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Cruz v. Gordon

United States District Court, N.D. New York

February 6, 2015

EDWIN CRUZ, Plaintiff,
v.
A. GORDON, et al., Defendants.

EDWIN CRUZ, Green Haven Correctional Facility, Stormville, New York, Plaintiff, pro se.

GREGORY J. RODRIGUEZ, AAG, OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL, The Capitol, Albany, New York, Attorney for Defendants.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Pro se plaintiff, Edwin Cruz, is an inmate currently in custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Plaintiff commenced this prisoner civil rights action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Eighth Amendment rights by acting with excessive force and deliberate indifference to his medical needs. See Dkt. No. 1. In an October 6, 2014 Report-Recommendation and Order, Magistrate Judge Therèse Wiley Dancks recommended that the Court grant Defendant Kimberly Lipka's motion for summary judgment. See Dkt. No. 73. On October 17, 2014, Plaintiff objected to Magistrate Judge Dancks' Report-Recommendation and Order. See Dkt. No. 76. Currently before the Court is Defendant Lipka's motion for summary judgment.

II. BACKGROUND

A. Plaintiff's Allegations

On January 19, 2011, while imprisoned at Great Meadow Correctional Facility, Plaintiff and another inmate had a "heated verbal exchange, " which quickly escalated into a physical fight. Dkt. No. 1 at ¶¶ 4, 9. Defendant correctional officers A. Gordon, J. Burch, D. Huse, D. Hood, and John Doe #1 responded to the altercation. Id. at ¶ 10. Plaintiff alleges that, upon arrival, Defendants immediately began assaulting the combatants "with kicks, punches, and batons." Id. Defendants then handcuffed both inmates around their wrists and ankles, and proceeded to beat them all the way to the facility hospital; once at the facility hospital, Defendants allegedly continued their assault on Plaintiff. Id. at ¶¶ 11-12.

After the incident occurred, Defendant Nurse Kimberly Lipka conducted a brief medical examination of Plaintiff. See Dkt. No. 54-1. Defendant Lipka noted slight swelling and bruising on Plaintiff's upper right forehead and left ear, cleaned Plaintiff's bloody nostrils, and then referred Plaintiff to a Physician Assistant ("P.A.") for further assessment of his injuries. Id. at ¶ 8. Defendant Lipka contends that, consistent with protocol, she did not provide Plaintiff with any pain medication pending P.A. Nesmith's evaluation in order to avoid any complications that may arise from giving such medication ( i.e. need of surgery, internal bleeding). See Dkt. No. 54-1 at ¶ 5. Plaintiff alleges, however, that his repeated complaints of head pain should have been addressed, and that some of his injuries were not documented or treated. See Dkt. No. 54-5 at 35; Dkt. No. 1 at ¶ 13. Plaintiff claims that Defendant Lipka did not document the cuts on his wrists and ankles due to the handcuffs, his swollen nose, or the bruises on his back and legs "due to batons." Id. at ¶ 14. P.A. Nesmith ordered x-rays for Plaintiff's spine and facial structure; the x-ray results were negative for fractures, but Plaintiff claims he suffers hearing loss from the incident. Dkt. No. 54-1 at ¶ 10; Dkt. No. 1 at ¶¶ 18-19. After Plaintiff was referred to P.A. Nesmith, Defendant Lipka did not render any further medical care to Plaintiff. Dkt. No. 54-1 at ¶ 19.

In a letter dated January 30, 2011, Plaintiff described what happened and expressed his fears of reporting the incident: "[t]he officers... assaulted [Plaintiff], by clubbing, punching and kicking [him] into unconsciousness... [T]he officers threatened to kill [him] if [he] reported the incident." See Dkt. No. 54-2 at 35. Plaintiff also stated that he felt unsafe at the facility, and that he feared for his life. Id. Despite his apprehensions, on February 10, 2011, Plaintiff filed a grievance against the correctional officers for the use of force incident that occurred on January 19, 2011. See Dkt. No. 54-2 at 22-24. Plaintiff's grievance was assigned grievance number GM 51, 347-11. Dkt. No 54-2 at ¶ 10. On March 18, 2011, Plaintiff's grievance was denied because there was "absolutely no evidence to support the allegations in this case." See Dkt. No. 54-2 at 25. Plaintiff appealed the decision because the officers "admit[ted]... [t]hey use[d] force [i]n the incident against [Plaintiff]." Id. at 31. On June 15, 2011, the Central Office Review Committee ("CORC") denied Plaintiff's appeal. Id. at 21. Plaintiff never filed a formal grievance against Defendant Lipka. Dkt. No. 54-2 at ¶ 11-12.

Plaintiff filed his complaint on January 9, 2013, naming A. Gordon, J. Burch, D. Huse, Hood, John Doe #1, and Nurse Lipka as defendants. See Dkt. No. 1. Defendant Lipka currently moves for summary judgment. See Dkt. No. 54. Plaintiff opposes the motion. See Dkt. No. 62; Dkt. No. 67.

B. Magistrate Judge Dancks' Report-Recommendation and Order

On October 6, 2014 Magistrate Judge Dancks issued a Report-Recommendation and Order in which she recommended granting Defendant Lipka's motion for summary judgment. See Dkt. No. 73. Defendant Lipka moved for summary judgement on (1) failure to exhaust administrative remedies, (2) failure to establish deliberate indifference, and (3) qualified immunity. See Dkt. No. 54-4. Only the first issue was addressed because it is dispositive. See Dkt. No. 73. Magistrate Judge Dancks agreed with Defendant Lipka that the claims against her must be dismissed because ...


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