DECISION and ORDER

GLENN SUDDABY, District Judge

Currently before the Court in this pro se prisoner civil rights action filed by Norberto Javier Felix-Torees ("Plaintiff") against four employees of Auburn Correctional Facility ("Defendants") are (1) Defendants' motion for summary judgment (Dkt. No. 45), (2) United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Defendants' motion be granted in part and denied in part (Dkt. No. 52), and (3) Defendants' Objections to the Report-Recommendation (Dkt. No. 53). Plaintiff did not submit any objections to the Report-Recommendation. For the following reasons, the Report-Recommendation is accepted and adopted as modified; Defendants' motion for summary judgment is granted in part and denied in part; and Plaintiff's Complaint is dismissed except for his claims against Defendant Bellnier.

I. BACKGROUND

On September 11, 2006, Plaintiff filed his Complaint in this action. (Dkt. No. 1.) Construed with the utmost liberality, Plaintiff's Complaint alleges civil rights violations under the Eighth and Fourteenth Amendments. ( Id.) More specifically, Plaintiff alleges that Defendants (1) were deliberately indifferent to his medical needs, and (2) failed to follow New York State Department of Correctional Services' ("DOCS'") procedures with respect to double-celling and bunk placements. ( Id.)

On January 26, 2009, Defendants filed a motion for summary judgment, arguing that (1) Plaintiff has failed to establish an Eight Amendment claim for deliberate indifference, (2) all Defendants are entitled to qualified immunity, (3) Plaintiff has failed to establish that Defendants Graham, Brown and Ryerson were personally involved in the constitutional violations alleged, and (4) Plaintiff's negligence claim is not actionable under 42 U.S.C. § 1983. (Dkt. No. 45, Part 15.)

On May 4, 2009, after being granted two extensions of time by the Court to do so, Plaintiff submitted his response in opposition to Defendants' motion. (Dkt. No. 48.) In his response, Plaintiff argues that (1) Defendants were deliberately indifferent to his medical needs, (2) repeated acts of negligence are actionable under 42 U.S.C. § 1983, (3) Defendants violated DOCS' policy and procedure regarding bunk placements, and (4) Defendants are not entitled to qualified immunity. (Dkt. No. 48, Part 2.)

On August 14, 2009, Magistrate Judge Homer issued a Report-Recommendation recommending that Plaintiff's claims against Defendants Graham and Brown be dismissed for lack of personal involvement. (Dkt. No. 52 at 8-11.) Magistrate Judge Homer further recommended that the claims against Defendants Ryerson and Bellnier not be dismissed because, based on the current record, genuine issue of material fact exist regarding whether they were personally involved in the constitutional violation alleged. ( Id. at 10, 14-16.) Familiarity with the specific grounds of Magistrate Judge Homer's Report-Recommendation is assumed in this Decision and Order.

On August 26, 2009, Defendants timely filed their Objections to the Report-Recommendation. (Dkt. No. 53.) Generally, in their Objections, Defendants challenge Magistrate Judge Homer's recommendation that Defendants' motion be denied with regard to Plaintiff's claims against Defendants Ryerson and Bellnier. (Dkt. No. 53 at 4-10.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review of Magistrate Judge Homer's Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C). When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing Motion for Summary Judgment

Magistrate Judge Homer correctly recited the legal standard governing a motion for summary judgment. (Dkt. No. 52, at 5-6.) As a result, these standards are incorporated by reference in this Decision and Order.

III. ANALYSIS

As indicated above in Part I of this Decision and Order, in his Report-Recommendation, Magistrate Judge Homer concluded, inter alia, that, based on the current record, genuine issues of material fact exist as to (1) whether Defendant Ryerson was personally involved in the constitutional violation alleged (through, with deliberate indifference, failing to ensure a lower bunk assignment for Plaintiff), and (2) whether Defendant Bellnier was personally involved in the constitutional violation alleged (through, with deliberate indifference, neglecting to approve Plaintiff's lower bunk assignment). ( Id. at 10, 11-16.)

In their Objections, Defendants challenge both of these conclusions. (Dkt. No. 53, at 4-10.) For example, they argue that (1) based on Plaintiff's own admission during his deposition, Defendant Ryerson was not personally involved in the constitutional violation alleged after Plaintiff fell from his bunk on December 2, 2005, and (2) it was not possible for Defendant Bellnier to remedy a wrong arising out of a single incident of which he had no advanced notice. ( Id.)

