Micolo v. FullerMicolo v. Fuller
- Reporters:
- ,
- Before:
- Michael A. Telesca
Proceeding pro se, inmate Marcus Anthony Micolo (“Micolo” or “Plaintiff“) instituted this action pursuant to
The precipitating event in this case was a use-of-force incident that occurred during a cell extraction of Plaintiff on January 29, 2015, at Five Points Correctional Facility (“Five Points“). Plaintiff‘s supporting allegations against the moving defendants cover a number of disparate topics. To avoid unnecessary repetition, the facts pertinent to the alleged constitutional violations will be set forth below in the sections addressing the various defendants’ arguments in favor of summary judgment.
GENERAL LEGAL PRINCIPLES
I. 42 U.S.C. § 1983
In order to state a claim under
II. Summary Judgment Standard
Summary judgment may be granted only when the moving party demonstrates that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”
The “mere existence of a scintilla of evidence” supporting the non-moving party‘s cause is insufficient. Anderson, 477 U.S. at 252. The non-moving party may not rely on evidence that is merely colorable, conclusory, or speculative but must come forward with “concrete evidence from which a reasonable jury could return a verdict in [his] favor.” Id. at 256.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. Claims Against Nurse Salotti, Nurse Jones, and Nurse Administrator Jensen
A. Medical Treatment on January 29, 2015
Plaintiff alleges that following the cell extraction and use-of-force on January 29, 2015, he was taken to the Facility‘s medical unit and examined by Nurse Jones (“Jones“), Nurse Kristin M. Salotti (“Salotti“), and Nurse Administrator Robert Jansen (“Jansen“). Jones examined Plaintiff and noted a 1-inch laceration above his left eyebrow; a 3-inch laceration to right side of Plaintiff‘s face, across the temple into the hairline; a 3-inch area of abrasion to left mid-back; and a 1/2-inch abrasion to the inside of the right wrist. Plaintiff states that he informed Salotti and Jansen that he had undergone facial surgery in 2004, when “two titanium plates were put in his face.” (Complaint (“Comp.“) ¶ 101). Plaintiff complained of facial pain and asked for
After Plaintiff‘s wounds were cleaned, Salotti offered to “administer sutures or [to] glue the injury closed” over his left eye, but Plaintiff did not trust her and refused. (Comp. ¶ 112). Salotti then left the room. Plaintiff states that he would have accepted placement of “terry strips,” which Salotti allegedly mentioned during the examination, in lieu of sutures or glue, and complains that Salotti failed to utilize “terry strips.” (Id. ¶ 113).
Plaintiff also complains that Salotti and Jansen did not inquire about any other injuries “other than . . . what they wanted to see.” (Id. ¶ 107). He also complains that he was experiencing lower back pain in the area where he had undergone lumbar surgery in 2014, and that Salotti and Jansen erroneously denied his request for a “cat-scan” of his back. He asserts that Salotti and Jansen failed to clean lacerations he had sustained on his ankles, right hand, and back, (Id. ¶¶ 114-15), but this is belied by the treatment note and Salotti‘s declaration. Plaintiff did not inform Salotti, Jansen, and Jones about any other injuries.
“To prevail on an Eighth Amendment claim of inadequate medical care, a plaintiff must show two things: (1) that he or she had a sufficiently serious medical need; and (2) that the defendant was deliberately indifferent to that serious medical need.” Dallio v. Hebert, 678 F. Supp. 2d 35, 60 (N.D.N.Y. 2009) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); emphases in original). There are thus two components to a deliberate indifference claim: the inmate must have a medical need which is objectively serious, and the defendant must have a state of mind which is subjectively culpable.
The “sufficiently serious” standard contemplates “a condition of urgency, one that may produce death, degeneration, or extreme pain[,]” Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting) (cited with approval in Hathaway, 37 F.3d at 66). Here, even accepting as true the existence of all of the injuries alleged by Plaintiff in his Complaint, and not just those that are reflected in the medical record,1 Plaintiff has failed to establish a genuine issue of material fact as to whether he suffered from a sufficiently serious medical need. See Dallio, 678 F. Supp. 2d at 60 (“Crediting Plaintiff‘s version of his injuries, the evidence shows that he suffered two black eyes, bruising in his kidney area on his left side, kick marks and open lacerations on his knees, bruising and red spots on his thigh, lacerations on his arms and wrists, a headache, and numbness in his hands and fingers. None of these are conditions of urgency that may produce death, degeneration, or
Even assuming arguendo that Micolo did suffer from one or more sufficiently serious medical needs, there is no genuine issue of fact regarding the subjective component of the test, which “requires more than negligence [on the prison official‘s part], but less than conduct undertaken for the very purpose of causing harm.” Hathaway, 37 F.3d at 66 (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). “[A] prison official does not act in a deliberately indifferent manner unless that official ‘knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the
First, Jones is barely mentioned in the Complaint; the only omission attributed to Jones is a failure to record all of Plaintiff‘s alleged injuries in the treatment note. However, this alleged omission does not amount to a constitutional violation. See, e.g., Bloomfield v. Wurzberger, No. 9:08-CV-619 (GLS/RFT), 2009 WL 3335892, at *5 (N.D.N.Y. Oct. 15, 2009) (“The filing of a false entry in medical records, without more, does not constitute a constitutional violation.“) (citing Benitez v. Locastro, No. 9:04-CV-423, 2008 WL 4767439, at *11 (N.D.N.Y. Oct. 29, 2008) (allegation that defendants falsified plaintiff‘s medical records did not state a valid § 1983 claim); other citation omitted).
Turning to Salotti and Jansen, the Court finds that their declarations demonstrate that there is no genuine issue of material fact regarding their state of mind. Salotti, under Jansen‘s observation, examined Plaintiff, cleaned his facial wounds with saline solution, and offered to provide sutures or glue for the 1-inch laceration above his left eyebrow, which Plaintiff refused.
Here, the Court is presented with a “mere disagreement” over the proper treatment plan. Plaintiff was offered what Salotti stated was the optimal treatment (sutures or glue) for his facial laceration, but he declined it. Salotti avers that the treatment Plaintiff chose (dressing and tape) did not subject him to a risk
To the extent that Plaintiff contends that he needed to be taken to a hospital for a computed topography (“CT“) scan and sutures, these claims are without merit. First, Plaintiff has failed to raise an issue of fact regarding Salotti‘s qualifications to administer sutures. Second, it is evident from the record that a CT scan not medically necessary since Plaintiff‘s laceration, which was treated with bandages, antibiotic ointment, and tape, healed without incident. Moreover, the other injuries of which Plaintiff complained likewise appear to have healed without any complications, based on the medical records provided to the Court.
Finally, to the extent that Plaintiff complains that his pain complaints were not adequately addressed, and that Salotti illegally disobeyed a purported “no crush” order for his pills, the
The deliberate medical indifference claims against Jones, Salotti, and Jansen based on the treatment they provided on January 29, 2015, are dismissed as a matter of law. Jones, Salotti, and Jansen are dismissed as defendants in this action.
B. Medical Treatment after January 29, 2015
To the extent that Plaintiff complains of inadequate medical
The Prison Litigation Reform Act of 1995 (“PLRA“) states in relevant part that “[n]o action shall be brought with respect to prison conditions under [
The records submitted by Defendants show that over the course of his incarceration in DOCCS, Plaintiff has appealed approximately 50 grievances to the CORC. With regard to the time-frame relevant here, Plaintiff completed the required three-level review with regard to 13 grievances filed between December 2014, and March 2015, at Five Points Correctional Facility. Six of these grievances were filed after the use of force incident on January 29, 2015. However, none of the grievances filed on or after January 29, 2015, at Five Points pertained to medical care received by or denied to Plaintiff. (See Declaration of Jeffrey Hale (“Hale Decl.“) ¶¶ 3-6 & Exhibit A).
In his opposition papers, Plaintiff cites only two grievances: FPT-30009-15, which addresses medical care provided on January 29, 2015, and as to which Defendants have not raised an exhaustion defense; FPT-29966-15, which does not address medical care, (see Hale Decl., Ex. A, p. 1); and FPT-29960-15, which the records show was not exhausted (see Hale Decl., Ex. A, p. 1). See Plaintiff‘s Reply to Defendant‘s Notice of Motion, Etc. ¶¶ 9-14. Plaintiff argues that grievance FPT-29960-15 should be deemed
Based on its examination of the record, the Court agrees that Plaintiff has failed to exhaust his administrative remedies as to any claims of inadequate medical care provided after January 29, 2015. Plaintiff has not made the required showing that administrative remedies were not, in fact, available to him. To the contrary, Plaintiff was well aware of how the grievance process worked within DOCCS, having employed it on many previous occasions. Moreover, there is no basis in the present record on which Plaintiff could argue that Defendants should be estopped from raising an exhaustion defense with regard to any claims for inadequate care after January 29, 2015.
In any event, Plaintiff has no viable deliberate medical indifference claim with regard to care provided or denied after January 29, 2015, at Five Points. Plaintiff was seen approximately eleven times in the five weeks following the use of force incident,
II. Claims Against CIU Officer C.J. Roberts and ORC Robert Kline
In his Complaint, Plaintiff asserts that CIU Officer C.J. Roberts (“Roberts“) and ORC Robert Kline (“Kline“) “entered into conspiracy with Sgt. J. Fuller to cover up Fuller‘s wrongdoing against Micolo [during the cell extraction on January 29, 2015,] and provided material support to Fuller in going along with Fuller‘s scheme and falsify [sic] documents to say he was [present] when he never was. . . .” Comp. ¶¶ 136-37 (brackets in original).
The elements of a Section 1983 conspiracy claim are as follows: “(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
Plaintiff has not alleged any facts suggesting the existence of any tacit or express agreement among Kline, Roberts, and Fuller to act in concert to violate Plaintiff‘s rights. The only allegation that possibly could be construed as an overt act in furtherance of a conspiracy alleged is that Roberts and Kline falsely stated, in their respective incident reports, that Fuller was present when, according to Plaintiff, he was not. However, it is well-settled that “[a] prison officer‘s falsifying of a report regarding an alleged violation of an inmate‘s rights does not, in itself, rise to the level of a constitutional deprivation, absent a showing that the officer was personally involved in the underlying incident.” Kee v. Hasty, No. 01 CIV. 2123(KMW)(DF), 2004 WL 807071, at *27 (S.D.N.Y. Apr. 14, 2004) (citing Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986) (affirming dismissal of claim against prison officer who, according to inmate, “filed a false misbehavior report which initiated the procedurally flawed
Plaintiff‘s allegations against Roberts and Kline fail to state any constitutional claims, including a claim for conspiracy to violate Plaintiff‘s constitutional rights. See Sommer v. Dixon, 709 F.2d at 174. Roberts and Kline are dismissed as defendants from this action.
III. Psychologist II Garry Sullivan
Plaintiff‘s sole allegations regarding Psychologist II Garry Sullivan (“Sullivan“) appear in two paragraphs of the Complaint. Prior to the cell extraction on January 29, 2015, Fuller contacting OMH for assistance, which dispatched Sullivan to Plaintiff‘s cell. When Sullivan arrived, Plaintiff informed Sullivan that he would
Again, as with his allegations against Roberts and Kline, Plaintiff has not come forward with any facts suggesting the existence of any tacit or express agreement among between Sullivan and Fuller to act in concert to violate Plaintiff‘s rights. Indeed, Plaintiff concedes that Sullivan may have been “ignorant” of Fuller‘s wrongful intentions. That admission forecloses the possibility of an agreement between Sullivan and Fuller to violate Plaintiff‘s rights.
Plaintiff‘s allegations against Sullivan fail to state any constitutional claims, including a claim for conspiracy to violate Plaintiff‘s constitutional rights. See Sommer v. Dixon, 709 F.2d at 174. Sullivan is dismissed as a defendant from this action.
Plaintiff alleges that after Sullivan left the area, Carol Gardner, RN II (“C. Gardner“),5 came to his cell and “asked him if he‘d come out of the cell.” (Comp. ¶ 34). Plaintiff informed her that he would do so, but only if “the captain and camera were on scene.” (Id.). At that point, C. Gardner left the area.
V. Chaplain Ronald Dewberry
VI. Corrections Officer Paul Sabin
Plaintiff alleges that Corrections Officer Paul Sabin (“Sabin“) came to his cell, along with several other officers (non-moving defendants Mosko and Brown), to escort him to a disciplinary hearing on February 17, 2015. (See Comp. ¶¶ 159-167). While applying the handcuffs and leg restraints prior to allowing Plaintiff to exit his cell, Sabin allegedly applied them “to the last click available” which “caused [Plaintiff] pain.” (Id. ¶ 162). Plaintiff, “knowing he‘d be injured” if he left his cell, “told Sabin to remove the shackles and cuffs [be]cause he wasn‘t going to
When prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment,6 “a court should consider both the ‘objective’ and ‘subjective’ components of an alleged violation[.]” Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994) (citing Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 999 (1992)). “The objective component relates to the seriousness of the injury; however, ‘the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury.‘” Id. (quoting Hudson, 503 U.S. at ----, 112 S. Ct.
Plaintiff has adequately alleged the subjective component of an Eighth Amendment violation, and Defendants have not raised any argument regarding Sabin‘s subjective intent. Rather, Defendants argue that the objective component of an excessive force claim is lacking because Plaintiff “saw medical staff on the morning of February 17[, 2015] and did not complain of pain or injury to his wrist or legs.” (Defs’ Mem., Section VII (citing generally to Salotti Decl.)). However, Salotti does not state that she saw Plaintiff on February 17, 2015; indeed, her declaration does not mention February 17, 2015, at all. While there is a treatment note dated February 17, 2015, in the medical records attached to Salotti‘s declaration, the time that Plaintiff was seen by medical staff was 7 o‘clock in the morning. This appears to have been prior to Plaintiff being summoned by Sabin for his disciplinary hearing. Thus, the absence of complaints in that treatment note about injuries to Plaintiff‘s wrists is not necessarily probative. At
VII. Superintendent Michael Sheahan
Plaintiff alleges that Five Points Superintendent Michael Sheahan (“Sheahan“) (1) participated in a conspiracy with Fuller by providing unspecified “aid” to him after the cell extraction on January 29, 2015; (2) did not arrange for feces in Plaintiff‘s cell to be cleaned; (3) did not lift the water-restriction order in response to Plaintiff‘s request; (4) denied his grievances pertaining to the cell extraction on January 29, 2015; (5) and did not order new photographs of Plaintiff‘s injuries. (See Comp. ¶¶ 142, 146, 150-158, 192, 200-203).
First, with regard to the alleged “aid” to Fuller in furtherance of a conspiracy, Plaintiff‘s Complaint contains “only conclusory, vague, or general allegations of conspiracy[,]” Sommer, 709 F.2d at 175, which “cannot withstand a motion to dismiss.” Id. Plaintiff‘s claim of a civil rights conspiracy is dismissed as to Sheahan.
Turning to the second and third sets of allegations against Sheahan, Plaintiff asserts that he was placed on a water-deprivation order upon his return from the mental health
Defendants’ sole argument in support of summary judgment is that Plaintiff has failed to state a conditions of confinement claim because he has not alleged (1) an “objectively, sufficiently serious . . . denial of the minimal civilized measure of life‘s necessities,” and (2) a “sufficiently culpable state of mind” on the prison official‘s part. Farmer, 511 U.S. at 834 (internal quotation marks and citations omitted). The Court finds, contrary to Defendants’ contentions, that Plaintiff has adequately alleged the objective component of a conditions of confinement claim. See McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001) (vacating in part dismissal where the plaintiff alleged that he was forced to live “in squalor—more specifically, a feces-covered cell—for three
Fourth, Plaintiff‘s allegation that Sheahan improperly denied his grievances regarding the January 29, 2015, use-of-force incident, and the allegedly inadequate medical care provided on January 29, 2015, is insufficient to state a claim. See Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002) “The fact that Superintendent Greiner affirmed the denial of plaintiff‘s grievance—which is all that is alleged against him—is insufficient to establish personal involvement or ‘to shed any light on the critical issue of supervisory liability, and more particularly,
Finally, the Court turns to Plaintiff‘s fifth allegation against Sheahan. According to Plaintiff, Sheahan violated his constitutional rights by failing to order new photographs be taken of Plaintiff‘s injuries, after Plaintiff complained that the first set of photographs was unsatisfactory for him to use in connection with his grievances. These allegations fail to state a constitutional claim cognizable under Section 1983. See, e.g., Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003) (“The corrections officers’ failure to properly address Torres‘s grievances by conducting a thorough investigation to his satisfaction does not create a cause of action for denial of due process because Torres was not deprived of a protected liberty interest. Prison grievance procedures do not confer any substantive
PLAINTIFF‘S MOTIONS FOR MISCELLANEOUS RELIEF
I. Motion to Compel Production of Video Evidence
Plaintiff has filed a motion to compel Defendants to produce the video evidence of the use-of-force incident. Plaintiff references the contents of the video at various points throughout his pleadings submitted in opposition to Defendants’ motion for summary judgment. Defendants argue that since Plaintiff has already drafted and filed his opposition pleadings, he cannot argue that he requires the video to present facts critical to rebutting Defendants’ summary judgment arguments. Defendants indicate, however, that if the Court finds it necessary to review the video evidence is necessary to reach a determination on the pending summary judgment motion, they will produce the video evidence to the Court for its in camera review. The Court finds that the video of the use-of-force incident is unnecessary for it to resolve the pending summary judgment motion; indeed, based on Plaintiff‘s own allegations, the moving defendants were not actually involved in the cell extraction and use-of-force incident. The Court
II. Motion to Compel Personal Service
Plaintiff also has moved to compel personal service of the Summons and Complaint upon DOCCS’ employee, C. Gardner. This request is moot, in light of the Court‘s sua sponte dismissal of C. Gardner as a defendant due to Plaintiff‘s failure to state a cognizable constitutional claim against her.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is denied in part and granted in part; Plaintiff‘s Motion to Compel Production of Video Evidence is denied without prejudice; and Plaintiff‘s Motion to Compel Personal Service of C. Gardner is denied as moot.
Specifically, Defendants’ Motion for Summary Judgment is denied to the extent that the excessive force claim against Sabin and the conditions of confinement claims against Sheahan remain pending; and it is granted to the extent that all other claims against Sheahan are dismissed. Furthermore, Defendants’ Motion for Summary Judgment is granted to the extent that all claims against Jones, Salotti, Jansen, Sullivan, C. Gardner, Dewberry, Roberts, and Kline are dismissed, and these individuals all are dismissed as defendants from this action.
ORDERS
ORDERED that Defendants’ Motion for Summary Judgment (Dkt #31) is denied in part and granted in part, as specified in more detail below; and it is further
ORDERED that the excessive force claim based on handcuffing remains pending against Sabin; and it is further
ORDERED that the conditions of confinement claims against Sheahan based on the failure to have feces cleaned from Plaintiff‘s cell and to lift the water-deprivation order remain pending, but all other claims against Sheahan are dismissed; and it is further
ORDERED that all claims against Jones, Salotti, Jansen, Sullivan, C. Gardner, Dewberry, Roberts, and Kline are dismissed; and it is further
ORDERED that Jones, Salotti, Jansen, Sullivan, C. Gardner, Dewberry, Roberts, and Kline are dismissed as defendants from this action; and the Clerk of Court is directed to modify the caption accordingly; and it is further
ORDERED that Plaintiff‘s Motion to Compel Production of Video Evidence (Dkt #34) is denied without prejudice; and it is further
ORDERED that Plaintiff‘s Motion to Compel Personal Service of C. Gardner (Dkt #42) is denied as moot because, as indicated above, C. Gardner has been terminated as a defendant from this action.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED: October 28, 2016
Rochester, New York