Opinion
9:15-cv-01051 (BKS/TWD)
12-05-2016
ALPHEAUS DAILEY, JR., Plaintiff, v. JOSHUA FULLER, MS. IRIVING, Defendants.
APPEARANCES: ALPHEAUS DAILEY, JR. also known as Alphaeus Daily, Jr. 13-B-1253 Plaintiff, pro se Franklin Correctional Facility P.O. Box 10 Malone, NY 12953 ROBERT A. DURR, ESQ. ONONDAGA COUNTY ATTORNEY Counsel for Defendants Onondaga County Department of Law John H. Mulroy Civic Center 421 Montgomery St., 12th Floor Syracuse, NY 13202 OF COUNSEL: CAROL L. RHINEHART, ESQ. Deputy County Attorney
APPEARANCES: ALPHEAUS DAILEY, JR.
also known as Alphaeus Daily, Jr.
13-B-1253
Plaintiff, pro se
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953 ROBERT A. DURR, ESQ.
ONONDAGA COUNTY ATTORNEY
Counsel for Defendants
Onondaga County Department of Law
John H. Mulroy Civic Center
421 Montgomery St., 12th Floor
Syracuse, NY 13202 OF COUNSEL: CAROL L. RHINEHART, ESQ.
Deputy County Attorney THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT AND RECOMMENDATION
I. INTRODUCTION
Presently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 16.) The motion has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3(c) by the Honorable Brenda K. Sannes, United States District Judge.
Pro se Plaintiff Alpheaus Dailey, Jr., is an inmate in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), and is currently housed at the Franklin Correctional Facility ("Franklin"). (See Text Entry 11/04/2016.) Plaintiff commenced this civil rights action pursuant to pursuant to 42 U.S.C. § 1983 on September 27, 2015. (Dkt. No. 1.) The allegations in Plaintiff's complaint relate to Plaintiff's previous confinement at the Onondaga County Justice Center in 2012. Id. at 4-5.
It appears DOCCS has inadvertently transposed two letters of Plaintiff's first name. (See Dkt. No. 1.)
Page references to documents identified by docket number are to the page number assigned by the Court's CM/ECF electronic docketing system.
Plaintiff's claim for medical indifference against Deputy Joshua Fuller ("Fuller") and Deputy Ms. Iriving ("Irving") survived initial review pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). (Dkt. No. 4 at 8.) Defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that: (1) Plaintiff has failed to exhaust his administrative remedies; and (2) Defendants are entitled to judgment as a matter of law. (Dkt. No. 16-11 at 4-11.) Plaintiff has not opposed the motion or sought additional time within which to do so. For the reasons explained below, the Court recommends granting Defendants' motion for summary judgment and dismissing the complaint in its entirety.
Although Plaintiff names Deputy Ms. Iriving as a Defendant, her surname is correctly spelled "Irving." (See Dkt. Nos. 7 and 8.) The Court will use the correct spelling of Defendant's surname name throughout the Report and Recommendation.
The Court sua sponte dismissed Plaintiff's "failure to protect" claim and all claims against Sheriff Kevin Walsh and Chief Administrative Officer Esteben for failure to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). (Dkt. No. 4 at 5-8.)
II. FACTUAL BACKGROUND
In his verified complaint, Plaintiff claims that on or about September 12, 2012, a seven-inch bolt fell from the gymnasium ceiling at the Onondaga County Justice Center, striking him on the head. (Dkt. No. 1 at 4.) Plaintiff was knocked unconscious. Id. While Plaintiff was unconscious "for a few seconds," witnesses explained to Fuller and Irving, the supervising deputies, what had happened to Plaintiff. Id. Thereafter, Fuller and Irving questioned Plaintiff about the incident and Plaintiff explained what had happened to the best of his abilities. Id.
Plaintiff's complaint is properly verified under 28 U.S.C. § 1746. (See Dkt. No. 1 at 8.) See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with § 1746).
Fuller and Irving then "inform[ed]" Plaintiff to return to his cell. Id. at 4-5. Plaintiff "was place[d] on bed rest, the next day to await medical attention, which left [Plaintiff] without medical attention for a whole 24 hours while [he] sat in pain." Id. at 5. After the incident, Plaintiff had a continuous headache, blurred vison, weakness, and was vomiting in his cell. Id. Because Plaintiff kept complaining, Plaintiff was finally seen by a nurse at one o'clock in the morning, and was told he had a concussion. Id.
Although not entirely clear from the complaint, it appears Plaintiff alleges the incident occurred around 6:00 p.m. (See Dkt. No. 1 at 4).
Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs. Id. at 4-6. More specifically, Plaintiff claims that Fuller did not "pull or push [the] emergency button when [the] injury took place" and Irving "did not call emergency medical attention which lead [sic] to [Plaintiff] having continuous pain and vomiting all nite [sic]." Id. at 4-5.
According to Defendants, on September 15, 2012, at approximately 5:25 p.m., while Fuller was supervising Unit 3A, Plaintiff approached the Deputy's Station holding a bolt and washer in one hand, while rubbing his head with his other hand. (Dkt. No. 16-7 at ¶ 9.)
Plaintiff informed Fuller that while he was in the recreation yard playing basketball, the bolt fell from the basketball hoop, striking him on the head. Id. at ¶¶ 7-10. Plaintiff told Fuller his head hurt and asked to see the nurse. Id. at ¶ 12. Fuller did not observe an open would or any blood coming from Plaintiff's head. Id. Fuller contacted the medical unit, speaking to Julianne Seaton ("Nurse Seaton"). Id. at ¶ 13. Nurse Seaton advised she would come to the pod to assess Plaintiff. Id.
Seven minutes later, at 5:32 p.m., Nurse Seaton arrived to evaluate Plaintiff. Id. at ¶ 15. Nurse Seaton provided Plaintiff with an ice pack and determined no further medical attention was required. Id. According to Fuller, Plaintiff appeared satisfied after receiving the ice pack from Nurse Seaton. Id. Pursuant to customary practice, Fuller documented Nurse Seaton's presence on the unit in the facility's log book, and generated an Incident Report documenting Plaintiff's incident. Id.
In addition, Fuller went to the recreation yard and observed that a bolt was missing from the piece of wood that holds the basketball hoop to the wall. (Dkt. No. 16-7 at ¶ 14.) Fuller gave the bolt and washer, along with the Incident Report to his supervisor, Lieutenant Raus. Id. at ¶ 17. Fuller also forwarded a maintenance request through the computer system for repair of the basketball hoop. Id.
When Irving returned from her evening meal break to resume supervising Unit 3A, Fuller briefed Irving on the incident involving Plaintiff. (Dkt. No. 16-10 at ¶ 11.) Specifically, Fuller told Irving that Plaintiff stated a bolt fell from a piece of wood that was holding the basketball hoop to the wall in the large recreation yard and that Plaintiff said the bolt struck him on the head. Id. Fuller informed Irving that a nurse evaluated Plaintiff, and that Plaintiff was given an ice pack and did not require further medical attention. Id. at ¶ 12.
Thereafter, sometime around 6:00 p.m., while Irving was touring the pod, Plaintiff told Irving that his head hurt. Id. at ¶ 13. Irving called the medical unit and spoke to Nurse Seaton. Id. Irving informed Nurse Seaton that Plaintiff was complaining his head hurt. Id. Nurse Seaton told Irving she would notify a doctor. Id. Irving documented this information in the facility's log book. Id. Approximately ten minutes later, Nurse Seaton called Irving and stated that she had contacted the doctor and Plaintiff would be reevaluated by medical staff and given pain medication later that evening during the routine medicine pass. Id. at ¶ 14. Irving relayed this information to Plaintiff. Id. at ¶ 15. According to Irving, Plaintiff seemed irritated. Id.
Typically nursing staff arrives on the unit sometime between 8:00 p.m. and 9:00 p.m. to distribute medication to those inmates who had doctor's orders to receive medication. (Dkt. No. 16-10 at ¶ 14.)
Around 7:00 p.m., Irving observed Plaintiff lying on his bunk rocking his foot up and down. Id. at ¶ 16. Irving documented this information in the facility's log book. Id. Approximately ten minutes later, Plaintiff approached Irving at the Deputy's Station, stating his head and face hurt and that his face felt numb. Id. at ¶ 17. Irving called the medical unit and spoke to Nurse Seaton again. Id. Nurse Seaton stated she would examine Plaintiff. Id.
At approximately 7:19 p.m., Plaintiff was reexamined by Nurse Seaton. Id. at ¶ 18. Nurse Seaton provided Plaintiff with two more ice packs and indicated that no further medical attention was necessary. Id. Irving documented Nurse Seaton's presence in the facility's log book. Id. At 8:25 p.m., nursing staff entered Unit 3A to distribute medication. Id. at ¶ 19. Irving declares the nurse was present on the unit for approximately twenty-five minutes, and Plaintiff received pain medication from the nurse during the medication pass. Id.
At 9:20 p.m., Fuller returned to supervise Unit 3A, relieving Irving for a ten minute break. (Dkt. No. 16-7 at ¶ 20.) Fuller does not recall having a conversation with Plaintiff during this time, nor does Fuller recall Plaintiff issuing any complaints during this time. Id. At 9:30 p.m., Irving returned from her break. Id. at ¶ 21. Fuller declares he did not return to Unit 3A the remainder of his shift, which ended at 11:00 p.m., and does not recall having any further interaction with Plaintiff in the days that followed. Id. Fuller also declares he has no knowledge of Plaintiff losing consciousness after the incident or vomiting in his cell. (Dkt. No. 16-7 at ¶ 22.) Neither Plaintiff, nor any other inmate, informed Fuller that Plaintiff had lost consciousness. Id. at 23. Fuller states Plaintiff never told him that his vision was blurry, he was weak, or had vomited. Id.
At approximately 10:32 p.m., Nurse Seaton returned to Unit 3A to examine Plaintiff. Id. (Dkt. No. 16-10 at ¶ 21.) At 10:55 p.m., Deputy Peck arrived at Unit 3A to assume responsibility of supervising the inmates for the next shift. Id. at ¶ 23. Irving briefed Deputy Peck on the activities and the status of the inmates, including Plaintiff's incident. Id. at ¶ 23. At 11:00 p.m., Irving completed her shift, and she had no further contact or involvement with Plaintiff. Id. at ¶ 24.
Irving declares that during her shift, she conducted tours of the unit every thirty minutes, and did not observe Plaintiff vomiting at any time in his cell, nor did Plaintiff report that he had vomited. Id. at ¶ 22. Irving further states that had she been aware that Plaintiff had vomited, she would have reported this information to the medical unit and would have documented the incident in the facility's log book. Id.
III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). Indeed, "[a]t the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted); see also Smith v. Woods, 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006). "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). Even where a complaint or affidavit contains specific assertions, the allegations "may still be deemed conclusory if [they are] (1) 'largely unsubstantiated by any other direct evidence' and (2) 'so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.'" Woods, 2006 WL 1133247, at *3 & n.11.
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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 obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." 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)).
When a party fails to respond to a motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the moving party. See id.; Allen v. Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001); L.R. 7.1(b)(3).
IV. PLAINTIFF'S FAILURE TO COMPLY WITH L.R. 7.1(a)(3)
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). Here, Plaintiff has failed to respond to Defendants' Statement of Material Facts (Dkt. No. 16-5) as required under L.R.(a)(3). Where a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 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. See Artuz, 76 F.3d at 486. As set forth above, "[a] verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist[.]" Colon, 58 F.3d at 872 (2d Cir. 1995) (internal citations omitted); see also Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (same). Accordingly, the facts set forth in Defendants' Rule 7.1 Statement of Material Facts (Dkt. No. 16-15) are accepted as true as to those facts that are not disputed in Plaintiff's verified complaint. See Rosario v. Anson, No. 9:12-cv-1506 (BKS/CFH), 2015 WL 5692550, at *4 (N.D.N.Y. Sept. 28, 2015).
L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." But see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
The Court notified Plaintiff of the response deadline. (Dkt. No. 18.) Defendants provided Plaintiff with notice of the consequences of failing to response. (Dkt. No. 16 at 3.)
This Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute where a non-movant willfully fails to respond to a properly filed summary judgment motion. Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). However, 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 to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record in this case.
V. ANALYSIS
A. Exhaustion of Administrative Remedies
1. Legal Standard for Exhaustion
Under the Prison Litigation Reform Act of 1996 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
According to Mark Casselmon ("Casselmon"), a Sergeant employed with the Onondaga County Sherriff's Office, the Onondaga County Justice Center has a written policy for handling inmate complaints and grievances, which is set forth in Directive CUS-007 entitled "Inmate Grievances." (Dkt. No. 16-11 at ¶¶1, 4.) Every inmate entering the Onondaga County Justice Center receives an inmate handbook which sets forth the procedure for filing an inmate grievance. Id. at ¶ 5.
Directive CUS-007 complies with the minimum standards established by the New York State Commission of Correction. (Dkt. No. 16-11 at ¶ 4.) A copy is attached to Casselmon's affidavit as Exhibit A. (Dkt. No. 16-12.)
A copy of the Onondaga County Justice Center Handbook is attached to Casselmon's Affidavit as Exhibit B. (Dkt. No. 16-13.)
First, prior to filing a written grievance, an inmate must attempt to resolve his compliant with the housing pod deputy. Id. In the event that the housing pod deputy cannot resolve the complaint, the inmate may fill out a grievance form. Id. The deputy with whom the inmate addressed is required to fill out a portion of the grievance form. Id. The deputy will then notify a sergeant of the inmate's grievance. Id.
The sergeant will then attempt to resolve the inmate's complaint. Id. In the event that the sergeant is unable to resolve the complaint, the sergeant must fill out a portion of the grievance form, and then submit the grievance to a lieutenant for review. Id. If the lieutenant cannot resolve the complaint, the grievance form will be forwarded to the Grievance Coordinator. Id.
The Grievance Coordinator must either meet with the inmate or respond in writing within five business days of receipt of an inmate's grievance. Id. An inmate who is not satisfied with the Grievance Coordinator's response may appeal to the Chief Custody Deputy in writing. Id. That appeal must be made within two business days of receiving the Grievance Coordinator's response. Id. The Chief Custody Deputy must respond to the inmate's appeal within five business days of receiving the appeal. Id. Finally, if the inmate is not satisfied with the Chief Custody Deputy's decision, within three days of receipt of the unsatisfactory decision, the inmate may appeal to the New York State Commission of Correction. Id.
If a prisoner has failed to properly follow each of the applicable steps, he has failed to exhaust his administrative remedies and is barred from commencing a federal lawsuit. See Woodford, 548 U.S. at 93 (holding the PLRA requires "proper exhaustion" - "using all steps that the agency holds out, and doing so properly that the agency addressed the issues on the merits").
Because failure to exhaust is an affirmative defense, the defendant bears the burden of showing by a preponderance of the evidence that the plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 9:09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).
A prisoner's failure to exhaust may nonetheless be excused if administrative remedies were unavailable to him. As the Supreme Court recently clarified, "[a]n inmate . . . must exhaust available remedies, but need not exhaust unavailable ones." Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1858 (2016). To guide courts in this analysis, the Supreme Court identified "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of relief." Id. at 1859. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. Whether a plaintiff has exhausted his administrative remedies is a question of law to be decided by the court as a matter of law. See Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999).
2. Exhaustion Analysis
Plaintiff alleges that on or about September 15, 2012, while confined at the Onondaga County Justice Center, he was struck on the head by a large bolt that fell from the basketball hoop in the recreation yard of Pod 3A. (Dkt. No. 1 at 4-5.) Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs in violation of his constitutional rights. Id. More specifically, Plaintiff alleges Fuller failed to "pull or push [the] emergency button when [the] injury took place" and Irving "did not call emergency medical attention," which resulted in Plaintiff having continuous pain and vomiting throughout the night. Id. at 5. Plaintiff claims he was denied medical attention for "a whole 24 hours while [he] sat in pain." Id. According to Plaintiff, he was not seen by a nurse until one o'clock in the morning. Id. At that time, he was informed he had a concussion. Id.
Defendants argue Plaintiff failed to exhaust his administrative remedies regarding his medical indifference claim. (Dkt. No 16-15 at ¶ 28; Dkt. No. 16-16 at 6-7.) The Court agrees.
In support of their motion for summary judgment, Defendants submit the affidavit of Casselmon, who served as the Compliance Supervisor at the Onondaga County Justice Center from 2012 to 2014. (Dkt. No. 16-11 at ¶ 2.) In that capacity, Casselmon also served as the Grievance Coordinator and was responsible for ensuring that all written complaints filed by inmates were properly investigated and that all policies and procedures were followed at the Onondaga County Justice Center. Id. at ¶ 3. As the Grievance Coordinator, Casselmon maintained a Grievance Log for all submitted inmate grievances. Id. at ¶ 13.
According to Casselmon, Plaintiff was an inmate at the Onondaga County Justice Center on eight separate occasions between 2006 and 2013, including the period from August 17, 2012, through April 29, 2013. Id. at ¶ 14. Casselmon reviewed the Grievance Log for the relevant time period, which indicated Plaintiff filed one grievance (Number 12-349) dated September 18, 2012. Id. at ¶¶ 15-16. Plaintiff's grievance states in full:
Brief Description of the Grievance: "This grievance for lack of maintance of this Onondaga County Sheriff Building. Recently a big screw (drop off) come from ceiling and hit my head. Now I have problems."(Dkt. No. 16-14 at 2.)
Action Requested: "Check gym make sure nothing else is broken so, no one else gets hurt. Thank you."
Plaintiff's grievance was submitted to a deputy, sergeant, and watch commander. (See Dkt. No. 16-14 at 2.) Eventually it was received by the Grievance Coordinator. Id. at 3. On September 26, 2012, Casselmon accepted Plaintiff's grievance. Id. In so doing, Casselmon verified with the deputy about the missing screw (bolt), and confirmed that the recreational yard was checked before each shift. Id. Casselmon also placed a work order request to have maintenance check the basketball backboard in pod 3A. Id. Casselmon avers Plaintiff was satisfied with his response. (Dkt. No. 16-11 at ¶ 17.)
In this case, there is no record of Plaintiff filing an Inmate Grievance Form regarding a denial of medical care at the Onondaga County Justice Center. (Dkt. No. 16-11 at ¶ 18.) Although it is appropriate to afford pro se inmates a liberal grievance pleading standard, the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006). Consistent with this purpose, a prisoner must allege facts sufficient to alert corrections officials "to the nature of the claim," and "provide enough information about the conduct" at issue "to allow prison officials to take appropriate responsive measures." Singh v. Lynch, 460 F. App'x 45, 47 (2d Cir. 2012) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)).
As set forth above, Plaintiff's sole grievance makes no mention of delayed or inadequate medical care. (See Dkt. No. 16-14 at 2-3.) Plaintiff's failure to describe any problem in his grievance concerning the lack of medical treatment after the incident did not give the facility enough information to investigate the allegations against Fuller and Irving. Because Plaintiff's grievance contains no mention of inadequate or delayed medical care after the incident, the Court finds Plaintiff's claim for medical indifference has not been exhausted.
Even if Plaintiff's Inmate Grievance could be liberally construed as filing a grievance for medical indifference against Fuller and Irving, Casselmon avers Plaintiff was satisfied with his response. (Dkt. No. 16-11 at ¶ 17.) Had Plaintiff been unsatisfied with the Grievance Coordinator's response, in order to fully exhaust his administrative remedies, Plaintiff was required to submit an appeal to the Chief Custody Deputy in writing within two days of receipt of Casselmon's Response. See id. at ¶ 11. Moreover, had Plaintiff had been unsatisfied with the Chief Custody Deputy's response, Plaintiff was required to appeal to the New York State Commission of Correction. Id. Here, Plaintiff did not appeal to the Chief Custody Deputy. (See Dkt. No. 16-14 at 3.) Thus, in the alternative, Plaintiff's grievance for medical indifference was not properly exhausted before commencing this action. See Woodford, 548 U.S. at 90 (holding the PLRA requires "proper exhaustion" - "using all steps that the agency holds out, and doing so properly that the agency addressed the issues on the merits").
In light of the above, the Court finds Defendants have "adequately supported the affirmative defense of failure to exhaust." See, e.g., Bennett v. Onua, No. 09-cv-7227 (SAS), 2010 WL 2159199, at *3 (S.D.N.Y. May 26, 2010) (finding that defendants discharged their initial burden on summary judgment by producing affidavits that a search of prison records indicated that no grievances were ever filed). Furthermore, there is no evidence that administrative remedies were unavailable to Plaintiff. It is undisputed there was a grievance program in place at the Onondaga County Justice Center, which was set forth in the inmate handbook. (Dkt. No. 16-15 at ¶ 25.) There is no evidence that the grievance procedure operated as a "simple dead end" or that it was "so opaque" it was incapable of use. To the contrary, Plaintiff utilized the administrative procedure to file a grievance concerning the lack of maintenance at the facility, which was addressed to Plaintiff's apparent satisfaction. (Dkt. No. 16-14 at 2-3.) Lastly, the record is devoid of evidence that Defendants "thwarted" Plaintiff "from taking advantage of a grievance process through machination, misrepresentation, or intimidation." See Ross, 136 S. Ct. at 1860. Thus, Plaintiff's medical indifference claim against Fuller and Irving has not been exhausted.
Based upon the foregoing, the Court recommends granting Defendants' motion for summary judgment for failure to exhaust available administrative remedies.
B. Deliberate Indifference to Medical Needs
Even if Plaintiff had properly exhausted his medical indifference claim, the Court would still recommend summary judgment for Defendants on the merits. Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure, among other things, that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526- 27 (1984)). To state a claim for denial of medical care, a prisoner must demonstrate (1) a serious medical condition, and (2) deliberate indifference. Farmer, 511 U.S. at 834-35; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Upon initial review, the Court explained that it is unclear whether Plaintiff was a pretrial detainee or was serving a sentence at the time of the events alleged in the complaint. (Dkt. No. 4 at 8 n.6) ("If Plaintiff was confined a the Onondaga County Justice Center as a pretrial detainee, he "received[d] protection against mistreatment at the hands of prison officials under . . . the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment.") (quoting Caiozzo v. Koreman, 581 F.3d 63, (2d Cir. 2009)). Neither the Supreme Court nor the Second Circuit has yet addressed the possible implications of Kingsley v. Hendrickson, ___ U.S. ___, 135 S. Ct. 2466, 2470 (2015) for deliberate indifference medical claims brought by pretrial detainees. District Courts in this Circuit which have addressed this issue have concluded that the Eighth Amendment standards apply. (Dkt. No. 4 at 8 n.6 (collecting cases)). As a result, the Court will follow existing Second Circuit precedent and analyze Plaintiff's deliberate indifference medical claim under both a subjective and objective standard.
Although medical deliberate indifference claims are most often asserted against medical personnel, non-medical personnel may also be held liable for deliberate indifference to medical needs where a plaintiff proves that "prison personnel intentionally delayed access to medical care when the inmate was in extreme pain and has made his medical problem known to the attendant prison personnel." Hodge v. Coughlin, No. 92 Civ. 0622(LAP), 1994 WL 519902, at *11 (S.D.N.Y. Sept. 22, 1994) (citations and internal quotation marks omitted), aff'd, 52 F.3d 310 (2d Cir. 1995) (table); Baumann v. Walsh, 36 F. Supp. 2d 508, 512 (N.D.N.Y. 1999) (same); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (noting that deliberate indifference may be manifested when prison guards intentionally deny or delay access to medical care).
Here, Defendants contend Plaintiff cannot demonstrate they were deliberately indifferent to Plaintiff's serious medical condition. (Dkt. No. 16-16 at 7-11.) The Court agrees.
Plaintiff claims Defendants showed deliberate indifference to his serious medical needs by failing to "pull or push" the emergency button when the injury took place, and failing to "call emergency medical attention," causing Plaintiff to have "continuous pain and vomiting" all night. (Dkt. No. 1 at 4-5.) However, the record belies Plaintiff's claims.
The record evidence demonstrates that on September 15, 2012, at approximately 5:25 p.m., Plaintiff approached the Deputy's Station in Unit 3A informing Fuller that a large bolt fell out of the basketball hoop in the recreation yard striking him on the head. (Dkt. No. 16-15 at ¶¶ 9-10; Dkt. No. 16-9 at 2.) Plaintiff was holding a bolt and washer in one hand and rubbing his head with the other hand. (Dkt. No. 16-15 at 9.) Plaintiff asked to see a nurse; Fuller called the medical unit. (Dkt. No. 16-9 at 2; Dkt. No. 16-15 at ¶ 11.)
Nurse Seaton arrived at Plaintiff's housing unit at 5:32 p.m., approximately seven minutes after Fuller placed the call to the medical unit to assess Plaintiff's injury. (Dkt. No. 16-15 at ¶ 12.) Upon examination, Nurse Seaton found that Plaintiff had no change in mood/affect, he was alert and orientated, his pupils were equal and reactive to light, and his grips and gait were normal. Id. at ¶ 13. Nurse Seaton provided Plaintiff with an ice pack and informed Fuller that no further medical attention was necessary. Id. at ¶¶ 13-14. Fuller had no further interaction with Plaintiff concerning his medical needs. (Dkt. No. 16-6 at ¶¶ 19-21.)
The record establishes that Irving contacted the medical unit on two occasions after Plaintiff reported head pain and discomfort, which resulted in the issuance of two more ice packs, pain medication, and neurological checks of Plaintiff every four hours. (See Dkt. No. 16-15 at ¶¶ 16-23; Dkt. No. 17 at 37, 101-102; Dkt. No. 16-8 at 4-6.) Specifically, around 6:00 p.m., Plaintiff complained to Irving that his head hurt and Irving called the medical unit. (Dkt. No. 16-15 at ¶ 16.) Nurse Seaton indicated that she would contact the doctor. Id. Nurse Seaton informed Irving that she contacted Dr. Carlisle and received orders for Motrin and instruction to conduct neurological checks of Plaintiff every four hours. Id. at ¶ 18. At approximately, 6:25 p.m., Nurse Seaton told Irving that Plaintiff would be reassessed and provided with pain medication a little later in the evening. Id. Irving relayed this information to Plaintiff. Id.
In fact, the record evidence demonstrates every time Plaintiff had a documented health issue, he received medical care while at Onondaga County Justice Center. (See generally Dkt. No. 17.) Plaintiff's medical records from September 16, 2012, through April 2013, show Plaintiff used sick call effectively, and received care when requested. (See Dkt. No. 17 at 17-23-51). Further, a CT scan of Plaintiff's head on November 6, 2012, revealed no fracture or intracranial hemorrhage. Id. at 66. Plaintiff also received eye glasses. Id. at 56-57. --------
About thirty minutes later, around 7:00 p.m., Plaintiff approached Irving at the Deputy's Station stating that his head and face hurt and that his face was numb. Id. at ¶ 19. Irving again contacted the medical unit and Nurse Seaton arrived at approximately 7:19 p.m., to reevaluate Plaintiff. Id. at ¶ 20. Nurse Seaton provided Plaintiff with two more ice packs and indicated that no further medical attention was needed. Id. at ¶ 21. Plaintiff received pain medication sometime between 8:25 p.m. and 9:00 p.m. Id. at ¶ 22. At approximately 10:30 p.m., nursing staff conducted a neurological check of Plaintiff. Id. at ¶ 23. At 11:00 p.m., both Fuller and Irving ended their shifts and had no further contact with Plaintiff. Id. at 24.
Based on the foregoing, Defendants did not withhold medical care from Plaintiff or delay treatment of his serious medical condition. Every time Plaintiff complained of pain, Defendants appropriately responded to Plaintiff's complaints, and Plaintiff received treatment from medical personnel. As custody deputies, Fuller and Irving were entitled to rely on the opinions of the medical staff. See Rosario, 2015 WL 5692550, at *12 (supervisory official entitled to rely on the opinions of medical staff concerning the proper course of treatment) (citing Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 183 (N.D.N.Y. 1996) (collecting cases)).
Thus, Plaintiff's claim that despite informing Fuller and Irving of his serious medical condition, Plaintiff was "left . . . without medical attention for a whole 24 hours while [he] sat in pain," and that he did not see a nurse until one o'clock in the morning, is wholly contradicted by the record, and is insufficient to create a material issue of fact. See, e.g., Warren v. Corcoran, No. 9:09-CV-1146 (DHN/ATB), 2011 WL 5599587, at *6 n.12 (N.D.N.Y. Oct. 20, 2011) ("Plaintiff's conclusory claims to the contrary, which are flatly contradicted by medical records documenting the care he received, are insufficient to create a material issue of fact with respect to his claims of deliberate indifference."); Brown v. White, 9:08-CV-200 (GLS/ATB), 2010 WL 985184, at *8 (N.D.N.Y. Mar. 15, 2010) (plaintiff's conclusory suggestion that defendant nurse completely refused to provide any medical attention on a particular date is insufficient to create a dispute of fact in the face of the sworn declaration and supporting documentary evidence in the record); Benitez v. Pecenco, 92 Civ. 7670 (DC), 1995 WL 444352, at *3 n.5, (S.D.N.Y. July 27, 1995) (conclusory claim that plaintiff was never issued medication was directly contradicted by medical records and was insufficient to create a factual dispute on that issue) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) ("mere conclusory allegations or denials are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case")).
In light of the above, no issue of fact exists as to whether Defendants were deliberately indifferent to Plaintiff's serious medical needs. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 451 (2d Cir. 1999) (affidavits based on conclusory allegations insufficient at summary judgment). Accordingly, the Court also recommends granting summary judgment for Defendants on the merits.
VI. FAILURE TO PROSECUTE
Lastly, the Court notes that this action could also be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190 (RSP/RWS), 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 19961). It is also well-settled that the term "these rules" in Rule 41(b) refers not only to the Federal Rules of Civil Procedure, but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006).
Courts consider a Rule 41(b) dismissal in light of five factors: (1) the duration of the plaintiff's failure to comply with the court order (or the court's procedural rules); (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Lucas v. Miller, 84 F.3d 532, 535 (2d Cir. 1996); Davis v. Citibank, N.A., 607 F. App'x 93, 94 (2d Cir. 2015).
As to the first factor, the Court notes that Local Rule 41.2(a) states that "the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution." N.D.N.Y.L.R. 41.2(a). In this case, a review of the docket reveals that Plaintiff has failed to take any action in this case for more than ten months. Plaintiff's motion for appointment of counsel dated January 8, 2016, which was denied without prejudice, was Plaintiff's last communication with the Court. (See Dkt. Nos. 14 and 15.) In further support of Plaintiff's lack of interest in pursuing this case, Plaintiff failed to respond to Defendants' motion for summary judgment. Thus, the Court finds that the first factor weighs in favor of dismissal.
"The Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction." Folk v. Rademacher, No. 00-CV-199S, 2005 WL 2205816, at *4, (W.D.N.Y. Sept. 9, 2005) (citing Martens v. Thomann, 273 F.3d 159, 180-81 (2d Cir. 2001)). In this case, the Court learned through publicly available records maintained by DOCCS that Plaintiff is currently housed at Franklin. (See Text Entry 11/04/2016.) The Clerk confirmed with inmate records at Franklin that Plaintiff arrived at their facility from Gowanda Correctional Facility ("Gowanda") on September 2, 2016. Id. Accordingly, this Court reminded Plaintiff that pursuant to the Local Rules, he was required to promptly notify the Court of any change of address. (See Text Order 11/04/2016.) Plaintiff was directed to file a change of address by November 30, 2016. Id. Plaintiff was notified that his failure to do so may result in sanctions including, but not limited to, a recommendation that this action be dismissed for failure to follow Court rules and directives. Id. The Court's November 4, 2016, Text Order was mailed to Plaintiff at both Franklin and Gowanda, neither of which were returned as undelivered to the Court. See id. Thus, the second factor also weighs in favor of dismissal. See e.g., Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) ("A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.").
The third factor is also satisfied as further delay is likely to prejudice Defendants. The events giving rise to Plaintiff's medical indifference claim occurred in September 2012. (See Dkt. No. 1 at 4-5.) This action was commenced in August 2015, and Defendants filed their answer more than one year ago. (Dkt. Nos. 1 and 8.) See, e.g., Georgiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (noting that passage of time would cause memories to fade). Moreover, Defendants filed their motion for summary judgment on July 25, 2016. (Dkt. No. 16.)
Under the circumstances, the Court finds that the need to alleviate congestion on the Court's docket would outweigh Plaintiff's right to receive a further chance to be heard in this case. It is the need to monitor and manage cases such as this that delay the resolution of other cases and contribute to the Second Circuit's relatively long median time to disposition for such civil rights cases. Finally, the Court has also carefully considered sanctions less drastic than dismissal and would find them to be inadequate under the circumstances.
In light of the above, the Court finds that Plaintiff has exhibited an apparent unwillingness to participate in this litigation. Accordingly, based upon Plaintiff's failure to comply with directives from the Court, and after considering the factors relevant to dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, the Court also recommends dismissal for failure to prosecute.
WHEREFORE, based on the findings above, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 16) be GRANTED and the complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report and Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: December 5, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge