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Phelan v. Thomas

United States District Court, N.D. New York

February 8, 2017

KENNETH J. PHELAN, Plaintiff,
v.
R. THOMAS et al., Defendants.

          FOR THE PLAINTIFF: Tully, Rinckey Law Firm.

          FOR THE DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York Attorney General.

          OF COUNSEL: MICHAEL W. MACOMBER, ESQ., JOSHUA E. MCMAHON Assistant Attorney General.

          MEMORANDUM-DECISION AND ORDER

          GARY L. SHARPE, SENIOR DISTRICT JUDGE

         I. Introduction

         Plaintiff Kenneth J. Phelan commenced this action and another, which was subsequently consolidated, against numerous defendants. (Dkt. Nos. 1, 67; Dkt. No. 1, 9:10-cv-12.) Phelan thereafter filed a consolidated amended complaint, which serves as the operative pleading. (Am. Compl., Dkt. No. 88.) Pending is defendants' motion for summary judgment. (Dkt. No. 131.) For the reasons that follow, the motion is granted and the amended complaint is dismissed.

         II. Background

         A. Facts[1]

         General familiarity with the facts is presumed from the court's prior Memorandum-Decision and Order. (Dkt. No. 110 at 2-9.) As relevant here, Phelan, an inmate in the custody of the New York Department of Corrections and Community Supervision (DOCCS), was housed at Mt. McGregor Correctional Facility during the period of time pertinent to this case. (Defs.' Statement of Material Facts (SMF) ¶ 1, Dkt. No. 131, Attach. 1.) Defendants Richard Thomas, David Hirsch, Marina Scott, and Jonathan Michael were all employed as corrections officers at Mt. McGregor during the time in question.[2] (Id. ¶¶ 2-5.)

         1. April 2, 2009 Incidents

         While the parties disagree as to exactly why or how, Phelan was found by Scott in Building 10, which included the Grievance Office, on April 2, 2009. (Id. ¶¶ 34-37.) According to defendants, Scott observed Phelan in Building 10; he told her that “he wanted to go to the Grievance Office, which was closed at that time.” (Id. ¶ 36.) Defendants claim that Scott instructed Phelan to leave the building, which he eventually did. (Id.) Scott issued a misbehavior report charging Phelan with three rule violations. (Id. ¶ 38.) Presumably before issuing the misbehavior report, Scott spoke with Hirsch to ask if he had given Phelan permission to go to Building 10; Hirsch denied that he had done so then and at a later disciplinary hearing. (Id. ¶¶ 39, 41.) Scott also testified at the disciplinary hearing and “affirmed the accuracy of the misbehavior report” filed by Scott. (Id. ¶ 40.) Phelan later admitted his guilt to the charges contained in the misbehavior report issued by Scott. (Id. ¶ 42.)

         After his return to the building in which he was housed, Thomas and Hirsch performed a cell search of Phelan's living quarters while “Phelan remained outside.” (Id. ¶¶ 11, 14; Dkt. No. 141 at 33.) Phelan contends that his clothing and legal papers were thrown on the floor and “stomped on, ” (Dkt. No. 141 at 152), but he admits that none of “his property was destroyed or taken during the . . . search, ” (Defs.' SMF ¶ 17). Phelan also claims that he “was threatened during the search that any further attempt at filing a grievance would be met with further scrutiny and retaliatory treatment.” (Dkt. No. 141 at 152-53.) The search yielded “a sheet of paper with what appeared to be gang references, another sheet with derogatory references to CO Thomas, a handkerchief marked ‘IB 9, ' and a quantity of butter and sugar that should have been consumed in the mess hall.” (Defs.' SMF ¶ 19.) As a result of Phelan's possession of those items, Thomas charged him with rule violations in a misbehavior report to which Phelan ultimately pleaded guilty. (Id. ¶¶ 20, 27, 28.)

         2. April 14, 2009 Incident

         Phelan claims that, on April 14, 2009, “Michael struck him with ‘an open' hand[] ‘two or three times, '” that his head was “‘sore'” as a consequence, and that the incident aggravated his traumatic brain injury (TBI). (Id. ¶¶ 50, 52, 53.) Michael has no recollection of ever interacting with Pehlan at Mt. McGregor. (Id. ¶¶ 55, 58.) In any event, Phelan suffered no “bruising, edema, or physical injury as a result” of the alleged used of force by Michael, and no medical diagnosis supports Phelan's claims that his TBI was aggravated by Michael's open-handed strikes (Id. ¶¶ 51, 53.)

         3. Americans with Disabilities Act Claim

         Generically, Phelan alleges that certain defendants, including those discussed above and defendant Dr. Peter Millson, a Mental Health Director employed by DOCCS at a particular facility, prevented him from receiving mental health treatment. (Am. Compl. ¶¶ 115-22; Dkt. No. 131, Attach. 11 ¶ 1.) Phelan claims that defendants called him a “retard” when they denied him treatment, access to the law library, and prevented him from filing grievances. (Am. Compl. ¶ 118.) As the court has previously noted, ...


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