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Allah-Kasiem v. Wladyslaw Sidorowicz

July 17, 2012

ALLAH-KASIEM, PLAINTIFF,
v.
WLADYSLAW SIDOROWICZ, FACILITY HEALTH SERVICES DIRECTOR, SULLIVAN MEDICAL DEPARTMENT, SULLIVAN CORRECTIONAL FACILITY, RENE LAWRENCE, CORRECTION SERGEANT, BRYAN HILTON, ASSISTANT DEPUTY SUPERINTENDANT, DEPARTMENT OF CORRECTIONAL SERVICES, DEFENDANTS.



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

OPINION & ORDER

Plaintiff Allah-Kasiem ("Kasiem"), an inmate at the Sullivan Correctional Facility ("Sullivan") brought this pro se action under 42 U.S.C. § 1983 against current and former Sullivan employees. The surviving claims are brought against three individuals: Sergeant Rene Lawrence ("Lawrence"), Deputy Superintendent Bryan Hilton ("Hilton"), and Dr. Wladyslaw Sidorowicz ("Sidorowicz"). Kasiem alleges that Lawrence retaliated against him in violation of his First Amendment rights, that Hilton violated his due process rights, and that Sidorowicz was deliberately indifferent to his medical needs. The parties have cross-moved for summary judgment. The defendants' motion is granted and Kasiem's motion is denied.

BACKGROUND

The following facts are undisputed, unless otherwise noted. The facts underlying the retaliation claims will be described first. The facts underlying Sidorowicz's involvement in Kasiem's medical care will be described last.

I. Lawrence: Retaliation Claims Kasiem asserts that Lawrence wrote two Inmate Misbehavior Reports ("IMR") to retaliate against him (1) for statements Kasiem made to Lawrence on March 9, 2009, and (2) for Kasiem's successful appeal of the outcome of a disciplinary hearing.

A. March 9, 2009 IMR On March 9, 2009, Kasiem approached Lawrence, then a relatively new officer at Sullivan, as Lawrence conducted housing unit rounds. Kasiem told Lawrence that he had "confidential information" for her. Kasiem gave her a folded piece of paper; upon unfolding the paper, Lawrence found it contained a list of lawsuits Kasiem claimed to have won. Kasiem then told Lawrence, using extremely graphic language, that other officers were discussing her in inappropriate sexual terms and placing bets on who would be the first to sleep with her. Kasiem also told Lawrence to "watch [her] back."

Lawrence reported the incident on the same day to her superior, Lieutenant James Maxwell ("Maxwell"). After speaking with Maxwell, Lawrence wrote an IMR against Kasiem (the "March 9 IMR"), and at Maxwell's direction placed Kasiem in keeplock confinement pending a disciplinary hearing on the IMR.*fn1 The March 9 IMR charged Kasiem with lying, interference, and harassment of an employee. Following a March 18 hearing, Kasiem was found guilty of the disciplinary charges in the March 9 IMR and given ninety days of keeplock confinement and a loss of several privileges for 120 days. On April 13, Kasiem's March 18 disciplinary determination was reversed by an official at the State Department of Correctional Services ("DOCS").

B. June 16, 2009 IMR Kasiem asserts that Lawrence retaliated against him on a second occasion when she filed an IMR against him on June 16, 2009, for harassment and stalking, inter alia. On that day, Lawrence received a letter from Kasiem, stating that he had "selected" her to be his employee assistant in an upcoming disciplinary hearing. Kasiem's letter stated: "Kindly be advised that I have selected you to be my employee assistant in connection with a Tier 2 hearing for an alleged violation of the greatest breach of security in the history of Sullivan -- a piece of candy." Kasiem had been provided notice that inmates are only entitled to employee assistance at Tier III hearings. Lawrence was also aware that inmates are not entitled to employee assistance in Tier II hearings.

Lawrence had another corrections officer escort Kasiem to a duty sergeant's office to discuss the letter, and ordered Kasiem to enter the office and sit down. Kasiem refused to do so, and stated that he wished to speak with Lawrence privately. Lawrence again ordered Kasiem to enter the office and sit, and Kasiem complied. Upon questioning, Kasiem admitted that he had written the letter to Lawrence. Lawrence then wrote an IMR against Kasiem (the "June 16 IMR"), charging him with stalking an employee, harassing an employee, and refusing to obey a direct order.

