United States District Court, S.D. New York
OPINION & ORDER
J. PECK, UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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.)
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.)
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 . . . .
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
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.)
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.)
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.)
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.
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).
SUMMARY JUDGMENT STANDARDS
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).
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).
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).
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. 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.
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.
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'"). "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
DEFENDANTS ARE GRANTED SUMMARY JUDGMENT ON BYRD'S
FOURTEENTH AMENDMENT CLAIMS AGAINST CO BRUMFIELD AND DR.
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.