These Objections constitute specific challenges to those portions of the Report-Recommendation recommending the denial of Defendants' motion for summary judgment with regard to Plaintiff's claims against Defendants Bellnier and Ryerson. As a result, the Court reviews these portions of the Report-Recommendation de novo, and reviews the remaining portions of the Report-Recommendation for clear error, for the reasons stated above in Part II.A. of this Decision and Order.

A. Plaintiff's Claim Against Defendant Ryerson

The specific grounds in support of Magistrate Judge Homer's recommendation that the Court deny Defendants' motion with regard to Defendant Ryerson are as follows: (1) "a question of fact [exists regarding] whether Ryerson had personal knowledge of Felix-Torres' medical condition and tendency to suffer seizures and falls"; (2) a question of fact exists regarding whether Ryerson's duties involved "insur[ing] lower bunk assignments for [prisoners who demonstrate a medical need for such assignments]"; and (3) a question of fact exists regarding whether, by disregarding Plaintiff's reported medical need for a bottom bunk, Ryerson was deliberately indifferent to that medical need. (Dkt. No. 52, at 10, 13-14.)

In support of the first referenced question of fact, Magistrate Judge Homer relies on Plaintiff's sworn assertion (in an affidavit submitted in opposition to Defendants' motion for summary judgment) that, during his initial stay in the infirmary (when the medical staff monitored his condition and medication), he spoke with Ryerson about the seriousness of his diabetes and his need for a lower bunk order. ( Id. at 10, 13 [citing Felix-Torres Affirm, at ¶ 24, attached at Dkt. No. 48, Part 3, at 5].) In support of the second referenced question of fact, Magistrate Judge Homer relies on Ryerson's duties as the Auburn C.F. Nurse Administrator. ( Id. at 10.) Finally, in support of the third referenced question of fact, Magistrate Judge Homer relies, again, on Plaintiff's sworn assertion (in an affidavit) that, during his initial stay in the infirmary (when the medical staff monitored his condition and medication about the seriousness of his diabetes), he spoke with Ryerson about his need for a lower bunk order. ( Id. at 13 [citing Felix-Torres Affirm, at ¶¶ 17, 24, attached at Dkt. No. 48, Part 3, at 4-5].)

In their Objections, Defendants offer three arguments in response to Magistrate Judge Homer's recommendation regarding Defendant Ryerson. (Dkt. No. 53, Part 1, at 4-5.) First, argue Defendants, no admissible record evidence exists controverting Defendant Ryerson's sworn statement that she had no personal knowledge of Felix-Torres' medical condition and tendency to suffer seizures and falls, because Plaintiff's affidavit is inadmissible under the circumstances. ( Id. at 4-5.) Second, argue Defendants, no admissible record evidence exists controverting Defendant Ryerson's sworn statement that she played no role in ensuring lower bunk assignments for prisoners who demonstrate a medical need for such assignments. ( Id. at 4, 6.) Third, argue Defendants, because Defendant Ryerson was not sufficiently aware of Plaintiff's medical need for a bottom bunk, and because she played no role in ensuring lower bunk assignments for prisoners in need of them, she did not act with deliberate indifference to Plaintiff's medical need for a bottom bunk. ( Id. at 4-6.)

1. Whether Admissible Record Evidence Exists Establishing that Defendant Ryerson Was Personally Involved in the Constitutional Violation Alleged

Defendants begin their lack-of-personal-involvement argument by arguing that Defendant Ryerson swore in her sworn affidavit (attached at Dkt. No. 45, Part 10, ¶¶ 17, 18, 24, 25) that she had no personal knowledge of Plaintiff's medical condition and tendency to suffer seizures and falls. (Dkt. No. 53, Part 1, at 4.) Defendants acknowledge that Plaintiff has sworn in his affidavit (attached at Dkt. No. 48, Part 3, at 5, ¶ 24) that, during his initial medical evaluation in November 2005, he told Defendant Ryerson about his medical need for a lower bunk. (Dkt. No. 53, Part 1, 4-5.) However, Defendants argue that Plaintiff's affidavit is inadmissible and therefore insufficient to create a genuine issue of material fact for purposes of their motion. ( Id.) More specifically, Defendants argue that Plaintiff's affidavit is in admissible for two reasons: (1) it contradicts his prior sworn testimony given during his deposition testimony in July 2008; and (2) he already admitted (in Paragraph 14 of his Rule 7.1 Response, attached at Dkt. No. 48, Part 1, at 2) Defendants' factual assertion that Plaintiff did not address his concerns about a top bunk assignment to Defendant Ryerson (in Paragraph 14 of their Rule 7.1 Statement). ( Id.)

