Abreu v. FarleyAbreu v. Farley
- Reporters:
- ,
- Before:
- Elizabeth A. Wolford
DECISION AND ORDER
INTRODUCTION
Plaintiff Carlos Abreu (“Plaintiff“), currently incarcerated at the Marcy Correctional Facility,1 filed this action pursuant to
Presently before the Court is Defendants’ motion to revoke Plaintiff‘s IFP status and for partial summary judgment. (Dkt. 61). For the reasons set forth below, the Court holds Defendants’ motion to revoke Plaintiff‘s IFP status in abeyance pending the Second
BACKGROUND
Plaintiff arrived at Five Points on or about March 25, 2010 (Dkt. 46 at ¶ 93), and alleges that he has been subject to countless constitutional infractions, and other allegedly wrongful conduct, which purportedly continued into 2012. Despite pro bono counsel‘s efforts to refine Plaintiff‘s allegations, the operative complaint remains voluminous and is composed of 531 paragraphs. Plaintiff‘s counsel also requests that the Court consider two supplemental pro se filings submitted by Plaintiff as part of a related case that has since been consolidated into this action. (Dkt. 93 at 25-26; see Dkt. 40; Dkt. 93-5; Dkt. 93-6; Dkt. 93-7; Dkt. 93-8; Dkt. 93-9; Dkt. 93-10).
The following facts are taken from Defendants’ and Plaintiff‘s Rule 56 statements of undisputed facts. (See Dkt. 59-1; Dkt. 93-1). Between 2010 and January of 2012, Plaintiff was examined “well over 100 times” by medical staff at Five Points. (Dkt. 59-1 at ¶ 1; Dkt. 93-1 at ¶ 1). Although Plaintiff disputes that he was prescribed appropriate medical treatment for back and neck pain on a number of occasions (Dkt. 93-1 at ¶ 2; cf. Dkt. 59-1 at ¶ 2), he does not dispute that he was prescribed “an albuterol inhaler for asthma and Lipitor for elevated lipids” (Dkt. 93-1 at ¶ 2). It is also undisputed that Plaintiff received medication, bloodwork, physical examinations, and x-rays between March 25, 2010, and January 23, 2012 (see Dkt. 59-1 at ¶ 6; Dkt. 93-1 at ¶ 6), and that he refused to
The parties dispute whether Plaintiff was of general good health while housed at Five Points (Dkt. 59-1 at ¶ 4; Dkt. 93-1 at ¶ 4), and whether many of Plaintiff‘s alleged injuries and ailments were ever properly diagnosed or observed by Five Points medical staff (Dkt. 59-1 at ¶ 5; Dkt. 93-1 at ¶ 5). Plaintiff also disputes Defendants’ assertion that he was “not in imminent danger of serious physical harm at any point during the relevant period” underlying this action (Dkt. 59-1 at ¶ 3), and argues that he “endured repeated assaults, living under a constant and imminent danger [of] being subjected to ongoing threats of further physical assaults” while housed at Five Points (Dkt. 93-1 at ¶ 3). The parties do not dispute that only doctors, physicians assistants, and nurse practitioners may provide prescription medication to inmates at Five Points, that corrections officers and counselors may not do so, and that general nurses may provide limited medical treatment only in emergency circumstances. (See Dkt. 59-1 at ¶ 9; Dkt. 93-1 at ¶ 9).
The New York State Department of Corrections and Community Supervision (“DOCCS“) maintains a policy that corrections staff seek a court order if an inmate loses 15% of his or her baseline weight, or even prior to that point if the inmate “appears in imminent need of hydration or nutrition.” (Dkt. 59-1 at ¶ 10; Dkt. 93-1 at ¶ 10). In addition, it is undisputed that Plaintiff‘s baseline weight remained above 200 pounds between March 2010 and January 2012 (Dkt. 59-1 at ¶ 11; Dkt. 93-1 at ¶ 11), and at no point did it drop by 30 pounds, or 15% of Plaintiff‘s baseline weight (Dkt. 59-1 at ¶ 12; Dkt. 93-1 at ¶ 12).
At times, Plaintiff complained that he suffered from rectal bleeding, but on at least one occasion, Dr. Daniel Weinstock (“Dr. Weinstock“) took Plaintiff‘s stool samples and discovered no blood after running hemoccult tests on April 18 and April 26, 2011. (Dkt. 59-1 at ¶ 16; Dkt. 93-1 at ¶ 16). Although Plaintiff disputes Defendants’ assertion that he “frequently harassed medical staff” (Dkt. 59-1 at ¶ 17; Dkt. 93-1 at ¶ 17), it is undisputed that Five Points staff submitted written misbehavior reports regarding Plaintiff‘s conduct on several occasions (Dkt. 59-1 at ¶ 18; Dkt. 93-1 at ¶ 18; but see Dkt. 93-1 at ¶ 18 (also arguing that “false misbehavior reports were written in retaliation against [Plaintiff]“)).
While Plaintiff claims that Defendants’ decision not to provide him with an interpreter during his Tier II and Tier III violation hearings violated his right to due process (Dkt. 93-1 at ¶ 19), he does not dispute that he was found guilty of Tier II and Tier III violations 17 times during the relevant period underlying this action (Dkt. 59-1 at ¶ 19; Dkt. 93-1 at ¶ 19). Relatedly, Plaintiff‘s fluency in the English language is a point of contention between the parties. (Dkt. 59-1 at ¶ 23; Dkt. 93-1 at ¶ 23). For example, Defendants contend that Plaintiff could meaningfully converse with corrections staff in English (Dkt. 59-1 at ¶ 23), but Plaintiff states that his understanding of the English language is limited and notes that Spanish is his native language (Dkt. 93-1 at ¶ 23). Despite his disciplinary violations, Plaintiff received a “time cut” for each violation, save one, during the period extending from February 23, 2010, to July 5, 2013. (Dkt. 59-1 at ¶ 20; Dkt. 93-1 at ¶ 20). Plaintiff was not required to serve any time in the Special Housing Unit (“SHU“) and did not lose any good time credits as a result of these violations. (Dkt. 59-1 at ¶ 20; Dkt. 93-1 at ¶ 20). Plaintiff did spend two months’ time in the SHU for an
DOCCS Directive 4421 sets forth DOCCS’ policy regarding inmate mailings. (Dkt. 59-1 at ¶ 25; Dkt. 93-1 at ¶ 25). Directive 4421 permits inmates to mail five first-class legal letters free of charge per week and allows inmates an advance of up to $20 for additional legal mail. (Dkt. 59-1 at ¶ 25; Dkt. 93-1 at ¶ 25). Inmates also receive free postage for documents that “must be sent pursuant to a Court Order, statute of limitations or legal deadline, if, by rule, such correspondence must be sent prior to receipt of the next week‘s free postage allowance.” (Dkt. 59-1 at ¶ 26; Dkt. 93-1 at ¶ 26). Plaintiff almost always exhausted his weekly allotment of five free legal letters and used up his $20 advance immediately upon arriving at Five Points. (Dkt. 59-1 at ¶ 27; Dkt. 93-1 at ¶ 27). However, Plaintiff disputes that he was afforded free postage when a deadline so entitled him—although “on several occasions, a court order or other deadline entitled him to free postage“—and states that certain correspondence he addressed to courts, government officials, and legal organizations was refused postage. (Dkt. 93-1 at ¶ 27).
PROCEDURAL HISTORY
On May 10, 2011, Plaintiff commenced this action by filing a voluminous 340-page complaint, alleging various injuries arising from the actions of over 130 defendants. (See Dkt. 1). Plaintiff also filed a motion for leave to proceed in forma pauperis (Dkt. 3) and a motion for appointment of counsel (Dkt. 4). By Order, dated May 25, 2011, Plaintiff was granted in forma pauperis status, and was directed to amend his complaint in compliance
On February 21, 2014, Plaintiff filed a 103-page second amended complaint (the “SAC“), which, alongside the pro se Supplemental Complaint, remains the operative pleading in this matter. (Dkt. 46). This action was reassigned to the undersigned on January 5, 2015. (Dkt. 48).
On April 6, 2015, Defendants filed a motion for partial summary judgment in lieu of an answer. (Dkt. 59). Defendants also request that the Court revoke Plaintiff‘s IFP status. (See Dkt. 59-2 at 5-6). After several appearances and extensions of time, Plaintiff filed responsive papers on July 15, 2016, opposing Defendants’ motion. (Dkt. 93). Defendants filed reply papers in further support of their motion on September 21, 2016. (Dkt. 105).
