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Keesh v. Artuz

August 6, 2008

TYHEEM KEESH (A.K.A. TYHEEM ALLAH), PLAINTIFF,
v.
CHRISTOPHER ARTUZ, FORMER SUPERINTENDENT OF THE GREEN HAVEN CORRECTIONAL FACILITY ("GREEN HAVEN"), AND JOSEPH T. SMITH, SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY : ("SHAWANGUNK"), AND JANE/JOHN DOE(S), PHYSICIANS AND/OR PHYSICIANS' ASSISTANTS, DEFENDANTS.



The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING IN PART

Plaintiff Tyheem Keesh (a.k.a. Tyheem Allah) ("Keesh"), an inmate at Shawangunk Correctional Facility ("Shawangunk") in Wallkill, New York, brings this action pursuant to 42 U.S.C. §§ 1983 and 1985, alleging violations of his Eighth and Fourteenth Amendment rights under the United States Constitution. Plaintiff claims that he suffered injuries to his mental and physical health as a result of exposure to environmental tobacco smoke ("ETS"), denial of basic medical care, and emotional trauma from acts of conspiracy committed by defendants as retaliation for plaintiff's attempt to exercise his constitutional rights. Defendants bring this motion for summary judgment against Keesh, claiming that plaintiff has failed to present a genuine issue of fact. For the reasons stated below, defendants' motion is granted in part and denied in part.

I. Facts

Plaintiff has been incarcerated in New York State prisons since 1990, and is currently incarcerated at Shawangunk. Plaintiff has lived in no less than five different facilities during his incarceration as a New York State inmate. He was housed at Green Haven Correctional Facility ("Green Haven"), where defendant Christopher Artuz ("Artuz") served as Superintendent for less than 12 months between 1992 and 1994, and in 1997. (Def't.'s Statement of Facts pursuant to Local Rule 56.1). It was during these months that Keesh claimed Artuz smoked around him in the prison, in violation of the Clean Indoor Act, resulting in plaintiff having difficulty breathing and "chest pain, eye irritation, dry mouth and throat." (Amended Cplt., ¶ 7).

Plaintiff next alleges that he was the victim of retaliatory conduct by Artuz after he complained about the secondhand smoke, causing him emotional injury including "nightmares, feelings of powerlessness and distrust of white people, and various other psychological difficulties," (Id. at ¶ 13), and causing him to be placed in the Segregated Housing Unit ("SHU") for 36 days, which plaintiff claimed resulted in a deprivation of "essential medical . . . treatment" and caused plaintiff to suffer "excrutiating [sic] pain, tantamount to torture." (Id. at ¶ 12).

Similarly, plaintiff alleges that defendant Smith, while superintendent of Shawangunk, failed properly to respond to plaintiff's complaints of exposure to ETS, and that John/Jane Doe physician defendants failed to provide proper medical care for plaintiff, in violation of his Eighth Amendment rights and demonstrating a deliberate indifference to medical care. Finally, plaintiff alleges a Section 1985 conspiracy claim against the prison officials.

II. Procedural History

Plaintiff, proceeding pro se at the time, filed his original complaint on Nov. 13, 1997, alleging that the hearings conducted for disciplinary charges against him for inappropriate conduct while in his cell at Green Haven were biased against him. On March 17, 1994, plaintiff was observed naked in his cell by Corrections Officer Tammy Bezio. Bezio wrote plaintiff a ticket for masturbating and exposing himself, a violation of prison rules. Plaintiff claimed that he was performing a Muslim ritual act known as "fitr," and did not intend to expose himself to Bezio. At the conclusion of the hearings, the officers found plaintiff guilty and punished him with 20 days of pre-hearing "keeplock" and 150 days in the SHU. In addition to claiming the officers running the hearings were not impartial, plaintiff also alleged that he was denied medical treatment while confined in the SHU for tuberculosis, and suffered emotional and psychological damage, as well as great pain in his feet as a result of defendant Artuz failing to provide adequate follow-up care after his foot surgery. As a remedy, plaintiff sought compensatory and punitive damages from the defendants.

On July 24, 2000, I dismissed plaintiff's complaint in its entirety, for failure to plead a cause of action and lack of subject-matter jurisdiction. Plaintiff moved for reconsideration of my decision, and on August 29, 2000, I denied that motion as well. Plaintiff subsequently appealed to the Second Circuit, and on Jan. 23, 2004, the Second Circuit vacated my decision and remanded the case, finding that Keesh should be permitted to amend his pleadings to state timely claims, and that since pro se pleadings must be construed liberally, plaintiff's claims against John/Jane Doe physician defendants were sufficiently alleged to survive dismissal.

On December 15, 2004, plaintiff, now proceeding with the assistance of counsel, filed an Amended Complaint, alleging his Eighth and Fourteenth Amendment rights under the Constitution were violated by alleged injuries to his health from the ETS exposure, denial of medical care, and acts of retaliation and conspiracy by defendants in response to plaintiff's complaints as an inmate at Green Haven and Shawangunk. See Amend. Cplt., ¶¶ 7-20. After both parties conducted depositions and completed discovery, defendants filed a motion for summary judgment on May 10, 2007. Even after discovery, plaintiff has failed to identify the "John Doe" and "Jane Doe" defendants. Accordingly, the complaint against them must be dismissed. See Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997).

III. Standard of Review & Analysis

Summary judgment may be granted if there are "no genuine issues as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue" of "material fact" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to come forward with competent evidence:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed. R. Civ. P. 56(e). Although all facts and inferences therefrom are to be construed in favor of the party opposing the motion, Harlen Assocs. v. Village of Mineola, 273 F.3d 494, 498 (2d Cir. 2001), that party must raise more than just a "metaphysical doubt" as to a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[M]ere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen, 273 F.3d at 499. Accordingly, if the "evidence favoring the nonmoving party .. is merely colorable or is not significantly probative, summary ...


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