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Reeder v. Uhler

United States District Court, N.D. New York

September 10, 2019

RASZELL REEDER, Plaintiff,
v.
DONALD UHLER, et al., Defendants.

          RASZELL REEDER PLAINTIFF, PRO SE

          HON. LETITIA JAMES ATTORNEY GENERAL OF THE STATE OF NEW YORK ATTORNEY FOR DEFENDANTS

          WILLIAM A. SCOTT, ESQ. ASSISTANT ATTORNEY GENERAL

          REPORT-RECOMMENDATION AND ORDER

          DANIEL J. STEWART United States Magistrate Judge.

         I. INTRODUCTION

         On September 23, 2016, pro se Plaintiff Raszell Reeder commenced this action pursuant to 42 U.S.C. § 1983, asserting claims arising from his confinement at Upstate Correctional Facility (“Upstate”). Dkt. No. 1, Compl. Following initial review of the Complaint and after receiving leave from the Court, Plaintiff filed an Amended Complaint on May 21, 2018. Dkt. No. 65, Am. Compl. Plaintiff's Amended Complaint contains the following seven causes of action brought under 42 U.S.C. § 1983:

1. An Eighth Amendment excessive force/failure to intervene claim arising out of an incident that occurred at Upstate on October 31, 2015.
2. An Eighth Amendment excessive force/failure to intervene claim arising out of an incident at Upstate which occurred on November 2, 2015.
3. A Fourteenth Amendment due process claim against the hearing officer who conducted the disciplinary hearing which was held as a result of the November 2, 2015 incident.
4. An Eighth Amendment conditions of confinement claim arising out of alleged denial of meals.
5. An Eighth Amendment conditions of confinement claim arising out of alleged denial of recreation for a period of three years.
6. A supervisory liability claim against the Superintendent of the Clinton Correctional Facility, Defendant Uhler.
7. An Eighth Amendment deliberate medical indifference claim against Dr. Kumar, for his alleged failure to treat Plaintiff for herpes and thyroid cancer.

Am. Compl. at pp. 3-20.[1]

         Presently before this Court is Defendants' Motion for Summary Judgment. Defendants contend that Plaintiff failed to exhaust his administrative remedies as to his excessive force claims, his procedural due process claim, and his conditions of confinement claim premised upon his failure to receive meals; that summary judgment is warranted on all of Plaintiffs conditions of confinement claims; that Plaintiffs Eighth Amendment deliberate indifference claim against Defendant Dr. Kumar fails as a matter of law; that all of Plaintiff s claims alleging supervisory liability are unsupported; that the Hearing Officer provided Plaintiff with all required due process during the disciplinary hearing; and that the failure to intervene claims against Defendants Drumm, Smith, and Bishop should be dismissed for lack of personal involvement. Dkt. No. 124, Defs.' Mot. Summ. J.; Dkt. No. 124-1, Defs.' Mem. of Law. Plaintiff opposes Defendants' Motion for Summary Judgment, Dkt. No. 129, Pl.'s Resp., and Defendants have replied, Dkt. No. 132, Defs.' Reply. The Court finds that Plaintiff: (1) failed to exhaust his administrative remedies as to certain claims; (2) failed to show there is a material question of fact as to whether Dr. Kumar was deliberately indifferent to his serious medical needs; and (3) failed to establish that any Defendant was personally involved in the alleged deprivation of recreation.

         II. BACKGROUND

         A. Plaintiff's Failure to File a Response to Defendants' Rule 7.1 Statement

         Pursuant to this District's Local Rules, “[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” N.D.N. Y.L.R. 7.1(a)(3). As required by the Local Rules, Defendants' counsel advised Plaintiff of the consequences of failing to file a response to Defendants' Rule 7.1 Statement of Material Facts. Dkt. No. 124 at p. 4. Plaintiff, however, did not file a response to Defendants' Statement of Material Facts. See Pl.'s Resp. “Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules.” Marino v. Watts, 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed.Appx. 73 (2d Cir. 2019). The Court therefore will deem the facts as set forth in Defendants' Statement of Material Facts admitted, to the extent they are properly supported by the record. Dkt. No. 124-4, Defs.' Rule 7.1 Statement of Material Facts (“Defs.' SMF”).

         B. Factual Background

         Plaintiff alleges that while housed at Upstate on October 31, 2005, he was the victim of an assault by DOCCS staff at the direction of Lt. Salls. Am. Compl. at p. 3. Plaintiff alleges that Corrections Officer Donah, who was not in proper formation, twisted his fingers with excessive force causing pain “for 50 seconds, ” and that CO. Drumm and Lt. Salls were present but did not intervene to prevent the conduct. Id. Defendants Salls, Drumm and Donah have denied the allegations. See Dkt. No. 85, Defs.' Answer to Am. Compl.; Dkt. No. 124-5, Drumm Decl., pp. 2-3; Dkt. No. 124-12, Donah Decl., pp. 2-3. The particular facts underlying these allegations are not relevant to the Motion and, therefore, are not discussed in detail. What is significant, however, is that there is no record of a timely grievance being filed with respect to this incident. See Defs.' SMF at ¶¶ 251-256; Dkt. No. 124-28, Seguin Decl., ¶¶ 17-23; Dkt. No. 124-29, Debyah Decl., ¶¶ 13-21.

         Next, Plaintiff alleges that he was again the subject of excessive force after his transport to cell 11-A-17 on November 2, 2015. Am. Compl. at pp. 4, 6, & 9. Plaintiff maintains that he was assaulted by a number of Defendants. Id. Other Defendants are alleged to have failed to intervene and put an end to this infliction of cruel and unusual punishment. Id. Defendants, for their part, maintain that Plaintiff failed to comply with orders, bit one officer and kicked another's face shield, and that any force used upon him was necessary to maintain order and control over Plaintiff. See Dkt. No. 124-6, Fletcher Decl., pp. 2-3. Once again, the facility has no record of a timely grievance being filed by Plaintiff regarding this incident. Defs.' SMF at p. 29; Seguin Decl. at pp. 5-6.

         As a result of the November 2, 2015, incident Plaintiff was issued numerous inmate misbehavior reports, including for alleged violent conduct, assault on staff, interference with employee, refusing a direct order, and participation in an unhygienic act. Dkt. No. 124-9, Zerniak Decl., ¶¶ 10-13. Plaintiff alleges that he was denied his Fourteenth Amendment right to due process because he was denied a tier assistant, and his request to view footage from the video cameras that captured the use of force incident was also denied. Am. Compl. at p. 6. Plaintiff also claims that he was not permitted to attend or participate in the disciplinary hearing. Id. At the end of the hearing Plaintiff was found guilty, and sentenced to 730 days confinement in the special housing unit (“SHU”). Zerniak Decl. at ¶ 31.

         Capt. Zerniak disputes the claim of any constitutional violation. See generally Zerniak Decl. As set forth in his Declaration, he maintains that Plaintiff was in fact given an opportunity for an employee assistant and was assigned the individual that he requested - Corrections Officer Debyah. Id. at ¶18-19. Plaintiff was provided a copy of the charges, and Plaintiff requested that the hearing officer review the unusual incident report and the video footage of the incident, and that he call a particular inmate to testify at the hearing. Id. at ¶ 20. Hearing Officer Zerniak further notes that Plaintiff refused to come out of his cell to participate in the hearing, and that he spoke with Plaintiff personally, who continued to refuse. Id. at ¶ 24. Thereafter the hearing was held, during which the Hearing Officer viewed the video requested by Plaintiff. Id. at ¶ 29. The Hearing Officer attempted to call the inmate witness that Plaintiff had requested, but the inmate refused to testify. Id. at ¶ 28.

         Plaintiff was delivered the result of the disciplinary hearing and Plaintiff was advised that he had thirty days in which to file an appeal of the disposition through the DOCCS Commissioner's office. Defs.' SMF at ¶¶ 118 & 119; Zerniak Decl. at ¶¶ 33 & 34. At no time did Plaintiff file an administrative appeal of the tier hearing in question. Defs.' SMF at ¶ 257; Dkt. No. 124-30, Venettozzi Decl., ¶ 4.

         Plaintiff has also alleged a violation of his Eighth Amendment rights upon the basis of the conditions of his confinement while housed in the special housing unit. One condition of confinement claim is premised upon the alleged denial of meals at Upstate. Am. Compl. at p. 11. The second conditions of confinement claim is based upon the amount of time he is forced to stay in his cell. While in the SHU, Plaintiff is generally limited to one hour a day of recreation. Plaintiff maintains that he was intentionally denied recreation in 2015 on September 30; October 1, 2, 3, 13, and 14; November 2, 12, 13, and 15; and December 7. Am. Compl. at p. 11. Plaintiff further alleges he was denied recreation in 2016 on the dates of January 8, 22, and 23; February 4 and 6; March 30 and 31; April 8, 9, and 10; and June 7, 18, and 20. Id.

         As for Plaintiffs Eighth Amendment deliberate indifference claim premised upon the failure of Dr. Kumar to provide appropriate medical care, Plaintiff generally alleges in his Amended Complaint that he has suffered due to a lack of medical treatment by Dr. Kumar for asymptomatic genital herpes and a thyroid disorder. Am. Compl. at p. 8. As noted in the original Complaint, which the District Court has incorporated into the Amended Complaint, Plaintiff complains that he was not given medication of sufficient strength, and even though he was vomiting, he was denied appropriate medical treatment. Dkt. No. 1 at pp. 6-7.

         In connection with the Summary Judgment Motion on the issue of deliberate indifference, Defendants have submitted the Declarition of Dr. Vijay Kumar Mandalaywala (“Dr. Kumar”). Dkt. No. 124-10, Kumar Decl. Dr. Kumar explained that his only involvement with Plaintiffs medical care was between December 2015 and June 2017. Defs.' SMF at ¶ 52; Kumar Decl. at ¶ 14. At that time Plaintiff was confined to the special housing unit because he had thrown feces and bodily fluids at staff members; therefore, Dr. ...


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