I. Defendants’ Motion to Revoke Plaintiff‘s IFP Status is Held in Abeyance
A party commencing a civil action in this Court ordinarily must pay a $350.00 filing fee, as well as a $50.00 administrative fee.2 See
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Thus, under that statute, a prisoner with three strikes may proceed IFP only if he can show that he is “under imminent danger of serious physical injury.” Id. “An imminent danger is not one that has dissipated by the time a complaint is filed; rather it must be one
The Second Circuit has instructed that, when determining whether a prisoner has shown an imminent danger, a court should “not make an overly detailed inquiry into whether the allegations qualify for the exception, because
But several courts in this Circuit—including some cases involving Plaintiff—have revoked the IFP status of a three-strikes litigant when the defendant challenges the court‘s preliminary finding that the litigant is entitled to the imminent danger exception, using evidence outside the four corners of the complaint to refute that preliminary finding. See Abreu v. Brown, 317 F. Supp. 3d 702, 705 (W.D.N.Y. 2018) (“The Court agrees with those courts that it may look beyond the complaint when considering a defendant‘s challenge to the preliminary finding that a three-strikes litigant is entitled to the imminent danger exception.“); Tafari v. Baker, No. 6:16-cv-06427(MAT), 2017 WL 1406274, at *2 (W.D.N.Y. Apr. 20, 2017) (collecting cases stating the same); Bernier v. Koenigsmann, No. 15-CV-209A, 2017 WL 603217, at *4 (W.D.N.Y. Feb. 15, 2017) (“Although courts assessing imminent danger should not make an overly detailed inquiry, they are allowed to look at information outside the four corners of a complaint.“); Green v. Venettozzi, No. 14-CV-1215 (BKS/CFH), 2016 WL 6902545, at *3 (N.D.N.Y. Oct. 31, 2016) (“To refute a preliminary finding with facts that satisfy the imminent danger exception, the Court may look outside the four corners of the complaint.“), report and recommendation adopted, 2016 WL 6902180 (N.D.N.Y. Nov. 23, 2016); Abreu v. Lira, 2014 WL 4966911, at *2 (“In reviewing the issues surrounding plaintiff‘s claim that at the time he filed the complaint, he was facing imminent danger of serious physical injury, the Court agrees . . . that it is appropriate for the Court to review evidence outside the allegations of the complaint upon
Although this Court recently agreed with this line of cases, see Abreu v. Brown, 317 F. Supp. 3d at 705, an appeal pending before the Second Circuit from a decision revoking IFP status after it was initially granted will likely clarify the law of this Circuit regarding this issue, see Shepherd v. Annucci, No. 17-2261 (2d Cir. July 21, 2017). A review of the
II. Summary Judgment Standard
“The moving party bears the burden of showing the absence of a genuine dispute as to any material fact. . . . ” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant‘s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A party may file a motion for summary judgment “at any time until 30 days after the close of all discovery.”
Plaintiff argues that he was deprived of a liberty interest without due process of law when he was not afforded an interpreter during several disciplinary hearings at which he was found guilty of the alleged wrongdoing. (See Dkt. 93 at 47-51). “The failure to provide interpretive services or assistive devices during disciplinary hearings has been found to be a denial [of] due process.” Young v. Polizzi, No. 9:16-CV-0660 (FJS/CFH), 2018 WL 3949967, at *8 (N.D.N.Y. July 11, 2018) (citing Clarkson v. Coughlin, 898 F. Supp. 1019, 1049 (S.D.N.Y. 1995)), report and recommendation adopted, 2018 WL 3949942 (N.D.N.Y. Aug. 16, 2018). However, “[a]s a threshold matter, an inmate asserting a violation of his or her right to due process must establish the existence of a protected interest in life, liberty, or property.” Ocasio v. Deluke, No. 08-CV-51 GLS/DRH, 2010 WL 6001595, at *16 (N.D.N.Y. Sept. 3, 2010) (citing Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001)), report and recommendation adopted, 2011 WL 864898 (N.D.N.Y. Mar. 8, 2011), aff‘d, 468 F. App‘x 89 (2d Cir. 2012).
Plaintiff has failed to submit an affidavit or declaration satisfying the requirements of Rule 56(d). Although the Court recognizes the early stage of this litigation, Plaintiff‘s conclusory requests for additional discovery in his opposition papers are insufficient to oppose Defendants’ motion for summary judgment on that basis.
While the parties dispute whether Plaintiff required an interpreter at the disciplinary hearings (see Dkt. 59-1 at ¶ 23; Dkt. 93-1 at ¶ 23),9 Plaintiff has failed to raise a triable
Plaintiff did serve time in the SHU during December of 2013 for an incident occurring in May 27, 2010, but it was for a period of just two months. (See Dkt. 59-1 at ¶ 22; Dkt. 93-1 at ¶ 22). The Second Circuit has stated that “restrictive confinements of less than 101 days do not generally raise a liberty interest warranting due process protection, and thus require proof of conditions more onerous than usual.” Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009). Generally, the plaintiff must demonstrate that the conditions of confinement under such relatively brief periods “were more severe than the normal SHU conditions . . . or a more fully developed record show[s] that even relatively brief confinements under normal SHU conditions were, in fact, atypical.” Palmer, 364 F.3d at 65.
A. General Principles
“The Eighth Amendment, which applies to the states under the Due Process Clause of the Fourteenth Amendment, guarantees freedom from cruel and unusual punishment.” Jones v. Westchester Cty. Dep‘t of Corr. Med. Dep‘t, 557 F. Supp. 2d 408, 413 (S.D.N.Y. 2008). “A prison deprivation violates the Eighth Amendment only when there is an ‘unnecessary and wanton infliction of pain.‘” Barclay v. New York, 477 F. Supp. 2d 546, 553 (N.D.N.Y. 2007) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “In order to prove that a prison condition amounted to cruel and unusual punishment, a plaintiff must satisfy both an objective and a subjective standard.” Stokes v. Goard, No. 9:03-CV-1402 (LEK/DRH), 2007 WL 995624, at *4 (N.D.N.Y. Mar. 30, 2007) (citing Jolly v. Coughlin, 76 F.3d 468
1. Subjective Element
“The subjective component of the claim requires a showing that the defendant ‘had the necessary level of culpability, shown by actions characterized by “wantonness“’ in light of the particular circumstances surrounding the challenged conduct.” Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)); see Swift v. Tweddell, 582 F. Supp. 2d 437, 444 (W.D.N.Y. 2008) (“To establish deliberate indifference, then, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain.“). “Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law. This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.” Salahuddin v. Goard, 467 F.3d 263, 280 (2d Cir. 2006) (citation omitted).
2. Objective Element
The objective requirement “does not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981); “[o]nly ‘deprivations denying the minimal civilized measure of life‘s necessities are sufficiently grave to form the basis of an Eighth Amendment violation,‘” Salahuddin, 467 F.3d at 279 (quoting Wilson, 501 U.S. at 298). “States must not deprive prisoners of their ‘basic human needs—e.g., food, clothing,
B. Allegations of Contaminated Food
“[T]he Eighth Amendment prohibition against cruel and unusual punishment does require 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)). “In food tampering claims a plaintiff must allege that he suffered an actual injury, ‘the mere allegation of food tampering alone [ ] is insufficient to establish a claim under the Eighth Amendment.‘” Calvin v. Schmitt, No. 15 CV-6584 (NSR), 2017 WL 4280683, at *5 (S.D.N.Y. July 7, 2017) (alteration in original) (quoting Harris v. Ashlaw, No. 9:07-CV-0358(LEK/DEP), 2007 WL 4324106, at *5 (N.D.N.Y. Dec. 5, 2007)).
Here, Plaintiff‘s alleged food contamination is too speculative to survive summary judgment. Plaintiff alleges that the food loaves11 he received “were wet[,]” as if C.O. Countryman had spit in his food. (Dkt. 93-5 at ¶ 41; see also id. at ¶ 107 (alleging that C.O. Countryman “was spitting on my loa[ves]“)). He also alleges that some of the food
Plaintiff also makes the general assertion that his food was “regularly and frequently contaminated and or spoiled.” (Dkt. 93-5 at ¶ 190). He further alleges that he became nauseous and was forced to vomit after eating the food loaves. (Id.). Plaintiff also allegedly experienced stomach pains and anal bleeding, which were “possibly due to bacterias [sic], and parasites due to the spoiled foods” and the “dirty hands” of the correctional officers and their practice of “spitting” into his food. (Id. (emphasis added)).
Furthermore, the injuries that allegedly resulted from Plaintiff‘s ingestion of the food loaves are not borne out by the medical evidence. See Stokes, 2007 WL 995624, at *4 (“[A]lthough Stokes makes general allegations regarding the health effects he suffered because of the alleged contaminated and inadequate food, there is nothing in his medical records to indicate that he suffered any adverse health effects from the food served to him by defendants.“). While a Court must view the evidence in the light most favorable to the non-movant on a motion for summary judgment, “[v]ague assertions supported only by self-serving statements,” even if found “in the nonmoving party‘s affidavit[,] are
C. Deliberate Medical Indifference
For purposes of opposing Defendants’ motion, Plaintiff “focuses on his most serious untreated medical conditions.” (Dkt. 93 at 30). These conditions include the injuries he allegedly sustained during an “assault that occurred on March 30, 2010, the chronic back and neck pain that was at issue in the March 30, 2010 assault, for which he requires at least pain medication and a back brace, and the acute incident of a potential heart attack he suffered on April 2, 2010.” (Id.).
The “sufficiently serious” element is analyzed more broadly where the alleged claim amounts to “a failure to provide any treatment for an inmate‘s medical condition” than “where the inadequacy is in the medical treatment given.” Salahuddin, 467 F.3d at 280. In the former scenario, the focus is on whether “the inmate‘s medical condition is sufficiently serious,” whereas the latter situation emphasizes the treatment itself. Id. (emphasis added); see Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (“When the basis for a prisoner‘s Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner‘s underlying medical condition alone.“).
“It appears that no courts have specifically addressed neck pain in the context of a deliberate indifference claim.” Medina v. Barrett, No. 14-CV-6377-FPG, 2018 WL 1383232, at *6 (W.D.N.Y. Mar. 19, 2018). However, “courts have held that ‘[s]evere back
Plaintiff appears to quarrel with the medical treatment he received at Five Points and challenges the propriety of the Five Points medical staffs’ decision to interrupt treatment previously prescribed by other correctional facilities. Specifically, Plaintiff disputes Dr. Weinstock‘s decision to remove his back brace on March 30, 2010, even though Plaintiff informed Dr. Weinstock that it had been prescribed by physicians at another correctional facility, who had also recommended physical therapy and pain medication to treat his chronic back pain. (Dkt. 93 at 30; see Dkt. 46 at ¶¶ 101, 103-04). However, Plaintiff‘s contentions merely challenge Dr. Weinstock‘s medical judgment, and Plaintiff submits no medical evidence demonstrating that a back brace should have been continued as a form of treatment. See Evan v. Manos, 336 F. Supp. 2d 255, 263 (W.D.N.Y. 2004) (stating that the plaintiff‘s opinion that the defendant “should have prescribed a back brace is also inadequate to give rise to any issue of fact about whether his constitutional rights were violated,” and noting that “[t]here is no medical evidence that a back brace was medically called for or that it would have relieved plaintiff‘s alleged pain“). “It is well-established that mere disagreement over the proper treatment does not create a
Indeed, Dr. Weinstock indicates that his decision to remove the back brace and to discontinue some of Plaintiff‘s pain medications was based upon his medical examination of Plaintiff and objective medical evidence, such as x-rays. (Dkt. 59-9 at ¶¶ 24-28); see Lewis v. Alves, No. 01-CV-0640A(SR), 2004 WL 941532, at *6 (W.D.N.Y. Mar. 22, 2004) (stating that the defendant‘s decision to deny drug treatment while the plaintiff completed “an alcohol and drug treatment program was based upon objective medical criteria and the exercise of [the defendant‘s] medical judgment,” and thus, could not support a medical indifference claim); see also Munlyn v. Pietrie, No. 13-CV-6170FPG, 2014 WL 3695488, at *6 (W.D.N.Y. July 24, 2014) (stating that the plaintiff‘s allegations only reflect his “disagreement with [the medical staff‘s] evaluation and assessment of his medical circumstances” where he claims that they “did not believe he had any pain, or disputed the severity of the pain,” and then they “refused [the p]laintiff‘s requests to see the doctor,” removed his neck brace and walking cane, disapproved physical therapy, and told him “to stop lying“). Furthermore, Dr. Weinstock affirms that Plaintiff was often seen multiple times a week by the Five Points medical staff (Dkt. 59-9 at ¶ 7), an averment that is borne out by the medical records submitted by Defendants (see Dkt. 59-10).
As such, Plaintiff‘s allegations must be viewed in context; it appears that Plaintiff frequently sought and received some form of medical attention, and it is undisputed that he was examined by medical personnel “well over 100 times” while housed at Five Points. (Dkt. 59-1 at ¶ 1; Dkt. 93-1 at ¶ 1). Simply because Plaintiff was not examined each and every day he complained of some form of chronic pain does not demonstrate that Defendants were deliberately indifferent to a serious medical need. At least under the circumstances presented here, where the medical records reveal that Plaintiff was examined and/or prescribed medications multiple times a month and sometimes several times a week, Plaintiff‘s assertion that Defendants ignored his complaints of pain fails to establish a viable constitutional cause of action. (See Dkt. 59-10). Indeed, many of Plaintiff‘s medical evaluations were only separated by a matter of days. See Youngblood v. Glasser, No. 9:10-CV-1430 (NAM/DEP), 2012 WL 4051846, at *8 (N.D.N.Y. Aug. 22, 2012) (“Plaintiff maintains that his constitutional rights were violated as a result of a five-day delay in arranging for a physician to examine his hemorrhoids. Proof of such complaints and the
Plaintiff also references a “potential heart attack” that he allegedly suffered on or about April 2, 2010. (See Dkt. 93 at 32-33). Plaintiff alleges that Dr. Weinstock and nurse Annette Holm (“Nurse Holm“) ignored his complaints of chest pain, which he could feel spreading over his left shoulder. (See Dkt. 46 at ¶¶ 124-26). Plaintiff further alleges that he had difficulty breathing and speaking at that time as well. (Id. at ¶ 125). The medical staff allegedly ignored these symptoms even though they suggested that Plaintiff was suffering from a “potential heart attack.” (Id. at ¶ 126).
Plaintiff fails to provide any evidence—medical or otherwise—to explain the difference between a “potential” heart attack and an actual heart attack, or to associate his alleged symptoms with any other cardiovascular health-related issues. Furthermore, a review of the medical records reveals that Plaintiff was examined several times on April 2, 2010, and in the following days. (See Dkt. 59-10 at 131-33). For example, on April 2, 2010, Plaintiff complained of chest pain and discomfort in his left shoulder, but the medical staff noted that he was “talking easily,” without any shortness of breath, and that his blood pressure had been taken. (Id. at 133). Dr. Weinstock was notified of the assessment, and the medical staff ordered Plaintiff to be evaluated again in an hour. (Id.). After one hour
The next morning, Plaintiff complained of a cough, chronic pain in his right arm, neck, back, both wrists, legs, face, and head, but apparently did not indicate whether he felt pain in his chest or shoulder. (Id.). Plaintiff was then provided with some ritussin and ibuprofen. (Id.). Later that morning, Plaintiff returned to the infirmary, where he again complained of pain in his back, wrist, head, face, and right arm, but displayed no signs of redness or swelling. (Id. at 132). Plaintiff did not appear to exhibit any shortness of breath, and he was “talking easily.” (Id.). Plaintiff also indicated that he “doesn‘t feel too much compression to [his] chest.” (Id.). On April 7, 2010, Plaintiff again complained of some “difficulty breathing,” but was examined and prescribed treatment. (Id. at 131). The medical notes dated April 10, 2010, reveal that Plaintiff was “talking easily” without any shortness of breath, and no subjective complaints of chest or shoulder pain were recorded. (Id.).
In sum, the above-referenced medical progress notes wholly undermine Plaintiff‘s contention that he suffered a sufficiently serious cardiovascular event that was ignored by the Five Points medical staff. Even if Plaintiff suffered a “potential heart attack,” the medical records demonstrate that he was provided with consistent care and treatment at the time his symptoms arose and in the days that followed—Plaintiff points to no medical
Plaintiff has strategically chosen to focus his opposition papers on a few of the most allegedly egregious instances of deliberate indifference to a serious medical need asserted by Plaintiff in this action. Although the Court has reviewed the balance of Plaintiff‘s alleged medical indifference claims against the medical records submitted by Defendants, “in deciding a motion for summary judgment, a District Court is not required to ‘scour the record on its own in a search for evidence’ where the non-moving party fails to adequately present it.” In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 426 (S.D.N.Y. 2014) (quoting CILP Assocs. LP v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 125 (2d Cir. 2013)). Here, Defendants have established that Plaintiff was medically examined on “numerous occasions” while incarcerated at Five Points, and sometimes multiple times a week. (Dkt. 59-4 at ¶¶ 4-6; see Dkt. 59-7 at ¶ 9; Dkt. 59-9 at ¶¶ 4, 7, 18). Despite Plaintiff‘s frequent complaints of medical ailments, these complaints were not substantiated by objective medical examination. (See Dkt. 59-4 at ¶ 9; Dkt. 59-7 at ¶¶ 10-12; Dkt. 59-9 at ¶¶ 9, 24-28, 34, 68-69). Furthermore, Plaintiff was often prescribed medications to relieve him of the subjective pain or discomfort he complained of, and he would usually receive medications at least once a day while housed in the SHU. (See Dkt. 59-4 at ¶¶ 6-7, 20; Dkt. 59-7 at ¶ 8; Dkt. 59-9 at ¶¶ 5, 18, 23-24, 28, 30). These averments are borne out by the medical records submitted by Defendants. (See Dkt. 59-10). In response, Plaintiff has submitted no medical evidence to substantiate his claims of deliberate indifference—instead, he relies on only his conclusory claims. In light of the
Accordingly, summary judgment is granted in favor of Defendants dismissing Plaintiff‘s Eighth Amendment claim for deliberate medical indifference.13
The instant matter “is not a case in which plaintiff has an unusual medical problem which, if disclosed unnecessarily to other inmates, would likely expose plaintiff to discrimination, intolerance, or potential violence.” Rodriguez v. Ames, 287 F. Supp. 2d
In order for an Eighth Amendment excessive force claim to survive a motion for summary judgment, the evidence, viewed in the light most favorable to the non-moving party, must go “beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives,” and instead “support a reliable inference of wantonness in the infliction of pain . . . .” Whitley v. Albers, 475 U.S. 312, 322 (1986). “‘[S]ome degree of injury is ordinarily required to state a claim’ of excessive use of force in violation of the Eighth Amendment.” Taylor v. N.Y. Dep‘t of Corr., No. 10 CIV. 3819 (JPO), 2012 WL 2469856, at *4 (S.D.N.Y. June 27, 2012) (quoting United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999)). Accordingly, “a de minimis use of force will rarely suffice to state a constitutional claim.” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Indeed, “[t]he extent of injury suffered by an inmate is one factor that may suggest ‘whether
However, “an inmate ‘need not prove “significant injury” to make out an excessive force claim.‘” Banks v. County of Westchester, 168 F. Supp. 3d 682, 688 (S.D.N.Y. 2016) (quoting Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir. 1999)). “[T]he core judicial inquiry is that set out in Whitley: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7.
Factors to consider in determining whether prison officials unnecessarily and wantonly inflicted pain include: (1) the extent of the injury suffered; (2) the need for the application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Hudson, 503 U.S. at 7).14
Plaintiff alleges that on March 30, 2010, C.O. Countryman and correctional officer Jacob Smith used excessive force to remove Plaintiff‘s back brace and to restrain Plaintiff after he protested the manner in which the correctional officers attempted to remove the brace. (Dkt. 46 at ¶¶ 104-06). Both correctional officers allegedly “dragged Plaintiff out of the sick-call room, and violently slammed Plaintiff to the floor face down.” (Id. at ¶ 107). C.O. Countryman then “tightened the handcuffs on Plaintiff‘s wrists, twisting both hands and wrists maliciously,” and then “twisted Plaintiff‘s legs, causing extreme pain and suffering to Plaintiff‘s body, legs and back.” (Id. at ¶¶ 108-09). C.O. Countryman then “shoved and pushed Plaintiff into a wall,” and then he, correctional officer Richard Cioffa, and other unidentified correctional officers “took Plaintiff‘s back brace violently from his body . . . .” (Id. at ¶ 110).
A review of the medical evidence reveals that the medical staff did not observe any injuries subsequent to the alleged assault. Although Plaintiff complained of pain in his arm, face, and wrist, no visible injuries, edema, or redness were observed ten minutes after the use of force occurred. (See Dkt. 59-10 at 134-35). Plaintiff made similar complaints the following day, but no swelling or any deformity was noted; nonetheless, the medical staff prescribed Motrin to relieve any discomfort. (Id. at 134).
