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Dilworth v. Goldberg

United States District Court, S.D. New York

August 1, 2014

ANTHONY G. DILWORTH et al., Plaintiffs,
RANDY A. GOLDBERG, M.D. et al., Defendants.


JESSE M. FURMAN, District Judge.

Anthony Dilworth ("Plaintiff" or "Dilworth") and his wife, Patricia Dilworth, bring this action against Westchester County, the Westchester County Health Care Corporation ("WCHCC"), and over fifty employees of the Westchester County Department of Correction. The allegations in the sprawling complaint relate primarily to Dilworth's detention at the Westchester County Jail (the "WCJ") from October 2008 to September 2009. The operative Complaint asserts sixteen causes of action, most of which are brought pursuant to Title 42, United States Code, Section 1983 against various combinations of Defendants. (Docket No. 340).[1] Defendants now move for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket No. 440). Also before the Court are Plaintiff's objections to certain discovery rulings made by Magistrate Judge Gabriel W. Gorenstein, to whom this case is referred for general pretrial purposes. (Docket Nos. 423, 53). For the reasons stated below, Defendants' motion for summary judgment is GRANTED except as to one claim against one Defendant, and Plaintiff's objections to Magistrate Judge Gorenstein's rulings are rejected.


Before recounting the facts of this case, the Court must first address a threshold issue regarding the materials upon which the Court may rely in resolving this motion for summary judgment. As a general matter, when ruling on a motion for summary judgment, the Court "may rely only on admissible evidence." Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (per curiam) (internal quotation marks omitted). It is axiomatic that such evidence does not include the allegations in an ordinary complaint; instead, parties must cite to "competent, admissible evidence, " which may include affidavits, deposition transcripts, or other documents. See Galasso v. Eisman, Zucker, Klein & Ruttenberg, 310 F.Supp.2d 569, 574 (S.D.N.Y. 2004); see also Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999); Esposito v. Quatinez, No. 09-CV-421 (DRH), 2014 WL 842766, at *2 (E.D.N.Y. Mar. 5, 2014). At the same time, a verified complaint "is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see also Fed.R.Civ.P. 56(c)(4) (providing that an affidavit "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated").

In this case, Plaintiff argues that the Court should accept the allegations in the operative Complaint as true for purposes of the present motion because Dilworth "verified the pending complaint." (Pl.'s Mem. Law. Opp'n Defs.' Mot. Summ. J. ("Pl.'s Opp'n Mem.") (Docket No. 462) 2). Where an affidavit is unsworn, however, it must comply with the requirements of Title 28, United States Code, Section 1746, see LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65 (2d Cir. 1999), which requires, among other things, the signature of the affiant, see 28 U.S.C. § 1746; see also, e.g., Silverman v. Miranda, 918 F.Supp.2d 200, 218 (S.D.N.Y. 2013) ("In substance, [Section 1746] mandates that a declaration executed within the United States certify that the contents is (1) true and correct; (2) offered under penalty of perjury; (3) dated; and (4) signed. " (emphasis added)). Here, the unsworn "verified complaint" is not signed, and the Court therefore cannot rely on it in resolving the instant motion. The complaint contains the character "/s" in lieu of the signatures of Plaintiff and Patricia Dilworth, but that character may substitute as a signature only for an attorney filing a document via the Electronic Case Filing system. See SDNY Electronic Case Filing Rules & Instructions § 13.14 ("The filing attorney may sign a document using a digital image of his or her signature or by placing an "s/" before his or her typed name."), available at /ecf/ECF%20Rules%20Revision%20031714.pdf; see also Silverman, 918 F.Supp.2d at 218 n.18 (declining to consider declarations submitted by non-attorneys in opposition to a motion for summary judgment where the declarations contained the character "/s/" in lieu of an actual signature). "Signatures for all other persons (clients, witnesses, etc.) must be scanned in order to capture the actual ink signature." SDNY Electronic Case Filing Rules & Instructions § 13.14. Accordingly, the Court will not accept as true the allegations in the operative Complaint.[2]


The following summary of the facts, therefore, is based only on admissible evidence - primarily, Plaintiff's deposition testimony and other documents submitted by Defendants - and not on the operative Complaint. Plaintiff was arrested in July 2008 "for narcotics, " and subsequently detained at the WCJ. (Statement Material Facts Pursuant Local Rule 56.1 Submitted Supp. Defs.' Mot. Summ. J. ("Defs.' Rule 56.1 Statement") (Docket No. 441), Ex. Q ("Dilworth Dep.") 20:8-16). He was released from the WCJ at some point between July and October 2008, but in early October 2008, he was arrested again, and brought back to the WCJ. (Dilworth Dep. 20:18-21:5; 22:22-25). Plaintiff was released from the WCJ at some point in September 2009. (Dilworth Dep. 32:19-23).

Plaintiff's allegations largely center around an accident that occurred on December 16, 2008. On that day, Plaintiff slipped and fell while walking down a hallway in the WCJ. ( Id. 48:2-24). He testified that, as a result of the fall, he suffered "severe pain" in his head, back, and legs. (Dilworth Dep. 49:9-11). Video captured by the WCJ's surveillance camera on the date in question shows that Plaintiff was proceeding down a corridor at approximately 1:06 p.m., and that he slipped and fell at 1:06:50. (Defs.' Rule 56.1 Statement, Ex. R). Plaintiff remained on the floor for approximately fifteen seconds, at which point an inmate who had been buffing the floor nearby approached Plaintiff and helped him to his feet. ( Id. ). Plaintiff then rested by leaning against a wall for approximately a minute and a half, during which time a group of fifteen inmates and two prison officials walked past him. ( Id. ). Plaintiff did not attempt to interact with either of the prison officials. ( Id. ). Instead, Plaintiff walked away from the scene, under his own power and without any visible signs of injury, at 1:09 p.m. ( Id. ).

The day of the fall, Plaintiff was seen twice by medical personnel at the WCJ medical facility, where he was given an ice compress, analgesic balm, and Motrin. (Defs.' Rule 56.1 Statement ¶ 72; id., Ex. T, at HB000015; 177, 179; Ex. S, at HB002095; Anthony Dilworth's Response to Defs.' Rule 56.1 Statement & Counterstatement ("Pl.'s Rule 56.1 Statement") (Docket No. 460) ¶ 72).[3] The following day, he was also examined by Dr. Randy Goldberg, a physician at the WCJ. (Dilworth Dep. 97:18-99:5; 103:2-14). Plaintiff received an X-ray of his back on December 22, 2008, and an MRI approximately two months later. (Dilworth Dep. 104:19-107:19; 112:4-24; HB00000013; 206-210). From December 16, 2008, to the date of Plaintiff's release from the WCJ, Plaintiff was seen by WCJ medical personnel on approximately forty-seven occasions, including multiple examinations by Dr. Goldberg. (Defs.' Rule 56.1 Statement ¶¶ 71-78; Pl.'s Rule 56.1 Statement ¶¶ 71-78; see also generally Defs.' Rule 56.1 Statement, Exs. S, T).

Plaintiff also testified at his deposition about a number of incidents unrelated to his medical treatment that took place during his detention at WCJ. Specifically, he testified that he was prevented from going to church services (Dilworth Dep. 194:19-199:18), that his Bible and other personal effects were taken from him ( id. at 178:19-179:7; 226:7-22), that he was required to stand naked in his cell for periods of fifteen to twenty minutes at a time ( id. at 172:11-172:12), and that officers would sometimes press their elbows into his back ( id. at 174:4-7).

In addition, at some point after Plaintiff was released from the WCJ, he allegedly found an orange Westchester County Department of Correction uniform hanging from the doorknob on the front door of his home. ( Id., 113:9-24; 114:20-25; 117:3-5; Decl. Opp'n Defs.' Mot. Summ. J. ("Deem Decl.") (Docket No. 461) Exs. 8a, 8b). Plaintiff avers that racial slurs were written on the uniform in black marker, but, at his deposition, he was unable to identify who wrote the slurs or who left the uniform at his home. (Dilworth Dep. 114:9-19; 117:6-21). Plaintiff did testify that the person who left the uniform on his door had driven a red car, and that some months later, while Plaintiff was at a bar, he saw a Correctional Officer whom he recognized from the WCJ leave the bar and approach that same red car. ( Id. 124:3-12; 126:9-11; 127:2-11).


The procedural history of this case is lengthy and has largely been recounted by Magistrate Judge Gorenstein elsewhere ( see Dilworth v. Goldberg, No. 10-CV-2224 (JMF) (GWG), 2013 WL 5745989, at *1 (S.D.N.Y. Oct. 23, 2013) ( Dilworth II ) (Docket No. 379); Dilworth v. Goldberg, 914 F.Supp.2d 433, 438 (S.D.N.Y. 2012) ( Dilworth I ) (Docket No. 334)), so the Court will summarize it only briefly here. On May 22, 2009, Plaintiff filed a pro se complaint, under a separate docket number, alleging mistreatment at the WCJ. ( See Docket No. 2, 09-CV-4810). In September 2009, Plaintiff retained counsel, and voluntarily dismissed his pro se complaint under that docket number. (Docket No. 8, 09-CV-4810). On March 15, 2010, Plaintiff and Patricia Dilworth filed the instant action. (Docket No. 2). They amended their complaint for the first time on April 2, 2010, and, after Magistrate Judge Gorenstein granted them leave to file a second amended complaint, they did so on September 17, 2010, naming over fifty defendants. (Docket Nos. 133-134). Defendants filed five separate motions to dismiss (Docket Nos. 167, 267, 271, 173, 256), and, on September 30, 2011, the Honorable Richard J. Holwell - to whom this case was previously assigned - adopted the report and recommendation of Magistrate Judge Gorenstein, dismissing the claims against many Defendants, but allowing some claims against certain Defendants affiliated with Westchester County to proceed ( see Docket No. 296).

On January 24, 2012, Plaintiff and Patricia Dilworth moved to amend the Second Amended Complaint (Docket No. 317). Magistrate Judge Gorenstein granted the motion in part and denied it in part on September 13, 2012. Dilworth I, 914 F.Supp.2d 433. Plaintiff and Patricia Dilworth subsequently filed a Third Amended Complaint (the "TAC"). (Docket No. 340). Magistrate Judge Gorenstein held a pretrial conference the following month (Docket No. 337), setting a schedule for discovery (Docket No. 336), but staying all municipal-liability claims under Monell v. Department of Social Services, 436 U.S. 658 (1978) (Docket No. 339), agreeing with Defense counsel that "if [Plaintiff] can't prove... deliberate indifference to his medical needs... and if there's no underlying constitutional violation, there's no Monell. " (Docket No. 337, at 9:4-10). On April 4, 2013, Michael Deem, who until that point had represented both Plaintiff and Patricia Dilworth, withdrew as counsel for Patricia Dilworth, who has since proceeded in this matter pro se. (Docket No. 354). Subsequently, on August 2, 2013, Plaintiffs filed a fourth motion to amend the complaint, but Magistrate Judge Gorenstein denied that motion. Dilworth II, 2013 WL 5745989, at *4 (S.D.N.Y. Oct. 23, 2013). Accordingly, the operative complaint is the TAC. (Docket No. 340).

On December 20, 2013 - after fact discovery had closed - Plaintiff sought additional discovery, arguing that the need for the requested documents had not arisen until the close of the discovery period. (Docket No. 413). In an order dated December 26, 2013, Magistrate Judge Gorenstein denied Plaintiff's requests and also ordered Plaintiff to appear for two hours of additional examination by Defendants' psychiatric expert, pursuant to Rule 35 of the Federal Rules of Civil Procedure. (Docket No. 420). Four days later, Plaintiff objected to that ruling. (Docket No. 423). Thereafter, Defendants filed the instant motion for summary judgment, seeking dismissal of the TAC in its entirety. (Docket No. 440). Pursuant to this Court's Local Rule 56.2, Defendants served Patricia Dilworth with notice of the motion (Docket No. 443), but she failed to submit any opposition papers. Plaintiff, meanwhile, applied for and was granted an extension to oppose the motion (Docket Nos. 445-46), but as noted failed to submit opposition papers by the Court-extended deadline. Plaintiff finally submitted his opposition papers ten days late.[4] (Docket Nos. 461-62).

Notably, in addition to being late, Plaintiff's papers largely fail to address Defendants' arguments except in the vaguest and most conclusory terms.[5] In fact, Plaintiff's summary judgment papers are so inadequate and so unresponsive to the points that Defendants raise that the Court would be on firm ground in deeming all Plaintiff's claims abandoned and summarily dismissing the entire case. See Di Giovanna v. Beth Isr. Med. Ctr., 651 F.Supp.2d 193, 208 (S.D.N.Y. 2009). Additionally, Plaintiff's Rule 56.1 Counterstatement provides almost no specific citations to the record, in contravention of Local Rule 56.1. See S.D.N.Y. Local Civ. R. 56.1(d) ("Each statement by the... opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence...."). Those failings have essentially forced the Court to sift through the record and make Plaintiff's case for him. Finally, although not necessarily relevant to the instant motion for summary judgment, the Court has serious doubts about the credibility of Plaintiff's testimony, given that Plaintiff was unable to provide any details about many Defendants in this action ( see Defs.' Rule 56.1 Statement ¶¶ 42-63), not to mention the fact that the video of the slip and fall at the heart of the case clearly shows Plaintiff walking away from the scene under his own power, apparently unharmed. Notwithstanding these failings and reasons to be skeptical, however, the Court will consider the motion for summary judgment on its merits.


A. Legal Standards

Summary judgment is appropriate when the record demonstrates that there are no genuine disputes as to any material facts and that one party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "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). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, that demonstrate the absence of a genuine dispute regarding any material fact. See Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 322. In ruling on a motion for summary judgment, all evidence must be viewed in the light most favorable to the non-moving party, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. ...

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