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Evan Westmoreland v. Patrick O'flynn

June 20, 2012


The opinion of the court was delivered by: John T. Curtin United States District Judge


Plaintiff brought this action pursuant to 42 U.S.C. § 1983 seeking declaratory, compensatory, and punitive damages for the alleged deprivation of medical care. The parties originally consented to have the case heard by Magistrate Judge H. Kenneth Schroeder (Item 51), but it was transferred to the docket of the undersigned by order dated June 18, 2012 (Item 60). Currently pending before the court are the defendants' motion for summary judgment (Item 32) and plaintiff's motion to amend the complaint (Item 50).


Plaintiff commenced this action on February 6, 2007 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983. He seeks compensatory and punitive damages for the alleged deliberate indifference to his medical needs in violation of his rights under the Fourth*fn1 and Fourteenth amendments by named defendants Patrick O'Flynn, Sheriff of Monroe County, and Deputy Officer Ferranti*fn2 , a Corrections Officer ("CO") at the Monroe County Jail (Item 1). Plaintiff brings three causes of action: 1) defendants' acts were done deliberately and intentionally to deprive plaintiff with proper medical attention, 2) defendants' acts were intentional, reckless and unwarranted and they knew or should have known such acts were in violation of plaintiff's constitutional rights, and 3) defendants' actions were egregious and shocking to the conscience.

On June 6, 2007, defendant O'Flynn, through counsel, answered plaintiff's complaint and interposed twenty-three affirmative defenses, including plaintiff's failure to exhaust administrative remedies (Item 7). On January 29, 2009, following the parties' exchange of discovery materials, defendants moved for summary judgment pursuant to Fed. R.Civ.P. 56 (Item 32). Defendants assert the following grounds for summary judgment motion: 1) if deemed to be sued in their official capacities, they should be dismissed from the case; 2) the municipality cannot be held liable for plaintiff's claimed injuries because the plaintiff has not shown that a municipal policy or custom caused his claimed injuries; 3) the complaint should be dismissed for failure to state a cause of action upon which relief can be granted; 4) if deemed to be sued in their individual capacities, they are entitled to qualified immunity and the complaint against them should be dismissed; 5) the plaintiff is not entitled to punitive damages; 6) the complaint should be dismissed for lack of proper service; 7) the plaintiff failed to exhaust his administrative remedies; and 8) that the plaintiff received prompt and appropriate care with no deliberate indifferent to plaintiff's medical needs (Item 32). In response, plaintiff argued that no reasonable jury could find in defendants' favor and that there are genuine issues of material fact for trial (Item 41).

On April 14, 2009, plaintiff filed a motion to amend/correct the complaint (Item 50). He seeks to correct the mis-identification of "Deputy Afontie" and to add a cause of action for conspiracy. On April 20, 2009, defendants filed a response in opposition to the motion to amend (Items 53, 54), and a reply in support of their motion for summary judgment (Items 55, 56).

The court has determined that oral argument is unnecessary. For the reasons that follow, defendants' motion for summary judgment is granted and plaintiff's motion to amend is denied.


Plaintiff was incarcerated at the Monroe County Jail on or about September 3, 2004 (Item 32, Exh. G, p. 14). During the booking process, plaintiff advised the medical personnel that he had scoliosis as a child and had rods in his spine as a result of spinal surgery. Id., p. 18. On April 18, 2005, at around 7:15 pm, plaintiff was playing a game of cards with fellow inmates in his assigned housing area. Plaintiff was sitting in a facility issued chair when the chair collapsed, causing him to fall backwards on the galley bars and hit his head, neck, and back. Id., pp. 21, 24. Plaintiff submitted a "Health Services Request Form" at that time (Item 32, Exh. C, att. 6, p. 76). On April 19, 2005, plaintiff was examined by a nurse, who advised him to take Motrin and to alternate an ice pack with a warm shower (Item 32, Exh. C, att. 6, p. 65). On April 20, 2005, plaintiff submitted another "Health Services Request Form" and asked to be taken to an outside physician. Id., p. 75. On April 24, 2005, plaintiff submitted an "Inmate Internal Communication Form" in which he stated that he had fallen out of a chair and the facility medical department was failing to help him with his back and neck pain (Item 32, Exh. C, att 5, p. 2). Plaintiff submitted a "Health Services Request Form" on April 26, 2005, complaining of back pain and requesting to see a doctor and to be taken to an outside hospital (Item 32, Exh. C, att. 6, p. 73). On April 27, 2005, plaintiff was seen by a doctor who examined him and found that he was able to sit on the examining table "very comfortably. " Id., p. 67. The doctor prescribed Robaxin, ordered an x-ray of plaintiff's spine, and directed him to follow up in two weeks. Id., p. 60. The x-rays of plaintiff's thoracic and lumbosacral spine taken April 28, 2005 showed mild scoliosis, no gross abnormalities, and no fracture or focal destructive lesion. The radiologist noted that if the plaintiff's symptoms were to persist, "a bone scan might be helpful." Id., p. 50. On April 29, 2005, plaintiff received a written response on his Internal Communication Form. It indicated that the medical record had been reviewed and plaintiff's concerns had been addressed. Id., p. 2. The writer noted that plaintiff had been seen by a nurse on April 19, 2005 and by a doctor on April 27, 2005. He was prescribed Motrin and Robaxin, x-rays were ordered, and plaintiff was advised to follow-up in two weeks. Id. X-rays one year later, from April 25, 2006, indicated a normal cervical spine. Id., p. 76. Views of the lumbosacral spine indicated rods in "good position," mild scoliosis, and no fracture. Id.

In support of the motion for summary judgment, defendants submitted an affidavit of Lt. John A. LiPari, III, grievance coordinator for the Monroe County Sheriff's Department (Item 32, att. 11). The grievance policy in effect at the time plaintiff was incarcerated provided that inmates may "utilize Internal Communication Forms to communicate with ... Jail/Correctional Facility staff to resolve complaints or problems or to request services . . .." Id. If the inmate remained dissatisfied with the response to his complaint, he was instructed to request a Grievance Form and was required to file a grievance with the grievance coordinator within five days of the act or occurrence giving rise to the grievance. Id. If the inmate was dissatisfied with the decision of the grievance coordinator, he could appeal to the superintendent of the facility. Id. After receiving a response from the superintendent, the prisoner could seek review of the superintendent's decision with the State Commission of Correction. Id.

Lt. LiPari stated he reviewed the grievance file for the time period that plaintiff was incarcerated at the Monroe County Jail and found that there were no grievances filed by the plaintiff in accordance with the grievance policy. Id., ¶ 3. Additionally, in an affidavit, Sheriff Patrick M. O'Flynn stated that he made no decisions regarding plaintiff's medical care and treatment and, to the best of his knowledge, he "never received any letters from plaintiff regarding his complaints and disagreement with the medical care and treatment he received at the Monroe County Jail in 2005." (Item 32, att. 10, ¶¶ 4, 5).


1. Summary Judgment Standard

Rule 56 provides that, "[t]he court shall grant summary judgment 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). Although the language of this Rule has been amended in recent years, the well-settled standards for considering a motion for summary judgment remain unchanged. See, e.g., Faulkner v. Arista Records LLC, 797 F.Supp.2d 299, 311 n. 7 (S.D.N.Y. 2011). Under those standards, the party seeking summary judgment bears the initial burden of establishing that no genuine issue of material fact exists. Rockland Exposition, Inc. v. Great American Assur. Co., 746 F. Supp. 2d 528, 532 (S.D.N.Y. 2010), aff'd, 445 F.Appx. 387 (2d Cir. 2011). A "genuine issue" exists "if the evidence is such that a reasonable ...

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