CHRISTIAN F. HUMMEL, Magistrate Judge.
In his
On June 26, 2017, this Court issued a Report-Recommendation and Order which held, among other things, that the issue of exhaustion of administrative remedies involves an issue of fact which cannot be resolved without a hearing. Dkt No. 56. Plaintiff filed objections to the Report-Recommendation and Order. Dkt. No. 57. The Report-Recommendation and Order was adopted in its entirety by Order of Senior United States District Court Judge Lawrence Kahn, dated July 12, 2017. Dkt. No. 58.
On July 14, 2017, defendants filed a letter motion requesting that evidentiary hearing be conducted on the issue of exhaustion. Dkt. No. 59. In a Text Order dated July 18, 2017, Judge Kahn granted that letter motion and referred the matter to the undersigned to conduct an exhaustion hearing. Dkt. No. 60. On August 16, 2017 this Court issued a Text Order appointing pro bono counsel to represent plaintiff at the exhaustion hearing.
Under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.§ 1997e(a), an inmate must exhaust all administrative remedies prior to bringing any suit challenging prison conditions, including federal civil rights cases.
Exhaustion for an inmate in the custody of the New York State Department of Corrections and Community Services ("DOCCS") is generally achieved through the Inmate Grievance Program ("IGP").
Although administrative remedies generally must be exhausted, a prisoner need not exhaust remedies if they are not "available."
New York State law provides a three tier inmate grievance procedure which is applicable to Plaintiff's claims.
On October 30, 2017 the Court conducted an exhaustion hearing. As their first witness, defendants called Rachel Seguin, the assistant director of the Inmate Grievance Program.
There are certain procedures which apply to inmates housed in the Special Housing Unit ("SHU"). Hr'g Tr. at 12. Inmates in the SHU are limited in the type of personal property and state-issued property which they are allowed to have in their cell.
Ms. Seguin testified that, based upon a review of DOCCS' locator system, plaintiff was housed at the Eastern Correctional Facility ("Eastern") as of July 1, 2014. Hr'g Tr. at16. On July 9, 2014, he was transferred to the Green Haven Correctional Facility ("Green Haven").
On cross-examination, Ms. Seguin testified that inmates housed in SHU do not automatically receive writing materials or a pen; an inmate must specifically ask a corrections officer to be given a pen and paper. Hr'g Tr. at 20. If that request is not complied with, an inmate has no ability to obtain a pen or writing materials.
As their next witness, defendants called Sherri Debyah, the IGP supervisor at Upstate. Hr'g Tr. at 29. Ms. Debyah's duties include overseeing the filing of grievances, the processing of grievances in accordance with directive 4040 and performing daily rounds.
Ms. Debyah further testified that Upstate follows the time frames set forth in Directive 4040 in determining if a grievance has been timely filed. Hr'g Tr. at 33. The IGP uses the program Microsoft Access to track inmate grievances which are filed at Upstate.
Defendants next called Anthony Black, the Inmate Grievance Program supervisor at Eastern. Hr'g Tr. at 44. Mr. Black has also been the IGP supervisor at a number of other correctional facilities.
The Eastern IGP uses a paper clerk's log as well as an Excel spread sheet to track grievances. Hr'g Tr. at 48. Mr. Black conducted a search of the grievance clerk's log for the period of July 2014 through September 2014.
Defendants called Lauren Wonsang as their final witness. Hr'g Tr at 55. Ms. Wonsang is the IGP supervisor at the Green Haven Correctional Facility ("Green Haven").
Ms. Wonsang testified that the IGP at Green Haven follows the time frames for the filing of a grievance set forth in Directive 4040. Hr'g Tr. at 58. Thus, an inmate has twenty-one days from an occurrence to file a grievance.
Green Haven uses the computer program Microsoft Access to track inmate grievances. Hr'g Tr. at 59. Ms. Wonsang conducted a search of grievances filed by inmates in July 2014.
On cross examination, Ms. Wonsang testified that an inmate in a mental health cell is not allowed to have writing utensils in his cell. Hr'g Tr. at 62. The procedure she described wherein an IGP supervisor will provide an inmate in a mental health cell with assistance in filing a grievance is not reflected in Directive 4040.
Plaintiff was the only other witness to testify at the October 30, 2017 hearing. Hr'g Tr. at 64. Plaintiff testified that in July 2014, he was housed at Eastern.
On July 9, 2014, Plaintiff was transferred to Green Haven where he was housed on the mental health unit. Hr'g Tr. at 69. Plaintiff was feeling depressed at that time.
Thereafter, plaintiff was transferred to Upstate where he was placed in a two-person cell in the SHU. Hr'g Tr. at 73. He was not given any paper or writing materials when he arrived at Upstate.
On cross examination, plaintiff testified that he asked a number of different correction officers at Eastern for a grievance form. Hr'g Tr. at 75. He does not recall any of those officers' names and cannot describe them.
Plaintiff is familiar with certain aspects of the grievance procedure. Hr'g Tr. at 77. Plaintiff testified that he has filed grievances in the past.
The failure to exhaust administrative remedies is an affirmative defense which must be raised by the defendants.
It is for the Court to determine issues of law and credibility in deciding whether an inmate has complied with the exhaustion requirements of the Prison Litigation Reform Act ("PLRA").
The Court had the unique ability to observe the witnesses and evaluate their credibility during the exhaustion hearing. The Court finds credible the testimony of defendants' witnesses that in July 2014 there was an inmate grievance program in place at Eastern which complied with Directive 4040. That grievance program was available to inmates in the general population as well as inmates in the SHU. An inmate in the SHU could obtain a grievance form and writing utensil by requesting one from the officer who brought the supply cart by on a daily basis. A inmate may also file a grievance on a plain piece of paper. A grievance form could also be obtained from an inmate grievance supervisor during the supervisors weekly rounds.
