Opinion
9:19-cv-1161 (DNH/TWD)
11-10-2021
EDWARD RANDOLPH, Plaintiff, v. LISA KALIES, et al., Defendants.
EDWARD RANDOLPH Plaintiff, pro se HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendants DAVID C. WHITE, ESQ. Assistant Attorney General
EDWARD RANDOLPH
Plaintiff, pro se
HON. LETITIA JAMES
Attorney General for the State of New York Counsel for Defendants
DAVID C. WHITE, ESQ.
Assistant Attorney General
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Edward Randolph (“Plaintiff”), who was at all relevant times in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this pro se civil rights action under 42 U.S.C. § 1983 asserting claims arising out of his incarceration at Auburn Correctional Facility (“Auburn”). (Dkt. No. 19 (the “amended complaint”).) Plaintiff alleges Office of Mental Health (“OMH”) Forensic Unit Chief Lisa Kalies (“Kalies”), OMH Licensed Clinical Social Worker and Residential Crisis Treatment Program (“RCTP”) Coordinator Stephanie Agosh (“Agosh”), and social worker Jane Doe were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. (Dkt. Nos. 19, 23, 55.) Kalies and Agosh (together “Defendants”) now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 62.) Plaintiff filed a response. (Dkt. No. 72.) Defendants filed a reply. (Dkt. No. 76.)
Defendants' motion has been referred for a Report-Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). For reasons explained below, the Court recommends granting Defendants' motion.
II. BACKGROUND
Plaintiff claims he was denied adequate care for his serious mental health needs at Auburn from August 2017 through November 2017. (Dkt. No. 19.) Plaintiff also claims Defendants were deliberately indifferent to his mental health needs by discharging him from the RCTP resulting in his attempted suicide on November 21, 2017. Id. In support of their motion, Kalies and Agosh submitted declarations, along with relevant medical records, which the Court summarizes below.
On August 24, 2017, Plaintiff was housed in the Special Housing Unit (“SHU”) at Auburn and alerted a corrections officer that he was depressed and having suicidal thoughts. (Dkt. No. 62-2 at ¶ 6.) He was then transferred from the SHU to the RCTP, where he remained for twelve days for observation and treatment. Id.
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Agosh evaluated Plaintiff on September 5, 2017. (Dkt. No. 62-2 at ¶ 7.) It was noted Plaintiff had been resting comfortably throughout the day, there were no reports of any disruptive sleep behaviors throughout the night, he was not tearful or crying, he had not engaged in any self-harming behaviors, he had no behavioral issues, he had been eating all meals, and he had been socializing with his peers. Id. Plaintiff was talkative and engaged and they discussed potential triggers/stressors in Plaintiff's life, including his sentence, his anger at his children's mother regarding missed visitation, thoughts about his children's wellbeing, the loss of his grandmother who was his emotional and financial support, and issues with his sister's health. Id. Overall, Agosh found Plaintiff's objective presentation was incongruent with his prior reports of thoughts of self-harm. Id. Based upon this comprehensive evaluation and collaboration with the treatment team, Plaintiff was discharged from the RCTP. Id.
As set forth in Agosh's declaration, the determination to discharge inmates, including Plaintiff, from the RCTP is made by the treatment team with a final decision made by the treating psychiatrist/psychiatric nurse practitioner, or the Unit Chief. (Dkt. No. 62-2 at ¶ 8.)
Plaintiff, however, refused orders to return to the SHU and was forcibly extracted by corrections staff. (Dkt. No. 62-1 at ¶ 6.) Thereafter, Plaintiff threatened self-harm in his SHU cell and was re-admitted to the RCTP. Id. at ¶ 8.
Plaintiff remained under observation and was evaluated by Agosh on September 6, 2017. (Dkt. No. 62-2 at ¶ 9.) Plaintiff was resting comfortably and exhibited no signs of mental distress or self-harm. Id. Security advised Agosh that Plaintiff had been eating meals, had not had any behavioral issues, had not engaged in any self-harming behaviors, and was witnessed socializing with his peers. Id. Agosh consulted with the treatment team, and it was determined Plaintiff would remain in the RCTP overnight and would be discharged the following day pending any notable changes to his mental status. Id.
The next day, security reported that Plaintiff had no issues sleeping through the night, he was witnessed on several occasion socializing and laughing with peers, and was overheard discussing plans to remain in the RCTP rather than returning to the SHU. Id. Although Plaintiff reported that he wanted to hurt himself, Agosh found his presentation continued to be incongruent with such statements. Id. Plaintiff displayed no objective signs of depression or anxiety and only presented angry when discussion of returning to the SHU was mentioned. Id. After being informed of the treatment team's decision to discharge him from the RCTP, Plaintiff responded, “I'm not fucking leaving.” Id. After Agosh left, Plaintiff smeared feces on his body, refused to leave the RCTP, and was forcibly extracted from his cell. Id. Thereafter, Kalies accompanied Plaintiff from the RCTP to the SHU. (Dkt. No. 62-3 at ¶ 9.)
As Chief Forensic Officer, Kalies was charged with supervision of administrative and clinical services provided within the MHU. (Dkt. No. 62-3 at ¶¶ 1, 2.)
Once in his SHU cell, Plaintiff fashioned a noose with a bed sheet and threatened self-harm. Id. Plaintiff was then transferred to another SHU cell under a cell property deprivation order. (Dkt. No. 19 at 19.) There, Plaintiff located a “stereo headphone jack” in the wall, broke it apart, and used pieces of metal to cut his wrist “viciously.” Id. at 20; see also Dkt. No. 62-6 at 26-28. Plaintiff swallowed the pieces of metal and received medical attention for his injuries, which did not require a Band-Aid or other form of closure. (Dkt. No. 62-3 at ¶ 10.)
Kalies was notified that Plaintiff had used a piece of a headphone jack to “superficially” scratch himself and she authorized Plaintiff's readmission to the RCTP. Id. Plaintiff was placed on a 1:1 watch in the infirmary for both mental health observation and contraband watch, pending retrieval of the piece of metal. Id. Plaintiff was evaluated by mental health staff daily. Id. Plaintiff claims his requests for “special mental health treatment” and an appointment with a psychiatrist were denied. (Dkt. No. 19 at 22.)
As set forth in Agosh's declaration, DOCCS is in charge of any contraband watch and makes any decision in regard to placing an inmate on a watch or removing the inmate from one. (Dkt. No. 62-2 at ¶ 8.)
On September 8, 2017, Kalies performed a comprehensive sixty-minute evaluation of Plaintiff. (Dkt. No. 62-3 at ¶ 11.) Plaintiff vented his frustrations to Kalies and discussed his grandmother's passing. Id. Over the course of the next two weeks, Plaintiff was housed in the infirmary, where he was evaluated daily by medical professionals, and was generally sleeping throughout the night, eating meals, and socializing throughout the day. Id. He showed no active signs of distress, significant depression, or anxiety. Id. Kalies evaluated Plaintiff on September 20, 2018, during which time he resisted her attempts to counsel him on ways to feel better, including taking his medications and implementing coping skills. Id. at ¶ 12.
Plaintiff was also examined by non-party Jesse Palermo (“Palermo”), a licensed master social worker, on September 29, 2017. (Dkt. No. 62-1 at ¶ 24.) Plaintiff reported that he had been engaging in self-harming behavior, such as scratching and picking at his scabs, because he “needed treatment” and help. Id.
Agosh examined Plaintiff on October 2, 2017, and Plaintiff expressed his frustration that the mental health treatment was not helping. Id. at ¶ 25. Agosh noted Plaintiff continued to be resistant to engage in therapeutic discussions. Id.
On October 17, 2017, security reported Plaintiff had used his mattress to cover himself and was picking his scabs. Id. at ¶ 23. He also had blocked the hatch on the cell door for several hours. Id. Nursing staff indicated Plaintiff refused psychiatric medications. Id. Thereafter, Kalies and the treatment team determined Plaintiff would be moved from the infirmary to an observation cell in the RCTP. (Dkt. No. 62-3 at ¶ 13.) As set forth in her declaration, Kalies made this determination based upon Plaintiff's mental state at that time, and determined that the MHU observation cell offered the best means by which to treat Plaintiff as he could be monitored and observed at all times. Id. Plaintiff refused this transfer and was extracted by security. Id.
On October 25, 2017, Plaintiff refused to meet with Agosh. (Dkt. No. 62-2 at ¶ 35.) Security advised Plaintiff had no behavioral issues that day, had not engaged in any self-harm, and continued to eat his meals. Id. (Dkt. No. 62-2 at ¶ 35.)
On November 3, 2017, Plaintiff was temporarily transferred to the RCTP at Five Points Correctional Facility (“Five Points”). (Dkt. No. 62-10 at 2.) There, Plaintiff engaged in no self-harming behavior, was seen by a psychiatrist three times, and was offered interviews with OMH clinicians during his admission, which he mostly refused. (Dkt. No. 62-2 at ¶ 29.) It was noted Plaintiff showed no signs of any distress, was socializing with peers, and was overheard discussing that he wanted to remain in the RCTP. Id. The treatment team at Five Points did not find any clinical indication to warrant Plaintiff's continued admission in the RCTP and discharged Plaintiff back to Auburn on November 15, 2017. Id.; see also Dkt. No. 72-2 at 61.
Plaintiff testified he did not receive any mental health treatment, was not examined by a psychiatrist, and did not speak to any inmates at Five Points. (Dkt. No. 62-6 at 70-71.)
Plaintiff was discharged from Auburn's RCTP to the SHU on November 16, 2017. (Dkt. No. 62-2 at ¶ 29.) However, Plaintiff failed his SHU screening and was readmitted to the RCTP almost immediately after cutting his arm and swallowing a small piece of metal in front of staff. (Dkt. No. 63-6 at 4.)
Plaintiff claims social worker Jane Doe, “cleared” him for SHU admission. (Dkt. No. 19 at 30-31.) In his opposition submission, Plaintiff states Jane Doe is “known now” as “Doe McLeod”. (Dkt. No. 72 at 57.) To date, Plaintiff had not moved to substitute “Doe McLeod” in place of Jane Doe. (See Docket Report.)
Agosh evaluated Plaintiff on November 21, 2017. (Dkt. No. 62-2 at ¶ 30.) During this interview, Plaintiff discussed his past history of significant time in the SHU. Id. Plaintiff reported, “I never minded it . . . my lawyer said the longer I stay in the SHU . . . the bigger the payout I get”. Id. Agosh asked Plaintiff why he felt that coming to Auburn had triggered him as he had never before threatened self-harm. Id. Plaintiff responded, “I asked for help . . . and you people cleared me”. Id.
Later that evening, Plaintiff attempted to commit suicide by lacerating his antecubital fossa with a sharp object and was taken to Erie County Medical Center (“ECMC”) for further treatment. (Dkt. No. 62-1 at ¶ 38.) Plaintiff was discharged from ECMC on November 22, 2017, and subsequently transferred to Wende Correctional Facility. Id. at ¶ 39.
III. DISCUSSION
A. Legal Standard
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of fact is material for purposes of this inquiry if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “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).
The Second Circuit has 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.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). “At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
B. Plaintiff's Failure to Comply with Local Rules
Pursuant to this District's Local Rules, “[t]he Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” N.D.N.Y. L.R. 56.1(b). Where a party has failed to respond to the movant's statement of material facts as required by the Local Rules, 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' Statement of Material Facts. (Dkt. No. 62 at 3.) While Plaintiff submitted a response to Defendants' motion, he failed to do so in the manner required under the Local Rules. “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 Fed.Appx. 73 (2d Cir. 2019) (summary order).
Local Rule 56.1(b) 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 a short and concise statement, in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises.” (See Dkt. No. 72-3.) Additionally, pursuant to Local Rule 10.1, a response memorandum of law is limited to 25 pages without leave of Court. Plaintiff's memorandum of law in opposition to Defendants' motion is 61 pages in length. (Dkt. No. 72.)
Although this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on a court to conduct a searching and independent review of the record to find proof of a factual dispute where a non-movant willfully fails to respond to a properly filed summary judgment motion, Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002), the Second Circuit has ruled that “[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules, ” including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and whether to “conduct an assiduous review of the record.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.
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 [the] burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained 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' 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. Deliberate Indifference
The Eighth Amendment explicitly prohibits the infliction of “cruel and unusual punishment.” U.S. Const. amend. VIII. This prohibition encompasses the provision of medical care involving “the unnecessary and wanton infliction of pain.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations omitted). However, not “every injury” a prisoner suffers “translates into constitutional liability for prison officials.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). In order to establish an Eighth Amendment claim for medical indifference, a plaintiff must allege that the defendant was deliberately indifferent to a serious medical need. See id. This standard requires proof of both an objective and subjective element.
The objective component “requires that the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)) (internal quotation marks omitted). Courts have found that ‘[t]reatment of mental disorders of mentally disturbed inmates is . . . a serious medical need . . . .'” Fontaine v. Cornwall, No. 9:15-CV-432 (DNH), 2019 WL 4257136, at *4 (N.D.N.Y. Sept. 9, 2019) (alternations in original) (quoting Hamilton v. Smith, No. 06-CV-805 (GTS/DRH), 2009 WL 3199531, at *14 (N.D.N.Y. Jan. 13, 2009)); see also Helijas v. Corr. Med. Care, Inc., No. 115-CV-1049 (GTS/DJS), 2016 WL 5374124, at *13 (N.D.N.Y. Sept. 26, 2016) (“With respect to the objective prong of an Eighth Amendment claim, courts have found that depression with suicidal ideation, or severe anxiety attacks are sufficiently severe conditions to meet the objective element of the deliberate indifference standard.” (quotation marks and citation omitted)).
Under the subjective component, medical mistreatment rises to the level of deliberate indifference only when it “involves culpable recklessness, i.e., an act or a failure to act . . . that evinces ‘a conscious disregard of a substantial risk of serious harm.'” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (quoting Hathaway, 99 F.3d at 553). Thus, the defendant “official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.” Farmer, 511 U.S. at 837. Satisfying this standard “entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835. Accordingly, “an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838; see also Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (holding that an “inadvertent failure to provide adequate medical care” does not constitute “deliberate indifference”); Chance, 143 F.3d at 703 (holding that “[m]ere disagreement over proper treatment does not create a constitutional claim, ” as long as the treatment was adequate); Hathaway, 99 F.3d at 553 (holding that “mere medical malpractice” does not constitute deliberate indifference unless the malpractice involved “culpable recklessness”).
“In an inmate suicide context, there are two scenarios where deliberate indifference may exist.” Allah v. Kemp, No. 9:08-CV-1008 (NAM/GHL), 2010 WL 5860290, at *7 (N.D.N.Y. Nov. 9, 2010). “First, officials could be deliberately indifferent to the risk of suicide by failing to discover an individual's suicidal tendencies.” Id. (quotation marks and citation omitted). “Second, officials could have discovered and have been aware of the suicidal tendencies, but could be deliberately indifferent in the manner by which they respond to the recognized risk of suicide.” Id. (quotation marks and citation omitted). “The second scenario focuses on the adequacy of preventive measures.” Id. (quotation marks and citation omitted). However, even if a medical defendant's “treatment decision was erroneous, deliberate indifference cannot be inferred [where] the decision was not such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Sims v. Gorman, No. 09-CV-6643, 2012 WL 566875, at *6 (W.D.N.Y. Feb. 21, 2012) (quotation marks and citation omitted).
Here, Defendants argue that assuming, arguendo, Plaintiff has satisfied the objective prong of the analysis, Plaintiff has failed to satisfy the subjective component. (Dkt. No. 62-4 at 7-12.) According to Defendants, the record evidence establishes that they treated Plaintiff in accordance with their professional judgment at all times and did not act with deliberate indifference in the care provided to Plaintiff at any time. Defendants contend Plaintiff has not, and cannot, establish that any actions by them rise to the level of deliberate indifference. At best, Defendants assert Plaintiff's claim amounts to a difference in opinion as to the mental health treatment Plaintiff required.
Generally, in opposition, Plaintiff argues Defendants have “fabricated a lot of the information” they provided, “fudged [their] notes”, “falsified” information, and have not “truthfully reported” their encounters with Plaintiff. (Dkt. No. 72-3 at 2, 3, 11, 27, 36; see also Dkt. No. 72 at 59-60.) Plaintiff further claims Defendants were “deliberately indifferent” to Plaintiff's established emotional and psychological instabilities, including by discharging him from the RCTP, refusing to refer Plaintiff to a psychiatrist or other medical professional, and relying on “hearsay” information from unidentified security and treatment team staff, which resulted in his suicide attempt. Id.
After carefully considering the entire record, the Court finds Defendants have met their initial burden of establishing that there is no genuine issue of material fact to be decided. Insofar as Plaintiff contends that Defendants failed to provide him with adequate or appropriate mental health treatment, his claim is belied by the record. To that end, Agosh's sworn declaration and treatment notes establish that during each of her twenty-four visits with Plaintiff, she performed, or attempted to perform, a medical evaluation of Plaintiff:
Throughout the time period at issue, I continuously evaluated and treated plaintiff for his mental health issues, including suicidal
thoughts, statements, and self harming behaviors. Not only did I personally evaluate and treat plaintiff, but I consulted with multiple members of the treatment team who also treated plaintiff, as well as other OMH licensed staff whether through consultation and when he was transferred to Five Points RCTP for evaluation by another treatment team. At no time did I act with deliberate indifference toward plaintiff regarding his mental issues and self-harming behaviors. The records in this matter conclusively establish that my treatment of plaintiff, and associated treatment decisions, were based upon comprehensive and constant evaluations of plaintiff and my professional judgment as a licensed master social worker.(Dkt. No. 62-2 at ¶ 31.) For her part, Kalies declares:
Plaintiff was seen and treated multiple times per day for his mental health issues and no actions were taken with deliberate indifference to plaintiff's ongoing complaints and threats of self-harm. In fact, just the opposite, as myself and the treatment team members treated plaintiff continuously and to the best of our abilities. Further, all treatment and associated decisions I made were based upon my professional judgment and plaintiff's condition with the intent of providing plaintiff with the best possible care.(Dkt. No. 62-3 at ¶ 14.) Kalies further states that “[t]he records of my treatment and that of my co-workers establish that the treatment provided to plaintiff was appropriate and thorough at all times.” Id. at ¶ 5. Additionally, Plaintiff was evaluated on a daily basis and received nursing visits at least twice per day to provide medication and to check on his welfare. (Dkt. No. 62-6 at 18, 29.) In sum, the declarations of Agosh and Kalies submitted in support of their motion for summary judgment establish that the treatment they provided to Plaintiff during the time period at issue was reasonable, appropriate, and based upon their professional judgment. (Dkt. No. 62-2 at ¶¶ 5, 31, Dkt. No. 62-3 at ¶¶ 5, 14.)
In this case, although Plaintiff has submitted over 148 pages of opposition papers, Plaintiff does not offer the testimony or report of any other mental health professional to demonstrate the treatment provided was inappropriate or not responsive to any recognized risk of suicide, which may show that there is a genuine unresolved issue of material fact for trial. Instead, in conclusory and speculative terms, Plaintiff claims the medical records at issue were “fudged” and “falsified” and contain “conflicting” testimony that cannot be resolved on summary judgment. (See, e.g., Dkt. No. 72-3 at 2, 3, 11, 27, 36.)
Moreover, as pointed out by Defendants in their reply, while Plaintiff contends that Defendants were involved in some sort of conspiracy with unknown members of the Auburn staff, at no point in Plaintiff's voluminous opposition papers does Plaintiff cite to or produce any admissible evidence or facts in support of his contention that Defendants acted with deliberate indifference to his Eighth Amendment rights and instead Plaintiff relies on unfounded conspiracy theories and speculation. (Dkt. No. 76 at 5.)
For example, Plaintiff “firmly believes . . . [Agosh] was providing falsely contrived misinformation within her daily progress notes in order to make it appear as if she had been right in her clinical assessments of the plaintiff and within her professional judgments when making the recommendations to have the plaintiff cleared and discharged from the RCTP.” (Dkt. No. 72-3 at 18-19.) Plaintiff further claims Agosh has a “history” and “pattern of behavior” of discharging inmates from the RCTP and her “only concern” was to “clear out the RCTP observation unit . . . and she was dead set on doing that regardless of the likely consequences to which she had become clearly adapted to working around and explaining away were her usual explanations.” Id. at 20. Plaintiff claims Defendants “acted in conjunction with one another, but not to provide the claimant with adequate or meaningful mental health care/treatment. They acted in conjunction with each other's personal views that plaintiff may have been attempting to manipulate the OMH system . . . .” (Dkt. No. 72 at 59-60.) However, such conclusory statements of deliberate indifference and conspiracy do not create a genuine issue of material fact to survive summary judgment. See, e.g., Morales v. Fischer, 46 F.Supp.3d 239, 250 (W.D.N.Y. 2014).
Further, while Plaintiff clearly takes issue with the medical attention and treatment he received at Auburn, 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. As such, disagreements over medications, 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 Sims v. Gorman, 2012 WL 566875, at *5 (finding no deliberate indifference despite an eventual suicide attempt by the plaintiff because “the decisions made by mental health professionals ‘are issues within a professional medical judgment' which does not form a basis for an Eighth Amendment claim”); see also Robinson v. Taylor, No. 9:16-CV-285 (DJS), 2019 WL 1429529, at *6 (N.D.N.Y. Mar. 29, 2019) (“In making a decision about whether [the plaintiff] could be medically cleared for SHU admission, [the doctor-defendant] was clearly exercising medical judgment.”).
As to Plaintiff's claims that he was “denied” medical treatment that he “felt” he “needed”, and that Agosh was “indifferent” to his serious medical needs because, among other things, she denied Plaintiff access to medical treatment, specifically psychiatric care, Plaintiff's subjective belief that “more” should have been done for him is insufficient to establish deliberate indifference. See Burgos, 418 F.Supp.2d at 265; see also Sereika v. Patel, 411 F.Supp.2d 397, 407 (S.D.N.Y. 2006) (“allegations that [plaintiff] . . . was not referred to a specialist . . . do not state a claim for deliberate indifference”). As discussed, a “mere disagreement over the proper treatment does not create a constitutional claim.” Chance, 143 F.3d at 70.
In this case, although Plaintiff claims he was “improperly” discharged from the RCTP to the SHU, the record demonstrates Plaintiff was discharged from the RCTP on multiple occasions based upon the comprehensive psychiatric evaluation by the Auburn treatment team, including Defendants, both of whom were exercising medical judgment. (Dkt. No. 62-2 at ¶ 31.) In any event, the record demonstrates that from Plaintiff's initial admission to the RCTP in August of 2017 through November of 2017, he spent virtually no time outside of the RCTP. (Dkt. No. 62-6 at 72.) Moreover, as the summary of the treatment records as outlined above show, Plaintiff was frequently evaluated and/or examined by Defendants or someone else on the treatment team.
Contrary to Plaintiff's assertions, that “[t]here is absolutely nothing in the record to support that there were even treatment team meetings, or how many people participated, if any did, in these alleged meetings[, ]” (Dkt. No. 72-3 at 13), the sworn declarations of both Agosh and Kalies constitute such evidence. (Dkt. Nos. 62-2, 62-3.) Further, to the extent Plaintiff takes issue with Defendants relying on “security” and “staff” and other “hearsay information” (Dkt. No. 72-3 at 20, 33, 40), “medical opinions are often based upon the representations of third parties as to a patient's conduct or exhibition of symptoms[.]” Zimmerman v. Racette, No. 9:17-CV-375 (TJM/CFH), 2020 WL 1329138, at *7 (N.D.N.Y. Mar. 23, 2020) (granting summary judgment to doctor-defendant where, inter alia, the doctor-defendant's declaration indicated “staff informed [him] that while in the RCTP, plaintiff had been eating and sleeping well without any problems”). Here, like in Zimmerman, Defendants' opinions were based upon a number of factors including their personal observations during examinations and their discussions with Plaintiff; any references to third-party representations were not the central basis of Defendants' medical opinions.
In sum, the undisputed material facts demonstrate that Defendants consistently and reasonably treated Plaintiff's serious medical needs. While Plaintiff is clearly dissatisfied with his medical care and believes that additional treatment and care were warranted based on his complaints, threats of self-harm, and suicidal actions, the record evidence demonstrates that Defendants did not ignore, refuse, or fail to treat Plaintiff's conditions. Rather, as detailed above, the record evidence demonstrates that Defendants, together with other medical professionals at Auburn, were responsive to Plaintiff's mental health, threats of self-harm, and actions and were not deliberately indifferent to Plaintiff's serious medical needs. See Gumbs v. Dynan, No. 11-CV-857, 2012 WL 3705009, *14 (E.D.N.Y. Aug. 26, 2012) (“[A] medical judgment is not deliberate indifference just because it is not the inmate's preferred course of treatment.”).
Lastly, while Plaintiff claims deliberate indifference is established because “Defendants misjudged the plaintiff's psychological instability” and he “nearly succeeded in taking his own life, ” (Dkt. No. 72 at 60), contrary to Plaintiff's assertion, “[t]he fact that Plaintiff attempted suicide after medical professionals had examined him and found him not to be a risk of harm to himself does not itself establish deliberate indifference.” Robinson v. Taylor, 2019 WL 1429529, at *7 (finding no deliberate indifference where medical professionals released the plaintiff from the OBS unit who attempted suicide because mere fact that defendants “might have ultimately been wrong in [their] professional judgment does not support a showing of deliberate indifference”).
After careful review of the record evidence, the Court finds no reasonable juror could conclude Defendants acted with deliberate indifference to Plaintiff's serious medical needs. Accordingly, the Court recommends granting Defendants' motion for summary judgment.
IV. CONCLUSION
For the reasons stated above, Plaintiff fails to raise any triable question of material fact that Defendants were acting with deliberate indifference rather than in exercise of their medical judgment.
WHEREFORE, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 62) be GRANTED; 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).