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Hughes v. Butt

United States District Court, N.D. New York

September 17, 2019

MAURICE HUGHES, Plaintiff,
v.
MAHMOOD BUTT, Doctor, Broome County Jail; BARRY HALL, Health Administrator, Broome County Jail; and MARK SMOLINSKY, Jail Administrator, Defendants,

          MAURICE HUGHES Plaintiff, Pro Se

          STEINBERG, SYMER & PLATT, LLP JONATHAN E. SYMER, ESQ. Counsel for Defendants Butt and Hall

          BROOME COUNTY ATTORNEY'S OFFICE JENNIFER L. SUWAK, ESQ. Counsel for Defendant Smolkinsky

          REPORT-RECOMMENDATION

          MIROSLAV LOVRIC U.S. MAGISTRATE JUDGE.

         This matter has been referred to me for Report and Recommendation by the Honorable David N. Hurd, United States District Judge. Currently before the Court, in this civil rights action filed by Maurice Hughes (“Plaintiff”) against Mahmood Butt, Doctor in the Broome County Jail, Barry Hall, Health Administrator in the Broome County Jail, and Mark Smolinsky, Jail Administrator (collectively “Defendants”), are (1) a motion for summary judgment pursuant to Fed.R.Civ.P. 56 filed by Defendant Smolinsky (Dkt. No. 55), and (2) a motion for summary judgment pursuant to Fed.R.Civ.P. 56 filed by Defendants Butt and Hall (Dkt. No. 64). For the reasons set forth below, I recommend that Defendants' motions be granted.

         TABLE OF CONTENTS

         I. RELEVANT BACKGROUND .......................................................................................................... 1

         A. Plaintiff's Claims ............................................................................................................................. 1

         B. Statement of Undisputed Material Facts ...................................................................................... 1

         C. Parties' Briefing on Defendants' Motion for Summary Judgment ............................................ 6

         II. GOVERNING LEGAL STANDARD ......................................................................................... 11

         A. Legal Standard Governing Motion for Summary Judgment .................................................... 11

         B. Legal Standard Governing Motion to Dismiss for Failure to State a Claim ........................... 14

         III. ANALYSIS .................................................................................................................................... 18

         A. Plaintiff's Failure to Oppose Defendants Butt and Hall's Motion and Failure to Oppose Defendants' Statements of Material Fact ........................................................................................... 19

         B. Plaintiff's Medical Indifference Claim Against Defendants Butt and Hall ............................. 21

         C. Plaintiff's Retaliation Claim ........................................................................................................ 30

         D. Monell Claim ................................................................................................................................. 37

         I. RELEVANT BACKGROUND

         A. Plaintiff's Claims

         Generally, liberally construed, Plaintiff's Second Amended Complaint asserts the following two causes of action: (1) a claim of medical indifference against Defendants Butt and Hall; and (2) a claim of retaliation against Defendants. (Dkt. No. 45.)

         B. Statement of Undisputed Material Facts

         Unless otherwise noted, the following facts were asserted and supported by Defendant Smolinsky in his Rule 7.1 Statement and not denied by Plaintiff in a Rule 7.1 Response. (Compare Dkt. No. 55, Attach. 6 [Def. Smolkinsky's Rule 7.1 Statement] with Dkt. No. 61 [Pl.'s Response], and Dkt. No. 63 [Pl.'s Sur-reply].)

         1. Plaintiff filed an Amended Complaint on January 31, 2018, against, inter alia, the following six Broome County employees: (1) Mark Smolinsky, (2) Douglas Daley, (3) Sean Pomeroy, (4) David Goble, (5) Anthony Smith, and (6) Leo Ortega.

         2. By Decision and Order dated January 22, 2018, Douglas Daley, Sean Pomeroy, David Goble, Anthony Smith, and Leo Ortega were terminated as defendants in this action.[1]Defendant Smolinsky remains the only surviving defendant in this matter employed by Broome County.

         3. Plaintiff served the Second Amended Complaint on Defendant Smolinsky on March 16, 2018. Defendant Smolinsky filed an Answer to the Second Amended Complaint on May 15, 2018.

         4. By Decision and Order dated October 2, 2018, the Court accepted for filing (1) a claim of medical indifference against Defendants Butt and Hall, and (2) a claim of retaliation against Defendants. The Court denied Plaintiff's motion to amend the Amended Complaint in part, to the extent that it alleged (1) a verbal harassment because such a claim is not cognizable pursuant to 42. U.S.C. § 1983, and (2) claims of freedom of religion, due process, and equal protection, because the Second Amended Complaint failed to state a claim for relief on these causes of action.

         5. During the first portion of his deposition on August 27, 2018, Plaintiff was informed by Counsel for Defendants Butt and Hall both on and off the record of the potential consequences which may result from his failure to cooperate and proceed with the deposition.

         6. Counsel for Defendant Smolinsky was unable to depose Plaintiff on August 27, 2018, other than placing brief statements on the record to establish Plaintiff's voluntary discontinuance of the deposition.

         7. On or about December 4, 2017, Sergeant Douglas Dailey had a conversation with Plaintiff in the medical unit.

         Unless otherwise noted, the following facts were asserted and supported by Defendants Butt and Hall in their Rule 7.1 Statement and not denied by Plaintiff in a Rule 7.1 Response. (Compare Dkt. No. 64, Attach. 2 [Def. Butt and Hall's Rule 7.1 Statement] with see generally docket sheet.)

