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Monroe v. Gerbing

United States District Court, S.D. New York

December 27, 2017

DWINEL MONROE, Plaintiff,
v.
SUPERINTENDENT KATHLEEN GERBING, OTISVILLE CORRECTIONAL FACILITY; COMMISSIONER ANTHONY J. ANNUCCI; CARL J. KOENIGSMANN, CHIEF MEDICAL OFFICER; P. EARLY, DEPUTY SUPERINTENDENT OF SECURITY; S. ROBERTS, DEPUTY SUPERINTENDENT OF ADMINISTRATION; KAREN BELLAMY, DIRECTOR OF GRIEVANCE; MRS. A. SMITH ROBERTS, DEPUTY SUPERINTENDENT OF PROGRAMS; MRS. MURRAY, NURSE ADMINISTRATOR; MR. WOLF, NURSE OF OTISVILLE CORRECTIONAL FACILITY; MRS. DR. FERDOUS; IMAN MAMOOD; NURSE ADMINISTRATOR MURRAY OF OTISVILLE CORRECTIONAL FACILITY; CHATERIA JACOBEN, SUPERINTENDENT OF WALLKILL CORRECTIONAL FACILITY; BRANDON J. SMITH, SUPERINTENDENT OF GREENE CORRECTIONAL FACILITY; MARIE HAMMOND, DEPUTY SUPERINTENDENT OF PROGRAMS; MR. F. STEINBACH, DEPUTY SUPERINTENDENT OF ADMINISTRATION; D. SMITH, HEAD DOCTOR OF GREENE CORRECTIONAL FACILITY; MRS. B. COLE, NURSE ADMINISTRATOR; MR. MILLER, DOCTOR OF GREENE/COXSACKIE CORRECTIONAL FACILITY; MR./MRS. T. JOHNSON, HEAD ORC OF GREENE CORRECTIONAL FACILITY; MR./MRS. L. MARDON, HEAD ORC OF GREENE CORRECTIONAL FACILITY; MRS. MILES, ORC OF GREENE CORRECTIONAL FACILITY; MR. BLACK, IGRC OFFICE SUPERVISOR OF GREENE CORRECTIONAL FACILITY; MR. MAURO, IGRC SUPERVISOR II OF GREENE CORRECTIONAL FACILITY; MRS. D. GLEBOCKI, OF OTISVILLE CORRECTIONAL FACILITY; HEAD DOCTOR HERBERT E. GOULDING; SERGEANT ANGELO ROSADO, JR., OTISVILLE CORRECTIONAL FACILITY RECEIVING ROOM-NOW A.K.A. LIEUTENANT ANGELO ROSADO; MARLYN KOPP, DEPUTY SUPERINTENDENT OF PROGRAMS; SID JOHNSTON, DEPUTY SUPERINTENDENT OF ADMINISTRATION; PATRICIA SUSEN, NURSE OF ADMINISTRATOR; DR. MARYANN GENOVESE, MEDICAL DIRECTOR; MRS. APPLE, STEWARD OF GREENE CORRECTIONAL FACILITY; MR. LOUIS, PACKAGE ROOM OFFICER; SERGEANT BRANT, PACKAGE ROOM SERGEANT; CAPTAIN DOUGLAS, PACKAGE ROOM CAPTAIN; MR. J. KUSISTO, GRIEVANCE IGRC SUPERVISOR/OFFICER, Defendants.

          Dwinel Monroe New York, NY Pro se Plaintiff

          Colleen K. Faherty, Esq. New York State Office of the Attorney General New York, NY Counsel for Defendants Anthony Annucci, Kathleen Gerbing, Carl Koenigsmann, Peter Early, Stephen Roberts, Karen Bellamy, Alicia Smith-Roberts, Peter Wolff, Razia Ferdous, Hafiz Mahmood, Rhonda Murray, Catherine Jacobsen, Brandon Smith, Marie Hammond, Francis Steinbach, Doreen Smith, Karen Cole, Jon Miller, Tracy Johnson McBride, Lori Mardon, Tracy Miles, Anthony Black, Thomas Mauro, Danielle Glebocki, Kathy Apple, Sergeant William Brandt, Captain Douglas, Dr. Maryann Genovese, Dr. Herbert Goulding, Sid Johnston, Marlyn Kopp, Aaron Lewis, and Patricia Susen

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Dwinel Monroe (“Plaintiff”), proceeding pro se, brings this Second Amended Complaint (“SAC”), pursuant to 42 U.S.C. § 1983, against Anthony Annucci (“Annucci”), Kathleen Gerbing (“Gerbing”), Carl Koenigsmann (“Koenigsmann”), Peter Early (“Early”), Stephen Roberts (“Roberts”), Karen Bellamy (“Bellamy”), Alicia Smith-Roberts (“Smith-Roberts”), Peter Wolff (“Wolff”), Razia Ferdous (“Dr. Ferdous”), Hafiz Mahmood (“Mahmood”), Rhonda Murray (“Murray”), Catherine Jacobsen (“Jacobsen”), Brandon Smith (“B. Smith”), Marie Hammond (“Hammond”), Francis Steinbach (“Steinbach”), Doreen Smith (“D. Smith”), Karen Cole (“Cole”), Dr. Jon Miller (“Dr. Miller”), Tracy Johnson McBride (“McBride”), Lori Mardon (“Mardon”), Tracy Miles (“Miles”), Anthony Black (“Black”), Thomas Mauro (“Mauro”), Danielle Glebocki (“Glebocki”), Kathy Apple (“Apple”), Sergeant William Brandt (“Brandt”), Captain Douglas (“Douglas”), Dr. Maryann Genovese (“Dr. Genovese”), Dr. Herbert Goulding (“Dr. Goulding”), Sid Johnston (“Johnston”), Marlyn Kopp (“Kopp”), Aaron Lewis (“Lewis”), and Patricia Susen (“Susen”) (collectively, “Defendants”), alleging that Defendants violated his constitutional rights by hindering the free exercise of his religious beliefs, inflicting cruel and unusual punishment with regard to his medical treatment, as well as violating his rights under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act by failing to make necessary accommodations for his medical needs. (See generally Second Amended Compl. (“SAC”) (Dkt. No. 48).) Before the Court are Defendants' Motions To Dismiss Plaintiff's SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Dkt. Nos. 53, 86.)[1] For the following reasons, the Motions are granted in part and denied in part.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiffs SAC and are taken as true for the purpose of resolving the instant Motions.

         1. Events at Otisville Correctional Facility

         Plaintiff is a 54-year old individual who has been imprisoned for at least the last five and a half years. (See SAC ¶ 21.) Plaintiff purports to be disabled, (see Id. ¶ 22), as he suffers from heart disease, Chronic Obstructive Pulmonary Disease (“COPD”), “back problems, ” and “other issues which are well [d]ocumented in his medical chart, (id. ¶ 30). Plaintiff also suffers from “many other sickness [sic] and illness [sic] that limit his abilities to walk, run, stand, bend and lift.” (Id. ¶ 31.) As a result of these ailments, Plaintiff walks with a cane. (See Id. ¶ 30.)

         On or about June 6, 2015, Plaintiff was transferred from Riverview Correctional Facility to Otisville Correctional Facility (“Otisville”). (See SAC ¶ 33.) Upon his arrival at Otisville, Plaintiff was escorted to the “draft processing room, ” where Angelo Rosado, Jr. (“Rosado”) took Plaintiffs cane while his handcuffs were removed. (Id. ¶ 34.) Plaintiff requested his cane back once his handcuffs were off, but was told by Rosado that, due to security concerns, Otisville did not allow canes until approved by a nurse and doctor. (See Id. ¶ 36.)[2] On either the same day or shortly thereafter, Plaintiff was called to the medical unit to meet with Wolff, a nurse at Otisville, as well as other medical staff, who took Plaintiffs vital signs and blood pressure, and then gave Plaintiff insulin for his diabetes. (See Id. ¶ 41.) While speaking with Wolff, Plaintiff asked about his cane and informed Wolff that he was experiencing back pain. (See Id. ¶ 42.) Wolff unsuccessfully attempted to locate Plaintiff's cane, and informed Plaintiff that security could not find it in the draft processing room. (See Id. ¶¶ 43-44.) Wolff informed Plaintiff that, until Plaintiff saw a doctor for further evaluation, he would be given a bus pass and bottom bunk pass to alleviate any issues that Plaintiff may have with his back pain. (See Id. ¶¶ 44-45.) Plaintiff then saw another health care provider at Otisville, Dr. Ferdous, and informed her that his back pain required use of a cane. (See id. ¶ 50.) Dr. Ferdous explained that Otisville did not allow canes, but that Plaintiff would be given a one year bus pass for transportation around the facility, as well as permanent assignment to a bottom bunk. (See id.)

         At an unspecified time, Plaintiff attended the facility orientation at Otisville, where the facility executive team-Gerbing, Early, and Smith-Roberts-informed new inmates of the rules and policies at the facility. (See Id. ¶¶ 53-54.) During this orientation, Plaintiff spoke with Gerbing, Early, and Smith-Roberts individually regarding his request for a cane, but none of these individuals addressed his request. (See Id. ¶¶ 55-58.) Plaintiff also made a written request to Smith-Roberts for a “reasonable accommodation” for his back pain, but again received no response. (Id. ¶ 62.)

         On June 18, 2015, Plaintiff made a request unrelated to his cane and back pain. Plaintiff, a professed Muslim, sought to participate in a fast during the month of Ramadan. (See id. ¶ 63.) Plaintiff met with Murray, the Nurse Administrator, and informed her that he intended to fast during Ramadan, which would require changing the time he took his medication and insulin to a time after sundown. (See Id. ¶ 64.) Murray said a doctor would need to approve this request and thereafter located Dr. Goulding. (See Id. ¶¶ 65-66.) Plaintiff reiterated his request to Dr. Goulding, who approved the schedule change. (See id. ¶¶ 67-68.) Yet, on June 24, 2015, roughly a week into Ramadan, Plaintiff was informed by Wolff that he would no longer be allowed to take his medicine after sundown, and thus would not be able to complete his fast. (See Id. ¶¶ 70-71.) Plaintiff wrote to Murray seeking an explanation, and was told that Wolff had consulted with Mahmood, an Imam that the facility, and decided that Plaintiff-who did not wish to forego his fast-was exempt from fasting under Islamic law due to medical necessity. (See id. ¶¶ 74, 79, 87.)

         On July 6, 2015, Plaintiff met with Dr. Ferdous and explained this situation. (See Id. ¶ 85.) Dr. Ferdous reinstituted the approval initially granted by Dr. Goulding and allowed Plaintiff to receive his medication after sundown. (See Id. ¶ 86.) However, two days later, Wolff again informed Plaintiff that he would not be allowed to move the timing of his medication for Ramadan. (See Id. ¶ 87.) Plaintiff then wrote to Dr. Goulding, who responded by rescinding both his prior order and the order of Dr. Ferdous that allowed him to receive his medication after sundown. (See Id. ¶ 88.) Plaintiff was informed that he could either receive his medication at the regular time or he could refuse his medication entirely. (See id.)

         After Ramadan, Plaintiff filed requests for “reasonable accommodations” regarding his cane and back pain with Annucci and Koenigsmann, who is the “Chief Doctor of the Department of Corrections, ” as well as Smith-Roberts, Early, Gerbing, Dr. Goulding, and Glebocki. (See id. ¶¶ 90-91.) Plaintiff was not granted access to a cane, and was ultimately transferred from Otisville to Wallkill Correctional Facility (“Wallkill”) on September 15, 2015. (See Id. ¶ 92.)

         2. Events at Wallkill Correctional Facility

         Plaintiff arrived at Wallkill on September 15, 2015, where he discovered he had been assigned to a room on the third floor. (See id. ¶ 102.) Plaintiff informed the officer on duty at the “P.C. Room” that he could not walk up to the third floor due to his back pain, as well as other medical conditions, including general difficulty breathing. (Id.) The officer informed Plaintiff that he could not do anything at that time, so Plaintiff proceeded to walk up four flights to his new room. (See Id. ¶¶ 102-104.) Plaintiff quickly realized he could not do this several times each day, so he went to the “clinic” and asked for an “emergency sick call.” (Id. ¶ 104.) At the clinic, Plaintiff informed Susen, the Nurse Administrator, that his back pain, asthma, and heart disease made it impossible to live on the third floor. (See Id. ¶¶ 106-08.) Susen said that she had called Dr. Genovese, the Medical Director at Wallkill, and that Plaintiff would be moved to the first floor. (See Id. ¶ 108.)

         The next day, Susen informed Plaintiff that she and Dr. Genovese were worried about Plaintiff carrying “nitro” around the facility and would prefer if he left it in the clinic. (Id. ¶ 109.) Plaintiff explained that it was “self carry” and needed to have it on his person in the event of an emergency. (Id.) Susen said she would have to speak to Dr. Genevose about this, though she knew that Dr. Genovese did not want him to carry the nitro around the facility. (See Id. ¶ 110.) Susen went to speak to Dr. Genovese, and upon her return informed Plaintiff that she could not locate Plaintiff's medical chart. (See Id. ¶ 111.) Dr. Genovese thereafter performed a medical evaluation of Plaintiff and ordered certain medical tests related to his age and stated health conditions. (See Id. ¶ 112.) Plaintiff asked Dr. Genovese about the use of a cane, as well as “other issues dealing with [his] health” and his medication. (See id.) Dr. Genovese informed Plaintiff that he would have to wait until a new medical chart was created, or his old chart was located, so his medical needs could be evaluated. (See id.)

         Plaintiff immediately filed a request for a “reasonable accommodation” with Deputy Superintendent of Programs Kopp, Deputy Superintendent of Administration Johnston, and Superintendent Jacobsen, seeking the return of his cane and an elevator pass. (Id. ¶ 113.) Kopp informed Plaintiff that Wallkill was a “working facility, ” that no inmates possessed canes, and the elevator was only used for laundry service. (See Id. ¶ 114.)

         Plaintiff did not receive his cane or an elevator pass prior to his transfer from Wallkill to Greene Correctional Facility (“Greene”) on October 1, 2015. (See id. ¶ 118.)

         3. Events at Greene Correctional Facility

         Upon his arrival at Greene on October 1, 2015, Plaintiff was brought to the draft room to pick up his property. (See Id. ¶ 128.) Plaintiff realized that one of his bags was open, (see id.), and when he returned to his room he noticed that “22 pouches w[ere] missing, ” (id.). Plaintiff believed that one of the individuals in the draft room stole his property, so he attempted to file a grievance. (See Id. ¶¶ 129-30.) He was informed by Black, the grievance supervisor at Greene, and Apple, the facility steward, that he could not file a grievance related to lost property and may only “file a claim.” (Id. ¶ 130.) Plaintiff timely filed this claim, but was not allowed to file a grievance “on due process.” (Id.) Ultimately, Plaintiff's claim regarding his lost property was denied. (See id.) Plaintiff later filed grievances about the theft of his property and lost mail at Greene, specifically against Lewis, Brandt, and Douglas, who Plaintiff claims stole his mail. (See Id. ¶ 147.)

         Plaintiff next filed a grievance requesting access to his cane, but upon being informed that Greene was not a “medical facility” by Deputy Superintendent for Administration Steinbach, Plaintiff proceeded to file a claim for a transfer from Greene. (See Id. ¶ 135.) Through this grievance process, Plaintiff determined that his medical level had been increased a level between his time at Otisville and Greene. (See Id. ¶ 136.)

         On his first Friday at Greene, Plaintiff asked to speak with the Muslim chaplain, Imam Gaber, about attending “Juma Services.” (Id. ¶ 137.) However, attending would require Plaintiff to walk a significant distance that he was physically unable to cover. (See id.) Plaintiff decided to file a new grievance, this time requesting access to Jumah Services either by way of a bus from his location to the services, or via transfer to Sullivan Correctional Facility. (See Id. ¶ 138.) Black informed Plaintiff that he should instead seek a reasonable accommodation, and if not satisfied with that result, refile his grievance. (See id.) Plaintiff took Black's advice and filed a request for a reasonable accommodation with Deputy Superintendent of Programs Hammond, and sent copes to Steinbach, Superintendent Smith, and Koenigsmann. (See Id. ¶ 139.) After reviewing Plaintiff's request, Hammond informed Plaintiff that she was granting him access to Jumah Services by moving it to the south gym, a mere “10 to 20 yards away from [Plaintiff's] dorm.” (Id. ¶ 140.) Yet, Plaintiff claims that the services were instead held in the “visiting room, ” which is “50 yards away” and resulted in pain for Plaintiff. (Id. ¶ 182.) Even still, Plaintiff would not be able to access any activities on the north side of Green, and thus filed another request for a reasonable accommodation on February 2, 2016. (See Id. ¶ 144.) This request went unheeded, so Plaintiff filed a grievance. (See id.) However, this grievance was determined to be untimely by Mauro. (See id.)

         In the meantime, Plaintiff received a cane at Greene from Dr. Miller. (See Id. ¶ 153.) However, Plaintiff continued to experience pain in his back and was given new medication that “became addictive” and caused “allergic reactions” when mixed with his existing medication. (Id.)

         As a result of the conduct taking place at Otisville, Wallkill, and Green, Plaintiff seeks damages for his mental and physical anguish, as well as declaratory relief, to remedy the alleged violation of his First, Eighth, and Fourteenth Amendment rights, as well as violations of the ADA and Rehabilitation Act.

         B. ...


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