The opinion of the court was delivered by: Kenneth M. Karas, District Judge
On November 23, 2004, Plaintiff Renee West ("Plaintiff"), by her next friend and father, William C. West, filed this lawsuit pursuant to 42 U.S.C. § 1983 ("Section 1983") against Defendants James Whitehead ("Whitehead"), Roger Monthie ("Monthie"), Regan Benward ("Benward"), Ann Adams ("Adams"), and Dawn Offerman ("Offerman") (collectively, "Defendants"). Plaintiff alleges that her constitutional rights were violated by Defendants when she was subjected to various forms of abuse and neglect as a resident of the Bailey Road House ("BRH"), a state-operated facility for developmentally disabled individuals.
Defendants Whitehead, Monthie, and Adams, Defendant Benward, and Defendant Offerman each has filed a Motion for Summary Judgment. For the reasons stated herein, all Motions are DENIED.
Plaintiff is a non-verbal individual with profound-range mental retardation. From 1994 to 2004, Plaintiff resided at the BRH, which is a residence for developmentally disabled individuals and is operated by the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"). The BRH is within the jurisdiction of the Hudson Valley Developmental Disabilities Service Office ("HVDDSO"), which is a division of OMRDD.
Plaintiff requires twenty-four hour supervision and assistance with eating, dressing, bathing, shopping, and personal care. Due to her incontinence, she has to wear a diaper and be placed on the toilet every couple of hours. Though Plaintiff is non-verbal, she does vocalize by making an "aaying" sound at times. Plaintiff sometimes demonstrates aggressive and self-injurious behavior, but this behavior has been largely controlled by psychotropic medications. Plaintiff has an inability to protect herself from abuse or peer aggression or to communicate or report abuse, discomfort, fear, injury, or illness. Therefore, it was necessary for the staff at the BRH to provide her with protection and "observe, report and address any apparent discomfort [Plaintiff] may have." (Pl. Renee West's Omnibus Counterstatement of Facts in Opp'n to All Defs.' Mots. for Summ. J. ¶ 5 ("Pl.'s 56.1 Stmt").)
Plaintiff was aclass member of the Willowbrook Litigation, which was a civil rights action "concerning the care and treatment of mentally retarded children and adults residing at Willowbrook State Developmental Center . . . ." See generally N.Y. State Ass'n for Retarded Children v. Carey, 393 F. Supp. 715 (E.D.N.Y. 1975) (hereinafter "Willowbrook Litig. II"). Pursuant to the Willowbrook consent decree, which was approved by the Willowbrook court in 1975 and aimed "to secure the constitutional rights of Willowbrook residents to protection from harm," id. at 717, Plaintiff was assigned a Consumer Advisory Board ("C.A.B.") representative, Linda Alvira. Ms. Alvira has been charged with "overseeing [Plaintiff's] quality of care, reviewing, approving or disapproving [her] plan of care, including transfers between facilities, medical, psychological and other care, and to advocate for [her] due process and other rights as [a] Willowbrook class member." (Decl. of Linda Alvira in Opp'n to Defs.' Mot. for Summ. J. ¶¶ 3-4 ("Alvira Decl.").)
From October 1996 to September 2004, Defendant Whitehead served as Director of the HVDDSO, directly supervising Defendant Monthie, who served as Deputy Director of the HVDDSO.*fn1 The HVDDSO manages 130 community homes for over 1,000 people with developmental disabilities, and the entire operation is overseen by Defendant Whitehead, with the assistance of Defendant Monthie.
Defendant Adams worked at the BRH as a supervisor and developmental aide II from 1994 until November 6, 2003. Defendant Benward began working at the BRH on November 6, 2003, when she replaced Adams and began as a supervisor and developmental aide II, capacities in which she still works today. Finally, Defendant Offerman worked as a developmental aide in the BRH from August 2001 to December 3, 2003, and then again from May 2004 to September 2004.
B. Chain of Command & Abuse Reporting Procedures Though
Plaintiff disputes whether this chain of command was appropriately followed in practice, the chain of command for an individual home -- such as the BRH -- has been described as follows: "Developmental Assistant II or House Supervisor reported to a Developmental Assistant III; Developmental Assistant III reported to the Team Leader; Team Leader reported to Developmental Disability Program Specialist IV ("DDPS IV"); DDPS IV reported to the Deputy Director; Deputy Director reported to the Director." (Defs. Whitehead, Monthie and Adams Statement of Material Facts Pursuant to Rule 56 ¶ 20 ("WM&A 56.1 Stmt"); Pl.'s WM&A 56.1 Resp. ¶ 20.)
Pursuant to OMRDD policy, all consumer injuries that require more than first aid care are to be reported in a Form 147, which is then given to the Team Leader for the individual home.*fn2 (Aff. of James Whitehead ¶ 10 ("Whitehead Aff."); Monthie Aff. ¶ 10.) The Team Leader then investigates the incident and is supposed to issue a finding. If abuse is suspected by the Team Leader or any other employee, it must be "reported directly to the Director or Deputy Director's office by filling out a Form 147." (Response by Defs. Whitehead, Monthie and Adams to Pl.'s Counter Statement of Facts Pursuant to Rule 56 ¶ 21 ("WM&A 56.1 Resp."); Whitehead Aff. ¶ 10; Monthie Aff. ¶ 10.) In fact, pursuant to HVDDSO policy, as reflected on the "Record of Notifications" that accompanies Form 147, the Director or Deputy Director "[m]ust be called for all Serious Incidents and Allegations of Abuse during business hours." (Decl. of Amanda Masters, Ex. 34, P000491 ("Masters Decl.").) The filing of a Form 147 triggers the appointment of an investigator, whose findings are provided to the Quality Assurance Division of the HVDDSO. (Whitehead Aff. ¶ 10; Monthie Aff. ¶ 10.) The investigation is reviewed and, if necessary, further investigation is done by a Special Review Committee, which will ultimately issue its own findings and conclusions. (Whitehead Aff. ¶ 10; Monthie Aff. ¶ 10.)
Defendant Whitehead, as Director, and Defendant Monthie, as Deputy Director, were not involved in each of the home's day-to-day operations; instead, such responsibility was delegated to developmental aides, supervisors, and team leaders. (Pl.'s WM&A 56.1 Resp. ¶¶ 19, 29; Whitehead Aff. ¶ 7; Monthie Aff. ¶¶ 7-8.) They relied on their staff and the Quality Assurance Division to monitor individual homes, and they did not directly participate in investigations of allegations of abuse, though they would receive notification of allegations of abuse, investigative reports, and the findings and recommendations of the Special Review Committee following its investigations. (Masters Decl., Exs. 16, 28, 35-37; Dep. of Roger Monthie 108-09 ("Monthie Dep.); Monthie Aff. ¶¶ 11-12; Whitehead Aff. ¶ 11.) Unless there is some reason to suspect that the Special Review Committee's recommendations would not adequately address the situation, Whitehead would defer to its judgment. (Whitehead Aff. ¶ 11.)*fn3
C. Plaintiff's Allegations of Abuse and Neglect -- Summary of Evidence
The facts surrounding the alleged incidents of abuse and neglect are highly disputed -- demonstrating the inappropriateness of summary judgment here -- so the Court will summarize the evidence before it below.
1. General Allegations of Abuse and Neglect
Plaintiff claims that throughout her ten years as a consumer at the BRH she was subjected to numerous incidents of abuse and neglect, and that her constitutional rights were thereby violated. (Compl. ¶¶ 78, 90-91, 102, 104.) According to Plaintiff, "she suffered numerous injuries that were caused either directly by the staff, by other consumers, by her own actions, or were of unknown origin." (Pl.'s Mem. of Law in Opp'n to Defs. Whitehead, Monthie and Adams Mot. for Summ. J. 5 ("Pl.'s WM&A Opp'n").) Plaintiff lists approximately fifty-nine incidents of alleged injuries she suffered while at the BRH for the time period spanning from April 1995 through November 2003, and she also describes some instances in which she was allegedly denied prompt and adequate medical treatment. (Pl.'s 56.1 Stmt ¶¶ 11, 13.)
Because the Court finds it unnecessary for purposes of the present Motion, the Court will not rehash all of the alleged incidents that Plaintiff claims to have contributed to violations of her constitutional rights. The fact that these injuries occurred, in most instances, is undisputed. Instead, the Parties disagree as to whether Plaintiff's constitutional rights were violated, and whether the individual Defendants sued herein can be held responsible for any of these injuries. For illustrative purposes, however, the Court will set forth the facts surrounding some of these incidents.
One of the most eye-opening allegations involves the discovery in November 2000, of two handprints on Plaintiff's body. As a result, an investigation ensued, and the investigator concluded that an allegation of physical abuse was substantiated, though the perpetrator was never identified. (Masters Decl., Ex. 16.) The HVDDSO Special Review Committee also reviewed the handprint incident, concluding that Plaintiff was struck by a BRH staff member, but that the staff member's identity was unknown. (Id., Ex. 17.)
Several months later, in February 2001, Plaintiff was taken to the hospital emergency room for unsteadiness, lethargy, facial abrasions, and bruising. (Id., Ex. 18.) The hospital staff determined that Plaintiff had, among other issues, a bladder infection, for which a prescription was written. The failure of the BRH staff to send the prescription to the appropriate pharmacy resulted in Plaintiff not receiving treatment for the infection for thirty-six hours. (Id., Exs. 18-19.) The incident was investigated, and the Special Review Committee determined that the staff's actions did not rise to the level of neglect, but rather constituted medication error. (Id., Ex. 19.)
In November 2001, an allegation of neglect was found to have been substantiated when two staff members failed to follow a physician's instructions for them to take Plaintiff to the hospital for wrist X-rays, resulting in Plaintiff's wrist fracture going untreated for days. (Id., Exs. 24-27.) This incident resulted in the filing of a Form 147 and an investigation by the Special Review Committee and HVDDSO, and the staff members involved were recommended for counseling. (Id., Exs. 26, 27.)
Evidence in the record shows that Plaintiff was physically assaulted by another BRH consumer, "L.L.," on at least eight occasions from 2001 to 2003. (Pl.'s 56.1 Stmt ¶ 13; WM&A 56.1 Resp. ¶ 13.) L.L.'s November 28, 2003 assault on Plaintiff caused the Special Review Committee to question whether the BRH consumers were being adequately supervised. (Masters Decl., Ex. 29.) As mentioned previously, the record is replete with evidence of other injuries suffered by Plaintiff, many -- if not most -- of which are of unknown origin. (Pl.'s 56.1 Stmt ¶¶ 11, 13.)
The record also contains evidence that the BRH consumers, including Plaintiff, were not kept to their toileting schedules under Adams' supervision and, therefore, were left to sit in dirty diapers. (Alvira Decl. ¶¶ 10, 14.) For instance, Defendant Benward testified that when she started working at the BRH on November 6, 2003, she found that the consumers' toileting schedules were not being properly followed. (Dep. of Regan Benward 108-12 ("Benward Dep.").)
Alvira, Plaintiff's C.A.B. representative, stated that the BRH was poorly managed by Defendant Adams, in that Adams "disregard[ed] consumer behavioral plans, foster[ed] poor morale and low expectations regarding the quality of care among her staff, [and] treat[ed] consumers in a punitive and harsh manner." (Alvira Decl. ¶ 10.) She explained that Plaintiff often appeared fearful while she resided at the BRH, by "pulling back, grimacing, [making] apprehensive facial expressions, flinching, and [engaging in] oppositional behavior." (Id. ¶ 11.) According to Alvira, over the years, she made "many complaints" of abuse, neglect, and poor management at the BRH to Defendants Whitehead, Monthie, and Adams. (Id. ¶ 12.) Alvira found an "unusually high level of injuries to [Plaintiff] and to other residents" at the BRH, which she concluded, based on her experience, "can only result from direct physical abuse or neglectful care on the part of the Bailey Road staff." (Id. ¶ 17.) In fact, Alvira stated, "[i]n my experience, I have never seen as many unexplained injuries to a consumer as [Plaintiff] suffered while at the [BRH]. . . . [T]his indicates either active abuse or neglect by Bailey Road staff, or both." (Id. ¶ 18.)*fn4
2. Specific Allegations of More Recent Abuse and Neglect
a. Alleged Hairbrush Incident
Plaintiff alleges that on November 6, 2003, while she was riding in a van with Defendants Benward, Offerman, and Adams, Defendant Offerman threatened her with a hairbrush (the "alleged hairbrush incident"). (Compl. ¶¶ 45-48.) That day was Benward's first day and Adams' last at the BRH.
During her deposition, Benward testified that, while she was in a van with Plaintiff and Defendants Offerman and Adams, Plaintiff was "aaying" very loudly, that Offerman asked Adams, "[w]here is the brush?" and that Offerman grabbed the brush, held it up, and "showed" it to Plaintiff. (Benward Dep. 38, 40.) According to Benward, upon seeing the brush, Plaintiff "became quiet" and crossed her arms, though Benward testified that Plaintiff did not flinch and that Benward did not view Offerman's action as threatening at the time. (Id. 41-45.) When asked how she interpreted Offerman's gesture of holding up the brush and showing it to Plaintiff, Benward stated, "I had no interpretation. I was brand new at the time." (Id. 43.) Benward testified that she never discussed this incident with Offerman. (Id. 45.)
On December 22, 2003, Defendant Benward filled out a Form 147, in which she described the alleged hairbrush incident. Benward wrote, "[w]hen [Plaintiff] saw the brush[,] she stopped ayeing and flinched and immediately sat back and away. While [Plaintiff] did this[,] she took her arms and wrapped them around her. [Offerman] didn't hit her with the brush, but it appeared that [Plaintiff] was afraid of the brush." (Masters Decl., Ex. 38.)
Defendant Adams testified in her deposition that she had no memory of Offerman asking for, grabbing, or holding up a hairbrush on November 6, 2003. (Dep. of Ann Adams 187 ("Adams Dep.").) Further, Offerman testified in her own deposition that she did not threaten Plaintiff with the hairbrush. (Dep. of Dawn Offerman 118-19 ("Offerman Dep.").) Offerman did, however, testify that she has seen Defendant Adams tell Plaintiff to be quiet and hit Plaintiff on the knee with the hairbrush a couple of times. (Id. 119-20.) In an audiotape recording of the December 18, 2003 interrogation of Offerman by HVDDSO Investigator Barbara Huff ("Huff"), Offerman stated that she had never seen anyone at the BRH use the hairbrush for any reason other than to make the consumers look presentable.*fn5 (Audio tape: State Investigator Barbara Huff's Interview of Dawn Offerman, Track 1, 16:50 (Dec. 18, 2003).)
Huff recommended that Offerman "be referred to the Personnel Office for appropriate administrative action for psychological abuse . . . for threatening [Plaintiff] with the hairbrush on [November 6, 2003]." (Masters Decl., Ex. 28, RW-69.) It appears that this recommendation was based on statements made by Benward in the course of Huff's investigation of an allegation that Plaintiff was beaten with a plastic hanger on November 30, 2003 ("the alleged hanger incident"), which is discussed in detail below. (Id., Ex. 28, RW-61-RW-62.) Huff also recommended that Benward be referred for administrative action for her failure to report this incident. (Id., Ex. 28, RW-69.)
Plaintiff alleges that on November 28, 2003, and December 1, 2003, Offerman gagged her with a bib while she was vocalizing (the "alleged bib incidents"). (Compl. ¶¶ 52, 57.) Offerman testified that she never gagged Plaintiff with a bib or tied a bib around her mouth in an abusive manner. (Offerman Dep. 130-31.)
Defendant Benward testified at her deposition that on November 28, 2003, when Offerman walked in to start her shift, Benward and Tina Wood ("Wood"), a developmental aide, were sitting together in the dining room at the BRH and Plaintiff was sitting in the living room. (Benward Dep. 124-25.) Benward testified that she was looking down at some papers when Wood said to her, "Regan, that's a no-no." (Id. 125.) At that point, Benward looked up and "saw [Offerman] walking away from [Plaintiff] and there was a bib placed around her face [between her nose and mouth]." (Id.) According to Benward, she got "angry," walked into the living room, took the bib off of Plaintiff, and said to Offerman, "That's inappropriate. What are you doing? It's inappropriate. . . . If I hear or see it again, I will report this incident. . . . Don't do it again." (Id. 125, 127, 130.) She further testified that Plaintiff just sat there quietly when the bib was on her face and that Plaintiff did not seem to be discomforted by it. (Id. 126-27.)
According to Benward's testimony, she initially thought that Plaintiff may have placed the bib over her mouth herself, but she testified that her later belief that Offerman put the bib around Plaintiff's face was based on the fact that Wood said to Benward that it was a "no-no" and that Wood later told Benward that she saw Offerman place the bib around Plaintiff's face. (Id. 128-29, 132-33.) Benward further said that, while Offerman told Benward that the bib was placed on Plaintiff's mouth to stop her from drooling, Benward did not notice any drool on Plaintiff. (Id. 127-28.)
When asked at her deposition, "[d]o you think that tying a bib around [Plaintiff's] face constitutes abuse?," Benward responded, "[n]ow I do." (Id. 132.) When asked, "[w]hen [Wood] told you on the phone that [Offerman] tied the bib around [Plaintiff's] face, did you think that was abuse?," Benward responded, "[p]robably. I can't recall." (Id. 133.) Finally, when asked, "[d]o you think it's abuse now?," Benward said, "Yes." (Id.)
Benward claims that, on the day of this episode, she paged Scott Goldwasser ("Goldwasser"), the BRH Team Leader, to tell him what happened. (Id. 130.) He did not get back to her that day, so she planned to talk to him four days later when she returned to work. (Id.) Benward further testified that, at the time, she believed that paging Goldwasser and talking to Offerman about the proper way to put a bib on a consumer was the appropriate way to handle the situation because, "I didn't know these people. I didn't know their behavior. I didn't know their characteristics. I didn't know anything about the consumers." (Id. 132.) At her deposition, Benward admitted, however, that, after she spoke with Wood (which led her to "probably" believe that what Offerman did constituted abuse), she should have done the "procedure that we are supposed to do. Call the AOD, get a replacement, have [Offerman] sent home." (Id. 134.)
On December 5, 2003, Tina Wood filled out an employee statement, in which she wrote that, on November 28, Offerman wrapped a bib around Plaintiff's mouth, causing Wood to say to Benward that it was a "no-no," and that "it's not right." (Masters Decl., Ex. 39.) Wood also wrote that she got up from the table at which she was sitting and pulled the bib off of Plaintiff's face. (Id., Ex. 39.)
During her deposition, Benward also testified that on December 2, 2003, another developmental aide, Mary Fields ("Fields"), told Benward that she saw Offerman tie a bib around Plaintiff's face. (Benward Dep. 135-37.) On December 2, 2003, Fields filled out an employee statement, writing: "On Monday 12-1-03[,] I saw [Offerman] pulling a bib on [Plaintiff's] mouth. . . . I took the bib from her mouth. I reported the incident to my director on Tues[day] morning 12-2-03." (Masters Decl., Ex. 40.) On December 9, 2003, Fields filled out another employee statement, this time with the HVDDSO, again stating that she had seen Offerman put a bib around Plaintiff's mouth and that Fields had removed it. (Id., Ex. 42.)
In the Incident Investigation Report created by Huff, she concluded that "[p]hysical abuse to [Plaintiff] is . . . substantiated for two instances when a bib was tied over her mouth. Witnesses stated that on 11/28/03 and 12/01/03[, Offerman] tied a bib over [Plaintiff's] mouth when [Plaintiff] was vocalizing." (Id., Ex. 28, RW-68.) Based on this conclusion, Huff recommended Offerman for administrative action. (Id., Ex. 28, RW-69.) Huff also recommended Benward for administrative action based on her failure to report these incidents. (Id., Ex. 28, RW-69.) On June 3, 2004, Defendant Whitehead issued to Offerman a "Non-Suspension Notice of Discipline" for two charges of "misconduct and/or incompetence" for "put[ting] a bib over consumer R.W.'s mouth." (Id., Ex. 43.)
c. Alleged Hanger Incident
Plaintiff alleges that, on November 30, 2003, Defendant Offerman beat with her with a plastic clothes hanger, causing Plaintiff physical and psychological harm. (Compl. ¶¶ 58, 68.) There were no eyewitnesses to this alleged beating, so Plaintiff relies entirely on circumstantial evidence to prove this claim.
Menessa Porter, a developmental aide who worked the November 29, 2003 night shift at the BRH (3:00 p.m. to 11:00 p.m.), submitted an employee statement in which she wrote that during her November 29 shift, she did not see any bruises on Plaintiff's body or hands (other than an old bruise on her right eye) and that she did not notice a hanger in the bathroom. (Masters Decl., Ex. 48.)
On November 30, 2003, Defendant Offerman worked at the BRH from 7:00 a.m. to 3:00 p.m. with Alice Mayshack ("Mayshack"), another developmental aide. According to Mayshack, she toileted Plaintiff once on November 30, 2003, before breakfast, and then she did not toilet her again for the rest of the day.*fn6 Mayshack claims that when she toileted Plaintiff that morning, Plaintiff had no marks on her body. (Id., Ex. 50-51.) Defendant Offerman claims to have not toileted Plaintiff at all on November 30, 2003.*fn7
At some point during that morning, Offerman was alone in the BRH with the consumers while Mayshack went to the store, though it is unclear from the record for how long Mayshack was gone. (Offerman Dep. 142-43; Masters Decl., Ex. 50.) According to Offerman, while Mayshack was gone, Offerman was preparing and serving brunch to the consumers. (Offerman Dep. 142-43.) At some point after Mayshack returned, Offerman left the BRH to go shopping at Walmart and Shoprite and was gone for several hours. There is some disagreement as to when she returned.
On December 18, 2003, Offerman was interviewed by HVDDSO Investigator Barbara Huff. (Masters Decl., Ex. 7.) During the course of that interview, Defendant Offerman denied ever being alone with the consumers on November 30, 2003:
MS. HUFF: Did [Alice Mayshack] go out shopping?
MS. OFFERMAN: No, I did the shopping.
MS. HUFF: Did she leave the ...