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Darvie v. Countryman

April 26, 2010


The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge


This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Joseph Darvie alleges that five employees of the New York Department of Correctional Services ("DOCS") at Eastern Correctional Facility ("Eastern") violated his rights under the Americans with Disabilities Act ("ADA") and the Equal Protection Clause.*fn1 (Am. Compl., Dkt. No. 9.) Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 62.) Plaintiff has opposed the motion. (Dkt. No. 63.) For the reasons that follow, I recommend that Defendants' motion be granted.


The amended complaint alleges that on November 29, 2005, Defendant Correctional Officer M. Countryman wrongfully refused to let Plaintiff use a "block shower" despite knowing of his possession of a medical permit authorizing him to use that shower due to his affliction with multiple sclerosis. (Dkt. No. 9 ¶¶ 2, 3, 8, 11.) As a result of this encounter, Defendant Countryman issued Plaintiff a misbehavior report charging him with refusing a direct order and committing a movement violation. (Dkt. No. 9 ¶¶ 2, 5, 10, 22 (incorporating by reference Dkt. No. 1 at 78).)

Plaintiff alleges that at the disciplinary hearing on the misbehavior report, Defendant Lt. K. Simmons "allotted [only] fourteen (14) minutes total time for [Plaintiff to defend himself] at the hearing," disregarded Plaintiff's documentary evidence, and denied Plaintiff's request for a neurologist to testify on the purported ground that the "[w]itness was not present at [the] time of the incident." (Dkt. No. 9, ¶¶ 2, 5, 6, 9, 10 (incorporating by reference Dkt. No. 1 at 34, 83-85).) Defendant Simmons found Plaintiff guilty of the disciplinary charges and sentenced him to forty-four days of keep-lock confinement and the loss of all privileges. This sentence was later modified to thirty days by a correctional officer at another correctional facility. (Dkt. No. 9 ¶¶ 4, 6 (incorporating by reference Dkt. No. 1 at 83, 85.)) Plaintiff alleges that the disciplinary conviction caused Plaintiff to lose the ability to "participate in [prison] programs to [obtain] a [reasonable] chance at parole." (Dkt. No. 9 ¶¶ 4, 8, 11, 12.)

Plaintiff challenged his disciplinary conviction in an Article 78 proceeding in state court. After twelve months, "the state attorney general's office 'cried uncle' . . . by having a Superintendent reverse" Defendant Simmons' disciplinary disposition. (Dkt. No. 9 ¶ 8.)

Plaintiff alleges that between November 16, 2005, and December 7, 2005, Defendants Brown, Coleman, and Healy wrongfully failed to prevent or rectify the above-alleged misconduct after being informed of it. (Dkt. No. 9 ¶ 2 (incorporating by reference Dkt. No. 1 at 80, 81, 84).)

Plaintiff further alleges that on or about December 16, 2005, Defendants wrongfully "abused [the prison's] disciplinary procedures" by knowingly using those procedures to cause him to be transferred from Eastern to Clinton Correctional Facility because he "could not walk fast enough or well enough to defendant's satisfaction." (Dkt. No. 9 ¶¶ 2, 5, 10 (incorporating by reference Dkt. No. 1 at 22, 36).)

Plaintiff alleges that during an unspecified time period, Defendants "procrastinate[d] [for more than one year] in approving treatments [and proper medical examinations] that [would have been beneficial to Plaintiff, specifically his referral to a neurologist], stating that such treatments are not FDA approved." (Dkt. No. 9 ¶ 3.)

On January 22, 2009, this Court sua sponte dismissed Plaintiff's Eighth Amendment and procedural due process claims, ruling that only Plaintiff's equal protection and ADA claims should survive initial review. (Dkt. No. 19.) Defendants now move for summary judgment of the surviving claims. (Dkt. No. 62.) Plaintiff has opposed the motion. (Dkt. No. 63.)


A. Legal Standard Governing Motions for Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts."*fn2 Rather, "[a] dispute regarding a material fact is genuine ...

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