United States District Court, N.D. New York
RASZELL REEDER PLAINTIFF, PRO SE
LETITIA JAMES ATTORNEY GENERAL OF THE STATE OF NEW YORK
ATTORNEY FOR DEFENDANTS
WILLIAM A. SCOTT, ESQ. ASSISTANT ATTORNEY GENERAL
REPORT-RECOMMENDATION AND ORDER
J. STEWART United States Magistrate Judge.
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
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.
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.
Plaintiff's Failure to File a Response to Defendants'
Rule 7.1 Statement
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”).
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.
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.
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
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
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.
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.
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.
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. ...