Opinion
Civil Action No. 9:14-CV-0811 (GLS/DEP)
02-24-2016
JOHNATHAN JOHNSON, Plaintiff, v. RICHARD ADAMS, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro se 89-A-1042 Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: DAVID J. SLEIGHT, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro se
89-A-1042
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: DAVID J. SLEIGHT, ESQ.
Assistant Attorney General DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Johnathan Johnson, a New York State prison inmate, has commenced this action against various individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging the deprivation of his civil rights. Currently pending before the court is a motion brought by six of the defendants seeking the entry of summary judgment dismissing plaintiff's claims based on the absence of any record evidence from which a reasonable factfinder could conclude that any of them denied plaintiff adequate medical care or retaliated against him. For the reasons set forth below, I recommend that the motion be granted in part and denied in part. In particular, I recommend that plaintiff's medical indifference claims that relate to the treatment plaintiff received up through January 2011, as well as the retaliation claims, be dismissed. Defendants' motion seeking dismissal of plaintiff's medical indifference claims concerning the treatment received by him between February 2011 and August 2012, however, should be denied without prejudice to defendants' right to file a second motion for summary judgment. Finally, although defendants contest whether defendant Rock has been served in this matter, it is clear from their answer that he has appeared in this action and waived any objection to personal jurisdiction. For that reason, and because the pending summary judgment motion does not include defendant Rock, I recommend the claims asserted against that individual survive, but that he be permitted to file a motion for summary judgment. 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).
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 4. At the times relevant to his claims in this action, he was confined in the Upstate Correctional Facility ("Upstate"), located in Malone, New York. Id.
Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined for twenty-three hours each day, primarily for disciplinary reasons. Samuels v. Selsky, No. 01-CV-8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002).
Plaintiff suffers from a sinus condition caused by a broken nose, dry skin, allergies, and cardio obstructive pulmonary disease ("COPD"). Dkt. No. 22-5 at 19-20; see also Dkt. No. 4 at 2. Medical staff at Upstate have provided plaintiff with regular medical treatment for these conditions, including providing ointments for his skin condition, a Proventil inhaler for his COPD, gas relief medications, and other medications as needed. Dkt. No. 21-1 at 5, 30, 50, 51, 70. Plaintiff alleges that defendants Richard Adams and Patrick Johnston, a medical doctor and physician's assistant employed at the facility, improperly directed prison medical staff to stop providing these medications in April and June 2010, and continued to deny him medication through August 2012. Dkt. No. 4 at 2, 4.
According to defendant Nancy Smith, a nurse administrator stationed at Upstate, the prison nurse on duty each day administers medication to inmates seven days per week, three times daily, or as otherwise prescribed by an inmate's provider. Dkt. No. 21 at 2. When the on-duty nurse arrives at a housing unit, an announcement is made that medication rounds are beginning, and inmates who wish to receive treatment are directed to be at their door with the lights on. Id. at 3. Any inmate not at his door with the lights on is deemed to have declined medication. Id. If an inmate is at his door, the nurse administering the medication is required to ask the inmate for his name and department identification number ("DIN") to ensure that the proper medication goes to the correct inmate. Id. at 2. If an inmate does not comply with these requirements, medications are not dispensed to him. Id.
Defendant Smith further states that medications may not be dispensed without periodic verification that an inmate has a continued medical need for them. Dkt. No. 21 at 3. Therefore, an inmate receiving medications is regularly required to submit to a medical examination by a doctor or nurse practitioner to determine the continued need for medication. Id. If an inmate refuses to cooperate, the medications are discontinued. Id.
During the course of a deposition conducted in connection with a lawsuit earlier filed by plaintiff, plaintiff acknowledged that he is aware of the above-described procedures for receiving medication. Dkt. No. 22-5 at 46-47, 64-67. He further admitted to refusing to provide his name and DIN "every day." Id. at 46. Plaintiff's medical records confirm this, demonstrating that, between January 26, 2010 and January 31, 2011, Johnson refused to comply with the nurses' request for his name and DIN more than 250 times. Dkt. No. 21-1 at 2-138. As a result of his non-compliance, prison staff did not dispense medications to plaintiff on those occasions. Id. Additionally, although plaintiff alleges in his complaint that defendants Adams and Johnston discontinued his medications specifically on April 8, 2010, and June 10, 2010, in deliberate indifference to his serious medical needs, his medical records reflect that, on those dates, plaintiff refused to come out of his cell to be evaluated by a physician. Id. at 88, 115. In a report issued to plaintiff on June 10, 2010, the on-duty nurse, who is not a party to this action, wrote, "Your [medications] were discontinued by MD on 6/10/10 due to your refusal to be seen by the Dr. He will evaluate your need for the medications once you are seen for a medical evaluation." Id. at 88. After receipt of this notice, plaintiff cooperated, asked to see the doctor, and was issued medications on June 12, 2010. Dkt. No. 21-1 at 86. After receiving treatment, however, plaintiff returned to a pattern of refusing to cooperate with medical staff. Id. at 70-86.
In support of their motion, defendants have submitted declarations and corresponding exhibits from defendant Smith and Assistant Attorney General Adele Taylor-Scott that were prepared and filed in connection with a lawsuit filed by plaintiff in 2010, Johnson v. Adams ("Adams I"), No. 10-CV-1082 (N.D.N.Y. filed Sept. 9, 2010). Dkt. No. 23 at 2. According to defendants' counsel, Adams I is "identical" to the pending action. Id. As is discussed more completely below, however, there are allegations in plaintiff's current complaint that were not included in the complaint filed in Adams I, and therefore were not addressed in that earlier motion.
During this same time period, plaintiff submitted numerous grievances through the DOCCS Inmate Grievance Program ("IGP") regarding his complaints about not receiving his medications. Dkt. No. 28-3 at 16-25. In addition, plaintiff submitted a series of letters between April and June 2010 to the DOCCS Central Office pertaining to the discontinuation of his medications. Dkt. No. 22-3 at 8-9, 11-16, 18-19, 20-22, 28-29. Defendant Lester Wright, the DOCCS Deputy Commissioner and Chief Medical Officer, responded personally or through a representative to each of plaintiff's letters, indicating that "the issues to which [he] refer[red] in [his] letter are being addressed" and suggesting that plaintiff "continue to bring [his] medical concerns to the attention of the health care staff using the existing sick call procedure." Id. at 5, 10, 17, 23, 27, 31, 34. The letters also notified plaintiff that the IGP "makes no provision for an inmate to refer grievances directly to the Central Office." Id.
Plaintiff contends that his filing of these grievances caused "defendants to commence to retaliate against plaintiff's [sic] . . . by falsely alleging that plaintiff's medications was [sic] not being effective to doctor Adams." Dkt. No. 4 at 3. He alleges that defendants George Waterson, Heath Baker - both registered nurses at Upstate - and Smith "had the nurses in upstate to implement a non-exist [sic] policy that required plaintiff to state his name and identification number even though these nurses/defendants knew his name." Id.
Plaintiff contends that he is "exempt" from the requirement that he state his name and DIN because he has been the only resident of his cell since he came to Upstate and the medical staff knows who he is. Dkt. No. 22-5 at 46-47, 58, 62-63. He also contends that, because he has been diagnosed with COPD, a chronic condition that he alleges will not change, he should not be subjected to an examination to verify the continuing need for any medications because "the medication speaks for itself." Id. at 37.
According to plaintiff, defendants Wright, Smith, and David Rock, the Superintendent at Upstate, are subject to supervisory liability for the behavior of defendants Baker, Waterson, Adams and Johnston, "whom implemented the unconstitutional policies, protocols and directives." Dkt. No. 4 at 3-4.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about January 28, 2013, by the filing of a complaint in New York State Supreme Court, Franklin County. Dkt. No. 4 at 5. Plaintiff's complaint named as defendants the following seven Upstate employees or former employees: (1) Dr. Richard Adams, a physician; (2) Patrick Johnston, a physician's assistant; (3) David Rock, the Superintendent of Upstate; (4) Nancy Smith, a nurse administrator; (5) George Waterson, a registered nurse; (6) Lester Wright, the DOCCS Deputy Commissioner and Chief Medical Officer; and (7) Heath Baker, a registered nurse. Id. at 1. Liberally construed, plaintiff's complaint asserts (1) an Eighth Amendment medical indifference claim against defendants Adams, Johnston, Rock, Wright, and Smith, based upon the discontinuation of plaintiff's medications and/or their refusal to provide plaintiff with medication "from April and June 2010 through August 2012"; and (2) a First Amendment retaliation claim against defendants Waterson, Baker, and Smith following plaintiff's filing of grievances against them in 2010. See generally id.
In his response to the pending motion, plaintiff recharacterizes the nature of his claims, suggesting that he asserts a substantive due process claim against defendants regarding the constitutionality of the requirements that he provide his name and DIN before receiving medication and submit to examinations to ensure that certain medications continue to be necessary. Dkt. No. 28 at 1. Additionally, plaintiff claims that he has asserted a retaliation claim against defendants Baker, Waterson, Adams, and Johnston. Id. at 1-2. Because plaintiff's complaint clearly asserts a deliberate indifference claim, rather than a due process claim, and asserts a retaliation claim against only defendants Waterson, Baker, and Smith, Dkt. No. 4 at 1-2, and because the parties have been on notice of the court's construction of plaintiff's claims since District Judge Gary L. Sharpe's decision and order denying plaintiff's remand, Dkt. No. 14, the court will not address any of plaintiff's due process arguments or contentions of retaliation against defendants Adams and Johnston in this report. The court notes that, as a prolific litigator who has considerable experience litigating summary judgment motions, plaintiff is not entitled to the same degree of special solicitude at this stage of the proceedings that the court might extend to other pro se litigants. See Sledge v. Kooi, 564 F.3d 105, 109 (2d Cir. 2009) ("[I]t is appropriate to charge a pro se litigant with knowledge of, and therefore withdraw special status in relation to, particular requirements with which he is familiar as a result of his extensive prior experience in the courts."); see also Johnson v. Connolly, No. 07-CV-0158, 2008 WL 724167, at *1 (N.D.N.Y. Mar. 17, 2008) (Kahn, J., adopting report and recommendation by Lowe, M.J.) (declining to extend special solicitude to plaintiff in light of plaintiff's prolific litigation history and because "[t]he Second Circuit has diminished this special solicitude, and/or indicated the acceptability of such a diminishment, on several occasions including two occasions involving Plaintiff " (emphasis in original)).
Relying on federal question jurisdiction, defendants Adams, Johnston, Baker, Wright, Waterson, and Smith removed the action to this court on July 3, 2014. Dkt. No. 1. A subsequent motion brought by the plaintiff seeking an order remanding the action to state court, Dkt. No. 2, was denied by Judge Sharpe on December 15, 2014. Dkt. No. 14. In his decision, Judge Sharpe construed plaintiff's complaint as asserting (1) a deliberate indifference claim against defendants Adams and Johnston; (2) retaliation claim against defendants Waterson, Baker and Smith; and (3) supervisory claims against defendants Wright and Smith. Id. at 2.
Defendant Rock did not join in the removal notice.
Following the close of discovery, defendants Adams, Johnston, Baker, Wright, Waterson, and Smith filed the currently pending motion for summary judgment, arguing that the record evidence does not give rise to a genuine dispute of material fact regarding whether (1) defendants Adams and Johnston were deliberately indifferent to plaintiff's serious medical needs; (2) defendants Waterson, Baker, and Smith retaliated against plaintiff; or (3) defendants Wright and Smith were personally involved in the constitutional violations alleged. See generally Dkt. No. 24. On May 19, 2015, plaintiff filed his response in opposition to the motion, Dkt. No. 28, and defendants have since submitted papers in reply to plaintiff's opposition, Dkt. No. 29. Defendants' motion, which is now fully briefed, 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).
Defendant Rock did not join the motion for summary judgment.
On January 6, 2016, the court issued a text order directing defendants' counsel to file a report regarding the status of defendant Rock in light of the fact that he is not listed on either the notice of removal or defendants' motion for summary judgment. Dkt. No. 31. In response, defendants' counsel filed a letter indicating that defendant Rock has not requested the New York State Office of the Attorney General to represent him in this action and that counsel had reason to believe that this individual was not served with a summons and complaint. Dkt. No. 32. Plaintiff subsequently responded to the court's text order, indicating, and providing an indicia of proof, that defendant Rock was served on the same date and in the same manner as the other named defendants. Dkt. No. 33. In light of the proof submitted by plaintiff with respect to service on defendant Rock, the court issued defendants an order to show cause why that individual should not be deemed to be in default in this matter and judgment be issued against him. Dkt. No. 35. Defendants' response to that order to show cause was filed on January 29, 2016, arguing that a default judgment should not be entered against defendant Rock because (1) he was never properly served, (2) he has a meritorious defense to the claims asserted against him, and (3) default is precluded as a matter of law. See generally Dkt. No. 36.
III. DISCUSSION
A. Defendants' Motion for Summary Judgment
1. Legal Standard Governing Motions for Summary Judgment
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").
2. Plaintiff's Deliberate Medical Indifference Claim
In his complaint, plaintiff asserts a deliberate medical indifference claim against defendants Adams and Johnston arising from allegations that they discontinued his ointment, inhaler, soap, and stomach medication in April and June 2010. Dkt. No. 4 at 1-2. In support of their motion, defendants argue that the discontinuation of treatment was solely the result of plaintiff's refusal to cooperate with medical staff and refusal to follow prison protocols. Dkt. No. 24 at 5-6.
i. Legal Standard Governing Deliberate Medical Indifference Claims
The Eighth Amendment prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society[,] or which involve the unnecessary and wanton infliction of pain[.]" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quotation marks and citations omitted)). While the Eighth Amendment "does not mandate comfortable prisons, . . . neither does it permit inhumane ones[.]" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation marks and citation omitted). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering which no one suggests would serve any penological purpose." Id. (quotation marks and citations omitted).
A claim alleging that prison officials have violated an inmate's Eighth Amendment rights 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, 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 a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's 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).
ii. Analysis of Plaintiff's Claims Through January 2011
Turning first to the objective element of plaintiff's medical indifference claim, plaintiff alleges that he suffers from dry skin, sinus issues, and COPD. Dkt. No. 4 at 2; Dkt. No. 22-5 at 19. Specifically, he contends that he is allergic to the ordinary soap issued in state prisons and is prescribed Neutrogena soap as a substitute. Dkt. No. 4 at 2; Dkt. No. 22-5 at 29. Plaintiff contends that when he is unable to use Neutrogena soap, his face "burns" and "turn[s] red." Dkt. No. 22-5 at 29. Plaintiff also believes he is entitled to certain skin care products because "[i]f [he] don't [sic] keep [his] skin nice and oily, [he] might run around . . . looking like the Wicked Witch of the West[.]" Id. With respect to his COPD, plaintiff argues that it is "defined as persistent decrease in the rate of air flow through the lungs[.]" Dkt. No. 28 at 5. Plaintiff alleges that, as a result of this chronic condition, he is short of breath "all the time," but specifically when he exercises. Dkt. No. 22-5 at 19-20, 29. He insists that he needs his Proventil inhaler at least six times per day for this condition. Dkt. No. 28 at 6.
Notwithstanding these allegations, plaintiff's medical records clearly reflect that plaintiff was not in urgent need of any of the medications he contends were discontinued by defendants Adams and Johnston in light of the fact that several days would elapse between being provided medications due to plaintiff's conduct. See, e.g., Dkt. No. 21-1 at 2-4 (reflecting that, because plaintiff refused to provide medical staff his name and DIN between January 25, 2011 and January 31, 2011, he was not provided any medical treatment on those dates). Moreover, plaintiff's consistent refusal to provide medical staff his name and DIN, in accordance with prison policies, and his repeated harassment of medical staff as reflected in his medical records (and acknowledged by plaintiff at his deposition in connection with Adams I), Dkt. No. 22-5 at 33, 36, 43, give rise to a reasonable inference that he did not suffer from an objectively serious medical condition. See, e.g., Evering v. Rielly, No. 98-CV-6718, 2001 WL 1150318, at *10 (S.D.N.Y. Sept. 28, 2001) ("[A]n inmate's refusal to accept medical treatment in no way signifies a deliberate indifference to serious medical needs.") (citing cases)).
Turning to the subjective element of the deliberate medical indifference claim, even construing the evidence in most the light most favorable to plaintiff, the record fails to demonstrate that defendants Adams and Johnston acted with the requisite deliberate indifference to plaintiff's serious medical needs. Plaintiff contends that, although he was neither seen nor examined by defendant Adams, Adams discontinued his medications. Dkt. No. 22-5 at 31-32. According to plaintiff, however, defendant Adams did so because defendants Waterson, Baker, and Smith informed him that they were no longer effective for plaintiff. Dkt. No. 4 at 3. As to defendant Johnston, plaintiff alleges he "discontinued plaintiff's A+D-ointment and his stomach medications, for failing to attend a scheduled medical-call-out." Dkt. No. 4 at 2. Thus, plaintiff's own allegations suggest that defendants Adams and Johnston did not act with deliberate indifference to plaintiff's serious medical needs. Instead, the record reflects that those defendants had reasons for discontinuing plaintiff's medications. Although plaintiff contends that defendants Waterson, Baker, and Smith "fabricated" the contention that his medications were no longer effective and told defendant Adams as much in retaliation for his having filed grievances against them, Dkt. No. 1 at 3; Dkt. No. 22-5 at 33-35, 59-61, there is no record evidence to suggest that defendant Adams was aware that those defendants were not communicating accurate information. Accordingly, because plaintiff has failed to adduce evidence giving rise to a genuine dispute of material fact with respect to the subjective element of his deliberate indifference claim, I recommend that defendants' motion with respect to that claim, as asserted against defendants Adams and Johnston for the time period between April 2010 through January 2011, be granted.
iii. Analysis of Plaintiff's Medical Indifference Claims From February 2011 through August 2012
In support of their motion, defendants have submitted a declaration from defendant Smith that included, as an exhibit, plaintiff's ambulatory health records between January 26, 2010 and January 31, 2011, Dkt. Nos. 21, 21-1, as well as a declaration from New York Assistant Attorney General ("AAG") Adele Taylor-Scott, which included several exhibits, Dkt. Nos. 22, 22-1-22-6. According to defendants' attorney in this matter, AAG David Sleight, the declarations from defendant Smith and AAG Taylor-Scott, and accompanying exhibits, were originally submitted to the court in connection with Adams I, a previous lawsuit filed by plaintiff in this district. Dkt. No. 23 at 2. More specifically, AAG Sleight notified the court in his declaration in support of defendants' pending motion for summary judgment in this matter as follows:
Based on the identical nature of this action with the prior action, I have submitted two factual documents submitted in support of the summary judgment motion in the prior action in support of the summary judgment motion for this action. They are the declarations of Defendant Smith and Adele Taylor-Scott, the AAG that handled Plaintiff's prior action.Id. While the sum and substance of the evidence submitted by defendants in this matter in support of their pending motion is contained in the declarations of defendant Smith and AAG Taylor-Scott and accompanying exhibits, all of it addresses plaintiff's medical treatment up to, at the latest, only January 31, 2011, whereas plaintiff's complaint clearly alleges that he was deprived of adequate medical treatment by defendants "through August 2012." Dkt. No. 4 at 4. At this time, there is no record evidence, aside from the allegations in plaintiff's verified complaint, that indicate the type or degree of medical treatment he received between February 2011 and August 2012. Because the verified complaint constitutes competent evidence at this juncture, and in light of my obligation to draw all inferences in favor of the non-moving party, I feel constrained to recommend that defendants' motion be denied without prejudice to their right to file a second summary judgment motion with respect to plaintiff's medical indifference claims against defendants Adams and Johnston for any treatment received between February 1, 2011 and August 31, 2012.
3. Plaintiff's Retaliation Claim
In his complaint, plaintiff asserts a First Amendment retaliation claim against defendants Smith, Baker, and Waterson alleging that they retaliated against him for filing inmate grievances by telling defendant Adams to discontinue plaintiff's medication and also by enforcing the policy regarding medical call-outs. Dkt. No. 4 at 2-3. In support of their motion, defendants argue that plaintiff's claims do not rise to a constitutional violation. Dkt. No. 24 at 7-9.
i. Legal Standard Governing Retaliation Claims
A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). As the Second Circuit has repeatedly cautioned, however, because such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus, courts must approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).
To succeed on a section 1983 claim for retaliatory conduct, a plaintiff must demonstrate 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 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).
For conduct to constitute as adverse for purposes of satisfying this test, it must "deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003). "In order to satisfy the causation requirement, allegations must be sufficient to support the inference that the speech played a substantial part in the adverse action." Davis, 320 F.3d at 354 (quotation marks omitted).
ii. Analysis
Plaintiff alleges that defendants Baker, Waterson, and Smith told defendant Adams not to prescribe medication to plaintiff in retaliation for filing grievances and lawsuits against them and for "call[ing] all of them arrogant names." Dkt. No. 4 at 2-3; Dkt. No. 22-5 at 33-35, 59-61.
For the sake of brevity, I have assumed without deciding, for purposes of this report, that plaintiff can satisfy the first and second elements of a retaliation claim. See, e.g., Johnson v. Eggersdorf, 8 F. App'x 140, 144 (2d Cir. 2001) ("It is undisputed that retaliation by prison officials against an inmate for the filing of a grievance can act as a deprivation of a constitutionally protected right."); Johnson v. Schiff, No. 11-CV-0531, 2013 WL 5466218, at *13 (N.D.N.Y. Sept.13, 2013) (Dancks, M.J.) (finding adverse action where defendants, inter alia, allegedly denied the plaintiff medical care). Plaintiff's claim fails, however, with respect to the causation element. While plaintiff has adduced evidence supporting his allegations that he filed grievances complaining of the medical treatment he received while at Upstate between October 2009 and April 2013, the list of grievances provided does not indicate against whom the grievances were filed. Dkt. No. 38-3 at 16-25. Even assuming each of the grievances that relate to plaintiff's medical treatment were filed against defendants Waterson, Baker, and Smith, there is no evidence to suggest that defendants indicated to defendant Adams that plaintiff's medications were no longer effective as a result of those grievances. Indeed, there is an absence of any evidence, aside from plaintiff's bare allegation, that defendants Waterson, Baker, and Smith told defendant Adams that plaintiff's medications were no longer effective or when they did so. There is also no evidence from which a reasonable factfinder could conclude that defendants Waterson, Baker, and Smith were aware of the grievances plaintiff filed at the time they purportedly communicated with defendant Adams. While it is worth noting that temporal proximity, on its own, is not sufficient to satisfy the causation element of a retaliation claim at the summary judgment stage, see, e.g., Williams v. Goord, 111 F. Supp. 2d 280, 190 (S.D.N.Y. 2000) ("Although the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment."), the record does not disclose when defendants talked with defendant Adams or which particular grievance(s) triggered the alleged adverse action. Therefore, even if temporal proximity was sufficient at this stage, there is no evidence to support a finding that it existed in this matter.
Accordingly, because the record is devoid of any evidence from which a reasonable factfinder could conclude that defendants Waterson, Baker, and Smith retaliated against plaintiff by telling defendant Adams to discontinue his medications, I recommend that defendants' motion be granted with respect to this claim.
4. Supervisory Liability
Plaintiff's claims against defendants Wright and Smith are based on the theory of supervisory liability. In particular, plaintiff's complaint alleges the following:
That the defendants are the supervisors of the defendants, Baker, Waterson, Adams, Smith, and Johnston, whom implemented the unconstitutional policies, protocols and directives, whom were notified by, plaintiff, through inmate grievance complaints and written-complaints, who, have failed to remedial [sic] the denial of the plaintiff's discontinued and denial of medical treatment.Dkt. No. 4 at 3-4; see also Dkt. No. 22-5 at 36.
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 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); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, 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."). It is well established, however, 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.
As an initial matter, plaintiff's claims against defendants Wright and Smith fail because, if the above-described recommendations regarding plaintiff's deliberate medical indifference and retaliation claims are adopted by the assigned district judge, there is no remaining underlying cause of action upon which to hold defendants Wright and Smith liable in their capacities as supervisors. See Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir. 1999) ("Of course, for a supervisor to be liable under Section 1983, there must have been an underlying constitutional deprivation."). In any event, although there is record evidence reflecting that plaintiff wrote letters to defendant Wright about the allegedly inadequate medical treatment, there is also ample evidence suggesting that defendant Wright responded to plaintiff's letters, either directly or by referring them to a subordinate, and explained to plaintiff that, because he had filed grievances at Upstate regarding the same matters, defendant Wright was precluded from addressing them simultaneously. Dkt. No. 22-3 at 5, 9, 15, 20, 23. In addition, defendant Wright urged plaintiff to address his concerns with "facility health services staff using existing sick call procedures." Id. There is no other evidence in the record regarding plaintiff's alleged communications to defendants Wright or Smith regarding his alleged inadequate medical treatment and/or retaliation.
To the extent plaintiff seeks to confer supervisory liability upon defendants Wright and Smith because they created and/or implemented the policy requiring medical staff to verify plaintiff's name and DIN prior to dispensing medication, the underlying constitutional claim in that instance would be a substantive due process claim, which, as noted above in Part II. of this report, was neither asserted in plaintiff's complaint nor considered by the court as having been included in plaintiff's complaint. For that reason, I have neither analyzed the merits of any substantive due process claim nor the alleged supervisory liability regarding that cause of action with respect to defendants Wright and Smith.
Because I have recommended that the underlying constitutional claims asserted in plaintiff's complaint be dismissed, and because there is no record evidence from which a reasonable factfinder could conclude that defendants Wright and Smith were personally involved in any alleged constitutional violation, I recommend defendants' motion be granted with respect to those individuals.
B. Status of Defendant Rock
As was described above in Part II. of this report, defendant Rock did not join either the effort to remove this action from state to federal court or the pending motion for summary judgment. Dkt. Nos. 1, 19. Significantly, however, he is listed in the defendants' answer, which did not contain a defense of lack of jurisdiction or otherwise claim that defendant Rock was not properly served. Dkt. No. 9. Accordingly, any argument that he was not properly served is rendered moot, and the court finds that his filing of an answer, which does not contest personal jurisdiction, "is equivalent to personal service" of the summons and complaint. N.Y. C.P.L.R. §§ 320(b), 3211(e); see also Burr ex rel. Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432 (S.D.N.Y 2006) ("Thus, it has always been and still remains the rule that service of process can be waived by respondent simply by appearing in the proceeding and submitting to the court's jurisdiction.").
Under ordinary circumstances, the fact that defendant Rock appeared in the action but failed to file a summary judgment motion by the dispositive motion deadline would result in the action moving forward against that individual. In this instance, however, it is clear that defendants did not file a motion on defendant Rock's behalf because of their belief that he had not been served in the action. Dkt. Nos. 32, 36. In light of the parties' dispute as to whether defendant Rock was served prior to the action being removed to federal court, I recommend that he be permitted to file a motion for summary judgment on his behalf no later than April 15, 2016.
IV. SUMMARY AND RECOMMENDATION
While defendants Adams, Johnston, Smith, Waterson, Wright, and Baker have moved for summary judgment seeking dismissal of all of plaintiff's claims, I find that the record is incomplete with respect to plaintiff's medical indifference claims asserted against defendants Adams and Johnston regarding the treatment he received between February 2011 and August 2012. For this reason, I recommend defendants' motion regarding that portion of plaintiff's claim be denied without prejudice to their right to file a second motion for summary judgment.
As for plaintiff's medical indifference claims asserted against defendants Adams and Johnston up through January 2011, as well as his retaliation claims, however, the record is well developed and no reasonable factfinder could conclude that any of the defendants violated plaintiff's constitutional rights.
Lastly, because defendant Rock filed an answer in this action and did not contest personal jurisdiction, I find that he has appeared and the claims against him should move forward but that he should be afforded an opportunity to file a summary judgment motion.
Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 19) be GRANTED in part and DENIED in part, as follows:
(1) Plaintiff's deliberate medical indifference claims asserted against defendants Adams and Johnston regarding the medical treatment plaintiff received through January 2011 should be DISMISSED;
(2) Plaintiff's deliberate medical indifference claims asserted against defendants Adams and Johnston regarding the medical treatment plaintiff received between February 2011 and August 2012 should survive, and defendants should be permitted to file a second motion for summary judgment with respect to this claim;
(3) Plaintiff's retaliation claims asserted against defendants Waterson, Baker, and Smith should be DISMISSED; and
(4) Plaintiff's supervisory liability claims asserted against defendant Wright be DISMISSED; and it is further
RECOMMENDED that the supervisory claims asserted against defendant Rock survive defendants' motion for summary judgment and he be permitted to file a motion for summary judgment on or before April 15, 2016.
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 24, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge