The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is remaining defendant Matthew Porter's motion for summary judgment dismissing claims against him and hence this case (Docket No. 71*fn1 ). The parties consented to proceed before the undersigned as Magistrate Judge on August 19, 2003 (Docket No. 16). The Court issued a briefing schedule for this motion, in which responses were due by November 3, 2006, and any reply was due by November 13, 2006, with the motion deemed submitted (without oral argument) as of the latter date (Docket No. 78). Plaintiff requested (Docket No. 79), and was granted (Docket No. 80), an extension of this briefing schedule; response now were due by December 15, 2006, with any reply due by December 22, 2006, and the motion was deemed submitted on December 22, 2006 (Docket No. 80). The Court issued an Order granting the remaining defendant Matthew Porter summary judgment, Gill v. Erickson, No. 03CV98, 2007 U.S. Dist. LEXIS 3609 (W.D.N.Y. Jan. 18, 2007) (Docket 83, Jan. 18, 2007), and entered Judgment closing this case (Docket No. 84). Plaintiff filed a Notice of Appeal (Docket No. 85). Later, an error was found in the Order granting Porter summary judgment and this Amended Order was entered to replace that Order. The correction will be indicated by a footnote (see at 14 n. 2, infra).
Complaint and Procedural History of Claims Against Defendant "Porter"
Plaintiff commenced this civil rights action (in the United States District Court for the Northern District of New York) against various prison officers and officials (including a defendant "W. Porter") for his treatment while in Elmira Correctional Facility ("Elmira"). Plaintiff moved to proceed as a poor person (Docket No. 2) and the case was transferred to this Court (Docket No. 4, see Docket No. 5, N.D.N.Y. docket sheet). On May 6, 2003, this Court granted in part plaintiff's motion, granting him leave to proceed but only for his administratively exhausted claims as against certain defendants and initially dismissing claims against defendant "W. Porter" (Docket No. 8; see also Docket No. 6). Plaintiff moved for reconsideration of dismissal of claims against defendant W. Porter due to an error in identifying that party in the Order (Docket No. 9). After consenting to proceed before the undersigned (Docket No. 16), on December 15, 2003, this Court granted plaintiff's motion to reconsider dismissal of claims against defendant "W. Porter," reinstating or restoring that defendant as a party in this action, and ordering the United States Marshal to serve copies of the Summons and Complaint upon defendant "W. Porter." (Docket No. 22.)
At a status conference on February 26, 2004, plaintiff reported that defendant "W. Porter" was not served. Defense counsel for the other New York State employee defendants stated that he would attempt to locate defendant "W. Porter" if he was still an employee of the New York State Department of Correctional Services ("DOCS"). (Docket No. 24.) The Summons for defendant W. Porter was returned on March 12, 2004, unexecuted with a Marshal's notation of "Def. is unknown at Elmira, C.F." (Docket No. 25.) Plaintiff moved for entry of a default judgment against defendant "W. Porter" (Docket No. 27), which was denied (Docket No. 29). At a status conference on September 3, 2004, defendant "W. Porter" was identified as Matthew Porter (Docket No. 35) and it was ordered that Matthew Porter be served with the Complaint in this action (Docket No. 36; see also Docket No. 40 (summons returned as to Matthew Porter)). Defendant Matthew Porter (hereinafter "defendant Porter" or "defendant") answered on April 5, 2005 (Docket No. 41).
Meanwhile, other defendants moved for judgment on the pleadings (Docket No. 45), which was granted and terminated them as parties in this action (Docket No. 48). Plaintiff was given leave to move for reconsideration (Docket No. 52), which plaintiff ultimately declined to pursue (see Docket Nos. 57, 60). After some extensions of time to conduct plaintiff's deposition and complete discovery (Docket Nos. 63, 65, 66, 68), plaintiff was deposed (see Docket No. 73, Def. Atty. Decl. ¶ 3, Ex. A).
Plaintiff's Factual Allegations
Plaintiff's remaining claims against defendant Porter stem from plaintiff's move from C-block to G-block at Elmira. Plaintiff has various claimed maladies, including chronic lower back pain, carpel tunnel syndrome, and arthritis (Docket No. 1, Compl., Statement of Facts, ¶ 1) which he contends limited his ability to move or lift. He claims that defendant forced plaintiff (despite his medical condition) to move his own property from C-block to G-block on March 22, 2002, and to move to a cell that required him to climb one flight of stairs ten times. He claims that he had a medical permit that required him only to stay on the "flats," which plaintiff construes to mean being only on the ground floor of the facility (id. ¶¶ 21-22; Docket No. 77, Def. Memo. of Law at 1, 2; see Docket No. 73, Def. Atty. Decl. Ex. B (medical order to have plaintiff "lock[ed] on the flats")). Plaintiff alleges that defendant Porter did not assist him in moving plaintiff's belongings from his old cell to his new cell, requiring him to make ten trips up and down the stairs (Docket No. 1, Compl. ¶ 22).
On March 28, 2002, plaintiff alleges that he was transferred again to the ground floor of G-block, but defendant Porter again refused to assist in moving plaintiff's belongings (id. ¶ 24). By not changing his initial cell assignment to one on the ground floor and by forcing plaintiff to carry his belongings in two moves, plaintiff claims that defendant acted with deliberate indifference to plaintiff's medical condition, violating his Eighth and Fourteenth Amendment rights and § 504 of the Rehabilitation Act (id. ¶¶ 23, 25, 29; Docket No. 77, Def. Memo. at 1).
Defendant Porter is a corrections officer employed by DOCS and then assigned to Elmira (Docket No. 75, Porter Decl. ¶¶ 1-2). He sometimes filled in for the Hall Captain (or first officer or block officer) in Elmira's G-block (id. ¶ 3), and as a Hall Captain he was in charge of inmate movement in G-block but had no control over cell assignments (id. ¶¶ 6, 8-9) and defendant as a Hall Captain did not escort inmates to their cells (id. ¶ 6). The Movement and Control unit at Elmira made cell assignments for inmates, subject to medical restrictions authorized by the facility's medical unit and approved by the Deputy Superintendent for Security (id. ¶ 10; Docket No. 74, Peters Decl. ¶¶ 5-10). Defendant claims that, as Hall Captain, he had no authority to change a cell assignment and could not fail to place an inmate in the cell assigned by Movement and Control (Docket No. 74, Peters Decl. ¶¶ 21-22; Docket No. 75, Porter Decl. ¶ 4). As Hall Captain, defendant had to remain at his desk and could not assist an inmate in moving his belongings (Docket No. 75, Porter Decl. ¶ 32; Docket No. 77, Def. Memo. at 12-13). Inmates were responsible for moving their own property, absent a specific medical exception, and in that instance only specific "packup inmates" could assist an ailing inmate in moving his possessions (and the block plaintiff moved to did not have a "packup inmate" available) (Docket No. 75, Porter Decl. ¶¶ 33, 37-40; Docket No. 77, Def. Memo. at 12-13). Other correction officers or inmates could not assist an inmate by moving his belongings (Docket No. 75, Porter Decl. ¶ 37).
Defendant contends that plaintiff did not have an order restricting his cell assignment to the ground floor, that he had an order to lock on the "flats," defined in Elmira as the ground or one floor up in specific galleries at that facility (Docket No. 74, Peters Decl. ¶¶ 14-16, 12-13; Docket No. 75, Porter Decl. ¶¶ 18-21; Docket No. 77, Def. Memo. at 6), galleries numbered 1, 2, 3, or 4 (Docket No. 74, Peters Decl. ¶¶ 11-14, 15). An inmate would require a special medical order restricting him to ground floor housing (Docket No. 74, Peters Decl. ¶ 16; Docket No. 75, Porter Decl. ¶ 22). Plaintiff alleges that he was ordered to cell G-4-26, a cell on 4 gallery (on the flats but one floor above the ground level) (Docket No. 75, Porter Decl. ¶¶ 26, 28-29; Docket No. 74, Peters Decl. ¶¶ 13-14; Docket No. 1, Compl. ¶ 21).
Plaintiff also claimed that the medical unit exempted him from climbing stairs by a written order (Docket No. 1, Compl., Ex. D; Docket No. 73, Def. Atty. Decl. Ex. B). But defendant contends that the written order from plaintiff's medical records (Docket No. 72, DeSourdy Decl. Ex. A) does not contain the restrictions plaintiff now claims (id. ¶¶ 8-15; Docket No. 77, Def. Memo. at 3, 8-11). There are two areas that are altered from plaintiff's medical records version of the order, the blanks for "Lifting no more than ___ pounds" and the indication whether there was a restriction on climbing stairs (Docket No. 72, DeSourdy Decl. ¶¶ 8-11, 12-15, Ex. A). In the medical records version of that order both lines are blank and the records custodian declares that there were no erasures or signs of alteration to the document in plaintiff's medical file (id.). The exhibit to the Complaint (see Docket No. 1, Compl. Ex. D; Docket No. 73, Def. Atty. Decl. Ex. B) has checked restrictions for not lifting or for climbing stairs, ...