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Paul v. Warden Bailey and Deputy Warden Mervin Batson (M.B.)

United States District Court, S.D. New York

May 7, 2014

JAMES PAUL, Plaintiff,


AMES C. FRANCIS, IV, Magistrate Judge.

James Paul, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against Warden Emmanuel Bailey and Deputy Warden Mervin Batson. The plaintiff claims that while he was detained at the George Motchan Detention Center ("GMDC") and the Otis Bantum Correctional Center ("OBCC"), the defendants failed to provide him with medically-required shoes despite the fact that his prison-issued footwear caused lacerations and open wounds and resulted in pain. Mr. Paul alleges that the defendants' behavior demonstrates deliberate indifference to his medical condition, constituting cruel and unusual punishment in violation of the Eighth Amendment. The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the defendants' motion be granted.


The facts are set forth in the Complaints, the defendant's Rule 56.1 Statement and accompanying record (Defendant's Statement of Material Facts Pursuant to Local Rule 56.1 ("Def. Rule 56.1 Statement")), and Mr. Paul's deposition (Examination Before Trial of James Paul dated Oct. 25, 2013 ("Paul Dep."), attached as Exh. E to Declaration of Paul Stuart Haberman in Support of Defendants' Motion for Summary Judgment dated Feb. 12, 2014 ("Haberman Decl.")).[1]

Mr. Paul was arrested on March 31, 2006, and was transferred to GMDC approximately one month later. (Def. Rule 56.1 Statement, ¶ 8). At that time, Mr. James wore a "personal pair of black sneakers which did not contain special insoles, arch support, or any medically provided inserts" but which were "supportive." (Def. Rule 56.1 Statement, ¶ 8; Paul Dep. at 47, 52). Mr. Paul testified that he had a history of flat feet requiring podiatrist visits and supportive footwear, and that although he has not consistently worn prescribed footwear, he has required "good shoes." (Def. Rule 56.1 Statement, ¶ 5; Paul Dep. at 29, 53).

On or about December 2, 2008, the plaintiff received footwear issued by the Department of Correction of the City of New York ("DOC"), which had instituted a policy prohibiting inmates from wearing their own personal footwear and requiring them to wear prison-issued shoes. (Second Amended Complaint ("2d Am. Compl."), ¶ IIC; Def. Rule 56.1 Statement, ¶ 10). On December 8, 2008, the plaintiff was evaluated by a physician assistant at the GMDC medical clinic and received treatment for cuts and lacerations to his feet; he also obtained a referral for a podiatry consultation. (2d Am. Compl., ¶ II(D); Def. Rule 56.1 Statement, ¶ 11). The next day, Mr. Paul saw another physician assistant who also documented "abrasions on his feet" and recommended "cleansing the wounds and applying wound dressings." (Def. Rule 56.1 Statement, ¶ 12). Wound care and dressings were subsequently provided by nurses on December 9, 13, and 14, and Mr. Paul "received a special pass so that he could present to sick call for daily wound care for his feet injuries." (Def. Rule 56.1 Statement, ¶ 13; Paul Dep. at 55). The nurses described the wounds as "superficial" and attributable to Mr. Paul's new prison-issued shoes. (Progress Note, attached as part of Exh. F. to Haberman Decl., at 96; 2d Am. Compl., ¶ II(D)). Mr. Paul alleges that his feet were "killing" him and that while he was being treated he woke up every morning to find blood and pus on his bedsheets from the wounds. (Paul Dep. at 54, 56-57).

On December 11, 2008, Mr. Paul filed a grievance with the Inmate Grievance Resolution Committee (the "IGRC"), detailing his complaints regarding the footwear policy. (Grievant's Statement Form dated Dec. 11, 2008, attached to Complaint ("Compl.")). Thereafter, on December 15, 2008, Mr. Paul attended a GMDC "house meeting, " where he relayed the nurses' diagnosis to Warden Bailey. (2d Am. Compl., ¶ II(D); Def. Rule 56.1 Statement, ¶¶ 9, 14). Mr. Paul alleges that Warden Bailey saw the diagnosis and appointment card, and then stated that "anyone with medical problems would be given their shoes or suitable ones." (2d Am. Compl., ¶ II(D); Def. Rule 56.1 Statement, ¶ 14; Paul Dep. at 45, 62). Mr. Paul does not recall any subsequent discussions with Warden Bailey regarding his injuries or request for new footwear, or any conversations with other GMDC medical staff about the conversation at the house meeting. (Def. Rule 56.1 Statement, ¶¶ 15-16; Paul Dep. at 77, 97).

On December 18, 2008, the plaintiff was transferred from GMDC to OBCC. (Undated letter of James Paul ("Paul Letter"), attached to Compl., at 1; Def. Rule 56.1 Statement, ¶ 16). Though Mr. Paul speculated during his deposition that he was transferred because he filed the footwear grievance (Paul Dep. at 79; Def. Rule 56.1 Statement, ¶ 16), there is no evidence indicating that this was the case or that Warden Bailey had any role, and it remains unclear why Mr. Paul was transferred. (Def. Rule 56.1 Statement, ¶ 16). Mr. Paul claims that the grievance he previously filed was not forwarded to the new facility. (Amended Complaint ("Am. Compl."), ¶ II(D); Paul Letter at 1). He alleges that he resubmitted that grievance to administrators at OBCC "on a later date." (Grievant's Statement Form dated Dec. 11, 2008, attached to Request for Medical/Mental Health Second Opinion dated Jan. 12, 2009 ("1/12/09 Grievance"), attached to Compl.).

On December 24, 2008, the plaintiff saw a podiatrist, Dr. Allan Goldberg, as recommended during his initial December 8, 2008 medical appointment; Dr. Goldberg documented Mr. Paul's foot wounds, diagnosed him with flat feet, prescribed "suitable footwear" and treatment of the wounds with dressings and antibiotic creams, and ordered Mr. Paul to come back in one week for a follow-up appointment. (Paul Letter at 1; Def. Rule 56.1 Statement, ¶ 17). Mr. Paul returned as instructed on December 31, 2008, and was seen by Dr. June Kasminoff, another podiatrist at OBCC; Dr. Kasminoff again documented "open, chronic superficial wounds on the dorsum of both feet" and dressed the wounds. (Def. Rule 56.1 Statement, ¶ 18). Dr. Kasminoff informed Mr. Paul that, pursuant to a policy that went into effect after his initial visit, he was now required to consult a dermatologist before receiving new footwear (Paul Letter at 2); Dr. Kasminoff prescribed daily dry sterile dressings, ordered a dermatology consult, recommended that Mr. Paul follow up with a podiatrist in one month, and "noted that the medical director should consider dispensing supportive shoes" (Def. Rule 56.1 Statement, ¶ 18).

On January 3, 2009, Mr. Paul submitted an interview request to DOC regarding his previous grievance filings, claiming that the doctors had prescribed "a treatment that [the plaintiff] did not get." (DOC Interview Request Form dated Jan. 3, 2009, attached to Compl.). He was informed on January 6, 2009, that he would have to submit requests for special footwear directly to medical staff during sick call rather than seek such footwear through the grievance process. (Accommodation Determination Acknowledgment for Inmates dated Jan. 5, 2009, attached to Compl.; Def. Rule 56.1 Statement, ¶ 19). Mr. Paul then submitted a request for a second opinion seeking "medical clearance for his sneakers." (1/12/09 Grievance).

On January 14, 2009, the plaintiff was examined by a dermatologist, Dr. James Taft, who observed that Mr. Paul's wounds were the result of "chronic friction, " prescribed an ointment for the abrasions, and recommended that he "wear normal shoes or sandals that do not cause friction to dorsal feet." (Consultation Request, attached to Compl.; Def. Rule 56.1 Statement, ¶ 20). On the following day, the plaintiff submitted another grievance to the IGRC, stating that although both the GMDC and OBCC facilities were aware of his medical problems, neither had provided him with suitable footwear as prescribed by the podiatrists and dermatologist. (Grievant's Statement Form dated Jan. 15, 2009, attached to Compl.; Def. Rule 56.1 Statement, ¶ 20 (noting that this form was not signed by Mr. Paul)). On January 21, 2009, Mr. Paul filed his fourth grievance, again asking that he be provided with medically-required shoes; the IGRC responded on January 28, 2009, informing Mr. Paul that he would be provided with the footwear recommended by his doctors. (Inmate Grievance Form dated Jan. 21, 2009, attached to Am. Compl.).

On January 28, 2009, Mr. Paul apparently did not appear at a scheduled follow-up appointment with the podiatrist. (Def. Rule 56.1 Statement, ¶ 21). That same day, Dr. Michael Latunji referred the dermatologist's recommendation to DOC and requested that the plaintiff be permitted to wear his own shoes in light of the injuries to his feet. (Def. Rule 56.1 Statement, ¶ 21). Also around that time, Mr. Paul was called to the clinic by Deputy Warden Batson so that photos could be taken of his medical condition. (2d Am. Compl., ¶ II(D); Def. Rule 56.1 Statement, ¶ 22). Deputy Warden Batson personally examined Mr. Paul's feet in order to provide him with a "medical modification" card authorizing different footwear. (2d Am. Compl., ¶ II(D); Def. Rule 56.1 Statement, ¶ 22; Paul Dep. at 88-92; Medical Modification Card, attached to Am. Compl.). Deputy Warden Batson also made a phone call to another officer seeking to obtain suitable shoes for the plaintiff; he was allegedly informed that OBCC "did not have the right size shoes for [the plaintiff]" and that Mr. Paul should "try to obtain them in the next building that he was housed in." (Def. Rule 56.1 Statement, ¶ 22). Deputy Warden Batson then instructed a Captain Givens to take care of Mr. Paul's medical needs and find him appropriate footwear. (2d Am. Compl., ¶ II(D); Def. Rule 56.1 Statement, ¶ 22). However, despite Deputy Warden Batson's order, Mr. Paul did not obtain suitable footwear that day. (Am. Compl., ¶¶ II(D), V; Def. Rule 56.1 Statement, ¶ 22). The plaintiff did not speak to Deputy Warden Batson again after this encounter. (Def. Rule 56.1 Statement, ¶ 23).

According to a prison form, on February 2, 2009, Mr. Paul did not attend his scheduled appointment with the podiatrist because he had already received other shoes (Def. Rule 56.1 Statement, ¶ 23; Patient Refusal of Treatment dated Feb. 2, 2009, attached as part of Exh. F to Haberman Decl., at 51); however, he disputes that he ever refused to see a doctor (Paul Dep. at 83-84), and filed a grievance on February 3, 2009 stating that he still had not received suitable footwear (Def. Rule 56.1 Statement, ¶ 23; Grievance Form dated Feb. 3, 2009, attached as part of Exh. D to Haberman Decl., at 16).

Mr. Paul was transferred to the Robert N. Davoren Complex ("RNDC") in preparation for his transfer into New York State custody, and on February 4, 2009, he saw medical personnel at RNDC to ask about the status of his footwear. (Def. Rule 56.1 Statement, ¶¶ 23-24). He filed one additional grievance while at RNDC on February 5, 2009, asking DOC to "honor the Doctor's order and give [him] [his] footwear." (Inmate Grievance Resolution Program - RNDC Statement Form dated Feb. 5, 2009, attached as part of Exh. D to Haberman Decl., at 17). On February 12, 2009, Mr. Paul was transferred to New York State custody and "subsequently received state-issued medical boots ...

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