Opinion
9:09-cv-515 (GLS/DEP).
July 21, 2011
Delville Bennett, Pro Se, Woodbourne Correctional Facility, Woodbourne, NY, Attorney for the plaintiff.
MICHAEL G. MCCARTIN, Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, Attorney for the defendants.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Pro se plaintiff Delville Bennett, an inmate at Woodbourne Correctional Facility, brings this action under 42 U.S.C. § 1983, alleging deliberate indifference to his medical needs by three medical employees of the New York State Department of Correctional Services in violation of his Eighth Amendment rights. ( See Compl., Dkt. No. 1.) In April 2010, defendants filed a motion for summary judgment. (Dkt. No. 31.) In a Report-Recommendation (R R) filed February 28, 2011, Magistrate Judge David E. Peebles recommended that defendants' motion be granted, and that Bennett's claims be dismissed. (Dkt. No. 48.) Pending are Bennett's objections to the R R. (Dkt. No. 49.) For the reasons that follow, the R R is adopted in its entirety.
The Clerk is directed to append the R R to this decision, and familiarity therewith is presumed.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
III. Discussion
On June 19, 2007, while a prison inmate at Great Meadow Correctional Facility in Comstock, New York, Bennett tripped and fell down a set of stairs. ( See Compl. ¶ 7, Dkt. No. 1.) Following his accident, Bennett sought treatment at the facility hospital, and was seen by defendant Nesmith, a physicians assistant at Great Meadow. ( See id. at ¶ 8.) Bennett complained of pain in his right knee, and an x-ray ordered by Nesmith revealed no broken bones. ( See Nesmith Decl. ¶ 4, Dkt. No. 31:5.) Consequently, Nesmith provided Bennett with Tylenol PM and recommended that Bennett rest his leg. ( See id.) Bennett later complained of further pain, and alleged that Nesmith had been deliberately indifferent to his medical needs. ( See Compl. ¶ 8, Dkt. No. 1.)Bennett has objected generally to Judge Peebles's R R and has not specifically objected to any particular finding or recommendation. ( See Objections, Dkt. No. 49.) Because Bennett has objected to Judge Peebles's findings and recommendations as a whole and has not raised any new objections, the court has reviewed those findings and recommendations for clear error and finds none. For the following reasons, the R R is adopted in its entirety and Bennett's complaint is dismissed.
A. Procedural Defects
Judge Peebles recommended that summary judgment be entered for defendants and Bennett's complaint be dismissed due to Bennett's failure to exhaust the administrative remedies available to him before initiating his lawsuit. ( See R R at 8, Dkt. No. 48.) The Prison Litigation Reform Act of 1996 requires prisoners to exhaust all available administrative remedies prior to commencing a federal civil rights action under § 1983. 42 U.S.C. § 1997e(a). Failure to exhaust available administrative remedies subjects an inmate plaintiff's complaint to dismissal. See Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006). The Second Circuit has established a three-part test to determine whether a complaint filed before available remedies have been exhausted should ultimately be dismissed. See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). First, there must have been administrative remedies available to the plaintiff at the relevant times. See id. Second, if a remedy was available, the defendant must not have forfeited the defense of non-exhaustion by failing to properly raise or preserve it. See id. Alternatively, the defendant must not have done something to prevent the plaintiff from exhausting his available remedies. See id. In such an instance, the defendant would be estopped from asserting failure to exhaust as a defense. See id. The final prong of the test is whether the plaintiff has alleged any special circumstances that justify his failure to pursue and comply with administrative remedies. See id.
This subsection states: "No action shall be brought with respect to prison conditions under [§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
As Judge Peebles notes, it is clear that administrative remedies were available to Bennett and that defendants preserved the defense of failure to exhaust by raising it in their answer. ( See R R at 15, Dkt. No. 48; see also Defs. Answer at 2, ¶ 9, Dkt. No. 18.) The court further agrees with Judge Peebles's conclusions that Bennett has not produced sufficient evidence to show that defendants' conduct should bar them from asserting this defense, and that no special circumstances exist justifying Bennett's failure to exhaust available administrative remedies prior to filing a lawsuit. ( See R R at 15-18, Dkt. No. 48.) For these reasons, Bennett's complaint is dismissed on procedural grounds.
B. Eighth Amendment Claim
Even if Bennett had complied with all procedural requirements of exhaustion, his complaint would fail on its merits. Under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and citation omitted). Eighth Amendment cruel and unusual punishment claims against prison officials, including claims of medical indifference, require the plaintiff to satisfy both objective and subjective elements. See Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006). Under the objective prong, the plaintiff's medical condition and the alleged deprivation of treatment must be sufficiently serious to establish a constitutional violation. See Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). Minor injuries or conditions are not enough to invoke the Eighth Amendment. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Rather, the plaintiff's condition must be one "of urgency, one that may produce death, degeneration, or extreme pain." Id. (internal quotation marks and citation omitted).
Bennett's complaint plainly fails to allege any injury or condition he had at the relevant time which would be sufficiently serious to constitute an Eighth Amendment violation. Bennett's ambulatory health record (AHR) demonstrates that his injuries were minimal and therefore insufficiently serious to implicate the Eighth Amendment. ( See Defs. Ex. B, Dkt. No. 31:4.)
The AHR indicates that Bennett complained of pain in his right knee and ankle, but no swelling or bruising was found. ( See Defs. Ex. B, Dkt. No. 31:4.)
The second prong of an Eighth Amendment medical indifference claim is a subjective one. To satisfy this requirement, the plaintiff must show that the defendants were deliberately indifferent, meaning the defendants "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. Here, the record shows that Bennett was promptly provided with objectively adequate treatment following his accident. The AHR indicates that following his complaints of knee and ankle pain, Bennett was given Tylenol PM and Ibuprofen, and allowed time to rest. ( See Defs. Ex. B, Dkt. No. 31:4.) Therefore, there is no evidence that defendants exhibited the requisite culpable state of mind to be found deliberately indifferent to Bennett's health. Upon clear error review of Judge Peebles's recommendation, the court finds none and dismisses Bennett's deliberate indifference claims against the defendants.
C. Retaliation Claim
As to Bennett's retaliation claim, Judge Peebles recommended dismissal of this claim for failure to provide more than conclusory assertions that a connection existed between Bennett's filing of a grievance and the alleged failure to provide him with adequate medical care. ( See R R at 29-30, Dkt. No. 48.) In order to maintain a retaliation claim, the plaintiff must provide more than mere speculation regarding the connection between the filing of a grievance and the purported failure to provide adequate medical care. See Shaheen v. McIntyre, No. 9:05-CV-0173, 2007 WL 3274835, at *13 (N.D.N.Y. Nov. 5, 2007). Because Bennett fails to provide any evidence that defendant Nesmith, who was responsible for Bennett's medical care, even knew about the grievance, his retaliation claim is dismissed.
As to defendant Whalen, Bennett's complaint fails to demonstrate sufficient personal involvement by Whalen to establish liability for damages under § 1983. In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some "tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Bennett has only made conclusory allegations that Whalen failed to provide adequate medical treatment, even though Whalen was not Bennett's attending physician at the relevant time. ( See Compl. ¶ 13-15, Dkt. No. 1.) This alone is an insufficient basis for personal liability under § 1983. See Bass, 790 F.2d at 263; see also Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009). Therefore, Bennett's claims against Whalen are dismissed.
D. Leave to Amend
Finally, Bennett seeks leave to amend his complaint. ( See Dkt. No. 37.) Despite his pro se status, and the deference afforded to him because of this, the court agrees with Judge Peebles's recommendation that Bennett be denied leave to amend. ( See R R at 38, Dkt. No. 48.) The court finds no clear error in Judge Peebles's conclusion that allowing Bennett to amend his complaint would be futile, in that none of the evidence on record indicates that Bennett can make out a valid section 1983 claim against these defendants. ( See id.) As such, Bennett is denied leave to amend his complaint.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles's Report-Recommendation (Dkt. No. 48) is ADOPTED, and defendants' motion (Dkt. No. 31) is GRANTED; and it is further
ORDERED that all of Bennett's claims against defendants Nesmith, Wright, and Whalen are DISMISSED; and it is further
ORDERED that the Clerk close this case and provide copies of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Plaintiff Delville Bennett, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983 alleging deprivation of his civil rights. Plaintiff's complaint originally named three medical employees of the New York State Department of Correctional Services ("DOCS") as defendants, and alleges that they were deliberately indifferent to his complaints of persistent pain. As relief, plaintiff seeks recovery of compensatory and punitive damages as well as a permanent injunction directing prison officials to examine him and provide appropriate medical treatment.Defendants now seek summary judgment dismissing Bennett's claims against them, asserting they are entitled to judgment because he failed to exhaust his administrative remedies, and additionally arguing that plaintiff's claims fail as a matter of law. For the reasons set forth below, I recommend that defendants' motion be granted and that plaintiff's complaint be dismissed in its entirety.
I. BACKGROUND
In light of the procedural posture of the case following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). It should be noted, however, that many if not most of plaintiff's allegations are sharply contested by the defendants.
Plaintiff, a prison inmate entrusted to the care and custody of the DOCS, at the times relevant to his claims was designated to the Great Meadow Correctional Facility ("Great Meadow"), located in Comstock, New York. Complaint (Dkt. No. 1) ¶ 2.
The facts surrounding plaintiff's claims, which are relatively uncomplicated and largely undisputed, involve an incident occurring on June 19, 2007, when he fell down stairs at one of the buildings at Great Meadow. Complaint (Dkt. No. 1) ¶ 7. Plaintiff apparently sought medical treatment for the resulting injuries he sustained from defendant Ted Nesmith, a physicians assistant ("PA") who, he maintains, was indifferent to his medical condition. Id. at ¶ 8. PA Nesmith and a facility nurse saw Bennett when he arrived at the facility hospital, reporting that his right knee had given out and that he had fallen down six stairs; as a result of plaintiff's complaints of pain in his right knee, PA Nesmith ordered an x-ray. Nesmith Decl. (Dkt. No. 31-5) ¶ 4. PA Nesmith's review of that x-ray revealed no broken bone, and he consequently ordered that plaintiff be provided with Tylenol PM to treat his pain, and provided Bennett with permission to take three days of rest in his cell to recover while elevating his leg. Id.
The other defendant whose actions remain at issue in this lawsuit is Timothy Whalen, a physician employed by the DOCS. Whalen Decl. (Dkt. No. 31-6) ¶ 3. The basis for plaintiff's claims against defendant Whalen is less than clear, especially since plaintiff concedes that Whalen had no involvement in the care and treatment provided for the injuries that he sustained during his fall. Prior to his accident on June 19, 2007, Bennett saw defendant Whalen on one occasion, on October 23, 2006, for a follow-up medical visit relating to complaints of pain in his left hand. Transcript of Bennett Deposition ("Bennett Tr.") (Dkt. No. 31-3) pp. 62-63, 65, 67. That visit lasted fifteen seconds, and after that Bennett refused to see Dr. Whalen again. Id. at pp. 62, 68-69, 75. Plaintiff's claim against Dr. Whalen appears to be premised upon his theory that Whalen was ultimately responsible for the treatment that Bennett received in the facility hospital on June 19, 2007. Bennett Tr. (Dkt. No. 31-3) pp. 71-72.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on May 1, 2009. Dkt. No. 1. Plaintiff's complaint names PA Nesmith, Dr. Whalen, and Dr. Wright as defendants and asserts a claim of deliberate medical indifference in violation of the Eighth Amendment's prohibition against cruel and unusual punishment, as well as a claim that could be construed as one for retaliation, asserting that he was refused medical treatment as a result of a grievance previously filed against Dr. Whalen. Id.
Following service of an answer and completion of pretrial discovery, defendants moved pursuant to Federal Rule of Civil Procedure 56(b) for summary judgment dismissing the complaint, arguing in support of their motion that 1) plaintiff failed to exhaust his administrative remedies before commencing suit; 2) the record fails to supply a basis sufficient to find defendant Whalen personally involved in the constitutional deprivations alleged; 3) plaintiff's claim of medical indifference against defendant Whalen fails as a matter of law; 4) the evidence in the record shows that plaintiff's Eighth Amendment rights were not violated; and 5) in any event, defendants are protected from liability on plaintiff's claims under the doctrine of qualified immunity. Plaintiff has since responded in opposition to defendants' motion, Dkt. No. 37, which is now fully briefed and ripe for determination, and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S. Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Failure to Exhaust
In support of their motion, defendants first contend that the complaint is subject to summary dismissal since the record reveals that plaintiff failed to exhaust his administrative remedies by filing a grievance addressed to the claims alleged in the complaint before commencing this lawsuit. The record presently before the court appears to support defendants' assertion.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 2382 (2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002) (citation omitted).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In the event a defendant named in such an action establishes that the inmate plaintiff failed properly to exhaust available remedies prior to commencing the action, his or her complaint is subject to dismissal. See Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 94-95, 126 S. Ct. at 2387-88 (holding that the PLRA requires "proper exhaustion" of available remedies). "Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95, 126 S. Ct. at 2388; see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (citing Woodford).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "in a substantive sense", an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his or her available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted).
In a series of decisions rendered since the enactment of the PLRA, the Second Circuit has crafted a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. Macias, 495 F.3d at 41; see Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). Under the prescribed algorithm, a court must first determine whether administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. If such a remedy existed and was available, the court must next examine whether the defendants have forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it or whether, through their own actions preventing the exhaustion of plaintiff's remedies, they should be estopped from asserting failure to exhaust as a defense. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event the proffered defense survives these first two levels of scrutiny, the court lastly must examine whether special circumstances nonetheless exist and "have been plausibly alleged" to justify the plaintiff's failure to comply with the applicable administrative procedural requirements. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686.
As will be seen, whether the Hemphill test survives following the Supreme Court's decision in Woodford, has been a matter of some speculation. See, e.g., Newman v. Duncan, NO. 04-CV-395, 2007 WL 2847304, at * 2 n. 4 (N.D.N.Y. Sept. 26, 2007) (McAvoy, S.J. and Homer, M.J.).
In practicality these three prongs of the prescribed test, though perhaps intellectually distinct, plainly admit of significant overlap. See Hargrove, 2007 WL 389003, at *8 n. 14; see also Giano v. Goord, 380 F.3d 670, 677 n. 6 (2d Cir. 2004).
a) Availability of Remedy
New York prison inmates are subject to an Inmate Grievance Program ("IGP") established by the DOCS and recognized as an "available" remedy for purposes of the PLRA. See Mingues v. Nelson, No. 96 CV 5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004) (citing Mojias v. Johnson, 351 F.3d 606 (2d Cir. 2003) and Snider v. Melindez, 199 F.3d 108, 112-13 (2d Cir. 1999)). The IGP consists of a three-step review process. First, a written grievance is submitted to the Inmate Grievance Review Committee ("IGRC") within twenty-one days of the incident. 7 N.Y.C.R.R. § 701.5(a). The IGRC, which is comprised of inmates and facility employees, then issues a determination regarding the grievance. Id. §§ 701.4(b), 701.5(b). If an appeal is filed, the superintendent of the facility next reviews the IGRC's determination and issues a decision. Id. § 701.5(c). The third level of the process affords the inmate the right to appeal the superintendent's ruling to the Central Office Review Committee ("CORC"), which makes the final administrative decision. Id. § 701.5(d). Ordinarily, absent the finding of a basis to excuse non-compliance with this prescribed process, only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to section 1983 in a federal court. Reyes v. Punzal, 206 F. Supp. 2d 431, 432 (W.D.N.Y. 2002) (citing, inter alia, Sulton v. Greiner, No. 00 Civ. 0727, 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000)).
The IGP supervisor may waive the grievance timeliness requirement due to "mitigating circumstances." 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a)-(b).
Despite an inmate's entitlement in most instances to file and pursue a grievance in accordance with the IGP, there are circumstances under which the grievance procedure nonetheless is deemed not to have been available to an inmate plaintiff. See Hemphill, 380 F.3d at 687-88. Thus, for example, "[e]xhaustion may be considered unavailable in situations where plaintiff is unaware of the grievance procedures or did not understand it, . . . or where defendants' behavior prevents plaintiff from seeking administrative remedies." Hargrove, 2007 WL 389003, at *8 (citations omitted) (noting, for example, that a defendant's failure to advance plaintiff's grievances or the issuance of threats against an inmate to deter the filing of a grievance may effectively render the administrative process unavailable). When testing the availability of administrative remedies in the face of claims that undue influence from prison workers has caused a plaintiff inmate to forego the formal grievance process, courts employ an objective test, examining whether "a similarly situated individual of ordinary firmness [would] have deemed them available." Id. at 688 (quotations and citations omitted); see Hargrove, 2007 WL 389003, at *8.
b) Presentation of Defense/Estoppel
The second prong of the Hemphill analysis focuses upon "whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Hemphill, 380 F.3d at 686 (citations omitted).
c) Special Circumstances
The third, catchall factor to be considered under the Second Circuit's prescribed exhaustion rubric focuses upon whether special circumstances have been plausibly alleged which, if demonstrated, would justify excusing a plaintiff's failure to exhaust administrative remedies. Hemphill, 380 F.3d at 689; see also Giano, 380 F.3d at 676-77; Hargrove, 2007 WL 389003, at *10. Among the circumstances potentially qualifying as "special" under this prong of the test include where a plaintiff's reasonable interpretation of applicable regulations regarding the grievance process differs from that of prison officials and leads him or her to conclude that the dispute is not grievable. Giano, 380 F.3d at 676-77; see also Hargrove, 2007 WL 389003, at *10 (quoting and citing Giano).
In this case, there is no dispute regarding the availability of the remedy, or defendants' preservation of the defense by raising it in their answer. See Defendants' Answer (Dkt. No.) ¶ 9. And, defendants have produced unrefuted evidence that plaintiff did not pursue a grievance regarding the allegedly unconstitutional medical care he received at Great Meadow through the final level of appeal to the CORC. Bellamy Decl. (Dkt. No. 31-7) ¶ 5. The question presented is whether plaintiff has produced sufficient evidence to suggest that defendants should be estopped from asserting this defense, or special circumstances otherwise exist which warrant excusing Bennett's failure to exhaust his administrative remedies regarding the claims at issue in this lawsuit. On the record before the court, he has not.
To the contrary, at his deposition plaintiff confirmed that the only grievance he filed against defendant Whelan was filed more than six months before the incident alleged in the complaint, on December 7, 2006, complaining that his medical needs were not being met. Bennett Tr. (Dkt. No. 31-3) pp. 87, 93, 100-01. Plaintiff also essentially admitted that he did not file a grievance relating to the medical care that was provided to him in relation to the June 19, 2007 incident. Although he claimed that five bags of his property, which included his grievance files, were stolen from him, when asked whether he ever filed a grievance regarding the claims alleged in the complaint, Bennett stated that he could not recall, and made no claim that he ever was prevented from doing so. Id. at pp. 118, 124.
In opposition to defendants' motion, plaintiff generally asserts that the IGP is unreliable and that the prison administration will delete and expunge grievances in order to prevent plaintiff from pursuing his claims. Plf's Opposition Memorandum (Dkt. No. 37-3) ¶ 3. For the first time, contradicting his own deposition testimony, plaintiff seems to claim that he did file and pursue through appeal to the CORC a grievance regarding the claims asserted in this action. See Plaintiff's Response to Defendants' Local Rule 7.1(a)(3) Stmt. (Dkt. No. 37) p. 21 (unnumbered). Additionally, plaintiff now claims that at the time of his deposition on December 15, 2009 he "was afflicted with atrocities cruel and unusual punishment for the period of time that he was there", including being deprived of a shower and receiving only three meals, assertions that he never made during the course of his deposition testimony. See Plaintiff's Opposition Memorandum (Dkt. No. 37-3) ¶ 6.
In response to defendants' statement that plaintiff did not exhaust his administrative remedies because he did not pursue a grievance through the third step in the DOCS grievance procedure by filing an appeal to the CORC, see Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 31-8) ¶ 5, plaintiff states, "[p]laintiff denied NO. 5 he did appeal and pursue his grievance to the central office Review Commette [sic] (CORC)." Plaintiff's Response to Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 37) p. 21 (unnumbered). Additionally, attached to plaintiff's opposition papers is a grievance dated February 11, 2009, nearly two years after the incident alleged in this lawsuit, which was apparently filed when plaintiff was housed at Clinton Correctional Facility and is stamped received on February 24, 2009. See Plf's Exh. 2 (Dkt. No. 37-1) p. 20 (unnumbered). Plaintiff does not provide any further information with respect to this grievance, and has not shown that he pursued it through appeal to the CORC. Even more, that grievance only generally claims that the medical department has ignored his requests for medical attention, which he believes indicates he is terminally ill, and makes no reference whatsoever to any of the claims made in this lawsuit.
Plaintiff's new and uncorroborated contention that he pursued a grievance, however, fails to create a genuine issue of material fact as to whether he completed the exhaustion process. Shaheen v. McIntyre, No. 9:05-CV-0173, 2007 WL 3274835, at * 16 (N.D.N.Y. Nov. 5, 2007) (McAvoy, S.J. and Lowe, M.J.). Though Bennett claims that his personal property was stolen at some point, and also implies that his grievance was included therein, in opposition to defendants' motion he has produced no evidence that he ever attempted to file a grievance involving the claims at issue in this lawsuit. Plaintiff does not state the date on which such grievance was allegedly filed, or where he was located at the time, nor does he does specifically identify the particulars of the complaint he allegedly made. In sum, despite plaintiff's eleventh-hour, unsupported assertion, the record remains barren of any evidence that plaintiff satisfied, or was somehow prevented from satisfying, his obligation to exhaust administrative remedies. Plaintiff's complaint should therefore be dismissed on this procedural basis.
C. Medical Indifference
Defendants further contend that even if plaintiff's claims were properly exhausted, they would fail on the merits because the medical care he received met the minimum standards imposed by the Eighth Amendment.
Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976). The Eighth Amendment prohibits punishment that involves the "unnecessary and wanton infliction of pain" and is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Id.; see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)). To satisfy their obligations under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer, 511 U.S. at 832, 114 S.Ct. at 1976 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200 (1984)) (internal quotations omitted).
A claim alleging that prison officials have violated the Eighth Amendment by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, No. 07-CV-2634 (JFB/ARL), 2010 WL 889787, at *7-8 (E.D.N.Y. Mar. 8, 2010). Addressing the objective element, to prevail a plaintiff must demonstrate a violation sufficiently serious by objective terms, "in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). With respect to the subjective element, a plaintiff must also demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). Claims of medical indifference are subject to analysis utilizing this Eighth Amendment paradigm. See Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006).
1. Objective Requirement
Analysis of the objective, "sufficiently serious," requirement of an Eighth Amendment medical indifference claim begins with an inquiry into "whether the prisoner was actually deprived of adequate medical care . . .", and centers upon whether prison officials acted reasonably in treating the plaintiff. Salahuddin, 467 F.3d at 279. A second prong of the objective test addresses whether the inadequacy in medical treatment was sufficiently serious. Id. at 280. If there is a complete failure to provide treatment, the court must look to the seriousness of the inmate's medical condition. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). If, on the other hand, the complaint alleges that treatment was provided but was inadequate, the seriousness inquiry is more narrowly confined to that alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in treatment . . . [the focus of] the inquiry is on the challenged delay or interruption, rather that the prisoner's underlying medical condition alone." Id. (quoting Smith, 316 F.3d at 185) (internal quotations omitted). In other words, at the heart of the relevant inquiry is the seriousness of the medical need, and whether from an objective viewpoint the temporary deprivation was sufficiently harmful to establish a constitutional violation. Smith, 316 F.3d at 186. Of course, "when medical treatment is denied for a prolonged period of time, or when a degenerative medical condition is neglected over sufficient time, the alleged deprivation of care can no longer be characterized as 'delayed treatment', but may properly be viewed as a 'refusal' to provide medical treatment." Id. at 186, n. 10 (quoting Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)).
Since medical conditions vary in severity, a decision to leave a condition untreated may or may not raise constitutional concerns, depending on the circumstances. Harrison, 219 F.3d at 136-37 (quoting, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Relevant factors informing this determination include whether the plaintiff suffers from an injury or condition that a "'reasonable doctor or patient would find important and worthy of comment or treatment'", a condition that "'significantly affects'" a prisoner's daily activities, or "'the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (citation omitted); Lafave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.) (citation omitted).
2. Subjective Element
The second, subjective, requirement for establishing an Eighth Amendment medical indifference claim mandates a showing of a sufficiently culpable state of mind, or deliberate indifference, on the part of one or more of the defendants. Salahuddin, 467 F.3d at 280 (citing Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 2325 (1991)). Deliberate indifference, in a constitutional sense, exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Leach v. Dufrain, 103 F. Supp.2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing Farmer); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.) (same). Deliberate indifference is a mental state equivalent to subjective recklessness as the term is used in criminal law. Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40, 114 S. Ct. 1970).
Plaintiff's complaint, which is lacking in detail, alleges that defendants refused and failed to properly treat and examine him for the injuries he sustained on June 19, 2007, and that as a result he continues to experience excruciating pains in his knees, ankle joints, left side of his body, his chest, and lower back. Notwithstanding the completion of discovery and defendants' motion seeking summary dismissal of his complaint, plaintiff's claim of medical indifference remains conclusory.
Though plaintiff continues to claim that he presented to the facility hospital on June 19, 2007 complaining of numerous injuries, he fails to identify with specificity any injury or condition that he had at the time or that has since worsened, stating only that his injuries "called for x-ray of his shank right knee chest and ankle[,]" whereas only his knee was x-rayed. Plaintiff's Reply to Decl. of Ted Nesmith, P.A. (Dkt. No. 37-1) ¶ 4. In contrast to plaintiff's vague and unsupported allegations, plaintiff's ambulatory health record ("AHR") provides objective evidence demonstrating that his injuries were minimal. In fact, Bennett's only complaint on June 19, 2007 was pain in his right knee, for which an x-ray was ordered, revealing no abnormality. Moreover, plaintiff does not dispute that he did receive treatment for his complaints; he was given Tylenol PM for the pain and a pass for three days of rest by defendant Nesmith.
A subsequent review of the June 19, 2007 x-ray by a physician, Dr. William Hendrick, at Albany Medical Center revealed a finding of "mild osteoarthritis", a common type of arthritis that is caused by the breakdown and eventual loss of cartilage of one or more joints. Nesmith Decl. (Dkt. No. 31-5) ¶ 5.
Significantly, plaintiff's AHR reveals that less than a week later plaintiff had returned to jogging. Although plaintiff continued to complain of pain in his right knee and ankle when presenting to the Great Meadow medical facility on June 28, 2007, an examination by a facility health care provider on that occasion revealed no swelling or bruising, no acute distress, that plaintiff ambulated well, and that he reported increased pain with jogging. Bennett Tr., Exh. 1 (Dkt. No. 31-4). On that date, Bennett was provided with a ten-day supply of ibuprofen for his pain. The next notation in plaintiff's AHR occurred on July 16, 2007, at the time of plaintiff's transfer to another DOCS facility. Id. at Exh. 7. On the date of his transfer, no physical complaints, medications, or restrictions were noted. See id.
Plaintiff, who was sixty-six years old at the time of his deposition, testified that he has continued to try to jog and play soccer since his fall on June 19, 2007. Bennett Tr. (Dkt. No. 31-3) pp. 43, 46, 47-48, 58-60.
It is well established that minor injuries do not normally rise to the level of seriousness required to make a viable claim medical indifference under the Eighth Amendment. See, e.g., Harris v. Morton, No. 9:05-CV-1049, 2008 WL 596891, at *3 n. 2 (N.D.N.Y. Feb. 29, 2008) (Kahn, J. and Treece, M.J.) ("We note that although Plaintiff states he suffered from a 'snapped' neck, he does not indicate he suffered from anything other than a generic neck injury.") (citing Bennett v. Hunter, No. 9:02-CV-1365, 2006 WL 1174309) (Scullin, S.J. and Lowe, M.J.) (pinched nerve not a serious medical need)); Ford v. Phillips, No. 05 Civ. 6646, 2007 WL 946703, at * 12 (S.D.N.Y. Mar. 27, 2007) (abrasions, minor bruise, slight bleeding and scratches are not sufficiently serious); Dzwonczyk v. Syracuse Police Dep't, No. 5:08-CV-00557, 2008 WL 5459147, at * 13 (N.D.N.Y. Dec. 22, 2008) (McCurn, S.J.) (allegation of a bruised rib does not satisfy the requirement of a sufficiently serious deprivation); Tapp v. Tougas, No. 9:05-CV-0149, 2008 WL 4371766, at * 9 (N.D.N.Y. Aug. 11, 2008) (Peebles, M.J.) (citing Peterson v. Miller, No. 9:04-CV-797, 2007 WL 2071743, at *7 (N.D.N.Y. July 13, 2007) (noting that a "dull pain" in plaintiff's back and persistent rash on plaintiff's foot did not raise a constitutional issue) (citation omitted)), Report and Recommendation Adopted in Part, Rejected in Part, 2008 WL 4371762 (N.D.N.Y. Sep 18, 2008) (Mordue, C.J.); and, Bonner v. N.Y. City Police Dep't, No. 99 Civ. 3207, 2000 WL 1171150, at *4 (S.D.N.Y. Aug. 17, 2000) (inability to close hand due to swelling insufficiently serious to constitute Eighth Amendment violation).
Plaintiff's AHR shows that plaintiff has a history of generalized complaints of pain in the areas of his lumbar back region, cervical spine, right and left shoulders, right knee joint, and right ankle, and studies showed degenerative changes in all of all of these areas, except the right ankle, years before his fall on June 19, 2007. It should be noted that to the extent that plaintiff's complaint encompasses a claim for failure to treat these conditions, his general complaints of pain are patently insufficient to sustain an Eighth Amendment claim. Mortimer Excell v. Fischer, Civ. No. 9:08-CV-945, 2009 WL 3111711, at *5 (N.D.N.Y. Sept. 24, 2009) (Hurd, J. and Treece, M.J.).
Here, the record demonstrates that plaintiff suffered no more than a minor injury as a result of his fall on June 19, 2007 and that he was promptly provided with adequate treatment. "[T] hat [a prisoner] feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim." Dawkins v. Jones, No. 03 Civ. 0068, 2005 WL 196537, at * 16 (S.D.N.Y. Jan. 31, 2005) (citing Espinal v. Coughlin, No. 98 Civ. 2579 (RPP), 1999 WL 387435, at *4 (S.D.N.Y. June 14, 1999) (Doctor who diagnosed and treated prisoner's knee pain as asserted in complaint did not act with deliberate indifference to his medical needs.); Keyes v. Strack, 95 Civ. 2367, 1997 WL 187368, at *4 (S.D.N.Y. Apr. 16, 1997)). Because the record shows both that plaintiff did not suffer from a serious medical condition and that defendant Nesmith did not act with deliberate indifference to Bennett's medical needs, plaintiff's medical indifference claims should be dismissed on the merits.
D. Retaliation
In support of their motion, defendants next argue that to the extent plaintiff alleges that defendants retaliated against him for a grievance he filed against Whalen, this claim fails as well.
In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that 1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action — in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). If the plaintiff carries this burden, then to avoid liability the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287, 97 S. Ct. at 576. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).
As can be seen, evaluation of claims of retaliation is a particularly fact-laden exercise, since such claims revolve around both the engaging in protected conduct, as well as establishment of a nexus between that conduct and the adverse action ultimately taken. Because plaintiff's retaliation claims have been alleged in only conclusory form, and are not supported by evidence now in the record establishing a nexus between any protected activity and the adverse actions complained of, I recommend that defendants' motion for summary judgment dismissing plaintiff's retaliation claims be granted. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
Plaintiff's complaint alleges that defendants refused and failed to treat his medical needs because he filed a grievance concerning their malfeasance. It is well established that the filing of a grievance is protected under the First Amendment. Graham, 89 F.3d at 80. Moreover, the denial of medical care may establish adverse action. Benitez v Ham, No. 9:04-CV-1159, 2009 WL 3486379, at *12 n. 33 (N.D.N.Y. Oct. 21, 2009) (Mordue, C.J. and Lowe, M.J.) (citing Odom v. Poirier, No. 99 Civ. 4933, 2004 2884409, at *4 (S.D.N.Y. Dec. 10, 2004)). Plaintiff's claim, however, fails in light of my determination that plaintiff was not denied necessary medical treatment.
It is also worth noting that plaintiff offers nothing but rank speculation regarding defendant Nesmith's knowledge of the grievance filed against defendant Whalen, in the face of defendant Nesmith's unequivocal denial of knowing as well as Whalen's denial of having told PA Nesmith. Plaintiff's mere speculation as to the causal connection between his filing of a grievance and the purported failure to provide him with constitutionally adequate medical care, especially given the lack of record evidence that any such connection existed, cannot sustain a retaliation claim. Shaheen, 2007 WL 3274835, at * 11. For these reasons, defendants' motion should be granted as to any claim of retaliation.
E. Personal Involvement
In their motion, defendants also assert that the record evidence does not suffice to establish defendant Whalen's personal involvement in the acts complained of. Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under 42 U.S.C. § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
On December 7, 2006, Bennett signed a refusal sheet stating that he refused to see Dr. Whalen for medical treatment. Bennett Tr. (Dkt. No. 31-3) pp. 68-69. Plaintiff did not see defendant Whalen for medical care after that date. Bennett Tr. (Dkt. No. 31-3) at p. 75. In fact, the last date of treatment by defendant Whalen was on October 23, 2006. Id. at pp. 62, 67.
According to plaintiff, he has sued Whalen because, as Bennett's medical provider, Whalen is responsible for his medical treatment, including the care PA Nesmith provided on June 19, 2007. Id. at p. 71. As a supervisor, however, Dr. Whalen cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. Culpability on the part of such a supervisory official for a civil rights violation can, however, be established in one of several ways, including when that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has failed to remedy the wrong; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom., Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
The issue of supervisory liability for civil rights violation was addressed by the Supreme Court recently in its decision in Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009). The Second Circuit has yet to address the impact of Iqbal upon the categories of supervisory liability under Colon. Lower courts have struggled with this issue, and specifically whether Iqbal effectively calls into question certain prongs of the Colon five-part test for supervisory liability. See Sash, 674 F. Supp. 2d at 542-544; see also Stewart v. Howard, No. 9:09-CV-0069 (GLS/GHL), 2010 WL 3907227, at *12 n. 10 (N.D.N.Y. Apr. 26, 2010) ("The Supreme Court's decision in [ Iqbal] arguably casts in doubt the continued vitality of some of the categories set forth in Colon.") (citations omitted), report and recommendation adopted, 2010 WL 3907137 (Sept. 30, 2010). While some courts have taken the position that only the first and third of the five Colon categories remain viable and can support a finding of supervisory liability, see, e.g., Bellamy v. Mount Vernon Hosp., No. 07 CIV. 1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009), aff'd, 387 Fed. App'x 55 (2d Cir. 2010), others disagree and conclude that whether any of the five categories apply in any particular case depends upon the particular violations alleged and the supervisor's participatory role, see, e.g., D'Olimpio v. Crisafi, Nos. 09 Civ. 7283 (JSR), 09 Civ. 9952 (JSR), 2010 WL 2428128, at *5 (S.D.N.Y. Jun. 15, 2010); Qasem v. Toro, No. 09 Civ. 8361 (SHS), 2010 WL 3156031, at *4 (S.D.N.Y. Aug. 10, 2010).
Vague and conclusory allegations that a supervisor has failed to properly monitor the actions of subordinate employees do not suffice to establish the requisite personal involvement and support a finding of liability. Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009) ("To the extent that [a] complaint attempts to assert a failure-to-supervise claim . . . [that claim is insufficient where] it lacks any hint that [the supervisor] acted with deliberate indifference to the possibility that his subordinates would violate [plaintiff's] constitutional rights."). Under the circumstances presented, there is no basis in the record before the court to conclude that Bennett has a viable section 1983 damage claim against Dr. Whalen, and defendants' motion should therefore be granted on this basis.
F. Leave to Amend
Plaintiff suggests in his papers submitted in opposition to defendants' motion that in addition to opposing defendants' motion, he seeks leave to amend his complaint. When assessing the sufficiency of a complaint, particular deference should be afforded to a pro se litigant whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers'") (quoting Estelle, 429 U.S. at 106, 97 S. Ct. at 292 (internal quotations omitted)); Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003) (citation omitted); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.). In the event of a perceived deficiency in a pro se plaintiff's complaint, a court should not dismiss without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires").
On the other hand, if a claim contained in a proposed amended complaint would be vulnerable in the face of a Rule 12(b)(6) motion then permitting amendment would be an act of futility which should not be sanctioned. See, e.g., Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 124 (E.D.N.Y. 1996); In re Boesky Sec. Litig., 882 F.Supp. 1371, 1379 (S.D.N.Y. 1995). Accordingly, "[i]n considering whether to grant a motion for leave to amend, the court may properly take into account the futility associated with the newly added claims or defenses." Clarke v. Max Advisors, LLC, 235 F. Supp.2d 130, 151 (N.D.N.Y. 2002) (citing Foman, 371 U.S. at 182, 83 S. Ct. at 230).
Plaintiff's request for leave to amend in this action was made long after the completion of discovery and only after the defendants moved for summary judgment. In general, the special solicitude that permits a pro se plaintiff to effectively amend his or her complaint when responding to a motion to dismiss, does not similarly allow such a litigant to do so in responding to a summary judgment motion. Abdul-Matiyn v. Allen, No. 9:06-cv-1503, 2010 WL 388 0510, at * 4 n. 9 (citing cases) (N.D.N.Y. Sept. 28, 2010) (Suddaby, J.). This is particularly true where, as here, discovery has already been completed based upon the allegations in plaintiff's complaint. Id.
In this instance, at various times plaintiff's papers in opposition to defendants' motion make vague reference to leave to amend. Bennett has not, however, attached a proposed amended pleading to his moving papers, as required by the court's rules, N.D.N.Y.L.R. 7.1(a)(4), nor has he identified the particulars of any such proposed amendment, leaving the court to speculate as to what the parameters of any new proposed claim might be and whether it may state a plausible cause of action.
Upon dismissal of plaintiff's claims against Dr. Wright, he was granted leave to amend but failed to avail himself of that opportunity.
After careful review of the record before the court, I have concluded that there is no evidence suggesting that if granted another opportunity to amend his complaint, plaintiff can state a viable section 1983 claim against the defendants in this action. Defendant Whalen only saw plaintiff on one occasion for a follow-up visit relating to medical testing that occurred outside of the Great Meadow medical facility, and there is no evidence that plaintiff was suffering from a condition of urgency at that time, or that his condition thereafter significantly deteriorated to one causing a threat to his health a result of defendant Whalen's failure to treat plaintiff during that visit
For the first time, in his opposition papers plaintiff makes reference to section 1981 and claims that defendant Whalen discriminated against him based upon his race. Notwithstanding the unfairness that would result to defendants in allowing plaintiff to amend him complaint to assert a section 1981 claim at this late date, any such claim would fail on the merits. To state a claim under section 1981, the plaintiff must allege that he is a member of a racial minority, an intent to discriminate on the basis of race by the defendant, and the discrimination concerned one or more of the activities enumerated in the statute ( i.e., make and enforce contracts, sue and be sued, give evidence, etc.). Mian v. Donaldson, Lufkin Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). "Essential to an action under Section 1981 are allegations that the defendants' acts were purposefully discriminatory." Jenkins v. Arcade Bldg. Maint., 44 F.Supp. 2d 524, 528 (S.D.N.Y. 1999). "Mere 'intent as volition or intent as awareness of consequences' does not establish a discriminatory purpose; the actor must have 'selected or reaffirmed a particular course of action at least because of, not merely in spite of, its adverse effects upon an identifiable group." Hill v. Philip Morris USA, No. 03 Civ. 6922, 2004 WL 1065548 *4 (S.D.N.Y. May 11, 2004) (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Moreover, a claim seeking personal liability under section 1981 must be predicated on the actor's personal involvement. Whidbee v. Garzarelli Food Specialities, Inc., 223 F.3d 62, 75 (2d Cir. 2000). Once again, on this record, there is no evidence of any personal involvement of defendant Whalen in the unconstitutional conduct alleged.
Similarly, with regard to defendant Nesmith, the evidence in the record shows that he saw plaintiff on only two occasions, other than the date of his fall. On both occasions, February 22, 2007 and April 5, 2007, plaintiff was seen at sick call. Bennett Tr., Exhs. 8 and 9 (Dkt. No. 31-4). On the first sick call visit, plaintiff provided ambiguous and non-responsive answers to defendant Nesmith's inquiries as to what was bothering him, including, "your guess is as good as mine", and "I can't say."; ultimately, he made a vague complaint of a "crawling" sensation in both ears, and was referred by PA Nesmith for a mental health evaluation. Id. at Exh. 9.
On April 5, 2007, plaintiff complained of low back pain, right knee pain, numbness of his thighs, and a foot rash, and requested a diet for high blood pressure, lotion for his foot, and a stool to sit on to help his back pain. Defendant Nesmith's physical examination of plaintiff revealed that he was not in acute distress, plaintiff looked well, no evidence of a rash, and that plaintiff walked with some difficulty. Id. Additionally, PA Nesmith noted that x-rays of plaintiff's back and right knee, as well as a CT scan of his cervical spine, were previously conducted, revealing nothing but mild degenerative changes, and that a 2006 neurology consult resulted in no objective findings of abnormality. Nonetheless, PA Nesmith did not disregard plaintiff's complaints, but ordered x-rays of Bennett's lumbar spine and right knee as well as further observation of plaintiff. As previously noted, however, none of these general ailments occurring before plaintiff's fall on June 19, 2007, is sufficient to raise the specter of an Eighth Amendment claim. Mortimer Excell, 2009 WL 3111711, at *5.
For all of the foregoing reasons, I recommend a finding that any proposed amendment of plaintiff's complaint would be futile and that the complaint be dismissed on the merits.
IV. SUMMARY AND RECOMMENDATION
In the first instance, the record before the court demonstrates that plaintiff failed to exhaust available administrative remedies with regard to the claims alleged in his complaint before filing this lawsuit, thus warranting dismissal of the action on this procedural basis. Turning to the merits of plaintiff's claim, contrary to the allegations in plaintiff's complaint, the record before the court reveals that despite the nonspecific and relatively minor nature of plaintiff's physical complaints, at all times relevant defendant Nesmith was attentive to his medical needs and rendered appropriate care and treatment to Bennett, and in any event, plaintiff's various medical conditions never rose to a level of seriousness implicating Eighth Amendment protection. Moreover, with regard to defendant Whalen, plaintiff has failed to demonstrate his personal involvement in any alleged constitutional violation, and there is no evidence in the record that would support a claim for retaliation.
In light of my determination on the merits, I have declined to address the issue of qualified immunity.
It is therefore hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 31) be GRANTED, and plaintiff's complaint be dismissed in its entirety with prejudice.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
Dated: February 25, 2011
Syracuse, NY