In her affidavit, Lawrence states that she "transferred out of Sullivan after only five months there in large part to remove myself from" Kasiem. Lawrence is currently a sergeant at Ulster Correctional Facility.

II. Hilton: Due Process Claim On July 8, 2009, Hilton began presiding over a disciplinary hearing initiated by a June 30 IMR. Hilton was then Sullivan's Assistant Deputy Superintendent for Programs and regularly presided over inmate disciplinary hearings. Kasiem's hearing concluded on July 21. The June 30 IMR was authored by Corrections Officer Martin Albert ("Albert") and charged Kasiem with (1) providing legal assistance to another inmate without prior approval; (2) altering a document; (3) providing misleading and/or false statements; and (4) being in possession of contraband.

The record at the hearing reflects the following events: On June 30, Albert conducted a search of Kasiem's cell. The search turned up an envelope of legal work belonging to inmate Garnett Johnson ("Johnson"), as well as a pair of scissors. Albert confiscated these items.

Kasiem contends that in the course of the search, Albert found a copy of a Legal Assistance Form that purportedly authorized Kasiem to perform legal work on Johnson's behalf. Albert asserted that Kasiem provided him with the form after Albert asked whether Kasiem was authorized to perform legal work for Johnson. The Legal Assistance Form was signed by Deputy Superintendent for Programs Patty Nelson ("Nelson") and dated December 11, 2008. The form also included an expiration date, "1/", with the remainder of the date missing. Following the search, Albert described the form over the telephone to Nelson, who responded that Legal Assistance Forms expire after 30 days and always contain an expiration date.

Albert also called Sullivan's law library and spoke with either Officer Brian Villegas ("Villegas") or Officer Gordon Simpson. One of these two law library officers located a copy of the December 11 form, which was identical to Kasiem's copy except that the law library's copy had a complete expiration date of "1/11/09".

On July 14, Albert testified by telephone at Kasiem's disciplinary hearing, and Kasiem cross-examined him. Kasiem called Nelson as a witness, who testified by telephone that she always puts a 30-day expiration date on Legal Assistance Forms, and that she could not have made a mistake in forgetting to put an expiration date on a form because she is "very meticulous". Nelson also stated that she no longer had a record of the December 11 Legal Assistance Form because she only keeps records of currently valid forms.

Kasiem next called Johnson to testify. Johnson stated that he had received a copy of the December 11 Legal Assistance Form from Nelson on December 11, 2008, and that his copy was identical to the one Kasiem presented at the hearing, with an incomplete expiration date. Johnson also stated that he had provided legal documents to Kasiem on June 29 after Kasiem inquired about an Article 78 petition that Johnson had filed. After Johnson testified, Kasiem declined the opportunity to question Nelson again.

Kasiem then called Roger Traynor ("Traynor"), the corrections officer serving as Kasiem's employee assistant for the hearing. Kasiem presented two Legal Assistance Forms to which Kasiem had been referring throughout the hearing, which Traynor had procured at Kasiem's request. One of these copies had a complete expiration date, and Kasiem claimed that the date on this document had been forged. The other copy, which Kasiem maintained was an original copy of the form signed by Nelson, had the incomplete expiration date. Traynor testified that he had secured the copy with a complete expiration date from the law library, and the copy with the incomplete date from the evidence locker.

After Traynor testified, Kasiem told Hilton he had no more witnesses to call. Hilton provided Kasiem with an opportunity to present closing testimony, and Kasiem described at length the theory of his defense. Kasiem first claimed that he had not been performing legal assistance for Johnson at all, but instead had borrowed legal materials from Johnson. Kasiem asserted that Nelson had forgotten to put a complete expiration date on the December 11 Legal Assistance Form, and alleged that Albert and Villegas retaliated against Kasiem for previous grievances by forging the remainder of the expiration date on the law library's copy to make it look like Kasiem had altered his form. Kasiem also argued that when he had been transferred to Sullivan from another facility seven years before, a sewing kit with scissors was improperly logged. As a result, his file erroneously failed to reflect that he was permitted to possess the scissors.

Hilton found Kasiem guilty of providing unauthorized legal assistance, counterfeiting or forgery, and making false statements. He found Kasiem not guilty of possessing contraband. Hilton ordered Kasiem placed in keeplock for 120 days, with a loss of several privileges. Hilton allowed Kasiem to place his objections on the record, and informed Kasiem of his appeal rights. In a written statement of the hearing's disposition, dated July 22, Hilton stated that the disposition was based upon the IMR and Sullivan "staff and inmate witness testimony".

III. Sidorowicz: Medical Claims Kasiem's February 1, 2011 amended complaint contains two sets of constitutional allegations against Sidorowicz, a medical doctor and Sullivan's Facility Medical Director. The first set of allegations pertains to Kasiem's claim that he is legally blind and requires accommodations. Kasiem's second set of allegations arises out of Sidorowicz's decision to prescribe the drug Neurontin to help treat Kasiem's neuropathic pain in 2010.

A. Visual Impairment The defendants have submitted extensive medical records, from the period August 2008 through March 2010, of the treatment of Kasiem's vision by Sullivan's medical staff. These records include the reports of consultants outside the correctional system to whom Kasiem was referred with Sidorowicz's approval.

At a routine eye examination at Sullivan on August 20, 2008, Kasiem was recorded as having decreased visual acuity. Sullivan medical staff requested an optometry evaluation for Kasiem; the request was reviewed by Sidorowicz. On October 8, an optometrist found that Kasiem had "mild cataracts", and that he "won't read letters on chart". Sullivan medical staff subsequently referred Kasiem for an ophthalmology examination.

On November 3, Kasiem was seen by Dr. Michael Belin ("Belin"), an ophthalmologist at Eastern Correctional Facility. Belin's report noted that Kasiem showed some signs of macular dystrophy, a degenerative eye condition that can lead to decreased vision. Belin recommended that Kasiem have a formal retinal evaluation. Belin also stated that Kasiem would "need magnifiers/computer reader to assist reading". Belin referred Kasiem for a retinal evaluation to Dr. Jerome Schartman ("Schartman"), an ophthalmologist at the Coxsackie Correctional Facility Regional Medical Unit ("Coxsackie RMU").

Schartman examined Kasiem on December 8. Schartman found that Kasiem showed some indications of macular dystrophy, but Schartman also found no sign of bone spindles. According to Sidorowicz, a discovery of bone spindles "would signify greater damage to the eye with greater loss of function." Schartman referred Kasiem for additional low vision evaluation. In addition, Schartman signed a Request for Reasonable Accommodations form, which indicated that Kasiem had "severe visual impairment".

On January 12, 2009, Kasiem attended a follow-up examination at Coxsackie RMU's Retina Clinic, during which a visual field test was performed. According to the consultant's report from the January 12 examination, Kasiem "state[d] he could not see anything in the testing procedure." The consultant stated that the results of the examination showed "poor reliability" and were "uninterpretable".

On July 13, Kasiem had a follow-up appointment with Belin. In his report of the appointment, Belin noted that previous tests performed to establish whether Kasiem suffers from macular dystrophy were "unreliable". Belin also noted that Kasiem's cataracts were "unlikely visually significant". With respect to Kasiem's request for low vision accommodations, Belin questioned whether Kasiem was a "malingerer as [patient] easily ambulates and is able to see small objects at near."

On September 15, Dr. Monica Casey-Gee ("Casey-Gee"), an optometrist at the Northeastern Association for the Blind in Albany, performed a Low Vision Evaluation ("LVE") on Kasiem. An LVE is a functional vision exam where a patient reads charts and devices are used to provide the patient with assistance. Casey- Gee measured Kasiem as having visual acuity in both eyes below the minimum threshold for legal blindness. Specifically, Kasiem was recorded as having visual acuity of 5/400 in his left eye and 5/250 in his right eye. Casey-Gee recommended that Kasiem be provided with various accommodations, including magnifiers, large print, "voice output" computers and books, and the ability to view closed circuit video magnification televisions. On October 5, Kasiem's request for accommodations for "severe macular dystrophy" was approved by Sullivan staff, ...


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