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Danny Colon v. D. Porliar; A. Colvin; G. Warner

January 10, 2012


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



In this pro se civil rights action under 42 U.S.C. § 1983, plaintiff claims that defendants violated his Eighth Amendment rights when they subjected him to excessive force on three occasions (March 7, 2007, March 14, 2007 and April 26, 2007) and denied him adequate medical care. Defendants move for summary judgment and dismissal of plaintiff's complaint pursuant to Fed. R. Civ. P. 56. (Dkt. No. 37, 41). Plaintiff has opposed the motions. (Dkt. No. 43).


The facts in this case, unless otherwise noted, are undisputed.*fn1 At the time of the alleged events, plaintiff was in the custody of the New York State Department of Correctional Services ("DOCS"). Plaintiff resided at Great Meadow Correctional Facility ("Great Meadow") from March 2007 until June 2007. Defendant Christa Burda*fn2 ("Burda") is a Registered Nurse employed by Nursefinders, Inc. and assigned to Great Meadow. Defendant Ted Nesmith*fn3 ("Nesmith") is a Physicians' Assistant employed by DOCS at Great Meadow. Defendants Porliar, Colvin, Warner, Deluke, Baxter and Kitchnerare correctional officers employed at by DOCS at Great Meadow.*fn4

On March 5, 2007, plaintiff was seen for the first time by Great Meadow medical staff.*fn5

The Ambulatory Health Record indicates that plaintiff had a history of low back pain for which he was prescribed Flexeril but no acute medical problems.*fn6 There is no entry in plaintiff's Ambulatory Health records for March 7, 2007. On March 11, 2007, plaintiff was seen again by the medical staff at Great Meadow. The entry indicates "36 y/o new at GMCF" and notes that he had a bullet in his right leg, "B/P occ elevated" and "s/p backache - Flexeril - scoliosis".

On April 26, 2007, plaintiff was the subject of a use of force incident at Great Meadow.*fn7

On April 26, 2007 at approximately 5:15 p.m., Nurse Burda examined plaintiff. Plaintiff complained of pain in his right ankle and difficulty walking. Nurse Burda found that plaintiff had redness on his right shoulder blade, a four inch laceration on his right bicep, a laceration on the left side of the upper lip with edema, edema in the left eye which was half open, and sclera in the left eye being red.*fn8

Nurse Burda consulted with P.A. Nesmith who ordered plaintiff admitted to the infirmary. On April 26, 2007, plaintiff was admitted to the Great Meadow infirmary and treated with Tylenol. On April 27, 2007, a number of x-rays were taken of plaintiff's body: the left ribs, left shoulder, eye sockets, right hand and right ankle. The x-ray report revealed a negative finding, meaning no fractures, dislocations, or subluxations were present. The x-rays also revealed that plaintiff's lungs and paranasal sinuses were clear. "Metallic fragments" were also found in the soft tissue around the distal tibia in the right ankle. Otherwise, the surrounding soft tissue was found "unremarkable". While in the infirmary, plaintiff complained of rib pain. Plaintiff was given Tylenol and an abdominal binder to help decrease the pain. On April 30, 2007, plaintiff had "no c/o".

On May 1, 2007, plaintiff was discharged from the infirmary with a note in his records that he was to see Dr. Thompson in one week. Following his discharge on May 1, 2007 until June 7, 2007, plaintiff was treated nine times by prison medical staff at Great Meadow. On May 2, 2007, plaintiff complained of eye and back pain and was given Ibuprofen. On May 4, 2007, plaintiff requested medication for pain in his right arm and was given antibiotic ointment. On May 7, 2007, plaintiff complained of tender left ribs and right hand pain and was prescribed Percocet.*fn9 On May 8, 2007, plaintiff complained of "needing a sick call". P.A. Nesmith saw plaintiff during the morning sick call rounds and found plaintiff in no acute distress.

On May 14, 2007, plaintiff complained of throwing up blood. The officers did not observe plaintiff vomit blood but the PA indicated he would see plaintiff the next day and F Block officers were advised to call if there was any change in plaintiff's status. The next day, plaintiff was given a prescription for eye drops and the notations indicate that his Percocet was discontinued.

On June 6, 2007, plaintiff complained of "crucial pain" in his ribs, breathing problems and stated, "he is now blind in his left eye". Defendants claim that plaintiff refused an eye evaluation because he wanted to be transferred. On June 6, 2007, plaintiff signed a Refusal of Medical Examination and/or Treatment refusing treatment for his left eye. Plaintiff claims that he was forced to sign the document in order to be transferred out of Great Meadow.*fn10

On or about June 7, 2007, plaintiff was transferred to Upstate Correctional Facility.

On April 4, 2009, plaintiff commenced the within action.On April 5, 2011, defendants Porliar, Colvin, Warner, Deluke, Baxter, Copeland, Kitchner, Nasmith and Thompson moved for summary judgment and dismissal of plaintiff's complaint arguing: (1) plaintiff failed to exhaust his administrative remedies; (2) plaintiff failed to state a claim for excessive force relating to the March 7 and March 14 incidents; and (3) plaintiff failed to state a claim for medical deliberate indifference. (Dkt. No. 37).On April 8, 2011, defendant Burda moved for summary judgment arguing that plaintiff failed to state a claim for medical indifference. (Dkt. No. 41). Plaintiff has opposed the motions.


I. Summary Judgment Standard

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ( c ). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in dispute. See id. The moving party bears the initial burden of establishing that there is no genuine issue of material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to any issue on which the moving party does not bear the burden of proof, it may meet its burden on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Once the movant meets this initial burden, the nonmoving party must demonstrate that there is a genuine unresolved issue for trial. See Fed. R. Civ. P. 56(e). It is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56( c )(e)). "Defendants can meet their burden of establishing their entitlement to summary judgment by relying on plaintiff's medical records to establish the absence of any evidence supporting deliberate indifference to his mental health needs." Guarneri v. Hazzard, 2010 WL 1064330, at *8 (N.D.N.Y. 2010) (citing Mills v. Luplow, 2009 WL 2579195, at *8 (W.D.N.Y. 2009)). "Though conventional wisdom might dictate the submission of affidavits from the primary actors ... [the] defendants' decision to rely instead upon the lack of evidentiary support for plaintiff's claims, is sufficient to cast the burden upon the plaintiff to come forward with evidence demonstrating the existence of genuinely disputed material issues of fact for trial with regard to those claims." Id.

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations omitted). Where a plaintiff has failed to properly respond to a defendant's Statement of Material Facts ("Rule 7.1 Statement"), the facts as set forth in that Rule 7.1 Statement will be accepted as true to the extent that those facts are supported by the evidence in the record. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 243 (2d Cir. 2004) (holding that the court may not rely solely on the movant's statement of undisputed facts contained in its Rule 56.1 statement and must be satisfied that the movant's assertions are supported by the evidence in the record).

In reviewing a pro se case, the court "must view the submissions by a more lenient standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (other citations omitted)). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Govan, 289 F.Supp.2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). However, this does not mean that a pro se litigant is excused from following the procedural requirements of summary judgment. Id. at 295 (citing Showers v. Eastmond, 2001 WL 527484, at *2 (S.D.N.Y. 2001)). Specifically, "a pro se party's 'bald assertion,' ...

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