The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court
This matter is before the Court on defendants' motion for summary judgment (Filing No. 69). Plaintiff did not respond. The Court has reviewed the motion, defendants' statement of material facts, evidentiary submissions and defendants' supporting brief and finds that defendants' motion for summary judgment should be granted.
On a motion for summary judgment, all reasonable factual inferences must be drawn in favor of the non-moving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003)(citing Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)). However, to survive a motion for summary judgment, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(emphasis omitted)(quoting Fed. R. Civ. P. 56(e))(citation omitted). "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)(citation omitted). Thus, "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)(citations omitted).
"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). A party "moving for summary judgment must prevail if the [non-movant] fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996)(citing Anderson, 477 U.S. at 247-48). While the submissions of pro se litigants are liberally construed, see, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that the plaintiff is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment."
Fitzpatrick v. New York Cornell Hosp., 2002 U.S. Dist. LEXIS 25166, 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003)(citing cases).
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 states: "No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Supreme Court has held that the administrative exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement is a prerequisite to all prisoner claims, even if the requested remedy is unavailable in an administrative grievance proceeding. Porter, 534 U.S. at 524 (citing Booth v. Churner, 532 U.S. 731, 740-41 (2001)). This requirement exists in order "to reduce the quantity and improve the quality of prisoner suits . . . [and to afford] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 524-25.
The failure to exhaust administrative remedies is an affirmative defense that may be waived, Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004), and is subject to estoppel. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). Where defendants have raised the issue of administrative exhaustion as an affirmative defense and plaintiff has plausibly countered that assertion, the court must conduct a three-step inquiry. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). First, the court must ask whether administrative remedies were in fact "available" to the prisoner. Hemphill, 380 F.3d at 686 (citing Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004)). Second, the court must determine whether defendants forfeited the defense of administrative exhaustion by failing to raise or preserve it, id. (citing Johnson, 380 F.3d 691), or whether defendants are estopped to raise the defense by their own actions inhibiting the inmate's exhaustion of remedies. Id. (citing Ziemba, 366 F.3d at 163). Third, the court must inquire whether the prisoner has alleged "special circumstances" that justify his failure to exhaust administrative remedies. Id. (citing Giano v. Goord, 380 F.3d 670 (2d Cir. 2004)).
Under the New York Department of Corrections' well- established inmate grievance procedure, an inmate has fourteen days from the date of the incident complained of to file a complaint, but "mitigating circumstances" may toll the deadline.
Plaintiff's amended complaint identifies twenty-eight (28) defendants and then sets forth six causes of action which consist of thirty-five (35) numbered paragraphs which are arbitrarily divided into the six claims in a seemingly random and incoherent way. "This is a civil rights action alleging discrimination under the American Disability Act, asault (sic) and battery, deprivation of medical treatment, retaliation for filing grievance complaints, and cruel and unusual treatment." He also makes claims about denial of due process.
The following facts were derived mainly from the Defendants' Statement of Material Facts, submitted in accordance with N.D.N.Y.L.R. 7.1, which were not specifically countered nor opposed by plaintiff. See N.D.N.Y.L.R. 7.1(a)(3)("Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Plaintiff Gary Renelique ("plaintiff") has not filed any response. Therefore, under this Court's local rules, all facts set forth by defendants are deemed admitted.
Facts Related to Plaintiff's Claims Against Defendants Novello, Williams, Paolano and Shimkunas
Defendant Novello is the Commissioner of the New York State Department of Health. Plaintiff's only claim against Novello is that he wrote to her to investigate whether the licenses of the medical and mental health staff at Great Meadow were still valid and that his letters were ignored (AC, ¶ 16; Transcript of Deposition of Plaintiff Gary Renelique ("Renelique Dep."), 42:19-43:20 (attached as Exhibit J to Holohan Affirm.) (Filing Nos. 69-24, 69-25).
Plaintiff alleges that on October 2, October 6 and October 17, 2002, plaintiff requested that Lieutenant Williams ("Williams") investigate his complaints of misconduct by officers (AC, ¶ 17). At his deposition, plaintiff testified that he made both verbal and written complaints to Williams about not being allowed to attend callouts but that Williams ignored his requests for an investigation (Renelique Dep. 99:4-100:11).
Plaintiff alleges "Defendant Paolano despite knowing the Plaintiff [sic] medical records stated that plaintiff should not be place [sic] in facility who [sic] has steps because of plaintiff disability" (AC, ¶ 9). Plaintiff's medical records, demonstrate that he was examined and treated by Dr. Silverberg, not Dr. Paolano. See Silverberg Aff., Ex. A (Filing No. 69-39); Paolano Aff. ¶ 3 (Filing No. 69-36). Thus, plaintiff is suing Dr. Paolano merely because of his position as Medical Director at Great Meadow.
Plaintiff alleges that on August 15, August 31, and October 23, 2002, he complained to defendant Shimkunas, the Chief of the Mental Health Unit at Great Meadow, regarding Wurzberger, Kim and Rawson (AC, ¶ 13). Plaintiff alleges that Shimkunas failed to supervise these employees, who refused to see him for his serious mental health problems (Renelique Dep. 126:17-127:11). At his deposition, plaintiff testified that he wrote letters to defendant Shimkunas, but that Shimkunas ignored his letters (Renelique Dep. 127:5-11).
Facts Related to Plaintiff's Claim Against Defendant Carpenter
Plaintiff alleges that defendant Carpenter refused him advanced legal copies despite knowing that plaintiff had a court deadline (AC, ¶ 11). At his deposition, plaintiff testified that in August 2002, he "needed about 400 or 500 copies" to respond to interrogatories served by Assistant Attorney General Patrick McRae in Renelique v. Holloway, 01-CV-0601 (N.D.N.Y.)(Renelique Dep. 15:1-6). Under DOCS Directive 4833, an inmate can receive advance photocopies for legal documents where he has insufficient funds in his account and the specific document is required by the court. See Carpenter Aff., ¶ 6 (Filing No. 69-31) and Ex. A (Filing No. 69-32). Given the vast number of documents included in plaintiff's request, defendant Carpenter required plaintiff to provide documentation that each specific document was required by the courts (Carpenter Aff., ¶ 7). Thus, defendant Carpenter did not deny plaintiff's request in an effort to prejudice plaintiff's litigation, but rather, to ensure compliance with DOCS Directives. Id. at ¶ 7. Moreover, a review of the docket in Renelique v. Holloway, 01-CV-0601 (N.D.N.Y.) demonstrates that in August 2002, plaintiff requested and was granted an extension until September 19, 2002, to respond to defendants' discovery requests. See Filing No. 49. Further, plaintiff testified at his deposition that he was eventually able to pay for photocopies and to respond to defendants' discovery requests (Renelique Dep. 14:10-15). Finally, a review of the docket in Renelique v. Holloway demonstrates that the action is trial ready. Renelique v. Holloway, 01-CV-0601, Filing No. 78. Thus, plaintiff has not suffered any injury as a result of Carpenter's denial of his request for advanced copies.
Facts Related to Plaintiff's Claims Against Rawson
Plaintiff alleges that on September 9 and 27, 2002, defendant Rawson refused to provide him with documents that were important to pending litigation in the U.S. District Court for the Southern District of New York (AC, ¶ 15). At his deposition, plaintiff elaborated on his claims against Rawson and testified that she informed plaintiff that he needed to request copies of his mental health records from the Director of the Mental Health Unit at Great Meadow (Renelique Dep. 17:2-14). Plaintiff testified that he made such a request which the Director then denied (Id. at 17:15-18). Plaintiff then filed a grievance and the records were ultimately turned over to him, and he was able to submit the records to the court (Id. at 17:19-18:5). The action was still pending at the time of plaintiff's deposition (Id. at 18:9-10).
Facts Related to Plaintiff's Claims Against Celeste and Vedder
Plaintiff alleges that on May 8 and 15, 2003, defendant Celeste refused to open his cell door, preventing him from going to the law library (AC, ¶ 33). Plaintiff alleges that on four occasions, he tried to complain about "those" officers, but that defendant Vedder failed to initiate an inquiry into their misconduct (AC, ¶ 30). At his deposition, plaintiff specified that he tried to complain to defendant Vedder that the officers (apparently this includes Celeste) were not opening his cell door so he was not able to go to the law library, but that Vedder refused to stop and talk with him (Renelique Dep. 110:9-111:18). Plaintiff does not identify any injury as a result of his inability to go to the law library.
Facts Related to Plaintiff's Claim Against Reams
The only allegation in the amended complaint against defendant Sally Reams is that on July 18, 2002, and March 26, 2003, she refused to accept plaintiff's grievance (AC, ¶ 28). At his deposition, plaintiff quantified his allegation by testifying that defendant Reams refused to accept about 10 to 15 of his grievances (Renelique Dep. 106:22-107:15).
Facts Related to Plaintiff's Claim Against Kelly
The only claim in the complaint against defendant Captain Kelly alleges that on May 10, 2003, Captain Kelly threatened plaintiff (AC, ¶ 32). At his deposition, plaintiff testified that after Captain Kelly learned plaintiff wrote letters to Commissioner Goord and others in Albany regarding events at Great Meadow, Captain Kelly called him into his office and told plaintiff that if he was having problems at Great Meadow, he should first bring them to Captain Kelly's attention (Renelique Dep. 112:24-113:9). Plaintiff further testified that Captain Kelly called him a cry baby and told plaintiff he did not want people outside Great Meadow knowing what goes on inside Great Meadow (Id. at 113:24-114:4).
Facts Related to Plaintiff's Claim Against Potter
Plaintiff alleges that on April 1, 2003, defendant Potter denied his claims dated March 18, 2003, even though plaintiff had a receipt for the property in question (AC, ¶ 29). At his deposition, plaintiff clarified this claim, testifying that defendant Potter denied his property claim (Renelique Dep. 49:5-50:12).
Facts Related to Plaintiff's Claim Against Bundrick
Plaintiff alleges that on October 17, 2002, defendant Bundrick, the Nurse Administrator at Great Meadow, kicked him in the lower back and stepped on plaintiff's right hand and wrist (AC, ¶ 10). Plaintiff never made these allegations before filing this action. See Bundrick Decl., ¶ 2 (Filing No. 69-42). Plaintiff was seen by the medical staff on October 17, 2002, for complaints of chest pain. See Bundrick Decl., ¶¶ 3-5; see also Silverberg Aff., Ex. A, pp. 9-10. Once plaintiff was informed he was not having a heart attack, he informed defendant Bundrick that the real reason he wanted to see the medical staff was because he wanted a "feed in cell" order (Bundrick Decl., ¶ 6). Bundrick informed plaintiff this was not a proper use of emergency sick call. Id. Plaintiff then "fell down" and began shaking violently. Id. at ¶ 7. This activity ceased with the application of an ammonia inhalant. Id. Plaintiff was again warned about the proper use of emergency sick call and left the clinic without further incident. Id. at ¶ 9.
When plaintiff filed a grievance regarding his medical care on October 17, 2002, he never alleged that he was assaulted by Bundrick. Holohan Affirm., Ex. B (Filing No. 69-16). Specifically, he complained that the nurses were laughing at him and that Bundrick refused to issue him a "feed in cell" order. Id. Nowhere in his October 17, 2002, ...