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Perkins v. Perez

United States District Court, S.D. New York

January 15, 2020

SHAKEE PERKINS, Plaintiff,
v.
ADA PEREZ, et al., Defendants.

          Shakee Perkins Coxsackie, NY Pro se Plaintiff Janice Powers, Esq.

          New York State Office of the Attorney General White Plains, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

         After dismissal of his First Amended Complaint, Shakee Perkins (“Plaintiff”), currently incarcerated at Greene Correctional Facility, renews his pro se Action against Superintendent Ada Perez (“Perez”), Medical Director John Benheim (“Dr. Benheim”), Correction Officer (“C.O.”) Richard Ulysse (“Ulysse”), C.O. Damon Travis (“Travis”), C.O. Ryan Whelan (“Whelan”), and Sergeant Fred Nameth (“Nameth”) (collectively, “Defendants”). Plaintiff, who sues Defendants under 42 U.S.C. § 1983 both individually and in their official capacities, alleges that Defendants violated his constitutional rights and committed state-law torts against him.

         Before the Court is Defendants' renewed Motion To Dismiss (the “Motion”). (See Not. of Mot. (Dkt. No. 56).) For the following reasons, the Motion is granted in part and denied in part.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiff's Second Amended Complaint (“SAC”) and the exhibits attached to it, (SAC. (Dkt. No. 49)), and are taken as true for the purpose of resolving the instant Motion.

         At about 9:15 a.m. on February 21, 2014, Plaintiff was in his cell at Downstate Correctional Facility (“Downstate”) when an unnamed porter came to collect Plaintiff's laundry (SAC. ¶ 1-2.)[1]. The porter handed Plaintiff a pen to write his initials on his clothing. (Id. ¶ 2.) However, when Plaintiff “attempted to return the pen to the porter, ” Defendant Ulysse “without just cause [or] provocation . . . grabbed and strong-armed [P]laintiff's right hand in a[n] aggressive stronghold[, ] causing [P]laintiff's wrist to swell and become numb.” (Id. ¶ 3.) Ulysse further “squeez[ed]” Plaintiff's “right hand and aggressively pull[ed] [his] arm out of the hole in the door until [his] elbow reached the outer edge of the hole.” (Id. ¶ 4.) Although Plaintiff “hopelessly begged” Ulysse to stop and “screamed for help, ” Ulysse did not stop and instead “braced his foot/feet up against the cell door using both hands to get a better grip on” Plaintiff's hand, causing further pain. (Id. ¶¶ 4-5.) Ulysse thereafter “became more violent and aggressive;” and “intentionally pull[ed]” Plaintiff's “entire right arm out of the hole on the cell door until . . . [his] body was pressed up against the cell door.” (Id. ¶ 6.) Ulysse then “aggressively twisted and yanked [P]laintiff's right arm in a downward violent motion[, ] causing more damage and severe pain.” (Id. ¶ 7.) Plaintiff “struggled with” Ulysse for “approximately four more minutes before surrendering his arm.” (Id. ¶ 8.) Ulysse thereafter released Plaintiffs arm and “walked way laughing.” (Id. ¶ 9.)

         Plaintiff “screamed for help in pain” and “requested emergency medical attention” for twenty minutes. (Id.) Plaintiff was then escorted to Nameth's office by an unknown correctional officer. (Id. ¶ 9.) Nameth questioned Plaintiff and two additional inmate witnesses about the incident. (Id. ¶¶ 10-11.) Plaintiff requested that “the investigation be postponed so that [he could] receive medical attention, ” but Nameth “denied [the] request and stated: ‘You have to answer these questions first.'” (Id. at ¶ 10.) Plaintiff alleges the questioning caused a delay in his “emergency medical needs” which resulted in the swelling of his “right hand and mid-area of the arm.” (Id. ¶ 11.)

         “After a period of twenty minutes or so, ” Plaintiff was taken to the medical unit. (Id. ¶ 12.) X-rays and photographs were taken of the injury. (Id.) In examining Plaintiff, Defendant Dr. Benheim “grabbed” Plaintiffs left arm, and despite Plaintiffs complaints “attempted to put [his] right arm in a medical sling.” (Id. ¶ 13.) Dr. Benheim “forced” Plaintiff to lie down “by picking [him] up by the legs” and pushing his “upper body down on the bed.” (Id. ¶ 14.) He then attached an IV. with an “unknown narcotic” to Plaintiffs arm without asking Plaintiffs permission or whether he was allergic to it. (Id. ¶¶ 15-16.) Plaintiff “begged” Dr. Benheim not to touch him, “refused medical treatment from the medical unit, ” and asked to be treated by some other doctor at an outside facility, but that request was refused. (Id. ¶ 13-15.) Plaintiff “immediately” began to “sweat, feel cold, [and experience] breathing issues, ” as well as feel dizzy, panic-struck, and naus[eous].” (Id. ¶ 17.) Plaintiff also began to “hallucinate, ” “experience[] short epileptic episodes, ” and felt “half his body numbed, frozen and the other half in great pain.” (Id. ¶ 17.) Dr. Benheim injected Plaintiff with “another dose of an unknown narcotic, ” causing Plaintiff pain from the needle - which was inserted “carelessly” into his injured arm - and causing Plaintiff to become “incoherent” and “unresponsive” and to have “blurry vision.” (Id. ¶ 18.)

