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


October 19, 2012


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


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.


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].


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 legal standard for such claims is clear:

In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to his serious medical needs. This standard incorporates both objective and subjective elements. The objective 'medical need' element measures the severity of the alleged deprivation, w hile the subjective 'deliberate indifference' element ensures that the defendant prison official acted w ith a sufficiently culpable state of mind.

Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law , not every lapse in prison medical care w ill rise to the level of a constitutional violation. [T]he Supreme Court [has] explained that the Eighth Amendment' s prohibition on cruel and unusual punishments encompasses the deliberate failure to treat a prisoner' s serious illness or injury resulting in the infliction of unnecessary pain and suffering. Because society does not expect that prisoners w ill have unqualified access to health care, a prisoner must first make this threshold show ing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care. Similarly, a prisoner must demonstrate more than an inadvertent failure to provide adequate medical care by prison officials to successfully establish Eighth Amendment liability. An official acts w ith the requisite deliberate indifference w hen that official know s of and disregards an excessive risk to inmate health or safety, a state of mind equivalent to the familiar standard of 'recklessness' as used in criminal law .

Smith v. Carpenter, 316 F.3d 178, 183--84 (2d Cir.2003) (citations and internal quotations omitted). Courts have repeatedly held that disagreements over treatment do not rise to the level of a Constitutional violation. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) (" It is w ell-established that mere disagreement over the proper treatment does not create a constitutional claim." ). Similarly, negligence constituting medical malpractice, w ithout more, w ill not establish a constitutional claim. Id. (citation omitted).

In this case, Defendants maintain that they are entitled to summary judgment on the Eighth Amendment claim, since the metal knee brace presented a security threat, and since Plaintiff w as offered an alternative non-metallic knee brace. How ever, Plaintiff clearly disputes that he w as ever offered a substitute brace or any other type of treatment or assistance for his knee condition. Accordingly, there is a triable issue of fact on that point. Defendants have not argued that they w ould still be entitled to summary judgment if Plaintiff's version of facts w ere proven, that is, if after his brace w as confiscated, they failed to provide him w ith any type of treatment, w hich resulted in him being unable to w alk and leave his cell for months, even to take show ers and obtain medical and dental treatment. Accordingly, Defendants' motion is denied as to the Eighth Amendment medical claim.

The ADA Claim

As mentioned earlier, Plaintiff did not expressly plead an ADA claim in his Complaint. Instead, the Court construed the Complaint as stating such a claim, since Plaintiff claimed that as a result of his inability to w alk, he could not leave his cell, and therefore w as unable to access services, programs and activities, such as show ers, dental care and recreation. At such time, the Court stated that " the [ADA] claim may proceed at this stage against the public entity." Order [#8] at p. 2 (emphasis added). In that regard, the Court w as indicating that the ADA claim could proceed against DOCCS, not against the individual Defendants in their individual or official capacities. See, Brow dy v. Karpe, 131 Fed.Appx. 751, 753-754 (2d Cir. May 16, 2005) (" Title II of that statute [ADA] does not provide for individual capacity suits against state officials." ) (citation omitted); Loadholt v. DOCS, No. 09--CV--553Sc, 2009 WL 4230132 at * 3 (W.D.N.Y. Nov. 24, 2009) (" The Second Circuit has recognized that a valid ADA claim may be stated against a state official in his official capacity. . . . How ever, w here a plaintiff has sued the state or a state entity under the ADA, and an official capacity claim against an individual defendant w ould be redundant, courts in this Circuit have dismissed ADA claims against individual defendants in their official capacities." ) (citations omitted). With that clarification, the individual Defendants' motion is denied as unnecessary insofar as it is directed at the ADA claim, since that claim is not asserted against them.

The remaining issue is w hether DOCCS is entitled to summary judgment on the ADA claim.*fn3 DOCCS first argues that Plaintiff' s knee condition does not qualify as a disability under the ADA. Although w alking is a " major life activity" under the ADA, the mere limitation of one's ability to w alk w ill not qualify as a disability under the ADA. See, e.g., Sussle v. Sirina Protection Systems Corp., 269 F.Supp.2d 285, 312 (S.D.N.Y. 2003) (" The inability to w alk long distances or to climb stairs does not in itself substantially limit an individual' s ability to perform a major life activity." ) (internal quotation marks omitted; collecting cases). A complete inability to w alk, though, or a sufficiently severe limitation on the ability to w alk, can qualify as a disability under the ADA. See, Epstein v. Kalvin-Miller Intern., Inc., 100 F.Supp.2d 222, 226 (S.D.N.Y. 2000) (" [T]o succeed on his ADA claim, plaintiff must prove that his diabetes or his heart disease impairs his ability to w alk to such a great extent that he is " unable" to w alk, or is " significantly restricted" in his ability to w alk, as compared w ith the average person." ). View ing the instant record in the light most-favorable to Plaintiff, his knee condition w as permanent, extremely painful and prevented him from w alking at all. Accordingly, there is an issue of fact on this point that precludes summary judgment.


Defendants' summary judgment motion [#27] is denied. Plaintiff's applications for Default Judgment [#11] [#18] are also denied, since he did not demonstrate his entitlement to such relief. See, Perkins v. Napoli, No. 08-CV-6248 CJS, 2010 WL 455475 at * 1 (W.D.N.Y. Feb. 4, 2010) (" [E]ntry of a party' s default pursuant to Fed.R.Civ.P. 55(a) is a mandatory prerequisite for entry of a default judgment pursuant to Fed.R.Civ.P. 55(b)." ) (citation omitted).


Charles J. Siragusa

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