Opinion
9:18-CV-77 (GLS/TWD)
03-06-2020
BRITTAIN J. PURCELLE, Plaintiff, v. JOHN THOMAS, et al., Defendants.
APPEARANCES: BRITTAIN J. PURCELLE Plaintiff, pro se 14-B-0600 Clinton Correctional Facility P.O. Box 2001 Dannemora, New York 12929 HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendants 300 South State Street, Suite 300 Syracuse, New York 13202 OF COUNSEL: WILLIAM E. ARNOLD, IV, ESQ. Assistant Attorney General
APPEARANCES: BRITTAIN J. PURCELLE
Plaintiff, pro se
14-B-0600
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929 HON. LETITIA JAMES
Attorney General for the State of New York
Counsel for Defendants
300 South State Street, Suite 300
Syracuse, New York 13202 OF COUNSEL: WILLIAM E. ARNOLD, IV, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
On January 18, 2018, Plaintiff Brittain J. Purcelle, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983") regarding alleged violations of his constitutional rights while he was housed at Auburn Correctional Facility ("Auburn"). (Dkt. No. 1.) Defendants and claims remaining following the District Court's initial review of the complaint are: (1) Eighth Amendment excessive force claim against Corrections Officer John Thomas ("Thomas"); (2) Eighth Amendment excessive force and failure to intervene claims against Corrections Officers John Does 1-3; (3) Eighth Amendment medical indifference claims against Nurse A. Hoppins ("Nurse Hoppins"), Dr. Pang Kooi ("Dr. Kooi"), and Nurse Doe; (4) Fourteenth Amendment due process claim against Hearing Officer Brian Bauersfeld ("Bauersfeld") and Director of Special Housing Unit ("SHU") Donald Venettozzi ("Venettozzi"); (5) New York state law claims for assault and battery against Thomas and John Does 1-3; and (6) New York state law claims for negligence against Nurse Hoppins, Dr. Kooi, and Nurse Doe. (Dkt. No. 11.) To date, Plaintiff has not moved to substitute an identified individual as a defendant in place of any Doe Defendant. (See Docket Report.)
Defendants now move for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 96.) Defendants seek dismissal of Plaintiff's Eighth Amendment claims against Nurse Hoppins and Dr. Kooi; Fourteenth Amendment claims against Bauersfeld and Venettozzi; state law claims for assault, battery, and negligence; and claims against the Doe Defendants for failure to prosecute. Id. Plaintiff submitted an untimely response to Defendants' motion, which the Court accepts and construes solely as a response in opposition to the motion for partial summary judgment, not as a discovery motion. (See Dkt. Nos. 103, 104, 106.) Defendants submitted a reply in further support of their motion. (Dkt. No. 107.) The Honorable Gary L. Sharpe, Senior United States District Judge, referred this motion to the undersigned for a report and recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
For the reasons that follow, the Court recommends Defendants' motion be granted.
I. FACTUAL BACKGROUND
A. January 21, 2015, Incident
On January 21, 2015, Plaintiff wanted to respond to the "early go back" call and return to his cell from the recreation yard at Auburn. (Dkt. No. 96-2 at 14.) Plaintiff sought to leave recreation early as he had recently fallen on icy stairs and was still experiencing pain in his hip and back. Id. According to Plaintiff's version of events, as he approached the entrance to A block, Thomas stopped Plaintiff and told him he was too late to take advantage of the early go back. Id. at 15. Plaintiff tried to explain to Thomas that he had just been released from the infirmary and was moving slowly, and that other inmates were still going inside. Id. Plaintiff found Thomas' response "[a]ggressive and angry" and wanted to file a grievance. Id. After Plaintiff looked at Thomas' badge to get his name, Thomas grabbed the back of Plaintiff's jacket and began pushing Plaintiff into A block. Id. at 16-17. Once inside, Thomas put Plaintiff into a pat-frisk position and then "punched [Plaintiff] in the back of [his] head." Id. at 18. Plaintiff fell to the floor and Thomas continued punching, kneeing, and kicking Plaintiff. Id. At least one or two other officers were present during the assault. Id. According to Thomas' version of events, Thomas was escorting Plaintiff when Plaintiff "turned and struck" Thomas "with both hands in the chest." (Dkt. No. 96-3 at 2-3.)
Citations to documents on the docket are to the pages the Court's CM/ECF electronic filing system automatically assigns. Paragraph references are used where the referenced document contains consecutively numbered paragraphs throughout.
Thomas told a sergeant who arrived on the scene Plaintiff had struck him. (Dkt. No. 96-2 at 21.) Although Plaintiff disputed this assertion to the sergeant, he was handcuffed and escorted to SHU. Id. At SHU, Plaintiff was strip-frisked. Id. at 22. It is undisputed that during the strip-frisk officers found two packets of synthetic marijuana (K-two) on Plaintiff's person between his buttocks. (Dkt. Nos. 96-2 at 22; 96-3 at 6.) According to Defendants, Plaintiff was also found with Neurontin and Flexeril on his person. (Dkt. No. 96-4 at 1.) Plaintiff denies having Neurontin on his person. (Dkt. No. 96-2 at 26.)
Plaintiff received the K-two from another prisoner during recreation that night. (Dkt. No. 96-2 at 14.)
Plaintiff was taking Neurontin, used to treat nerve pain, for a previous injury sustained to his wrist. (Dkt. No. 96-2 at 9-10.)
After the strip-frisk, Nurse Hoppins examined Plaintiff. Id. at 24. According to Plaintiff, Nurse Hoppins "didn't try to give [him] any help." Id. Plaintiff pointed to places that hurt, including his ribs and back, which Nurse Hoppins noted. Id. Plaintiff told her these areas were "on fire" and he wanted "some type of relief." Id. Plaintiff also told her his back "was messed up, that they had been kicking [him] and kneeing" him. Id. at 25. Plaintiff did not receive any treatment from Nurse Hoppins at this time. Id.
Nurse Hoppins filled out an Ambulatory Health Record ("AHR") Progress Note after examining Plaintiff. (Dkt. No. 96-4 at 1.) Nurse Hoppins reported that Plaintiff complained of rib and back pain. Id. Nurse Hoppins noted that Plaintiff moved all of his extremities without difficulty and was sitting upright on the floor holding his upper body up with his arms. Id. She also reported Plaintiff had no difficulty breathing, no ecchymosis, and no abrasions. Id. The Note also states Plaintiff was able to dress himself and ambulate without difficulty. Id.
After the strip-frisk, Plaintiff was placed on a 24-hour contraband watch in an observation cell. (Dkt. No. 96-2 at 23.) According to Plaintiff's complaint, he was under observation until he had two bowel movements. (Dkt. No. 1 at ¶ 42.) Plaintiff began bleeding from his penis. Id. at ¶ 44. Plaintiff requested the attention of a nurse and eventually saw Nurse Doe, who did not do anything for Plaintiff. Id. at ¶¶ 45-47. Plaintiff contends no mention of this was made in the contraband-watch log. Id. at ¶ 49; see also Dkt. Nos. 96-5, 96-6.
Also on January 21, 2015, Plaintiff was prescribed Ibuprofen (400 mg), a painkiller, and Cyclobenzaprine (10 mg), a muscle relaxant. (Dkt. No. 96-7 at 1.) Dr. Kooi visited Plaintiff in the contraband watch observation cell the next morning, January 22, 2015. (Dkt. Nos. 96-2 at 26; 96-6 at 4.) According to Plaintiff, Dr. Kooi had been notified Plaintiff was stashing his medication, and, as a result, Dr. Kooi would have to discontinue Plaintiff's Neurontin. (Dkt. No. 96-2 at 27.) Plaintiff received medication on January 22, 2015, at 1:05 pm, 4:10 pm, and 6:30 pm, and refused medication on January 23, 2015, at 7:30 am. (Dkt. No. 96-6 at 4-6, 9.) Plaintiff's AHR Progress Note indicates that, between January 27 and February 27, 2015, Plaintiff received attention from Auburn medical staff. (See generally Dkt. 96-4 at 2-7.) Plaintiff generally complained of back pain. See generally id. Entries dated January 27, February 6, February 17, February 20, February 23, and February 25, 2015, indicate Plaintiff was in "[no apparent distress]." Id. His prescription for Ibuprofen was renewed on February 19, 2015. Id. at 6.
Plaintiff was transferred to Southport Correctional Facility on March 3, 2015. (Dkt. No. 96-11.)
B. Disciplinary Hearing
Plaintiff was issued two inmate misbehavior reports as a result of the January 21, 2015, incident. (Dkt. Nos. 96-8 at 5-6; 96-2 at 28-29.) Plaintiff was charged with violent conduct, assault on staff, refusing direct order, contraband, smuggling, and refusing search or frisk. (Dkt. No. 96-8 at 1.) Plaintiff's disciplinary hearing began on January 28, 2015, before Bauersfeld. Id. Plaintiff pled guilty to the contraband and smuggling charges and not guilty to the remaining charges. Id. at 4. Plaintiff requested video evidence of the officers' escort of him from A block to SHU. (See Dkt. No. 96-2 at 30-31.) At the hearing, Bauersfeld first noted Plaintiff had not been provided with all of the requested videos and said he would conduct further inquiries about their existence. (Dkt. No. 96-9 at 11.) After further inquiry, Bauersfeld informed Plaintiff the requested video evidence was unavailable due to a disc malfunction. Id. at 52. Plaintiff was provided with a memorandum from Correction Officer M. Roberts, who stated he "was not able to retrieve any data" from the disc used to record the escort "after all resources available to us were exhausted." (Dkt. No. 96-12 at 1; see Dkt. No. 96-9 at 52.)
At the hearing, Plaintiff sought to read a twenty-four-page written statement into the record. (Dkt. Nos. 96-2 at 29; see Dkt. No. 96-9 at 18-48.) Plaintiff wanted to read this statement because "[he] felt . . . [he] needed to read that entire thing in to the record because this was going to be [his] statement about - from the beginning to end, what took place and what didn't take place." (Dkt. No. 96-2 at 29.) Bauersfeld stopped Plaintiff from reading his statement when Plaintiff began speaking about his medical claims and medical staff, which Bauersfeld opined were not relevant to the subject of the disciplinary hearing. (See Dkt. No. 96-9 at 44-48.) Bauersfeld did not permit Plaintiff to read the last three pages of his written statement. Id. at 45. Bauersfeld told Plaintiff he would "certainly take [the written statement] as part of the record and put it in the record." Id. at 47. Before adjourning the hearing for disposition, Bauersfeld stated "I want to review your [twenty-four]-page statement again before I make any decision with regards to these charges." Id. at 77. Bauersfeld listed Plaintiff's "[twenty-four]-page notarized statement that was incorporated as part of the hearing record" in his statement of evidence relied upon for the hearing disposition. (Dkt. No. 96-8 at 2.)
Bauersfeld found Plaintiff guilty of the violent conduct, assault on staff, refusing a direct order, contraband, and smuggling charges and not guilty of the refusing search and frisk charge. (Dkt. Nos. 96-8 at 1; 96-9 at 78.) While reading this disposition to Plaintiff at the hearing, Bauersfeld stated that although he found Plaintiff guilty of "charge 100.11 assault on staff," he would note later in the disposition that he "refer[red] to it as an attempt to assault on staff." (Dkt. No. 96-9 at 78.) DOCCS' Standards of Inmate Behavior define charge 100.11 as follows: "An inmate shall not assault or inflict or attempt to inflict bodily harm upon any staff member." (Dkt. No. 96-13 at 3.) Bauersfeld found Plaintiff guilty of this charge "based upon relevant credible testimony" that Plaintiff "did attempt to push [past] the officer and force was used" to stop and gain control of him. (Dkt. No. 96-9 at 80.)
As a result of the guilty dispositions, Plaintiff was sentenced to 180 days' confinement in SHU. (Dkt. No. 96-8 at 1.) Plaintiff appealed the disposition of his disciplinary hearing to Venettozzi, who affirmed on May 15, 2015. (Dkt. No. 96-10 ("Please be advised that your Superintendent's hearing of February 13, 2015, has been reviewed and affirmed on May 15, 2015." (capitalization not preserved).)
II. SUMMARY JUDGMENT LEGAL STANDARD
A court shall grant summary judgment only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, 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." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating 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 & n.11 (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 quotation marks omitted). A verified complaint, as Plaintiff has filed in this case (Dkt. No. 1 at 15), 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, 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." 426 F.3d 549, 554 (2d Cir. 2005). To defeat summary judgment, nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation omitted). "At 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 quotation marks omitted). "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 must "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
III. DISCUSSION
A. Plaintiff's Discovery Argument
In his opposition to this summary judgment motion, Plaintiff argues he was not provided discovery responses. (Dkt. No. 103 at 1-2.) However, a review of the docket shows Plaintiff requested an order compelling Defendants to respond to discovery demands after this summary judgment motion was filed. (Dkt. No. 100.) The Court denied Plaintiff's letter request as untimely since it was filed over five months after the discovery deadline expired. (Dkt. No. 102.) Further, the Court found Plaintiff provided no bases for granting his request since he did not describe his specific discovery requests, the documents Defendants purportedly did not provide, nor any information regarding the reasons Defendants asserted for not providing discovery. Id. Accordingly, the Court finds no merit in Plaintiff's opposition argument concerning discovery.
B. Plaintiff's Failure to File a Response to Defendants' Local Rule 7.1 Statement
Pursuant to this District's Local Rules, "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3). Where a party has failed to respond to the movant's statement of material facts as required by Local Rule 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
As required by the Local Rules, Defendants advised Plaintiff of the consequences of failing to file a response to Defendants' Rule 7.1 Statement of Material Facts, as did the Court. (Dkt. Nos. 96-16, 97.) While Plaintiff submitted a response to Defendants' motion, he failed to do so in the manner required under Local Rule 7.1(a)(3). (See generally Dkt. No. 103; see also Dkt. Nos. 100, 102.) "Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules." Marino v. Watts, No. 9:12-CV-801 (NAM/DJS), 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018), report- recommendation adopted sub nom. Marino v. Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 F. App'x 73 (2d Cir. 2019) (summary order).
Local Rule 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."
Although this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on a 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), the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and whether to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted).
In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record. Accordingly, the Court treats the verified complaint as an affidavit for purposes of this motion, along with Plaintiff's sworn response, and considers the factual allegations therein to the extent they are not conclusory and supported by the record. (Dkt. Nos. 1, 103.)
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). As to any facts not contained in Defendants' Local Rule 7.1(a)(3) Statement, in light of the procedural posture of this case, the Court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
C. Eighth Amendment Deliberate Indifference Claims
Plaintiff contends Nurse Hoppins was deliberately indifferent to his serious medical needs by failing to provide him treatment following the strip-frisk and falsely stating he was in possession of Neurontin during the strip-frisk. (Dkt. No. 96-2 at 25-26.) Plaintiff contends Dr. Kooi was deliberately indifferent by discontinuing Plaintiff's Neurontin prescription as a result of Nurse Hoppins' report. Id. at 27. Defendants argue they are entitled to summary judgment because Plaintiff did not suffer from a serious medical need and because Nurse Hoppins and Dr. Kooi did not act with deliberate indifference. (Dkt. No. 96-15 at 5-15.)
1. Legal Standard
The Eighth Amendment forbids the infliction of "cruel and unusual punishments" on those convicted of crimes, "which includes punishments that involve the unnecessary and wanton infliction of pain." U.S. Const. amend. VIII; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citing Gregg v. Georgia, 428 U.S. 153, 173 (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 v. Gamble, 429 U.S. 97, 104 (1976)). This standard contains objective and subjective components. Hathaway, 37 F.3d at 66. The objective component requires the plaintiff to demonstrate his alleged medical need is "sufficiently serious." Id. The subjective component requires a showing that the defendant has acted with a "sufficiently culpable state of mind." Id.
To satisfy the objective element, the alleged deprivation must be "sufficiently serious." Salahuddin, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Determining whether a deprivation is sufficiently serious also involves two inquiries. Id. Initially, the court must determine whether the inmate was actually denied adequate medical care. Id. "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. Dep't of Corr., 557 F. Supp. 2d 408, 413 (S.D.N.Y. 2008) (citations and quotation mark omitted).
Second, if the care provided was unreasonable, courts must inquire as to whether that inadequacy was "sufficiently serious." Salahuddin, 467 F.3d at 280. Courts must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff. Id. (citing Helling v. McKinney, 509 U.S. 25, 32-33 (1993)). If the "unreasonable care" consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is "sufficiently serious." Id. (citing Smith v. Carpenter, 316 F.3d 263, 185-86 (2d Cir. 2006)). Factors informing this inquiry 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." Id. (quotation marks and alterations omitted).
However, where the inadequacy is in the medical treatment that was actually afforded to the inmate, the inquiry is narrower. Id. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Salahuddin, 467 F.3d at 280. Thus, although courts "sometimes speak of a serious medical condition as the basis for an Eighth Amendment claim, such a condition is only one factor in determining whether a deprivation of medical care is sufficiently grave to establish constitutional liability." Id.
As to the subjective component, a prison official acts with a sufficiently culpable state of mind when "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. "Deliberate indifference is a mental state equivalent to subjective recklessness" which "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin, 467 F.3d at 280 (quotation marks omitted).
Further, "[i]t is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment claim." Chance, 143 F.3d at 703. Therefore, any "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of intervention, are not adequate grounds for a Section 1983 claim." Randle v. Alexander, 960 F. Supp. 2d 457, 481 (S.D.N.Y. 2013) (citation and internal quotation marks omitted).
2. Analysis
i. Nurse Hoppins
Plaintiff avers Nurse Hoppins did not "try to give [him] any help" when she examined him following the strip-frisk. (Dkt. Nos. 96-2 at 24; 1 at ¶ 39.) Plaintiff also alleges Nurse Hoppins falsely stated in Plaintiff's medical records that he was found to have Neurontin on him during the strip-frisk, in addition to the synthetic marijuana. (Dkt. Nos. 96-2 at 26; 1 at ¶ 38; see also Dkt. No. 96-4 at 1.) Dr. Kooi discontinued Plaintiff's prescription for Neurontin as a result. (Dkt. Nos. 96-2 at 27; 1 at ¶¶ 40-41.)
As to the first inquiry of the objective prong, the Court finds no reasonable jury could find Plaintiff's medical condition was "sufficiently serious." See Hathaway, 37 F.3d at 66. Plaintiff testified at his deposition that during Nurse Hoppins' examination of him he pointed to places that hurt, which she noted. (Dkt. No. 96-2 at 24.) Plaintiff told Nurse Hoppins his back and ribs were "on fire" and he "wanted to get some type of relief from it," although he did not ask for any treatment in particular. Id. Plaintiff also told Nurse Hoppins his "back was messed up." Id. at 25. Plaintiff's interaction with Nurse Hoppins then ended; Plaintiff did not receive any treatment from Nurse Hoppins. Id.
Nurse Hoppins filled out an AHR Progress Note in which she indicated Plaintiff moved all of his extremities without difficulty and sat upright holding his upper body up with his arms. (Dkt. No. 96-4 at 1.) Nurse Hoppins also noted no difficulty breathing, ecchymosis, or abrasions. Id. Nurse Hoppins wrote in the report that Plaintiff was able to ambulate and dress himself without difficulty. Id.
Because Plaintiff alleges Nurse Hoppins failed to provide any medical treatment, the inquiry is whether Plaintiff's medical condition was "sufficiently serious." See Salahuddin, 467 F.3d at 280. The Court finds the evidence in the record does not raise a genuine issue of fact as to whether Plaintiff's condition was sufficiently serious. The sufficiently serious standard "contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, 37 F.3d at 66 (citation and internal quotation marks omitted). Here, Plaintiff complained to Nurse Hoppins of back and rib pain. However, the AHR Progress Note also indicates Plaintiff was able to ambulate, move all of his extremities without difficulty, and dress himself. These circumstances do not suggest a condition which may produce death, degeneration, or extreme pain. See id.; see also Thomas v. Nassau Cty. Corr. Ctr., 288 F. Supp. 2d 333, 338 (E.D.N.Y. 2003) (noting "subjective complaints of pain are not sufficient" to satisfy the serious medical need standard); Rivera v. Johnson, No. 95-CV-0845E(H), 1996 WL 549336, at *2 (W.D.N.Y. Sept. 20, 1996) (noting courts have found ailments including a toothache, kidney stone, and broken finger insufficient to constitute a serious medical need).
Moreover, the record shows Plaintiff was prescribed medications and seen by other medical professionals after being admitted to the infirmary on contraband watch. On January 21, 2015, for example, Plaintiff was prescribed Ibuprofen (400 mg), a painkiller, and Cyclobenzaprine (10 mg), a muscle relaxant. (Dkt. No. 96-7 at 1.) The next day, January 22, 2015, Dr. Kooi visited Plaintiff while he was on contraband watch. (Dkt. Nos. 96-2 at 27; 96-6 at 4.) Plaintiff received medication on January 22, 2015, at 1:05 pm, 4:10 pm, and 6:30 pm, and refused medication on January 23, 2015, at 7:30 am. (Dkt. No. 96-6 at 4-6, 9.) To the extent Plaintiff's medical indifference claim against Nurse Hoppins is premised on a delay in receiving treatment, the Court finds such delay insufficient to rise to the level of a constitutional violation. As the record demonstrates, Plaintiff received medication and medical care within hours of Nurse Hoppins' examination of him. See, e.g., White v. Rock, No. 9:13-CV-392 (GTS/CFH), 2016 WL 11478222, at *10 (N.D.N.Y. Feb. 23, 2016) (granting summary judgment for defendants on medical indifference claim where, inter alia, plaintiff had not produced any evidence showing a "one-day delay" caused him to suffer substantial harm), report-recommendation adopted by 2016 WL 1248904 (N.D.N.Y. Mar. 29, 2016).
Even assuming Plaintiff could satisfy the objective prong with respect to Nurse Hoppins, the Court finds no reasonable jury could find Nurse Hoppins acted with a sufficiently culpable state of mind. After the incident with Thomas, Plaintiff complained to Nurse Hoppins of back and rib pain. However, there is no evidence to suggest Nurse Hoppins "[knew] of and disregard[ed] an excessive risk" to Plaintiff's health or safety. See Farmer, 511 U.S. at 837. Although Nurse Hoppins did not get Plaintiff any medication or treatment immediately upon examining him, she filled out various forms documenting Plaintiff's complaints and condition. (Dkt. Nos. 96-3 at 4 (Use of Force Report indicating Plaintiff was moving all extremities without difficulty and had no difficulty breathing); 96-3 at 8 (Use of Force Report addendum noting complaints of rib and pack pain and full range of motion of all extremities); 96-3 at 9 (Inmate Injury Report); 96-4 at 1 (AHR Progress Note).) Given Nurse Hoppins' observations that Plaintiff was moving and breathing well, the record belies the notion that she knew of and disregarded an "excessive risk" to Plaintiff's health. Cf. Farmer, 511 U.S. at 837.
Plaintiff's allegation that Nurse Hoppins incorrectly stated in his medical record that he was found with Neurontin on him during the strip-frisk (Dkt. No. 96-2 at 26), even if true, likewise does not rise to the level of deliberate indifference. As an initial matter, the mere falsification of a report does not state an independent constitutional violation. Moore v. Casselberry, 584 F. Supp. 2d 580, 582 (W.D.N.Y. 2008) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)) ("There is no basis for a constitutional claim alleging the mere filing of a false report."). There is no evidence in the record to suggest Nurse Hoppins knew of and disregarded an excessive risk to Plaintiff's safety when she specified in the report he was found in possession of Neurontin. As discussed below, Plaintiff was provided with alternative painkillers, and the discontinuation of his Neurontin prescription does not amount to medical indifference. See infra Part III.C.2.ii.
Moreover, there is no evidence Nurse Hoppins falsified Plaintiff's medical record out of deliberate indifference or any other improper motive. See Moore, 584 F. Supp. 2d at 582 & n.1 ("There is also no indication in the record that [the nurse] falsified her report out of deliberate indifference to plaintiff's serious medical needs, or out of any improper motive."). Plaintiff testified that, prior to January 21, 2015, he had not had any negative interaction with Nurse Hoppins. (Dkt. No. 96-2 at 8.) Accordingly, the Court finds no evidence from which a reasonable jury could find Nurse Hoppins acted with deliberate indifference toward Plaintiff.
Therefore, based on the foregoing, the Court recommends granting Defendants' motion for summary judgment on Plaintiff's medical indifference claim against Nurse Hoppins.
ii. Dr. Kooi
Plaintiff avers Dr. Kooi discontinued his prescription for Neurontin on January 22, 2015, after Nurse Hoppins informed him Plaintiff was found with Neurontin on him during the strip-frisk. (Dkt. No. 96-2 at 27.) Initially, Plaintiff's conclusory statement that Nurse Hoppins falsely wrote in his medical report that he was in possession of Neurontin is insufficient to create an issue of material fact. See Ross v. Koenigsmann, No. 9:14-CV-1321 (GTS/DJS), 2017 WL 9511096, at *4 (N.D.N.Y. Aug. 16, 2017) (citing Woodman v. WWOR-TV, Inc., 411 F.3d 69, 85 (2d Cir. 2005)), report-recommendation adopted by 2017 WL 4338883 (N.D.N.Y. Sept. 29, 2017). Moreover, "[t]he decision to discontinue an inmate's medication where there is evidence that the inmate is misusing the medication does not constitute deliberate indifference." Id. (collecting cases). Plaintiff acknowledges Neurontin is "tightly regulated" and an inmate found to be in possession of it is likely to have his prescription taken away. (Dkt. No. 96-2 at 28.) See also Cole v. Kooi, No. 9:11-CV-0004 (LEK/RFT), 2013 WL 4026842, at *5 (N.D.N.Y. Aug. 6, 2013) (finding no deliberate indifference where doctor discontinued prescription for Ultram after learning doses of the medication had been found in the plaintiff's cell and where plaintiff received alternative treatments); Dabney v. Sawyer, No. 9:11-CV-0273 (BKS/RFT), 2015 WL 1383828, at *11 (N.D.N.Y. Mar. 25, 2015) (dismissing deliberate indifference claim against doctor who discontinued Ultram prescription where it was discovered the plaintiff was hoarding the medication). Accordingly, the Court finds Dr. Kooi's decision to discontinue Plaintiff's Neurontin prescription based on reports that Plaintiff was in possession of the drug during the strip-frisk does not constitute deliberate indifference.
Even assuming Plaintiff did not have Neurontin on him during the strip-frisk and Dr. Kooi thus discontinued the Neurontin based on false information, Dr. Kooi's decision does not amount to a constitutional violation. As noted above, the Court finds the record shows Plaintiff's medical condition was not "sufficiently serious" to satisfy the objective prong of a medical indifference claim. Furthermore, there is no record evidence to suggest Dr. Kooi knew of and disregarded an excessive risk to Plaintiff's safety by discontinuing the Neurontin prescription. On the same day Dr. Kooi discontinued Plaintiff's Neurontin prescription, Plaintiff was prescribed both Ibuprofen and Cyclobenzaprine to treat his pain. (Dkt. No. 96-7 at 1.)
Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (citations omitted). A plaintiff's disagreement with prescribed treatment does not rise to the level of a constitutional claim. Id. Thus, the fact that a plaintiff might have preferred an alternative treatment does not rise to the level of a constitutional violation. Id. Indeed, an inmate does not have the right to treatment of his choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). As such, disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of medical intervention implicate medical judgment and do not rise to the level of a constitutional violation. Sonds, 151 F. Supp. 2d at 312 (citing Estelle, 429 U.S. at 107); see also Washington v. Westchester Cty. Dep't of Corr., No. 13 Civ. 5322 (KPF), 2014 WL 1778410, at *6 (S.D.N.Y. Apr. 25, 2014) ("[T]he law is clear that the medication a doctor selects to treat the patient's conditions is a medical judgment and does not rise to the level of deliberate indifference."); Wright v. Genovese, 694 F. Supp. 2d 137, 160 (N.D.N.Y. 2010) ("Differences in opinions between a doctor and an inmate patient as to the appropriate pain medication clearly do not support a claim that the doctor was deliberately indifferent to the inmate's 'serious' medical needs.") (collecting cases); Adams v. Smith, No. 9:15-CV-913 (BKS/DJS), 2018 WL 1363495, at *4 (N.D.N.Y. Mar. 16, 2018) ("Courts have repeatedly rejected medical indifference claims based upon a failure to provide stronger pain medication.") (collecting cases); Rush v. Fischer, 09 Civ. 9918 (JGK), 2011 WL 6747392, at *3 (S.D.N.Y. Dec. 23, 2011) ("The decision to prescribe one form of pain medication in place of another does not constitute deliberate indifference to a prisoner's serious medical needs.").
Here, it is undisputed that when Plaintiff's Neurontin prescription was discontinued, he was prescribed with both Ibuprofen and Cyclobenzaprine to treat his pain. (Dkt. No. 96-7 at 1.) The fact that Plaintiff may prefer Neurontin to these other medications is insufficient to raise the discontinuation of his Neurontin to the level of a constitutional violation. Cf. Sonds, 151 F. Supp. 2d at 312. Because Plaintiff was prescribed alternative pain medications, the Court finds Dr. Kooi did not know of and disregard an excessive risk to Plaintiff's safety. Cf. Farmer, 511 U.S. at 837. Moreover, Plaintiff testified he had no negative interaction or problems with Dr. Kooi prior to the discontinuation of his Neurontin. (Dkt. No. 96-2 at 8.) Accordingly, the Court recommends granting Defendants' motion for summary judgment on Plaintiff's medical indifference claim against Dr. Kooi.
Because the Court recommends granting Defendants' motion for summary judgment as to Dr. Kooi on the merits, the Court does not address Defendants' alternative argument based on qualified immunity. (Dkt. No. 96-15 at 15.)
D. Fourteenth Amendment Due Process Claims
Plaintiff claims he was denied due process at his disciplinary hearing conducted by Bauersfeld. (Dkt. No. 1 at ¶¶ 58-60.) He further alleges Venettozzi violated his due process rights by denying Plaintiff's appeal from the disciplinary proceedings. Id. at ¶ 62. Defendants argue Bauersfeld is entitled to summary judgment because Plaintiff has failed to establish a protected liberty interest and, in any event, he was afforded all the process he was due. (Dkt. No. 96-15 at 16-22.) Thus, Defendants contend Plaintiff's claim against Venettozzi also fails as a matter of law. Id. Additionally, Defendants argue Venettozzi's mere affirmance of the disciplinary determination is insufficient to establish his personal involvement for purposes of Section 1983 and Venettozzi is entitled to qualified immunity. Id. at 23.
1. Legal Standard
The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. "A liberty interest may arise from the Constitution itself, . . . or it may arise from an expectation or interest created by state laws or polices." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citation omitted). "Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship." Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted).
To establish a procedural due process claim under Section 1983, a plaintiff must show he (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004); Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998).
2. Liberty Interest
An inmate retains a protected liberty interest in remaining free from segregated confinement if he can satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Therefore, a plaintiff must show that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. As to the first factor, "[t]he prevailing view in this Circuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor." Liao v. Malik, No. 9:13-CV-1497 (GTS/DEP), 2016 WL 1128245, at *4 (N.D.N.Y. Feb. 26, 2016) (collecting cases).
Regarding the second factor, the plaintiff bears the "burden of proving that the conditions of his confinement constituted an atypical, significant hardship in relation to the ordinary incidents of prison life in order to recover damages" under Section 1983. Vasquez v. Coughlin, 2 F. Supp. 2d 255, 260 (N.D.N.Y. 1998). The Second Circuit has instructed that in determining whether an inmate's SHU confinement has imposed an atypical and significant hardship, a court must consider, among other things, both the duration and conditions of confinement. J.S. v. T'Kach, 714 F.3d 99, 106 (2d Cir. 2013) (citation omitted). Thus, while not dispositive, the duration of a disciplinary confinement is a significant factor in determining atypicality. Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citations omitted).
The Second Circuit has declined to provide a bright-line rule as to what duration of punitive confinement implicates a prisoner's constitutional rights; however, "[w]here the plaintiff was confined for an intermediate duration—between 101 and 305 days—'development of a detailed record' of the conditions of confinement relative to ordinary prison conditions is required." Palmer v. Richards, 364 F.3d 60, 64-65 (2d Cir. 2004) (quoting Colon, 215 F.3d at 232). Without such a record, due process claims may be dismissed for failure to establish a liberty interest only where "the period of time spent in SHU was exceedingly short—[less than thirty days] —and there was no indication that the plaintiff endured unusual SHU conditions." Id. at 65-66.
Here, after Plaintiff's Tier III disciplinary hearing, Bauersfeld sentenced Plaintiff to 180 days of SHU confinement, along with "loss of packages, commissary and phone." (Dkt. No. 96-9 at 81; Dkt. No. 96-8 at 1.) As the duration of Plaintiff's confinement falls within the intermediate duration range, the Court must develop a detailed factual record to determine whether to dismiss Plaintiff's claim for failing to establish a liberty interest. See, e.g., Genier v. Vanarnum, No. 9:13-CV-1460 (GTS/DEP), 2016 WL 4507456, at *5-7 (N.D.N.Y. June 20, 2016); Jabot v. Correction Officer Minor, 9:13-CV-01407 (DNH/TWD), 2016 WL 5322113, at *7-9 (N.D.N.Y. July 15, 2016).
The Court finds the summary judgment record as a whole lacks sufficient evidence to determine whether Plaintiff established a liberty interest. In his verified complaint, Plaintiff asserted his SHU confinement was "an atypical hardship," but provided no further details about his confinement. (Dkt. No. 1 at ¶ 60.) At Plaintiff's deposition, defense counsel questioned Plaintiff about his Fourteenth Amendment claims against Bauersfeld and Venettozzi, but did not ask about the conditions of Plaintiff's SHU confinement. (Dkt. No. 96-2 at 29-32.) While the record does not contain any evidence demonstrating Plaintiff's SHU confinement was an undue hardship, the record is also absent of any evidence about ordinary SHU conditions at Auburn. Therefore, the Court recommends denying Defendants' summary judgment motion on liberty interest grounds. See Britt v. Carberry, No. 9:17-CV-0234 (MAD/DEP), 2019 WL 2437912, at *8 (N.D.N.Y. June 11, 2019) ("[W]ithout the necessary evidence in the record for the Court to determine if Plaintiff suffered an atypical and significant hardship during his confinement, the Court must assume Plaintiff was deprived of a liberty interest."); see also Barsksdale v. Frenya, No. 9:10-CV-0831 (MAD/DEP), 2012 WL 4107801, at *3-4 (N.D.N.Y. Sept. 19, 2012); Bowens v. Pollock, No. 06-CV-0457A(Sr), 2010 WL 5589350, at *15 (W.D.N.Y. Oct. 12, 2010).
However, regardless of whether Plaintiff established a liberty interest, his Fourteenth Amendment due process claim fails because he was afforded all the process he was due at his Tier III disciplinary hearing.
3. Due Process
The Fourteenth Amendment due process protections afforded to a prison inmate do not equate to "the full panoply of rights due to a defendant in a criminal prosecution." Sira, 380 F.3d at 69 (citation and quotations omitted). The constitutionally mandated due process requirements include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. Wolff v. McDonald, 418 U.S. 539, 564-70 (1974); see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004).
The due process clause of the Fourteenth Amendment also guarantees that "[a]n inmate subject to a disciplinary hearing is entitled to an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff, 418 U.S. at 570-71). Due process in this context requires only that the hearing officer's decision not be arbitrary. Superintendent v. Hill, 472 U.S. 445, 455 (1985). A decision is not "arbitrary" if it is supported by "some evidence." Id. "This standard is extremely tolerant and is satisfied 'if there is any evidence in the record that supports the disciplinary ruling." Sira, 380 F.3d at 69 (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). "[O]nly 'reliable' evidence can constitute 'some evidence.'" Id. at 76 (quoting Luna, 356 F.3d at 488).
Additionally, "[t]o establish a procedural due process claim in connection with a prison disciplinary hearing, an inmate must show he was prejudiced by the alleged procedural deficiencies, in the sense that the errors affected the outcome of the hearing." Clark v. Dannheim, 590 F. Supp. 2d 429, 429 (W.D.N.Y. 2008) (citing, inter alia, Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) ("[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary hearing because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial.")).
Here, Plaintiff claims Bauersfeld denied him due process at his Tier III Disciplinary Hearing because Bauersfeld failed to review video evidence Plaintiff requested, prevented Plaintiff from reading the entirety of his prepared statement into the record, and found Plaintiff guilty of "Assault on Staff" after stating he believed Plaintiff was guilty of attempting to assault staff. (Dkt. No. 1 at ¶¶ 59-60; Dkt. No. 96-2 at 29-31.) Plaintiff alleges Venettozzi violated his due process rights by denying Plaintiff's appeal from the disciplinary proceedings. (Dkt. No. 1 at ¶ 62.) Defendants argue Plaintiff was afforded all the process he was due. (Dkt. No. 96-15 at 18-22.) The Court agrees with Defendants.
i. Bauersfeld
Plaintiff first contends Bauersfeld denied him due process by failing to review requested "video and audio evidence." (Dkt. No. 96-2 at 30.) At the disciplinary hearing, Bauersfeld informed Plaintiff the requested video was unavailable due to a camera malfunction. (Dkt. No. 96-9 at 11.) He told Plaintiff he would conduct a further inquiry into the existence of the video. Id. After an adjournment, Bauersfeld informed Plaintiff he was unable to receive a copy of the video and "[the officer] called me I said that's not good enough I want the to/from that he couldn't get the small disk to work." Id. at 52. The corrections officer later sent Bauersfeld a "to/from," which stated the corrections officer was unable to retrieve the requested video due to a disc malfunction. (Dkt. No. 19-12.)
As Bauersfeld continued to inquire about the requested video after being informed it did not exist, the Court finds Bauersfeld made a "constitutionally significant inquiry into the existence and whereabouts" of the video. See Brooks v. Piecuch, 245 F. Supp. 3d 431, 446-48 (W.D.N.Y. 2017) (corrections officer did not deny inmate due process where he made repeated inquiries into the existence of a requested videotape). Further, there is no evidence to suggest the video footage existed at the time of Plaintiff's request. See Barnes v. Annucci, No. 9:15-CV-0777 (GLS/DEP), 2019 WL 1387460, at *13 (N.D.N.Y. Mar. 12, 2019), report-recommendation adopted by 2019 WL 1385297 (N.D.N.Y. Mar. 27, 2019); see also Molano v. Bezio, 42 F. Supp. 3d 465, 468-69 (W.D.N.Y. 2012).
Even assuming Bauersfeld's failure to secure the requested video constituted a procedural deficiency, Plaintiff has not sufficiently established any prejudice resulting from the lack of video footage. At Plaintiff's deposition, defense counsel asked about the relevance of the video and Plaintiff responded, "I believe that there's a possibility of admissions by staff. [ ] Maybe someone was caught saying something that could have exonerated me, on—on tape—." (Dkt. No. 96-2 at 30.) Plaintiff later stated he "assumed" there was an audio component to the video. Id. The Court finds Plaintiff's claims are too speculative to establish the video footage would have affected the outcome of the disciplinary hearing. See Molano, 42 F. Supp. 3d at 468-69. Moreover, Plaintiff himself does not know whether the video cameras were capable of recording audio or any sound, which makes it further unlikely Plaintiff was prejudiced by the lack of video footage. See id. Therefore, the Court finds Plaintiff has failed to establish Bauersfeld denied him due process by failing to review the requested video.
Next, Plaintiff asserts Bauersfeld denied him due process by preventing him from reading the entirety of his statement into the record. (Dkt. No. 96-2 at 29.) Hearing officers may limit the introduction of evidence at disciplinary hearings where such evidence is irrelevant or unnecessary. Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991); see also Brooks, 245 F. Supp. 3d at 445. Here, the purpose of Plaintiff's disciplinary hearing was to determine whether Plaintiff assaulted staff and possessed contraband. (Dkt. No. 96-9 at 12-14.) Bauersfeld stopped Plaintiff from reading his statement when Plaintiff began speaking about medical claims involving Dr. Kooi and Nurse Hoppins. Id. at 44. Bauersfeld told Plaintiff he believed the medical claims were outside the scope of the hearing and did not allow him to read the last three pages of his statement into the record. Id. at 44-48. However, Bauersfeld told Plaintiff he would "accept a copy of [his] full written [statement] and incorporate it into the record as part of the record" and would review the statement before rendering a final decision. Id. at 47, 77.
The Court notes Bauersfeld allowed Plaintiff to read a significant portion of his statement into the record prior to stopping Plaintiff. (See Dkt. No. 96-9 at 18-44.) Approximately twenty-five pages of the hearing transcript records Plaintiff reading his statement. See id.
The Court finds Plaintiff's testimony about the actions of medical staff after the alleged assault was not relevant to determining whether Plaintiff assaulted staff or possessed contraband. See Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999) ("[A] hearing officer does not violate due process by excluding irrelevant or unnecessary testimony.") (citation omitted). Further, Plaintiff's testimony would have been duplicative, as he had already described his interactions with the medical staff earlier in his statement. (See Dkt. No. 96-9 at 24-25, 33-34 ("On the following pages I will end by attempting to summarize these thirteen pages so far into chronological order of events.")); see also Russell v. Selsky, 35 F.3d 55, 58-59 (2d Cir. 1994).
Plaintiff has also failed to show he was prejudiced by not being allowed to read his full statement into the record. There is no evidence to suggest that the outcome of the hearing would have been different if Plaintiff had read the final three pages of his statement into the record. See Watson v. Annucci, No. 9:14-CV-00638 (JKS), 2015 WL 5971077, at *5 (N.D.N.Y. Oct. 14, 2015). Indeed, the hearing transcript indicates Plaintiff was not prejudiced by Bauersfeld's decision, as Bauersfeld considered Plaintiff's full statement before rendering his decision. (See Dkt. No. 96-9 at 77.) Therefore, the Court finds Bauersfeld did not deny Plaintiff due process by preventing Plaintiff from reading the entirety of his statement at the disciplinary hearing.
As to Plaintiff's contention that he was improperly found guilty of assault on staff, the Court disagrees. At the conclusion of Plaintiff's disciplinary hearing, Bauersfeld told Plaintiff, "I do find you guilty with the regards of charge 100.11 assault on staff I do find you guilty, however I will note later in my disposition I do refer to it as an attempt to assault on staff." (Dkt. No. 96-9 at 78.) In his written decision, Bauersfeld found "substantial evidence does establish that [Plaintiff was] guilty of 104.11, 100.11, and 106.10, in that [Plaintiff] did attempt to push past the officer." (Dkt. No. 96-8 at 2.) DOCCS Rule of Conduct 100.11 mandates "[a]n inmate shall not assault or inflict or attempt to inflict bodily harm upon any staff member." (Dkt. No. 96-13 at 3.) The Court finds Bauersfeld did not deny Plaintiff due process because the charge of which he found Plaintiff guilty prohibited an attempt to assault staff.
Finally, although not raised by Plaintiff, the Court finds Bauersfeld's decision was supported by "some evidence." In his decision, Bauersfeld noted he relied upon Thomas' misbehavior report and testimony that Plaintiff "turned and attempted to push past [Thomas] and force was used against [Plaintiff]." (Dkt. No. 96-8 at 2.) Bauersfeld also relied upon the use of force and injury reports and Officer Stanton's testimony that the five inmate witnesses Plaintiff requested refused to testify. Id. As Bauersfeld relied on testimony from an officer present for the incident, his determination was supported by "some evidence" and did not violate Plaintiff's due process rights. See Allen v. Graham, No. 9:16-CV-47 (GTS/ATB), 2017 WL 9511168, at *16 (Sept. 26, 2017), report-recommendation adopted by 2017 WL 5957742 (N.D.N.Y. Dec. 1, 2017).
Accordingly, the Court recommends granting Defendants' motion for summary judgment on Plaintiff's Fourteenth Amendment due process claims.
ii. Venettozzi
Plaintiff claims Venettozzi denied him due process by denying Plaintiff's appeal of Bauersfeld's decision. (Dkt. No. 1 at 62.) Specifically, Plaintiff contends Venettozzi "had the same set of facts in front of him, that [Bauersfeld] had . . . and he still upheld the conviction." (Dkt. No. 96-2 at 31-32.) Plaintiff also asserts Venettozzi "never gave [Plaintiff] a—a reason why" he denied the appeal. Id. at 32. Defendants argue Venettozzi is entitled to summary judgment because Plaintiff was afforded all the process he was due, Plaintiff has not established Venettozzi's personal involvement in a due process violation, and Venettozzi is entitled to qualified immunity. (Dkt. No. 96-15 at 22-24.)
As set forth above, Plaintiff was afforded due process at his disciplinary hearing. Thus, Plaintiff cannot establish Venettozzi violated his Fourteenth Amendment due process rights by affirming a constitutional disciplinary hearing. See Cole v. New York State DOCCS, No. 9:14-CV-0539 (BKS/DEP), 2016 WL 5394752, at *28 (N.D.N.Y. Aug. 25, 2016); see also Lopez v. Whitmore, No. 13-CV-0952 (BKS/ATB), 2015 WL 4394604, at *11 (July 16, 2015). Accordingly, the Court recommends granting Defendants' motion for summary judgment on Plaintiff's due process claim against Venettozzi.
As the Court recommends granting Venettozzi summary judgment based upon Defendants' first argument, the Court declines to address whether Venettozzi was personally involved or is entitled to qualified immunity.
E. State Law Claims
Defendants argue Plaintiff's state law assault and battery claims against Thomas and John Does 1-3 and Plaintiff's state law negligence claims against Dr. Kooi, Nurse Hoppins, and Nurse Doe are barred by New York Corrections Law Section 24.
New York Corrections Law Section 24 provides DOCCS employees immunity from lawsuits based on acts or omissions within the course of their employment. N.Y. Correct. Law § 24; see also Ierardi v. Sisco, 119 F.3d 183, 186-87 (2d Cir. 1997). Such actions must be brought in the New York Court of Claims as a claim against the state. N.Y. Correct. Law § 24. If a plaintiff brings such an action in federal court, the court should dismiss his or her state law claims for lack of subject matter jurisdiction. Baker v. Coughlin, 77 F.3d 12, 15-16 (2d Cir. 1996); Joy v. New York, No. 5:09 Civ. 841, 2010 WL 3909694, at *4-5 (N.D.N.Y. Sept. 30, 2010) (collecting cases).
An employee's actions are deemed to be within the scope of their employment when "the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." Ierardi, 119 F.3d at 187. "Consistent with this precept, various courts have held that a correctional officer who uses force while on duty is acting within the scope of employment, and therefore is entitled to the protections of section 24." Deal v. Yurack, No. 9:04-CV-0072 (LEF/DEP), 2007 WL 2789615, at *10 (N.D.N.Y. Sept. 24, 2007) (collecting cases).
Here, as to the assault and battery claims against Thomas and John Does 1-3, the Court finds New York Corrections Law Section 24 bars said claims. Construing the facts most favorably to Plaintiff, the alleged assault occurred while Thomas was on duty as a corrections officer and escorting Plaintiff to A block. (Dkt. No. 96-2 at 15-19.) Accordingly, the Court recommends dismissing Plaintiff's assault and battery claims for lack of subject matter jurisdiction. See Ames v. New York Dep't of Corr. & Cmty. Supervision, No. 9:12-CV-01487 (MAD/RFT), 2015 WL 4126326, at *14 (Mar. 24, 2015) ("The alleged . . . excessive use of force during the movement of Plaintiff within the facility [was] not departure[ ] great enough to remove Defendant Correction Officers' actions from within the scope of their employment.").
With respect to Plaintiff's negligence claims against Nurse Hoppins, Nurse Doe, and Dr. Kooi, the Court finds said claims are similarly barred by New York Corrections Law Section 24. The District Court found Plaintiff's negligence claims stemmed from the same conduct constituting his medical indifference claims. (Dkt. No. 11 at 17.) Generally, Plaintiff claims Nurse Hoppins was indifferent to his injuries and falsely reported he was found in possession of Neurontin during the strip-frisk and Dr. Kooi discontinued Plaintiff's Neurontin. (Dkt. No. 96-2 at 24-28.) Nurse Hoppins, Nurse Doe, and Dr. Kooi treated Plaintiff while employed by DOCCS and as part of their duties at Auburn. Therefore, the Court recommends dismissing Plaintiff's state law negligence claims. See McDay v. Bushey, No. 9:14-CV-997 (GLS/ATB), 2016 WL 6638182, at *9 (N.D.N.Y. Aug. 10, 2016) (finding plaintiff's state law medical negligence and ministerial neglect claims were barred by New York Corrections Law § 24).
F. Claims Against the Doe Defendants
Defendants seek dismissal of any claims against the John and Jane Doe Defendants for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Dkt. No. 96-15 at 26-28.) Specifically, Defendants maintain dismissal is appropriate because Plaintiff has not filed an amended complaint naming the Doe Defendants, despite Defendants' disclosure of their identities on May 20, 2019 (Dkt. No. 90), and the Court's Order directing Plaintiff to file an amended complaint by June 19, 2019 (Dkt. No. 93). (Dkt. No. 95-15 at 27.) Plaintiff has not responded to this argument.
"Dismissal of a claim under Rule 41(b) for failure to prosecute is appropriate where discovery has closed and the Plaintiff has had ample time and opportunity to identify and serve the John Doe defendants but has failed to do so." Sawyer v. Prack, No. 9:14-CV-1198 (DNH/DEP), 2016 WL 5440596, at *15 (N.D.N.Y. July 29, 2016) (citations and quotation marks omitted); see also Epps v. City of Schenectady, No. 1:10-CV-1101 (MAD/CFH), 2013 WL 717915, at *4 (N.D.N.Y. Feb. 27, 2013) ("All discovery is complete and thus, plaintiff's failure to identify the 'John Doe' defendant mandates dismissal."); see also See Rothschild v. Doe #1, No. 9:14-cv-1343 (GLS/DEP), 2018 WL 4554499, at *4 (N.D.N.Y. Sept. 21, 2018) ("Now, at summary judgment, discovery is closed, and [the plaintiff] has had ample time and opportunity to identify and serve the remaining Doe and Unknown defendants. He has not. Thus dismissal of these defendants without prejudice is appropriate.").
As noted above, Plaintiff's Eighth Amendment excessive force and failure to intervene claims against Corrections Officers John Does 1-3 and medical indifference claims against Nurse Doe survived initial review. (Dkt. No. 11.) By Decision and Order entered April 22, 2019, Plaintiff was directed to file an amended complaint identifying the Doe Defendants within thirty days. (Dkt. No. 87 at 9-11.) Plaintiff was warned that failure to do so would result in dismissal of the claims against the Doe Defendants "without prejudice without further Order of the Court." Id. at 10-11 (emphasis in original). By Order entered April 29, 2019, this Court, inter alia, granted Plaintiff's request for an extension of the deadline to amend his complaint to identify the Doe Defendants and directed the parties to file status reports concerning their attempts to identify the Doe Defendants on or before May 31, 2019. (Dkt. No. 90.) On May 20, 2019, Defendants filed a status report, which purportedly disclosed the identities of the Doe Defendants. (Dkt. No. 91.) Therefore, by Order entered May 23, 2019, this Court extended Plaintiff's time to file an amended complaint by thirty days. (Dkt. No. 93.) To date, the docket reflects Plaintiff has not filed an amended complaint with the names of any of the Doe Defendants, and the time within which to do so has long passed. (See Docket Report; see also Dkt. No. 93.) Further, as Defendants correctly point out, Plaintiff has not requested any further extensions of time, nor has he provided a reason for his continued delay. (Dkt. No. 96-15 at 27.)
The Court further notes a potential statute of limitations issue with respect to the unserved John and Jane Doe defendants. The underlying incidents are alleged to have occurred on January 21, 2015. The statute of limitations for a Section 1983 claim is three years. Owens v. Okure, 488 U.S. 235, 250-51 (1989); see N.Y. Civ. Prac. L & R. § 214(5). Without considering whether the statute would be tolled for any reason, the three year statute of limitations would have run on January 21, 2018. "If the statute of limitations has run, the only way that plaintiff would be allowed to now name additional defendants is if the substitution 'relates back' to the original complaint." Mack v. Wood, No. 9:17-CV-1146 (BKS/ATB), 2019 WL 5197230, at *4 n.3 (N.D.N.Y. July 26, 2019) (citations omitted). However, there can be no relation back without a mistake about the party's identity. Id. The Second Circuit has made it clear that the failure to identify a defendant, when the plaintiff knows that the defendant must be named, may not be characterized as a mistake for relation back purposes. Id. (citing Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013)).
Based on the foregoing, the Court finds Plaintiff was afforded ample opportunity to amend his complaint to identify the Doe Defendants, yet has failed to do so. Accordingly, the Court recommends dismissal of the complaint as against the John and Jane Doe Defendants, without prejudice, in light of Plaintiff's failure to identify and serve them upon the completion of discovery. See Mack v. Wood, No. 9:17-CV-1146 (BKS/ATB), 2019 WL 5197230, at *4 (N.D.N.Y. July 26, 2019) (recommending dismissal of the pro se plaintiff's claims against the Doe Defendants without prejudice for failure to identify and serve them upon the completion of discovery), report-recommendation adopted by 2019 WL 4183894 (N.D.N.Y. Sept. 4, 2019); see also Coward v. Town & Village of Harrison, 665 F. Supp. 2d 281, 300 (S.D.N.Y. 2009) ("Where a plaintiff has had ample time to identify a John Doe defendant but gives no indication that he has made any effort to discover the [defendant's] name, . . . the plaintiff simply cannot continue to maintain a suit against the John Doe defendant." (internal quotation marks omitted)); Burns v. Trombly, 624 F. Supp. 2d 185, 197-98 (N.D.N.Y. 2008) (dismissing without prejudice pro se plaintiff's claims against John Doe defendants after two years of litigation and "adequate opportunity to conduct discovery," where plaintiff failed to name or serve said defendants).
IV. CONCLUSION
For the reasons stated above, the Court recommends granting summary judgment to Defendants Hoppins, Kooi, Bauersfeld, and Venettozzi. The Court also recommends dismissing Plaintiff's claims against the Doe Defendants without prejudice. If the District Court accepts the foregoing recommendations, only Plaintiff's Eighth Amendment excessive force claim against Thomas remains for trial.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 96) be GRANTED with respect to Defendants Hoppins, Kooi, Bauersfeld, and Venettozzi; and it is further
RECOMMENDED that Plaintiff's claims against the Doe Defendants be DISMISSED without prejudice; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: March 6, 2020
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).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge