United States District Court, N.D. New York
HIGH Plaintiff, Pro Se.
LETITIA JAMES Attorney General of the State of New York
Attorney for Defendants.
BOULE PINSONNAULT, ESQ. Assistant Attorney General.
REPORT-RECOMMENDATION AND ORDER
J. Stewart United States Magistrate Judge.
September 25, 2017, pro se Plaintiff Javon High
commenced this action pursuant to 42 U.S.C. § 1983,
asserting claims arising from his confinement at both Wyoming
Correctional Facility and Ulster Correctional Facility, while
in the custody of the Department of Corrections and Community
Supervision (“DOCCS”). Dkt. No. 1, Compl. In his
Complaint, Plaintiff alleged that he suffers from chronic,
severe pain, for which he was prescribed certain medications
and physical therapy. Compl. at p. 3. Plaintiff alleged that
while at Ulster, he was seen by P.A. Switz, who told
Plaintiff that he would not be getting the physical therapy
or prescribed medications at Ulster, and that he could
attempt to get this treatment when he got to his designated
facility, which would not be for a month or two. Id.
at pp. 4-5. Plaintiff alleges that he then went thirty-five
days with severe pain before he was transferred to Wyoming.
Id. at p. 6. Plaintiff alleged continuing issues
related to his pain and treatment after he was
transferred. Id. at pp. 6-19. Remaining in
this District are Plaintiff's claims arising out of his
confinement at Ulster, which are only those against Defendant
before the Court is Defendant's Motion for Summary
Judgment. Dkt. No. 32. In her Motion, Defendant warned
Plaintiff of the potential consequences of his failure to
respond to the Motion. Dkt. No. 32 at p. 3. Plaintiff's
opposition was originally due on June 17, 2019. Dkt. No. 34.
The Court notified Plaintiff of this deadline and also warned
him of the consequences of failing to respond to the Motion.
Id. Upon Plaintiff's failure to oppose to the
Motion, the Court sua sponte extended the deadline
to August 2, 2019, again warning Plaintiff of the possible
consequences of his failure to respond and providing that no
further extensions would be granted absent a showing of
extraordinary circumstances. Dkt. No. 35. On July 8, 2019,
Plaintiff submitted a motion for the appointment of counsel.
Dkt. No. 36. The Court denied Plaintiff's Motion for
counsel, but sua sponte granted Plaintiff a further
extension of time to respond to the Motion, until August 30,
2019. Dkt. No. 37. Plaintiff has failed to submit any
response to the Motion, and has not filed any further
submissions of any kind to the Court.
reasons that follow, the Court recommends Defendant's
Motion be granted.
LEGAL STANDARD FOR SUMMARY JUDGMENT
to Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate only where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” The moving party bears the burden
to demonstrate through “pleadings, depositions, answers
to interrogatories, and admissions on file, together with [ ]
affidavits, if any, ” that there is no genuine issue of
material fact. F.D.I.C. v. Giammettei, 34 F.3d 51,
54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).
defeat a motion for summary judgment, the non-movant must set
out specific facts showing that there is a genuine issue for
trial and cannot rest merely on allegations or denials of the
facts submitted by the movant. Fed.R.Civ.P. 56(c); see
also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003)
(“Conclusory allegations or denials are ordinarily not
sufficient to defeat a motion for summary judgment when the
moving party has set out a documentary case.”);
Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522,
525-26 (2d Cir. 1994). To that end, sworn statements are
“more than mere conclusory allegations subject to
disregard . . . they are specific and detailed allegations of
fact, made under penalty of perjury, and should be treated as
evidence in deciding a summary judgment motion” and the
credibility of such statements is better left to a trier of
fact. Scott v. Coughlin, 344 F.3d at 289 (citing
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
considering a motion for summary judgment, the court must
resolve all ambiguities and draw all reasonable inferences in
favor of the non-movant. Nora Beverages, Inc. v. Perrier
Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).
“[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to
discerning whether there are any genuine issues of material
fact to be tried, not to deciding them. Its duty, in short,
is confined at this point to issue-finding; it does not
extend to issue-resolution.” Gallo v. Prudential
Residential Servs., Ltd. P 'ship, 22 F.3d 1219, 1224
(2d Cir. 1994). Furthermore, where a party is proceeding
pro se, the court must “read [his or her]
supporting papers liberally, and . . . interpret them to
raise the strongest arguments that they suggest.”
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994);
see also Soto v. Walker, 44 F.3d 169, 173 (2d Cir.
1995). Nonetheless, summary judgment is appropriate
“[w]here the record taken as a whole could not lead a
rational trier of fact to find for the non-moving
party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
state an Eighth Amendment claim for denial of adequate
medical care, a prisoner must demonstrate that prison
officials acted with “deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 104 (1976). “[T]he plaintiff must allege
conduct that is ‘repugnant to the conscience of
mankind' or ‘incompatible with the evolving
standards of decency that mark the progress of a maturing
society.'” Ross v. Kelly, 784 F.Supp. 35,
44 (W.D.N.Y. 1992) (quoting Estelle v. Gamble, 429
U.S. at 102, 105-06). To state a claim for denial of medical
care, a prisoner must demonstrate (1) a serious medical
condition and (2) deliberate indifference. Farmer v.
Brennan, 511 U.S. 825, 834-35 (1994); Hathaway v.
Coughlin (“Hathaway I”), 37 F.3d 63, 66 (2d
first prong is an objective standard and considers whether
the medical condition is “sufficiently serious.”
Farmer v. Brennan, 511 U.S. at 834 (quoting
Wilson v. Seiter,501 U.S. 294, 297 (1991)). A court
must consider two inquiries in determining whether a
deprivation of care is sufficiently serious. Salahuddin
v. Goord,467 F.3d 263, 279 (2d Cir. 2006). First, the
court must determine “whether the prisoner was actually
deprived of adequate medical care.” Id.
Medical care is adequate where the care provided is a
“reasonable” response to the inmate's medical
condition. Id. The second inquiry is “whether
the inadequacy in medical care is sufficiently
serious.” Id. at 280. In cases where there is
a failure to provide any treatment, the court examines
whether the inmate's medical condition is sufficiently
serious. Smith v. Carpenter,316 F.3d 178, 185-86
(2d Cir. 2003). The Second Circuit has stated that a medical
need is serious if it presents “a condition of urgency
that may result in degeneration or extreme pain.”
Chance v. Armstrong,143 F.3d 698, 702 (2d Cir.
1998) (internal quotation marks and citation omitted). Among
the relevant factors to consider are “[t]he existence
of an ...