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Tolbert v. Koenigsmann

United States District Court, N.D. New York

March 2, 2018

DEMERIS TOLBERT, Plaintiff,
v.
CARL J. KOENIGSMANN, et al., Defendants.

         APPEARANCES:

          FOR PLAINTIFF: DEMERIS TOLBERT, Pro Se Attica Correctional Facility

          FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany

         OF COUNSEL:

          MELISSA A. LATINO, ESQ. Assistant Attorney General

          REPORT AND RECOMMENDATION

          DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE

         Pro se plaintiff Demeris Tolbert, a New York State prison inmate, has commenced this civil rights action, pursuant to 42 U.S.C. § 1983, against various medical employees stationed at the prison facility in which he was confined at the relevant times. In his complaint, plaintiff alleges that those defendants violated his Eighth Amendment rights by ignoring his serious medical needs, and his First Amendment rights by retaliating against him.

         Defendants have moved for the entry of summary judgment dismissing plaintiff's complaint in its entirety, arguing that plaintiff received constitutionally adequate and appropriate medical care while confined, and that he cannot establish a causal connection between the protected conduct and adverse action alleged in support of his retaliation claim.[1]Plaintiff opposes that motion, asserting the existence of genuine, triable issues of fact precluding summary dismissal of his claims. Because I find that no reasonable factfinder could conclude that defendants were deliberately indifferent to plaintiff's serious medical needs, or that he was retaliated against for complaining of their alleged indifference, I recommend that defendants' motion be granted in its entirety.

         I. BACKGROUND[2]

         Plaintiff is a New York State prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 1. Although he is currently incarcerated in the Attica Correctional Facility, located in Attica, New York, at the times relevant to his claims, he was confined in the Upstate Correctional Facility ("UCF"), located in Malone, New York. Id.

         Plaintiff's medical records reflect that he has several conditions, and is seen often by prison medical staff.[3] See generally Dkt. No. 145. His complaints range from, among other problems, constipation, Dkt. No. 145-1 at 65, high cholesterol, id. at 73, and acne, id. at 25. The primary conditions at issue in this case stem from medical care that he received in connection with a 25-year-old gunshot wound to his left lower extremity, as well as a skin condition. Dkt. No. 91-1 at 1-3, 6-7; Dkt. No. 144-7 at 3; Dkt. No. 145-1 at 5, 7, 58; Dkt. No. 149-2 at 185.

         A. Sick Call and Medication Protocols at the UCF

         "Sick call" is the DOCCS system by which an inmate may request and receive medical care for non-urgent, self-reported illnesses or injuries.[4] Dkt. No. 144-8 at 8; Dkt. No. 144-13 at 3; see generally Dkt. No. 144-10. Each individual prison facility is responsible for creating its own sick call procedures. Dkt. No. 144-8 at 8-9. Upon intake at a particular facility, such as the UCF, an inmate will receive medical orientation, which outlines how that facility handles the sick call procedure. Dkt. No. 144-8 at 8-9; Dkt. No. 144-10 at 2-3; Dkt. No. 144-13 at 3-4.

         In order to be seen by a medical provider, inmates at the UCF must "have their [cell] lights on, be clothed, and be standing at their door ready to discuss their medical concerns."[5] Dkt. No. 144-13 at 4. In addition, inmates are required to be "cooperative with the [n]urse" and not "act in any manner to interfere with sick call rounds." Id. If an inmate fails to follow the required protocol, he is considered as having "refused the sick call[.]" Id. If an inmate refuses sick call one day, he is still permitted to request sick call on the following day. Id. Moreover, if an inmate is in immediate distress, he can request emergency medical care. Dkt. Id.

         The UCF also has in place certain processes for the administration of medication to its inmate population, which defendants refer to as "med rounds." Dkt. No. 144-13 at 5. During the relevant time period, the UCF distributed medications to inmates three times per day. Id. Much like sick rounds, in order to receive medication, an inmate is required to be appropriately dressed, have the cell lights on, and behave cooperatively. Id. at 4-6. In addition, the inmate is required to provide his name and inmate number, in order to enable the nurse to verify that the inmate was receiving the correct medication and dosage. Id. at 4.

         The UCF also utilizes "one-to-one" medication administration. Dkt. No. 144-13 at 6. Under this protocol, once an inmate is provided with medication, he "must open his mouth, show the total number pills provided, swallow the medication, and show . . . his mouth and under his tongue after consumption." Id. If an inmate refuses to comply with this protocol, the nurse must issue an inmate misbehavior report. Id. An inmate's repeated refusal to comply will result in a "crush and dissolve order, " whereby medication is provided to the inmate in liquid form. Id.

         If an inmate fails to follow the protocol for med rounds, he is considered as having refused his medication. Dkt. No. 144-13 at 6. Although he will still be offered his next scheduled dosage (unless it is contradicted), the matter is referred to a physician for review following at least three medication refusals. Id. at 6-8.

         The medical records submitted by the parties reveal that plaintiff has a significant history of refusing or failing to comply with the sick call procedures. See generally Dkt. No. 145. In addition, those medical records indicate that he has frequently refused his medication. See generally id.

         B. Plaintiff's Medical Treatment at the UCF

         In June 2011, [6] plaintiff was transferred into the UCF, at which time he was placed directly into a special housing unit ("SHU") cell.[7] Dkt. No. 144-7 at 3. During the time that he was incarcerated at the UCF, plaintiff was seen by, and received a variety of treatment and medication from, various prison medical personnel. See generally Dkt. No. 145. Because plaintiff generally makes discrete allegations against the named defendants, I will outline those allegations as they pertain to each defendant.

         1. Defendant Renee Holmes

         Defendant Renee Holmes ("Nurse Holmes"), a registered nurse, was responsible for conducting both sick call and med rounds at the UCF, and, in that capacity, she had frequent interactions with plaintiff. Dkt. No. 144-13 at 1-2. During their first interaction, on June 9, 2011, Nurse Holmes documented that plaintiff was "angry, " "belligerent, " and threatening." Dkt. No. 145-1 at 61. Nonetheless, plaintiff makes far-reaching complaints regarding the medical treatment that he received from Nurse Holmes, alleging that she (1) failed to discretely and quietly discuss plaintiff's medical issues; (2) changed his medication schedule from morning and afternoon to morning and evenings; (3) provided him with liquid medication even though it caused him "dizziness and stomach pains"; (4) threatened to issue him an inmate misbehavior report and cease all medications if plaintiff refused to take his medication; and (5) was generally "mean" to plaintiff and denied him medical attention.[8] Dkt. No. 91 at 23-27. Plaintiff also alleges that because he complained regarding the liquid medication to another medical provider, Nurse Holmes retaliated against him by issuing a false inmate misbehavior report in August 2011. Dkt. No. 91 at 24-25.

         Plaintiff's medical records reveal that plaintiff was on a "crush and dissolve order" as early as June 4, 2011. Dkt. No. 145-1 at 60; see also Id. at 61 (indicating that plaintiff "drinks [the] rest" of his medication); Dkt. No. 145-3 at 13-15 (documenting plaintiff's refusal of crushed and dissolved medication). On June 17, 2011, the crush and dissolve order was discontinued, but one-to-one medication administration was continued. Dkt. No. 145-1 at 62; Dkt. No. 145-2 at 49. On July 12, 2011, however, plaintiff complained to Nurse Holmes that "[the] other nurse gave [him crushed and] dissolved meds." Dkt. No. 145-1 at 64. In response, Nurse Holmes advised plaintiff that it was "not [her] responsibility" and that he should address the issue at the time it occurred. Id.

         On August 3, 2011, Nurse Holmes documented the following in plaintiff's medical chart:

Sick call addressed, 1:1 meds given. Non-compliant. Inmate shows 3 round pills on tongue. Inmate on Baclofen, Ultram (has oblong pills Neurontin). Asked [the inmate] where [is] the med[?] States, "oh, I swallowed it." After 3 round[] pills swallowed asked if he's going to show me the other medicine, continues to argue. Advised provider will be made aware. [Misbehavior report] submitted. Note on 6/17/11 [indicates that the c]rush and dissolve orders were [discharged].

Dkt. No. 145-1 at 67. A Tier II disciplinary hearing was conducted to address the misbehavior report issued by Nurse Holmes in August 2011.[9] Dkt. No. 91-1 at 25. Following that hearing, plaintiff was found not guilty of unauthorized medication, [10] but guilty of refusing a direct order. Id.

         On August 4, 2011, plaintiff's chart was reviewed, and he was placed back on a crush and dissolve order by defendant Glenn Schroyer. Id. at 68. On August 6, 2011, plaintiff refused all crushed and dissolved meds. Id. at 69; Dkt. No. 145-3 at 10.

         Thereafter, on August 10, 2011, the following note was entered by Nurse Holmes in plaintiff's medical chart:

AM med rounds: [two] ointments, Ultram, baclofen, and Neurontin. Gives DIN wrong - asked to state again. Gives DIN quickly, smiling[, ] and wrong. Advised will be considered refusal (x4 wrong DIN given). Med disposed - witnessed by CO - CO told [plaintiff] that is not your DIN. Manipulative. Noted inmate has refused AM meds four other times this week.

Dkt. No. 145-1 at 70; see also Dkt. No, 145-3 at 8.

         The following day, a nurse practitioner reviewed plaintiff's chart and noted that plaintiff had refused Ultram on seven previous occasions. Dkt. No. 145-1 at 70. As a result, his dosage was reduced and his crush and dissolve order was continued. Id.

         2. Defendant William Parmer

         Defendant William Parmer ("N.P. Parmer"), a certified nurse practitioner, was employed by the DOCCS from 1999 until May 2012. Dkt. No. 144-11 at 1. In that position, he was responsible for the examination and treatment of inmates, including plaintiff, for their various medical conditions. Id. at 2.

         N.P. Parmer evaluated plaintiff on June 17, 2011, shortly after his arrival at the UCF. Dkt. No. 145-1 at 62. At that time, N.P. Parmer discontinued plaintiff's crush and dissolve order, but continued the one-to-one medication administration. Id. During that visit, plaintiff expressed that he wanted to continue his prior treatment regime for his skin condition, which according to plaintiff, included one topical cream for his genitals, one topical cream for his head, one topical cream for his feet and hands, a medicated soap, and lotion.[11] Dkt. No. 91 at 9; see Dkt. No. 91-1 at 2. In response to plaintiff's request, N.P. Parmer instead prescribed two topical creams-Clobetasol, a corticosteroid to reduce itching and redness, and Eucerin, to reduce dryness. Dkt. No. 144-11 at 3; Dkt. No. 145-1 at 62, 65, 66-84. N.P. Parmer also permitted plaintiff to have access to Neutrogena soap. Dkt. No. 144-11 at 3; Dkt. No. 145-1 at 65, 75.

         3. Defendant Richard Adams

         Defendant Richard Adams ("Dr. Adams"), a physician, has been employed by DOCCS since October 2007. Dkt. No. 144-12 at 3. Although Dr. Adams is assigned to the Clinton Correctional Facility, he occasionally provides medical services to inmates at the UCF. Id. According to plaintiff, when he was examined in October 2012, Dr. Adams refused to provide him a prescription for pain medicine, skin cream, soap, or ...


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