THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: OMAR TRIPLETT
Plaintiff, pro se
01-A-2100
Marcy Correctional Facility
P.O. Box 3600
Marcy, New York 13403 HON. LETITIA JAMES
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: CHRISTOPHER J. HUMMEL, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION

I. INTRODUCTION

Plaintiff Omar Triplett, an inmate in custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this pro se civil rights action under 42 U.S.C. § 1983. (Dkt. No. 1.) The amended complaint, as modified, is the operative pleading. (Dkt. Nos. 65, 66.) Plaintiff's claims arise out of events that occurred during his confinement at the Central New York Psychiatric Center ("CNYPC") while in custody of DOCCS. (See generally Dkt. No. 66.) Defendants and claims remaining in the action following initial review under 28 U.S.C. §§ 1915(e) and 1915A by the Hon. Mae A. D'Agostino, United States District Judge, are: (1) Eighth Amendment excessive force claims against Security Hospital Treatment Assistants ("SHTA") Chad Asch, Mark Martin, and Teryle Williams; (2) Eighth Amendment excessive force and failure to protect claims against SHTA Supervisor Kenneth Paparella; and (3) Fourteenth Amendment due process claims against Dr. Harold Berkheimer, Dr. Luis Hernandez, and Executive Director Maureen Bosco. Id. (Dkt. Nos. 12, 65.)

Defendants now move for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 93.) Defendants seek dismissal of Plaintiff's Eighth Amendment claims against Paparella and Fourteenth Amendment due process claims against Berkheimer, Hernandez, and Bosco. Id. Plaintiff has filed responsive papers. (Dkt. No. 103.) Defendants' motion has been referred for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). For the reasons that follow, the Court recommends that Defendants' motion for partial summary judgment be granted in part and denied in part.

II. RELEVANT BACKGROUND

Plaintiff, who had diagnoses of Schizophrenia-paranoid type and antisocial personality disorder, was transferred to CNYPC in June 2014, where Berkheimer served as his treating psychiatrist. (Dkt. No. 93-3 at ¶¶ 1-2.) Shortly after arriving at CNYPC, Plaintiff was moved to Ward 601, which, according to Plaintiff had a "famous pattern" of abusing patients. (Dkt. No. 94 at 26-39; Dkt. 66 at ¶ 37.)

On the morning of June 19, 2014, at approximately 7:20 a.m., Plaintiff was involved in an altercation with staff, although the parties have differing accounts of what transpired. (Dkt. Nos. 66 at ¶¶ 19-24, 94 at 26-39, 94-1 at ¶¶ 8-16.) According to Plaintiff, a staff member informed Asch that Plaintiff was washing his clothes in the bathroom sink on the ward. (Dkt. No. 94 at 26, 30.) After washing his clothes, Plaintiff returned to his room without incident. Id. Thereafter, he was physically assaulted by Asch after Plaintiff refused to "give him falatio" on threat of Plaintiff having his "head smashed." (Dkt. No. 66 at ¶ 20.) Asch punched Plaintiff and while Plaintiff was trying to defend himself from Asch's attack, Martin and Williams, "came and started viciously and violently, beating and stumping [Plaintiff] down." Id. After being "viciously and savagely" beaten for approximately two minutes, Plaintiff was strapped to a bed for an hour or two and injected with psychotropic medication that "rendered [him] hopeless and useless" and unable to communicate. Id. at 24. Plaintiff was later sent to an outside hospital for treatment of his injuries, received stitches, and was returned to CNYPC. Id. at ¶ 25.

According to Defendants, however, Berkheimer observed Plaintiff become enraged after being told by staff he could not wash his underwear in the bathroom sink. (Dkt. No. 94-1 at ¶ 8.) As he was being returned to his room, Plaintiff physically assaulted staff and ignored directions to calm down and stop his violent behavior. Id. at ¶¶ 9-10. Berkheimer authorized staff to place Plaintiff in five-point restraints. Id. at ¶ 10. However, Plaintiff continued to struggle violently and ignore instructions to calm down. Id. at ¶ 11. Berkheimer determined Plaintiff presented a serious risk of harm to himself or others if not medicated and Plaintiff would not voluntarily take medication. Id. at ¶ 12. He thus prescribed Haldol 5 mg., Ativan 2 mg., and Benadryl 50 mg. by injection to treat Plaintiff's psychiatric symptoms, calm him, and treat side effects. Id. at ¶ 13. He periodically checked on Plaintiff's condition and, after determining it had not improved, prescribed the same drugs to be administered a second time. Id. at ¶¶ 14-15.

A second incident transpired early in the morning on June 20, 2014, at approximately 1:15 a.m. (Dkt. No. 93-3 at ¶ 15.) According to Plaintiff, he spoke to Williams in the hallway on the way to or from the bathroom. (Dkt. No. 94 at 75-78.) Without any provocation, Williams attacked Plaintiff. Id. at 78-79. Plaintiff claims he was restrained by staff and medicated. Id. at 81-82. According to Defendants, facility records indicate Plaintiff assaulted Williams. (Dkt. No. 94-1 at 18.) Thereafter, Dr. Siddiqi, the on-call physician who is not a party to this action, prescribed Plaintiff Haldol 5 mg., Ativan 2 mg., and Benadryl 50 mg. over his objection. Id.

Plaintiff also claims security supervisor Paparella failed to supervise his workers and "knowingly and sadistically" placed Plaintiff in harm's way by returning Plaintiff to Ward 601 after the June 19, 2014, incident, which allowed the June 20, 2014, assault to occur. (Dkt. No. 66 at ¶¶ 34-36.)

Following these incidents, and pursuant to CNYPC Policy # 3.12 - Court Ordered Psychotropic Medication Over Patient's Objection ("COPM"), the facility began the process of seeking a court order authorizing medication over Plaintiff's objection. (See Dkt. No. 93-1 at 12-17.) Berkheimer, as Plaintiff's treating physician, prepared an evaluation for Plaintiff and concluded treatment was in Plaintiff's best interests, Plaintiff lacked capacity to make a reasoned decision regarding treatment, and Plaintiff posed a risk of harm to himself or others if untreated. (Dkt. No. 94-1 at 53-57.) Hernandez was assigned to conduct a second evaluation of Plaintiff as reviewing physician. (Dkt. No. 94-2 at ¶ 10.) Hernandez evaluated Plaintiff and also recommended that he be administered medication over objection. Id. at 5-11. After these two evaluations, the Clinical Director at CNYPC determined the facility should obtain court authorization to treat Plaintiff over his objection. (Dkt. No. 93-3 at ¶ 40.) Bosco, as Executive Director, reviewed and approved the Clinical Director's decision to seek a court order. Id. at ¶ 41.

A hearing was held on September 18, 2014, before the Hon. Patrick F. MacRae, New York Supreme Court Justice, Oneida County. Id. at ¶ 42. Justice MacRae found that treatment over objection was in Plaintiff's best interests and granted an order authorizing treatment over objection for the duration of Plaintiff's stay at CNYPC and for twelve months after discharge. Id. Plaintiff alleges Berkheimer, Hernandez, and Bosco fraudulently obtained the court order to treat him with medication over his objection. Id. at ¶¶ 31, 32.

Given the foregoing, the Court liberally construed Plaintiff's claims as asserting (1) Eighth Amendment excessive force claims against Asch, Martin, Williams; (2) Eighth Amendment excessive force and failure to protect claims against Paparella; and (3) Fourteenth Amendment due process claims against Berkheimer, Hernandez, and Bosco. As noted, Paparella, Berkheimer, Hernandez, and Bosco move for summary judgment and seek to be dismissed from this action on the following grounds: (1) Plaintiff cannot establish Eighth Amendment claims excessive force/failure to intervene or failure to protect claims against Defendant Paparella; (2) Plaintiff has failed to establish the personal involvement of Defendants Bosco and Hernandez in the treatment of Plaintiff on June 19, 2014; (3) Plaintiff has failed to establish the involvement of Defendants Bosco, Hernandez, and Berkheimer in the treatment of Plaintiff on June 20, 2014; (4) Plaintiff cannot establish a due process claim against Defendant Berkheimer with respect to the treatment of Plaintiff on June 19, 2014; (5) Plaintiff cannot establish due process claims against Defendants Bosco, Hernandez, and Berkheimer with respect to CNYPC's decision to obtain a court order authorizing the treatment of Plaintiff over his objection, and treating him pursuant to said order thereafter; and (6) Defendants Bosco, Hernandez, and Berkheimer are entitled to qualified immunity. (Dkt. No. 93-4.) Plaintiff opposes the motion. (Dkt. No. 103.)

III. SUMMARY JUDGMENT LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248). 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, 477 U.S. at 322.

If the moving party meets this burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys, 426 F.3d at 55354 (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)).

Where a party is proceeding pro se, the court must "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

IV. DISCUSSION

A. Plaintiff's Failure to Comply with Local Rule 7.1(a)(3)

Pursuant to this District's Local Rules, "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3). Where a party has failed to respond to the movant's statement of material facts as required by Local Rule 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).

As required by the Local Rules, Defendants advised Plaintiff of the consequences of failing to file a response to Defendants' Rule 7.1 Statement of Material Facts. (Dkt. No. 93 at 2.) While Plaintiff submitted a response to Defendants' motion, he failed to do so in the manner required under Local Rule 7.1(a)(3). (Dkt. No. 103 at 2-4.) "Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules." Marino v. Watts, No. 9:12-CV-801 (NAM/DJS), 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018), report-recommendation adopted sub nom. Marino v. Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 F. App'x 73 (2d Cir. 2019) (summary order).

Although this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on a court to conduct a searching and independent review of the record to find proof of a factual dispute where a non-movant willfully fails to respond to a properly filed summary judgment motion, Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002), the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and whether to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.

B. Eighth Amendment Excessive Force and Failure to Protect Claims

Plaintiff claims Paparella violated his Eighth Amendment rights to be free from excessive force by failing to supervise his staff despite knowing there was a pattern of "extreme abuse and assaults" on Ward 601 and returning Plaintiff to Ward 601 after the first alleged assault on June 19, 2014, thereby creating the opportunity for the second alleged assault on June 20, 2014, to occur. (Dkt. No. 66 at ¶¶ 34-36; see also Dkt. Nos. 12 at 8 n.7, 65 at 2, 22.) Defendants contend they are entitled to summary judgment because Plaintiff cannot establish Paparella's personal involvement or deliberate indifference. (Dkt. No. 93-4 at 3-4.)

1. Legal Standards

"The Eighth Amendment prohibits the infliction of cruel and unusual punishments . . . including the unnecessary and wanton infliction of pain." Giffen v. Crispen, 193 F.3d 89, 91 (2d Cir. 1999) (citation and internal quotation marks omitted). An Eighth Amendment excessive force claim has two components - "one subjective focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)).

"The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright, 554 F.3d at 268) (internal quotation marks omitted). The test for wantonness on an excessive force claim "is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id. (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (in determining whether defendants acted maliciously or wantonly, "a court must examine several factors including: the extent of the injury and mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.") (citation and internal quotation marks omitted)). The objective component requires a showing that the "conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions." Harris, 818 F.3d at 64 (citation omitted).

To prevail on a failure to protect claim, a plaintiff must demonstrate two elements, one objective and one subjective. To satisfy the objective prong, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. That is, the deprivation "must be, in objective terms, 'sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

As to the second prong, "[t]o prove deliberate indifference, the plaintiff must show that the 'official [knew] of and disregard[ed] an excessive risk to inmate health or safety.'" Celestin v. Premo, No. 9:12-cv-301 (GLS/RFT), 2014 WL 272443, at *5 (N.D.N.Y. Jan. 24, 2014) (quoting Farmer, 511 U.S. at 837) (alterations in original). Indeed, "[t]he 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." Id. Mere negligence by a prison official will not suffice. Hayes, 84 F.3d at 620; Hathaway, 37 F.3d at 66 ("Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.").

2. Defendant Paparella

The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676 ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (noting that a defendant may not be held liable in a § 1983 action merely because he or she held a high position of authority). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).

In this circuit, a supervisory official is personally involved in a constitutional violation if he or she: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) was grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

Here, Plaintiff makes no claim Paparella directly participated in the alleged incidents of June 19 and June 20, 2014. The summary judgment record demonstrates Paparella was not present at CNYPC at 7:20 a.m. on June 19, the approximate time of the first incident, or at CNYPC at 1:15 a.m. on June 20, the approximate time of the second incident. (Dkt. Nos. 93-2 at ¶¶ 7, 13; 94 at 97.) Thus, there is no evidence that Paparella directly participated in the alleged incidents of June 19 and June 20, 2014, and/or failed to intervene. See Colon, 58 F.3d at 873.

Nor is there any evidence showing that Paparella knew of, or failed to remedy, any alleged wrongdoing. See Colon, 58 F.3d at 873. While Plaintiff claims Ward 601 "has a "famous pattern of abusing . . . patients," (Dkt. No. 66 at ¶37), "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact" to avoid summary judgment. Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). As to the June 19, 2014, incident, to the extent Plaintiff points to Paparella's responses to interrogatories as evidence that Paparella "knew of" the "violent tendency of the sick & sadistic" SHTAs on Ward 601, the record indicates only that Paparella objected to Plaintiff's interrogatories and does not provide any evidence as to his knowledge. (Dkt. Nos. 103 at 11-12, 103-1 at 5, 12.) Moreover, Paparella states he does not recall Plaintiff ever bringing concerns to his attention concerning safety or security with staff prior to the alleged incidents at issue. (Dkt. No. 93-2 at ¶ 15.) While Plaintiff testified that he had one conversation with Paparella prior to June 19, 2014, in which he discussed issues with staff, Plaintiff conceded this conversation had nothing to do with the staff involved in the June 19 and June 20, 2014, incidents at issue. (Dkt. No. 94 at 95-96.)

As to the June 20, 2014, incident, Plaintiff claims Paparella, as SHTA Supervisor, was in charge of classification and movement and therefore responsible for his being returned to Ward 601 after the June 19 incident. (Dkt. No. 66 at ¶ 36.) To the contrary, Paparella has stated in his declaration that following the June 19, 2014, incident, decisions as to whether Plaintiff should have been housed in another ward or separated from certain staff members, would have been made by the patient's treatment team and the Supervising SHTAs and Chief SHTA on duty at the time of the incident, which would have been the 7:00 a.m. to 3:00 p.m. shift. (Dkt. No. 93-2 at ¶¶ 5, 9.) The record demonstrates Paparella was not on duty during this time and was not involved in the determinations made regarding whether or not Plaintiff should be transferred or separated from staff following the June 19, 2014, incident. Id. at ¶ 10. Further, Paparella states he does not recall Plaintiff bringing any safety concerns to his attention during the 3:00 p.m. to 11:00 p.m. shift he worked on June 19, 2014. Id. at ¶ 11. Moreover, Paparella states that, during this shift, he did not become aware through other means of any threats or risks to Plaintiff that would have required a reevaluation of his current situation. Id. In response to Defendants' motion, Plaintiff asserts Paparella "was clearly notified" of his situation and "clearly knew" Plaintiff was in harm's way. (Dkt. No. 103 at 12.) However, Plaintiff's conclusory statements that Paparella knew of his situation are insufficient to defeat summary judgment, and Plaintiff has not produced any admissible evidence supporting these contentions. See Cole, 1999 WL 983876, at *3.

Furthermore, there is no evidence that Paparella created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of any such policy custom. Similarly, there is no evidence whatsoever supporting Plaintiff's conclusory assertions that Paparella was grossly negligent in supervising subordinates who allegedly committed the wrongful acts or exhibited deliberate indifference by failing to act on information. See Colon, 58 F.3d at 873.

In light of the foregoing, the Court finds that none of the Colon criteria apply, and there is no showing that Paparella had the necessary level of culpability to satisfy the subjective prong of Plaintiff's excessive force and failure to protect claims. Therefore, the Court finds Paparella is entitled to summary judgment and recommends granting Defendants' motion as to Paparella.

C. Fourteenth Amendment Due Process Claims

Plaintiff claims Defendants Berkheimer, Hernandez, and Bosco violated his Fourteenth Amendment due process rights by forcibly administering psychotropic medication against his will on June 19 and June 20, 2014. (Dkt. No. 66 at ¶¶ 30-31.) Plaintiff also claims Berkheimer and Hernandez, with the authorization of Bosco, sought and received a court order authorizing his medication over objection for one year. Id. at ¶ 32. Defendants contend they are entitled to summary judgment for lack of personal involvement and on the merits. (Dkt. No. 93-4 at 12-17.) Defendants further assert they are entitled to qualified immunity. Id. at 17-19.

1. Legal Standards

The due process clause of the Fourteenth Amendment protects the right of a competent person to refuse unwanted medical treatment. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990) ("[A] competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment."); see also Washington v. Harper, 494 U.S. 210, 221-22 (1990) (finding prisoners likewise possess this liberty interest). As recognized by the Second Circuit, New York common law protects the right of "every individual of adult years and sound mind" to "determine what shall be done with his own body and to control the course of his medical treatment." Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir. 1996) (quoting Rivers v. Katz, 495 N.E.2d 337, 341 (N.Y. 1986) (internal quotation marks omitted)); see also Mills v. Rogers, 457 U.S. 291, 300 (1982) (recognizing the due process clause of the Fourteenth Amendment protects state-created liberty interests) (citations omitted). This right may be set aside only in "narrow circumstances," including where the patient "presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution." Kulak, 88 F.3d at 74.

This right to be free from unwanted medication is expressed in N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8 ("Section 527.8"). Section 527.8 first states a mandatory policy that, with certain exceptions, "Patients who object to any proposed medical treatment or procedure . . . may not be treated over their objection." N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(c). There is an exception for emergency treatment, whereby treatment may be given over objection if the patient "is presently dangerous and the proposed treatment is the most appropriate reasonably available means of reducing that dangerousness. Such treatment may continue only as long as necessary to prevent dangerous behavior." Id. § 527.8(c)(1). A patient is "dangerous" if he "engages in conduct or is imminently likely to engage in conduct posing a risk of physical harm to himself or others." Id. § 527.8(a)(4).

An involuntarily committed patient also may be treated over objection, even in the absence of an emergency, if authorized by a court. Id. § 527.8(c)(4)(i). Section 527.8 sets forth the procedure a facility must follow prior to seeking court authorization for treatment. See id. § 527.8(c)(4). First, the patient's treating physician must "formally evaluate whether the treatment is in the patient's best interests" and "whether the patient has the capacity to make a reasoned decision concerning the treatment." Id. § 527.8(c)(4)(ii)(a). If the treating physician so determines, the physician must inform the patient and the clinical director of his conclusions. Id. Next, the clinical director must appoint a reviewing physician to conduct a second evaluation of the patient, following the same procedures as the treating physician. Id. § 527.8(c)(4)(ii)(b)(1). If the patient continues to object to the treatment, the clinical director next determines on behalf of the facility whether the patient has the capacity to make a reasoned decision concerning treatment and whether the treatment is in the patient's best interests. Id. § 527.8(c)(4)(ii)(b)(3). If the clinical director's determination is that the patient lacks such capacity and the treatment is in the patient's best interests, the director may apply for court authorization of the treatment. Id.

This Circuit assess claims of substantive due process violations against professionals using the professional judgment standard outlined in Youngberg v. Romeo, 457 U.S. 307 (1982). E.g., Kulak, 88 F.3d at 74 (finding the doctor's decision to medicate was "a proper exercise of his professional judgment and comported with the requirements of § 527.8(c)(1)"); Mejía v. N.Y. City Health & Hosps. Corp., No. 16-cv-9706, 2018 WL 3442977, at *10 (S.D.N.Y. July 17, 2018) (applying professional judgment standard to decision to medicate the plaintiff over objection pursuant to Section 527.8). Under this standard, "liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg, 457 U.S. at 323. Moreover, decisions made by professionals are "presumptively valid." Id.; see also Lombardo v. Stone, No. 99 CIV 4603 SAS, 2001 WL 940559, at *10 (S.D.N.Y. Aug. 20, 2001) (according the defendants' professional medical judgment a presumption of correctness).

2. Claims Relating to Treatment on June 19, 2014 and June 20, 2014

Plaintiff contends Defendants Berkheimer, Hernandez, and Bosco violated his due process rights by forcibly administering psychotropic medication over his objection on June 19 and 20, 2014. (Dkt. No. 66 at ¶¶ 30-31.) Defendants argue they are entitled to summary judgment because Hernandez and Bosco were not personally involved in Plaintiff's treatment on either date, Berkheimer was not personally involved in Plaintiff's treatment on June 20, 2014, and Berkheimer did not substantially depart from professional standards in administering medication to Plaintiff over objection on June 19, 2014. (Dkt. No. 93-4 at 13-17.)

a. Defendant Hernandez

The Court finds no reasonable jury could find personal involvement on the part of Hernandez in the treatment of Plaintiff on either June 19, 2014, or June 20, 2014. In his declaration, Hernandez states he was not involved in the decision to treat Plaintiff over his objection after either incident at issue. (Dkt. No. 94-2 at ¶¶ 5-9.) Further, Berkheimer declares that in response to an incident that occurred on June 19, 2014, he prescribed Plaintiff medication to be administered over his objection based upon an emergency situation, pursuant to OMH Corrections-Based Operations Manual Policy # 3.44, Administration of Emergency Policy. (Dkt. No. 94-1 at ¶¶ 5, 6.) The record further shows Dr. Siddiqi made the decision to treat Plaintiff after the June 20, 2014, incident. (Dkt. No. 94-1 at ¶¶ 18, 19.) Lastly, Plaintiff does not recall Hernandez being present when he was medicated on June 19 or June 20, 2014. (Dkt. No. 94 at 71, 85.)

In light of the foregoing, the Court finds Hernandez is entitled to summary judgment for lack of personal involvement and recommends granting Defendants' motion for summary judgment on Plaintiff's due process claims relating to his treatment on June 19 and June 20, 2014 against Hernandez.

b. Defendant Bosco

As noted, the summary judgment record demonstrates Drs. Berkheimer and Siddiqi medicated Plaintiff on June 19, 2014, and June 20, 2014, respectively, pursuant to CNYPC Policy #3.44 - "Administration of Emergency Medication," which authorizes treatment over a patient's objection in emergency situations. (Dkt. Nos. 93-1 at ¶¶ 3,5; 93-1 at 7-10; 94-1 at ¶¶ 8-19.) Policy #3.44 defines an emergency as a "[s]ituation in which the patient engages in substantially dangerous conduct" and defines dangerousness as when a patient "engages in conduct or is imminently likely to engage in conduct that poses a risk of physical harm to him/herself or others." (Dkt. No. 93-1 at 7.) The Policy does not require the treating physician to consult Bosco, as Executive Director of CNYPC, or any other administrative staff at the facility before treating in such circumstances. (Dkt. No. 93-1 at ¶ 4.) Moreover, Bosco declares she was not consulted regarding the decisions to treat Plaintiff over his objection on June 19 and 20, 2014, or otherwise involved in those decisions. Id. at ¶ 6. Plaintiff does not argue Bosco was otherwise involved in his treatment in these dates.

In light of the foregoing, the Court finds Bosco was not personally involved in the administration of medication over objection on these dates. Therefore, the Court recommends granting Defendants' motion for summary judgment on Plaintiff's due process claims relating to his treatment on June 19, 2014, and June 20, 2014, against Bosco.

c. Defendant Berkheimer

As discussed above, with regard to the treatment of Plaintiff on June 20, 2014, the record evidence shows Berkheimer was not present at the time of this incident and accordingly was not involved in the decision to administer medication over Plaintiff's objection. (Dkt. No. 94-1 at ¶¶ 20, 23.) Furthermore, the Behavior Management Restrictive Intervention Physician Order and Monitoring Form for the June 20 incident indicates Plaintiff was treated by Dr. Siddiqi. (Dkt. No. 94-1 at 18.) Plaintiff does not recall seeing Berkheimer that day and Plaintiff does not suggest Berkheimer was otherwise involved in his treatment at issue on June 20, 2014. (Dkt. No. 94 at 85.) Accordingly, the Court finds Berkheimer was not personally involved in the administration of medication at issue on June 20, 2014, and summary judgment is warranted on this claim.

However, the Court reaches a different conclusion with regard to Berkheimer's treatment of Plaintiff on June 19, 2014. As discussed above, the record evidence shows Berkheimer authorized the administration of medication over Plaintiff's objection on June 19, 2014. (Dkt. No. 94-1 at ¶¶ 5-16.) In his declaration, Berkheimer states he witnessed Plaintiff become "enraged[] and begin angrily threatening security staff" after staff instructed Plaintiff not to wash his clothing in the bathroom sink. Id. at ¶ 8. Berkheimer also states he saw Plaintiff assault security staff in the process being returned to him room. Id. at ¶ 9. According to Berkheimer, Plaintiff ignored staff direction to calm down, so Berkheimer authorized staff to place Plaintiff in five-point restraints. Id. at ¶ 10. Once restrained, Plaintiff continued to "struggle violently." Id. at ¶ 11. "Based upon this observed behavior," Berkheimer "determined that Plaintiff posed a serious risk of harm to himself and others without medication, and that he would not voluntarily take medication." Id. at ¶ 12. Berkheimer prescribed Plaintiff Haldol 5 mg. (to treat symptoms associated with schizophrenia), Ativan 2 mg. (to calm Plaintiff), and Benadryl 50 mg. (to calm Plaintiff and treat the side effects from the other medications) by injection. Id. at ¶ 13. Berkheimer asserts these medications are "regularly prescribed to psychiatric patients in emergency situations." Id. After monitoring Plaintiff's situation and concluding his condition had not approved, Berkheimer prescribed a second round of these drugs. Id. at ¶¶ 14-15; see also Dkt. No. 94-1 at 8-15.

However, Plaintiff testified under oath that Asch assaulted him in his room and Plaintiff was not the aggressor. (Dkt. No. 94 at 37.) Plaintiff also testified Martin and Williams joined in the assault and he was "stomped down" by Asch, Martin, and Williams for approximately one to two minutes and was knocked unconsciousness. Id. at 51-53. Plaintiff regained consciousness while being transported to a hospital for treatment. Id. at 53. According to Plaintiff, he was never voluntarily offered any medication and he did not refuse medication. Id. at 67-68.

Because of the clear factual disputes regarding the incident occurring on June 19, 2014, including who initiated the altercation, whether and to what extent Plaintiff was violent or struggling, whether Plaintiff ignored all staff direction, and whether Plaintiff lost consciousness, the Court finds summary judgment inappropriate. If a jury were to credit Plaintiff's version of events, it could not be said as a matter of law that Berkheimer's belief that Plaintiff was dangerous and his decision to forcibly medicate him were not a substantial departure from accepted professional standards and practices. See Haden v. Hellinger, No. 9:14-CV-0318 (GLS/DEP), 2016 WL 8673144, at *10 (N.D.N.Y. Sept. 30, 2016) (denying summary judgment where there was a dispute as to the plaintiff's dangerousness where the plaintiff testified he did not instigate the physical altercations or resist once force was used on him), report-recommendation adopted by 2016 WL 6248432 (N.D.N.Y. Oct. 26, 2016); cf. Brinson v. Kirby Forensic Psychiatric Ctr., No. 16-CV-1625 (VSB), 2018 WL 4680021, at *7-8 (S.D.N.Y. Sept. 28, 2018) (granting summary judgment where there was a dispute whether the plaintiff was the aggressor but where plaintiff did not dispute "the facts on which [the doctor] based his decisions" to administer medication).

In light of this factual dispute, the Court finds at this juncture Berkheimer also is not entitled to qualified immunity on this claim. Prisoners and psychiatric patients have a clearly established right to refuse medication except in emergency situations. Washington, 494 U.S. at 221-22; Cruzan, 497 U.S. at 278. If a jury were to credit Plaintiff's version of events, no reasonable official could believe that administering medicine over objection in such circumstances did not violate his rights. See Haden, 2016 WL 8673144, at *10 n.21 (denying qualified immunity where there was a factual dispute regarding whether the plaintiff was dangerous or not).

Accordingly, the Court recommends denying Defendants' motion for summary judgment on Plaintiff's due process claim relating to his treatment on June 19, 2014, against Defendant Berkheimer.

3. Claims Relating to Obtaining Court Authorization to Medicate

Plaintiff contends Berkheimer, Hernandez, and Bosco violated his Fourteenth Amendment due process rights by seeking and receiving a court order authorizing his medication over objection for one year. (Dkt. No. 66 at ¶ 32.) Defendants argue they are entitled to summary judgment because Plaintiff received all of the process to which he was entitled. (Dkt. No. 93-4 at 15-17.)

The record evidence shows Drs. Berkheimer and Hernandez, as treating and reviewing physicians, respectively, each prepared an evaluation of Plaintiff. (Dkt. Nos. 94-1 at 53-57; 94-2 at 5-11.) Each doctor concluded the treatment he recommended was in Plaintiff's best interests, Plaintiff lacked capacity to make a reasoned decision concerning his treatment, and Plaintiff posed a risk of harm to himself or others if not treated. Id. The Clinical Director of CNYPC made the decision to seek a court order authorizing treatment over objection, and Executive Director Bosco approved this decision. (Dkt. No. 93-1 at ¶¶ 21-22.) A hearing was held before the New York Supreme Court, Oneida County, on September 18, 2014, where Plaintiff was heard and represented by Mental Hygiene Legal Services. Id. at ¶ 23. Justice Patrick F. MacRae found Plaintiff lacked the capacity to make a reasoned decision concerning his treatment and the proposed treatment was appropriate, narrowly tailored, and in Plaintiff's best interests. (Dkt. No. 94 at 477-78.) Justice MacRae accordingly issued an order authorizing the treatment of Plaintiff over his objection. Id. This process substantially complies with CNYPC Policy # 3.12 - Court Ordered Psychotropic Medication Over Patient's Objection, which in turn tracks the procedures outlined in Section 527.8. Plaintiff does not argue that Defendants failed to follow the procedures in CNYPC Policy # 3.12 or Section 527.8. Rather, Plaintiff generally argues he was fully competent to make his own treatment decisions and Defendants wanted to penalize him and cover up staff misconduct by medicating him. (See generally Dkt. No. 103.)

The Court finds Defendants are entitled to summary judgment. Courts in this circuit have found that compliance with Section 527.8 affords a patient even more process than the Constitution requires. E.g., Spencer v. Bellevue Hosp., No. 11 Civ. 7149 (CM), 2012 WL 1267886, at *8-9 (S.D.N.Y. Apr. 12, 2012) (finding that, because defendants complied with New York state law to obtain a court order, the plaintiff received procedural protection exceeding due process requirements); see also Gonzales v. Carpenter, No. 9:08-CV-629 (LEK/ATB), 2011 WL 768990, at *17 (N.D.N.Y. Jan. 3, 2011), report-recommendation adopted by 2011 WL 767546 (N.D.N.Y. Feb. 25, 2011). Although Plaintiff may well be precluded from relitigating the factual bases for the court order, in any event he has not produced any evidence rebutting the presumption of correctness to which Defendants' decisions are entitled or suggesting their conduct substantially departed from accepted professional standards. Moreover, Plaintiff has not produced any evidence supporting his conclusory allegations that Defendants acted fraudulently in seeking and obtaining the court order.

The Court has carefully considered the remaining contentions in Plaintiff's opposition (Dkt. No. 103) and finds them without legal merit. In light of the foregoing, the Court finds Berkheimer, Hernandez, and Bosco are entitled to summary judgment on Plaintiff's Fourteenth Amendment due process claim arising from the court order authorizing his medication over objection for one year. Therefore, the Court recommends granting Defendants' motion as to this claim.

V. CONCLUSION

For the reasons stated above, the Court recommends that Defendants' motion for partial summary judgment be granted in part and denied in part. Specifically, the Court recommends the motion be denied as to Plaintiff's Fourteenth Amendment claim against Defendant Berkheimer with respect to the June 19, 2014, incident, but otherwise recommends the motion be granted. Accordingly, if the District Court accepts the foregoing recommendations, Plaintiff's Eighth Amendment excessive force claims against Asch, Martin, and Williams and his Fourteenth Amendment due process claim against Berkheimer arising from the June 19, 2014, incident remain for trial.

ACCORDINGLY, based on the findings above, it is hereby

RECOMMENDED that Defendants' motion for partial summary judgment (Dkt. No. 93) be GRANTED in part and DENIED in part as follows:

DENIED as to Plaintiff's Fourteenth Amendment due process claim against Defendant Berkheimer with respect to the June 19, 2014, incident, and

GRANTED in all other respects; and it is further

ORDERED that the Clerk modify the docket to reflect the proper spelling of "Asch" and "Kenneth Paparella"; 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 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. Dated: June 2, 2020

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge