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Fox v. Poole

August 12, 2008


The opinion of the court was delivered by: Hon. Hugh B. Scott



Before the Court is plaintiff's motion (Docket No. 130*fn1 ) for reconsideration of summary judgment granted to defendants (see Docket Nos. 124, 125) and vacatur of that judgment. The parties previously consented to proceed before the undersigned as Magistrate Judge (Docket No. 17).

Responses to this motion initially were due by July 1, 2008, and any reply was due by July 14, 2008 (Docket No. 134). At defendants' request, responses were due by July 3, 2008, and any reply by July 16, 2008, with the motion deemed submitted on July 16, 2008 (Docket No. 135).


Familiarity with the prior Order (Docket No. 124) is presumed. The issue in this case is the 2005 medical isolation wherein plaintiff was placed due to testing positive for tuberculosis ("T.B.") during his incarceration. As a result of his prior positive tests in the 1990s and his refusal to be tested upon his transfer to the Five Points Correctional Facility ("Five Points"), plaintiff was placed in medical isolation for at least three months. He alleges that he was deprived of his constitutional rights and this isolation violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act for depriving him of medial and dental treatment and other prison facilities while in isolation due to his disabilities.

Plaintiff now moves for reconsideration of the Order granting summary judgment to defendants which dismissed his Amended Complaint. He contends that there are material issues of fact (both from his opposition to the earlier motion and additional facts now raised) that should preclude summary judgment in this case (see Docket No. 133, Pl. Memo. at 4). For example, plaintiff now argues that there is a material issue of fact whether he refused A.F.B. sputum test and H.A.A.R.T. treatment as contended by defendants (id.; Docket No. 132, Pl. Aff. ¶¶ 7-11; cf. Docket No. 118, Gregiore Decl. ¶¶ 11, 12, 18). Plaintiff claims that he has not received the medical records defendants claim support their contentions, namely positive T.B. test results in 1992 and 1998, hence depriving them of entitlement to judgment (Docket No. 131, Pl. Statement ¶¶ 3, 9; Docket No. 133, Pl. Memo. at 4, 5). Plaintiff presented the unsigned medical refusal form as indicating the existence of material issue of fact (Docket No. 132, Pl. Aff. ¶ 9, Ex. A, Bates No. 0344). That form, dated September 26, 2005, lists various treatments and test offered to plaintiff that he apparently refused, with the reason given that he refused to sign the form (id., Ex. A, Bates No. 0344).

Regarding the 1990s T.B. tests, plaintiff argues that, if he had tested positive for T.B., he would be under a regime of annual or bi-annual T.B. testing, which he was not under (Docket No. 133, Pl. Memo. at 5).

According to plaintiff, the only basis for the T.B. isolation in September 2005 was his weight loss and axillary abscesses without diagnostic testing, raising in plaintiff's mind another material issue of fact.

Plaintiff argues that he alleged that defendants acted in their individual capacities and acted beyond the scope of their official duties, hence removing any Eleventh Amendment immunity from them (Docket No. 133, Pl. Memo. at 6). He argues that defendant New York State is not immune because of the unconstitutional policy enacted by its employee, defendant Dr. Wright (id. at 8).

As for plaintiff's Americans with Disabilities Act and Rehabilitation Act claims, he argues that the Court misapplied the law, that Congress abrogated Eleventh Amendment immunity for state violations of those acts (id. at 9-11).

As for his retaliation claims, plaintiff claims that he sufficiently alleged retaliation, from defendants' use of "un-verified documentation" [sic] to support their decision to place him in medical isolation in retaliation for filing grievances for denial of treatment of his skin rashes, and for grievances and for filing a law suit while he was in Sing Sing Correctional Facility (id. at 11-12). He argues that the Complaint need not specify details in order to defeat a summary judgment motion to dismiss that pleading (id. at 13).

Defendants simply respond that plaintiff has failed to address or meet the grounds for reconsideration of a judgment under Rule 60(b) (Docket No. 136, Defs. Atty. Decl. ΒΆΒΆ 3, 4-9) and that plaintiff ...

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