However, the Court does not require corroborating medical evidence demonstrating the presence of an injury to conclude that an excessive force claim survives summary judgment. See Ninortey v. Shova, No. 05 CIV. 542 (SHS), 2008 WL 4067107, at *12 (S.D.N.Y. Sept. 2, 2008) (noting that courts in the Southern District of New York “have
Furthermore, a “plaintiff‘s injuries are but one factor to consider in the excessive force analysis.” Cole v. N.Y. State Dep‘t of Corr. & Cmty. Supervision, No. 9:14-CV-0539
2. Alleged Use of Excessive Force on November 21, 2010
Plaintiff alleges that on November 21, 2010, Nurse Cheasman was informed that Plaintiff had filed grievances and complaints against her. (Dkt. 46 at ¶ 212). After being so advised, Nurse Cheasman approached Plaintiff‘s cell, “opened the window panel of the solid door,” and proceeded to “physically assault[] Plaintiff with a bucket, injuring Plaintiff‘s fingers and hands.” (Id.).
Plaintiff‘s medical records indicate that he complained of hand pain for several medical visits subsequent to the alleged assault; however, no injuries were ever discerned and Plaintiff was always found to have full use of his hands. (See Dkt. 59-10 at 107-08, 110). On November 22, 2010, Plaintiff specifically informed medical staff that he had been assaulted by the “log nurse” with a “medical bucket.” (Id. at 110). However, the progress notes also reveal that Plaintiff “refused to unwrap hands and show this nurse any injuries.” (Id.). Defendants argue that Plaintiff‘s assertion that Nurse Cheasman assaulted him is “far too vague to make out a claim to which any Defendant can respond.” (Dkt. 59-2 at 64).
The fact that Plaintiff‘s medical records suggest that he suffered no visible injury to his fingers, and that he had no difficulty moving his fingers, does not wholly contradict Plaintiff‘s sworn allegations that he was assaulted by Nurse Cheasman in a manner that was unrelated to the maintenance of prison discipline and order. Indeed, Plaintiff‘s medical
Therefore, Defendants’ motion for summary judgment is denied insofar as it seeks dismissal of Plaintiff‘s Eighth Amendment excessive force claim arising out of the incident taking place on November 21, 2010.
Plaintiff alleges that on December 18, 2010, Nurse Cheasman assaulted him by slamming the hatch of Plaintiff‘s cell door on Plaintiff‘s left arm when Plaintiff was attempting to retrieve a cup that contained [his] medications.
(Dkt. 46 at ¶ 247). However, a review of Plaintiff‘s medical records over the days that followed this alleged incident reveals that he did not complain of any pain in his left arm and was only treated for a sore throat. (Dkt. 59-10 at 100). The Court recognizes that there is authority supporting the proposition that where undisputed medical records
Henry v. Brown, No. 14-CV-2828 (LDH)(LB), 2016 WL 3079798, at *2 (E.D.N.Y. May 27, 2016) (quoting Davis v. Klein, No. 11-CV-4868 ENV, 2013 WL 5780475, at *1 (E.D.N.Y. Oct. 25, 2013)); see also Felder v. Diebel, No. 10-CV-343 JTC, 2012 WL 6690239, at *5 (W.D.N.Y. Dec. 21, 2012) (finding that the plaintiff‘s directly and irrefutably contradict a plaintiff‘s descriptions of his injuries
attributed to an alleged use of excessive force, no reasonable jury could credit plaintiff‘s account of the happening.
medical records . . . indicate no signs of injuries consistent with his allegations and no medical treatment,
and concluding that the amount of force used in this case was de minimis
).
Nonetheless, the instant matter presents the unique scenario where a medical staff member is charged with the use of excessive force. Under these circumstances, the person alleged to have committed the unconstitutional act is potentially also responsible for recording and maintaining the very progress notes relied upon by Defendants in arguing that any amount of force used must have been de minimis. The Court cannot decipher the identity of the medical personnel who recorded the progress notes relevant to the December
Therefore, Defendants’ motion for summary judgment is denied insofar as it seeks dismissal of Plaintiff‘s Eighth Amendment excessive force claim arising out of the incident taking place on December 18, 2010.
4. Alleged Use of Excessive Force on September 27, 2011
Plaintiff alleges that on September 27, 2011, C.O. Countryman violently assaulted him in the presence of Nurse Holm, Dr. Weinstock, and correctional sergeant Remy Sgt. Babineaux
). (Dkt. 93-5 at ¶ 34). Plaintiff has submitted use of force reports that were completed after the alleged incident took place. (See, e.g., Dkt. 93-6 at 7). Furthermore, the medical records indicate that force was used to restrain Plaintiff, and that he sustained minor injuries. (Dkt. 59-10 at 44). Clearly some degree of force was used on this occasion, and thus, questions of fact exist as to whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.
Hudson, 503 U.S. at 7; see Henry v. City of New York, No. 02 Civ. 4824, at *6, 2003 WL 22077469 (S.D.N.Y. Sept. 8, 2003) ([W]here there is a factual dispute about the circumstances surrounding . . . the degree of force used, the Second Circuit requires a jury determination of the reasonableness of that force.
). Therefore, Defendants’ motion for summary judgment is denied to the extent it seeks to dismiss any excessive force claim arising from the events taking place on September 27, 2011.
E. Other Eighth Amendment Claims
To the extent Plaintiff‘s allegations also raise several other claims falling within the broader category of cruel and unusual punishment,
those claims are dismissed—with one exception, related to lighting as discussed below. For example, Plaintiff alleges that he was only provided with one clean bed sheet instead of two clean bed sheets for two weeks. (Dkt. 46 at ¶¶ 339-40). However, such a temporary and minimal deprivation is de minimus at best, and as such does not rise to constitutional proportions.
Ahlers v. Nowicki, No. 9:12-CV-0539 (DNH/RFT), 2014 WL 1056935, at *5 (N.D.N.Y. Mar. 18, 2014) (where the plaintiff claimed he was forced to sleep on dirty sheets for approximately four nights
). In addition, Plaintiff alleges that he was not afforded adequate access to certain the general library court was not
(collecting cases)), report and recommendation adopted, 2005 WL 433285 (S.D.N.Y. Feb. 23, 2005).properly stocked
as it was void of magazines, newspapers and periodicals
. . . because magazines, newspapers and periodicals are not considered one of life‘s basic necessities
within the meaning of the Eighth Amendment
Although Plaintiff sets forth general and conclusory allegations that he was deprived of recreational privileges (Dkt. 46 at ¶¶ 443, 459), he only once specifically alleges that correctional officer Eric Farley (C.O. Farley
) actually denied [him] his daily access to the recreation yard for three days
(id. at ¶ 297). Because exercise is one of the basic human needs protected by the Eighth Amendment, a plaintiff may prevail on an Eighth Amendment claim for deprivation of exercise by alleging that defendants were deliberately indifferent to a sufficiently serious deprivation of exercise.
Dillon v. City of New York, No. 12 Civ. 6746 (LAP), 2013 WL 3776252, at *3 (S.D.N.Y. July 18, 2013). 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.
Williams v. Goord, 142 F. Supp. 2d 416, 425 (S.D.N.Y. 2001). Assuming C.O. Farley denied Plaintiff recreational access for three days, such a minor deprivation of these privileges does not state a viable Eighth Amendment cause of action. See Davidson v. Coughlin, 968 F. Supp. 121, 131 (S.D.N.Y. 1997) (finding that the denial of all outdoor
for fourteen days in a row
does not implicate Eighth Amendment concerns
); Chapple v. Coughlin, 92 CIV. 8629 (TPG), 1996 WL 507323, at *2 (S.D.N.Y. Sept. 5, 1996) (finding that the deprivation of recreational privileges for three days does not violate the Deprivations of exercise for limited periods have been found in several instances not to support a constitutional claim under the Eighth Amendment.
); Ford v. Phillips, No. 05 CIV. 6646 (NRB), 2007 WL 946703, at *9 (S.D.N.Y. Mar. 27, 2007) ([A]s a matter of law, minor and temporary deprivations of property, showers and recreation do not violate the Eighth Amendment.
); Hattley v. Goord, No. 02 Civ. 2339(WHP)(RLE), 2003 WL 1700435, at *8 (S.D.N.Y. Mar. 27, 2003) (noting that one hour of recreation per day and 23 hours of confinement are the normal conditions of an SHU
).
Plaintiff also makes various allegations regarding the lighting conditions at Five Points. In particular, Plaintiff alleges that he was subject to 24-hour illumination of his prison cell on several occasions. (See, e.g., Dkt. 46 at ¶¶ 208, 273, 281). Requiring inmates to live in constant illumination can[,] . . . under certain circumstances, rise to the level of an Eighth Amendment violation.
Jones v. Rock, No. 9:12-CV-0447 (NAM/TWD), 2013 WL 4804500, at *10 (N.D.N.Y. Sept. 6, 2013); see Holmes v. Fischer, No. 09-CV-00829S(F), 2016 WL 552962, at *17 (W.D.N.Y. Feb. 10, 2016) (same). Indeed, the Second Circuit has recognized that sleep deprivation due to constant illumination can be [a] sufficiently serious condition[] that jeopardizes a prisoner‘s health.
Collins v. Fischer, No. 15-CV-103 (KMK), 2018 WL 1626528, at *6 (S.D.N.Y. Mar. 30, 2018) (citing Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) ([S]leep is critical to human existence, and conditions that prevent sleep have been held to violate the Eighth Amendment.
)). Nevertheless,
Holmes, 2016 WL 552962, at *17 (quoting Vasquez v. Frank, No. 05-C-528-C, 2007 WL 3254702, at *5 (W.D. Wis. Nov. 2, 2007), aff‘d, 290 F. App‘x 927 (7th Cir. 2008)).to succeed on a claim of illegal illumination, [a] plaintiff must produce evidence that the constant illumination had harmful effects on his health beyond mere discomfort.
