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Agosto v. Jilson

United States District Court, W.D. New York

March 26, 2015

JILSON, Registered Nurse, Defendant.

RAFAEL AGOSTO, Pro Se Upstate Correctional Facility Malone, New York.

ERIC T. SCHNEIDERMAN New York Attorney General Attorney for Defendant RYAN LANE BELKA Assistant Attorney General, of Counsel Buffalo, New York.


LESLIE G. FOSCHIO, Magistrate Judge.


This case was referred to the undersigned by Hon. Richard J. Arcara on August 14, 2014, for all pretrial matters, including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Plaintiff's motion to compel (Doc. No. 26), filed March 13, 2014, and Defendant's motion for summary judgment (Doc. No. 38), filed August 1, 2014.[1]


In this civil rights action, commenced pursuant to 42 U.S.C. ยง 1983 on April 3, 2012, Plaintiff Rafael Agosto ("Plaintiff" or "Agosto"), alleges that on April 8, 2009, while incarcerated at Southport Correctional Facility ("Southport" or "the correctional facility"), Defendant Jill Myers ("Defendant" or "Jilson"), a registered nurse formerly employed by New York State Department of Corrections and Community Supervision ("DOCCS"), at Southport, injected Plaintiff with an unknown substance to retaliate against Plaintiff for testifying at a prison discipline hearing ("the disciplinary hearing") on behalf of another inmate, one A. Nimmons ("Nimmons"), expressing concern about an inmate misbehavior report authored by Defendant. First Claim, Complaint at 5. Plaintiff also asserts the alleged injection was in retaliation for prior grievances Plaintiff filed against Southport's medical staff, including Defendant. Id. at 6. According to Plaintiff, the foreign substance with which Defendant injected him on April 8, 2009, caused Plaintiff to suffer headaches, dizziness, stomachaches, an irregular heartbeat, and a rash and burn marks on his face. Id. at 6. Although Defendant maintains she did not inject Plaintiff with a foreign substance on April 8, 2009, but, rather, gave Plaintiff a skin test for tuberculosis ("TB"), Plaintiff maintains that after no other TB test did he ever experience the symptoms he allegedly experienced after being injected by Defendant on April 8, 2009. Id.

On April 15, 2009, Plaintiff filed an inmate grievance concerning the April 8, 2009 injection ("Inmate Grievance"), on which a Superintendent's Hearing on the facts and circumstances was held, with the hearing decision rendered on May 1, 2009. Superintendent's Hearing Decision ("Hearing Decision"), Complaint at 16.[3] According to the Hearing Decision, Plaintiff's inmate grievance was "investigated by the [correctional] facility's Nurse Administrator who states: I have reviewed the medical folder and this patient [Plaintiff] had a TB test on 4/6/08 which means he was due on 4/6/09, not in May as he claims. The test was planted on 4/8/09 and documented as read by RN DeLauro on 4/11/09 as negative....'" Hearing Decision at 1. The inmate grievance was denied for lack of sufficient evidence substantiating any malfeasance by the DOCCS employees referenced in the grievance. Id. The Hearing Decision was upheld upon Plaintiff's appeal to the Inmate Grievance Program Central Officer Review Committee ("CORC) ("CORC Decision"), Complaint at 15. In upholding the Hearing Decision, CORC noted that because the nurse who read the April 8, 2009 TB test results failed to enter the results into Plaintiff's computer generated medical records, Plaintiff was given a second TB test on May 5, 2009, which was read on May 7, 2009. CORC Decision.

On April 3, 2012, Plaintiff commenced the instant action alleging Defendant, by injecting him on April 8, 2009 with an unknown foreign substance causing Plaintiff physical suffering, to retaliate against Plaintiff for testifying on behalf of Nimmons against whom Defendant had filed an inmate misbehavior report, violated Plaintiff's constitutional rights under the First and Eighth Amendments. Defendant's answer was filed July 15, 2013.

On March 13, 2014, Plaintiff filed a motion to compel discovery. (Doc. No. 26) ("Plaintiff's motion"). On April 1, 2014, Defendant filed the Declaration of Assistant Attorney General Benjamin K. Ahlstrom ("AAG Ahlstrom"), in Opposition to Plaintiff's Motion to Compel (Doc. No. 29) ("Defendant's Response"). In further support of his motion, Plaintiff filed on April 14, 2014, his Reply and Object [ sic ] Declaration in Opposition to Plaintiff Motion to Compel Issued by A.A.G. Benjamin K. Ahlstrom on April 1, 2014 (Doc. No. 31) ("Plaintiff's Reply).

On August 1, 2014, Defendant filed a motion seeking summary judgment (Doc. No. 38) ("Defendant's motion"), supported by the attached Memorandum of Law in Support of Defendant's Motion for Summary Judgment (Doc. No. 38-1) ("Defendant's Memorandum"), and Defendant's Statement of Undisputed Material Facts (Doc. No. 38-2) ("Defendant's Statement of Facts"), and the separately filed Declaration of Jill (Jilson) Myers in Support of Defendant's Motion for Summary Judgment (Doc. No. 39) (Defendant's Declaration"), attaching exhibits A through C (Doc Nos. 39-1 through 39-3) ("Defendant's Exh(s). __"), and the Declaration of AAG Ahlstrom in Support of Defendant's Motion for Summary Judgment (Doc. No. 40) ("AAG Ahlstrom Declaration"), attaching exhibits A and B (Docs. Nos. 40-1 and 40-2) (AAG Ahlstrom Exh(s). __"). In Opposition to summary judgment, Plaintiff filed on August 8, 2014 a Declaration (Doc. No. 46) ("Plaintiff's Response"). On September 23, 2014, Defendant filed the Reply Memorandum of Law in Further Support of Defendant's Motion for Summary Judgment (Doc. No. 49) ("Defendant's Reply"). Plaintiff filed a sur-reply on October 2, 2014 (Doc. No. 50) ("Plaintiff's Sur-Reply"). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's motion is DISMISSED as moot; Defendant's motion should be GRANTED and the Clerk of the Court should be directed to close the file. Alternatively, Defendant's motion should be DENIED insofar as Defendant asserts she is qualifiedly immune from liability on Plaintiff's claims.


1. Plaintiff's Motion ...

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