United States District Court, W.D. New York
ORDER AND REPORT & RECOMMENDATION
HUGH B. SCOTT, Magistrate Judge.
Before the Court are: the defendants' motion for partial judgment on the pleadings (Docket No. 13); the plaintiff's cross-motion for summary judgment (Docket No. 20); and the plaintiff's motion to compel. (Docket No. 21).
The plaintiff commenced this action, asserting various claims against 33 defendants who are either employed at the Attica Correctional Facility ("Attica") or the administrative office of the New York Stated Department of Correctional Services ("DOCCS") including: C.O. Fix ("Fix"); C.O.Pritchard ("Pritchard"); C.O. George ("George"); C.O. Radimaker, Sr. ("Rademaker, Sr."); C.O. Radimaker, Jr. ("Radimaker, Jr."); C.O. Bosworth ("Bosworth"); C.O. John Doe #1, C.O. John Doe #2; C.O. John Doe #3; Sergeant Corcoran ("Corcoran"); Sergeant Taborski ("Taborski"); Superintendent J. Conway ("Conway"); Dep. Security Chapius ("Chapius"); I.G.P. Supervisor Struebel ("Struebel"); Correction Counselor Whiteford ("Whiteford"); P.A. Graf ("Graf"); P.A. John Does; P.A. Jane Does; R.N.Turton ("Turton"); R.N. John Does; R.N. Jane Does; M.D. John Does; M.D. Jane Does; Commissioner Brian Fischer ("Fischer"); Deputy Commissioner LeClaire ("LeClaire"); Counsel William Gonzalez ("Gonzalez"); Galyn Schenk ("Schenk"); I.G.R. Roy ("Roy"); CORC Director Bellamy ("Bellamy"); CORC Director Egan ("Egan"); and the NYSDOCCS.
The plaintiff claims that he is a qualified person with a disability who suffers from degenerative disc disease, peripheral arterial disease, and cardiac issues which have required triple by-bass surgery and stints inserted in his heart. In addition, Gagne asserts that he is a diabetic and that he suffers from sciatica and other back issues causing him to ambulate with a cane. (Docket No. 1 at page 5). The plaintiff asserts several wide-ranging claims, which District Court Judge Michael Telesca described as "unduly discursive" and "difficult to decipher." (Docket No. 4 at page 2). Several of the plaintiff's claims were dismissed by Judge Telesca upon initial review. The remaining claims appear to be as follows:
Count 1 - On August 6, 2008, Fix confiscated the plaintiff's cane while the plaintiff was assigned to reside in B-Block. Fix considered canes to be weapons. Gagne made several complaints to Corcoran about Fix confiscating his cane. Gagne asserts that after his cane was confiscated, he also wrote to Conway and Chapius. They failed to intercede. The plaintiff claims that he was forced to move to different cell blocks on August 30, 2008, April 24, 2009, May 1, 2009 and May 5, 2009. Gagne claims that each time he was forced to do so without his cane and that Corcoran made the plaintiff carry his "50 pound" property bags when moving to his new cells. Radimaker Sr. also refused to intervene. (Docket No. 1 ¶¶ 1-29).
Count 2 - Gagne claims that Chapius refused to allow the plaintiff to bring his cane into the mess hall. As a result, Gagne claims that he was "deprived of food for weeks at a time" and that he "lost weight, became ill, developed diabetes and heart trouble." Gagne claims that he wrote to Conway, but that Conway did not respond to his complaint until after Gagne had transferred out of Attica. (Docket No. 1 at ¶ 30-38).
Count 3 - This count is partially redundant to Gagne's first claim. The plaintiff claims that on April 24, 2009, Bosworth filed a false misbehavior report against him, and as a result, he was required to move back to B-Block. Gagne claims that he possessed "personal information" relating to five "abusive" corrections officers and that Bosworth informed these five officers that Gagne possessed the personal information. As a result, the plaintiff claims he was threatened. The plaintiff claims that he wrote to Chapius, Roy, Fischer, LeClaire, Gonzalaz and Schenk regarding this matter "to no avail." As a result of the behavior of Bosworth and Corcoran and John Doe. #1, the plaintiff claims he was removed from an art program which he needed for the parole board. He also claims that he was injured when he fell while moving between cells. (Docket No. 1 at ¶¶ 39-56).
Count 4 - Gagne claims that on May 8, 2009, he was pulled out of the line heading to the mess hall and placed against the wall. Pritchard told him that he better "stop complaining about threats and make your family stop calling." The plaintiff asserts that Pritchard hit him with a night stick; that he was thrown to the ground by Radimaker, Jr.; he was kicked in the stomach by John Doe #2 and John Doe #3; and George stepped on his leg. On May 13, 2009, Gagne claims that Taborski told him to "sign into protective custody" because of his problems with the correctional officers. The plaintiff alleges that he met with Whiteford and "Mr. Roach, " and that Whiteford threatened him and told him that the officers at Attica have a "free hand" and that he better sign into protective custody. (Docket No. 1 at ¶¶ 57-67).
Count 5 - The plaintiff asserts that from August 6, 2008 to September 22, 2008, he informed numerous R.N. John Does and R.N. Jane Does that his cane had been confiscated, and that no effort was made to re-issue the cane. On August 25, 2008, he claims he told P.A. Graf that his cane was confiscated and that he was in pain, but no treatment was issued. On September 4, 2008, he claims he met with John or Jane Doe R.N. who also failed to treat him for pain or re-issue his cane. On September 16, 2008 and November 10, 2008, Gagne alleges he met with John or Jane Doe R.N. and complained of injuries due to falling accidents, but that no treatment was provided. On September 22, 2008, Graf issued Gagne a cane, but did not examine the plaintiff or order any tests. Gagne claims that he complained about back pain to R.N. Turton on November 6, 2008, but that no treatment was provided. Due to the confiscation of his cane, the plaintiff claims that he was unable to ambulate to the mess hall; lost weight, became depressed, lost sleep and developed diabetes. (Docket No. 1 at ¶¶68-87).
Count 6 - In this count, the plaintiff asserts a claim of supervisory liability against Conway, Roy, Rischer, LeClaire, Gonzalez, Struebel, Egan and Bellamy. He claims that these administrators were aware of a pattern of retaliatory beatings and other assaults by the officers who assaulted him, but that they did nothing to intervene. (Docket No. 1 at ¶¶ 88-99).
This is not the first law suit filed by the plaintiff dealing with claims arising from the denial of his use of a cane while incarcerated in a DOCCS correctional facility. See, for example, Gagne v. Ekpe, Civ. No. 02CV82 in which the plaintiff complained that he was denied the use of his cane while incarcerated at the Southport Correctional Facility in August of 2001. In addition, the plaintiff filed an action in the New York State Court of Claims alleging many of the same claims asserted in the instant case. In the Court of Claims case filed on October 22, 2008 ["Claim No. 115986"], Gagne claimed that on August 6, 2008, his cane was confiscated (Docket No. 13-1, Exhibit C at ¶ 8); on August 30, 2008, September 6, 2008, and October 8, 2008, he was forced to move to a new cell block and forced to carry his "50 pound" bags of property to his new cell (Docket No. 13-1, Exhibit C at ¶ 10); that he slipped and fell while trying to participate in outdoor exercise without his cane (Docket No. 13-1, Exhibit C at ¶ 11); that he fell on September 15, 2008 (Docket No. 13-1, Exhibit C at ¶ 12); that he saw medical personnel on September 16, 2008 and September 22, 2008, and complained of injuries due to his falls, but no treatment or tests were ordered (Docket No. 13-1, Exhibit C at ¶ 13); and that during this period he was forced to go to mess hall without his cane, causing him to miss meals (Docket No. 13-1, Exhibit C at ¶ 15). On January 27, 2010, Gagne filed an amendment to Claim No. 115986, asserting that various employees of Attica and the Wende Correctional Facility delayed or otherwise interfered with his medical treatment causing him to fall and injure himself (Docket No. 13-1, Exhibit D at ¶¶ 2, 12). The plaintiff again asserted that his cane was confiscated on August 6, 2008 (Docket No. 13-1, Exhibit D at ¶8); that he was forced to move to a different cell block on August 30, 2008, September 6, 2008 and October 8, 2008 and carry "50 pound" property bags without the use of his cane (Docket No. 13-1, Exhibit D at ¶¶ 10, 14); that he fell because he attempted to participate in outdoor activities without his cane (Docket No. 13-1, Exhibit D at ¶11); that he was being denied use of his cane and therefore was being excluded from meals and participation in outdoor exercise (Docket No. 13-1, Exhibit D at ¶¶ 4, 15, 16); that his cane was taken away because it was considered a weapon (Docket No. 13-1, Exhibit D at ¶7); that on August 29, 2008, September 16, 2008 and September 22, 2008, he saw medical personnel complaining about repeated falls but no treatment or tests were performed (Docket No. 13-1, Exhibit D at ¶¶ 11, 13, 17).
On August 14, 2012, Gagne agreed to settle Claim No. 115986 for a payment of $3500.00. (Docket No. 13-1 at page 10). In conjunction with the settlement, Gagne executed a release in which he released and discharged the New York State Department of Corrections and Community Supervision, and the State of New York, its officers, agents and employees from all claims, demands and liability of every kind and nature, legal or equitable, occasioned ...