United States District Court, N.D. New York
BARTRAM YIHI DABNEY Pro se Plaintiff Marcy, NY,
HON. ERIC T. SCHNEIDERMAN, Attorney for Defendants, JAMES B. McGOWAN, ESQ., Assistant Attorney General, Attorney General of the State of New York Albany, NY
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
I. PROCEDURAL HISTORY
On December 30, 2010,  pro se Plaintiff Dabney, while incarcerated at Clinton Correctional Facility, filed a civil rights action, pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, alleging a number of constitu tional violations against the Defendants stemming from his confinement at Great Meadow Correctional Facility and Clinton Correctional Facility. See generally Dkt. Nos. 1 &1-1, Compl. On September 30, 2013, the Honorable Lawrence E. Kahn, Senior United States District Judge, issued an Order granting, in part, Defendants' Motion for Judg ment on the Pleadings and providing Plaintiff leave to file an amended complaint. Dkt. No. 60. However, Plaintiff did not file an amended complaint, thus, the following claims were dismissed in accordance with the September 30, 2013 Order: (1) Plaintiff's allegation that Defendant Nocera conducted an improper investigation; (2) Plaintiff's allegation that Defendant Foley provided him with inadequate winter clothing during recreation; and
(3) the claim that Dr. Lee acted with deliberate indifference by failing to x-ray Plaintiff's sore rib. The following claims remain in this action: 1) deliberate indifference claims against Sawyer, Waldron, Donohue, Battu, Berggren, and Nephew for inadequate mental health treatment; 2) deliberative indifference claim against Dr. Lee forfailing to adequately treat Plaintiff'sHepatitis C; 3) deliberate indifference claim against Dr. Farooki for inadequate dental care; 4) deliberate indifference claim against Nurse Dumont for delaying urgent dental care; 5) § 1985 conspiracy claim against Defendants Waldron and Battu; 6) § 1986 failure to protect claim against all of the Defendants; and 7) retaliation claims against Defendants Battu, Donohue, Berggren, Waldron, Sawyer, and Nephew.
Presently, Plaintiff has withdrawn his racial discrimination claim as well as his conspiracy claim against "all" of the Defendants, except for Battu and Waldron. Dkt. No. 92, Pl.'s Resp. in Opp'n, at p. 5. In addition, on April 17, 2014, Defendants Savage and Besaw were terminated from this action pursuant to a Stipulation and Order of Discontinuance Pursuant to Rule 41(A). Dkt. No. 85.
On July 10, 2014, the Defendants moved for summary judgment. Dkt. No. 89. On July 25, 2014, Plaintiff filed a Response in Opposition thereto. Dkt. No. 92. On July 31, 2014, Defendants filed a Reply. Dkt. No. 93. On August 11, 2014, Plaintiff filed a Sur-reply. Dkt. No. 94.
A. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, " that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. The following facts are undisputed.
B. Material Facts
Plaintiff claims that on May 21, 2010, he was assaulted at Great Meadow by eighteen New York State Department of Corrections and Community Supervision ("DOCCS") employees. Compl. at ¶¶ 30-31. Plaintiff submitted a letter to DOCCS's Inspector General's Office complaining about the alleged assault. Dkt. No. 89-11, Jonathan Nocera Decl., dated April 15, 2014, at ¶¶ 1 & 3. The I nspector General's Office assigned Senior Investigator Nocera to investigate Plaintiff's complaint. Id. at ¶ 1. In connection with the investigation, Nocera learned through interviews with staff that, during a pat frisk, a weapon was found on Plaintiff. Id. at ¶ 7. According to the staff witnesses, Plaintiff then struck one of the officers in the head with his elbow. Id. Staff admitted struggling with Plaintiff to place him in restraints, but they all denied kicking and assaulting him. Id. at ¶¶ 8-9. Plaintiff was found guilty of several infractions relating to this incident. Id. at ¶ 11. Plaintiff was sentenced to twelve months in the Special Housing Unit ("SHU") with a corresponding loss of privileges and a recommendation to reduce his good time credit. Id. On July 1, 2010, Plaintiff was transferred to Clinton and housed in Clinton's SHU for the same infraction. Dkt. No. 89-13, JoAnne Waldron Decl., dated July 1, 2014, at ¶ 5; see generally Compl. ¶¶ 41-42. On September 9, 2010, Plaintiff commenced a federal civil rights action in which he refers to the alleged May 21, 2010 assault. See Complaint, Dabney v. Fisher, 9:10-CV-1109 (GTS/TWD) (N.D.N.Y.).
1. Inmate Grievances
Between the years 2010 through 2012, Plaintiff filed several grievances including Grievance No. CL-60783-11. See generally Dkt. No. 89-14, Deborah Jarvis Certified Records, dated Apr. 22, 2014. On February 14, 2011, Plaintiff filed Grievance No. CL-60783-11 regarding Dr. Lee in order to "correct his deliberate indifference, " and requested that he be provided with new medical boots, adequate treatment for his Hepatitis C, a renewed prescription for Ultram, a hand brace, and back brace. Pl.'s Resp. in Opp'n, Ex. B(4)(1), Inmate Grievance Compl., dated Feb. 14, 2011. On February 22, 2011, Plaintiff appealed the Inmate Grievance Resolution Committee's ("IGRC") Response. Pl.'s Resp. in Opp'n, Ex. A(5)-A(6), IGRC Resp., dated Feb. 22, 2011. On March 9, 2011, the Superintendent issued its determination concerning Grievance No. 60783-11. Pl.'s Resp. in Opp'n, Ex. B(4)(2), Superintendent's Determination, dated Mar. 9, 2011. The determination, in part, explained that the "Ultram medication was discontinued by Dr. Lee as the grievant had been caught hoarding the medication" and "there was no recommendation made for a back brace [or] hand brace [.]" Id. The determination also stated that the Plaintiff had been approved for medical boots, and that he would be scheduled for an evaluation to determine a course of treatment for his Hepatitis C. Id. Plaintiff did not appeal this determination. See Dkt. No. 89-15, Jeffrey Hale Decl., dated June 26, 2010, at ¶ 10 & Ex. A.
2. Deliberate Indifference
a. Dr. Battu
Defendant Kalyana R. Battu is employed by the Office of Mental Health ("OMH") as a Psychiatrist at Great Meadow, and provided mental health care to Plaintiff while he was housed at Great Meadow. Dkt. No. 89-3, Kalyana R. Battu, M.D., Decl., dated June 13, 2014, at ¶¶ 1 & 3. On January 16, 2007, Plaintiff was transferred to Great Meadows with a level one mental health designation. Dkt. No. 90-2, James B. McGowan Decl., dated July 10, 2014, Ex. 2 at p. 1, CNYPC Chron. R. On or about March 8, 2010, Plaintiff's mental health service level designation was reassessed. Battu Decl. at ¶ 7. Based on the reassessment, his mental health level was changed to a two, and it was determined that he did not meet the criteria for the "serious mental illness, " or an "S" designation. Id. ; Dkt. No. 90-1, McGowan Ex. 1 at p. 2, Treatment Needs/Serv. Level Designation, dated Mar. 9, 2010. An "S" designation requires a diagnosis of a major/serious mental illness and psychiatric instability for a minimum of six months. Id. Plaintiff's psychiatric condition was "stable" during his confinement at Great Meadow. Pl.'s Resp. in Opp'n, Ex. C(3), Physician's Orders, dated May 27, 2010, at Part IV.
At the time the reassessment was conducted, Plaintiff's medical record stated that he suffered from depressive disorder, posttraumatic stress disorder ("PTSD"), polysubstance dependance, and antisocial personality; none of which are entitled to an "S" designation. McGowan Ex. 1 at pp. 6-7, Progress Notes, dated Jan. 29, 2010 & Feb. 28, 2010; Battu Decl. at ¶ 9; see supra note 7. His psychiatric condition was also listed as stable at the time of the reassessment. McGowan Ex. 1 at pp. 4 & 6-7, Progress Notes, dated Sept. 30, 2009, Jan. 29, 2010, & Feb. 28, 2010.
On June 4, 2010, Plaintiff did not attend his sick call appointment scheduled with Dr. Battu. McGowan Ex. 1 at p. 14, Progress Note, dated June 4, 2010. On that date, upon reviewing Plaintiff's medical record, Dr. Battu determined that Plaintiff did not suffer from depressive episodes or PTSD. Id. ; Battu Decl. at ¶ 11. As a result, PTSD and depression were removed from Plaintiff's Diagnosis Record. McGowan Ex. 1 at p. 1, Diagnosis R., dated June 4, 2010. In addition, Dr. Battu asked staff to submit paperwork to assist him with reassessing Plaintiff's eligibility for an "S" designation as Plaintiff had been asking for reconsideration of his detention in SHU. McGowan Ex. 1 at p. 14, Progress Note, dated June 4, 2010; see Battu Decl. at ¶¶ 13-14.
Defendant Virginia Donohue is employed by the Office of Mental Health as a Social Worker at Great Meadow. Dkt. No. 89-5, Virginia Donohue Decl., dated June 12, 2014, at ¶ 1. On June 28, 2010, Donohue filled out the Termination Transfer Progress Note ("Transfer Note") based on Plaintiff's medical records. Id. at ¶ 3 & 11. The Transfer Note, in part, indicated that Plaintiff required level two OMH services, and that his psychiatric condition was "stable per chart review." McGowan Ex. 1 at p. 26, Termination Transfer Progress Note [hereinafter "Transfer Note"]; Donohue Decl. at ¶ 12. The Transfer Note also recommended that Plaintiff continue receiving mental health services, and advised of the recent change to Plaintiff's service level designation and Great ...