Opinion
99 Civ 11666 (GBD)(FM)
February 5, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
Plaintiff Emeterio Roman brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 seeking money damages as a consequence of the defendants' alleged denial of his due process rights and deliberate indifference to his medical needs. Roman, who is HIV positive, contends that his constitutional rights were violated when he was wrongly accused of misconduct, was placed on a restricted diet, and had a plexiglass shield installed on his cell.
The defendants are Glenn S. Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"); Robert H. Kuhlmann, Superintendent of the Sullivan Correctional Facility ("Sullivan"); Dana G. Aidala, the Deputy Superintendent/Security at Sullivan; and Peter Healy, a Captain at Sullivan. All four defendants have moved for summary judgment on various grounds pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the defendants' motion be granted and the complaint dismissed.
I. Background
A. Facts
Although he received notice of the defendants' motion, Roman has not submitted any opposition papers. Accordingly, the following recitation of the facts is based upon Roman's unsworn complaint, the defendants' motion papers, and matters of public record. Unless otherwise noted, any facts reasonably in dispute have been set forth in the light most favorable to Roman.
Roman is serving a sentence of seven and one-half to fifteen years following his conviction on several narcotics charges. (See http://nysdocslookup. docs.state.ny.us/kinqw00). In December 1996, while he was incarcerated, Roman was diagnosed as HIV positive. (See Compl. Ex. 6 (letter dated Dec. 3, 1996, from the N.Y.S. Dep't of Health to Dr. Kang Lee of Clinton Corr. Facility). Shortly thereafter he was transferred to Sullivan. (Compl. at 4).
The six exhibits to Roman's complaint are not numbered. For ease of reference, I have assumed that they are numbered sequentially.
In June 1998, while he was lodged in the Special Housing Unit ("SHU") at Sullivan, Roman received a misbehavior report which accused him of engaging in belligerent conduct, including the throwing of a liquid at Correction Officer Wayne Jordan. (Healy Aff. ¶¶ 6-7; Singleton Decl. Ex. N (Inmate Misbehavior Report)). As a result, Captain Healy recommended that Roman be placed on a "restricted diet" from June 26 through July 2, 1998. (Healy Aff. ¶ 9). At the time that Captain Healy made this recommendation, he did not know that Roman was a HIV positive. (Healy Aff. ¶ 10).
DOCS regulations provide that an inmate may be placed on a restricted diet for a number of reasons, including such "unhygienic acts" as spitting at staff or throwing feces or urine. 7 N.Y.C.R.R. § 304.2(b). An inmate who is placed on a restricted diet is fed "cabbage loaf" three times a day. (Sidorowicz Aff. ¶ 6). Cabbage loaf, curiously, contains no cabbage; instead, it is composed of whole wheat flour, sugar, shredded carrots, potatoes, milk and yeast. (Id.). An inmate is fed cabbage loaf for four days, followed by two days of regular meals, for the duration of the restricted diet order. (Id. at ¶ 7). Pursuant to DOCS regulations, an inmate placed on a restricted diet is advised that he may "write to the Deputy Superintendent for Security or his/her designee to make a statement as to the need for continued pre-hearing imposition of the restricted diet." 7 N.Y.C.R.R. § 304.2(c). Roman received the required notice. (See Compl. Ex. 5).
One month after the incident in the SHU, Deputy Superintendent Aidala directed that a "cell shield" be placed on Roman's cell from July 27 through August 2, 1998. (Aidala Aff. ¶ 10; Singleton Decl. Ex. K). A cell shield is "a transparent cell front covering, equipped to provide adequate ventilation." 7 N.Y.C.R.R. § 305.6(a). The DOCS regulations provide that cell shields may be ordered for "good cause," including the throwing of feces, urine or other objects through the cell door. Id. § 305.6(b) DOCS has an extensive series of protocols applicable to inmates placed on restrictive diets, including advance notice to the correctional facility's health services department and daily monitoring of any inmate placed on such a diet by medical personnel. Id. § 304.4. Additionally, DOCS Directive No. 4933 states that inmates who are HIV positive may not be placed on a restricted diet. (Sidorowicz Aff. ¶ 9; Singleton Aff. Ex. D).
There is substantial evidence that Roman never was placed on a restricted diet. First, on June 26, 1998, Dr. Vladislav Sidorowicz, the Health Services Director at Sullivan, determined that Roman could not be placed on a restrictive diet, and noted that conclusion on an Ambulatory Health Record. (Sidorowicz Aff. ¶¶ 11-14; Singleton Aff. Ex. F at 171). It was the practice at Sullivan that such directives were "promptly communicated" to SHU personnel. (Sidorowicz Aff. ¶ 15).
Furthermore, medical personnel are required to visit SHU inmates daily to determine whether they need medical attention. (Id. ¶ 17; see also 7 N.Y.C.R.R. § 304.4(b)). Inmates in the SHU who are on a restricted diet must also be examined within 24 hours after the restriction is imposed and daily thereafter. (Sidorowicz Aff. ¶¶ 19-20; 7 N.Y.C.R.R. § 304.4(e)).
In this case, the SHU Control Room logbook, which is extremely detailed, indicates that certain inmates were placed on restricted diets during the relevant time period, but that "Per Medical Nurse Fisher, Roman E 95A6909 can't be placed on special diet loaf for medical reasons." (See Lamonica Aff. ¶ 18; Singleton Aff. Ex. G at 247). The logbook also shows that Roman exercised regularly during the week of June 26 through July 2, 1998. (See Singleton Aff. Ex. G passim).
The only material suggesting that Roman was in fact fed a restricted diet, contrary to Dr. Sidorowicz's instructions, consists of Roman's unsworn complaint and one arguably inconsistent statement in his grievance file. On June 26, 1998, Roman filed a grievance in which he complained about Captain Healy's directive that he be placed on a restricted diet commencing that day. Although a Sergeant Brickner evidently responded that Roman "was not placed on restricted diet as ordered by the medical department," the Inmate Grievance Review Committee's July 3, 1998 response to his grievance stated that the "[g]rievant is no longer on diet per medical department" and that he was to "write the grievance dep't. if this problem continues." (Singleton Aff. Ex. J at 6-7) (emphasis added).
Roman did not appeal to the Superintendent from this determination. (Id. at 6). Nonetheless, Roman apparently wrote a separate letter to Superintendent Kuhlmann, who responded that the recommendation for a restricted diet "was denied upon review by the facility medical department." (Compl. Ex. 4). Kuhlmann also urged Roman to comply with facilities rules and departmental regulations. (Id.).
Although the DOCS disciplinary records are not a model of clarity, it appears that a Superintendent's Tier-III hearing held on July 2, 1998 resulted in a finding that Roman was guilty of certain misconduct at 4:20 p.m. on June 23, and that DOCS affirmed this decision on appeal on September 16, 1998. (See Singleton Aff. Ex. N at 6). A second Superintendent's Tier-III hearing on July 9, 1998, with respect to other alleged misconduct by Roman on June 23, apparently resulted in a finding of guilt which DOCS claims was reversed on appeal on procedural grounds. (See Resp't's Rule 56.1 Stmn't ¶¶ 33, 39-40). DOCS has not produced any records related to the second disciplinary hearing and appeal, the records of which it alleges have been expunged. (Id. ¶ 41).
B. Complaint
Roman's complaint was received by the Pro Se Clerk's Office of this Court on October 1, 1999. (See Docket No. 2). Liberally construed, the complaint raises claims of deliberate indifference to Roman's medical needs, in violation of the Eighth Amendment, because he was subjected to a plexiglass cell shield and placed on a restricted diet for a period of one week. (Id. at 4-5). Additionally, the complaint alleges violations of Roman's Fourteenth Amendment due process rights as a consequence of (a) the installation of the cell shield for one week and (b) his wrongful placement in the SHU for a period of 76 days. (Id. at 4-6). Roman states that these deprivations led to "mental anguish, loss of w[e]ight, depression [and] anxiety." (Id. ¶ IV-A). He seeks compensatory and punitive damages in the amount of $1 million, as well as an injunction against future similar violations. (Id. ¶ V).
According to the complaint, Healy is named as a defendant because he ordered the restricted diet; Aidala because he ordered the cell shield; Goord because he is the DOCS Commissioner; and Kuhlmann because he is the Superintendent of Sullivan and responded to Roman's letter regarding his restricted diet. (Compl. at 4-6).
C. Motion
The defendants filed their motion for summary judgment on May 5, 2000. Among the motion papers that they served on Roman were a Notice of Motion indicating a return date of July 19, 2000, and a Notice to Pro Se Litigant in the form required by Local Civil Rule 56.2. (Docket Nos. 10, 11). Despite these admonitions, Roman has never responded to the summary judgment motion. Instead, he claims to have language difficulties which require the appointment of counsel to represent his interests. The latest of his motions seeking the appointment of counsel was filed on May 8, 2002. (Docket No. 15).
Shortly before the defendants filed their motion, this case was reassigned to Your Honor's calendar from that of the Hon. John S. Martin, Jr. (See Docket No. 8). The motion first was referred to me for a report and recommendation approximately two months ago. (Docket No. 17).
By memorandum endorsements dated January 14 and April 29, 2000, I denied Roman's two prior requests for the appointment of counsel. (See Docket Nos. 3, 9). In deciding whether to grant a request for pro bono counsel, a court must evaluate several factors including the merits of the plaintiff's claims, the factual issues and complexity of the case, and the plaintiff's ability to act on his own behalf. Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986). (See Docket #3). Here, as set forth below, there is no merit to any of Roman's claims. Accordingly, his latest request for counsel must also be denied.
II. Discussion
A. Summary Judgment
Standard Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only when
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Moreover, assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court. Id.; see also Fed.R.Civ.P. 56(e) 1963 Advisory Committee Note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
To defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514.
Although the same summary judgment rules are applicable when a party is proceeding pro se, special latitude is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are inartfully worded. See Morris v. Citibank, N.A., No. 97 Civ. 2127, 1998 WL 386175, at *2 (S.D.N.Y. July 8, 1998); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (pro se complaint should be held to less stringent standard than formal pleadings drafted by counsel); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pleadings should be read liberally and interpreted to "raise the strongest arguments they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). By the same token, however, "a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom v. Keane, 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1995)).
B. Defendants Healy and Aidala
1. Eighth Amendment Claims
The Eighth Amendment protects inmates from the infliction of "cruel and unusual punishments" that "involve the unnecessary and wanton infliction of pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). This protection extends to the provision of adequate medical care to inmates. See id. (citing Estelle, 429 U.S. at 103, 97 S.Ct. at 290); Edmonds v. Greiner, 2002 WL 368446, at *8 (S.D.N.Y. Mar. 7, 2002) ("A person who is incarcerated is entitled to receive adequate medical care."). Prison officials violate this right when they are deliberately indifferent to an inmate's serious medical needs. See Estelle, 429 U.S. at 104; Word v. Croce, 169 F. Supp.2d 219, 226 (S.D.N.Y. 2001).
The deliberate indifference standard incorporates both objective and subjective elements. First, an inmate must show that the alleged deprivation was, in objective terms, "sufficiently serious." Hathaway, 37 F.3d at 66 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991); see also Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting) (standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain"). Second, the defendant must have acted with a "sufficiently culpable state of mind." Hathaway, 37 F.3d at 66. To meet the deliberate indifference standard, an inmate must establish that the prison official's conduct was more than negligent, but he need not show that it was "undertaken for the very purpose of causing harm." Id. Thus, a prison official has not acted in a deliberately indifferent manner unless he "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." Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). Stated somewhat differently, "the plaintiff must demonstrate that the defendant actually wish[ed] him harm or at least [was] totally unconcerned with his welfare." LaBounty v. Gomez, 1997 WL 104959, at *5 (S.D.N.Y. Mar. 10, 1997) (quoting Hathaway, 37 F.3d at 69 (internal quotes and citations deleted)); Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992) (same).
a. Restricted Diet
In this case, there is no question that HIV is a serious condition which, if left untreated, can result in death. See, e.g., Smith v. Carpenter, 2003 WL 115223, at *5 (2d Cir. Jan. 14, 2003). Indeed, DOCS own regulations provide that a restricted diet is absolutely prohibited for HIV-positive inmates. Roman, however, is not contesting the quality of the medical care that he received at Sullivan.
As the Second Circuit recently noted in Smith, "[w]hen the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in 'objective terms, sufficiently serious,' to support an Eighth Amendment claim. Smith, 2003 WL 115223, at *5 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Here, the uncontradicted evidence appears to establish that Roman was not placed on a restricted diet pursuant to Captain Healy's order. Moreover, even if Roman were able to establish that Dr. Sidorowicz's order was never received by the SHU, or was countermanded, it is by no means clear that being subjected to a cabbage loaf diet for a period of four or five days during a seven-day period would constitute a sufficiently serious interruption of treatment to meet the objective component of an Eighth Amendment deliberate indifference claim. See Smith, 2003 WL 115223, at *6 ("As we noted in Chance, it's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes.").
More importantly, even if Roman were able to establish a sufficiently serious deprivation, his restricted diet claim would nevertheless fail at the second required step of the analysis because Captain Healy had no knowledge of Roman's medical condition, and Dr. Sidorowicz, who was aware of the problem, followed DOCS procedures to the letter by declining to authorize the restricted diet. Consequently, Roman cannot show that any defendant deliberately, or even recklessly, ignored a serious risk to his health arising out of the alleged imposition of a restricted diet.
Finally, Roman's Eighth Amendment restricted diet claim also runs afoul of the Prisoner Litigation Reform Act of 1996 ("PLRA"). Under 42 U.S.C. § 1997e(e), as amended by the PLRA, "no Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury." "Courts have strictly construed this requirement, barring claims by prisoners who demonstrate solely emotional or mental injury and barring physical injury claims where the injury alleged is de minim[i]s."). Porter v. Coombe, 1999 WL 587896, at *2 (S.D.N.Y. Aug. 4, 1999). Roman's only alleged physical injury is that he lost weight while on a restricted diet. (See Compl. ¶ IV(A)). Although his complaint provides no details whatsoever regarding this alleged harm, even a showing of a substantial weight loss would be insufficient to establish a physical injury under Section 1997e(e). See Porter, 1999 WL 587896, at *3 (twenty-five pound weight loss does not constitute a physical injury).
b. Cell Shield
Roman's Eighth Amendment claim arising out of the installation of a cell shield fails for similar reasons. First. Roman has not shown, nor is there any reason to believe, that the placement of an adequately ventilated transparent shield on his cell door for a period of one week could have any effect on his medical condition. Second, Roman has not shown that Deputy Superintendent Aidala's decision to require a cell shield was a reckless act in light of Roman's HIV-positive status. Quite to the contrary, because Roman was charged with engaging in disruptive behavior on June 23, there unquestionably was good cause for Aidala to order the temporary use of such a device. Finally, even if the installation of the cell shield could potentially give rise to an Eighth Amendment claim, this court could not entertain it in light of the PLRA requirement that some physical injury result from the deprivation.
2. Fourteenth Amendment Claims
Roman's complaint also alleges that the decisions to place him in the SHU and to install a cell shield were made in violation of his Fourteenth Amendment due process rights. (See Compl. at 4, 6). An inmate has a cognizable liberty interest under the Fourteenth Amendment only when its deprivation imposes upon him an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). In Sandin, the Supreme Court held that thirty days of disciplinary segregation, "though concededly punitive," did not present a "dramatic departure from the basic conditions" of confinement and, consequently, was not "the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Id. at 485-86, 115 S.Ct. at 2301.
Following Sandin, the Second Circuit has observed that
for a liberty interest to be protectable, the plaintiff "must establish both that the confinement or restraint creates an 'atypical and significant hardship' under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).
Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998).
In determining the severity of the hardship imposed by an inmate's conditions of confinement, it is appropriate to take into account both "the duration and the frequency of such deprivations." Taylor v. Rodriguez, 238 F.3d 188, 195 (2d Cir. 2001) (quoting Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999)). Applying these criteria, "courts in the Second Circuit have consistently found that short periods of punitive or administrative confinement in areas removed from the general prison population [do] not constitute an atypical, significant hardship implicating a protected liberty interest." Thomas v. Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997) (Skretny, J., adopting report of Heckman, Mag. J.). Indeed, the denial of privileges for periods comparable to, or even longer than, the 76 days at issue here has often been found not to give rise to an atypical and significant hardship. See, e.g., Sealy v. Giltner, 197 F.3d 578, 588-89 (2d Cir. 1999) (101 days in administrative segregation); Williams v. Goord, 111 F. Supp.2d 280, 289 (S.D.N.Y. 2000) (75 days of solitary); Jackson v. Johnson, 15 F. Supp.2d at 361-62 (99 days in keeplock); Morissette v. Ramos, 1996 WL 521170, at *3-*4 (N.D.Ill. Sept. 9, 1996) (63 days of confinement without outdoor exercise); Carter v. Carriero, 905 F. Supp. 99, 104 (W.D.N.Y. 1995) (270 days in SHU). Consequently, even if prison regulations afford inmates the right to challenge their placement in the SHU, Roman would not have a protectable liberty interest under Sandin.
The other due process claim that Roman asserts relates to the installation of the plexiglass shield on his SHU cell for a period of one week. This imposition obviously works even less of a hardship than placement in the SHU, and consequently cannot give rise to a protectable liberty interest. See, e.g., Beckford v. Portuondo, 151 F. Supp.2d 204, 219 (N.D.N.Y. 2001) (holding, as a matter of law, that the denial of adequate food and water and the use of a cell shield for a one-week period is "not sufficiently atypical to implicate a protected liberty interest"). Additionally, Roman has not shown, as he must, that any statute or regulation entitled him to a hearing before a shield was temporarily installed on his cell. Indeed, the only evidence before the Court with respect to this issue indicates that DOCS views a cell shield, "not [as] a form of discipline, but merely [as] a preventative device." (Aidala Aff. ¶ 11).
In sum, there is no basis for Roman to assert a due process claim in this case.
C. Defendants Goord and Kuhlmann
Defendant Goord is named in Roman's complaint because he is the DOCS Commissioner and, as such, "has the statutory authority and responsibility to review all decisions and actions of [the] superintendent. . . ." (Compl. at 4). Defendant Kuhlmann, the Superintendent of Sullivan, is named because he has the statutory authority to oversee his institution and ensure that its rules are being followed, including Dr. Sidorowicz's directive not to place Roman on a restricted diet. (Id. at 5). It is unclear, however, from the complaint whether Roman is suing Goord and Kuhlmann in their individual capacities, their official capacities, or both.
To the extent that Roman seeks relief against these defendants in their official capacities, his suit plainly runs afoul of the Eleventh Amendment. Under the Eleventh Amendment, a state is generally immune from suit in federal court unless the state consents to be sued. Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); see also De La Nueces v. United States, 780 F. Supp. 216, 217 (S.D.N.Y. 1992). This immunity also extends to state officials if the relief to be granted "would bind the state or where the state is the real party in interest." Melo v. Combes, 1998 WL 67667, at *3 (S.D.N.Y. Feb. 18, 1998) (quoting Russell v. Dunston, 896 F.2d 664, 667 (2d Cir. 1990)). When an official is sued in his official, rather than his personal, capacity the state is the real party in interest. Id. (citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)). A party therefore may not recover damages from a state official acting in his official capacity. See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269-70, 117 S.Ct. 2028, 2034, 138 L.Ed.2d 438 (1997). A state actor may nevertheless be sued in his official capacity to recover prospective injunctive relief. See Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908); Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974) ("a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief . . . and may not include a retroactive award which requires the payment of funds from the state treasury") (citation omitted); Coeur d'Alene Tribe, 521 U.S. at 269, 117 S.Ct. at 2034; Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1985), modified, 793 F.2d 457 (2d Cir. 1986); Dube v. State University of New York, 900 F.2d 587, 595 (2d Cir. 1990).
Accordingly, to the extent that Roman seeks damages against Goord and Kuhlmann in their individual capacities, his claims are barred by the Eleventh Amendment. While this constitutional bar does not preclude an award of nonmonetary prospective relief against the defendants, it is clear that Roman would not be entitled to an injunction here since he is currently lodged at a different DOCS facility and cannot establish any likelihood that the conduct that he complains about will recur. See Tawwab v. Metz, 553 F.2d 22, 24 (2d Cir. 1977); see also Johnson v. Cobb, 946 F.2d 67, 72 (8th Cir. 1991) (an individual prisoner is not entitled to injunctive relief on basis of past conduct alone).
To the extent that Roman is suing Goord and Kuhlmann in their individual capacities, he must establish their personal involvement in a constitutional deprivation. Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991); accord Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). The doctrine of respondeat superior does not suffice to establish liability. Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973). To recover damages from a supervisor based upon an alleged constitutional violation, a plaintiff therefore must show that the supervisor either directly participated in the violation, learned of it through a report or appeal but failed to take action, created or maintained the policy or custom which gave rise to it, or was grossly negligent in the supervision of subordinates who caused the violation to occur. Wright, 21 F.3d at 501 (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Here, because the claims that Roman has brought against defendants Healy and Aidala do not rise to the level of a constitutional wrong, it is clear that Goord and Kuhlmann cannot have any derivative supervisory liability. Furthermore, the only personal involvement on the part of either supervisor that Roman has alleged is that Kuhlmann sent him a memo indicating that Healy's request for a "pre-hearing restricted diet" was countermanded by the Sullivan medical department. (Compl. Ex. 4). This written confirmation of Dr. Sidorowicz's decision shows that far from being negligent, Kuhlmann investigated Roman's complaint and confirmed that it had been properly handled. If Roman believed that more was required, he could have appealed the Inmate Grievance Review Committee's response to his grievance to the superintendent. H is failure to do so deprives the Court of any jurisdiction to entertain this claim. See, e.g., Lawrence v. Goord, 304 F.3d 198 (2d Cir. 2002).
III. Conclusion
For the foregoing reasons, Defendants' motion for summary judgment should be granted. VII. Notice of Procedure for Filing of Objections
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels and the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Daniels. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).