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Barclay v. State

March 25, 2009


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 State of New York, Thomas Ricks, Steven Racette, Theodore Zerniak, Donald Selsky, Terry Hutchins, Amos LaClair, Keith Dubray, Roy Richards, Curtis Drown, Patrick Marlow, Terry Ashlaw, Peter Ghostlaw, and John Kissane's motion for summary judgment (Filing No. 80). On review of the motion, the briefs and evidentiary submissions of the parties, and the applicable law, the Court finds that the motion should be granted in part and denied in part.


H. Patrick Barclay is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). Viewing the facts in the light most favorable to him, as this Court must at the summary judgment stage, this lawsuit arises out of the following circumstances.

Since at least September of 1998, Barclay had been allowed the use of a cane to aid his movement. On September 9 of that year, a medical chart reviewer assessed him as "malingering for secondary gain." (See Filing No. 80, Ex. L.) On October 9, 1998, another medical provider stated that Barclay "claims inability to walk w/o cane. Medically nothing to support it." (Id.) On October 30, 1999, Dr. Robert Takos removed Barclay from medical rest status and indicated that "[h]e does not need a cane." (Id.) On February 17, 2000, Dr. Takos reiterated his opinion that Barclay was malingering. (Id.)

On October 31, 2000, Barclay was not permitted to attend his mother's funeral. Defendant Thomas Ricks states that he denied permission for Barclay to attend because he "claimed he required a cane or wheelchair to attend and would not attend without the same, and there was no documented medical necessity for a cane or a wheelchair; and . . . because of Barclay's disciplinary history, including an assault on staff." (Filing No. 80-5, at 2.) Barclay complains that Ricks denied his request to attend the funeral in retaliation against him "because of his protected rights as a disable [sic] person." (Compl. ¶ 45.B.46.) He also alleged that his correction counselor, defendant Terry Hutchins, failed to comprehensively assist him to ensure that he be permitted to attend the funeral. (Id. ¶ 5.A.90.) Barclay never appealed the denial of permission to attend his mother's funeral, nor did he file a grievance until September, 2001.

On November 10, 2000, Barclay was scheduled to move to another cell. Defendant Keith Dubray appeared at Barclay's cell and ordered him to walk with him to his new cell. Barclay demurred, insisting his medical condition required that he use a cane when walking. Dubray contacted the prison medical facility and was informed that Barclay had no medical condition that precluded him from walking unaided. Dubray moved Barclay to his new cell via wheelchair and Barclay was issued a misbehavior report for disobeying Dubray's order to move. (See Filing No. 80-4, Ex. C.) A hearing was held on November 29, 2000, regarding the misbehavior report but Barclay did not attend because he was not allowed the assistance of a cane or wheelchair to come to the hearing. The hearing proceeded in his absence and the hearing officer, defendant Smith, found Barclay guilty of the misbehavior report. However, the hearing officer's determination was administratively reversed. (Id. at Ex. D.)

On June 11, 2001, Barclay was scheduled to have a legal conference call in another matter. Defendants Richards, Ashlaw and Ghostlaw arrived to escort Barclay to his conference call.

In accord with DOCS policy, defendant Richards proceeded to conduct a pat search of Barclay. Barclay declares that Richards ordered him to remove his "kufi," which the parties agree is a religious head garment, in order to search it. Barclay complied. After the kufi was searched, Richards returned it to Barclay, who put it into his pocket. Barclay was then handcuffed, given his cane, and escorted from his cell for a pat frisk, during which Richards took the kufi from Barclay's pocket and threw it onto his cell floor "like it was garbage." Richards then frisked Barclay, and during the frisk he played with Barclay's hair and painfully squeezed his testicles. Richards then pressed his stomach and penis onto Barclay's bottom and back in a sexual manner. At this point Barclay turned away from the wall to ask for assistance from defendant Zerniak and to ask Richards to stop pressing on him. Barclay was then ordered to release his cane, and defendants Richards, Ghostlaw and Ashlaw physically assaulted him causing, serious pain to his neck and back. He was then placed back in his cell and was later examined by prison medical staff, to whom he complained of back, knee and testicle pain. He was prescribed rest, cool compresses and Ibuprofen. (Id. at Ex. F.) Barclay was then issued a misbehavior report, citing failure to obey a direct order, interference with a DOCS employee, failure to comply with frisk procedures, and violent behavior. (Id.)

The disciplinary hearing related to the June 11 misbehavior report was held on June 25, 2001. Barclay again requested that he be allowed to use his cane to attend the hearing but his request was again denied. Defendant hearing officer Curtis Drown held the hearing in Barclay's absence, finding that Barclay had forfeited his rights to attend. (Id. at Ex. G.) Upon review of a videotape of the June 11 incident (Id. at Ex. E), Drown found Barclay guilty of the charges in the misbehavior report. (Id. at Ex. G.)

On February 5, 2002, defendant Richards refused to serve Barclay a lunch tray and defendant Zerniak failed to intervene to assure that Barclay was fed a lunch tray. As a result of his not being fed a lunch tray, Barclay states that he was unable to take his pain medication and was therefore in pain. Barclay argues that Richards failed to serve him lunch in retaliation for the grievance and lawsuit he had filed related to the June 11, 2001, incident.

On July 18, 2002, Barclay filed his amended complaint in this action (Filing No. 6). The complaint asserts claims under the First, Fifth, Eighth, and Fourteenth Amendments to the Constitution, as well as for discrimination, conspiracy, and emotional distress.


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)). "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 this 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. ...

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