United States District Court, N.D. New York
HARVEY 96-A-1003 Plaintiff pro se
OF THE NEW YORK MICHAEL G. MCCARTIN, AAG STATE ATTORNEY
GENERAL Attorneys for Defendants
OF THE NEW YORK C. HARRIS DAGUE, AAG STATE ATTORNEY GENERAL
Attorneys for Defendants
D'Agostino, U.S. District Judge
pro se Miguel Harvey, an inmate in the custody of
the New York State Department of Corrections and Community
Supervision ("DOCCS"), commenced this civil rights
action brought pursuant to 42 U.S.C. § 1983, asserting
claims arising from an incident that occurred on July 27,
2012, when he was incarcerated at Clinton Correctional
Facility ("Clinton"). See Dkt. No. 61,
1-2. Specifically, Plaintiff claims that after an alleged
assault from correctional officers (who are co-defendants in
this action), Defendant Waldron did not examine or treat him
for the injuries he said resulted from the assault, which
included (1) a broken nose; (2) black eyes; (3) headaches;
and (4) knee pain.
January 6, 2017, Defendants filed a memorandum of law in
support of Defendants' partial Motion for Summary
Judgment, seeking summary judgment on Plaintiff's Eighth
Amendment medical indifference claim against Defendant Nurse
Waldron. See Dkt. No. 59-7. In her motion, Defendant
Waldron argues that the undisputed facts demonstrate that
Plaintiff did not have a sufficiently serious medical need to
support his deliberate indifference claim. See Id.
at 7. Further, Defendant Waldron contends that Plaintiff has
failed to put forth any evidence that Defendant Waldron knew
of and purposefully ignored "an excessive risk to inmate
health or safety." Id. at 8. Finally, Defendant
Waldron contends that, even assuming that a question of fact
precludes summary judgment as to the merits of his claim, the
motion should nevertheless be granted because she is entitled
to qualified immunity. See Id. at 11-12.
August 1, 2017 Report-Recommendation and Order, Magistrate
Judge Stewart recommended that the Court grant Defendant
Waldron's motion for summary judgment. See Dkt.
No. 61 at 2, 11. In consideration of a Plaintiff's
pro se status, Magistrate Judge Stewart elected to
review the entire summary judgment record to ascertain the
undisputed material facts despite Plaintiff's failure to
respond to the pending motion. See Dkt. No. 61 at 2.
Magistrate Judge Stewart found that Plaintiff failed to
present a triable issue of fact regarding whether his knee
pain, black eyes, and headaches were objectively sufficiently
serious. See Id. at 9-10. Furthermore, as to the
subjective element of medical indifference, Magistrate Judge
Stewart recommended that the Court find that Plaintiff failed
to raise a triable issue of fact as to whether Defendant
Waldron acted with the requisite deliberate indifference in
treating him. See Id. at 10. Magistrate Judge
Stewart found that the video evidence of the examination
confirms that Defendant Waldron properly examined Plaintiff
by noting his complaints and treating his cuts with
bacitracin. As such, Magistrate Judge Stewart recommended
that the Court grant the motion on this ground. See
Id. at 2, 11.
may grant a motion for summary judgment only if it determines
that there is no genuine issue of material fact to be tried
and that the facts as to which there is no such issue warrant
judgment for the movant as a matter of law. See Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994)
(citations omitted). When analyzing a summary judgment
motion, the court "cannot try issues of fact; it can
only determine whether there are issues to be tried."
Id. at 36-37 (quotation and other citation omitted).
assessing the record to determine whether any such issues of
material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986))
(other citations omitted). Where the non-movant either does
not respond to the motion or fails to dispute the
movant's statement of material facts, the court may not
rely solely on the moving party's Rule 56.1 statement;
rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5
(2d Cir. 2003) (holding that not verifying in the record the
assertions in the motion for summary judgment "would
derogate the truth-finding functions of the judicial process
by substituting convenience for facts"). The Second
Circuit has opined that the court is obligated to "make
reasonable allowances to protect pro se
litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v.
Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007)
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). "However, this does not mean that a pro
se litigant is excused from following the procedural
requirements of summary judgment." Id. at 295
(citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL
527484, *1 (S.D.N.Y. May 16, 2001)).
carefully reviewed Magistrate Judge Stewart's
Report-Recommendation and Order, the parties'
submissions, and the applicable law, the Court finds that
Magistrate Judge Stewart correctly determined that the Court
should grant Defendant Waldron's motion for summary
judgment and dismiss this action. First, the Court finds that
Magistrate Judge Stewart correctly determined that courts in
this Circuit have held that black eyes, headaches, and knee
pain do not constitute a sufficiently serious condition.
See, e.g., Dallio v. Herbert, 678 F.Supp.2d 35,
60-61 (N.D.N.Y. 2009). While some district courts have found
that a broken nose may qualify as a sufficiently serious
condition, there is no evidence to suggest that a broken nose
detected in an x-ray of Plaintiff years after the fact was
caused by the incident at issue. See Lasher v. City of
Schenectady, No. 02-cv-1395, 2004 WL 1732006, *5
(N.D.N.Y. Aug. 3, 2004). Moreover, even if the Court found
that the broken nose occurred as a result of the use of force
and was not adequately treated, Defendant Waldron's
behavior would only amount to negligence, which is
insufficient to support an Eighth Amendment medical
indifference claim. See Farmer v. Brennan, 511 U.S.
825, 835 (1994). While the undisputed facts clearly establish
that Plaintiff disagrees with Defendant Waldron over the
treatment he received, his disagreement with the course of
treatment is insufficient to support his claim. See
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
on the foregoing, the Court finds that no reasonable jury
could find that Defendant Waldron acted with the requisite
deliberate indifference; and, therefore, Magistrate Judge
Stewart correctly recommended that the Court grant Defendant
Waldron's motion for summary judgment.
the Court hereby
that Magistrate Judge Stewart's Report-Recommendation and
Order is ADOPTED in its entirety; and the
that Defendant Waldron's motion for summary judgment
(Dkt. No. 59) is GRA ...