ 9. Soto was able to see a doctor three days later on August 17, 2009. Compl. ¶¶ 2-4, 7. Aside from Soto's dissatisfaction with this course of treatment, there is nothing in the record to support a finding that the treatment was inadequate, much less that it demonstrated the "culpable state of mind" required for a deliberate indifference claim. See Cherry, 2005 WL 107095, at *7; see also Webb v. Jackson, No. 92 Civ. 2149(SS), 1994 WL 86390, at *2 (S.D.N.Y. March 16, 1994) ("Medical decisions will constitute `indifference' only when they are contrary to accepted medical standards.") (citation omitted), aff'd, 47 F.3d 1158 (2d Cir.1995).
Given the evidentiary record here—which shows that Soto received adequate treatment for chest pain and that he suffered no medical consequences arising from the alleged lack of care—no rational jury could find that Camper and Hamawy were deliberately indifferent to a serious risk to Soto's health.
To make out a First Amendment retaliation claim, "a prisoner must adduce evidence of (1) protected speech or conduct, (2) adverse action by defendant, and (3) a causal connection between the protected speech and the adverse action." Bilal, 2012 WL 3734376 at *2 (citing Espinal v. Goord, 558 F.3d 119, 120 (2d Cir.2009)).
There is no genuine dispute of material fact with regard to Soto's First Amendment retaliation claim. Soto alleges that Hamawy wrongfully denied him a medical pass on January 15, 2010 in retaliation for his then-pending grievance against her. Compl. ¶¶ 12-13. After the pass was denied, Soto filed a second grievance against Hamawy for retaliation. Hamawy Decl. Ex. C. (Memo from Soto to IGRC dated January 15, 2010). In the retaliation grievance, Soto asserted that Hamawy was "giving [him] a hard time" and "want[ed] [him] to see the doctor in order for [him] to have [his] medical pass renewed." Id. Soto's pass was renewed by a doctor on January 27, 2010. Hamawy Decl. ¶ 12 & Ex. C (IGRC findings dated February 18, 2010).
Hamawy acknowledges that she did not issue the medical pass that Soto requested, but contends that she was not authorized to issue the pass pursuant to Sing Sing policy. Hamawy Decl. ¶¶ 9, 11; Defs.' Mem at 12-13. According to Hamawy, a medical pass generally must be issued by a physician, physician's assistant, or nurse practitioner. Id. ¶ 9. As a registered nurse, Hamawy argues that she could only issue a medical pass in an "emergency or acute medical situation," which was not the case when Soto saw her on January 15, 2010. Hamawy Decl. ¶ 11.
Pursuant to Sing Sing's policy on medical passes, Hamawy would not have issued the medical pass to Soto regardless of his grievance. The policy therefore provides a proper basis for Hamawy's actions. See Lowrance, 20 F.3d at 535 (prison officials properly punished inmate according to internal policies, when inmate had violated prison rules but had also previously filed grievances against officials); Roseboro v. Gillespie, 791 F.Supp.2d 353, 372 (S.D.N.Y.2011) (finding no retaliation when official denied prisoner's request to see visitor who had criminal background, and prison had policy regulating such visitors). I therefore conclude that the evidence in the record establishes a non-retaliatory basis for Hamawy's denial of the medical pass, and accordingly recommend that summary judgment be granted on Soto's retaliation claim.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A, Crotty and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty.
Injah Tafari, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Charles J. Quackenbush, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
GLENN T. SUDDABY, District Judge.
Generally, construed with the utmost of liberality, Plaintiff's Second Amended Complaint asserts the following eight claims against the eighteen above-captioned Defendants: (1) Defendants Miller, Wendland, Butler, Goord, and Nuttal wrongfully denied Plaintiff kosher meals from January 24, 2005, through March 24, 2005, in violation of the First Amendment; (2) Defendants Wendland and Butler wrongfully removed Plaintiff from the kosher meal list from July 13, 2005, to July 15, 2005, in violation of the First Amendment; (3) Plaintiff was wrongfully denied requests for vegetarian-kosher meals, in violation of the First Amendment, (a) by Defendants Miller, Wendland, Butler, Healy, LaPort and Brown in 2006 at Eastern Correctional Facility, (b) by Defendants Poole, Yost, LeClaire, Goord, Nuttall and Devane in 2006 at Five Points Correctional Facility, and (c) by Defendants Frank, Jacob, Morgenstern, and Zenzen in 2007 at Eastern Correctional Facility and Five Points Correctional Facility; (4) Defendants Brown, Healy, LaPolt, LeClaire, Poole, Wendland, Yost, and Zenzen wrongfully denied Plaintiff holiday meals for Yom Kippur, Hannukah, and Passover during the years 2005 and 2006, in violation of the First Amendment; (5) Defendants Healy and Brown wrongfully placed Plaintiff on a restricted "loaf diet as a result of disciplinary sanctions from December 18, 2005, through January 9, 2006, in violation of the First and Eighth Amendments; (6) through the above-described actions, Defendants caused Plaintiff to suffer weight loss and constipation, in violation of the Eighth Amendment; (7) Defendants Goord, LeClaire, Nuttall, Poole, Roy, Yost, Carvill, Frank, Jacob, Morgernstern, and Devane wrongfully denied his requests for a transfer to Green Haven Correctional Facility (which provides qualified inmates with vegetarian-kosher meals), in violation of the First Amendment; and (8) Defendant Poole filed two misbehavior reports against Plaintiff in 2007 in retaliation for his retaining his dreadlocks, in violation of the First Amendment. (See generally Dkt. No. 38.)
On August 12, 2011, Defendants filed a motion to revoke pursuant to 28 U.S.C. § 1915(g). (Dkt. No. 118.) Generally, in support of their motion, Defendants assert that Plaintiff is precluded from litigating this case without payment of filing fees pursuant to the "three strikes" provision under 28 U.S.C. § 1915(g). (Dkt. No. 118.)
On August 24, 2011, Defendants filed a motion for summary judgment. (Dkt. No. 122.) Generally, in support of their motion, Defendants assert the following seven arguments: (1) Plaintiff's claims for monetary relief against Defendants in their official capacities are barred by the Eleventh Amendment, and his claims for equitable relief are moot due to his having been transferred to Upstate Correctional Facility; (2) Plaintiff has failed to adduce admissible record evidence establishing the personal involvement of Defendants (who were all high-ranking correctional officials during the times in question) in the constitutional violations alleged; (3) Plaintiff has failed to adduce admissible record evidence establishing that the challenged policies and/or actions regarding food and hair were not reasonablyrelated to legitimate penological interests; (4) Plaintiff's claims against Defendant Miller regarding the failure to provide kosher meals are barred by the doctrines of res judicata and/or collateral estoppel; (5) Plaintiff's claims regarding Defendants' refusal to transfer him to Green Haven Correctional Facility are not actionable; (6) Plaintiff has failed to adduce admissible record evidence establishing either of the two elements of a inadequate-conditions-of-confinement claim under the Eighth Amendment; and (7) in any event, based on the current record, Defendants are protected from liability as a matter of law by the doctrine of qualified immunity. (Id.)
On March 6, 2012, the Magistrate Judge issued a Report-Recommendation recommending that Defendants' motion to revoke be denied and that their motion for summary judgment be granted in part and denied in part. (Dkt. No. 126.) More specifically, with respect to Defendants' motion to revoke, the Magistrate Judge determined that, because Plaintiff's third strike occurred after the filing of the current action, Plaintiff has not acquired three strikes under the parameters of 28 U.S.C. § 1915(g). (Id. at 23-25.) With respect to Defendants' motion for summary judgment, the Magistrate Judge recommended that Plaintiff's claim for the denial of kosher meals for an eight-week period during January 24 through March 24, 2005 should survive Defendants' motion, and that Plaintiff's remaining claims should be dismissed pursuant to Fed.R.Civ.P. 56 and/or 12(b)(6). (Id. at 26-27.)
Plaintiff has filed four sets of Objections to the Magistrate Judge's Report-Recommendation. (Dkt.Nos.127, 129, 130, 133.)
More specifically, on March 13, 2012, Plaintiff filed an Objection to the Report-Recommendation. (Dkt. No. 127.) Generally, in his Objection, Plaintiff asserts the following six arguments: (1) genuine issues of material fact remain that preclude granting summary judgment; (2) Defendants should not have been dismissed for lack of personal involvement; (3) Defendant Goord created the DOCCS policy prohibiting dreadlocks, Defendant Poole allowed the policy to continue, and the policy violated Plaintiff's First Amendment rights; (4) the right to practice one's religion includes the right to assemble and acts of worship, and Plaintiff was denied these rights during the Yom Kippur, Hanukkah, and Passover holidays; (5) Plaintiff was denied the free exercise of religious practice by Defendants, who withheld special holiday meals and failed to provide him with daily vegetarian-kosher meals in accordance with his religious beliefs; and (6) the provision of a vegetarian-kosher meal is neither cost-prohibitive nor administratively difficult. (Id.)
On March 15, 2012, Plaintiff filed a Supplemental Objection to the Report—Recommendation. (Dkt. No. 129.) Generally, in his Supplemental Objection, Plaintiff asserts the following two arguments: (1) because Defendants were personally involved in the constitutional violations alleged, they should not have been dismissed from the action; and (2) correctional facilities currently provide special meal accommodations to certain prisoners because of food allergies or other health-related issues. (Id.)
On March 19, 2012, Plaintiff filed a "Second Addendum" to his Supplemental Objection. (Dkt. No. 130.) Generally, in his Second Addendum, Plaintiff asserts the following two arguments: (1) based on a review of a CAD menu, it is clear that, once meat and meat byproducts are removed from the selections, Plaintiff is permitted to eat only some items that do not provide him a nutritionally adequate diet; and (2) Defendants have adduced no admissible record evidence that any deviation from the CAD menu would present a substantial financial or administrative burden. (Id.)
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2),(3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition.
After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b) (1)(C).
The Magistrate Judge correctly recited the legal standard governing motions for summary judgment. (Dkt. No. 126, at Part II.A.) As a result, these standards are incorporated by reference in this Decision and Order, which is intended primarily for the review of the parties.
For the sake of brevity, the Court will liberally construe Plaintiff's Objections, and Defendants' Objections, as together specifically challenging each and every finding and recommendation of the Magistrate Judge's Report-Recommendation, so as to subject that Report-Recommendation to a de nova review, rather than a clearerror review. (See generally Dkt.Nos. 127, 128, 129, 130, 133.)
After carefully subjecting the Magistrate Judge's thorough Report-Recommendation to a de nova review, the Court adopts that Report-Recommendation for the reasons stated therein, except for its recommendation regarding the survival of Plaintiff's claim against Defendants Wendland and Nuttal for failing to provide him with kosher meals between January 24, 2005 and March 24, 2005, which is also dismissed.
The Court reaches this latter conclusion for each of the three alternative reasons offered by Defendants Wendland and Nuttal in their memorandum of law and Objection: (1) Plaintiff has failed to adduce admissible record evidence from which a rational fact-finder could conclude that they were personally involved in the denial of his kosher meals between January 24, 2005 and March 24, 2005; (2) even if the two Defendants in question were personally involved in that violation, Plaintiff has failed to adduce admissible evidence establishing that those two Defendants were anything more than negligent, which is not actionable under the First Amendment and 42 U.S.C. § 1983; and (3) in any event, those two Defendants are protected from liability as a matter of law by the doctrine of qualified immunity. (See Dkt. No. 122, Attach. 1, at 5-8, 16-18 (arguing that the two Defendants in question were not personally involved, and that they are protected by qualified immunity); Dkt. No. 128 (arguing that negligence is not actionable, and that Defendants are protected by qualified immunity).