The Court finds the credible the testimony of Lauren Wonsang stating that plaintiff was housed at Green Haven from July 9, 2014 to July 14, 2014. Hr'g Tr. at 50. Plaintiff was housed in a mental health observation cell.
The undersigned did not find credible the testimony plaintiff's testimony stating that he was prevented from filing a grievance at Eastern. Although plaintiff testified that he asked different officers for a grievance form, he could not provide a physical description or the names of any of those correction officers. Hr'g Tr. at 75-76. The undersigned also finds plaintiff's testimony that he never saw a grievance supervisor while he was housed in Eastern's SHU to be without merit.
Plaintiff was transferred to Upstate on September 11, 2014. Hr'g Tr. at 76. While at Upstate he filed a grievance regarding the July 3, 2014 incident at Eastern.
Based upon the credible testimony set forth at the October 30, 2017 exhaustion hearing, the undersigned finds the defendants have met their burden of proof on their affirmative defense that plaintiff failed to exhaust his administrative remedies as required by the PLRA.
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.
Grasso, Rodriguez & Grasso, Nicholas J. Grasso, Esq., of Counsel, Schenectady, NY, for Plaintiff.
Bailey Kelleher & Johnson, P.C., Nannette R. Kelleher, Esq., of Counsel, Albany, NY, for Defendants.
NORMAN A. MORDUE, District Judge.
Summary judgment is appropriate when there is no genuine issue with regard to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Stated otherwise, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party [I Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When deciding a summary judgment motion, the Court must "resolve all ambiguities and draw all factual inferences in favor of the party opposing the motion." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999).
When, as here, a summary judgment motion is unopposed, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996); see also Vt. Teddy Bear Co. v. 1-800 Beargram Co., Inc., 373 F.3d 241, 244 (2d Cir.2004). Instead, a court must (1) determine what material facts, if any, are disputed in the record presented on the motion; and (2) assure itself that, based on those undisputed material facts, the law indeed warrants judgment for the moving party. See Champion, 76 F.3d at 486. The motion may fail if the movant's submission fails to establish that no material issue of fact remains for trial, Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001), or if the "undisputed facts fail to show that the moving party is entitled to judgment as a matter of law," Vt. Teddy Bear, 373 F.3d at 244 (internal citation and quotation marks omitted).
The Prisoner Litigation Reform Act of 1995 ("PLRA"), mandates exhaustion by prisoners of all administrative remedies before bringing an action regarding prison conditions of confinement. See 42 U.S.C. § 1997e(a). Specifically, the PLRA provides 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." Id. The Supreme Court has held that the PLRA's "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), the Second Circuit "read together," Macias v. Zenk, 495 F.3d 37, 41 (2d Cir.2007), a number of decisions and consolidated cases and formulated a three-part test for examining the scope of the PLRA's exhaustion requirement:
Hemphill, 380 F.3d at 686.
New York State law provides a three tier inmate grievance procedure applicable to plaintiff's claims. See, N.Y. Correct. Law § 139; N.Y. Comp.Codes R. & Regs. tit. 7, § 701.1 et seq. (2003). Courts in the this Circuit have long recognized this procedure 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)). Richard Emery, the Chief Administrator with the rank of Colonel for SCCF submitted an affidavit wherein he averred that the facility maintained an inmate grievance program established by the New York State Department of Corrections and Community Supervision ("DOCCS") pursuant to the above-referenced law and regulations. Further, Emery stated that the grievance program is enumerated in the policies and procedures of SCCF and is distributed to each inmate in an Inmate Handbook. Review of the complaint and the entire record for that matter reveals no suggestion that plaintiff filed or attempted to pursue a grievance of his claims administratively at SCCF prior to filing the instant action.
Even if the Court ignored plaintiff's procedural failings, his § 1983 claims fare no better on their merits. According to the complaint and his response to interrogatories filed in this matter, plaintiff claims that defendants violated the Eighth Amendment when failed to provide adequate medical care to him while he was an inmate at SCCF by: 1) failing to comply with care and treatment consistent with the diagnosis of renal failure; 2) failing to address the plugging of an A.V. fistula in his left arm in a timely fashion despite his complaints about it, putting a shunt in his neck; 3) not allowing him to shower or bathe for eight days which led to a septic infection; and 4) failing to follow a special diet of low calcium, phosphorous and potassium which was recommended by plaintiff's physician, Dr. Daoui and the Rubin Dialysis Center.
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments" on those convicted of crimes, which includes punishments that "involve the unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976) (citations omitted). The Eighth Amendment also applies to prison officials when they provide medical care to inmates. See Estelle v. Gamble, 429 U.S. 97, 103 (1976). To establish an unconstitutional denial of medical care, a prisoner must prove "deliberate indifference to [his] serious medical needs." Id. at 104.
The deliberate indifference standard embodies both an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). See Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J., dissenting) (standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain") (citations omitted). Second, the charged official must act with a sufficiently culpable state of mind. See Wilson, 501 U.S. at 298. Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). More specifically, a prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health 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.
Stephen Strader, the Medical Director at SCCF, who oversees all medical personnel at SCCF and participates in the care and treatment of all inmates at the facility, submitted an affidavit detailing the medical care provided to plaintiff during the relevant time period. According to Dr. Strader, plaintiff entered the facility on December 1, 2008, on a driving while intoxicated charge. Thus, he was automatically subject to monitoring for ETOH withdrawal. An Inmate Physical Assessment Form completed at the time of his arrival indicated that plaintiff was being treated for Stage IV Renal Disease. Dr. Strader explained that chronic renal disease is the gradual loss of kidney function which can occur over months or years. According to Dr. Strader, Stage IV is considered the most severe stage of the disease; it is usually irreversible and will often progress to complete kidney failure. At that point, Dr. Strader explained, the kidneys can no longer adequately filter waste and excess fluids from the body and dangerous levels of fluids, electrolytes and wastes can accumulate. Dr. Strader stated that the only option available to patients at this stage of kidney disease is dialysis or renal transplant.
