Opinion
9:20-cv-00665 (MAD/TWD)
02-08-2023
JAMES R. MERCER, JR., Plaintiff, v. M. KINDERMAN, D. CROSSWAY, S. ZAKI, C. COPPOLA, Defendants.
JAMES R. MERCER, JR. Plaintiff, pro se. LETITIA JAMES BRENDA T. BADDAM, ESQ. Attorney General of the State of New York Assistant Attorney General The Capitol Attorney for Defendants.
JAMES R. MERCER, JR. Plaintiff, pro se.
LETITIA JAMES BRENDA T. BADDAM, ESQ. Attorney General of the State of New York Assistant Attorney General The Capitol Attorney for Defendants.
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge.
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). At all times relevant, Plaintiff was an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Marcy Correctional Facility (“Marcy”). (Dkt. No. 1.) On June 15, 2020, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983. Id. By Decision and Order dated July 28, 2020, the Court found Plaintiff's Eighth Amendment deliberate indifference and First Amendment retaliation claims against Dr. Shehab Zaki, Nurse Administrator Colleen Coppola, Deputy Superintendent for Programs Mark Kinderman, and Deputy Superintendent for Administration Daniel Crossway (collectively, “Defendants”) survived initial review under 28 U.S.C. § 1915. (Dkt. No. 5.) On June 15, 2021, the Court denied Defendants' motion to dismiss for failure to state a claim. (Dkt. No. 30.) Defendants filed an answer and discovery ensued. (Dkt. Nos. 33, 34, 35.)
Currently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 38.) On March 23, 2022, the Court granted Plaintiff's letter request for an extension of time to file a response. (Dkt. No. 41.) Thereafter, on April 20, 2022, Plaintiff filed a letter stating that he “decided not to respond to Defendants' motion and will allow the Court to make any decision dismissing my action or allowing the action to move further. I do believe that there is sufficient documentation that supports claims at least against Defendant Zaki amounting to deliberate indifference to my serious medical needs and my claims for retaliation against him[.]” (Dkt. No. 42.) Plaintiff did not otherwise substantively oppose Defendants' motion or respond to Defendants' statement of material facts, and the time to do so has expired. (See generally Dkt. Report.) For the reasons set forth below, the Court recommends granting Defendants' motion.
II. BACKGROUND
Plaintiff's claims arise from alleged incidents that occurred in 2019 and 2020, related to his “osteoarthritis” in his “right hip joint” and back pain. (Dkt. No. 1 at ¶¶ 10, 14, 36, 47, 61, 67, 68, 73, 80, 84, 88, 98, 94.) Generally, Plaintiff alleges Dr. Zaki and Coppola were deliberately indifferent to his serious medical needs and retaliated against him for filing grievances and complaints when they issued and revoked medical permits that were inconsistent with his “disabling medical conditions.” (Dkt. No. 1 at ¶¶ 173-79, 190-95.) He claims Dr. Zaki and Coppola denied, withheld, and delayed medical treatment. Id. at ¶¶ 178-79, 190-95. Plaintiff further alleges Dr. Zaki and Coppola failed to assign him to appropriate programs and/or should have removed him from programming based on his serious medical needs. Id. He claims Kinderman and Crossway acted with deliberate indifference and retaliated against him for filing grievances when they allowed him to be assigned to programs contrary to his medical permits and disabling medical conditions. Id. at ¶¶ 180-85, 190-95.
In support of their motion for summary judgment, Defendants submit Plaintiff's medical records from 2018 through 2020, including Ambulatory Health Records, Medical Permits, a letter from Mohawk Glen Radiology Associates of CNY, PLLC, (“Mohawk Glen Radiology”) dated May 8, 2018, and a letter from Mitchell Rubinovich, M.D., an orthopedist, dated March 11, 2020. (Dkt. No. 38-8 at ¶¶ 12, 13, 14.) The Court adopts Defendants' factual recitation of Plaintiff's medical care, which is incorporated here by reference. (Dkt. No. 38-8.) Through their sworn declarations and submissions, Defendants deny any wrongdoing and seek dismissal of the complaint in its entirety. (Dkt. Nos. 38-5 through 38-8.)
As a physician at Marcy, Dr. Zaki is responsible for “evaluating and treating inmates through sick call, emergency sick call, and in an infirmary setting,” as well as providing care for inmates' “chronic and episodic medical conditions.” (Dkt. No. 38-8 at ¶¶ 1, 2.) From approximately 2018 through 2020, Dr. Zaki was Plaintiff's primary care provider and regularly saw him for medical appointments; evaluated his medical problems and pain symptoms; used his medical judgment to make decisions as to the appropriate course of Plaintiff's treatment; ordered diagnostic tests; and referred Plaintiff to specialists. Id. at ¶¶ 8, 9. Dr. Zaki never ignored Plaintiff's medical problems or symptoms. Id. at ¶ 100. He never denied, withheld, or delayed necessary medical care. Id. at ¶ 95. Further, at no time did he retaliate against Plaintiff. Id. at ¶ 96. In his professional medical opinion, the care and treatment he provided to Plaintiff was, at all times, medically appropriate and reasonable. Id. at ¶ 11.
Upon review of Plaintiff's medical records, Dr. Zaki states Plaintiff engaged in “permit shopping.” Id. at ¶ 67. To that end, Plaintiff would request a sick call, meet with a member of the medical department, usually a registered nurse, and complain of pain. Id. Given his complaints, he was often given a temporary permit that allowed Plaintiff to skip or bypass his program for a certain period of time. Id. at ¶ 68. Per policy within Marcy's medical department, the temporary medical permits were reviewed by Dr. Zaki, and he would revoke or modify the medical permit to meet Plaintiff's medical needs. Id. at ¶ 69. Dr. Zaki avers any modification or changes to a medical permit was done only after he reviewed Plaintiff's medical records and determined that such permit was within Plaintiff's restrictions and accommodations. Id. at ¶ 70. In Dr. Zaki's professional medical opinion, all medical permits were issued consistent with Plaintiff's medical conditions. Id. at ¶ 97.
Further, Dr. Zaki explains that although he prescribes and requests appointments for inmates, DOCCS Central Office, located in Albany, schedules appointments with outside providers. Id. at ¶¶ 81, 82. Due to the COVID-19 pandemic, which began in March 2020, the scheduling of appointments for incarcerated individuals was delayed due to restrictions placed by Central Office. Id. at ¶ 83.
Lastly, Dr. Zaki explains he did not have the ability to modify or change Plaintiff's program assignment. Id. at ¶ 93. The Programs Committee was the only deciding body who could modify or change Plaintiff's program assignment. Id. at ¶ 94.
As a Nurse Administrator, Coppola supervised the nursing staff and investigated grievance complaints concerning their conduct. (Dkt. No. 38-5 at ¶¶ 1-3.) She generally did not provide direct care to inmates and never personally treated Plaintiff. Id. at ¶ 3. Coppola investigated six of Plaintiff's grievances, reviewed his medical record, and drafted responses to the Incarcerated Grievance Records Committee (“IGRC”). Id. at ¶ 13.
Coppola was not responsible for the issuance, revocation, or modification of medical permit, nor any aspect of Plaintiff's program assignment. Id. at ¶¶ 25, 26. She never denied, withheld, or delayed Plaintiff's medical treatment. Id. at ¶ 27. She was not responsible for scheduling appointments with outside providers. Id. at ¶ 21. Coppola explains Central Office schedules appointments with outside providers after they have been prescribed by a doctor. Id. Due to the COVID-19 pandemic, the scheduling of appointments for incarcerated individuals was delayed due to restrictions placed by New York State and Central Office. Id. at ¶ 22.
In sum, Coppola avers she was never deliberately indifferent to Plaintiff's medical needs or otherwise ignored Plaintiff's medical symptoms. Id. at ¶ 33. Further, she had absolutely no involvement with the selection or modification of Plaintiff's programs or Dr. Zaki's medical decisions regarding Plaintiff's permits. Id. She did not retaliate against Plaintiff in anyway. Id.
As the Deputy Superintendent for Programs, Kinderman's responsibilities included planning and providing facility wide programs and services for incarcerated individuals; managing labor relations with staff and personnel; conducting tier hearings; and supervising the Substance Abuse Treatment Program and Prison Based Sex Offender Treatment Program (“PBSOTP”) within Marcy. (Dkt. No. 38-7 at ¶¶ 1, 2, 11.) He also was the advisor of the special operations crisis intervention team and oversaw the grievance program. Id. at ¶ 2. He retired from DOCCS on July 29, 2019. Id. at ¶ 1.
The PBSOTP is a voluntary outpatient program that provides intensive sex offender treatment program to inmates incarcerated with DOCCS who have been classified as high risk for committing a sexual offense upon release from prison. The program is operated by the OMH clinical personnel within DOCCS facilities and is designed to address the multiple risk factors presented by this population. (Dkt. No. 38-4 at ¶ 4, n.1.) On August 8, 2016, Plaintiff applied and began participating in Marcy's PBSOTP. Id. at ¶ 12. He was suspended from the PBSOTP on August 29, 2017. Id. at ¶ 13. On October 5, 2017, Plaintiff applied and was allowed to return to the PBSOTP. Id. at ¶ 14. However, Plaintiff was discharged less than a year later. Id. at ¶ 17. On September 18, 2018, Plaintiff asked to re-enter the PBSTOP, which was granted on October 24, 2018. Id. at ¶ 18. Plaintiff successfully completed the PBSOTP on March 22, 2020. Id. at ¶ 80.
Kinderman states Plaintiff's program assignments were consistent with the restrictions outlined in his medical permits and his ongoing medical condition. Id. at ¶ 38. He further explains any placement to which Plaintiff was assigned was chosen by the Programs Committee after a review of the medical restrictions set by Dr. Zaki. Id. at ¶ 39, 41. Although he was a member of the Programs Committee, Kinderman did not have the ability to choose Plaintiff's program assignment on his own volition. Id. at ¶ 42. Like Dr. Zaki, Kinderman also suggests Plaintiff engaged in “permit shopping” at Marcy. Id. at ¶ 37.
Kinderman was not responsible for any medical determinations made by medical professionals with regards to medical permits issued to Plaintiff. Id. at ¶ 40. He was not involved in the issuance, modification, or revocation of medical permits, as he is not a medical professional, and such responsibility lies solely on the medical staff. Id. at ¶ 52. At no time did he intervene or get involved with Plaintiff's medical permits or any medical decisions. Id. at ¶ 53. He did not deny, withhold, or delay Plaintiff's medical treatment. Id. at ¶ 55.
In sum, Kinderman avers he was never deliberately indifferent to Plaintiff's medical conditions, nor did he otherwise ignore Plaintiff's medical needs. Id. at ¶ 56. He was not involved with the selection or modification of Plaintiff's programs, nor was he involved with Dr. Zaki's decisions regarding Plaintiff's medical permits. Id. He did not retaliate against Plaintiff in any way. Id. at ¶ 57. To Kinderman's knowledge, Plaintiff was assigned to programs which were consistent with his medical condition and medical permits. Id. at ¶ 58.
As Deputy Superintendent of Administration, Crossway oversaw the medical department, business office, personnel, maintenance, construction, and food services. Id. at ¶ 2. He did not provide medical care to incarcerated individuals, nor was he responsible for any medical decisions made by medical professionals or any delay caused by Central Office scheduling Plaintiff's appointments. Id. at ¶¶ 2, 9.
Crossway explains the Programs Committee was responsible for choosing an inmate's placement, and would assign programs after a review of the medical permit restrictions set by Dr. Zaki. Id. at ¶¶ 10, 11. Crossway did not have the ability to choose Plaintiff's program assignments and at no time was he personally involved with Plaintiff's assignments. Id. at ¶ 12. Specifically, Crossway declares he was not involved in the issuance, modification, or revocation of Plaintiff's medical permits; he did not deny, withhold, or delay Plaintiff's medical treatment; he was never deliberately indifferent to Plaintiff's medical needs; he was not involved in Plaintiff's medical care; and he was not involved in the selection or modification of Plaintiff's programs. Id. at ¶¶ 14-17. He declares he did not retaliate against Plaintiff. Id. at ¶ 18. Further, to the best of Crossway's knowledge, Plaintiff was assigned to programs which were consistent with his medical condition and the limitations outlined in Plaintiff's medical permits. Id. At ¶ 19.
III. 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, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). 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. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that 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). “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). Moreover, it is well settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp., 477 U.S. at 324. 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).
While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
“When the opposing party fails to respond to the moving party's Rule 56.1 statement, the material facts contained in the moving party's statement are deemed admitted as a matter of law.” Antwi v. Health & Human Sys. (Ctrs.) F.E.G.S., No. 13-CV-0835, 2014 WL 4548619, at *4 (S.D.N.Y. Sept. 15, 2014); see also Genova v. County of Nassau, 851 Fed.Appx. 241, 244 (2d Cir. 2021). However, “a district court must ensure that there is support in the record for facts contained in unopposed Rule 56.1 statements before accepting those facts as true.” United States v. Abady, No. 03-CV-1683, 2004 WL 444081, at *3 (S.D.N.Y. Mar. 11, 2004) (citing Giannullo v. City of New York, 322 F.3d 139, 140-43 (2d Cir. 2003)). Moreover, a pro se plaintiff must be notified of the consequences of failing to respond to the motion. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
In this case, Plaintiff was sent a specific warning by both Defendants and the Court of the consequences of a failure to respond:
WARNING: If you do not submit a proper response to the defendants' statement of material facts, the Court may deem you to have admitted the defendants' factual statements. If you do not submit copies of record evidence in support of your denials, the Court may deem defendants' factual statements to be true. If you do not submit a proper response memorandum of law, the Court may deem you to have conceded the defendants' arguments. If you do not respond to this motion properly (or at all), summary judgment may be entered against you, meaning that SOME OR ALL OF YOUR CLAIMS MAY BE DISMISSED.(Dkt. Nos. 38, 39.) Accordingly, the facts set forth in Defendants' statement pursuant to L.R. 56.1 (Dkt. No. 38-4) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified pleading and sworn testimony will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts . . . supplemented by Plaintiff's verified complaint . . . as true.”).
IV. DISCUSSION
Defendants argue summary judgment is warranted because Plaintiff's claims fail as a matter of law; Coppola, Kinderman, and Crossway were not personally involved in the alleged constitutional violations; and Dr. Zaki and Coppola are entitled to qualified immunity. (See generally Dkt. No. 38-1.) As noted, Plaintiff has not properly responded to Defendants' motion. (See Dkt. No. 42.)
A. Eighth Amendment Deliberate Indifference Claims
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.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976) (internal quotation marks omitted). “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)). With respect to claims that job assignments are inappropriate given an inmate's medical condition, courts apply the standard for medical indifference. See Cooke v. Stern, No., 9:07-CV-1292 (GLS/ATB), 2010 WL 3418393, at *6 (N.D.N.Y. Aug. 2, 2010). An Eighth Amendment claim for medical indifference has two necessary components, one objective and the other subjective. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
To meet the objective requirement, the alleged deprivation of adequate medical care must be “sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Determining whether a deprivation is sufficiently serious also involves two inquiries. Id. The first question is whether the plaintiff was actually deprived of adequate medical care. Id. Prison officials who act “reasonably” in response to the inmate's health risk will not be found liable because the officials' duty is only to provide “reasonable care.” Id. (citing Farmer, 511 U.S. at 844-47). The second part of the objective test asks whether the purported inadequacy in the medical care is “sufficiently serious.” Id. at 280. The court 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 v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003)). If, as here, the inmate alleges the medical treatment received was inadequate, the inquiry is narrower. It becomes a question of “the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes.” Smith, 316 F.3d at 186.
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.” Sonds v. St. Barnabas Hosp. Correctional Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001). Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. Id. (citations omitted). An inmate does not have the right to treatment of his choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986).
Under the subjective component, medical mistreatment rises to the level of deliberate indifference only when it “involves culpable recklessness, i.e., an act or a failure to act . . . that evinces ‘a conscious disregard of a substantial risk of serious harm.'” Chance, 143 F.3d at 703 (quoting Hathaway, 99 F.3d at 553). Thus, the defendant “official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.” Framer, 511 U.S. at 837. Satisfying this standard “entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835. Accordingly, “an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838; see also Estelle v. Gamble, 429 U.S. at 10506 (holding that an “inadvertent failure to provide adequate medical care” does not constitute “deliberate indifference”); Chance, 143 F.3d at 703 (holding that “[m]ere disagreement over proper treatment does not create a constitutional claim,” as long as the treatment was adequate); Hathaway, 99 F.3d at 553 (holding that “mere medical malpractice” does not constitute deliberate indifference unless the malpractice involved “culpable recklessness”).
Additionally, a defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Tangreti v. Bachmann, 983 F.3d 609, 619-20 (2d Cir. 2020); see also Spavone v. N.Y.S. Dep't of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (“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.”).
1. Dr. Zaki
Plaintiff claims Dr. Zaki was deliberately indifferent to his serious medical needs by issuing and rescinding medical permits which allowed Plaintiff to work in certain programs; refusing to issue medical permits restricting him from specific program assignments; and denying, withholding, or delaying medical treatment with orthopedic specialists. (Dkt. No. 1 at ¶¶ 173-79, 190-95.) Defendants argue summary judgment is warranted because Plaintiff cannot meet the objective or subjective component of his Eighth Amendment deliberate indifference claim. (Dkt. No. 38-1 at 7-11.)
Here, Defendants contend Plaintiff cannot meet the objective component of his deliberate indifference claim against Dr. Zaki because the record establishes the care provided to Plaintiff by Dr. Zaki was reasonable, and, therefore, adequate under the Eighth Amendment. (Dkt. No. 38-1 at 7-11.) The Court agrees. The record demonstrates Plaintiff received medical care following each complaint he made to Dr. Zaki and to other medical personnel during sick call. (See, e.g., Dkt. No. 38- 8 at ¶¶ 32, 41, 59.) Indeed, from November 2018, through July 2020, Plaintiff was seen over 59 times by various medical professionals, and issued 19 medical permits to accommodate his medical conditions. Id. at ¶ 87.
Dr. Zaki prescribed Plaintiff pain medication and a wheelchair and referred him to outside medical professionals to attain MRIs, X-rays, and consultations with orthopedic specialists. Id. at ¶¶ 71, 74, 75. Following these appointments, Dr. Zaki would receive Plaintiff's imaging or documents from orthopedic specialists and would modify or change Plaintiff's medical permit, based on his medical opinion after a review of Plaintiff's medical record. Id. at ¶ 72. For example, in March of 2019, Dr. Zaki reviewed Plaintiff's X-rays and determined that while he could not operate heavy equipment, he could work in lawns and grounds. (Dkt. No. 38-4 at ¶ 31.) On April 19, 2019, after examining Plaintiff, Dr. Zaki cleared Plaintiff to work in the mess hall. Id. at ¶ 34. Plaintiff was seen again by Dr. Zaki in May of 2019, for his back pain radiculopathy issues. Id. at ¶ 44. Dr. Zaki issued the following restrictions: “Unable to lift greater than 10 pounds, unable to climb stairs or ladders/heights, unable to partake in sports activities, and unable to push/pull/bend or shove.” Id. at ¶ 44. On June 26, 2019, Plaintiff attended a neurosurgery consult with an outside medical specialist. Id. at ¶ 49. The next day, Dr. Zaki met with Plaintiff and modified Plaintiff's restrictions to reflect that Plaintiff could not stand for more than 20 minutes, along with maintaining the previously stated limitations. Id.
On August 6, 2019, Plaintiff attended sick call complaining of right hip and groin pain. Id. at ¶ 55. Dr. Zaki examined Plaintiff on August 12, 2019, and issued a medical permit deeming him ineligible to work in the mess hall pending Plaintiff's MRI study results. Id. On August 18, 2019, Plaintiff was removed from his food service position as he was deemed “unemployed/unassigned” due to medical reasons. Id. at ¶ 57. On September 17, 2019, an MRI was performed on Plaintiff's right hip at Mohawk Glen Radiology, which showed Plaintiff suffered from severe osteoarthritis in the right hip joint. Id. at ¶ 60. On October 15, 2019, Plaintiff was seen by Dr. Zaki to review the MRI study. Id. at ¶ 66. Given the MRI, Dr. Zaki referred Plaintiff to an orthopedic specialist for an updated opinion to be scheduled by Central Office. Id. Plaintiff was also issued a temporary medical permit deeming him ineligible for work in the mess hall. Id.
On January 6, 2020, Plaintiff requested to speak with Dr. Zaki regarding his medical permit. Id. at ¶ 73. Plaintiff admitted that he “didn't want to work in the mess hall” program and requested to be deemed medically unassigned to the program. Id. Dr. Zaki met with Plaintiff and determined he was: “Unable to lift 70 lbs, unable to stand > 20 mins, unable to climb stairs/ladders, unable to work with power tools, no pushing/pulling/bending[.]” Id. Following Dr. Zaki's medical assessment, Plaintiff was assigned to the mess hall with specific duties that complied with his restrictions, i.e., wiping down tables while sitting down. Id.
On March 11, 2020, upon a physical exam, Dr. Rubinovich noted Plaintiff was still walking fairly well and his range of movement remained fairly good. Id. at ¶ 77. Dr. Rubinovich opined Plaintiff needed to see an orthopedic surgeon for a total hip arthroplasty assessment and, in the interim, Plaintiff's ambulation should be limited as much as possible. Id. Thereafter, Plaintiff was issued a wheelchair. Id. at ¶ 81. On March 26, 2020, Dr. Zaki reviewed Dr. Rubinovich's letter, met with Plaintiff, and restricted Plaintiff's ability to work in the mess hall to three times a day. Id. In May of 2020, Plaintiff was issued a medial permit deeming him eligible to work as a porter. Id. at ¶ 85. Plaintiff attended sick call in June of 2020, and was advised the orthopedic appointment was approved but not yet scheduled by Central Office due to COVID-19 restrictions. Id. at ¶ 87. On July 2, 2020, Dr. Zaki also advised Plaintiff that orthopedic appointments were being delayed due to COVID-19 restrictions. Id. at ¶ 88.
On July 30, 2020, Plaintiff was seen by an orthopedic specialist; Plaintiff was advised that a total right hip replacement would be scheduled when COVID-19 restrictions were lifted. Id. at ¶ 90. On August 2, 2020, Plaintiff was removed as a porter. Id. at ¶ 91. On August 7, 2020, and August 14, 2020, Plaintiff attended sick calls to check on the scheduling of his total right hip replacement as recommended by his orthopedic specialist. Id. at ¶ 92. Plaintiff was advised that a request was submitted on July 31, 2020, for his total hip replacement and the medical department was awaiting response from Central Office. Id. Plaintiff was released from DOCCS custody in January 2021. Id. at ¶ 93. During his deposition, Plaintiff testified he had the surgery in June 2021. (Dkt. No. 38-3 at 110.)
Based on the foregoing, Plaintiff has not demonstrated Dr. Zaki deprived him of adequate medical care. “Although a delay or interruption in medical care may amount to deliberate indifference, the Second Circuit has reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment, ignored a life-threatening and fast-degenerating condition for three days, or delayed major surgery for over two years.” Moody v. Pickles, No. 9:03 CV 850 (DEP), 2006 WL 2645124, at *8 (N.D.N.Y. Sept. 13, 2006). The record is devoid of any such evidence.
While Plaintiff faults Dr. Zaki for delaying his surgery, the record demonstrates Central Office schedules appointments with outside providers and the delays in scheduling any consult or appointment were due to the national COVID-19 pandemic, which affected the scheduling of appointments for incarcerated individuals. (Dkt. No. 38-8 at ¶¶ 81, 82, 83, 86.) During the fourmonth delay in the scheduling of Plaintiff's orthopedic specialist appointment, Plaintiff was seen multiple times by various medical professionals and was advised the medical department was waiting for Central Office to schedule the appointment. Id. at ¶ 84. “Courts have found that a plaintiff's allegations fail to meet the objective prong where the alleged delay in providing medical attention is neither the underlying cause of a plaintiff's condition nor contributed to a worsening in the condition[.]” Cuffee v. City of New York, 15 Civ. 8916, 2017 WL 1232737, at *9 (S.D.N.Y. Mar. 3, 2017), report-recommendation adopted, 2017 WL 1134768 (S.D.N.Y. Mar. 27, 2017); accord DeMeo v. Koenigsmann, No. 11 Civ. 7099, 2015 WL 1283660, at *11 (S.D.N.Y. Mar. 20, 2015). Plaintiff has not demonstrated that any delay attributable to Dr. Zaki caused a worsening of his condition.
Regarding Plaintiff's medical permits, Dr. Zaki states, and the record demonstrates, any modification or changes to a medical permit were done only after he reviewed Plaintiff's medical records and determined that such permit was within Plaintiff's restrictions and accommodations. (Dkt. No. 38-8 at ¶ 70.) Specifically, after a review of Plaintiff's MRIs and orthopedic surgeon consult notes, Dr. Zaki decided, in his professional medical opinion, Plaintiff was able to work in the mess hall with the current accommodations that were in place. Id. at ¶ 90. Thus, in Dr. Zaki's professional medical opinion, all medical permits were issued consistent with Plaintiff's medical conditions. Id. at ¶ 97. Further, although Plaintiff claims otherwise, the record demonstrates the Programs Committee, and not Dr. Zaki, was responsible for program assignments. Id. at ¶ 94.
In sum, the record evidence demonstrates Plaintiff's medical needs were reasonably treated and monitored by Dr. Zaki. Inasmuch as Plaintiff cannot satisfy the objective prong of deliberate indifference, Dr. Zaki is entitled to summary judgment. See, e.g., Dobbins v. Pont, No. 15-CV-3091, 2017 WL 3309726, at *6 (S.D.N.Y. Aug. 2, 2107) (granting summary judgment to prison official where undisputed facts showed the plaintiff received adequate medical treatment); 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 was not actually deprived of adequate treatment where record demonstrated that the inmate was frequently treated, prescribed pain medication, tested with an X-ray and MRI, and referred to an orthopedic specialist); Morgan v. Shivers, No. 1:14-cv-7924, 2018 WL 618451, at *3 (S.D.N.Y. Jan. 29, 2018) (granting summary judgment to prison official where plaintiff could not satisfy the objective prong of the deliberate indifference claim); Goris v. Breslin, 402 Fed.Appx. 582, 584 (2d Cir. 2010) (same).
Even assuming Plaintiff could satisfy the objective prong, Plaintiff fails to establish Dr. Zaki knew of and disregarded an excessive risk to his health. In his sworn declaration, Dr. Zaki states he provided treatment to Plaintiff which he believed, in his professional medical opinion, was appropriate based on his evaluation of Plaintiff and after a review of Plaintiff's medical record, both of which were guided by the evidence-based Milliman Care Guidelines for best practices. (Dkt. No. 38-8 at ¶ 77, 88, 89.) Plaintiff's disagreement with Dr. Zaki's professional judgment cannot provide a basis for a deliberate indifference claim, because while he may be entitled to adequate treatment, he does not have a constitutional “right to [the] treatment of his choice.” Perry v. Rupert, No. 9:10-cv-01033 (LEK/TWD), 2016 WL 11478229, at *9 (N.D.N.Y. Apr. 19, 2016) (citing Dean, 804 F.2d at 215). On this record, the evidence fails to establish Dr. Zaki engaged in any conduct, or inaction, evincing a conscious disregard of a substantial risk of serious harm.
To the extent Plaintiff faults Dr. Zaki for the delays in appointments with specialists, the record demonstrates Dr. Zaki did not and could not determine when Plaintiff would be seen by outside specialists. (Dkt. No. 38-8 at ¶¶ 81-82.) The scheduling of Plaintiff's surgery was beyond Dr. Zaki's control and impacted by the COVID-19 pandemic. Id. at ¶¶ 83-86. See Crique v. Magill, No. 12 Civ. 3345, 2013 WL 3783735, at *3 (S.D.N.Y. July 9, 2013) (“While delays in providing necessary medical care may in some cases demonstrate deliberate indifference, the Second Circuit has reserved those instances to cases when prison officials deliberately delayed care as a form of punishment.”); see also Fenton v. Provow, No. 9:20-CV-1564 (BKS/DJS), 2022 WL 3904110, at *8 (N.D.N.Y. Aug. 5, 2022) (finding no deliberate indifference where scheduled hernia surgery cancelled twice in response to the COVID-19 pandemic), report- recommendation adopted, 2022 WL 3908799 (N.D.N.Y. Aug. 30, 2022). Furthermore, Dr. Zaki continued to monitor and address Plaintiff's underlying medical issues in the interim such as by prescribing medication, a wheelchair, and wheelchair gloves, and modifying/restricting Plaintiff's permits as necessary. (Dkt. No. 38-8 at ¶¶ 80, 84, 97.) This too establishes the lack of deliberate indifference.
Lastly, even if Dr. Zaki's medical decisions caused Plaintiff unintended harm, negligence is not actionable under Section 1983. See Ahlers v. Kaskiw, No. 12-CV-501 (GLS/ATB), 2014 WL 4184752, at *7 (N.D.N.Y. Aug. 21, 2014) (“[N]egligence in diagnosing or treating an inmate's medical condition does not constitute deliberate indifference.”) (citing Farmer, 511 U.S. at 835); Chance, 143 F.3d at 703 (“[N]egligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.”) (citing Estelle, 429 U.S. at 105-06). Based on the foregoing, Plaintiff also fails to satisfy the subjective prong of the deliberate indifference test.
Accordingly, the Court finds given the evidence of treatment Plaintiff received during the relevant time, no reasonable jury could find Dr. Zaki deliberately indifferent to Plaintiff's serious medical needs. See Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (finding summary judgment appropriate where the nonmovant failed to provide “evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential element of a claim.”) (internal quotation marks omitted). Therefore, the Court recommends summary judgment be granted to Dr. Zaki on Plaintiff's Eighth Amendment claim.
2. Coppola
Plaintiff alleges Coppola was deliberately indifferent to his medical needs by denying, withholding, or delaying medical treatment and participating in the issuance and revocation of medical permits that were inconsistent with his medical conditions. (Dkt. No. 1 at ¶¶ 173-79, 190-95.) At his deposition, Plaintiff testified, “[a]s the nurse administrator, she has a say so in what goes on in -- in the medical department. She knew I wasn't supposed to be in those positions [referring to lawns and grounds and mess hall] with the medical conditions that I had. She answered grievances.” (Dkt. No. 38-8 at 140.) Defendants argue Plaintiff's Eighth Amendment claim fails on the merits and for lack of personal involvement. (Dkt. No. 38-1 at 721.)
Here, the record establishes Coppola did not personally treat Plaintiff and was not responsible for the issuance, revocation, or modification of medical permits. (Dkt. No. 38-5 at ¶¶ 9, 25.) She did not assign inmates to their programs, nor was she responsible for scheduling any outside appointments. Id. at ¶ 26. Rather, her involvement consisted solely of her responding to grievances addressed to the medical department and drafting investigative statements after reviewing Plaintiff's medical record. Id. at ¶ 11. Further, as discussed above, the record demonstrates Plaintiff received adequate care. In short, there is no evidence Coppola knew of and disregarded an excessive risk to Plaintiff's health or safety.
Accordingly, Plaintiff has failed to demonstrate Coppola was deliberately indifferent to a serious medical condition, and the Court recommends granting summary judgment to Coppola on this claim.
3. Kinderman and Crossway
Plaintiff alleges Kinderman and Crossway were deliberately indifferent to his medical needs when they allowed Plaintiff to be assigned to programs contrary to his medical permits and disabling medical condition. (Dkt. No. 1 at ¶¶ 182-85.) As to Kinderman's personal involvement, Plaintiff stated he was deliberately indifferent
“because as the chief officer at Marcy as far as programming is involved, he does -- did have a say so in me being assigned to certain programs. So once it was known that I had medical issues, he had -- you know, he could have did something or at least attempted to do something to try to resolve the issues of me being in lawns and grounds and the mess hall. Because overall, he is head of programs. He's a head of the counseling unit, all that.”(Dkt. No. 38-3 at 128-29.)
Plaintiff testified Crossway “came into the picture” when Kinderman retired. As such, Plaintiff's claims were brought against Crossway “because he oversaw medical -- the medical side of the facility.” Id. at 133. Defendants argue they were not personally involved in Plaintiff's medical treatment or medical permits, and were not individually responsible for Plaintiff's program assignments. (Dkt. No. 38-1 at 16-17, 21-26.)
The record establishes Kinderman and Crossway were not responsible for any medical determinations made by Dr. Zaki or other medical professionals. (Dkt. No. 38-7 at ¶ 52; Dkt. No. at 38-6 at ¶ 14.) Although “[n]on-medical personnel may be liable for deliberate indifference to medical needs where a plaintiff demonstrates that such personnel intentionally denied or delay medical care[,]” Crandell v. Ross, No. 19-CV-6652, 2020 WL 134576, at *4 (W.D.N.Y. Jan. 13, 2020), the record is devoid of any such evidence.
As to Plaintiff's programming, the record demonstrates Kinderman and Crossway were not responsible for the programs to which Plaintiff was assigned. (Dkt. No. 38-7 at ¶ 42; Dkt. No. at 38-6 at ¶ 12.) The Programs Committee gave out such work assignments after a review of the medical permit restrictions set by Dr. Zaki. (Dkt. No. 38-7 at ¶ 41; Dkt. No. at 38-6 at ¶ 11.)
Plaintiff's belief that Kinderman and Crossway should have done “something” fails to establish deliberate indifference. See Cuoco v. Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000) (holding that “[t]here is no evidence that [either the warden or the Health Services Administrator], neither one a medical doctor, had the authority to intervene in an admittedly medical decision”); see also Joyner v. Greiner, 195 F.Supp.2d 500, 506 (S.D.N.Y. 2002) (“[A] prison administrator is permitted to rely upon and be guided by the opinions of medical personnel concerning the proper course of treatment administered to prisoners, and cannot be held to have been ‘personally involved' if he does so.”).
Accordingly, Plaintiff has failed to demonstrate Kinderman and Crossway were deliberately indifferent, and, therefore, the Court recommends granting summary judgment to them.
B. First Amendment Retaliation Claims
“To prevail on a First Amendment retaliation claim, an inmate must establish (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected conduct and the adverse action.” Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (cleaned up). As the Second Circuit has repeatedly cautioned, “[c]ourts properly approach prisoner retaliation claims ‘with skepticism and particular care,' because ‘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.'” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting 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)); see also Phelps v. Kapnolas, 308 F.3d 180, 187 n.6 (2d Cir. 2002).
“[T]he use of the prison grievance system” is constitutionally protected conduct under the First Amendment. Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004); see Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (holding that “retaliation against a prisoner for pursuing a grievance violates the right to petition the government for redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.”). Furthermore, “adverse action” for the purposes of a retaliation claim has been defined as “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights . . . [o]therwise the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Davis, 320 F.3d at 353 (citing Dawes, 239 F.3d at 493).
To establish a causal connection between protected activities and the adverse action, the court may consider a number of factors, including “(1) the outcome of any hearing concerning the allegedly retaliatory charges; (2) the inmate's prior disciplinary record; (3) any statements made by the defendant concerning his motivation; and[ ] (4) the temporal proximity between the protected activity and the defendant's adverse action.” Williams v. Muller, No. 98-CV-5204, 2001 WL 936297, at *3 (S.D.N.Y. Aug. 17, 2001) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), abrogated, in part, on other grounds by Tangreti, 983 F.3d 609). However, with respect to temporal proximity at the summary judgment stage, the Second Circuit has “consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim.” Washington v. Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017).
“Even if plaintiff makes the appropriate showing of retaliation, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct.” Brooks v. Rock, No. 9:11-CV-1171 (GLS/ATB), 2014 WL 1292232, at *18 (N.D.N.Y. Mar. 28, 2014) (citation omitted); see Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) (“Regardless of the presence of retaliatory motive, . . . a defendant may be entitled to summary judgment if he can show dual motivation, i.e., that even without the improper motivation the alleged retaliatory action would have occurred.” (italics omitted)).
For retaliation claims, as with other Section 1983 claims, a plaintiff “must show some tangible connection between the constitutional violation alleged and [a] particular defendant.” Toole v. Connell, 9:04-CV-724 (LEK/DEP), 2008 WL 4186334, at *6 (N.D.N.Y. Sept. 10, 2008).
As set forth above, Plaintiff claims Dr. Zaki and Coppola retaliated against him by issuing and revoking medical permits that were inconsistent with his “disabling medical conditions” and Kinderman and Crossway retaliated against him by allowing Plaintiff to be assigned to programs contrary to his medical permits and disabling medical conditions. (Dkt. No. 1 at ¶¶ 173-79, 180-85, 190-95.) Defendants argue they are entitled to summary judgment because Plaintiff has failed to show that he suffered an adverse action and they had “legitimate non-retaliatory reasons for their actions.” (Dkt. No. 38-1 at 26-29.)
Here, there is no question that filing grievances is a protected activity. Likewise, it is plausible the alleged retaliatory conduct would suffice to deter a similarly situated individual of ordinary firmness from filing a constitutionally protected grievance. However, Plaintiff has failed to provide evidence of individual First Amendment retaliation violations by Coppola, Kinderman, or Crossway. As detailed above, the record demonstrates Coppola, Kinderman, and Crossway did not have authority to issue and/or revoke medical permits and they did not assign Plaintiff to programs contrary to his medical permits and disabling medical conditions. Accordingly, they could not have taken the adverse action Plaintiff alleges. Thus, Coppola, Kinderman, and Crossway are entitled to summary judgment on this claim.. See Encarnacion v. Spinner, No. 9:15-CV-01411 (BKS/ML), 2020 WL 2838559, at *25 (N.D.N.Y. June 1, 2020) (summary judgment granted to nurse on retaliation claim where she did not have the authority to engage in the alleged adverse action, i.e., discontinuing a medication).
See, e.g., Arriaga v. Gage, No. 16-CV-1628, 2018 WL 1750320, at *10 (S.D.N.Y. April 6, 2018) (plaintiff's numerous allegations that prison doctor interfered with his medical passes; outright denied his requests for treatment recommended by another doctor; and denied him any treatment while forcing him to wait at sick call once a week for two months, were sufficient to state an adverse action); Vega v. Lareau, No. 9:04-CV-0750 (GTS/ATB), 2010 WL 2682307, at *8 (N.D.N.Y. Mar. 16, 2010) (“A job reassignment or termination can under certain circumstances constitute adverse action necessary to support a claim of retaliation.”); Chavis v. Struebel, 317 F.Supp.2d 232, 238 (W.D.N.Y. 2004) (“assigning the inmate a less desirable work assignment satisfies the adverse action requirement”).
Moreover, as set forth above, Defendants have established any modification or change to Plaintiff's medical permits was done after Dr. Zaki reviewed Plaintiff's medical record and, based on his professional medical opinion, determined such permit was within Plaintiff's restrictions and accommodations. (Dkt. No. 38-8 at ¶¶ 70, 72, 90, 97.) Thus, Dr. Zaki “had legitimate non-retaliatory reasons” for amending and issuing Plaintiff's medical permits. Id. at ¶¶ 97, 98. Plaintiff has not submitted sufficient evidence to raise a question of fact as to the reasonableness of Dr. Zaki's actions. See Graham, 89 F.3d at 81 (finding that even assuming that a retaliatory motive existed, defendant would still be entitled to summary judgment because there are “proper, non-retaliatory reasons” for the actions taken). Thus, Dr. Zaki is also entitled to summary judgment on this claim.
Accordingly, the Court recommends granting Defendants' motion on this ground.
C. Qualified Immunity
The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In evaluating whether a right was clearly established at the time a civil rights defendant acted, the court must determine: “(1) whether the right in question was defined with ‘reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and, (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.” African Trade & Information Center, Inc. v. Abromaitis, 294 F.3d 355, 360 (2d Cir. 2002) (citations omitted). Even if the constitutional privileges are clearly established, a government actor may still be shielded by qualified immunity “if it was objectively reasonable for the public official to believe that his acts did not violate those rights.” Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991) (citing Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990)).
In determining whether qualified immunity applies, the court may first consider whether “the facts alleged show the [defendants'] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v. Callahan, 555 U.S. 223, 224 (2009) (holding that, “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory in all cases”). The court may also examine “whether the right was clearly established . . . in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. However, “[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Id.
Here, Dr. Zaki and Coppola argue in the alternative they should be awarded summary judgment based on the doctrine of qualified immunity. (Dkt. No. 38-1 at 29-31.) As previously set forth, the Court is recommending that Plaintiff's claims against Dr. Zaki and Coppola do not rise to violations of constitutional proportions. In the absence of any constitutional violations by Dr. Zaki and Coppola, the Court need not proceed any further with the qualified immunity analysis, and dismissal of the claims is appropriate. See Walker v. Schult, 45 F.4th 598, 617 (2d Cir. 2022) (“A defendant official's motion for dismissal on this ground as a matter of law should be granted if either the facts do not support a finding that the plaintiff's federal rights were violated, or the plaintiff's right not to be subjected to the defendant's challenged conduct was, at that time of that conduct, not clearly established.”); Brown v. Keefer, No. 9:20-CV-1192 (GLS/ATB), 2023 WL 1420916, at *8 (N.D.N.Y. Jan. 13, 2023) (“If a court determines that one prong establishes that a defendant is entitled to qualified immunity, then ‘it need not reach the other' prong.”) (quoting Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014) (other citation omitted)), report-recommendation adopted, 2023 WL 1421170 (N.D.N.Y. Jan. 31, 2023).
V. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 38) be GRANTED; and it is further
RECOMMENDED that the complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY, and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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 (14) 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)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
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).
SO ORDERED.