Bennett v. Akshar et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
DeLove R. Bennett,
Plaintiff,
v. 9:25-CV-426
(GTS/MJK)
Frederick J. Akshar, II, et. al.
Defendant.
_____________________________________________________________________
DeLove R. Bennett, Plaintiff, pro se
Joshua T. Terrell, Esq., Broome County Attorney, for Defendants
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Glenn T. Suddaby, U.S. District Court Judge:
ORDER & REPORT-RECOMMENDATION
United States District Court Judge Glenn T. Suddaby referred
Defendants’ motion to dismiss to the Court for report and
recommendation.1 In this pro se civil rights action, Bennett alleges that
Defendants violated his Eighth Amendment rights when they refused
him access to his prosthetic and forced him to shower in conditions
unsafe for an above the knee amputee. For the following reasons, this
Court recommends granting Defendants’ motion to dismiss.
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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I. BACKGROUND
On January 16, 2025, Bennett, an above the knee amputee,
arrived at Broome County Correctional Facility. (Second Amended
Complaint, Dkt. 11, pg. 3, at ¶13).2 After arriving at the facility,
someone denied Bennett access to his above the knee prosthetic. (Id.,
pg. 2, at ¶11).3 Broome County assigned Bennett a “wheelchair cell,
which . . . ha[d] handicap accessible bars for using the restroom.” (Id.,
pg. 3, at ¶14). But Bennett “was unable to access the shower without
difficulty.” (Id., pg. 2, at ¶12). Within a week of being incarcerated at
Broome County, the medical shower chair “rocked from unbalanced
wheels.” (Id.). Bennett was also unable to obtain “adequate assistance”
with showering due to the size of the area. (Id., pg. 3, at ¶14).
At some point, plaintiff asked “an officer named Brad in the
medical unit” about “switching chairs” due to his safety concerns and
was told by this official and “another officer from G-Dorm named Ray”
that they would “look into it,” but no further action was taken to
2 All page references are to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.
3 In his memo of law, Bennett claims that he is a bilateral amputee, being a above
the right knee amputee and a below the left knee amputee. (Bennett memo of Law,
Dkt. 25, pg. 8, at ¶12). Bennett argues that Defendants gave him one prosthetic and
denied him access to another prosthetic. (Id.).
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“resolve the issue.” (Id.). According to Bennett, defendants Frederick
Akshar, Robert Charpinsky, Scott Nayes, and Sammy Davis
(“Defendants”) were the officials who could have addressed and
remedied his confinement conditions. (Id, pgs. 4-10, at ¶¶17, 27, 37, 47).
Bennett began this case by filing a Complaint and moving for
leave to proceed in forma pauperis. (Dkts. 1, 2). Since beginning this
case, Bennett has amended his Complaint twice. (Dkts. 5, 11). Judge
Suddaby reviewed Bennett’s Second Amended Complaint, determined
that only his Eighth Amendment deliberate-indifference-to-medical-
needs claim survived, and dismissed Bennett’s Americans with
Disability Act and Rehabilitation Act claims. (Dkt. 12). Defendants then
moved to dismiss the Complaint.
II. STANDARDS OF REVIEW
A. Fed. R. Civ. P. Rule 12(b)(1)4
“A federal court has subject matter jurisdiction over a cause of
action only when it has authority to adjudicate the cause pressed in the
complaint.” Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (internal
citation omitted). “Determining the existence of subject matter
4 The Defendants’ Notice of Motion and Memorandum refer to the CPLR in several
places. This is not the first time that this error has been noted in submissions from
Defendants’ counsel. The Court expects that this will, however, be the last time.
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jurisdiction is a threshold inquiry, and a claim is properly dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it.” Id.
(internal citation omitted). District courts can consider evidence beyond
the pleadings when resolving a 12(b)(1) motion. Harty v. W. Point
Realty, Inc., 28 F.4th 435, 441 (2d Cir. 2022).
B. Fed. R. Civ. P. Rule 12(b)(6)
Although Complaints do “not need detailed factual allegations” to
survive a motion to dismiss, “a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than the unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.662, 678
(2009). A complaint which “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id. Rather, a complaint’s “factual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
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When ruling on a defendant’s motion to dismiss, all factual
allegations contained in the complaint must be accepted as true and all
reasonable inferences must be drawn in favor of the plaintiff. Koch v.
Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). But “the tenet
that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Twombly, 550 U.S. at
155. Additionally, “in adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in
the complaint by reference, and to matters of which judicial notice may
be taken.” Leonard F. v. Isr. Disc. Bank of New York, 199 F.3d 99, 107
(2d Cir. 1999) (cleaned up).
III. DISCUSSION
Below, the Court analyzes Defendants’ motion to dismiss and
recommends the District Court:
• find that this case is not moot;
• deny Defendants’ exhaustion argument;
• grant Defendants’ motion to dismiss for failure to state a claim;
• reserve judgment on the purported municipality claim.
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A. This case is not moot because the purported harm exists.
The District Court should reject Defendants mootness argument.
“A case is moot when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” Tann v.
Bennett, 807 F.3d 51, 52 (2d Cir. 2015) (quotation marks omitted).
“More specifically, a case becomes moot when interim relief or events
have eradicated the effects of the defendant’s act or omission, and there
is no reasonable expectation that the alleged violation will recur.” J.L.
on behalf of J.P. v. New York City Dep’t of Educ., 324 F. Supp. 3d 455,
466 (S.D.N.Y. 2018) (internal citation omitted). Here, Defendants do not
identify what actions occurred to moot Bennett’s claims. Defendants
only offer that: “the shower area, distance between showers, and shower
chair were evaluated, and the facilities were determined to be safe,
accessible, and in working order.” (Def. MTD, Dkt. 14-1, at pg. 12);
(Hakeem Decl., Dkt. 14-4, pg. 2, at ¶6). This conclusory statement—
which does not state when the evaluation occurred—does not eradicate
the effects of Bennett’s purported deprivation. Cf. McCray v. Lee, 963
F.3d 110 (2d Cir. 2020) (holding that the injunctive relief request was
moot because the plaintiff was transferring facilities but analyzing the
Eighth Amendment claim). Beyond that, Defendants assertion that
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Bennett’s “request for accommodation ha[s] been substantially met”
because “he was provided access to his prosthetic, . . . a wheelchair
accessible cell, and . . . an ADA compliant shower” does not moot this
action. That statement is a trial defense. It does not strip the District
Court of jurisdiction. As a result, the case is not moot.
B. The District Court should deny Defendants’ exhaustion
defense because it is not properly before this Court.
The District Court should reject Defendants’ exhaustion
argument. Incarcerated individuals must exhaust their administrative
remedies before bringing claims to Federal Court unless the
administrative procedures are functionally unavailable. Generally,
Defendants prove this affirmative defense with affidavits and
documentary evidence district courts can consider under Rule 56. But
here, Defendants raise this defense either under Rule 12(b)(1) or
12(b)(6). The Court should reject the defense regardless of the textual
hook Defendants choose.
Assuming that Defendants are moving to dismiss Bennett’s
Second Amended Complaint for failure to exhaust under Rule 12(b)(1),
the District Court should deny Defendants claim because exhaustion is
an affirmative defense, it is not jurisdictional. Woodford v. Ngo, 548
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U.S. 81, 101 (2006) (“[T]he PLRA exhaustion requirement is not
jurisdictional. . .”); Jones v. Brock, 549 U.S. 199, 216 (2007) (“failure to
exhaust is an affirmative defense under the PLRA.”).
Assuming that Defendants are moving to dismiss Bennett’s
Second Amended Complaint for failure to exhaust under Rule12(b)(6),
the District Court should deny that claim because it is not properly
before the Court. When “considering a motion to dismiss for failure to
state a claim pursuant to Rule 12(b)(6), [] district court[s] may consider
the facts alleged in the Complaint, documents attached to the
Complaint as exhibits, and documents incorporated by reference in the
Complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010). It has long been understood that “a district court errs when it
considers affidavits and exhibits submitted by defendants, or relies on
factual allegations contained in legal briefs or memoranda in ruling on
a 12(b)(6) motion to dismiss.” Friedl v. City of New York, 210 F.3d 79, 84
(2d Cir. 2000) (internal citations omitted). That said, the District Court
cannot rely on Defendants assertion—and the attached affidavit—that
Bennett did not exhaust. And because the Court cannot rely on
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Defendants’ argument on this score, Defendants’ exhaustion claim is
not properly before the District Court.
C. The District Court should grant Defendants motion to
dismiss because the Second Amended Complaint does not
plausibly allege a claim.
The District Court should dismiss Bennett’s deliberate-
indifference-to-medical-needs claim. To survive a motion dismiss in the
deliberate indifference context, plaintiffs must plausibly allege that
their medical condition was sufficiently serious, and the defendant
acted with a sufficiently culpable mind. Here, Bennett never alleges
Defendants took, or failed to take, any actions to support the subjective
element of the claim. So the Court recommends dismissing Bennett’s
deliberate indifference claim.
“To state a cognizable claim,” incarcerated persons “must allege
acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
106 (1976). This standard “includes both subjective and objective
components.” Mallet v. New York State Dep't of Corr. & Cmty.
Supervision, 126 F.4th 125, 132 (2d Cir. 2025) (quotation omitted).
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The objective prong is satisfied when an incarcerated person
proves the alleged deprivation is sufficiently serious. See Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). “There is no single metric”
to determine whether a medical condition is sufficiently serious. Mallet,
126 F.4th at 132. To be a sufficiently serious medical condition, the
condition must be one “of urgency” and one that “may result in
degeneration or extreme pain, significantly affect[] daily activities,” or
the condition “involves chronic and substantial pain.” Id. (quotations
omitted). “A serious medical need can also” exist where the “failure to
treat” an incarcerated person’s “condition” results “in further significant
injury or the unnecessary and wanton infliction of pain” Webster v.
Fisher, 694 F. Supp. 2d 163, 191 (N.D.N.Y. 2010). But “not every lapse
in prison medical care will rise to the level of a constitutional violation.”
Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003).
To satisfy the subjective prong, an incarcerated person must show
that prison officials “acted with a sufficiently culpable mind.” Mallet,
126 F.4th at 132 (cleaned up). The act, or omission, must show that the
prison officials consciously disregarded a substantial risk of serious
harm. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). In simpler
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terms, plaintiffs must show a defendant acted with a mental state like
criminal recklessness. Id at 839-40.
Starting with the objective prong, Bennett plausibly alleges a
sufficiently serious medical condition. Although the Second Circuit has
been silent on this issue, other courts have found that the “deprivation
of needed eyeglasses or prosthetic devices . . . may lead to severe harm.”
Gilmore v. Hodges, 738 F.3d 266, 274–75 (11th Cir.2013); see also Plant
v. CMS, No. 11-CV-00316, 2013 WL 5274226, at *6 (D. Idaho 2013)
(denying summary judgment where the plaintiff alleged that the
defendants denied him his prosthetic, a cane, crutches, or a wheelchair).
Here, Bennett alleges that he requires an above the knee prosthesis,
and Defendants denied him access to it. (Second Amended Complaint,
Dkt. 11, pg. 2, at ¶11). Similarly, Bennett plausibly alleges the objective
prong by pleading that he was forced to shower in unsafe conditions.
See, e.g., Green v. Maldonodo, No. 17-CV-0957, 2017 WL 3568662, at *3-
4 (D. Conn. Aug. 17, 2017) (finding that the plaintiff’s deliberate
indifference claim survive 28 U.S.C. §1915 review where the
incarcerated individual with surgically repaired and arthritic leg
plausibly alleged that he was forced to shower in unsafe conditions). At
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this stage of litigation, that is enough to survive Defendants motion to
dismiss.
Moving to the subjective prong, Bennett does not plausibly allege
that the prison official Defendants acted with a sufficiently culpable
mind. Again, for an incarcerated plaintiff to plausibly allege the
subjective prong, they must plead that “a prison official’s act or
omission must result[ed] in the denial” of medical care. Farmer, 511
U.S. at 834. Here, Bennett’s Second Amended Complaint is devoid of
any actions or omissions any Defendant took or failed to take. (Second
Amended Complaint, Dkt. 11, at pgs. 4-11). The only individuals Bennet
alleges took, or failed to take, any action are Brad and Ray, but they are
not parties to this action. (Id. at ¶¶ 15, 22, 32, 42, 52). As to the
Defendants, the Second Amended Complaint only repeats that each
Defendant is liable because each Defendant was “responsible for all
aspects of inmates housed within the Broome County Jail.” (Second
Amended Complaint, Dkt. 11, at pgs. 4-10, at ¶¶18, 27, 37, 47).
Bennett’s failure to allege an act or omission is fatal to his claim. See,
e.g., Frith v. City of New York, 203 F. Supp. 3d 386, 390 (S.D.N.Y. 2016)
(holding that the “plaintiff has not sufficiently alleged Captain Gibson’s
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deliberate indifference” because the plaintiff “ma[de] only the general
claim that he was denied treatment on August 5 ‘without reason’”).
To the extent that Bennett is alleging that Defendants are liable
under a theory of vicarious liability, the District Court should reject
that claim. Plaintiffs “must plead and prove that each Government-
official defendant, including supervisors, through the official's own
individual actions, has violated the Constitution.” Tangretti v.
Bachmann, 983 F.3d 209, 618 (2d Cir. 2020). “Simply put, there’s no
special rule of liability for supervisors. The test for them is the same as
the test for everyone else.” Id. (internal citations omitted). And as noted
above, Bennett cannot establish an Eighth Amendment violation for
these Defendants. In consequence, the District Court should reject
Bennett’s argument to the extent it alleges vicarious liability.
* * *
As an aside, the parties seem to quibble over a claim against the
municipality, but no such claim exists. (Initial Review, Dkt. 12, at pgs.
5-10) (determining that the only claims to survive 28 U.S.C. §1915
review are Bennett’s Eight Amendment deliberate-indifference-to-
medical-needs claims). In fact, neither the words “policy” nor “practice”
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can be found in the Second Amended Complaint. See generally (Second
Amended Complaint, Dkt. 11); see also Connick v. Thompson, 563 U.S.
51, 60 (2011) (quoting Monell v. Department of Social Services, 436 U.S.
658, 690 (1978)) (A municipality may be held liable only where an
“official municipal policy” causes the constitutional deprivation).
Because no Monell claim exists, the Court should not rule on that
portion of Defendants’ motion. If the Court decides to post hoc read a
Monell claim into the Second Amended Complaint (which it should not),
the Court recommends finding that Second Amended Complaint does
not plausibly allege a Monell claim. Ashcroft, 556 U.S. at 678.
D. The Court does not address Defendants Qualified
Immunity arguments.
Defendants argue that if the Court finds their actions
unconstitutional, qualified immunity shields them from liability.
Because the Court is recommending that Defendants’ motion to dismiss
be granted on other grounds, it finds it unnecessary to reach
Defendants’ qualified immunity argument. See Cisse v. Bishop, No. 22-
CV-156 (TJM/MJK), 2025 WL 935237, at *21 (N.D.N.Y. Feb. 26, 2025)
(cleaned up).
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V. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court DENY Defendants
motion to dismiss for subject matter jurisdiction (Dkt. 14) because
Bennett’s claim is not moot; and it is further
RECOMMENDED, that the District Court DENY Defendants
exhaustion defense (Dkt. 14) because the defense is not properly before
the District Court; and it is further
RECOMMENDED, that the District Court GRANT Defendants
motion to dismiss (Dkt. 14) as to Bennett Eighth Amendment
deliberate-indifference claim because the Complaint fails to state a
claim; and it is further
RECOMMENDED, that the District Court RESERVE
JUDGMENT as to the purported Monell claim; and it is further
RECOMMENDED, that the District Court DENY Bennett’s
cross motion to amend (Dkt. 25); and it is further
ORDERED, that the Bennett’s Letter Motion requesting to
extend time to serve Defendants (Dkt. 24) is DENIED and it is further
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ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1), the parties have fourteen
days within which to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court. FAILURE TO
OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85
(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
Dated: February 3, 2026
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Cissé v. Bishop, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 935237
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ali CISSÉ, Plaintiff,
v.
Reginald BISHOP, et al., Defendants.
9:22-CV-156 (TJM/MJK)
|
Signed February 26, 2025
Attorneys and Law Firms
ALI CISSÉ, Pro SE.
NICHOLAS W. DORAND, ESQ., Asst. Attorney General for Defendants.
RACHEL S. OUIMET, ESQ. Asst. Attorney General for Defendants.
ORDER and REPORT-RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge
*1 TO THE HONORABLE THOMAS J. McAVOY, Senior United States District Judge:
In this pro se civil rights action, plaintiff alleges violations of his First, Fourteenth, and Ninth Amendment rights arising
from his incarceration at the Clinton Correctional Facility (“Clinton C.F.”) and Great Meadow Correctional Facility (“Great
Meadow C.F.”). Presently before this court is: (a) Defendant Collins's motion for summary judgment arising from Plaintiff's
First Amendment retaliation claim; (b) Defendants Bishop, Fraser, Caringi, Miller, Lovett, Gross, Collins, Dill-Lewis's motion
for summary judgment arising from Plaintiff's Fourteenth Amendment procedural due process claim stemming from his
placement in the Special Housing Unit (“SHU”) at Great Meadow CF; (c) Defendants Henley, Murphy, and Barbosa's motion for
summary judgment arising from Plaintiff's Fourteenth Amendment procedural due process claim stemming from three separate
disciplinary hearings; and (d) Defendants Deans and Bishop's motion for summary judgment arising from Plaintiff's Ninth
Amendment “Right to Privacy” claim against them. (Dkt. No. 68).
This matter has been referred to me for Report and Recommendation by Senior United States District Judge McAvoy, pursuant
to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule (“Local Rule”) 72.3(c). For the following reasons, this court recommends that
the motion for summary judgment be granted and that the complaint be dismissed in its entirety with prejudice.
DISCUSSION
I. PROCEDURAL HISTORY
Plaintiff commenced this action on February 17, 2022 by filing a complaint (Dkt. No. 1).
By Decision and Order dated April 21, 2022, Senior United States District Judge McAvoy accepted Plaintiff's complaint for
filing only to the extent that it asserted the following claims: (a) retaliation against Defendant Collins; (b) excessive force
against Defendant Doe 1; (c) due process against Defendants Bishop, Frazer, Caringi, Miller, Lovett, Gross, Collins, Dill-Lewis,
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Henry, Murphy, and Barbosa; and (d) violation of privacy rights against Defendants Deans and Bishop. (Dkt. No. 4, pg. 28). All
other claims, including those asserted against the Defendants in their official capacities were dismissed without prejudice. (Id.).
Finally, Judge McAvoy ordered Plaintiff to take reasonable steps through discovery to ascertain the identity of Doe 1 against
whom Plaintiff's excessive force claim was asserted arising from his transport from Clinton C.F. to Great Meadow C.F. on April
16, 2021. (Id., pg. 30). Plaintiff was warned that his failure to timely serve Doe 1 would result in dismissal of the excessive
force claim and termination of Doe 1 from the action. 1
By letter motion dated April 27, 2022, Plaintiff requested a thirty-day extension of Judge McAvoy's April 21, 2022 directive
that he submit: (a) twelve complete copies of the complaint (or pay $222.00, which comprises the court's $0.50/page copying
fee of Plaintiff's thirty-seven-page complaint); (b) twelve completed USM-285 forms; and (c) a certified check or money order,
payable to the Clerk of the Northern District of New York, in the amount of $96.00, which constitutes the $8.00/Defendant
service fee. Plaintiff also requested that counsel be appointed for him. (Dkt. No. 5). Both of Plaintiff's requests were denied by
Judge McAvoy's May 2, 2022, Decision and Order. (Dkt. No. 6).
*2 By letter dated May 4, 2022 (Dkt. No. 7), Plaintiff asked Judge McAvoy to reconsider his May 2, 2022, Decision and Order
(Dkt. No. 6). On May 10, 2022, Judge McAvoy denied Plaintiff's request. (Dkt. No. 8).
By letter motion dated July 26, 2022, counsel for Defendants requested an extension of time to answer the complaint. (Dkt. No.
23). The court granted Defendants’ request. (Dkt. No. 24).
On February 17, 2023, Defendants submitted a letter motion requesting an extension of the discovery deadline. (Dkt. No. 33).
Defendants’ request was granted on February 17, 2023. (Dkt. No. 34).
On June 13, 2023, Plaintiff filed a motion to amend his complaint (Dkt. No. 42), and on June 13, 2023, Defendants filed a letter
motion requesting that the dispositive motion deadline be held in abeyance pending Plaintiff's motion to amend. (Dkt. No. 43).
The Court granted Defendants’ June 13, 2023, letter motion. (Dkt. No. 44).
Plaintiff filed a letter motion on June 15, 2023 requesting a “default” (Dkt. No. 45) which the court interpreted as a “motion
for discovery sanctions” (Dkt. 47). On June 30, 2023, Defendants filed their response to Plaintiff's motion for a “default” and
motion to amend. (Dkt. No. 46). On August 3, 2023, Defendants made an additional filing in response to Plaintiff's discovery
motion. (Dkt. No. 49). Plaintiff filed a reply to his motion to amend on August 16, 2023. (Dkt. No. 52).
On July 31, 2023, Plaintiff filed a letter motion for injunctive relief. (Dkt. No. 48). Defendants filed their response to Plaintiff's
motion for injunctive relief on August 3, 2023 (Dkt. No. 50) and on August 25, 2023, Plaintiff filed a response to his motion
for injunctive relief (Dkt. No. 54).
On August 31, 2023, Judge McAvoy issued a Decision and Order: (a) denying Plaintiff's motion to amend (Dkt. No. 42), (b)
denying Plaintiff's motion for “default” (Dkt. No. 45), and (c) denying Plaintiff's motion for injunctive relief (Dkt. No. 48).
(Dkt. No. 55).
Discovery is closed and Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. Nos. 68 through
68-18). Plaintiff filed a response (“Response”) in opposition to Defendants’ motion (Dkt. No. 80) and Defendants filed a reply
(Dkt. No. 86).
II. FACTS
On April 12, 2021, at approximately 8:20 P.M., in the phone area of the North Yard at Clinton C.F. Correction Officer (“C.O.”)
Mesunas was struck multiple times in the head, causing serious and life-threatening injuries that rendered C.O. Mesunas
unconscious. (Defendants’ Statement of Material Facts (“SOMF”), ¶ 1, Dkt. No. 68-2; Henley Declaration (“Henley Decl.”),
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Exh. “A,” p. 29, Dkt. No. 68-14). On or about April 16, 2021, and after an investigation by officers from Clinton C.F. and the
New York State Police Bureau of Criminal Investigations (“BCI”), Plaintiff was identified as C.O. Mesunas's attacker. (SOMF,
¶ 2, Dkt No. 68-2; Bishop Declaration (“Bishop Decl”), ¶ 8, Dkt. No. 68-9).
On April 16, 2021, Plaintiff was issued a misbehavior report (“April 16, 2021 Misbehavior Report”) charging him with Violent
Conduct (104.11), Assault on Staff (100.11), Interference with an Employee (107.10), Creating a Disturbance (104.13) and
Disorderly Conduct (100.15). (SOMF, ¶ 3, Dkt. No. 68-2; Bishop Decl., ¶ 8, Dkt. No. 68-9; Henley Decl., Exh. “A,” p. 29, Dkt.
No. 68-14). As a result, Deputy Superintendent of Security for Clinton C.F., Defendant Bishop, approved Plaintiff's confinement
in Clinton C.F.’s SHU pending a disciplinary hearing. (SOMF, ¶ 4, Dkt. No. 68-2; Bishop Decl., ¶ 8, Dkt. No. 68-9). Defendant
Bishop approved Plaintiff's confinement in SHU because Plaintiff's alleged actions posed a substantial risk to the safety and
security of the facility, and the staff determined that Plaintiff was at potential risk of reprisal. (SOMF, ¶ 5, Dkt. No. 68-2; Bishop
Decl., ¶¶ 8-9, Dkt. No. 68-9).
*3 On April 16, 2021, the same day that he was confined in Clinton C.F.’s SHU, Plaintiff was transferred to Great Meadow C.F.
for safety and security reasons. (SOMF, ¶ 6, Dkt. No. 68-2; Bishop Decl., ¶ 11, Dkt. No. 68-9). Upon his arrival, Plaintiff was
screened by Great Meadow C.F.’s mental health staff. (SOMF, ¶ 7, Dkt. No. 68-2; Caringi Declaration (“Caringi Decl.”), ¶ 10,
Dkt. No. 68-10). Defendant Caringi elected not to divert Plaintiff to the Behavioral Health Unit (“BHU”) because of the recency
of the attack, and Defendant Caringi's belief that Plaintiff was still considered a substantial risk to facility staff and himself. (Id.,
SOMF, ¶ 8, Dkt. No. 68-2; Caringi Decl. at ¶ 10, Dkt. No. 68-10). Instead, Plaintiff was transferred to Great Meadow C.F.’s
SHU. (SOMF, ¶ 9, Dkt. No. 68-2; Caringi Decl., ¶¶ 9, 11, Dkt. No. 68-10). Due to his mental health level, Plaintiff received a
higher level of care than other incarcerated individuals housed in SHU. (Id.). Plaintiff was visited by mental health professionals
and given appropriate medication and care during his in SHU. (SOMF, ¶ 10, Dkt. No. 68-2; Caringi Decl., ¶ 11, Dkt. No. 68-10).
While there, Plaintiff received showers three days every week and had a working sink and toilet facilities in his cell. (SOMF,
¶ 11, Dorando Declaration (“Dorando Decl.”), Exh. “A,” pgs. 61, 67), Dkt. No. 68-17). Plaintiff was also permitted two hours
and thirty minutes of outdoor recreation on every day that he desired. (SOMF, ¶ 12, Dkt. No. 68-2; Dorando Decl., Exh. “A”,
pg. 63, Dkt. No. 68-17). Plaintiff did not encounter any issues with his regular meals and was given food in accordance with
his practices for Ramadan. (SOMF, ¶ 13, Dkt. No. 68-2; Dorando Decl., Exh. “A,” pgs. 66, 67, Dkt. No. 68-17). Great Meadow
C.F. staff, in conjunction with mental health staff, re-evaluated Plaintiff on a constant basis to ascertain his risk to facility staff.
(SOMF, ¶ 14, Dkt. No. 68-2; Caringi Decl., ¶ 13, Dkt. No. 68-10). On July 7, 2021, Plaintiff was transferred from the SHU to
the BHU. (Id.). Plaintiff was in the SHU for 87 days before being transferred to the BHU. (SOMF, ¶ 14, Dkt. No. 68-2; Collins
Declaration (“Collins Decl.”), ¶ 9, Dkt. No. 68-5).
On April 21, 2021, while Plaintiff was housed in the Great Meadow C.F. SHU, Defendant Henley commenced a Tier III
disciplinary hearing in connection with the April 16, 2021 Misbehavior Report (“Hearing No. 1”). (SOMF, ¶ 17, Dkt. No. 68-2;
Henley Decl., ¶ 14, Dkt. No. 68-14). The Tier Assistant of Plaintiff's choosing was appointed to assist him for Hearing No. 1
before Defendant Henley. (Id.). Hearing No. 1 was adjourned and was re-convened on several occasions due to the extensive
proof and the logistical difficulties presented by securing requested testimony from staff and other incarcerated individuals that
were housed at a different correctional facility. (SOMF, ¶ 18, Dkt. No. 68-2; Henley Decl., ¶ 15, Dkt. No. 68-14).
Plaintiff was present at each stage of Hearing No. 1, except when confidential testimony regarding Plaintiff's mental health
and confidential security procedures were being discussed. (SOMF, ¶ 19, Dkt. No. 68-2; Henley Decl., ¶ 15, Dkt. No. 68-14).
Defendant Henley listened to all witnesses she believed to be relevant and material, including witnesses requested by Plaintiff,
but she did not allow testimony from witnesses who were going to offer redundant or immaterial testimony. (SOMF, ¶ 20, Dkt.
No. 68-2; Henley Decl., ¶ 28, Dkt. No. 68-14). Plaintiff was permitted to raise objections throughout Hearing No. 1 which were
orally addressed by Defendant Henley during the hearing or in the written statement of disposition. (SOMF, ¶ 21, Dkt. No.
68-2; Henley Decl. at ¶¶ 29-36, Exh. “A,” pg. 21, Dkt. No. 68-14).
On July 1, 2021, following the conclusion of proof, Defendant Henley placed her findings on the record: Plaintiff was found
guilty of Violent Conduct (104.11), Assault on Staff (100.11), Creating a Disturbance (104.13), and Interference with an
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Employee (107.10). (SOMF, ¶22, Dkt. No. 68-2; Henley Decl., ¶ 37, Exh. “A,” pg. 18, Dkt. No. 68-14). Defendant Henley found
Plaintiff was not guilty of Disorderly Conduct (100.15). (SOMF, ¶ 23, Dkt. No. 68-2; Henley Decl., ¶ 37, Exh. “A,” pg. 18,
Dkt. No. 68-14). Defendant Henley sentenced Plaintiff to 654 days in the SHU, 76 days served under pre-hearing confinement
as well as 654 days’ loss of package and commissary, 30 days’ loss of tablet, privileges, and a recommended loss of good time.
(SOMF, ¶ 24, Dkt. No. 68-2; Henley Decl., ¶ 37, Exh. “A,” pg. 18, Dkt. No. 68-14). In addition to advising Plaintiff on the
record, Defendant Henley prepared a written form memorializing the disposition, the evidence relied upon, and the reasons for
the sanctions imposed. (SOMF, ¶ 26, Dkt. No. 68-2; Henley Decl., ¶ 41, Exh. “A”, pgs. 18-28, Dkt. No. 68-14). Defendant
Henley's written disposition was delivered to Plaintiff following the hearing. (SOMF, ¶ 27, Dkt. No. 68-2; Henley Decl., ¶ 41,
Exh. “A,” pgs. 18-28, Dkt. No. 68-14).
*4 On July 30, 2021, Hearing No. 1 was overturned on an administrative appeal for failure to collect testimony from potentially
relevant witnesses. (SOMF, ¶ 40, Dkt. No. 68-2; Henley Decl., ¶ 46, Dkt. No. 68-14; Murphy Decl., Exh. “A,” pg. 14, Dkt. No.
68-15). Accordingly, on August 6, 2021, a re-hearing (“Hearing No. 2”) was commenced with respect to the April 16, 2021
Misbehavior Report, which was held by Defendant Murphy. (SOMF, ¶ 41, Dkt. No. 68-2). On August 3, 2021, Plaintiff was
re-served with a copy of the April 16, 2021 Misbehavior Report. (SOMF, ¶ 42, Dkt. No. 68-2; Murphy Decl., ¶ 13, Exh. “B,”
pg. 22, Dkt. No. 68-15). Plaintiff was provided with the same Tier Assistant that was assigned to him in Hearing No. 1 who
submitted requests for documents, evidence, and witnesses on Plaintiff's behalf. (SOMF, ¶ 43, Dkt. No. 68-2; Murphy Decl.,
¶ 15, Exh. “B,” pgs. 36, 56, Dkt. No. 68-15).
Hearing No. 2 was adjourned and re-convened by Defendant Murphy on several occasions due to the extensive proof. (SOMF,
¶ 44, Dkt. No. 68-2; Murphy Decl., ¶ 16, Dkt. No. 68-15). Plaintiff was present at each stage of the hearing, except when
confidential mental health testimony and testimony from incarcerated individuals was being offered. (Id.). Defendant Murphy
listened to all relevant, material witnesses, including witnesses requested by Plaintiff, but did not allow testimony from redundant
or immaterial witnesses. (SOMF, ¶ 45, Dkt. No. 68-2; Murphy Decl., ¶ 21, Dkt. No. 68-15). Plaintiff was permitted to
raise objections throughout the hearing which Defendant Murphy addressed during the hearing or in the written statement of
disposition. (SOMF, ¶ 46, Dkt. No. 68-2; Murphy Decl., ¶ 22, Dkt. No. 68-15).
On August 18, 2021, following the conclusion of proof, Defendant Murphy placed his findings on the record: Plaintiff was found
guilty of Violent Conduct (104.11), Assault on Staff (100.11), Disorderly Conduct (100.15), Creating a Disturbance (104.13),
and Interference with an Employee (107 .10). (SOMF, ¶ 47, Dkt. No. 68-2; Murphy Decl., ¶ 23, Exh. “B,” pg. 22, Dkt. No.
68-15). Defendant Murphy sentenced Plaintiff to 606 days’ confinement in SHU, with credit for the 124 days’ confinement in
SHU pre-hearing, 40 days loss of packages and commissary, and a recommendation that he lose good time. (SOMF, ¶ 48, Dkt.
No. 68-2; Murphy Decl., ¶ 23, Exh. “B,” pg. 22, Dkt. No. 68-15). Defendant Murphy prepared a written form memorializing
the disposition, the evidence he relied upon, and the reasons for the sanctions he imposed, which was delivered to Plaintiff
following the end of the hearing. (SOMF, ¶ 50, Dkt. No. 68-2; Murphy Decl., ¶ 26, Exh. “B,” pgs. 22-32, Dkt. No. 68-15).
On October 15, 2021, Hearing No. 2 was overturned on an administrative appeal because the hearing officer did not adequately
address the denial of Plaintiff's potentially relevant request for BCI Investigators. (SOMF, ¶ 55, Dkt. No. 68-2; Murphy Decl.,
¶ 30; Murphy Decl., Exh. “B,” pg. 2, Dkt. No. 68-15). Defendant Murphy denied Plaintiff's request to call BCI Investigators
as a witness because their testimony would be duplicative of testimony already in the record since they only collected witness
statements and reviewed documents that had been used in the hearing. (SOMF, ¶ 56, Dkt. No. 68-2; Murphy Decl., ¶ 17, Dkt.
No. 68-15). Defendant Murphy did not have the authority to compel the NYSP Investigators to testify. (SOMF, ¶ 57, Dkt. No.
68-2; Murphy Decl., ¶ 17, Dkt. No. 68-17).
On October 20, 2021, a second re-hearing (“Hearing No. 3”) was commenced with respect to the April 16, 2021 Misbehavior
Report before Defendant Barbosa. (SOMF, ¶ 58, Dkt. No. 68-2, Barbosa Decl., ¶ 5, Dkt. No. 68-16). On October 19, 2023,
Plaintiff was served for a third time with a copy of the April 16, 2021 Misbehavior Report. (SOMF, ¶ 59, Dkt. 68-2; Barbosa
Decl., ¶ 12, Exh. “A,” pg. 2, Dkt. No. 68-16). Plaintiff was provided his top choice of tier assistant, who submitted requests
for documents, evidence, and witnesses on Plaintiff's behalf. (SOMF, ¶ 60, Dkt. No. 68-2; Barbosa Decl., ¶¶ 12-15, Exh. “B,”
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pgs. 84, 87, Dkt. No. 68-16). Due to the extensive proof, Hearing No. 3 was adjourned and re-convened on several occasions
during which Plaintiff was present, except for when confidential mental health testimony was offered. (SOMF, ¶61, Dkt. No.
68-2; Barbosa Decl., ¶ 16, Dkt. No. 68-16). Defendant Barbosa listened to all witnesses he believed to be relevant and material,
including witnesses requested by Plaintiff, but did not allow testimony from redundant or immaterial witnesses. (SOMF, ¶ 62,
Dkt. No. 68-2; Barbosa Decl., ¶¶ 17-22, Dkt. No. 68-16). Plaintiff was permitted to raise objections throughout the hearing
which Defendant Barbosa orally addressed during the hearing or in the written statement of disposition. (SOMF, ¶63, Dkt. No.
68-2; Barbosa Decl., ¶¶ 23-28, Exh. “A,” pg. 7, Dkt. No. 68-16).
*5 On January 14, 2022, following the conclusion of proof, Defendant Barbosa placed his findings on the record: Plaintiff was
guilty of Violent Conduct (104.11), Assault on Staff (100.11), and Interference with an Employee (107.10); Defendant Barbosa
found that Plaintiff was not guilty of Creating a Disturbance (104.13) (SOMF, ¶ 64, Dkt. No. 68-2; Barbosa Decl., ¶ 29, Exh.
“A,” pgs. 1-2, Dkt. No. 68-16). Defendant Barbosa sentenced plaintiff to 630 days in the SHU, with credit for 91 days served
under pre-hearing confinement and the one hundred 182 days served on a previous hearing, pre-reversal. (SOMF, ¶ 65, Dkt.
No. 68-2; Barbosa Decl., ¶ 29 Exh. “A,” pgs. 1-2, Dkt. No. 68-16). In addition to advising Plaintiff on the record, Defendant
Barbosa prepared a written disposition, which included the evidence relied upon, and the reasons for the sanction imposed.
(SOMF, ¶ 67, Dkt. No. 68-2; Barbosa Decl., ¶ 32, Exh. “A,” pgs. 2-11, Dkt. No. 68-16). A copy of Defendant Barbosa's written
disposition was delivered to Plaintiff on the record which Plaintiff signed. (Id.).
III. SUMMARY JUDGMENT
A. Legal Standard
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact
is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v.
City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing that the nonmoving party
has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which
that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine
issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986); see also Jeffreys, 426 F.3d at 554 (“The mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. At the summary
judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.”).
“Conclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg.,
156 F.3d 396, 400 (2d Cir. 1998). Statements “that are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] 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). However, “a pro
se party's ‘bald assertion,’ unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
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B. Local Rule 56.1
*6 Local Rule 56.1 requires a party moving for summary judgment to file and serve a Statement of Material Facts. L.R. 56.1(a).
“The Statement of Material Facts shall set forth, in numbered paragraphs, a short and concise statement of each material fact
about which the moving party contends there exists no genuine issue.” Id. The opposing party is required to file a response to
the Statement of Material Facts “admitting and/or denying each of the movant's assertions in matching numbered paragraphs.”
L.R. 56.1(b). “The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.” (Id.) (emphasis in original) (emphasis changed from underline to italics).
Pursuant to Local Rule 56.1(a), Defendants filed and served a SOMF. (Dkt. No. 68-2). Plaintiff failed to respond to Defendants’
SOMF. (Dkt. No. 80). Where, as in this case, a party has failed to respond to the movant's SOMF in the manner required under
Local Rule 56.1(b), the facts in the movant's statement to which the Plaintiff has not properly responded will be accepted as
true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro
se, has been specifically advised of the possible consequences of failing to respond to the motion. 2 See Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996).
“While ‘[p]ro se litigants are ... not excused from meeting the requirements of Local Rule 56.1,’ the Court retains discretion
‘to consider the substance of the plaintiff's arguments’ even where there is incomplete compliance with the rule.” W. v. Lagree,
No. 9:22-CV-00231 (MAD/CFH), 2024 WL 3649891, at *6 (N.D.N.Y. June 10, 2024) (alterations in original) (quoting Wali v.
One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (internal citations omitted)), report and recommendation adopted,
2024 WL 3548785 (N.D.N.Y. Jul. 26, 2024); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a
court is not required to consider what the parties fail to point out in their Local Rule 56.1 Statements, it may in its discretion
opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement.”) (internal
quotation marks omitted).
Here, in deference to Plaintiff's pro se status, the court will review the entire summary judgment record to ascertain the
undisputed material facts, citing to the facts as set forth in Defendants’ SOMF when properly supported by the record, and
also referring to Plaintiff's submission when practicable. See GlobalRock Networks, Inc. v. MCI Commc'ns Servs., Inc., 943 F.
Supp. 2d 320, 329 (N.D.N.Y. May 6. 2013) (“Where the non-movant either does not respond to the motion or fails to dispute
the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.”) (citing Giannullo v. City
of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003)).
IV. Exhaustion of Remedies
A. Legal Standard
The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C. § 1997e(a), requires an inmate to exhaust all available administrative
remedies prior to bringing a federal civil rights action. The exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. See Giano
v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004), (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)), abrogated on other grounds
by Ross v. Blake, 578 U.S. 632 (2016). Inmates must exhaust their administrative remedies even if they are seeking only money
damages that are not available in prison administrative proceedings. Id. at 675.
*7 To properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in
accordance with the applicable state rules. See Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81
(2006)). In Woodford, the Court held that “proper” exhaustion means that the inmate must complete the administrative review
process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal
court. Woodford, 548 U.S. at 90-103.
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The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Incarcerated
Grievance Resolution Committee (“IGRC”). 3 N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision
of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level
may be appealed to the Central Office Review Committee (“CORC”). Id. § 701.5(d). The court also notes that the regulations
governing the Incarcerated Grievance Program (“IGP”) 4 encourage the inmate to “resolve his/her complaints through the
guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to
submitting a grievance.” Id. § 701.3(a) (Inmate's Responsibility). There is also a special section for complaints of harassment.
Id. § 701.8. Complaints of harassment are handled by an expedited procedure which provides that such grievances are forwarded
directly to the Superintendent of the facility, after which the inmate must appeal any negative determination to the CORC. Id.
§§ 701.8(h) & (I), 701.5.
Prior to Ross v. Blake, supra, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly
exhausted his administrative remedies. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State
of New York, 380 F.3d 680, 686 (2d Cir. 2004)). The Hemphill inquiry asked (1) whether the administrative remedies were
available to the inmate; (2) whether defendants’ own actions inhibiting exhaustion estops them from raising the defense; and
(3) whether “special circumstances” justify the inmate's failure to comply with the exhaustion requirement. Id.
In Ross, the Supreme Court made it clear that courts may not excuse a prisoner's failure to exhaust because of “special
circumstances.” Ross v. Blake, 578 U.S. 632, 640 (2016). “[M]andatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.” Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir. 2016) (quoting Ross,
578 U.S. at 639). Although Ross has eliminated the “special circumstances” exception, the other two factors in Hemphill –
availability and estoppel – are still valid. The court in Ross referred to “availability” as a “textual exception” to mandatory
exhaustion, and “estoppel” has become one of the three factors in determining availability. Ross, 578 U.S. at 642. Courts
evaluating whether an inmate has exhausted his or her administrative remedies must also consider whether those remedies
were “available” to the inmate. Id.; see also Riles, 2016 WL 4572321 at *2. As failure to exhaust administrative remedies is
an affirmative defense, defendants bear the burden of showing that a prisoner has failed to satisfy the exhaustion requirement.
See Shakur v. Thomas, No. 9:14-CV-427 (MAD/TWD), 2018 WL 4635722, at *2. (N.D.N.Y. May 5, 2018), report and
recommendation adopted 2018 WL 3217170 (N.D.N.Y. Jul. 2, 2018). Once that burden is satisfied, a plaintiff must establish
that the grievance procedure was unavailable to him. Id. (citing Jones v. Bock, 529 U.S. 199, 216 (2007)).
B. Analysis
*8 Plaintiff alleges that Defendant Collins promised him “a full time cut and a recommendation to the Central Office to
transfer [him] close to home if he behaved and participated in program.” (Plaintiff's Response, pg. 2, Dkt. No. 80). According
to Plaintiff, Defendant Collins reneged on this promise when he failed to “sign off” on an unrelated grievance. (Id.). As a result,
Plaintiff claims that he filed a grievance in September 2021 (“September 2021 Grievance”) which “was returned to him without
a grievance number.” (Plaintiff's Response, pg. 4, Dkt. No. 80). A copy of the purported September 2021 Grievance is attached
as Exhibit “A” to Plaintiff's Response.
Defendant Collins maintains that summary judgment is warranted because no genuine issue of material fact exists concerning
Plaintiff's failure to exhaust his administrative remedies with respect to his retaliation claim.
In support of her motion for summary judgment, Defendant Collins relies on her declaration (“Collins Decl.,” Dkt. No. 68-5),
the declaration of Alexandria Cutler (“Cutler Decl.,” Dkt. No. 68-4), the declaration of Rachael Seguin (“Seguin Decl.,” Dkt.
No. 68-3), and the various DOCCS records attached as exhibits to each declaration. The Cutler Declaration provides significant
detail about the IGP at Great Meadow C.F. and the fact that each incarcerated individual who arrives at Great Meadow C.F.
goes “through an incarcerated individual orientation program that does includes a presentation by a representative from the
Incarcerated Grievance Resolution Committee (“IGRC”) about the grievance process, including how to file a grievance and
appeal a grievance.” (Cutler Decl., ¶ 5, Dkt. No. 68-4).
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The Cutler Declaration also indicates that the IGP at Great Meadow C.F. was fully operational while Plaintiff was housed there
between August 2021 through October 2021, and that a search of its records indicated that “[Plaintiff] filed only one grievance
at Great Meadow, relative to his being housed in SHU, which was given log number GM-0690-21.” (Cutler Del., ¶ 16, Dkt. No.
68-4). A copy of Plaintiff's grievance log is attached as Exhibit “B” to the Cutler Declaration.
Like the Cutler Declaration, the Seguin Declaration provides details about the DOCCS IGP. (Seguin Decl., ¶¶ 4-8). As the IGP
Director for DOCCS, Ms. Seguin is the custodian of records maintained by the Central Office Review Committee (“CORC”),
“which renders final administrative decisions for DOCCS's IGP pursuant to 7 N.Y.C.R.R. §§ 701.1-701.11.” (Seguin Decl., ¶ 3).
According to Director Seguin, Plaintiff has appealed 56 facility-level grievance determination to CORC. (Seguin Decl., ¶ 13).
However, between August through October 21, 2021, Plaintiff appealed only one grievance to CORC - relative to his placement
in the SHU at Great Meadow C.F. - Grievance No. GM-0690-21. Grievance No. GM-0690-21, a copy of which is attached to the
Seguin Declaration, indicates that it does not address Plaintiff's grievance against Defendant Collins. (Dkt. No. 68-3, pg. 14).
In moving for summary judgment, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Cyan Contracting Corp. v. New York State Dormitory Auth., No. 09-CV-603, 2011 WL 13266726, at *2
(S.D.N.Y. Sept. 27, 2011) (quoting Fed. R. Civ. P. 56(c)(4)) (rejecting declaration prepared by Defendant's attorney which could
not have been made on personal knowledge but, rather, was at most the product of hearsay based on what the client told the
attorney or the attorney's opinion). “Where an affidavit or declaration on a summary judgment motion is submitted by a person
who otherwise is in a position in which it reasonably may be expected that the individual actually has personal knowledge of that
of which the person speaks, a simple affirmation of such personal knowledge typically will be sufficient to satisfy Rule 56(c)
(4).” Id. Records such as those provided by Rachel Seguin and Alexandria Cutler, both of whom who have personal knowledge
of the inmate grievance and appeal processes at correctional facilities, have been found sufficient to support summary judgment
based on an inmate's failure to exhaust administrative remedies. See Houston v. Coveny, No. 14-CV-6609, 2020 WL 2494439,
at *3 (W.D.N.Y. May 14, 2020) (finding CORC appeal log report accompanied by certification of DOCCS official certifying
the log report was made in the regular course of business and employees engaged in creating the report had a duty to truthfully
record the events maintained therein).
*9 Since Defendant Collins met her burden of establishing the existence of a process by which Plaintiff was to exhaust his
administrative remedies, the burden shifts to Plaintiff to prove that the grievance process at Great Meadows C.F. was unavailable
to him. Opposing Defendants’ argument that he failed to exhaust his administrative remedies with respect to the September
2021 Grievance, Plaintiff claims that “without a grievance number an incarcerated individual[’s] grievance complaint is not on
record and therefore cannot be appealed to the superintendent or C.O.R.C. because an incarcerated individual cannot just take
it up on himself to appeal his grievance to the superintendent or C.O.R.C. He still has to send the grievance to the grievance
office, who th[e]n, will send it to the superintendent or CORC on the incarcerated individual[’s] behalf that is how the grievance
process works in practice.” (Plaintiff's Response, pg. 4, Dkt. 80).
Plaintiff's argument is unavailing and is negated by the case law and his complaint. “Courts have consistently held ... that an
inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” Masas v. Conte,
No. 9:13-CV-617 (GLAS/ATB), 2015 WL 1800482, *5 (N.D.N.Y. Mar. 25, 2015) (quoting Rosado v. Fessetto, No. 9:09-CV-67
(DNH/ATB), 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010)) report recommendation adopted, 2010 WL 3809991 (N.D.N.Y.
Sept. 21, 2010). “In any event, the failure by the IGRC or the Superintendent to timely respond to a grievance or first level
appeal must be appealed to the next level, including the CORC, in order to properly complete the grievance process., Masas,
2015 WL 1800482,*5 (citing Pacheco v. Drown, 9:06-CV-20 (GTS/GHL), 2010 WL 144400, at *19 & n. 21 (N.D.N.Y. Jan. 11,
2010); see also Smith v. Kelly, 985 F. Supp. 2d 275, 281-82 & n.8 (N.D.N.Y. Oct. 30, 2013) (the weight of authority (and better-
reasoned authority) has held the IGRC's non-response must be appealed to the superintendent where the plaintiff's grievance
was never assigned a grievance number) (collecting cases).
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Further, plaintiff cannot argue that Great Meadows C.F. lacked a functioning grievance process or that he was unfamiliar with the
same. The complaint alleges that while incarcerated at Great Meadows C.F., plaintiff filed 12 complaints, of which only three (3)
were processed. (Compl., pg. 22). With respect to the nine complaints that were not processed, the complaint alleges that plaintiff
“appealed them to the superintendent Christopher Miller and later Joseph Corey, they did not respond nor addressed [the]
complaints and the CORC followed suit by not addressing my complaints.” (Compl., pg. 22). Interestingly, Plaintiff's Response
does not allege that Plaintiff appealed his grievance against Defendant Collins despite the lack of a grievance number and his
utilization of the appeal process for nine of his 12 grievances that were allegedly not processed. Plaintiff's self-acknowledged
use of the grievance process is consistent with Director Seguin's declaration. Plaintiff's familiarity with, and reliance on the
grievance process at Great Meadow C.F., demonstrates that he “did not view the filing of grievances as a dead end.” Walker v.
Ball, No. 9:16-CV-437 (DNH/DJS), 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). Similarly, given Plaintiff's prior successful navigation of the grievance process
(Seguin Decl., Exhibit “A,” Dkt. No. 68-3), Plaintiff cannot complain that the grievance process was “so opaque” as to make
it unavailable to him. See Ross, 578 U.S. at 643.
Notably, the complaint does not allege that plaintiff filed a grievance against Defendant Collins that was returned to him without
a grievance number. On page 20 of the complaint, Plaintiff provides detail about his interaction with Defendant Collins relative
to the “time cut” but does not allege that he filed a grievance against her for allegedly reneging on her promise. Also, pages 27
and 28 of the complaint list 11 distinct grievances that Plaintiff filed while incarcerated at Great Meadow C.F., none of which
refer to Defendant Collins or her alleged failure to honor her “time cut” promise.
*10 Based on this record, the Court recommends that summary judgment be granted as to Plaintiff's retaliation claim against
Defendant Collins for failure to exhaust his administrative remedies prior to commencing this action.
V. First Amendment (Retaliation Claim against Defendant Collins)
A. Legal Standard
To state a claim of retaliation under the First Amendment, a plaintiff must allege facts plausibly suggesting the following: (1)
the speech or conduct at issue was “protected;” (2) the Defendants took “adverse action” against the plaintiff - namely, action
that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3)
there was a causal connection between the protected speech and the adverse action - in other words, that the protected conduct
was a “substantial or motivating factor” in the Defendant's decision to take action against the plaintiff. Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). The Second
Circuit has stated that courts must approach prisoner retaliation claims “with skepticism and particular care,” since “virtually
any adverse action taken against a prisoner by a prison official - even those otherwise not rising to the level of a constitutional
violation - can be characterized as a constitutionally proscribed retaliatory act.” 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) (citing Flaherty v. Coughlin, 713 F.2d
10, 13 (2d Cir. 1983)).
Indeed, “a plaintiff asserting such a claim bears a heightened burden of proof and must plead the claim with particularity.”
Rucano v. Annucci, 9:18-CV-218 (GTS/CFH), 2021 WL 3293504 (N.D.N.Y. May 19, 2021) (citing Green v. Phillips, No.
04-CV-10202, 2006 WL 846272, at *3 (S.D.N.Y. Mar. 31, 2006)). “Consequently, a plaintiff must set forth non-conclusory
allegations to sustain a retaliation claim.” Id. (citing Green, 2006 WL 846272, at *3); see also Williams v. Goord, 111 F. Supp.
2d 280, 290 (S.D.N.Y. 2000) (“In recognition of the reality that retaliation claims can be fabricated easily, plaintiffs bear a
somewhat heightened burden of proof, and summary judgment can be granted if the claim appears insubstantial.”) (internal
quotation marks and citation omitted).
“Allegations, although specific, ‘may still be deemed conclusory if [they are] (1) largely unsubstantiated by any other direct
evidence and (2) so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension
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of disbelief necessary to credit the allegations made in the complaint.’ ” Smith v. Woods, No. 9:03-CV-480 (DNH/GHL), 2006
WL 1133247, at *3 (N.D.N.Y. Apr. 24, 2006) (internal quotation marks and citations omitted).
It is undisputed that filing a grievance constitutes a protected activity. See Zimmerman v. Racette, No. 9:17-CV-375 (TJM/CFH),
2020 WL 3038275, at *16 (N.D.N.Y. Jan. 24, 2020), report and recommendation adopted, 2020 WL 1329138 (N.D.N.Y. Mar.
23, 2020). With respect to the second element of a First Amendment retaliation claim, an action is adverse if it “would deter a
similarly situated individual of ordinary firmness from exercising ... constitutional rights.” Lewis v. Hanson, No. 9:18-CV-12
(LEK/DJS) 2022 WL 991729, at *11 (citing Tafari v. McCarthy, 714 F.Supp.2d 317, 348 (N.D.N.Y. May 24, 2010)).
B. Analysis
*11 Even if Plaintiff had exhausted his administrative remedies with respect to his claim against Defendant Collins, which
he did not, the court nevertheless recommends that summary judgment be granted and that Plaintiff's claim for retaliation be
dismissed with prejudice.
For purposes of Defendant Collins’ summary judgment only, she concedes the first and third prongs of a retaliation claim
enunciated in Doyle (Defendants’ Memorandum of Law, pg. 11, n. 1), leaving only the second prong for the court's consideration.
To establish the second prong of a retaliation claim, i.e., an adverse action, a plaintiff must show that a defendant's retaliatory
conduct would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. Doyle,
429 U.S. at 287. Despite Plaintiff's allegations, the documentary evidence, together with Plaintiff's deposition testimony,
establish that he did in fact receive a “time cut,” thereby negating any alleged adverse action.
Plaintiff testified at his deposition that that he received “a six-month time cut that was later revoked.” (Dorando Decl., Exhibit
“A,” pg. 84, Dkt. Not. 68-17). However, faced with Defendants’ motion for summary judgment and to presumably create an
issue of fact, Defendant refutes his own sworn deposition testimony and “denies that he admitted that he received a time cut from
Defendant Collins.” (Plaintiff's Response, pg. 7, Dkt. No. 80). An affidavit given in opposition to a summary judgment motion
which conflicts with other sworn statements of the opposing party cannot alone suffice to raise a genuine issue of material
fact. See Reisner v. Gen. Motors, 671 F.2d 91, 93 (2d Cir. 1982) (disregarding factual claims made in opposition to summary
judgment motion which contradicted earlier affidavits, deposition testimony, and interrogatory responses), cert. denied, 459
U.S. 858, (1982); see also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572-73 (2d Cir. 1991)
(“The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material
issue of fact by submitting an affidavit disputing his own prior sworn testimony.”).
Summary judgment is also warranted based on the documentary evidence attached to the Collins Declaration. (Dkt. No. 68-5).
Specifically, the paperwork prepared by the Behavioral Health Unit Time Cut Committee on September 13, 2021, (attached as
Exhibit “B” to the Collins Declaration establishes that the committee) of which Defendant Collins was a member, recommended
to the Superintendent of Great Meadow C.F. that Plaintiff receive a 180-day-time cut. (Collins Decl., Exhibit “B”, pg. 1, Dkt.
No. 68-5). The committee's recommendation was accepted by the Superintendent on September 14, 2021. (Collins Decl., ¶ 16;
Collins Decl., Exhibit “B,” pg. 1, Dkt. No. 68-5). Plaintiff also received 14 incentives for good/modified behavior between July
2021 and September 2021. (Collins Decl., ¶ 16, Collins Decl., Exhibit “B,” pgs. 5-6, Dkt. Not. 68-5).
Plaintiff's Response neither disputes Defendant Collins’ statements nor refutes the exhibits attached to it. The Court therefore
recommends that summary judgment be granted, and that Plaintiff's retaliation claim against Defendant Collins be dismissed
with prejudice.
VI. Fourteenth Amendment Due Process Claim
A. Legal Standard
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*12 The Fourteenth Amendment to the United States Constitution reads, in relevant part, that “[n]o State shall ... deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “A liberty interest may arise from
the Constitution itself, ... or it may arise from an expectation or interest created by state laws or polices.” Wilkinson v. Austin,
545 U.S. 209, 221 (2005) (citation omitted). “Although prison inmates necessarily have their liberty severely curtailed while
incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further
liberty deprivations such as ... special confinement that imposes an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.
2004) (citations omitted). To establish a procedural due process claim under Section 1983, a plaintiff must show that he (1)
possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Ortiz
v. McBride, 380 F.3d 649, 654 (2d Cir. 2004); see also Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace,
143 F.3d 653, 658 (2d Cir. 1998).
An incarcerated individual has “no due process claim under the Fourteenth Amendment” if they cannot establish “that [they]
had a protected liberty interest in being free from the punishment that was imposed upon [they] as a result of [a disciplinary]
hearing.” Scott v. Albury, 156 F.3d 283, 286 (2d Cir. 1998) (per curiam). “A prisoner's liberty interest is implicated by prison
discipline, such as SHU confinement, only if the discipline imposes an atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (internal quotation marks and
brackets omitted). “Factors relevant to determining whether the plaintiff endured an atypical and significant hardship include
the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions and the duration of
the disciplinary segregation imposed compared to discretionary confinement.” Id. (internal quotation marks omitted). “Disputes
about conditions may not be resolved on summary judgment, but where the conditions are undisputed,” the issue “should be
resolved by the court as a matter of law.” Id. (internal citation omitted); see also Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.
1999) (“The ... standard of ‘atypical and significant hardship’ is an issue of law.”).
Although the Second Circuit has avoided “a bright line rule that a certain period of SHU confinement automatically fails to
implicate due process rights,” (Palmer, 364 F.3d at 65), confinement for 101 days or fewer “generally do[es] not constitute
‘atypical’ conditions of confinement.” Bunting v. Nagy, 452 F. Supp. 2d 447, 456 (S.D.N.Y. 2006) (quoting Sealey, 197 F.3d
at 589). By contrast, 305 days or more of segregated confinement has been deemed an atypical and significant hardship. See
Colon v. Howard, 215 F.3d 227, 231-32 (2d Cir. 2000). “A period of confinement between 101 and 305 days is considered to
be an ‘intermediate duration’ and could implicate a liberty interest should a detailed record of the conditions of confinement
indicate that it was an atypical and significant hardship.” Bunting, 452 F. Supp. 2d at 456 (citing Sealy, 197 F.3d at 589).
For purposes of this motion only, and in the interest of judicial economy, Defendants “are assuming that Plaintiff's SHU sentences
implicated his protected liberty interest.” (Defendants’ Memorandum of Law, pg. 18). Accordingly, the Court will proceed to
analyze whether Plaintiff was afforded his Fourteenth Amendment Due Process rights.
The Fourteenth Amendment due process protections afforded to incarcerated individuals do not equate to “the full panoply of
rights due to a defendant in a criminal prosecution.” Sira, 380 F.3d at 69 (citation and internal quotation marks omitted). The
constitutionally mandated due process requirements include: (1) written notice of the charges to the inmate; (2) the opportunity
to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense,
subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining
his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a
defense. Wolff v. McDonald, 418 U.S. 539, 564-70 (1974); see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004).
*13 “Since Wolff, the Supreme Court has clarified that judicial review of the written findings required by due process is limited
to determining whether the disposition is supported by ‘some evidence.’ ” Sira, 380 F.3d at 69 (quoting Superintendent v. Hill,
472 U.S. 445, 455, (1985)). “This standard is extremely tolerant and is satisfied if ‘there is any evidence in the record that
supports’ the disciplinary ruling.” Id. (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). Nevertheless, as
the Second Circuit has explained, “the ‘some evidence’ standard requires some ‘reliable evidence.’ ” Id. (quotation and other
citation omitted).
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Additionally, “[t]o establish a procedural due process claim in connection with a prison disciplinary hearing, an inmate must
show he was prejudiced by the alleged procedural deficiencies, in the sense that the errors affected the outcome of the hearing.”
Clark v. Dannheim, 590 F. Supp. 2d 426, 429 (W.D.N.Y. Dec. 2, 2008) (citing, inter alia, Powell v. Coughlin, 953 F.2d 744, 750
(2d Cir. 1991) (“[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary hearing because of a procedural
error without making the normal appellate assessment as to whether the error was harmless or prejudicial.”)).
B. Analysis
i. Defendants Henley and Murphy
Plaintiff asserts a litany of reasons why Defendants Henley and Murphy violated his Fourteenth Amendment due process rights
in connection with Hearing No. 1 and Hearing No. 2. (Plaintiff's Response, pgs. 14-19, Dkt. No. 80).
However, Hearing No. 1 became moot because of Hearing No. 2, and Hearing No. 2 became moot because of Hearing No.
3. See Vidal v. Annucci, No. 9:19-CV-0429 (GLS/DJS), 2022 WL 7278575, at *6 (N.D.N.Y. Jan. 7, 2022) (quoting Ramos v.
Chappius, No. 15-CV-6600-FPG, 2018 WL 488950, at *2 (W.D.N.Y. Jan. 19, 2018)), report and recommendation adopted,
2022 WL 4462640 (N.D.N.Y. Sept. 26, 2022); see also Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998) (“We need not discuss
[the plaintiff]’s contention that his rights were violated at the first hearing, because it became a nullity. All findings and penalties
imposed at the first hearing were vacated, and all the penalties [the plaintiff] suffered were imposed at the second hearing.”).
Indeed, “courts in this circuit routinely find claims related exclusively to an initial disciplinary hearing moot when, as here,
that finding was reversed and a new hearing was held.” Vidal, 2022 WL 7278575, at *6 (collecting cases); see also Vance v.
Dep't of Corr. & Cmty. Supervision, No. 9:18-CV-748 (BKS/ATB), 2021 WL 5095309, at *9 (N.D.N.Y. Aug. 12, 2021), report
and recommendation adopted sub nom. Vance v. Venettozzi, 2021 WL 4145705 (N.D.N.Y. Sept. 13, 2021); Fowler v. New York
State Dep't of Corr. & Cmty. Supervision, No. 13-CV-6546, 2020 WL 1905233, at *3 (W.D.N.Y. Apr. 17, 2020); Williams v.
Korines, No. 9:16-CV-1157 (FJS/TWD), 2018 WL 5729353, at *11-12 (N.D.N.Y. Aug. 31, 2018), report and recommendation
adopted, 2018 WL 4521204 (N.D.N.Y. Sept. 21, 2018).
Because Plaintiff's prior SHU confinement was credited to the penalty imposed at Hearing No. 3, his confinement “was entirely
attributable to the ruling following [ ] [Hearing No. 3].” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001). Thus, “the
Court need not discuss Plaintiff's contention that his rights were violated at [ ] [Hearing No. 1 and Hearing No. 2] because
[they] became a ‘nullity’ after [ ] [Hearing No. 2 and Hearing No. 3] w[ere] held, crediting the penalty from [Hearing No. 1
and Hearing No. 2] [ ].” Ragsdale v. Confer, No. 21-CV-6188, 2024 WL 1051883, at *3 (W.D.N.Y. Mar. 11, 2024); see also,
Cole v. New York State Dep't of Corr. & Cmty. Supervision, No. 9:14-CV-0539 (BKS/DEP), 2016 WL 5394752, at *20-21
(N.D.N.Y. Aug. 25, 2016) (finding it unnecessary to determine whether the plaintiff was afforded due process in connection
with the first hearing, where the record established that plaintiff was confined in the SHU as a result of a penalty imposed
which was ultimately reversed and where the plaintiff was again found guilty at the second disciplinary hearing), report and
recommendation adopted, 2016 WL 5374125, at *1 (N.D.N.Y. Sept. 25, 2016).
*14 The Court therefore recommends that summary judgment be granted dismissing Plaintiff's Fourteenth Amendment due
process claims with prejudice against Defendants Henley and Murphy arising from Hearing No. 1 and Hearing No. 2.
ii. Defendant Barbosa
According to the complaint, Plaintiff's appeal in connection with Hearing No. 3 is pending. (Compl., pg. 25). The papers
submitted by the parties in support of and in opposition to the summary judgment motion provide no clarification regarding
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the status of Plaintiff's alleged appeal. Regardless, it is the Court's opinion that Defendant Barbosa did not violate Plaintiff's
Fourteenth Amendment due process rights.
The complaint and Plaintiff's Response assert a myriad of ways in which Defendant Barbosa allegedly violated plaintiff's
Fourteenth Amendment due process rights during Hearing No. 3. Specifically, Plaintiff contends that: (a) his Tier Assistant was
“ineffective and insufficient in fulfilling [his] needs.” (Plaintiff's Response, pg. 19, Dkt. No. 80); (b) the misbehavior report
is not supported by the video surveillance (Id.); (c) Plaintiff was not granted the opportunity to present grand jury minutes
and prior hearing tapes to impeach Sgt. King's testimony (Id.); (d) Defendant Barbosa “wrongfully denied [his] potential and
relevant witnesses” (Plaintiff's Response, pg. 20, Dkt. No. 80); (e) Defendant Barbosa was not a fair and impartial decision
maker (Id.); (f) Defendant Barbosa “was bias and prejudice” and “came into the hearing with his mind made up” (Id.); (g)
Defendant Barbosa denied the “testimonies of the officers that were present in the yard but relied upon statements they wrote in
their memorandum to their superior and he withheld those memorandum from Plaintiff stating they were expunged” (Plaintiff's
Response, pg. 21, Dkt. No. 80); (h) Defendant Barbosa attained confidential OMH testimony outside of his presence; and (i)
Defendant Barbosa imposed a harsh and atypical punishment outside of the general guidelines for a Tier III conviction (Id.).
Although due process includes a right to call witnesses, “this right is not unfettered.” Alicea v. Howell, 387 F. Supp. 2d 227,
234 (W.D.N.Y. 2005) (citing Ponte v. Real, 471 U.S. 491, 495, (1985)). This right may be limited for security reasons, to keep
a hearing within reasonable limits, or based on irrelevance or lack of necessity. Id. (citing, inter alia, Kingsley v. Bureau of
Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (a hearing officer does not violate due process by excluding irrelevant or unnecessary
testimony or evidence)). Further, incarcerated individuals do not have a constitutional right of confrontation or the right to cross-
examine witnesses at disciplinary proceedings against them. See Kalwasinski v. Morse, 201 F.3d 103, 108-109 (2d Cir. 1999);
see also Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). Because incarcerated individuals have no right to confrontation, it is
permissible for the disciplinary officers to offer a witness statement at a disciplinary hearing that was taken outside the presence
of the incarcerated individual. See Kalwasinski, 201 F.3d at 109.
The documentary evidence attached to the Barbosa Declaration sets forth with specificity why Defendant Barbosa denied
Plaintiff's request to call the following witnesses to testify at Hearing No. 3: C.O Mesunas, C.O Patterson, Sgt. Marion, Sgt.
Jarvis, Lt. Guynup, Capt. Shope, Capt. Matott, RN Taylor, the physician who examined C.O. Mesunas, and New York State
Troopers BCI Investigator. (Barbosa Decl., pgs. 95-96, Dkt. No. 68-16). The documentary evidence also establishes why
Plaintiff was excluded from the hearing room when certain confidential OMH testimony was offered (Barbosa Decl., pg. 96,
Dkt. No. 68-16), and why incarcerated individuals Maynard and Jackson did not testify at Hearing No. 3 (Barbosa Decl., pgs. 17,
125, 128, Dkt. No. 68-16). Accordingly, the Court finds no triable issues of fact exist as to whether Plaintiff had an opportunity
to call witnesses. See Richardson v. Williams, No. 15-CV-4117, 2017 WL 4286650, at *7 (S.D.N.Y. Sept. 26, 2017) (“a hearing
officer does not violate due process by excluding irrelevant or unnecessary testimony.”); see also Scott v. Kelly, 962 F.2d 145,
146 (2d Cir. 1992) (“It is well settled that an official may refuse to call witnesses as long as the refusal is justifiable.”).
*15 Plaintiff's allegations that Defendant Barbosa was not a fair and impartial decision maker and that he was biased are
similarly without merit and fail to raise any issues of fact. As previously noted, a hearing officer may satisfy the standard of
impartiality if there is “some evidence” to support the hearing officer's findings. Sira, 380 F.3d at 69. Here, there is “some
evidence” to support Defendant Barbosa's determination. Among other things, Defendant Barbosa found that the MBR authored
by Sgt. King, various memoranda, the testimony of Sgt. King during Hearing No. 3, the testimony of Lt. Snow during Hearing
No. 3, the videos of the incident and the confidential OMH testimony regarding Plaintiff's mental health, to be “credible” and
“substantial evidence” of Plaintiff's guilt to the charges of Violent Conduct (104.11), Assault on Staff (100.11), and Interference
with an Employee (107.10). (Barbosa Decl.,¶¶ 34-36, Exhibit “A,” pg. 14, Dkt. No. 68-16). See Chavez v. Gutwein, No. 20-
CV-0342, 2021 WL 4248917, at *12 (S.D.N.Y. Sept. 17, 2021) (“[I]t is well-established that a correction officer's misbehavior
report may constitute reliable evidence of guilt.” Moreover, as the hearing officer, Defendant Barbosa “was authorized to make
credibility determinations.”) Lopez v. Whitmore, No. 9:13-CV-952 (BKS/ATB), 2015 WL 4394604, at *11 (N.D.N.Y. July 16,
2015) (citation omitted); see also Alsaifullah v. Smith, No. 9:14-CV-01309 (JKS), 2016 WL 1595391, at *7 (N.D.N.Y. Apr. 20,
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2016) (concluding, despite the plaintiff's allegation that a correction officer's “testimony and report were fabricated,” that “it
was within the hearing officer's province to assess the credibility of the witnesses”).
Plaintiff's claims that his “assistant was ineffective and insufficient in fulfilling [his] needs” fail to raise any issues of fact.
Plaintiff's Response fails to allege what specific “TO-FROMs” and “relevant memos” Plaintiff's hearing assistant allegedly did
not marshal. (Plaintiff's Response, pg. 19, Dkt. No. 80), However, the documentary evidence attached to the Barbosa Declaration
does articulate what documents he requested his assistant to compile. Specifically, the Barbosa Declaration includes a memo
from Plaintiff to his Tier III assistant detailing what information he wanted assembled as well as a copy of the “Assistant Form”
completed by Plaintiff's Tier III assistant, S. Sibrava. (Barbosa Decl., pgs. 94, 109-110, Dkt. No. 68-16). Also included in Exhibit
“A” to the Barbosa Declaration are a myriad of memoranda and other documents, some of which appear to be those requested
by Plaintiff. Plaintiff's Response does not include any recognition or discussion of whether the Barbosa Declaration does in fact
include some of the documents he requested from his Tier III assistant.
Plaintiff also fails to specify which incarcerated individuals his Tier III assistant failed to interview. (Plaintiff's Response, pg. 19,
Dkt. No. 80). Despite his allegations, Plaintiff conveniently ignores that incarcerated individuals Maynard and Jackson refused
to testify at Hearing No. 3 (Barbosa Decl., pgs. 17, 125, 128, Dkt. No. 68-16). Notwithstanding his allegedly “ineffective” and
“insufficient” Tier III assistant, Plaintiff does not indicate how, if at all, he was prejudiced and how the alleged errors affected
the outcome of Hearing No. 3. See Clark, 590 F. Supp. 2d at 429.
Despite Plaintiff's protestations and his discontent with the results of Hearing No. 3, the record establishes that Plaintiff's
Fourteenth Amendment due process rights were not traversed at Hearing No. 3. Plaintiff: (1) was provided with a written notice
of the charges against him which he acknowledges (Plaintiff's Response, pg. 19, Dkt. No. 80); (2) appeared at Hearing No. 3 and
was given a reasonable opportunity to present witnesses and evidence in support of his defense, subject to Great Meadow C.F.’s
legitimate safety and penological concerns; (3) was given a written statement by the hearing officer explaining his decision and
the reasons for the action being taken (Barbosa Decl., Exhibit “A”, pg. 21, Dkt. No. 68-16); and (4) appointed a Tier III hearing
assistant of his choosing. See Wolff, 418 U.S. at 564-70 (1974); see also Luna, 356 F.3d at 487.
The Court therefore recommends that summary judgment be granted with respect to Plaintiff's Fourteenth Amendment due
process claim against Defendant Barbosa and that the complaint be dismissed with prejudice against him.
iii. Defendants Fraser, Miller, Lovett, Gross, Collins, and Dill-Lewis
*16 The Court recommends that summary judgment be granted with respect to Plaintiff's Fourteenth Amendment Procedural
Due Process claim against Defendants Fraser, Miller, Lovett, Gross, Collins, and Dill-Lewis arising from the eighty-seven (87)
days he spent in SHU rather than in the BHU prior to his disciplinary hearing.
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.’ ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield,
950 F.2d 880, 885 (2d Cir. 1991)). To prevail on a section 1983 claim against an individual, a plaintiff must show “a tangible
connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect
participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of
the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir.
2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy
the prerequisite of personal involvement. Therefore, a [supervisory] official may not be found liable for a constitutional violation
merely because of the acts of those under his control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at *2 (S.D.N.Y. Sept.
15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Thus,
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supervisory officials may not be held liable for their subordinates’ constitutional violations merely because they are in a position
of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon, 58 F.3d at 874 (holding that the fact that
the defendant occupied a high-ranking position in the New York prison hierarchy, without more, was insufficient to establish
personal involvement).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the Second Circuit concluded that “there is no special rule for supervisory
liability,” and held that a “plaintiff must plead and prove ‘that each Government-official Defendant, through the official's own
individual actions, had violated the Constitution.’ ” Tangreti, 983 F.3d at 618. The Second Circuit explained that, “ ‘the factors
necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue’ because the elements of different
constitutional violations vary. The violation must be established against the supervisory official directly.” Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009)).
In addition to “direct participation by the supervisor in the challenged conduct,” personal involvement by a supervisor can
“also be established by evidence of an official's: (1) failure to take corrective action after learning of a subordinate's unlawful
conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates
who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the
unlawful conduct of subordinates.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003).
*17 Plaintiff has not—and cannot—make the requisite showing that Defendants Fraser, Miller, Lovett, Gross, Collins, and
Dill-Lewis had any personal involvement with Plaintiff's placement in Great Meadow C.F.’s SHU or that they can satisfy any
of the elements enumerated in Hayut.
Defendant Fraser's declaration (“Fraser Declaration” or “Fraser Decl.”) states that: (a) in April 2021, he was a Captain assigned
to Great Meadow C.F. and was then transferred to DOCCS’ Training Academy to oversee its operations the following month.
(Fraser Decl., ¶¶ 4, 8); (b) in his “position as a Captain at Great Meadow, it was not within [his] duties or capabilities to transfer
Plaintiff to another unit. Nor was [he] aware of Plaintiff's mental health needs and/or if Plaintiff was placed improperly” (Fraser
Decl., ¶ 11); and (c) he “was not involved in determining where Plaintiff was house-i.e., the SHU, BHU, or anywhere
else.” (Fraser Decl., ¶ 12). Notably, Plaintiff's Response does not refute the allegations in the Fraser Declaration. Further,
plaintiff's deposition testimony confirms that Defendant Fraser had no personal involvement in his SHU placement. After
initially not remembering who Defendant Fraser was, Plaintiff testified that Defendant Fraser was the officer who “signed off
on a full restraint order” (Dorando Decl., pg. 73, Dkt. No. 68-17), a claim that was dismissed by Judge McAvoy (Dkt No., pgs.
23-24). Plaintiff did not offer any other testimony to establish Defendant Fraser's personal involvement in his SHU placement.
Defendant Miller's Declaration (“Miller Declaration” or “Miller Decl.”) states that in April 2021 through July 2021, he was
employed as the Superintendent at Great Meadow C.F. (Miller Decl., ¶ 3). In that capacity, Defendant Miller “was not involved
in whether an incarcerated individual was placed in SHU or in a Behavioral Health Unit.” (Miller Decl., ¶ 5). According to
Defendant Miller, those determinations “were ultimately made by the Deputy Superintendent of Security.” (Id.). Like Defendant
Fraser, Plaintiff does not refute Defendant Miller's allegations. Also, Plaintiff testified that Defendant Miller was “a member of
the executive team.” (Dorando Decl., pg. 77, Dkt. No. 68-17). Defendant Miller's supervisory role, without more, is insufficient
as a matter of law to impose liability on him for Plaintiff's SHU placement at Great Meadow C.F. See Colon, 58 F.3d at 874.
As to Defendant Lovett, she was the Supervising Offender Rehabilitation Coordinator and the Acting Deputy Superintendent of
Programs at Great Meadow C.F. between April 2021 and July 2021. (“Lovett Declaration” or “Lovett Decl.”) (Lovett Decl., ¶
4). In her role during the relevant period, Defendant Lovett states that she “did not have oversight, authority, or involvement in
deciding whether an incarcerated individual is placed in the SHU, or other housing unit, such as the Behavioral Unit.” (Lovett
Decl., ¶ 6). According to Defendant Lovett, “[s]uch determination were ultimately made by the Deputy Superintendent of
Security.” (Id.). Plaintiff's Response does not refute the Lovett Declaration. At his deposition, Plaintiff identified Defendant
Lovett as a “member of the executive team” and someone he “could have spoken to [ ] a few times.” (Dorando Decl., pg. 74, Dkt.
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No. 68-17) (emphasis added). Plaintiff was unable to offer any testimony to establish Defendant Lovett's personal involvement
in his SHU placement upon arrival at Great Meadow C.F.
*18 Defendant Gross's declaration (“Gross Declaration” or “Gross Decl.”) establishes that since April 9, 2021, he has held
the title of Deputy Superintendent for Administrative Services III at Great Meadow C.F., a purely administrative role in which
he provides supervision “to the business office, state shop, commissary, food service, maintenance, and personnel. (Gross
Decl., ¶¶ 3, 4). Defendant Gross was not, according to his declaration, involved in “disciplinary proceedings, cell placement
of incarcerated individuals, or provision of health services of any sort.” (Gross Decl., ¶ 4). Plaintiff's Response does not refute
the allegations in the Gross Declaration. Further, Plaintiff testified that Defendant Miller was “a member of the executive
team.” (Dorando Decl., Exh. “A,” pg. 77, Dkt. No. 68-17). Without more, Plaintiff's allegations are insufficient as a matter of
law to impose liability on him for Plaintiff's SHU placement at Great Meadow C.F. See Colon, 58 F.3d at 874.
Like Defendants Fraser, Miller, Lovett, and Gross, Plaintiff cannot establish that Defendant Collins had any personal
involvement in his placement in Great Meadow C.F.’s SHU. Defendant Collins's declaration (“Collins Declaration” or “Collins
Decl.”) establishes that in 2021, she became the Assistant Deputy Superintendent for Correctional Mental Health at Great
Meadow C.F. (Collins Decl., ¶ 4). The Collins Declaration further establishes that Defendant Collins “never made any
determination relative to Plaintiff's initial placement in SHU or his continued stay in SHU; nor was [she] [ ] personally involved
in any decision-making process relative to Plaintiff's cell placement. Those decisions were ultimately made by the Deputy
Superintendent of Security (“DSS”) at Clinton Correctional Facility, where [Plaintiff] was initially placed in SHU and at Great
Meadow.” (Collins Decl., ¶ 6 Dkt. No. 68-5). Plaintiff's Response does not dispute the allegations in the Collins Declaration.
Further, plaintiff testified at his deposition that Defendant Collins should have moved him from the SHU to the BHU and that
she was “responsible for the incarcerated individuals that are under her.” (Dorando Decl., Exh. “A,” pg. 71, Dkt. No. 68-17).
He offered no testimony establishing Defendant Collins's personal involvement or any of the elements enumerated in Hayut.
Finally, plaintiff cannot establish that Defendant Dill-Lewis had any personal involvement with his placement in Great Meadow
C.F.’s SHU. According to Defendant Dill-Lewis, she has been the Executive Director of Central New York Psychiatric Center
(“CNYPC”) with the New York State Office of Mental Health services since 2021, a purely administrative role. (“Dell-Lewis
Declaration” or “Dell-Lewis Decl.”) (Dell-Lewis Decl., ¶¶ 3, 4). Notably, Defendant Dell-Lewis is not a member of any
treatment team. (Dell-Lewis Decl., ¶ 4). As an administrator at CNYPC, Defendant Dell-Lewis did not have, in April 2021
through July 2021, “oversight, authority, or involvement in deciding which cell an incarcerated individual is placed in.” (Dell-
Lewis Decl., ¶ 6). Defendant Dell-Lewis further states that she did not have “oversight, authority, or involvement in determining
whether an incarcerated individual was housed in the SHU or the BHU.” (Id.). According to Defendant Dell-Lewis, “such
determinations were made by the individual DOCCS facility staff in accordance with their capabilities and security needs” and
not the Office of Mental Health. (Id.). Again, Plaintiff's Response does not refute Defendant Dell-Lewis's statements and his
deposition testimony does not establish her personal involvement in his placement in Great Meadow C.F.’s SHU. (Dorando
Decl., Exh. “A,” pg. 72, Dkt. No. 68-17).
To create an issue of fact, Plaintiff's Response alleges “even accepting that [Defendants Fraser, Miller, Lovett, Gross, Collins
and Dill-Lewis] were not directly involved in the placement of Plaintiff in SHU themselves but after learning of the violations
through reports and complaints they failed to remedy the wrongs thereby allowing to continue unconstitutional practices that
were occurring ...” (Plaintiff's Response, pg. 8, Dkt. No. 80). 5 Plaintiff's efforts are without merit, as his statements are
conclusory and without support in the record. See Scotto v. Almenas, 143 F.3d 105, 114 (The party opposing a motion for
summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.”). Plaintiff provides no support
for what complaints, reports and/or violations he is referring to and in what way(s) Defendants Fraser, Miller, Lovett, Gross,
Collins and Dill-Lewis failed to address the same. Having failed to create any issue of fact, the Court recommends that summary
judgment be granted and that Plaintiff's Fourteenth Amendment due process claims against Defendants Fraser, Miller, Lovett,
Gross, Collins and Dill-Lewis be dismissed with prejudice.
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iv. Defendants Caringi and Bishop
*19 In his Response, Plaintiff alleges that being in SHU “imposed an atypical and significant hardship” on him. (Plaintiff's
Response, pg. 10, Dkt. No. 80). Specifically, his claims against Defendants Bishop and Caringi are that: they violated his
procedural due process rights by confining him in SHU. (Id.). In total, Defendants Bishop and Caringi are personally involved
in 87 days of SHU confinement. Plaintiff's claims against Defendants Bishop and Caringi can be best understood as:
Defendant Time in confinement
Bishop Less than one day in the SHU at Clinton C.F.
Caringi 87 Days in a SHU at Great Meadow C.F.
Taking both claims individually, neither period of confinement is long enough to trigger due process protections. See Sealy,
197 F.3d at 578. To the extent that Plaintiff alleges his conditions were severe enough to trigger due process protections, they
were not. While in SHU, Plaintiff received three showers a week, more than what is required by the applicable regulations.
See 7 N.Y.C.R.R. § 304.5 (noting that incarcerated persons must receive a minimum of two showers per week for a minimum
of five minutes per shower); see also (SOMF ¶ 5, Dorando Decl., Exhibit “A,” pgs. 61, 67, Dkt. No. 68-17). Plaintiff also
received two hours and thirty minutes of outdoor exercise each day, more than what is required by law). See 7 N.Y.C.R.R. §
304.3 (“Incarcerated individuals confined in the SHU must be one hour of outdoor exercise daily, exclusive of the time it takes
to go to and return from the exercise area”); see also (SOMF ¶ 5, Dorano Decl., Exhibit. “A,” pgs. 61, 67, Dkt. No. 68-17).
Finally, Plaintiff testified that he did not have any issues with his regular meals and was given food in accordance with his
practice of Ramadan. See (SOMF ¶ 5, Dorando Decl., Exhibit “A,” pgs. 61, 67, Dkt. No. 68-17). Altogether, the length and
conditions of Plaintiff's confinement were not an “atypical and significant hardship ... in relation to the ordinary incidents of
prison life.” Sandin, 515 U.S. at 484 (1995).
Plaintiff also contends “he was harmed by being in BHU versus SHU” because he was “sad, depressed, distressed, and angry
because he was in SHU” and “he couldn't participate in programming.” (Plaintiff's Response, pg. 12, Dkt. No. 80). This argument
is meritless. See Anthony v. Green, No. 9:22-CV-113 (GLS/ATB), 2022 WL 4939991 *8 (N.D.N.Y. Oct. 4, 2022) (“the law is
well-settled that inmates do not have a constitutional liberty interest in participating in prison programs”) (citations omitted);
see also Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009) (“Restrictive confinements of less than 101 days ... require proof
of conditions more onerous than usual”).
Further, Plaintiff contends that his confinement in the SHU at Clinton C.F. and Great Meadow C.F. violated N.Y. Correction
Law § 137 which, in turn violated the due process clause. (Plaintiff's Response, pg. 11, Dkt. No. 80). 6 Plaintiff's claim is
wrong. N.Y. Correction Law § 137 is a state procedural statute. See N.Y. Cor. L. § 137 (noting that “[t]he commissioner shall
establish programs and classifications procedures designed to assure the ... condition of each incarcerated individual in the care
or custody of the department”). So even if Defendants Bishop and Caringi's decisions violated § 137, those decisions would
not give rise to a due process violation. See Bolden v. Alston, 810 F.2d 353, 358 (2d Cir. 1987) (“State procedural requirements
do not establish federal constitutional rights.”). “At most, any violation of state procedural requirements would create liability
under state law.” Id. Therefore, a violation of a state procedural statute does not amount to a denial of due process under the
Constitution. See Hendrix v. Annuci, 9:20-CV-0743, 2024 WL 1285394 (N.D.N.Y. Mar. 26, 2024).
*20 The Court therefore recommends that summary judgment be granted dismissing plaintiff's Fourteenth Amendment
procedural due process claims with prejudice against Defendants Bishop and Caringi.
VII. Ninth Amendment
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A. Legal Standard
The Ninth Amendment provides in relevant part that “[t]he enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.” U.S. Const. Amend. IX. The U.S. Supreme Court has said that
this provision of the Ninth Amendment, along with the First, Third, Fourth, and Fifth Amendments creates a right of privacy.
See Griswold v. Connecticut, 381 U.S. 479, 484-485 (1965).
The Second Circuit, in an unpublished and non-precedential summary order, extended the penumbral privacy protections of the
Ninth Amendment to “private/personal mental health issues.” See Hunnicutt v. Armstrong, 152 F. App'x 34, 36 (2d Cir. 2005)
(holding that there is a Ninth Amendment violation when prison employees discuss private/personal mental health issues in
front of other prison employees and other prisoners in violation of psychiatrist/psychologist-patient privilege). But Hunnicutt
is not limitless. Courts have determined that prison officials can infringe on an incarcerated person's right to privacy if their
actions are “reasonably related to legitimate penological interest.” Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999).
B. Analysis
Defendants Bishop and Deans did not violate Plaintiff's right to privacy. To start, Defendant Deans is not personally involved
in the alleged violation of Plaintiff's Ninth Amendment rights. The disclosure of Plaintiff's mental health designation was in
the letter written by Defendant Bishop which was written after Defendant Deans assembled the criminal referral packet which
logically means that Defendant Deans did not know of the disclosure. (Bishop Decl., ¶ 13, Exh. “A,” pg. 6, Dkt. No. 68-9).
As a result, Defendant Deans did not have “intentional participation in the conduct constituting a violation of” Plaintiff's right.
Provost, 262 F.3d at 155. In short, Defendant Deans was not personally involved.
But even if Defendant Deans conduct constituted personal involvement, both Defendants Deans and Bishop's conduct did not
violate Plaintiff's right to privacy. The only information that was disclosed to the Clinton County District Attorney's office in
Defendant Bishop's letter was Plaintiff's OMH 1S designation which does not create a constitutional violation. See Ruple v.
Bausch, No. 09-CV-1108 (NAM/DRH), 2010 WL 3171783, at *4 (N.D.N.Y. Jul. 21, 2010) (disclosure of inmate's depression
not type of medical information expected to “invoke discrimination, intolerance, or violence”), adopted by 2010 WL 3171813
(N.D.N.Y. Aug. 11, 2010); see also Williams v. Perlman, No. 06-CV-936 (GLS/DEP), 2009 WL 1652193, at *11 (N.D.N.Y.
Feb. 5, 2009) (dismissing right to privacy claim regarding psychiatric condition where inmate failed to alleged “existence of
any condition of such a magnitude or nature as to place it on par with HIV positive status or transsexualism which was disclosed
indiscriminately to non-medical personnel”), adopted in relevant part by 2009 WL 1652188 (N.D.N.Y. June 10, 2009).
*21 The disclosure of Plaintiff's OMH 1S designation was related to a legitimate penological purpose. Defendant Bishop
disclosed Plaintiff's OMH designation to the Clinton County District Attorney's office to pursue criminal charges against
Plaintiff. Disclosing mental health information related to an assault—an assault which forms the basis of criminal charges—
is related to a legitimate penological purpose. 7
The Court therefore recommends that summary judgment be granted dismissing with prejudice Plaintiff's Ninth Amendment
claim for disclosure of private information against Defendants Bishop and Deans.
VIII. Qualified Immunity
Since the Court is recommending that summary judgment be granted dismissing all of plaintiff's claims, it need not address
Defendants’ alternative qualified immunity argument. See Warren v. Corcoran, No. 9:09-CV-1146 (DNH/ATB), 2011 WL
5599587, at *8 (N.D.N.Y. Oct. 20, 2011) (“This court need not address qualified immunity with respect to [the] plaintiff's
various causes of action because ... he has not established any alleged violations of his constitutional rights.”), report and
recommendation adopted, 2011 WL 5599620 (N.D.N.Y. Nov. 17, 2011).
WHEREFORE, based on the findings above, it is
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RECOMMENDED, that Defendants’ motion for summary judgment (Dkt. No. 68) be GRANTED IN ITS ENTIRETY, and
it is further
RECOMMENDED, that Plaintiff's claim for excessive force against Doe 1 be DISMISSED WITH PREJUDICE as Plaintiff
has neither ascertained the identify of Doe 1 nor pursued his claim against this Defendant; and it is further
RECOMMENDED, that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE
against all Defendants; and it is
ORDERED that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing
report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
All Citations
Slip Copy, 2025 WL 935237
Footnotes
1 The Court notes that Plaintiff has neither ascertained the identify of Doe 1 nor pursued his claim against this defendant.
Therefore, the Court recommends that Plaintiff's claim for excessive force against Doe 1 be dismissed with prejudice
and that Doe 1 be terminated as a defendant in this action.
2 Plaintiff was provided with the requisite notice. (Dkt. Nos. 68, 69).
3 This committee was formerly known as the “Inmate Grievance Resolution Committee,” but has recently been renamed.
4 The program was formerly known as the “Inmate Grievance Program,” but has recently been renamed.
5 The balance of this statement is illegible, as it appears to be covered by the CM/ECF banner.
6 Plaintiff also claims that defendants Bishop and Caringi's decisions violates the Mental Hygiene law, which gives rise
to a due process violation. This claim is meritless because no Mental Hygiene law statute is implicated.
7 In fact, under New York's discovery laws, specifically C.P.L. 245.20(K)(ii), (vii), Plaintiff's mental health status would
be information the prosecution would have to turn over to him so that he could put on a proper defense to the charges.
See C.P.L. 245.20(K).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Green v. Maldonodo, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 3568662
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Courtney GREEN, Plaintiff,
v.
Edward MALDONODO, Gary Wright, Johnny Wright, Richard Furey,
Kopacz C/O Administrative Remedies Coordinator, Defendants.
3:17-cv-00957 (CSH)
|
Signed 08/17/2017
Attorneys and Law Firms
Courtney Green, Somers, CT, pro se.
INITIAL REVIEW ORDER
CHARLES S. HAIGHT, JR., SENIOR UNITED STATES DISTRICT JUDGE
*1 Plaintiff Courtney Green, currently incarcerated at Osborn Correctional Institution (“Osborn”) in Somers, Connecticut,
filed this complaint pro se pursuant to 42 U.S.C. § 1983. He has named as Defendants Warden Edward Maldonado, Deputy
Warden Gary Wright, Dr. Johnny Wright, Health Services Administrator Richard Furey, and Correctional Officer Kopacz. Each
Defendant is sued only in his or her individual capacity. Plaintiff contends that Defendants have discriminated against him based
on his disability and subjected him to unconstitutional conditions of confinement.
I. STANDARD OF REVIEW
Under section 1915A of title 28 of the United States Code, the Court must review all prisoner civil complaints against
governmental actors, and dismiss any portion of the complaint that “is frivolous, malicious, or fails to state a claim upon which
relief may be granted,” or that “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)
(1),(2). In reviewing a pro se complaint, the Court must assume the truth of the allegations, and interpret them liberally to “raise
the strongest arguments [they] suggest[ ].” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007); see also Sykes v. Bank of Am.,
723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). Although
detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims
and the grounds upon which they are based. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). A plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “Even in a pro se case, however ... threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court “invent factual allegations”
plaintiff has not pleaded. Id.
II. FACTUAL ALLEGATIONS
The factual allegations contained in Green's Complaint are recounted herein, recited in the light most favorable to Green. On
or about October 21, 2016, Green was transferred to Osborn. Doc. 1 ¶ 1. He was housed in “E-Unit, 24 cell,” which was in
emergency lockdown. Id. After three days, he was allowed to shower. Id. When he entered the shower, it was a small room
with a grated steel door and a window that allowed him to see into the corridor and those in the corridor to see him. Id. The
floor of the shower appears to be made of tile over a concrete floor that is always very wet and slippery. Id. There is nothing
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to hold onto in the shower to keep ones balance and prevent one from falling over. Id. There is also about a three foot wall that
Green has to step over to enter and exit the shower. Id.
In the middle of November 2016, Green wrote to “counselor supervisor Long,” the American Disabilities Act (“ADA”)
coordinator at Osborn through an inmate request regarding the shower seeking an accommodation. Id. ¶ 2. Long did not respond
to Green's request for a shower accommodation. Id. On or about December 1, 2016, Green was sent to Dr. Wright regarding
an unrelated issue to the claim of ADA discrimination; however, during the meeting Green asked for assistance in obtaining
accommodations for a shower in the housing unit that would not require him to step over the wall to get in and out of the shower.
Id. ¶ 3. Dr. Wright explained that he was unaware of the wall and inquired as to why Green needed the accommodations. Id.
Green showed Dr. Wright his surgically repaired leg and ankle, which are also arthritic. Id. Dr. Wright agreed that Green's leg
was impaired and issued him a bottom bunk pass. Id. Dr. Wright informed Green that he did not meet the criteria or requirements
for specialized housing where there are handicap-accessible showers despite admitting that Green had a physical impairment.
Id. ¶ 4. Green asked about the requirements and Dr. Wright expressed that an inmate must be wheelchair bound, missing a limb,
on crutches, or require the use of a cane to obtain the specialized housing. Id. Dr. Wright informed Green that there were inmates
in far worse shape than him. Id. Dr. Wright never examined or treated Green's leg or ankle and did not log any complaint about
Green's leg or ankle. Id. ¶ 5.
*2 On or about December 5, 2016, Green wrote to his unit counselor McMillian via an inmate request, seeking a facility
transfer to accommodate his needs for a shower due to his physical impairment. Id. ¶ 6. McMillian responded that Green
had been submitted for a facility transfer, which was subsequently denied. Id. On or about December 6, 2016, Green filed an
appeal based on Long's failure to reply to his request in a timely manner, violating Administrative Directive 9.6(6)(C). Id. ¶ 7.
Shortly thereafter, Green wrote to Deputy Warden Gary Wright via an inmate request seeking a change in housing for a unit
that had a shower without the three foot wall. Id. ¶ 8. Deputy Warden Wright did not respond to Green's complaint, which is
a common practice at Osborn. Id. On December 15, 2016, Green requested reasonable accommodations by filing “CN 101902
form pursuant to CT Department of Corrections.” Id. ¶ 9.
On or about January 10, 2017, Green's ADA appeal was returned by Correctional Officer Administrative Remedies Coordinator
Kopaz. Id. ¶ 10. The disposition reflects the wrong year in its date by mistake. Id. ¶ 11. The reason for the rejection of the
appeal was because an appeal can be filed only when a decision by the ADA coordinator had been made. Id. Because no such
decision had been made at the time of the appeal, Green's appeal was rejected. Id. Kopaz signed Green's ADA form explaining
that he had exhausted his Administrative Remedies even though he never received a formal decision. Id. Green believes this
was done to “create impediments” in his request to obtain remedies and accommodations. Id. Warden Maldonado also signed
Green's ADA appeal. Id.
Shortly thereafter Green saw Captain Manning, the first shift commander, during a tour of B-Unit, Green's current housing unit.
Doc. 1 ¶ 12. He asked Manning if Kopacz was trained or certified in ADA compliance and Manning told him that Kopacz
was not; only Captain Colon and Long are trained and certified in ADA compliance. Id. On February 1, 2017, Green received
his “CN 101901 form” and it was denied because Green did not meet the requirements for specialized housing based on Dr.
Wright's review. Id. ¶ 13. Deputy Warden Wright and Richard Furey signed this declination. Id. In the later part of February
2017, Green became aware of a December 30, 2016 email regarding his ADA accommodations. Id. ¶ 14. In the email, which
was between Furey, Elizabeth Mahar, and Dr. Wright, Furey emailed Mahar saying that Green should be seen by a doctor to
determine if he needs a handicapped shower. Id. Furey remarked that Green “[c]laims he has a rod in his leg that does not allow
him to step over the shower wall” and that “[t]his is an ADA request so once seen, contact Devonia Long, as she has to close out
the ADA accommodation form.” Id. Dr. Wright later responded saying “I have already seen this inmate and he questioned me in
regards to ADA accommodation. I informed him that he did not meet the criteria for ADA accommodations. This was noted in
his chart because it was informal, oh by the way inquiry. If necessary, I can make a formal documentation in his chart.” Id. Green
is currently still subjected to these “dangerous shower conditions,” which have forced “him to walk on very slippery surfaces
and step over a 3ft wall to participate in the benefits of the services, programs or activities of a public entity (shower).” Id. ¶ 15.
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Green's Complaint contains three specific causes of action. Doc. 1 at 5-6. However, the Court will construe his causes of action
liberally to raise the strongest claim suggested. Green asserts a § 1983 claim based on the negligence and actions of each of the
Defendants in failing to accommodate his serious needs in violation of the Eighth Amendment. Id. at 6. According to Green, he
was deprived of the “minimal civilized measure of life's necessities (shower accommodations)” by Defendants and this violated
his right to be free from cruel and unusual punishment. Id. at 5. Green also asserts that he been discriminated against based on
his disability/impairment and has not been provided a reasonable accommodation for his medical needs. Id. at 5. He asserts this
claim against each of the Defendants. Id. Although he labels it a § 1983 claim based on a violation of his Eighth Amendment
rights, his allegations are more properly construed as an ADA violation claim, 42 U.S.C. § 12101, et seq. Finally, he asserts
a § 1983 claim based on the denial of his rights under the Fourteenth Amendment because he was denied equal treatment and
discriminated against because of his disability/impairment. Id. at 6. He also asserts this claim against each of the Defendants.
Id. Green seeks declaratory relief, compensatory and punitive damages as well as reasonable attorneys's fees and costs. Id. at 7.
III. DISCUSSION
*3 The Court will assess each of Green's three claims to determine whether any claim “is frivolous, malicious, or fails to state
a claim upon which relief may be granted,” or a claim that “seeks monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b)(1),(2). The Court will address each claim.
A. Eighth Amendment Claim
The Eighth Amendment's prohibition on cruel and unusual punishment includes a prohibition on inhumane conditions of
confinement. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 828 (1994)).
The standard for an inhuman conditions claim contains both an objective and a subjective component: objectively, “the prison
officials' transgression” must be “ ‘sufficiently serious’ ” and subjectively, “the officials [must have] acted, or omitted to act,
with a ‘sufficiently culpable state of mind,’ i.e. with ‘deliberate indifference to inmate health or safety.’ ” Id. at 185 (quoting
Farmer, 511 U.S. at 834). “Under the objective element, while the Constitution ‘does not mandate comfortable prisons,’ inmates
may not be denied ‘the minimal civilized measure of life's necessities.’ ” Alster v. Goord, 745 F. Supp. 2d 317, 335 (S.D.N.Y.
2010) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Thus, prison officials cannot “deprive inmates of their ‘basic
human needs—e.g., food, clothing, shelter, medical care, and reasonable safety.’ ” Id. (quoting Helling v. McKinney, 509 U.S.
25, 32 (1993)). Such needs include the “essential bodily functions of toileting and showering.” Id. at 336 (quoting Hudson v.
McMillian, 503 U.S. 1, 9 (1992)) (internal quotation marks omitted). “Claims of such deprivations are generally found to be
sufficiently grave when they involve the possibility of serious pain or injury.” Montalvo v. Koehler, No. 90 Civ. 5218, 1992
WL 396220, at *4 (S.D.N.Y. Dec. 21, 1992) (collecting cases). Prison officials also cannot expose prisoners to conditions that
may pose an unreasonable risk of serious damage to the prisoners' future health. Alster, 745 F. Supp. 2d at 335 (citing Phelps,
308 F.3d at 185).
Here, construing Green's allegations liberally, he alleges that he has been forced to shower in unsafe conditions given his current
health and surgically repaired leg. 1 The manner in which he has been forced to shower has repeatedly subjected him to the
possibility of serious injury. He is essentially alleging that he is being exposed to conditions that “ ‘pose an unreasonable risk’
” of serious injury to him given his current injuries and disability. See Alster, 745 F. Supp. 3d at 335 (quoting Phelps, 308 F.3d
at 185). These are sufficient allegations to establish the objective element of an Eighth Amendment claim at this stage. See
Montalvo, 1992 WL 396220, at *4. 2
*4 To establish the subjective element of an Eighth Amendment claim, a plaintiff must demonstrate each of the individual
defendants “act[ed] with a sufficiently culpable state of mind.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation
and internal quotation marks omitted). Although Green's allegations are limited, construing them liberally, he does allege that, at
different points and through different means, he made each of the Defendants aware of his disability and the conditions as well
as the specific problem presented by the shower. He sought an ADA accommodation and was denied. He appealed that decision.
According to the allegations, each of the Defendants had some role in keeping Green from accessing a handicap shower or other
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accommodation for his disability. Although at one point he phrases the claim as “negligence” on part of the Defendants, he also
alleges that they took these actions deliberately and in the face of evidence of his disability and/or in wilful ignorance. These
allegations are sufficient at this stage. See, e.g., Grullon v. City of New Haven, 720 F.3d 133, 140-41 (2d Cir. 2013) (holding
that where a pro se prisoner plaintiff alleges that he informed a supervisor about an ongoing and continuing unconstitutional
prison condition that the supervisor personally allowed to continue, a claim for supervisory liability may survive dismissal at
the Rule 12(b)(6) stage and be subject to discovery).
In summary, Green has stated an Eighth Amendment claim against each of the Defendants for exposing him to conditions that
posed, and continue to pose, and unreasonable serious risk of harm to him given his disability.
B. ADA Claim
The purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA provides that “no qualified individual with
a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The statute is intended
“to ensure evenhanded treatment between the disabled and the able-bodied.” Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).
However, “[t]he ADA does not provide for individual capacity suits against state or city officials.” Alster, 745 F. Supp. 2d at 337
(citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)). Here, Green has chosen only to sue
each Defendant in his or her individual capacity. Accordingly, to the extent Green has attempted to plead any ADA individual
capacity claims, such claims must be dismissed.
Green could possibly assert a valid ADA claim against the appropriate state entity, the Connecticut Department of Correction,
which is not currently a defendant in this action. 3 However, “to establish a violation under the ADA, the plaintiff[ ] must
demonstrate that (1) [he] is [a] qualified individual[ ]' with a disability; (2) that the defendants are subject to the ADA; and
(3) that plaintiff [ ] w[as] denied the opportunity to participate in or benefit from defendants' services, programs, or activities,
or w[as] otherwise discriminated against by defendants, by reason of plaintiff['s] disabilities.” Id. (quoting Henrietta D. v.
Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). The Court will allow Plaintiff the opportunity to amend his Complaint to add the
state entity defendant and properly assert an ADA claim against it. The plaintiff must do so by September 15, 2017. The Court
notes, however, that in order to show that a plaintiff is a “ ‘qualified individual with a disability,’ the plaintiff must establish
that he has a physical or mental impairment and provide evidence that such impairment ‘substantially limits one or more of that
person's major life activities.’ ” Andino v. Fischer, 698 F. Supp. 2d 362, 378 (S.D.N.Y. 2010) (quoting Heilweil v. Mount Sinai
Hospital, 32 F.3d 718, 722 (2d Cir. 1994)). Plaintiff, at present, has not described his impairment to the extent that this Court
could conclude he has adequately pled that he is a qualified individual under the ADA. If Plaintiff amends his Complaint, he
must add allegations supporting this element, and the other two elements as well, of his ADA claim. 4
C. Equal Protection Claim 5
*5 The Equal Protection Clause requires that the government treat similarly situated people in a similar manner. City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “To prove a violation of the Equal Protection Clause ... a
plaintiff must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful
discrimination.” Shariff v. Coombe, 655 F. Supp. 2d 274, 302 (S.D.N.Y. 2009) (quoting Phillips v. Girdich, 408 F. 3d 124, 219
(2d Cir. 2005)) (internal quotation marks omitted). “A plaintiff also must demonstrate that any disparity in treatment cannot
withstand the appropriate level of scrutiny.” Id. The disabled, however, are not a suspect or quasi-suspect class, and therefore,
rational basis scrutiny—that the disparity be rationally related to a legitimate governmental purpose—applies. Id. Additionally,
a plaintiff may bring a “class of one” equal protection claim “where the plaintiff alleges that [he] has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000). “The standard for determining whether another person's circumstances are similar to the
plaintiff's must be ... whether they are ‘prima facie’ identical.” Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005) (quoting
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Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)), overruled on other grounds by Appel v. Spiridan, 531
F.2d 138, 139-40 (2d Cir. 2008).
Here, Green does not appear to allege that differential treatment has been imposed upon him; instead, he is alleging that he was
denied a reasonable accommodation for his disability. 6 He fails to point to anyone similarly situated who received different
treatment, and does not allege that others suffering from his condition were granted the accommodation. See Medina v. Skowron,
806 F. Supp. 2d 647, 652-53 (W.D.N.Y. 2011) (dismissing an equal protection claim where a plaintiff had not identified any
similarly situated inmates treated differently from him). Rather, his allegations reveal that Dr. Wright did not believe he qualified
for the accommodation even though Dr. Wright granted that his condition would require being situated on a lower bunk. Green
does not allege any facts from which the Court could conclude that Dr. Wright, or the other individual defendants, sought to
treat him differently on account of his disability or without any rational basis for doing so. See Darvie, 2010 WL 3724122, at *4
(dismissing an equal protection claim where a plaintiff had not “alleged facts plausibly suggesting or produced evidence raising a
triable issue of fact that Defendants' decision to transfer him was arbitrary, motivated by animus, or motivated by impermissible
considerations.”). Because Green has failed to identify any similarly situated individuals who were treated differently from him,
let alone any with an “extremely high” level of similarity between them, Green's equal protection claim must be dismissed. See
Medina, 806 F. Supp. 2d at 652-53.
IV. CONCLUSION
Following this Court's review of Plaintiff's Complaint, and for the reasons stated, the Court makes this Order:
1. Plaintiff's Complaint is DISMISSED to the extent it seeks to plead (a) any claim pursuant to the ADA against the Defendants
in their individual capacities; and (b) any § 1983 claims based on the Equal Protection Clause. Those dismissals are made
pursuant to 28 U.S.C. § 1915A(b).
2. Plaintiff's Complaint § 1983 claims based on a violation of the Eighth Amendment WILL PROCEED against each named
Defendant in their individual capacities.
3. To the extent that Green can remedy the failures in his Complaint noted by the Court in this Ruling and assert an ADA claim
against the appropriate state entity, the Connecticut Department of Correction, Green may file an Amended Complaint seeking
to add that specific claim and the appropriate defendant. Green must do so by September 15, 2017. If Green does not, the case
will proceed on Green's § 1983 claims based on a violation of the Eighth Amendment.
*6 For the proper governance of the case, the Court also makes these additional Orders:
4. The Clerk shall verify the current work address of Defendants Warden Edward Maldonado, Deputy Warden Gary Wright,
Dr. Johnny Wright, Health Services Administrator Richard Furey, and Correctional Officer Kopacz with the Department of
Correction Office of Legal Affairs and mail a waiver of service of process request packet to each defendant at the confirmed
address within twenty-one (21) days from the date of this Order. The Clerk shall report to the Court the status of that waiver
request on the thirty-fifth (35th) day after mailing. If any Defendant fails to return the waiver request, then the Clerk shall
make arrangements for in-person service by the U.S. Marshals Service on the Defendant in his or her individual capacity and
Defendant shall be required to pay the costs of such service in accordance with Federal Rule of Civil Procedure 4(d).
5. The Clerk shall send a copy of this Order to Plaintiff. The Clerk shall also send a courtesy copy of the Complaint and this
Order to the Connecticut Attorney General and the Department of Correction Office of Legal Affairs.
6. Defendants shall file their response to the Complaint, either an answer or a motion to dismiss, within sixty (60) days from
the date the waiver form is sent. If they choose to file an answer, then they shall admit or deny the allegations and respond
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to the cognizable claims recited above. They may also include any and all additional defenses permitted by the Federal Rules
of Civil Procedure.
7. Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be completed within seven months (210 days)
from the date of this Order. Discovery requests need not be filed with the Court.
8. All motions for summary judgment shall be filed within eight months (240 days) from the date of this Order.
9. Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed. If no response is filed, or the response is not timely, the dispositive motion can be granted
absent objection.
10. If Plaintiff changes his address at any time during the litigation of this case, Local Court Rule 83.1(c)2 provides that plaintiff
MUST notify the court. Failure to do so can result in the dismissal of the case. Plaintiff must give notice of a new address even
if he is incarcerated. Plaintiff should write PLEASE NOTE MY NEW ADDRESS on the notice. It is not enough to just put
the new address on a letter without indicating that it is a new address. If plaintiff has more than one pending case, he should
indicate all of the case numbers in the notification of change of address. Plaintiff should also notify the defendant or the attorney
for the defendant of his new address.
11. Plaintiff shall utilize the Prisoner Efiling Program when filing documents with the Court.
It is SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 3568662
Footnotes
1 The Court recognizes that the conditions of the shower, i.e. the standing water or slippery surface, alone would not give
rise to an Eighth Amendment claim. See Hawkins v. Nassau Cnty. Corr. Facility, 781 F. Supp. 2d 107, 113 (E.D.N.Y.
2011) (collecting cases) (holding that alleged standing water in a shower area does not deprive an inmate of a basic
human need and, thus, cannot give rise to a constitutional violation). Here, however, Green has claimed that he has a
disability which is exacerbated by the set up and conditions of the shower, placing him repeatedly at risk of serious harm.
2 Absent from Greene's allegations are any details on whether he has in fact been injured because of how he has been
forced to use the shower or whether he has been deprived of the ability to shower altogether. Such allegations, however,
are not necessarily required to state an Eighth Amendment claim. See Montalvo, 1992 WL 396220, at *4 n.6 (“However,
actual injury is not necessary to show that a policy exhibits reckless indifference to [plaintiff's] safety.”) (citing Rivera
v. Dyett, No. 88 Civ. 4707, 1992 WL 233882, at *7 (S.D.N.Y. Sept. 10, 1992)). Related to other claims, Green will have
the opportunity to amend his Complaint. To the extent he has in fact been injured or deprived of the use of the shower,
he should explain such instances in detail.
3 The Court notes that where, as would likely be the case here, when “a plaintiff may proceed on his ADA claims against
the State entity directly, courts in this Circuit ‘dismiss [ ] the official capacity claims because they [are] redundant of
the claims against the government entity.’ ” Alster, 745 F. Supp. 2d at 339 (quoting Fox v. State Univ. of N.Y., 497 F.
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Supp. 2d 446, 451 (E.D.N.Y. 2007)). Moreover, other courts in this Circuit have held that official capacity claims are
not viable under the ADA. Fox, 497 F. Supp. 2d at 451 (collecting cases).
4 In addition, Plaintiff can only make an ADA claim if the conduct he complains of also violates the Eighth Amendment.
See Darvie v. Countryman, No. 9:08-cv-0715, 2010 WL 3724122, at *4-5 (N.D.N.Y. April 26, 2010) (citing Degrafinreid
v. Ricks, 417 F. Supp. 2d 403, 411-13 (S.D.N.Y. 2006)), adopted by 2010 WL 3724020 (N.D.N.Y. Sept. 15, 2010).
Because the Court has found that Plaintiff's Eighth Amendment claim should be allowed to proceed, this would not pose
an issue currently to Plaintiff. However, if this claim is unfounded, any ADA claim will fail as well.
5 In his Complaint Green phrases this claim as a “denial of due process” but goes on to allege that he was not treated in
an “equal” manner and discriminated based on his disability. The facts, as currently plead in his Complaint, even when
liberally construed, do not appear to support a cognizable due process claim. Thus, the Court analyzes this claim as an
equal protection claim and not a due process claim.
6 Moreover, the Supreme Court has made clear that the denial of a reasonable accommodation cannot form the basis of
an Equal Protection claim so long as the actions toward the inmate were rational. See Coombe, 655 F. Supp. 2d at 302.
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2013 WL 5274226
Only the Westlaw citation is currently available.
United States District Court, D. Idaho.
Rodney PLANT, Plaintiff,
v.
CMS, Sergeant Smith, Kim Spaulding, Dr. April Dawson, and Dr. Garth Gulick, Defendants.
No. 1:11–cv–00316–BLW.
|
Sept. 18, 2013.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief Judge.
*1 Pending before the Court is Plaintiff's Motion to Compel Kim Spaulding (Dkt.42), Plaintiff's Verified Motion for Telephonic
Hearing With Notice (Dkt.43), Plaintiff's Motion for Appointment of Counsel (Dkt.45), Plaintiff's Motion to Amend and
Supplement (Dkt.50), Plaintiff's Motion to Compel and Request for Telephonic Hearing (Dkt.53), Defendant Dr. April Dawson's
Motion for Summary Judgment (Dkt.58), Plaintiff's Motion to Deny Motion for Summary Judgement (Dkt.61), Plaintiff's
Motion to Object, Strike and Impeach the Affidavit of Dr. David Agler (Dkt.64) and Defendant Dr. April Dawson's Motion to
Strike Plaintiff's Supplemental Response (Dkt.67).
The Court finds that the parties have adequately stated the facts and legal arguments in their briefs and that the decisional process
would not be significantly aided by oral argument. In the interest of avoiding delay, the Court will decide these matters on the
written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1.
For the reasons that follow, the Court will deny all pending motions, except for Dr. April Dawson's Motion for Summary
Judgment. Dr. Dawson will be dismissed from this case with prejudice.
BACKGROUND
Plaintiff Rodney Plant (“Plaintiff”) is an inmate in the custody of the Idaho Department of Corrections. He is currently housed
at the Idaho Correctional Center (“ICC”). Between April 2004 and September 2005 and between October 2007 and November
2008, Plaintiff was housed at the Idaho Maximum Security Institution (“ISMI”) (Dkt. 58–8, Affidavit of Dr. April Dawson
in Support of Dr. April Dawson's Motion for Summary Judgment (“Dawson Aff.”), Ex. A.) At all times relevant to Plaintiff
Second Amended Complaint, Plaintiff was housed at ISMI.
Plaintiff damaged the foot of his prosthetic left leg playing handball in late March 2008. (Dkt. 58–5, Deposition of Rodney Plant
(“Plant Depo.”), 31:6–7.) He filed several concern forms with “medical” seeking a cane and repair of his prosthetic. (Dkt. 58–
4, IDOC Offender Concern Forms dated 3/30/08, 4/06/08, 4/13/08.) A cane was provided approximately three to four weeks
later. (Id ., IDOC Offender Concern Form dated 5/12/08.) Plaintiff claims it took “three-and-a-half-months” for his prosthetic
to be replaced. (Dkt. 58–5, Plant Depo., 38:4–14.)
On August 7, 2012, Plaintiff filed a Second Amended Complaint alleging deliberate indifference against Corizon, CCA, Kim
Spaulding, Dr. April Dawson and Dr. David Agler for failing to timely replace his prosthetic leg, and for failing to provide
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him with a cane, crutch or wheelchair while his prosthetic leg was being replaced. (Dkt.16.) Plaintiff claims he had to hobble
on his broken prosthetic leg during this time period, resulting in permanent damage to his other leg and foot. (Id. at ¶ 13.) On
September 7, 2012, the Court reviewed the Second Amended Complaint pursuant to 28 U.S.C. § 1915A, and entered an Order
permitting Plaintiff to proceed on his Eighth Amendment claim against Defendants Kim Spaulding, Dr. Dawson and Dr. Agler.
(Dkt.17 .) Dr. Agler has since been dismissed from the suit. (Dkt.68.)
*2 The following motions were subsequently filed by the parties.
MOTION TO COMPEL KIM SPAULDING
1. Standard
Federal Rule of Civil Procedure 26(b) allows parties to “obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense,” but discovery requests must be reasonable. The term “relevant” includes information that is
“reasonably calculated to lead to the discovery of admissible evidence” and that “need not be admissible at the trial.” Fed.R.Civ.P.
26(b)(1). However, district courts have broad discretion to apply the discovery rules in a way that will achieve the policy of
the Federal Rules of Civil Procedure, which is to “secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed.R.Civ.P. 1.
If the answering party fails to adequately respond to discovery, the propounding party can move for an order compelling
discovery under Federal Rule of Civil Procedure 37(a). A court should deny a motion to compel if the information requested
falls outside the scope of discovery. See Nugget Hydroelectric, L.P. v. Pacific Gas & Elec. Co., 981 F.2d 429, 438–39 (9th
Cir.1992), cert. denied, 508 U.S. 908 (1993). In addition, a court “may issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(d)(1).
2. Discussion
In the present matter, Plaintiff requests that Defendant be ordered to “answer discovery objections with something besides as
objection.” (Dkt.42, p. 1.) In addition, Plaintiff seeks to compel Defendant Spaulding and her counsel to produce “all notes,
copies of concern forms, and grievances, and all information regarding opointments [sic], whith [sic] Idaho Orthotics [sic] and
Prosthetics, and answer all questions regarding such....” (Dkt.42, p. 2.) However, as Defendant notes, Plaintiff fails to identify
the specific answers which Plaintiff finds objectionable.
The Court will deny the motion and instruct Plaintiff that if he cannot settle discovery matters with opposing counsel in the
future, he needs to set forth in his briefing the following: 1) the specific discovery request at issue (interrogatory, request for
production and/or request for admission), (2) Defendant's specific objection and/or response to that discovery request, and (3)
Plaintiff's argument under the Federal Rules of Civil Procedure as to why Defendant's response is insufficient.
The Court will, however, remind Defendant of her duty to supplement her disclosures and responses. Fed.R.Civ.P. 26(e). Copies
of “concern forms and grievance forms” are certainly documents which, if not already provided by Defendant, should be
supplemented by Defendant as a grievance coordinator in a lawsuit under the Eighth Amendment.
VERIFIED MOTION FOR TELEPHONIC HEARING
Plaintiff requests a telephonic hearing in regards to his Motion to Compel Kim Spaulding. (Dkt.43.) However, the Court
concludes that a hearing at this time is unnecessary. In the interest of avoiding delay, the Court will decide this matter on the
written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1. Accordingly, the Court will deny the motion.
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MOTION FOR APPOINTMENT OF COUNSEL
*3 Plaintiff requests the appointment of counsel. (Dkt.45.) Unlike criminal defendants, prisoners in civil actions have no
constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981).
Whether a court appoints counsel is within the court's discretion, and counsel should be appointed only in “extraordinary cases.”
Wilborn v. Escalderon, 789 F.2d 1328, 1330–31 (9th Cir.1986). To determine whether extraordinary circumstances exist, the
court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff
to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir.1991).
Plaintiff's Motion makes no argument regarding his likelihood of prevailing on the merits. Furthermore, the Court concludes
that Plaintiff has demonstrated the ability to represent himself and that no compelling reason exists to find volunteer counsel to
assist him. Accordingly, Plaintiff's motion will be denied. If it later appears that Plaintiff's claims appear to have potential merit
and the case is sufficiently complex to call for the assistance of counsel, the Court may reconsider its decision at that time.
MOTION TO COMPEL AND REQUEST FOR TELEPHONIC HEARING
Plaintiff's Motion (Dkt.53) seeks the same relief requested in his previous motions (Dkts. 42 and 43). The Court will deny this
Motion on the same grounds discussed above.
DR. APRIL DAWSON'S MOTION FOR SUUMARY JUDGMENT
Defendant Dr. April Dawson has been a physician at the Idaho Maximum Security Institution (“ISMI”) since August 2005.
(Dkt. 58–7, Dawson Aff., ¶ 4.) In addition, from August 2005 to April 2009, she was the Idaho Regional Medical Director for
Corizon, Inc. (Id.) While Plaintiff was housed at ISMI in 2008, Defendant met with Plaintiff on several occasions regarding the
repair and replacement of his prosthetic left leg and the alleged pain in his right foot. (Id. at ¶ 10.) Plaintiff alleges in his Second
Amended Complaint that Defendant Dawson failed to timely replace his prosthetic leg and failed to provide him a cane, crutch
or wheelchair while the prosthetic leg was being replaced. (Dkt.16.) He contends that Defendant's deliberate indifference to his
medical needs violated his Eighth Amendment right against cruel and unusual punishment. (Id.)
In her Motion for Summary Judgment, Dr. Dawson counters that the replacement of Plaintiff's prosthetic leg was not a serious
medical need; Plaintiff received medically appropriate care and treatment from Dr. Dawson; and, even if Plaintiff did not receive
medically appropriate care and treatment from Dr. Dawson, there is no evidence to indicate Plaintiff suffered harm as a result of
the alleged indifference or that Dr. Dawson had the requisite state of mind to support a deliberate indifference claim against her.
(Dkt.58–2.) The Court concludes that there are no genuine issues of material fact and that Dr. Dawson is entitled to judgment
as a matter of law.
1. Summary Judgment Standard
*4 Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). One of the principal
purposes of the summary judgment rule “is to isolate and dispose of factually unsupported claims....” Celotex Corp. v. Catrett,
477 U.S. 317, 323–24 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually
insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption
of public and private resources.” Id. at 327.
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“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The requirement is that there
be no genuine dispute as to any material fact. Material facts are those “that might affect the outcome of the suit.” Id. at 248.
“Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The moving party is entitled to summary judgment if that party
shows that each material fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular
parts of materials in the record, or show that the adverse party is unable to produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1)(A) & (B). The Court must consider “the cited materials,” but it may also consider “other materials in
the record.” Fed.R.Civ.P. 56(c)(3).
If the moving party meets its initial responsibility, then the burden shifts to the opposing party to establish that a genuine dispute
as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, “there must be evidence
on which the jury could reasonably find for the [non-moving party].” Liberty Lobby, 477 U.S. at 252.
Material used to support or dispute a fact must be “presented in a form that would be admissible in evidence.” Fed.R.Civ.P.
56(c)(2). Affidavits or declarations submitted in support of or in opposition to a motion “must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). If a party “fails to properly support an assertion of fact or fails to properly address another party's
assertion of fact,” the Court may consider that fact to be undisputed. Fed.R.Civ.P. 56(e)(2). The Court may grant summary
judgment for the moving party “if the motion and supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3).
*5 The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. Although
all reasonable inferences which can be drawn from the evidence must be drawn in a light most favorable to the non-moving
party, T.W. Elec. Serv., Inc., 809 F.2d at 630–31, the Court is not required to adopt unreasonable inferences from circumstantial
evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.1988).
To state a claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal
statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420
(9th Cir.1991).
2. Deliberate Indifference
Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show
“deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). In the Ninth Circuit, the
test for deliberate indifference consists of two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir.1991), overruled on other
grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc). First, the plaintiff must show a “serious medical
need” by demonstrating that “failure to treat a prisoner's condition could result in further significant injury or the “unnecessary
and wanton infliction of pain.' “ Id. at 1059 (citing Estelle, 429 U.S. at 104). Second, the plaintiff must show the defendant's
response to the need was deliberately indifferent. Id. at 1060. The second prong-defendant's response to the need was deliberately
indifferentis satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b)
harm caused by the indifference. Id. Indifference “may appear when prison officials deny, delay or intentionally interfere with
medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. at 1059.
Yet, an “inadvertent [or negligent] failure to provide adequate medical care” alone does not state a claim under § 1983. Id.
(citing Estelle, 429 U.S. at 105). In addition, differences in judgment between an inmate and prison medical personnel regarding
appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. See Sanchez v. Vild,
891 F.2d 240, 242 (9th Cir.1989). If the defendants are able to show that medical personnel have been “consistently responsive
to [the inmate's] medical needs, and there has been no showing that the medical personnel had “subjective knowledge and
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conscious disregard of a substantial risk of serious injury,” a plaintiff's claims may be dismissed by summary judgment prior
to trial. Toguchi v. Chung, 391 F.3d 1051, 1061 (9th Cir.2004).
3. Discussion
A. Serious Medical Need
Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs are “serious.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
*6 Defendant argues that replacement of Plaintiff's prosthetic leg is not a serious medical need. (Dkt.58–2, pp. 6–9.) To support
this argument, Defendant relies on her own medical opinion and that of Dr. David Agler. (See Dawson Aff., ¶ 32; and Affidavit
of Dr. David Agler in Support of Dr. April Dawson's Motion for Summary Judgment (“Agler Aff.”), ¶ 11.) It is Dr. Dawson and
Dr. Agler's medical opinions that it would be medically appropriate and reasonable for Plaintiff to use a cane, crutches, and/or a
wheelchair rather than a prosthetic. (Dawson Aff., ¶ 32 and Agler Aff. ¶ 12.) Defendant argues that Plaintiff's preference to use
a prosthetic rather than a cane, crutches and/or wheelchair does not amount to a deprivation of Defendant's constitutional rights.
(Dkt.58–2, p. 7.) Thus, the fact that it took Plaintiff three-and-a-half months to receive his replacement prosthetic, Defendant
argues, is irrelevant. (Id.)
While the Court is inclined to agree with Defendant's analysis, Plaintiff's Statement of Disputed Facts in Opposition of Dr.
April Dawson's Motion for Summary Judgment and his Second Amended Complaint indicate that he is not merely alleging that
Defendant did not provide him with a replacement prosthetic leg in a reasonable time, but that Defendant also failed to provide
him with a crutch, cane or wheel chair. (Dkt. 63, ¶¶ 7–9; Dkt. 16, ¶ 13.) Given that Dr. Dawson and Dr. Agler have opined that it
would be medically appropriate and reasonable for Plaintiff to use a crutch, cane or wheel chair, the Court concludes that there
is sufficient evidence to indicate a “serious medical need” exists. While a prosthetic leg itself may not be a medical necessity,
Plaintiff has established the need for some sort of assistance, whether it be a prosthetic, crutch, cane or wheelchair.
B. Dr. Dawson's Response
Once a prisoner has established his medical needs, he must show a purposeful act or failure to act on the part of the defendant.
However, as set forth above, the deliberate indifference doctrine is limited in scope. “[T]he indifference to [a prisoner's] medical
needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or medical malpractice' will not support this [claim].” Lemire v.
California Dept. Of Corrections and Rehabilitation, 2013 WL4007558, at * 15 (9th Cir.2013). A defendant must purposefully
ignore or fail to respond to a prisoner's pain or medical need in order for deliberate indifference to be established.
The Court will grant Defendant summary judgment. Plaintiff has demonstrated the serious medical need for a prosthetic, crutch,
cane or wheelchair, but has failed to show that Defendant purposefully ignored or failed to respond to that need. Instead, the
record evidences that Plaintiff's medical need was satisfied before Defendant was ever made aware of the situation. Defendant
Dawson was first informed that Plaintiff damaged the foot of his left prosthetic leg on April, 29, 2008, when she saw Plaintiff for
a scheduled appointment regarding his “sprained” big toe on his right foot. (Dkt. 58–7, Dawson Aff., ¶ 14; Dkt. 58–4, Affidavit
of John J. Burke in Support of Dr. April Dawson's Motion for Summary Judgment (“Counsel Aff.”), Ex. A, Concern Form
dated April 27, 2008.) Prior to the meeting on April 29, 2008, Plaintiff had already received a cane from prison security at IMSI.
(Dkt. 58–7, Dawson Aff., ¶ 25; Dkt. 58–4, Counsel Aff., Ex. A, Concern Form dated May 12, 2008; Dkt. 58–5, Counsel Aff.,
Ex B., 41:16–43:14.) Therefore, since Defendant did not know of Plaintiff's serious medical need he could not purposefully
ignore or fail to respond to the need.
*7 While Plaintiff infers that Defendant should have known and acted earlier on his need for a cane, (Dkt.66, p. 6.), Plaintiff is
essentially arguing supervisor liability and has failed to set forth any evidence in support of that theory. A defendant may be held
liable as a supervisor under § 1983 “if there exists either (1) his or her personal involvement in the constitutional deprivation,
or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Starr v. Baca,
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652 F .3d 1202, 1207 (9th Cir.2011). Plaintiff has not alleged that Defendant was personally involved in any delay in providing
Plaintiff the cane, nor that any wrongful conduct by Plaintiff led to a delay in providing Plaintiff a cane.
Even if the Court concluded that only replacement of the Plaintiff's prosthetic leg would satisfy Plaintiff's medical need, Plaintiff
has not demonstrated that Defendant was deliberately indifferent. A review of the record indicates that Defendant responded to
each Concern Form directed to her by Plaintiff by scheduling medical appointments, talking with the outside prosthetic provider,
updating Plaintiff on the progress of his prosthetic replacement, scheduling multiple x-rays of Plaintiff's foot/toe and conducting
an analysis of Plaintiff's blood in order to determine if Plaintiff had gout or some other issue. Plaintiff's disagreement with
Defendant regarding his treatment does not constitute an Eighth Amendment violation. See Sanchez v. Vild, 891 F.2d 240, 242
(9th Cir.1989). Accordingly, Defendant Dawson is entitled to summary judgment and dismissal.
MOTION TO DENY MOTION FOR SUMMARY JUDGMENT
This Motion (Dkt.61) will be denied based on the Court's decisions under the Motion to Compel (Dkt.42), the Motion for
Appointment of Counsel (Dkt.45) and the Motion for Summary Judgment (Dkt.58).
MOTION TO AMEND AND SUPPLEMENT
1. Standard of Law
Federal Rule of Civil Procedure 15 governs the amendment of civil pleadings before trial. Pursuant to Rule 15(a)(1), a party
may amend a pleading once “as a matter of course” within either (A) 21 days after serving the pleading; or, (B) if the amended
pleading requires a responsive pleading to be filed thereafter, within the earlier of 21 days after service of a responsive pleading
or a Rule 12(b), (e), or (f) motion. Any other amended pleadings cannot be filed absent written consent of the opposing party
or leave of court; however “[t]he Court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).
The Ninth Circuit has explained the reasoning behind allowing the opportunity to amend:
In exercising its discretion with regard to the amendment of pleadings, a court must be guided by the
underlying purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or
technicalities. This court has noted on several occasions that the Supreme Court has instructed the lower
federal courts to heed carefully the command of Rule 15(a) ... by freely granting leave to amend when
justice so requires. Thus Rule 15's policy of favoring amendments to pleadings should be applied with
extreme liberality.
*8 Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.1987) (internal citations, quotation marks, and alterations omitted). “In
the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.,” it is appropriate for a court to grant leave to amend. Foman v. Davis,
371 U.S. 178, 182 (1962).
This liberal amendment policy is even more important with respect to pro se plaintiffs, who generally lack legal training. Courts
must liberally construe civil rights actions filed by pro se litigants so as not to close the courthouse doors to those truly in need
of relief. Eldridge, 832 F.2d at 1135, 1137. A pro se litigant bringing a civil rights suit must have an opportunity to amend the
complaint to overcome deficiencies unless it is clear that those deficiencies cannot be overcome by amendment. Id. at 1135–36.
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2. Discussion
Plaintiff seeks to amend his Second Amended Complaint to add an Eighth Amendment claim against Corizon, Inc., formerly
known as Correctional Medical Services, Inc. (“Corizon”). (Dkt.50.) Specifically, Plaintiff seeks to add the claim that Corizon
employs a “purchase order” system, which kept him from seeing an outside provider in a “prompt time frame” to repair or
replace the foot of his prosthetic leg. (Id. at 3–4; Dkt. 50–1, p. 1.) However, as discussed in the Court's decision on the Motion
for Summary Judgment, repairing or replacing Plaintiff's prosthetic leg, in and of itself, is not a “serious medical need” under
the Eighth Amendment. Plaintiff's need may be satisfied by a crutch, cane or wheelchair. (Dkt. 58–7, Dawson Aff., ¶ 32 and
Dkt. 58–9, Agler Aff. ¶ 12.) Here, Plaintiff was provided a cane during the time he waited for his prosthetic to be repaired.
(Dkt. 58–7, Dawson Aff ., 25; Dkt. 58–4, Counsel Aff., Ex. A, Concern Form dated May 12, 2008; and Dkt. 58–5, Plant Depo.,
41:16–43:14.) Therefore, it is irrelevant whether Corizon's alleged “purchase order” system caused a three to four month delay
in fixing the prosthetic. Because it would be futile to add this claim against Corizon, the Court will deny the Motion to Amend.
MOTION TO OBJECT, STRIKE AND IMPEACH THE AFFIDAVIT OF DR. DAVID AGLER
Defendant's Motion to Object, Strike and Impeach the Affidavit of Dr. David Agler (Dkt.64) is based on the following grounds:
(1) “Dr. David Agler's late settlement of record in this matter”; (2) Dr. Agler's current treatment of Plaintiff contradicts his
affidavit; and (3) Dr. Agler has allowed “himself to be co-erced by Dr. Dawsons [sic] counsel John J. Burke.” Plaintiff's
arguments are unpersuasive.
The Court will deny the Motion. The fact that Dr. Agler was once a defendant in this action does not prevent him from setting
forth his medical opinions as a medical doctor who has personal knowledge of Plaintiff's medical history and current medical
condition. (Dkt.58.) In addition, simply because Plaintiff takes medication and utilizes orthotic shoes is not objective medical
evidence that Plaintiff has suffered permanent damage to the big toe on his right foot in contradiction of Dr. Agler's affidavit.
Finally, Plaintiff's claims regarding coercion by Dr. Dawson's counsel are completely unsupported.
MOTION TO STRIKE PLAINTIFF'S SUPPLEMENTAL RESPONSE
*9 Defendant Dawson argues that Plaintiff's Supplemental Response To Dr. Dawson's Motion for Summary Judgment (Dkt.66)
should be stricken, because it violates the Court's June 24, 2013 Notice to Pro Se Litigants of the Summary Judgment Rule
Requirements (Dkt.59) and Dist. Idaho Loc. Civ. R. 7.1. While Plaintiff should have sought leave of the Court prior to filing
the supplemental response, the Court will grant leave in this particular instance. Defendant's Motion is denied.
ORDER
IT IS ORDERED:
1. Plaintiff's Motion to Compel Kim Spaulding (Dkt.42) is DENIED.
2. Plaintiff's Verified Motion for Telephonic Hearing with Notice (Dkt.43) is DENIED.
3. Plaintiff's Motion for Appointment of Counsel (Dkt.45) is DENIED.
4. Plaintiff's Motion to Compel and Request for Telephonic Hearing (Dkt.53) is DENIED.
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5. Defendant Dr. April Dawson's Motion for Summary Judgment (Dkt.58) is GRANTED. Defendant Dr. April Dawson is
DISMISSED from this action with prejudice.
6. Plaintiff's Motion to Deny Motion for Summary Judgment (Dkt.61) is DENIED.
7. Plaintiff's Motion to Amend and Supplement (Dkt.50) is DENIED.
8. Plaintiff's Motion to Object, Strike and Impeach the Affidavit of Dr. David Agler (Dkt.64) is DENIED.
9. Defendant Dr. April Dawson's Motion to Strike Plaintiff's Supplemental Response (Dkt.67) is DENIED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 5274226
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