United States District Court, N.D. New York
PLAINTIFF: DEMERIS TOLBERT, Pro Se Attica Correctional
DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney
General The Capitol Albany
MELISSA A. LATINO, ESQ. Assistant Attorney General
REPORT AND RECOMMENDATION
E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
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.
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.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.
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.
medical records reflect that he has several conditions, and
is seen often by prison medical staff. 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.
Sick Call and Medication Protocols at the UCF
call" is the DOCCS system by which an inmate may request
and receive medical care for non-urgent, self-reported
illnesses or injuries. 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.
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." 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.
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.
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.
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.
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.
Plaintiff's Medical Treatment at the UCF
2011,  plaintiff was transferred into the UCF, at
which time he was placed directly into a special housing unit
("SHU") cell. 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.
Defendant Renee Holmes
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. 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.
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.
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
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. Dkt. No. 91-1 at 25.
Following that hearing, plaintiff was found not guilty of
unauthorized medication,  but guilty of refusing a
direct order. Id.
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.
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.
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.
Defendant William Parmer
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.
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. 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.
Defendant Richard Adams
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 ...