Addressing Defendant's second reason first, the Court finds that, even if the Court were to look past the fact that Plaintiff expressly "admit[s]" the truth of the facts asserted in Paragraph 14 of Defendants' Rule 7.1 Statement ( see Dkt. No. 48, Part 1, at 2), the Court can finding nothing in the remainder of Plaintiff's Rule 7.1 Response that successfully controverts the facts asserted in Paragraph 14 of Defendants' Rule 7.1 Statement. The closest Plaintiff comes to doing so is in Paragraph 69 of his Rule 7.1 Response, in which he states, "Plaintiff believes that he was seen by defendant Ryerson during his medical evaluation between the dates of November 02, 2005, and November 08, 2005." (Dkt. No. 48, Part 1, at 10.) The problem is that this denial is not supported by any record citation, as required by Local Rule 7.1(a)(3).

In any event, even if (out of special solicitude to Plaintiff) the Court were construct a sua sponte review of the record in search of evidence supporting this denial, the only record evidence the Court can find is one paragraph of Plaintiff's affidavit, in which he swears that, "during the medical evaluation during the dates of November 02, 2005 to November 08, 2005, I did speak to defendant Nancy Ryerson in her official capacity as Nurse Administrator of the Health Services Unit and explained my need for a lower bunk due to my hypoglycemic seizures." (Dkt. No. 48, Part 3, at 5, ¶ 24.) The issue then becomes whether the Court can disregard this affidavit testimony under the circumstances.

It is well established that issues of credibility are almost never to be resolved by a court on a motion for summary judgment. However, there is a narrow exception to this well-established rule. Blake v. Race, 487 F. Supp.2d 187, 202 (E.D.N.Y. March 29, 2007). In Jeffreys, the Second Circuit explained that this narrow exception is for testimony by a non-movant that possesses the following two characteristics: (1) it constitutes almost the exclusive basis for a disputed issue of fact in the case (or, expressed differently, it is largely unsubstantiated by any other direct evidence); and (2) it is so lacking in credibility (because the testimony is incomplete and/or replete with inconsistencies and improbabilities) that, even after drawing all inferences in the light most favorable to the non-movant, no reasonable jury could find for the non-movant.

Here, the Court finds that first requirement of the above-stated two-part test has been satisfied. The affidavit testimony in question constitutes the exclusive basis for a disputed issue of fact in the case. Indeed, it is directly contradicted by the following record evidence: (1) Defendant Ryerson's affidavit testimony that she had no personal knowledge of Plaintiff's medical condition and tendency to suffer seizures and falls (Dkt. No. 45, Part 10, ¶¶ 17, 18, 24, 25); (2) Plaintiff's own deposition testimony, in which he swore that he never spoke to Defendant Ryerson prior to being doubled celled at Auburn Correctional Facility, and that she never personally examined him (Dkt. No. 45, Part 14, at 21-24); (3) the affidavit testimony of Defendants Bellnier and Ryerson that, during the time period in question, Correction Counselor Lynn Anderson conducted the majority of the double-celling screening process (Dkt. No. 45, Part 10, ¶ 6; Dkt. No. 45, Part 3, ¶¶ 7-8); and (4) Plaintiff's Ambulatory Health Records from the time in question, which evidences that Plaintiff was seen by at least two separate nurses, neither of whom were Nurse Administrator Nancy Ryerson, whose signature appears elsewhere in the record ( compare Dkt. No. 48, Part 3, at 41, 68 with Dkt. No. 45, Part 10, at 6 and Dkt. No. 48, Part 3, at 49).

Moreover, the Court finds that the second requirement of the above-stated two-part test has also been satisfied. The affidavit testimony in question is incomplete in that it neglects to state precisely on what specific date(s), and at what location, he spoke to Defendant Ryerson between "the dates of November 02, 2005 to November 08, 2005." (Dkt. No. 48, Part 3, at 5, ¶ 24.) In addition, the affidavit testimony in question is flatly inconsistent with the only other testimony Plaintiff offers on the subject-namely, his above-described deposition testimony. The Court notes that, although errata sheets were provided to Plaintiff with his deposition transcript, no changes to the transcript were requested by Plaintiff. (Dkt. No. 45, Part 13, ¶ 4.) The Court notes also that, on September 19, 2008, Plaintiff verified the truth and correctness of the deposition transcript. (Dkt. No. 45, Part 14, at 27.) Finally, the Court notes that more than seven months elapsed between Plaintiff's verification of the truth and correctness of the deposition transcript on September 19, 2008, and Plaintiff's submission of inconsistent testimony on April 30, 2009. (Compare Dkt. No. 45, Part 14, at 27 with Dkt. No. 48, Part 3, at 10.)

