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Richard Kearney, #03-A-4948 v. N.Y.S. Docs

October 19, 2012

RICHARD KEARNEY, #03-A-4948, PLAINTIFF
v.
N.Y.S. DOCS, COMMISSIONER BRIAN FISCHER, JOSEPH F. HALUSKA, SUPERINTENDENT NAPOLI AND M. BRIDGE, DEFENDANTS



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

Richard Kearney (" Plaintiff" ), an inmate in the custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ), alleges that Defendants violated his federal constitutional rights, in violation of 42 U.S.C. § 1983, and his rights under the Americans w ith Disabilities Act (" ADA" ). Now before the Court is Defendant's motion for summary judgment (Docket No. [#27]). The application is denied.

BACKGROUND

The follow ing are the facts of the case view ed in the light most-favorable to Plaintiff, the non-moving party. At all relevant times, Plaintiff w as a prisoner in the custody of DOCCS. Plaintiff has degenerative joint disease in both knees. Prior to the events at issue in this case, a DOCCS physician determined that Plaintiff needed a metal knee/leg brace to w alk, and Plaintiff's ambulatory health record (" AHR" ) reflects that diagnosis. Prior to June 2007, DOCCS officials at various correctional facilities permitted Plaintiff to have such a brace. In or about June 2007, Plaintiff w as transferred to Southport Correctional Facility (" Southport" ) to serve a disciplinary sentence in the Special Housing Unit (" SHU" ). Upon his arrival at Southport, the facility Medical Director, defendant Joseph Haluska, M.D., confiscated Plaintiff's knee brace. The AHR indicates that the brace w as taken because it contained metal, and that the treatment plan w as to provide Plaintiff w ith a plastic brace. Plaintiff asked to have the metal brace returned, and in the alternative, asked to have the use of crutches or a w heelchair for ambulating outside of his cell. All of those requests w ere denied. Plaintiff w as not provided a plastic brace or any type of device to replace the knee brace. Consequently, Plaintiff experienced significant pain w hen w alking or standing, especially w hen w alking for any distance outside of his cell. Plaintiff w as ordered to w alk outside of his cell several times, and experienced pain. After that, Plaintiff refused to leave his cell, and therefore did not participate in activities and privileges including recreation, show ers, medical and dental treatment and haircuts. Consequently, Plaintiff w as issued misbehavior reports for refusing to leave his cell. On A pril 8 , 2 0 1 0 , Plaintiff commenced this action. The Complaint alleges an Eighth Amendment medical deliberate indifference claim.*fn1 In conducting its initial review of the Complaint pursuant to 42 U.S.C. § § 1915(e) and 1915A, the Court also found that the Complaint stated a claim under the ADA, Title II. See, Order (Docket No. [#8]).*fn2

On August 27, 2010, Plaintiff filed a request [#I0] for Clerk's Entry of Default, how ever, the Clerk of the Court denied the request because Plaintiff failed to submit proofs of service. Nevertheless, on September 1, 2010, Plaintiff filed a Motion for Default Judgment [#11]. Again, though, the application did not establish that Defendants had been actually served w ith Process. On January 28, 2011, Plaintiff filed another application for Default Judgment [#18] against Defendants Haluska, Napoli and Bridge, " in their individual capacit[ies] only." Plaintiff alleged that those Defendants had not filed Answ ers " in their individual capacities." See, id. at p. 2 (" Still as of the present date the Defendants mentioned w ithin the foregoing fo this motion has failed to respond." ). Actually, though, Haluska, Napoli and Bridge had filed Answ ers [#13] more than tw o months earlier, on November 3, 2010.

During pretrial discovery, Defendants filed Plaintiff's AHR [#21] under seal. The AHR entries confirm that Plaintiff's leg brace w as confiscated w hen he arrived at Southport, and that he requested to have the brace returned. The AHR also indicates that the medical staff at Southport offered Plaintiff an elastic " sleeve" -type brace for his knee, to replace the metal brace, but that he rejected the elastic brace. How ever, at his deposition, Plaintiff denied that such AHR entry w as accurate, and more specifically, he insisted that he w as ever given any type of alternate brace or treatment for his knee. See, Pl. Dep. at pp. 14, 18, 22, 24, 37-38, 44-45.

On September 20, 2011, Defendants filed the subject motion for summary judgment [#27], including the required Irby Notice. Defendants did not submit any affidavits in support of the motion. Instead, Defendants rely on Plaintiff's deposition transcript, the AHR, and copies of grievances that Plaintiff filed. Defendants' memorandum of law maintains that Plaintiff cannot demonstrate an Eighth Amendment claim or an ADA claim. Defendants rely largely on Tannenbaum v. Arizona, 2008 WL 2789589 at * 9 (D. Arizona 2008) (" Tannenbaum" ) for the proposition that prison officials are entitled to confiscate metal knee braces that pose a security risk, and that such action does not violate prisoners' Eighth Amendment rights w here the officials replace the metal braces w ith non-metal braces. See, id. (" [M]any courts have recognized the inherent security threat in metal knee braces and have consistently upheld prison officials' decisions to confiscate them and provide inmates w ith alternative knee braces that do not contain metal." ). Defendants further contend that Plaintiff's knee injury does not qualify as a " disability" under the ADA. The individual Defendants (Haluska, Napoli and Bridge) also argue that Plaintiff cannot maintain an ADA claim against them in their individual capacities, and that the same claims against them in their official capacities should be dismissed " because they are redundant of the claims against the government entity." Defs. Memo of Law [#27-1] at p. 5. Plaintiff opposes the application. See, Docket No. [#29].

DISCUSSION

Rule 56

Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL

PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.).

The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).

Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, " to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

Eighth Amendment Medical Claim Plaintiff alleges that Defendants violated his Eighth Amendment rights in connection w ith his medical care, and the ...


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