         Plaintiff was then referred to an outside hospital for further treatment. (Id. ¶ 24.) Defendants Travis and Whelan, responsible for transporting Plaintiff to the van that would take him to the hospital, “aggressively grabbed [his] arms, pulling both arms towards [his] back, ” and placed him in “mechanical restraints” causing Plaintiff to feel a “a great amount of force and pain.” (Id. ¶ 19.) Plaintiff “tried to speak but was unable to [do so] because of the narcotic effects” of the medicine given to him by Dr. Benheim. (Id. ¶ 20.) Instead, Plaintiff cried and moaned to signal his distress. (Id.) Travis and Whelan carried Plaintiff to the van instead of putting Plaintiff in a “medical mobile bed or portable carry stretcher, ” and, in placing him in the van, failed to fasten a seat belt around him. (Id.)

         Before they left for the hospital, Whelan smoked a cigarette, causing Plaintiff “to have trouble breathing.” (Id. ¶ 21.) Further, the van door was left open, causing Plaintiff, who “did not have on a winter coat, ” to “nearly experience[] hypothermia” and to begin “crying, moaning, shivering, coughing, and breathing very fast.” (Id.) When the van door was closed, Plaintiff was left “restrained in an uncomfortable[, ] painful position with no air circulating[, ] leaving [him] to inhale” Whelan's cigarette smoke for about fifteen minutes. (Id. ¶ 22.) Plaintiff then “vomited twice and then blacked out” in the van, and “woke up on the van floor and was unable to get up or move” because of the “ongoing effects of the narcotics [and] the mechanical restraints.” (Id. ¶ 23.) Plaintiff was “incoherent and unresponsive” upon arrival at the hospital. (Id. ¶ 24.) Following the visit to the hospital, Plaintiff was transported by Travis and Whelan back to Downstate “in the same negligent manner” as before. (Id. ¶ 24.)

         Upon return to Downstate, Plaintiff was placed in involuntary protective custody (“IPC”) without a bed, chair, food, or water, thus forcing him to sit “on the edge of a windowsill” and sleep “in an uncomfortable position.” (Id. ¶ 25.) Between February 22-24, 2014, Plaintiff repeatedly asked Dr. Benheim and several nurses for a medical shower because his “clothing and body had dried vomit residue, ” but he was denied one without explanation. (Id. ¶¶ 26-27.)

         On February 24, 2014, Plaintiff was released back into Downstate's general population and given an ace bandage to “keep [his] right arm in a comfortable position to heal.” (Id. ¶ 28.) Upon return to his cell, he wrote a letter to Defendant Perez complaining about the assault and negligent medical treatment and requesting to be moved to another facility “because he feared that he would be assaulted and retaliated against by all defendants mentioned in this complaint.” (Id. ¶ 29; see also SAC Ex. C1 (letter to Perez).)

         On February 26, 2014, Defendant Ulysse approached Plaintiff in the mess hall “during lunch chow” and “verbally threatened” him to not “file a grievance or he would retaliate and make sure other officers in any facility [P]laintiff is transferred to retaliate [against him] as well.” (SAC ¶ 30.) Ulysse stated, “you['re] not going to win with me, ” and forced Plaintiff to “remove his ace-bandage off his arm and hand it over.” (Id. ¶¶ 30-31.) Plaintiff “filed a grievance about the assault, retaliation, negligence[, ] and mess hall encounter with Ulysse.” (Id. ¶ 31; see also SAC Ex. C2 (grievance regarding incident).) Plaintiff also made several requests for medical care between February 26 and March 3, 2014, but received no response. (SAC ¶ 32.)

         On March 4, 2014, Plaintiff was transferred to Great Meadow Correctional Facility (“Great Meadow”). (Id. ¶ 33.) On March 6, 2014, Plaintiff was subjected to a hearing based on a misbehavior report, filed by an unnamed prison officer, which Plaintiff alleges was false and an act of retaliation on behalf of Ulysse. (Id. ¶ 34; see also First Am. Compl. (“FAC”) Ex. D6 (misbehavior report).) Plaintiff further alleges that, since March 6, 2014, he has been targeted by several unnamed correctional employees “in regards to filing complaints, grievances, property claims an lawsuits, ” all in furtherance of Ulysse's earlier threat of retaliation. (SAC 35.) Although Plaintiff has continued to pursue his administrative remedies, he alleges that he has been deterred from filing some “complaints, grievances and appeals” due to Ulysse's threat, that some of these have not been addressed or acknowledged, and that others have been destroyed. (Id. ¶ 36)

         B. ...


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