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Jose Quezada v. Robert Ercole

July 29, 2011


The opinion of the court was delivered by: Denise Cote, District Judge:


Jose Quezada ("Quezada"), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against twenty-one New York State Department of Correctional Services ("DOCS") officers, including Robert Ercole, the former superintendent at Green Haven Correctional Facility ("Green Haven"), and Robert Cunningham, Green Haven's former deputy superintendent, in addition to the Green Haven facility itself. Quezada alleges that while he was incarcerated at Green Haven, the defendants violated his constitutional rights by retaliating against him for filing grievances and by acting with deliberate indifference to his medical needs in violation of the Eighth Amendment. Quezada further alleges that the defendants failed to provide accommodations for his hearing impairment. The defendants have moved for summary judgment. For the following reasons, the motion is granted in part.


Except where noted, the following facts are undisputed. Quezada was incarcerated at Green Haven, the site of the alleged abuses, from April 11, 2005 through the filing of his complaint. Quezada's claims fall into three categories: the retaliation against him for filing grievances and a civil suit; the deliberate indifference to his medical needs; and the failure to accommodate his hearing impairment.

I. Retaliation Quezada alleges that in April and May of 2006, officer Amy Savino ("Savino") refused to allow him access to Green Haven's law library in retaliation for the filing of a § 1983 suit in the United States District Court for the Western District of New York.*fn1 On May 12, 2006, Quezada filed a grievance against Savino. In a written response to Quezada's grievance, Savino acknowledged that she had insisted on inspecting Quezada's outgoing legal mail for contraband, but denied that she had prohibited his access to the library or otherwise threatened him. Savino was mistaken about the Green Haven policy governing inspection of inmate correspondence; Quezada's outgoing legal correspondence did not need to be inspected.

Quezada alleges in his complaint that this first confrontation with Savino and the filing of a grievance against her triggered a host of retaliatory actions by Savino and other Green Haven corrections officers against Quezada. Quezada filed a total of 28 grievances concerning the alleged retaliatory actions, spanning a two-year period. The substance of those grievances is detailed here.

On May 30, 2006, Quezada was rebuked by both Savino and an officer Martin, who is not named in the complaint, for traveling to another building in the facility without permission. Martin later apologized to Quezada after learning that another officer had authorized Quezada to travel to the other building. On June 20, 2006, Quezada filed a grievance complaining of the May 30 incident; Quezada alleged that Martin subjected him to a pat down and threatened him, stating that if Quezada was out of place again, Martin would "break you[sic] legs you piece of shit."

Quezada filed at least two grievances relating to alleged sexual harassment and assault by Green Haven officers. Quezada was issued a Misbehavior Report on August 28, 2006 by officer Richard Hope ("Hope") for possession of chewing tobacco and a pair of boots with metal spikes. Quezada subsequently filed a grievance on September 22, 2006 against Hope, Jeffrey MacIsaac ("MacIsaac"), and Anthony Cefaloni, claiming that on August 28, 2006, they subjected him to a sexually abusive pat down in retaliation for his prior grievances. Quezada alleged that, in the course of the pat down, the officers "started running the wand on my private parts" and that they "squeezed" his genitals with the hand-held metal detector. When Quezada objected, the officers responded that he could "file a lawsuit" against them if he wanted to. Quezada interpreted this statement as a taunt; it demonstrated that the officers knew that no one would intervene to stop the pat down.

The other alleged assault involved an incident in Green Haven's law library on September 29, 2006. Quezada alleges that he was using the law library when Hope, Macisaac, John Serrell ("Serrell"), and Robert Clerc ("Clerc") slammed his face against the wall during a pat down. Quezada requested medical attention and was seen by a nurse. In his grievance of October 5, 2006, Quezada claimed that the officers had broken his nose; medical records reveal that there was no sign of damage or bleeding when the nurse inspected his face immediately following the incident. An x-ray of Quezada's head performed on October 2 revealed an undisplaced hairline fracture of the nose. The medical officer on duty, Dr. Hari Charkravorty ("Charkravorty"), noted that the hairline fracture was most likely caused by a trauma to the nose that occurred closer in time to the October 2 x-ray than the September 29 incident in the law library.

Quezada also filed grievances relating to his service on the Inmate Liason Committee ("ILC") and the inspection of his legal mail. On February 8, 2007, Quezada was prevented from leaving his cell to serve as a representative on the ILC by Hope and officer Christina Bass ("Bass") due to lack of security staff. Green Haven policy dictated that inmates were only permitted to attend ILC meetings when officers were available to escort them from their cells to the meeting place. Quezada later challenged his removal from the ILC because of disciplinary problems by grievance of June 15, 2007.

Finally, Quezada identified at least one further instance, following the incident with Savino in 2006, where his legal mail was handled contrary to Green Haven policy. On July 20, 2007, Quezada's legal mail was inadvertently opened outside of his presence, contrary to Green Haven policy, and he subsequently filed a grievance.

II. Helicobacter Pylori Infection Quezada alleges that Green Haven's water supply is contaminated with the bacteria Helicobacter pylori ("H. pylori") and that the defendants refused to correct the problem. As a result, Quezada contends that he became infected with the H. pylori bacteria and was provided with inadequate medical care.

H. pylori is a type of coliform bacteria which originates in animal intestines. DOCS contracts with a private firm to test the water supply at Green Haven three times a month for the presence of coliform bacteria. Testing is performed on both the "raw," or untreated, water samples, in addition to the drinking water available to both inmates and staff at Green Haven. Test results for the years 2007, 2008, and 2009 demonstrate that coliform bacteria was not detected in the post-treatment water supply at Green Haven during that time.

Quezada complained of stomach pain and was seen by medical officer Charkravorty on October 31, 2008. On December 4, 2008, Charkravorty informed Quezada that tests performed during the October 31 ...

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