Plaintiff alleges that the constant illumination of his prison cell caused him to suffer eye problems, headaches, sleeplessness, and depression. (See, e.g., Dkt. 46 at ¶¶ 181, 191, 208, 256, 281). In particular, he alleges three specific occasions where his prison cell was illuminated for extended durations. Plaintiff asserts that C.O. Farley ordered the light to remain on in [his] cell
for an unspecified period of time on October 1, 2010, and that correctional lieutenant Charles Coventry (Lieutenant Coventry
) kept his cell light on for approximately 24 hours
on November 11, 2010. (See id. at ¶¶ 191, 208). Notably, Plaintiff further alleges that on January 14, 2011, C.O. Farley altered his cell light so that it remained on 24 hours a day
(id. at ¶ 273), causing Plaintiff to be unable to sleep for close to two weeks because his cell light was on day and night
(id. at ¶ 274).
The decisions evaluating Eighth Amendment claims based on continuous lighting in the prison setting are very
Quick v. Graham, No. 9:12-CV-1717 (DNH/ATB), 2016 WL 873853, at *5 (N.D.N.Y. Jan. 8, 2016) (quoting Booker v. Maly, No. 9:12-CV-246 (NAM/ATB), 2014 WL 1289579, at *18-19 (N.D.N.Y. Mar. 31, 2014), aff‘d, 590 F. App‘x 82 (2d Cir. 2015)), report and recommendation adopted, 2016 WL 879310 (N.D.N.Y. Mar. 7, 2016), vacated (Mar. 7, 2016), and report and recommendation adopted, 2016 WL 1261107 (N.D.N.Y. Mar. 30, 2016). Defendants have not submitted any evidence disputing the fact that Plaintiff was subjected to periods of 24-hour prison cell illumination. Instead, Defendants argue that Plaintiff has failed to set forth any injury caused by these lighting conditions that rises to the level of an Eighth Amendment violation. (See Dkt. 59-2 at 33-34). In several cases where summary judgment was deemed appropriate, the court relied upon the low wattage of the light bulbs illuminating the inmate‘s prison cell. See, e.g., Booker, 2014 WL 1289579, at *18 & n.27 (noting that fact-driven,
generally turning on the degree of illumination, the duration of the inmate‘s exposure, the extent of harm it causes, and the penological justification for the lighting.a 3-watt LED bulb is much less bright than the 9 or 13-watt illumination that was found acceptable
in other cases); McGee v. Gold, No. 1:04-CV-335, 2010 WL 5300805, at *5 (D. Vt. Aug. 3, 2010) (The record indicates that Vermont prisons are using compact fluorescent lighting between 5 and 8 watts, fluorescent bulbs between 7 and 8 watts, and 10-watt incandescent bulbs. These intensities are in a range that courts have generally found permissible under the Constitution.
(collecting cases)) (footnote omitted), report and recommendation adopted sub nom. McGee v. Pallito, No. 1:04-CV-00335, 2010 WL 5389996 (D. Vt. Dec. 20, 2010), vacated on other grounds and remanded sub nom. Kimber v. Tallon, 556 F. App‘x 27 (2d Cir. 2014) (finding class counsel‘s representation deficient). By contrast, Defendants have not provided any indication of the intensity of the cell lights installed at Five Points.
lights hurt[] his eyes,
and that the lights . . . annoy me
(id. at 50, 99). In fact, Plaintiff lodged the former complaint on January 16, 2011, just two days after C.O. Farley allegedly altered his cell light so that it remained on 24 hours a day.
(Dkt. 46 at ¶ 273; Dkt. 59-10 at 50). Although other causes could have resulted in or at least contributed to Plaintiff‘s alleged sleeplessness and eye problems, Defendants have failed to submit evidence supporting such a conclusion on their motion. Cf. McGee, 2010 WL 5300805, at *7 (The affidavit of Dr. Burroughs-Biron establishes that there are a number of potential causes for the symptoms being alleged.
). Furthermore, in the absence of evidence demonstrating the intensity of the lighting or the need for such illumination to sustain a secure prison environment, the fact that Plaintiff‘s medical records do not conclusively establish that his injuries were caused by the prison cell lights is not determinative. Cf. Huertas v. Sec‘y Penn. Dep‘t of Corr., 533 F. App‘x 64, 68 & n.7 (3d Cir. 2013) (noting that the plaintiff failed to provide competent medical evidence
demonstrating that his injuries were caused because of the lighting
conditions, but relying on the defendants’ explanation that the constant illumination is required for security purposes
and the lack of evidence that the lights were kept on for any impermissible purpose
in affirming summary judgment); Tafari v. McCarthy, 714 F. Supp. 2d 317, 368 (N.D.N.Y. 2010) (distinguishing case law where the defendants failed
and relying on record submissions regarding safety and security concerns to grant summary judgment on the plaintiff‘s retaliatory lighting
claim).
Therefore, because Plaintiff alleges that he suffered periods of 24-hour illumination of his prison cell, which resulted in headaches, eye problems, depression, and the inability to sleep for close to two weeks
(Dkt. 46 at ¶ 274; see id. at ¶¶ 181, 191, 208, 256, 273, 281), in the absence of admissible evidence refuting these sworn statements, Defendants have failed to establish their entitlement to judgment as a matter of law, see Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (denying summary judgment, despite the defendants’ supporting evidence to the contrary, where the plaintiff alleged that large florescent lights directly in front of and behind his cell shone into his cell 24 hours a day, so that his cell was
), opinion amended on denial of reh‘g, 135 F.3d 1318 (9th Cir. 1998); cf. Murray v. Edwards Cty. Sheriff‘s Dep‘t, 248 F. App‘x 993, 998 (10th Cir. 2007) (distinguishing Keenan because the plaintiff‘s constantly illuminated, and [he] had no way of telling night or day,
and that this condition caused him grave sleeping problems
and other mental and psychological problemsown testimony indicated that the lights only sometimes disturbed his sleep and that he suffered headaches as a result of his loss of sleep only every now and then
) (emphases added). Accordingly, Plaintiff‘s Eighth Amendment conditions-of-confinement claim for the unlawful illumination of his prison cell may proceed against C.O. Farley and Lieutenant Coventry.
Plaintiff further asserts that various correctional officials allegedly entered his prison cell and unlawfully searched his materials on several occasions. (Dkt. 46 at ¶¶ 130, The number of searches during the five or six month time period is not excessive, in light of the policy at Five Points that cells are searched once or twice a month.
); Little v. Mun. Corp., 51 F. Supp. 3d 473, 498 (S.D.N.Y. 2014) ([T]he three searches specifically alleged, as well as the general allegation that Plaintiffs were subject to
). Plaintiff‘s conclusory assertions that the searches took place intense discriminatory search[e]s,
are insufficient to satisfy the objective element of an Eighth Amendment claim.without cause
and to harass
Plaintiff are insufficient to raise a triable issue of fact, and thus, Defendants are granted summary judgment on this claim as well. Polk v. Olles, No. 12-CV-01106S(F), 2015 WL 10381751, at *8 (W.D.N.Y. Dec. 29, 2015) (Plaintiff offers only conclusory assertions in support of his position that the cell search was other than a routine random search, which statements are insufficient to avoid summary judgment.
), report and recommendation adopted, 2016 WL 777313 (W.D.N.Y. Feb. 29, 2016).
V. Plaintiff‘s Common Law Causes of Action
Plaintiff has also asserted common law causes of action for assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and false imprisonment. (Dkt. 46 at 99-101). Defendants have not set forth specific arguments addressing these claims. While assault and battery claims are treated similarly to a Fourth Amendment excessive force claim, see Kavazanjian v. Rice, No. 03-CV-1923 (FB) (SMG), 2008 WL 5340988, at *7 (E.D.N.Y. Dec. 22, 2008) ([I]n effect,
(quoting Hogan v. Franco, 896 F. Supp. 1313, 1315 n.2 (N.D.N.Y. 1995))), an Eighth Amendment excessive force claim is not so analytically aligned with its common law counterparts, see Davidson v. Brzezniak, No. 95-CV-00204-RJA, 2011 WL 3236209, at *13 (W.D.N.Y. July 28, 2011) (the test for whether a
Although there is some overlap between the standards for assessing a prison official‘s liability for assault and battery under the common law and liability under the Eighth Amendment for use of excessive force, the standards are not identical.
); Dufort v. Burgos, No. 04-CV-4940 (FB) (LB), 2005 WL 2660384, at *2 (E.D.N.Y. Oct. 18, 2005) (same). As Judge Friendly explained several decades ago:
Certainly the constitutional protection [of the cruel and unusual punishment clause] is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff‘s person or anything attached to it and practically identified with it; still less is it as extensive as that afforded by the common law tort action for assault[.]
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (citation omitted), rejected on other grounds by Graham v. Connor, 490 U.S. 386 (1989); see also Hernandez v. Lattimore, 612 F.2d 61, 67 (2d Cir. 1979) (Just as malpractice does not become a constitutional violation merely because the victim is a prisoner, so, too, not every assault and battery gives rise to a cause of action under the Eighth Amendment because the victim happens to be a prisoner.
(citation omitted)).
have . . . moved for summary judgment based on qualified immunity,
they have not offered any specific argument as to why they are entitled to qualified immunity as to the excessive force claims,
and concluding that the plaintiff‘s excessive force claims survive summary judgment); Shao v. City Univ. of N.Y., No. 12-CV-1566 (RJS), 2014 WL 5038389, at *6 (S.D.N.Y. Sept. 30, 2014) (stating that while the defendants purport to seek summary judgment with respect to all of [the p]laintiff‘s claims, [the d]efendants do not specifically address [the p]laintiff‘s hostile work environment claim in either their opening brief or reply brief,
and finding that the defendants have failed to demonstrate that they are entitled to judgment as a matter of law on that claim); Frederick v. Sheahan, No. 6:10-CV-6527 (MAT), 2014 WL 3748587, at *9 (W.D.N.Y. July 29, 2014) (At this juncture, the Court declines to grant summary judgment in Sgt. Bolton‘s favor as to this claim, since he did not specifically address or move to dismiss the failure to supervise claim.
