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James Risch v. Superintendent William Hulihan; New York State Department of Correctional Services

December 29, 2010


The opinion of the court was delivered by: David N. Hurd United States District Judge



Plaintiff James Risch ("plaintiff" or "Risch"), a New York state prison inmate proceeding pro se and in forma pauperis, commenced this action on March 23, 2009, pursuant to 42 U.S.C. § 1983 and alleges that defendants were deliberately indifferent to his medical and mental health needs in violation of the Eighth Amendment. Plaintiff asserts that defendants' indifference is in retaliation for his filing of grievances and in an effort to save public funds. Plaintiff seeks declaratory, injunctive, and monetary relief. On June 11, 2010, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants claim that Risch received sufficient medical and mental health treatment and assert a defense of qualified immunity. Moreover, defendants Hulihan, Hogan, and Chapple argue that they were not personally involved in the conduct that allegedly deprived plaintiff of his constitutional rights.

Plaintiff's response in opposition to defendant's motion fails to mirror defendants' statement of material facts and does not include a formal memorandum of law.*fn1 Instead, plaintiff filed an affidavit reasserting his claim that defendants failed to properly treat his medical condition and cut off his mental health medication and treatment entirely. Risch also requests that his deposition testimony be stricken because he had not taken his mental health medication for two days prior to that proceeding.


Plaintiff was housed in Mid-State Correctional Facility ("Mid-State") at all times relevant to this action.*fn2 Plaintiff began experiencing urinary tract and prostate problems in early 2006. He sought treatment from Dr. Ramineni and Dr. Mannava, who prescribed medication and performed a variety of tests including urinalysis, a venereal disease test, and a prostate ultrasound. In late 2006 or early 2007 plaintiff was sent to an outside urologist, Dr. Haas, who prescribed antibiotics and ordered a testicular ultrasound. Plaintiff saw Dr. Haas four times, the most recent of which was February 2009 when he was prescribed Neurontin for pain. Plaintiff was placed on another antibiotic in March 2009.

Plaintiff filed a grievance on January 17, 2007, alleging that defendants Howard, Mannava, and Ramineni failed to properly treat his urinary tract condition. Plaintiff claims that he appealed the response to the Central Office Review Committee, who "denied" it. Although Risch claims that this was one of "many" formal complaints and grievances, he does not provide details about any others.

It is undisputed that Risch has a history of mental illness and was diagnosed with bipolar disorder prior to his transfer to Mid-State. Plaintiff noted that he has had suicidal thoughts everyday since the age of 16 and attempted suicide three times-once in the 1980s, once in the 1990s, and once in 2002. In May 2006, during his transition from Livingston Correctional Facility to Mid-State, plaintiff experienced mood swings, irritability, racing thoughts, panic attacks, and symptoms of anxiety and bipolar disorders. At that time he was "medically unassigned"-removed from programming-due to his mental health condition. On June 6, 2006, after arriving at Mid-State, defendants Tourtelot and Farago changed his primary diagnosis from bipolar disorder to alcohol dependence, cocaine abuse, and personality disorder with antisocial traits. Plaintiff was prescribed Strattera (for attention deficit disorder), Risperdal (antipsychotic), and Effexor (antidepressant) and was made to engage in "talk therapy" every three weeks with defendant Cheyne.

Plaintiff admits that in June 2007 he was caught with another inmate's prescription medication. As a result, defendant Tourtelot immediately took plaintiff off all mental health prescription medications, but his therapy sessions continued. Plaintiff was therefore not prescribed any mental health medication from June 2007 until approximately December 2009 when he was put on Zyprexa, Celexa, and Lamictal. He claims that being taken off Effexor allowed his urinary tract infection to clear up but caused him to slip into a severe depression.


A. Summary Judgment Standard

The entry of summary judgment is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . 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); seeCelotex Corp. v. Catrett,477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247, 106 S. Ct. 2505, 2509--10 (1986). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; seealsoJeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

When summary judgment is sought, the moving party bears the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the claim. Anderson,477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4. The failure to meet this burden warrants denial of the motion. Id. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Id. at 250, 106 S. Ct. at 2511; Fed. R. Civ. P. 56(e).

When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553. Summary judgment is inappropriate where "review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted); seealso Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Deposition Testimony

Plaintiff asserts that his deposition testimony should be stricken because he did not take certain medications for two days prior to the deposition proceeding. Specifically, Risch claims that he did not take his Celexa (antidepressant), Lamictal (mood stabilizer), and Zyprexa (antipsychotic). However, plaintiff does not allege that he was incoherent at any time during the deposition. There is nothing in the record to suggest that plaintiff was unable to fully and truthfully answer the questions posed to him. Moreover, the Assistant Attorney General conducting the deposition was aware that Risch had not taken his medication and repeatedly asked if he was prepared to proceed. At the beginning of the deposition the following exchange took place between the Assistant Attorney General and Risch:

Q: Now, we talked before going on the record about whether or not you felt that you would be able to participate coherently in the deposition process. Do you feel you are able to do that despite the fact that you haven't had these three medications over the past two days?

A: I would like to get this over with.

Q: Let me ask you: Are you able to understand my questions?

A: I can understand what's going on.

Q: Are you able to think coherently about the issues involved in your lawsuit? A: Yes.

Q: And are you able to answer the questions that I am here to depose to you during the course of this deposition?

A: Let's see how it goes.

Q: Okay. If during the course of the deposition you feel that as a result of not having these particular medications you don't understand the questions or aren't able to think coherently, would you identify or stop me during ...

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