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Byrd v. City of New York

United States District Court, S.D. New York

January 2, 2018

ROBERT BYRD, Plaintiff,
v.
THE CITY OF NEW YORK, et al., Defendants.

          OPINION & ORDER

          ANDREW J. PECK, UNITED STATES MAGISTRATE JUDGE.

         Pro se plaintiff Robert Byrd brings this § 1983 action alleging constitutional violations resulting from alleged misconduct by certain correctional officials and medical personnel at the Vernon C. Bain Center ("VCBC") and North Infirmary Command ("NIC") correctional facilities. (See generally Dkt. No. 21: 1st Am. Compl.) Presently before the Court is defendants' summary judgment motion (see Dkt. No. 56: Defs. Notice of Mot.) asserting, inter alia, that Byrd's claims against all unserved defendants should be dismissed (see Dkt. No. 60: Defs. Br. at 1 n.1), and his claims against the served defendants, Correction Officer ("CO") Brumfield, Captain Tillery, Dr. Ramos, and the City of New York (collectively the "City" or "defendants"), fail on the merits (see generally Defs. Br. at 10-23). The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 47.) For the reasons set forth below, Byrd's claims against the unserved defendants are DISMISSED without prejudice, and summary judgment is GRANTED for the remaining defendants.

         FACTS

         The following relevant facts are undisputed for purposes of this motion. (See Dkt. 2 No. 60: Defs. Br. at 3-7 & n.3; see generally Dkt. No. 58: Defs. Rule 56.1 Stmt.)

         Beginning in April 2016, Byrd was incarcerated in VCBC. (Dkt. No. 21: 1st Am. Compl. ¶ 2; see Defs. Rule 56.1 Stmt. ¶ 2.) Byrd claims that while in VCBC, he was housed in general population with "a mixture of people that are murder[ers] and rapists, slashers, [and] things of that nature." (Dkt. Nos. 59-1, 59-2: Byrd Dep. at 50, 132; see Defs. Rule 56.1 Stmt. ¶ 89.) Byrd's complaint alleges that on April 20, 2016, he began experiencing an acute spike in blood pressure. (1st Am. Compl. ¶¶ 3-4.) He further alleges that although he complained to CO Kimbrough, he was not given needed blood pressure medication for two days and eventually "collaps[ed] from extreme high B.P. [and] needing his meds." (Id. ¶ 3.) According to Byrd, "due to the delay in receiving proper care" he "suffered injuries which now cannot be reversed, " including "los[s] of vision in his right eye, . . . retinal hemor[rh]aging, " and "damage . . . to his optic nerve [and] macular vessels of both eyes." (Id. ¶ 4.)

         Byrd asserts that on May 9, 2016, CO Brumfield entered his housing unit and "abusively . . . shout[ed] up a wave of threats against" him, stating that "[h]is stay [at] V.C.B.C. was going to be one he never forgot." (Id. ¶ 6; Defs. Rule 56.1 Stmt. ¶¶ 88-90.) Twenty minutes later, CO Brumfield again entered Byrd's housing unit and shouted that other inmates should not assist Byrd because he was not blind and that she saw him "driving a Mercedes Benz two weeks ago." (1st Am. Compl. ¶ 7; Defs. Rule 56.1 Stmt. ¶ 93; Byrd Dep. at 50-51.) According to Byrd, CO Brumfield "was trying to cause serious injuries with her words by absolutely irritating and agitating the inmate population." (Byrd Dep. at 53; Defs. Rule 56.1 Stmt. ¶ 92.)

         Byrd testified that CO Brumfield's actions

caused injury of blood pressure that had no reason for spiking out of control[, ] [e]scalation in the heart rate for not knowing what was going to happen, especially when you are asleep in an open dorm with 50 people. The coldness of the individuals until they found out different of how you're being treated when you are navigating walking around in a unit not being able to see where you are going. . . . The injury of inmates not wanting to assist based upon this lie that [CO Brumfield] told until a couple of weeks later when they realized it was a lie . . . .

         (Byrd Dep. at 52.) Byrd claims he experienced "serious dizziness, " "[s]evere chest pains" and sweating; "the only emotional injury" was that "[i]t was extremely stressful." (Id. at 54.)

         Byrd was transferred to NIC on May 19 or 20, 2016. (1st Am. Compl. ¶ 10; Defs. Rule 56.1 Stmt. ¶¶ 76-77.) He alleges that Captain Tillery "had control over" his property "after he was transfer[r]ed from V.C.B.C." (1st Am. Compl. ¶ 17; see Byrd Dep. at 68, 134.) That "property, which consisted of clothing, debit/credit cards, wallet, driver[']s license, bank receipts, corporate info, all came up missing by the time [Byrd] reached N.I.C." (1st Am. Compl. ¶ 17; see Defs. Rule 56.1 Stmt. ¶¶ 103, 108; Byrd Dep. at 87.) Byrd testified that Captain Tillery "refus[ed] to tell [him] that [his property] w[as] missing." (Byrd Dep. at 82; Defs. Rule 56.1 Stmt. ¶ 104.)

         Byrd asserts that he needed access to his property to make copies of his bank cards and ID card, in order to acquire new bank cards necessary to post bail. (Byrd Dep. at 69-70; Defs. Rule 56.1 Stmt. ¶¶ 109-10.) Byrd testified that Captain Tillery and correction officials "conspired by covering up and not allowing [him] to take copies of what was necessary to post [his] bail." (Byrd Dep. at 68; see Defs. Rule 56.1 Stmt. ¶¶ 103-05.) Specifically, Captain Tillery allegedly provided Byrd with incorrect forms, which resulted in denial of his request to retrieve his property. (Byrd Dep. at 68-69.) Byrd testified that as a result of Captain Tillery's actions, he suffered "emotional stress and the pain and suffering, the headaches" and "numerous nose bleeds . . . due to not knowing . . . what was going on with the property so [he could] post" bail. (Byrd Dep. at 69-70.)

         While at NIC, between May 23 and June 3, 2016, Byrd "had problems trying to get an eye appointment" and was not given "a real blind cane, [or a] treatment work-up to have surgery." (1st Am. Compl. ¶ 10; see Byrd Dep. at 157.) Byrd was made "to wait 11 days to see an eye doctor." (1st Am. Compl. ¶ 10) According to Byrd, defendant Dr. Ramos "was the main doctor in charge of all the doctors at N.I.C. at the time." (Byrd Dep. at 163; Defs. Rule 56.1 Stmt. ¶ 83.) Byrd asserts that Dr. Ramos was at least partly responsible for delays in seeing an eye specialist, and that Dr. Ramos would "avoid speaking to [Byrd] regarding medical plans" by remaining silent while making rounds because he knew Byrd was blind. (1st Am. Compl. ¶ 11.) Dr. Ramos "also continued to write prescriptions for [Byrd] that he had allergies to." (Id.) Byrd asserts that on 124 occasions, his treating physicians and nurses failed to ensure that his vital signs were taken and/or recorded by 10:00 A.M. (Id. ¶ 19; see Byrd Dep. at 157.) Byrd also alleges that Dr. Ramos purposefully falsified his blood pressure readings. (Defs. Rule 56.1 Stmt. ¶ 85; Byrd Dep. at 157, 163.)

         SERVICE OF PROCESS

         Byrd filed this case on March 24, 2017. (See Dkt. No. 2: Compl.) On April 21, 2017, Judge Daniels issued an Order of Service requesting, inter alia, that defendants waive service of summons as to all individually named corrections staff (Dkt. No. 6: Order of Service at 3-4) and provide residential addresses for the individually named DOC medical personnel (id. at 3). On May 1, 2017, defense counsel filed an executed waiver of service for defendants CO Brumfield and Captain Tillery (Dkt. No. 9: 5/1/17 Executed Waiver of Service); counsel filed an unexecuted waiver of service for all remaining correction officials (Dkt. No. 10: Unexecuted Waiver of Service). On May 22, 2017, defense counsel filed an executed waiver of service for the City. (Dkt. No. 12: 5/22/17 Executed Waiver of Service.) On July 31, 2017, the U.S. Marshal's Office filed a Return of Service Unexecuted for defendant Iyisha Bowen/Bowman. (Dkt. No. 29: Return of Service.) On August 7, 2017, defense counsel filed an executed waiver of service for defendant Dr. Ramos. (Dkt. No. 33: 8/7/17 Executed Waiver of Service.) Thus, the defendants properly served at this time are the City, CO Brumfield, Captain Tillery and Dr. Ramos.

         The City notes (see Dkt. No. 60: Defs. Br. at 1 n.1) that Byrd still has not served the other defendants in this matter, and that the time to do so has passed under Fed.R.Civ.P. 4(m). Although Byrd's filings on the instant motion appear to take issue with the City's unexecuted waivers of service (see, e.g., Dkt. No. 71: Byrd Resp. Stmt. Of Facts ¶¶ 11-12 & p.18), he never raised service issues with the Court, nor does he now seek Court permission to serve those defendants beyond the 120-day period. Byrd's claims against the unserved defendants-that is, all defendants except the City, CO Brumfield, Captain Tillery and Dr. Ramos-accordingly are DISMISSED without prejudice. See, e.g., Spencer v. Ellsworth, 09 Civ. 3773, 2011 WL 1775963 at *4 (S.D.N.Y. May 10, 2011).

         ANALYSIS

         I. SUMMARY JUDGMENT STANDARDS

         Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant 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); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Humphreys v. Cablevision Sys. Corp., 553 Fed.Appx. 13, 14 (2d Cir. 2014); Connolly v. Calvanese, 515 Fed.Appx. 62, 62 (2d Cir. 2013); Lang v. Ret. Living Publ'g Co., 949 F.2d 576, 580 (2d Cir. 1991).

         The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Alzawahra v. Albany Med. Ctr., 546 Fed.Appx. 53, 54 (2d Cir. 2013); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53; Dolan v. Cassella, 543 Fed.Appx. 90, 90 (2d Cir. 2013).

         To defeat a summary judgment motion, the non-moving party "'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is genuinely disputed." Fed.R.Civ.P. 56(c)(1); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Alzawahra v. Albany Med. Ctr., 2013 WL 6284286 at *1; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (at summary judgment, "[t]he time has come . . . 'to put up or shut up'"), cert. denied, 540 U.S. 811, 124 S.Ct. 53 (2003).

         In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.[1] The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

         In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[, ] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.

         "The Court recognizes that it must extend extra consideration to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F.Supp. 526, 535 (S.D.N.Y. 1998) (Peck, M.J.) (citations & internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").[2] "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion, ' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).[3]

         II. DEFENDANTS ARE GRANTED SUMMARY JUDGMENT ON BYRD'S FOURTEENTH AMENDMENT CLAIMS AGAINST CO BRUMFIELD AND DR. RAMOS [4]

         As a pretrial detainee, Byrd's federal constitutional claims are governed by the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983 (1983); accord, e.g., Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Bradshaw v. City of N.Y., 17 Civ. 1199, 2017 WL 6060781 at *10 n.10 (S.D.N.Y. Dec. 7, 2017) (Peck, M.J.). "A pretrial detainee's claims are evaluated under the Due Process Clause because, '[p]retrial detainees have not been convicted of a crime and thus "may not be punished in any manner-neither cruelly and unusually nor otherwise."'" Darnell v. Pineiro, 849 F.3d at 29.

         A. Claims ...


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