Dr. Strader noted that when an inmate enters SCCF with a chronic disease such as plaintiff's, the facility obtains the inmate's medical records when possible and facilitates continuing treatment by local specialists in accordance with security policies. According to Dr. Strader, inmates are transferred to all outside medical provider appointments by the Saratoga County Sheriffs Department road patrol unless emergency ambulatory services are required. Dr. Strader averred that review of plaintiff's medical records confirmed the diagnosis of Stage IV chronic kideny disease or renal failure and a medical evaluation by plaintiff's nephrologist prior to his incarceration evidenced worsening renal failure. Dr. Strader noted that when plaintiff entered SCCF, he had an A.V. fistula already in place. Dr. Strader explained that an A.V. fistula is essentially an artificial vein that connects directly to an artery. Dr. Strader stated that A.V. fistulas are commonly created surgically to be used for dialysis treatments. According to Dr. Strader, plaintiff's A.V. fistula was inserted in 2007 due to his progressing kidney disease and anticipation that dialysis would be necessary in the future.
On May 11, 2009, Dr. Strader averred that Dr. Daoui recommended that plaintiff adhere to a low potassium diet. Dr. Strader understood this recommendation to require that plaintiff avoid eating excess potassium. According to Dr. Strader, limiting one's potassium intake is necessary in advanced stages of kidney disease. This is because when one's kidney's are failing, it leads to the inability to maintain a normal potassium level as the kidneys begin to lose the ability to remove potassium from the blood. Dr. Strader stated that it was likely that the base diet provided to plaintiff at SCCF already contained lower levels of potassium than he would be ingesting outside the facility. Notably, Dr. Strader opined that "when a renal patient is placed on a low potassium diet, it is because his kidneys have already failed thereby leading to the inability to maintain normal potassium levels. A high potassium diet will not cause kidney failure." Nevertheless, as Dr. Daoui did not prescribe a specific level of potassium intake for plaintiff, SCCF medical staff advised the kitchen staff to restrict plaintiff's meals so they did not include overly high levels of potassium. Dr. Strader stated that SCCF also continued monitoring plaintiff's metabolic blood panel and electrolytes to gauge whether his kidney functions were worsening and unable to maintain normal potassium levels.
Dr. Strader also stated that in his May 9, 2009, office note, Dr. Daoui recommended that plaintiff start hemodialysis. Indeed, the Court notes that in the May 9, 2009, note, Dr. Dauoi changed plaintiff's diagnosis to "`CKD' [or chronic kidney disease] stage 5." However, on May 17, 2009, days before plaintiff's dialysis was to start, he complained that the fistula in his left arm had stopped working. Dr. Strader averred that while he was not a nephrologist, he had a medical understanding of how fistulas are used, complications that can arise with a fistula, and what procedures may be needed to correct those complications. According to Dr. Strader, one complication that can arise is that a fistula can clot or clog which prevents fluid from passing through it. Dr. Strader's review of plaintiff's medical records revealed that a clot or clog in plaintiff's A.V. fistula had occurred at least one time before he entered SCCF. Dr. Strader stated that a clogged or clotted fistula is not a life threatening condition and it is unlikely to cause any pain to a patient. When it occurs, Dr. Strader stated that a nephologist will examine the fistula to determine if a surgical revision will need to be performed. If the patient is on dialysis, Dr. Strader stated that a temporary catheter is placed to allow continuing dialysis pending repair of the fistula.
Dr. Strader stated that following the catheter insertion on May 21, 2009, showering restrictions were placed on plaintiff because it was deemed medically necessary to keep the catheter site dry. On May 28, 2009, SCCF medical staff were advised by plaintiff's specialists at the Rubin Dialysis Center that he could resume showering and the restriction was lifted. Plaintiff began his dialysis treatments on May 29, 2009, and received a total of 17 dialysis treatments between then and the time of his release from the facility in July 2009.
Dr. Strader opined to a reasonable degree of medical certainty that the treatment plaintiff received at SCCF did not hasten his kidney disease and did not cause his fistula to become clotted. Rather, according to Dr. Strader, the care and treatment provided to plaintiff at SCCF was in compliance with all accepted standards of care and in compliance with the recommendations of plaintiff's own specialists. Overall, Dr. Strader said that plaintiff's blood pressure and weight were monitored weekly and at times daily during his six month incarceration and blood work was performed once to twice monthly to monitor his kidney function and electrolyte levels. Plaintiff's medical records confirm Dr. Strader's statement that plaintiff was evaluated three times by his nephrologist and was in daily contact with the medical staff at SCCF. Dr. Strader averred:
Nevertheless, even if a clogged fistula is a serious medical condition under the standard described in Nance, supra, the record here reveals that defendants' treatment of the problem was reasonable and in accordance with the directives of Dr. Daoui. Plaintiff alleges that SCCF's actions in evaluating the clogged fistula took too long and caused him to have a catheter inserted. However, it was Dr. Daoui who recommended insertion of the catheter to ensure plaintiff's dialysis treatments could start as scheduled. Plaintiff believes that he should have had the fistula repaired immediately instead of having to undergo placement of the catheter. However, it is well settled that "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim. Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001). "These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment." Id. (citing Estelle v. Gamble, 429 U.S. at 107
The intentional failure to provide an inmate with a medically prescribed diet for a prolonged period of time can state a viable Eighth Amendment claim. Abdush Shahid v. Coughlin, 933 F.Supp. 168, 180 (N.D.N.Y.1996) (citing Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (Eighth Amendment's prohibition against cruel and unusual punishment requires serving inmates nutritionally adequate food prepared and served under conditions that do not present imminent danger to health and well-being of inmates who consume it)). However, the "objective component" of an Eighth Amendment claim requires a plaintiff to show evidence of some adverse health impact caused by the discontinuance of or failure to provide the prescribed diet. Davidson v. Desai, 817 F.Supp.2d 166, 190 (W.D.N.Y.2011).
Plaintiff asserts that he was not allowed to shower for several days after placement of the catheter for dialysis and that this caused a "septic infection." Regardless of whether restriction of shower privileges for the time period in question rises to level of denial of a serious medical need, there is no evidence in the record that plaintiff ever developed any type of septic infection while incarcerated at SCCF. Indeed, while plaintiff testified at his 50—H hearing that he got a septic infection at the site of the catheter placement and was "in the hospital for four days," the Court finds no record of such a hospital visit or infection his medical records. Moreover, the showering restriction was implemented at the instruction of plaintiff's specialists at the Rubin Dialysis Center who ordered that the catheter site be kept dry. On the day that medical personnel at SCCF were advised by the Rubin Dialysis Center that plaintiff could resume showering, the restriction was lifted.
Plaintiff contends that the care he received at SCCF resulted in his requiring dialysis and was not in his "best interest." However, as referenced above, plaintiff entered the facility with Stage IV renal disease and his medical records demonstrate that his condition was worsening in the months just prior to his incarceration. Plaintiff arrived at SCCF with an A.V. fistula because his physician anticipated that he would soon require dialysis. Within three months of entering the facility, Dr. Daoui noted that plaintiff's bloodwork warranted a change in his diet and the initiation of hemodialysis. The record fully supports defendants' contention that it was the natural progression of plaintiff's disease, not the care or treatment he received at SCCF, which led to his requiring dialysis. There is nothing in the record which suggests that plaintiff's care and treatment at SCCF was not in accordance with generally accepted medical principles and the advice and recommendation of his own specialists.
Defendants contend that while plaintiff's complaint did allege a claim for deliberate indifference to his medical needs, he did not assert a claim under 42 U.S.C. § 1983 for excessive force. Defendants argue that even if his complaint was deemed to include a claim of excessive force under § 1983, it would still fail. "The test of whether use of force in prison constitutes excessive force contrary to the Eighth Amendment is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (citing Hudson v. McMillian, 503 U.S. 1, 7 (1992)). "The absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it." Id. (quoting Hudson, 503 U.S. at 7.)
In this case, plaintiff's complaint alleges simply that defendant Corbett struck him in the face with a dish, milk and other objects. The complaint does not assert that plaintiff suffered any injury as a result of this incident. In his response to interrogatories, plaintiff asserts further that on May 11, 2009, "Lt. Corbett committed an assault on [him] by intentionally smashing a plate of food against the edge of a table and hitting [plaintiff] in the face with it and then throwing a glass of milk in his face causing [plaintiff] reasonable apprehension of the immediate harmful and offensive contact, which was the food and milk hitting [his] face." However, in the Court's record, plaintiff's interrogatory responses are not complete and it is unclear whether they are signed or sworn to by plaintiff. At his 50—H hearing, plaintiff testified that he was "not real happy that Lieutenant Corbett threw that plate of food in my face and a glass of milk." Following this answer, there is only one additional page of testimony provided by defendant in which plaintiff testified further concerning the incident:
When plaintiff was asked what he meant when he said that Corbett "smashed a plate of food into [his] face," he said "The plate was sitting on the table, and we were arguing back and forth across the table, and he smashed it on the edge and it flipped up in my face."
In an affidavit submitted in connection with defendants' motion, Lt. Corbett averred:
The force plaintiff describes herein not sufficiently serious or harmful to reach constitutional dimensions. See Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993). Plaintiff does not maintain that he experienced any pain or injury as a result of the milk or food being allegedly thrown in his face, even assuming the incident occurred as he states. Moreover, plaintiff does not allege facts that show that Lt. Corbett used force "maliciously and sadistically to cause harm," rather than "in a good-faith effort to maintain or restore discipline" or calm him down and prevent him from removing his catheter. Hudson, 503 U.S. at 7. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973). Indeed, not even "every
Even if the above were not true, Lt. Corbett and the other individually named defendant are also protected against plaintiff's various § 1983 claims by qualified immunity. As noted recently in the Supreme Court case of Pearson v. Callahan, 555 U.S.223, 129 S.Ct. 808, 815 (2009):
Id. Indeed:
Id. at 206 (emphasis added).
In the circumstances presented to defendant Corbett who was asked to attempt to calm plaintiff who was threatening to pull out his catheter which medical personnel said could cause him to bleed to death, he was justified in using a degree of force to prevent plaintiff from harming himself. However, Lt. Corbett averred that no such force was necessary and that the spilled milk was simply an accident. While plaintiff's 50—H testimony indicated that defendant Corbett intentionally spilled milk and food on him, the Court's conclusion that no cause of action lies here is confirmed by the "uncontested fact that the force was not so excessive that [plaintiff] suffered hurt or injury." See Saucier, supra, 533 U.S. at 208.
At the very least, defendants Buttofocco and Smith have established that reasonably competent police officers could disagree on the question of excessive force in this case. Based thereupon, the motion by defendants to dismiss plaintiff's claim of excessive force on the alternative ground of qualified immunity must be granted.
Plaintiff claims that defendants were negligent in failing to address his medical needs at SCCF in three ways: first, that they ignored refused to follow the dietary restrictions set by his nephrologist, Dr. Daoui; second, that they failed to timely address his A.V. fistula; and third, that they refused to allow him to shower following his catheter surgery which resulted in a septic infection. Fatal to plaintiff's claims is the absence of any expert medical evidence submitted in support of thereof. "Whether the claim is grounded in negligence or medical malpractice, `[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case'" Myers v. State of New York, 46 A.D.3d 1030, 1031 (3d Dep't 2007) (citing Tatta v. State of New York, 19 A.D.3d 817, 818 (3d Dep't 2005), lv. denied 5 N.Y.3d 712 (2005) quoting Wells v. State of New York, 228 A.D.2d 581, 582 (2d Dep't 1996), lv denied 88 N.Y.2d 814 (1996); see Trottie v. State of New York, 39 A.D.3d 1094, 1095 (3d Dep't 2007)). In Myers, the claimant inmate contended that medical personnel at the Sullivan Correctional Facility erred in the treatment of his knee injury by delaying necessary surgery. 46 A.D.3d at 1030. Specifically, the claimant alleged that he was required to undergo physical therapy, which he contended worsened his condition, instead of knee surgery, despite the medical personnel's knowledge that he had a foreign object lodged in his knee. See id. Following a trial, at which claimant was his only witness, the Court of Claims, in a written decision, dismissed the claim. See id. at 1030-31.
Plaintiff's claims of medical negligence are likewise subject to dismissal. Setting aside the proof offered by SCCF that its treatment of plaintiff was entirely reasonable and within the standards of care established by his own specialists, plaintiff has offered no expert medical evidence demonstrating that SCCF deviated from accepted standards of medical care and treatment in this case. Based thereupon, his claims of negligence or malpractice must be dismissed.
ORDERED that defendants' motion for summary judgment (Dkt.# 24) is hereby GRANTED and it is further
ORDERED that the complaint is dismissed in its entirety.
IT IS SO ORDERED.
Not Reported in F.Supp.2d, 2013 WL 838284
Jessie Engles, Attica, NY, pro se.
Nicole E. Haimson, New York State Attorney General, Albany, NY, for Defendants.
Hon. Andrew T. Baxter, U.S. Magistrate Judge
Presently before the court is a motion for partial summary judgment filed by defendants Siriano, Rugari, and Dougherty. (Dkt. No. 66). Plaintiff has not responded to the motion. For the following reasons, this court agrees with defendants and will recommend granting the partial motion for summary judgment.
Plaintiff claims that on October 6, 2011, defendants Siriano and Barber
Plaintiff claims that on October 13, 2011, defendant Rugari began harassing plaintiff verbally, causing plaintiff to suffer excruciating chest pain. (AC ¶ 20). Defendant Rugari then coerced defendant Dougherty into fabricating medical reports. (Id.) Plaintiff claims that he was also punched, hit, and assaulted by defendants Rugari and Murphy
Defendants have supported their motion for partial summary judgment with many documents, including a copy of plaintiff's June 3, 2016 deposition. (Dkt. Nos. 66-1, 66-4-66-8). Relevant details of the evidence in the record are discussed further below in the course of analyzing the issues raised in the defendants' motion.
The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, in determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Salahuddin, 467 F.3d at 272.
The Prison Litigation Reform Act, (PLRA), 42 U.S.C. § 1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675.
The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g., Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009) (citations omitted).
The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones, 549 U.S. at 218-19, 127 S.Ct. 910 (citing Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. 548 U.S. at 90-103, 126 S.Ct. 2378.
The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee ("CORC"). Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to "resolve his/her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance." Id. § 701.3(a) (Inmate's Responsibility). There is also a special section for complaints of harassment. Id. § 701.8. Complaints of harassment are handled by an expedited procedure which provides that such grievances are forwarded directly to the superintendent of the facility, after which the inmate must appeal any negative determination to the CORC. Id. §§ 701.8(h) & (i), 701.5.
The Supreme Court has now made clear that courts may not excuse a prisoner's failure to exhaust because of "special circumstances." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1857, 195 L.Ed.2d 117 (June 6, 2016). "`[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.'" Riles v. Buchanan, 656 Fed.Appx. 577, 580 (2d Cir. 2016) (quoting Ross, ___ U.S. ____, 136 S.Ct. at 1857, 195 L.Ed.2d 117). Although Ross has eliminated the "special circumstances" exception, the other two factors in Hemphill availability and estoppel—are still valid. The court in Ross referred to "availability" as a "textual exception" to mandatory exhaustion, and "estoppel" has become one of the three factors in determining availability. Ross, ___ U.S. ___, 136 S.Ct. at 1858, 195 L.Ed.2d 117. Courts evaluating whether an inmate has exhausted his or her administrative remedies must focus on whether those remedies were "available" to the inmate. Id. See also Riles, 2016 WL 4572321 at *2, 656 Fed.Appx. 577.
Defendants argue that plaintiff has failed to exhaust his claim that defendants Siriano and Barber used excessive force against plaintiff on October 6, 2011 when they allegedly pulled his hands through the feed-up port in plaintiff's cell while plaintiff was handcuffed. (Defs' Mem. at 6-11). In support of their argument, defendants have filed the declaration of Karen Bellamy, the Director of the Inmate Grievance Program ("IGP"). (Dkt. No. 66-4) (Bellamy Decl.) Director Bellamy states that she is the custodian of records maintained by the CORC. (Bellamy Decl. ¶ 3). Director Bellamy also states that an inmate's claim of excessive force is a proper subject to raise in a grievance. (Bellamy Decl. ¶ 10). Director Bellamy further states that Department of Corrections and Community Services ("DOCCS") records indicate that plaintiff was incarcerated at Marcy Correctional Facility ("Marcy") at the time of the alleged incident in October 2011 until July 27, 2012. (Bellamy Decl. ¶ 12). During that time, Marcy had a "fully functioning inmate grievance process," to which all inmates have full access. (Id.)
DOCCS records reflect that following the alleged excessive force incident on October 6, 2011, plaintiff filed three grievance appeals (MCY-15701; MCY-15770; and MCY-15867), none of which related to an alleged use of force by defendants Siriano or Barber on October 6, 2011. (Bellamy Decl. ¶¶ 13-14). Plaintiff filed MCY-15701 on October 21, 2011. (Bellamy Decl. Ex. A at CM/ ECF p.4). Although Director Bellamy's list of grievance appeals states that MCY-15770 involved excessive force, plaintiff was shown the actual grievance document at his deposition, and he testified that the grievance related to the October 13, 2011 alleged excessive force incident. (Haimson Decl. Ex. A) (Dkt. No. 66-7) (Pl.'s Dep. at 60). There was no grievance appeal relating to the October 6, 2011 incident. Thus, it is not disputed that plaintiff failed to appeal any grievance regarding the October 6, 2011 alleged excessive force incident to the CORC. The court must now examine whether the grievance procedure was "available" to the plaintiff. Ross, supra.