         1. Plaintiff was an incarcerated inmate at the Broome County Correctional Facility (“BCCF”) from January 20, 2017, until May 23, 2018.

         2. Plaintiff was ultimately convicted of criminal possession of a controlled substance with intent to sell in the third degree, which is a felony.

         3. By Decision and Order dated March 13, 2018, the Court accepted for filing (1) a claim of medical indifference against Defendants Butt and Hall, and (2) a claim of retaliation against Defendants Butt and Hall arising from Plaintiff's September 2017, assignment to administrative segregation status, and (3) a claim of retaliation against Defendants Butt and Smolinsky arising from Plaintiff's January 2018, assignment to administrative segregation status. The Court dismissed Plaintiff's remaining claims.

         4. On March 27, 2018, Defendants Butt and Hall answered the Amended Complaint.

         5. By Decision and Order dated October 2, 2018, the Court granted in part Plaintiff's motion to file a Second Amended Complaint, which is the operative pleading.

         6. On October 5, 2018, Defendants Butt and Hall answered the Second Amended Complaint.

         7. Defendant Butt was the physician and medical director at BCCF during the relevant time period to this litigation.[2]

         8. On January 21, 2017, Plaintiff was a forty-seven-year-old male. On February 21, 2014, Plaintiff was diagnosed as a diabetic and was prescribed insulin for treatment.

         9. Plaintiff's sole allegation of medical indifference against Defendant Butt and Defendant Hall concerning the administration of insulin from January 20, 2017, to May 23, 2018, is that if his blood sugar level was below 150 mg/dl, then Plaintiff received no units of insulin at the time of the measurement.

         10. All orders for the administration of insulin while Plaintiff was incarcerated from January 20, 2017, to May 23, 2018, were given by Defendant Butt, which set forth a titrated scale. The scale included escalating units of insulin when Plaintiff's measured blood sugar level was above 149 mg/dl and directed no units of insulin for blood sugar levels below 149 mg/dl.

         11. While incarcerated from January 20, 2017, to May 23, 2018, Plaintiff's blood sugar values were assessed before each meal (four times each day) and insulin was administered following each measured blood sugar value over 149 mg/dl.

         12. While incarcerated from January 20, 2017, to May 23, 2018, Plaintiff was administered Lantus at the hour of sleep to further manage his diabetic mellitus.

         13. Defendant Hall did not order the sliding scale of insulin.

         14. Plaintiff alleges that while incarcerated from January 20, 2017, to May 23, 2018, he was not given a cane or brace to treat his complaints of lower back pain.

         15. From January 22, 2017, through March 2018, Defendant Butt conducted at least eight separate physical examinations of Plaintiff's lower back and extremities.

         16. During Defendant Butt's physical examinations of Plaintiff's lower back and extremities, he observed no signs of lumbosacral impairment including no spasm, sacroiliitis or radicular findings to his lower extremities, which in Defendant Butt's opinion would necessitate a brace or cane.

         17. In addition, Defendant Butt reviewed the following medical records: (1) MRIs obtained before Plaintiff was incarcerated, which reflected mild degenerative changes, and (2) x-rays obtained on September 19, 2017, which showed no evidence of an acute or chronic lumbosacral spine issue or significant degenerative change. In Defendant Butt's opinion, the mild degenerative changes would not be symptomatically improved with a cane or brace.

         18. Defendant Butt ordered-and Plaintiff received-analgesics and neurotonin, on an as needed basis.

         19. Plaintiff was examined on or about April 6, 2018, by the Broome County Health Department. The medical records from that examination do not indicate that testing for hepatitis was conducted.

         20. At BCCF, routine blood testing for blood sugar evaluations or complete blood counts for diabetes management do not include testing for hepatitis C.

         21. Plaintiff did not request in writing that Defendant Butt test him for hepatitis C.

         22. In Defendant Butt's opinion, Plaintiff did not demonstrate clinical findings of active hepatitis C during his incarceration from January 20, 2017, to May 23, 2018.

         23. At various times in December 2017, and January 2018, Plaintiff was maintained in the medical cells (A-Pod) for the purposes of monitoring his blood sugar values and food intake to stabilize his fluctuating, poorly-controlled diabetes mellitus.

         C. Parties' Briefing on Defendants' Motion for Summary Judgment

         1. Defendant Smolinsky's Memorandum of Law-in-Chief

         Generally, in support of his motion to for summary judgment, Defendant Smolinsky asserts four arguments. (See generally Dkt. No. 55, Attach. 1 [Def. Smolinsky's Mem. of Law].)

         First, Defendant Smolinsky argues that Plaintiff was not denied his due process rights based on the assignment to administrative segregation. (Id.) More specifically, Defendant Smolinsky argues that (1) a threat of administrative segregation does not rise to the level of a denied liberty interest, (2) one date of solitary confinement within the vicinity of other inmates who have been accused of committing heinous crimes, absent evidence that their presence was an atypical or significant burden is not a denial of due process, and (3) the “remaining dates of September 22, 2017[, ] and January 20, 2018[, ]” it was “well documented that Plaintiff had an extended stay in the medical unit” and Defendant Smolinsky should not be liable because (a) “[a]n extended stay in the medical unit is ...


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