The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the defendants' motion for summary judgment (Docket No. 28).
The plaintiff, Edward Bell ("Bell"), brings this action alleging that his civil rights pursuant to 42 U.S.C. §1983 were violated. More specifically, Bell asserts that while he was a pretrial detainee at Chemung County Jail on April 19, 2001, he slipped on a wet spot as he left the shower area resulting in an injury. The plaintiff claims that the fall caused him to be hospitalized for two weeks and resulting in various injuries -- rheumatic pain, urination problems, incontinence, erection problems; pain in right knee; lameness and numbness in feet. Bell claims that the failure to properly maintain shower area constitutes a violation of his equal protection rights. (Docket No. 1 at ¶ 10).
As a second claim for relief, Bell alleges that when he was being discharged from the hospital on May 3, 1001, Deputy Sheriff Peseski ("Peseski")forcefully removed plaintiff from a wheelchair and placed him on the back seat of the Sheriff's car causing pain. The plaintiff asserts that the back seat of the vehicle was too cramped for his 6'6", 263 pound frame. (Docket No. 1 at ¶ 11). As a third claim, Bell asserts that Corrections Officer Kelvin Smith ("Smith")*fn1 violated his rights by pulling him across the back seat of the vehicle and by directing Peseski to push the plaintiff's legs into the car. (Docket No. 1 at ¶ 12).
In his fourth claim, Bell asserts that Nurse Ann McGonigal ("McGonigal") denied him the use of a walker and a medially proscribed catheter on May 3rd and 4th of 2001. (Docket No. 1 at ¶ 13). As a fifth claim, Bell contends that on May 4, 2001, Nurse Seven Miller ("Miller") refused to administer a prescription for "Darvocet" as well as denied him the use of the catheter and walker. (Docket No. 1 at ¶ 14). In his sixth claim, the plaintiff alleges that on June 7, 2001, Lieutenant John Hamla ("Hamla") misled the Onondaga Sheriff as to plaintiff's medical condition which resulted in his being forced into the back seat of another Sheriff vehicle. (Docket No. 1 at ¶ 15). For the basis of his seventh claim, Bell claims that on May 25, 2001 and June 1, 2001, McGonigal refused to answer plaintiff's medical request which included a request for an extra pillow and mattress to alleviate the stress of trying to lay in an undersized bed. (Docket No. 1 at ¶ 16). As his eighth claim, Bell asserts that on three occasions (July 18, 2001, July 20, 2001, and July 30, 2001), Dr. John A. Alves ("Alves") refused to treat Bell after he experienced an involuntary urination on himself. (Docket No. 1 at ¶ 17). Finally, as his ninth claim, the plaintiff asserts that on May 5, 2001 and June 10, 2001, the Chemung County Jail did not have a grievance hearing procedure*fn2 which would allow him to grieve the actions that deprived him of his rights (Docket No. 1 at ¶ 18).*fn3
The defendants move for summary judgment.
Summary judgment is appropriate where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F. 2d 186, 188 (2nd Cir. 1992) citing Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court must draw all reasonable inferences in favor of the non-moving party and grant summary judgment only if no reasonable trier of fact could find in favor of the non-moving party. See Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir.1991); Howley v. Town of Stratford, 217 F.3d 141 (2nd Cir. 2000). However, the non-moving party must, "demonstrate to the court the existence of a genuine issue of material fact." Lendino v. Trans Union Credit Information, Co., 970 F.2d 1110, 1112 (2nd Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A fact is material: when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."
General Electric Company v. New York State Department of Labor, 936 F.2d 1448, 1452 (2nd Cir. 1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The non-moving party must come forward with enough evidence to support a jury verdict ... and the ... motion will not be defeated merely ... on the basis of conjecture or surmise." Trans Sport, supra, 964 F.2d at 188, quoting Bryant v. Maffucci, supra. If undisputed material facts are properly placed before the court by the moving party, those facts will be deemed admitted, unless they are properly controverted by the non-moving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2nd Cir. 1992), citing Dusanenko v. Maloney, 726 F.2d 82 (2nd Cir. 1984). The Court's responsibility in addressing a summary judgment motion is identifying factual issues, not resolving them. See Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 528 (2nd Cir. 1990). However, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Nippon Fire & Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53 (2nd Cir. 2000) quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Condition of the Shower Floor
The plaintiff claims that the failure to maintain the shower floor violates his equal protection rights. To maintain such a claim, the plaintiff must demonstrate that based upon some discriminatory animus, he was treated differently from others with no rational basis for the difference in treatment. The plaintiff does not even allege such disparate treatment. Moreover, the plaintiff asserts this claim against Chemung County. (Docket No. 1 at ¶ 10). The plaintiff presents no evidence that any of the individual defendants were personally involved in, or had a duty to, maintain the shower floor. Thus, this claim must be dismissed inasmuch as the claims against Chemung County were previously dismissed pursuant to District Judge Siragusa's February 4, 20043 Order. At best, the plaintiff has asserted a claim of negligence which is not a valid basis for liability under §1983. Iwachiw v. New York State Dept. of Motor Vehicles, 396 F.3d 525, 527 (2d. Cir. 2005).
Thus, the plaintiff's first cause of action ...