PRESTON A. SMITH, Plaintiff,
JAMES CONWAY, Superintendent, PAUL CHIAPPIUS, JR., Dept. Sup of Security, JAMES WHITFORD, S. DOLCE, KENNETH S. PERLMAN, and R. KILLINGER, Defendants.
Preston A. Smith, Pro Se, 87-C-0186, Downstate Correctional Facility Box F, Fishkill, New York.
ERIC T. SCHNEIDERMAN, Attorney General, State of New York, KATHLEEN M. KACZOR, Assistant Attorney General, of Counsel, Buffalo, New York, Attorney for Defendants.
DECISION and ORDER
REPORT and RECOMMENDATION
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned by Honorable Richard J. Arcara on July 22, 2013 for pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motions to dismiss (Docs. Nos. 12 and 17), respectively filed May 8 and 15, 2012, and Plaintiff's motion for summary judgment (Doc. No. 23), filed June 18, 2012.
Plaintiff ("Plaintiff"), an inmate proceeding pro se, commenced this civil rights action on October 18, 2010, while incarcerated at Attica Correctional Facility ("Attica") asserting on the Prisoner Civil Rights Complaint Form, as well as in the attached "Complaint" claims alleging five separate violations of Plaintiff's constitutional rights by Defendants, all employees of New York State Department of Corrections and Community Supervision ("DOCCS"), including Attica Superintendent James Conway ("Conway"), Attica Deputy Superintendent of Security Paul Chappius, Jr. ("Chappius"),  Attica Deputy Superintendent of Programs S. Dolce ("Dolce"), and Attica Senior Counselor James Whiteford ("Whiteford"). Plaintiff specifically alleged (1) Defendants, in violation of the First Amendment, forced Plaintiff to participate in strenuous work which Plaintiff, because of a bulging disc in his back, was unable to perform, to retaliate against Plaintiff for filing prison inmate grievances; (2) Defendants, in violation of the Eighth Amendment, ordered Plaintiff to perform strenuous work; (3) Defendants denied Plaintiff the opportunity to participate in DOCCS programs, thereby rendering Plaintiff ineligible for parole consideration, in violation of due process, as well as to retaliate against Plaintiff for filing prison inmate grievances, in violation of the First Amendment; (4) Defendants, in violation of the Eighth Amendment, acted with deliberate indifference to Plaintiff's serious medical needs by ordering Plaintiff to perform strenuous work despite Plaintiff's bulging disc, for which Defendants also denied Plaintiff treatment and declining Plaintiff's requests to transfer to another correctional facility to receive treatment, and (5) Defendants retaliated against Plaintiff for filing prison inmate grievances in violation of the First Amendment by denying Plaintiff the opportunity to participate in prison programs that would have enabled Plaintiff to be considered for release on parole.
In an order filed February 3, 2011 (Doc. No. 8) ("February 3, 2011 Order""), District Judge Michael A. Telesca dismissed, in their entirety and with prejudice, all claims asserted against Defendants Conway and Chappius for lack of personal involvement, February 3, 2011 Order at 25, and Plaintiff's claims asserted against Defendants Dolce and Whiteford for First Amendment retaliation for filing prison inmate grievances and Eighth Amendment cruel and unusual punishment, based on Plaintiff's assignment to strenuous work despite physical limitations interfering with Plaintiff's ability to perform such work, and First Amendment retaliation and Fourteenth Amendment due process claims, based on the denial of access to DOCCS programs at Attica necessary for consideration of release on parole. Id. at 18-20. Judge Telesca further dismissed without prejudice and with leave to refile those claims asserted against Defendants Dolce and Whiteford alleging Defendants, by assigning Plaintiff to work beyond Plaintiff's physical capacity, exhibited deliberate indifference to Plaintiff's physical limitations in violation of the Eighth Amendment proscription against cruel and unusual punishment, id. at 18, and Defendants, by denying Plaintiff the opportunity to participate in certain prison inmate programs that could be considered in assessing Plaintiff's eligibility for release on parole, retaliated against Plaintiff for filing prison inmate grievances, in violation of the First Amendment. Id. at 22.