In this case, the grievance process was certainly "on the books" as stated above. In addition, plaintiff was quite familiar with the process and had used it many times, both prior to the October 6, 2011 incident, and after the incident. (Bellamy Decl. Ex. A). At his deposition, after acknowledging that the grievance he filed on October 21, 2011 did not involve the October 6, 2011 incident, he testified that he filed a "separate grievance" for the October 6, 2011 incident. (Pl.'s Dep. at 61). However, there is no evidence of a "separate" grievance being filed, and plaintiff was unclear about the details of such a grievance.
Plaintiff's October 25, 2011 grievance was about "mail tampering." (Bellamy Decl. Ex. A at; Pl.'s Dep. at 63-64). Plaintiff testified at his deposition that he was aware that if he did not receive a response to his grievances within the statutory time limit, he could appeal the grievance to the next level. (Pl.'s Dep. at 64-65). Plaintiff then stated that he did not have a copy of the alleged grievance relating to the October 6
Defense counsel asked plaintiff how he could claim that his mail or grievances were being tampered with, when the grievance complaining about excessive force that occurred on October 13, 2011 was processed all the way to the CORC. (Pl.'s Dep. at 71-72). Plaintiff then claimed that there were another five grievances that did not get processed, but never specified the subject of those alleged grievances. (Pl.'s Dep. at 72-73). However, plaintiff testified that he was sure that neither defendant Siriano nor Barber was the individual who tampered with plaintiff's mail. (Pl.'s Dep. at 76-77). Plaintiff also stated that he never had trouble with either of these two defendants again. (Pl.'s Dep. at 77). Plaintiff did not really explain why the officers would let one excessive force grievance go through, while not processing another, particularly when the October 13, 2011 incident was more serious. us.
In another attempt to support his argument that someone may have tampered with grievance regarding the October 6
Defendants have shown that there is no record of plaintiff appealing a grievance regarding the October 6, 2011 incident to the CORC, notwithstanding three other grievances that were filed close to the same time period and appealed at every administrative level. Plaintiff's statement that he filed a "separate grievance," but it was somehow lost or destroyed, is not supported by anything but inconsistent assertions. Plaintiff specifically testified that neither defendant Siriano nor defendant Barber interfered with plaintiff's mail, and he never had a problem with either defendant after October 6, 2011. The court also notes that plaintiff's October 26, 2011 grievance complained of "mail being tampered with," but failed to mention that the grievance committee had failed to acknowledge receipt of the alleged October 6
Plaintiff has not responded to the summary judgment motion, and it defies logic to hold that administrative remedies were not "available" to plaintiff, given the evidence in the record. The mere existence of a scintilla of evidence in support of the plaintiff's position is insufficient. New York v. United Parcel Svc., 179 F.Supp.3d 282, 292 (S.D.N.Y. 2016) (citing Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)). There must be some evidence on which the fact finder
In this case, there is no basis to credit plaintiff's assertion that he filed a grievance that was intentionally destroyed or tampered with by unknown corrections officers, particularly when his later grievance about mail tampering did not include a discussion of any grievance regarding the October 6
In order to state an Eighth Amendment claim for failure to protect an inmate, the plaintiff must show that he was incarcerated under conditions posing a substantial risk of serious harm,
Plaintiff claims that on October 7, 2011, defendant Rugari and defendant Wiggins "coerced" another inmate—Inmate Fox—into assaulting plaintiff in exchange for food, magazines, and tobacco. (AC ¶ 19). Plaintiff claims that the defendants opened both plaintiff's and Fox's cell at the same time in order to facilitate the assault. (Id.) The amended complaint contains no further details of the incident. However, at his deposition, plaintiff testified that inmate Fox never assaulted him. (Pl.'s Dep. at 83-84). Plaintiff then stated that "the attempt was there." (Pl.'s Dep. at 84). Plaintiff testified that Fox told him "afterwards" that the officers had tried to talk Fox into assaulting plaintiff. (Pl.'s Dep. at 95). Plaintiff stated that, when the cell doors were opened, he walked out of his cell and walked right by inmate Fox, who only looked at plaintiff and said "oh, shit, he really did it."
Plaintiff then testified that took the opportunity to misbehave while released from his cell, stealing an officer's shield and helmet and smashing "feed up patches." (Pl.'s Dep. at 102-103, 109). Plaintiff testified that Fox gave him "some positive advice and feedback," in an effort to convince plaintiff to return to his cell. (Pl.'s Dep. at 104). Plaintiff testified that he was later told that the two cells opened at the same time due to a malfunction or "mechanical failure." (Pl.'s Dep. at 107). Plaintiff received various misbehavior charges as a result of the incident, but there was no assault on plaintiff by inmate Fox. Thus, neither defendant may be liable for failure to protect because there was no incident, and consequently no injury.
In order to meet the objective requirement, the alleged deprivation of adequate medical care must be "sufficiently serious." Salahuddin, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Determining whether a deprivation is sufficiently serious also involves two inquiries. Id. The first question is whether the plaintiff was actually deprived of adequate medical care. Id. Prison officials who act "reasonably" in response to the inmates health risk will not be found liable under the Eighth Amendment because the official's duty is only to provide "reasonable care." Id. (citing Farmer, 511 U.S. at 844-47, 114 S.Ct. 1970).
