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Crichlow v. Fischer

United States District Court, W.D. New York

March 7, 2017

BRIAN FISCHER et al., Defendants.




         Plaintiff Kevin Damion Crichlow ("Plaintiff) filed this action pursuant to 42 U.S.C. § 1983 in the Southern District of New York on October 16, 2012. (Dkt. 2). Plaintiff filed an amended complaint seeking relief against 136 Defendants on June 17, 2013. (Dkt. 12). The action was transferred to this Court on April 28, 2015. (Dkt. 168). The action was then severed by this Court on February 10, 2017. (Dkt. 223). Following severance, 35 Defendants (together "Defendants") remain. (See Id. at 5-6).

         Presently before the Court are: Defendants' motion for summary judgment (Dkt. 177); Plaintiffs motion for discovery (Dkt. 182); Plaintiffs motion to appoint counsel (Dkt. 182); Plaintiffs motion for a stay (Dkt. 182); Plaintiffs motion for a medical exam (Dkt. 187); Plaintiffs motion for reconsideration (Dkt. 192); Plaintiffs motion to amend (Dkt. 192); Plaintiffs motion for a hearing (Dkt. 192); Defendants' motion for sanctions (Dkt. 195); and Plaintiffs motion for sanctions (Dkt. 198).

         For the reasons stated below, Defendants' motion for summary judgment is granted in part and denied in part; Plaintiffs motion for discovery is denied without prejudice; Plaintiffs motion to appoint counsel is denied without prejudice; Plaintiffs motion for a stay is denied without prejudice; Plaintiffs motion for a medical exam is denied; Plaintiffs motion for reconsideration is denied; Plaintiffs motion to amend is denied as moot; Plaintiffs motion for a hearing is denied; Defendants' motion for sanctions is denied without prejudice; and Plaintiffs motion for sanctions is denied.

         I. Plaintiffs Allegations

         Plaintiffs amended complaint spans 142 pages. (See Dkt. 12). Following severance of the action into three separate parts, this Court retained Plaintiffs claims in which he asserts violations of his constitutional rights by Defendants relating to Plaintiffs incarceration at the Wende Correctional Facility ("Wende") and treatment at Wyoming Community Hospital. (See Dkt. 223).

         Plaintiff alleges actions occurring at Wende beginning on or about September 27, 2008-the date Plaintiff was transferred to Wende-through his transfer to Eastern Correctional Facility on November 16, 2010. (See Dkt. 12 at 14-36; Dkt. 12-1 at 1-12).

         Plaintiff alleges inadequate or nonexistent medical care throughout his incarceration at Wende, in violation of the Eighth Amendment. Plaintiff argues that he was not provided mental health treatment as required (Dkt. 12 at 19), and that he was "unreasonably exposed to infectious disease" (id. at 25, 36; Dkt. 188 at 35-36, 38-39). Plaintiff alleges deficient dental care from "2008 into 2013 at 3 [New York Department of Corrections and Community Supervision] prisons." (Dkt. 12 at 36). He contends he was not provided care for "alot of pain hip, jaw, hand, tooth's also need replacement of four's lost teeths & restoration of function and 'oral surgery & periodontics.'" (Id. at 31; see, e.g., Dkt. 12-1 at 1). Plaintiff further alleges that he was denied dental care at Wende on June 30, 2008, to fix a "broken jaw." (Dkt. 12 at 36). As to his medical care, Plaintiff states that Defendant George Boucher, M.D., was grossly negligent in misdiagnosing an injury to Plaintiffs hand, which led to Plaintiffs receiving the "wrong surgery" on January 13, 2010. (Dkt. 12-1 at 2). Plaintiff complains that he was denied treatment for "injuries hip, back, shoulder, head" for "about 68 months." (Id. at 3). Plaintiff also asserts that he was subjected to a risk of disease due to asbestos in Wende. (Dkt. 12 at 21-24, 31; Dkt. 188 at 35).

         Plaintiff also charges he was deprived of adequate nutrition and hygiene while incarcerated at Wende. Plaintiff claims that from April to September 2009, Defendants CO. Bartels and CO. Kevin Barlow "routinely deprived [Plaintiff] . . . meaningful opportunities for yard, food, shower, exercise, adequately nutrition." (Dkt. 12 at 25). He makes similar claims against Defendants CO. Richard Brooks ("Brooks") (id. at 32), and CO. Alicia Humig ("Humig") (id. at 26). Plaintiff complains that he was "taken off of a mandatory religious diet for months because he was not allowed to go to the mess hall. (Id. at 32). Plaintiff also alleges that because he is H.I.V. positive, a nutritious diet is critical to his health, and he was deprived of such a diet. (Dkt. 12-1 at 1, 3). Plaintiff asserts that on November 11, 2009, Humig and Defendant Sergeant Paul Olszewski ("Olszewski") refused to let him out of his cell, and placed him in keeplock for about six weeks. (Dkt. 12 at 32). Plaintiff further alleges that he was refused basic laundry services from 2008 through November 1, 2009. (Id. at 27).

         Plaintiff complains that Defendant T.M.C. Christopher Zaluski ("Zaluski") and others failed to provide reasonable accommodations for Plaintiffs hearing disability. (Dkt. 12 at 14-16; Dkt. 12-1 at 1). Plaintiff alleges that he was in New York Department of Corrections and Community Supervision ("DOCCS") custody for six months before receiving hearing aids. (Dkt. 12 at 30; Dkt. 12-1 at 1). He also claims that he was denied equal access to opportunities and recreation in Wende because of his hearing disability, and that the failure to accommodate his hearing disability was retaliation for his standing up for himself and other disabled inmates. (Dkt. 12 at 33-35; Dkt. 12-1 at 11-12).

         Plaintiff claims he was harassed and verbally abused while at Wende. He alleges numerous instances of sexual harassment by Defendant CO. Attea, and states that he reported such harassment to others, including the superintendent of Wende. (Id. at 17-18, 19, 31). Plaintiff claims that on June 18, 2010, Brooks verbally abused and threatened Plaintiff. (Dkt. 12-1 at 8-9). Plaintiff asserts CO. Corey Petties verbally abused and threatened Plaintiff on July 12, 2010. (Id. at 9-10). Plaintiff alleges that DOCCS has a "common practice to encourage and further its employee's, and officers discrimination and harassment and assault and [deprivation] of proper nutrition." (Dkt. 12 at 20).

         Plaintiff also raises Fourteenth Amendment due process claims. Plaintiff complains of unspecified disciplinary proceedings that led a total of 180 days of disciplinary confinement between 2008 and 2010. (Id. at 29). Plaintiff claims his due process rights were violated because of the handling of "over 150" grievances filed through November 16, 2010, by Defendants Director Karen Bellamy ("Bellamy") and Sergeant William Scott ("Scott"). (Id. at 27-30). Plaintiff asserts that he was retaliated against for filing grievances and that no investigations were conducted into his claims. (Id. at 28). Plaintiff states that he filed over 300 grievances. (Dkt. 209-3 at 8; see, e.g., Dkt. 211 at 1).

         He also alleges that on July 4, 2010, CO. Hojsan destroyed Plaintiffs legal documents in the Wende law library, thereby depriving Plaintiff of an opportunity to be heard by the courts. (Dkt. 12-1 at 10-11). Hojsan also allegedly denied Plaintiff access to the law library. (Id. at 11).

         Plaintiff complains that a fire broke out in his cell block on April 12, 2010, and that the correctional officers in the area, including Olszewski, failed to respond to calls for help. (Id. at 6-7). Plaintiff claims that he was denied "fresh-air" and was thereafter denied medical care. (Id. at 7).

         Plaintiff further contends that on some unspecified date Zaluski instructed others not to let Plaintiff out of his cell, in retaliation for Plaintiffs filing of grievances against Zaluski. (Dkt. 12 at 30).

         Plaintiff complains that Defendant Brian Fischer ("Fischer")-the commissioner of DOCCS during Plaintiffs incarceration at Wende-knew of constitutional violations against Plaintiff and failed to take action. (Dkt. 12-1 at 4-5). Plaintiff states that he personally sent "several letters" detailing inadequate health care and assault. (Id. at 4). Plaintiff also contends that Defendants "disregarded conditions posing an excessive risk to [his] health and safety. . ., " and that prison staff was inadequately trained. (Id.).

         II. Defendants' Motion for Summary Judgment

         A. Standard of Review

         Federal Rule of Civil Procedure 56 provides that summary judgment should be granted if the moving party establishes "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). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The standard for granting summary judgment is the same whether the motion is made in lieu of an answer or after discovery has occurred. See Anderson v. Rochester-Genesee Reg'I Transp. Autk, 337 F.3d 201, 206 (2d Cir. 2003).

         Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita Elec, 475 U.S. at 586-87). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         "[A] party may file a motion for summary judgment at any time until 30 days after the close of all discovery." Fed.R.Civ.P. 56(b). But, summary judgment is generally not appropriate until after some discovery has occurred. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating that summary judgment is appropriate on the proper showing "after adequate time for discovery"); see, e.g., Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) ("[S]ummary judgment should only be granted if after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof." (emphasis original) (internal quotation marks and citations omitted)). "Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery." Hellstrom, 201 F.3d at 97; see also Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) ("The nonmoving party should not be 'railroaded' into his offer of proof in opposition to summary judgment." (citing Celotex, 477 U.S. at 326)).

         B. Statute of Limitations

         Defendants argue that some of Plaintiff s claims are time-barred by the statute of limitations. (Dkt. 177-5 at 3). "In [§] 1983 actions, the applicable limitations period is found in the 'general or residual state statute of limitations for personal injury actions. . . .'" Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). A § 1983 action filed in New York is subject to a three-year statute of limitations. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013).

         Here, Plaintiff filed this action October 16, 2012. (Dkt. 1). Therefore, any claim arising before October 16, 2009, is barred by the statute of limitations. Plaintiff points to the "continuing violation doctrine" to save his otherwise time-barred claims. (Dkt. 209-3 at 21-22).

[The continuing violation doctrine] applies to claims composed of a series of separate acts that collectively constitute one unlawful practice. The continuing violation doctrine thus applies not to discrete unlawful acts, even where those discrete acts are part of a serial violation, but to claims that by their nature accrue only after the plaintiff has been subjected to some threshold amount of mistreatment. Accordingly, where the continuing violation doctrine applies, the limitations period begins to run when the defendant has engaged in enough activity to make out an actionable claim. A claim will be timely, however, only if the plaintiff alleges some non-time-barred acts contributing to the alleged violation.

Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015). Although the continuing violation doctrine generally applies to claims "composed of a series of separate acts that collectively constitute one unlawful practice, " id. at 220, a plaintiff "must allege both the existence of an ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy." Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013) (quoting Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999)); see, e.g., Shomo v. City of N.Y., 579 F.3d 176, 182 (2d Cir. 2009).

         Here, Plaintiff alleges four patterns of conduct which occurred both before and after October 16, 2009: (1) denial of adequate medical and dental treatment; (2) denial of adequate nutrition and hygiene; (3) discrimination and failure to accommodate based on Plaintiffs disability; and (4) denial of due process rights.

         The continuing violation doctrine applies to Eighth Amendment claims for deliberate indifference to medical needs. See Shomo, 579 F.3d at 182 ("[T]he continuing violation doctrine can apply when a prisoner challenges a series of acts that together comprise an Eighth Amendment claim of deliberate indifference to serious medical needs."). Plaintiff raises a number claims that he was denied adequate medical and dental treatment, which, taken together, could comprise an Eighth Amendment claim for deliberate indifference to serious medical needs. Plaintiff also complains of ongoing deprivations of adequate food and access to showers and laundry. Prison officials' Eighth Amendment obligations require that they "ensure that inmates receive adequate food, shelter, and medical care. . . ." Farmer v. Brennan, 511 U.S. 825, 833 (1994).

         Defendants argue that Plaintiff failed to allege the existence of a policy of deliberate indifference. (Dkt. 196-2 at 10). The Court disagrees. Plaintiffs amended complaint includes allegations that senior prison officials, including Fischer, knew of ongoing violations related to Plaintiffs inadequate heath care but failed to take action. Plaintiff claims he sent letters to Fischer to point out the inadequacies of his health care at Wende. Plaintiff also attaches a reply letter from Bellamy in which Bellamy states that she is responding to Plaintiffs letters on behalf of "governor Cuomo and Commissioner Fischer." (Dkt. 209-4 at 2). Plaintiff also asserts that the practices complained of "are widespread, longstanding, and deeply embedded in the culture of all [DOCCS] agenc[ies], constitut[ing] unwritten [DOCCS] policies & customs." (Dkt. 12-1 at 5).

         Similarly, the amended complaint can be read as alleging a continuing violation as to Defendants' indifference to Plaintiffs nutrition and hygiene needs. Plaintiff alleges that he was routinely deprived of meaningful opportunities to shower and exercise, and was not provided adequate nutrition. (Dkt. 12 at 25; see, e.g., Id. at 26). Plaintiff states that while he was in keeplock, corrections officers were told not to feed him. (Id. at 26). He also claims that he was only allowed ...

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