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Shepherd v. Fisher

United States District Court, S.D. New York

February 16, 2017

EON SHEPHERD, Plaintiff,
v.
COMMISSIONER BRIAN FISHER, et al, [1]Defendants.

          OPINION AND ORDER

          RONNIE ABRAMS, United States District Judge

         In this action brought pursuant to 42 U.S.C. § 1983, Plaintiff Eon Shepherd, who is currently incarcerated, alleges a variety of federal constitutional claims, all of which arise from events that allegedly occurred between October 2005 and August 2008, while he was an inmate at New York State's Green Haven Correctional Facility ("Green Haven"). Defendants are more than two dozen current and former employees of the New York State Department of Corrections and Community Supervision ("DOCCS"), on behalf of whom the Attorney General of the State of New York has filed the consolidated motion for summary judgment. For the reasons that follow, Defendants' motion is denied in part and granted in part.

         PROCEDURAL HISTORY

         Plaintiff filed his Amended Complaint on September 13, 2011. (Am. Compl. (Dkt. 61).) In it Plaintiff brings sixteen separate causes of action against more than thirty Defendants. (Am. Compl. 14-16.) Each cause of action encompasses several individual incidents, spread across a period of more than three years. Shepherd alleges that Green Haven medical staff failed to properly treat his chronic back condition, did not let him out of his cell to receive his prescription medication on at least three occasions, refused to provide proper work boots, ignored his complaints that his painkillers were no longer working, violated his right to medical confidentiality, hindered the delivery of adequate mental health treatment through intimidation, and failed to comply with existing consent orders regarding the delivery of medical and mental health care at Green Haven. He also alleges that improper searches by Green Haven Correction Officers ("C.O.s") on five occasions amounted to sexual abuse and, in several instances, were retaliatory. Additionally, Shepherd claims that his hair-which, as a Rastafarian, he considers sacred-was improperly searched in violation of his First Amendment rights on five separate occasions spanning more than a year, with one such search resulting in the discovery of several ounces of methamphetamine secreted in his dreadlocks. Shepherd further complains that he was denied religious meals on two Rastafarian holidays. He also argues that his sentence of nine months in the Special Housing Unit ("SHU"), imposed for his possession of the methamphetamine, violated his due process rights as a consequence of the hearing officer's alleged failure to adhere to a host of evidentiary rules and other procedural safeguards. Lastly, Shepherd alleges that on at least one occasion, a CO. improperly confiscated his legal mail. For these alleged abuses, Plaintiff seeks $ 100, 000 in punitive damages and $200, 000 in compensatory damages from each Defendant. (Id. at 17.)

         Due to the need to identify a number of "Doe" Defendants and other service issues, Defendants answered Plaintiffs Amended Complaint in a piecemeal fashion, with all Defendants answering by June 28, 2013. (Dkt. 85.) On April 2, 2014, Defendants filed their consolidated motion for summary judgment, arguing that the majority of Plaintiff s claims are precluded as a matter of law, and that he failed to properly exhaust the remainder, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §1997e et seq. (Dkt. 109.) On March 31, 2015, the Court granted in part and denied in part Defendants' motion for summary judgment, and the case was referred to Magistrate Judge Ellis for settlement, which was unsuccessful despite the parties' efforts. (Dkts. 127, 128.) On October 9, 2015, pro bono counsel appeared on behalf of Plaintiff[1]The Court subsequently ordered additional briefing on Defendants' motion for summary judgment with respect to Plaintiffs allegations of sexual abuse in light of the Second Circuit's ruling in Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). (Dkt. 159.)[2]

         This Opinion sets forth the Court's reasoning for its summary judgment ruling. The Court has reconsidered its decision to grant summary judgment to Defendants on Shepherd's claims that he was sexually assaulted in violation of the Eighth Amendment and that he was denied religious meals for two Rastafarian holidays in violation of the Free Exercise Clause, and for the reasons stated herein the Court is convinced that summary judgment as to these claims must be denied.

         Accordingly, Defendants' motion for summary judgment is denied as to the following five claims: (1) Defendant Bentivegna was deliberately indifferent to Plaintiffs requests for pain medication on or about March 3, 2008, violating the Eighth Amendment; (2) Defendants Tweed, Sarles, and Ferrick sexually assaulted Shepherd between 2006 and 2008, violating the Eighth Amendment; (3) Defendant Sarles frisk searched Shepherd on January 23, 2007 in retaliation for filing grievances, violating the First Amendment; (4) Defendants Towkartz, Swan, Castine, Sample, Alexander, La Ports, Scott, Raetina, Freeman, and Wilson searched Shepherd's hair, which as a Rastafarian he considers sacred, in February 2007 and on March 12, 2007, March 6, 2008, March 15, 2008, and August 15, 2008, violating the First Amendment; and (5) Defendant Ercole denied Shepherd two religious meals during Rastafarian holidays important to Shepherd's religious beliefs on October 7, 2005 and May 5, 2008, violating the First Amendment.

         Due to the scope and complexity of Plaintiff s allegations, and because each cause of action encompasses a distinct set of incidents, the Court will address the factual record underlying each cause of action in conjunction with its legal analysis.

         STANDARD OF REVIEW

         Summary judgment is proper only where the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). An issue of fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id.

         In deciding whether to grant summary judgment, "courts must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quotation marks omitted). Within that framework, the moving party bears the initial burden of demonstrating that there is no genuine issue of material fact, and the failure to meet that burden warrants denial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party meets its burden, it falls to the adverse party to demonstrate that there are genuine issues of material fact that remain for trial. See Anderson, 477 U.S. at 250.

         DISCUSSION [3]

          I. Plaintiff's Medical Claims

          Plaintiff brings seven causes of action related to inadequate medical or mental health care (Am. Compl. 14-16), the majority of which can be construed as raising "deliberate indifference" claims under the Eighth Amendment. Defendants are granted summary judgment on all of these claims with the exception of Plaintiff s deliberate indifference claim against Defendant Bentivegna regarding his requests for pain medication on or about March 3, 2008.

         A. The Factual Record

         I. Treatment of Plaintiff's Chronic Back Pain

         Many of Plaintiffs claims relate to the alleged ineffective treatment of his chronic lower back pain. In October 2004, while incarcerated at Wende Correctional Facility ("Wende"), Plaintiff was diagnosed with an L5/S1 stenosis, or narrowing, in his lower back, likely the result of a herniated or degenerative disc. DOCCS medical staff at Wende recommended surgical intervention to decompress and fuse his lumbar spine.

         Defendants assert that this procedure was scheduled multiple times, with Plaintiff refusing to undergo surgery each time. (Defs.' R. 56.1 Statement ¶¶ 4-5; Schulze Decl. Ex. C ¶ 4, Ex. A MED 324-326.) Plaintiff, however, asserts that this surgery was scheduled only once, and that he decided not to have the surgery-despite initially consenting-after "consulting with [his] family" and speaking to his orthopedic surgeon, who informed him that there was only a fifty percent chance the surgery would succeed. (Pl.'s Aff. ¶¶ 8-9.)

         While at Wende, Plaintiffs back pain was treated with a variety of over-the-counter and prescription muscle relaxants and pain killers. (Defs.' R. 56.1 Statement ¶ 7; Pl.'s Aff ¶¶ 5-6.) Among those drugs prescribed to Plaintiff was Ultram, a non-narcotic pain reliever (Pl.'s Aff. ¶ 5-6; Schulze Decl. Ex. A MED 325), which Plaintiff asserts offered him "no relief." (Pl.'s Aff. ¶ 6.) Defendants have not addressed Plaintiffs experience with Ultram at Wende. Eventually, Plaintiffs prescription was changed to Percocet, which appears to have provided Plaintiff relief.

         In June 2005, Plaintiff was transferred to Green Haven, where Dr. Bhapale was assigned as Plaintiffs primary medical care provider. (Pl.'s Aff. ¶ 11 (acknowledging that Dr. Bhapale was his "health care provider, " but clarifying that Dr. Bernstein, the "facility health service director, " made all final decisions as to his healthcare). Dr. Bhapale prescribed Shepherd a variety of medications, including Percocet, to manage his lower back pain.

         On October 16, 2005, Plaintiff was unable to pick up his pain medication, as CO. White did not let Plaintiff out of his cell until after the medical office had closed for the day. The next day, however, Plaintiff saw Dr. Bhapale, who renewed his prescriptions for Percocet and other medications. Plaintiff otherwise alleges that he was prescribed Percocet without incident until November 2006. (Am. Compl. ¶ 10.)

         Shepherd alleges that he received "ineffective, meaningless care for [his] chronic excruciating lower back pain" from November 26, 2006 until late March 2007. (Am. Compl. ¶ 11.) As a result of this allegedly ineffective care, Plaintiff asserts he "was in extreme pain and discomfort, unable to dress and undress, use the toilet, sneeze, and ambulate without extreme pain and discomfort and [he] was unable to sleep." (Pl.'s Aff. ¶ 60.)

         The record suggests that this period of allegedly ineffective care began on November 9, 2006, after a consultation with Dr. Bhapale-several weeks earlier than Plaintiff alleges in his Amended Complaint. (Schulze Decl., Ex. A at MED 782, Ex C. ¶ 8; Pl.'s Opp. Ex. Bern. #1.) Following this consultation, Plaintiffs prescription for Percocet was discontinued, and Plaintiff only received non-narcotic pain medication for his back pain until February 13, 2007, when he was prescribed OxyContin. (Schulze Decl., Ex C. ¶¶ 12-13.)

         Exactly what occurred during the Plaintiffs November 9, 2006 consultation with Dr. Bhapale is disputed. Plaintiff asserts that Dr. Bhapale "took [him] off [his] pain medication and issued a no work permit, " despite Plaintiff "never ask[ing] the doctor to discontinue [his] pain medication." (Pl.'s Aff. ¶ 13.) But in a letter to Dr. Bernstein dated November 9, 2006, Plaintiff acknowledges that the "no working permit" was previously issued and the consultation with Dr. Bhapale was scheduled because Plaintiff sought to have the earlier "no working permit" rescinded so that he could return to his job as a porter. (Pl.'s Opp. Ex. Bern. #1.) In the same letter, Plaintiff also acknowledges that Dr. Bhapale informed him he could return to work only if he ceased taking Percocet, a narcotic, and that Dr. Bernstein had ordered Dr. Bhapale to begin transitioning Plaintiff off of Percocet. (Id.) This account is largely consistent with Dr. Bhapale's consultation notes from November 9, 2006, which suggest that Plaintiff requested to "cancel 'no work'" and was told that he could not return to work unless he went off Percocet. (See Schulze Decl. Ex. A at MED 782.) A factual dispute nevertheless remains as to whether Plaintiff requested to be taken off Percocet, or whether this change in treatment was ordered, over Plaintiffs objection, by Drs. Bhapale and Bernstein.

         The nature of the treatment Plaintiff received immediately following his November 9, 2006 consultation is unclear. Several of Plaintiff s exhibits-his letters to various members of the Green Haven medical staff-indicate that he was without any pain medication for some period of time (see Pl.'s Opp. Exs. Bern. #2, Bern. #4, Bern. #5). But a later letter to Dr. Koenlgamann suggests that Plaintiffs Percocet prescription was reduced, not discontinued entirely, after the November 9, 2006 consultation; that Plaintiff continued to receive this reduced-and, he asserts, ineffective- dosage through November 26, 2006; that he received no medication for his "pain[, ] period" for a short duration, but was, at some point, prescribed an emergency four-day dose of Percocet to last until his next consultation with Dr. Bhapale; and that, at this consultation on December 6, 2006, Dr. Bhapale prescribed a course of Ultram. (Pl.'s Opp. Ex. Keog. #1.) Plaintiffs medical records, offered by Defendants, indicate that his Percocet prescription was not fully discontinued until December 5, 2006. (Schulze Decl. Ex. A at MED 774-76.) Defendants, meanwhile, assert that Plaintiff was temporarily housed at another facility after his November 9, 2006 consultation, but that he was prescribed Ultram as soon as he returned to Green Haven. (Schulze Decl. Ex. C ¶ 8.)

         Regardless, by early December, Plaintiff had been prescribed Ultram and began to complain that it did not adequately address his back pain. On December 7, 2006, for instance, Plaintiff wrote Drs. Bernstein and Koenlgamann to complain about its ineffectiveness. (Pl.'s Opp. Exs. Bern. #6, Keog. #1.) Plaintiff also wrote similar letters of complaint to Dr. Lester Wright, Associate Commissioner of Health Services at DOCCS, and DOCCS Commissioner Goord. (Pl.'s Opp. Exs. Wrght #1, Goord #1), in addition to filing a formal grievance (id. Ex. Griev. #1). Plaintiffs medical records, offered by Defendants, suggest that his doctors were responsive to these complaints. (Schulze Decl. Ex. A at MED 774-76.) They show that, after being prescribed Ultram on December 5, 2006, Plaintiff was then prescribed Toradol two days later and again on December 11, 2006; was prescribed a short dose of Percocet on December 13, 2006; and was prescribed MS Contin on December 15, 2006. (Id.)

         Indeed, Plaintiff concedes that from mid-December 2006 until mid-February 2007, he received short courses of various alternative pain medications in response to his complaints about Ultram. Plaintiff, however, asserts his medical records clearly indicate that Ultram-the initial medication on which Plaintiff was placed after his prescription for Percocet was discontinued- had not sufficiently mitigated the severity of his back pain when prescribed to him in the past, a fact of which, he asserts, Defendants should have been aware. (Pl.'s Aff. ¶ 15; Pl.'s Opp. Exs. Bern. #6, Keog. #1.)

         During this mid-December to mid-February period, Plaintiff was also referred to an outside specialist in pain management. According to Defendants, this specialist determined that Plaintiff was exaggerating his symptoms and recommended that he be treated with non-narcotics and given narcotics only if necessary and in the lowest dosage possible. (Schulze Decl. Ex. A at MED 771, Ex. C ¶ 11.) Plaintiff, however, asserts that the specialist was unable to successfully examine him, as the examination itself caused excruciating pain, but acknowledges that the specialist found nothing wrong with his back. (Pl.'s Aff ¶ 17.) During this period, Dr. Bernstein also scheduled Plaintiff for an MRI and again recommended surgical intervention, which Plaintiff declined. (Pl.'s Aff. ¶18.)

         On February 13, 2007, Plaintiff was prescribed OxyContin to manage his back pain, which offered him relief, at least initially. (Pl.'s Aff. ¶ 17.) Defendants assert that, after February 2007, Plaintiff did not complain of serious back pain or request a change in medication. (Schulze Decl. Ex. C ¶¶ 13-14.) Plaintiff disputes this account. Specifically, he asserts that, beginning on March 3, 2008, he complained to Defendant Bentivegna, his medical provider in the SHU, that his pain medication "was not offering [him] any relief as it did prior." (Pl.'s Aff. ¶ 24; see Am. Compl. ¶ 16.) Plaintiff purportedly explained to Dr. Bentivegna that "Dr. Bohaple had explained to [him] that after being on a medication, taking the same dosage for a long period of time, that the medication will no longer offer [him] relief and the dosage has to be raised in order for the pain medication to offer relief and be effective. [He] informed Dr. Bentivegna that the medication [he] was taking was a low dosage and had been taking the said dosage for close to a year and [he] was not receiving relief for [his] pain." (Am. Compl. ¶ 16; see Pl.'s Aff ¶ 24; see also Pl.'s Opp. Ex. Bern. #7.) Dr. Bentivegna allegedly "ignored [him] and did nothing to offer [him] effective treatment." (Pl.'s Aff. ¶ 24.) An affidavit from fellow inmate, Derrick Bonner, on March 31, 2008, corroborates Plaintiffs assertion that his back was "killing him" during this time and that Shepherd communicated that to Dr. Bentivegna. (Pl.'s Opp. Ex. Aff. of Bonner.)

         During this time, Dr. Bentivegna also spoke to Plaintiff at his cell door about his pain medication, such that officers and other inmates could overhear their conversation. Plaintiff asserts that Dr. Bentivegna carried on these conversation despite a request by Plaintiff that they discuss his medical issues in private. (Pl.'s Aff. ¶ 25.) Defendants concede that Plaintiffs conversations with Dr. Bentivegna were audible to other officers and inmates, but have not otherwise responded to Plaintiffs allegations regarding Dr. Bentivegna's conduct. (Defs.' R. 56.1 Statement ¶ 78.)

         Around this same time, on February 26 and February 27, 2008, Plaintiff was allegedly prevented from getting his evening doses of pain medication by CO. Smith, which he asserts caused him "excruciating pain." (Pl.'s Aff. ¶¶ 22, 23.) Plaintiffs medical records indicate that he was seen by medical staff on February 28 and February 29, 2008, and that they did not find Plaintiff to be in acute distress, but nonetheless renewed his OxyContin prescription. (Schulze Decl. Ex. A at MED 104.)

         2. Medical Boots

         Plaintiff also claims that he was provided improper medical boots by Defendants. Plaintiffs medical records indicate that on May 10, 2000, he was first prescribed a "Lightweight Boot" by Dr. Albert Paolano at Great Meadow Correction Facility, where Plaintiff was incarcerated at the time. (Pi's. Opp. Ex. A.) Dr. Paolano's report indicates that he prescribed a lightweight boot to "minimize strain" on Plaintiffs right knee, and to "help /w hammer Toes also." (Id.) The medical significance of lightweight boots is disputed; Defendants contend that "the weight of the boot is of no medical significance whatsoever." (Schulze Decl. Ex. C ¶ 17.)

         At Green Haven, Plaintiff alleges that he was without "special issue boots from December 2006, [u]ntil August 2007." (Am. Compl. ¶ 13.)[4] Plaintiffs account of this issue is inconsistent, disputed by Defendants, and contrary to the record.

         Defendants assert that Plaintiff requested new boots in December 2006, which he was prescribed "[s]hortly thereafter." (Schulze Decl. Ex. C. ¶ 15.) The record indicates that Plaintiff received special issue boots on May 15, 2007 (Schulze Decl. Ex. A at MED 842), but that he complained to Defendants Bernstein, Bhapale, Fisher, and Koenlgamann on May 24, 2007 that, although these special issue boots "fit, " they were too heavy. (Schulze Decl. Ex. A at MED 842; see also Pl.'s Aff ¶¶ 19, 20). On September 21, 2007, after his request for new boots was denied by Drs. Koenlgamann and Bernstein, Plaintiff visited Dr. Bhapale, who, after speaking with Dr. Bernstein, told Plaintiff that his request had been reviewed and that new boots were "not medically indicated." (Schulze Decl. Ex. A at MED 836; see also Pl.'s Aff. ¶ 20).[5]

         Plaintiff, meanwhile, acknowledges both that "he requested lightweight medical boots . . . because the boots that [he] had were worn down, " and that he was eventually issued boots by Dr. Bhapale in response to this request. (Pl.'s Aff. ¶ 19.) Plaintiff does not specify, however, when he was issued such boots. Nor does he provide any basis-beyond his affidavit-for his claim that he was without boots until August 2007. It is similarly unclear what occurred in August 2007 to resolve Plaintiffs concerns regarding his medical boots, as it does not appear he was ever issued the "lightweight" boots he sought.

         3. Access to Mental Health Treatment

          Plaintiff also asserts that due to threats and harassment by DOCCS officers on three separate occasions, he was denied mental health treatment. (See Pl.'s Aff. ¶¶ 26-30.)

         According to his medical records, Plaintiff suffers from post-traumatic stress disorder ("PTSD") (Pl.'s Opp. Exs. D1-D3), for which he has seen a therapist and been prescribed medication (Pl.'s Aff. ¶ 26). On three separate occasions, January 18, 2006, January 10, 2007, and January 23, 2007, Plaintiff visited the mental health unit at Green Haven to see his therapist. (Pl.'s Aff. ¶¶ 26-30.) On at least one occasion, however, Plaintiff asked to be returned to his cell. (Pl.'s Aff. ¶ 29.)

         Defendants assert that Plaintiff asked to be returned to his cell because he did not want to speak to his therapist, but acknowledge-for the purposes of summary judgment-that C.O.s Sarles, Eagon, and Morris were present in the mental health unit on these occasions and spoke "rudely" to Plaintiff. (Defs.' R. 56.1 Statement ¶ 35.) Plaintiff asserts that he refused to see his therapist after these C.O.s verbally and physically threatened him. (See Pl.'s Aff. ¶¶ 26-30.)

         On or about January 18, 2006, Plaintiff asserts that he went to see his therapist, Morales, in the mental health unit at Green Haven. (Id. ¶ 26; Pl.'s Opp. Exs. Morales #1, Morales #2.) While there, he asserts that "prison guards Sarles and [Eagon] approached [him] and began using profane, abusive language towards [him] threatening [him] asking why [he did] not want to speak to the therapist." (Pl.'s Aff. ¶ 27.) Shepherd further asserts that he did speak to his therapist, but that as he was speaking, "Sarles was at the door listening and when [Plaintiff] came out, he began mocking [him]." (Id. ¶ 28.)[6]

         In two letters dated January 18, 2006, Plaintiff complained about this incident to Commissioner Goord and his therapist. (Pl.'s Opp. Exs. Goord #2, Morales #1.) Plaintiffs letter to Morales suggests that Plaintiff and Morales did speak on the date of the incident, but that Plaintiff prematurely ended the session after noticing he was being watched by CO. Sarles. (Pl.'s Opp. Ex. Morales #1.) In the same letter, Plaintiff elaborates on the nature of the threats he allegedly received from Defendant Sarles, although the precise timing of these threats is unclear: "officer Sarl[e]s started to curse at [Plaintiff] stating that [Plaintiff] think[s] [he is] running shit up there [in the mental health unit] and [Plaintiff] always caus[es] a fucking problem and that he would fuck [Plaintiff] up and have [him] set up and placed in the box because he use[d] to run the box up stairs and he has a lot of friends in this prison and he would get [Plaintiff] hurt." (Id.) As a consequence of these threats, Plaintiff alleges that he was "in fear for [his] well being, " and asked Morales, "Please leave me alone, do not call me up there for anything, I do not want anything to do with those officer[s] up there and I do not feel safe coming up there after being threatened by the officer because his fellow officers can do as he threatened to be done." (Id.) Plaintiffs letter to Commissioner Goord addresses a largely identical set of concerns but add that Officer Sarles "said that he will cut my dread lock off and shove it up my ass." (Pl.'s Opp. Ex. Goord #2.)

         On January 10, 2007, Plaintiff was again called to the mental health unit. Plaintiff asserts he was "in fear for [his] life and safety, and requested to return to [his] housing unit, " and that CO. Morris "began threatening [him], using profane, degrading language." (Pl.'s Aff ¶ 29.)

         On January 23, 2007, Plaintiff was called back to the mental health unit a third time. Plaintiff asserts that on this visit, "CO. Sarles conducted a pat frisk in a rough sexual manner using a hand scanner pushing it between [Plaintiffs] buttocks cheeks roughly saying he was going to fuck [Plaintiff] in [his] ass with said scanner because [Plaintiff] wrote him up." (Id. ¶ 30; Schulze Decl. Ex. B 100:12-102:19.) In his Amended Complaint, Plaintiff further alleges that he initially refused to see his therapist on January 23, 2007, but that CO. Sarles "ordered [him] to shut the fuck up and sit down, which [he] did due to fear for [his] safety." (Am. Compl. ¶ 20.) Plaintiff also alleges that "while [Plaintiff was] speaking to the doctor, [CO. Sarles] was at the door listening to [Plaintiffs] conversation and when [Plaintiff] left the offices, Sarles began mocking [Plaintiff] repeating things that [Plaintiff] had revealed to the doctor." (Id.)

         Plaintiff asserts that he reported this third incident to CO. Sarles' "supervisors and the superintendent" and that he "filed grievances that was labeled physical assault which was appealed to Albany." (Pl.'s Aff. ¶ 30.) Plaintiffs exhibits, however, include only a letter to Morales about the incident and a January 16, 2008 opinion by the Central Office Review Committee ("CORC"), the highest level of appeal for the State's Inmate Grievance Program ("IGRP"), which discusses in general terms mental health concerns raised by Plaintiff, but does not provide detail sufficient to determine whether it represents the final disposition of Plaintiff s grievance of the January 23, 2007 incident. (Pl.'s Opp. Exs. Morales #2, Griev. #4.) For the purposes of their motion, Defendants accept Plaintiffs characterization of CO. Sarles' conduct (Defs.' Mem. 6), but contend that Plaintiff did not properly appeal his grievance related to this incident (id.; Hale Decl. ¶¶ 11-13.)

         A January 30, 2007 letter to Plaintiff from Viktoria Fisher, a risk management specialist at the Central New York Psychiatric Center, a state facility, suggests that Plaintiff reported suffering anxiety and difficulty sleeping as a consequence of his denied mental health treatment. (PI.' s Opp. Ex. E.) Plaintiff does not assert that he otherwise suffered any psychological trauma.

         B. Legal Analysis

         The Eighth Amendment's prohibition on the infliction of "cruel and unusual punishments, " U.S. Const, amend. VIII, applicable to the states by the Fourteenth Amendment, Estelle v. Gamble, 429 U.S. 97, 101 (1976), "applies to prison officials when they provide medical care to inmates, " Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). The mere "inadvertent failure to provide adequate medical care cannot be said to" violate the Eighth Amendment, however. Estelle, 429 U.S. at 105. Instead, prison officials must act with "deliberate indifference to serious medical needs." Id. at 106.

         The "deliberate indifference standard embodies both an objective and a subjective prong." Hathaway, 37 F.3d at 66. A prisoner must demonstrate both that "the alleged deprivation [was] sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exist[ed], " and that the official acted with a "sufficiently culpable state of mind." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted).

         The objective prong is highly "contextual and fact-specific, " Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (quotation marks omitted), and itself entails two separate inquiries. "The first inquiry is whether the prisoner was actually deprived of adequate medical care." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). This inquiry turns on the reasonableness of the provided care. "[P]rison officials who act reasonably cannot be found liable, " while those who "fail[] to take reasonable measures" can be found liable under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 845, 847 (1994). Where a prison official has acted unreasonably, the second inquiry is "whether the inadequacy in medical care is sufficiently serious." Salahuddin, 467 F.3d at 280. That inquiry turns on "the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract." Smith, 316 F.3d at 186.

         To satisfy the subjective prong of deliberate indifference, a prisoner must show that prison officials acted-or failed to act-while "actually aware of a substantial risk that serious inmate harm [would] result." Salahuddin, 467 F.3d at 280. Thus, a prisoner must prove at least that officials acted recklessly: an "official need not desire to cause such harm or be aware that such harm will surely or almost certainly result. Rather, proof of awareness of a substantial risk of the harm suffices." Id.; see also Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). Importantly, however, neither "mere disagreement over the proper treatment" nor "negligence, even if it constitutes medical malpractice, " rise to the level of constitutional violation. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). See also Hill, 657 F.3d at 123 ("It has long been the rule that a prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment.").

         Pursuant to this framework, the Court analyzes each of Plaintiff s "deliberate indifference" causes of action, in turn.

         1. Deliberate Indifference to Serious Medical Needs

          In his first cause of action, Plaintiff alleges that Defendants Koenlgamann, Bhapale, Bernstein, and Bentivegna (collectively, the "Medical Defendants") showed deliberate indifference to his serious medical needs by failing to provide "effective pain medication that offered relief as well [as] failing to prescribe light weight boots." (Am. Compl. 14.) In his second cause of action, Plaintiff similarly alleges that Defendants Bhapale and Bernstein "knowingly and intentionally discontinued effective pain medication for several months, failing to provide [Plaintiff] with effective adequate, meaningful care." (Id.)

         Although Plaintiff considered his special issue boots inadequate and alleges that they caused him "discomfort and pain when walking, " (Am. Compl. ¶ 13), this is not a case in which "he was denied care that a doctor prescribed as appropriate, " Giambalvo v. Sommer, No. 10-CV-6774, 2012 WL 4471532, at *5 (S.D.N.Y. Sept. 19, 2012). Defendants have demonstrated that Plaintiff was provided a pair of boots fitted to his individual knee and toe conditions, and was denied a request for lighter boots not out of caprice, but on the basis that they were not "medically indicated." (Schulze Decl., Ex. A at MED 836.) Plaintiffs claim that the Medical Defendants failed to prescribe lightweight boots cannot, therefore, survive the objective "reasonableness" prong of the deliberate indifference standard. Even if it could, Plaintiff can at best show that the Medical Defendants were negligent.[7] Because Plaintiffs claim that the Medical Defendants failed to prescribe lightweight boots amounts only to "mere disagreement over [what constitutes] proper treatment, " Chance, 143 F.3d at 703, Defendants' motion for summary judgment on this issue is granted.

         Plaintiffs claim that he was without "special issue boots from December 2006, [u]ntil August 2007, " (Am. Compl. ¶ 13), is also precluded as a matter of law. First, Defendants have demonstrated that Plaintiff received new, special issue boots at least by May 15, 2007. (Schulze Decl., Ex. A at MED 842.) Plaintiffs claim that he lacked boots until August of 2007 is thus erroneous. Second, even if Plaintiff did lack special issue boots from December 2006 to August 2007, and even assuming that his purported discomfort during this period was sufficiently severe, [8]he has not alleged that he lacked proper boots as a consequence of Defendants' deliberate indifference. He does not claim, for instance, that he requested new boots and that this request was denied-facts that might tend to show Defendants acted unreasonably, or with constitutionally cognizable culpability. Indeed, he acknowledges that Defendants did, upon request, provide him new boots, and contends only that these boots were unsatisfactory because they were not sufficiently lightweight. (Pl.'s Aff ¶ 19.) Defendants' motion for summary judgment is granted as to this issue. Plaintiffs' medical boots claims cannot go forward.

         Plaintiffs claim that Defendants failed to prescribe effective pain medication for his chronic lower back pain is also precluded as a matter of law. The record demonstrates that Plaintiffs ongoing need for pain medication arose, at least in part, from his own choice to forego the surgical intervention recommended by his treating physicians.[9] Defendants, moreover, did not cease treatment of Plaintiff s chronic lower back pain in response to his refusal to undergo surgery. Plaintiff acknowledges that he received effective pain medication (Percocet) until at least mid-November 2006 (Am. Compl. ¶¶ 10, 11; see also Pl.'s Opp. Exs. Wrght #1; Schulze Decl., Ex. C at ¶ 5.), although there was at least one instance in which he was let out of his cell too late to pick up this pain medication. Plaintiff alleges that he received "ineffective meaningless care for [his] chronic excruciating lower back pain" from November 26, 2006 until late March 2007. (Am. Compl. ¶ 11.) Construing the facts in Plaintiffs favor, on November 9, 2006, Plaintiff saw Defendant Bhapale, his primary medical care provider at Green Haven (Schulze Decl. Ex. A at MED 782, Ex C. ¶ 8; Pl.'s Opp. Ex. Bern. #1); following that consultation Plaintiffs prescription for Percocet was discontinued (Pl.'s Aff ¶ 13; Schulze Decl. Ex. C ¶ 8); and that Plaintiff did not receive relief from his back pain until he was prescribed OxyContin on February 13, 2007. (Schulze Decl. Ex. A at MED 776.) Even if the significant inconsistencies in his own exhibits are resolved in Plaintiffs favor the record suggests that Plaintiff was without medication entirely for less than a month at most-as his medical records indicate that he received a prescription for Ultram on December 5, 2006. (Schulze Decl. Ex. A at MED 776.)

         Defendants have not responded to Plaintiffs related contention, supported in the record, that they were, or should have been, aware that Ultram-the initial medication on which Plaintiff was placed after his prescription for Percocet was discontinued on December 5, 2006 -had not sufficiently mitigated the severity of Plaintiff s back pain when it had been prescribed to him at an earlier facility. (See Pl.'s Aff. ¶ 15; Pl.'s Opp. Exs. Bern. #6, Keog. #1.) But Plaintiff has not alleged that Defendants were actually aware of Plaintiff s history with Ultram as of November 9, 2006, and the record indicates that Plaintiff was switched from Ultram to Toradol, a painkiller with which Plaintiff alleges no previous experience, on December 7, 2006 (Schulze Deck, Ex. A at MED 776), the same day Plaintiff appears to have first written Defendants Bernstein and Koenlgamann to complain about the ineffectiveness of Ultram (Pl.'s Opp. Exs. Bern. #6, Keog. #1.) Plaintiff even concedes that Defendants prescribed various alternative pain medications immediately after he began complaining that the Ultram he was taking did not adequately control his back pain.

         Construed in the light most favorable to Plaintiff, Defendants' conduct thus does not rise to the level of constitutional violation. This is not a case in which Defendants "refused to treat [Plaintiffs] condition, failed to provide prescribed treatment, or placed unreasonable conditions on the receipt of treatment." Reyes v. Gardener, 93 F.App'x 283, 285 (2d Cir. 2004) (summary order). Instead, Defendants repeatedly offered surgical intervention, continually readjusted their strategies for managing Plaintiffs chronic pain, and relented in their efforts to manage his pain using non-narcotic painkillers after less than three months. When actually made aware of Ultram's ineffectiveness, Defendants tried-several times-to find a drug that would adequately manage Plaintiffs pain.

         Moreover, if Defendants had acted unreasonably when they discontinued Plaintiffs Percocet prescription, Plaintiff has not demonstrated that they did so with deliberate indifference. Plaintiff asserts only that this change in treatment was made over his objections, not that Defendants acted with "a conscious disregard of a substantial risk of serious harm." Hill, 657 F.3d at 123.[10] In short, he has not shown that the "prescribed medication regimen deviated from reasonable medical practice for the treatment of his condition, much less ... that defendants were . . . aware that their prescribed treatment plan was medically inadequate." Reyes, 93 F.App'x at 285. Accordingly, Defendants' motion for summary judgment as to this claim is granted. See Veloz v. New York, 339 F.Supp.2d 505, 525 (S.D.N.Y. 2004) (granting summary judgment where plaintiffs allegation was "essentially a disagreement with his medical providers' decision not to prescribe stronger pain medication than Tylenol rather than a claim that medical attention was denied entirely."), affd, 178 F.App'x 39 (2d Cir. 2006).[11]

         Summary judgment is denied, however, as to Plaintiffs allegations that Defendant Bentivegna, who served as Plaintiffs primary medical care provider while he was confined to SHU, "did nothing to change [his] medication and prescribe effective medication for [his] extreme pain, " despite Plaintiff informing Defendant that "the medication [he] was taking was a low dosage and had been taking the said [dosage] for close to a year and [he] was not receiving relief for [his] pain." (Am. Compl. ¶ 16; see Pl.'s Opp. Ex. Bern #7.). Defendants have not responded to these allegations. In his affidavit in opposition to summary judgment, Plaintiff restates these allegations, asserting that, beginning "on or about 3/3/08, " Defendant Bentivegna "ignored [his requests for pain relief] and did nothing to offer [him] effective treatment." (Pl.'s Aff. ¶ 24.)

         Because Plaintiff has provided an affidavit from a fellow inmate corroborating that his back was "killing him" while in the SHU (Pl.'s Opp. Ex. Aff. of Bonner), there is at least some evidence to suggest that the consequences of Bentivegna's purported failure to provide Plaintiff adequate medical care were sufficiently severe for Eighth Amendment purposes, thus meeting the objective prong. Plaintiff, moreover, has asserted that he made Defendant Bentivegna aware of his suffering, and that Defendant still refused to act-a factual basis from which it is possible to infer that Bentivegna acted with constitutionally cognizable culpability, thus sufficiently alleging facts to meet the subjective prong. Given Defendants' failure to respond to this claim with any evidence to the contrary, summary judgment is denied.

         2. Interference with Pain Medication

          In his fourth cause of action, Plaintiff alleges that Defendants White and Smith "knowingly and intentionally denied and interfered with [his] medical care, denying [him] prescribed pain medications, leav[ing] [him] in extreme pain [and] suffering." (Am. Compl. 14.) Plaintiff asserts that he was denied his pain medication three times, once by Defendant White, on October 16, 2005, when he was let out of his cell too late to pick up his medication, and twice by Defendant Smith, on February 26, 2008 and February 27, 2008, while confined to his cell for disciplinary reasons. Plaintiff asserts that the first incident left him in "extreme pain, " (Pl.'s Aff ¶ 12), and that the latter two incidents left him in "excruciating pain, " (id. ¶ 22-23).

         This claim fails as a matter of law. No reasonable jury could find that Defendants White and Smith acted with deliberate indifference to Plaintiffs serious medical needs. Plaintiff was promptly seen by Green Haven medical staff within a day or two of the dates he alleges that he was let out of his cell too late to pick up his medication and there is no allegation he suffered lasting damage as a result. (See Schulze Decl. Ex. A at MED 104, 310). Therefore, the particular risk of harm faced by Plaintiff as a consequence of Defendants' actions was not sufficiently serious. See Evans v. Bonner, 196 F.Supp.2d 252, 256 (E.D.N.Y. 2002) (granting defendants judgment as a matter of law where plaintiffs medications were delivered late and plaintiff alleges that he suffered pain as a result). Nor would Plaintiff be able to show that either Defendant acted with the requisite state of mind, as he has not asserted that they were aware of the risk that Plaintiff would suffer severe pain as a consequence of missing one or two doses of pain medication.

         Defendants' motion for summary judgment is granted as to Plaintiffs fourth cause of action.

         3. Access to Mental Health Treatment

         In his fifth cause of action, Plaintiff alleges that Defendants Sarles, Eagon, and Morris, "denied [him] mental health treatment and/or access to such treatment." (Am. Compl. 14.) Although Defendants Sarles, Eagon, and Morris are not medical personnel, such claims are nonetheless evaluated under the "deliberate indifference" framework of the Eighth Amendment. Non-medical personnel, like prison guards, manifest deliberate indifference by "intentionally denying or delaying access to medical care." Estelle, 429 U.S. at 104-05; see also Hodge v. Coughlin, No. 92-CV-0622, 1994 WL 519902, at *11 (S.D.N.Y. Sept. 22, 1994) (explaining that non-medical prison officials violate the Eighth Amendment where they have either "intentionally delayed access to medical care when the inmate was in extreme pain and has made his medical problems known to the attendant prison personnel or . . . the inmate [has] suffered a complete denial of medical treatment."), aff'd, 52 F.3d 310 (2d Cir. 1995).

         If an inmate fails to demonstrate that prison officials knew, or should have known of an underlying mental health condition that, left untreated, could result in serious injury or harm, courts have entered judgment in favor of defendants because plaintiff has failed to create a genuine issue of fact as to the subjective requirement of an Eighth Amendment claim. See Doe v. Selsky, 973 F.Supp.2d 300, 303 (W.D.N.Y. 2013) (granting summary judgment in favor of prison officials as to claim that they failed to prevent inmate's suicide attempt where no indication inmate "told them that he was having suicidal thoughts, or that they knew of any other information that he might be at risk for suicide."); see also Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (reversing district court's denial of prison officials' summary judgment motion where plaintiff-inmate's "version of the facts raise[d] no genuine issue as to [the] subjective element, because there [was] no evidence that [officials] thought that denying [plaintiffs] request for a leave of absence" for unspecified essential medical care "would cause him serious harm."). Here, Plaintiff has not asserted that Defendants Sarles, Eagon, or Morris had any reason to know of Plaintiffs PTSD diagnosis. Even assuming that Defendants should have inferred that Plaintiff had a mental health condition from his visits to a prison therapist, there is no basis for finding that Defendants were, or should have been aware, of the particular nature or severity of Plaintiffs condition.

         If "[D]efendants deliberately interfered with [Plaintiffs] medically prescribed treatment solelyybr the purpose of causing him unnecessary pain, they may be subject to liability despite the likelihood that he suffered no permanent injuries, " Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (emphasis added), but Plaintiff has not alleged that Defendants acted with such deliberateness here. Read in the light most favorable to Plaintiff, the record shows only that Defendants deliberately taunted or harassed Plaintiff, not that they did so to exacerbate his underlying psychological condition-or even with an awareness of such a risk. Aside from his presence in the mental health unit, moreover, nowhere has Plaintiff asserted that he was in "extreme [psychological] pain and [that he] made his medical problems known to the attendant prison personnel." Hodge, 1994 WL 519902, at *11; see Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir. 2000) ("rudeness and name-calling does not rise to the level of a constitutional violation"). Plaintiff has thus failed to show that Defendants acted with constitutionally cognizable culpability.

         Plaintiff also has not shown any injury or demonstrated that he was actually denied reasonable psychological care. Plaintiff, for instance, asserts that on January 18, 2006, he was able to speak to his therapist. (Pl.'s Aff ¶ 28.) Similarly, as to the January 23, 2007 incident, it appears that Plaintiff was able to visit with his therapist, despite Defendant Sarles conducting a pat frisk. (Am. Comp. ¶ 20.) Only as to the January 10, 2007 incident does Plaintiff assert that he did not see his therapist and asked to return to his cell because of threatening language from the guards. (Id. ¶ 29.)

         Even as to this isolated incident, however, Plaintiff has not alleged that his PTSD symptoms intensified or worsened, or any other related harm, as a consequence of not speaking with his therapist. See R.T. v. Gross, 298 F.Supp.2d 289, 296 (N.D.N.Y. 2003) ("Because Plaintiff has not submitted any verifiable evidence indicating that a failure to treat his condition adversely affected his prognosis, he cannot be said to be have had a serious medical need."). Thus, although Plaintiff asserts that Defendants' conduct placed him in "fear of going to the mental health unit for treatment, " (Pl.'s Aff ¶ 28), he cannot, as a matter of law, make out the objective or subjective prongs of a "deliberate indifference" claim on the record before the Court.[12]Defendants' motion for summary judgment is granted as to the claims encompassed by Plaintiffs fifth cause of action.

         4. Training and Supervision

         Plaintiffs tenth, twelfth, and thirteenth causes of action consist, in part, of claims that senior DOCCS officials, including Green Haven Superintendent Ercole, DOCCS Commissioner Fisher, and Green Haven Deputy Superintendent of Security Koskowski (collectively, the "Supervisory Defendants") failed to properly train and supervise their subordinates as to the delivery of Plaintiff s medical and mental health care. (See Am. Compl. 15-16.)

         In his tenth cause of action, Plaintiff alleges in part that the Supervisory Defendants failed to "ensure their subordinates were adequately and properly trained in dealing with mental health prisoners." (Id. at 15.) Similarly, in his twelfth cause of action, Plaintiff alleges in part that Defendants Ercole and Fisher "failed to ensure that [he] received effective, adequate meaningful medical treatment, [and also] fail[ed] to ensure that employees in the medical department were adhering to DOC[C]S health policies, directives, and patient bill of rights." (Id. at 16.) And in his thirteenth cause of action, Plaintiff alleges in part that Defendants Fisher and Ercole "failed to ensure, medical staff were adequately trained and properly supervised." (Id.)

         "It is well-settled that a supervisory defendant must have been personally involved in a constitutional deprivation to be held liable under § 1983." Brooks v. Prack, No. 13-CV-6338, 2014 WL 7499458, at *7 (W.D.N.Y. Dec. 31, 2014) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). In Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), the Second Circuit held:

[P]ersonal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

         More than a decade later, however, in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), the Supreme Court appeared to abrogate much of Colon, stating "vicarious liability is inapplicable to ... § 1983 suits, [so] a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."[13]

         The Court need not decide the continued validity of each of the five Colon methods for demonstrating personal involvement of a supervisory defendant because even assuming arguendo all five continue to be valid, Plaintiff has still not demonstrated the personal involvement of any of the Supervisory Defendants in the incidents giving rise to his medical. He has not alleged that the Supervisory Defendants participated directly in the acts comprising his medical claims (Colon prong one), or that the Supervisory Defendants directly participated in the adjudication of his various medical grievances and appeals (Colon prong two), or that the Supervisory Defendants created a policy or custom pursuant to which the allegedly ...


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