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Liner v. Fischer

United States District Court, Second Circuit

August 7, 2013

JOSHUA LINER, Plaintiff,
v.
BRIAN FISCHER, et al., Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

PAUL A. CROTTY, District Judge.

Plaintiff Joshua Liner ("Liner") brings this 42 U.S.C. ยง 1983 ("Section 1983") action, pro se, against Defendants Brian Fischer ("Fischer"), Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"); Carl J. Koenigsmann ("Koenigsmann"), Chief Medical Doctor for DOCCS; Ada Perez ("Perez"), Superintendent of Downstate Correctional Facility ("Downstate"); and Lawrence Wilcox ("Wilcox"), a Nurse Practitioner at Lakeview Shock Incarceration Correctional Facility (collectively, "Defendants"). Liner alleges that his constitutional rights were violated while he was incarcerated at several different correctional facilities in New York.

On December 8, 2011, the Court referred this case to Magistrate Judge James L. Cott. (ECF No. 8.) On December 20, 2012, Defendants filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 46.) On June 24, 2013, Magistrate Judge Cott issued a Report and Recommendation ("R&R") that the motion to dismiss be granted, except as to Liner's deliberate indifference claims against Wilcox regarding Liner's glaucoma treatment and back pain. (ECF No. 67.) Liner and Defendants each filed objections to the R&R. (ECF Nos. 72, 75.) For the reasons set forth below, the Court rejects both parties' objections and adopts Magistrate Judge Cott's R&R in its entirety.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY[1]

A. Liner's Medical Claims

Liner asserts that he has suffered from glaucoma since 2006 and has been prescribed eye medication to treat this condition. Liner alleges that he has only received two of the three bottles of medication he was prescribed, and that all four Defendants are responsible for his lack of access to this medication. Liner alleges that Wilcox told Liner that he would not be receiving the third bottle of glaucoma medication because of budget cuts. Liner also alleges that Koenigsmann ordered this reduction in Liner's eye medication, that Fischer acted with deliberate indifference to Liner's medical need for this medication, and that Perez was responsible for the denial of his glaucoma medication at Downstate. Liner claims that Wilcox, Koenigsmann, Fischer, and Perez conspired to deny Liner his medication. Liner asserts that he filed numerous grievances that made each Defendant aware of his medical needs and attaches one May 15, 2010 letter to Fischer complaining about a female nurse at Wyoming who failed to treat several of his ailments. Liner seeks damages of $750, 000.00 from each Defendant, and an injunction directing Wilcox and Koenigsmann to provide him with the glaucoma medication. Additionally, Liner asks the Court to compel Wilcox to turn over medical records created by the eye specialist who treated Liner while he was incarcerated.

Liner also claims that he requires lotion and medicated foot cream to treat various skin and foot ailments. Liner alleges that Wilcox has been deliberately indifferent to his skin and foot conditions, grossly negligent by refusing to examine Liner's skin conditions, and retaliated against Liner for bringing this claim by stopping the order for medicated foot cream. Liner contends that Koenigsmann acted with gross negligence by failing to supervise the medical staff, failing to maintain medical records, and permitting the staff to withhold medical treatment.

In addition, Liner claims that he requires a bottom bunk because he has a bladder problem, a leg injury, and back injuries sustained prior to his incarceration. Wilcox allegedly refused Liner's request in retaliation for Liner's filing grievances. Liner also alleges that Fischer and Koenigsmann acted with deliberate indifference when they enforced a policy that did not allow him to have a bottom bunk. Liner requests an injunction against Koenigsmann and Fischer to ensure that Liner be assigned a bottom bunk. In addition, Liner contends that his back injuries have not been adequately treated. It is not clear from the Complaint or accompanying materials who Liner wishes to sue with regards to the treatment of his back, or whether he has been assigned a bottom bunk at his current facility.[2]

B. Liner's Other Claims

Liner asserts that he was denied food at three different prisons operated by Fischer and was subjected to teasing and the denial of food by an unnamed guard. Liner contends that Fischer was notified of these deprivations when Liner filed grievances. Liner also contends that under the supervision of Fischer, Liner's property was damaged in transit, including some of his legal paperwork, and that a guard at Gowanda threatened to urinate on his property if he did not fill out a form.

Liner further asserts that his due process rights were violated during three separate disciplinary hearings while he was incarcerated and seeks $750, 000.00 from Fischer and injunctive relief from the disciplinary sanctions that have been imposed on him. Lastly, Liner claims that DOCCS Directive 2788, which orders seizure of an inmate's incoming funds when he owes a debt, is unconstitutional, because it leaves him with insufficient funds to buy postage stamps for personal mail.

C. Procedural History

On December 20, 2012, Defendants moved to dismiss the Complaint on the grounds that (1) Liner cannot bring claims against Fischer, Koenigsmann, and Perez based on supervisory liability; (2) Liner has failed to state a claim for deliberate indifference; (3) Liner has failed to state a claim for conspiracy; and (4) some of the claims are untimely. (ECF No. 47.) On January 15, 2013, Liner filed papers opposing Defendants' motion to dismiss. (ECF No. 51.) On February 8, 2013, Defendants filed a Reply Memorandum of Law in Further Support of their Motion to Dismiss. (ECF No. 59.) In the interim, Liner filed two motions for a preliminary injunction on January 2, 2013 and February 5, 2013, regarding the DOCCS collection policy and Liner's access to law books. (ECF Nos. 49, 55.) On May 2, 2013, Magistrate Judge Cott issued a Report and Recommendation recommending that both motions for the preliminary injunction be denied. (ECF No. 66.) The Court addresses these motions in a separate order entered today.

D. The June 24, 2013 Report and Recommendation

Magistrate Judge Cott filed a thorough and complete 42-page report recommending that the Court dismiss all claims with prejudice against Fischer, Koenigsmann, and Perez and deny the motions for preliminary injunctions against Defendants as moot. Magistrate Judge Cott also recommended that all claims against Wilcox be dismissed, except the claim of deliberate indifference with respect to Liner's glaucoma treatment and back ...


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