Opinion
98-CV-6031CJS.
May 18, 2004
Tom Terrizzi, Esq., Karen Murtagh-Monks, Esq., James M. Bogin, Esq., Prisoner's Legal Services of New York, Ithaca, New York, for plaintiff.
Steven E. Cole, Esq., Laurie A. Giordano, Esq., Wolford LeClair LLP, Rochester, New York, for defendants.
Douglas S. Gates, Esq., Gates Adams, P.C., Rochester, New York, John Alves, for defendant.
DECISION AND ORDER
INTRODUCTION
This is an action in which plaintiff Wilfredo Rodriguez ("plaintiff"), formerly a prison inmate confined at Southport Correctional Facility ("Southport"), is suing Michael McGinnis ("McGinnis"), Superintendent of Southport, Richard Morse ("Morse"), the former Deputy Superintendent for Security Services ("DSS") at Southport, and John Alves, M.D. ("Alves"), the Facility Health Services Director at Southport, pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, by repeatedly placing him on a restricted disciplinary diet, and by handcuffing him behind his back in a painful manner. See, Amended Complaint [#31]. Now before the Court are two motions for summary judgment, one by McGinnis and Morse [#120], and one by Alves [#126]. For the reasons that follow, Alves's application is denied, Morse's is granted, and McGinnis's is granted in part and denied in part.
Plaintiff had also previously asserted claims pursuant to Title II of the Americans with Disabilities Act ("AD A"), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, however, plaintiff has withdrawn the ADA and Section 504 claims. Bogin Declaration [#140] ¶ 6.
BACKGROUND
The facts of this case were set forth at length in a previous Decision and Order [#10] of this Court and need not be repeated here in their entirety. It is sufficient to note that between April 1994 and July 1, 1998, plaintiff was confined at Southport. The incidents that are the subject of the instant lawsuit allegedly occurred between June 26, 1995 and July 1, 1998. During that period, prior to April 1, 1996, Robert McClellan ("McClellan") was Superintendent at Southport and McGinnis was First Deputy Superintendent. From April 1, 1996 onward, McGinnis was Superintendent of Southport. Morse served as DSS at Southport from June 26, 1995 until he retired in 2001. Alves was Facility Health Services Director at Southport at all relevant times, and in that capacity he had the final decision-making authority regarding inmate health decisions. Alves Dep. 87.
Southport is a maximum-security, Segregated Housing Unit ("SHU") prison facility at which inmates are confined to their solitary-confinement cells for 23 hours per day, with one hour of exercise outside of their cells. Southport primarily houses inmates who have accumulated lengthy SHU sentences (usually more than 90 days) as a result of disciplinary problems at other correctional facilities. Southport utilized a system known as the Progressive Inmate Movement System ("PIMS"), through which inmates could earn a reduction of their overall SHU sentences by exhibiting good behavior. Under PIMS, inmates were categorized as either Level 1, Level 2, or Level 3, with Level 1 inmates having the least number of privileges and Level 3 inmates having the most. An inmate's level within PIMS also determined the type of mechanical restraints that would be applied when he was outside of his cell. For example, throughout most of the relevant period Level 1 inmates were shackled behind their backs, with a waist chain and leg irons whenever they were out of their cells, while Level 3 inmates were handcuffed in front without a waist chain. Inmates were given the opportunity to advance from Level 1 through Levels 2 and 3, thereby earning additional privileges, by exhibiting good behavior. For example, for an inmate to move from Level 1 to Level 2, he would have to avoid receiving any misbehavior reports, restraint orders, or cell shield orders for a period of thirty days. In addition, the corrections captain in charge of the inmate would have to find, based on the inmate's overall record, that the move to Level 2 was warranted. Inmates who reached Level 2 and Level 3 would eventually become eligible to have their overall SHU sentence reduced. According to McGinnis, the "vast majority" of inmates at Southport succeeded in reducing their SHU sentences using the PIMS system. McGinnis Dep. 64.
Level 1 inmates were shackled in this manner during most, but not all, of the relevant period. On or about February 6, 1997, in response to an increase in assaultive behavior by inmates, McGinnis began requiring that all Level I inmates be handcuffed behind the back with a waist chain whenever they were outside of their cells. Prior to that they were shackled in a less restrictive manner, although the record is not entirely clear as to how.
Cell shield orders direct that a plexiglass shield be placed over the openings in an inmate's cell door, to prevent the inmate from committing unhygienic acts such as spitting or throwing urine or feces.
On the other hand, inmates who were convicted at disciplinary hearings of violating Southport's facility rules would ordinarily be sentenced to lose certain privileges and/or to receive additional time in SHU. Significantly for purposes of the instant case, hearing officers could also recommend a sentence of "restricted diet" under certain circumstances. At all relevant times, DOCS Directive 4933 stated, in relevant part:
Food. Inmates confined in SHU will be provided meals of the same type as the meals available to inmates in general population and in sufficient quantity to be nutritionally adequate, except as provided in this section.
1. All food items will be delivered to the inmates upon receipt from the food service area, and in a manner that will ensure receipt of the food in a appropriate condition.
2. Inmates may be placed on a restricted diet in accordance with provisions of 7 NYCRR Chapter V [ 7 NYCRR § 254.7], for the following reasons:
a. throwing food while assigned to the SHU
b. committing unhygienic acts in the SHU, such as spitting at staff or other inmates or throwing feces or urine,
c. refusing to obey a direct order to return a food container or utensil at the conclusion of a meal while assigned to the SHU; or
d. as a [sic] long term SHU inmate who is disruptive and who has lost all other available privileges and good time.
3. The Superintendent of designee may issue a written order placing an inmate reported to have engaged in conduct described in Section VII-A-2 on a restricted diet for no more than seven (7) days pending the outcome of the inmate's Superintendent's Hearing. The order shall briefly state the reason(s) for the imposition of the restricted diet and contain the following notice to the inmate: "You may write to the Deputy Superintendent of Security of his/her designee to make a statement as to the need for the continued prehearing imposition of the restricted diet." One copy of the order shall be given to the inmate and another copy forwarded to the Commissioner within 25 hours of issuance.
4. Whenever a restricted diet is imposed as part of a Superintendent's Hearing disposition, a written report shall be made to the Commissioner within three days of the commencement of the diet. This report shall contain the name and DIN [identification number] of the inmate; date of the hearing; duration of the diet, including beginning and ending dates; and a brief description of the reason(s).
5. The restricted diet must consist of a sufficient quantity of wholesome and nutritious food.
6. Health Services and Food Services shall be notified in advance of the imposition of a restricted diet. A physician, nurse or physician's assistant, designated by the facility Health Services Director, must examine into the state of health of the inmate within 24 hours of the commencement of the restriction and daily thereafter during the period of restriction.
7. The Superintendent shall give full consideration to any recommendation that may be made by such physician, nurse or physician's assistant, shall forthwith report to the Commissioner any recommendation made by such person that is not carried out, and shall in any event make a full report, in writing, to the Commissioner at least once per week concerning the inmate's condition.
Directive 4933 (9/18/95), § VII(A)(1)-(7). At Southport, the restricted diet consisted of three servings per day of a one-pound loaf of bread, made with whole wheat flour, powdered milk, whole milk, yeast, carrots and potatoes, and 8 ounces of uncooked cabbage. During days when the restricted diet was in place, an inmate would receive the loaf and cabbage for breakfast, lunch, and dinner. It was Southport's policy that inmates serving a restricted diet sentence would receive the restricted diet for a maximum of seven consecutive days, followed by at least seven days of regular diet.
On all but two or three occasions, plaintiff was given regular meals for at least seven days before being placed back on the restricted diet.
Although hearing officers could recommend a sentence of restricted diet, the sentence could not be carried out without the approval and direction of the facility superintendent. As superintendent at Southport, McGinnis would ordinarily accept the hearing officer's recommendation and impose the restricted diet, unless the diet was found to be medically contraindicated for a particular inmate. In that regard, before beginning any period of restricted diet, Alves was required to notify McGinnis whether or not the particular inmate was medically able to receive such diet. Alves believed that conditions such as HIV positivity, diabetes, and inflammatory bowel disease would always render an inmate medically unfit to receive the restricted diet, while conditions such as depression and hepatitis-C would not. Alves Dep. 168-69, 177. Whenever Alves indicated that an inmate was not medically capable of being placed on the restricted diet, McGinnis accepted Alves's recommendation and did not inquire into the inmate's medical circumstances. McGinnis Dep. 159. If an inmate whom Alves had approved to receive the diet subsequently developed a medical problem, Alves could recommend that the diet be stopped. Whenever that occurred, McGinnis would accept Alves's' recommendation and stop the diet. Otherwise McGinnis and Alves had no discussions regarding the restricted diet. Morse, in his occasional role as Acting Superintendent in McGinnis's absence, would also authorize restricted diets, subject to Alves's medical approval.
Alves testified that hepatitis-C would not be a contraindication, unless they were in the "end stage" of that illness and suffering from cirrhosis of the liver.
All inmates at Southport, including those serving restricted diets, were seen daily by some member of Southport's medical staff. At the very least, a nurse visually observed each inmate daily. Inmates were also able to bring any specific medical concerns to the medical staff's attention by completing a sick call request slip. Additionally, it was a policy at Southport to record the blood pressure and weight of each inmate who was beginning a restricted diet, and to keep a daily restricted diet log, which recorded any health complaints by the inmate.
Inmates at Southport were shackled or handcuffed in some fashion whenever they were allowed out of their cells. Corrections staff at Southport could also, for specific security reasons such as assaultive conduct or other misbehavior, request that an inmate be placed under a restraint order, meaning that the inmate would be handcuffed behind his back, palms facing outward, with his handcuffs secured to a waist chain, whenever he left his cell, including during his one hour of exercise. See, Morse Dep. 120. Corrections sergeants had to submit requests for restraint orders to Morse for his approval. Restraint orders were issued for one week at a time, and corrections sergeants could, and often did, request that Morse renew the orders for additional weeks. Additionally, as discussed above, after February 1997, in response to an increase in assaults against staff, all Level 1 inmates were placed in full restraints whenever they were outside of their cells, including their exercise period.
Inmates subject to restraint orders were required, before leaving their cells, to place their hands behind them through an opening in the cell door known as a "feedup slot" or "feedup hatch," and corrections officers would fasten the handcuffs. In this manner, corrections staff were able to handcuff inmates while they were still inside of their cells. Once the handcuffs were applied, corrections officers would open the cell door, apply leg irons, and fasten the handcuffs to a chain around the inmate's waist. McGinnis and Morse contend that such handcuffing behind the back, as opposed to handcuffing in front, was intended to reduce the possibility of assaults by inmates upon corrections staff, and in that regard the record indicates that on at least one occasion at Southport an inmate, who had been handcuffed with his hands in front of his body, was nonetheless able to use his hands to strike a corrections officer in the face. McGinnis and Morse also indicate that it was necessary to keep the restraints applied even during exercise periods, since inmates would periodically refuse to allow themselves to be re-shackled once it was time for them to be returned to their cells, creating security and logistics problems.
This procedure was followed in Southport's D Block, where plaintiff was housed.
Inmates who were not subject to restraint orders and non-Level 1 inmates were not required to be shackled in this manner during their exercise periods.
If McGinnis or Morse learned that an inmate was complaining of pain as a result of being handcuffed behind the back, they would notify Alves. McGinnis Dep. 312. If Alves determined that it was medically necessary for the inmate not to be handcuffed behind his back, he would send a "front-cuffing order" to Morse, who would invariably defer to Alves's medical judgment and sign the order. Morse would then return the order to medical staff, who would send a copy of the front cuffing order to the appropriate corrections sergeant, who would retain the order in his office. Morse Dep. 266-67. Front-cuffing orders would remain in place until Alves indicated that they were no longer necessary. See, Morse Dep. 196.
Prior to being sent to Southport, and while at Southport, plaintiff accumulated a lengthy SHU sentence as a result of 44 violations of facility rules. In fact, as of June 26, 1995, plaintiff had been sentenced to more SHU time as a result of these violations than remained on his overall prison sentence. In other words, while plaintiff could have received additional SHU time as a result of additional disciplinary infractions, he would never have served the additional time in SHU, since his overall term of incarceration would have already ended.
Plaintiff's convictions included "messhall violence" (1 occurrence), "unhygienic act" (7 occurrences), "weapon" (10 occurrences), "harassment" (8 occurrences), "creat[ing] disturbance" (5 occurrences), "violent conduct" (4 occurrences), "threats" (16 occurrences), "fighting" (3 occurrences), "assault on staff" (8 occurrences), and "assault on inmate" (1 occurrrence).
Nonetheless, after June 26, 1995, plaintiff was convicted of additional infractions on 33 occasions. For example, plaintiff was convicted of "unhygienic act" (8 occurrences), "harassment" (11 occurrences), "interference" (17 occurrences), "creat[ing] disturbance" (4 occurrences), "violent conduct" (6 occurrences), "threats" (20 occurrences), and "assault on inmate (1 occurrence). Since at that point plaintiff essentially had nothing left to take away, beginning in June 1995 hearing officers at Southport began recommending that sentences of restricted diet be imposed on plaintiff as a penalty. Between June 26, 1995 and July 1, 1998, hearing officers recommended that plaintiff to serve a total of 244 days of restricted diet. On June 26, 1996, McGinnis offered to rescind the second half of that sentence if plaintiff served the first half and demonstrated continued positive behavior. Subsequently, however, plaintiff received additional misbehavior reports and McGinnis did not rescind any part of the sentence.
Between June 1995 and July 1998, plaintiff actually served 161 days of restricted diet sentence. As noted above, those 161 days were served in seven-day increments, usually with at least seven days of regular prison meals in between. Before ordering that plaintiff begin serving those periods of restricted diet, McClellan, and later McGinnis, first obtained from Alves a statement indicating that the diet was not medically contraindicated.
On or about July 1, 1998, plaintiff was transferred to another facility, where, according to DOCS rules, he was not required to serve the remaining restricted diet sentence.
However when Alves first began evaluating plaintiff in connection with the restricted diets in 1995, he often decided that the diets should not be imposed because he "felt sorry" for plaintiff. Subsequently, Alves believes that he spoke with McClellan, who was still Superintendent at that time, "concerning what to do with the guy (plaintiff)." Although Alves does not recall actually speaking with McClellan, he indicates that he subsequently began basing his decisions solely on plaintiff's medical condition: "I took a narrow view of what my responsibilities were in terms of evaluating whether there were any medical contraindications to him being placed on the restricted diet." Alves Dep. 269. As to that, Alves indicates that while he personally found the restricted diet procedures "punitive and distasteful," he understood that his only function was to determine whether or not there was any medical reason why a particular inmate could not be placed on the diet. Alves. Dep. 160, 164, 167.
Alves's notes refer to a discussion with McClellan, but at his deposition Alves did not recall the actual conversation.
As for plaintiff's medical condition, it is undisputed that he had a history of seizure disorder, for which he took prescription medication daily. Additionally, he suffered from asthma and gastritis, for which he also took prescribed medications as necessary. Alves found that these conditions by themselves did not prevent plaintiff from receiving the restricted diet, however plaintiff alleges that they should have made him medically ineligible to receive the punishment. More significantly for purposes of this case, plaintiff contends that he simply could not eat the restricted diet. In that regard, plaintiff indicates that when he first began receiving the restricted diet between 1991 and 1994, before the relevant period at issue in this case, he was able to eat enough of it to avoid being hungry. However, he contends that from 1995 onward, he was physically unable to eat the diet without vomiting:
Alves contends that while plaintiff had a history of seizure disorder, there was no objective evidence that plaintiff ever actually suffered a seizure while at Southport. Alves Dep. 200-02. Plaintiff how ever contends that he suffered many unwitnessed seizures while at Southport.
I . . . tried to eat the loaf when it was imposed on me intermittently at other prisons before I returned to Southport in 1994. I found it inedible at that time, but would force down as much as I could so as to not go hungry. Then I tried to eat it again when it was imposed on me at Southport in June of 1995. Sometimes it made me gag and sometimes it made me throw up. . . . After a while, when served the restricted diet, I knew I would not be able to physically stomach the loaf, and stopped trying to eat it at all.
Pl. Aff. ¶¶ 36-37, 41. As a result, when plaintiff was placed on a restricted diet, he generally did not eat for the entire seven-day period:
Although plaintiff received regular meals when he was not on the restricted diet, he sometimes refused to eat those as well.
The suffering that I endured while on the loaf was enormous. The loaf felt like torture to me. While on the loaf, my body hurt; my body ached for food. I had severe stomach pain, head pain, and body pain. Often while on the loaf, I was unable to think or focus clearly. I often felt hopelessness, anguish, sometimes I was suicidal. Pl. Aff. ¶¶ 43-45. Plaintiff, who was 5' 5" tall and weighed 133 pounds normally, lost an average of ten pounds per diet period. Plaintiff's lowest recorded weight while on a restricted diet was 114 pounds. Plaintiff generally gained some of the lost weight back when he began receiving regular prison meals. In addition to experiencing pain and weight loss, plaintiff contends that his inability to eat aggravated his other medical conditions, because he was unable to take his medications with food as required. Alves was aware that plaintiff "refused most or all of the restrictive diet meals served [to] him," and that plaintiff repeatedly lost weight while on the restricted diets. McGinnis was also aware that plaintiff often did not eat while on the restricted diet, and that he lost weight as a result, and he was also aware of plaintiff's complaints of epilepsy and stomach pain. McGinnis Dep. 243-44.
Plaintiff took the medication, but contends that taking them without food may have been harmful to his stomach.
Plaintiff took the medication, but contends that taking them without food may have been harmful to his stomach.
Alves opines that there was no medical reason why plaintiff could not eat the restricted diet. Alves Dep. 277-78 ("I thought [his complaints] were fictitious after . . . really extensive evaluation, medical evaluation [consisting of "[e]xtensive repeated laboratory testing, upper GI X-ray series, ultrasound of gall bladder, among other things"] I came to a point in time where I didn't believe his complaints in that regard."). Thus, despite plaintiff's repeated complaints that he could not eat the restricted diet, Alves continued to find that there was no medical contraindication to placing him on the restricted diet. However, on 31 occasions Alves recommended that plaintiff be taken off the diet because he was losing too much weight as a result of not eating. Alves indicates that he only stopped the diets when he believed that plaintiff's weight loss posed a threat to his health. As a general rule, Alves recommended that the diets be stopped if plaintiff lost ten percent of his body weight during a particular diet period: "In my view, it [10%] was a conservative number. The factual information is that in order for someone to starve themselves and die of actual starvation requires you to lose 35 percent of your body weight." Alves Dep. 181. For example, on September 5, 1996, Alves recommended that plaintiff be taken off the restricted diet because he weighed 120 pounds and appeared "cachectic" or wasted. McGinnis believed that plaintiff was capable of eating the restricted diet and that he merely wanted to "manipulate the system" by not eating. However, McGinnis indicates that he never expressed that opinion to Alves, and that he always suspended plaintiff's restricted diets when Alves recommended that he do so. McGinnis Dep. 202-03, 224-25, 236. McGinnis would then follow up with Alves at a later time to see if plaintiff had gained sufficient weight for the diet to be resumed. Id. at 159, 181-82, 237, 379.
The extent of plaintiff's weight loss was not always clear, however. Plaintiff would occasion ally refuse to allow himself to be weighed prior to a restricted diet, and on those occasions Alves would indicate that without plaintiff's weight, there was no basis for him to find that the diet was medically contraindicated, and the diet would proceed.
In his role as Acting Superintendent in McGinnis's absence, Morse actually placed plaintiff on a restricted diet only on one occasion, September 2, 1997. See, Morse Aff. [#133], ¶¶ 13-14. On four other occasions as Acting Superintendent, Morse reviewed plaintiff's disciplinary hearings and affirmed plaintiff's convictions as well as the recommended sentences of restricted diet. Furthermore as a tier disciplinary hearing officer, Morse himself twice recommended that plaintiff serve a restricted diet sentence. However, McGinnis ultimately decided whether or not those sentences were carried out, in consultation with Alves. Plaintiff alleges that he told Morse that he "could not eat the diet," but Morse, who has no medical training and no access to plaintiff's medical records, indicates that he would have referred any such complaint to Alves, and that he believed that Southport's medical staff properly handled such complaints. Morse also indicates that he never had any discussions with Alves or McGinnis regarding plaintiff's restricted diets. Morse Dep. 357.
In addition to being placed on restricted diets, plaintiff was the subject of numerous restraint orders, and was often a Level I inmate during the relevant period, and as a result he was frequently handcuffed behind his back. In this regard, plaintiff contends that because of an injury to his right shoulder in 1991, it was always painful for him to be handcuffed behind his back and that "at times the pain was severe." Pl. Aff. ¶ 88. Alves was aware of plaintiff's complaints of pain, and prescribed plaintiff various pain medications. Moreover, based upon a 1993 MRI which suggested that plaintiff had a torn rotator cuff, on or about June 21, 1995, Alves issued a "Front Cuff Order," indicating that for medical reasons, plaintiff was to be handcuffed in front only. In November 1995, plaintiff complained that he had re-injured his shoulder, and Alves had another MRI taken. According to Alves, that MRI was "normal" and ruled out a rotator cuff tear and impingement syndrome. Consequently, on or about December 8, 1995, Alves rescinded the front cuff order and informed corrections staff that plaintiff could again be handcuffed behind his back. On or about October 20, 1997, Alves had plaintiff examined again an outside specialist, who opined that plaintiff had a shoulder impingement and possible rotator cuff tear, and recommended that plaintiff only be handcuffed in front. Alves disagreed with the specialist's recommendation that plaintiff be handcuffed in front exclusively, but issued a front cuff order anyway indicating that plaintiff was to be handcuffed in front if he was going to be out of his cell for more than 30 minutes, such as during his one hour of daily exercise. Alves indicates that he issued this order at the request of plaintiff, who was complaining primarily about being handcuffed behind his back during his exercise period. Plaintiff, however, maintains that the 30-minute rule imposed by Alves did not help, because he still felt pain when handcuffed behind his back for even less than 30 minutes, and because he still had to assume a painful position with his arms behind his back in order to be handcuffed through the cell feedup slot, as described above. Pl Aff ¶ 116. Plaintiff contends that he continued to complain to Alves, but that Alves told him that his "hands were tied": "One time he [Alves] put in so many words that the medical profession doesn't deal with punishing patients, I mean, it's forbidden, but that his hands were virtually tied." Pl. Dep. 162.
According to plaintiff, "There are three levels of housing areas in the SHU section of Southport. When a prisoner acts better, and does not get misbehavior reports for at least 30 days he gets to be moved up one level and receive additional privileges. . . . If a prisoner receives a misbehavior report and is found guilty he usually is returned to level 1 and any previously earned privileges are then taken away." Pl. Aff. [#138] ¶ 9.
Plaintiff "assumes" that Alves and McGinnis discussed his shoulder injury and restraints. Pl. Dep. 85. However, McGinnis indicates that restraint orders were Morse's responsibility, and that he never discussed plaintiff's shoulder with Alves. McGinnis Dep. 331. Plaintiff alleges that he complained directly to Morse about being handcuffed behind his back. Pl. Aff. ¶ 122. However, Morse states that he would have referred any such complaint to Alves, since Alves was responsible for issuing front cuff orders. Morse Dep. 230, 453-56. Morse does not recall ever discussing plaintiff's handcuffing complaints with Alves. Morse Dep. 198-99. Plaintiff admits that Alves "may have made [the aforementioned] decisions [regarding handcuffing] without input or communication from either Defendant McGinnis or Defendant Morse." Pl. Resp. to Stmt. of Facts [#139], ¶ 28.
It is undisputed that it was McGinnis's practice to review some restraint orders, however there is no indication in the record that he ever actually reviewed any of plaintiff's restraint orders.
As a result of the foregoing alleged incidents, plaintiff filed various inmate grievances. On June 21, 1995, plaintiff filed Inmate Grievance No. 8999-95, complaining that he was being shackled behind his back, despite the fact that the previous week Alves had issued a front cuff order. On June 27, 1995, the Inmate Grievance Review Committee ("IGRC") recommended that the grievance be granted, and noted that the "front-cuff order" had been sent to Morse and was awaiting his approval. Morse subsequently approved the order. Since plaintiff agreed with the IGRC's response he did not appeal.
On April 3, 1996, plaintiff filed Inmate Grievance No. 10838-96, complaining that on April 1, 1996, Alves had "reinstated a restricted diet of cabbage and bread 3 times a day for a total of 108 days knowing full well that I currently take (10) different prescribed medications a day for multiple illness it is documented that I cannot hold the cruel restricted diet in may stomach thus I have to starve in addition my liver will be damaged in the long run or the medication will poison my blood." [sic] The IGRC denied the grievance and McGinnis affirmed the denial. Plaintiff eventually appealed to the Central Office Review Committee ("CORC"), which referred the matter to DOCS's Regional Medical Physician. Upon that physician's recommendation, CORC unanimously accepted the grievance in part and determined that "periodic tests should be scheduled to monitor the Grievant's condition while on the diet loaf."
As noted above, McGinnis became Superintendent at Southport as of April 1, 1996.
On June 14, 1996, plaintiff wrote a letter to McGinnis, asking him to reconsider imposition of the restricted diet. Plaintiff noted that during the previous 120 days, he had received no misbehavior reports. Plaintiff also listed as factors for McGinnis to consider plaintiff's "age, weight, and medication medical status," and that he had lost 12 pounds in seven days during the then most recent diet.
On November 25, 1996, wrote another letter to McGinnis, accusing McGinnis of physical and psychological abuse. The letter states: "You've taken my freedom, my food, showers, exercise, visits, etc."
On December 12, 1996, plaintiff filed Inmate Grievance No. 11843-96, complaining that the restricted diet was interfering with his ability to take his epilepsy medication: "The reason I up chuck my medication is due to chronic gastritis problems and no food. I have a problem even holding regular food down and I can't hold down just a diet of cabbage and bread only yet the Administration and Doctor have made me on [sic] a merry go round of cabbage and bread for approx (17) months." The IGRC denied the grievance and McGinnis affirmed the denial. Plaintiff eventually appealed to CORC, which, although it indicated that it was accepting the grievance in part, essentially affirmed the IGRC, noting that plaintiff was on the diet due to his behavior, that he was being monitored daily by medical staff, and that "[a]s such, if there were evidence of medical complications, appropriate action would be taken."
On May 21, 1997, plaintiff wrote to McGinnis, accusing McGinnis of violating the Americans with Disabilities Act and the Rehabilitation Act, and requesting that a medical doctor conduct plaintiff's disciplinary hearings.
On July 6, 1997, plaintiff filed Inmate Grievance No. 12744-97, again complaining about the restricted diet. Plaintiff alleged therein that Alves was granting medical approval for plaintiff to receive the restricted diet, despite knowing that the diet was interfering with plaintiff's ability to take his medication and was causing plaintiff to lose weight. On July 8, 1997, the IGRC denied the grievance, noting that a facility nurse had advised the IGRC that there was no medical reason that plaintiff could not remain on the diet, and further noting that the IGRC had "no power to overturn any medical decision." McGinnis affirmed the denial, and plaintiff appealed to CORC, which also affirmed the denial of the grievance, observing that plaintiff was being monitored by medical staff while on the restricted diet, and that "if there were evidence of medical complications, appropriate action would be taken."
On July 28, 1997, plaintiff filed Inmate Grievance No. 12840-97, complaining about the restricted diet and accusing McGinnis and Alves of "ministerial neglect of duties, deliberate indifference and medical malpractice and experimental corporal punishment." The IGRC denied the grievance and McGinnis again affirmed the denial. Plaintiff eventually appealed to CORC, which denied the appeal on September 10, 1997, for the same reasons given above.
On June 2, 1998, plaintiff wrote to McGinnis, complaining that McGinnis had indicated that plaintiff still owed 162 days of restricted diet, when plaintiff actually owed only 155 days. Plaintiff also complained that McGinnis had falsely indicated on two occasions that he was going to stop the restricted diets.
On June 13, 1998, plaintiff filed Grievance No. 14439-98, again complaining that the restricted diet was causing "various illness, pain, suffering, blood up chucking, extreme loss of weight." On June 8, 1998, the IGRC responded, stating that "Medical Doctor states that there is no reason why grievant cannot be placed on a restricted diet, which was ordered by the Superintendent." On June 10, 1998, plaintiff appealed to McGinnis, who apparently affirmed the denial. It is unclear whether or not plaintiff subsequently appealed to CORC.
On November 27, 1997, plaintiff filed Inmate Grievance No. 13529-97, complaining that, on that day, he had been shackled behind his back while being escorted to a disciplinary hearing. Plaintiff indicated that he had a chronic shoulder injury, for which he was receiving medical treatment, and should not be shackled behind his back. Plaintiff noted that while at Southport, he had been the subject of sixty full-restraint orders, and that he was "suffer[ing] much chronic pain." On December 4, 1997, the IGRC dismissed the grievance, indicating that plaintiff had made "no effort to resolve the complaint through existing channels," and advised him to see his area sergeant. Plaintiff apparently requested a review of that dismissal, pursuant to 7 NYCRR § 701.7(a)(5)(iv), as on December 10, 1997, the Inmate Grievance Program Supervisor indicated that he had reviewed the dismissal and determined that dismissal was appropriate. See, Plaintiff's Rule 56 Statement [#139], Ex. 19. Plaintiff did nothing further regarding that grievance.
Plaintiff commenced the instant action on January 27, 1998. On August 5, 1999, defendants filed answers to plaintiff's amended complaint, which did not include affirmative defenses based upon a failure to exhaust administrative remedies. Thereafter, the parties conducted extensive discovery. In September 2003 defendants filed the subject motions for summary judgment. Defendants contend that they are entitled to summary judgment because: 1) plaintiff failed to exhaust his administrative remedies before commencing this action as required by 42 U.S.C. § 1997e(a); 2) no constitutional violation occurred; and 3) even if a constitutional violation occurred, they are entitled to qualified immunity. In support of their contention that no constitutional violations occurred, defendants have submitted various medical evidence. For example, Louis Antignano, M.D., a specialist in gastroenterology, concludes, in relevant part, that Alves's "management of [plaintiff's] medical problems related to the imposition of a punitive supplemental diet by prison officials did not deviate from acceptable medical care." Antignano further indicated that plaintiff's weight losses while on the restricted diets were not "excessive nor to the point that his health was or would have been impaired." More specifically, Antignano indicated that if Alves stopped the restricted diets whenever plaintiff lost 10% of his body weight, "he stopped the diet well short of the point where there would be any detriment to Rodriguez." (Antignano Dep. 60). Howard Beemer, M.D., an orthopaedic surgeon, also opined that based upon plaintiff's medical records, he did not see "any indication" that rear handcuffing "caused [plaintiff] either undue pain or any additional injury." As for the defense of qualified immunity, defendants contend that, even assuming any constitutional violation occurred, they could not reasonably have known that they were violating plaintiff's rights, since they were acting pursuant to state law and DOCS guidelines. McGinnis and Morse also contend that they cannot be held liable for any constitutional violation which may have occurred, since they relied on Alves's medical judgment.
Plaintiff requested and was granted until March 15, 2004 to respond to the motions. In opposition, plaintiff contends that defendants' motions must be denied because: 1) defendants waived the affirmative defense of failure to exhaust administrative remedies by failing to plead it in their answers, and in any event he exhausted his administrative remedies; 2) defendants were deliberately indifferent to his serious medical needs; and 3) defendants are not entitled to qualified immunity, because the 8th Amendment deliberate indifference standard was well established at the time of the alleged violations. In support of his opposition, plaintiff has also submitted various medical evidence. For example, Eric Lessinger, M.D., opines that the restricted diets posed a substantial risk of serious harm to plaintiff because they could have caused bleeding ulcers and seizures. Lessinger further concludes that handcuffing plaintiff behind the back posed a substantial risk of harm to plaintiff's health because it "prevented healing, prolonged a painful condition unnecessarily, and may have resulted in permanent injury to the shoulder." Stuart Grassian, M.D., opines that because of plaintiff's upbringing, Attention Deficit Disorder, and Seizure Disorder, plaintiff was particularly susceptible to mental deterioration while in SHU, and that the restricted diet and restraint orders caused plaintiff to deteriorate mentally and actually caused his behavior to become worse. Plaintiff's nutritional expert, Wendy Wolfe, Ph.D., indicates that the restricted diets caused plaintiff to undergo what she terms "weight cycling," or the repeated gain and loss of weight. Wolfe states that weight cycling poses a serious threat to one's health, by increasing the risk of cardio-vascular problems, and of death from all causes, except cancer. See, Wolfe Report; Wolfe Dep. at 140, 151, 158-62, 171, 189, 195.
Plaintiff includes in his papers assertions that after leaving Southport, he was diagnosed with H. Pylori and Hepatitis C, and essentially argues as part of his 8th Amendment claim that Alves should have diagnosed these conditions. However, the Amended Complaint contains no such claims, and they are not part of this action. Moreover, at most, Lessinger's expert report indicates that Alves was negligent in failing to diagnose Hepatitis C. Even assuming that Alves failed to diagnose these conditions there is no evidence that he did so with deliberate indifference, nor is there any evidence that he knew about or was deliberately indifferent to these conditions when he made decisions about placing plaintiff on the restricted diet.
One of defendants' experts, Cassandra Newkirk, M.D., disagrees with Grassian, and opines that plaintiff was rational during the relevant period: "He was upset and angry about his situation but did not in any way communicate in a manner that was delusional, psychotic or irrational."
McGinnis's and Morse's nutritional expert opined that plaintiff had not lost enough weight over a long enough period to increase his risk of death from weight cycling. Nonetheless, she indicated that weight cycling can lead to "biliary sludge and gallstones" and that "a steadier weight loss would have theoretically been safer" for plaintiff. Expert Report of Lyn Howard.
Wolfe also opines that even if plaintiff had eaten the restricted diet, it would not have allowed him to receive adequate nutrition. For example, she contends that the restricted diet lacks required nutrients and is unpalatable. However, the Amended Complaint does not allege that the diet itself is nutritionally inadequate. Moreover, there is no evidence in the record that any of the defendants knew or suspected that the diet was nutritionally inadequate, thus there is no evidence of deliberate indifference on that point. See, Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002) ("By alleging that prison officials knew that the diet was inadequate and likely to inflict pain and suffering, [the plaintiff] has . . . sufficiently pleaded the subjective element.") (emphasis added). At most, plaintiff contends that defendants should have suspected something merely because "three or four" inmates, over a period of many years, said that they "could not eat the diet." Pl. Memo [#143], p. 27.
On April 22, 2004, counsel for the parties appeared before the undersigned for oral argument of the motions. The Court has thoroughly considered the parties' submissions and the arguments of counsel.
Following oral argument, defendants' counsel requested permission to file supplemental briefs on the issue of weight cycling, a matter which plaintiff raised in his opposition papers but to which defendants did not reply. Defendants' request is denied. Further, while McGinnis and Morse contend in their post-argument letter that the only evidence of weight cycling in this case is the "unsworn report of a nutritionist," referring to Wolfe, as noted above Wolf also testified at her deposition concerning weight cycling. See, Wolfe Dep. at 140, 151, 158-62, 171, 189, 195.
ANALYSIS
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Exhaustion of Administrative Remedies
The Court will first consider defendants' contention that plaintiff failed to exhaust his administrative remedies. 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." In Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002), the U.S. Supreme Court explained the purpose of the exhaustion requirement:
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, internal review might filter out some frivolous claims. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy.Id., 122 S.Ct. at 988 (citations and internal quotations omitted). As a general matter,
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination.Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). However, it is presently unclear in this Circuit whether or not an inmate may also exhaust his administrative remedies in other ways. See, Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003) ("We recognize that it is unclear in this Circuit whether attempts to lodge informal grievances can satisfy the exhaustion requirement. However, this Court recently ordered appointment of counsel in five pending appeals to brief the question of whether New York State inmates who do not fully comply with the state's formal grievance procedure may nevertheless exhaust their claims in other ways.").
42 U.S.C. § 1997e(a)'s exhaustion requirement is not jurisdictional, but is an affirmative defense. Ziemba v. Wezner, ___ F.3d ___, 2004 WL 870476 at *2 (2d Cir. Apr. 23, 2004). This affirmative defense may be waived, see, Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002). Moreover, defendants may in some circumstances be estopped from raising the affirmative defense. Ziemba v. Wezner, 2004 WL 870476 at *2; see also, Arnold v. Goetz, 245 F.Supp.2d 527, 537 (S.D.N.Y. 2003) (Holding as a "general principle that an inmate's technical failure to exhaust administrative remedies before commencing a § 1983 action may be excused where officials prevented him from utilizing a grievance procedure.") (citations omitted). As the Court noted in Arnold v. Goetz, "prison officials cannot have it both ways — they cannot obstruct an inmate's pursuit of administrative exhaustion on the one hand and then claim the inmate did not properly exhaust these remedies on the other." Id.
Rule 8(c) of the Federal Rules of Civil Procedure states that a party "shall set forth" affirmative defenses in a responsive pleading. The "[f]ailure to plead an affirmative defense in the answer results in the waiver of that defense and its exclusion from the case." U.S. For and on Behalf of Maritime Admin. v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 889 F.2d 1248, 1253 (2d Cir. 1989) (citations and internal quotations omitted). In the instant case, defendants did not assert the affirmative defense of failure to exhaust administrative remedies in their answers. Nonetheless, the Court has the discretion to treat defendants' motion for summary judgment as a motion to amend their answer, to include the affirmative defense. Block v. First Blood Assocs., 988 F.2d 344, 350-51 (2d Cir. 1993); Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 283 (2d Cir. 2000), cert. denied, 531 U.S. 1035 (2000). In that regard, motions to amend pleadings are governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides that leave to amend "shall be freely given when justice so requires." Block v. First Blood Assocs., 988 F.2d at 350. In this Circuit, leave to amend will be granted unless the nonmovant can demonstrate prejudice or bad faith. Id. Such prejudice may exist where amendment would "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Id. Here plaintiff does not allege bad faith, but he does claim that he would be prejudiced if defendants were permitted to amend their complaints, since discovery is now closed, and he would need to conduct additional discovery on the issue of exhaustion. More specifically, he indicates that he would want to conduct discovery into why his second grievance concerning the use of restraints was dismissed.
Applying the foregoing principles of law to the facts of this case, the Court finds that defendants' motion to amend should be denied, and the affirmative defense deemed waived, because allowing defendants to amend their answers at this late stage of the proceedings would require plaintiff to conduct additional discovery and would further unreasonably delay the resolution of a case that has already been pending more than six years. According to the original scheduling order in this case, discovery was to have been completed by December 31, 1999. Subsequently, the discovery deadline was extended seven times, with the final deadline in October 2002. The Court also notes that although Porter v. Nussle was decided in February 2002, defendants did not seek leave to amend their answers until September 2003. Accordingly, defendants' motion to amend is denied, and the affirmative defense is waived.
Moreover, even if the Court allowed defendants to amend their answers, it would nonetheless deny the motion for summary judgment to the extent that it is based on the affirmative defense of failure to exhaust administrative remedies. First, as to plaintiff's restricted diet claim, it is clear that plaintiff exhausted his administrative remedies by filing inmate grievances and appealing all the way to CORC on several occasions. Defendants contend that even if plaintiff did exhaust his administrative remedies, any violations that occurred prior to April 3, 1996, the date he filed the first of his restricted diet grievances, are barred. However, defendants cite no relevant authority in support of that argument nor do they offer any persuasive arguments in favor of such a rule.
Obviously most incidents over which an inmate later sues occur prior to the date the inmate files a grievance. McGinnis and Morse noted in their brief that pursuant to 7 N.Y.C.R.R. § 701.7(a)(1), an inmate must file a grievance within fourteen days of the event complained of. To the extent that defendants suggest that a plaintiff is barred from exhausting administrative remedies once the deadline for filing an inmate grievance has passed, the Court notes that here, plaintiff's April 3, 1996, grievance complained that Alves had subjected him to 108 days of restricted diet. However, although the grievance thus concerned matters that had occurred months previously, DOCS officials did not reject the grievance as time-barred, but considered the grievance on the merits.
As for plaintiff's handcuffing claim, it is clear that plaintiff did not need to appeal the first handcuffing grievance that he filed, since the grievance committee ruled in his favor. As for the second handcuffing grievance, defendants prevented plaintiff from appealing to either the superintendent or to CORC by dismissing the grievance. Subsequently, it appears that plaintiff did the only thing that he could do, which was request reconsideration of the dismissal pursuant to 7 NYCRR § 701.7(a)(5)(iv). Thus it appears that plaintiff exhausted his administrative remedies concerning that grievance, or if he did not, that defendants may have prevented him from doing so by indicating that it was a matter that could not be grieved. In any event, defendants' motion on this ground is denied.
8th Amendment "Deliberate Indifference" Claims
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, under which a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). To be liable for money damages under 42 U.S.C. § 1983, a defendant must have been personally involved in the alleged constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Personal involvement by a supervisory official may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Id. (citations omitted). A plaintiff may not rely upon the doctrine of respondeat superior to establish supervisory liability under 42 U.S.C. § 1983. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-95 (1978).
The standard to be applied in a case involving an alleged Eighth Amendment violation is well settled:
[T]he Eighth Amendment . . . applies to the States through the Fourteenth Amendment, and enjoins them from inflicting "cruel and unusual punishments." U.S. Const. amend. VIII. Forbidden punishments include those that involve the unnecessary and wanton infliction of pain. The infliction of pain is unnecessary and wanton, for instance, when it is totally without penological justification. The conditions of a prisoner's confinement can give rise to an Eighth Amendment violation. In such cases, a prisoner may prevail only where he proves both an objective element — that the prison officials' transgression was sufficiently serious — and a subjective element — that the officials acted, or omitted to act, with a sufficiently culpable state of mind, i.e., with deliberate indifference to inmate health or safety.
Regarding the "objective" requirement, the Supreme Court has explained that while the Constitution does not mandate comfortable prisons, prisoners may not be denied the minimal civilized measure of life's necessities. Under the Eighth Amendment, States must not deprive prisoners of their basic human needs- e.g., food, clothing, shelter, medical care, and reasonable safety. Nor may prison officials expose prisoners to conditions that pose an unreasonable risk of serious damage to their future health. Ultimately, to establish the objective element of an Eighth Amendment claim, a prisoner must prove that the conditions of his confinement violate contemporary standards of decency.
Concerning the "subjective" requirement, the Supreme Court has explained that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless 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. This "deliberate indifference" element is equivalent to the familiar standard of "recklessness" as used in criminal law. Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002) (citations and 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. In this regard, a serious medical condition is "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation omitted). Factors to be considered include "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Id. (citations omitted).
Where, as here, a deliberate indifference claim involves "competing institutional concerns," namely prison security and discipline, courts must apply the deliberate indifference standard "in a way that accounts for the precise circumstances of the alleged misconduct and the competing institutional concerns." Trammell v. Keane, 338 F.3d 155, 162-63 (2d Cir. 2003). Such cases "occasion no exception to the rule that prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Id. at 163 ( citing Bell v. Wolfish, 441 U.S. 520, 547 (1979)) (internal quotation marks omitted). In Trammell, a case involving an inmate who was subjected to a deprivation order as a result of misbehavior, the Circuit Court stated:
Consequently, we ask not simply whether the [deprivation order] was imposed with "deliberate indifference" to Trammell's health and safety, for it is undisputable that the Order was intended to make Trammell uncomfortable in an effort to alter his behavior. Rather, we consider whether the Order was reasonably calculated to restore prison discipline and security and, in that purposive context, whether the officials were deliberately indifferent to Trammell's health and safety.Trammell v. Keane, 338 F.3d at 163.
Mere negligence does not rise to the level of a constitutional violation. In Gill v. Mooney, 824 F.2d 192 (2d Cir. 1987), the inmate plaintiff sued a corrections officer under Section 1983, alleging that the corrections officer caused the plaintiff to be injured when he made the plaintiff paint while on a ladder, after the plaintiff complained that paint fumes made him "dizzy and nauseous." Id. at 195. The Circuit Court held that "[i]n the absence of any medical proscriptions known to [the defendant], his decision to ignore [the inmate's] complaints amounted to nothing more than a mere negligent act, which is not a violation of either the Fourteenth Amendment or the Eighth Amendment." Id. (citations omitted); see also, Singh v. Fuller, No. 93 Civ. 5937 (CSH), 1999 WL 777872 at *3 (S.D.N.Y. Sep. 30, 1999) ("While an officer is more than merely negligent when he deliberately defies the express instructions of a prisoner's doctor, a claim which amounts to no more than an officer's inadvertent failure to provide a medically necessary diet does not state a claim for deliberate indifference." ( citing Gill v. Mooney, other citation and internal quotation marks omitted).
Even where a constitutional violation has occurred, a defendant may be entitled to qualified immunity. The law concerning the defense of qualified immunity is well-settled:
Public officials sued in their individual capacity are entitled to qualified immunity from suit unless "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). And "even assuming a state official violates a plaintiff's constitutional rights, the official is protected nonetheless if he objectively and reasonably believed that he was acting lawfully." Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004). In order to prevent the margin of immunity from overshadowing our interests in recovery, however, the right in question must not be restricted to the factual circumstances under which it has been established. Thus, the Supreme Court has declined to say that "an official action is protected by qualified immunity unless the very action in question has previously been held unlawful," and has, instead, chosen a standard that excludes such immunity if "in the light of pre-existing law the unlawfulness [is] apparent." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). As a result, in assessing a qualified immunity claim, we consider in particular: (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 preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.Back v. Hastings on Hudson Union Free School Dist., ___ F.3d ___, 2004 WL 739846 at *14 (2d Cir. Apr. 7, 2004).
a. Defendant Alves
The Court finds that there are triable issues of fact as to whether or not Alves was deliberately indifferent to plaintiff's health and safety. In this regard, the Court finds that there are issues of fact as to whether or not plaintiff had serious medical conditions that made the use of the restricted diet and rear handcuffing inappropriate, and if so, whether or not Alves was deliberately indifferent to them by failing to direct that the use of diets and rear handcuffs be stopped. There are also issues of fact as to whether or not Alves would be entitled to qualified immunity. On this point, Alves contends that his actions were reasonable, since both restricted diets and rear handcuffing were generally permitted by New York State law and DOCS regulations. However, the issue here is whether or not Alves's actions were reasonable in light of plaintiff's particular medical conditions. At the time of the alleged incidents it was well established that deliberately denying an inmate adequate food and deliberately failing to address serious medical concerns could violate the inmate's constitutional rights. See, e.g., Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (Holding that "under certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension."); Estelle v. Gamble, 429 U.S. 97 (1976) (Holding that "deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment."). Accordingly, Alves's' motion for summary judgment is denied.
b. Defendants McGinnis and Morse
McGinnis and Morse contend that they are entitled to summary judgment because: 1) plaintiff was routinely seen by Southport's medical staff; 2) they believed that plaintiff's complaints were being addressed by the medical staff and they deferred to the medical staff's judgment; 3) neither had the requisite state of mind, but instead were pursuing valid penological objectives. McGinnis and Morse each contend that they reasonably relied upon Alves's medical judgment, and therefore did not have had the requisite state of mind to violate plaintiff's rights, or to know that they were violating his rights.
To the extent that defendants contend that they necessarily must be found to have lacked the necessary intent or to have acted reasonably because restricted diets and rear handcuffing were permitted by law, the Court disagrees, since that argument fails to take into account plaintiff's peculiar medical condition.
At the outset the Court notes that there is an issue of fact as to whether or not, as applied to plaintiff, the use of the restricted diet and behind-the-back handcuffing were reasonably calculated to restore prison discipline and security. In that regard, although plaintiff had a long history of violating prison rules, including assaultive behavior, plaintiff has submitted expert testimony indicating that the use of rear handcuffing was not based upon any valid penological objective and that the restricted diet actually caused plaintiff's condition to worsen.
With regard to whether or not McGinnis or Morse was personally involved in the alleged constitutional violations or had the requisite intent, it appears to be well accepted in this Circuit that in general supervisory prison officials may not be found liable for constitutional violations involving medical care where they reasonably relied on the opinions of prison medical staff. See, Graham v. Wright, No. 01 Civ. 9613 NRB, 2003 WL 22126764 at *1 (S.D.N.Y. Sep. 12, 2003) ("It is well established that supervisory officials are "generally entitled to delegate medical responsibility to facility medical staffs and are entitled to rely on the opinion of medical staff concerning the proper course of treatment." ( Citing Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 183 (N.D.N.Y. 1996)); Woods v. Goord, No. 01 Civ. 3255 (SAS), 2002 WL 731691 at *9 (S.D.N.Y. Apr. 23, 2002) (Holding that prison "[s]upervisors are entitled to rely on and adopt the recommendations of prison doctors without incurring a charge of personal involvement.") (citation omitted); Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 183 (N.D.N.Y. 1996) ("[S]upervisory officials are also generally entitled to delegate medical responsibility to facility medical staffs and are entitled to rely on the opinion of medical staff concerning the proper course of treatment.") (citations omitted).
However, there are circumstances when it would not necessarily be reasonable for non-medical supervisory officials to rely on the opinions of medical staff. For example, in Brown v. Coughlin, 758 F.Supp. 876 (S.D.N.Y. 1991), the district court rejected supervisory prison officials' claim that they relied on the judgment of facility medical staff. In that case, the inmate-plaintiff was suing, among others, the superintendent of Downstate Correctional Facility ("Downstate"), claiming that he had been deliberately indifferent to the plaintiff's serious medical needs by failing to provide appropriate medical care for an infection which eventually caused plaintiff to have his leg amputated. Significantly, the court in Brown v. Coughlin found that there had been "elemental and systematic" deficiencies in the overall medical care at Downstate, such that the superintendent "could be charged with knowledge of the unconstitutional conditions pervading at Downstate in accordance with a low standard of health care delivery at the facility." Id. at 889. On that basis, the court found that it would not have been reasonable for supervisory officials at Downstate to have relied on the judgments of the medical staff. Id.; cf Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003) (Affirming summary judgment for facility superintendent on 8th Amendment medical claim, noting that superintendent had no medical training and no reason to doubt that medical staff were adequately addressing the plaintiff's needs). An analogous situation arose in Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003), where supervisory prison officials were accused of violating an inmate's right to free exercise of religion after they refused to allow him to participate in a particular event that the he viewed as having religious significance, due to the fact that he was confined in SHU. In analyzing the defendants' claim of qualified immunity, the Second Circuit held that the defendants' could not establish that their actions were reasonable merely because they had relied on the opinions of DOCS' religious authorities. The Second Circuit wrote that
[d]espite the fact that all the religious authorities testified to their belief that the [holiday] was without religious significance, the proper inquiry [under established case precedent] was always whether [the inmate's] belief was sincerely held and in his own scheme of things, religious. We do not suggest that religious authorities can never be employed in assisting prison officials in making that determination, but the religious authorities' opinions that a particular practice is not religiously mandated . . . without more, cannot render defendants' conduct reasonable.Id. at 597-98 (citations omitted). The Circuit Court in Ford thus essentially held that it was unreasonable for the supervisory officials to have relied on the opinions of DOCS's religious experts, since, pursuant to well settled legal principles, the only relevant inquiry was whether or not the inmate himself sincerely believed that the holiday was "religious." These cases suggest that prison supervisory officials may not insulated themselves from liability by relying on experts, medical or otherwise, where there is evidence that the supervisory officials either knew or should have known that constitutional violations were occurring.
In consideration of these principles, the Court notes, first, that neither McGinnis nor Morse had any medical training or any access to plaintiff's medical records. With regard to plaintiff's shoulder injury, the only evidence in the record concerning McGinnis's knowledge is his testimony at his deposition: "I don't think I knew anything [about plaintiff's shoulder condition] other than he had or claimed to have had a shoulder condition." McGinnis Dep. 330. Notably, plaintiff in his affidavit does not claim that he ever complained to McGinnis regarding his shoulder pain or rear handcuffing, but instead states only that he complained to Alves and Morse. Pl. Aff. [#138] ¶ 117. Moreover, although plaintiff filed two grievances concerning rear handcuffing, neither was appealed to McGinnis, therefore McGinnis would not have learned of plaintiff's complaints through those grievances. Accordingly, the Court finds that plaintiff has not raised a triable issue of fact as to whether McGinnis was deliberately indifferent to plaintiff's shoulder injury as it pertained to handcuffing. Additionally, as to qualified immunity, McGinnis would have been entitled to rely upon Alves's medical expertise that such handcuffing was medically appropriate.
As for Morse's knowledge of plaintiff's shoulder condition, the record indicates only that plaintiff told Morse that he had "pain" as a result of being handcuffed behind his back. Pl. Aff. [#138] ¶ 117. Furthermore, Morse indicated that he would have referred any such complaint of pain to Alves, and that he would have followed Alves's recommendations regarding the necessity of front cuffing. There is nothing in the record to indicate that Morse had any reason to doubt that Alves was properly handling inmates' medical complaints. Accordingly the Court finds that plaintiff has failed to demonstrate a triable issue of fact as to whether or not Morse was deliberately indifferent to plaintiff's shoulder condition. Nor with regard to the issue of qualified immunity is there any evidence that Morse should have reasonably known that he was violating plaintiff's constitutional rights.
Morse apparently did sign a corrections sergeant's request for a rear-handcuffing restraint order on one occasion after Alves had issued a front-handcuffing order, however, he indicated that he did so inadvertently because he forgot about the front-cuffing order. Morse Dep. 200-02, 424-25. As to that, Morse was responsible for supervising 788 inmates, and the front-cuffing orders were kept in the office of the sergeant requesting the restraint order, not Morse's office. The Court finds that these facts do not raise a triable issue of fact as to deliberate indifference.
The Court also finds that plaintiff has failed to raise a triable issue of fact concerning Morse's liability for the restricted diet claim. Plaintiff contends that Morse knew that "[p]laintiff did not eat the loaf," and that he knew that every time the diet was imposed "it was probable that plaintiff would not eat for seven days." Bogin Aff. [#140] ¶ 35. However, plaintiff does not cite any evidence in the record to support that conclusory statement, nor has the Court found any. At most, the record indicates that plaintiff told Morse that he "could not eat the loaf." Pl. Dep. 64. The Court finds that it would not be reasonable to infer from that statement that Morse knew that each time plaintiff was placed on a restricted diet, he went seven days without eating, thereby losing considerable weight and possibly interfering with plaintiff's seizure disorder, asthma, or gastritis. As to that, there is no indication that Morse even knew that plaintiff had those medical conditions, or knew that plaintiff was losing weight each time he was placed on the diet. Morse further indicates that he would have referred any of plaintiff's complaints regarding the restricted diet to Alves, and again there is no evidence that Morse had reason to doubt that Alves would properly address those complaints. There is thus no evidence that Morse was deliberately indifferent to plaintiff's medical condition with respect to the restricted diet, nor, with respect to the qualified immunity issue, is there any evidence that it was unreasonable for him to have relied on Alves's medical expertise.
Plaintiff also contends that Morse denied him "the basic human necessity of food by providing or approving a diet that was unpalatable and monotonous." Bogin Aff. [#140] ¶ 79. However, as noted above, there is no evidence that Morse knew that the restricted diet in and of itself was in any way nutritionally deficient or likely to cause injury.
On the other hand, the Court finds that plaintiff has demonstrated triable issues of fact as to McGinnis's liability for the restricted diet claims. Unlike Morse, McGinnis received various letters from plaintiff detailing his inability to eat the restricted diet. Moreover, McGinnis reviewed and affirmed the denials of several of plaintiff's inmate grievances concerning the restricted diet. In those grievances plaintiff alleged, for example, that: 1) Alves was providing improper medical care and acting with "deliberate indifference"; 2) plaintiff could not eat the restricted diet and was "starving"; 3) plaintiff had lost approximately 20 pounds while on the restricted diets; 4) plaintiff was vomiting blood while on the restricted diet; 5) plaintiff was receiving numerous medications for "multiple illness[es]" including "epilepsy," "asthma," and "chronic gastritis"; and 6) plaintiff's inability to eat the restricted diet was interfering with his ability to take his medications. See, e.g., Bogin Aff. [#140], Ex. 20; Pl. Stmt. of Facts [#139] Ex. 21-23, 34. McGinnis also suspended the restricted diet on 31 occasions because of plaintiff's weight loss, and routinely checked with Alves at a later time to see if plaintiff could resume the restricted diet. Under these circumstances, the Court finds that there is at least a triable issue of fact as to whether or not McGinnis was deliberately indifferent to plaintiff's serious medical needs. Regarding qualified immunity, there are obviously also issues of fact as to whether or not McGinnis should have reasonably believed that he was not violating plaintiff's constitutional rights by imposing the restricted diets, which would need to be resolved before the Court could rule as a matter of law on this issue.
McGinnis cites Trammell v. Keane, 338 F.3d 155 (2d Cir. 2003), for the proposition that supervisory officials may not be liable for imposing a restricted diet that causes an inmate to suffer medical problems, as long as the inmate was regularly observed by medical staff. Def. Memo [#122], pp. 12-13. This Court however finds that Trammell is factually inapposite to the instant case. In Trammell, the inmate alleged that the defendants were deliberately indifferent by imposing a deprivation order, as well as a restricted diet that he claimed caused him abdominal pain and internal bleeding." Trammel v. Keane, 338 F.3d at 160. However, because of the complicated procedural history of the case, it is not clear that the restricted diet claim was even still a part of the case that was being considered by the Second Circuit. See, Id. at 157-64. Even assuming that it was, and that the court's references to the plaintiff's "health or safety" referred specifically to restricted diet issues, the court noted that the plaintiff had made only a few unspecified complaints to the facility medical staff, and it found no evidence in the record that the defendants had been deliberately indifferent. Id. at 164. Accordingly, this Court finds that Trammell is not controlling in the instant case.
CONCLUSION
McGinnis's and Morse's motion for summary judgment [#120] is granted in part and denied in part. The application is granted in its entirety as to Morse; as to McGinnis, the application is granted as to the handcuffing claim, but is denied as to the restricted diet claim. Alves's motion for summary judgment [#126] is denied in its entirety. Since it appears that this matter is now ready for trial, the Court will issue a separate Pre-Trial Order.
To the extent defendants were seeking summary judgment on plaintiff's ADA and Rehabilitation Act claims, the motion is denied as moot, since plaintiff has indicated that those claims have been withdrawn.
So Ordered.