"It is well-settled that a party may not defeat . . . a motion [for summary judgment] by submitting an affidavit that disputes [or contradicts] his prior sworn testimony." Trans-Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) (citation omitted); Langman Fabrics v. Graf Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998) (citation omitted). "The reason for this rule is that permitting a non-movant to oppose a motion for summary judgment in this way would `diminish [] the utility of summary judgment as a procedure for screening out sham issues of fact.'" Duttweiller v. Eagle Janitorial, Inc., 05-CV-0886, 2009 WL 1606351, at *4 (N.D.N.Y. June 4, 2009) (Suddaby, J.) (citing Perma Research Dev. Co. v. Singer Co., 410 F.2d 572, 578 [2d Cir. 1969]); Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996) ("[A]n affidavit . . . that, by omission or addition, contradicts the affiant's previous deposition testimony' is insufficient to create a genuine issue of fact."). "If [a] [p]laintiff wish[es] to contradict h[is] own deposition testimony, the permissible procedural method [is] . . . to either (1) clarify h[is] testimony on cross-examination . . . pursuant to Fed.R.Civ.P. 30(c)(1), or (2) within 30 days after the deposition transcript becomes available, sign a statement listing the changes to that transcript, and the reasons for making those changes, pursuant to Fed.R.Civ.P. 30(e)(1)(B)." Duttweiller, 2009 WL 1606351, at *4. This rule applies even to pro se litigants.

For all these reasons, the Court disregards Plaintiff's affidavit testimony that "during the medical evaluation during the dates of November 02, 2005 to November 08, 2005, I did speak to defendant Nancy Ryerson in her official capacity as Nurse Administrator of the Health Services Unit and explained my need for a lower bunk due to my hypoglycemic seizures." (Dkt. No. 48, Part 3, at 5, ¶ 24.)

Even assuming that grounds do not exist to disregard Plaintiff's late-blossoming, incredible affidavit testimony about informing Defendant Ryerson of his medical need for a bottom bunk, the Court can find no admissible record evidence that Defendant Ryerson — the Nurse Administrator at Auburn C.F. and thus a supervisor — was personally involved in the constitutional violations alleged, in one of the five required ways described below in Part III.B. of this Decision and Order (and described by Magistrate Judge Homer in Part II.B. of his Report-Recommendation).

In their Rule 7.1 Statement, Defendants assert four facts delineating Defendant Ryerson's involvement in assignment of lower bunks for prisoners at Auburn Correctional Facility, during the time in question. More specifically, Defendants assert as follows: (1) "[Defendant Ryerson's staff was responsible for] completing the `Health Services Review Results' section [of the inmates' Double-Cell Information Sheets] and filling out the [Screening and Physical Assessment for Placement in a Double Cell] Form"; (2) after completing the specified portion of the Double-Cell Information Sheets, Defendant Ryerson's staff "would return the Sheet to [Correction Counselor Lynn] Anderson, to be forwarded to [Deputy Superintendent of Security Bellnier]"; (3) "Anderson was not supposed to forward the Sheets to [Deputy Superintendent of Security Bellnier] for his signature until all sections of each Sheet were completed"; and (4) "[Defendant Ryerson was not] involved in determining where inmates were housed or bunked; those decisions were made by Movement and Control staff." (Dkt. No. 45, Part 2, ¶¶ 32, 33, 62, 64.) Each of these factual assertions is supported by an accurate record citation to admissible evidence. ( Id.; see also Dkt. No. 45, Part 10, ¶¶ 12, 13, 16, 17, 18 [Ryerson Aff.]; Dkt. No. 45, Part 3, ¶¶ 12, 13 [Bellnier Aff.].)

In his Rule 7.1 Response, Plaintiff denies each of the four above-referenced facts. (Dkt. No. 48, Part 1, ¶¶ 32, 33, 62, 64.) However, Plaintiff's denial of the second and third referenced facts is not supported by citations to the record. ( Id. ¶¶ 32, 33) As a result, the second and third referenced facts are deemed admitted by Plaintiff.