On February 24, 2011, Plaintiff filed an Amended Complaint (Doc. No. 9) ("Amended Complaint"), consisting of the Prisoner Civil Rights Complaint Form and the attached "Amended Complaint" (Doc. No. 9-1) containing 42 pages of additional factual allegations and attaching 55 pages of exhibits ("Plaintiff's Exh(s). __"). Although difficult to discern, Plaintiff's Amended Complaint essentially alleges five claims for relief, including denial of due process in violation of the Fourteenth Amendment ("First Claim"), denial of equal protection under the Fourteenth Amendment ("Second Claim"), interference with access to courts in violation of the First Amendment ("Third Claim"), failure to protect in violation of the Eighth Amendment ("Fourth Claim"), and denial of medical treatment in violation of the Eighth Amendment ("Fifth Claim"). Plaintiff's claims are asserted against Dolce and Whiteford, in addition to Attica Nurse Killinger ("Killinger"), and Attica Deputy Superintendent of Programs Kenneth Perlman ("Perlman").
On May 8, 2012, Defendants filed a motion to dismiss the Amended Complaint for failure to state a claim (Doc. No. 12) ("Defendants' Motion"), the Declaration of Assistant Attorney General Kathleen Kaczor ("Kaczor Declaration"), attaching exhibit A, and Defendants' Memorandum of Law in Support of Their Motion to Dismiss (Doc. No. 15) ("Defendants' Memorandum"). On May 15, 2012, Defendants refiled their motion to dismiss (Doc. No. 17) ("Defendants' Refiled Motion"), along with the same supporting documentation including the Kaczor Declaration (Doc. No. 19), and Defendants' Memorandum (Doc. No. 18).
On June 18, 2012, Plaintiff filed a motion for summary judgment (Doc. No. 23) ("Plaintiff's Motion"), supported by attached exhibits A through R ("Plaintiff's Exh(s). __"). On July 13, 2012, Defendants filed Defendants' Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss (Doc. No. 25) ("Defendants' Reply"). On July 17, 2012, Defendants filed Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 27) ("Defendants' Response").
On November 20, 2012, Plaintiff filed a supplemental exhibit in support of his claims (Doc. No. 29) ("Supplemental Exhibit"). On March 18, 2013, a copy of Plaintiff's Appeal Form to Commissioner, Superintendent's Hearing (Doc. No. 30) ("Disciplinary Hearing Appeal Form"), was filed by Plaintiff. Oral argument was deemed unnecessary.
Based on the following, Defendants' Motion (Doc. No. 12) should be sua sponte converted to summary judgment and should be GRANTED; Defendants' Refiled Motion (Doc. No. 17) is DISMISSED as moot; and Plaintiff's Motion (Doc. No. 23), should be DENIED. The Clerk of the Court should be directed to close the file.
In his Amended Complaint filed February 24, 2011, Plaintiff Preston A. Smith ("Plaintiff" or "Smith"), an inmate in the custody of New York State Department of Corrections and Community Supervision ("DOCCS"), makes factual allegations against numerous DOCCS employees at Attica, only four of whom are sued as Defendants, including Deputy Superintendent of Programs S. Dolce ("Dolce"), Senior Counselor James Whiteford, Nurse Killinger ("Killinger"), and Deputy Superintendent of Programs Kenneth Perlman ("Perlman"). The essence of Plaintiff's claims is that although he suffers from severe degenerative disease in his spine, including spinal stenosis, a bulging disc, and carpal tunnel syndrome, Defendants have repeatedly refused to provide Plaintiff with proper treatment for his medical condition, but have repeatedly assigned Plaintiff to institutional programs requiring heavy work which Plaintiff, based on his physical disability, is unable to perform, such that Plaintiff continually fails to meet the criteria for release on parole, which criteria includes participation in institutional programs.
