LaPierre v. LavalleyLaPierre v. Lavalley
- Reporters:
- ,
- Before:
- Daniel J. Stewart
I. INTRODUCTION
On December 18, 2015, pro se Plaintiff Mark A. LaPierre commenced this action pursuant to
Presently before this Court is Defendants’ Motion for Summary Judgment. Defendants contend that Plaintiff failed to exhaust his administrative remedies as to his claims regarding Defendants Guynup, LaValley, Delisle, and Russell, and that Plaintiff‘s Eighth Amendment claim against Defendant Vadlamudi fails as a matter of law. Dkt. No. 79, Defs.’ Mot. Summ. J. Plaintiff opposes Defendants’ Motion for Summary Judgment, Defendants have replied, and Plaintiff has provided supplemental responses. Dkt. No. 90, Pl.‘s Opp.; Dkt. No. 91, Defs.’ Reply; Dkt. Nos. 92 & 93, Pl.‘s Supp. Resp. The Court finds that Plaintiff: (1) failed to exhaust his administrative remedies; and (2) failed to show there is a material question of fact as to whether Dr. Vadlamudi was deliberately indifferent to his serious medical needs and therefore recommends that the Motion be granted.
Plaintiff alleges that while housed at Clinton on December 21, 2012, he was the victim of an assault by DOCCS staff and was subsequently denied medical treatment for injuries associated with that assault. Am. Compl. at pp. 11-12. These allegations are made as to Defendants Delisle, LaValley, Guynup and Russell, who have denied the allegations made by Plaintiff. Id.; see also Dkt. Nos. 72 & 76. The particular facts underlying these allegations are not relevant to the Motion and, therefore, are not discussed in detail. There is no record of a grievance being filed with respect to this incident. See Dkt. Nos. 79-6, Pickett Decl.; 79-7, Pfendler Decl.; 79-10, Gregory Decl.
Plaintiff was subsequently transferred to Downstate Correctional Facility from Clinton on December 28, 2012 and was seen in the infirmary, given an x-ray that revealed that Plaintiff‘s ninth rib was fractured, and he was prescribed pain medication. Dkt. No. 79-13, Vadlamudi Decl. at ¶¶ 3-4. Plaintiff was transferred to Marcy and was subsequently examined by Dr. Vadlamudi who prescribed Plaintiff Tylenol or Ibuprofen to treat his pain and issued Plaintiff a permit limiting him to a bottom bunk. Vadlamudi Decl. at ¶¶ 4-6. Plaintiff was then transferred again and did not return to Marcy until March 2013. Id. at ¶ 7.
Plaintiff again presented to Dr. Vadlamudi complaining of back and shoulder pain on March 21, 2013. Vadlamudi Decl. at ¶ 8. Plaintiff disputes that Dr. Vadlamudi properly examined or treated him at that time. Pl.‘s Opp. at ¶ 20. Plaintiff requested an MRI, but Dr. Vadlamudi determined that an MRI was not medically indicated at that time and prescribed Tylenol or Ibuprofen and ice to Plaintiff. Id. at ¶¶ 8 & 10.
On March 28, 2013, Plaintiff filed a grievance complaining of the treatment he received from Dr. Vadlamudi during his January 22nd visit and March 21st visit. Pfendler Decl. at ¶ 7 & Ex. B. The Inmate Grievance Review Committee (“IGRC“) at Marcy did not reach a determination as to the merits of Plaintiff‘s grievance, and the grievance was appealed to and later denied by the Superintendent after which Plaintiff again appealed to the Central Office Review Committee (“CORC“). Pfendler Decl., Ex. B. at pp. 1 & 13. On September 18, 2013, the CORC upheld the Superintendent‘s determination as to Plaintiff‘s grievance relating to Dr. Vadlamudi‘s treatment at Marcy. Id. at p. 1.
III. LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant.
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he trial court‘s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P‘ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must “read his supporting papers liberally, and [ ] interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Defendants seek summary judgment as to all claims, other than those against Dr.
A. Exhaustion Procedure
The Prison Litigation Reform Act (“PLRA“) provides, in pertinent part, that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
In New York, the administrative remedies consist of a three-step Inmate Grievance Program (“IGP“). First, a grievance is submitted to the Inmate Grievance Resolution Committee (“IGRC“), a committee comprised of both inmates and facility employees.
The record before the Court establishes that DOCCS has no record of any grievance being filed by Plaintiff regarding the December 2012 incident that allegedly occurred at Clinton Correctional Facility. See generally Pickett Decl.; Pfendler Decl.; & Gregory Decl. Plaintiff contends that he did file a handwritten grievance while housed at Downstate Correctional Facility. Dkt. No. 90, Pl.‘s Affirm. at ¶ 27. Plaintiff also generally argues that the DOCCS grievance process was not available to him within the meaning of Ross and that any failure to fully exhaust should be excused. Dkt. No. 90-2, Pl.‘s Mem. of Law at pp. 9-15. Plaintiff‘s arguments lack merit and the Court recommends that the Motion for Summary Judgment be granted based on Plaintiff‘s failure to exhaust.
1. Whether Plaintiff Actually Filed a Grievance
Initially, Plaintiff‘s conclusory allegation that he filed a grievance that “disappeared,” Pl.‘s Mem. of Law at p. 12, is insufficient to raise a question of fact regarding exhaustion. “Courts have consistently held [ ] that an inmate‘s general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” Rosado v. Fessetto, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010); see also Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“Courts in this Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.“); Artis v. Dishaw, 2016 WL 11266599, n.13 (N.D.N.Y. Sept. 12, 2016) (finding that plaintiff‘s failure to exhaust was not excusable,
December 29th or December 30th. I wrote the D.O.C. I wrote the Inspector. I asked for a grievance. They would not give me one. Up in the infirmary where I was locked up, they said they didn‘t have any. I had been interviewed by – by the D.O.C.C.S. O.S.I. agent, M. Smith on January 11th. I explained everything to him. He took extensive notes, which are – all seem to be missing. I tried to file a grievance when I got back to G Unit and in our unit – in G Unit, I was only there a very short time, but they didn‘t have any grievances. So, I put in a request for Law Library. I never got to go.
Dkt. No. 91-2, Pl.‘s Dep. at p. 79. Indeed, rather than stating that he filed a grievance, Plaintiff‘s testimony recounts only his inability to do.
In addition, Plaintiff makes no allegation that he ever received a response to his handwritten grievance or that he acted to follow-up on that grievance when he did not receive a response. Under DOCCS regulations, a grievance not decided within applicable time limits may be the subject of an appeal.
Under these circumstances, the record before the Court establishes that Plaintiff did not file a grievance2 regarding the alleged assault at Clinton. He, therefore, did not exhaust his administrative remedies.
2. Whether Plaintiff‘s Failure to Exhaust Administrative Remedies May be Excused
A prisoner‘s failure to exhaust administrative remedies may nonetheless be excused if remedies were unavailable to the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the Supreme Court stated in Ross, “[a]n inmate . . . must exhaust available remedies, but need not exhaust unavailable ones.” Id. The Court provided three potential circumstances in which administrative remedies may be unavailable: (1) where the administrative procedure technically exists but operates as a “dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates“; (2) where the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use“; and (3) where prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.
Plaintiff cannot demonstrate either that the DOCCS grievance program operates as a dead end or is “so opaque that it becomes, practically speaking, incapable of use.” Id. Despite his assertion that the grievance system “in 2012/2013 was [o]paque and impossible to follow,” Pl.‘s Mem. of Law at p. 13, Plaintiff appears to have had no difficulty in navigating the three step grievance process between March 2013 and September 2013 when he filed and appealed, both to the Superintendent and CORC, a grievance regarding his medical care at Marcy Correctional Facility. Pfendler Decl. at Ex. B.
This shows that Plaintiff did not view the filing of grievances as a dead end. It also demonstrates that he clearly understood DOCCS’ inmate grievance policy and could navigate it when he wished to pursue a grievance. As such, the first two exceptions identified under Ross are not applicable here.
Walker v. Ball, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018), report and recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018); see also Gonzalez v. Coburn, 2017 WL 6512859, at *6 (W.D.N.Y. Dec. 20, 2017) (“Plaintiff‘s decision to affirmatively participate at all three levels in the inmate grievance program demonstrates that the program was neither a dead-end nor so opaque that Plaintiff could not avail himself of it.“).
Plaintiff also seeks to invoke the third basis for unavailability identified in Ross by asserting that “prison officials thwarted the Plaintiff through machination, misrepresentation, threats and intimidation, from . . . filing a grievance or seeking medical attention.” Pl.‘s Mem of Law at pp. 11-12.
Under Ross, threats or other intimidation by prison employees may render administrative remedies unavailable. Ross v. Blake, 136 S. Ct. at 1860, n.3. However, on this record such a contention is inconsistent with Plaintiff‘s assertions that he did properly grieve the assault, and with Plaintiff‘s filing of grievances after that time. See, e.g., Pl.‘s Mem. of Law at p. 12; Pfendler Decl. Ex. B; Gough v. Morris, 2018 WL 7199494, at *5 (N.D.N.Y. Dec. 14, 2018), report and recommendation adopted, 2019 WL 416150 (N.D.N.Y. Feb. 1, 2019); Crawford v. Baltazar, 2018 WL 2041711, at *6 (S.D.N.Y. Apr. 30, 2018).
Instead, Plaintiff‘s allegations amount to a “generalized fear of retaliation” without allegations of any specific threats or other actions that would prevent him from filing a grievance regarding the alleged assault. Such allegations are insufficient to excuse a failure to exhaust. See Brown v. Napoli, 687 F. Supp. 2d 295, 297 (W.D.N.Y. 2009) (“[P]laintiff‘s mere allegation of a generalized fear of retaliation is insufficient to excuse his failure to file a grievance[.]“); see also Rodriguez v. Cty. of Suffolk, 2014 WL 3531897, at *5 (E.D.N.Y. June 30, 2014) (“Courts tend to find mere ‘generalized fear’ when no actual threat was made.“) (internal citation omitted). This is particularly true given that Plaintiff was transferred out of Clinton to Downstate Correctional Facility soon after the alleged assault and makes no credible threat of harm at Downstate. There is no evidence in the record that suggests that Plaintiff reasonably feared retaliation by any personnel at Downstate or that administrative remedies were otherwise unavailable to him there. See Contino v. City of New York, 2013 WL 4015816, at *6 (S.D.N.Y. Aug. 7, 2013) (“An inmate‘s fear that disciplinary actions will be taken against him if he proceeds with
Plaintiff also appears to contend that he satisfied the exhaustion requirement via informal means: his Complaint describes letters he wrote to officials and states that he was interviewed by the Inspector General. Plaintiff alleges that Lt. Olmstead stated, “that since the Inspector General‘s Office was involved, the issue was . . . a ‘non-grievable matter.‘”3 Am. Compl. at pp. 14-15. However, the described interactions, indicating that prison officials were likely aware of the nature of Plaintiff‘s complaint, are insufficient to constitute “proper exhaustion.” See Davis v. Doe, 2017 WL 8640829, at 3 (N.D.N.Y. Dec. 29, 2017); see also Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (“Alerting the prison officials as to the nature of the wrong for which redress is sought, does not constitute ‘proper exhaustion.‘“) (internal citation omitted)). “Regardless of whether . . . informal complaints put the prison officials on notice of his grievance ‘in a substantive sense,’ . . . to satisfy the PLRA a prisoner must also procedurally exhaust his available administrative remedies.” Macias v. Zenk, 495 F.3d at 43.
V. EIGHTH AMENDMENT DELIBERATE MEDICAL INDIFFERENCE
A. Legal Standard
To state an Eighth Amendment claim for denial of adequate medical care, a prisoner must demonstrate that prison officials acted with “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “[T]he plaintiff must allege conduct that is ‘repugnant to the conscience of mankind’ or ‘compatible with the evolving standards of decency that mark the progress of a maturing society.‘” Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y.), aff‘d, 970 F.2d 896 (2d Cir. 1992) (quoting Estelle v. Gamble, 429 U.S. at 102, 105-06). To state a claim for denial of medical care, a prisoner must demonstrate (1) a serious medical condition and (2) deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Hathaway v. Coughlin (“Hathaway I“), 37 F.3d 63, 66 (2d Cir. 1994).
The first prong is an objective standard and considers whether the medical condition is “sufficiently serious.” Farmer v. Brennan, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). The Second Circuit has stated that a medical need is serious if it presents “a condition of urgency that may result in degeneration or extreme pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citation omitted). Among the relevant factors to consider are “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment
The second prong of the Eighth Amendment analysis is a subjective standard requiring a plaintiff to demonstrate that the defendant acted with the requisite culpable mental state similar to that of criminal recklessness. Wilson v. Seiter, 501 U.S. at 301-03; Hathaway I, 37 F.3d at 66. A plaintiff must demonstrate that the defendant acted with reckless disregard to a known substantial risk of harm. Farmer v. Brennan, 511 U.S. at 836. This requires “something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835; see also Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. at 835). Further, a showing of medical malpractice is insufficient to support an Eighth Amendment claim unless “the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces ‘a conscious disregard of a substantial risk of serious harm.‘” Chance v. Armstrong, 143 F.3d at 702 (quoting Hathaway v. Coughlin (“Hathaway II“), 99 F.3d 550, 553 (2d Cir. 1996)); see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citations omitted).
B. Analysis
Plaintiff claims that Dr. Vadlamudi was deliberately indifferent to his serious medical needs based on three occasions where Dr. Vadlamudi was dismissive of his requests for further testing and for stronger pain medication to alleviate the pain
1. Objective Standard: Sufficiently Serious Medical Condition
As a preliminary matter, Defendants do not contest the seriousness of Plaintiff‘s injuries for which he sought medical treatment. Medical records ranging from January of 2013 to June of 2013 indicate that Plaintiff repeatedly reported to sick call and presented to different medical personnel throughout that time period complaining of discomfort and chronic pain in his neck, back, shoulder, and pain radiating from his ribs. See generally Dkt. No. 80. Severe pain, especially if lasting an extended period of time, can amount to a “serious medical need” under the Eighth Amendment. See, e.g., Hathaway v. Coughlin, 37 F.3d at 67 (finding Plaintiff with degenerative hip condition who experienced great pain over an extended period of time and had difficulty walking had “serious medical needs“). Moreover, “chronic pain can be a serious medical condition.” Price v. Reilly, 697 F. Supp. 2d 344, 363 (E.D.N.Y. 2010) (citing Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003)). The Court finds that Plaintiff‘s repeated complaints of extreme pain and discomfort relating to back and right shoulder pain at sick call are sufficiently serious conditions to satisfy, at least for purposes of this Motion, the objective prong of the Eighth Amendment analysis.
2. Subjective Standard: Conscious Disregard
Construing the evidence in the light most favorable to Plaintiff, the facts in the record fail to demonstrate that Dr. Vadlamudi acted with the requisite deliberate indifference to Plaintiff‘s serious medical needs. Instead, the record indicates that Plaintiff‘s claim that Dr. Vadlamudi was deliberately indifferent to his serious medical needs amounts to a difference in opinion as to medical treatment.
Dr. Vadlamudi‘s Declaration indicates that he saw Plaintiff on four different occasions: January 18, 2013, January 22, 2013, March 21, 2013, and May 23, 2013. Vadlamudi Decl. at ¶¶ 5, 6, 8, & 9. During Plaintiff‘s first visit with Dr. Vadlamudi, Dr. Vadlamudi ordered Tylenol 3 for Plaintiff and put in an order permitting him to use the bottom bunk in his cell. Id. at ¶ 5. Plaintiff then presented to Dr. Vadlamudi on January 22, 2013 complaining of “extensive physical pain” in his spine, neck, and shoulder pain and requested further testing to “determine the extent of the damage.” Am. Compl. at p. 17; Vadlamudi Decl. at ¶ 6. Based on his observations during that visit, Dr. Valdamudi determined that Plaintiff had a cervical strain, but further testing was not indicated at that time and ordered Tylenol or Ibuprofen for Plaintiff to treat his pain. Am. Compl. at p. 17; Vadlamudi Decl. at ¶ 6. On March 21, 2013,4 Dr. Vadlamudi again examined Plaintiff and it was documented in his progress note that Plaintiff presented with restricted motion in his right shoulder in addition to complaining of back pain. See Vadlamudi Decl. at ¶ 8; see also Dkt. No. 80 at p. 12. Dr. Vadlamudi contends that after examining Plaintiff
Plaintiff states in his opposition papers that Dr. Vadlamudi did not “examine” him during visits, that his complaints were only listed, and that Dr. Vadlamudi was deliberately indifferent to his medical needs. See generally Dkt. No. 90. However, Plaintiff has failed to show a genuine dispute of material fact as to whether Dr. Vadlamudi had the requisite culpable state of mind to establish an Eighth Amendment violation. First, the record revealed that, contrary to Plaintiff‘s position, Dr. Vadlamudi did see and treat Plaintiff on four different occasions. At the very least, the visits referenced in Dr. Vadlamudi‘s declaration indicate that Plaintiff was in fact examined and/or prescribed pain medication on every single occasion. Vadlamudi Decl. at ¶¶ 5, 6, 8, & 9. Second, Plaintiff‘s grievance specifically requested stronger pain medication and diagnostic testing in the form of x-rays and MRIs. Dkt. No. 79-9 at p. 2. “It is well-established that mere disagreement over the proper treatment does not create a constitutional claim.” Chance v. Armstrong, 143 F.3d at 703. The law is clear that “the fact that a prisoner
A. Timeliness of the Motion for Summary Judgment
Plaintiff contends in his Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment that Defendants failed to timely file their Motion for Summary Judgment pursuant to
B. The Failure to Name Defendant Russell in the Notice of Motion
Additionally, Plaintiff argues that because Defendants did not include Defendant Russell when they addressed Plaintiff‘s failure to exhaust administrative remedies in a portion of their argument in their Memorandum of Law that his claim against this particular Defendant should stand. See Pl.‘s Mem. of Law at p. 9. Defendants’ Reply identifies this as a “scrivener‘s error” that does not prejudice Plaintiff in any way since the exhaustion argument equally applies to all relevant Defendants in relation to the
VII. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that Defendants’ Motion for Summary Judgment (Dkt. No. 79) be GRANTED and that Plaintiff‘s Amended Complaint be DISMISSED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to
Albany, New York
Daniel J. Stewart
U.S. Magistrate Judge