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June v. Hogan

United States District Court, N.D. New York

January 16, 2014

CHRISTOPHER JUNE, Plaintiff,
v.
MICHAEL HOGAN, DONALD SAWYER, TERRI MAXYMILLIAN[1], YOLONDA PERONI, Defendants.

CHRISTOPHER JUNE, 81710, Ogdensburg, NY, Plaintiff pro se.

GREGORY J. RODRIGUEZ, ESQ., ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, NY, Counsel for Defendants.

REPORT-RECOMMENDATION and ORDER

THÉRÈSE WILEY DANCKS, Magistrate Judge.

This pro se civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Frederick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Christopher June claims that Defendants violated his federal due process rights during his involuntary civil confinement as a sex offender at the Central New York Psychiatric Center ("CNYPC"). (Dkt. No. 1.) Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 83.) For the reasons discussed below, I recommend that the Court grant Defendants' motion and enter judgment in their favor.

I. FACTUAL AND PROCEDURAL SUMMARY

Plaintiff's complaint in this action is sixty-seven pages long and includes many claims regarding his confinement to and conditions at CNYPC. (Dkt. No. 1.) As a result of previous motions in this case, only two claims remain: (1) a due process challenge to Plaintiff's placement in the Motivation on Deck Program ("MOD"); and (2) a due process challenge to Defendants' use of shackles and handcuffs. (Dkt. No. 71 at 21-22, 25-27; Dkt. No. 75 at 3.) Only four Defendants remain in the action: Michael Hogan, Donald Sawyer, Terri Maxymillian, and Yolonda Peroni. (Dkt. No. 75 at 2-3.) The following factual and procedural summary will be limited to the remaining claims and Defendants.

The complaint alleges that Plaintiff was placed in the MOD "with no substantial physician written order.'" (Dkt. No. 150.) Plaintiff alleges that this "clearly demonstrates" that he was placed in the MOD as a form of punishment rather than as a form of "effective treatment." Id. The complaint alleges that Defendant Hogan was "fully aware" of problems in the MOD. Id. 51. Plaintiff identifies some of these problems as:

restrained to a day room some fourteen (14) hours; restrictions on any activity center and recreation, not allowed to treatment mall to engage in treatment programs; denied free nightly movie viewing; no art/crafts opportunities, forced against his will to remain in the "Mod" area day and night which in turn added extreme pain, stress and suffering.

Id.

Defendant Maxymillian, the Director of Treatment Services for the Sex Offender Treatment Program ("SOTP") at CNYPC, declares that "[a]cts of physical aggression or the direct threat of such will frequently lead to transfer to the MOD." (Dkt. No. 84 U 9.) Such transfers "can be based upon an acute event or based on ongoing maladaptive behaviors." Id. Defendant Maxymillian declares that Plaintiff had repeated behaviors - including verbal and physical altercations with other residents, refusal to abide by facility rules, and problems with his treatment programs - that "required him to remain on a unit away from those residents successfully engaging in treatment." Id. ¶¶ 14-39. Defendant Maxymillian further declares that "[r]esidents on MOD continue to be offered 20 hours of programming per week as do residents not on MOD status." Id. ¶ 11.

The complaint alleges that Defendants "abused their dis[cre]tion in... the use of shackles and handcuffs." (Dkt. No. 1 ¶ 77.) Plaintiff alleges that he was "abused by the usage of shackles and handcuffs" on "many occasions." Id. The paragraph of the complaint regarding shackles and handcuffs references an exhibit. Id. The referenced exhibit discusses "the use of handcuffs and other restraints when patients are transported on trips outside the" facility. Id. at 58. This Court has previously noted that Plaintiff's claim regarding shackles and handcuffs thus appears to involve the use of restraints during travel outside the facility. (Dkt. No. 71 at 25-26.) William Owen, III, the Chief Safety Officer at CNYPC, declares that "[t]ransport staff are required to produce residents to courts throughout the State of New York as well as area hospitals. The layout of each of these locations and security staffing/protocols is typically unfamiliar to staff." (Dkt. No. 83-2 ¶ 6.) Because "every resident of the SOTP has been committed by court order, in most instances against their will, they may endanger transport staff health and safety, may have violent propensities or may present flight risks were they to be escorted outside the secure perimeter without safety and security devices." Id. ¶ 5. Safety and security devices "have always been used when people committed to the facility are transported outside of the facility." Id. ¶ 7.

Plaintiff filed the complaint in this action on March 20, 2009. (Dkt. No. 1.) On December 7, 2009, Defendants moved to dismiss the complaint. (Dkt. No. 39.) Magistrate Judge George H. Lowe[2] issued a Report-Recommendation on September 30, 2010, recommending that the motion be granted in part and denied in part. (Dkt. No. 60.) Defendants objected to the Report-Recommendation. (Dkt. No. 65.) On March 28, 2012, the Court adopted Judge Lowe's recommendation in part and rejected it in part, dismissing many of Plaintiff's claims, some with leave to amend. (Dkt. No. 71.) Plaintiff did not file an amended complaint. On July 13, 2012, the Court issued an order stating that, as a result of Plaintiff's failure to file an amended complaint, only two claims remained against four Defendants. (Dkt. No. 75.) As discussed above, the two remaining claims are due process challenges to Plaintiff's placement in the MOD and to the use of shackles and handcuffs. Id. at 3. The four remaining Defendants now move for summary judgment. (Dkt. No. 83.) Plaintiff has not opposed the motion, despite being warned of the consequences of failing to respond. (Dkt. No. 83 at 3; Dkt. No. 86.)

II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. at 273. The nonmoving party must do more than "rest upon the mere allegations... of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material[3] fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).

When a plaintiff fails to respond to a defendant's motion for summary judgment, "[t]he fact that there has been no [such] response... does not... mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the defendants. See Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001); L.R. 7.1(b)(3).

Where a plaintiff has failed to properly respond to a defendant's Statement of Material Facts (its "Rule 7.1 Statement"), the facts as set forth in that Rule 7.1 Statement will be accepted as true to the extent that (1) those facts are supported by the evidence in the record, and (2) the non-moving party, if he is proceeding pro se, has been specifically advised of the potential consequences of failing to respond to the movant's motion for summary judgment. See L.R. 7.1(a)(3); Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); Champion, 76 F.3d at 486.

III. ANALYSIS

A. Placement in the MOD

Plaintiff claims that Defendants violated his right to due process by placing him in the MOD and that there were "problems" with conditions there. (Dkt. No. 1 ¶¶ 50-51.) Defendants move for summary judgment dismissing this claim, arguing that it fails because there is no evidence that Plaintiff was placed in the MOD arbitrarily rather than because of legitimate penological concerns. (Dkt. No. 83-3 at 3-7.[4]) Defendants are correct.

Individuals, like Plaintiff, who have been civilly committed retain substantive due process rights. Youngberg v. Romeo, 457 U.S. 307, 315 (1982). In determining whether such rights have been violated, courts must weigh "the individual's interest in liberty against the State's asserted reasons for restraining" it. Id. at 320. In weighing these interests, courts must "make certain that professional judgment was in fact exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." Id. at 321. Thus, only a "substantial departure from accepted professional judgment, practice, or standards" can support a substantive due process claim brought by an involuntarily committed individual against highlevel staff members who are expected to exercise professional judgment. Id. at 323; Vallen v. Carrol, No. 02 Civ. 5666 (PKC), 2005 U.S. Dist. LEXIS 20840, at *25-26, 2005 WL 2296620, at *8 (S.D.N.Y. Sept. 20, 2005); Yeldon v. Hogan, No. 9:08-CV-769 (NAM/RFT), 2010 U.S. Dist. LEXIS 23821, at *13-15, 2010 WL 983819, at *5 (N.D.N.Y. Mar. 15, 2010[5]) (finding that placement in the MOD did not violate involuntarily committed sex offender's due process rights).[6]