The Court would add only the following six brief points. First, based on the current record, it appears that Defendants Wendland and Nuttal received notice of Plaintiff's letters at the very earliest on March 21, 2005, and March 23, 2005, respectively-some eight weeks after the alleged violations started and rather immediately before they ceased. More specifically, on March 21, 2005, Plaintiff wrote a letter to Defendant Goord complaining that he was being harassed and intentionally denied the CAD, which he had requested as part of his Jewish faith. (Dkt. No. 124, Part 22, at 33-34.) Eighteen days later, Defendant Nuttal sent a letter to Plaintiff stating as follows:
(Id. at 35.) On April 15, 2005, Defendant Wendland wrote a memorandum to Plaintiff stating as follows:
(Id. at 52.) As a result, no rational fact finder could conclude that Plaintiff's letters gave
Defendants Wendland and Nuttal a reasonable opportunity to prevent the alleged constitutional violations from starting on January 24, 2005, or to cause them to stop before March 24, 2005.
Second, Defendant Nuttal was, during the time in question, entitled to refer Plaintiff's letter of complaint to a subordinate, such as Defendant Miller, and rely on that subordinate to conduct an appropriate investigation and response, without rendering himself personally involved in the constitutional violations alleged in the complaint.
Third, in any event, even if Defendants Nuttal and Wendland did somehow receive timely notice of the denial Plaintiff's kosher meals between January 24, 2005 and March 24, 2005, no rational facf-finder could conclude, based on the current record, that their responsive actions were taken with a state of mind that amounted to anything more than negligence, which indeed is not actionable under the First Amendment and 42 U.S.C. § 1983.
Fourth, Defendants' motion for summary judgment is granted (with regard to Defendants Nutall and Wendland, as well as the other Defendants) on the alternative ground that Plaintiff has failed to submit an adequate Rule 7.1 Response to Defendants' Rule 7.1 Statement, which was properly supported by accurate record citations and which-together with Defendants' memorandum of law-at the very least satisfied Defendants' threshold burden on their motion. (CompareDkt. No. 122, Attach. 2 with Dkt. No. 124, Attach. 1.) The Court notes that Plaintiff (who was an experienced pro se civil rights litigant before opposing Defendants' motion for summary judgment)
Sixth, and finally, Plaintiff's claims for monetary relief against Defendants in their official capacities are dismissed on the alternative ground that they are barred by the Eleventh Amendment, for the reasons stated by Defendants in their memorandum of law. (Dkt. No. 122, Attach. 1, at 6.)
For each of these numerous alternative reasons, Defendants' motion for summary judgment is granted in its entirety.
Frederick McMillian, pro se.
Carol L. Rhinehart, Asst. County Atty.
THOMAS J. McAVOY, Senior District Judge.
After examining the record, this Court has determined that the Order and Report-Recommendation is not subject to attack for plain error or manifest injustice.
Accordingly, the Court
ANDREW T. BAXTER, United States Magistrate Judge.
This matter has been referred to me for Report and Recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge. In this amended civil rights complaint, plaintiff alleges that his constitutional rights were violated when he was incarcerated as a pretrial detainee at the Onondaga County Justice Center ("OCJC") from July 16, 2011 until January 26, 2012. (Amended Complaint ("AC") ¶ 6A) (Dkt. No. 20).
Presently before the court is a motion for summary judgment pursuant to Fed.R.Civ.P. 56 filed by defendants Onondaga County and Richard Carbery, Chief Administrator.
Plaintiff alleges that at approximately 9:48 p.m. on July 16, 2011, following his admission to the OCJS, he met with defendant LaMere, a Behavioral Health Services Social Worker. (AC at 6). Defendant LaMere performed an "intake assessment." (AC at 7). During this assessment, defendant LaMere asked plaintiff if he "had any thoughts of suicide" or "of hurting himself." (Id.) Plaintiff claims he told defendant LaMere that, although he was "a little depressed about his current situation, he was not suicidal," nor did he have thoughts of hurting himself or anyone else. (Id.) Plaintiff alleges that as the interview continued, defendant LaMere repeatedly stopped or interrupted plaintiff and was more interested in flirting with a corrections officer than with interviewing plaintiff.
Plaintiff claims that he became quite frustrated at defendant LaMere's conduct and asked to speak with someone else. Defendant LaMere allegedly raised her voice, told plaintiff that there was no one else with whom he could speak, and threatened plaintiff that if he did not answer her questions, he would be "end up on 5C, One on One." (Id.) Plaintiff states that he was unaware of what defendant LaMere meant at that time, and he did not wish to argue with her, so he just said "whatever." At that point, plaintiff claims that defendant LaMere stood up, said that she was "done," and told the officer that plaintiff was going upstairs "One on One." Plaintiff was then escorted up to the 5C housing "pod" and placed in an observation cell.
Plaintiff states that the observation cell was extremely cold, and he was forced to surrender all of his clothes. He was given only a "wrap around" that was extremely uncomfortable, often fell off, and did not fully cover plaintiff's genital area or buttocks when he slept, sat down, or used the toilet. (Id.) Plaintiff states that he was forced to sleep on a cold steel slab on the floor, without a mattress, blanket, or pillow, which caused bruising of his hips and lower back pain. Plaintiff also states that because his feet were bare, he got a pencil lead stuck in his toe that became infected, and he had to "endure" four days of pain before the medical unit finally decided to remove it. (Id. at 9). Plaintiff states that he was only allowed one shower the "entire week." Plaintiff claims that there was an officer posted outside his cell door 24 hours per day, and that the observation cell was located in the middle of the housing pod, where plaintiff could be seen by other inmates, security staff, and male and female civilians while he was sleeping, sitting down, or using the toilet. (Id. at 9).
Finally, plaintiff claims that any conversations with his attorney, mental health, and medical staff were "made public" because he had to speak with these individuals through his cell door, despite the fact that interview rooms were available on the unit. (AC at 9-10). Plaintiff claims that the corrections officers would often joke or make fun of the detainees based upon the confidential information that the officers overheard. Plaintiff claims that his dignity, privacy, and confidentiality were "violated" based upon these conditions of confinement and that the County could have achieved its goal of preventing an inmate from committing suicide by "far less degrading, harsh, or humiliating ways." (Id. at 10).
Plaintiff alleges that the OCJC policy of allowing inmates only local calls at the County's expense at the time of booking violates plaintiff's First Amendment constitutional right to communicate with his family and his New York State Statutory right under N.Y.Crim. Proc. Law § 180.10, which requires the County to allow communications "free of charge" for purposes of locating counsel.
Plaintiff raises the following remaining claims:
Plaintiff has requested declaratory and monetary relief. In his response to defendants' motion, plaintiff has filed affidavits from other inmates who are familiar with 1-1 supervision. (Dkt. No. 48-1-48-4).
Defendants have filed a substantial number of exhibits, including plaintiff's medical records and the affidavits of defendant Carbery and Assistant Attorney General Rhinehart. (Dkt. No. 36-1-36-20). Rather than detail all the defendants' facts at the outset, I will discuss the evidence as I analyze the issues presented by defendants' motion.
Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).
In this case, in his opposition to defendants' motion, plaintiff has requested additional discovery pursuant to Fed.R.Civ.P. 56(d). (Dkt. No. 51) (Pl.'s Opp. Br. at 15).
The party opposing summary judgment is not automatically entitled to additional discovery. Id. However, if the non-moving parting makes the required showing, the court may deny the motion or defer the motion, while allowing additional time to obtain the discovery. Fed.R.Civ.P. 56(d) (1), (d)(2).
Plaintiff alleges that he needs a "continuance" because he believes that he needs "[additional] discovery of the Minimum standards, regulations & procedures set by the State Commission of Corrections regarding suicide watches. . . ." (Pl.'s Opp. Br. at 15). Plaintiff claims that he has not been able to obtain these "standards," and he believes that these standards will assist him in raising a genuine issue of material fact regarding whether the defendants were "authorized or in compliance with minimum standards set by the commission." (Id.) Plaintiff also claims that he needs additional discovery in order to determine the "commission rates" under the contract with the County's telephone provider. (Pl.'s Opp. Br. at 10). Finally, plaintiff claims that he is waiting for a response from his former attorney, who was asked whether attorneys were informed by the defendant County of the possibility of a private interview with their clients on 1-1 supervision. (Pl.'s Opp. Br. at 19).
The definition of "Constant Supervision" or "Constant Observation" is contained in defendants' Ex. H (Onondaga County Sheriff's Office ("OCSO") Post Order for Constant Observation Deputy) (citing 9 NYCRR § 7003.2(d) (Dkt. No. 36-14). This Directive also contains a description of the Suicide Prevention Program. (Def.s' Ex. H "Mental Health Services Directive, CUS-051(VI) (Dkt. No. 36-13). Plaintiff has also been supplied with the "Policy Addressing Suicide Prevention" from Correctional Medical Care, Inc., followed by the health care professionals at OCJC. (Def.s' Ex. F). Thus, plaintiff has not shown that he needs further discovery with respect to "Minimum Standards" to properly respond to the motion. All of the documents relating to plaintiff's suicide watch have been supplied by the defendants as exhibits.
As discussed below, this court finds that notwithstanding the provisions of a contract with the County's telephone provider, plaintiff has no constitutional right to demand a particular telephone rate from the defendant. Thus, no additional discovery is necessary regarding the "commission rates imposed."
Plaintiff also asks for a continuance so that he may obtain a "waited response"
The standard for municipal liability requires that the municipality adopt a "custom" or "policy" which is the moving force behind plaintiff's constitutional violation. Zappala v. Albicelli, 980 F.Supp. 635, 639 (N.D.N.Y.1997) (citing Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 659 (1978)). A municipality may not be held liable on the basis of respondeat superior alone, and a single incident alleged in a complaint, particularly if it involves only actors below the policymaking level, will not suffice to raise an inference of the existence of a custom or policy. Id. (citing Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993)). In addition, plaintiff may not simply allege that there was a failure to train municipal employees or assert in a conclusory manner that the municipality has a custom or policy. Id.
If plaintiff is attempting to bring the retaliation claim against defendant Carbery in his "individual capacity, plaintiff must show that this supervisory defendant was "personally involved" in the constitutional violation. For retaliation claims, as for other section 1983 claims, a plaintiff "must show some tangible connection between the constitutional violation alleged and [a] particular defendant." Toole v. Connell, 9:04-CV-724 (LEK/DEP), 2008 WL 4186334, at *6 (N.D.N.Y. Sept. 10, 2008). Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citation omitted); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003).
In Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986), the Second Circuit detailed the various ways in which a defendant can be personally involved in a constitutional deprivation, and thus be subject to individual liability: (1) if the supervisor directly participated in the infraction; (2) if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong; (3) if the official created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; or (4) if he or she were grossly negligent in managing subordinates who caused the unlawful condition. Id.
Based on the facts as stated by plaintiff, there is no claim that defendant Carbery was aware of the alleged retaliation, and because defendant LaMere did not work for the County, defendant Carbery's personal involvement could not be found based upon his gross negligence in managing his subordinates. There was no "policy" alleged in this portion of the complaint, and there is no indication that defendant Carbery became aware of the alleged violation prior to plaintiff's release from 1-1 watch. Plaintiff does not make any such allegation. The retaliation claim may thus be dismissed as against Onondaga County and as against defendant Carbery, both in his individual and his official capacity.
With respect to the plaintiff's other claims, the court will proceed to consider the merits. It is conceivable that the conditions of confinement under 1-1 supervision and the telephone restrictions could be considered a "policy" of the County. However, both claims fail on the merits.
In Pitsley, the court held that "`[t]he exact nature of telephone service to be provided to inmates is generally to be determined by prison administrators, subject to court scrutiny for unreasonable restrictions.'" Pitsley, supra (quoting Fillmore v. Ordonez, 829 F.Supp. 1544, 1563-64 (D.Kan.1993), aff'd, F.3d 1436 (10th Cir.1994)). Generally, prison regulations imposing telephone restrictions have been upheld. Id. at 5. In situations where the restrictions have been upheld, the inmate had alternate means of communicating with the outside world, "most often by use of the mail." Id. (citation omitted).
Plaintiff alleges that he was not allowed to make a free long distance telephone call upon his incarceration at the OCJC.
As Judge McAvoy recognized, an inmate has no constitutional right to use the telephone, and the fact that plaintiff also bases his right on New York Crim. Proc. Law § 180.10(3), does not change the constitutional analysis. It is well-settled that the violation of a state statute does not automatically rise to the level of a constitutional violation. Dixon v. Goord, 224 F.Supp.2d 739, 744-45 (S.D.N.Y.2002). Thus, even if section 180.10(3) was violated by defendants, this would not rise to the level of a constitutional violation. In any event, section 180.10(3), by its own terms does not grant a defendant the right to use the "telephone." The statute specifically states that if the defendant appears at arraignment without counsel, he or she has the right to communicate
Plaintiff appears to concede that he ultimately received the "indigent materials," but states that he had to wait ten days before being provided these items.
Plaintiff also challenges the contract that the OCJC has with its telephone provider. Plaintiff states that his sister was forced to pay too much for one hour of telephone time. (AC ¶ 6A(v)). In Walton v. New York State Dep't of Correct. Svcs., the plaintiffs were two legal service providers, representing inmates and the recipients of the inmates' collect telephone calls. 13 N.Y. at 482. The plaintiffs challenged the contract that the Department of Correctional Services ("DOCS")
In Holloway v. Magness, No. 5:07-CV-88, 2011 WL 204891 (E.D.Ark. Jan. 21, 2011), the court came to the same conclusion as the court in Walton, dismissing a claim in which plaintiff inmates were challenging "the economic arrangements by which telephone services are made available to them." Id. at *1. In doing so, the court cited to many cases in which similar policies were upheld. The court stated that "no court has yet held, on any [of the legal theories proposed] that a contract between a telephone company and a prison system was unlawful." Id. at *4. The court in Hollaway pointed to only two cases in which motions to dismiss were denied, while finding that plaintiffs might be able to prevail if they could show that the costs were so exorbitant that they were unable to communicate. Id. & n. 22 (citing Byrd v. Goord, No. 00 Civ. 2135, 2005 WL 2086321, at *8 (S.D.N.Y. Aug. 29, 2005); McGuire v. A merit ch Svcs., Inc., 253 F.Supp.2d 988 (S .D. Ohio 2003). Byrd was later dismissed as moot after the enactment of N.Y. Correct Law § 623 which removed the commission policy for New York State facilities. See Byrd v. Goord, No. 00 Civ. 2135, 2007 WL 2789505 (S.D.N.Y. Sept. 26, 2007).
In this case, defendant Carbery has filed the County's policy regarding commissions on telephone calls. (Def.s' Ex. N). Plaintiff has not shown that this policy prevented all communication since he admits that he spoke at length to his sister, but that the telephone call was expensive and could have been less expensive if the contract had been more reasonable. Based upon the case law cited above, plaintiff has failed to establish that he has a constitutional right to a particular fee for telephone calls. There is also no basis for plaintiff's conclusory allegation that the "extremely high prepaid & collect call rates" . . . were imposed for the purpose of "exploiting pre-trial detainees for financial gain." (AC ¶ 6A(v)). Conclusory allegations are insufficient to state constitutional claims. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987). Thus, plaintiff's telephone claim may be dismissed.
Plaintiff also alleges that the OCJC refuses to accept money orders and requires the inmates families to use a money deposit machine at the jail, which involves "additional fees." (AC ¶ 6A(iii)). Plaintiff essentially alleges that he had to wait a long time for his sister's money order to be processed. It is unclear what constitutional right plaintiff is asserting in this claim. He states that indigency was "forced" upon plaintiff. However, as stated above, when plaintiff did not have funds, he was given an "indigent pack," which contained both personal hygiene items as well as writing materials. Plaintiff has not shown that communication was eliminated for him based on the delay in processing the money order, and plaintiff's claim may be dismissed. Plaintiff includes a claim that the OCJC refused to credit one dollar to his account when he was arrested, and instead placed it in plaintiff's personal property so he could not use it to purchase stamps or pens. This claim may be dismissed because plaintiff has shown no constitutional right that could have been violated by such action.
To establish retaliation, the plaintiff must also demonstrate a causal connection between the protected speech or conduct and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004). Although a "`plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action[,]' "[s]uch circumstantial evidence of retaliation, . . . without more, is insufficient to survive summary judgment." Roseboro v. Gillespie, 791 F.Supp.2d at 370 (citations omitted).
Even if plaintiff makes the appropriate showing of retaliation, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct. Id. at 371. "Regardless of the presence of retaliatory motive, . . . a defendant may be entitled to summary judgment if he can show . . . that even without the improper motivation the alleged retaliatory action would have occurred." Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir.2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The court must keep in mind that claims of retaliation are "easily fabricated" and "pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration." Accordingly, plaintiff must set forth non-conclusory allegations to sustain a retaliation claim. Bennett, 343 F.3d at 137. Even where a complaint or affidavit contains specific assertions, the allegations "may still be deemed conclusory if [they are] (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.'" Smith v. Woods, 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n. 11 (N.D.N .Y. Apr. 24, 2006) (quoting Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir.2005)). To be sufficient to create a "factual issue," in the context of a summary judgment motion, an allegation in an affidavit or verified complaint "must, among other things, be based `on personal knowledge.'" Id., 2006 WL 1133247, at *3 & n. 7 (collecting cases); Fed.R.Civ.P. 56(c)(4).
Plaintiff claims that he never made a suicidal statement to defendant LaMere and that she only placed him on 1-1 supervision because he refused to answer her questions when he became frustrated with her behavior during the interview and requested to speak with another social worker. The medical records contain the detailed entries that are kept when an individual is placed on constant supervision. Plaintiff was "booked" into the OCJC at 8:20 p.m. (20:20) on July 16, 2011. (Dkt. No. 37-1). The "triage" documents, which appear to be signed by defendant LaMere, indicate that plaintiff appeared under the influence of drugs and made "suicidal statements." (Id. at 2). Her recommendation was that plaintiff be placed on "constant observation" (1-1) in the Behavioral Health Unit ("BHU"), with a "psych referral." (Id.)
On July 17, 2011, plaintiff was evaluated in the BHU. (Dkt. No. 37 at 62-67). The evaluation, which does not appear to be written by defendant LaMere, contains the quote: "doesn't feel like being alive." (Id. at 65). The report also indicates that plaintiff had a history of cutting himself and "mentioned biting." (Id.) Plaintiff also told the evaluator that he had used alcohol and crack cocaine just before his arrest. (Id. at 64). The progress notes accompanying the evaluation are consistent with these statements and indicate that plaintiff would remain in constant supervision due to being "actively suicidal." (Id. at 29).
Progress notes dated July 21, 2011, not written by defendant LaMere, state that plaintiff "[r]eported that he was coming off of drugs
Plaintiff was a pretrial detainee at the time of the incidents that plaintiff challenges in this case. As such, he was protected from unconstitutional living conditions by the Due Process Clause of the Fourteenth Amendment; but the standards for his due process protection are the same as those that protect convicted inmates from Cruel and Unusual Punishment under the Eighth Amendment. Liggins v. Griffo, 356 F. App'x 537, 539 (2d Cir.2009) (citing Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009)); LaRock v. Amato, No. 9:12-CV-503, 2013 WL 5466410, at *9 (N.D.N.Y. Sept. 30, 2013) (citations omitted).
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). The constitutional prohibition against cruel and unusual punishment includes the right to be free from conditions of confinement that impose an excessive risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). To establish an Eighth Amendment claim based on unsafe or medically inappropriate living conditions, a plaintiff must establish that (1) he was incarcerated under conditions which posed a substantial risk of serious harm, and (2) prison officials acted with deliberate indifference to his health or safety. See Farmer, 511 U.S. at 834.
"The deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). Under the objective standard, a plaintiff must allege a deprivation "sufficiently serious" to constitute a constitutional violation. Hathaway, 37 F.3d at 66 (quoting Wilson v. Seiter, 501 U.S. at 298). "Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient to sustain a `conditions-of-confmement' claim." Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.199) (citing Hudson v. McMillan, 503 U.S. 1, 9 (1992) (only those deprivations denying "the minimal civilized measures of life's necessities" are sufficiently serious to form the basis of an Eighth Amendment violation) (internal quotations and citations omitted).
Shielding one's unclothed figure from the view of strangers is "impelled by elementary self-respect an personal dignity." Jean Laurent v. Lawrence, No. 12 Civ. 1502, 2013 WL 1129813, at *8 (S.D .N.Y. Mar. 19, 2013) (citing Michen feler v. Sumner, 860 F.2d 328, 333-34 (9th Cir.1988)). However, while an inmate's right to privacy does not vanish altogether when he is imprisoned, that right must yield to a penal institution's need to maintain security. Id. (citing Cumbey v. Meachum, 684 F.2d 712, 714 (10 th Cir.1982).
In Jean Laurent, the court noted that "`recent cases in this Circuit and elsewhere addressing inmates' right to privacy suggest that occasional, indirect, or brief viewing of a naked prisoner by a guard of the opposite sex'—which would include possible glimpses on the way to the shower—`may be permissible.'" Id. (citing Correction Officers Benev. Ass'n of Rockland Cnty. v. Kralk, No. 04 Civ. 2199(PG), 2011 WL 1236135, at *11 (S.D.N.Y. Mar. 30, 2011) (citations omitted); Israel v. City of New York, No. 11 Civ. 7726(JMF), 2012 WL 4762082, at *3 (S.D.N.Y. Oct. 5, 2012) (finding intake strip searches permissible, notwithstanding the presence of other inmates and officers, males and females); Baker v. Welch, No. 03 Civ. 2267(JSR)(AJP), 2003 WL 22901051, at *20 (S.D.N.Y. Dec. 10, 2003) (stating that a balance should be struck, which would allow occasional viewing but that would prohibit regular viewing); Miles v. Bell, 621 F.Supp. 51, 67 (D.Conn.1985) (explaining that cases finding a violation of privacy rights have looked to the frequency or regularity of such viewing, and finding violations only in those cases in which the guards "regularly" watch inmates undressing, using toilet facilities, or showering). The right of privacy recognized by the Constitution also protects against the disclosure of personal matters, including medical records and information. Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Doe v. City of New York, 15 F.3d 264, 267 (2d Cir.1994).
In affirming the District Court's opinion in Sparks, the Second Circuit held that in order to establish a First Amendment violation, the plaintiff must "as a threshold matter show that her rights have been burdened or restricted." Sparks v. Seltzer, 380 F. App'x 26, 27 (2d Cir.2010). Subjective "chill" was not an adequate substitute for objective harm. Id. (citations omitted). The court found that an institutional policy permitting psychiatric patient visits to be supervised on the order of an attending psychiatrist did not violate the patients' First Amendment rights. Id. at 27. The court stated that "where the mere possibility of being overheard by a state actor who is not conducting an investigation, but instead is merely on hand to respond in the event of an emergency does not constitute objective harm." Id. at 27-28.
Defendant Carbery has filed an affidavit in support of the defendants' motion for summary judgment. (Carbery Aff.) (Dkt. No. 36-5). His affidavit outlines the OCJC policies and procedures relative to the evaluation of inmates coming into the facility, their referral to the BHU, and the conditions of 1-1 supervision. (Id.) Defendant Carbery states that when an individual is arrested and brought to the OCJC, part of the admissions process includes completing a "suicide prevention assessment" and asking the detainee if he or she took any street drugs prior to the arrest. (Carbery Aff. ¶ 9). The detainee's responses are documented on a Booking Process Checklist. (Id. & Ex. A). If the individual is under the influence of drugs and/or alcohol and has diagnosed or undiagnosed mental illnesses, his/her behavior may be erratic, and the potential for self-harm may be heightened. (Carbery Aff. ¶ 12). Deputies, medical staff, and mental health staff all receive training to assist them in recognizing inmates who may present a suicide risk. (Id.) All inmates are screened for this potential, and based upon this evaluation, the medical and mental health personnel take the appropriate actions or precautions "for the safety and well-being of the inmate." (Id.)
As stated above, the court finds that plaintiff's placement in 1-1 supervision was justified based on the records showing that he was under the influence of drugs and alcohol upon admission to the OCJC and did make a suicidal statement. Thus, the issue becomes whether the conditions of confinement in 1-1 supervision violated plaintiff's constitutional rights, and if so, whether that violation could be attributed to a "policy or custom" of the defendant County.
Plaintiff claims that the conditions were "extreme" and that the defendants could have accomplished their goal by "far less degrading [and] restrictive means." (Dkt. No. 51 at 19). Defendant LaMere indicated that the 1-1 supervision would be with "no sheets, no sharps, and safety attire." (Carbery Aff. ¶ 21 & Ex. A at 15). "Safety attire" consists of a smock, made of thick fabric that does not tear easily so that the inmate may not hang or otherwise injure himself by using torn fabric. (Carbery Aff. ¶ 22). Plaintiff was also placed in a "stripped" cell in which all personal items are removed, and the inmate is not permitted to have pens, pencils or soap. (Id.) Defendant Carbery states that inmates placed on 1-1 supervision "are given a mattress with the pillow rolled into one end of the mattress," and the entire unit is covered in plastic. (Carbery Aff. ¶ 23). Defendant Carbury states that the OCJC also has a mattress/blanket combination, which resembles a sleeping bag, that is given to some inmates. Showers are offered every other day, unless the deputy believes that it is too dangerous to remove the inmate from the cell. Inmates are not allowed telephone calls "due to potential exacerbation of mental instability/emotional disturbance." (Id.)
Although plaintiff claims that he never received a mattress or pillow, and his "safety attire" was too small, he concedes that on July 19, 2011, "deputy R. Folsom . . . removed the smaller smock initially provided to him on 7/16/11 & exchanged it with a larger (slightly more padded) type of smock, because his genitals & rump were completely exposed, while he had been laying down." (Pl.'s Stmt. of Mat. Facts ¶ 25). The contemporaneous notes by Dep. Fulsom show that on July 19, 2011, "cell # 9 [plaintiff was] given safety mattress/blanket combo, removed single blanket." (Carbery Aff. Ex. A pt.2 at 25). While plaintiff complains about excessive cold, he was only confined without his own clothes for five days in
Inmates on 1-1 supervision are monitored, and notations are entered into the log book every 15 minutes. (See Carbery Aff. Ex. A at 2-38). Most of the notes indicate that plaintiff McMillian was "doing OK," "appeared to be sleeping," or sitting/laying on his bunk. (Id.) For example, on July 21, at 15:58, plaintiff was "taken to court," and he returned at 17:29. (Id. at 34). At that time, plaintiff was given his meal tray and drink, and he sat on his bunk eating. (Id.) At 18:52, defendant LaMere was speaking to plaintiff in his cell. (Id. at 35). At 21:00, plaintiff took his medications, and went to sleep. (Id. at 35-37). By 11:30 on July 22, 2011, plaintiff's status had been reduced to "frequent check." (Id. at 38).
Defendant Carbery states that inmates on 1-1 supervision may have visits from attorneys and clergy, but in order to maintain security, such visits will occur at the inmate's cell, unless the visitor requests privacy during the visit. (Carbery Aff. ¶ 24). When an attorney requests private communication with the inmate, arrangements will be made. Plaintiff had a visit from his attorney on July 19, 2011, and as stated above, plaintiff was taken to court on July 21, 2011. Plaintiff had ample opportunity to discuss his status with his attorney, and his attorney was clearly aware of the conditions of plaintiff's confinement on July 19, 2011 when he visited plaintiff on the unit. Visits with health care providers also occur at the cell unless the provider requests that other arrangements be made. (Id.)
Defendant Carbery also states that although inmates on 1-1 supervision that have been designated "no sharps," are not allowed pens or pencils to write grievances, they may request help in filing a grievance from the supervising deputy (who is there 24/7); the Sergeant (who visits twice per shift); the Lieutenant (who visits once per shift); the Programs Deputy (who visits once per shift); the inmate's attorney, the Jail Ministry; or even another inmate. (Carbery Aff. ¶ 27). Defendants state that showers are offered every other day, and although plaintiff states that he only had one shower during the time that he was on 1-1 supervision, one shower in six days does not rise to the level of a constitutional violation. See Dillon v. City of New York, No. 12 Civ. 6746, 2013 WL 3776252, at *5-6 (S.D.N.Y. July 18, 2013) (citing McCoy v. Goord, 255 F.Supp.2d 233, 260 (S.D.N.Y.2003) (two-week suspension of shower privileges does not suffice as a denial of "basic human needs)).
Plaintiff also alleges that the defendant kept him on 1-1 supervision even after a psychiatrist stated that plaintiff should be released from such strict supervision on July 18, 2011, and despite "daily" documented reports that he no longer had any suicidal ideation. (Pl.'s Stmt. of Mat. Facts ¶ 14). The contemporaneous records show that at 21:20 (9:20 p.m.) on July 18, 2011, a psychiatrist visited plaintiff and recommended "D/C [discontinue] 1:1," in addition to prescribing medication. (Dkt. No. 37 at 28). However, when plaintiff was seen the next day at 9:30 a.m. for an assessment and "f/u [follow up] for 1:1," he "refused to respond." (Id.) Instead, plaintiff "did raise his head, look at this writer and lie [sic] back down." The notation further states "[inmate] not reduced due to inability to assess." (Id.) Thus, although the psychiatrist recommended that 1-1 be discontinued, plaintiff refused to be assessed the next morning, and the social worker did not change plaintiff's status because of his own behavior.
In plaintiff's response to defendants' motion, he admits that "following qualified recommendations by a licensed psychiatrist, to discontinue the Plaintiff's One on One observation, the Plaintiff had been continued on the One on One, because he had refused to speak to a particular Social Worker that would have required him to discuss confidential issues through his cell door in front of everyone on the unit."
With respect to his right to bodily privacy, plaintiff claims that the position of the observation cells on the unit was such that other individuals could see him while he was performing all activities, including using the toilet. The visible position of the cell is related to the purpose of 1-1 supervision.
Plaintiff does not claim that the individuals who were assigned to the 1-1 supervision were of the opposite sex. He merely states that due to the position of the cell and his allegedly inadequate body covering, there were times when he may have been seem by guards who were female or by "visitors." Plaintiff makes no specific references to how many times this could have occurred, and based upon his very short stay in 1-1 observation, he has not shown continuous or even "regular" viewing. Thus, plaintiff's bodily privacy claims may be dismissed.
Plaintiff cites Houston v. Cotter, 7 F.Supp.3d 283 (E.D.N.Y .2014) for the proposition that there are genuine issues of material fact regarding the conditions of 1-1 supervision. In Houston, however, the plaintiff was alleging a due process violation in connection with his placement on suicide watch. Id. at 287-90. The conditions that the plaintiff in Houston was subjected to were considered for purposes of whether a liberty interest existed under Sandin v. Conner, 515 U.S. 472 (1995), not for whether the conditions violated substantive due process or the Eighth Amendment.
Houston is distinguishable from this case because in Houston, plaintiff was challenging a potential municipal policy whereby inmates could be kept on suicide watch as punishment, "with no meaningful oversight."
In order to state a claim for cruel and unusual punishment under the Eighth Amendment, based on constitutionally inadequate medical treatment, a sentenced prisoner must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are two elements to the deliberate indifference standard. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003). The first element is objective and measures the severity of the deprivation, while the second element is subjective and ensures that the defendant acted with a sufficiently culpable state of mind. Id. at 184 (citing, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)).
Constitutional medical care claims by pretrial detainees must be analyzed under the Due Process Clause of the Fourteenth Amendment because the Eighth Amendment's cruel and unusual "punishment" clause is not directly applicable to prisoners who have not been convicted. Mayo v. County of Albany, 357 F. App'x 339, 341 (2d Cir.2009). In 2009, the Second Circuit held that the Eighth Amendment "deliberate indifference" standard, as articulated in the Supreme Court's decision in Farmer v. Brennan, 511 U.S. 825 (1994), should be applied to constitutional medical care claims of pretrial detainees under the Due Process clause. Caiozzo v. Koreman, 581 F.3d 63, 66, 72 (2d Cir.2009) ("[c]laims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment").
The subjective prong of the deliberate indifference test is satisfied when an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). A plaintiff is not required to show that a defendant acted or failed to act "for the very purpose of causing harm or with knowledge that harm will result," but must show that the official was aware of facts from which one could infer that "a substantial risk of serious harm" exists, and that the official drew that inference. Id. at 835, 837. The defendant must be subjectively aware that his or her conduct creates the risk; however, the defendant may introduce proof that he or she knew the underlying facts, but believed that the risk to which the facts gave rise was "insubstantial or nonexistent." Farmer v. Brennan, 511 U.S. at 844. Thus, the court stated in Salahuddin that the defendant's belief that his conduct posed no risk of serious harm "need not be sound so long as it is sincere," and "even if objectively unreasonable, a defendant's mental state may be nonculpable." Salahuddin v. Goord, 467 F.3d at 281.
A difference of opinion between a prisoner and prison officials regarding medical treatment does not, as a matter of law, constitute deliberate indifference. Chance v. Armstrong, 143 F.3d at 703. Nor does the fact that an inmate feels that he did not get the level of medical attention he deserved, or that he might prefer an alternative treatment, support a constitutional claim. Sonds v. St. Barnabas Hosp. Correctional Health Services, 151 F.Supp.2d 303, 311 (S.D.N.Y.2001) (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986)). Even negligence in diagnosing or treating an inmate's medical condition does not constitute deliberate indifference. Farmer v. Brennan, 511 U.S. at 835. Thus, any claims of medical malpractice, or disagreement with treatment are not actionable under Section 1983. Ross v. Kelly, 784 F.Supp. 35, 44-45 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.1992) (table).
The plaintiff's medical records state that on July 21, a nurse was called to the pod to examine a "sliver" in plaintiff's right great toe. (Dkt. No. 37 at 26). The nurse, who was never a defendant in this action, states in a progress note that plaintiff told her that the sliver had been there for "a couple of days" without signs of infection. (Id.) Plaintiff was scheduled to see the doctor, who removed the "foreign body" the next day and prescribed an antibiotic. (Id.) A sliver in one's big toe is not a "sufficiently serious" condition, and there is absolutely no claim of deliberate indifference. The nurse was called at 14:28 (2:28 p.m.) on July 21, and the sliver was removed by the doctor at 10:30 a.m. on July 22, 2011. There is absolutely no evidence of deliberate indifference to his injury.
Plaintiff also alleges that his hips were bruised and he had back problems as the result of sleeping on the bare metal bed. Although he alleges that this condition "went untreated" for three weeks, he was only on 1-1 supervision for six days, and when the nurse came to examine plaintiff for his "sliver," (the day before he was placed on frequent check), plaintiff apparently did not mention that his hips or his back was bothering him. On July 30, 2011, plaintiff submitted a "sick call request," stating that he had not seen anyone about his hip/lower back pain, caused by sleeping on the metal bed. (Dkt. No. 37 at 39). On August 1, 2011, plaintiff was examined by the doctor regarding his complaints. (Dkt. No. 37 at 22). The doctor prescribed ibuprofen. (Id.) There is no indication of either a "sufficiently serious" condition or of deliberate indifference from the medical staff. Thus, to the extent that plaintiff's statements may be construed as a medical care claim, any such claim may be dismissed. First, there are no appropriate defendants for such a claim, and second, the claim has no constitutional merit.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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.
N.D.N.Y. L.R. 7.1 (a)(3).
