The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action, pursuant to, inter alia, 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans With Disabilities Act, 42 U.S.C. § 12132, brought by plaintiff Norman Calvert ("Plaintiff"), a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"), against the State of New York and various DOCS employees in their official and individual capacities, seeking money damages and injunctive relief. Now before the Court are two applications by Defendants: 1) a motion to amend their answers to include the affirmative defense of failure to exhaust administrative remedies; and 2) a motion for partial summary judgment. For the reasons that follow, the motion to amend is denied and the motion for partial summary judgment is granted in part and denied in part.
Unless otherwise noted, the following are the undisputed facts of this case, viewed in the light most favorable to Plaintiff. Plaintiff has been in DOCS' custody since 1997. In or about 2001 Plaintiff was transferred to Collins Correctional Facility ("Collins"), a medium security prison. Upon his arrival at Collins, Plaintiff told the medical staff that he had a psychiatric disability which prevented him from attending prison "educational programs," which, he maintains, are nothing more than "jobs." (Amended Complaint ¶ 5) ("All programs in DOCS are per se jobs, as that term is defined by the Rehabilitation Act . . . [and ADA]."); see also, Id. at ¶ 17 (Stating that programs are jobs); see also, ¶ ¶ 41-43. In other words, Plaintiff stated that he was unable to work, or to participate in any prison program which he viewed as involving work. Subsequently, defendant Elaine Thorndahl ("Thorndahl"), a psychologist with the New York Office of Mental Health ("OMH"), denied Plaintiff's request to be excused from attending programs, and denied his request to see a psychiatrist.
On or about November 1, 2001, Plaintiff wrote to defendant Richard Becker ("Becker"), the Deputy Superintendent for Programs at Collins, claiming that he was entitled to protection under the ADA. Plaintiff stated that he had been granted Social Security Disability Insurance ("SSDI") benefits in 1987 "for psychiatric reasons." (Calvert Affidavit, Exhibit C). Plaintiff also stated that he was pursuing a psychiatric disability claim with the Veteran's Administration ("VA"), which had been pending since 1986. Id.
On November 6, 2001, Becker responded, and asked Plaintiff to identify the disability that he was claiming and the special accommodations that he would need in order to participate in programs. Id. On November 6, 2001, Plaintiff responded that he was claiming a "service connected 100% psychiatric disability," and that it would be "inappropriate to consider ANY MANNER of working arrangements to accommodate this sort of disability, as such does not exist." Id. (Emphasis in original). Plaintiff further stated:
However, in the event that it is mandatory that I participate in programs while I am at this facility, may I suggest that you consider that I was participating in the General Business program while I was in Attica, and I can not imagine any reason why this would complicate matters related to the obtaining of my Disability Benefits upon my release from state custody; and there is the possibility that this training could provide me with the wherewithal to be a productive member of society, within the confines of restrictions of my Psychiatric Disability.
Id. On November 7, 2001, Becker responded that Plaintiff's request did not appear to involve reasonable accommodation under the ADA, but rather, involved appropriate programming. In that regard, Becker advised Plaintiff that he would be interviewed by the Program Committee.
The Program Committee assigned Plaintiff to the Appliance Repair educational program. On November 19, 2001, Plaintiff reported to the Appliance Repair classroom, whereupon, he states:
Almost immediately upon my arrival at the Appliance Repair "classroom" . . . I felt upset, stressed out; apparently the result of my Psychiatric Disability rearing its ugly head. I felt that I might 'do something' which would complicate and extend my present sentence, and I informed the instructor that I wouldn't be returning. He suggested that I go on Emergency Sick Call and see the OMH . . . which I did, but to no avail. (Amended Complaint ¶ 18).
The following day a corrections officer directed Plaintiff to return to the Appliance Repair program, to which Plaintiff responded that he was entitled to "reasonable accommodation" under the ADA. (Amended Complaint ¶ 19). The corrections officer issued Plaintiff a Tier II misbehavior report for refusing a direct order. On November 26, 2001, defendant Corrections Lieutenant Matthew Whitmore ("Whitmore") conducted a disciplinary hearing. Plaintiff attempted to introduce documents concerning his Social Security disability status, and Whitmore responded, "I'm not interested in that stuff, it's irrelevant." Id. ¶ 26. Whitmore concluded that Plaintiff's claim of disability was "not valid," after which he found Plaintiff guilty and sentenced him to thirty days in the Special Housing Unit ("SHU"). Id. ¶ 21.
Plaintiff apparently appealed to defendant James Berbary ("Berbary"), the Superintendent at Collins, who referred the matter to defendant Sibatu Kahaifa ("Kahaifa"), Deputy Superintendent for Security at Collins. Kahaifa affirmed the conviction.*fn1 Plaintiff then attempted to appeal to DOCS Comissioner Glenn S. Goord ("Goord"). However, on December 10, 2001, Lucien J. Leclaire, Jr. ("LeClaire"), Deputy Commissioner for DOCS, informed Plaintiff that Goord did not review appeals from Tier II disciplinary hearings, and that the final appeal for such disciplinary hearings was to the "facility Superintendent or designee," who, in this case, was Kahaifa. (Calvert Aff. Ex. E).
On January 10, 2002, fifteen days after he was released from SHU, Plaintiff again refused to attend programming, and another corrections officer issued Plaintiff a second Tier II misbehavior report for refusing a direct order. Plaintiff was again found guilty at a Tier II disciplinary hearing, and was sentenced to thirty more days in SHU. During that thirty-day period in SHU, Plaintiff, in protest, elected not to eat. Id. ¶ 23.
On March 7, 2002, one month after being released from SHU, Plaintiff again declined to attend programming, and was again issued a misbehavior report. Id. ¶ 24. Plaintiff was apparently found guilty and again sentenced to thirty days in SHU.
Plaintiff alleges that "DOCS" was aware that he had a "back ailment." (Amended Complaint ¶ 47). Plaintiff further contends that, in SHU, his bed was "harder than woodpecker lips," which caused "excruciating pain to [his] back." Id. ¶ 48. Plaintiff further states that when he was released from SHU, he was assigned to a bed that was "specially hard" and "normally reserved for inmates with a 'back' permit." Id. ¶ 49.
At some point in or about this period, Plaintiff commenced an Article 78 proceeding against unspecified DOCS officials in New York State Supreme Court. Id. ¶ 55.
The Amended Complaint alleges that, shortly after Plaintiff was released from SHU, defendant Corrections Sergeant Albert Wilkins ("Wilkins") ordered him to "get rid of some of [his] legal paperwork." Id. ¶ 50. Plaintiff states that his eyesight was poor as a result of fasting in the SHU, and that consequently, he "had difficulty distinguishing between [his] papers, and inadvertently discarded some very important legal papers." Id. ¶ 51. However, in his affidavit submitted in opposition to Defendants' summary judgment motion, Plaintiff now states that it was defendant Corrections Officer Debbie Morrison ("Morrison") who ordered him to get rid of the papers. (Calvert Affidavit ¶ 14).
Also shortly after being released from SHU, Morrison ordered Plaintiff to remove a braid from his hair. According to Plaintiff, "my hair is Holy and Spiritual to me." Id. ¶ 52.
On March 12, 2002, while Plaintiff was in SHU, defendant Corrections Sergeant Daniel Grant ("Grant") entered his cell and confiscated Plaintiff's "letterhead." Id. ¶ 53.*fn2 Plaintiff states that Grant also "threatened to have [him] injected with Psychotropic Medications, to mentally incapacitate [him]." Id. ¶ ¶ 53-54.
On April 4, 2002, Corrections Officer Hessler ("Hessler"), who is not a defendant in this action, told Plaintiff that if he continued to refuse to report to program, he would issue Plaintiff a Tier III misbehavior report, that could result in Plaintiff receiving at least sixty days in the SHU. Id. ¶ 58.
Sometime later in 2002, apparently, Plaintiff was transferred to Clinton Correctional Facility ("Clinton"), a maximum security prison. (Amended Complaint ¶ 60). In that regard, Plaintiff states, "Since the filing of this Complaint," apparently referring either to his Article 78 proceeding or this proceeding, "I have had my security classification increased so that I am now rated as Maximum Security, which means that I have been sent to nothing but Maximum Security prisons." Id. ¶ 59. Plaintiff further contends that while confined at Clinton, for a period of at least three years, he was "placed on Limited Privilege Status, which means, inter alia, that [he was] almost on 24/7 lockdown." Id. ¶ 60. Further, although the Amended Complaint does not contain such an allegation, Plaintiff states in his affidavit that, "due to [his] refusal to participate in DOCS programs," he has also lost good-time credit off his sentence. (Calvert Aff. ¶ 17). Plaintiff does not identify the person or persons who are allegedly responsible for the change in his security classification.
On April 10, 2002, Plaintiff, proceeding pro se, commenced this action. On December 9, 2002, the Court dismissed the action for failure to state a claim. (Docket No. [#5]). Plaintiff appealed, and on June 8, 2005, the Second Circuit affirmed in part, vacated in part, and remanded the case to this Court. In that regard, the Second Circuit affirmed the dismissal of the claims against the State of New York, and the claims for money damages against the individual defendants in their official capacities, and otherwise vacated and remanded, with directions that Plaintiff be allowed to amend his complaint. (Second Circuit's Mandate, Docket No. [#10]).
On February 27, 2003, the U.S. Veterans' Administration granted Plaintiff a 100% Psychiatric Disability rating, retroactive to 1986.
On November 30, 2005, Plaintiff, proceeding pro se, filed the subject Amended Complaint (Docket No. [#12]). The first cause of action alleges that Becker, Whitmore, Thorndahl, Berbary, defendant Dr. Yeung Oh ("Oh"), a psychiatrist at Clinton, defendant Gayle Hanley ("Hanley"), an employee of OMH, defendant Susan Kickbush ("Kickbush"), and defendant Ms. Kinsey ("Kinsey"), acted in concert to deprive Plaintiff of his constitutional rights and his rights under the ADA and the Rehabilitation Act. The Court ...