The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #15.
Currently before the Court is the defendants' motion for summary judgment. Dkt. #24. Plaintiff commenced this pro se action on or about August 23, 2006 pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff's complaint alleges violations of the Americans with Disabilities Act, Section 504 of the Federal Rehabilitation Act of 1973 and various violations of the Eighth Amendment to the United States Constitution. At all times relevant to the allegations in plaintiff's complaint, plaintiff was incarcerated at the Five Points Correctional Facility ("Five Points"). Specifically, the allegations in plaintiff's complaint can be sub-divided into the following four claims: (1) defendants, the New York State Office of Mental Health ("OMH"), New York State Department of Correctional Services ("DOCS"), and individual defendants, Carpinello, Sawyer, Papontos, Marrone, Goodman, Evans, Duke, Fischer, DeVito, Goord, Poole, Weingartner and Gregoire, failed to provide proper mental health treatment to plaintiff; (2) plaintiff was denied exercise by DOCS staff; (3) plaintiff's water and electricity was shut off by defendants McPherson and Thomas for 22 hours; and, (4) plaintiff's rights pursuant to the Eighth Amendment, the Americans with Disabilities Act and the Rehabilitation Act of 1973 were violated because, plaintiff alleges that Five Points is not wheelchair accessible. For the following reasons, defendants' motion for summary judgment is granted.
Plaintiff, proceeding pro se, commenced this action on or about August 23, 2006 against "OMH, Sharon Carpinello, Danald [sic] Sawyer, David Peppell, Joanna Papontos, Joseph Marrone, William Goodman, Deborah Evans, Heather Duke, Viktoria Fisher, Anthony DeVitto, DOCS, Glenn S. Goord, Thomas M. Poole, Larry Weingartner, J. Peter Gregoire, D. McPherson, and S. Thomas." Dkt. #1. In addition to plaintiff's request for compensatory and punitive damages, plaintiff's complaint also sought a temporary restraining order, as well as preliminary and permanent injunctive relief. Id. By Decision and Order dated September 19, 2006, United States District Judge John T. Curtin, directed that the complaint be treated as both a complaint and a motion for a temporary restraining order and preliminary injunction, ordered that the motion for a temporary restraining order be denied, and further ordered that several of the claims be dismissed pursuant to Title 28, United States Code, Sections 1915(e)(2)(B) and 1915A. Dkt. #3. Thereafter, plaintiff filed memoranda of law in support of his request for a preliminary injunction (Dkt. ## 7 and 18) and defendants' filed their opposition to plaintiff's request for a preliminary injunction (Dkt. ##10-13). In lieu of filing an answer to plaintiff's complaint, defendants timely filed the instant motion for summary judgment on December 14, 2006. Dkt. #24. Plaintiff filed his opposition to the instant motion for summary judgment on or about February 28, 2007. Dkt. ## 30-34. As set forth in a March 25, 2009 letter to this Court from counsel for the defendants, since the filing of his opposition to the instant motion for summary judgment, the plaintiff was deported from the United States to Jamaica and is barred from returning to the United States.
FACTUAL BACKGROUND Mental Health Treatment
At the outset, the Court notes that plaintiff is confined to a wheelchair as a result of a head injury sustained in 1984 after he jumped out of a four story building. Dkt. #1, ¶ 2. On or about September 29, 2005, plaintiff was transferred to Five Points from the Central New York Psychiatric Center ("CNYPC"). Dkt. #25, ¶ 3. Patients at the CNYPC receive that highest level and most intense care provided by the OMH to inmates in the custody of DOCS. Id. at ¶ 4. Indeed, only those inmates with acute psychiatric symptoms who are unable to function in a correctional facility are admitted and treated at the CNYPC. Id. at ¶¶ 4-5. Plaintiff alleges that on or about September 16, 2004, he was admitted to the CNYPC. Dkt. #1, ¶ 54. In or about September 2005, once plaintiff's psychiatric symptoms had subsided and it was concluded that he would be able to appropriately function in a correctional facility, plaintiff was discharged from CNYPC. Dkt. #1, ¶ 55; Dkt. #25, ¶ 6. Plaintiff alleges that, "[o]n September 29, 2005, plaintiff was discharged from CNYPC and returned to Five Points with a discharge plan and explicit instruction [sic] from OMH Dr. Barboza and Dr. Kaplan that plaintiff should, among other [sic], returned [sic] to an OMH level one DOCS facility with direct admission to an ICP unit." Dkt. #1, ¶ 55. Indeed, defendants submit that in his discharge summary completed by the staff at the CNYPC on September 23, 2005, it was recommended that plaintiff go to a Level I mental health service facility. Dkt. #25, ¶ 7. In addition, it was further requested that plaintiff be placed in the Intermediate Care Program ("ICP"). Id. As explained by the defendants, the ICP is a "progressive program that helps inmates with mental illness learn how to manage symptoms of their illness and gradually progress to the general population." Id. at ¶ 8.
Prior to plaintiff's release from CNYPC, staff from Five Points and staff from CNYPC participated in a telephone conference, wherein plaintiff's discharge plan was reviewed and discussed. Dkt. #25, ¶¶ 9-10. Specifically, from Five Points, both DOCS and OMH personnel participated in the call, including the ICP Coordinator, a DOCS corrections counselor, a DOCS corrections sergeant, the OMH nurse administrator, the staff psychiatrist and the OMH Unit Chief. Id. at ¶ 9. During that telephone conference, based on plaintiff's past history with ICP and plaintiff's "functioning level," it was agreed that the ICP was not a realistic option for plaintiff. Id. at ¶ 10. Specifically, prior to this most recent admission to the CNYPC, plaintiff had been in the ICP at Five Points and ultimately, refused to be involved in the programs outside of the unit in the general population and eventually, plaintiff refused to participate in any of the ICP activities. Id. at ¶ 11. Indeed, "[c]ompared to the other inmates in ICP, plaintiff functioned at a much higher level, with episodic decompensations." Id. at ¶ 12. Moreover, "[p]laintiff's functioning level was found to be not compatible with the ICP which was developed for inmates who have a greater degree of long term deficits." Id. at ¶ 13. From a clinical perspective, it was agreed that the ICP was not the appropriate fit for plaintiff; therefore, plaintiff was placed in general population. Id. at ¶¶ 13-14.
Five Points is a Level I mental health service facility based on its level of care and OMH staff assigned. The Five Points general population is considered to be Level II because, as a general matter, the inmates are double bunked. Dkt. #25, ¶ 16. Plaintiff alleges that despite his level one designation, he has and continues to be housed in the general population in a double bunk cell without access to mental health care or programs. Dkt. #1, ¶ 58. Contrary to plaintiff's allegations, due to his mental health status, plaintiff has not been "double bunked" since his September 2005 return to Five Points. Dkt. #25, ¶ 17. Although plaintiff has been housed in a cell capable of accommodating a double bunk, plaintiff does not have a cellmate. Dkt. #13, ¶ 9. Plaintiff's mental health diagnosis is "Major Depression, Recurrent, Mild, with a Borderline Personality Disorder which exhibits itself by delusional thinking, acts of self harm, and verbal attacks on others whom the plaintiff perceives as unfair." Dkt. #25, ¶ 18. In sharp contrast to plaintiff's allegations, since his return to Five Points, he has received intensive mental health treatment. Id. at ¶ 19. In addition to receiving psychotropic medication to control his symptoms, plaintiff receives one-on-one therapy from a psychiatrist twice a week. Id. at ¶ 20. Moreover, plaintiff is seen daily by the OMH nursing staff when medications are distributed. Id. at ¶ 21.
When plaintiff's symptoms require acute care, plaintiff has been placed in the Residential Crisis Treatment Unit ("RCTU") at Five Points. Id. at ¶ 22. The RCTU is a psychiatric housing unit which offers several cells that are separate from the remaining population. Id. While in the RCTU, patients can be observed 24 hours a day and are afforded more intense psychiatric services which include daily evaluations by the psychiatrist and primary therapist. Id. at ¶ 23. In the event that plaintiff's mental health condition severely deteriorated, plaintiff could be sent to the CNYPC for more intensive care. Id. at ¶ 24. However, since plaintiff's return to Five Points in or about September 2005, such intensive care has not been required. Id.
Wheelchair Accessibility and Exercise
Plaintiff alleges that in general population, the cells are not built to accommodate the "physical need [sic] of prisoners with disabilities." Dkt. #1, ¶ 83. Specifically, plaintiff alleges that "the cell gates are barely wide enough to allow access for the plaintiff's wheelchair" and that "plaintiff continue [sic] to suffer grate [sic] pane [sic] trying to navigate the wheelchair over the 11/2 inch lift." Id. at ¶ 84. Specifically, plaintiff claims that he cannot manipulate his wheelchair over a 11/2 inch lift that separates his cell from the adjoining recreation pen and therefore, he claims he is being denied exercise. Moreover, plaintiff alleges that rather than removing the 11/2 inch lift, defendants Weingartner and Gregoire advised plaintiff to enter and leave the cell by rolling his wheelchair backwards through the cell door. Id. at ¶ 85. Plaintiff further claims that his March 15, 2006 request for a reasonable accommodation, to wit, to have the 11/2 inch lift removed from the cell entrance or to be moved to a cell on the first floor, was denied. Id. at ¶ 86. Similarly, plaintiff alleges that his grievance was denied by both the IGRC and CORC with the instruction that plaintiff should get pain medication from the Medical Department. Id.
Five Points was opened in 2000 as a new facility and in compliance with all applicable building codes including the Americans with Disabilities Act Accessibility Guidelines. Dkt. #25, ¶ 25 (number one)*fn1 . As an ADA compliant facility, there are cells designed and designated for wheelchair accessibility. Dkt. #25, ¶ 25 (number two). Indeed, the wheelchair accessible cells have wider doors for wheelchairs, modified showers in the cell for handicap accessibility, a wheelchair accessible desk and cabinet space and wheelchair accessible toilets and sinks. Id. at ¶ 26. At the time of the filing of the instant motion, the plaintiff was being housed in a wheelchair accessible cell. Id. at ¶ 27. Facility wide, a wheelchair bound individual has access to all appropriate and approved areas through the use of elevators and ramps. Id. at ¶ 28.
Plaintiff's claim that he cannot negotiate the 11/2 inch lift that separates his cell and the adjoining recreation pen correlates to plaintiff's claim that he was denied exercise. According to defendants, what plaintiff characterizes as a 11/2 inch lift is actually a weatherstrip approximately 3/4 of an inch high for the door that separates the cell from the adjoining recreation pen. Dkt. #25, ¶ 33. Contrary to plaintiff's allegations, the weatherstrip does not prevent a wheelchair bound individual from leaving his cell. Id. at ¶ 34. Rather, where an inmate may have problems traversing the weatherstrip going forward, a wheelchair can easily cross the weatherstrip going backwards. Id. at ¶ 35. In circumstances where an inmate, for disciplinary reasons, loses access to recreation, the inmates are not permitted to use the recreation yards at Five Points. Id. at ¶ 36. However, recreation is still available in the individual recreation areas connected to the inmate's cell. Id. at ¶ 37. Indeed, these recreation areas are available to all inmates housed at Five Points regardless of whether the inmate has lost his recreation privileges and regardless of whether the inmate is confined to a wheelchair. Id. at ¶ 38.
Deprivation of Water and Electricity
Plaintiff alleges that defendants McPherson and Thomas turned off the water and electricity to plaintiff's cell for twenty-two hours. Dkt. #1, ¶ 80. Specifically, plaintiff alleges, [o]n April 21, 2006, because plaintiff was repeatedly sleeping on his cell floor and under the bed, defendant McPherson directed defendant Thomas to turned [sic] off plaintiff's cell water and electricity as a form of punishment.
Both of which stayed off for 22 uninterrupted hours until Sergeant Kazmarek, who did not know why the plaintiff's utility [sic] was [sic] turned off, turned them back on. Because the 22 hour water and electricity deprivation was not authorized by defendant Poole or his designee, plaintiff was deprived of the right to appeal said deprivation in accordance with DOCS policy.
Dkt. #1, ¶¶ 80-81. In their motion for summary judgment, the defendants argue that even assuming plaintiff's allegations are true, the allegations do not rise ...