Opinion
9:21-cv-00251 (DNH/TWD)
05-22-2023
JAMES BELLAMY, Plaintiff, v. DR. CARL KOENIGSMANN, et al., Defendants.
JAMES BELLAMY Plaintiff, Pro Se Shawangunk Correctional Facility LETITIA JAMES New York State Attorney General OF COUNSEL: STEVE NGUYEN, ESQ., Ass't Attorney General Attorneys for Defendants
JAMES BELLAMY
Plaintiff, Pro Se
Shawangunk Correctional Facility
Although Plaintiff's address on file is Shawangunk Correctional Facility, it appears Plaintiff (DIN 17-A-2901) is currently incarcerated at Elmira Correctional Facility. See https://nysdoccslookup.doccs.ny.gov/ (last visited May 22, 2023).
LETITIA JAMES
New York State Attorney General
OF COUNSEL: STEVE NGUYEN, ESQ., Ass't Attorney General
Attorneys for Defendants
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Pro se plaintiff James Bellamy (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action against defendants Dr. Carl Koenigsmann, Nurse Practitioner Susan Devlin-Varin, Dr. Vonda Johnson, Audiologist John Serhan, Director of Diversity Management Michael Washington, and DOCCS (together, “Defendants”), alleging Eighth Amendment deliberate medical indifference claims pursuant to 42 U.S.C. § 1983, and violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (See Dkt. Nos. 15, 16.) Presently before the Court is Defendants' unopposed motion for summary judgment. (Dkt. No. 35.) For the reasons that follow, the Court recommends granting the motion.
II. PROCEDURAL HISTORY
On July 31, 2020, Plaintiff filed a complaint in the U.S. District Court for the Western District of York (“WDNY”) complaining that his constitutional rights and rights under the ADA and other statutes were violated at the Downstate, Clinton, Great Meadow, and Attica Correctional Facilities (“Downstate”, “Great Meadow”, “Clinton”, and “Attica” respectively). (Dkt. No. 1.) At that time, Plaintiff was incarcerated at Attica. See id. at 2.
Page citations herein are those assigned by the Court's electronic filing system, CM/ECF. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs.
On March 3, 2021, WDNY District Judge Charles Siragusa granted Plaintiff's application to proceed in forma pauperis and reviewed the sufficiency of Plaintiff's complaint pursuant to 28 U.S.C. §§ 1915e and 1915A (the “WDNY Order”). (Dkt. No. 11.) As relevant here, Plaintiff's claims regarding Clinton and Great Meadow were severed and transferred to this District. Id. at 9-10, 15, 17. The WDNY Order also transferred those claims arising at Downstate to the Southern District of New York (“SDNY”). Id. at 17.
Because the WDNY Order did not analyze the sufficiency of the claims arising in this District, upon receipt of the action, this Court screened the complaint and accepted Plaintiff's complaint in part. (Dkt. No. 13.) Thereafter, on May 28, 2021, Plaintiff filed an amended complaint. (Dkt. No. 15.) On July 1, 2021, this Court reviewed the sufficiency of the amended complaint and accepted it only to the extent it asserted (1) Eighth Amendment deliberate medical indifference claims against Koenigsmann, Devlin-Varin, Johnson, and Serhan; and (2) ADA claims against DOCCS, Washington, Serhan. (Dkt. No. 16 at 10.) On September 2, 2021, Defendants answered the amended complaint. (Dkt. No. 25.)
Plaintiff's ADA claims asserted against defendant Great Meadow Superintendent John Doe also survived initial review, and Plaintiff was directed to take reasonable steps to ascertain through discovery the identity of that individual. (Dkt. No. 16 at 6.) “Upon learning of defendant John Doe's identity, [P]laintiff shall amend the operative pleading to properly name him as a party. Failure to ascertain the identity of the John Doe so as to permit timely service of process will result in the dismissal of all claims asserted against that individual.” Id. To date, defendant Great Meadow Superintendent John Doe has not been identified.
On August 30, 2022, Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 35.) The Court issued a notice setting Plaintiff's response time and warned him of the consequences of failing to respond to the motion. (Dkt. No. 36.) Plaintiff has neither responded to the motion nor requested an extension of time to file a response.
III. STANDARD OF REVIEW
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (“The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.”). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). “A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist[.]” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citations omitted). However, “a pro se party's ‘bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
Additionally, Local Rule 56.1(b) requires the party opposing summary judgment to “file a separate Response to the Statement of Material Facts.” L.R. 56.1(b). The response must “mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs.” Id. Importantly, “[t]he Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” Id.
In this action, Plaintiff was sent a specific warning by Defendants and the Court of the consequences of failing to respond to the motion:
WARNING: If you do not submit a proper response to the defendants' statement of material facts, the Court may deem you to have admitted the defendants' factual statements. If you do not submit copies of record evidence in support of your denials, the Court may deem defendants' factual statements to be true. If you do not submit a proper response memorandum of law, the Court may deem you to have conceded the defendants' arguments. If you do not respond to this motion properly (or at all), summary judgment may be entered against you, meaning that SOME OR ALL OF YOUR CLAIMS MAY BE DISMISSED.(Dkt. Nos. 35, 36.) Accordingly, the facts set forth in Defendants' statement pursuant to L.R. 56.1 (Dkt. No. 35-7) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified amended complaint and sworn testimony will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in the plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013)(“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts . . . supplemented by Plaintiff's verified complaint . . . as true.”).
The facts are drawn from Plaintiff's verified amended complaint and attached exhibits (Dkt. Nos. 15, 15-2), Plaintiff's deposition testimony (Dkt. No. 35-6), Defendants' Local Rule 56.1 statement of material facts (Dkt. No. 35-7), and the affidavits and exhibits submitted by Defendants in support of their motion (Dkt. Nos. 35-1 through 35-5). The facts are construed in the light most favorable to Plaintiff as the non-moving party. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018).
Plaintiff claims that before entering DOCCS' custody and while confined at Rikers Island Correctional Facility (“Rikers Island”), he was diagnosed with “serious” hearing loss and, on February 22, 2017, was provided a single hearing aid for his left ear. (Dkt. No. 15 at 4-5; Dkt. No. 15-2 at 8-10.)
A. Defendants DOCCS and Washington
Plaintiff entered DOCCS' custody on July 14, 2017, and was initially housed at Downstate. (Dkt. No. 35-7 at ¶ 9.) He asserts ADA claims against DOCCS and Washington, the Director of Diversity Management and ADA Coordinator. Id. at ¶ 7. Specifically, Plaintiff contends both defendants should have placed him in a specialized facility for his hearing condition. Id.
In August 2017, during a medical interview at Downstate, Plaintiff presented with a “prominent hearing deficit.” Id. at ¶ 10. Accordingly, he was scheduled for an audiology consult. Id. Serhan, a licensed audiologist, examined Plaintiff on August 16, 2017, and determined Plaintiff's hearing loss was “non-significant” (HL30). Id. at ¶ 11. Among other things, Serhan observed Plaintiff's ears were “clear” and described Plaintiff's communication, speech, and language as “normal.” (Dkt. No. 15-2 at 2.) The consultation report was marked “FOHL” and “malingering.” Id. Plaintiff alleges prior to this examination, he was classified as HL20, but Serhan “disregarded” his medical condition and “relisted [him] as HL30.” (Dkt. No. 15 at 4-5.)
There are three levels of designation for hearing loss for inmates in DOCCS' custody, including (1) HL10 Hearing Loss/Deaf; (2) HL20 Hearing Loss/Hard of Hearing; and (3) HL30 Hearing Loss/Non-Significant. (See Dkt. No. 16 at 4 n.3.)
Serhan uses the acronym “FOHL” in his practice to “denote allegedly functional, but nonobservable hearing loss.” (Dkt. No. 35-5 at ¶ 22.)
On August 18, 2017, ADA Coordinator Washington received a letter from Plaintiff. (Dkt. No. 35-7 at ¶ 12.) Plaintiff stated he was “deaf in [his] right ear” and “hard of hearing in [his] left ear” and asked to transfer to a facility that could “accommodate [his] disability.” Id. Upon review of Plaintiff's medical records, including Serhan's audiology report that classified Plaintiff's hearing loss as “non-significant” (HL30), and based upon DOCCS Directive No. 2612, Washington determined Plaintiff was not entitled to a transfer and was appropriately housed. Id. at ¶¶ 13-15. Accordingly, Washington advised Plaintiff to seek accommodations at the facility-level. Id. at ¶ 15. Washington received no further correspondence from Plaintiff. Id. at ¶ 16.
DOCCS Directive No. 2612, Section XI(A), states transfers were for incarcerated individuals who are “deaf (HL10), hard of hearing (HL20), legally blind (B240), or severely visually impaired (V230).” (Dkt. No. 15-2 at 49).
In December 2017, Plaintiff was transferred from Downstate to Clinton. Id. at ¶ 19. During the transfer, prison officials lost Plaintiff's hearing aid. (Dkt. No. 15 at 5-6.)
B. Defendants Devlin-Varin and Johnson
Plaintiff asserts Eighth Amendment medical indifference claims against Devlin-Varin, a nurse practitioner at Clinton, and Johnson, a clinical physician at Clinton. (Dkt. No. 15 at 29.) On January 12, 2018, Devlin-Varin examined Plaintiff, who complained of a lost hearing aid among other things. (Dkt. No. 35-7 at ¶ 20.) She reviewed Plaintiff's medical records, which noted Plaintiff had an audiology consult with Serhan in August 2017. Id. at ¶ 21. She deferred to Serhan's findings and “non-significant” (HL30) assessment and scheduled Plaintiff for another audiology consult. Id. at ¶ 22-23. Sometime later, Johnson reviewed Devlin-Varin's consultation referral. Id. at ¶ 24. Johnson was not present during the January 12, 2018, examination nor did Johnson have any further interactions with Plaintiff. Id.
Devlin-Varin noted Serhan's consultation report was marked “FOHL” and, based upon her prior experience with Serhan, “FOHL” described patients without observable hearing loss. (Dkt. No. 35-2 at ¶ 16; accord Dkt. No. 35-2 at ¶ 16.)
Devlin-Varin examined Plaintiff again on June 21, 2018. Id. at ¶ 25. At that time, however, Plaintiff had not yet received his audiology consult. As a result, Devlin-Varin again deferred to Serhan's 2017 audiology report. Id. She had no further examinations with Plaintiff concerning his hearing condition. Id. at ¶ 26.
C. Defendant Koenigsmann
Plaintiff claims Koenigsmann “denied” him a replacement hearing aid and was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. (Dkt. No. 15 at 30; Dkt. No. 16 at 10; Dkt. No. 35-7 at ¶ 27.) At all times relevant, Koenigsmann was a licensed physician and served as the Deputy Commissioner and Chief Medical Officer for DOCCS. (Dkt. No. 35-7 at ¶ 28.)
Plaintiff alleges he wrote a letter to Koenigsmann on July 9, 2018. (Dkt. No. 15 at 5; Dkt. No. 15-2 at 19-21.) Among other things, Plaintiff complained that because of the inaccurate hearing test conducted by Serhan in August 2017, he was being denied “reasonable accommodations” and a replacement hearing aid at Clinton. (Dkt. No. 15-2 at 19-21.) Koenigsmann, however, neither reviewed nor responded to that correspondence. (Dkt. No. 35-7 at ¶ 30.) Nor did Koenigsmann ever speak to Plaintiff about his medical conditions. Id. Rather, Plaintiff's letter would have been routed to a Regional Health Service Administrator, who would review the correspondence, investigate any complaints, draft a response, and take corrective actions as needed. Id. at ¶ 31.
On August 28, 2018, Plaintiff was transferred from Clinton to Great Meadow. (Dkt. No. 35-2 at 16.)
D. Defendant Serhan
Plaintiff asserts Eighth Amendment deliberate medical indifference and ADA claims against Serhan. (Dkt. No. 16 at 10.) Both claims pertain to Serhan's assessment of his hearing loss around October 2018, while incarcerated at Great Meadow. Id.
As discussed above, Plaintiff also takes issue with Serhan's assessment of his hearing loss in August 2017, while incarcerated at Downstate. (Dkt. No. 15 at 4-5; Dkt. No. 15-2 at 12-13.) However, all of Plaintiff's claims arising out of incidents that occurred or treatment Plaintiff received while he was confined at Downstate were transferred to the SDNY pursuant to the WDNY Order. (Dkt. No. 11 at 17; see also Dkt. No. 16 at 10.)
On October 12, 2018, Serhan examined Plaintiff at Great Meadow. (Dkt. No. 35-7 at ¶ 36.) To evaluate Plaintiff's hearing loss, Serhan assessed his communication skills, administered a Pure Tone Audiometry, and conducted a physical examination. Id. at ¶ 37. First, Serhan determined Plaintiff had “normal hearing communication.” Id. at ¶ 38. He observed Plaintiff could understand speech without visual cues and that Plaintiff had no speech or language impairments, conditions typically associated with significant hearing loss. Id. Second, Serhan tested Plaintiff's subjective hearing via a Pure Tone Audiometry. Id. at ¶ 39. Serhan determined, however, that Plaintiff gave unreliable responses. Id. at ¶ 40. For example, despite his normal communication ability, Plaintiff tested as though he were deaf in both ears. Id. In Serhan's experience, Plaintiff's presentation was untenable: even individuals with mild to moderate hearing loss presented with at least some communication impairment. Id. at ¶ 41. Accordingly, Serhan did not rely upon Plaintiff's audiometry results. Id. Third, Serhan examined Plaintiff's ears using an otoscope. Id. at ¶ 42. As Plaintiff's eardrums adequately reflected light and his ear canals were clear, Serhan determined Plaintiff's ears were normal. Id. at ¶ 43. Based upon his findings, Serhan classified Plaintiff's hearing loss as “non-significant” (HL30) and concluded hearing aids were not warranted. Id. at ¶ 44.
V. DISCUSSION
Plaintiff advances Eighth Amendment medical indifference claims against Koenigsmann, Devlin-Varin, Johnson, and Serhan; and claims pursuant to the ADA against DOCCS, Washington, and Serhan. (Dkt. No. 16 at 10.) Defendants argue Plaintiff's claims are meritless and fail as a matter of law. (Dkt. No. 35-8 at 6-17.) Alternatively, Defendants assert Koenigsmann, Devlin-Varin, Johnson, and Serhan are entitled to qualified immunity. Id. at 1718. Plaintiff has not responded to the motion.
A. Eighth Amendment Medical Indifference Claims
Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove ‘deliberate indifference to [his] serious medical needs.'” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle, 429 U.S. at 104). This standard contains objective and subjective components. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003).
“First, the alleged deprivation must be, in objective terms, sufficiently serious.” Chance, 143 F.3d at 702 (internal quotation marks and citations omitted). Determining whether a deprivation qualifies as objectively serious entails two inquiries: (1) “whether the prisoner was actually deprived of adequate medical care” and (2) “whether the inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006) (citations omitted).
“Second, the defendant must act with a sufficiently culpable state of mind,” Chance, 143 F.3d at 702 (internal quotation marks and citations omitted). That is, the plaintiff must demonstrate the defendant “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 832, 844 (1994); see also Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) (With respect to the subjective element, a plaintiff must also demonstrate that defendant had “the necessary level of culpability, shown by actions characterized by ‘wantonness.'”). “Deliberate indifference is a mental state equivalent to subjective recklessness.” Salahuddin, 467 F.3d at 279 (internal citation omitted). “[R]ecklessness entails more than mere negligence; the risk of harm must be substantial and the official's actions more than merely negligent.” Id.
Additionally, a plaintiff's disagreement with prescribed treatment does not rise to the level of a constitutional claim. Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001). Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. Id. (citations omitted). An inmate does not have the right to treatment of his choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment. Sonds, 151 F.Supp.2d at 312 (citation omitted). Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional violation simply because the plaintiff is an inmate. Id. Thus, any claims of malpractice, negligence, or disagreement with treatment are not actionable under Section 1983.
In addition, as with any Section 1983 claim, a defendant must be personally involved in an alleged constitutional violation in order to be held liable. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676).
1. Objective Element
Plaintiff fails to establish the first requirement under the objective prong-that he was actually deprived of adequate medical care at Clinton or Great Meadow. The record demonstrates Plaintiff was examined by Devlin-Varin on January 12, 2018, where he complained of hearing issues and a lost hearing aid. (Dkt. No. 35-2 at ¶¶ 3-4, 10-13.) Devlin-Varin reviewed and deferred to Serhan's audiology report from August 2017, which diagnosed Plaintiff with non-significant hearing loss (HL30) based upon his normal communication, speech, and language ability. Id. at ¶ 14. That report also was marked “FOHL” and referenced “malingering” behavior. Id. at ¶ 16. Nevertheless, in light of Plaintiff's complaints, she requested a “re-evaluation for placement and classification.” (Dkt. No. 35-2 at 12.) Johnson reviewed the consultation referral from January 2018. (Dkt. No. 35-3 at ¶ 13.)
As noted, all of Plaintiff's claims arising out of incidents that occurred or treatment Plaintiff received while he was confined at Downstate were transferred to the SDNY by the WDNY Order. (Dkt. No. 11 at 17; Dkt. No. 16 at 2, 10.)
Plaintiff was examined by Devlin-Varin again on June 21, 2018. (Dkt. No. 35-2 at ¶ 20.) Among other things, Plaintiff requested a hearing aid. Id. As before, she deferred to the 2017 audiology report as Plaintiff had not yet received his updated audiology consult. Id. at ¶ 22. Thereafter, in August 2018, Plaintiff was transferred to Great Meadow Id. at ¶ 24.
On October 12, 2018, Serhan met with Plaintiff at Great Meadow to assess his alleged hearing loss. (Dkt. No. 35-5 at ¶ 11.) As detailed above, Serhan's audiological findings were based upon a comprehensive three-part test. Id. at ¶ 12. Serhan classified Plaintiff as HL30, indicating “non-significant” hearing loss. Id. at ¶ 21. Moreover, given Plaintiff's normal communication skills, unreliable audiometry results, and lack of ear trauma, Serhan determined hearing aids were not warranted. Id. at ¶ 23.
Accordingly, Plaintiff has not established as a matter of law that he was deprived of adequate medical care at Clinton or Great Meadow. “Since the Court has found that Plaintiff has not been deprived of adequate medical care, there is no need to determine whether the alleged deprivation of medical care was sufficiently serious.” Redd v. Garell, No. 18 CIV. 09436, 2023 WL 2712373, at *11 (S.D.N.Y. Mar. 30, 2023). Thus, Koenigsmann, Devlin-Varin, Johnson, and Serhan are entitled to summary judgment on this basis.
In any event, there is no factual dispute regarding the seriousness of Plaintiff's condition. To be sure, the “loss of hearing can form the basis of a constitutional claim because the ability to hear is a basic human need affecting daily activity and sufficiently serious to warrant treatment by physicians.” Fate v. Petranker, No. 19-CV-05519, 2022 WL 2672317, at *5 (S.D.N.Y. July 8, 2022) (citations and internal quotation marks omitted). “However, a plaintiff's hearing loss that is mild or not significant, does not rise to the level of a ‘serous medical need' triggering constitutional protections.” Id. (citations omitted). Here, the record establishes that at all times relevant to this action, Plaintiff's hearing loss was classified as “non-significant” (HL30) and hearing aids were not warranted. (Dkt. No. 35-7 at ¶ 44.) See, e.g., King v. Shinder, No. 16-CV-06315, 2020 WL 4750294, at *7 (S.D.N.Y. Aug. 17, 2020) (finding claim based on denial of a hearing aid to a plaintiff with HL30 non-significant hearing loss failed at the summary judgment stage because the plaintiff's medical condition was simply not sufficiently serious). Plaintiff's bare assertion that he needs a hearing aid fails to raise a genuine issue of material fact where it is undisputed that his hearing loss was insignificant. Overall, the record reflects Plaintiff was provided with adequate medical services.
Plaintiff appears to argue that because he was previously diagnosed with “serious” hearing loss and prescribed a hearing aid, he was entitled to accommodations and a hearing aid moving forward. As discussed, the record establishes Serhan exercised his medical judgment to determine Plaintiff's alleged hearing loss was non-significant and hearing aids were not warranted. See, e.g., McKenna v. Wright, No. 01 Civ. 6571, 2002 WL 338375, at *8 (S.D.N.Y. Mar. 4, 2002) (“The mere fact that the defendant physicians may have made a different medical decision with respect to [the plaintiff's] treatment than that purportedly recommended by [a previous physician] does not indicate that they acted for culpable reasons.”); see also Douglas v. Stanwick, 93 F.Supp.2d 320, 325 (W.D.N.Y. 2000) (“Not every physician will treat every ailment in exactly the same manner. That does not mean that one of the physicians must be acting with deliberate indifference to the patient's needs.”).
2. Subjective Element
Plaintiff also fails to establish Koenigsmann, Devlin-Varin, Johnson, and Serhan acted with a sufficiently culpable state of mind. Although Plaintiff obviously disagrees with the medical care he received at Clinton and Great Meadow, disagreements are insufficient to establish deliberate indifference. See Shomo v. N.Y.S. Dep't of Corr. Servs., No. 9:04-CV-0910, 2007 WL 2580509, at *12 (N.D.N.Y. Sept. 4, 2007) (holding that a prisoner's disagreement with a DOCCS employee regarding the treatment that he should properly receive is insufficient to state a claim under the Eighth Amendment” (footnote omitted)). Even if the medical decisions at issue caused Plaintiff unintended harm, which the Court seriously doubts, negligence is not actionable under Section 1983. See Ahlers v. Kaskiw, No. 12-CV-501 (GLS/ATB), 2014 WL 4184752, at *7 (N.D.N.Y. Aug. 21, 2014) (“[N]egligence in diagnosing or treating an inmate's medical condition does not constitute deliberate indifference.”) (citing Farmer, 511 U.S. at 835); Chance, 143 F.3d at 703 (“[N]egligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.”) (citing Estelle, 429 U.S. at 105-06). Thus, Plaintiff also fails to satisfy the subjective prong of the deliberate indifference test and summary judgment is also warranted on this basis.
3. Personal Involvement
Johnson and Koenigsmann are entitled to summary judgment for lack of personal involvement. (Dkt. No. 35-8 at 11-12.) The undisputed record evidence demonstrates neither Johnson nor Koenigsmann personally treated Plaintiff or had any contact whatsoever with him. Instead, Johnson only reviewed Devlin-Varin's request for an audiology consult based upon her position at Clinton. Such review, in a supervisory capacity, is insufficient to establish her personal involvement. See Tangreti, 983 F.3d at 618. Although Plaintiff wrote a letter to Koenigsmann, the record demonstrates Koenigsmann neither reviewed nor responded to Plaintiff's July 2018 letter. Instead, the letter would have been routed to the Regional Health Services Administrator, who would review and respond accordingly. (Dkt. No. 35-7 at ¶ 31.) Thus, neither Johnson's review of the audiology consult referral nor Plaintiff's letter addressed to Koenigsmann demonstrate the requisite personal involvement for an Eighth Amendment deliberate indifference claim and summary judgment is warranted on this basis. See, e.g., DeMeo v. Koenigsmann, No. 11 CIV. 7099, 2015 WL 1283660, at *16 (S.D.N.Y. Mar. 20, 2015) (letters mailed to Dr. Koenigsmann do not satisfy the requirement of personal involvement where the letters were referred to a subordinate who responded to the inmate). Inasmuch as Plaintiff cannot establish Johnson and Koenigsmann were personally involved, they are entitled to summary judgment for lack of personal involvement. (Dkt. No. 35-8 at 11-12.)
To the extent Plaintiff attributes any delay in the scheduling the audiology consult to Johnson, she would still be entitled to summary judgment. “[A] delay in treatment does not violate the constitution unless it involves an act or failure to act that evinces a conscious disregard of a substantial risk of serious harm.” Pabon v. Wright, No. 99-CV-2196, 2004 WL 628784, at *8 (S.D.N.Y. Mar. 29, 2004) (citation and quotation marks omitted), aff'd, 459 F.3d 241 (2d Cir. 2006). That is, “denying or delaying needed treatment for a serious medical condition constitutes deliberate indifference for Eighth Amendment purposes only if,” for example, the “official[ ] delayed care as a form of punishment, ignored a life-threatening and fast-degenerating condition for several days, or delayed major surgery.” Myrie v. Calvo, 615 F.Supp.2d 246, 248 (S.D.N.Y. 2009) (citation omitted). The record is devoid of any such evidence. Indeed, Serhan evaluated Plaintiff on October 12, 2018. See Perez v. Hawk, 302 F.Supp.2d 9 21 (E.D.N.Y. 2004) (treatment of a plaintiff's medical conditional generally defeats a claim of deliberate indifference).
For these reasons, the Court recommends granting Defendants' motion with regard to Plaintiff's Eighth Amendment deliberate medical indifference claims against Koenigsmann, Devlin-Varin, Johnson, and Serhan.
The Court finds it unnecessary to address Defendants' alternative qualified immunity argument. (Dkt. No. 35-8 at 17-18.)
B. ADA Claims
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To establish a claim under Title II of the ADA, the plaintiff must demonstrate: (1) he is a qualified individual with a disability; (2) the defendants are subject to the ADA; and (3) he was denied the opportunity to participate in or benefit from the defendants' services, programs, or activities, or was otherwise discriminated against because of his disability. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). Additionally, in order to recover damages under Title II the ADA, the plaintiff must show the discrimination was intentional. Butchino v. City of Plattsburg, No. 8:20-cv-796 (MAD/CFH), 2022 WL 137721, at *9 (N.D.N.Y. Jan. 14, 2022) (citing Vassenelli v. State Univ. of N.Y., 2018 WL 1406629, at *3 (N.D.N.Y. Mar. 19, 2018)).
In this action, Plaintiff alleges he is hearing impaired and argues DOCCS and Washington should have placed him in a specialized facility for his hearing condition. (Dkt. No. 35-7 at ¶ 7.) He also contends Serhan should have classified him as “hard of hearing” (HL20) and provided hearing aids. Id. at ¶¶ 32-33. Defendants argue Plaintiff's ADA claims asserted against DOCCS, Washington, and Serhan fail as a matter of law. (Dkt. No. 35-8 at 12-17.) The Court agrees.
The “public entity” element does not appear to be in dispute. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 213 (1998) (stating that the “plain text of Title II of the ADA unambiguously extends to state prison inmates”). In their memorandum of law, Defendants only address the first and third elements. (Dkt. No. 35-8 at 12-17.)
Further, insofar as Plaintiff is suing Washington and Serhan in their individual capacities, Title II of the ADA does not allow individual capacity suits-either for damages or injunctive relief-against state officials. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).
1. Qualified Individual
“[T]o establish the existence of a disability, a plaintiff must demonstrate that he or she suffers from a physical or mental impairment that ‘substantially limits one or more major life activities[.]'” Wega v. Ctr. for Disability Rts., No. 06-CV-6375, 2009 WL 3199684, at *7 (W.D.N.Y. Sept. 30, 2009) (quoting 42 U.S.C. § 12102(2)(A)), aff'd, 395 Fed.Appx. 782 (2d Cir. 2010) (summary order). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). “The mere presence of a medical condition does not establish that a plaintiff is disabled.” O'Donnell v. King B 100, LLC, No. 14-CV-1345 (TJM), 2016 WL 7742779, *9 (N.D.N.Y. May 3, 2016) (citations omitted).
Here, the uncontroverted facts demonstrate that while in DOCCS' custody, Plaintiff's hearing loss was assessed as “non-significant” (HL30) and, therefore, Plaintiff fails to establish the “physical impairment” required under the first prong of the ADA test. (Dkt. No. 35-7 at ¶¶ 11, 44.) Relevant to this action and as detailed above, Plaintiff's hearing was tested by Serhan in August 2017 and retested by Serhan in October 2018. Id. Both times, Plaintiff was assessed with “non-significant” hearing loss (HL30). Id. Upon physical examination, Plaintiff's ears were also “normal” and “clear.” Id. at ¶ 43. Moreover, while hearing loss is a major life activity, 42 U.S.C. § 12102(2)(A), Plaintiff has not shown that he has been limited by it. For example, during his 2018 examination, Serhan determined Plaintiff had “normal hearing communication.” (Dkt. No. 35-7 at ¶ 38.) During the exam, Plaintiff could understand speech without visual cues. Id. Additionally, Plaintiff did not demonstrate any speech or language impairments, conditions typically associated with significant hearing loss. Id. As Defendants further point out, Plaintiff could adequately hear and answer questions at his 2022 deposition. (Dkt. No. 35-8 at 15; Dkt. No. 35-6.) Thus, even if Plaintiff had some difficulty hearing, Plaintiff has not demonstrated that his hearing loss “substantially limits” a major life activity as required by the ADA. See Williams v. Barometre, No. 20-CV-7644, 2022 WL 903068, at *16 (S.D.N.Y. Mar. 28, 2022). Having failed to demonstrate the first element of a claim under Title II of the ADA, Plaintiff's ADA claims fails as a matter of law.
2. Discrimination
In any event, Defendants next contend Plaintiff cannot show DOCCS, Washington, or Serhan excluded him from participating in, or denied him the benefit of, any services or programming, or was otherwise discriminated against because of his disability. (Dkt. No. 35-8 at 16-17.) The Court agrees.
“Courts ‘routinely dismiss ADA suits [brought] by disabled inmates that . . . do not allege that the inmate was treated differently because of his or her disability.'” Benyi v. New York, No. 20-CV-1463, 2021 WL 1406649, at *13 (N.D.N.Y. Mar. 23, 2021) (quoting Elbert v. N.Y.S. Dep't of Corr. Servs., 751 F.Supp.2d 590, 595 (S.D.N.Y. 2010)). “[A] defendant does not violate the ADA by merely “deny[ing] an inmate's request for reasonable accommodations because of a reason other than his disability.” Espinal v. N.Y. State Dep't of Corr. Servs., No. 06-CV-0596, 2009 WL 799951, at *6 (N.D.N.Y. Mar. 24, 2009). Here, Plaintiff fails to demonstrate a causal connection between his alleged disability and his alleged denial of access to DOCCS' services, programs, or activities. Rather, as discussed herein, the record demonstrates Plaintiff did not receive his requested accommodations based on the determination that they were not needed. (Dkt. No. 35-8 at 16.) See, e.g., Schnauder v. Gibens, 649 Fed.Appx. 8, 11 (2d Cir. 2017) (dismissing an ADA claim after not finding the plaintiff's disability to be the reason for a denial of medical services); Blandon v. Aitchison, No. 17-CV-0065, 2019 WL 1206370, at *11 (S.D.N.Y. Mar. 14, 2019) (dismissing an ADA claim after not finding the plaintiff's disability to be the reason for his mistreatment); Alster v. Goord, 745 F.Supp.2d 317, 340 (S.D.N.Y. 2010) (same). Further, there is no record evidence the alleged violations were motivated by discriminatory animus or ill will. Id. (Dkt. No. 35-8 at 16.)
For these reasons, the Court recommends granting Defendants' motion with regard to Plaintiff's ADA claims against DOCCS, Washington, or Serhan.
VI. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 35) be GRANTED; and it is further
RECOMMENDED that Plaintiff's ADA claims asserted against defendant Great Meadow Correctional Facility Superintendent John Doe be DISMISSED and that the Clerk be directed to TERMINATE that defendant from this action;
See Dkt. No. 16 at 11 (Plaintiff shall take reasonable steps through discovery to ascertain the identity of defendant Great Meadow Correctional Facility Superintendent John Doe, against whom one of plaintiff's ADA claims as asserted. Plaintiff's failure to timely serve that defendant will result in dismissal of the claim asserted against that individual and termination of that defendant from the action[.]”) (emphasis in original).
RECOMMENDED that the Clerk be directed to enter judgment in Defendants' favor and close this case; and it is further
ORDERED that Plaintiff must file a notice of change of address within fourteen (14) days and he must continue to submit any address changes to the Court as long as his action is pending; his failure to do so may result in the dismissal of this action for failure to prosecute and failure to follow Court orders and directives; and it is further
Under this Court's rules, an unrepresented litigant is under a duty to inform the Court of any address changes in writing. L.R. 10.1(c)(2). Specifically, Plaintiff was ordered to “ promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; his failure to do so may result in the dismissal of this action. ” (Dkt. No. 13 at 20.) Plaintiff demonstrated that he understood this requirement and its importance when he updated his address with the Court on January 7, 2022, and June 23, 2022. (See Dkt. Nos. 28, 32.)
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with Local Rules, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009); and it is further
ORDERED that the Clerk serve a one-time COURTESY COPY of this Report Recommendation and Order, unpublished decisions, and a change of address form on Plaintiff at Elmira Correctional Facility, as well as serving Plaintiff at the address on the docket.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date of the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.