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denying summary judgment where there was a dispute as to the plaintiff's dangerousness where the plaintiff testified he did not instigate the physical altercations or resist once force was used on him
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Civil Action No. 9:14-CV-0318 (GLS/DEP)
09-30-2016
ROBERT HADEN, Plaintiff, v. KARL HELLINGER, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ROBERT HADEN, Pro se #70751 Central New York Psychiatric Center P.O. Box 300 Marcy, NY 13403 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General 615 Erie Blvd. West Suite 102 Syracuse, NY 13204 OF COUNSEL: KEVIN M. HAYDEN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: ROBERT HADEN, Pro se
#70751
Central New York Psychiatric Center
P.O. Box 300
Marcy, NY 13403 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
615 Erie Blvd. West
Suite 102
Syracuse, NY 13204 OF COUNSEL: KEVIN M. HAYDEN, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by pro se plaintiff Robert Haden, a convicted sex offender who, following completion of his sentence, was civilly committed to the Central New York Psychiatric Center ("CNYPC") for participation in a sex offender treatment program. Plaintiff's amended complaint, which names eighteen present or former CNYPC employees as defendants, alleges, inter alia, that he was assaulted by some of the defendants on five separate occasions and denied adequate medical treatment.
Currently pending before the court is a motion brought by the defendants seeking the entry of partial summary judgment dismissing all of plaintiff's causes of action, with the exception of his excessive force claims. For the reasons set forth below, I recommend that defendants' motion be granted, in part, but otherwise denied. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
The CNYPC is a facility operated by the New York State Office of Mental Health ("OMH") and located in Marcy, New York. Dkt. No. 84-26 at 1. The Sex Offender Treatment Program ("SOTP") operates within the CNYPC, and "promotes community safety through the provision of quality sex offender treatment services in a secure setting that employs evidence-based methods and is consistent with best practices in the field of sex offender treatment." Dkt. No. 84-24 at 2. At the times relevant to his claims in this action, plaintiff was a resident involuntarily confined at the CNYPC, where he was undergoing sex offender treatment after having completed a thirty-year prison sentence following convictions of first-degree rape, burglary, sodomy, and robbery. Dkt. No. 42 at 1; Dkt. No. 84-21 at 9; see also New York State DOCCS, http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130 (last visited Sept. 28, 2016).
The Supreme Court has recognized that "[s]tates . . . have a vital interest in rehabilitating sex offenders [because when they] reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." McKune v. Lile, 536 U.S. 24, 33 (2002) (citations omitted).
At various times described in his amended complaint, plaintiff was placed on constant observation and in the Administrative Restrictions/Motivations on Deck ("MOD") program operated at the CNYPC. Dkt. No. 84-24 at 16. When residents become violent, a medical doctor or nurse practitioner may direct that he be placed on constant observation. Id. at 14. "The purpose of this is to allow the resident to calm down in a safe environment without access to objects that may injure or threaten the resident or staff." Id. at 13. One staff member is required to observe the resident under observation "at all times as to allow for immediate unobstructed intervention." Id. In that setting, staff members document all of the resident's actions, including his behavior, sleeping patterns, consumption of meals, use of the bathroom, and bathing. Id. at 13-14. The resident under constant observation is not permitted to possess sharp objects, pens, reading materials, certain foods, certain clothing, utensils, and mattresses. Id. at 14.
In his affidavit submitted in support of defendants' motion, the CNYPC Medical Director, Dr. Joseph Colosi, who is not a named defendant, indicates that he has attached the policies governing the constant observation and MOD programs as Exhibits B and C. Dkt. No. 84-24 at 14. Neither of those exhibits, however, is included as an attachment, nor does defendants' submission include them elsewhere. Nonetheless, the court has located both of those policies among the materials supplied by plaintiff in opposition to defendants' summary judgment motion. Dkt. No. 94-2; Dkt. No. 94-3 at 28-34; Dkt. No. 94-4 at 63-86; see also Dkt. No. 97-1.
After the period of constant observation ends, the resident "may be placed in the [MOD] program," which provides a strategy for dealing with violent and aggressive residents "[i]n order to better ensure a therapeutic environment and protect the safety and security of SOTP residents and staff[.]" Dkt. No. 84-24 at 14. There are three levels of MOD restrictions, including room MOD, unit MOD, and program MOD. Id. The intent of the MOD program is to progressively restore privileges as behavior is normalized, with the first and most restrictive step being room MOD, under which a resident is confined to his dormitory room except when using the bathroom, showering, attending medical appointments, or utilizing the telephone. Id. at 15. A resident placed in unit MOD is given greater freedom to interact with residents and staff and may leave his dormitory room to attend the day room and other activities on the unit. Id. at 16.
The third component, program MOD, is not discussed in Dr. Colosi's affidavit. It does not appear, however, that plaintiff has complained about being placed on program MOD, instead focusing on being restricted to room and unit MOD.
Plaintiff's claims in this action arise from a series of incidents occurring at the CNYPC, as well as the medical treatment received from health care professionals at the facility. The incidents and plaintiff's medical treatment are summarized below.
A. February 20, 2012 Incident
On February 20, 2012, defendant Karl Hellinger, a Secure Care Treatment Aid ("SCTA") at the CNYPC, assaulted plaintiff as he was returning to his room. Dkt. No. 42 at 7-8; see also Dkt. No. 84-21 at 17-18. After an alarm was triggered, an emergency response team comprised of defendant SCTA Hans Kuntz and other SCTAs employed at the facility assisted in restraining plaintiff. Dkt. No. 42 at 8; see also Dkt. No. 84-21 at 18; Dkt. No. 84-27 . After plaintiff was placed in five-point restraints, defendant Maura Pavlot, a registered nurse employed at the CNYPC, injected drugs into plaintiff's thigh without his consent. Dkt. No. 42 at 8; see also Dkt. No. 84-21 at 19; Dkt. No. 84-27 at 6. That injection was made at the direction of the staff physician, Dr. Hernandez, in accordance with the facility's policy for emergency medications. Dkt. No. 84-24 at 21; Dkt. No. 85 at 3. Following the incident, Dr. Hernandez placed plaintiff on constant observation through February 24, 2012. Dkt. No. 84-24 at 16; see also Dkt. No. 42 at 9; Dkt. No. 84-21 at 19.
Plaintiff alleges defendant Pavlot injected him with psychotropic drugs. Dkt. No. 42 at 8. Defendants' evidence, however, reflects that the injection was a combination of Benadryl and Ativan, neither of which is a psychotropic drug. Dkt. No. 84-24 at 21.
Again, Dr. Colosi indicates that he has attached the CNYPC's Emergency IM Medications policy as Exhibit D to his affidavit submitted in support of defendants' motion, but that exhibit is not included in defendants' submission. Dkt. No. 84-24 at 21.
At plaintiff's request, the February 20, 2012 incident was investigated by the CNYPC Incident Review Committee ("IRC"), which is chaired by defendant Anthony Gonzalez, the Director of Risk Management at the facility. Dkt. No. 84-26 at 1-2; see also Dkt. No. 84-27 . As a result of that investigation, the IRC determined that plaintiff's complaints concerning the incident were not substantiated and did not warrant a criminal investigation. Dkt. No. 84-26 at 2, 4.
B. August 20, 2012 Incident
Plaintiff alleges that on August 20, 2012, he was assaulted by defendants Eric Fical, Jason Searcy, and David Sill, all of whom are SCTAs, aided by defendant Daniel Simpkins, a registered nurse at the facility. Dkt. No. 42 at 10-13; Dkt. No. 84-21 at 54. After plaintiff was restrained, defendant Simpkins injected him with a combination of Haldol, a psychotropic drug, Ativan, and Benadryl at the direction of a physician, again without Haden's consent. Dkt. No. 42 at 13; Dkt. No. 84-21 at 56; Dkt. No. 84-24 at 21. Plaintiff suffered, inter alia, shoulder injuries as a result of the assault. Dkt. No. 84-21 at 56, 85, 93; see also Dkt. No. 42 at 14.
The clerk of the court is respectfully directed to modify the docket in this matter to reflect that the correct spelling of this individual's last name is "Simpkins." See Dkt. No. 85 at 43.
Immediately after the incident, plaintiff was again placed under constant observation. Dkt. No. 84-24 at 16; see also Dkt. No. 42 at 13; Dkt. No. 54-21 at 57. He was taken off of constant observation on the morning of August 21, 2012, and placed on room MOD. Id. at 17.
The August 20, 2012 incident was investigated by Risk Management at the CNYPC. Dkt. No. 84-26 at 2-3; see also Dkt. No. 84-28 . The investigation failed to substantiate plaintiff's claims or reveal the existence of any potentially criminal conduct. Dkt. No. 84-26 at 4.
C. August 24, 2012 Incident
On August 24, 2012, while on unit MOD status, plaintiff became involved in another physical altercation with defendant Hellinger. Dkt. No. 42 at 17; Dkt. No. 84-21 at 94; Dkt. No. 84-24 at 17. An emergency response team arrived and restrained plaintiff to a bed for a period of approximately two hours. Dkt. No. 42 at 17; Dkt. No. 84-21 at 96-97. Plaintiff was placed on constant observation until August 29, 2012. Dkt. No. 84-21 at 97; Dkt. No. 84-24 at 17-18.
D. September 22, 2012 Incident
Plaintiff again became involved in a physical confrontation with staff members on September 22, 2012; that incident stemmed from an earlier interaction with defendant SCTA Tom Box on September 19, 2012. Dkt. No. 42 at 18; Dkt. No. 84-21 at 107; see also Dkt. No. 84-26 at 3. Plaintiff contends that, after filing a complaint at the CNYPC alleging that he had been threatened by defendant Box on September 19, 2012, he was assaulted by Box three days later on September 22, 2012. Dkt. No. 42 at 18; Dkt. No. 84-21 at 107-09; see also Dkt. No. 84-26 at 3. Plaintiff was placed in room MOD immediately following the incident, and then placed in unit MOD on September 24, 2012, where he remained through approximately October 17, 2012. Dkt. No. 85 at 110-78.
According to defendants, an investigation into the incident revealed that plaintiff attempted to stab defendant Box with a ball point pen. Dkt. No. 84-26 at 3.
E. June 20, 2013 Incident
On June 20, 2013, while plaintiff was getting dressed, defendant SCTA John Santamassino assaulted him. Dkt. No. 42 at 20; Dkt. No. 84-21 at 132-35. While the assault was underway, defendant SCTA David Paulson responded to the scene and, according to plaintiff, began punching him. Dkt. No. 42 at 20-21; Dkt. No. 84-21 at 137-38. After plaintiff was restrained and placed on constant observation, defendant Kuntz threatened him with further physical harm. Dkt. No. 42 at 21; Dkt. No. 84-21 at 143. Plaintiff remained on constant observation until June 24, 2013, at which time he was placed in MOD for another twenty-eight days. Dkt. No. 85 at 196-226.
It is not clear from the record whether plaintiff was placed in room, unit, or program MOD on June 24, 2013.
This incident was also the subject of the investigation by Risk Management. Dkt. No. 42 at 21; Dkt. No. 84-26 at 4; Dkt. No. 84-29 . The investigation revealed that plaintiff was subjected to psychological abuse on June 20, 2013. Dkt. No. 84-26 at 4. Plaintiff also reported the incident to the New York State Police, who, after an investigation, concluded that plaintiff had provided false statements and charged plaintiff accordingly. Dkt. No. 84-29 at 20.
F. History of Medical Treatment Regarding Plaintiff's Shoulders
Beginning as early as February 2012, plaintiff complained to medical personnel at the CNYPC of bilateral shoulder pain. See, e.g., Dkt. No. 85 at 1. Defendant Richard Kaskiw, a medical doctor employed at the CNYPC, ordered an x-ray of plaintiff's left humerus on February 24, 2012. Dkt. No. 84-24 at 4. The x-ray revealed no fractures, dislocations, or abnormalities. Id.; Dkt. No. 85 at 1. On March 1, 2012, in response to plaintiff's complaints of left shoulder pain, he was provided Tylenol for relief. Dkt. No. 85 at 37. Following the incident on August 20, 2012, plaintiff again complained of left shoulder pain and was provided Naprosyn. Id. at 46. On August 26, 2012, plaintiff complained of bilateral shoulder pain. Id. at 79. It does not appear that plaintiff received any treatment on that date. Id. Plaintiff refused Tylenol on September 3, 2012, when he complained again of bilateral shoulder pain. Id. at 103.
On September 5, 2012, plaintiff was prescribed physical therapy one-to-two times per week for his left shoulder pain. Dkt. No. 85 at 104. After four physical therapy sessions, plaintiff showed slow progress. Id. at 105, 107.
Plaintiff's shoulders were x-rayed again on September 21, 2012, upon the referral of defendant Kaskiw. Dkt. No. 85 at 108, 109. Plaintiff's right shoulder showed no fracture and mild degenerative disease. Id. Plaintiff's left shoulder showed "mild degenerative change" and "superior subluxation of the humeral head suggesting chronic rotator cuff tear." Id. at 109. When plaintiff continued to complain of shoulder pain on September 27, 2012, Gregory Paradis, whose position at the CNYPC is unknown, recommended that plaintiff follow-up with an orthopedic surgeon to address a possible torn rotator cuff. Id. at 128, 130.
Following plaintiff's annual physical examination, conducted on October 5, 2012, a request for a consultation was made to address his bilateral shoulder pain. Dkt. No. 85 at 162-66. Dr. Bhatt saw plaintiff on November 15, 2012, and administered a steroid injection in his left shoulder and suggested that an additional x-ray of the right shoulder be conducted. Id. at 177; see also Dkt. No. 84-24 at 5. Defendant Kaskiw subsequently reviewed the report of the consultation and, on November 19, 2012, issued an order for the recommended x-ray. Dkt. No. 85 at 179; see also Dkt. No. 84-24 at 5. While the x-ray was scheduled for December 1, 2012, plaintiff refused the examination on that date, demanding that both shoulders be x-rayed. Dkt. No. 85 at 180-81.
The quality of the photocopy of the consultation request submitted by defendants does not permit me to discern who signed the request. Dkt. No. 85 at 166.
In his response to defendants' statement of undisputed material facts, plaintiff denies that he refused the scheduled x-ray. Dkt. No. 94 at 5. There is no citation to the record to support this denial, however, nor has plaintiff submitted an affidavit to that effect. Id.
On December 13, 2012, Dr. Bhatt again examined plaintiff, reviewed the x-rays from September 21, 2012, and recommended that magnetic resonance imaging ("MRI") testing of plaintiff's left shoulder be conducted as soon as possible. Dkt. No. 85 at 182; see also Dkt. No. 84-24 at 5-6. Both of plaintiff's shoulders were x-rayed again on January 4, 2013. Dkt. No. 85 at 183. The x-ray report noted that there were "mild degenerative changes . . ., no fracture, dislocation or destructive changes" to plaintiff's right shoulder as compared to the x-rays taken on September 21, 2012. Id. With respect to the left shoulder, the report noted "mild degenerative changes[,] no fracture or dislocation." Id.
The record reveals that, on January 9, 2013, and January 23, 2013, plaintiff was observed engaging in strenuous physical activity, including 200 jumping jacks, sprinting, aggressive one-on-one basketball, push-ups, pull-ups, bicep curls, and shoulder shrugs. Id. at 185-86, 189. On January 18, 2013, plaintiff received Tylenol for his shoulder pain. Id. at 187. According to defendant Pavlot's progress note dated January 23, 2013, plaintiff requested Tylenol only three times in one month. Id. at 189. Based upon plaintiff's physical activity and limited need for pain medication, defendant Kaskiw discontinued the planned MRI of plaintiff's left shoulder. Id. at 298; see also Dkt. No. 84-24 at 6. Defendant Kaskiw discussed plaintiff's activity level with him on February 6, 2013, and explained to plaintiff that his symptoms did not warrant an MRI. Dkt. No. 85 at 299. On the same date, defendant Kaskiw conferred with Dr. Bhatt regarding the MRI, and in defendant Kaskiw's progress note he indicates that Dr. Bhatt "agree[d] the MRI [was] not indicated at [that] time." Id.
Defendant Kaskiw requested another orthopedic consultation for plaintiff on April 23, 2013. Dkt. No. 85 at 191. On June 6, 2013, Dr. Bhatt examined plaintiff and recommended that MRI testing of plaintiff's left shoulder be conducted. Id. at 192. Defendant Kaskiw ordered the MRI on the same day, which was performed on July 11, 2013. Id. at 193, 230. The MRI disclosed a rotator cuff tear. Id. at 230, 231. Although plaintiff was advised that an operation might not be successful, he ultimately opted to proceed with arthroscopic surgery, which was performed on October 15, 2013. Id. at 232-34, 237, 242-44. Although the surgery revealed no repairable tissue, id. at 266, upon a follow-up examination with Dr. Bhatt, plaintiff was found to be doing well. Id. at 247.
Plaintiff's surgery was originally scheduled for October 3, 2013, but it was cancelled by the hospital because a "previous case ran late." Dkt. No. 85 at 241.
Following the surgery on his left shoulder, plaintiff continued to lodge complaints about right shoulder pain. An MRI of plaintiff's right shoulder was administered on December 18, 2013, revealing "a full-thickness tear of the supraspinatus tendon extending to involve the anterior portion of the infraspinatus tendon with tendon retraction and with atrophy of the belly of the supraspinatus muscle[.]" Dkt. No. 85 at 251. The MRI testing also revealed degenerative changes in the plaintiff's AC joint, and the possibility of labral tears. Id.
Defendant Kaskiw subsequently made arrangements for plaintiff to be examined at State University of New York Upstate Orthopedics ("Upstate Orthopedics") on several occasions, including by Drs. Scuderi and Setter and Physician Assistant ("PA") Bowser, beginning in February 2014. Dkt. No. 85 at 257, 259, 265-68, 275-84. During a visit to Upstate Orthopedics in April 2014, plaintiff was told that "there is nothing they can do for his shoulder." Id. at 276. During an examination in August 2014, however, Dr. Setter concluded that plaintiff would be a candidate for reverse shoulder replacement with respect to his left shoulder, and an additional MRI could be performed on his right shoulder to determine if arthroscopic surgery was appropriate. Id. at 283. Plaintiff opted to "hold off any surgery" at that time. Id. As of the date of defendants' pending motion, it does not appear that any definitive decisions had been reached concerning the appropriate course of action moving forward.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about March 24, 2014, and, after a series of initial rulings by the court, filed an amended complaint, the currently operative pleading, on or about January 13, 2015. Dkt. Nos. 1, 42. Named as defendants in plaintiff's amended complaint are the following CNYPC employees:
| Name | Position |
|---|---|
| Karl Hellinger | SCTA |
| Maura Pavlot | Registered Nurse |
| Jason Searcy | SCTA |
| David Sill | SCTA |
| Eric Fical | SCTA |
| Daniel Simpkins | Registered Nurse |
| Elizabeth Farnum | Psychiatrist |
| Quaseem Piracha | SCTA |
| James Morgan | Treatment Team Leader |
| Thomas Box | SCTA |
| Cindy Comstock | Nurse Administrator |
| Charmaine Bill | Treatment Team Leader |
| John Santamassino | SCTA |
| David Paulson | SCTA |
| Hans Kuntz | SCTA |
| Anthony Gonzalez | Director of Risk Management |
| Richard Kaskiw | Medical Doctor |
| Jeff Nowicki | Chief of Mental Health Services |
In his opposition to defendants' motion, plaintiff appears to assert that his rights to procedural due process were violated by his placement in isolation without being afforded necessary process envisioned under the Fourteenth Amendment. Dkt. No. 94-1 at 4-5, 6. A close reading of plaintiff's second amended complaint, however, fails to disclose the existence of a procedural due process cause of action. See generally Dkt. No. 42. To the extent plaintiff's second amended complaint could be construed as asserting a procedural due process claim, however, it would nonetheless fail because there is no authority in this circuit for the proposition that plaintiff has a liberty interest in being assigned to any particular status at the CNYPC. Smith v. Hogan, No. 09-CV-0554, 2011 WL 4343978, at *10 (N.D.N.Y. Aug. 1, 2011) (Lowe, M.J.), report and recommendation adopted by 2011 WL 4343809 (N.D.N.Y. Sept. 14, 2011) (Suddaby, C.J.), (citing Groves v. N.Y., No. 09-CV-0412, 2010 WL 1257858, at *8-10 (N.D.N.Y. Mar. 1, 2010) (Peebles, M.J.)).
On October 23, 2015, following the close of discovery, defendants moved for the entry of partial summary judgment. Dkt. No. 84. In their motion, which seeks dismissal of certain of plaintiff's claims, defendants have argued that (1) plaintiff's deliberate medical indifference claims are subject to dismissal for failure to satisfy the objective and subjective requirements for establishing such a claim; (2) plaintiff's conditions of confinement claims are subject to dismissal as a matter of law; (3) plaintiff's claims against defendants Nowicki, Gonzalez, Morgan, Bill, Farnum, Comstock, Piracha, and Kuntz are subject to dismissal based upon his failure to establish their personal involvement in the constitutional deprivations alleged; (4) plaintiff's retaliation claims lack merit as a matter of law, and are unduly conclusory and speculative; (5) plaintiff's damage claims against the defendants in their official capacities are subject to dismissal under the Eleventh Amendment; and (6) defendants are entitled to qualified immunity. See generally Dkt. No. 84-1. In essence, defendants request that the court enter judgment dismissing all of plaintiff's claims with the exception of those in which he alleges the use of excessive force. Id. at 3. On January 11, 2016, plaintiff responded in opposition to defendants' partial summary judgment motion. Dkt. No. 94. Defendants' motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See 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, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. 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; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). 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.
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; Sec. Ins. Co., 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 dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Defendant John Santamassino
Among the defendants named in plaintiff's amended complaint is John Santamassino, who, at the relevant times, was an SCTA at the CNYPC. Dkt. No. 42 at 4. The summons issued for that individual, however, was returned unexecuted on or about September 10, 2014. Dkt. No. 26. On September 17, 2014, plaintiff requested an extension of time to complete service upon defendants Santamassino and Piracha. Dkt. No. 30. The request was denied as moot, however, because, on September 10, 2014, an answer was filed on behalf of all named defendants, including defendants Santamassino and Piracaha. Dkt. Nos. 28, 31. According to defendants' counsel, the filing of an answer on behalf of defendants Santamassino and Piracha, who had not yet been served and therefore had not yet requested representation, was inadvertent. Dkt. No. 32. That oversight was rectified on January 27, 2015, by the filing of an answer to the amended complaint, which had been filed by plaintiff in the interim. Dkt. No. 44.
Defendant Piracha was served in the action on December 14, 2014. Dkt. No. 40.
Following an inquiry by the court to defendants' counsel as to whether the Office of the New York State Attorney General was authorized to accept service on behalf of defendant Santamassino, Dkt. No. 47, defendants' counsel responded on February 5, 2015, advising that the office was not authorized to accept service on his behalf and provided his last-known address to assist plaintiff in serving him. Dkt. Nos. 48, 49. The court reissued a summons as to defendant Santamassino on February 6, 2015. Dkt. No. 50. The summons, which was sent to the address provided by defendants' counsel, together with a request for acknowledgment of service, however, was returned as undeliverable with a notation "not at this address." Dkt. No. 58.
In order to clarify the fact that the Office of the New York State Attorney General was not authorized to represent defendants Santamassino, who has yet to appear in the action, a text order was issued on August 26, 2015, granting an oral application by the defendants' counsel to withdraw as attorney of record for that defendant. Dkt. No. 77.
Plaintiff thereafter filed a letter with the court requesting a status update regarding the service of defendant Santamassino. Dkt. No. 60. On April 1, 2015, I issued a text order informing plaintiff that, according to the docket, "defendant John Santamassino is no longer employed at CNYPC" and that service upon that individual had been unsuccessful. Dkt. No. 61. The court advised plaintiff that, because "defendant Santamassino is no longer employed by CNYPC and defendants' counsel does not have within their possession, custody, or control any information for locating and serving this defendant, the court cannot offer advice to the plaintiff on how to litigate this matter regarding service upon this individual." Id.
On September 25, 2015, plaintiff submitted a written request that the United States Marshal Service serve defendant Santamassino at a new address provided by the plaintiff. Dkt. No. 81. That request was granted by text order issued on September 28, 2015, Dkt. No. 82, and a summons was reissued to that defendant on the same day. Dkt. No. 83. The summons was again returned unexecuted on December 7, 2015. Dkt. No. 89.
When this action was filed, Rule 4(m) of the Federal Rules of Civil Procedure authorized "the court - on motion or on its own after notice to the plaintiff" - to dismiss a plaintiff's claims against a defendant where a summons and complaint were not served upon that party within 120 days after filing of the complaint, absent a showing of good cause. Fed. R. Civ. P. 4(m); see also Shuster v. Nassau Cnty., No. 96-CV-3635, 1999 WL 9847, at *1 (S.D.N.Y. Jan. 11, 1999) ("Rule 4(m) authorizes a court upon a motion to dismiss an action without prejudice as against a defendant if service of the summons and complaint is not made upon that defendant within 120 days after the filing of the complaint."); Romand v. Zimmerman, 881 F. Supp. 806, 809 (N.D.N.Y. 1995) (McAvoy, J.) ("[T]he 120-day filing requirement applies to pro se plaintiffs as well as those represented by counsel."). This is because when named defendants have not been served or otherwise appeared in the action within this time period, the court does not acquire jurisdiction over them. See, e.g., Michelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989) (citing Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)).
Effective on December 1, 2015, Rule 4(m) was amended to require service of a summons within ninety days. It should be noted, moreover, that the period specified in Rule 4(m) is further restricted by the local rules of this court, which require that service be effectuated within sixty days. N.D.N.Y. L.R. 4.1(b).
All unreported cases cited to in this report have been appended for the convenience of the pro se plaintiff.
Upon a showing of good cause, the time for service must be extended. Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Panaras, 94 F.3d at 340 (citing Fed. R. Civ. P. 4(m)); see also Zapata v. City of N.Y., 502 F.3d 192, 196 (2d Cir. 2007) ("We hold that district courts have discretion to grant extensions even in the absence of good cause."); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). When examining whether to extend the prescribed period for service, a district court is afforded ample discretion to weigh the "overlapping equitable considerations" involved in determining whether good cause exists and whether an extension may be granted in the absence of good cause. Zapata, 502 F.3d at 197.
As was explained in detail above, plaintiff has had ample opportunity to locate and serve defendant Santamassino in this action. There is no indication that plaintiff has made any further attempts after his last effort to serve that individual failed in December 2015. In addition, both the court and defendants' counsel have assisted plaintiff in his efforts to locate defendant Santamassino, to no avail. Accordingly, dismissal of plaintiff's claims against defendant Santamassino appears to be appropriate at this juncture. Before sua sponte dismissal, however, Rule 4 requires the court provide plaintiff with notice of that possibility. See Fed. R. Civ. P. 4(m) ("If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant[.]"); see also Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) ("Because [the plaintiff] was not given prior notice and was, therefore, precluded from attempting to show good cause for his failure to serve process. . ., the District Court's dismissal violated [Rule 4(m)]."). For that reason, plaintiff is notified of my recommendation that, unless he provides good cause for his failure to serve defendant Santamassino during the objection period following the issuance of this report, his claims against that individual should be dismissed without prejudice.
C. Plaintiff's Deliberate Medical Indifference Claims
Liberally construed, plaintiff's deliberate medical indifference claim has three components. First, he accuses defendant Kaskiw of not providing him with adequate medical care for his shoulders. See Dkt. No. 84-21 at 160. Second, plaintiff contends that defendants Pavlot and Simpkins provided inadequate medical care when they allegedly injected him with medication without his consent. Dkt. No. 42 at 8, 13, 25-26; Dkt. No. 84-21 at 41. Lastly, plaintiff maintains that defendant Farnum ignored his need for medical treatment after sustaining injuries during the August 20, 2012 incident. Dkt. No. 42 at 13; Dkt. No. 84-21 at 53.
As a civilly committed resident at the CNYPC, plaintiff is not entitled to the protections afforded by the Eighth Amendment. Youngberg v. Romeo, 457 U.S. 307, 312 (1982). He is, however, entitled to the substantive due process protections afforded by the Fourteenth Amendment, which include a guaranty of certain minimal levels of medical treatment. See, e.g., Youngberg, 457 U.S. at 315-16 ("If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed - who may not be punished at all - in unsafe conditions."). The standard governing medical indifference claims brought by civilly committed individuals, like the plaintiff in this case, is the same as the one applicable to medical claims asserted by convicted prisoners and pretrial detainees. See, e.g., Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) ("Claims for deliberate indifference to a serious medical condition or other serious threat to the health and safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment."); see also Ahlers v. Kaskiw, No. 12-CV-0501, 2014 WL 4184752, at *4-6 (N.D.N.Y. Aug. 21, 2014) (Sharpe, J., adopting report and recommendation by Baxter, M.J.) (concluding that Youngberg did not mandate a different standard for medical claims brought by civil detainees as compared to those brought by pretrial detainees or convicted prisoners).
A claim that officials have been deliberately indifferent to an individual's serious medical needs must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) ("[T]he objective test asks whether the inadequacy in medical care is sufficiently serious."). Factors informing this inquiry include "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted). Determining whether a deprivation is sufficiently serious requires a court to examine the seriousness of the deprivation, and whether the deprivation represents "a condition of urgency, one that may produce death, degeneration, or extreme pain[.]" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted). Importantly, it is "the particular risk of harm faced by [the individual] due to the challenged deprivation of care, rather than the severity of [his] underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
To satisfy the subjective requirement, a plaintiff must 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). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id.; see also Farmer, 511 U.S. at 837 ("[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."). "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).
1. Defendant Kaskiw
It appears from plaintiff's amended complaint that his medical indifference claim against defendant kaskiw is based upon allegations that defendant Kaskiw (1) "failed to forward X-rays of plaint's [sic] shoulders to Dr. Bhatt" on November 16, 2012; (2) delayed in ordering an MRI of plaintiff's left shoulder as recommended by Dr. Bhatt on December 15, 2012; and (3) failed to schedule shoulder replacement surgery for plaintiff's left shoulder as recommended by Dr. Bowser in August 2014. Dkt. No. 42 at 16, 22.
a. Failure to Forward X-ray Films
Plaintiff's medical records do not substantiate plaintiff's claim that defendant Kaskiw failed to forward x-rays to Dr. Bhatt on November 16, 2012. No mention is made by Dr. Bhatt in his November 15, 2012 report of not having reviewed plaintiff's shoulder x-rays. Dkt. No. 85 at 167. While it appears that Dr. Bhatt recommended a right shoulder x-ray on November 15, 2012, plaintiff refused to submit to an x-ray examination on December 1, 2012. Id. at 167; Dkt. No. 42 at 15. In addition, it is uncontroverted that Dr. Bhatt examined plaintiff on December 13, 2012, at which time he reviewed both of the shoulder x-rays performed on September 21, 2012. Id. at 182. Even assuming arguendo that the delay occurred as alleged by plaintiff, however, there is no record evidence giving rise to a genuine dispute of material fact regarding whether defendant Kaskiw failed to forward the x-rays with the requisite deliberate indifference in light of the treatment plaintiff had received for his shoulder pain up until that time, which included pain medication, physical therapy, x-rays, and an orthopedic consult. See, e.g., id. at 59, 104-05, 107, 109, 162-66.
Plaintiff alleges that he refused the x-ray because he had "endure[d] a large number of X-rays . . . and began to become cautious of having to have to [sic] much radiation." Dkt. No. 42 at 15.
b. Delay in Conducting MRI of Left Shoulder
Following Dr. Bhatt's examination of plaintiff on December 13, 2012, he recommended that an MRI be performed "as soon as possible" on plaintiff's left shoulder to rule out a rotator cuff tear. Dkt. No. 85 at 182. According to a progress note dated January 28, 2013, defendant Kaskiw had scheduled an MRI as recommended by Dr. Bhatt but canceled it because of reports from CNYPC staff that plaintiff had been engaged in weight lifting and aggressive athletic activity. Id. at 298. Six days later, defendant Kaskiw met with plaintiff to discuss his activity level as observed by staff. Id. at 299. Defendant Kaskiw's progress note regarding that discussion indicates that plaintiff became upset, demanded an MRI, and left the visit angry. Id. Defendant Kaskiw immediately consulted with Dr. Bhatt about his decision to cancel the MRI in light of plaintiff's activity, and Dr. Bhatt is reported to have "agreed [that] the MRI is not indicated at present time." Id. It is clear from those exchanges that plaintiff's complaint regarding the canceled MRI represents a classic disagreement as to the appropriate medical care, which does not give rise to a deliberate indifference cause of action and is therefore not cognizable. See Estelle v. Gamble, 429 U.S. 97, 107 (1976) ("But the question [of] whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a "classic" example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not [give rise to a section 1983 claim]."); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("It is well-established that mere disagreement over the proper treatment does not create a constitutional claim.").
c. Failure to Schedule Recommended Shoulder Replacement
Plaintiff alleges that he was seen by PA Bowser, an outside specialist, on or about August 25, 2014, and, at the time, a possible shoulder replacement was recommended. Dkt. No. 42 at 16. He claims that despite this recommendation, "the medical department at CNYPC never scheduled it because they claim not to know anything of it." Id. While plaintiff's medical records support plaintiff's allegation that PA Bowser indicated that plaintiff would "be a candidate for a reverse [left] shoulder replacement," PA Bowser also noted that, during the same appointment in which he rendered that recommendation, plaintiff opted "to hold off any surgery[.]" Dkt. No. 85 at 283. Accordingly, any allegation that CNYPC medical staff violated any of plaintiff's constitutional rights by failing to follow-up with PA Bowser's recommendation is not supported by the record. In any event, there is no evidence that anyone in particular at CNYPC, much less defendant Kaskiw, was involved in ignoring any of PA Bowser's recommendations for treatment. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983.").
For all of the reasons discussed above, I recommend that defendants' motion for summary judgment be granted with respect to defendant Kaskiw, and that all claims asserted against that individual be dismissed.
2. Defendants Pavlot and Simpkins
Plaintiff has also asserted medical indifference claims against defendants Pavlot and Simpkins based upon his allegation that they injected him with psychotropic medications without his consent on two occasions. See, e.g., Dkt. No. 42 at 8, 13, 25-26; Dkt. No. 84-21 at 41. It is well established that psychiatric patients have "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Washington v. Harper, 494 U.S. 210, 221-22 (1990); see also Kulak v. City of N.Y., 88 F.3d 63, 74 (2d Cir. 1996) ("It is a firmly established principle of the common law of New York that every individual of adult years and sound mind has a right to determine what shall be done with his own body and to control the course of his medical treatment." (quotation marks omitted)). "Such a right may be set aside only in narrow circumstances, including those where the patient presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution." Kulak, 88 F.3d at 74 (quotation marks omitted).
Plaintiff's medical records reveal that, following the February 20, 2012 incident, defendant Pavlot injected plaintiff with a combination of Benadryl and Ativan, neither of which is a psychotropic drug. Dkt. No. 84-24 at 21; Dkt. No. 85 at 2-3. On August 20, 2012, defendant Simpkins injected plaintiff with Haldol, a psychotropic drug, in combination with Ativan and Benadryl. Dkt. No. 85 at 39, 43. With respect to both incidents, there are genuine disputes of material fact that exist within the record evidence regarding whether plaintiff became a danger to himself or others. Plaintiff alleges in his amended complaint, and testified during his deposition, that, in both instances, he did not instigate the physical altercations nor did he resist once force was used upon him. See, e.g., Dkt. No. 42 at 7-8, 10-11; Dkt. No. 84-21 at 17-19, 52-56. In contrast to those allegations are plaintiff's medical records, which describe the plaintiff as having been volatile and assaultive during the incidents. See, e.g., Dkt. No. 85 at 2-3, 39, 43. While there is some evidence that defendant Pavlot administered Benadryl and Ativan on February 20, 2012, at the direction of a physician in accordance with a CNYPC policy, Dkt. No. 85 at 2-3, only Dr. Colosi's affidavit obliquely suggests that defendant Simpkins administered Haldol, Benadryl, and Ativan to plaintiff on August 20, 2012, pursuant to that policy. Dkt. No. 84-24 at 21; see also Dkt. No. 85 at 39, 43. Indeed, the CNYPC form documenting the intervention exercised on August 20, 2012, does not indicate the "Name of Physician Called," Dkt. No. 85 at 39, and Dr. Colosi similarly failed to identify the physician consulted before the drugs were administered to plaintiff on that date, Dkt. No. 84-24 at 21. Even assuming that a physician did authorize CNYPC staff to inject plaintiff with the medications, however, there is no evidence describing the information the physician considered in rendering his decision. Moreover, even if a physician was consulted, it does not resolve the dispute regarding whether plaintiff became a danger to himself or others, which would otherwise justify the medical intervention at issue. Accordingly, I recommend the court deny defendants' motion for partial summary judgment with respect to defendants Pavlot and Simpkins.
It appears that, by its statutory scheme, New York has created a liberty interest applicable to psychiatric patients to control their medical treatment, regardless of the nature of the medication or medical procedure. See N.Y.C.C.R.R. § 527.8(c) ("Patients who object to any proposed medical treatment or procedure . . . may not be treated over their objection except . . . where the patient is presently dangerous and the proposed treatment is the most appropriate reasonably available means of reducing that dangerousness."); accord, Kulak, 88 F.3d at 74. Thus, the analysis of plaintiff's claim against defendant Pavlot does not turn on whether he was in fact injected with a psychotropic drug.
A copy of the policy has not been included in defendants' submission in support of the pending motion.
Defendants Pavlot and Simpkins are not entitled to qualified immunity at this juncture in light of the competing evidence regarding plaintiff's conduct during the February 20, 2012 incident and August 20, 2012 incident. As was noted above, it is well established that psychiatric patients have a due process right to refuse medical intervention absent circumstances where they become a danger to themselves or others. Washington, 494 U.S. at 221-22. Defendants do not dispute that plaintiff did not consent to the administration of the drugs. Thus, the question in this case regarding qualified immunity is whether defendants Pavlot and Simpkins believed that their conduct was objectively reasonable and not in violation of any of plaintiff's established constitutional rights. In the event a factfinder credits plaintiff's version of the events, however, no official could believe that administering medication to plaintiff without his consent did not violate his rights.
3. Defendant Farnum
Plaintiff alleges that defendant Farnum, a psychiatrist, entered his room on August 21, 2012, but failed to render medical treatment for his physical injuries. Dkt. No. 42 at 13; Dkt. No. 84-21 at 53. Although plaintiff alleges he was "bloody" from the physical altercation, his medical records from that date indicate that he complained only of shoulder pain and was noted to have "erythema L outer orbit." Dkt. No. 85 at 43. Plaintiff refused medical treatment after the incident. Id. In light of the well-documented and ongoing treatment plaintiff received for his shoulders during the relevant time period, and the vague allegations regarding plaintiff's other injuries suffered during the August 20, 2012 incident, I recommend dismissal of plaintiff's medical indifference claim asserted against defendant Farnum. In my view, no reasonable factfinder could conclude that defendant Farnum ignored a serious medical condition with deliberate indifference to plaintiff's healthy and safety.
Plaintiff also alleges that defendant Farnum directed that plaintiff be placed in a side room following the August 20, 2012 incident, and that he strip down to his underwear. Dkt. No. 84-21 at 53. This allegation, on its own, is not sufficient to give rise to a cognizable constitutional claim. See, e.g., Holland v. City of N.Y., --- F.3d ----, No. 14-CV-5517, 2016 WL 3636249, at *9 (S.D.N.Y. June 24, 2016) ("For challenges to strip searches in particular, . . . courts in this Circuit require that a plaintiff allege that the defendants engaged in egregious conduct." (citing cases)).
D. Conditions of Confinement Claim
Liberally construed, plaintiff's complaint could be construed as asserting a claim challenging the conditions of his confinement at the CNYPC under the substantive due process clause of the Fourteenth Amendment. See, e.g., Gallagher v. Sullivan, No. 15-CV-1327, 2016 WL 4146128, at *4 (N.D.N.Y. Aug. 4, 2016) (McAvoy, J.) (analyzing a conditions of confinement claim asserted by a civil detainee under the Fourteenth Amendment). More specifically, plaintiff alleges that, while under constant observation or in the MOD program, he was denied various liberties, including access to a telephone and mail, recreation, communication with friends and family, writing materials, and, in one instance, hygienic living conditions. See, e.g., Dkt. No. 42 at 9, 13, 19.
It is well established that involuntarily committed civil detainees enjoy "more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Youngberg, 457 U.S. at 321. Due process "requires that the conditions and duration of confinement [of civil detainees] bear some reasonable relation to the purpose for which persons are committed." Seling v. Young, 531 U.S. 250, 265 (2001). In determining whether a plaintiff's rights have been violated, a court must balance "the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints." Youngberg, 457 U.S. at 321. In doing so, courts must "make certain that professional judgment . . . was exercised." Id.
According to plaintiff's medical records, he was placed under constant observation and/or into the MOD program after the incidents on February 20, 2012, August 20, 2012, August 24, 2012, September 22, 2012, and June 20, 2013. On February 20, 2012, Dr. Hernandez ordered plaintiff on constant observation. Dkt. No. 85 at 3. Plaintiff remained under observation until February 24, 2012. Id. at 36. During the period of observation, plaintiff was given a mattress, used the bathroom regularly, visited with Risk Management and medical providers, ate his meals, was provided a pen and pain medications, made a legal phone call, and showered. Id. at 3-36.
At approximately 11:45PM on August 20, 2012, plaintiff was placed on constant observation. Dkt. No. 85 at 40. He was restrained just after midnight because it is alleged that he assaulted defendant Fical. Id. at 41, 43. At 2:00AM on August 21, 2012, plaintiff was released from the restraints and fell asleep on a mattress. Id. at 41. At approximately 10:30AM, plaintiff was removed from constant observation and placed on room MOD. Id. at 45. While on room MOD, plaintiff ate his meals, visited with Risk Management and his treatment team leader, was provided medical care and an opportunity for a half hour of recreation, and showered. Id. at 47-49.
During the afternoon on August 23, 2012, plaintiff was placed on unit MOD. Dkt. No. 85 at 52-53. Plaintiff was seen by medical providers, spent a half hour in the dayroom, used the bathroom, and ate his meals. Id. at 52-54. Plaintiff returned to constant observation on August 24, 2012, however, after he allegedly attacked defendant Hellinger. Id. at 55-59. While on constant observation between August 24, 2012 and August 29, 2012, plaintiff received a mattress, met with Risk Management, used the bathroom regularly, was treated by medical providers, used the telephone, showered, received mail, had access to a pen, and ate his meals. Id. at 57-96.
At approximately 9:00AM on August 29, 2012, plaintiff's status was changed to room MOD, and he was restricted to leaving his room only for use of the bathroom, telephone, and shower. Dkt. No. 85 at 97. On August 31, 2012, he was upgraded to unit MOD, and was permitted to use the dayroom and participate in off-ward activities. Id. at 100. Plaintiff received a visitor on September 1, 2012. Id.
Although it is unclear based on plaintiff's medical records when he was removed from unit MOD status, when plaintiff became involved in another physical altercation with staff on September 22, 2012, he was immediately transferred to a different ward for "[a]lternate housing" and placed in room MOD until September 24, 2012, at which time he was again placed in unit MOD. Dkt. No. 85 at 110-19. While in unit MOD, plaintiff had access to his mail, the telephone for legal business, a pen, and the dayroom. Id. at 119-78. In addition, plaintiff regularly used the bathroom and was granted access to the dayroom, as well as routinely ate most of his meals. Id. Plaintiff remained on unit MOD under these conditions until at least October 17, 2012.
Following another physical altercation with staff on June 20, 2013, plaintiff was again placed on constant observation. Dkt. No. 85 at 196. Plaintiff was placed on a different ward for "alternate sleep" on June 23, 2013. Id. at 220. While on constant observation, plaintiff used the bathroom regularly, visited with a psychiatrist and his treatment team leader, showered, ate his meals, attended to legal matters, and received medical treatment. Id. at 196-225. Plaintiff was removed from constant observation at 9:00AM on June 24, 2012. Id. at 225.
There is nothing in the record that explains what types of conditions accompany "alternate housing" or "alternate sleep," or under what circumstances they are implemented.
The above-described medical records overwhelmingly contradict plaintiff's allegations that he "was not allowed to receive mail, had no access to the phone, had no access to any type of recreation or outdoor exercise, had no access to his attorney, any other communication with his family, friends or loved ones[, h]ad very limited access to the toilet[, and n]o psychiatrist or any other doctor interviewed [him while he was on constant observation]." Dkt. No. 42 at 9; see also Dkt. No. 84-21 at 19, 57, 58, 119-20. Aside from plaintiff's allegations, there is no record evidence to support a factfinder's conclusion that plaintiff was deprived of those liberties. It appears that each of plaintiff's periods on constant observation or in the MOD program (either on room or unit MOD) were well documented, and plaintiff was closely monitored. Moreover, plaintiff's medical records support the medical professionals' decisions to place plaintiff on constant observation or in the MOD program. Each time plaintiff was placed in some restricted status, it was prompted by a physical altercation with CNYPC staff. The medical records also reflect that plaintiff was released or upgraded from a particular restricted status after he demonstrated good behavior. While I acknowledge that the parties dispute whether plaintiff or CNYPC staff initiated the physical altercations preceding his placement on restricted status, they seem to agree that, on each occasion, plaintiff was in fact involved in a physical altercation prior to being placed on restricted status. Because the policies governing constant observation and the MOD program are aimed at reducing safety threats, and plaintiff's medical records overwhelmingly reflect that plaintiff's behavior created a safety risk, no reasonable factfinder could conclude, based on all of the record evidence, that the decisions to place him on restricted status were not supported by adequate professional judgment.
Similarly, the conditions of confinement experienced by plaintiff on both constant observation and in the MOD program did not deprive him of any constitutional rights. Plaintiff was clearly permitted to use the bathroom and showers; he was provided access to recreation upon demonstrating good behavior, as well as the telephone and mail; and he continued working on his legal matters. Aside from plaintiff's bare allegations contending otherwise, there is no support in the record for his claims that he was deprived of any right that was unreasonably related to the safety risk he posed with his conduct, as documented in his medical records.
Accordingly, I recommend plaintiff's conditions of confinement claim be dismissed. See Yeldon v. Hogan, No. 08-CV-0769, 2010 WL 983819, at *4-5 (N.D.N.Y. Mar. 15, 2010) (Mordue, J., adopting report and recommendation by Treece, M.J.), (approving of the MOD program implemented at the CNYPC, finding that, while it imposes "greater liberty restrictions than those imposed upon the general SOTP population, . . . the[] additional restrictions are [neither] arbitrary nor . . . arbitrarily applied").
E. Personal Involvement
In their motion, defendants argue that plaintiff's claims against defendants Jeff Nowicki, Gonzalez, Morgan, Bill, Farnum, Comstock, Piracha, and Kuntz are subject to dismissal based the absence of any record evidence demonstrating their personal involvement in the offending conduct. Dkt. No. 84-1 at 16-20.
As was noted above, "[p]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright, 21 F.3d at 501 (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). Indeed, the Supreme Court has noted that a defendant may only be held accountable for his actions under section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. United States Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
Certain of the individuals identified in this portion of defendants' motion have been named by plaintiff because of their roles as supervisors at the CNYPC. It is well-established that a supervisor cannot be liable under section 1983 solely by virtue of being a supervisor, "and [liability] cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, 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, 556 U.S. 554 (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.
1. Defendant Nowicki
Defendant Nowicki is identified by plaintiff as the Chief of Mental Health Services at the CNYPC. Dkt. No. 42 at 6. Plaintiff's amended complaint does not identify any role defendant Nowicki played in connection with any of the events giving rise to his claims, instead stating, in his sixth cause of action, that Nowicki, along with defendants Gonzalez, Morgan, and Bill, were informed of the violations committed by others against plaintiff but failed to take appropriate action to "stop the violations." Dkt. No. 42 at 26. When asked at his deposition why he is suing defendant Nowicki, plaintiff responded as follows:
Because he was the Chief of Mental Health Services. He was the supervisor. I wrote him many complaints concerning the fact that I was being abused at this facility physically and mentally. My Mental Hygiene Legal Service lawyer also wrote him many complaints about what was happening to me, and he failed miserably in protecting me from the assaults that took place against me.Dkt. No. 84-21 at 159. Although plaintiff admits that he never spoke with defendant Nowicki directly concerning his grievances, id., the record includes defendant Nowicki's written responses to complaints sent to him by both plaintiff and plaintiff's attorney. Dkt. No. 94-4 at 3, 5, 7, 14, 16, 18, 20, 22, 24, 26. Although supervisory liability cannot be established by lone allegations that a supervisor failed to respond to a grievance, courts in this circuit have held that personal involvement may be found where a supervisor receives, reviews, and responds to a plaintiff's grievance. See, e.g., Cole v. N.Y.S. Dep't of Corrs. Servs., No. 10-CV-1098, 2012 WL 4491825, at *22 (N.D.N.Y. Aug. 31, 2012) (Dancks, M.J.), report and recommendation adopted by 2012 WL 4506010 (N.D.N.Y. Sept. 28, 2012) (Mordue, J.), (finding that the supervisor-defendant's memoranda responding to the plaintiff's complaints were sufficient to establish that defendant's personal involvement); Bourgoin v. Weir, No. 10-CV-0391, 2011 WL 4435695, at *5 (D. Conn. Sept. 23, 2011) ("A supervisor's response to a prisoner's grievance or complaint that attempt[s] to defend or explain alleged constitutional violations is sufficient to establish the personal involvement of that supervisor."). Accordingly, I recommend defendants' motion be denied to the extent it requests dismissal of plaintiff's claims asserted against defendant Nowicki on the basis of lack of personal involvement.
2. Defendant Gonzalez
Plaintiff is suing defendant Gonzalez based on his alleged failure to protect him and for not contacting the New York State police after the alleged assaults. Dkt. No. 42 at 26; Dkt. No. 84-21 at 91. The record evidence does not include any evidence from which a reasonable factfinder could conclude that defendant Gonzalez was personally involved in failing to protect plaintiff from harm. The record includes three letters authored by plaintiff's attorney to defendant Gonzalez. Dkt. No. 94-4 at 27, 32-33, 35. One of those letters predates the commencement of this lawsuit, id. at 27; one letter involves an allegation of physical abuse by a CNYPC staff member on November 27, 2014, id. at 35; and the other letter concerns allegations of mistreatment that occurred after the filing of plaintiff's amended complaint, id. at 32-33. In the letter predating the commencement of this action, plaintiff's attorney alleges "that on an unspecified date, TA Piracha 'threatened' [plaintiff], while he was sitting in a sideroom." Id. Verbal threats, however, do not give rise to a cognizable constitutional claim. See, e.g., Holland, 2016 WL 3636249, at *10. Moreover, because plaintiff's claims in this matter do not stem from allegations of abuse in November 2014, I find that there is no record evidence from which a reasonable factfinder could conclude that defendant Gonzalez was personally involved in any of the constitutional violations alleged by plaintiff in his amended complaint. For that reason, I recommend that defendants' motion be granted to the extent it requests dismissal of plaintiff's claims asserted against defendant Gonzalez based on lack of personal involvement.
Defendant Gonzalez responded to each of the letters. Dkt. No. 94-4 at 31, 34, 36.
3. Defendants Morgan and Bill
Defendants James Morgan and Charmaine Bill are similarly sued by plaintiff based on allegations that they failed to protect him after the incidents on February 20, 2012 and June 20, 2013 by not contacting the New York State police. Dkt. No. 42 at 8-9, 21; Dkt. No. 84-21 at 46, 146. Although defendants appear to argue that dismissal of plaintiff's claims asserted against defendants Morgan and Bill is appropriate on the basis of lack of personal involvement, they actually seek dismissal of the failure-to-protect claims asserted against those individuals based on their contention that officials cannot be responsible for failing to protect an individual unless they were presented with a reasonable opportunity to intervene to prevent the harm. Dkt. No. 84-1 at 18. This argument stems from the legal standard governing failure-to-protect claims arising in the context of a prison setting. See Hayes v. N.Y. City Dep't of Corrs., 84 F.3d 614, 620 (2d Cir. 1996) (finding that a plaintiff asserting a failure to protect claim under the Eighth Amendment must prove that the defendant actually knew of and disregarded an excessive risk of harm to his health and safety).
It remains unclear in this circuit whether the standard applicable to failure-to-protect claims arising under the Eighth Amendment is applicable to similar claims asserted by civil detainees. See, e.g., Lane v. Carpinello, No. 07-CV-0751, 2009 WL 3074344, at *19 (N.D.N.Y. Sept. 24, 2009) (Sharpe, J., adopting report and recommendation by Peebles, M.J.); accord, Yeldon v. Sawyer, No. 10-CV-0266, 2012 WL 1995839, at *7 (N.D.N.Y. Apr. 26, 2012) (Treece, M.J.), report and recommendation adopted by 2012 WL 1987134 (N.D.N.Y. June 4, 2012) (McAvoy, J.). As has been discussed above, the Supreme Court explained in Youngberg that civilly detained individuals are entitled to substantive due process under the Fourteenth Amendment, and that a defendant's conduct violates due process where it "substantial[ly] depart[s] from accepted professional judgment, practice, or standards in the care and treatment of [the individual] as to demonstrate that the defendant[] did not base [his] conduct on a professional judgment." Youngberg, 457 U.S. at 314 (quotation marks omitted). In the absence of any binding precedent from the Second Circuit, at least one court in this circuit has determined that the Youngberg standard does not apply to failure-to-protect claims asserted by civil detainees against "low-level staff members." Vallen v. Carrol, No. 02-CV-5666, 2005 WL 2296620, at *8 (S.D.N.Y. Sept. 20, 2005). Defendants Morgan and Bill, however, are identified as Treatment Team Leaders and, at the very least, are supervisory officials. Accordingly, I conclude that the court is bound by Youngberg.
Defendants have provided no evidence against which to judge whether refusing to contact the New York State police following two alleged assaults at the CNYPC deviates from accepted practice either at the CNYPC or more generally, and the court is therefore hampered in its ability to apply the Youngberg test in connection with plaintiff's claims asserted against defendants Morgan and Bill. In the event plaintiff's version of the events that preceded his encounters with defendants Morgan and Bill are credited, a reasonable factfinder could conclude that a supervisory official at the CNYPC should have contacted the police. Accordingly, I recommend that defendants' motion be denied as to defendants Morgan and Bill to the extent it seeks dismissal of those individuals on the basis of personal involvement.
Specifically, plaintiff alleges that defendant Morgan spoke with plaintiff following the February 20, 2012, August 24, 2012, and September 22, 2012 incidents, where plaintiff alleges that he was assaulted by defendant Hellinger, Kuntz, and Box. Dkt. No. 42 at 8-9, 17, 19. Similarly, plaintiff alleges that defendant Bill responded to the use-of-force incident on June 20, 2013, during which defendants Santamassino and Paulson allegedly assaulted plaintiff. Id. at 21.
4. Defendant Farnum
Plaintiff alleges that defendant Farnum failed to protect him during the alleged assault on August 20, 2012. Dkt. No. 42 at 11, 24; Dkt. No. 84-21 at 53-56. Citing only plaintiff's amended complaint, defendants contend that "[p]laintiff. . . fails to allege that Dr. Farnum was actually present during the alleged assault." Dkt. No. 84-1 at 18. This argument, however, ignores plaintiff's deposition testimony, in which he specifically alleges that defendant Farnum ordered him out of his room and into the side room where he was allegedly assaulted, and that, prior to plaintiff exiting his room, he informed defendant Farnum that he was in fear of his safety based on the alleged threats made against him by defendants Sill and Searcy. Dkt. No. 84-21 at 53. In light of these specific allegations, I recommend defendants' motion be denied to the extent it seeks dismissal of defendant Farnum based on personal involvement.
5. Defendant Comstock
Defendant Cindy Comstock is identified by plaintiff as an OMH Nurse Administrator employed at the CNYPC. Dkt. No. 42 at 4. Plaintiff alleges that it was defendant Comstock that ordered him to be taken to the room at the CNYPC filled with urine and feces, where he was allegedly tortured for weeks. Dkt. No. 42 at 18-19; Dkt. No. 84-21 at 126. While these allegations could suffice to demonstrate Comstock's involvement, because I have recommended that plaintiff's conditions of confinement claims be dismissed, it is unnecessary to address the issue of personal involvement with respect to this defendant.
6. Defendant Piracha
According to plaintiff, he is suing defendant Piracha only for threatening him after the incident on August 20, 2012. Dkt. No. 84-21 at 90, 140, 165. Plaintiff acknowledges that Piracha never used force or threatened to use force against him, but only told him to take defendant Searcy's name out of his grievance. Id. at 90. As was noted above, it is well-established that allegations of threats, without any accompanying use of force or damage, are insufficient to support a claim for liability under section 1983. See, e.g., Holland, 2016 WL 3636249, at *10. Accordingly, I recommend that plaintiff's claims against defendant Piracha be dismissed.
7. Defendant Kuntz
Although he identified defendant Kuntz as one of the SCTAs involved in the use-of-force incident on February 20, 2012, see, e.g., Dkt. No. 84-21 at 34, plaintiff testified at his deposition that he is not suing that individual in connection with the February 20, 2012 incident. Id. at 49. In addition, plaintiff testified that, with respect to the June 20, 2013 incident, defendant Kuntz did not use any force against him, but instead only verbally threatened him. Id. at 143-44. Because verbal threats are not sufficient to support a section 1983 cause of action, and because defendant Kuntz is not sued in connection with any other incidents, I recommend that defendants' motion be granted to the extent it seeks dismissal of plaintiff's claims asserted against defendant Kuntz on the basis of personal involvement.
F. Retaliation
In his fourth cause of action, plaintiff alleges that defendants Hellinger, Searcy, Sill, Fical, Simpkins, Santamassino, and Box retaliated against him for claiming abuse and mistreatment and complaining about the conditions of his confinement. Dkt. No. 42 at 25.
The amended complaint also appears to assert a retaliation claim against defendants Kuntz and Piracha. Dkt. No. 42 at 25. As was noted above, however, plaintiff clarified at his deposition that he is suing those individuals based only verbal threats rendered against him. Dkt. No. 84-21 at 90, 140, 143-44, 165.
As the Second Circuit has repeatedly cautioned, retaliation claims are easily incanted and courts should examine them "with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). To establish a claim under section 1983 for retaliatory conduct, a plaintiff must demonstrate that (1) he engaged in protected conduct; (2) the defendants took adverse action against him; and (3) there was a causal connection between the protected activity and the adverse action - in other words, the protected conduct was a "substantial or motivating factor" in the defendant's decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Ahlers v. Nowicki, No. 12-CV-0539, 2014 WL 1056935, at *3 (N.D.N.Y. Mar. 18, 2014) (Hurd, J., adopting report and recommendation by Treece, M.J.). 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. "[I]f 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).
When a claim of retaliation is alleged in only conclusory fashion, and there is no record evidence establishing the requisite nexus between protected activity and the adverse action complained of, dismissal is warranted. Crenshaw v. Hartman, 681 F. Supp. 2d 412, 416 (W.D.N.Y. 2010); McQuilkin v. Cent. N.Y. Psychiatric Ctr., No. 08-CV-0975, 2010 WL 3765847, at *15 (N.D.N.Y. Aug 27, 2010) (Peebles, M.J.), report and recommendation adopted by, 2010 WL 3765715 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.). In addition, as was discussed earlier, personal involvement of a named defendant in any alleged constitutional deprivation, including retaliation, is a prerequisite to an award of damages against that individual under section 1983. See, e.g., Wright, 21 F.3d at 501; Abascal v. Hilton, No. 04-CV-1401, 2008 WL 268366, at *10 (N.D.N.Y. Jan. 30, 2008) (Kahn, J., adopting report and recommendation by Lowe, M.J.).
In this case, plaintiff's allegations concerning the February 20, 2012 incident involving defendant Hellinger do not support a finding of unlawful retaliation. Plaintiff's amended complaint does not include any allegations of protected activity engaged in by the plaintiff prior to that incident that could have motivated the assault. Indeed, according to plaintiff, the earliest complaint authored by him was dated February 20, 2012. Dkt. No. 42 at 6-7.
With respect to the incident on August 20, 2012, plaintiff alleges that, immediately prior to being assaulted by defendants Fical, Searcy, Sill, and Simpkins, defendants Searcy and Sill "said they were going to teach [him] a lesson for being a snitch," and that plaintiff "knew they were referring to the February 20th incident where [he] was assaulted by Defendant Hellinger and [him] reporting it to risk management." Dkt. No. 84-21 at 52. While the amount of time that passed between the two incidents presents only modest evidence of the link between the two, defendants have submitted no evidence that rebuts plaintiff's testimony. Viewing the facts in light most favorable to plaintiff, a reasonable factfinder could conclude that the use of force on August 20, 2012, if it occurred, constituted an adverse action taken in response to plaintiff's complaints regarding the February 20, 2012 incident. Accordingly, I recommend that defendants' motion be denied to the extent it seeks dismissal of plaintiff's retaliation claim related to the August 20, 2012 incident.
Plaintiff also claims that on August 24, 2012, defendant Hellinger punched him in the back of the head. Dkt. No. 42 at 17. Plaintiff does not make any allegations, however, linking that incident to specific complaints or other protected activity. Accordingly, I recommend that any retaliation claim arising from that incident be dismissed.
Plaintiff's claim concerning the September 22, 2012 incident is based on allegations that, on September 19, 2012, defendant Box threatened to break plaintiff's fingers if he wrote any additional complaints. Dkt. No. 42 at 18. Plaintiff then filed a complaint at the CNYPC regarding defendant Box's threats, and defendant Box allegedly assaulted him "just three days later" on September 22, 2012. Id. Given the close temporal proximity between the filing of the complaint and the alleged assault, and in light of the absence of any evidence from defendants that dispute plaintiff's allegations, I recommend defendants' motion be denied with respect to plaintiff's retaliation claim arising from this incident.
The last event forming the basis for plaintiff's retaliation claims surrounds the June 20, 2013 incident, involving defendants Santamassino and Paulson. Although plaintiff alleges that defendant Santamassino initiated the assault and referenced plaintiff's grievances immediately prior to the assault, there is no record evidence that defendant Paulson, who arrived after defendant Santamassino began assaulting plaintiff, was aware of any complaints filed by plaintiff or thereafter participated in the alleged assault in retaliation for plaintiff filing complaints. Accordingly, I recommend the retaliation claim asserted against defendant Paulson in connection with this incident be dismissed.
In sum, I recommend plaintiff's retaliation claims arising from the August 20, 2012 and September 22, 2012 incidents remain in the action, but that the remaining portions of plaintiff's retaliation claim be dismissed.
In the event the assigned district judge does not dismiss defendant Santamassino from this action based on plaintiff's failure to timely serve and join him in the action, I recommend that plaintiff's retaliation claim asserted agaomst jo, survive defendants' motion for summary judgment and proceed to trial.
G. Eleventh Amendment
According to his amended complaint, plaintiff has sued all of the defendants in both their individual and official capacities. Dkt. No. 42 at 1. Among the relief sought by the plaintiff are awards of monetary damages against those defendants. Id. at 27. In their motion, defendants seek dismissal of plaintiff's damages claims against them in their official capacities. Dkt. No. 84-1 at 23-24.
The Eleventh Amendment protects a state against suits brought in federal court by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91 (1982); Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993). This absolute immunity, which states enjoy under the Eleventh Amendment, extends to both state agencies and state officials sued for damages in their official capacities when the essence of the plaintiff's claim seeks recovery from the state as the real party in interest. See, e.g., Daisernia v. State of N.Y., 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.) ("[A] suit which seeks a money judgment 'which must be paid from the state treasury is barred by the Eleventh Amendment,' even though it is nominally asserted against an individual official." (quoting Edelman, 415 U.S. at 663)); see also Richards v. State of N.Y. App. Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing, inter alia, Cory v. White, 457 U.S. 85, 89-91, (1982)). "To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan, 996 F.2d at 529; see also Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").
Plaintiff's damage claims in this action against the named-defendants in their official capacities are, in reality, claims against the State of New York, and therefore are subject to dismissal. Daisernia, 582 F. Supp. at 798-99. Accordingly, I recommend that, to the extent that any of the claims asserted in plaintiff's amended complaint are asserted against any of the named-defendants in their official capacities, those claims be dismissed with prejudice.
Because plaintiff is also requesting injunctive relief, to that extent his claims are properly asserted against the defendants in their official capacities. See, e.g., King v. McIntyer, No. 11-CV-1457, 2014 WL 689028, at *6 (N.D.N.Y. Feb. 20, 2014) (Hurd, J., adopting report and recommendation by Dancks, M.J.) (citing Quern v. Jordan, 440 U.S. 332, 338 (1979)).
H. Qualified Immunity
As an alternative ground for dismissal of plaintiff's claims, defendants assert their entitlement to qualified immunity from suit. Dkt. No. 84-1 at 24-25. This portion of defendants' motion does not single out or identify specific defendants as potentially qualifying for immunity, but instead appears to request dismissal of all of plaintiff's claims including the excessive force claims. Id.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of N.Y., 689 F.3d 159, 174 (2d Cir. 2012). The law of qualified immunity seeks to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. Government officials are shielded from liability by qualified immunity when making "reasonable mistakes" concerning the lawfulness of their conduct. Sudler, 689 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), abrogated on other grounds by Pearson, 555 U.S. 223)).
The determination of whether a government official is immune from suit is informed by two factors. Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014); Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a statutory or constitutional right, and if so, whether that right "was clearly established at the time of the challenged conduct." Id., see also Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (citing Reichle, 132 S. Ct. at 2093). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). "To this end, a plaintiff need not show a case 'directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'" Terebesi, 764 F.3d at 230 (quoting al-Kidd, 131 S. Ct. at 2083). However, '[e]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is satisfied if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Because qualified immunity is "an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation," Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)). In addressing the two relevant qualified immunity factors, the court must draw all inferences in favor of the non-moving party. Tolan, 134 S. Ct. at 1866.
In the event the above recommendations are adopted, the following causes of action remain for an analysis regarding qualified immunity: (1) deliberate medical indifference under the Fourteenth Amendment asserted against defendants Pavlot and Simpkins; (2) retaliation under the First and Fourteenth Amendments asserted against (a) defendants Fical, Searcy, Sill, Simpkins regarding the August 20, 2012 incident, (b) defendant Box regarding the September 22, 2012 incident, and (c) defendant Santamassino (in the event the assigned district judge does not dismiss him from the action based on plaintiff's failure to timely serve and join the individual); (3) excessive force and deliberate medical indifference based on his supervisory capacity against defendant Nowicki. I am unable to conclude that these remaining individuals are entitled to qualified immunity at this juncture. Instead, as was discussed above, there are issues of fact that must be resolved with respect to both the question of whether plaintiff's constitutional rights were violated, and whether a reasonable person in the defendants' respective positions would have understood that their conduct violated plaintiff's constitutional rights.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's complaint in this action asserts several claims against a host of defendants, the majority of which revolve around discrete incidents involving the use of force and the medical treatment provided to him for his bilateral shoulder condition. For the reasons set forth above, it is hereby respectfully
RECOMMENDED that plaintiff's claims asserted against defendant John Santamassino be dismissed, without prejudice, in the event that, no later than fourteen days following the issuance of this report and recommendation, plaintiff does not provide good cause for his failure to effectuate service upon defendant Santamassino; and it is further
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 84) be granted, in part, and the following claims be DISMISSED:
(1) Plaintiff's deliberate medical indifference claims asserted against defendants Kaskiw and Farnum;
(2) Plaintiff's conditions of confinement claims asserted against all defendants;
(3) All claims asserted against defendants Gonzalez, Comstock, Piracha, and Kuntz;
(4) Plaintiff's retaliation claim asserted against defendant Hellinger; and
(5) Plaintiff's damage claims asserted against all defendants sued in their official capacities; and it is further
RECOMMENDED that, in the event the above-recommendations are adopted, the following claims remain for trial:
(1) Plaintiff's excessive force and failure to protect claims asserted against defendants Hellinger, Pavlot, Morgan, and Nowicki related to the incident on February 20, 2012, for damages in their individual capacities, and for injunctive relief in their individual and official capacities.
(2) Plaintiff's excessive force, failure to protect, and retaliation claims asserted against defendants Fical, Searcy, Sill, Simpkins, Farnum, and Nowicki related to the incident on August 20, 2012, for damages in their individual capacities, and for injunctive relief in their individual and official capacities.
(3) Plaintiff's excessive force and failure to protect claims asserted against defendants Hellinger, Morgan, and Nowicki related to the incident on August 24, 2012, for damages in their individual capacities, and for injunctive relief in their individual and official capacities.
(4) Plaintiff's excessive force and failure to protect claims asserted against defendants Box, Paulson, Morgan, and Nowicki related to the incident on September 22, 2012, for damages in their individual capacities, and for injunctive relief in their individual and official capacities.
(5) Plaintiff's excessive force and failure to protect claims asserted against defendants Santamassino (if he is not otherwise dismissed from the action based on plaintiff's failure to timely serve and join the individual), Paulson, Bill, and Nowicki related to the incident of June 20, 2013, for damages in their individual capacities, and for injunctive relief in their individual and official capacities.
(6) Plaintiff's deliberate medical indifference claims asserted against defendants Pavlot and Simpkins for damages in their individual capacities, and for injunctive relief in their individual and official capacities.
(7) Plaintiff's retaliation claims asserted against defendants Searcy, Sill, Fical, and Simpkins related to the incident on August 20, 2012, for damages in their individual capacities, and for injunctive relief in their individual and official capacities.
(8) Plaintiff's retaliation claim asserted against defendant Box related to the incident on September 22, 2012, for damages in his individual capacity, and for injunctive relief in his individual and official capacity.
(9) Plaintiff's retaliation claim asserted against defendant Santamassino (if he is not otherwise dismissed from the action based on plaintiff's failure to timely serve and join the individual) related to the incident on June 20, 2013, for damages in his individual capacity, and for injunctive relief in his individual and official capacity; and it is further hereby
ORDERED that the clerk of the court is respectfully directed to modify the docket sheet to reflect the correct spelling of defendant Daniel Simpkins' last name; and it is further
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.
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). Dated: September 30, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge