Opinion
9:20-CV-0665 (MAD/TWD)
04-26-2021
JAMES R. MERCER, JR., Plaintiff, v. M. KINDERMAN, Defendants.
NICHOLAS LUKE ZAPP, ESQ. Assistant Attorney General JAMES R. MERCER, JR. Plaintiff, pro se LETITIA JAMES Attorney General of the State of New York Counsel for Defendants
NICHOLAS LUKE ZAPP, ESQ. Assistant Attorney General
JAMES R. MERCER, JR. Plaintiff, pro se
LETITIA JAMES Attorney General of the State of New York Counsel for Defendants
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
James R. Mercer, Jr., (“Plaintiff”), a former innate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this pro se civil rights action pursuant to 42 U.S.C. § 1983, asserting his constitutional rights were violated at Marcy Correctional Facility (“Marcy”). (Dkt. No. 1.) The Honorable Mae A. D'Agostino, United States District Judge, reviewed the complaint in accordance with 28 U.S.C. § 1915, and found Plaintiff's Eighth Amendment medical indifference and First Amendment retaliation claims against Dr. Shehab Zaki, Nurse Administrator Colleen Coppola, Deputy Superintendent for Programs Mark Kinderman, and Deputy Superintendent for Administration Daniel Crossway (collectively, “Defendants”) required a response. (Dkt. No. 5.)
Generally, Plaintiff alleges Zaki and Coppola were deliberately indifferent to his serious medical needs and retaliated against him for filing grievances and complaints when they issued and revoked Medical Permits that were inconsistent with his “disabling medical conditions.” (Dkt. No. 1 at ¶¶ 173-79, 190-95.) He claims Kinderman and Crossway acted with deliberate indifference and retaliated against him for filing grievances when they allowed him to be assigned to programs contrary to his Medical Permits and disabling medical conditions. Id. at ¶¶ 180-85, 190-95.
Rather than answering Plaintiff's complaint, Defendants now move to dismiss the action for failure to state a claim. (Dkt. No. 23.) Plaintiff opposed the motion. (Dkt. No. 25.) This motion was referred to this Court for a Report-Recommendation. For the reasons that follow, the Court recommends that Defendants' motion be denied.
I. DISCUSSION
A. Background
On March 12, 2019, Lieutenant Whitmore told Plaintiff that he would no longer be employed as a clerk in the Office of Mental Health and directed him to report to “Lawns & Grounds” in the morning. (Dkt. No. 1 at ¶¶ 6-9.) On March 14, 2019, Plaintiff reported the events that transpired with Whitmore to his mother. Id. at ¶ 11. Plaintiff's mother contacted DOCCS and the Office of Special Investigations (“OSI”) and lodged a formal complaint. Id. Plaintiff was interviewed in relation to the OSI complaint. Id. at ¶ 12.
All claims against Whitmore were dismissed without prejudice on initial review. (Dkt. No. 5.)
On March 14, 2019, Plaintiff received an undated Medical Permit signed by Zaki with the restriction, “[n]o lawns and grounds.” Id. at ¶ 10. Nine days later, on March 25, 2019, Plaintiff received another Medical Permit issued by Zaki, indicating “[m]ay work lawns and grounds. Not able to operate heavy equipment.” Id. at ¶ 14. Plaintiff sought an explanation regarding the alteration of the Medical Permit and was advised by a nurse that, “someone called Medical to ask why he was not able to work L&G and there was a conversation between [Coppola] and Dr. Zaki. Dr. Zaki determined [sic] no reason for Plaintiff's inability to work L&G, resulting in the new Permit.” Id. at ¶ 16.
From April 2019 until May 2019, Plaintiff wrote letters to Kinderman and other officials objecting to his removal from his clerk position and his placement in Lawns & Grounds. Id. at ¶¶ 8, 20, 28. Kinderman responded, “[m]edical has advised me that you are clear to be assigned to work in either Food Service [or] inside Lawns and Grounds. You will be called out to Program Committee next week for a review of a possible change of assignment.” Id. at ¶ 30.
On May 21, 2019, Plaintiff mailed a letter to DOCCS' Chief Medical Officer complaining about his medical care for disabling medical conditions and issues with programming. Id. at ¶ 32. In response, Crossway interviewed Plaintiff and stated, “[s]o now your [sic] out of Lawns and Grounds, your [sic] satisfied with your medical care?” Id. at ¶ 33. Plaintiff responded, “Yes.” Id. Coppola also provided a written response to Plaintiff's letter and indicated, “[t]he appropriate medical care is being provided and the medical excuse is accurate according to your provider.” Id. at ¶ 35.
On May 28, 2019, Plaintiff met with Zaki. Id. at ¶ 36. Zaki issued a Medial Permit indicating that Plaintiff was unable to climb stairs or ladders/heights, and no pushing, pulling, bending, or shoveling activities (raking, mopping, sweeping, heavy outdoor work, etc.). Id.
Plaintiff also mailed a Request for Reasonable Accommodations seeking a mobility assistant, which Zaki and Kinderman denied. Id. at ¶¶ 37, 186.
On or around June 10, 2019, Plaintiff received a program sticker in the mail informing him that he was to begin “an a.m. module in Food Service-Non-Training.” Id. at ¶ 39. Plaintiff wrote to Kinderman claiming the programming conflicted with his medical restrictions and, in response, Kinderman advised, “[y]our current assignment was worked out with both Medical and Food Service staff keeping in mind your medical limitations.” Id. at ¶¶ 40, 44.
On June 27, 2019, Plaintiff discussed his current program assignment with Zaki. Id. at ¶ 47. Zaki told Plaintiff to display his Medical Permit if he was asked to perform a task that violated his restrictions. Id. Coppola provided a new Medical Permit, issued by Zaki, that included the restriction, “unable to stand for more than 20 minutes.” Id. at ¶¶ 36, 47.
In June 2019 and July 2019, Plaintiff sent letters to Kinderman advising him of the new restrictions and asking for an assignment that “allows participation consistent with medical restrictions.” Id. at ¶¶ 48, 57. Plaintiff claimed he was “a liability in the [m]ess [h]all” and requested an alternate assignment. Id. Kinderman responded that it was Plaintiff's responsibility to find an assignment in the mess hall that does not violate his medical limitations and accused Plaintiff of attempting to manipulate the situation to obtain his prior clerk position. Id. at ¶¶ 49, 59.
On July 22, 2019, Plaintiff told Zaki that working in the mess hall was contrary to his medical restrictions. Id. at ¶ 61. Zaki issued a new Medical Permit that indicated, “can not work [m]ess [h]all duty[.]” Id. The next day, Plaintiff was called to the infirmary and directed to bring his Medical Permit. Id. at ¶ 62. Coppola, after a meeting with Crossway, directed Plaintiff to surrender that Medical Permit and supplied him with a copy of the previously issued Medical Permit and stated, “[y]ou have to go back to work in the mess hall.” Id.
On August 6, 2019, Plaintiff reported to sick call and received a Medical Permit indicating, “no work in [m]ess hall may go to program.” Id. at ¶ 67. On August 12, 2019, during a meeting with Zaki, Plaintiff reiterated his complaints related to working in the mess hall. Id. at ¶ 68. Zaki issued a Medical Permit, effective August 2019 through January 2020, indicating, “[t]his inmate has been found to be: not eligible to work in the mess hall.” Id. On August 22, 2019, Plaintiff received a new Medical Permit from Zaki, effective August 2019 through February 2020, that indicated, “[t]his inmate has been found to be: eligible to work in the mess hall.” Id. at ¶ 73.
On August 28, 2019, Plaintiff mailed a second Request for Reasonable Accommodations, requesting the use of a pushcart and an assistant to load and unload from the commissary and package room. Id. at ¶¶ 76, 78. Plaintiff did not receive a response to the request. Id.
On September 23, 2019, Plaintiff began working in the mess hall. Id. at ¶ 83. On October 15, 2019, Zaki referred Plaintiff for an appointment with an orthopedist specialist for osteoarthritis in his hip. Id. at ¶ 94. Zaki also issued a temporary Medical Permit indicating that Plaintiff was ineligible for mess hall duty until November 2019. Id.
On October 22, 2019, Plaintiff reported to a scheduled meeting with Zaki and witnessed Zaki engaged in a conversation with Crossway. Id. at ¶ 97. Zaki then turned to Plaintiff and told him that the appointment was made in error, and that he would see Plaintiff after he saw an orthopedist. Id.
On November 15, 2019, Plaintiff received a Medical Permit issued by Zaki, effective November 2019 through May 2020, indicating that, “[t]his inmate has been found: eligible to work in the mess hall.” Id. at ¶ 105.
On December 11, 2019, Plaintiff wrote to officials, including Zaki and Crossway, complaining that his orthopedic consult had not been scheduled. Id. at ¶ 113.
On December 30, 2019, Plaintiff mailed a third Request for Reasonable Accommodations reiterating his request for the use of a pushcart. Id. at ¶ 120. The request was received on January 9, 2020, verified by Zaki, and denied. Id.
On January 6, 2020, during a meeting with Zaki, the doctor told Plaintiff, “since you are allowed to wipe down tables while sitting down, I do not see a problem with you working in the mess hall.” Id. at ¶ 121. Plaintiff objected and Zaki responded, “[t]ake it up with Albany.” Id.
On January 13, 2020, Plaintiff began working in the mess hall. Id. at ¶ 124. An officer told Plaintiff, “I don't know who you pissed off, but it is coming from the top.” Id. The officer gave Plaintiff directions and told him that the “top” was Crossway. Id.
From March 2020 until May 2020, Plaintiff continued to object to his assignment in the mess hall. Id. at ¶¶ 146-161. On May 27, 2020, Plaintiff received a program sticker informing him that his program assignment was changed to porter. Id. at ¶ 169.
B. Standard of Review
A defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense [and] where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal citation and punctuation omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears there are not “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In other words, a complaint which “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” does not suffice. Id. (citation omitted).
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
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.” See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly).
Additionally, while motions to dismiss are usually constrained to facts in the complaint, “in cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they ‘are consistent with the allegations in the complaint.'” Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y.2004) (quoting Donahue v. United States Dep't of Justice, 751 F.Supp. 45, 49 (S.D.N.Y.1990)), vacated in part on other grounds, 317 F.Supp.2d 160 (N.D.N.Y.2004). Specifically, a pro se plaintiff's memorandum in opposition to a motion to dismiss should be seen as effectively amending the complaint, so far as there is no contradiction. Cusamano v. Sobek, 604 F.Supp.2d 416, 461 (N.D.N.Y. 2009); see also Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (“[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)).
Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where “[t]he problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Id.
C. Analysis
1. Deliberate Indifference
The Eighth Amendment protects prisoners from “cruel and unusual punishment” at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). This includes punishments that “involve the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). With respect to claims that job assignments are inappropriate given an inmate's medical condition, courts apply the standards for medical care. See Cooke v. Stern, No. 9:07-CV-1292 (GLS/ATB), 2010 WL 3418393, at *6 (N.D.N.Y. Aug. 2, 2010); see also Atkinson v. Fischer, No. 9:07-cv-368 (GLS/GHL), 2009 WL 3165544, at *11 (N.D.N.Y. Sept. 25, 2009) (applying Eighth Amendment standards for medical care in analyzing claim that plaintiff was assigned to a prison job that was inappropriate given his medical condition).
To state a claim for deliberate indifference to a serious medical need, a plaintiff's claim must satisfy both objective and subjective elements. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). First, the alleged deprivation “must be, in objective terms, sufficiently serious.” Id. (quotations and citations omitted). “Second, the charged official must act with a sufficiently culpable state of mind.” Id.
Under the objective element, the inmate's medical need or condition must be “a serious one.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Factors relevant to the seriousness of a medical condition include whether “a reasonable doctor or patient would find [it] important and worthy of comment, ” whether the condition “significantly affects an individual's daily activities, ” and whether it causes “chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citations omitted).
Under the subjective element, the defendant must act “with a sufficiently culpable state of mind.” Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2013) (citation omitted). “Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.” Hathaway, 37 F.3d at 66 (citation omitted). “Prison officials are not obligated to provide inmates with whatever care the inmates desire. Rather, prison officials fulfill their obligations under the Eighth Amendment when the care provided is ‘reasonable.'” Jones v. Westchester Cty. Dept. of Corr., 557 F.Supp.2d 408, 413 (S.D.N.Y. 2008) (citing Salahuddin, 467 F.3d at 280) (other citation omitted).
Here, construed liberally, Plaintiff alleges Zaki and Coppola were deliberately indifferent to his serious medical needs when they issued and revoked Medical Permits that were inconsistent with his “disabling medical conditions.” (Dkt. No. 1 at ¶¶ 173-79.) He also claims Kinderman and Crossway acted with deliberate indifference when they allowed him to be assigned to programs contrary to his Medical Permits and “disabling medical conditions.” Id. at ¶¶ 180-85.
Defendants argue Plaintiff's Eighth Amendment medical indifference claims must fail because he has not shown an objectively serious medical need. (Dkt. No. 23-1 at 7.) According to Defendants, Plaintiff's verbose complaint does very little to describe his underlying medical conditions, which stems from “osteoarthritis” in his “right hip joint” and an unspecified spinal condition. Id.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
To be sure, as this Court has already observed, the complaint contains few facts related to Plaintiff's medical condition or any actual diagnosis. (See Dkt. No. 5 at 12.) Plaintiff has plead that he suffered from osteoarthritis and other orthopedic issues related to his right hip that required treatment with a specialist, an MRI, and resulted in Plaintiff receiving Medical Permits with various restrictions. (Dkt. No. 1 at ¶¶ 10, 14, 36, 47, 61, 67, 68, 73, 80, 84, 88, 98, 94.)
In response to Defendants' motion, Plaintiff has, inter alia, attached copies of the Medical Permits, along with medical records, indicating that he suffered from “chronic pain” related to his right hip and spinal conditions. (See generally Dkt. No. 25.) Specifically, on September 17, 2019, diagnostic imaging of his right hip showed “Severe osteoarthritis in the right hip joint with similar findings on the left. This is associated with a superior labral tear and a large complex perilabral cyst associated with a tear.” Id. at 17 (Exhibit A). On March 11, 2020, Mitchell Rubinovich, M.D., observed that Plaintiff “has severe pain which is present all the time. He has an MRI which shows severe osteoarthritis of the right hip. . . . I think that he needs to see one of the orthopedic surgeons in the system who does total hip arthroplasty for assessment. . . . In the interim, it would be best if we could limit his ambulation as much as possible.” Id. at 19 (Exhibit B). On March 23, 2020, Plaintiff “received the use of a wheelchair.” Id. at 8. Thereafter, Plaintiff was for referred for evaluation by an orthopedic surgeon based on subjective complaints of “5-6 year of pain that has increased. Prolonged activity = increased pain. No relief [with] OTC meds, injections, PT.” Id. at 8-9 see also id. at 25-1 at 5-7 (Exhibit E). The “ortho clinic” also noted “severe right hip pain making ambulation and ADL's very difficult.” (Dkt. No. 25 at 9; see also Dkt. No. 25-1 at 7.)
Additionally, on October 18, 2018, a MRI Spine radiology report for “chronic low back pain, ” showed “Multilevel discogenic changes and related findings as described above[, ]” including, but not limited to, mild central canal stenosis at the L1-2 level, flatting and straightening of the anterior thecal sac with mild central canal stenosis at the L2-3 level, broad based bulge compressing L3 nerve root, moderate central canal stenosis at the L3-4 level, mild bilateral foraminal narrowing at the L4-5 level, broad based annular bulge compressing the exited L5 nerves, and mild bilateral foraminal stenosis at ¶ 5-S1 level. (Dkt. No. 25-1 at 9-10 (Exhibit F); see also Dkt. No. 25 at 8-11.)
Courts have found similar arthritic hip problems and chronic pain to be objectively serious at the motion to dismiss stage. See Bown v. Defrank, No. 06-CV-2235 (AJP), 2006 WL 3313821, at *22 (S.D.N.Y. Nov. 15, 2006) (arthritic hip); Rhames v. Fed. Bureau of Prisons, No. 00-CV-4338, 2002 WL 1268005, at *6 (S.D.N.Y. June 6, 2002) (arthritic hip); see also Guarneri v. Hazzard, No. 06-CV-0985, 2008 WL 552872, at *6 (N.D.N.Y. Feb. 27, 2008) (“[s]evere back pain, especially if lasting an extended period of time, can amount to a ‘serious medical need' under the Eighth Amendment”).
Upon review, the facts in Plaintiff's opposition memorandum and exhibits are consistent with the facts stated in the complaint related to Plaintiff's “disabling medical condition, ” and, therefore, the additional information may be considered when deciding this motion to dismiss. See Cusamano, 604 F.Supp.2d at 461. On this record, the Court finds Plaintiff has alleged sufficient facts to show that he suffered from a “serious medical need” which satisfies the objective prong of the deliberate indifference analysis. See Brock, 315 F.3d at 162-63.
Therefore, the Court recommends that Defendants' motion to dismiss Plaintiff's deliberate indifference claims be denied.
2. Retaliation
“To prevail on a First Amendment retaliation claim, an inmate must establish ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected conduct and the adverse action.'” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). The plaintiff must establish that “the protected conduct was a substantial or motivating factor” behind the retaliatory action. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). The Second Circuit has warned that “courts must approach prisoner claims of retaliation with skepticism and particular care.” Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). This is true because given the nature of a retaliation claim they are “easily fabricated” and as a result “virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act.” Dawes v. Walker, 239 F.3d at 491.
Here, construed liberally, Plaintiff claims (1) Zaki and Coppolla issued and revoked Medical Permits that were inconsistent with his disabling medical conditions in retaliation for filing grievances and complaints; and (2) Kinderman and Crossway assigned him to programs that were inconsistent with his disabling medical conditions in retaliation for filling grievances. (Dkt. No. 1 at ¶¶ 190-95.) Defendants argue Plaintiff's claims of retaliation fail because he has not stated any of the necessary elements. (Dkt. No. 23-1 at 8-9.) Under the applicable standards, the Court finds Plaintiff's allegations state viable retaliation claims against Defendants.
As to the first element, it is well-settled the filing of grievances is a constitutionally protected activity under the First and Fourteenth Amendments. Graham, 89 F.3d at 80 (citing Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)). The filing of a letter of complaint is also protected conduct. See Carl v. Dirie, 9:09-CV-0724 (GTS/RFT), 2010 WL 3338566, at *5 (N.D.N.Y. Mar. 29, 2010). Here, Plaintiff filed ten grievances, between March 2019 and November 2019, against Zaki, Coppola, and Kinderman related to his Medical Permits, medical treatment, programming, and requests for accommodations. (Dkt. No. 1 at ¶¶ 17, 27, 34, 42, 54, 65, 66, 74, 77, 99, 104.) Plaintiff also forwarded numerous letters to Kinderman, Crossway, and other officials, related to the aforementioned issues. Id. at ¶¶ 8, 28, 31, 32, 40, 43, 48, 50, 56, 57, 64, 113. Thus, at this juncture, and contrary to Defendants' assertions, Plaintiff has sufficiently plead facts suggesting that he engaged in protected conduct.
With respect to the second element, the Second Circuit has defined “adverse action, ” in the prison context, as “retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.'” Gill, 389 F.3d at 381 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). The test is an objective one, and does not depend on whether the plaintiff himself was in fact deterred from continuing to file grievances. Id. As noted, Plaintiff claims Defendants took two retaliatory actions against him: (1) Zaki and Coppola issued Medical Permits that were inconsistent with his medical conditions and revoked properly issued Medical Permits; and (2) Kinderman and Crossway assigned him to work programs that were inconsistent with his medical conditions. At this juncture, Plaintiff has sufficiently plead facts suggesting adverse action. See Burton v. Lynch, 664 F.Supp.2d 349, 367 (S.D.N.Y. 2009) (“[I]t is plausible that a denial of medical evaluation, treatment, and adequate pain medication would suffice to deter a similarly situated individual of ordinary firmness from filing a constitutionally protected grievance against a prison doctor.”); Arriaga v. Gage, No. 16-CV-1628, 2018 WL 1750320, at *10 (S.D.N.Y. April 6, 2018) (holding that the plaintiff's numerous allegations that prison doctor interfered with his medical passes, outright denied his requests for treatment recommended by another doctor, and denied him any treatment while forcing him to wait at sick call once a week for two months, were sufficient to state an adverse action); Brandon v. Kitner, 938 F.3d 21, 40 (2d Cir. 2019) (holding that the removal of medical dietary restrictions would deter an inmate from filing grievances); see also Vega v. Lareau, No. 9:04-CV-0750 (GTS/ATB), 2010 WL 2682307, at *8 (N.D.N.Y. Mar. 16, 2010) (“A job reassignment or termination can under certain circumstances constitute adverse action necessary to support a claim of retaliation.”); Chavis v. Struebel, 317 F.Supp.2d 232, 238 (W.D.N.Y. 2004) (“assigning the inmate a less desirable work assignment satisfies the adverse action requirement”).
As to the third element, a plaintiff can establish a causal connection that suggests retaliatory intent by showing that his protected activity was close in time to the complained-of adverse action. See Espinal v. Goord, 558 F.3d at 129 (citations omitted) (noting the court must exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases). While there is no “bright line” defining the limits of the temporal relationship, the interval between a protected activity and an adverse action that results in a finding of retaliation is generally no more than several months. Burroughs v. Petrone, 138 F.Supp.3d 182, 203 (N.D.N.Y. 2015); Ashok v. Barnhart, 289 F.Supp.2d 305, 314 (E.D.N.Y. 2003). Here, the temporal connection between Plaintiff's grievances and complaints and the issuing and revoking of Medical Permits and job reassignments is “sufficient to support an inference that the protected conduct played a substantial part in the adverse action, ” see Baskerville, 224 F.Supp.2d at 732, for purposes of surviving a Rule 12(b)(6) motion.
Therefore, the Court recommends that Defendants' motion to dismiss Plaintiff's retaliation claims be denied.
II. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court finds Plaintiff has plausibly alleged deliberate indifference and retaliation claims against Defendants. However, the Court expresses no opinion as to whether the claims would survive a properly filed motion for summary judgment.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 23) be DENIED; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).