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Mark Alan Carlson v. Jamieson Parry

March 29, 2012


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



In December 2006, plaintiff Mark Alan Carlson ("Carlson") filed this action against the New York State Department of Correctional Services ("DOCS") and certain of its officers at Livingston Correctional Facility, alleging that defendants violated his rights under the First, Eighth, and Fourteenth Amendments, as well as his rights under the Americans with Disabilities Act and the Rehabilitation Act. (Docket # 1). Carlson retained counsel in March 2008. (Docket # 15). Carlson has amended his complaint four times, the last time on March 18, 2009. (Docket ## 4, 9, 23, 33).

Currently pending before the Court is defendants' motion for summary judgment. (Docket # 43). For the reasons discussed below, defendants' motion for summary judgment is granted as to all of Carlson's claims except his Eighth Amendment claims against defendant Parry.


The following facts are undisputed except where otherwise noted.

I. Carlson's Programming Assignments

In 1996, Carlson's right leg was partially amputated below the knee; since then he has used a prosthetic leg. (Docket # 43-2 at ¶ 2). In March 2005, Carlson was incarcerated pursuant to a felony conviction of driving while intoxicated and eventually was sent to DOCS's Gowanda Correctional Facility. (Id. at ¶ 12; Docket # 33 at 16).

According to Carlson, on May 28, 2005, the foot of his prosthetic leg broke off, and thereafter he was unable to wear the prosthesis or walk. (Docket # 56 at ¶¶ 18-19). Three days later, on May 31, 2005, he fell down some stairs and tore his rotator cuff. (Id. at ¶¶ 29-30; Docket # 43-2 at ¶ 44). On June 27, 2005, Carlson received a new prosthesis, but it did not fit properly and needed adjustment. (Docket # 56 at ¶ 33). On August 10, 2005, Carlson filed a Notice of Intent to File a Claim against New York State regarding the May 31st incident, and he subsequently filed suit in the New York State Court of Claims. (Docket # 44, Ex. F).

On July 14, 2005, Carlson was transferred to Livingston Correctional Facility, a facility designated for inmates with medical and mobility issues, and was evaluated by the Livingston medical unit upon arrival. (Docket # 43-2 at ¶¶ 45-47). Carlson testified that he told the Livingston medical staff that he was still adjusting to his new prosthesis and that he was suffering from six or seven different blister-like "hot spots" and abrasions that made walking uncomfortable. (Docket # 44, Ex. A at 81-83). The medical unit issued a "Program Clearance" indicating that Carlson could not climb stairs, jump, bend or reach "normally" or play contact sports, but was eligible to work in the mess hall. (Docket # 43-2 at ¶ 66).

Carlson subsequently met with defendant Senior Corrections Counselor Jamieson Parry ("Parry") to determine his program assignment.*fn1 (Id. at ¶ 61). Parry advised Carlson that he was required to attend alcohol counseling, known as Alcohol and Substance Abuse Treatment ("ASAT") because he had been incarcerated for an alcohol-related offense. (Id.). The parties dispute whether Parry also told Carlson that he was required to attend Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA") meetings. (Docket ## 33 at 4; 43-2 at ¶ 71). According to Parry, he encouraged Carlson to attend those meetings, but did not order it because he did not have the authority to do so. (Docket # 45 at ¶ 27).

Parry assigned Carlson to work in the mess hall in accordance with the program clearance from the medical unit. (Docket # 43-2 at ¶ 63). Carlson objected to the assignment and explained to Parry that his disability would hinder his ability to work in the mess hall. (Id. at ¶ 64). According to Carlson, he told Parry that his prosthesis was broken, he could not stand for long periods of time and could not walk any significant distance. (Docket # 56 at ¶¶ 42-43). In addition, Carlson told Parry that he had injured his shoulder and could not lift any significant weight. (Id.). Carlson showed Parry his residual limb by removing the prosthesis. (Docket # 44, Ex. A at 90).

Carlson contends that Parry responded as follows: I must be getting soft as I get older because I'm willing to give you 30 days to get your medical bullshit 'straightened away.' But . . . I want you to know that I expect to see your name on every attendance sheet for AA and NA meetings for the next 30 days, because if I don't see your name, believe me when I tell you, I will stick so many programs so far up your ass that you won't be able to sit down and visit with your mama when she comes to visit you! (Id. at ¶ 44). Parry denies making any such statement. (Docket # 43-2 at ¶ 69). It is undisputed, however, that Carlson was not assigned to any program other than ASAT for the next thirty days. (Id. at ¶ 75).

Carlson contends that from July 24, 2005 until mid-August 2005, he attended AA and NA meetings four nights a week. (Id. at ¶¶ 45, 50). According to Carlson, he walked 1400 yards, or 4/5 of a mile, round-trip in order to attend the meetings. (Id. at ¶ 49). By mid-August, the walking had so aggravated the injuries to his residual limb that he could no longer walk to the meetings. (Id. at ¶¶ 49-50). Specifically, Carlson testified that during August 2005 his tibia broke through the skin of his residual limb and the area became filled with pus. (Docket # 44, Ex. A at 84-85).

According to Carlson, on or about September 1, 2005, he saw Parry, who asked him if he had been attending the AA and NA meetings. (Docket # 56 at ¶¶ 51-52). Carlson told Parry that he "was trying to heal some wounds on the end of [his] stump and as soon as they were healed [he] would continue with the meetings." (Id. at ¶ 52). According to Carlson, Parry responded sarcastically that he would be getting a "nice cushy" job assignment in the mail the next day. (Id. at ¶ 53). The next day, Carlson was assigned to work on the "Utility Gang," a vocational program in which inmates perform outdoor work in "various assignments, including mowing lawns, as well as outdoor cleanup and snow removal." (Docket ## 56 at ¶ 56; 43-2 at ¶¶ 80-83).

Carlson initially alleged that his assignment on the Utility Gang required him to "push[] a lawnmower all afternoon," which caused "further trauma and injury" to his leg and that "the tibia in his leg broke through the skin . . . and became infected." (Docket # 33 at ¶¶ 39, 43). He later testified at his deposition, however, that he only worked on the Utility Gang for three days and never mowed any lawns. (Docket # 44, Ex. A at 101). Instead, on the first day Carlson "swept up a little bit"; on the second he "played cards"; and, on the third day he received a medical release from the Utility Gang. (Id. at 101-102; Docket # 43-2 at ¶¶ 87-90). Carlson further testified that he suffered no injury from his assignment to the Utility Gang.*fn2 (Docket # 44, Ex. A at 103).

II. Conviction at Disciplinary Hearing

Pursuant to DOCS policy, inmates are prohibited from helping other inmates with their legal work or possessing other inmates' legal documents. (Docket # 43-2 at ¶¶ 157, 159). In early June 2007, Carlson's cube was searched by DOCS officers based on an anonymous tip that he was assisting other inmates with their legal work without permission. (Id. at ¶¶ 169, 174, 176). Legal documents belonging to other inmates, specifically inmates Sanford Bell and George Rogner, were seized during the search. (Id. at ¶ 191). In addition, correspondence from Carlson's lawyer referring to inmates McKenna and Crump was also confiscated. (Docket ## 43-2 at ¶¶ 192-93; 49, Ex. A at 2, 21-22). Following the search, Carlson was issued a misbehavior report for possessing other inmates' crime and sentencing information and providing legal assistance without approval. (Docket # 43-2 at ¶ 196).

On June 14, 2007, defendant Vocational Supervisor Steve Smith ("Smith") conducted a Tier III disciplinary hearing, found Carlson guilty of two of three charges and sentenced him to serve sixty-three days in the Special Housing Unit ("SHU"). (Id. at ¶ 203; Docket # 56 at ¶ 98). Carlson appealed that conviction and, on January 25, 2008, it was reversed. (Docket # 43-2 at ¶ 222). By that time, Carlson had completed his SHU sentence. (Docket # 56 at ¶ 118).

At the hearing, Smith notified Carlson of the charges against him, as well as his right to defend himself and to present witnesses and documentary evidence. (Docket # 43-2 at ¶ 205). Carlson testified at the hearing that he had sought written permission from the Deputy Superintendent for Programming ("DSP") to assist both Bell and Rogner with their legal work, but that he had only received permission to help Bell. (Id. at ¶¶ 163-64, 166-67). Carlson further testified that during a casual conversation with an officer named "Lieutenant Bob" ("Lt. Bob") and Rogner, he had obtained verbal permission to assist Rogner. (Docket # 56 at ¶ 76). Carlson also admitted to possessing the letters from his attorney referring to inmates McKenna and Crump. (Docket # 43-2 at ¶ 210).

At the hearing, Carlson requested that Smith call four witnesses, including Rogner and Lt. Bob. (Id. at ¶¶ 213, 216). Two of the witnesses testified, but Smith did not call either Rogner or Lt. Bob. Smith explained that he decided not to call Rogner, who had been transferred from Livingston, because his testimony would be irrelevant in view of Carlson's admission that he had not received written permission from the DSP to assist him, as DOCS's policy required.

(Id. at ¶ 216; Docket # 57). With respect to his decision not to call Lt. Bob, Smith explained at the hearing that he did not "feel that [Lt. Bob's] testimony [wa]s going to have any bearing on [Carlson's] guilt or innocence." (Docket ## 43-2 at ¶¶ 213-14; 49, Ex. A at 29, 30). Smith has further affirmed that, in denying Carlson's request, he had assumed that "what inmate Carlson had told me about his conversation with Lt. Bob was true." (Docket # 49 at ¶ 24).

At the conclusion of the hearing, Smith found Carlson guilty of providing legal assistance without approval and possessing crime and sentence information pertaining to other inmates.*fn3 Smith's written disposition noted that Carlson had not obtained approval from the DSP to perform legal work for three of the four inmates whose work had been found in Carlson's cube. (Docket # 49, ¶ 28, Ex. B).

III. Conditions in the Special Housing Unit

Carlson spent his first week in SHU at Orleans Correctional Facility and served the rest at Lakeview Correctional Facility. (Docket # 44, Ex. A at 122). He was allowed use of his wheelchair at Orleans, but not at Lakeview. (Id. at 124). Otherwise, the conditions of his confinement at both facilities were the same. (Id. at 122). Specifically, he was locked in his cell for twenty-three hours a day, was permitted to shower only two days a week and had no access to the library, gym, commissary or AA meetings. (Docket # 56 at ΒΆΒΆ 103, 111). In addition, ...

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