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Murray v. Nephew

United States District Court, N.D. New York

March 24, 2015

ROBERT L. MURRAY, Plaintiff,
v.
RC II NEPHEW, et al., Defendants.

ROBERT L. MURRAY, Plaintiff, pro se.

C. HARRIS DAGUE, AAG, for the Defendants.

ORDER and REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

This matter has been referred to me for Report and Recommendation by the Honorable Frederick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).

In what remains of this civil rights complaint, plaintiff alleges that defendant Gail Provost, a Rehabilitation Counselor II, improperly disclosed plaintiff's medical information in front of corrections officers in violation of his First Amendment rights. Plaintiff also alleges defendants Provost and Sara Nephew, also a Rehabilitation Counselor II, retaliated against plaintiff because he had filed prior law suits against them. Plaintiff seeks monetary as well as injunctive relief.[1]

Presently before the court is the defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 40). Also pending before the court is plaintiff's motion for appointment of counsel.[2] (Dkt. No. 39). Plaintiff has not responded to the summary judgment motion.[3] For the following reasons, this court agrees with defendants and will recommend dismissal of the complaint on the merits.

I. Relevant Facts

In the complaint, plaintiff alleges that he was taken to the Office of Mental Health ("OMH") at Clinton Correctional Facility ("Clinton"). The reason that plaintiff gives for being "taken" to OMH is quite different than defendants' explanation, but the factual difference is irrelevant to the court's decision.[4] When plaintiff arrived at OMH, he saw defendants Nephew and Provost. Defendant Provost is a Rehabilitation Counselor II at the OMH Satellite Unit of the Central New York Psychiatric Center ("CNYPC") at Clinton. (Provost Decl. ¶ 1). Defendant Provost states that on May 16, 2013, she received an "emergency referral" from DOCCS medical staff. (Provost Decl. ¶ 7) (Dkt. No. 40-4). Plaintiff had been refusing to take his prescription medication for approximately one week, and he had been observed sitting in the corner of his cell with his mattress overturned for a couple of days. (Id. & Ex. A). He was brought to OMH in restraints because he refused to leave his cell. (Id. ¶ 8).

Pursuant to OMH procedures, defendant Provost attempted to interview plaintiff when he arrived to determine why he had been refusing his medication and to evaluate his overall health. (Id. ¶ 9). Throughout the attempted interview, plaintiff refused to answer defendant Provost's questions, insisted there was nothing wrong with him, and became outwardly hostile toward her. (Id. ) When defendant Provost asked about the medications, plaintiff began shouting at her, even though she tried to explain that he needed to answer the question so that she could evaluate why he was brought to OMH on an emergency basis. (Id. ¶ 10). Defendant Provost told plaintiff that if he would not cooperate with her, she would have to admit him to OMH for an assessment. Despite this explanation, plaintiff continued to "escalate the situation by shouting and swearing" at her. (Id. )

Because of plaintiff's behavior, defendant Provost was unable to complete the assessment of his mental health condition, and she concluded, based on her experience as a rehabilitation counselor, that plaintiff "posed a risk of harm to himself and/or others." (Id. ¶ 11). Defendant Provost then admitted plaintiff to OMH and had him placed in an "OBS" (observation) cell so that his condition could stabilize, and OMH staff could attempt further assessment.[5] (Id. & Ex. B) (Dkt. Nos. 40-4, 41-1). Defendant Provost has attached a copy of the OBS Logbook dated May 16, 2013 as Ex. C to her declaration.

Defendant Provost states that although she remembers raising the issue of plaintiff's refusal to take his "prescription medication, " she does not remember specifying what type of medication it was.[6] (Id. ¶ 12). Defendant Provost states that, to the extent that any such communication may have occurred, it would only have been in the context of her attempt at clinically assessing plaintiff's condition, particularly due to the report of his repeated refusal to take his medication, which caused the emergency referral in the first instance. (Id. ) Defendant Provost states that she has never discussed or otherwise communicated any information regarding a specific condition from which plaintiff may suffer, nor the medication he takes, outside of a "clinical setting or in a gratuitous manner." (Id. ¶ 13). Any OMH or DOCCS staff that may have been present during any discussion of plaintiff's medication would have been present only for clinical or facility security purposes. (Id. )

Finally defendant Provost states that plaintiff's prior lawsuits against her and other OMH staff had "absolutely nothing" to do with his admission to OMH on May 16, 2013. Defendant Provost states that regardless of the lawsuits, she would have admitted plaintiff to the OBS cell in OMH based upon his hostile and unstable behavior after the emergency referral as noted in her progress notes of May 16th. (Id. ¶ 14). She states that she did not retaliate against plaintiff in any way. (Id. ¶ 15).

Defendant Nephew has also submitted a declaration in support of the summary judgment motion. (Nephew Decl.) (Dkt. No. 40-6). Defendant Nephew is also a Rehabilitation Counselor II in the OMH Satellite Unit at Clinton. (Nephew Decl. ¶ 1). Defendant Nephew was not plaintiff's "primary counselor." (Id. ¶ 5). Defendant Nephew states that, on May 16, 2013, when plaintiff was brought to OMH as an "emergency referral, " he would have been seen by his primary counselor, defendant Provost. (Id. ¶ 6). Defendant Nephew states that, based upon her "RCTP Observation Notes, " she did not personally examine "or interact" with plaintiff on May 16, 2013. (Id. ¶ 7). On May 20, 2013, defendant Nephew was assigned to conduct "rounds" and "visited" plaintiff. (Id. ¶ 8 & Ex. A) (Dkt. Nos. 40-6, 41-2).

Defendant Nephew's notes from May 20, 2013 state that plaintiff had remained "free from harm to self in RCTP." (Nephew Ex. A). He had been accepting meals, but was observed lying on the floor of his cell. When approached for assessment by the nursing staff, he uncovered his face and yelled at the nurse and at security personnel. (Id. ) Defendant Nephew noted that plaintiff did not respond or even make eye contact when she offered to interview him on May 20, 2013. He was lying on the ...


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