Opinion
9:17-CV-1303 (BKS/TWD)
02-12-2020
SHAIN MALDONADO, Plaintiff, v. VIJAYKUMAR S. MANDALAYWALA, et al., Defendants.
APPEARANCES: Shain Maldonado 15-B-2138 Wende Correctional Facility P.O. Box 1187 Alden, NY 14004 Plaintiff, pro se David A. Rosenberg, Esq. Hon. Letitia James Office of New York State Attorney General The Capitol Albany, NY 12224 Attorneys for Defendants
APPEARANCES: Shain Maldonado
15-B-2138
Wende Correctional Facility
P.O. Box 1187
Alden, NY 14004
Plaintiff, pro se David A. Rosenberg, Esq.
Hon. Letitia James
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorneys for Defendants THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
This matter has been referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. On November 29, 2017, pro se Plaintiff Shain Maldonado, an inmate in custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983, asserting claims arising out of his incarceration at Upstate Correctional Facility ("Upstate") and Great Meadow Correctional Facility ("Great Meadow"). (Dkt. No. 1.)
On May 29, 2018, the Honorable Brenda K. Sannes, United States District Judge, granted Plaintiff leave to file a second amended complaint. (Dkt. No. 15.) Defendants and claims remaining following sua sponte review of the second amended complaint and subsequent motion practice are: (1) Eighth Amendment medical indifference claims against Dr. Vijaykumar S. Mandalaywala, a physician at Upstate; (2) Eighth Amendment medical indifference and conditions of confinement claims against Great Meadow Offender Rehabilitation Coordinators Jane Doe #1 and Jane Doe #2; and (3) Eighth Amendment excessive force claims against Great Meadow Corrections Officers D. Bennett and John Doe #1. (Dkt. Nos. 17, 41.) By Decision and Order filed July 31, 2018, the "Superintendent of Great Meadow Correctional Facility" was added as a defendant for purposes of service and discovery only. (Dkt. No. 26.) To date, Plaintiff has not moved to substitute an identified individual as a defendant in place of any Doe Defendant. (See Docket Report.)
On initial review of the second amended complaint under 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b), Plaintiff's claims against Christopher Miller, the Superintendent of Great Meadow, were sua sponte dismissed without prejudice for failure to state a claim. (Dkt. No. 17.)
Defendants Dr. Mandalaywala, Bennett, and Superintendent Miller (together, "Defendants"), now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 46.) Plaintiff responded in opposition to the motion, and Defendants filed a reply. (Dkt. Nos. 53, 54.) Plaintiff also filed a sur-reply, which this Court has considered in its review. (Dkt. Nos. 55, 56.)
For the reasons set forth below, the Court recommends Defendants' motion be granted in part and denied in part.
II. CONTENTIONS
A. Dr. Mandalaywala
Plaintiff claims Dr. Mandalaywala failed to prescribe Plaintiff speech and physical therapies at Upstate as recommended by the medical professionals at Albany Medical Center Hospital ("Albany Medical"), the hospital where Plaintiff was treated for a stroke in October 2016. (Dkt. No. 15 at 5, 9-10.) Plaintiff also claims Dr. Mandalaywala delayed issuing Plaintiff a "flats" permit at Upstate. (Id. at 9-10.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Plaintiff alleges he experienced pain throughout his "whole right side" following his stroke, which has caused him complications with walking. (Id. at 9.) He also claims Dr. Mandalaywala was aware of Plaintiff's need for physical and speech therapies—which Plaintiff requested on "several occasions"—based on documents provided to him from Albany Medical. (Id. at 5, 9.) In addition, Plaintiff alleges Dr. Mandalaywala could have "sign[ed] off on" a "flats" permit in "minutes[,]" but Plaintiff had to wait "several weeks" after requesting the permit to receive it, during which time his "physical pain" intensified. (Id. at 9-10.) Plaintiff was issued a flats permit on January 10, 2017. (Id. at 9.)
Defendants contend Dr. Mandalaywala is entitled to summary judgment because (1) Plaintiff cannot establish Dr. Mandalaywala was deliberately indifferent to his serious medical needs; (2) Dr. Mandalaywala was not personally involved in the treatment at issue in this case; and (3) Plaintiff failed to exhaust his administrative remedies (Dkt. No. 46-2 at 8-20.)
B. Bennett
On December 26, 2016, while temporarily housed at Great Meadow on a medical trip, Plaintiff claims he was subjected to excessive force by Bennett. (Dkt. No. 15 at 7-8.) Plaintiff "returned to Upstate that day." (Id. at 9.) "On December 27, 2016, [a]t Upstate, [Plaintiff] submitted a grievance for the . . . the physical abuse that [he] received at Great Meadow." He never received a response. (Id.)
Defendants argue Bennett is entitled to summary judgment because Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 46-2 at 16-21.)
C. Superintendent Miller
As noted above, Plaintiff's claims against Superintendent Miller were sua sponte dismissed without prejudice on initial review for failure to state a claim. (Dkt. No. 17.) However, Plaintiff's Eighth Amendment medical indifference and conditions of confinement claims against Jane Doe #1 and Jane Doe #2 and Eighth Amendment excessive force claim against John Doe #1, all of whom are claimed to be Great Meadow employees, survived sua sponte review. (Id.)
Because of the pendency of Plaintiff's claims against the Doe Defendants, the District Court ordered the Superintendent of Great Meadow be added as a defendant solely for service and discovery purposes, to allow Plaintiff an opportunity to seek the identities of the Doe Defendants through discovery. (Dkt. No. 26 at 3.) "By doing so, the Court d[id] not suggest in any way that the Superintendent of Great Meadow Correctional Facility was personally involved in the Eighth Amendment claims asserted against the Doe Defendants." (Id. at 4.)
On October 15, 2018, Superintendent Miller answered the second amended complaint as directed by the District Court. (Dkt. No. 35.) Following the joinder of issue, a mandatory pretrial discovery and scheduling order was issued. (Dkt. No. 36.) All discovery was to be completed by April 22, 2019. (Id.) Mandatory disclosures were exchanged in December 2018 and Plaintiff was deposed on March 21, 2019. (Dkt. Nos. 39, 40, 46-5.)
Defendants contend "Plaintiff having been afforded an opportunity to seek discovery related to the Doe Defendants, and discovery having since concluded, the Superintendent of Great Meadow (Supt. Miller), should now be dismissed from this action with prejudice." (Dkt. No. 46-2 at 15-16.)
III. LEGAL STANDARD FOR SUMMARY JUDGMENT
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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "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).
The Second Circuit has reminded that on summary judgment motions "[t]he 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." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). To defeat summary judgment, nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). Rather, "[a]t the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). Accordingly, 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. 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).
IV. DISCUSSION
A. Plaintiff's Failure to File a Response to Defendants' Local Rule 7.1 Statement
Pursuant to this District's Local Rules, "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3). Where a party has failed to respond to the movant's statement of material facts as required by Local Rule 7.1(a)(3), the facts in the movant's statement will be accepted as true to the extent they are (1) supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
As required by the Local Rules, Defendants advised Plaintiff of the consequences of failing to file a response to Defendants' Rule 7.1 Statement of Material Facts, as did the Court. (Dkt. Nos. 46, 48.) While Plaintiff opposes Defendants' motion, he failed to do so in the manner required under Local Rule 7.1(a)(3). (See generally Dkt. Nos. 53, 55; see also Dkt. No. 54 at 3-5.) "Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules." Marino v. Watts, No. 9:12-CV-801 (NAM/DJS), 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018), report-recommendation adopted sub nom. Marino v. Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 F. App'x 73 (2d Cir. 2019) (summary order).
Local Rule 7.1(a)(3) requires the opposing party to file a response to the movant's statement of material facts. Under the rule, the response "shall mirror the movant's statement of material facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." Id.
Although this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on a court to conduct a search and independent review of the record to find proof of a factual dispute where a non-movant willfully fails to respond to a properly filed summary judgment motion, Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002), the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and whether to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted).
In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record. Accordingly, the Court treats the verified second amended complaint as an affidavit for purpose of this motion, along with Plaintiff's sworn responses and sur-reply, and considers the factual allegations therein to the extent they are not conclusory and supported by the record. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
As to any facts not contained in Defendants' Local Rule 7.1(a)(3) Statement, in light of the procedural posture of this case, the Court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
B. Plaintiff's Deliberate Indifference Claim Against Dr. Mandalaywala
As noted above, Plaintiff contends Dr. Mandalaywala was deliberately indifferent to his serious medical needs by failing to make arrangements for Plaintiff to have speech and physical therapies at Upstate after he was discharged from Albany Medical Hospital Center ("Albany Medical") following a stroke in October 2016, and by delaying Plaintiff's "flats" permit. Defendants argue insufficient evidence exists in the record to support Plaintiff's medical indifference claim against Dr. Mandalaywala.
1. Legal Standards
The Eighth Amendment forbids the infliction of "cruel and unusual punishments" on those convicted of crimes, "which includes punishments that involve the unnecessary and wanton infliction of pain." U.S. Const. amend. VIII; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). "In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove 'deliberate indifference to [his] serious medical needs.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This standard contains objective and subjective components. Hathaway, 37 F.3d at 66. The objective component requires the plaintiff to demonstrate that his alleged medical need is "sufficiently serious." Id. The subjective component requires a showing that the defendant has acted with a "sufficiently culpable state of mind." Id.
To satisfy the objective element, the alleged deprivation must be "sufficiently serious." Salahuddin, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Determining whether a deprivation is sufficiently serious also involves two inquiries. Id. Initially, the court must determine whether the inmate was actually denied adequate care. Id. "Prison officials are not obligated to provide inmates with whatever care the inmates desire. Rather, prison officials fulfill their obligations under the Eighth Amendment when the care provided is reasonable." Jones v. Westchester Cty. Dep't of Corr., 557 F. Supp. 2d 408, 413 (S.D.N.Y. 2008) (citations and quotation mark omitted).
Second, if the care provided was unreasonable, courts must inquire as to whether that inadequacy was "sufficiently serious." Salahuddin, 467 F.3d at 280. Courts must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff. Id. (citing Helling v. McKinney, 509 U.S. 25, 32-33 (1993)). If the "unreasonable care" consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is "sufficiently serious." Id. (citing Smith, 316 F.3d at 185-86). Factors informing this inquiry include "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Id. (quotation marks and alterations omitted).
However, where the inadequacy is in the medical treatment that was actually afforded to the inmate, the inquiry is narrower. Id. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Salahuddin, 467 F.3d at 280. Thus, although courts "sometimes speak of a serious medical condition as the basis for an Eighth Amendment claim, such a condition is only one factor in determining whether a deprivation of medical care is sufficiently grave to establish constitutional liability." Id.
As to the subjective component, a prison official acts with a sufficiently culpable state of mind when "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. "Deliberate indifference is a mental state equivalent to subjective recklessness" which "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin, 467 F.3d at 280 (quotation marks omitted). A defendant "may introduce proof that he or she knew the underlying facts, but believed that the risk to which the facts gave rise was 'insubstantial or non-existent.'" Wright v. Genovese, 694 F. Supp. 2d 137, 154 (N.D.N.Y. 2010) (citing Farmer, 511 U.S. at 844). Therefore, "the defendant's belief that his conduct posed no risk of serious harm need not be sound so long as it is sincere, and even if objectively unreasonable, a defendant's mental state may be nonculpable." Id. at 154-55 (quoting Salahuddin, 467 F.3d at 281) (internal quotation marks omitted).
Further, "[i]t is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment claim." Chance, 143 F.3d at 703. Therefore, any "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of intervention, are not adequate grounds for a Section 1983 claim." Randle v. Alexander, 960 F. Supp. 2d 457, 481 (S.D.N.Y. 2013) (citation and internal quotation marks omitted).
Additionally, "[p]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [Section] 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)). As the Supreme Court has noted, a defendant may only be held accountable for his own actions under Section 1983. See Iqbal, 556 U.S. at 683. Thus, to prevail on a Section 1983 cause of action 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). With respect to individuals sued based on their supervisory capacities, "vicarious liability is inapplicable to . . . [Section] 1983 suits." Iqbal, 556 U.S. at 676.
In this circuit, a supervisory official is personally involved in a constitutional violation if he or she: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) was grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
"Iqbal has . . . engendered conflict . . . about the continuing vitality of the supervisory liability test set forth in Colon," Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012), and the Second Circuit has not resolved the conflict. See, e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) ("We express no view on the extent to which the Supreme Court's decision in Ashcroft v. Iqbal . . . 'may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations.'") (citation omitted). Nevertheless, district courts in this Circuit have consistently held that "[w]here the constitutional claim . . . relies on the . . . deliberate indifference standard[] of the . . . Eighth Amendment[]," Colon still applies. Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009); see also Williams v. Adams, No. 9:18-CV-1041 (BKS/TWD), 2019 WL 350215, at *7 (N.D.N.Y. Jan. 29, 2019) (collecting cases).
2. Analysis
The record evidence demonstrates Plaintiff was not provided with speech, occupational, and physical therapies as part of his post-stroke care at Upstate and he was not assigned to the "flats" until January 10, 2017. However, the Court finds Plaintiff has failed to provide evidence from which a fact-finder could reasonably conclude Dr. Mandalaywala was deliberately indifferent to his serious medical needs. See Salahuddin, 467 F.3d at 279. Here, there is no indication in the record that Plaintiff was provided with inadequate medical care; in fact, the record establishes the opposite.
Plaintiff also testified he did not receive occupational therapy at Upstate, despite Albany Medical indicating the need for same. (Dkt. No. 46-5 at 62, 65.)
a. Record Evidence
Dr. Mandalaywala is the Facility Health Services Director ("FHSD") at Upstate. (Dkt. No. 46-8 at ¶¶ 1, 6.) As FHSD, Dr. Mandalaywala oversees the medical program at Upstate and is primarily engaged in administrative duties. (Id. at ¶ 5.) The medical staff is responsible for primary day-to-day patient care. (Id.) However, as he also is a Clinical Physician II, he occasionally sees patients for medical treatment as needed, depending on staffing levels, and when specifically requested by a provider. (Id. at ¶ 6.)
On October 1, 2016, Plaintiff presented to the infirmary at Upstate with apparent symptoms of a stroke and was transported to Albany Medical for emergency treatment where he remained for approximately three weeks. (Dkt. No. 46-1 at ¶ 9.) On October 20, 2016, Plaintiff was discharged from Albany Medical and returned to Upstate. (Id. at ¶ 10.) Among the medical records provided by Albany Medical to Upstate was a Physical Therapy Plan of Care form, indicating Plaintiff could move, transfer, and ambulate independently. (Id. at ¶ 13.) A copy of Plaintiff's Transfer Discharge Summary faxed to Upstate included a handwritten notation that Plaintiff's physical and occupational therapies were discontinued on October 20, 2016. (Id. at ¶¶ 11, 12.)
On October 21, 2016, at approximately 3:00 am, Plaintiff was admitted to the infirmary at Upstate for observation, as per protocol. (Id. at ¶¶ 10, 15.) Plaintiff remained in the infirmary for approximately three days. (Id. at ¶ 16.) Over the course of the weekend, medical staff observed Plaintiff could walk independently without difficulty, had clear speech, voiced no medical complaints, and expressed eagerness to return to his cell block and job in the law library. 14 (Id. at ¶ 17.) In particular, the following observations were recorded in Plaintiff's Progress
October 21, 2016 - Kelly Rabideau, RN: "Returned from [Albany Medical] [at] 3 AM. Ambulated to infirmary [without] difficulty. . . . Denies any medical complaint [at] present. Some [right] sided weakness observed. Speech was clear - expresses some difficulty [with] communication at times, particularly if he attempts to talk too fast. Provider to evaluate in the AM."
October 21, 2016 - Mary Kowalchuk, PA: "Lying on bed. He was able to get out of bed [without] difficulty. Normal gait, has great strength to the hands. States he does not need speech therapy, OT or PT as the evaluation done at Albany showed no need for it. Able to speak very well - able to understand everything he says. We'll keep in infirmary over [the] weekend - Dr. Kumar will probably discharge to block. He works in the law library . . . wants to go back to work."
October 21, 2016 - Denise Reome, RN: "Ambulates and transfers independently [without] difficulty. Speaks clearly but in short one or two word sentences. Can answer yes/no questions. . . . Out to phone to call family. Speaks fluently in native tongue and rapidly. No medical complaints voiced."
October 22, 2016 - Denise Reome, RN: "Speech clear. Gives simple answers. Ambulates and transfers independently. Tolerates soft diet well. No medical complaints voiced. Eager to return to cadre cell block."
October 22, 2016 - Christy Conklin, RN: "No medical concerns voiced at this time."
October 23, 2016 - Marla Travers, RN: "Ambulates [with] steady gait. Speech clear. Offers no complaints. Appears in [no acute distress]. Tolerating diet well. Will continue to monitor."
October 23, 2016 - Christy Conklin, RN: "Claims he's anxious to return to his cell."
October 24, 2016 - Brenda Holcombe, RN: "Speaks clearly. Gait steady . . . [no complaints of] medical needs voiced or noted . . . [s]till requesting to return to his cadre job in law library."(Dkt. No. 47-7 at 2-3.)
October 24, 2016 - Elizabeth Ahern, PA: "[Patient] seen this AM . . . No weakness noted . . . No difficulty swallowing. Will advance to regular diet. Discharge to block. Speech improving."
On October 24, 2016, on the order of PA Ahern, Plaintiff was released from the infirmary to his housing block at Upstate. (Dkt. No. 46-1 at ¶ 18; see also Dkt. No. 47-1 at 2.)
Plaintiff argues he was "discharged to his housing unit by Dr. Mandalaywala as he was in the presence of staff members of his medical department and CO's. Just because the defendant did not sign any of the documentation approving the return of the Plaintiff to his housing unit, does not mean he did not approve or know about any of the conditions the Plaintiff was in. (Please see Plaintiff's response to motion to dismiss.)." (Dkt. No. 53-1 at 36.) Plaintiff also directs the Court's attention to PA Kowalchuk's October 21, 2016, entry, highlighting "Dr. Kumar will probably discharge to block." (Id.)
On November 18, 2016, Dr. Glenn Schroyer, a physician at Upstate, referred Plaintiff for a follow-up consultation with a neurologist. (Dkt. No. 46-1 at ¶ 23.) Plaintiff was placed on a temporary medical trip to Great Meadow from December 13, 2016, through December 27, 2016. (Id. at ¶ 31.) Plaintiff was seen by a neurologist for follow-up on or about December 14, 2016. (Dkt. Nos. 15 at 7, 47-14 at 14.)
Plaintiff's Ambulatory Health Record ("AHR") Progress Notes reflect that on January 10, 2017, during a sick call appointment, Plaintiff asked RN Sturgen for a "flats" permit. (Dkt. No. 47-12 at 9.) A medical permit, signed by RN Sturgen was issued on January 10, 2017, indicating "flats permit—downstairs only! Permanent." (Dkt. No. 47-10 at 2.) Plaintiff testified he was moved to the lower level of the facility the same day. (Dkt. No. 46-5 at 36.)
Plaintiff testified, however, that he asked for the flats permit on many prior occasions. (Dkt. Nos. 46-5 at 36 ("I was asking and asking and asking and they was like, . . . we'll see to it. [] I followed the chain of command. I spoke to the C.O.s first, then to the nurse and nothing.").)
Plaintiff's periodic medical appointments at Upstate in the months following his return from Albany Medical were with Dr. Glenn Schroyer or Dr. Jonathan Beach. (Dkt. No. 47-12 at 1-9.) In January 2017, Dr. Shroyer noted "no residual muscular problems. [Patient] to continue to active lifestyle." (Id. at 9.) In March 2017, Dr. Shroyer noted "good speech pattern, good strength, ambulates well, central nerve intact." (Id. at 8.) During sick call visits in May and June 2017, Plaintiff was issued Tylenol to address complaints of joint pain and stiffness. (Id. at 7, 8.) In July 2017, Dr. Shroyer noted "no complaints, ambulates [easily], speech normal, central nerve intact." (Id. at 7.) In November 2017, Dr. Shroyer continued Plaintiff's medication. (Id.)
In March 2018, Dr. Jonathan Beach noted Plaintiff complained of joint pain and stiffness and requested an eye examination. (Dkt. No. 47-12 at 6.) Plaintiff was prescribed Tylenol and referred for an eye examination. (Id.) In April 2018, Dr. Beach noted "no complaints, doing well, good hand . . . neuro intact." (Id. at 5.)
In May 2018, Plaintiff filed the second amended complaint. (Dkt. No. 15.) Plaintiff was subsequently transferred to Wende Correctional Facility ("Wende") on or about January 18, 2019. (Dkt. No. 42.)
b. Objective Prong
As to the first inquiry of the objective prong, the Court finds no reasonable jury could find Plaintiff was "actually deprived of adequate medical care" at Upstate following his discharge from Albany Medical in October 2016. Salahuddin, 467 F.3d at 276. As discussed above, the word "adequate" reflects the reality that "[p]rison officials are not obligated to provide inmates with whatever care the inmates desire. Rather, prison officials fulfill their obligations under the Eighth Amendment when the care provided is 'reasonable.'" Jones, 557 F. Supp. 2d at 413 (quoting Salahuddin, 467 F.3d at 280).
The record evidence demonstrates Plaintiff's medical needs were reasonably treated and monitored at Upstate following his discharge from Albany Medical. While Plaintiff contends that he needed physical, occupational, and speech therapies at Upstate following his October 2016 stroke, and believes he should have been issued a "flats" permit prior to January 10, 2017, such assertions amount to nothing more than a mere disagreement with Plaintiff's post-stroke medical care, which is not actionable under the Eighth Amendment. See Randle, 960 F. Supp. 2d at 481 (quoting Alston v. Bendheim, 672 F. Supp. 2d 378, 385 (S.D.N.Y. 2009)) ("Indeed, '[a]n inmate's disagreement with his treatment or a difference of opinion over the type or course of treatment [does] not support a claim of cruel and unusual punishment.'").
Accordingly, Plaintiff has failed to establish Dr. Mandalaywala deprived him of adequate medical care under the objective prong of the deliberate indifference analysis and the Court finds summary judgment is warranted on this ground. See, e.g., Gray v. Kang Lee, No. 9:13-cv-258 (GLS/DEP), 2015 WL 1724573, at *3 (N.D.N.Y. Apr. 15, 2015) (finding inmate could not satisfy objective requirement where he was frequently treated, prescribed pain medication, tested with an X-ray and MRI, and referred to an orthopedic specialist); Nowinski v. Rao, No. 6:14-CV-06559 (MAT), 2018 WL 2303780, at *5-6 (W.D.N.Y. May 21, 2018) (finding plaintiff was not deprived of adequate care where, inter alia, the inmate was provided with extensive care for his knee problems, medications, and accommodations).
c. Subjective Prong and Personal Involvement
Even assuming, arguendo, Plaintiff could satisfy the objective component of the Eighth Amendment, Plaintiff fails to establish Dr. Mandalaywala knew of and disregarded an "excessive risk" to his health under the subjective prong. Simply put, despite Plaintiff's contrary allegations, the record evidence demonstrates Dr. Mandalaywala was not personally involved in Plaintiff's medical care at Upstate following his discharge from Albany Medical.
For example, although Plaintiff claims his "quarterly" medical appointments were "always" with Dr. Mandalaywala, (see, e.g., Dkt. No. 46-5 at 36-37), as discussed above, Plaintiff's periodic medical appointments in the months following his return from Albany Medical were with Drs. Schroyer and Beach; none were with Dr. Mandalaywala. (Dkt. No. 47-12 at 1-9.) Further, Dr. Mandalaywala states that he "did not evaluate [P]laintiff and was not personally involved in any decisions as to provision of physical, occupational, or speech therapy." (Id. at 12.)
Plaintiff's medical records reflect Dr. Mandalaywala saw Plaintiff once for a medical appointment on April 18, 2016, months before his October 1, 2016, stroke, and reviewed Plaintiff's medications on two occasions in 2018. (Dkt. No. 46-8 at ¶ 21.) Dr. Mandalaywala explains this is routine when a patient has medication to be renewed and does not involve a visit with the patient. (Id. at ¶ 23.)
To the extent Plaintiff claims he also submitted written requests via sick call slips for speech, occupational, and physical therapies, along with a flats permit, Dr. Mandalaywala explains "sick call requests from inmates are addressed and handled directly by the medical staff; they do not cross my desk as a matter of course. Regardless, I was never made aware of any such request by Plaintiff." (Dkt. No. 46-8 at ¶ 19.) Additionally, "the medical records that [Dr. Mandalaywala] reviewed in preparation for this motion show that [P]laintiff did not require such therapies at Upstate." (Id. at ¶ 12.) Inmates do not have a constitutional right to the treatment of their choice. See Wright, 694 F. Supp. 2d at 155 (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)) ("[That the plaintiff] preferred an alternative treatment or believes that he did not get the medical attention he desired does not rise to the level of a constitutional violation."). As such, disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of medical intervention implicate medical judgment and do not rise to the level of a constitutional violation. Sonds, 151 F. Supp. 2d at 312 (citing Estelle, 429 U.S. at 107); Randle, 960 F. Supp. 2d at 481 ("[A] difference of opinion over the type or course of treatment [does] not support a claim of cruel and unusual punishment.") (internal citations and quotation marks omitted); see, e.g., Santiago v. Johnson, No. 9:11-CV-635 (LEK/TWD), 2015 WL 9854844, at *15 (N.D.N.Y. Nov. 16, 2015) ("Not ordering physical therapy likewise implicated [the doctor's] medical judgment."), report-recommendation adopted by 2016 WL 225695 (N.D.N.Y. Jan. 19, 2016).
As to the flats permit, contrary to Plaintiff's claim, Dr. Mandalaywala explains "[a]ny member of the medical staff, physician assistant or nurse, can write a medical permit if medically necessary. It does not require FHSD's input or approval." (Dkt. No. 46-9 at ¶ 18.) Dr. Mandalaywala further states, "[a]t no time did I have a conversation with [P]laintiff regarding a medical permit for a lower level cell." (Id. at ¶ 19.)
Further, to the extent Plaintiff's medical care at Upstate differed from that of other medical facilities, including Albany Medical and/or Wende, (see Dkt. Nos. 53 at ¶ 6, 53-2 at 5, 7-10), this assertion does not amount to a constitutional violation. "Physicians can and do differ as to their determination of the appropriate treatment for a particular patient; that difference in opinion does not satisfy the requirements for a constitutional claim of deliberate indifference." Cole v. Goord, No. 04 CIV. 8906 (GEL), 2009 WL 1181295, at *8 n.9 (S.D.N.Y. Apr. 30, 2009), aff'd 379 F. App'x 28 (2d Cir. 2010); see also Chance, 143 F.3d at 703 ("[M]ere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment claim.") (internal citation omitted).
Even if Dr. Mandalaywala caused Plaintiff unintended harm, negligence is not actionable under Section 1983. See Burroughs v. Petrone, 138 F. Supp. 3d 182, 211 (N.D.N.Y. 2015) ("Deliberate indifference requires more than negligence but less than conduct undertaken for the very purpose of causing harm.") (internal quotation marks and citation omitted); see also Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding negligence is not a cognizable claim under Section 1983); Kucharczyk v. Westchester Cty., 95 F. Supp. 3d 529, 537 (S.D.N.Y. 2015) ("[M]ere negligence is not enough to state a claim for deliberate indifference."); Smith, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation.").
Lastly, to the extent Plaintiff aruges Dr. Mandalaywala's "high position of authority over the medical staff" at Upstate establishes his "knowledge" and "deliberate indifference," (see, e.g., Dkt. No. 53-1 at 42), "liability . . . cannot rest on respondeat superior." Richardson, 347 F.3d at 435; Wright, 21 F.3d at 501. Moreover, Plaintiff's conclusory assertion that Dr. Mandalaywala, as FHSD was "fully aware" of Plaintiff's serious medical needs, including the need for speech, occupational, and physical therapies, and that he was "grossly negligent in supervising any other medical providers who have been deliberately indifferent to Plaintiff's serious medical needs" is without merit. (Dkt. No. 53-1 at 42). As discussed above, Plaintiff was provided with reasonable medical care.
Based on the foregoing, there is no evidence in the record that Dr. Mandalaywala acted with the mental state necessary for a deliberate indifference claim and summary judgment is also warranted on this ground.
Therefore, for the reasons stated, the Court finds no reasonable factfinder could conclude Dr. Mandalaywala was deliberately indifferent to Plaintiff's serious medical needs and recommends granting summary judgment to Dr. Mandalaywala.
Because the Court finds Plaintiff's Eighth Amendment deliberate indifference claim against Dr. Mandalaywala fails on the merits, the Court does not reach Defendants' exhaustion argument.
C. Excessive Force Claim Against Bennett
Plaintiff alleges he was assaulted by Bennett on December 26, 2016, at Great Meadow in violation of his Eighth Amendment rights. (Dkt. No. 15 at 7-9.) Defendants seek summary judgment on the ground Plaintiff failed to exhaust his available administrative remedies before commencing this action. (Dkt. Nos. 46-2 at 16-21, 54 at 8-11.) Plaintiff counters his administrative remedies were unavailable and, alternatively, requests an exhaustion hearing. (Dkt. Nos. 53-1 at 46-51, 55 at 1, 8-13.)
1. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is required for "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 218 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). As an affirmative defense, it is the defendants' burden to establish the plaintiff failed to meet the exhaustion requirements. See, e.g., Key v. Toussiant, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted).
To properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly").
In New York, DOCCS has a well-established three-step Inmate Grievance Program ("IGP"). 7 N.Y.C.R.R. § 701.5. First, an inmate must submit a complaint with the facility IGP clerk within twenty-one days of the alleged occurrence. Id. § 701.5(b). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. A representative of the facility's Inmate Grievance Resolution Committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance and issues a written decision within two working days of the conclusion of the hearing. Id. §§ 701.5(b)(2), (3).
Second, a grievant may appeal the IGRC's decision to the facility superintendent within seven days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the Central Officer Review Committee ("CORC") for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(i).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
Where an inmate's grievance complains of employee harassment or other misconduct, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. Id. §§ 701.8(b), (c). The superintendent has twenty-five days from the date of its receipt to render a decision. Id. § 701.8(g). An inmate may appeal the superintendent's decision to CORC within seven days of its receipt. Id. § 701.8(h).
As set forth above, at each step of the IGP, a decision must be rendered within a specified time period. "Where the IGRC and/or superintendent do not timely respond, an inmate must appeal to 'to the next step,'" assuming there is another step in the IGP. Eleby v. Smith, No. 9:15-CV-0281 (TJM/DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017 (quoting 7 N.Y.C.R.R. § 701.6(g)(2)); see, e.g., Smith v. Kelly, 985 F. Supp. 2d 275, 281 (N.D.N.Y. 2013) ("[A]ny failure by the IGRC or the superintendent to timely respond to a grievance . . . can—and must—be appealed to the next level . . . to complete the grievance process.").
Generally, if a plaintiff fails to follow each of the required steps of the IGP, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).").
While the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). More specifically, Section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]" (quotation marks and citations omitted)). In the PLRA context, the Supreme Court has determined "availability" means "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotation marks and citations omitted).
In Ross, the Supreme Court identified "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. at 1859-60. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. In other words, "some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. Third, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. Thus, if a plaintiff fails to exhaust his administrative remedies, the court must consider whether those remedies were, in fact, "available" to him.
2. Analysis
Plaintiffs has sworn to and testified under oath that on December 27, 2016, while housed at Upstate, he submitted a grievance regarding, inter alia, the alleged December 26, 2016, assault at Great Meadow. (Dkt. Nos. 15 at 9, 46-5 at 106-08, 53-1 at 50-51.) Although he personally placed the grievance in the "grievance box" outside the Upstate grievance office, he never received a response. (Dkt. Nos. 15 at 9, 46-5 at 106-08, 53-1 at 50-51.) Plaintiff testified:
Q: [W]hat . . . did you write in the grievance? What was your complaint that you put in there?(Dkt. No. 46-5 at 111.) There is no indication in the facility records that he filed a grievance or that he appealed the denial of any grievance to CORC. (See generally Dkt. Nos. 46-9, 46-11, 46-13.)
A: I filed in the complaint that I went [to Great Meadow] for a medical trip and the whole time I was there, I did not receive any medication, nor my diet trays, and on the date I was placed on transfer -- transit, the [correctional officers] beat me up. . . . And they actually physically beat me up and I . . . mentioned this to C.O. Bennett and several, you know, like the other C.O. that's John Doe and then Jane Doe and I never got a response."
In support of their motion, Defendants have submitted the declarations of Sherri Debyah, the IGP Supervisor at Upstate, Alexandria Mead, the IGP Supervisor at Great Meadow, and Rachel Seguin, the Assistant Director of IGP for DOCCS. (See Dkt. Nos. 46-9 at ¶¶ 1-3, 46-11 at ¶¶ 1-3, 46-13 at ¶¶ 1-3.) Supervisors Debyah and Mead explain that "[t]o start the grievance process, the inmate sends a written complaint to the grievance office at [the facility]. A complaint may be written on a grievance form that is made available to inmates [at the facility] or on regular paper. Grievance complaints may be filed in the facility at which the inmate is housed even if the complaint pertains to another facility." (Dkt. Nos. 46-9 at ¶ 5, 46-11 at ¶ 5.)
They further state:
"Once the complaint is determined to be a timely grievance, it is logged, coded, and titled. An investigative request is sent in order to investigate the inmate's claims. After the investigative report is returned, a grievance hearing is conducted by the IGRC. . . .(Dkt. Nos. 46-9 at ¶ 5, 46-11 at ¶ 5.) According to Supervisor Debyah:
An expedited procedure is used when an inmate files a grievance alleging harassment or assault by staff. . . . [T]he Superintendent will arrange for an appropriate investigation and render a decision on that investigation. Upon issuance of the Superintendent's response, an inmate who is not satisfied can appeal to [CORC], the third and final step under DOCCS' [IGP].
The grievance process is available to inmates to grieve incidents involving DOCCS staff, whether the incident took place at the inmate's facility or at any outside location. When an inmate housed at Upstate complains of an incident involving DOCCS staff that took place while at an outside location, such as at a different DOCCS facility, the Upstate grievance office will accept the grievance, process it as usual, and maintain all records related to the grievance.(Id. at ¶ 13.) She states that all documents related to a particular grievance, including the grievance itself, the investigations, and appeals, are stored in the Upstate grievance office as they are created or received. (Dkt. No. 46-9 at ¶ 9.)
"The Upstate grievance office keeps all documents for grievances filed in the current year and in the previous four (4) calendar years - thus, our office has on file all grievances filed in Upstate from January 1, 2015 to the present." (Dkt. No. 46-9 at ¶ 9.) The same is true for Great Meadow. (See Dkt. No. 46-11 at ¶ 9.)
Plaintiff was incarcerated at Upstate from March 7, 2016, until January 17, 2019. (Id. at ¶ 11.) Supervisor Debyah states that if Plaintiff filed a grievance at Upstate, there would be a record of the grievance in the files, maintained in the grievance office. (Id. at ¶ 10.) Based on her search, there is no record of any grievance filed by Plaintiff with respect to the alleged December 26, 2016, assault at Great Meadow and conditions of his confinement. (Dkt. No. 46-9 at ¶¶ 1, 14, 15.)
While not relevant to Plaintiff's excessive force claim against Bennett, on November 14, 2016, Plaintiff filed Grievance UST-59609-16, entitled "Denied Medical Treatment" which he appealed to CORC on February 1, 2017. (Dkt. Nos. 46-10 at 2, 46-15 at 3.) The parties dispute whether Grievance UST-59609-16 exhausted Plaintiff's medical indifference claim against Dr. Mandalaywala. (Dkt. Nos. 46-2 at 16-21, 53-1 at 46-51, 54 at 8-10, 55 at 8-12.) Inasmuch as the Court finds Dr. Mandalaywala was not deliberately indifferent, the Court did not reach Defendants' exhaustion argument. Plaintiff also filed two unrelated grievances at Upstate, Grievance UST-58085-16 entitled "Property Destroyed" on April 27, 2016, and Grievance UST-60681-17 entitled "Not Receiving All Items on Menu" on March 28, 2017. (Dkt. No. 46-10 at 2.)
Similarly, Supervisor Mead states that all documents related to a particular grievance, including the grievance itself, the investigations, and appeals, are stored in the Great Meadow grievance office as they are created or received. (Dkt. No. 46-11 at ¶ 9.) Plaintiff was temporarily incarcerated at Great Meadow from December 13, 2016, until December 27, 2016. (Id. at ¶ 10.) Supervisor Mead states that if Plaintiff filed a grievance while incarcerated at Great Meadow, there would be a record of this in the files maintained at the Great Meadow grievance office. (Id. at ¶ 11.) According to Supervisor Mead:
if an inmate housed at a different facility complains of an incident that had taken place at Great Meadow, the grievance office at his facility at the time of filing will accept the grievance and process it as usual.(Id. at ¶ 12.) Thus, if Plaintiff filed a grievance at Upstate concerning the alleged December 26, 2016, assault at Great Meadow, "there would be a record of it in the files maintained at the Upstate grievance office. The records would not be on file at the Great Meadow grievance office." (Id. at ¶¶ 13-14.) Nevertheless, Supervisor Mead searched the records and states Plaintiff has not filed any grievances at Great Meadow. (Id. at ¶ 15.)
Assistant Director Seguin states both Upstate and Great Meadow have fully functioning IGPs available to inmates and that inmates have full access to CORC by which to appeal from a facility-level grievance determination. (Dkt. No. 46-13 at ¶¶ 11-12.) She explains that when an inmate appeals to CORC, it is DOCCS policy to maintain records of these appeals for at least four years, and in accordance with that policy, the CORC database contains records of appeals of IGP grievances, including those reviewed under the expedited procedure described above. (Id. at ¶ 8.) Assistant Director Seguin conducted a search of the database and found Plaintiff appealed two grievances to CORC, neither of which relate to the alleged December 26, 2016, incident at Great Meadow. (Id. at ¶¶ 13-14.) As noted above, Grievance UST-58085-16 entitled "Property Destroyed" was received by CORC on June 28, 2016, and Grievance UST-59609-16 entitled "Denied Medical Treatment" was received by CORC on February 1, 2017. (Dkt. No. 46-15 at 3.)
Based on the foregoing, the Court finds Defendants have satisfied their burden of showing Plaintiff failed to exhaust his administrative remedies with respect to the alleged assault. "[O]nce a defendant has adduced reliable evidence that administrative remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those administrative remedies, the plaintiff must then 'counter' the defendant's assertion by persuading the Court of either exhaustion or unavailability." Adams v. O'Hara, No. 16-CV-527 (GTS/ATB), 2019 WL 652409, at *4 (N.D.N.Y. Feb. 15, 2019). Plaintiff advances several arguments for finding unavailability and, alternatively, requests an exhaustion hearing. (Dkt. Nos. 15 at 9, 53-1 at 1, 46-48, 55 at 1, 8-13.)
Here, while it is undisputed Plaintiff never appealed the grievance "to the next step," whether his administrative remedies were available requires closer examination. In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir. 2016), the Second Circuit considered whether administrative remedies had been "actually available" to an inmate-plaintiff under Ross, after the district court granted the defendants' motion to dismiss for failure to exhaust. There, the plaintiff alleged that, while housed in the special housing unit ("SHU"), he drafted a grievance that he delivered to a corrections officer to forward to the grievance office on his behalf. Id. at 120-21. Approximately two weeks later, the plaintiff was transferred to a different facility. Id. at 121. He never received a response to his grievance and alleged that it was never filed by the officer to whom he had given it. It was undisputed the plaintiff never appealed the grievance. Id.
The defendants in Williams argued that even if the grievance was never filed, the plaintiff was required to appeal it "to the next step" and complete the grievance process. Id. at 124 (quoting 7 N.Y.C.R.R. § 701.6(g)(2)). The Second Circuit rejected this argument and held that, for an inmate in the plaintiff's situation, the regulatory scheme was so "opaque" and "confusing" as to be practically unavailable. Id. The Second Circuit found that DOCCS regulations "only contemplate appeals of grievances that [have been] actually filed . . . [and] give no guidance whatsoever to an inmate whose grievance was never filed." Id.
This summary of Williams tracks that of Magistrate Judge Baxter in Means v. Olmstead, No. 9:17-CV-746 (BKS/ATB), 2019 WL 4395289, at *4 (N.D.N.Y. June 3, 2019), report-recommendation adopted by 2019 WL 3451127 (N.D.N.Y. July 31, 2019), which in turns tracks that of Magistrate Judge Stewart in Berman v. Durkin, No. 9:13-CV-136 (LEK/DJS), 2017 WL 1215814, at *8 (N.D.N.Y. Mar. 10, 2017), report-recommendation adopted by 2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017).
Following the Second Circuit's decision in Williams, several courts—including this Court—have concluded that where a grievance is both unfiled and unanswered, the "process to appeal . . . is prohibitively opaque, such that no inmate could actually make use of it." Williams, 829 F.3d at 126; see Britt v. Carberry, No. 9:17-CV-0234 (MAD/DEP), 2019 WL 3365766, at *8 (N.D.N.Y. Mar. 22, 2019) (collecting cases), report-recommendation adopted by 2019 WL 2437912 (N.D.N.Y. June 11, 2019); see, e.g., Hurst v. Mollnow, No. 16-CV-1062 (DNH/TWD), 2018 WL 4178226, at *10 (N.D.N.Y. July 20, 2018) ("Therefore, '[a]s long as [the plaintiff's] grievances were not actually filed, then [the plaintiff's] current situation falls squarely within the Second Circuit's decision in Williams[.]'") (quoting Juarbe v. Carnegie, No. 9:15-CV-1485 (MAD/DEP), 2016 WL 8732798, at *6 (N.D.N.Y. Oct. 7, 2016)), report-recommendation adopted by 2018 WL 4153926 (N.D.N.Y. Aug. 30, 2018); Berman v. Drunkin, 2017 WL 1215814, at *8 ("Williams holds that 'the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it.'"), report-recommendation adopted by 2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017); Juarbe v. Carnegie, 2016 WL 8732798, at *6 (explaining that Williams appears to draw a distinction between an "unfiled and unanswered" grievance and a simply "unanswered grievance," insofar as the regulations provide that an inmate may appeal an unanswered grievance), report-recommendation adopted by 2016 WL 6901277 (N.D.N.Y. Nov. 23, 2016); cf. Cicio v. Wenderlich, No. 13-CV-195S, 2017 WL 1437206, at *5-6 (W.D.N.Y. Apr. 24, 2017) (granting summary judgment against plaintiff for failure to exhaust when he failed to appeal a grievance for which he received a receipt confirming the grievance was it was filed, but for which he never received a response), aff'd, 714 F. App'x 96, 97 (2d Cir. 2018) (affirming grant of summary judgment, and distinguishing Williams, which found the DOCCS grievance process "unavailable" when an inmate's grievance was never filed); see also Coleman v. Racette, No. 9:15-CV-40 (TJM/ATB), 2017 WL 2579084, at *5 (N.D.N.Y. Jan. 17, 2017) ("The court notes, however, that if a grievance is lost or destroyed before it is received by the IGRC and assigned a number, it would be difficult to 'appeal' a grievance 'to the next step.'"), report-recommendation adopted by 2017 WL 2589366 (N.D.N.Y. June 14, 2017).
However, Williams has also been distinguished in cases in which the plaintiff claimed to have filed a grievance where, inter alia, the inmate was not segregated from the population and had access to the grievance office. See, e.g., Means v. Olmstead, 2019 WL 4395289, at *6 (finding remedies available despite the inmate's contention that he filed a grievance where, inter alia, the plaintiff was not hampered by confinement in the SHU, nor was he transferred shortly after the incident, and testified that he dropped the grievance in the "box" himself) (citing Davis v. Grant, No. 9:15-CV-5359, 2019 WL 498277, at *10 (S.D.N.Y. Feb. 8, 2019)); Blake v. Porlier, No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at *7 (N.D.N.Y. Oct. 4, 2019) ("Because plaintiff successfully utilized the grievance system for unrelated issues, makes no allegation that he was in restrictive housing at the time he attempted to file the alleged grievance, and makes no indication that he attempted to follow up with his alleged grievance, . . . administrative remedies were available to the plaintiff."), report-recommendation adopted by 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020).
For example, "[i]n Davis, the court found that '[p]laintiff's bare assertions that he submitted grievances but never received a response fall squarely into the category of assertions that courts in the Second Circuit have found do not excuse the exhaustion requirement.'" Means, 2019 WL 4395289, at *7. Thus, an "unsupported assertion" the plaintiff "filed a grievance but that it was somehow lost or destroyed is insufficient to establish a genuine issue of fact." Id. (collecting cases); see, e.g., Blake, 2019 WL 7484052, at *5 ("Courts within the Second Circuit have continuously held that 'mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.'") (quoting Rodriguez v. Cross, No. 9:15-CV-1079 (GTS/CFH), 2019 WL 7484082, at *5 (N.D.N.Y. May 9, 2017) (citing Khudan v. Lee, No. 12-CV-8147(RJS), 2016 WL 4735364, at *6 (S.D.N.Y. Sept. 8, 2016)) (citations omitted) (holding under Ross mere standalone contentions of mail tampering without support and particularity cannot deem administrative remedies unavailable); Veloz v. New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004) (finding remedies available where the plaintiff claimed officers misplaced his grievances, but offered no evidence to support his claim)); see also Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL 11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding the plaintiff's failure to exhaust was not excusable, in part, because while the plaintiff "state[d] that some grievances were destroyed . . . he ha[d] not submitted any copies of these grievances, nor d[id] he specify when he attempted to file them"), report-recommendation adopted by 2017 WL 1076343 (N.D.N.Y. Mar. 22, 2019); see also Engles v. Jones, No. 6:13-CV-6461 (EAW), 2018 WL 6832085, at *10 (W.D.N.Y. Dec. 28, 2018) ("Plaintiff's unsupported assertion that he filed a grievance but that it was somehow lost or destroyed is insufficient to establish a genuine issue of material fact.") (citing Scott v. Kastner Smith, 298 F. Supp. 3d 545, 555 (W.D.N.Y. 2018)).
In adopting the report-recommendation in Means, supra, and finding administrative remedies available, the District Court found the plaintiff's conclusory assertions, raised for the first time in his objections to the report-recommendation, that (1) prison officials "thwarted" his attempt to exhaust his grievance "through machination, misrepresentation and intimidation"; (2) he "was told that there was no record" of his grievance when he inquired about it; and (3) when he "attempted to re-submit his Grievance he was told that his time had run out" were based on factual assertions nowhere in the record, including the plaintiff's deposition, opposition to the motion to dismiss, and opposition to the motion for summary judgment. Means, 2019 WL 3451127, at *1.
Returning to the case at hand, the Court finds the record, viewed in the light most favorable to Plaintiff, suggests Plaintiff's grievance was unfiled and unanswered, creating an issue of fact as to the availability of administrative remedies under Williams. In so finding, the Court has considered Defendants' arguments and, although Plaintiff does not have a copy of the grievance, was not confined in the SHU, and has not submitted any contemporaneous correspondence inquiring about the status of his grievance, Plaintiff testified that he submitted a handwritten grievance on personal plain paper (because Upstate is "very very strict of not giving you the grievance forms" and he had "no carbon paper, no copy machine") by personally placing the grievance in the "grievance box" on the wall in front of the Upstate grievance office on December 27, 2016. (Dkt. No. 46-5 at 106-07.) Plaintiff submits he verbally followed up with the Upstate grievance office and the IGRC representatives "informed" Plaintiff that it was "[o]ut of our hands[,] explaining that the grievance was sent to Great Meadow." (Dkt. No. 53-1 at 51.) Similarly, Plaintiff testified, in sum and substance, that when he "approached" the grievance office and asked them "what's been going on with the grievance to Great Meadow, Plaintiff was told by Supervisor Debyah that it had been "mail[ed] directly" to Great Meadow because it pertained to that facility. (Dkt. No. 46-5 at 109-10.) In particular, Plaintiff testified as follows:
As Defendants correctly point out, the only documentation submitted by Plaintiff on this issue are letters and a FOIL request from September and December 2018, nearly two years after he claims to have filed the grievance, and written only after Defendants made a motion to dismiss on the ground of failure to exhaust administrative remedies in this action. (Dkt. No. 54 at 8; see Dkt. No. 53-1 at 20-23.)
Q: [Supervisor Debyah] told you, as well as the inmate, that when you file a grievance at Upstate related to something at another facility -
A: They mail -
Q: -- they told you they send it directly to them?
A: -- they mail it direct to them.
Q: Okay. Did they acknowledge receipt of your grievance, though? Did they tell you hey, we received your grievance and we sent it on?(Id. at 110.) For her part, Supervisor Debyah flatly denies having had a conversation with Plaintiff wherein she told him his grievance was mailed to Great Meadow. (Dkt. No. 46-9 at ¶ 15.) She states, under oath, "I never told [P]laintiff that his grievance was mailed to Great Meadow, as that would not have been the procedure." (Id. at ¶ 16.) According to Supervisor Debyah:
A: Yes. She told me that they - they received it and they sent it immediately to Great Meadow Correctional Facility.
"If [P]laintiff had filed such a grievance, it would have been entered and processed at Upstate, in accordance with the procedure outlined above, and all records would be available at Upstate. The grievance would not be mailed to Great Meadow for processing. There is no record that [P]laintiff ever filed such a grievance.(Id. at ¶¶ 15, 17.) In his sur-reply, Plaintiff explains that because he worked in the law library at Upstate, he was in a unique position to interact with the grievance office, including Supervisor Debyah. (Dkt. No. 56 at 9.) "So [Supervisor] Debyah saw the Plaintiff on several occasions and spoke to Plaintiff. Every time the Plaintiff would ask her or any member of the [IGRC] any information pursuant the grievance at Great Meadow, the Plaintiff would just be given the 'run around.'" (Id.) Moreover, Plaintiff testified "he never got a grievance number or anything" and argues "[t]here is no way to send in a grievance to the CORC without any prior decision on that grievance." (Dkt. Nos. 46-5 at 123; 53-1 at 51.)
In any event, I did not have any conversation with [P]laintiff regarding his claimed grievance. Plaintiff would not have been in a position to speak to me, as he now claims.
In light of the foregoing, the Court finds Plaintiff has raised a material issue of fact as to the availability regarding his purported unfiled and unanswered grievance under Ross and Williams. See, e.g., Adams v. O'Hara, 2019 WL 652409, at *3 ("It is important to note that, where an inmate does not know that an unprocessed grievance (i.e., a grievance that has not been assigned a grievance number) may technically be appealed, he need not appeal that unprocessed grievance, because the regulatory scheme advising him of that right is too opaque.") (citing Williams, 829 F.3d at 126 ("Even if Williams technically could have appealed his [unprocessed] grievance, we conclude that the regulatory scheme providing for that appeal is 'so opaque' and 'so confusing that . . . no reasonable prisoner can use' [it pursuant to Ross]")).
However, to the extent Plaintiff raises general complaints about how the IGP process "is truly flawed" and that inmates "are thwarted, misrepresented and lied to" and subjected to "intimidation," (Dkt. Nos. 53-1 at 1, 55 at 1), such bare assertions do not excuse exhaustion requirements. Rodriguez v. Cross, 2017 WL 2791063, at *7-9. Further, to the extent Plaintiff argues "special circumstances" should be taken into consideration, particularly his stroke, (see Dkt. No. 55 at 9-10), "that avenue has been foreclosed." Riles v. Buchanan, 656 F. App'x 577, 581 (2d Cir. 2016) (summary order). In Ross, the Supreme Court held "[c]ourts may not engraft an unwritten 'special circumstances exception' onto the PLRA's exhaustion requirement." Ross, 136 S. Ct. at 1862; accord Williams, 829 F.3d at 123.
Therefore, for the reasons stated above, the Court recommends denying Defendants' motion for summary judgment on this ground without prejudice and that an exhaustion hearing be held prior to the trial on Plaintiff's Eighth Amendment excessive force claim against Bennett.
D. Superintendent of Great Meadow
Defendants contend the Superintendent of Great Meadow is no longer a proper party to this action. (Dkt. No. 46-2 at 15-16.) The Court agrees.
As set forth above, on initial review, the District Court concluded the second amended complaint failed to establish Miller's personal involvement. (Dkt. No. 17.) In an effort to assist Plaintiff in identifying the Doe Defendants, the District Court subsequently issued an Order adding the Superintendent of Great Meadow as a named defendant "for service and discovery purposes only." (Dkt. No. 26 at 3 (emphasis in original).) The District Court indicated the Superintendent of Great Meadow would remain as a defendant "until plaintiff has been afforded an opportunity to conduct discovery related to the identity of the Doe defendants." (Id. at 4 n.2.)
Miller, the Superintendent of Great Meadow, filed an answer denying any wrong and noted that he was named as a party solely for purposes of service and discovery. (Dkt. No. 35.) The Court then issued an Order setting case management deadlines, including a February 22, 2019, deadline for amendment of pleadings and an April 22, 2019, deadline for completion of discovery. (Dkt. No. 36.) Defendants provided mandatory initial disclosures to Plaintiff on December 18, 2018. (Dkt. No. 40.)
In his response, Plaintiff acknowledges Defendants provided him with the relevant log-book entry for the alleged December 26, 2016, incident. (Dkt. No. 53-1 at 44.) However, Plaintiff raised no issues concerning discovery in this case and never filed a motion to compel discovery. (See generally Docket Report; see also Dkt. No. 54-2.) Plaintiff admits he has not identified the Doe Defendants and never filed a motion to amend. (Dkt. No. 53-1 at 44.) In sum, all pretrial deadlines have expired without any of the Doe Defendants having been identified by Plaintiff. Therefore, the Court finds the Superintendent of Great Meadow's presence in this lawsuit for discovery purposes is no longer needed. See, e.g., Reed v. Doe, No. 9:11-CV-250 (TJM/DEP), 2015 WL 902795, at *5 (N.D.N.Y. Mar. 3, 2015) (granting the defendants' motion for summary judgment and dismissing the Superintendent of Eastern Correctional Facility, who was added as a party solely for discovery purposes, following plaintiff's failure to identify the Doe defendants).
Although Plaintiff had a lengthy period of time during which discovery was available to assist him in identifying the Doe Defendants, only now, in opposition to Defendants' motion, and well after the discovery deadline expired, does Plaintiff request the Great Meadow "log-book" entries for December 12 through December 25, 2016. (See Dkt. No. 53-2 at 44.) As Defendants point out, if Plaintiff wanted copies of Great Meadow's log-book entries for thirteen additional days, as he now claims, he had four months to request same, but he failed to serve Defendants with any discovery requests. (Dkt. No. 54 at 7.) Thus, the Court finds Plaintiff has in fact, "been afforded an opportunity to conduct discovery related to the identity of the Doe defendants." (Dkt. No. 26 at 4 n.2; see, e.g., Dkt. Nos. 23, 35, 36, 39, 40, 46-5, 54-2.)
Lastly, Plaintiff's contention that the Superintendent of Great Meadow should not be terminated as a Defendant because he is the "overseer" of the facility, which, among other things "establishes" his personal "involvement" in this action, (see Dkt. No. 53-1 at 45), is without merit. (See Dkt. No. 17 at 9-1.) If the defendant is a supervisory official, like the Superintendent of Great Meadow, a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). In other words, supervisory officials may not be held liable merely because they held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). In this case, the District Court took pains to emphasize the Superintendent of Great Meadow was "named as a defendant for service and discovery purposes only. By doing so, the Court does not suggest in any way that the Superintendent of Great Meadow Correctional Facility was personally involved in the Eighth Amendment claims asserted against the Doe defendants." (Dkt. No. 26 at 4 (emphasis in original); see also Dkt. No. 17 at 9-11.)
Accordingly, for these reasons, the Court recommends granting Defendants' motion as to the Superintendent of Great Meadow.
V. CONCLUSION
For the reasons stated above, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 46) be granted in part and denied in part without prejudice. If the above recommendations are accepted, only Plaintiff's Eighth Amendment excessive force claim against Bennett remains for trial. However, the Court recommends that an exhaustion hearing be held prior to the trial.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendant's motion for summary judgment (Dkt. No. 46) be GRANTED as to Dr. Mandalaywala and the Superintendent of Great Meadow; and DENIED without prejudice as to Bennett; and it is further
RECOMMENDED that an exhaustion hearing be held prior to the trial on Plaintiff's Eighth Amendment excessive force claim against Bennet; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along 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). Dated: February 12, 2020
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge