Shakur v. Furey et al

Filing 35

ORDER granting 30 Defendants' Motion for Summary Judgment; denying 32 Plaintiff's Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of the Defendants, and to close this case. Signed by Judge Vanessa L. Bryant on 4/8/10. (Engel, J.)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

M E C C A ALLAH SHAKUR,1 P la in tiff, v. R IC H AR D G. FUREY, et al., D e fe n d a n ts .

: : : : : : :

C AS E NO. 3:08-cv-1187 (VLB)

Ap r il 8, 2010

M E M O R AN D U M OF DECISION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Doc. #32] AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT [Doc. #30] T h e Plaintiff, Mecca Allah Shakur, commenced this action pro se against the D e fe n d a n ts , Health Services Administrator Richard G. Furey and Doctors Mark B u c h a n a n , Syed Naqvi, Rick Ruiz, and Monica Farinella. The Plaintiff alleges that th e Defendants improperly denied his request for shoes with special lifts. Both p a r tie s move for summary judgment. For the reasons that follow, the Plaintiff's m o tio n for summary judgment is DENIED and the Defendants' motion for summary ju d g m e n t is GRANTED. I. Standard of Review In a motion for summary judgment, the burden is on the moving party to e s ta b lis h that there are no genuine issues of material fact in dispute and that it is th e r e fo r e entitled to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.; An d e r s o n v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The moving party may s a tis fy this burden "by showing ­ that is pointing out to the district court ­ that th e r e is an absence of evidence to support the nonmoving party's case." PepsiCo,
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The Plaintiff also is known as Ronnie Hinton.

Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal q u o ta tio n marks and citations omitted). Once the moving party meets this burden, th e nonmoving party must "set forth specific facts showing that there is a genuine is s u e for trial," Anderson, 477 U.S. at 255, and present such evidence as would a llo w a jury to find in his favor in order to defeat the motion for summary ju d g m e n t. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). W h e n reviewing the record, the Court resolves all ambiguities and draws all p e r m is s ib le factual inferences in favor of the party against whom summary ju d g m e n t is sought. Patterson v. County of Oneida, NY, 375 F.3d 206, 218 (2d Cir. 2 0 0 4 ). If there is any evidence in the record on a material issue from which a r e a s o n a b le inference could be drawn in favor of the nonmoving party, summary ju d g m e n t is inappropriate. Security Ins. Co. of Hartford v. Old Dominion Freight L in e Inc., 391 F.3d 77, 83 (2d Cir. 2004). However, "`[t]he mere of existence of a s c in tilla of evidence in support of the [plaintiff's] position will be insufficient; there m u s t be evidence on which the jury could reasonably find for the [plaintiff].'" Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting An d e r s o n , 477 U.S. at 252)). Lastly, pro se litigants are entitled to an "accessible" explanation of Rule 56 o f the Federal Rules of Civil Procedure, and the implications of a motion for s u m m a r y judgment: W e take this opportunity to briefly discuss the interplay between Rule 5 6 of the Federal Rules of procedure ("Rule 56") and the pro se litig a n t w h o does not move for summary judgment. And we remind th e district courts of this circuit, as well as summary judgment

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movants, of the necessity that pro se litigants have actual notice, p r o v id e d in an accessible manner, of the consequences of the pro se litig a n t's failure to comply with the requirements of Rule 56. Ir b y v. New York City Transit Authority, 262 F.3d 412, 414 (2d Cir. 2001). The Defendants have complied with this requirement via notice provided to the Plaintiff on October 1, 2010 informing him, inter alia, that the D e fe n d a n ts ' motion for summary judgment may be granted and his claims m a y be dismissed if he failed to file opposition papers as required by Fed. R . Civ. P. 56 and Local R. 56. See Doc. #29. II. Facts 2 T h e Plaintiff was confined at the MacDougall-Walker Correctional Institution a t all times relevant to this action. In February 2007, the Plaintiff settled three la w s u its with the State of Connecticut.3 As part of the settlement agreement, the S ta te agreed that the "Plaintiff shall be promptly seen by medical staff for e v a lu a tio n for orthopedic footwear acceptable to the parties." On February 15, 2007, Dr. Fedus, a podiatrist, examined the Plaintiff. Dr. F e d u s noted that Plaintiff's right leg was 3/8" shorter than his left leg, and d e te r m in e d that the length discrepancy could be treated by placing a lift in the s h o e on the shorter leg. At the Plaintiff's request, however, Dr. Fedus submitted a r e q u e s t to the Utilization Review Committee for Clark brand shoes with a built-in

The facts are taken from the statements filed by both parties pursuant to D . Conn. L. R. 56(a)1 and (a)2 and the attached exhibits. See Docs. ##30, 31, 32. Shakur v. Dzurenda, et al., 3:04cv1835 (WIG); Shakur v. Dzurenda, et al., 3 : 0 5 c v 7 6 8 (SRU); and Shakur v. Ashraf, et al., 3:05cv694 (RNC).
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lift. T h e Utilization Review Committee ("URC"), consisting of Defendants Mark B u c h a n a n , Syed Naqvi, Ricardo Ruiz, and Monica Farinella, denied the request. They noted that Dr. Fedus had provided the Plaintiff a heel lift for his shoe that the P la in tiff chose not to use. Based on Dr. Fedus' report, the URC concluded that the P la in tiff did not require footwear that was not available from the prison c o m m is s a r y. D e fe n d a n t Furey, the Health Services Administrator at MacDougall-Walker C o r r e c tio n a l Institution, is not a medical professional and does not make tr e a tm e n t decisions. He does review medical grievance appeals and denied the P la in tiff's grievance appeal. III. Discussion T h e Plaintiff asserts three claims in this action: first, that the Defendants fa ile d to comply with the terms of a settlement agreement in other cases; second, th a t the Defendants were deliberately indifferent to his serious medical need; and th ir d , that Defendant Furey denied his Fourteenth Amendment right to due process b y failing to respond to his grievance appeal and failing to handle his grievance p a p e r s properly. A. Compliance with Settlement Agreement In February 2007, the Plaintiff settled three federal cases. The settlement a g r e e m e n t provided, in part, that the "Plaintiff shall be promptly seen by medical s ta ff for evaluation for orthopedic footwear acceptable to the parties." Doc. #32,

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Pl.'s Mem., Ex. A at 3. The Plaintiff argues that the Defendants have breached the a g r e e m e n t because he was not provided orthopedic shoes. Instead, he was p r o v id e d a lift for his shoe, a resolution not acceptable to him. The Defendants a r g u e that the Plaintiff's claim is not cognizable in this action. T h e Supreme Court has held that, if the district court does not retain ju r is d ic tio n over a settlement agreement, any action to enforce provisions of a s e ttle m e n t agreement approved by the district court must be brought as a breach o f contract action in state court. See Kokkonen v. Guardian Life ins. Co., 511 U.S. 3 7 5 , 381-82 (1994). T h e settlement agreement at issue specifically provides: "This agreement te r m in a te s the jurisdiction of the court over these matters and any motion filed s u b s e q u e n t to the dismissal of these cases shall be dismissed as the court shall b e without jurisdiction." Doc. #32, Pl.'s Mem., Ex. A at 4. Because the district c o u r t did not retain jurisdiction over the settlement agreement, the Plaintiff's r e c o u r s e for breach of the agreement is a state action for breach of contract. The fe d e r a l district court lacks jurisdiction over a dispute relating to enforcement of an a g r e e m e n t, even where the agreement resulted in the dismissal of a federal la w s u it. See Kokkonen, 511 U.S. at 378. Accordingly, the Defendants' motion for s u m m a r y judgment is granted and the Plaintiff's motion for summary judgment is d e n ie d on the Plaintiff's claim to enforce the provisions of the settlement a g r e e m e n t.

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B. Official Capacity Claims T h e Defendants argue that the Eleventh Amendment bars all claims against th e m in their official capacities. The Eleventh Amendment precludes any award of m o n e ta r y damages against the Defendants in their official capacities. See K e n tu c k y v. Graham, 473 U.S. 159, 166 (1985). It does not, however, preclude c la im s for injunctive relief. See Edelman v. Jordan, 415 U.S. 651, 667-68 (1974) (E le ve n th Amendment does not bar claim for prospective injunctive relief). The Plaintiff seeks injunctive relief as well as damages. Accordingly, the E le v e n th Amendment bars only claims for damages against the Defendants in their o ffic ia l capacities. C . Deliberate Indifference to Serious Medical Need T h e Plaintiff next argues that the Defendants were deliberately indifferent to h is serious medical need because he was seen by a podiatrist rather than an o r th o p e d is t and was not given orthopedic shoes to correct his leg length d is c r e p a n c y. D e lib e r a te indifference by prison officials to a prisoner's serious medical n e e d constitutes cruel and unusual punishment in violation of the Eighth Am e n d m e n t. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on such a c la im , a plaintiff must provide evidence of sufficiently harmful acts or omissions a n d intent to either deny or unreasonably delay access to needed medical care or th e wanton infliction of unnecessary pain by prison personnel. Id. at 104-06. Because mere negligence will not support a section 1983 claim, not all

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lapses in prison medical care constitute a constitutional violation. Smith v. C a r p e n te r , 316 F.3d 178, 184 (2d Cir. 2003). In addition, inmates are not entitled to th e medical treatment of their choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d C ir . 1986). Mere disagreement with prison officials about what constitutes a p p r o p r ia te care does not state a claim cognizable under the Eighth Amendment. "So long as the treatment given is adequate, the fact that a prisoner might prefer a d iffe r e n t treatment does not give rise to an Eighth Amendment violation." Chance v . Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). The conduct complained of must " s h o c k the conscience" or constitute a "barbarous act." McCloud v. Delaney, 677 F . Supp. 230, 232 (S.D.N.Y. 1988). There are both subjective and objective components to the deliberate in d iffe r e n c e standard. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Foote v . Hathaway, 513 U.S. 1154 (1995). Objectively, the alleged deprivation must be " s u ffic ie n tly serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). The condition m u s t produce death, degeneration or extreme pain. Hathaway v. Coughlin, 99 F.3d 5 5 0 , 553 (2d Cir. 1996). Subjectively, the defendant must have been actually aware o f a substantial risk that the inmate would suffer serious harm as a result of his a c tio n s or inactions. Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006). The Second Circuit has identified several factors that are highly relevant to th e inquiry into the seriousness of a medical condition. For example, a medical c o n d itio n significantly affecting the inmate's daily activities or causing chronic a n d significant pain, or the existence of an injury a reasonable doctor would find

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important, constitutes a serious medical need. See Chance v. Armstrong, 143 F.3d 6 9 8 , 702 (2d. Cir. 1998). In addition, where the denial of treatment causes the p la in tiff to suffer a permanent loss or life-long handicap, the medical need is c o n s id e r e d serious. See Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000). Not all medical conditions satisfy the objective component of the deliberate in d iffe r e n c e standard. See, e.g., Jones v. Lewis, 874 F.2d 1125 (6th Cir. 1989) (mild c o n c u s s io n and broken jaw not serious medical needs); Sonds v. St. Barnabas H o s p . Correctional Health Servs., 151 F. Supp. 2d 308, 311 (S.D.N.Y. 2001) (cut fin g e r with skin ripped off not a serious medical need); Henderson v. Doe, No. 98 C iv . 5011, 1999 WL 378333, at *2 (S.D.N.Y. June 10, 1999) (broken finger not a s e r io u s medical need); Veloz v. New York, 35 F. Supp. 2d 305, 312 (S.D.N.Y. 1999) (fo o t condition involving a fracture fragment, bone cyst and degenerative arthritis n o t a serious medical need); Alston v. Howard, 925 F. Supp. 1034, 1040 (S.D.N.Y. 1 9 9 6 ) (claimed need for special footwear for complaint of ankle pain not a serious m e d ic a l need). T h e Plaintiff contends that his 3/8" leg length discrepancy is a serious m e d ic a l need. However, he provides no case law or medical opinion supporting th is assertion. Other courts addressing this issue have held that leg length d is p a r ity is not a serious medical need. See Turner v. Solorzano, No. 3:04-cv-632J -3 2 M M H , 2006 WL 2523410, at *3 (M.D. Fla. Aug. 30, 3006) (finding that 3/8" d is p a r ity in length of inmate's legs was not a serious medical need), aff'd, 228 Fed. Ap p x . 922, 923-24 (11th Cir. 2007); Haverty v. Crosby, No. 1:05-cv-00133-MP-EMT,

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2006 WL 839157, at *5 (N.D. Fla. Mar. 28, 2006) (finding that a 3/4 of an inch d is p a r ity in the length of the plaintiff's legs "does not rise to the level of a serious m e d ic a l need"). Moreover, even if the Court assumes, for purposes of this decision only, th a t the Plaintiff's leg length discrepancy is a serious medical need, the Plaintiff fa ils to present evidence that any of the defendants were deliberately indifferent to th a t need. The Plaintiff argues that the URC should have ordered that he be examined b y an orthopedist, not a podiatrist, and that Defendant Furey should have referred h im to an orthopedist. To the extent that this argument is based on the Plaintiff's in te r p r e ta tio n of the settlement agreement, the claim is not cognizable in this a c tio n . The Court considers only whether examination by a podiatrist constitutes d e lib e r a te indifference to the Plaintiff's serious medical needs. T h e Plaintiff assumes that the evaluation of a leg length discrepancy to d e te r m in e whether orthopedic shoes are needed must be done by an orthopedist. The Plaintiff provides no medical authority for his assumption. The Court notes th a t several websites include articles indicating that podiatrists detect and treat le g length discrepancies. See, e.g., www.podiatrytoday.com/articles/1035 (" D e te c tin g and Treating Leg Length Discrepancies," Vol. 15, Pub. Date 12/1/02) (la s t visited Dec. 15, 2009); www.podiatrytoday.com/article/2698 ("How to Evaluate fo r Leg Length Discrepancy, Vol. 17, Pub. Date 6/1/04) (last visited Dec. 15, 2009); w w w .n c b i.n lm .n ih .g o v /p u b m e d /1 5 4 5 3 6 8 (noting that examining for limb length

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discrepancy is an important part of a podiatric exam) (last visited Dec. 15, 2009). Thus, scheduling the Plaintiff to be seen by a podiatrist rather than an orthopedist d o e s not demonstrate deliberate indifference to a serious medical need. T h e Defendants have provided copies of the Plaintiff's medical records r e le v a n t to this claim. The records consistently show that the examining p o d ia tr is t determined that the Plaintiff did not require special footwear and p r e s c r ib e d him a heel lift to be used in footwear available in the commissary. See D e fs .' Local Rule 56(a) Statement, Ex. B. The Plaintiff has not provided any c o n tr a r y medical opinion. The medical records also show that the Plaintiff did not u tiliz e the lift. Although the Plaintiff alleges that following the prescribed tr e a tm e n t caused him pain, this is not reflected in the medical records. The only r e fe r e n c e to pain was when the Plaintiff was refusing to use the prescribed lift. T h e Plaintiff is not entitled to the treatment of his choice. See Chance, 143 F .3 d at 703. Thus, the mere fact that he prefers corrective footwear over using a lift does not suffice to state an Eighth Amendment claim of deliberate indifference to medical needs. See Turner v. Solorzano, 228 Fed. Appx. 922, 923-24 (11th Cir. 2 0 0 7 ) (prisoner failed to establish claim for deliberate indifference to serious m e d ic a l need where medical staff provided lift to accommodate leg length d is c r e p a n c y but refused inmate's request for special shoes). The fact that the U R C relied on the treating podiatrist's medical opinion in denying the Plaintiff's r e q u e s t for special footwear does not demonstrate deliberate indifference. T h e Plaintiff further argues that summary judgment should be entered in his

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favor on his deliberate indifference claim because Defendant Ruiz did not respond to his interrogatories. Fed. R. Civ. P. 56(f) provides that the court may order a c o n tin u a n c e or deny a motion for summary judgment if the non-moving party s h o w s by affidavit that "for specified reasons, it cannot present facts essential to ju s tify its opposition." The Plaintiff includes this statement in his memorandum in o p p o s itio n to the Defendants' motion for summary judgment and in support of his o w n cross-motion for summary judgment. See Doc. #32, Mem. at 18. However, he h a s not submitted an affidavit as required by Fed. R. Civ. P. 56(f). The Plaintiff is a w a r e of the requirement of an affidavit as he was supplied a copy of Rule 56 in th e Notice to Pro Se Litigant Opposing Motion for Summary Judgment as Required b y Local Rule of Civil Procedure 56(b). See Doc. #29. In addition, the Plaintiff fails to indicate what information that he sought fr o m defendant Ruiz would assist him in opposing the motion, that is, what in fo r m a tio n he requested from Defendant Ruiz as a non-examining physician that w o u ld demonstrate deliberate indifference to a serious medical need. Accordingly, the Plaintiff's motion for summary judgment is denied and the D e fe n d a n ts ' motion for summary judgment is granted on the Plaintiff's deliberate in d iffe r e n c e claim. D . Denial of Due Process F in a lly, the Plaintiff argues that the Defendants, in particular Defendant F u r e y, violated his right to due process by improperly handling and failing to tim e ly respond to his grievance appeal. The Plaintiff contends that he has a

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protected liberty interest because the prison directives describing the grievance p r o c e s s use mandatory language. The cases the Plaintiff cites to support his p o s itio n , however, predate the Supreme Court's ruling in Sandin v. Connor, 515 U .S . 472 (1995), in which the Supreme Court held that mandatory language alone is insufficient to create a protected liberty or property interest. P r o c e d u r a l due process ensures that the government utilizes fair p r o c e d u r e s . To state a claim for violation of procedural due process, the Plaintiff m u s t show that he had a protected liberty interest and, if he had such an interest, th a t he was deprived of that interest without being afforded due process of law. S e e Tellier v. Fields, 280 F.3d 69, 80 (2d Cir. 2000). He has a protected liberty in te r e s t only if the state created a liberty interest in a statute or regulation and the d e p r iv a tio n of that interest caused him to suffer an atypical and significant h a r d s h ip . Id. S ta te -c r e a te d inmate administrative remedy procedures do not create a p r o te c te d liberty interest. Thus, Fourteenth Amendment due process protections a r e not implicated regardless of the actions taken by the defendants in connection w ith the Plaintiff's administrative filings. See Rhodes v. Hoy, No. 9:05-CV-836, 2 0 0 7 WL 1343649, at *2 (N.D.N.Y. May 5, 2007). Several Courts of Appeals that h a v e considered this issue agree that inmates do not have a constitutionally p r o te c te d liberty interest in having prison officials comply with institutional g r ie va n c e procedures. See, e.g., Grieveson v. Anderson, 538 F.3d 763, 772 (7th C ir . 2008); Thomas v. Warner, 237 Fed. Appx. 435, 437-38 (11th Cir. 2007); Rhoades

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v. Adams, 194 Fed. Appx. 93, 95 (3d Cir. 2006); Geiger v. Jowers, 404 F.3d 371, 3 7 3 -7 4 (5th Cir. 2005) Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Buckley v . Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam). Thus, the Plaintiff has fa ile d to establish a claim for denial of due process based upon the Defendants' fa ilu r e to follow the prison's grievance procedures. Consequently, the Plaintiff's m o tio n for summary judgment is denied ju d g m e n t is granted on this claim. IV. Conclusion B a s e d upon the above reasoning, the Plaintiff's Motion for Summary J u d g m e n t [Doc. #32] is DENIED. The Defendants' Motion for Summary Judgment [D o c . #30] is GRANTED. The Clerk is directed to enter judgment in favor of the D e fe n d a n ts and to close this case.
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and the Defendants' motion for summary

IT IS SO ORDERED. /s/ Vanessa L. Bryant U n ite d States District Judge

Dated at Hartford, Connecticut: April 8, 2010.

The Plaintiff also argues that summary judgment should be granted in his fa v o r on this claim because the Defendants have not responded to discovery r e q u e s ts that would provide evidence showing that his grievance appeal was m is h a n d le d . The Court has determined that the Plaintiff has no protected interest in having grievance procedures followed. Thus, any evidence of mishandling w o u ld not alter the Court's analysis of this claim.

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