United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE
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).
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).
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
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).
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).
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).
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).
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).
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).
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
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).
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).
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).
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.).
Defendants' Motion for Summary Judgment
Standard of Review
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).
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).
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)).
Statute of Limitations
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).
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).
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.
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).
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).
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 ...