Moreover, Plaintiff's denial of the first and fourth referenced facts is supported only by a citation to Paragraph 49 of his affidavit and Exhibit O to his affidavit. ( Id. ¶¶ 62, 64.) Paragraph 49 of Plaintiff's affidavit states as follows:

I state that I have filed this action against defendant Ryerson for supervisory liability and direct involvement, by her egregious and gross supervisory omissions in managing her subordinates, whos' [sic] deliberately indifferent action and inactions aloowed [sic] me to be unconstitutionally assigned and placed in a top bunk, resulting in my serious permanent injury.

(Dkt. No. 49, Part 3, at 8-9, ¶ 49.) Such a statement, which is wholly devoid of facts based on personal knowledge regarding Defendant Ryerson's job duties, and which contains improper legal argument pursuant to Local Rule 7.1(a)(2), is insufficient to create a genuine issue of material fact on a motion for summary judgment. Exhibit O to Plaintiff's affidavit consists of a one-page policy statement issued by DOCS, setting forth medical criteria that must be satisfied by inmates requesting a lower bunk placement. (Dkt. No. 48, Part 3, at 60.) Such a policy statement, which in no way denies the authority of Movement and Control staff to make the ultimate decision regarding whether a prisoner shall receive a lower bunk placement (and which does not even mention Nurse Administrators), is immaterial to whether Defendant Ryerson possessed a duty to ensure lower bunk assignments for prisoners who demonstrate a medical need for such assignments. As a result, the first and fourth referenced facts are also deemed admitted by Plaintiff.

Based on these four admissions, the Court finds that, even if the Court were to find that some admissible record evidence exists that Defendant Ryerson had a supervisory role in assisting qualified inmates in obtaining lower bunk assignments, the Court can find no admissible record evidence that Defendant Ryerson, as a supervisor, was personally involved in the constitutional violations alleged. The Court notes that it can find no admissible record evidence that, even if Correction Counselor Anderson was one of Defendant Ryerson's "subordinates" in the medical department at Auburn Correctional Facility, Defendant Ryerson was grossly negligent in managing her. ( See Dkt. No. 45, Part 10, ¶¶ 1 [Ryerson Aff., describing whom she supervised at Auburn C.F.].)

For all these reasons, the Court dismisses Plaintiff's Eighth Amendment claim against Defendant Ryerson for lack of personal involvement. See Harris v. Aidala, 03-CV-0467, 2006 WL 2583256, at *4 (W.D.N.Y. Sept. 6, 2006) ("Inasmuch as Ficchi and Piccolo were not personally involved with Harris' cell assignment, they cannot be held liable for that determination"), aff'd, No. 06-4365, 2008 WL 833073 (2d Cir. March 25, 2008); Mabery v. Coughlin, 93-CV-3221, 1996 WL 209998, at *7 (S.D.N.Y. Apr. 30, 1996) (rejecting plaintiff's claim "that defendants exhibited deliberate indifference to his medical needs by housing him in a dusty cell block which exacerbated his allergy condition [because] plaintiff has not shown that defendants were personally involved in his housing assignment . . ."); Moolenaar v. Champagne, 03-CV-1464, 2006 WL 2795339, at *6 (N.D.N.Y. Sept. 26, 2006) (Kahn, J.) (dismissing a claim against a nurse administrator that she "should have discerned both [an inmate's] medical condition and the need for a bunk permit" based on her supervisory position is without merit because "there is no respondeat superior liability under section 1983"); cf. Bennett v. Hunter, 02-CV-1365, 2006 WL 1174309, at n. 33 (N.D.N.Y. May 1, 2006) (Scullin, S.J. Lowe, M.J.) (collecting cases).

2. Whether Admissible Record Evidence Exists Establishing that Defendant Ryerson Was Deliberately Indifferent to Plaintiff's Serious Medical Need for a Bottom Bunk

In the alternative, even if the Court were to find that Defendant Ryerson was personally involved in the constitutional violation alleged, the Court can find no admissible record evidence from which a rational trier of fact could conclude that Defendant Ryerson's failure to fulfill her role in seeing that Plaintiff was assigned a bottom bunk was anything more than carelessness or negligence.

Negligently failing to cause a prisoner to be assigned to a lower bunk does not satisfy the subjective element of the legal standard governing claims of deliberate indifference to a serious medical need under the Eighth Amendment. See Goodson v. Willard Drug Treatment Campus, 615 F. Supp.2d 100, 102 (W.D.N.Y. 2009) ("[E]ven if there were sufficient evidence upon which a factfinder could reasonably conclude that defendants were negligent in assigning plaintiff to a top bunk (and I do not believe that there is), that too would be insufficient."); Faison v. Janicki, 03-CV-0647, 2007 WL 529310, at *2-3 (W.D.N.Y. Feb. 14, 2007) ("[E]ven assuming that Dr. Barranos's rescission of plaintiff's bottom-bunk permit amounted to a serious deprivation of his constitutional rights-which is doubtful-there is no evidence that Dr. Barranos acted with a culpable state of mind [where the plaintiff admitted in his deposition that the basis of his claim against Dr. Barranos was `medical negligence']."); Connors v. Heywright, 02-CV-9988, 2003 WL 21087886, at *3 (S.D.N.Y. May 12, 2003) (dismissing prisoner's claim that defendants were "negligent to [his] medical needs" in that they, inter alia, placed him in a top bunk despite the fact that he had a "mandatory lower bunk slip").

This is because "deliberate indifference describes a state of mind more blameworthy than negligence." Cusamano v. Sobek, 604 F. Supp.2d 416, 494, n. 176 (N.D.N.Y. 2009) (Suddaby, J., adopting Report-Recommendation of Lowe, M.J.) (collecting cases). "Rather, deliberate indifference is a state of mind akin to criminal recklessness." Cusamano, 604 F. Supp.2d at 494, n. 177 (collecting cases).

For this alternative reason, the Court finds that Defendant Ryerson cannot be held liable for Plaintiff's injuries, and the Court grants Defendants' motion for summary judgment with regard to Plaintiff's claim against Defendant Ryerson.

B. Plaintiff's Claim Against Defendant Bellnier

The specific grounds in support of Magistrate Judge Homer's recommendation that the Court deny Defendants' motion with regard to Plaintiff's claim against Defendant Bellnier are as follows: (1) there is a question of fact regarding whether Defendant Bellnier's failure to ensure that the appropriate correctional facility departments were contacted for input regarding double-celling constitutes gross negligence indicative of deliberate indifference; and (2) there is a question of fact regarding whether Defendant Bellnier's failure to ensure that his subordinate's work was accurate constitutes gross negligence indicative of deliberate indifference. (Dkt. No. 52, at 16.)

In support of the both referenced questions of fact, Magistrate Judge Homer relies on Defendant Bellnier's sworn assertions (in an affidavit submitted in support of Defendants' motion for summary judgment) that (1) he is responsible for approving double-celling orders, (2) he delegated responsibility for investigating and preparing the double-celling orders to a subordinate who generally did "a complete and thorough job . . ." (i.e., Correction Counselor Lynn Anderson), and (3) the sheer volume of papers ("hundreds of pieces of paper") he signed each week made it impossible to "personally" and thoroughly review the contents of each of the forms before approving them. ( Id. at 15 [citing Bellnier Affirm, at ¶¶ 15-18, attached at Dkt. No. 45, Part 3, at 3-4, and Exh. B to Ryerson Aff., attached at Dkt. No. 45, Part 12, at 2].) In addition, Magistrate Judge Homer relies on Plaintiff's Double-Cell Information Sheet, which was signed by Defendant Bellnier, despite the fact that the medical unit failed to complete the "Health Services Review Results" section. ( Id.)

In their Objections, Defendants offer six arguments in response to Magistrate Judge Homer's recommendation regarding Defendant Bellnier. (Dkt. No. 53, Part 1, at 7-10.) First, argue Defendants, Defendant Bellnier conceded only that he once inadvertently signed a Double-Cell Information Sheet (the "Sheet") without noticing that one of the sections had not been filled out. ( Id. at 7-8.) Second, argue Defendants, Defendant Bellnier "knew Anderson to do a complete and thorough job in completing the Sheets." ( Id. at 7-8.) Third, argue Defendants, Defendant Bellnier's failure to notice that the "Health Services Review Results" section of Plaintiff's Sheet was an oversight, and Plaintiff makes no allegations that any other Sheets were in any way improperly filled out or improperly approved at any point. ( Id. at 8.) Fourth, argue Defendants, whether Defendant Bellnier has made similar omissions with respect to other inmates is not relevant, because all that is relevant for purposes of this action is whether Defendant Bellnier repeatedly took such actions with respect to Plaintiff. ( Id. at 8.) Fifth, argue Defendants, Defendant Bellnier did not have reason to know of facts creating a high degree of risk of physical harm to Plaintiff and did not deliberately fail to act in conscious disregard of or indifference to that risk. ( Id. at 9-10.) Sixth, argue Defendants, by signing Plaintiff's Sheet, all Defendant Bellnier did was approve Plaintiff for double-celling; he did not direct Plaintiff's placement into a top bunk, as such decisions are made by Movement and Control staff. ( Id. at 10.)