); see also Sprott v. Franco, No. 94 Civ. 3818 (PKL), 1997 WL 79813, at *1 n.1 (S.D.N.Y. Feb. 25, 1997) (noting that the defendants do not specifically argue for summary judgment with respect to plaintiff‘s § 1981 claim in their notice of motion or in their supporting memorandum of law,
and stating that [t]he Court will not consider this issue without the benefit of briefing from the parties
); see generally Adeghe v. Janssen Pharm., Inc., No. 16 CIV. 2235 (LGS), 2017 WL 4839063, at *2 (S.D.N.Y. Oct. 24, 2017) (noting that the defendant made no particularized arguments
as to certain claims in its initial motion for summary judgment and finding that the defendant‘s new arguments to support summary judgment on the claims it had neglected to specifically address in its initial briefing . . . need not be considered
on its motion for reconsideration).
VI. First Amendment Retaliation Claims
Because of the near inevitability of decisions and actions by prison officials to which prisoners will take exception and the ease with which claims of retaliation may be fabricated, [courts in this Circuit] examine prisoners’ claims of retaliation with skepticism and particular care.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see Khudan v. Lee, No. 12-CV-8147 (RJS), 2016 WL 4735364, at *6 (S.D.N.Y. Sept. 8, 2016) (Courts generally review claims of
(quoting Bolton v. City of New York, No. 13-CV-5749 RJS, 2015 WL 1822008, at *2 (S.D.N.Y. Apr. 20, 2015))), app. dismissed, No. 16-3534, 2016 WL 10100723 (2d Cir. Dec. 8, 2016). Accordingly, retaliation claims must retaliation by prisoners
with skepticism
because of the ease with which a retaliation claim may be fabricated.be
Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).supported by specific and detailed factual allegations,
not stated in wholly conclusory terms.
To the extent Plaintiff alleges that certain defendants falsified his medical records or omitted certain information from them (see, e.g., Dkt. 46 at ¶¶ 150, 156, 224, 233, 306-07, 313, 329), those allegations, standing alone, do not provide a basis to support a the only omission attributed to Jones is a failure to record all of [the p]laintiff‘s alleged injuries in the treatment note
and stating that this alleged omission does not amount to a constitutional violation
); Williams v. Bentivegna, No. 14-CV-6105-CJS, 2015 WL 162994, at *7 (W.D.N.Y. Jan. 13, 2015) (Williams’ complaints that prescribed medication was not provided to him, or that the doctors wrote false information in his medical record, might amount to malpractice, but not a constitutional violation.
); see also Crenshaw v. Hartman, 681 F. Supp. 2d 412, 415 (W.D.N.Y. 2010) (The law is clear that
(quoting Sital v. Burgio, 592 F. Supp. 2d 355, 357 (W.D.N.Y. 2009))). Nonetheless, the issuance of false misbehavior reports against an inmate by corrections officers is insufficient on its own to establish a denial of due process.
[a] prisoner may be able to state a constitutional claim by alleging facts indicating that false charges were brought against him in retaliation for the prisoner‘s exercise of a constitutionally protected right, such as the filing of grievances.
Crenshaw, 681 F. Supp. 2d at 415.
To prevail on a First Amendment retaliation claim, a prisoner must demonstrate that: (1) he engaged in protected speech or activity; (2) the defendant took adverse action against him; and (3) there was a causal connection between the protected speech or activity and the adverse action.
Simmons v. Adamy, 987 F. Supp. 2d 302, 306 (W.D.N.Y. 2013) (citing Espinal v. Goord, 558 F.3d 119, 227 (2d Cir. 2009)).
Plaintiff alleges that several correctional officers filed false misbehavior reports against him in retaliation for his filing of grievances against them, and that certain medical Because the filing of prison grievances is a protected activity, Plaintiff meets the first prong of the test.
Nelson v. McGrain, No. 6:12-CV-6292 (MAT), 2015 WL 7571911, at *1 (W.D.N.Y. Nov. 24, 2015) (citation omitted). The Second Circuit has defined
Adams v. Rock, No. 9:12-CV-1400 (GLS/ATB), 2015 WL 1312738, at *10 (N.D.N.Y. Mar. 24, 2015) (quoting Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)). adverse action
in the prison context as retaliatory conduct
that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.
[C]ourts have found that
Castro v. Heath, No. 9:12-CV-01250 (MAD), 2013 WL 5354241, at *10 (N.D.N.Y. Sept. 23, 2013) (quoting Burton v. Lynch, 664 F. Supp. 2d 349, 366 (S.D.N.Y. 2009)); see Williams v. Fisher, No. 02 CIV. 4558(LMM), 2003 WL 22170610, at *11 (S.D.N.Y. Sept. 18, 2003) (finding the second element satisfied where the plaintiff alleged that medical staff revoked a denial of medical evaluation, treatment, and adequate pain medication
can suffice to establish adverse action under a First Amendment retaliation analysis.necessary medical rehabilitative treatment
as a result of the filing of a grievance). In addition, [i]t is well settled that filing . . . a false misbehavior report is an adverse action.
James v. Mosko, No. 13-CV-5-LJV-MJR, 2016 WL 8671478, at *6 (W.D.N.Y. July 22, 2016) (citation omitted), report and recommendation adopted, 2017 WL 397474 (W.D.N.Y. Jan. 30, 2017); Reed v. Doe No. 1, No. 9:11-CV-0250 (TJM/DEP), 2012 WL 4486086, at *5 (N.D.N.Y. July 26, 2012) (The filing of a false misbehavior report can qualify as an
(citing Gill, 389 F.3d at 384)), report and recommendation adopted, 2012 WL 4486085 (N.D.N.Y. Sept. 27, 2012); Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) (Filing a false misbehavior report about Mateo . . . would deter a similarly situated person of ordinary firmness from exercising his First Amendment rights.
). Thus, Plaintiff has also sufficiently alleged an adverse action,
satisfying the second element of a First Amendment retaliation claim.
However, Plaintiff has failed to raise a triable question of fact as to whether there is a causal connection between the filing of his grievances and the alleged adverse actions at issue.
In determining whether a causal connection exists between the plaintiff‘s protected activity and a prison official‘s actions, a number of factors may be considered, including: (1) the temporal proximity between the protected activity and the alleged retaliatory act; (2) the inmate‘s prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant concerning his motivation.
Bunting v. Conway, No. 04-CV-0731A (HKS), 2010 WL 5332280, at *7 (W.D.N.Y. Nov. 1, 2010) (citing Colon, 58 F.3d at 872), report and recommendation adopted, 2010 WL 5313308 (W.D.N.Y. Dec. 20, 2010).
Given that many of the alleged adverse actions seem to have occurred within weeks or even days of Plaintiff‘s grievances, it appears that Plaintiff relies on the temporal proximity between the filing of his grievances and the alleged retaliatory acts to establish the necessary causal connection—although Plaintiff‘s opposition papers do not discuss this element in any great detail. (See Dkt. 93 at 51-54). However, while the temporal proximity of the filing of the grievance
and an adverse action
is circumstantial
Williams, 111 F. Supp. 2d at 290; see Ayers v. Stewart, 101 F.3d 687, 1996 WL 346049 (Table), at *1 (2d Cir. 1996) (stating that the plaintiff‘s reliance on circumstantial evidence of retaliation—namely, the proximity of the disciplinary action to his complaint where no misbehavior reports were previously filed against him—does not suffice to defeat summary judgment
); see also Colon, 58 F.3d at 873 (If . . . circumstantial evidence represented the sum total of Colon‘s proof, we might be inclined to affirm the grant of summary judgment based on the weakness of Colon‘s case.
); see generally Flaherty, 713 F.2d at 13 (acknowledging the ease in which a plaintiff may manufacture a claim for retaliation, and stating that summary judgment is appropriate if the claim appears insubstantial). Furthermore, the sheer volume of grievances filed by Plaintiff diminishes the weight attributed to the temporal proximity of any of his retaliatory allegations. (See Dkt. 46 at ¶ 408 (alleging that Plaintiff filed about 155 grievances from March 25, 2010 through June 5, 2011
)); Andino v. Fischer, 698 F. Supp. 2d 362, 385 (S.D.N.Y. 2010) (While there is some proximity between the complaints and the alleged adverse actions, this results from the large number of complaints in a short period of time.
).
In addition, Plaintiff accumulated a lengthy disciplinary record while incarcerated. It is undisputed that [b]ecause Plaintiff had accumulated so much SHU time from incidents occurring prior to 2010, he did not serve
an SHU penalty imposed for an incident occurring in May 27, 2010, until over three years later in December 2013. (See Dkt. 59-1 at ¶ 22; Dkt. 93-1 at ¶ 22). The fact that Plaintiff was ultimately found guilty of at least certainly suggests that there was a valid basis for the issuance of the report, and [P]laintiff‘s conclusory assertion that it was retaliatory in nature fails to state a plausible claim,
Crenshaw v. Hartman, 681 F. Supp. 2d 412, 416 (W.D.N.Y. 2010); see White v. Bergenstock, No. 9:08-CV-717, 2009 WL 4544390, at *7 (N.D.N.Y. Nov. 25, 2009) (stating that since the charges in the misbehavior report have never been overturned[,] . . . there is no sufficient allegation that the misbehavior report was false in any material respect
); Cusamano v. Sobek, 604 F. Supp. 2d 416, 478 (N.D.N.Y. 2009) (noting that the plaintiff has alleged that he was ultimately convicted of the disciplinary charge leveled
against him and that the conviction was affirmed on appeal, plausibly suggesting that what caused him to receive the referenced misbehavior report was his own misconduct
). Furthermore, a large number of Plaintiff‘s allegations pertaining to the retaliatory conduct purportedly advanced against him are alleged upon information and belief.
(See, e.g., Dkt. 46 at ¶¶ 220, 241, 248, 272, 281, 328, 415, 418, 420, 422, 424, 428, 430, 432, 434, 438, 440, 442, 445, 450, 453, 456). [C]onclusory allegations
Little v. Massari, 526 F. Supp. 2d 371, 376-77 (E.D.N.Y. 2007); see Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 673, 677 n.4 (2d Cir. 2016) (upon information and belief,
as [P]laintiff advances here, cannot defeat summary judgment.The verified answer is stated only
[u]pon information and belief,
rather than on the basis of personal knowledge, and therefore may not be considered in opposition to summary judgment.
); cf. Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (upon information and belief . . . could not have been considered in the summary judgment motion
[A] verified pleading, to the extent that it makes allegations on the basis of the plaintiff‘s personal knowledge, and not merely on information and belief, has the effect of an affidavit and may be relied on to oppose summary judgment.
(emphasis added)).
The Court is cognizant of the Second Circuit‘s instruction to view claims of First Amendment retaliation in this context with care and skepticism given their potential for abuse. 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 (2002). Certainly, the number of grievances and sick-call requests filed by Plaintiff provide substantial fodder for the manufacture of numerous claims of retaliation. See generally Davidson v. Bartholome, 460 F. Supp. 2d 436, 444 (S.D.N.Y. 2006) (noting that the possibility of abuse
of a retaliation claim is ever present,
but was especially apparent in the instant case
where the plaintiff had filed approximately 150 previous lawsuits
). Indeed, in light of Plaintiff‘s failure to raise a triable issue of fact pertaining to his claim for deliberate medical indifference, as previously discussed, Plaintiff cannot sustain a viable claim for the retaliatory denial of constitutionally adequate medical treatment. See Bilal v. White, 494 F. App‘x 143, 147 (2d Cir. 2012) (As for the delay in Bilal‘s receipt of prescription pain medication, we conclude, for substantially the same reasons that we reject Bilal‘s Eighth Amendment claim, that the record presented fails to bring Bilal‘s retaliation claim within
(quoting Dawes, 239 F.3d at 493)); Vail v. Lashway, No. 9:12-CV-1245 (GTS/RFT), 2014 WL 4626490, at *19 (N.D.N.Y. Sept. 15, 2014) (dismissing a retaliation claim where the ambit of
there is no evidence that [the p]laintiff was ever deprived of adequate medical care,
and stating that the court‘s conclusion in this regard is, on its own, likely sufficient to grant summary judgment against [the p]laintiff‘s medical retaliation claims
); Cole v. Levitt, No. 07-CV-00767(M), 2009 WL 4571828, at *10 (W.D.N.Y. Dec. 4, 2009) (Having concluded that Dr. Levitt was not deliberately indifferent to plaintiff‘s medical needs, I likewise conclude that there is no evidentiary basis to conclude that her conduct was retaliatory.
); see generally Adams, 2015 WL 1312738, at *10 (stating that [e]ven where a complaint or affidavit contains specific assertions, the allegations may still be deemed conclusory if [they are] . . . largely unsubstantiated by any other direct evidence
(quotation omitted)).
Therefore, for the foregoing reasons, Plaintiff‘s First Amendment retaliation claim is dismissed.18
“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). The right of access to the courts “requires state prisons ‘to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.‘” Bellezza v. Holland, No. 09 CIV. 8434, 2011 WL 2848141, at *4 (S.D.N.Y. July 12, 2011) (quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)). “To state a claim for denial of access to the courts—in this case due to interference with legal mail—a plaintiff must allege that the defendant ‘took or was responsible for actions that hindered [a plaintiff‘s] efforts to pursue a legal claim.‘” Davis, 320 F.3d at 351 (quoting Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997)). “[P]risoners who bring a claim for the violation of a derivative right of access to the courts must demonstrate ‘actual injury’ in order to have standing.” Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008). “In other words[,] ‘the plaintiff must show that a non-frivolous legal claim had been frustrated or was being impeded due to the actions of prison officials.‘” Cancel v. Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001) (quoting Warburton v. Underwood, 2 F. Supp. 2d 306, 312 (W.D.N.Y. 1998)).
Nowhere in Plaintiff‘s submissions does he provide factual proof that a non-frivolous legal claim was frustrated due to the alleged interference with his legal mail. Instead, Plaintiff only alleges, in conclusory form, that “[a]s a result of the failure of [certain of his] legal documents to reach the court, Plaintiff‘s rights were violated in the
VIII. Failure to Provide Kosher Meals in Violation of the First Amendment‘s Free Exercise Clause
“The Free Exercise Clause of the First Amendment is an ‘unflinching pledge to allow our citizenry to explore . . . religious beliefs in accordance with the dictates of their conscience.‘” Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)). “Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment‘s Free Exercise Clause.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); see Jackson, 196 F.3d at 320 (“An inmate is therefore entitled to a reasonable accommodation of his religious beliefs.“). “The reach of the free exercise clause extends to ‘an inmate‘s diet and participation in religious meals.‘” Riehl v. Martin, No. 9:13-CV-439 GLS/TWD, 2014 WL 1289601, at *8 (N.D.N.Y. Mar. 31, 2014) (quoting Johnson v. Guiffere, No. 9:04-CV-57, 2007 WL 3046703, at *4 (N.D.N.Y. Oct. 17, 2007)); see Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 1992) (“[P]rison officials must provide a prisoner a diet that is consistent with his religious scruples.“). The right to participate in religious meals includes the right to a kosher diet. See Thaxton v. Simmons, No. 9:10-CV-1318 MAD/RFT, 2012 WL 360104, at *5 (N.D.N.Y. Jan. 5, 2012) (“Among those protected rights is the right to receive a kosher diet.“), report and recommendation adopted, 2012 WL 360141 (N.D.N.Y. Feb. 2, 2012).
“Whether or not brought by prisoners, free exercise claims often test the boundaries of the judiciary‘s competence, as courts are ‘singularly ill-equipped to sit in judgment on the verity of an adherent‘s religious beliefs.‘” Ford, 352 F.3d at 588 (quoting Patrick, 745 F.2d at 157)). “An individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are ‘sincerely held’ and in the individual‘s ‘own scheme of things, religious.‘” Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002) (quoting Patrick, 745 F.2d at 157). However, “scrutiny of the prisoner‘s sincerity is often essential in ‘differentiating between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud.‘” Ford, 352 F.3d at 588 (quoting Patrick, 745 F.2d at 157).
Recognizing that “the issue of sincerity can rarely be determined on summary judgment,” Snyder v. Murray City Corp., 124 F.3d 1349, 1353 (10th Cir. 1997), opinion vacated in part on reh‘g en banc on other grounds, 159 F.3d 1227 (10th Cir. 1998), and that “courts are not permitted to inquire into the centrality of a professed belief to the adherent‘s religion or to question its validity in determining whether a religious practice exists,” Fifth Ave. Presbyterian Church, 293 F.3d at 574, the Court nevertheless concludes that Plaintiff has failed to raise a triable issue of fact as to whether his beliefs are sincerely held, see generally Ochoa v. Connell, No. 9:05-CV-1068 GLSRFT, 2007 WL 3049889, at *7 (N.D.N.Y. Oct. 18, 2007) (“Ochoa fails to allege the nature and content of his beliefs, how he came to hold them, and what difference they have made in his life. Ochoa does not describe his participation in other religious activities such as Sabbath observances, dietary strictures, religious meetings, holy feast days, or other significant religious activities to which he purportedly adheres to so that we may comfortably determine that he has pled enough facts to establish that his beliefs are both religious and sincerely held.“). Accordingly, Plaintiff‘s First Amendment Free Exercise Clause claims are dismissed. See Farid v. Smith, 850 F.2d 917, 926 (2d Cir. 1988) (“Because Farid has neither alleged nor submitted any proof that he sincerely holds to any religious belief that mandates the use of Tarot cards, we conclude that summary judgment was appropriate on the free exercise claim.“).
IX. Plaintiff‘s Equal Protection Clause and Section 1985 Causes of Actions
A. Equal Protection Claim
“The Equal Protection Clause of the Fourteenth Amendment ‘is essentially a direction that all persons similarly situated should be treated alike.‘” Barnes v. Ross, 926 F. Supp. 2d 499, 506 (S.D.N.Y. 2013) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). “In order to prove a violation of the Equal Protection Clause, a plaintiff must demonstrate evidence of ‘purposeful discrimination . . . directed at an identifiable or suspect class.‘” Harnage v. Caldonero, No. 3:16CV1876(AWT), 2017 WL 2190057, at *3 (D. Conn. May 18, 2017) (quoting Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995)).
“When a plaintiff alleges an equal protection violation (without also alleging discrimination based upon membership in a protected class), the plaintiff must plausibly
Overall, “to succeed on a class-of-one claim, a plaintiff must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.”
Progressive Credit Union, 889 F.3d at 49 (quoting Ruston v. Town Bd. for Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010)).
It is unclear whether Plaintiff has asserted a “class of one” equal protection claim, but to the extent that he has attempted to do so, Plaintiff “has not alleged sufficient facts to show the requisite degree of similarity to” any other inmate. Harnage, 2017 WL 2190057, at *3; see Riley v. Roycroft, No. 16 CV 2227 (VB), 2017 WL 782917, at *8 (S.D.N.Y. Feb. 28, 2017) (granting motion to dismiss where the plaintiff alleges that he was not given certain medication that “was provided to other inmates with the same medical condition,”
B. Plaintiff‘s § 1985 Claim
Similarly, Plaintiff‘s allegations that Defendants unlawfully conspired to violate his constitutional rights in contravention of
A conspiracy claim under Section 1985(3) requires a plaintiff to allege: “1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.”
Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (quoting Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006)).
Because Plaintiff has failed to demonstrate that any conspiracy to violate his constitutional rights arose due to his membership in a protected class, Plaintiff‘s § 1985(3) claim is without merit. In Katz v. Klehammer, 902 F.2d 204 (2d Cir. 1990), the Second Circuit found that the plaintiff‘s “complaint is completely devoid of any claim of class-based animus, whether economic, political, or otherwise,” and found that the § 1985(3) claim “was properly dismissed as frivolous.” Id. at 208 (noting also that the Supreme Court has “strictly construed” the requirement that plaintiffs demonstrate class-based animus). “The Supreme Court added a ‘class-based animus’ requirement to § 1985(3) to prevent it from being broadly, and erroneously, interpreted as providing a federal remedy for ‘all tortious, conspiratorial interferences with the rights of others.‘” Malsh, 901 F. Supp. at 764 (quoting Jews for Jesus, Inc., 968 F.2d at 291); see Dolan, 794 F.3d at 296 (stating that “the term class ‘unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors‘” and to
X. Plaintiff‘s Official Capacity Claims
Defendants argue that “Plaintiff sues certain defendants in their official and individual capacities” (Dkt. 59-2 at 69), although Defendants do not cite to any allegation suggesting that Plaintiff seeks recourse against any defendant in his or her official capacity. However, to the extent Plaintiff seeks such relief, the Eleventh Amendment bars Plaintiff‘s official-capacity causes of action. See Gray-Davis v. New York, No. 5:14-CV-1490 GTS/TWD, 2015 WL 2120518, at *7 (N.D.N.Y. May 5, 2015) (“The Eleventh Amendment has been found to bar official capacity claims for money damages against [DOCCS]
XI. The Failure to Demonstrate the “Personal Involvement” of Several Named Defendants
Plaintiff has also failed to allege the personal involvement of several of the named defendants in any of the purported constitutional violations set forth in his SAC and supplemental papers. “Because Section 1983 imposes liability only upon those who actually cause a deprivation of rights, ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.‘” Blyden, 186 F.3d at 264 (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Correctional officer Matthew Null (“C.O. Null“) is only alleged to have instructed Plaintiff to stand back from his prison cell door so that “C.O. Null could observe whether Plaintiff was wearing pants.” (Dkt. 46 at ¶ 324). This allegation fails to implicate C.O. Null in an unconstitutional act or any other wrongful conduct. As such, any claim asserted against C.O. Null is dismissed.
Correctional officers Jason Lortus (“C.O. Lortus“) and M. Ranger (“C.O. Ranger“) are alleged to have denied Plaintiff medical attention after Nurse Cheasman allegedly hit Plaintiff‘s hands with a bucket. (Id. at ¶ 213). Plaintiff alleges that the incident was not
Similarly, Plaintiff has named the Assistant Commissioner of DOCCS Mental Health Services, Diane Vanburen, as a defendant, but has not set forth any allegations that plausibly suggest her personal involvement in any constitutional violation. (Dkt. 46 at ¶ 86). The same can be said for defendant Eileen R. Diniston, the Regional Health Services Administrator (id. at ¶ 72), as well as Acting Deputy Superintendent Thomas Tanea (Dkt. 93-5 at 3). No allegations of wrongdoing are asserted against these defendants as well. As a result, they too are terminated from this action.
Relatedly, insofar as Plaintiff seeks relief for Defendants’ failure to take action on his grievances or to process his administrative appeals (see, e.g., Dkt. 46 at ¶¶ 248, 264, 271, 313, 320, 408-09, 413), these allegations fail to state a constitutional claim under § 1983. “Generally, the receipt of a letter is insufficient to establish personal involvement under § 1983. Instead, courts typically require something more before finding personal involvement.” Ward v. Rabideau, 732 F. Supp. 2d 162, 169 (W.D.N.Y. 2010) (citations omitted); see Candelaria v. Higley, No. 04-CV-277A, 2008 WL 478408, at *2 (W.D.N.Y. Feb. 19, 2008) (“Numerous courts have held that merely writing a letter of complaint does not provide personal involvement necessary to maintain a § 1983 claim.“); Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002) (“Personal involvement will be
Furthermore, “[g]rievance procedures are the internal procedures and requirements of DOCCS, and as such, prison inmates neither have a constitutionally protected right to a grievance procedure, nor, as a general rule, is there a federal right to have them properly administered.” Gomez v. Sepiol, No. 11-CV-1017SR, 2014 WL 1575872, at *15 (W.D.N.Y. Apr. 11, 2014) (citations omitted); see Shell v. Brzezniak, 365 F. Supp. 2d 362, 370 (W.D.N.Y. 2005) (“If prison officials ignore a grievance that raises constitutional claims, an inmate can directly petition the government for redress of that claim.“). “Therefore, the refusal to process an inmate‘s grievance or failure to see to it that grievances are properly processed does not create a claim under § 1983.” Cancel v. Goord, 2001 WL 303713, at *3. In addition, because “[t]here is no constitutional right to an inmate appeals process,” Dolberry v. Levine, 567 F. Supp. 2d 413, 416 (W.D.N.Y. 2008) (quoting Washington v. Early, No. 103CV05263LJOSMSPC, 2008 WL 795603, at *15 (E.D. Cal. Mar. 24, 2008), report and
XII. Plaintiff‘s Claim for the Failure to Intervene
Lastly, “because ‘[t]here can be no failure to intervene . . . where there was no constitutional violation,‘” Hardy v. Daly, No. 17-2906, 2018 WL 4631831, at *1 (2d Cir. Sept. 26, 2018) (quoting Tavares v. City of New York, No. 08 Civ. 3782, 2011 WL 5877550, at *7 (S.D.N.Y. Oct. 17, 2011)), Plaintiff‘s cause of action for the failure to intervene is dismissed, except insofar as Plaintiff has sufficiently stated such a claim associated with the use of excessive force claims that have been permitted to proceed.
XIII. The Matter is Stayed Pending the Resolution of Defendants’ Motion to Revoke Plaintiff‘s IFP Status
Because some of Plaintiff‘s claims survive Defendants’ motion for partial summary judgment, and Defendants’ motion to revoke Plaintiff‘s IFP status is held in abeyance pending the Second Circuit‘s decision in Shepherd, the Court sua sponte considers whether to stay the balance of this action until Defendants’ revocation motion can be resolved.
“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see Javier H. v. Garcia-Botello, 218 F.R.D. 72, 74 (W.D.N.Y. 2003) (“[A] ‘federal district court has the inherent power, in the exercise of its discretion, to stay an action.‘” (quoting Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007, 1010 (E.D.N.Y. 1992))). “Accordingly, the decision to issue a stay is ‘firmly within a district court‘s discretion.‘”
In determining whether to stay a lawsuit, courts weigh the following factors:
- the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed;
- the private interests of and burden on the defendants;
- the interests of the courts;
- the interests of persons not parties to the civil litigation; and
- the public interest.
Luv N’ Care, Ltd. v. Regent Baby Prod. Corp., No. 10 CIV. 9492, 2014 WL 572524, at *2 (S.D.N.Y. Feb. 13, 2014) (quoting Kappel v. Comfort, 914 F. Supp. 1056, 1058 (S.D.N.Y. 1996))).
Under the facts presented here, a stay would not unduly prejudice Plaintiff. In fact, considering the robust medical documentation submitted by Defendants on this motion, and the law as it currently stands in this Circuit, Plaintiff faces an uphill battle to persuade the Court that he may maintain his IFP status. To be sure, the Second Circuit may solidify the approach presently used by courts in this Circuit to evaluate such motions. However, it may also divert from this approach, or, at the very least, elucidate nuances thereof in a
Accordingly, the Court finds that it is in the interests of justice to require this action be stayed pending the resolution of Defendants’ motion to revoke Plaintiff‘s IFP status.
CONCLUSION
For the foregoing reasons, Defendants’ motion for partial summary judgment (Dkt. 59) is granted in part and denied in part, and Defendants’ motion to revoke Plaintiff‘s IFP status (Dkt. 59) is held in abeyance pending the Second Circuit‘s decision in Shepherd v. Annucci, No. 17-2261 (2d Cir. July 21, 2017). To the extent Plaintiff asserts § 1983 excessive use of force and related failure to intervene claims as well as common law causes of action against Barry Countryman, Jacob Smith, Richard Cioffa, Correctional Officer
SO ORDERED.
ELIZABETH A. WOLFORD
United States District Judge
Dated: March 15, 2019
Rochester, New York
Notes
Slater contends that [the d]efendants and other medical providers falsified his medical records by not accurately recording his complaints and minimizing his conditions. But Slater has presented no evidence to support this allegation, which is essentially a denial of [the d]efendants’ evidence.(citation omitted)). Here, because Nurse Cheasman is alleged to have herself committed an act of excessive force against Plaintiff—and because the Court is required to view Plaintiff‘s sworn allegations in the light most favorable to him—the Court is not prepared to give dispositive weight to the very medical progress notes that Nurse Cheasman is arguably tasked with maintaining. In other words, Defendants cannot simply point to the absence of any medical evidence where those same medical records are kept and maintained by the person charged with the use of unconstitutional force. This is, by itself, insufficient to carry Defendants’ burden on a motion for summary judgment.
claim fails because an inmate(quoting Davidson v. Bartholome, 460 F. Supp. 2d 436, 446 (S.D.N.Y. 2006) (dismissing retaliation cause of action where the defendanthas no right to redress simply because [an officer] made a hostile or derogatory comment about him.
became hostile and began cursingat the plaintiff and told the plaintiff
that he was going to issue him a))); see also Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (falsemisbehavior ticket
The claim that a prison guard called Purcell names also did not allege any appreciable injury and was properly dismissed.).