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Jason Balkum (And All Others Similarly Situated v. Donald Sawyer

October 21, 2011

JASON BALKUM (AND ALL OTHERS SIMILARLY SITUATED), PLAINTIFF,
v.
DONALD SAWYER, SHAREN BARBOSA, AND NIKHILI NIHALANI, DEFENDANTS.



The opinion of the court was delivered by: Neal P. Mccurn Senior United States District Judge

Memorandum, Decision, and Order

I. Introduction

Presently before the court in this civil rights action is a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, dismissing the entire action. Plaintiff opposes the motion. Decision on the pending motion is based entirely on the submitted papers, without oral argument. For the reasons that follow, defendants' motion is granted.

II. Procedural Background

Plaintiff Jason Balkum ("Balkum") brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants Donald Sawyer ("Sawyer"), Sharen Barbosa ("Barbosa"), and Nikhil Nihalani ("Nihalani") (collectively "Defendants") violated his rights during his confinement at the Central New York Psychiatric Center ("CNYPC"). See generally Compl., Dkt. No. 1.

Balkum alleges that CNYPC's policies violated his rights under the First, Fourth, Sixth, and Eighth Amendments to the United States Constitution, and he also asserts claims of retaliation and negligent supervision. See id.

During Sex Offender Treatment Program ("SOTP") orientation, Balkum "inquired [into] purchasing a subscription" to his hometown newspaper. Id. ¶ 12. The "facilitator" told him that SOTP Director Barbosa implemented a policy that prohibited all SOTP patients from purchasing subscriptions to their hometown newspapers. Id. ¶ 13. Balkum claims that this "unwritten policy" violates the First Amendment. Id. ¶ 14.

Balkum also asserts two Fourth Amendment claims. The first claim arises from a "strip frisk" that was conducted on Balkum upon his arrival at CNYPC. See Compl. ¶ 9. Balkum claims that CNYPC staff "told [him] to stand with arms raised, . . . [and] to run [his] fingers through [his] hair, to run [his] fingers through [his] mouth, lift up [his] tongue, bend over and spread [his] buttocks, and lift the bottoms of [his] feet." Id. ¶ 10. He alleges that this "illegal search and seizure" was the result of a policy promulgated by Sawyer, who was at all relevant times the Executive Director of CNYPC. Id. ¶ 11.

Balkum's second Fourth Amendment claim, Sixth Amendment claim, and retaliation claim, arise from an incident that occurred on November 15, 2006, when CNYPC staff asked Balkum to provide a urine sample for drug testing. See id. ¶ 18. Balkum was told that drug testing was required under a policy implemented by Barbosa. See id. ¶ 19. Balkum "objected to being required to give a urine sample for testing without first being able to consult with an attorney." Id. ¶ 20. Following Balkum's refusal to give a urine sample, Nihalani, a psychiatrist working at CNYPC, allegedly told Balkum that he faced a future court appearance to determine whether he would be released from CNYPC, and that if Balkum did not give a urine sample, then there would be "something written" in his records "to make it appear as if [he] had something to hide." Id. ¶¶ 21-22. Balkum claims that these "statements represent an act of threatening [him] with retaliation[.]" Id. ¶ 23.

The Eighth Amendment claim arises from CNYPC's policy of placing patients in handcuffs and ankle shackles while transporting them for medical trips outside of the facility. See Compl. ¶ 17. Plaintiff suffered a knee injury, which required surgery, prior to arriving at CNYPC. See id. ¶ 15. When he "objected" to the handcuffs and shackles, CNYPC staff told him that they were "only doing their job as per [Barbosa's] instructions 'for transporting you guys." Id. ¶ 16. Balkum claims that this "illegal policy," which was implemented by Barbosa, "subjected [Balkum] to cruel and unusual punishment in violation of the Eighth Amendment . . . ." Id. ¶ 17.

Finally, Plaintiff asserts a negligent supervision claim against Sawyer because Sawyer "knew or reasonably should have known" that Barbosa's policies violated the First, Fourth, Sixth, and Eighth Amendments. Compl. ¶¶ 24-26.

In support of their motion for summary judgment, Defendants "do not dispute the existence or application of any policies or procedures alleged to be unconstitutional[.]" Defs.' Mem. of Law at 4, Dkt. No. 42-3. They "acknowledge" that new residents are subjected to a strip search upon admission and random drug testing throughout their stay, prohibited from subscribing to their hometown newspapers and other periodicals, and handcuffed and shackled during transport outside of the facility. Id. Defendants contend that these policies comport with the Constitution. Id. Alternatively, Defendants argue that they are entitled to qualified immunity. Id. at 28.

III. Factual Background

The following facts are undisputed.

Balkum was convicted of sex offenses in May 1994. On or about September 12, 2006, before Balkum's release from the custody of the Department of Correctional Services ("DOCS"), the Superintendent of the Coxsackie Correctional Facility ("Coxsackie") filed an Application for Involuntary Admission on Medical Certification under New York Mental Hygiene Law § 192 with the Central New York Psychiatric Center ("CNYPC"). See Ex. A to Aff. of Terri Maxymillian, Nov. 17, 2009, at 1, Dkt. Nos. 42-5 and 43-2 ("Maxymillian Aff."). The Superintendent filed the application because, he alleges, Balkum had a "history of exhibiting violent behavior towards others," denied that he was guilty of the charges of which he was convicted, and "refused to participate in mandated sex offender treatment." Id. at 1. Following a diagnosis by two physicians that Balkum had antisocial personality disorder and the physicians' conclusion that Balkum remained "a high risk for re-offending and for being a danger to the community," CNYPC Executive Director Sawyer filed an application with the Oneida County Supreme Court to "retain [Balkum] for involuntary care and treatment" at CNYPC. Id. at 3-4, 7. Balkum was then involuntarily committed to CNYPC, and placed in its SOTP. Balkum's confinement at CNYPC began in September 2006, and he was released from CNYPC in or about September 2007. See Ex. B to Maxymillian Aff., at 1-2, Dkt. No. 42-7.

IV. Discussion

A. Summary Judgment Standard

A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The movant has the initial burden to show why it is entitled to summary judgment. See Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986)). If the movant meets its burden, the burden shifts to the non-movant to identify evidence in the record that creates a genuine issue of material fact. See id. at 273 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)). A party's factual assertions must be supported by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

FED. R. CIV. P. 56(c)(1).

When deciding whether a material issue of fact is in dispute, the court is cognizant that "[a] fact is material when it might affect the outcome of the suit under governing law." Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010) (internal citation omitted). Also, a material fact is genuinely in dispute "if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986)).

"In ruling on a motion for summary judgment, the district court may rely on any material that would be admissible or usable at trial." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008) (internal quotation and citation omitted). When deciding a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in the non-movant's favor. Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598 (1970)). However, a properly supported summary judgment motion "will not be defeated merely upon a 'metaphysical doubt' concerning the facts . . . or on the basis of conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 586).

Finally, it should also be noted that, pursuant to Local Rule 7.1(a)(3), the court deems admitted any properly supported statement of material fact that is not specifically controverted by the opposing party. See N.D.N.Y. L.R. 7.1(a)(3); see also Figueroa v. Tri-City Highway Prods., Inc., No. 08-CV-868, 2010 WL 3635247, at *2 (N.D.N.Y. Sept. 10, 2010) (citations omitted).

B. 42 U.S.C. § 1983 Generally

In order to establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff must show "(1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of state . . . law." Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920 (1980) (internal quotations omitted)). "Section 1983 is not itself a source of substantive rights[,] but merely provides a method for vindicating federal rights elsewhere conferred[.]" Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689 (1979)).

To establish a § 1983 claim against a government official in his individual capacity, a plaintiff need only "show that the official, acting under color of state law, caused the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 362 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985)). The government official, for his part, may assert the personal immunity defense of qualified immunity. See id.

In the case at bar, it is undisputable that Defendants were acting under color of state law when they took the alleged unconstitutional actions.

1. Sawyer's Personal Involvement

Defendants argue that Sawyer was not personally involved in the alleged unconstitutional actions. A prerequisite to an award of damages on a § 1983 claim against an individual is the personal involvement of the individual in the alleged unconstitutional deprivation. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (citations omitted). To prevail, the plaintiff must show some tangible connection between the alleged unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Where a defendant is a supervisory official, a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his personal involvement in that unlawful conduct. Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). A plaintiff may establish the personal involvement of a supervisor by showing that the supervisor

(1) directly participated in the violation, (2) failed to remedy the violation after being informed of it by report or appeal, (3) created a policy or custom under which the violation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were being violated.

Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)) (rev'd on other grounds, Ashcroft v. ...


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