"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Excell v. Woods, 07-CV-0305, 2009 WL 3124424, at *20 (N.D.N.Y. Sept. 29, 2009) (Suddaby, J.) [citations and internal quotation marks omitted]. "In order to prevail on a cause of action under 42 U.S.C. § 1983 against an individual, a plaintiff must show some tangible connection between the alleged unlawful conduct and the defendant." Excell, 2009 WL 3124424, at *20 [citation omitted]. "If the defendant is a supervisory official, such as a [deputy superintendent of a prison], a mere `linkage' to the unlawful conduct through `the prison chain of command' (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct." Id. [citations omitted]. "In other words, supervisory officials may not be held liable merely because they held a position of authority." Id. [citation omitted]. "Rather, supervisory personnel may be considered `personally involved' only if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring." Id. [citations omitted].

Here, Plaintiff argues that Defendants Brown, Graham, and Ryerson all engaged in a "gross omission in supervision[,]" which led to his fall from an upper bunk. (Dkt. No. 48, Part 2 at 8-16.) Plaintiff further argues that "Defendants Brown, Graham, Ryerson and Bellnier created and governed the policy and procedures used to unlawfully place [him] in a top-bunk and allowed such created policy to continue[,] which resulted in the serious permanent injury to [him]." ( Id. at 12.)

More specifically, with regard to Defendant Bellnier, Plaintiff does not argue that he either directly participated in the action, failed to remedy a wrong after learning of the violation, or exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. ( Id. at 8-21.) Instead, Plaintiff argues that Defendant Bellnier (1) created or allowed the policy or custom under which the incident occurred (i.e., the policy of not reviewing the content of the forms submitted by Correction Counselor Lynn Anderson before approving them), and (2) was grossly negligent in managing subordinates who caused the incident (i.e., by repeatedly failing to review the content of the forms submitted by Correction Counselor Anderson before approving them). ( Id.)

1. Policy or Custom

As explained above in Part III.B. of this Decision and Order, under the third prong for supervisory negligence, supervisors may be found liable if they created or allowed the policy or custom under which the incident occurred. "A policy or custom may be inferred from acts or omissions of supervisory officials serious enough to amount to gross negligence or deliberate indifference to the constitutional rights of the plaintiff." Eng v. Coughlin, 684 F. Supp. 56, 65 (S.D.N.Y. 1988); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) ("[D]eliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate. . . .").

Generally, a single incident involving an employee below the policymaking level will not suffice to support an inference of an official custom or policy, absent evidence tending to support, at least circumstantially, such an inference. Cf. Davis v. County of Nassau, 355 F. Supp.2d 668, 678 (E.D.N.Y. 2005) (applying rule in context of municipal customs or policies) [internal quotation marks and citations omitted]; see also Barad v. Comstock, 03-CV-0736, 2004 WL 1573999, at *3 (W.D.N.Y. June 4, 2004) (dismissing supervisory liability claim against DOCS Commissioner Glenn Goord because plaintiff "failed to state (1) the manner in which the supervisory staff at GCF were improperly trained, (2) how Goord allegedly knew of the past instances of misconduct, (3) assuming awareness of the past conduct, how such awareness posed an unreasonable risk to plaintiff, (4) that Goord somehow knew of plaintiff's medical condition or (5) facts which could support a showing of `grossly negligent' conduct.").

Here, there is record evidence that, due to fact that Defendant Bellnier had to sign hundreds of pieces of paper each week, he did not thoroughly review the contents of each of the forms submitted by Correction Counselor Anderson before approving them. (Dkt. No. 45, Part 3, at 3-4, ¶¶ 15-17, 20 [Bellnier Affirm.].) In arguing that no record evidence exists that Defendant Bellnier's custom ever before impacted an inmate the way it impacted Plaintiff, Defendants attempt to insert an injury element into the custom at issue, narrowly defining the "custom" so that it has not been shown to be a custom at all. The Court is not persuaded that the custom in question can be so narrowly defined. Rather, the Court finds that Defendant Bellnier's "custom," for purposes of the supervisory liability standard, was merely one of incompletely reviewing the contents of the forms presented to him by Correction Counselor Anderson. That is the custom under which the incident in question occurred.

For these reasons, the Court denies Defendants' motion for summary judgment to the extent that it seeks the dismissal of Plaintiff's claim against Defendant Bellnier.

2. Gross Negligence in Managing Subordinate

In the interest of thoroughness, the Court will analyze Plaintiff's alternative asserted ground for supervisory liability. Under the fourth prong for supervisory negligence, supervisors may be found liable if they were grossly negligent in managing a subordinate who caused the incident. Thompson, 2001 WL 636432, at *7. Gross negligence has been defined as "an indifference to present legal duty and utter forgetfulness of legal obligations." Doe v. New York City Dep't of Soc. Servs., 649 F.2d 134, 143 n. 4 (2d Cir. 1981). Thus, defendants are grossly negligent when they "[have] reason to know of facts creating a high degree of risk of physical harm to another and deliberately [act] or [fail] to act in conscious disregard or indifference to that risk." Poe v. Leonard, 282 F.3d 123, 140 n. 14 (2d Cir. 2002).

Having said that, "[s]upervisors cannot be expected to reinvent the wheel with every decision, for that is administratively unfeasible; rather, they are entitled to rely upon the decisions of their predecessors or subordinates so long as those decisions do not appear to be obviously invalid, illegal or otherwise inadequate." Poe v. Leonard, 282 F.3d 123, 144 (2d Cir. 2002); see also Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (finding that it was erroneous for the trial court to conclude that police supervisors had a duty to conduct an independent investigation before charging a suspect).

In Poe v. Leonard, the plaintiff sued a trooper with the Connecticut State Police ("CSP"), for videotaping her undressing at the CSP Training Center after asking her to appear in a training video. Poe, 282 F.3d at 125. Plaintiff also sued a captain, the trooper's former supervisor, alleging that he "violated her rights by his gross negligence or deliberate indifference in failing to adequately train, supervise, and discipline [the trooper]." Id. The Second Circuit concluded that the captain was "entitled to qualified immunity because the evidence that [plaintiff] asserts should have put [the captain] on notice that he needed to supervise [the trooper] more closely is insufficient as a matter of law to demonstrate that [the captain] is liable as [the trooper's] supervisor under clearly established law." Id. at 125. The Second Circuit based its conclusion on its finding that "[t]he facts [plaintiff] alleges are insufficient as a matter of law to have put a reasonable supervisor on notice that there was a high risk that one of his subordinates would violate another's constitutional rights." Id. at 145.

Here, unlike in Poe v. Leonard, the Court finds that the record contains admissible record evidence from which a rational fact finder could conclude that a reasonable supervisor would have been put on notice that there was a high risk that Plaintiff's constitutional rights would be violated, based on Correction Counselor's failure to ensure that Plaintiff's Double-Cell Information Sheet was complete. More specifically, on its face, even a cursory review of the Sheet reveals that the "Health Services Review Results" section was not completed. (Dkt. No. 45, Part 12, at 2.) From this evidence, a rational fact finder could conclude that Defendant Bellnier knew and/or should have known (1) that Correction Counselor Anderson (his subordinate) failed to ensure that the Sheet was complete, and (2) that, because certain inmates approved for double-celling may need to be restricted to a bottom bunk for medical reasons, the failure to complete the form could result in Plaintiff suffering a constitutional violation.

For this alternative reason, the Court denies Defendants' motion for summary judgment to the extent that it seeks the dismissal of Plaintiff's claim against Defendant Bellnier.

C. Remainder of Plaintiff's Claims

Neither Defendants nor Plaintiff made any specific challenge to the remainder of Magistrate Judge Homer's Report-Recommendation, which recommended that the remainder of Plaintiff's Complaint be dismissed. As a result, those portions of the Report-Recommendation are subject to only clear-error review, as explained above in Part II.A. of this Decision and Order.

After carefully reviewing all of the papers in this action, including Magistrate Judge Homer's Report-Recommendation, the Court concludes that the referenced portions of the Report-Recommendation are correct and not clearly erroneous. As a result, the referenced portions of the Report-Recommendation are accepted and adopted; Defendants' motion is granted with regard to Plaintiff's claims against Defendants Graham and Brown; and those claims are dismissed.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Homer's Report-Recommendation is ACCEPTED and ADOPTED as modified above; and it is further

ORDERED that Defendants' motion for summary judgment (Dkt. No. 45) is GRANTED with regard to Plaintiff's claims against Defendants Graham, Brown, and Ryerson. The clerk is directed to terminate these defendants; and it is further

ORDERED that Defendants' motion for summary judgment (Dkt. No. 45) is DENIED with regard to Plaintiff's claims against Defendant Bellnier.