The second part of the objective test asks whether the purported inadequacy in the medical care is "sufficiently serious." Id. at 280. The court must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff. Id. (citing Helling v. McKinney, 509 U.S. 25, 32-33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). If the "unreasonable care" consists of a failure to provide
The second element is subjective and asks whether the official acted with "a sufficiently culpable state of mind." Id. (citing Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). In order to meet the second element, plaintiff must demonstrate more than a "negligent" failure to provide adequate medical care. Id. (citing Farmer, 511 U.S. at 835-37, 114 S.Ct. 1970). Instead, plaintiff must show that the defendant was "deliberately indifferent" to that serious medical condition. Id. Deliberate indifference is equivalent to subjective recklessness. Id. (citing Farmer, 511 U.S. at 839-40, 114 S.Ct. 1970).
In order to rise to the level of deliberate indifference, the defendant must have known of and disregarded an excessive risk to the inmate's health or safety. Id. (citing Chance, 143 F.3d at 702). The defendant must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he or she must draw that inference. Chance, 143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). 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 non-existent." Farmer, 511 U.S. at 844, 114 S.Ct. 1970. 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 467 F.3d at 281.
Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment. Sonds, 151 F.Supp.2d at 312 (citing Estelle v. Gamble, 429 U.S. at 107, 97 S.Ct. 285). Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional violation simply because the plaintiff is an inmate. Id.; see also Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (noting that negligence is not actionable under § 1983). Thus, any claims of malpractice, or disagreement with treatment are not actionable under § 1983.
Plaintiff claims that on October 13, 2011, he was the victim of an assault by defendant Rugari and Murphy.
At his deposition, plaintiff claimed that he suffered bruising, swelling at the wrist, a bleeding and "busted" lip, and a laceration, swelling, and bruising to his head. (Pl.'s Dep. at 161, 165-67, 170-72). The bruising and swelling of plaintiff's head lasted "a couple days." (Pl.'s Dep. at 167). At the deposition, plaintiff claimed for the first time that he lost consciousness briefly. (Pl.'s Dep. at 168). Plaintiff also testified that after the incident, both of his hands were swollen, and he could not move the fingers on his right hand. (Pl.'s Dep. at 172).
Plaintiff testified that defendant Dougherty was deliberately indifferent to plaintiff's serious medical needs because he did not come to see or evaluate plaintiff after the incident, and later,
Plaintiff then described more of the facts surrounding the incident. (Pl.'s Dep. at 180). Plaintiff stated that he was taken to the clinic because he had "cardio arrest." (Id.) Plaintiff then states that "they" took an EKG while he was at the clinic, and that was the only "medical observation" made by defendant Dougherty at that time. (Id.) Plaintiff asked to go to an outside hospital for his cardiac problem, and defendant Dougherty allegedly "relying on the officer," refused to send plaintiff to an outside hospital. Plaintiff states that, because of this refusal, he "became mad and said [he] wanted to speak to a sergeant." (Id.) Plaintiff's testimony then becomes very difficult to understand. However, defendants have filed the "Use of Force" report from the October 13, 2011 incident which explains their version of the incident. (Def. s' Ex. E) (Dkt. No. 66-8 at 13-15).
During the escort, defendant Murphy maintained control of plaintiff's waist chain by holding it with his right hand. Plaintiff was strip frisked, and as the frisk was completed, defendant Murphy ordered plaintiff to place his left hand behind his back to be handcuffed. However, plaintiff refused, so defendant Murphy placed the handcuff on plaintiff's wrist while plaintiff's hand was still up on the wall. Plaintiff became combative again, and defendant Murphy took control of plaintiff's left arm with Murphy's left hand and took control of plaintiff's right shoulder with Murphy's right hand. Officer Rugari used downward pressure on both of plaintiff's shoulders to take him to the floor. Plaintiff continued to struggle while he was on the floor, but defendant Murphy retained control of plaintiff's right arm. Officer Fonner also gained control of plaintiff's right arm using both hands, and Officer Leone applied leg restraints. Officer Leone also assisted in getting plaintiff's hands behind his back to be handcuffed. Officer Crandall also assisted in getting plaintiff's hands behind his back, while defendant Rugari applied the handcuffs. (Id. at 14).
Plaintiff stopped resisting after the handcuffs were applied. Plaintiff was then assisted to his feet and escorted to a cell without further incident. The Use of Force report indicates that Nurse Dougherty went to the cell, but "Inmate Engle [sic] again refused to be assessed or treated. No injuries were visually noted by Nurse Dougherty." (Id.) The report states that a 1/2 inch laceration was noted on plaintiff's left wrist, and plaintiff stated that his left pinky finger was sore. No swelling was noted. The report states that "Inmate refused treatment and further assessment." (Id. at 15). Finally, the report indicates that plaintiff refused any "use of force photos." (Id.)
Plaintiff testified that defendant Dougherty did not assess him for injuries on October 13, 2011, even though the "Use of Force Report" noted such assessment and noted that plaintiff refused further evaluation. (Pl.'s Dep. at 192). Plaintiff testified that defendant Dougherty was only present "in the clinic," that "this all happened after that," and that plaintiff never saw Dougherty again. (Pl.'s Dep. at 193). Plaintiff claimed at his deposition that defendant Dougherty "falsified" the report and was instead noting plaintiff's hand and wrist injuries from October 6, 2011. (Pl.'s Dep. at 185-86, 190-91).
Plaintiff then testified that after he was admitted to the observation unit "an RMH nurse did come around,"
Plaintiff's testimony is inconsistent with respect to defendant Dougherty's alleged conduct. Plaintiff testified that the injuries he sustained on October 13, 2011 that required medical care were not sustained when the defendants used force in the clinic in front of defendant Dougherty. Rather, the relevant injuries occurred when plaintiff was taken to the observation cell for admission. (Pl.'s Dep. at 193). Plaintiff then claims that defendant Dougherty was deliberately indifferent for failing to address the injuries that he did not witness.
Defendants first argue that, even crediting plaintiff's version of his injuries, the injuries were not sufficiently serious to meet the objective prong of the constitutional test. Plaintiff alleges that his left hand/wrist and two fingers were "broken" and that his lip was "busted." The minor lacerations and split lip do not rise to the level of sufficiently serious injuries. See Dallio v. Herbert, 678 F.Supp.2d 35, 44 (N.D.N.Y. 2009) (citing inter alia Benitez v. Straley, No. 01-CV-181, 2006 WL 5400078, at *3, 4, 12 (S.D.N.Y. Feb. 16, 2006) (cut on plaintiff's lips, cut on plaintiff's head, and "severe cuts" to plaintiff's wrists-none of which required stitches-did not constitute a medical condition that was sufficiently serious for purposes of Eighth Amendment, even if plaintiff's allegations were assumed to be true)).
However, in Lester v. Mancini, No. 07 Civ. 8265, 2013 WL 5405468, at *20 (S.D.N.Y. Sept. 25, 2013) the court stated that it could not "say as a matter of law that a broken hand, with attendant pain, does not constitute a sufficiently serious injury for Eighth Amendment purposes." Id. (citing Benning v. Ehrits, No. 9:08-CV-815, 2009 WL 2982973, at *4 (N.D.N.Y. Sept. 14, 2009) (citing Bryan v. Endell, 141 F.3d 1290, 1293 (8th Cir. 1998) (finding a broken hand a serious medical condition)); Mendez v. Acting Sheriff Nassau Ctny. Corr. Ctr., No. 10-CV-1960, 2010 WL 2629781, at *2 (E.D.N.Y. June 28, 2010) (same)). Although there is no indication in this case that plaintiff's hand, wrist, or fingers were actually broken, the court will assume that plaintiff had a serious medical need and proceed to the subjective prong of the Eighth Amendment analysis.
Plaintiff testified that his "main gripe" was that an x-ray was not ordered quickly enough. (Pl.'s Dep. at 208). However, plaintiff stated that they were "trying to avoid [ordering an x-ray]," but that "it actually did get ordered."
Plaintiff also testified that he was examined by a mental health nurse after the incident, but did not mention his problems to her because she would not have been "authorized" to treat physical problems. This statement defies belief. If plaintiff's hand had been broken, and he was in as much pain as he states, it is highly incredible that he would not have mentioned the problem to any medical professional who spoke to him that day. Even if the nurse had not been authorized to "treat" plaintiff for his injury, he or she could certainly have reported it to another health care professional who would have been able to treat plaintiff's alleged injury.
Plaintiff then stated that he requested "stronger" pain medication because he was only taking Ibuprofen at the time. (Pl.'s Dep. at 222). Plaintiff also asked for "something for [his] nerve damage for like [sic] muscle relaxers," but that defendant Dougherty "didn't feel that it was necessary." (Id.) Defendant Dougherty explained to plaintiff that what he was suffering from was "inflammatory." (Id.) Plaintiff claimed that defendant Dougherty did not "put [him] in" for a doctor. (Id. at 223-24). Plaintiff claimed that it was defendant Dougherty's "duty to refer [plaintiff] to a doctor who could make that assessment." (Pl.'s Dep. at 224). As plaintiff was testifying, he began to allege that defendant Dougherty had also somehow been involved in a denial of medical care after the October 6, 2011 incident, which was not raised in the amended complaint. (Pl.'s Dep. at 225-26). It appeared during the deposition that the only reason that plaintiff came up with the idea that defendant Dougherty should be responsible for October 6, 2011 was that he was "listed in the record of my progress note on October according to October 6, each day I put in for sick call . . . [a]nd he was one of the nurses." (Pl.'s Dep. at 226).
Plaintiff's disagreement with the way that he was treated by defendant Dougherty does not state a constitutional violation, even if the defendant was incorrect in the assessment of plaintiff's injury. The fact that defendant Dougherty "denied" plaintiff medication, if defendant Dougherty believed that the stronger medication was unnecessary, does not state a constitutional claim. The more plaintiff testified, the more apparent it became that he simply disagreed with defendant Dougherty's assessment of his injury and disagreed with the treatment and medication provided. If defendant Dougherty was incorrect about plaintiff's treatment, even to the point of being negligent, negligence does not rise to the level of a constitutional violation. Thus, the plaintiff has failed to create a genuine issue of material fact with respect to his medical care claim against defendant Dougherty. Thus, plaintiff's claim that he was denied constitutionally adequate medical care by defendant Dougherty after the October 13, 2011 incident may be dismissed.
When the original complaint in this case was filed, Rule 4(m) provided that a defendant must be served with process within 120 days
Defendant Wiggins was initially dismissed from the action based on the allegations in the original complaint, but then was added as a defendant after the amended complaint was filed. (Dkt. Nos. 25, 32). Because of the sua sponte dismissal of the claims asserted in the original complaint, service was never attempted on defendant Wiggins. When defendant Wiggins was again added as a defendant, after review of the amended complaint, the court ordered that "upon receipt from plaintiff" of the documents required for service on defendant Wiggins, "the Clerk shall (1) issue a summons and forward it, along with a copy of the amended complaint to the United States Marshal for service upon defendant Wiggins." (Dkt. No. 32 at 13).
It does not appear that plaintiff ever complied with the court's order to provide the Clerk with the information required for service on defendant Wiggins because there is no indication that a summons was ever issued by the Clerk, and there is no indication that service was ever attempted on defendant Wiggins by the Marshal.
This court will recommend dismissal as against defendant Barber without prejudice. Although plaintiff must be given notice of such dismissal, this recommendation will afford him the notice required. He may include his explanation for his failure to serve this defendant in any objections he may file to this Report and Recommendation. Plaintiff may attempt to establish good cause for his failure to follow up on the failure of the Marshal to serve defendant Barber. With respect to defendants Wiggins and Sypolt, the court is recommending dismissal with prejudice because plaintiff has failed to state any claim against them, and serving these defendants at this time would be futile.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Slip Copy, 2017 WL 6466309
(Pl.'s Dep. at 193).