Here, Defendant Maxymillian, a licensed psychologist, declares that Plaintiff was placed in the MOD because the need to ensure "a safe and secure treatment environment" for other residents required that Plaintiff "remain on a unit away from those residents successfully engaging in treatment." (Dkt. No. 84 ¶¶ 1, 7, 39.) The record thus shows that Plaintiff was placed in the MOD for legitimate reasons based on professional judgment. There is no indication that Defendants departed substantially from accepted professional judgment, practice, or standards. Thus, Plaintiff has not raised a triable issue that his placement in the MOD violated his due process rights. Moreover, Defendant Maxymillian declares that Plaintiff continued to receive programming on the MOD. Id. ¶ 11. Plaintiff has not opposed the motion for summary judgment and thus has not refuted that declaration. There is thus no evidence of the "problems" of which Plaintiff complains. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss this claim.

B. Use of Shackles and Handcuffs

Plaintiff claims that Defendants violated his due process rights by using handcuffs and shackles when transporting him outside the facility. (Dkt. No. 1 ¶ 77; Dkt. No. 1 at 58.) Defendants move for summary judgment dismissing this claim. (Dkt. No. 83-3 at 7-10.) As with Plaintiff's due process claim regarding placement in the MOD, his claim regarding the use of shackles and handcuffs is analyzed under the balancing test set out in Youngberg. See Abdul-Matiyn v. Allen, No. 06-CV-1503 (GTS/DRH), 2010 U.S. Dist. LEXIS 102972, at *38-40, 2010 WL 3880687, at *12 (N.D.N.Y. Mar. 4, 2010) (applying Youngberg balancing test to grant CNYPC officials' motion for summary judgment of claim that handcuffing involuntarily committed individual during transport from state prison to CNYPC violated his due process rights).[7] Mr. Owen declares that because "every resident of the SOTP has been committed by court order, in most instances against their will, they may endanger transport staff health and safety, may have violent propensities or may present flight risks were they to be escorted outside the secure perimeter without safety and security devices." (Dkt. No. 83-2 \ 5.) The record thus shows that shackles and handcuffs were used for legitimate reasons based on professional judgment. There is no indication that Defendants departed substantially from accepted professional judgment, practice, or standards. Thus, Plaintiff has not raised a triable issue that the use of shackles and handcuffs violated his due process rights. Therefore, I recommend that the Court grant Defendants' motion for summary judgment and dismiss this claim.

ACCORDINGLY, it is

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 83) be GRANTED; and it is further

ORDERED that the Clerk change the docket to reflect the spelling of Defendant Terri Maxamillion's last name as "Maxymillian"; and it is further

ORDERED that the Clerk provide Plaintiff with copies of Vallen v. Carrol, No. 02 Civ. 5666 (PKC), 2005 U.S. Dist. LEXIS 20840, 2005 WL 2296620 (S.D.N.Y. Sept. 20, 2005); and Yeldon v. Hogan, No. 9:08-CV-769 (NAM/RFT), 2010 U.S. Dist. LEXIS 23821, 2010 WL 983819 (N.D.N.Y. Mar. 15, 2010).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secy of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).

MEMORANDUM AND ORDER

CASTEL, J.

*1 Plaintiff Barry Lee Vallen brings this action, pursuant to 42 U.S.C. § 1983, alleging that he was the victim of multiple patient-to-patient assaults and deprivations of property during the time that he resided at the Mid-Hudson Forensic Psychiatric Center ("Mid-Hudson"), a facility operated by an agency of the state of New York. In a Memorandum and Order dated September 2, 2004, I dismissed defendants New York State Office of Mental Health and Mid-Hudson on the basis of the state's constitutionally-based immunity from suit. Vallen v. Mid-Hudson Forensic Office of Mental Health, 2004 WL 1948756 (S.D.N.Y. Sept. 2, 2004). I concluded that the Complaint set forth allegations sufficient to state claims against the individual defendants for deliberate indifference to confinement conditions that were seriously and dangerously unsafe. Id. at *3. I held that plaintiff's claim did not arise under the Eighth Amendment because he was not serving a term of imprisonment pursuant to a conviction, but, generously construed, his pro se Complaint could be read as alleging that persons acting under color of state law had deprived him, as an involuntarily detained person, of rights protected by the Fourteenth Amendment. Id.

Discovery in this action is now closed. The defendants have moved for summary judgment dismissing the plaintiff's claims. For the reasons explained below, the defendants' motion is granted.

Background

The following facts are taken from plaintiff's pleadings, his sworn deposition testimony or are otherwise not disputed. Where multiple inferences can be drawn from the facts, I have considered only the one most favorable to Mr. Vallen, the non-movant.

In 1984, the plaintiff was charged with two counts of second-degree murder in connection with the death of his parents. (Vallen Dep. at 169) Plaintiff pleaded not guilty by reason of mental illness or defect and was diagnosed as a paranoid-schizophrenic. (Vallen Dep. at 169-71) A Justice of the New York Supreme Court, Orange County, found that, at that point in time, the plaintiff suffered from a dangerous mental illness and ordered that he be committed to a psychiatric facility. (Vallen Dep. at 170) Subsequently, plaintiff was discharged to outpatient care on two occasions, but in each instance he was later recommitted. (Vallen Dep. at 172-84) From April 18, 1997 through June 14, 2000, plaintiff was an inpatient at Mid-Hudson. (Dickson Aff. ¶ 5)

In an order dated July 22, 2002, Chief Judge Michael B. Mukasey dismissed plaintiff's deprivation of property claim and ruled that the State of New York provided adequate post-deprivation remedies for the recovery of lost property. (July 22, 2002 Order at 3) He also ruled that the Complaint inadequately detailed the assault claims, and dismissed those claims without prejudice. (July 22, 2002 Order at 2, 4-5) Plaintiff filed an Amended Complaint ("AC") dated January 24, 2003.

The AC alleges that, during his three years of treatment at Mid-Hudson Forensic Psychiatric Facility, the plaintiff was subjected to violence and threats of violence, and that the individual defendants promoted or failed to prevent these incidents. The individual defendants were employed as security hospital treatment assistants ("SHTAs") who were responsible for assisting psychiatric patients in their day-to-day needs and activities. (DeLusso Aff. ¶¶ 2-3)

*2 Each of the incidents set forth in the AC are discussed below. Generally described, the plaintiff alleges that the defendants either encouraged or failed to intervene in violent attacks that other patients inflicted upon the plaintiff. According to the AC, the defendants were aware that various Mid-Hudson patients had violent histories, and placed these patients in close proximity to the plaintiff. On other occasions, the AC alleges that the defendants displayed pleasure at the attacks on plaintiff that allegedly took place. Plaintiff notes, by way of contrast, that since the year 2000 he has resided at a facility in Rochester, New York, and has never been threatened or assaulted.

Helpfully, as part of their motion papers, the defendants have organized the allegations set forth in the Complaint into sixteen distinct incidents or clusters of incidents. Solely for the purposes of facilitating evaluation and discussion of the incidents, I will refer to the sixteen incidents by the number and descriptive title employed in the defendants' motion papers. (Appendix to this Memorandum and Order) I do not in any way treat the defendants' submission as having any evidentiary quality to it.

Summary Judgment Standard

Summary judgment "shall be rendered forthwith if 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). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law..." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004).

When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial, " and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e). In raising a triable issue of fact, the nonmovant carries only "a limited burden of production, " but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts, ' and come forward with specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir.2004) (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993)).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Caution is particularly warranted when considering a summary judgment motion in a discrimination action, since direct evidence of discriminatory intent is rare, and often must be inferred. Forsyth v. Fed'n Empl. & Guidance Serv., 409 F.3d 565, 569 (2d Cir.2005). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (quotations and citations omitted); accord Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id.

*3 The defendants have served the pro se plaintiff with the notice explaining the manner in which a party may oppose summary judgment, as required by Local Rule 56.2. I am mindful of the latitude afforded to a pro se party opposing a summary judgment motion. See Forsyth, 409 F.3d at 570 ("special solicitude" owed to pro se litigants opposing summary judgment); Shabtai v. U.S. Dep't of Educ., 2003 WL 21983025, at *5 (S.D.N.Y. Aug. 20, 2003) (obligation to construe leniently pro se opposition papers on a summary judgment motion). However, a party's pro se status does not alter the obligation placed upon the party opposing summary judgment to come forward with evidence demonstrating that there is a genuine dispute regarding material fact. Miller v. New York City Health & Hosp. Corp., 2004 WL 1907310, at *9 (S.D.N.Y. Aug. 25, 2004).

Discussion

1. Statute of Limitations Defense

The applicable limitations period for Section 1983 actions is found in the state statute of limitations for personal injury actions. Owens v. Okure, 488 U.S. 235, 249-50 (1989). "Accordingly... New York's three-year statute of limitations for unspecified personal injury actions, New York Civil Practice Law and Rules § 214(5), governs section 1983 actions in New York." Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997). The statute of limitations begins to accrue" 'when the plaintiff knows or has reason to know of the injury which is the basis of his action." Id. (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980)).

This action was filed in the pro se office on December 10, 2001, although the Complaint was not formally accepted for filing until July 22, 2002. The timeliness of the Complaint for statute of limitations purposes is measured from the delivery to the pro se office on December 10, 2001. See Ortiz v. Cornetta, 867 F.2d 146 (2d Cir.1999); Toliver v. Sullivan County, 841 F.2d 41 (2d Cir.1988). It is undisputed that some of the events alleged in the AC occurred more than three years prior to such delivery, i.e. prior to December 10, 1998.

Here, plaintiff argues that he is entitled to tolling under New York law by reasons of insanity. Once the defendant demonstrates that the claim facially falls within the limitations period, the plaintiff, not the defendant, bears the burden of proof on tolling. See Doe v. Holy See (State of Vatican City), 17 A.D.3d 793, 794 (3d Dep't 2005); Assad v. City of New York, 238 A.D.2d 456, 457 (2d Dep't 1997).

CPLR 208 provides for tolling when "a person entitled to commence an action [was] under a disability because of infancy or insanity at the time the cause of action accrues...." While the words of the statute, taken at face value, might appear to be broad enough to apply to any person suffering from a debilitating mental illness, the New York Court of Appeals has interpreted the statute more narrowly. McCarthy v. Volkswagen of Am., 55 N.Y.2d 543 (1982). The McCarthy Court reviewed the legislative history of the provision and concluded that the legislature intended that CPLR 208 be "narrowly interpreted". Id. at 548. In the words of the Court: "we believe that the Legislature meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society." Id. at 548-549. New York courts have consistently applied the McCarthy standard to claims of tolling by reason of insanity. See, e.g., Eberhard v. Elmira City School Dist., 6 A.D.3d 971, 973 (3d Dep't 2004) (McCarthy standard not satisfied by claim of post-traumatic stress syndrome); Burgos v. City of New York, 294 A.D.2d 177, 178 (1st Dep't 2002) ("The doctor's affirmation... was vague and conclusory in asserting that plaintiff's dementia and psychotic disorder [are] due to multiple medical conditions [that] have existed for many years and are permanent, ' and thus insufficient to raise an issue of fact" on CPLR 208 tolling under the McCarthy standard).

*4 The standard articulated in McCarthy has two components. First, the party must be "unable to protect [his] legal rights" and, second, the reason he is unable to protect his legal rights is "because of an over-all inability to function in society". I assume for the purposes of this motion that, during the period for which plaintiff seeks tolling, he had "an over-all inability to function in society." In this regard, plaintiff has had several "retention hearings" that have resulted in findings that Vallen should remain in an institutional setting. (Vallen Decl. ¶ 1) However, I still must consider whether plaintiff has raised a triable issue of fact as to his ability to protect his legal rights during the period for which he seeks tolling.

As part of their summary judgment burden, the defendants have come forward with evidence of Vallen's direct, personal and vigorous pursuit of his legal rights in judicial proceedings instituted during the period for which he claims tolling. In November 1998, plaintiff commenced an action in the Court of Claims of the State of New York alleging that the state had been negligent in permitting seven inmate assaults on him over the course of one and one-half years. (Peeples Aff., Ex. C) He was then familiar with the necessity of timely filing a claim, as evidenced by his handwritten complaint dated November 16, 1998, which recites as follows: "This claim is filed within 3 years after the claim accrued, as required by law." (Peeples Aff., Ex. C)FN1 Vallen v. State of New York, Claim No. 100141 (N.Y.Ct.Cl. Sept. 1, 1999). He filed a second Court of Claims action in or around July 1999 alleging that the state had been negligent by permitting a patient identified as C.J. to initiate a physical attackFN2 (Peeples Aff. Ex. D) Vallen v. State of New York, Claim No. 100803 (N.Y.Ct.Cl. Apr. 17, 2001). Plaintiff filed a third Court of Claims action in July 1999, alleging that the state was negligent in permitting the theft of his personal property; in that action, he set forth a detailed list of each item of lost property and its value, including a "suit for court" ($279) and a pair of ostrich leather western boots ($350) (Peeples Aff. Ex. E) Vallen v. State of New York, Claim No. 100804 (N.Y.Ct.Cl. Apr. 17, 2001). Also in July 1999, he filed a Section 1983 action in this District alleging that his constitutional rights had been violated. (Peeples Aff. Ex. I) Vallen v. Connelly, 99 Civ. 9947(SAS).FN3 In March 2000, plaintiff filed a fourth suit in the Court of Claims alleging that falsified claims had been levied against him. (Peeples Aff. Ex. F) Vallen v. State of New York, Claim No. 102160 (N.Y.Ct.Cl. Sept. 1, 2000). In toto, between November 1998 and March 2000, Vallen, proceeding pro se, filed five separate lawsuits in two different fora in an effort to enforce and protect his legal rights. In two of the pleadings, he affirmatively expressed an understanding of the applicable statute of limitations. The 1999 federal court action evinces an awareness of a federal remedy and the procedural means to invoke it. Cf. Cerami v. City of Rochester Sch. Dist., 82 N.Y.2d 809, 813 (1993) (considering, inter alia, the numerous lawsuits filed by the party claiming toll in rejecting such a claim).

FN1. The same allegation is set forth in Vallen's 2000 state Court of Claims complaint. (Peeples Aff., Ex. F)
FN2. To protect their privacy, all Mid-Hudson patients other than the plaintiff will be identified via their initials.
FN3. See also Vallen v. Connelly, 36 Fed.Appx. 29 (2d Cir. June 11, 2002), on remand, 2004 WL 555698 (S.D.N.Y. Mar 19, 2004).

*5 In response to the defendants' evidence submitted on their summary judgment motion, plaintiff has been unable to raise a triable issue of fact as to his ability to protect his legal rights during the period for which he claims tolling. The plaintiff has had a full opportunity to conduct discovery. In his papers in opposition to summary judgment, he has exhibited an understanding of the requirements of Rule 56, which were explained to him in the Local Rule 56.2 Notice. Yet, nowhere does he address his ability or inability to protect his rights during the time he has been in a mental health facility. Indeed, rather than rebut the defendants' evidence, plaintiff notes that, during the period for which he seeks tolling, he "pressed charges and the patient C.J. was convicted and sent to Orange County jail." (Pro Se Affidavit in support to deny [sic] summary judgment) The closest he comes to responding to the defendant's argument is the assertion that he lost some or all of his lawsuits on the basis of "simple technicalities", thereby demonstrating that he was unable to protect his rights. (Pro Se Mot. to Den. Summ. J. at 1) But it does not follow that because other claims he asserted were dismissed on various grounds that, therefore, he was unable to assert the claims that he belatedly asserted in this action. He also asserts that the express reference to the statute of limitations in two of his filings "was only a mere statement I read in a book...." (Pro Se Mot. to Den. Summ. J. at 1) The source of his awareness of his rights is not relevant to this motion.

To the state employees who are named as individual defendants in plaintiff's Section 1983 claim, it is no small matter to allow a stale claim to stand when there is no basis in the record for tolling. These individuals would be required to defend themselves against allegations concerning events that occurred long ago brought by a plaintiff who has amply demonstrated his ability to file a lawsuit in a timely manner in other instances where he has felt aggrieved.

I conclude that the plaintiff has failed to raise a triable issue of fact on his claim that he was "unable to protect [his] legal rights" for the period commencing from November 18, 1998, the date of his first Court of Claims Complaint. On the issue of tolling, the plaintiff bore the burden of proof and, in response to defendant's motion, he failed to come forward with evidence sufficient to require a trial on this issue. Holy See (State of Vatican City), 17 A.D.3d at 794; Assad, 238 A.D.2d at 457. However, there remains the question of which incidents occurred more than three years prior to the commencement of this action, i.e. prior to December 10, 1998.

Plaintiff has stated that in the "first few months" after his May 18, 1997 assignment to Mid-Hudson, defendant Gonzales predicted that violence would be "coming [his] way." (Vallen Dep. at 216) This is Incident No. 1 in the Appendix. According to the AC, during his first months at Mid-Hudson, defendant SHTA Carrol predicted that the plaintiff would have some accidents, defendant SHTA Malfatone was aware that patient John Doe No. 1 had violent tendencies, and defendant SHTA Gonzales failed to intervene during an assault that John Doe No. 1 made against the plaintiff. (AC at 3, 5, 8; Vallen Tr. at 216, 219-20) Additionally, on November 8, 1998, a patient identified in the AC as "Reshawn" physically attacked the plaintiff in front of defendant Gantz, who allegedly failed to intervene. (Complaint at 17) This is Incident No. 9 in the Appendix. One to two weeks later, defendant SHTA Gantz allegedly threatened and punched the plaintiff. (Vallen Dep. Tr. at 56-59) This is Incident No. 10 in the Appendix. Sometime between the Reshawn incident and the Gantz incident, Malfatone instructed the plaintiff to stop drinking from a water fountain, and knocked him to the ground. (Vallen Dep. Tr. at 230) This is Incident No. 13 in the Appendix.

*6 The plaintiff does not dispute that these incidents all occurred between May 18, 1997 and late November 1998. The three-year statute of limitations for these incidents accrued, and plaintiff's claims were thus time-barred, prior to the commencement of this action on December 10, 2001.FN4 The defendants' summary judgment motion is granted as to Incident Nos. 1, 9, 10 and 13 set forth in the Appendix, and this portion of the plaintiff's action is dismissed. Though claims based upon these occurrences are barred by the statute of limitations, I will consider the underlying facts to the extent they are relevant to plaintiff's opposition to the other prongs of defendants' motion. See Jute v. Hamilton Sanstrand Corp., Docket No. 04-3927 (2d Cir. August 23, 2005) (considering such facts in the context of Title VII).

FN4. Assuming that the earliest of his claims accrued in May 1997 and was tolled under CPLR 208 from May 1997 to November 18, 1998, plaintiff had three years from November 18, 1998, i.e. until November 18, 2001 to assert the claims. He did not assert the claims prior to that date.

2. Lack of Showing of a Defendant's Personal Involvement

The defendants, each of whom is individually accused of having deprived plaintiff of constitutionally-protected rights, argue that certain of the plaintiff's claims should be dismissed because there is no evidence of personal involvement in the events giving rise to the asserted claims. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)).

There are five ways in which a plaintiff may show the personal involvement of a defendant in a constitutional deprivation: (1) the defendant directly participated in the alleged constitutional violation, (2) the defendant, having been informed of a violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which constitutional violations occurred, or allowed the continuation of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed wrongful acts, or (5) the defendant displayed deliberate indifference to the inmates' rights by failing to act on information that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Liability may not be anchored in a theory of respondeat superior. Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992). "The bare fact that [a defendant] occupies a high position in the [institutional] hierarchy is insufficient to sustain [a] claim." Colon, 58 F.3d at 874.

The defendants identify six separate incidents for which they claim that the plaintiff can set forth no facts that indicate personal involvement on the part of the various defendants. The plaintiff alleges that a Mid-Hudson patient, C.J., stabbed him with a pen near his eye while SHTA Nelson and John Doe defendants Nos. 2 and 3 were supposed to be supervising. (AC at 11-12) This is Incident No. 4 in the Appendix. SHTA Nelson was never served and is not a party to this action, and the plaintiff has been unable to ...


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