United States District Court, S.D. New York
OPINION AND ORDER
ABRAMS, United States District Judge
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.
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.)
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
PlaintiffThe 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.
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
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
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
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.
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.
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.
The Factual Record
Treatment of Plaintiff's Chronic Back
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.
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.)
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.
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
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.)
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.)
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. ¶¶
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.
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.)
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.)
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,
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.)
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.
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.)
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.)
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 ¶
Green Haven, Plaintiff alleges that he was without
"special issue boots from December 2006, [u]ntil August
2007." (Am. Compl. ¶ 13.) Plaintiffs account of this
issue is inconsistent, disputed by Defendants, and contrary
to the record.
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.
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.
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.
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.)
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.)
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. ¶
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.)
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.)
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.)
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.
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.
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.
"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).
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.
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
to this framework, the Court analyzes each of Plaintiff s
"deliberate indifference" causes of action, in
Deliberate Indifference to Serious Medical Needs
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
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. 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
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, 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
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. 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.)
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
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.
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. 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.
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.)
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.
Interference with Pain Medication
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).
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
motion for summary judgment is granted as to Plaintiffs
fourth cause of action.
Access to Mental Health Treatment
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.
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.
"[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.
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.)
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.Defendants' motion for summary
judgment is granted as to the claims encompassed by
Plaintiffs fifth cause of action.
Training and Supervision
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.)
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."
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
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."
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 ...