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Hill v. Lapolt

United States District Court, N.D. New York

March 10, 2014

MICHAEL HILL, Plaintiff,
v.
KAREN LAPOLT, et al., Defendants.

MICHAEL HILL, Plaintiff pro se

CHRISTOPHER W. HALL, Asst. Attorney General for Defendants.

REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c). Presently before the court are plaintiff's motion and defendants' cross-motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. Nos. 61 and 64). Plaintiff has filed a reply. (Dkt. No. 67). For the following reasons, this court agrees with the defendants and will recommend denying plaintiff's summary judgment motion and granting defendants' motion.

I. Facts

Plaintiff brings this pro se civil rights complaint under § 1983 based on events arising out of his confinement at Great Meadow Correctional Facility ("Great Meadow C.F."). In April 2011, plaintiff communicated with defendant Lapolt, Deputy Superintendent of Programs, regarding the restoration of good time. (Dkt. No. 61-8 at 37, Dkt. No. 1-1 at 7). Plaintiff complained that he was not being placed in the programs that he needed to complete to have his good time restored. Plaintiff received a number of responses stating that he would not be placed in those particular programs until six to eight months before his earliest release date, and additionally that he could not be placed in these programs while on keeplock. Plaintiff filed grievances regarding these program issues in June and July of 2011. (Dkt. No. 1-1 at 19, 22).

A few months later, in September, plaintiff received a package of 50 cigars with an invoice dated September 13, 2011 that indicated a balance due of $5.00. (Dkt. No. 1-1 at 56). On September 14, 2011, plaintiff was told that he needed to return the package of cigars to the company and completed a disbursement form for $3.50 for the return shipping. (Dkt. No. 61-6 at 54). The amount was changed by defendant Weatherby[1] to $5.95-the amount needed to return the package. ( See Dkt. No. 61-6 at 61). After plaintiff filed a grievance regarding this issue, on appeal the Central Office Review Committee ("CORC") found that the disbursement form should have been returned to plaintiff to change, noted that appropriate corrective action had been taken, and that plaintiff was reimbursed the $2.45 difference. (Dkt. No. 61-6 at 55). Plaintiff had an issue with a second package of cigars, which arrived indicating a $2.00 balance. Plaintiff did not complete the required form regarding disposal of the package because he believed that the company made a mistake by stating that he owed $2.00. Accordingly, the package was destroyed in accordance with Directive 4911. ( See Dkt. No. 61-6 at 37).

On September 20, 2011, plaintiff received a misbehavior report from a facility correctional teacher, defendant Spada. Defendant Spada found a note on one of plaintiff's assignments stating "check my folder, note there for you."[2] (Dkt. No. 61-6 at 79). As a result, defendant Spada filed a misbehavior report, charging plaintiff with harassment, stalking, and a correspondence violation. At the resulting hearing, over which defendant Lapolt presided, plaintiff was found guilty of harassment and stalking, but defendant Lapolt dismissed the correspondence violation.

During this same time period, plaintiff was having chest pains, and was seen on sick call a number of times. An EKG and a stress test were performed, he was diagnosed with gastrointestinal disease, and he was prescribed medication. He was seen by defendant Silverberg, the doctor at the facility at the end of September 2011 and in early February 2012.

Finally, plaintiff claims that he should have been receiving interest on funds in his inmate account, including "gate money." ( See Dkt. No. 61-6 at 2). In response to plaintiff's questions, defendant Forbes, institutional steward, explained that interest is earned on all of an inmate's money, including "gate money, " and that interest earned is provided to inmates who qualify for interest, by having an average balance of $100 or more for a given quarter. (Dkt. No. 61-6 at 3, 6).

Liberally construed, plaintiff alleges that his constitutional rights under the First, Eighth, and Fourteenth Amendments were violated because: 1) he was denied adequate medical care; 2) he was denied due process at his disciplinary hearing; 3) defendants interfered with his mail; 4) he was denied access to the courts; 5) defendants retaliated against him for filing grievances; 6) defendants conspired to violate his constitutional rights; 7) interest he should have earned was not credited to him.[3]

II. Summary Judgment

Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).

The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin v. Goord, 467 F.3d at 272.

Where, as here, cross motions for summary judgment are filed, "the standard is the same as that for individual motions for summary judgment." Natural Res. Def. Council v. Evans, 254 F.Supp.2d 434, 438 (S.D.N.Y. 2003). "The court must consider each motion independently of the other and, when evaluating each, the court must consider the facts in the light most favorable to the non-moving party." Id. (citation omitted). Moreover, "[t]he district court considering a summary judgment motion... must... be mindful of the underlying standards and burdens of proof...'" U.S. S.E.C. v. Meltzer, 440 F.Supp.2d 179, 187 (E.D.N.Y. 2006) (citations omitted). Accordingly, with respect to plaintiff's motion, he bears a much greater initial burden; he "must show that the evidence supporting [his] claims is so compelling that no reasonable jury could return a verdict for the defendant." Id . Accord, McCarthy v. Wachovia Bank, N.A., 759 F.Supp.2d 265, 273 (E.D.N.Y. 2011).

III. Denial of Medical Care

A. Legal Standard

In order to state an Eighth Amendment claim based on constitutionally inadequate medical treatment, the plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are two elements to the deliberate indifference standard. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). The first element is objective and measures the severity of the deprivation, while the second element is subjective and ensures that the defendant acted with a sufficiently culpable state of mind. Id. at 184 (citing, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).

The objective prong of the standard is satisfied "when (a) the prisoner was actually deprived of adequate medical care, ' meaning prison officials acted unreasonably in response to an inmate health risk under the circumstances, and (b) the inadequacy in medical care is sufficiently serious.'" Bellotto v. County of Orange, 248 F.App'x 232, 236 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006)). If the "unreasonable care" consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is "sufficiently serious." Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). When a prisoner alleges "a temporary delay or interruption in the provision of otherwise adequate medical treatment, " the court must focus on the seriousness of the particular risk of harm that resulted from the challenged delay or interruption, rather than the prisoner's underlying medical condition alone." Id. at 185. The standard for determining when a deprivation or delay in a prisoner's medical need is sufficiently serious contemplates a condition of urgency that may result in degeneration of the patient's condition or extreme pain. Bellotto, 248 F.App'x at 236 (citing, inter alia, Chance v. Armstrong 143 F.3d at 702).

The subjective prong of the deliberate indifference test is satisfied when an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). A plaintiff is not required to show that a defendant acted or failed to act "for the very purpose of causing harm or with knowledge that harm will result, " but must show that the official was aware of facts from which one could infer that "a substantial risk of serious harm" exists, and that the official drew that inference. Id. at 835, 837. The defendant must be subjectively aware that his or her conduct creates the risk; however, the defendant may introduce proof that he or she knew the underlying facts, but believed that the risk to which the facts gave rise was "insubstantial or non-existent." Farmer v. Brennan, 511 U.S. at 844. Thus, the court stated in Salahuddin that the defendant's belief that his conduct posed no risk of serious harm "need not be sound so long as it is sincere, " and "even if objectively unreasonable, a defendant's mental state may be nonculpable." Salahuddin v. Goord, 467 F.3d at 281.

Even negligence in diagnosing or treating an inmate's medical condition does not constitute deliberate indifference. Farmer v. Brennan, 511 U.S. at 835. Therefore, any claims of medical malpractice, or disagreements with treatment are not actionable under section 1983. Ross v. Kelly, 784 F.Supp. 35, 44-45 (W.D.N.Y. 1992), aff'd 970 F.2d 896 (2d Cir. 1992) (table).

B. Application

Plaintiff accuses defendants Silverberg, Lindstrand, and Racette of deliberate indifference to plaintiff's serious medical needs. (Dkt. No. 64-3 ("Hill Dep.") at 112).[4] That claim is based upon the delay in providing him treatment. Plaintiff has attached to his complaint and to his summary judgment motion, a variety of exhibits that document plaintiff's medical history during the relevant time period. Plaintiff's medical records confirm that on July 16, 2011, plaintiff was seen on emergency sick call at 12:35 a.m. because he thought he had a stroke. (Dkt. No. 1-1 at 30). It appears that plaintiff was scheduled to be seen by Dr. Silverberg on September 14, 2011. (Dkt. No. 1-1 at 31). According to plaintiff, he did not receive callouts, and then Dr. Silverberg refused to see him after he waited two hours. Plaintiff claims that Dr. Silverberg falsified the records to indicate that plaintiff refused to be seen.

The following day, plaintiff was examined by a nurse, had an EKG, and was scheduled to see the doctor. (Dkt. No. 1-1 at 32). Plaintiff saw Dr. Silverberg on September 30, 2011 and was prescribed medication. (Dkt. No. 1-1 at 32). On October 14, 2011, a stress test was performed. (Dkt. No. 1-1 at 33). Plaintiff was again seen on sick call on November 30th, December 4th, 5th, 6th, 8th, 20th, and 23rd 2011. (Dkt. No. 61-6 at 41, 42, 43). On December 8th, plaintiff was prescribed prilosec for acid reflux. (Dkt. No. 61-6 at 42). Although he was scheduled to see Dr. Silverberg on January 10, 2012, the doctor had to reschedule the appointment, and plaintiff was seen on February 3, 2012.[5] Plaintiff was diagnosed with gastrointestinal distress and prescribed Prilosec. (Dkt. No. 61-6 at 18).

Plaintiff asserts that his medical needs were "serious" under the objective prong of this test, and defendants assume for purposes of their motion that his medical needs were sufficiently serious. The court will therefore assume, without deciding, that the alleged delay in providing treatment to plaintiff could have had sufficiently serious medical consequences to satisfy the objective prong of the Eighth Amendment standards for medical care.[6] The court finds, however, that, based upon the conclusive evidence regarding the course of plaintiff's medical treatment, he cannot establish that the defendants acted with deliberate indifference to his serious medical needs.

These records reflect that the defendants did not ignore plaintiff's complaints, but provided a consistent course of treatment. The medical staff examined him, and an EKG and a stress test were both performed. Plaintiff's main complaint seems to be that Dr. Silverberg would not see him.[7] (Hill Dep. at 119). Dr. Silverberg was not, however, deliberately indifferent to plaintiff's medical needs. Plaintiff acknowledges in his deposition that when he accused Dr. Silverberg of stating that he would not see plaintiff, Dr. Silverberg denied making that comment and responded that he was not sure why the guards would say that, claiming "they don't like me and they don't like you obviously." (Hill Dep. at 123). Plaintiff further admits that the hospital thought he was in a different cell location than he was. (Hill Dep. at 130-31). It appears that it was not Dr. Silverberg who refused to provide callouts for plaintiff or refused to treat him.[8] (Hill Dep. at 131 (noting that it was the block officers getting in the way of his medical treatment)).[9]

Moreover, even if the delay amounted to negligence or malpractice, it would not constitute deliberate indifference. See, e.g., Estelle v. Gamble, 429 U.S. at 100-01, 106-07 (inmate who alleged doctors did not credit his repeated assertions that severe back pain should preclude him from manual labor did not state a claim for deliberate indifference where the medical staff repeatedly saw and treated him, even if their lack of diagnosis and inadequate treatment constituted malpractice). In order to establish "deliberate indifference, " plaintiff must demonstrate more than a "negligent" failure to provide adequate medical care. Salahuddin v. Goord, 467 F.3d at 280 (citing Farmer, 511 U.S. at 835-37). Instead, plaintiff must show that the defendant acted with the equivalent of subjective recklessness. Id. (citing Farmer, 511 U.S. at 839-40). Plaintiff has not shown that defendant Silverberg acted with deliberate indifference.

With respect to defendants Lindstrand and Racette, plaintiff contends that defendant Lindstrand turned his grievance into a complaint, and that he would have received treatment sooner if it had been filed as a grievance and that defendant Racette was responsible for referring the grievance to defendant Lindstrand. Defendants Lindstrand and Racette were not, however authorized to provide medical care to inmates. See, e.g., Hardy v. Diaz, 9:08-CV-1352 (GLS/ATB), 2010 WL 1633379, at *7-8 (N.D.N.Y. Mar. 30, 2010) ("Superintendent cannot be liable under Section 1983 for failure to supervise the prison medical staff, because he lacks the medical training and authority to do so.") (Rep't-Rec.), adopted, 2010 WL 1633390 (N.D.N.Y. Apr. 21, 2010) (collecting cases).

IV. Due Process - Disciplinary Hearing

A. Applicable Law

To begin a due process analysis, the court must determine whether plaintiff had a protected liberty interest in remaining free from the confinement that he challenges, and then determine whether the defendants deprived plaintiff of that liberty interest without due process. Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001); Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court held that although states may create liberty interests for inmates that are protected by due process, "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to ...


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