The Amended Complaint consists of four parts, including the Prisoner Civil Rights Claim Form ("Form Amended Complaint"), attached to which is a 21-page document entitled "Amended Complaint" asserting three claims for relief ("Amended Complaint),  followed by 58 pages of exhibits ("Amended Complaint Exh.") and a certification of service. The rambling Amended Complaint is prolix, containing a total of five claims for relief, including the same claims Judge Telesca dismissed with prejudice in the February 3, 2011 Order, and others which are seemingly irrelevant to Plaintiff's claims against the named Defendants. Although verbose, the Amended Complaint is sparse as to such salient details as to specifically who is alleged to have engaged in the claimed civil rights violations, and where and when such conduct occurred. Nevertheless, the court discusses the claims as best gleaned from the Amended Complaint.
Claim One, Form Amended Complaint, First Claim
Participation in institutional programs is necessary to meet the parole board's criteria for consideration of release on parole. On December 22, 2008, January 27, 2009, August 24, 2009, November 6, 2009, and April 15, 2010, April 24, 2010, however, Defendant Attica Deputy Superintendent Kenneth S. Perlman ("Perlman"), instructed "facility coordinators, " including Defendants Attica Senior Counselor and Program Committee Chair James Whiteford ("Whiteford"), and Attica Deputy Superintendent of Programs S. Dolce ("Dolce"), to "force" upon Plaintiff a job program assignment despite Plaintiff's medical infirmities, including spinal stenosis, a bulging disc in the vertebrae of his spinal canal, and carpal tunnel syndrome in both arms.
Claim Two, Form Amended Complaint, Second Claim
On December 31, 2008, July 15, 2009, June 21, 2010, August 4, 2010, "6-15th 2010, " and August 22, 2010, Defendants Dolce and Attica Nurse Administrator R. Killinger, R.N. ("Nurse Killinger"), sent memoranda to Plaintiff advising that, although Plaintiff would not receive treatment for his medical condition, Plaintiff could not participate in institutional programs, but must either be placed on idle assignment, or in a program that was likely to exacerbate and conflict with his medical care. According to Plaintiff, such actions prevented Plaintiff from receiving program instruction necessary for Plaintiff to be considered for release on parole.
Claim Three, Amended Complaint, Count One
Defendant Perlman, in assigning Plaintiff to work as a "porter" on A-Block, relied on an unqualified correctional facility medical staff member's recommendation regarding Plaintiff's physical ability to perform such job entailing heavy duty tasks, including shoveling snow, carrying heavy items, mopping, sweeping, and unloading supplies from tractor trailers, likely to harm Plaintiff. Plaintiff maintains that when he complained about the assignment, he faced retaliation with threats of denial of proper medical care, and the continued denial of Plaintiff's requests to participate in therapeutic programs that would have allowed Plaintiff to be considered for release on parole.
Claim Four, Amended Complaint, Count Two
Defendant Dolce and Whiteford continued to deprive Plaintiff and interfered with Plaintiff's medical care by discontinuing Plaintiff's pain therapy treatment, including pain medications, and physical therapy for Plaintiff's herniated bulging disc and carpal tunnel syndrome, and delayed in placing Plaintiff in a medical disability company. According to Plaintiff, when he was finally placed in a medical disability company, he was harassed by repeatedly being moved from cell to cell, and "was ultimately assaulted by security staff for filing complaints and grievances, while placed on Administrative Unassignment Idle' status" although Plaintiff continued to volunteer to participate in programs that would have rendered Plaintiff eligible for parole consideration. Plaintiff maintains Defendants denied Plaintiff's requests to participate in prison programs to retaliate against Plaintiff for filing grievances. On April 26, 2010, Plaintiff was issued an allegedly false misbehavior report as further retaliation.
Claim Five, Amended Complaint, Count Three
"[I]mmediately" after Plaintiff filed an unspecified grievance, unspecified Defendants harassed Plaintiff by denying Plaintiff "custodial and therapeutic programs for his continued rehabilitation and expectations to seek release [on parole]." Such retaliation included placing Plaintiff on "idle unassigned" status, rather than assigning Plaintiff to a non-physically demanding program which would have allowed Plaintiff to be employed and attend programs so as to meet the parole board's requirements for parole release. Plaintiff maintains ...