United States District Court, W.D. New York
REPORT AND RECOMMENDATION
JEREMIAH J. McCARTHY, Magistrate Judge.
Before me is defendants' motion for summary judgment . This motion, being dispositive, has been referred to me by Hon. Richard J. Arcara for a Report and Recommendation . For the following reasons, I recommend that defendants' motion be granted in part and denied in part.
Plaintiff, an inmate, commenced this action pro se pursuant to 42 U.S.C. § 1983 against various correction officers employed by the New York State Department of Corrections and Community Supervision ("DOCCS"). Complaint . His claims arise from a March 30, 2009 accident that occurred at the Attica Correctional Facility.
The March 30, 2009 Accident
The Complaint  alleges that "[o]n or about March 30, 09 plaintiff was coming back from recreation handcuffed behind his back while going up the stairs... [and] tripped in shoes (several sizes to[o] big for him)... and fell down many steps on the stairs" (id., p. 7 of 46, ¶ 3). He alleges that defendants Brian Kohl and Paul Scolese, the Correction Officers escorting him, "were deliberately indifferent to [his] safety by not holding him by the arms while he was going up the stairs" and "failed to protect [him] from falling and should of been aware of the potential hazard and injuries that could occur if an inmate fell down the stairs handcuffed behind the back" (id., pp. 7-8 of 46, ¶ 4).
Discovery demonstrates that plaintiff arrived at Attica Correctional Facility in February 2009, and was housed on the second floor of the Special Housing Unit. Statement of Undisputed Facts [30-1], ¶¶ 9-10. Upon his arrival, his boots were taken and an admissions officer provided him with size 11 shoes for his size nine-and-a-half to 10 feet (id., ¶¶ 11-14). When plaintiff complained about the oversized shoes, he was directed to write to the "State Shop", which provides shoes for inmates (id., ¶¶ 15-16).
On March 30, 2009, plaintiff was escorted to recreation by defendants Scolese and Kohl (id., ¶ 36). When these officers returned to recreation to escort plaintiff back to his cell, defendant Scolese acknowledges that he "noticed that [plaintiff's] shoes were not on properly, and felt that this could cause him to fall and be injured. When I pointed this out, [plaintiff] told me that his shoes were to big". Scolese Declaration , ¶ 8. Notwithstanding his belief that plaintiff's shoes could cause him to fall and be injured, defendant Scolese states - "I did not feel that he could be seriously injured due to the fact that he was being escorted by myself and another officer" (id., ¶ 18). Unlike defendant Scolese, defendant Kohl states that when he escorted plaintiff on March 30, 2009, he "was not aware that his shoes did not fit properly". Kohl Declaration , ¶ 8. However, this is disputed by plaintiff, who testified that defendant Kohl was aware that his shoes did not fit properly and that he had previously stumbled in front of defendant Kohl while wearing the oversized shoes. Plaintiff's deposition transcript , pp. 27-28 of 73.
While being escorted back to his cell, plaintiff was handcuffed behind his back as required by DOCCS' and Attica's policies. Defendants' Statement of Undisputed Facts [30-1], ¶¶ 28-30, 48. Plaintiff alleges that when he was almost to the top of the stairs his shoe slipped off and he tripped causing him to fall on his right shoulder (id., ¶¶ 55, 57, 58).
Plaintiff testified that at the time of his fall defendants Scolese and Kohl were "rushing me, like oh, we gotta get back, we got to bring all these inmates back to the[ir] cells, so you... gotta hurry up. So I'm like, you know, ... [t]he sneakers are big on my feet. I can't move as fast as you want me to. So he kept saying you got to hurry up, hurry up". Plaintiff's deposition transcript , pp. 32-33 of 73. Plaintiff also testified, consistent with his Complaint (, pp. 7-8 of 46, ¶ 4), that neither officer was "even that close" to him and were not holding on to him as they ascended the stairs. Plaintiff's deposition transcript , pp. 33-34 of 73.
By contrast, defendant Scolese states that he was holding plaintiff's arm the entire time (Scolese Declaration , ¶ 9), which appears consistent with the reports plaintiff provided in his grievances following the incident. See Grievances dated April 3, 2009 , p. 71 of 73, Bates No. 00038 ("C.O. Scoles[e] wasn't firmly holding my arm so when I fell he wasn't able to stop me from hitting the steps"); May 15, 2009 , p. 13 of 175, Bates No. 00011 ("the escorting offices wasn't holding properly in case I fall which I did"); June 11, 2009 , p. 8 of 175, Bates No. 00006 ("I fell because of him not holding me properly"). Indeed, consistent with his reports following the incident, plaintiff's Affidavit submitted in opposition to defendants' motion for summary judgment alleges (contrary to the Complaint and his deposition testimony) that defendants Scolese and Kohl were holding him when he fell. See Plaintiff's Affidavit , ¶ 5 ("defendants... were suppose to hold my arms or cuffs to provide support and stability, but having taken this walk routinely thousands of time, they may have relaxed their protocol and relaxed the firmness of their grips").
Following the fall, defendant Scolese asked plaintiff if he was alright, and he responded affirmatively. Scolese Declaration , ¶ 10; Kohl Declaration , ¶¶ 10, 11. Defendant Scolese then informed the second floor reception officers that plaintiff's shoes were too big. Defendants' Statement of Undisputed Facts [30-1], ¶ 59. The officers attempted to locate the proper size shoes for plaintiff, but none were found (id., ¶ 60).
Plaintiff's Complaint  alleges that "[o]n or about April 3, 2009 [defendant Dean Acquard, a Sergeant, ] came to [his] cell harassing him and threatening him with bodily harm for writing grievances and letters to get a copy of the video tape where the fall happen[ed].... Plaintiff then wrote grievances on [defendant Acquard] for threatening him. Plaintiff started getting denied food and recreation because of his grievances and lived in fear of getting beat up. Plaintiff is on mental health's case load for psychiatric issues and this behavior by [defendant Acquard] hampered his ability to function and made him even more depressed and gave him bad anxiety" (id., p. 10 of 46, ¶¶ 9-10).
Although plaintiff concedes that the grievance defendant Acquard was reacting to was authored by him on April 3, 2009 (defendants' Statement of Undisputed Facts [30-1], ¶ 80; plaintiff's Rely , p. 1 of 5, ¶ 3), that grievance was not received by the Inmate Grievance Coordinator's Officer until April 7, 2009. Defendants' Statement of Undisputed Facts [30-1], ¶¶ 80, 81. Moreover, the April 3, 2009 grievance states - "On 4-3-09 right after lunch [defendant Acquard] came to my cell... and threaten me about not pursuing the incident on March 30, 2009 because he was the Sgt on duty when I fell and no medical attention was giv[en] to me". , p. 12 of 22, Bates No. 00039. This suggests that defendant Acquard could not have been threatening retaliation for the April 3, 2009 grievance, but rather that the grievance was written in response to the threat.
In any event, plaintiff conceded at his deposition that he was not deprived of food, but rather stopped eating because he did not trust the officers who provided him with the food (id., ¶¶ 82-83). In an apparent contradiction to his allegations of being denied recreation in retaliation for his complaints, his April 3, 2009 grievance states that his shoulder pain rendered him unable to participate in a number of activities. , p. 12 of 22, Bates No. 000039. He also testified that he stopped attending recreation because defendant Acquard threatened him. Defendants' Statement of Undisputed Facts [30-1], ¶ 84.
The Complaint  alleges that following his March 30, 2009 fall, plaintiff "put in numerous sick calls to be seen and treated complaining of pain for approximately 5 weeks until he was taken to a Dr. and adequately treated" (id., p. 8 of 46, ¶ 6). The record demonstrates that to obtain medical attention, an inmate puts in for sick call to be seen by a nurse. Defendants' Statement of Undisputed Facts [30-1], ¶ 87. On April 1, 2009, plaintiff first complained of pain from the March 30, 2009 fall. [41-7], Bates No. 000515. At that time, a nurse gave plaintiff Ibuprofen for the pain and scheduled him to be seen by a doctor. Defendants' Statement of Undisputed Facts [30-1], ¶ 99. He was then again seen at sick call on April 2 and 4, 2009 for shoulder and hip pain and was given Tylenol. Defendants' Statement of Undisputed Facts [30-1], ¶ 102; Laskowski Declaration , ¶¶ 11-12. He continued to be seen on April 5 and 6, 2009 for complaints of "excruciating" shoulder and hip pain and was given Tylenol for his pain. Laskowski Declaration , ¶ 13.
Plaintiff was first seen by defendant Steven Laskowski, M.D.,  for complaints of right shoulder and hip pain on April 8, 2009. [41-7 ], Bates No. 000513. At that time, defendant Laskowski examined him, ordered an x-ray and MRI, and provided him with Motrin. Defendants' Statement of Undisputed Facts [30-1], ¶¶ 104-08; Laskowski Declaration , ¶ 14; [41-7], Bates No. 000513. On April 19, 2009, DOCCS' Health Management Organization ("HMO") requested more information concerning defendant Laskowski's request for an MRI. Defendants' Statement of Undisputed Facts [30-1], ¶ 112. An MRI screening sheet was completed on April 21, 2009, which was part of the process necessary for obtaining authorization from the HMO. Laskowski Declaration , ¶ 21. It is undisputed that defendant Laskowski lacked the authority to have an MRI performed without authorization from DOCCS or its HMO. Defendants' Statement of Undisputed Facts [30-1], ¶ 113.
In the meantime, plaintiff continued to be seen at sick call on April 9, 11, 13, 15, 17, 20 and 24, 2009, and was provided with Tylenol or Ibuprofen for his complaints of pain (id., ¶ 111). On April 26, 2009, plaintiff requested to be seen by a doctor and was seen by Dr. Abbasey two days later (id., ¶¶ 115, 117). Dr. Abbasey recommended an x-ray of plaintiff's shoulder and physical therapy and prescribed him Naprosyn (id., ¶ 118). While awaiting his prescription of Naprosyn, plaintiff was seen at sick call on May 2 and 4, 2009, and was given Motrin and Tylenol for the pain (id., ¶ 120).
An x-ray of plaintiff's right shoulder was taken on May 5, 2009, which showed an "acromioclavicular separation" (id., ¶ 122). On May 6, 2009, plaintiff was seen at sick call complaining that his hip x-ray was not performed, but it was noted that no x-ray of his hip had been ordered. Laskowski Declaration , ¶ 28. On May 7, 2009, plaintiff complained that the Naprosyn was causing stomach pains and on May 8, 2009, he reported that he had stopped taking the Naprosyn and requested to be seen by a physician. Defendants' Statement of Undisputed Facts [30-1], ¶¶ 125-26; Laskowski Declaration , ¶¶ 29-30. On May 12, 2009, plaintiff was seen at sick call for complaints of shoulder and hip pain, and he was provided with Tylenol. Defendants' Statement of Undisputed Facts [30-1], ¶ 129.
Plaintiff was next seen by defendant Laskowski on May 14, 2009, and at that time his assessment was a right hip contusion and a probable rotator cuff tear of the right shoulder (id., ¶ 130). Defendant Laskowski's treatment plan was an x-ray of the right hip and shoulder and "to consider an MRI". Laskowski Declaration , ¶ 32. Plaintiff was also prescribed physical therapy for his shoulder, but after being evaluated the therapist decided to delay physical therapy due to the acromioclavicular separation. Defendants' Statement of Undisputed Facts [30-1], ¶¶ 131-32.
Plaintiff continued to seen at sick call on May 15, 17, 18 and 20, 2009, and was given Tylenol for pain (id., ¶ 133). A second x-ray was performed on May 22, 2009, which showed that plaintiff's hip was normal and, contrary to the May 5, 2009 x-ray, showed that the acromioclavicle of the right shoulder "appear[ed] normal", but the radiologist "suggest[ed] weight bearing films to further evaluate the right AC joint". Defendants' Statement of Undisputed Facts [30-1], ¶ 134; Laskowski Declaration , ¶ 38; [41-4], Bates No. 000355.
Plaintiff continued to be seen at sick call on May 24 and 26, 2009, and was given Tylenol when he complained that Motrin upset his stomach. Defendants' Statement of Undisputed Facts [30-1], ¶ 135. On May 27, 2009, plaintiff was seen by Physician's Assistant Debbie Graf for complaints of right shoulder pain. Laskowski Declaration , ¶ 40. PA Graf referred him for an orthopedic consult and prescribed Percogesic since plaintiff was having trouble with other pain medications. Defendants' Statement of Undisputed Facts [30-1], ¶ 136. On June 3, 2009, plaintiff was seen at sick call for complaints of numbness in his right arm (id., ¶ 137).
Plaintiff was seen by defendant Laskowski for the third time on June 8, 2009, but this call-out was terminated by defendant Laskowski after plaintiff became belligerent (id., ¶ 138). On June 9, 2009, plaintiff was seen at sick call for complaints of pain. Laskowski Declaration , ¶ 44. He was next seen on June 18, 2009 for complaints that the Percogesic was ineffective (id., ¶ 45). At that time, it was noted that the orthopedic consult requested by PA Graf had been denied by DOCCS, and that a physician call-out was scheduled for early July (id.). Plaintiff continued to be seen at sick call on June 20 and 21, 2009 for complaints of pain and was provided with Ibuprofen on June 21, 2009 (id., ¶¶ 46-47).
On June 26, 2009, plaintiff was examined by Dr. Abbasey, who discussed the results of the x-rays. Defendants' Statement of Undisputed Facts [30-1], ¶ 141. At that time, it was noted that plaintiff had no deficits in motion (id.). Plaintiff complained that the Percogesic was causing itching and Dr. Abbasey prescribed Ibuprofen or Tylenol every eight hours for pain (id.). However on June 29, 2009, plaintiff requested a refill of his Percogesic (id., ¶ 142).
On July 1, 2009, plaintiff was again evaluated for physical therapy, and the physical therapist noted "will try another trial of [treatment] per physician". [41-5], Bates No. 000396. On that day, he was also seen at sick call for complaints of shoulder pain and pursuant to Dr. Abbasey's June 26, 2009 treatment notes, PA Graf prescribed Motrin to plaintiff, but he returned the Motrin the next day, stating - "I can't take that". Laskowski Declaration , ¶ 52; [41-7] Bates No. 503. He returned to sick call on July 3, 2009, complaining that he could not take Motrin and was allergic to Percogesic, but this call was terminated when he became argumentative. Laskowski Declaration , ¶ 54. He ...