Parks v. Lantz et al
Filing
262
ORDER granting 219 Motion for Summary Judgment; denying as moot 255 Motion to Amend/Correct. Signed by Judge Victor A. Bolden on 11/4/2015. (Dearing, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID S.L. PARKS
Plaintiff,
v.
CASE NO. 3:09-cv-604 (VAB)
EDWARD A. BLANCHETTE,
JAMES E. DZURENDA, and
PETER J. MURPHY,
Defendants.
RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND MOTION TO AMEND EXHIBITS
TABLE OF CONTENTS
Page
I.
Defendants’ Motion to Correct the Exhibits ......................................................2
II.
Defendants’ Motion for Summary Judgment ....................................................5
A. Background Facts.........................................................................................6
B. Standard .......................................................................................................8
C. Mr. Parks’s Objections to Defendants’ Supporting Evidence .....................9
D. Qualified Immunity ....................................................................................15
E. Statement of Facts Regarding Deliberate Indifference Claims..................17
F. Legal Analysis of Deliberate Indifference Claims.....................................33
G. Statement of Facts Regarding Transfers ....................................................56
H. Legal Analysis of Retaliation Claims ........................................................67
I. Legal Analysis of ADA and Rehabilitation Act Claims ............................79
III.
Conclusion .......................................................................................................86
Plaintiff, David Parks, filed a complaint pro se in 2009, challenging various prison
conditions he faced while in the custody of the Connecticut Department of Correction (“DOC”).
Compl., ECF No. 1; Am. Compl., ECF No. 17. After the Court dismissed a number of claims in
an Initial Review Order under 28 U.S.C. §1915A(b), ECF No. 26, and in a Ruling on a motion to
dismiss, ECF No. 96, appointed counsel for Mr. Parks filed a Second Amended Complaint, ECF
No. 146, in which he asserts three claims against the three remaining Defendants.1 The three
Defendants are a medical doctor employed by DOC, Dr. Edward Blanchette, and two wardens of
facilities in which Mr. Parks was incarcerated from 2004 to 2010, Wardens James Dzurenda and
Peter J. Murphy.
Defendants now move for summary judgment, seeking dismissal of all three claims
against all Defendants. Defs.’ Mot. For Summ. J., ECF No. 219. In Defendants’ view, the
undisputed material facts demonstrate that they are not liable. Defs.’ Br. 2, ECF No. 219-2. Mr.
Parks, on the other hand, suggests that this is “the quintessential case” that hinges on questions of
fact and credibility, and, therefore, that summary judgment would be inappropriate on any of his
claims. Pl.’s Opp. Br. 2, ECF No. 232.
Defendants have also filed a motion to correct one of their summary judgment filings.
Defs.’ Mot. to Correct Exhibits, ECF No. 255. The motion asks the Court to accept a certificate
of authenticity for medical records accompanying their summary judgment motion, which they
inadvertently omitted from the initial filing.
For the reasons that follow, the Court DENIES AS MOOT the Motion to Correct, ECF
No. 255, and GRANTS Defendants’ Motion for Summary Judgment, ECF No. 219, in its
entirety.
1
The Court appreciates the advocacy provided by appointed counsel on Mr. Parks’s behalf throughout this case.
1
I.
Defendants’ Motion to Correct the Exhibits
Defendants’ Motion to Correct seeks to add a certificate of authenticity to some of their
summary judgment exhibits, explaining that they inadvertently left this document out when filing
their Motion for Summary Judgment. Defs.’ Mot. to Correct, ECF No. 255. Mr. Parks opposes
the motion because it is untimely. Pl.’s Opp. Br. 2-3, ECF No. 257. It is true that Defendants
provide no explanation for why they waited one full year after their summary judgment motion
was filed to correct the exhibit. However, the Court finds that the medical records which the
Motion to Correct seeks to authenticate are still admissible and will consider them in ruling on
Defendants’ Summary Judgment Motion. Accordingly, Defendants’ motion is denied as moot.
In ruling on a motion for summary judgment, a court need only consider admissible
evidence. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997); see also Fed. R. Civ. P. 56(c).
The medical records provided by Defendants are hearsay but would be admissible under the
business records exception to the general exclusion of hearsay, provided they meet the
requirements of Federal Rule of Evidence 803(6).2 Fed. R. Evid. 803(6); see cf. Hodges v.
Keane, 886 F. Supp. 352, 356 (S.D.N.Y. 1995) (noting that medical records kept by a medical
provider in a prison can be admissible as business records if they meet the requirements of Rule
803(6)) (citing Romano v. Howarth, 998 F.2d 101, 108 (2d Cir. 1993)); see also Lewis v. Velez,
149 F.R.D. 474, 484 n.5 (S.D.N.Y. 1993) (citations omitted). To be admissible as business
records, the documents must have been made near the time of the recorded event by someone
with knowledge and must have been kept in the course of regularly conducted business activity.
Fed. R. Evid. 803(6)(A)-(B). In addition, it must have been the regular practice of that business
2
Most of the statements contained within these records are also admissible under Federal Rule of Evidence 803(4),
which admits statements made for medical diagnosis or treatment or that describe medical history or symptoms.
The Court need not analyze the records separately under this rule, because it finds that they are admissible as
business records.
2
activity to make them. Fed. R. Evid. 803(6)(C). Even if the documents meet all of these
requirements, “if the source of information or the method or circumstances of preparation
indicate [a] lack of trustworthiness, such records may be excluded.” Hodges, 886 F. Supp. at
356 (citation omitted); Fed. R. Evid. 803(6)(E).
Because “[t]he principles governing admissibility of evidence do not change on a motion
for summary judgment,” Defendants must introduce their medical records “in a manner, typically
through a custodian’s affidavit, that identifies them and establishes that they are admissible under
Federal Rule of Evidence 803(6).” Ravenell v. Avis Budget Grp., Inc., No. 08-cv-2113
(SLT)(SMG), 2014 WL 1330914, at *2 (E.D.N.Y. Mar. 31, 2014) (internal quotation marks and
citations omitted). Defendants may do so either by testimony of the custodian or other qualified
witness or by certifying the records as self-authenticating in compliance with Federal Rule of
Evidence 902(11). Fed. R. Evid. 803(6)(D) (requiring that the conditions of the business records
rule be shown “by the testimony of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)…”); see also United States v. Komasa, 767
F.3d 151, 154-55 (2d Cir. 2014) (describing the relationship between Rules 803(6) and 902(11)).
In their motion, Defendants belatedly seek to do the latter under Rule 902(11). Fed. R. Evid.
902(11).
Mr. Parks argues that, without any foundation for the exhibits’ admissibility, the Court
cannot consider Defendants’ medical records. The Court disagrees. Even if the exhibits are not
properly authenticated under Rule 803(6)(D), Mr. Parks relied on Defendants’ medical records in
opposing Defendants’ summary judgment motion without objecting to their authenticity.3 See
3
Mr. Parks specifically objected in his Opposition Brief to the authenticity of one type-written portion of the
medical records, a set of notes written by Dr. Blanchette on April 4, 2006. Pl.’s Opp. Br. 18, ECF No. 232; Pl.’s
Counterstmt. ¶¶79-80, ECF No. 234; Ex 25, Clinical Record Notes dated 4/4/2006 at 0147. He does not question
the authenticity of any other aspect of the medical records.
3
e.g., Pl.’s Opp. Br. 12, 15-16, ECF No. 232 (citing Exhibit 25, which contains Defendants’
medical records); see also e.g., Pl.’s Local Rule 56(a)2 Stmt. ¶224, ECF No. 234 (same).
Because Mr. Parks relied on these exhibits, the Court will consider them. See Goris v. Breslin,
No. 04-CV-5666 (KAM)(LB), 2010 WL 376626, at *1 n.1 (E.D.N.Y. Jan. 26, 2010) (admitting
medical records that were not properly authenticated under Rule 803(6)(D), because the
opposing party relied on them without objecting to their authenticity or admissibility); Atkinson
v. Fischer, No. 9:07-CV-00368 (GLS/GHL), 2009 WL 3165544, at *3 n.1 (N.D.N.Y. Sept. 25,
2009) (Report and Recommendation adopted by the District Court) (same); Sheils v. Flynn, No.
06-CV-0407, 2009 WL 2868215, at *2 n.2 (N.D.N.Y. Sept. 2, 2009 (Report and
Recommendation adopted by the District Court) (same).
Moreover, like Defendants, Mr. Parks also provides no explanation for why his objection
to the admissibility of the medical records was not raised until nearly one year after his
opposition was filed. In his Opposition Brief to Defendants’ Motion for Summary Judgment,
Mr. Parks does make certain objections to Defendants’ exhibits, which are addressed below, but
he does not argue that all of the medical records are generally inadmissible or not authentic and
has waived those objections at this stage. See Capobianco v. City of New York, 422 F.3d 47, 55
(2d Cir. 2005) (finding that, in deciding summary judgment, a district court erred when it refused
to consider two reports because the objecting party had waived objections to admissibility by
relying on the same reports in support of their motion for summary judgment).
In addition, it is “well-established” that “even inadmissible evidence may properly be
considered on summary judgment if it may reasonably be reduced to admissible form at trial.”
Bill Salter Advert., Inc. v. City of Brewton, Ala., Civil Action No. 07-0081-WS-B, 2008 WL
183237, at *4 n.10 (S.D. Ala. Jan. 18, 2008) (rejecting objections made to the late submission of
4
a signature necessary to authenticate a summary judgment exhibit); see also Fed. R. Civ. P.
56(c)(2); Celotex Corp., v. Catrett, 477 U.S. 317, 324 (1986) 324 (1986) (“We do not mean that
the nonmoving party must produce evidence in a form that would be admissible at trial in order
to avoid summary judgment.”); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the
summary judgment stage, we do not focus on the admissibility of the evidence’s form. We
instead focus on the admissibility of its contents”), cert. denied, 541 U.S. 937 (2004).
Defendants easily could authenticate these records at trial using the same certificate they seek to
file now. Refusing to consider the Defendants’ exhibits now would strip summary judgment of
“[o]ne of its principal purposes… to isolate and dispose of factually unsupported claims or
defenses.” Celotex Corp., 477 U.S. at 323-34.
Because the Court will consider the Defendants’ medical records without a certificate of
authenticity, their request to correct them and add that certificate is DENIED AS MOOT.
II.
Defendants’ Motion for Summary Judgment
Defendants seek summary judgment on all three of Mr. Parks’s claims. First, Mr. Parks
claims that Dr. Blanchette was deliberately indifferent to his medical needs in denying him
treatment for his HIV/AIDS and Hepatitis C. Am. Compl. ¶¶ 74-76, ECF No. 146. Second, he
claims that all three Defendants retaliated against him for filing grievances and otherwise
complaining about both the lack of medical treatment he received and the frequency with which
he was moved to different cells and different facilities. Id. ¶¶ 77-82. He contends that the
retaliatory actions Defendants took against him consisted of frequent transfers, both within and
among DOC facilities, further denials of adequate medical treatment for his Hepatitis C
condition, and a prohibition on him filing grievances. Pl.’s Opp. Br. 29, ECF No. 232. Finally,
Mr. Parks claims that Defendants Dzurenda and Murphy failed to reasonably accommodate his
5
HIV/AIDS as a disability when they continued moving him from cell to cell frequently, in
violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §12131 et seq., and
the Rehabilitation Act, 29 U.S.C. §794. Id. ¶¶ 83-86. Mr. Parks makes the third claim against
Defendants Dzurenda and Murphy only and in their official capacities, while all other claims are
made against all Defendants in their individual capacities. Id. ¶¶ 6-8.
For the reasons that follow, Defendants’ Summary Judgment Motion is GRANTED in its
entirety.
A. Background Facts4
Mr. Parks was incarcerated in the federal system for “over 20 years” prior to the facts
relevant to this lawsuit. Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 42-43, ECF No. 219-1. On June 10,
2004, near the end of a federal prison sentence, Mr. Parks was transferred to the custody of the
DOC at MacDougall Walker Correctional Institution (“MWCI”), where he served the remainder
of his federal sentence. Id.; Ex. 9, Inmate Transfer History 5.5 Mr. Parks was released on
October 6, 2004 but was readmitted into DOC custody nineteen days later, on October 25, 2004,
after being arrested for robbing a bank. Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 94-95, ECF No. 2191. Mr. Parks’s claims in this lawsuit are based on events alleged to have occurred while he was
awaiting trial and serving his sentence for these charges and the resulting conviction.
Defendant James Dzurenda served as the warden at Garner Correctional Institution
(“Garner”) from April 2005 through July 2009, where Mr. Parks was incarcerated at various
times from 2006 to 2008. Ex. 7, Dzurenda Aff. ¶ 6; Ex. 9, Inmate Transfer History 4. Defendant
4
All facts in this opinion derive from a review of the pleadings, Local Rule 56(a) Statements, briefs on the Motion
for Summary Judgment and associated exhibits, and certain relevant subsequent filings made by both parties.
Unless noted otherwise, these facts are undisputed or the opposing party has not pointed to any contradictory
evidence in the record.
5
In its citations, the Court does not indicate explicitly whether exhibits were filed by the Plaintiff or Defendants,
because Plaintiff’s exhibits are lettered and Defendants’ exhibits are numbered.
6
Peter J. Murphy served as warden at MWCI from April 2007 until December 2013, where Mr.
Parks was also incarcerated at various times from 2004 to 2010. Ex. 17, Murphy Aff. ¶ 4; Ex. 9,
Inmate Transfer History 4-5.
Defendant Dr. Edward A. Blanchette treated Mr. Parks, while he was in DOC custody
and held three different roles relevant to Mr. Parks’s treatment. First, Dr. Blanchette served as
the Director of Clinical and Professional Services Division of Health Services of the DOC from
May 1995 to June 2010. Defs.’ Local Rule 56(a)1 Stmt. ¶ 7, ECF No. 219-1. In this position,
Dr. Blanchette consulted on difficult medical cases and “oversaw the policies and procedures
governing medical issues, including those related to the care and treatment of patients with
Hepatitis C and HIV-AIDS.” Id. ¶¶ 9, 12-14. He also served on the University of Connecticut
(“UConn”) Medical Center Correctional Managed Health Care Hepatitis C Utilization Review
Board (“HepCURB”), the body established to oversee the care of all inmates infected with
Hepatitis C. Id. ¶¶ 19-20. Finally, he served on the Doe v. Meachum Monitoring Panel to
oversee the care of all HIV patients incarcerated by the DOC.6 Id. ¶ 17. While working for the
DOC, Dr. Blanchette also worked for UConn as an Infectious Disease specialist and ran evening
Infectious Disease Clinics for inmates at MWCI and Bridgeport Correctional Center. Id. ¶ 15. It
was in all three of these capacities that Dr. Blanchette became familiar with Mr. Parks, as a
patient with HIV/AIDS and Hepatitis C in DOC custody.
6
Doe v. Meachum is a consent judgment setting forth requirements for the standard of medical care provided to HIV
positive inmates in DOC custody. The judgment set up an Agreement Monitoring Panel (“AMP”) of doctors to
monitor the implementation of the consent judgment. Ex. K, Consent Judgment, Doe v. Meachum (In re Conn.
Prison Overcrowding and AIDS Cases), Civil No. H88-562, slip op. at 61 (D. Conn. Nov. 2, 1990). The consent
judgment also required that the DOC institute a “tickler system” to ensure that examinations and laboratory work for
HIV patients were scheduled and provided at regular intervals. Id. at 24. It also requires that a T cell profile
(including an absolute CD4 count) “shall be repeated twice a year [ ]or more often if there is evidence of clinical
deterioration consistent with advancing HIV disease or if the inmate’s most recent T4 count was approaching a level
of which s/he would qualify… for a treatment that had not yet been offered. Once the T4 count falls below 200/mm
3, the T cell profile need not be repeated unless medically appropriate.” Id. at 13-14. Finally and most importantly,
the decree requires DOC to offer HIV-infected inmates any drug therapies that “are determined medically necessary
for him/her by the treating physician… in accordance with accepted professional standards” Id. at 28.
7
In resolving Defendants’ summary judgment motion, the Court first will address
objections Mr. Parks raises to Defendants’ evidence offered in support of their motion. It then
will address the Defendants’ qualified immunity defense, which is applicable to Mr. Parks’s
deliberate indifference and retaliation claims. As a practical matter, because they arise from two
relatively distinct sets of facts, the Court will provide a statement of facts with respect to the
deliberate indifference claims and apply the law to the facts in this case on those claims. It will
then provide a separate statement of facts with respect to the transfers, which pertain to Mr.
Parks’s retaliation and ADA and Rehabilitation Act claims and apply the law to those facts.
B. Standard
Courts must “grant summary judgment, 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). The moving party carries the burden of demonstrating that there is no genuine
material dispute of fact by citing to “particular parts of materials in the record.” Fed. R. Civ. P.
56(c)(1)(A); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000). A dispute
regarding a material fact is “‘genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party’” and material if the substantive law governing the case
identifies those facts as material. Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d 112, 116
(2d Cir. 2006) (quoting Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998)));
Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing a summary judgment motion, the Court must resolve all ambiguities,
including credibility questions, and draw all inferences from the record as a whole in favor of the
non-moving party. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010); see also
8
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Only when
reasonable minds could not differ as to the import of the evidence is summary judgment proper.”
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
C. Mr. Parks’s Objections to Defendants’ Supporting Evidence
Before addressing the merits of the Defendants’ motion, the Court must resolve certain
evidentiary disputes. Mr. Parks objects to aspects of the evidence Defendants rely on to support
their Motion for Summary Judgment. He argues that, without this evidence, Defendants have
not carried their burden, and that summary judgment “should be denied for this reason alone.”
Pl.’s Opp. Br. 43-48, ECF No. 232. Mr. Parks makes two objections: (1) that the affidavits
supporting the Defendants’ motion are improperly caveated and not based on personal
knowledge; and (2) that Dr. Blanchette’s and Dr. Lazrove’s testimony is inappropriately
presented as expert testimony in certain portions of the motion and that their affidavits
inappropriately incorporate inadmissible hearsay. For the following reasons, the Court finds that
none of these claimed deficiencies results in a denial of Defendants’ Motion for Summary
Judgment.
1. Affidavits Not Based on Personal Knowledge
Defendants’ affidavits were all sworn either “to the best of [the person’s] knowledge,
information, and belief” or “to the best of [his] knowledge and belief.” See e.g., Ex. 4,
Dieckhaus Aff., ECF No. 219-6; Ex. 1, Wu Aff., ECF No. 219-3. Mr. Parks argued in his
summary judgment opposition that these phrases did not establish that the affidavits were based
on “personal knowledge,” as required by Rule 56(c)(4). Fed. R. Civ. P. 56(c)(4). For the
reasons set forth in its May 1, 2015 Order, the Court agreed with Mr. Parks and, under Rule
9
56(e)(1), ordered Defendants’ to submit revised affidavits based on personal knowledge. Order
Regarding Defs.’ Mot. for Summ. J., ECF No. 254.
Defendants submitted these revised affidavits on June 1, 2015. Revised Affs., ECF No.
256. The submissions contain additional affidavits from each witness adopting their earlier
affidavits and attesting that the statements within them were based “entirely upon personal
knowledge.” See e.g., Lazrove Aff. ¶5, ECF No. 256-4. These additional affidavits were sworn
“to the best of my personal knowledge.” See e.g., id.
Mr. Parks argues that these revised affidavits do not suffice because the jurat of the
additional affidavit uses “non-committal” language, namely the phrase “to the best of my
knowledge.” Pl.’s Opp. To Defs.’s Mot. to Correct 1 n.1, ECF No. 257. The Court disagrees.
The affidavits themselves unequivocally state that the previous affidavits were made “entirely
upon personal knowledge.” Moreover, the jurat of the additional affidavit is sufficient to
indicate it was made based on personal knowledge for Rule 56 purposes. See Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir. 1995) (finding that a verified complaint sworn “to the best of
[plaintiff’s] knowledge,” which was construed as an affidavit in the summary judgment context,
was sufficient to raise genuine questions of material fact and withstand Defendants’ summary
judgment motion). The Court, therefore, cannot deny Defendants’ motion on this basis.
2. Objections to Affidavits Submitted by Dr. Blanchette and Dr. Lazrove
Mr. Parks also objects to portions of Dr. Blanchette and Dr. Lazrove’s affidavits in
which, he argues, the two doctors inappropriately testify as experts or rely on hearsay. He
contends that they cannot testify as experts because they were not properly disclosed and asks
that, as a result, their entire affidavits be stricken under Federal Rule of Civil Procedure 37(c)(1).
Pl.’s Opp. Br. 44, ECF No. 232; Pl.’s Local Rule 56(a)2 Stmt. ¶¶ 53, 58, 85, 100-03, 105-06,
10
330-33, 362-63, 396, 399-414, ECF No. 234. Mr. Parks asks the Court to limit the testimony of
these doctors to the “four corners” of the notes they took during their sessions with Mr. Parks.
Pl.’s Local Rule 56(a)2 Stmt. ¶ 330, ECF No. 234.
Mr. Parks also objects to portions of Dr. Blanchette and Lazrove’s affidavits that
“interpret notes from the medical record or testify as to facts and events of what occurred during
medical visits to which they were not witness.” Pl.’s Opp. Br. 47, ECF No. 232. In his view,
these portions of the affidavits are inadmissible hearsay and cannot be considered by this Court
as support for the summary judgment motion. Id. While the Court finds some of Mr. Parks’
evidentiary concerns meritorious, as further explained below, excluding these portions of the
record does not result in a denial of summary judgment.
a. Expert Testimony from Fact Witnesses
Federal Rule of Civil Procedure 37(c)(1) provides that, “[i]f a party fails to provide
information or identify a witness as required by Rules 26(a) or (e) [the former includes expert
witnesses], the party is not allowed to use that information or witness to supply evidence on a
motion… unless the failure was substantially justified or is harmless.” Unless disclosed as an
expert, treating physicians are limited to testifying about what they learned from their
“consultation, examination, and treatment of the Plaintiff, ‘not from information acquired from
outside sources.’” Barack v. Am. Honda Motor Co., Inc., 293 F.R.D. 106, 109 (D. Conn. 2013)
(emphasis in original) (citation omitted); see also Ordon v. Karpie, 223 F.R.D. 33, 36 (D. Conn.
2004) (finding that a doctor who planned to testify about “facts beyond the scope of those made
known to him in the course of the care and treatment of the patient” must submit an expert
report, per Rule 26, to provide that testimony).
11
However, the Barack case does not indicate that the treating physician cannot testify
about opinion at all, only that the opinion he or she testifies about must have been established
during his or her treatment of the patient. Barack, 293 F.R.D. at 109 (“[T]reating physicians
‘cannot be limited to solely factual testimony’ and they ‘may testify as to opinions formed during
their treatment.’”) (citation omitted). A treating physician’s testimony is also not limited
exclusively to the content of his or her notes, but rather to personal knowledge from consultation,
examination, and treatment of the plaintiff. Anderson v. Eastern CT Health Network, Inc., No.
3:12-cv-785, 2013 WL 5308269, at *2 (D. Conn. Sept. 20, 2013) (citations omitted).
Accordingly, a treating doctor’s testimony may not include any information obtained from
outside sources, nor can he opine on any medical reports or opinions received from other
doctors. Id.
Mr. Parks has provided no support for why the entire affidavits of Dr. Blanchette and Dr.
Lazrove should be struck, as he does not argue that their entire affidavits consist of inappropriate
expert testimony. Thus, the Court will analyze the specific portions of the affidavits that Mr.
Parks argues contain inappropriate expert testimony and determine whether each of these
disposes of the entire summary judgment motion.
In paragraphs 53, 58, and 85 of Defendants’ Local Rule 56(a)1 Statement, Defendants
cite to Dr. Blanchette’s Affidavit regarding the general nature and use of the drugs Klonopin,
Xanax, and Buspar. In paragraphs 400 to 414 of the same document, Defendants also cite to Dr.
Lazrove’s Affidavit as support for various conclusions about the nature of anti-social personality
disorder. Mr. Parks is correct that this testimony is inappropriate for a treating physician. These
general opinions were not obtained through the course of treating Mr. Parks. Accordingly, the
Court will not consider them.
12
In paragraphs 100 to 103 and 105 to 106 of Defendants’ Local Rule 56(a)1 Statement,
Defendants cite Dr. Blanchette’s Affidavit as support of the allegations that Mr. Parks was
prescribed Motrin as well as to make some general statements about the nature of Hepatitis C.
Only paragraphs 100 and 102 relate to Dr. Blanchette’s diagnosis and treatment of Mr. Parks,
thus the Court can consider them. Paragraphs 101, 103, 105, and 106 are inappropriate expert
testimony, because they opine on the general nature of Hepatitis C and its symptoms in an
abstract way, rather than with respect to Mr. Parks. Accordingly, the Court will not consider
these four paragraphs.
In paragraph 330 of Defendant’s Local Rule 56(a)1 Statement, Defendants cite to Dr.
Lazrove’s Affidavit to describe his approach to reviewing Mr. Parks’s records. In paragraphs
331 to 333 of the same document, Defendants cite to his affidavit to summarize what he learned
from the medical records he reviewed. In paragraph 362, Defendants cite to Dr. Lazgrove’s
Affidavit for the statement that, in his view, Mr. Parks was either malingering or dependent on
Xanax. In paragraphs 363, 396 and 399 of the same document, Defendants cite to Dr. Lazrove’s
Affidavit to explain his conclusion about Mr. Parks’s condition after his observing him. Since
all of this testimony is related to Dr. Lazrove’s treatment of Mr. Parks, including his opinion
formed while treating Mr. Parks, it is appropriate testimony for a treating physician and will be
considered in evaluating the Defendants’ summary judgment motion.
In analyzing Mr. Parks’s objection, the Court has memorialized its analysis only on the
objections he explicitly raised in his Local Rule 56(a)2 Statement. The Court, however,
appreciates that Drs. Lazrove and Blanchette are not experts and has not considered any of their
testimony that is not based on their “consultation, examination, and treatment of the Plaintiff” in
resolving the summary judgment motion. Barack, 293 F.R.D. at 109.
13
b. Hearsay
Mr. Parks also objects to portions of the Defendants’ Local Rule 56(a)1 Statement that, in
his view, rely on inadmissible hearsay by citing to either the affidavits of Drs. Blanchette or
Lazrove. Pl.’s Opp. Br. 47, ECF No. 232. “Rule 56(e) provides that affidavits in support of and
against summary judgment ‘shall set forth such facts as would be admissible in evidence.’”
Raskin, 125 F.3d at 66 (citations omitted and emphasis in original). On summary judgment, a
party may “object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). But this provision of the
rule simply means that the evidence must be capable of presentation in admissible form at the
time of trial. Fed. R. Civ. P. 56(e). It does not require that the materials be presented in an
admissible form on summary judgment. See Celotex Corp., 477 U.S. at 324; Fraser, 342 F.3d at
1036.
The only specific objection Mr. Parks raises explicitly on the basis of hearsay is to
paragraph 255 of Defendants’ Local Rule 56(a)1 Statement. In that paragraph, Defendants cite
Dr. Blanchette’s Affidavit as evidence that Mr. Parks informed Dr. Hair that he had taken his
Seroquel “just once in the past week.” This statement comes from Mr. Parks’s medical records.
Ex. 25, Clinical Record Notes dated 7/6/2006, 169 (“‘I haven[’]t taken the Seroquel but once in
the past week.’”) Even if this statement is hearsay, the Court is able to consider it because it
could be presented in admissible form at trial by presenting the medical record which contains it.
See Fed. R. Evid. 803(6).7 Accordingly, the Court will consider it.
Otherwise, Mr. Parks has not identified any particular paragraphs of the witness affidavits
that he objects to as hearsay. To the extent that the Defendants have provided affidavits from
7
As discussed in footnote 2 above, this statement is also independently admissible as a statement made for medical
diagnosis. Fed. R. Evid. 803(4),
14
witnesses that quote or summarize the contents of Mr. Parks’s medical records, the Court can
and will consider the factual statements they make because they may be presented in admissible
form at trial, namely by introducing the medical records and/or by calling the witnesses to
testify. In addition, statements made for the purpose of obtaining a medical diagnosis are
independently admissible under Federal Rule of Evidence 803(4). To the extent that there are
hearsay statements in the Defendants’ witness affidavits that cannot be presented in admissible
form at trial, the Court has not considered them.
3. Conclusion
In light of the foregoing, the Court finds that the Defendants’ Motion for Summary
Judgment is not so unsupported by admissible evidence that it must be denied outright. The
Court will consider the motion but will remain mindful that it cannot rely on inappropriate expert
testimony or evidence that cannot be presented in admissible form at trial. Fed. R. Civ. P. 56(e).
D. Qualified Immunity
Defendants argue that they are entitled to qualified immunity for the retaliation and
deliberate indifference claims8, because the rights at issue were not sufficiently clearly
established at the time the Defendants acted. Defs.’ Br. 32, ECF No. 219-2. “A government
official performing a discretionary function is entitled to qualified immunity provided his or her
‘conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991)
(citation omitted). In determining whether qualified immunity applies, the Court must engage in
a “two-part inquiry: [determining 1] whether the facts shown make out a violation of a
8
As mentioned above, this defense is limited to the retaliation and deliberate indifference claims, because qualified
immunity is only available in cases where the plaintiff sues defendants in their individual capacity. See Rodriguez v.
Phillips, 66 F.3d 470, 482 (2d Cir. 1995) (noting that qualified immunity is unavailable in an official capacity
lawsuit).
15
constitutional right and [2] whether the right at issue was clearly established at the time of the
defendant’s alleged misconduct.” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir.
2010) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).9 To be clearly established, “‘the
contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’” Id. (citation omitted). If a defendant “has an objectively
reasonable belief that his actions are lawful, he is entitled to qualified immunity.” Spavone v.
New York State Dept. of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (citation omitted).
Mr. Parks argues that an inmate’s rights to be free from retaliatory transfer, retaliatory
denial of adequate medical treatment, and retaliatory denial of access to the grievance process, as
well as from deliberate indifference to serious medical needs, were well-established at the time
the Defendants acted. Pl.’s Opp. Br. 73, ECF No. 232. The Court agrees.
While inmates do not have a liberty interest in remaining at a particular correctional
facility, it was well-established before 2006 that prison authorities could not transfer an inmate in
retaliation for the exercise of constitutionally protected rights. See Meriwether v. Coughlin, 879
F.2d 1037, 1046 (2d Cir. 1989) (noting that prison officials cannot transfer inmates “solely in
retaliation for the exercise of constitutional rights”). As more fully discussed below, filing of
grievances and lawsuits were also clearly established constitutionally protected activities at the
time. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (the “use of the prison grievance
system” is a protected activity); Espinal v. Goord, 558 F.3d 119, 128-29 (2d Cir. 2009) (filing a
lawsuit is a protected activity). It also was well-established before 2004 that deliberate
indifference to an inmate’s serious medical need or denial of adequate medical treatment was not
9
In Pearson, the Supreme Court clarified that the district court may decide in its discretion the order in which the
two prongs should be addressed. Hilton v. Wright, 673 F.2d 120, 126-27 (2d Cir. 2012).
16
constitutionally permitted. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Wright v.
Dee, 54 F. Supp.2d 199, 204 (S.D.N.Y. 1999).
Because the Court finds that the rights at issue were well-established at the time they
were allegedly violated, it also finds that the question of qualified immunity turns on whether it
was objectively reasonable for Defendants to believe that their conduct did not violate Mr.
Parks’s rights. This inquiry is the same one the Court must undertake in evaluating Defendants’
summary judgment motion. See Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) (noting,
in the deliberate indifference context, that the issue of whether there was a constitutional
violation for qualified immunity analysis is the same the court undertakes in assessing a
summary judgment motion); Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir. 2003) (noting that
the question of whether the defendant’s actions were objectively reasonable overlapped with the
“ultimate question” of whether defendant acted with a retaliatory motive) (citation omitted).
Accordingly, qualified immunity is not dispositive of any issue in this case.
E. Statement of Facts Regarding Deliberate Indifference Claims
Mr. Parks contracted the HIV virus and Hepatitis C at some point prior to 1991, when he
tested positive for both illnesses. Defs.’ Local Rule 56(a)1 Stmt. ¶ 33, ECF No. 219-1; Ex. C,
Parks Decl., ¶¶ 4, 8. The HIV virus “affects the immune status of the infected patient” and
causes “progressive loss of CD4-positive lymphocytes [ ] known as T-4 cells or T-helper cells[
].” Ex. 4, Dieckhaus Aff. ¶¶21-23. These cells are “important mediator[s] of the immune
system” and their loss leads to “progressive immune deficiencies.” Id. ¶24. Both sides agree
that, if a patient develops a T4/CD4 level of less than 200 and/or is diagnosed with certain types
of illnesses, he or she is considered to have AIDS. Id. ¶ 27; see also Ex. B, Edlin Decl. ¶¶16, 26.
Hepatitis C is a viral disease that causes “inflammation and progressive fibrosis [or scarring] of
17
the liver,” and which can result in “cirrhosis, liver failure, liver cancer, and death.” Ex. B, Edlin
Decl. ¶37; see also Ex. 1, Wu Aff. ¶8 (noting that Hepatitis C “usually results in slowly
progressive liver damage” which in about 30% of cases results in “severe scaring or cirrhosis,
and liver failure.”). Mr. Parks sought treatment for both his HIV/AIDS10 and Hepatitis C while
in DOC custody.
1. Medical Treatment for HIV/AIDS by Dr. Blanchette
Mr. Parks first met Dr. Blanchette in June 2004 at the Infectious Disease Clinic at
MWCI. Defs.’ Local Rule 56(a)1 Stmt. ¶ 31, ECF No. 219-1. At the time, Mr. Parks was on a
Highly Active Antiretroviral Therapy regimen (“HAART”) and was taking the anti-retroviral
medications (“ARVs”) Trizivir and Sustiva to treat his HIV/AIDS. Id. ¶¶ 34-35; Ex. C, Parks
Decl. ¶ 13. These medications forestall replication of the HIV virus for a sustained period of
time, if taken regularly. Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 495-501, ECF No. 219-1. Other than
during a brief period in August 2004 that is not at issue in this case, it is undisputed11 that Dr.
Blanchette continued to prescribe ARV medications for Mr. Parks after this initial meeting and
until he was discharged from DOC custody in October 2004. Defs.’ Local Rule 56(a)1 Stmt. ¶¶
62, 75, ECF No. 219-1; Pl.’s Local Rule 56(a)2 Stmt. ¶¶ 61, 71, 75, ECF No. 234; Ex. 25,
10
The parties take different positions on the nature of Mr. Parks’ HIV/AIDS illness. Mr. Parks contends that he has
AIDS, whereas Defendants characterize Mr. Parks as being HIV positive. The dispute centers on a 1990 medical
diagnosis of pneumocystis carinii pneumonia, which DOC’s medical records indicate did occur. Ex. J, Infectious
Disease Problem Report, DEF_000013. Supported by his medical expert, Dr. Brian Edlin, Mr. Parks claims that the
diagnosis of this disease, when taken in conjunction with his HIV positive status, indicated that he had AIDS during
the relevant time period. Ex. B, Dr. Edlin Decl. ¶ 26; Pl.’s Local Rule 56(a)2 Stmt. ¶ 108, ECF No. 234. At oral
argument, Defendants did not dispute that the pneumonia diagnosis occurred. Moreover, Defendants’ own expert,
Dr. Kevin Dieckhaus, opined that Mr. Parks had AIDS based on his prior history. Ex. D, Dieckhaus Dep. 82:1083:5, 100:2; Ex. 4, Dieckhaus Aff. ¶ 27 (“A CD4 level of less than 200, and/or the presence of one of several CDCdefined infections and malignancies, indicates a label of AIDS.”) (internal quotation marks omitted). Defendants
also do not cite any record evidence indicating that Mr. Parks does not have AIDS. Thus, the Court concludes that it
is an undisputed fact that Mr. Parks has AIDS and will refer to his infection as “HIV/AIDS” throughout this opinion.
11
The parties dispute whether Dr. Blanchette told Mr. Parks to only take his ARVs every twelve hours (which
resulted in him refusing them because they were administered every 8 hours) and why Dr. Blanchette refused to
prescribe Klonopin to Mr. Parks. Pl.’s Local Rule 56(a)2 Stmt. ¶¶ 32, 52-53, 61, ECF No. 234; Ex. 25, Clinical
Record Notes dated 7/12/2004, 066 (noting that Mr. Parks said he stopped his HIV medications because they
brought the medication at different times).
18
Physician’s Orders dated 9/20/04, 0079 (indicating that ARV medications were among his
“discharge” medications).12
When Mr. Parks re-entered DOC custody on October 26, 2004, Dr. Blanchette prescribed
him the same ARVs he had been taking earlier in the year. Defs.’ Local Rule 56(a)1 Stmt. ¶ 98,
ECF No. 219-1. However, on July 12, 2005, Dr. Blanchette discontinued Mr. Parks’s
prescriptions for the ARVs. Id. ¶ 137. According to Mr. Parks, Dr. Blanchette told him he
would only be stopping his medication for sixty days, with the promise of beginning treatment
for Hepatitis C after this sixty-day period. Ex. C, Parks Decl. ¶ 30. Dr. Blanchette contends he
stopped the medication for an indefinite period of time because he believed Mr. Parks did not
need it and noted in his July 12, 2005 Clinical Record notes that the patient consistently had
“excellent” T4 counts and Viral Load Assays and that he “may do very well off all ARV.”
Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 127, 129-30, 132-36, 141-42, ECF No. 219-1; Ex. J, Clinical
Record Notes dated 7/12/2005, DEF_001282. Dr. Blanchette also believed that Mr. Parks took
the pills irregularly, which Mr. Parks disputes. Id.; see e.g., Pl.’s Local Rule 56(a)(2) Stmt.
¶¶77-78, 127, ECF No. 234. Dr. Blanchette’s Clinical Record notes indicate that “after a
prolonged discussion, the [patient] did finally agree to try stopping all ARVs to see if he
maintains reasonable parameters.” Ex. J, Clinical Record Notes dated 7/12/2005, DEF_001282.
Dr. Blanchette met with Mr. Parks on December 1, 2005, January 5, 2006, and April 4,
2006 and did not reinstate his ARV medications at any of these appointments. Defs.’ Local Rule
12
According to Defendants, Dr. Blanchette stopped the ARVs in August 2004 because he was concerned that Mr.
Parks had been taking them “intermittently, thereby increasing the likelihood of creating resistance to the
medications.” Defs.’ Local Rule 56(a)1 Stmt. ¶ 76, ECF No. 219-1. Mr. Parks asserts that he stopped taking his
medication either because it was delivered in improper time intervals or because he was following the advice of his
prior physician, Dr. Gittzus. See e.g., Pl.’s Local Rule 56(a)2 Stmt. ¶ 71, ECF No. 234. Mr. Park indicates that he
began taking medication, “AZT,” for his HIV/AIDS in the 1990s and was treated by Dr. Gittzus at UConn’s “IDS”
during this time. Ex. C, Parks Decl. ¶¶ 9-10. He notes that as part of this course of treatment, Dr. Gittzus
recommended that “every six to nine months” that he stop taking his ARVs “for a short period of time (no more than
30 days)” to avoid developing a “resistance” to the medication. Id. ¶ 11.
19
56(a)1 Stmt. ¶¶ 166, 198-206, 217-18, ECF No. 219-1. During this time, Mr. Parks made
numerous complaints and requests to have his ARV medication restarted. Ex. C, Parks Decl. ¶¶
43-44, 51-52, 55-56, 61, 64-73, 76.13
Mr. Parks did not begin taking his ARVs again until April 24, 2006, when he met with a
different doctor at Garner, Dr. O’Halloran, who re-prescribed them. Defs.’ Local Rule 56(a)1
Stmt. ¶¶ 247-50, ECF No. 219-1. In re-prescribing the medication, Dr. O’Halloran’s notes
indicate that Mr. Parks’s CD4 count was at “567 [therefore] well above 350 [therefore] did not
meet criteria for RX based on current guidelines.” Ex. 25, Clinical Record Notes dated
4/24/2006, 158.14 Despite this observation, Dr. O’Halloran chose to prescribe Mr. Parks the
ARV medication. Id.
During the nearly ten-month period when Mr. Parks was not taking his ARV medication,
he suffered “increasing levels of viral replication” and a decrease in his CD4 count. Pl.’s
Counterstmt. ¶ 7, ECF No. 234. To understand this statement, the Court must briefly describe
the indicators monitored in the blood tests conducted by DOC. In monitoring Mr. Parks’s
HIV/AIDS status, the doctors at the DOC relied on three indicators. First, they relied on the T4
13
Mr. Parks filed an inmate request form on October 9, 2005 noting that he was in “PAIN” and asking for his HIV
medication. Ex. C, Ex. 1, Inmate Request Form dated 10/9/2005 at 003971. He again complained on November 12,
2005 of “PAIN,” outbreaks of thrush, and his climbing viral load. Ex. C, Ex. 3, Inmate Request Form dated
11/12/2005 at 003975-76. On November 13, 2005, in an inmate request form, Mr. Parks complained that he had not
received his HIV medication and noted a “thrush attack.” Ex. C, Ex. 2, Inmate Request Form dated 11/13/2005 at
0107. On December 6, 2005, Mr. Parks filed an inmate request form asking for HIV treatment and complaining that
he did not see Dr. Blanchette regularly or have his blood tested for HIV activity regularly. Ex. C, Ex. 4, Inmate
Request Form dated 12/6/2005 at 0116-20. Mr. Parks again requested his ARV medication in an inmate request
form on February 28, 2006. Ex. C, Ex. 5, Inmate Request Form dated 2/28/2006 at DEF_001618. Mr. Parks also
complained on March 24, 2006 that he was in pain and not on his ARV medication. Ex. C, Ex. 6, Inmate Request
Form dated 3/24/2006 at DEF_001616-17. Finally, Mr. Parks reached out to a third party regarding the lack of
treatment for his HIV/AIDS, and she wrote a letter dated March 28, 2006 to Wanda White-Lewis, Director of Field
Services at MWCI. Ex. C, Ex. 7, Letter dated 3/28/2006 at DEF_001610.
14
The experts for both sides indicate that the prevailing guidelines at the time applicable to HIV/AIDS were
published by the Department of Health and Human Services in April 2005. Ex. 4, Dieckhaus Aff. ¶ 56; see also
e.g., Ex. B, Edlin Decl. ¶17 (relying on the same guidelines). These guidelines were submitted to the Court by Mr.
Parks’s expert. Pl.’s Ex. B, Edlin Decl. and Exhibits, Department of Health and Human Services, Guidelines for the
Use of Antiretroviral Agents in HIV-1-Infected Adults and Adolescents, dated April 7, 2005.
20
Count, also known as CD4 count, which indicates how many “T-cells” or “T-helper cells” exist
in a patient’s body. Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 45, 47, ECF No. 219-1. These T-cells are
the primary targets of the HIV. Id. ¶ 46. The count indicates how many T4 or CD4 cells are
present in a microliter of blood. Id. ¶ 47. Second, the doctors looked at the CD4 percentage,
which represents the percentage of the “lymphocyte population that is” positive for T4 or CD4
cells. Id. ¶48. According to a set of HIV/AIDS Guidelines published by the Department of
Health and Human Services and submitted by Mr. Parks (the “HIV/AIDS Guidelines”), which
both sides agree are applicable, this factor is “usually the most important consideration in
decisions to initiate antiretroviral therapy.” Pl.’s Ex. B, Department of Health and Human
Services, Guidelines for the Use of Antiretroviral Agents in HIV-1-Infected Adults and
Adolescents, dated April 7, 2005 at 4 [hereinafter the “HIV/AIDS Guidelines”]; see also Ex. 4,
Dieckhaus Aff. ¶56; Ex. B, Edlin Decl. ¶17. The higher the T4/CD4 count, the stronger the
patient’s immune system. Defs.’ Local Rule 56(a)1 Stmt. ¶ 50, ECF No. 219-1. Third, the Viral
Load Assay “indicates the number of copies of RNA per milliliter of plasma” and represents the
“best indicator of the level of HIV activity in the patient’s body.” Id. ¶¶ 66-67. The higher the
Viral Load, the more severe the HIV infection. Id. ¶ 68.
The below chart lists Mr. Parks’s indications on these three metrics over time that were
discussed by the parties in their filings, none of which are undisputed.
Date of Test15
6/1/2004
T4 Count
932
CD4 Percentage
37%
Defs.’ Local Rule
56(a)1 Stmt. ¶¶ 44,
65.
15
Viral Load Assay
None because the
blood sample
submitted to run the
test was “not
sufficient.”
Unless otherwise indicated, the citation(s) in the date column is/are the source for all information in the following
rows.
21
6/15/2004
768
--
< 400 copies/ml
Defs.’ Local Rule
56(a)1 Stmt. ¶ 110;
Ex. J, Infectious
Disease Problem
Report at
DEF_000011.
10/26/2004
--
--
< 400 copies/ml
Defs.’ Local Rule
56(a)1 Stmt. ¶ 111;
Ex. J, Infectious
Disease Problem
Report at
DEF_000011.
6/14/2005
779
40.2%
100 copies/ml
Defs.’ Local Rule
56(a)1 Stmt. ¶ 125;
Ex J, Infectious
Disease Problem
Report at
DEF_000011.
7/12/2005
On July 12, 2005, Dr. Blanchette discontinued Mr. Parks’s prescriptions
for his ARVs. Defs.’ Local Rule 56(a)1 Stmt. ¶ 137.
9/5/2005
Viral Load and T-Cell Profile scheduled for this date but did not occur
until October 20, 2005. Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 139-40.
10/20/2005 (conveyed 712
24.5%
15,000 copies/ml
to Mr. Parks on
12/1/2005)
Defs.’ Local Rule
56(a)1 Stmt. ¶ 170;
Ex. J, Infectious
Disease Problem
Report at
DEF_000011.
12/5/2005
Viral Load and T-Cell Profile scheduled for this date but did not occur
until December 16, 2005. Defs.’ Local Rule 56(a)1 Stmt. ¶¶139-40.
22
12/16/2005
Defs.’ Local Rule
56(a)1 Stmt. ¶¶19596; Ex. J, Infectious
Disease Problem
Report at
DEF_000011.
February 2006
4/4/2006
Defs.’ Local Rule
56(a)1 Stmt. ¶¶22728; Ex. J, Infectious
Disease Problem
Report at
DEF_000011; Ex. 25,
Daily Report dated
4/4-5/2006 at 0148.
4/24/2006
6/12/2006
623
33.9%
22,500 copies/ml
Test for Viral Load was scheduled but did not occur until April, when
the test for CD4 had been scheduled. Defs.’ Local Rule 56(a)1 Stmt.
¶¶185-86.
567
28.7%
93,500 copies/ml
Dr. O’Halloran begins ARV treatment. Defs.’ Local Rule 56(a)1 Stmt.
¶250.
814
N/A
<400 copies/ml
Ex. J, Infectious
Disease Problem
Report at
DEF_000011.
As the chart shows, when Mr. Parks stopped taking his ARVS, his T4/CD4 Count decreased
from 779 to a low of 567. His Viral Load Assay also increased during the same period from 100
to a high of 93,500 copies per ml. When he resumed the medication, his Viral Load Assay
declined to under 400 copies per ml two months later and stayed under 50 copies per ml for the
next several months. Ex. 25, Infectious Disease Problem Report, 56. His T4/CD4 count also
rose to 814 after he resumed treatment.
During the time he was not taking his ARVs, Mr. Parks also claims that he experienced a
“significant increase” in the risk of opportunistic disease and damage to the immune system that
23
would have been prevented had he continued to receive his HIV/AIDS medications. Pl’s
Counterstmt. ¶ 7, ECF No. 234 (citing Ex. B, Dr. Edlin Decl. ¶ 32, ECF No. 233-1). Mr. Parks
also contends that the fact that he had both HIV/AIDS and Hepatitis C increased his need for
ARV treatment. Id. ¶¶ 5-6. Defendants admits that patients who have a lower CD4 count are at
a higher risk for opportunistic illness. Defs.’ Local Rule 56(a)1 Stmt. ¶484, ECF No. 219-1; Ex.
4, Dieckhaus Aff. ¶27.
Mr. Parks claims that not taking his ARVs caused him to suffer “physical ailments,
including thrush, diarrhea, and night sweats” and has presented evidence from his own
recollections and his medical records supporting this contention. Pl.’s Counterstmt. ¶ 8, ECF
No. 234; see Ex. C Parks Decl. ¶¶ 45, 51, 55, 65; Ex. J, Clinical Record notes dated 1/18/2006,
1/22/2006, 1/25/2006, DEF_1652-53 (noting Mr. Parks had diarrhea); Ex. D Dieckhaus Dep.
101:7-9, 106:9-11 (noting that Mr. Parks complained of thrush and that a nurse saw two small
white patches on December 9, 2005 which Defendants’ expert, Dr. Kevin Dieckhaus, believed
could have been thrush); Ex. 25, Clinical Record Notes dated 12/9/05, 113 (noting that Mr. Parks
was complaining of thrush and noting the observance of “2 small white patches” at 8:40 am); Ex.
B, Edlin Decl. ¶35 (noting that “Mr. Parks’s medical records document that he suffered physical
ailments, including thrush, diarrhea, and night sweats, during the time he was denied his
antiretroviral medications.”); Ex. 25, Clinical Record Notes dated 4/3/2006, 149 (noting Mr.
Parks complaining about thrush and sores).16
16
On January 5, 2006, Dr. Blanchette noted that Mr. Parks complained of thrush that day and that he failed to
observe any. Ex. 25, Clinical Record Notes dated 1/5/2006, 133. Otherwise, the Court has not found any indication
in the medical records that Dr. Blanchette examined Mr. Parks while he was complaining of physical symptoms and
did not observe those symptoms. Dr. Blanchette testified that he recalls Mr. Parks’s complaints of diarrhea and
thrush but does not recall any complaints of night sweats and elevated temperatures. Ex. E, Blanchette Dep. 92:717.
24
Finally, Mr. Parks also claims that the denial of his HIV/AIDS treatment exacerbated his
“anxiety and other health issues,” which manifested in physical symptoms “including night
sweats, diarrhea and thrush.” Pl.’s Counterstmt. ¶ 19, ECF No. 234; Ex. C, Parks Decl. ¶ 66, 77
(“I was upset that I had been experiencing these symptoms and anxious because I was not on my
HIV meds… I was extremely upset and worried that my viral loads had gotten so high.”); see
also e.g., Ex. 25, Clinical Record Notes at 102 (anxiety, fear and tension observed on 8/21/2005),
at 108 (“agitation” observed on 11/23/2005), at 133 (describing Mr. Parks’s “major focus” on
1/5/2006 was to be placed back on ARVs and noting fears about increasing T4 and Viral Load
counts).
2. Mr. Parks’s Treatment for Hepatitis C
The treatment Mr. Parks sought for his Hepatitis C was known as Interferon, which is
administered typically over a twelve-month period. Defs.’ Local Rule 56(a)1 Stmt. ¶ 232, 288,
305, ECF No. 219-1. To receive this treatment while in DOC custody, Mr. Parks needed to
obtain approval of the HepCURB, a committee consisting of three board-certified infectious
disease specialists17 who review and approve the requests of treating doctors for diagnostic work
or treatment for inmates infected with Hepatitis C. Ex. Q, UConn and DOC Hepatitis C
Management & Treatment, effective 12/10/2002 at 1 [hereinafter “Hepatitis C Guidelines”];
Defs.’ Local Rule 56(a)1 Stmt. ¶ 21, ECF No. 219-1.
DOC policy sets out the following sequence of events to guide how treatment of an
inmate with Hepatitis C should proceed. Upon testing positive for the Hepatitis C virus, an
inmate first must undergo an initial evaluation by his primary care provider, which consists of
blood and liver function tests. Ex. Q, Hepatitis C Guidelines 1-2. The policy provides that the
17
Dr. Blanchette testified that he, Dr. John Gittzus, and Dr. Fred Altice were members of the HepCURB. Ex. E,
Blanchette Dep. 13:3-8.
25
primary care provider “shall withhold any referral to the Infectious Disease Specialist (‘IDS’)
until court sessions have concluded and the offender has been sentenced” and until two complete
blood count and two liver function tests spaced at least 6 months apart “are available and
consistent with active liver disease.” Id. at 2. Once a case is referred to an IDS, he should
evaluate the individual for potential Hepatitis C treatment, conducting a series of tests to
determine the suitability of the treatment, including a mental health assessment. Id. at 2-5. A
psychiatrist must conduct the mental health assessment, if the patient is classified as a level 3 in
mental health or higher. Id. at 4. “If the results of the mental health assessment do not indicate
any increased psychological risk, the IDS may then initiate a referral” to the HepCURB to
request treatment. Id. at 4.
In deciding whether an inmate may receive treatment, the HepCURB reviews various
forms submitted with each request, including a mental health screening and any written opinions
provided by a psychiatrist. Id. at 5. It is undisputed that the treatment for Hepatitis C Plaintiff
sought, Interferon, was known to have neuropsychiatric side effects, including “depression, and,
in rare cases suicide.” Defs.’ Local Rule 56(a)1 Stmt. ¶180, ECF No. 219-1; Ex. B, Edlin Decl.
¶48. DOC policy notes that “[i]n general, the HepCURB will follow the specific
recommendations of the Center for Disease Control (CDC) and the National Institute of Health
(NIH) regarding Hepatitis C management and treatment currently in force at the time of the
offender review.” Ex. Q, Hepatitis C Guidelines 1. It also notes that “[t]he HepCURB will not
generally approve Hepatitis C therapy unless there is a reasonable likelihood that the offender
will remain under CDOC supervision for the entire duration of treatment period.” Id. at 6.
Protocol at the time prohibited a patient’s treating physician from participating in a vote
on his or her application for treatment. Defs.’ Local Rule 56(a)1 Stmt. ¶22, ECF No. 219-1. Dr.
26
Blanchette attended and participated in the discussion that occurred during all of the meetings in
which Mr. Parks’s readiness for Hepatitis C treatment was evaluated, as a sitting member of the
HepCURB at the time. See Defs.’ Local Rule 56(a)2 Stmt. ¶¶239-41, ECF No. 219-1; Pl.’s
Local Rule 56(a)2 Stmt. ¶241, ECF No. 234; see also Ex E, HepCURB Minutes dated
5/10/2006, 4/24/2007, 8/8/2007, 006143-44, 006147-51 (noting that Dr. Blanchette was present
at each of these meetings during which a vote on Mr. Parks’s readiness for treatment was taken).
But, as will be described further below, Dr. Blanchette denies violating this protocol because he
did not vote on Mr. Parks’s readiness for treatment when he was actively treating him; he only
voted on Mr. Parks’s readiness for treatment after he had stopped actively treating him. See
Defs.’ Local Rule 56(a)2 Stmt. ¶¶239-41, ECF No. 219-1; Pl.’s Local Rule 56(a)2 Stmt. ¶241,
ECF No. 234. Dr. Blanchette also testified that the HepCURB votes were “almost always”
unanimous and that he does not recall an instance where the vote was not unanimous. Ex. E,
Blanchette Dep. 198:16-199:9, 211:4-17.
Mr. Parks claims that he first discussed his need for treatment for Heptatitis C during his
initial June 2004 meeting with Dr. Blanchette. Ex. C, Parks Decl. ¶ 17. Dr. Blanchette’s
Clinical Record notes from this visit do not memorialize this request or mention Hepatitis C. Ex.
25, Clinical Record Notes dated 6/21/2004 at 0063. On November 4, 2004, while he was at
Bridgeport Correctional Center, Mr. Parks reported that he was in pain from Hepatitis C. Defs.’
Local Rule 56(a)1 Stmt. ¶99, ECF No. 219-1.18 On November 8, 2004, Mr. Parks met with Dr.
Blanchette and made a request for Hepatitis C treatment. Id. ¶¶107, 113-16. According to the
Clinical Record notes from this visit, Dr. Blanchette explained to Mr. Parks the “Department of
18
Defendants question Plaintiff’s credibility regarding the pain he complained of being related to Hepatitis C and
indicate that they believe it was related to his drug-seeking behavior. Defs.’ Local Rule 56(a)(1) Stmt. ¶¶101-106,
ECF No. 219-1; see also Ex. E, Blanchette Dep. 89:7-10 (noting that Hepatitis C is a “very asymptomatic disease”).
Given that Defendants’ Motion for Summary Judgment is before the Court, all possible inferences will be drawn in
favor of the Plaintiff. See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010)
27
Correction protocol regarding Hepatitis C evaluation and treatment,” meaning that he could not
be treated until he was sentenced. Id. ¶113; Ex. J, Clinical Record Notes dated 11/8/2004 at
DEF_001283. Dr. Blanchette’s notes from this meeting indicate that he understood that Mr.
Parks was “held on one half million dollar bond robbery 1st” and that he “probably” had “chronic
active hepatitis.” Ex. E, Blanchette Dep. 54:4-59:24; Ex. J, Clinical Record Notes dated
11/8/2004 at DEF_001283.19 During the November 8, 2004 visit, Dr. Blanchette did not begin
the process, as laid out in the DOC policy, of examining Mr. Parks to assess his suitability for
Hepatitis C treatment; his notes indicate that he “will wait to see [patient] sentenced, then will
submit to UXC for liver [biopsy].” Ex. J, Clinical Record Notes dated 11/8/2004, DEF_001283;
Ex. E Blanchette Dep. 59:5-24 (interpreting his November 8, 2004 notes).
On July 12, 2005, Dr. Blanchette reiterated that he would begin Mr. Parks on Hepatitis C
treatment as soon as he was sentenced. Defs.’ Local Rule 56(a)1 Stmt. ¶¶144-45, ECF No. 2191; Ex. 25, Clinical Record Notes dated 7/12/2005 at 0101. After Mr. Parks began serving his
sentence in September 2005, Dr. Blanchette met with Mr. Parks on December 1, 2005 and began
the process of evaluating him for Interferon treatment by having him fill out the Initial HCV
Functional Status Report and referring him for a Mental Status Evaluation. Defs.’ Local Rule
56(a)1 Stmt. ¶¶ 175, 181-84, ECF No. 219-1. Dr. Blanchette’s notes from this meeting reflect,
for the first time, concerns about the impact of Mr. Parks’s mental health on his ability to receive
treatment for Hepatitis C. Id. ¶¶176-80, 184; Ex. 25, Clinical Record Notes dated 12/1/2005 at
0111 (“I am particularly concerned about his mental status while on [ ]interferon as his bipolar
19
Mr. Parks argues that this delay in his treatment was not justified under the DOC policy, because the policy only
prohibits patients from being referred to IDS if they had not yet been sentenced and Mr. Parks was already seeing
Dr. Blanchette, an IDS. Pl.’s Local 56(a)2 Stmt. ¶¶ 115-16, ECF No. 234. Dr. Blanchette explained that the policy
prohibited the administration of Hepatitis C treatment before trial because a number of pre-trial patients “might have
problems with agitation and exacerbation of their mental health issues” which could impact their ability to defend
themselves. See Ex. E, Blanchette Dep. 57:7-25. As will be explained in footnote 20 below, because this conduct
occurred before September 2005, it is not a basis for his claim but rather factual background.
28
disorder with depression + anxiety is not always well-controlled.”). Despite the content of the
notes, Mr. Parks has denied that Dr. Blanchette mentioned any concern about mental health at
this meeting. Pl.’s Local Rule 56(a)2 Stmt. ¶172, ECF No. 234.
On January 5, 2006, Dr. Blanchette met with Mr. Parks and reiterated that “his tenuous
mental health status, esp[ecially] his volatility, may be an issue.” Ex. 25, Clinical Record Notes
dated 1/5/2006, at 133; Defs.’ Local Rule 56(a)1 Stmt. ¶¶198-99, 207-208 ECF No. 219-1; Ex.
25, Initial Evaluation of Hepatitis C Infection dated 1/5/2006, 0130-31 (noting under “significant
medical or psychological problems” that Mr. Parks had “severe antisocial personality D/O,”
“schizo-affective D/O,” and “bipolar D/O”). Consistent with this observation, the psychiatrist,
Dr. Lewis, met with Mr. Parks on February 22, 2006 and March 29, 2006 and noted that he had
“GAD, paranoia, hypomania, [and] anxiety” but observed that he was “doing well.” Defs.’
Local Rule 56(a)1 Stmt. ¶¶ 209-10, 214-216, ECF No. 219-1; Ex. 25, Clinical Record Notes
dated 2/22/2006, 138.
Dr. Blanchette met with Mr. Parks on April 4, 2006. Defs.’ Local Rule 56(a)1 Stmt.
¶217, ECF No. 219-1. The parties dispute the authenticity and, therefore, the admissibility of Dr.
Blanchette’s notes from that visit, which Dr. Blanchette claims to have typed into a
memorandum. Pl.’s Local Rule 56(a)2 Stmt. ¶219, ECF No. 234 (disputing the authenticity of
Clinical Record Notes dated April 4, 2006, available at Ex. 25 at 0147). On April 6, 2004, Dr.
Lewis’s Clinical Record notes indicate that the patient was requesting to be on Interferon but that
he was “currently not a candidate for this protocol at this time.” Ex. 25, Clinical Record Notes
dated 4/6/2014 at 0149; Defs.’ 56(a) Stmt. ¶¶232-33. Dr. Lewis notes that she was referring Mr.
Parks to mental health housing and that once “that condition is stabilized (if it is stabilized)
29
formal assessment for Interferon [ ] be conducted.” Ex. 25, Clinical Record Notes dated
4/6/2014 at 0149.
On April 10, 2006, Dr. Blanchette submitted his recommendation to the HepCURB that
Mr. Parks not receive Hepatitis C treatment, which noted that “[b]oth Dr. Blanchette & Dr.
Lewis/psychiatrist agree [patient] is extremely poor candidate for HCV Rx.” Ex. E, Treatment
Recommendation dated 4/10/2005 at 006083. Consistent with this recommendation, Dr.
Blanchette testified in his deposition that he made this decision because he believed Mr. Parks
needed to be “stabilized at Garner” before beginning the Hepatitis C treatment. Ex. E,
Blanchette Dep. 138:15-139:22. He also noted that, in making the recommendation, he relied on
the conclusion of Dr. Lewis that Mr. Parks’s psychological state indicated he was not ready for
treatment. Id. The HepCURB denied Mr. Parks Hepatitis C treatment on May 10, 2006, noting
that he had a “psychiatric contraindication” and suggesting that the patient be monitored. Ex. E
at 4-5, Treatment Recommendation dated 4/10/2005 at 006084-85; see also Ex. E at 6-7,
Minutes from HepCURB dated 5/10/2006, 006143-44 (noting with respect to Mr. Parks “[c]learcut psychiatric contraindication to treatment noted after ID & psych eval”).
Dr. Blanchette was a sitting member on the HepCURB when this initial treatment
decision was made, but he denies voting on Mr. Parks’s application on May 10, 2006 because he
was Mr. Parks’s treating physician at the time. Defs.’ Local Rule 56(a)1 Stmt. ¶240, ECF No.
219-1; see also Ex. E, Blanchette Dep. 13:9-14:7. Mr. Parks does not offer any evidence that Dr.
Blanchette voted at this particular meeting. Dr. Blanchette also testified that he was present and
participated in the discussion of Mr. Parks that took place at this meeting, even though he did not
vote. Pl.’s Local Rule 56(a)2 Stmt. ¶240, ECF No. 234; Ex. E, Blanchette Dep.196:10-20.
30
On April 24, 2006, Mr. Parks met with Dr. O’Halloran, who Mr. Parks claims indicated
at the time that he would recommend Mr. Parks for Hepatitis C treatment. Ex. C, Parks Decl.
¶¶83-86. After this meeting, Dr. O’Halloran submitted a “Non-Formulary or Restricted Drug
Request” dated June 20, 2006 asking that Mr. Parks receive Interferon treatment. Ex. J, NonFormulary or Restricted Drug Request, DEF_001543. This request was denied on June 26, 2006,
because Mr. Parks had been “[t]urned down by Hep Curb.” Id.
Dr. O’Halloran submitted a request for a liver biopsy to the HepCURB on February 27,
2007, to assess Mr. Parks’s readiness for Interferon. Ex. 25, Utilization Review Report dated
4/3/2007, 0189. In April 2007, the HepCURB met again to consider this request for treatment
and decided that “[i]n view of discrepancy between prior and current psychiatric eval, and
between current psych eval and functional status report,” Mr. Parks should receive a second
psychiatric evaluation. Id.; Ex. E, HepCURB Minutes dated 4/27/2007 at 006148. On August 3,
2007, the HepCURB noted that the panel was “still concerned about psych issues” and would
request an opinion from Dr. Berger. Ex. 25 Utilization Review Report dated 8/3/2007, 0190.
The minutes from a meeting on August 8, 2007 memorialize the same concerns. Ex. E at 9,
HepCURB Minutes dated 8/8/2007, 006151.
Dr. Berger cleared Mr. Parks for a biopsy on August 23, 2007, and his liver was biopsied
on October 17, 2007. Ex. E, HepCURB Minutes dated 8/8/2007 at 006151; Defs.’ Local Rule
56(a)1 Stmt. ¶ 287, ECF No. 219-1; Ex. 25, Consultation Form dated 10/17/2007, 194. The
HepCURB met again on November 29, 2007 and approved Mr. Parks for twelve months of
Interferon treatment on December 3, 2007. Ex. 25, Utilization Review Committee dated
11/29/2007, 0195; Ex. E, HepCURB Minutes dated 11/29/2007 at 006152-53; Defs.’ Local Rule
56(a)1 Stmt. ¶305, ECF No. 219-1. Mr. Parks began his Hepatitis C treatment on April 16,
31
2008. Defs.’ Local Rule 56(a)1 Stmt. ¶ 312, ECF No. 219-1. This treatment failed and was
discontinued on August 7, 2008. Id. ¶ 313.
At various times from October 2005 through February 2006 and into 2007, Mr. Parks’s
Clinical Record and his own testimony indicates that he experienced pain in the abdomen or
tenderness over the liver area. See Ex. J, Clinical Record Notes dated 1/27/2006, DEF_001652;
Ex. C, Parks Decl. ¶¶44, 65, 70, 97; see also Ex. B, Edlin Decl. ¶70 (noting that the medical
record reflects that Mr. Parks suffered abdominal pain consistent with suffering from Hepatitis C
during the time Interferon was not being provided to him). Dr. Blanchette was aware of these
complaints. Ex. E, Blanchette Dep. 107:1-14 (noting that he would have had access to
documents chronicling Mr. Parks’s complaints of pain).
Mr. Parks also contends that he suffered liver damage and deterioration during the time
he was denied treatment, particularly as shown by the biopsy of his liver that occurred in October
2007. See Ex. B, Edlin Decl. ¶60 (noting that based on his review of Mr. Parks’s medical
records, a biopsy in October 2007 showed “extensive fibrosis” at stage 4/5 out of 6), ¶69 (noting
that without proper treatment “[i]t is very likely that Mr. Parks’s liver continued to deteriorate
and that he continued to lose normal liver tissue.”). Defendants do not dispute the results of the
October biopsy but categorize the fibrosis as “moderate.” Defs.’ Local Rule 56(a)1 Stmt. ¶446,
ECF No. 219-1. They also do not contest that Mr. Parks was suffering some level of liver
damage and, when considering this factor alone and apart from any other health concerns, that he
was a candidate for Interferon treatment. Ex. 1, Wu Aff. ¶¶15-16; Ex. E, Blanchette Dep.
246:21-23.
Mr. Parks also claims that the delay in his treatment for Hepatitis C harmed him because
it decreased the likelihood of success for the treatment. Pl.’s Counterstmt. ¶¶ 13-15, 17, ECF
32
No. 234; see also Ex. B, Edlin Decl. ¶¶60-61, 67-69, 74. Both sides agree that the rate at which
Hepatitis C progresses is accelerated in patients co-infected with HIV/AIDS and Hepatitis C,
“increasing the risk of hepatocellular carcinoma and end-stage liver failure.” Pl.’s Counterstmt.
¶ 10, ECF No. 234; Ex. B, Edlin Decl. ¶¶38, 75; Ex. D, Dieckhaus Dep. 12:5-15 ; Ex. 1, Wu Aff.
¶7. Both sides also agree that a delay in treating Hepatitis C infections is generally ill-advised
but disagree about whether the delay negatively impacted Mr. Parks in a “measurable” way. See
Ex. 1, Wu Aff. ¶18; Ex. B, Edlin Decl. ¶¶45, 58, 60-61, 67-71.
Mr. Parks also claims that the denial of Hepatitis C treatments exacerbated his “anxiety
and other health issues.” Pl.’s Counterstmt. ¶ 19, ECF No. 234. Mr. Parks notes that his Viral
Load rose to 199,000 in December 2007 as a result of the anxiety he felt while he was not
receiving Hepatitis C treatment. Pl’s Local Rule 56(a)2 Stmt. ¶307, ECF No. 234; see also Ex J
at 5, Infectious Disease Problem Report, DEF_000011.
F. Legal Analysis of Deliberate Indifference Claims
Mr. Parks claims under 42 U.S.C. §1983 that Dr. Blanchette denied him necessary
medical treatment for HIV/AIDS from July 12, 2005 to April 24, 2006 and for Hepatitis C from
September 19, 200520 to April 16, 200821 and was, therefore, deliberately indifferent to Mr.
Parks’s medical needs. Section 1983 enables a plaintiff to bring a cause of action for “redress”
20
In his Amended Complaint, Mr. Parks claims that he was improperly denied treatment for Hepatitis C from
November 2004 to April 2008. Am. Compl. ¶¶16, 37, ECF No. 146. At oral argument on Defendants’ Summary
Judgment Motion, however, Mr. Parks’s counsel indicated that his claim was based on the denial of Hepatitis C
treatment after Mr. Parks was sentenced, and that conduct before this time was only factual background for his
claim. Mr. Parks was sentenced in June 2005 and began serving that sentence in September 2005. Ex. J, Judgment,
003587. Accordingly, the basis for Mr. Parks’s Hepatitis C claim begins on September 19, 2005, after he began
serving his sentence, and runs through April 16, 2008, when Mr. Parks received Interferon treatment.
21
Defendants argue that Dr. Blanchette stopped directly treating Mr. Parks on April 19, 2006 when Dr. O’Halloran
took over the care of the plaintiff. Defs.’ Br. 14, ECF No. 219-2. They contend, therefore, that Dr. Blanchette
cannot be liable for any treatment decisions made after that date. Id. The Court disagrees. It is undisputed that Dr.
Blanchette had supervisory roles across the entire DOC with respect to the administration of HIV/AIDS and
Hepatitis C treatment after April 19, 2006 and that he participated in the HepCURB votes about Mr. Parks after this
date as well. Thus, he was involved in the denial of treatment after April 2006, even though he was no longer Mr.
Parks’s treating physician.
33
against any person who, under color of state law “subjects, or causes to be subjected, any citizen
of the United States… to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. §1983. The Supreme Court has held that deliberate
indifference to a prisoner’s serious medical need constitutes unnecessary and wanton infliction of
pain in violation of the Eighth Amendment, as made applicable to the states by the Fourteenth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Accordingly, such claims are
actionable under section 1983.
To prevail on a deliberate indifference claim, a plaintiff must prove both objective and
subjective elements. Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006). The Court will
analyze each element with respect to HIV/AIDS and Hepatitis C in turn.
1. Objective Element
The objective, “‘medical need’ element measures the severity of the alleged deprivation”
of medical care. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citations omitted). In
assessing the objective prong, the Court must determine (a) “whether the prisoner was actually
deprived of adequate medical care,” and (b) “whether the inadequacy in medical care is
sufficiently serious” to constitute a constitutional violation. Salahuddin, 467 F.3d at 279-80.
These inquiries are highly fact-specific. See Smith, 316 F.3d at 185 (citation omitted).
On part (a) of the test, the Second Circuit has explained that
the Supreme Court has noted [that] the prison official’s duty is
only to provide reasonable care. Thus prison officials who act
reasonably [in response to an inmate-health risk] cannot be found
liable under the Cruel and Unusual Punishments Clause, and,
conversely, failing to take reasonable measures in response to a
medical condition can lead to liability.
34
Salahuddin, 467 F.3d at 279-80 (citations and internal quotation marks omitted).
Accordingly, a plaintiff must establish that he was denied reasonable care or “reasonable
measures” in response to a medical condition.
On part (b), the Court must “examine how the offending conduct is inadequate and what
harm, if any, the inadequacy has caused or will likely cause the prisoner.” Id. at 280 (citation
omitted). For an ailment to qualify as sufficiently serious, typically, the Eighth Amendment
contemplates “‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation omitted). In determining the
severity of the medical need, the Court looks a variety of factors, including but not limited to
whether the impairment is one that a reasonable doctor or patient would find important and
worthy to treat, whether the condition affects the daily activities of an individual, and whether
the condition is accompanied by chronic and substantial pain. Id. at 702-703 (citations omitted).
It may also consider “the absence [or type] of adverse medical effects or demonstrable physical
injury” as well as any unreasonable and very likely risk of future harm, even if physical harm is
not currently present. Smith, 316 F.3d at 187-88 (citations omitted); Salahuddin, 467 F.3d at
280; see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (finding the potential future health
risk caused by exposure to second hand smoke could form the basis for relief under the Eight
Amendment).
In cases where interruption of treatment is at stake (as compared to no treatment at all),
the Court must consider the harm or the risk of harm faced by a prisoner due to this temporary
deprivation, rather than the nature of the underlying condition itself. Smith, 316 F.3d at 185-86.
35
a. HIV/AIDS
Regarding HIV/AIDS, Defendants argue that since Mr. Parks only experienced an
interruption in treatment, rather than a complete absence of treatment, the Court cannot consider
the symptoms of the underlying condition HIV/AIDS in assessing the objective prong. Defs.’
Br. 28, ECF No. 219-2. They also argue that the medical deprivations Mr. Parks endured were
not “sufficiently serious” because he has not suffered “any serious or permanent injury as a
result.” Id. at 28-30. Defendants also contend that because all of Mr. Parks’s injuries pre-date
Dr. Blanchette’s medical treatment, they cannot have been caused by Dr. Blanchette. Id. at 29.
Mr. Parks argues that the Court should look at the condition as a whole, rather than the impact of
an interruption in treatment, because the ARV medication was denied for such a long period of
time. Pl.’s Opp. Br. 50-52, ECF No. 232. He argues that AIDS is a very serious ailment that
satisfies the objective prong. Id.
The Court finds that Dr. Blanchette’s decision to withhold HIV/AIDS medication for ten
months, particularly given that Mr. Parks’s blood levels were being monitored during this time,
cannot be categorized as a complete denial of treatment. Instead, it is a temporary cessation of a
particular treatment, namely the administration of prescription medication.22 Considering the
effects of a temporary cessation of ARV medication, Smith, 316 F.3d at 185-86, the Court finds
that Mr. Parks has created a genuine question of material fact as to whether the denial of ARVs
for his HIV/AIDS satisfies the objective prong.
22
It does appear that Mr. Parks’s blood work was not always taken as scheduled when he was not taking his ARVs.
However, this fact, without more, does not show that he was not being treated for his HIV but rather that he may
have been receiving irregular treatment. Such irregular treatment may substantiate a medical malpractice claim, but
not necessarily a deliberate indifference claim. See Hathaway v. Coughlin, 99 F.3d 550, 554 (2d Cir. 1996) (noting
that the inadvertent failure to provide medical care does not constitute an Eighth Amendment violation) (citation
omitted). There is also no evidence that the irregular administration of blood tests Mr. Parks experienced was the
result of Dr. Blanchette’s alleged deliberate indifference.
36
Plaintiff’s expert, Dr. Brian Edlin, has noted that the risks of episodic interruptions in
ARV medication administration include: “significantly increased” risk of “opportunistic disease
and death,” a negative impact on Mr. Parks’s mental health, and the potential to severely disable
his immune system (since he had a history of pneumocysistis carinii pneumonia). Ex. B, Edlin
Decl. and Exhibits, Ex. A, Edlin Rep. at 5-8. Accordingly, there is record evidence linking the
cessation of Mr. Parks’s ARV medication to an increased risk of future and possible current
harm. Mr. Parks also has presented evidence from his medical records and his own recollection
that he suffered from physical symptoms while he was not taking his ARV medication, such as
thrush, diarrhea, night sweats, and spikes in body temperature, indicating that his HIV/AIDS was
becoming more active.
When construing all ambiguities in Mr. Parks’s favor, this evidence is sufficient to
demonstrate the existence of a genuine issue of material fact as to whether the interruption of his
HIV/AIDS medication satisfies the objective element of a deliberate indifference claim. See
Leavitt v. Corr. Medical Servs., Inc., 645 F.3d 484, 500-501 (1st Cir. 2011) (finding that a triable
issue of fact existed on a deliberate indifference claim where a doctor did not re-initiate ARV
treatment after plaintiff’s viral load had risen to 143,000 and as a result plaintiff was “likely to be
susceptible to opportunistic infections [ ] in the future” and experienced physical symptoms from
his HIV including thrush, “nightsweats, chills fevers, fatigue… vomiting and constipation”); see
also Mastroianni v. Reilly, 602 F. Supp. 2d 425, 438 (E.D.N.Y. 2009) (denying plaintiff
prescription medications for high blood pressure, heart condition, and diabetes over a two-year
period created a question of material fact on objective prong of deliberate indifference claim).
Defendants’ argument that Mr. Parks suffered from these conditions before Dr.
Blanchette stopped his ARV medication in July 2005 does not change the Court’s conclusion.
37
This case involves symptoms of a progressive disease, which, if treated, subside rather than
disappear entirely. The fact that Mr. Parks has suffered from them at some point in his life does
not mean that removing him from ARV medication did not cause the symptoms to recur.
Accordingly, Mr. Parks has created a genuine question of material fact on the objective prong
with respect to his HIV/AIDS deliberate indifference claim.
b. Hepatitis C
Dr. Blanchette’s decision to withhold Interferon treatment for Hepatitis C from Mr. Parks
for two and a half years was not a delay in treatment but a complete denial of that treatment. Mr.
Parks was not receiving any other kind of care for his Hepatitis C, other than pain management.
As such, the Court may consider the nature of the illness itself in determining whether it is
“sufficiently serious.” Smith, 316 F.3d at 186. It is well-established that Hepatitis C is
sufficiently serious to satisfy the objective prong of the test for deliberate indifference. See
Hilton v. Wright, 928 F. Supp. 2d 530, 547-48 (N.D.N.Y. 2013) (noting that it is “wellestablished that HCV is a serious medical condition.”) (citing Hatzfield v. Eagen, No. 9:08-cv283, 2010 WL 5579883, at *10 (N.D.N.Y. Dec. 10, 2010) (collecting cases)).
Even if Dr. Blanchette’s actions are characterized as a delay in treatment, rather than a
complete denial, a reasonable fact-finder still could conclude that the consequences of that delay
were sufficiently serious to satisfy the objective prong. See Salahuddin, 467 F.3d at 281 (finding
that plaintiff made a sufficient case on the objective prong where a prison official “postpone[d]
for five months a course of treatment for an inmate’s Hepatitis C.”) Plaintiff’s expert, Dr. Edlin,
has indicated that a delay in treatment for Hepatitis C decreases its effectiveness. Other courts
have found that evidence of a delay that decreases the effectiveness of a treatment creates a
genuine question of material fact on the objective prong of the deliberate indifference inquiry,
38
even in the absence of evidence of physical injury. See e.g., Ippolito v. Goord, No. 05-CV-6683
(MAT), 2012 WL 4210125, at *11-12 (W.D.N.Y. Sept. 19, 2012) (finding that evidence of a
seven to nine year delay in receiving HCV treatment, given expert testimony that early treatment
presented a better chance or arresting the disease’s progression, was sufficient to raise a triable
question of fact on the objective prong); DiChiara v. Wright, No. 06-cv-6123 (KAM)(LB), 2011
WL 1303867, at *7-8 (E.D.N.Y. Mar. 31, 2011) (finding the same given a one-year delay in
Hepatitis C treatment and similar expert testimony). Accordingly, Mr. Parks has introduced
evidence sufficient to raise a genuine question of material fact as to whether the delay in
receiving Hepatitis C treatment was sufficiently serious.
2. Subjective Element
Because Mr. Parks has raised a genuine question of material fact on the objective prong,
with respect to both his HIV/AIDS and Hepatitis C, the Court may proceed to analyze the
subjective aspect of Mr. Parks’s deliberate indifference claim. The subjective element of the
deliberate indifference inquiry is intended to assess whether a defendant acted with a
“sufficiently culpable state of mind.” Salahuddin, 467 F.3d at 280 (citation omitted). To prevail
on this element, a plaintiff must prove that the official in question operated recklessly or that he
knew of and disregarded “an excessive risk to inmate health or safety.” Farmer v. Brennan, 511
U.S. 825, 836-37 (1994) (defining the state of mind for deliberate indifference as “lying
somewhere between the poles of negligence at one end and purpose or knowledge at the other”
and noting that it is “routinely equated… with recklessness”) (citations omitted). The defendant
“need not desire to cause such harm or be aware that such harm will surely or almost certainly
result. Rather, proof of awareness of a substantial risk of the harm suffices.” Salahuddin, 467
F.3d at 280 (citation omitted). He must also be “subjectively aware” that his conduct creates that
39
risk. Id. at 281 (citing Farmer, 511 U.S. at 837). Mere negligence or disagreement over proper
treatment does cannot sustain a deliberate indifference claim as long as the treatment provided
was adequate. Id. at 280; Chance, 143 F.3d at 703 (citation omitted). Instead, to sustain a
deliberate indifference claim, the defendant’s conduct must be “repugnant to the conscience of
mankind” or “incompatible with the evolving standards of decency that mark the progress of a
maturing society.” Estelle, 429 U.S. at 102, 105-06.
If medical judgment was consciously exercised, even if that judgment was “objectively
unreasonable,” the defendant’s conduct does not constitute deliberate indifference. See
Salahuddin, 467 F.3d at 280; see also Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir. 2000)
(noting that “mere malpractice” cannot substantiate a deliberate indifference claim and that
identifying as examples of such conduct as “a delay in treatment based on a bad diagnosis or
erroneous calculus of risks and costs, or a mistaken decision not to treat based on an erroneous
view… or that the cure is as risky or painful or bad as the malady.”) (citation omitted).
However, the Second Circuit also has recognized explicitly that some instances of
“malpractice [ ] can rise to the level of deliberate indifference.” Hathaway, 99 F.3d at 554. A
number of district courts in this Circuit have interpreted this distinction to mean that “[m]edical
decisions that are ‘contrary to accepted medical standards,’ may exhibit deliberate indifference,
because the doctor has ‘based his decision on something other than sound medical judgment.’”
Stevens v. Goord, 535 F. Supp. 2d 373, 385 (S.D.N.Y. 2008) (citation omitted). These courts
“have denied summary judgment where a reasonable jury could conclude that conduct ‘was a
substantial departure from accepted professional judgment and that the evidence of risk was
40
sufficiently obvious to infer the defendants’ actual knowledge of a substantial risk to plaintiff.’”
Id. at 385 (citation omitted).23
If a policy is used to justify the relevant decision, a defendant may not apply that policy
mechanically in contravention of sound medical advice or without some consideration of the
plaintiff’s individual circumstance. The crucial question in this circumstance is not whether the
policy is “generally justifiable” but whether “a jury could find that the application of the policy
in plaintiff’s case could have amounted to deliberate indifference to plaintiff’s medical needs.”
Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (citation omitted). In other words, the jury
must determine whether the defendants “sincerely and honestly believed that they were required
to comply” with the policy and “that applying this policy was, in plaintiff’s case, medically
justifiable.” Id.
a. HIV/AIDS
Defendants argue that Mr. Parks merely disagreed with Dr. Blanchette’s course of
treatment, and, therefore, he cannot sustain a deliberate indifference claim. Defs.’ Br. 17, 27,
ECF No. 219-2. They also argue that Dr. Blanchette’s choice to discontinue Mr. Parks’s ARVs
was well-supported by relevant medical literature and was a reasonable medical judgment,
particularly in light of Mr. Parks’s history of sporadically taking the ARVS when they were
23
The Court considers this “substantial deviation” or “contrary to accepted medical standards” test consistent with
Second Circuit jurisprudence. See Hathaway, 99 F.3d at 554; see also Chance, 143 F.3d at 703-04 (“In certain
instances, a physician may be deliberately indifferent if he or she consciously chooses ‘an easier and less
efficacious’ treatment plan.”) (citation omitted). It is also worth mentioning this standard because the parties and
their experts make arguments under it. However, this Court has not found a Second Circuit case explicitly applying
this precise standard in these terms. Indeed, the Second Circuit has refused to reverse a jury verdict for the
defendant where the district court refused to give a jury instruction that “‘evidence of a substantial departure from
accepted medical practice… may be considered in determining defendant’s state of mind’” because the instruction
failed to distinguish negligence, which could not justify a deliberate indifference action, from recklessness. RippyEl v. Makram, No. 99-0321, 2000 WL 426202, at *2-3 (2d Cir. Apr. 14, 2000). Thus, the Second Circuit has left
open the possibility that cases may exist where the substantial deviation standard helps determine whether a
defendant acted recklessly but emphasized that the ultimate inquiry in deliberate indifference cases is the
defendant’s state of mind.
41
prescribed to him. Id. at 18-21.24 In making this argument, they rely on Dr. Blanchette’s own
testimony, in which he explains the bases for his decisions, as well as the testimony of their
HIV/AIDS expert, Dr. Dieckhaus, who concludes that Dr. Blanchette’s decision was medically
justifiable and met the standard of care at the time. See Ex. 23, Blanchette Aff.; Ex. 4,
Dieckhaus Aff. ¶¶95-96. They also rely on Mr. Parks’s T4/CD4 count, which they argue never
reached the 350 count that would have justified ARV treatment. Defs.’ Br. 17, 18-21, ECF No.
219-2. Moreover, they emphasize that the treating physician who decided to reinstate Mr.
Parks’s ARV medication, Dr. O’Halloran, specifically noted that based on Mr. Parks’s T4 count,
the HIV/AIDS Guidelines did not justify treating him with ARVs. Thus, Defendants argue, this
case represents a mere difference of medical opinion that does not rise to the level of deliberate
indifference.
The Court agrees that Mr. Parks has failed to produce a genuine issue of material fact that
Dr. Blanchette knew of and disregarded an excessive risk to his health and safety in taking him
off of his ARVs. The strongest evidence Mr. Parks has produced on this question is Dr. Edlin’s
expert report, which opines that Dr. Blanchette’s decision to withhold ARV medication
constituted a substantial deviation from the prevailing standard of medical care. Ex. B, Edlin
Decl. ¶4.25 Dr. Edlin justifies his conclusion in the following two ways: first, he looks to the
HIV/AIDS Guidelines and second, he looks to Dr. Blanchette’s failure to communicate with Mr.
Parks. The Court will address these two bases for his opinion in turn.
24
It is undisputed that sporadic adherence to an ARV regimen can decrease its effectiveness by allowing the patient
to develop a resistance to the therapy. Defs.’ Local Rule 56(a)1 Stmt. ¶¶496-502, ECF No. 219-1. However, Mr.
Parks disputes, as a matter of fact, that he sporadically took the medication. See e.g., Pl.’s Local Rule 56(a)(2) Stmt.
¶¶77-78, 127, ECF No. 234. His expert, Dr. Edlin, also disputes that the medically appropriate way to handle a
patient who takes his medication irregularly is to stop administering the medication altogether. Ex. B, Edlin Decl.
¶¶17-18.
25
This question of “substantial deviation” from the standard of care is only relevant because it may show that Dr.
Blanchette based his decision on something other than sound medical judgment, indicating that he acted with
deliberate indifference. See Stevens, 535 F. Supp. 2d at 385.
42
In his report, Dr. Edlin relies on the HIV/AIDS Guidelines to identify two problems with
Dr. Blanchette’s course of treatment. First, because Mr. Parks was experiencing physical
symptoms of HIV/AIDS and had been diagnosed with an AIDS-defining illness, Dr. Edlin
opines that he should have been taking his ARVs regardless of the CD4 and Viral Load Assay
levels in his blood. Ex. B, Edlin Decl. ¶¶16, 22, 35; HIV/AIDS Guidelines 6 (“Antiretroviral
therapy is recommended for all patients with a history of an AIDS-defining illness… regardless
of CD4+ T Cell count.”). In support of this conclusion, Mr. Parks has produced evidence from
his recollections and the medical records that he suffered from physical symptoms of his
HIV/AIDS infection progressing or becoming more active, such as diarrhea. Moreover, the
Guidelines also indicate that a patient suffering the physical symptoms that Mr. Parks claims to
have experienced should have been taking ARV medication. HIV/AIDS Guidelines 6, 44 n.*
(“Antiretroviral therapy is recommended for all patients with… severe symptoms regardless of
CD4+ T Cell count” and defining “severe symptoms” as including “unexplained fever of
diarrhea >2-4 weeks, oral candidiasis, or >10% unexplained weight loss.”).26
Second, Dr. Edlin argues that Mr. Parks never should have stopped taking his ARVS,
because “no studies” at the time provided data to support this treatment decision, and the
Guidelines indicate that a patient must be in a clinical trial to justify doing so. Ex. B, Edlin Decl.
¶17-20, 35. Both sides agree that Mr. Parks was not enrolled in a clinical trial at the time. See
id.; Ex. 4, Dieckhaus Aff. ¶78.
Neither of these issues shows that Dr. Blanchette violated the Guidelines. The
Guidelines themselves indicate that they are “only a starting point for medical decision-making”
and that they “cannot substitute for sound medical judgment.” HIV/AIDS Guidelines 39. Thus,
26
Even the Defendants’ expert concedes that if a patient were suffering these physical symptoms, they should have
prompted a doctor to at least consider prescribing ARVs. Ex. D, Dieckhaus Dep. 102:15-18;
43
even assuming Dr. Edlin is correct, his testimony about the Guidelines has not shown that Dr.
Blanchette substantially deviated from the standard of care and, therefore, cannot have shown
that he acted with deliberate indifference. See Graham v. Wright, No. 01 Civ. 9613(NRB), 2004
WL 1794503, at *5 (S.D.N.Y. Aug. 10, 2004) (granting summary judgment for defendants
because the plaintiff was unable to show that defendants’ decisions “deviated from prevailing
medical standards” so “there would be no basis for a jury to find that their [actions] support a
claim of deliberate indifference.”)
Mr. Parks presents no evidence from which a reasonable juror could infer that Dr.
Blanchette knew that withholding ARV medication subjected Mr. Parks to an “excessive risk” of
harm and disregarded that risk.27 Farmer, 511 U.S. at 836-37. Given the Guidelines’ equivocal
language, the strongest inference that a reasonable juror could draw from Dr. Edlin’s opinion in
Mr. Parks’s favor is that Dr. Blanchette was negligent, not that he was deliberately indifferent.
Accordingly, Dr. Edlin’s testimony fails to create a genuine issue of material fact on Mr. Parks’s
deliberate indifference claim. See Chance, 143 F.3d at 703 (holding that accusations of
negligence, “even if it constitutes medical malpractice,” cannot alone sustain a deliberate
indifference claim) (citation omitted); Bowman v. Campbell, 850 F. Supp. 144, 147-48
(N.D.N.Y. 1994) (granting summary judgment because expert testimony that defendants
“deviated significantly from the appropriate standard of care” constituted “at most, a medical
malpractice claim” that failed to rise to the level of deliberate indifference.).
27
As discussed above, there is no factual basis for claiming that Dr. Blanchette would not prescribe ARV
medication to Mr. Parks, if he believed it was medically necessary. When Dr. Blanchette first began treating Mr.
Parks in June 2004, he kept Mr. Parks on the ARV medication that had been prescribed to him until he was
discharged from DOC custody in October 2004. When Mr. Parks returned under his care, later that same month, Dr.
Blanchette again prescribed ARV medication to him until deciding to discontinue the medication in July 2005, the
course of treatment at issue in this lawsuit.
44
Dr. Edlin also claims that, if Dr. Blanchette was concerned about Mr. Parks taking his
medication irregularly, he should have “discuss[ed] these concerns with Mr. Parks,” and that the
failure to do so was a substantial deviation from the standard of care. Ex. B, Edlin Decl. ¶15.
Assuming Dr. Edlin’s testimony on this point is not conclusory, the Court has not found any case
law – nor have the parties directed the Court to any case – to support the notion that Dr.
Blanchette’s alleged failure to discuss these concerns with Mr. Parks constitutes deliberate
indifference as a matter of law.
Outside of Dr. Edlin’s report, Mr. Parks cannot rely on Dr. O’Halloran’s decision to
restart the medication as evidence of Dr. Blanchette’s deliberate indifference or that he should
have been taking ARVs, because Dr. O’Halloran’s own notes indicate that the guidelines did not
mandate that he restart the medication. Thus, the evidence does not indicate that Dr. O’Halloran
disagreed with Dr. Blanchette’s reasoning or course of treatment. Nor can Mr. Parks rely on the
fact that he suffered physical symptoms of his HIV/AIDS becoming more active, because he has
failed to show that Dr. Blanchette knew of and disregarded these symptoms. In fact, there is
evidence in the record that Dr. Blanchette investigated Mr. Parks’s complaints about some of his
physical symptoms and considered them when evaluating Mr. Parks for treatment. See Ex. 25,
Clinical Record Notes dated 1/5/2006, 133 (noting that Mr. Parks had complained of thrush but
that Dr. Blanchette observed none).
Thus, the Court must grant summary judgment for Dr. Blanchette on Mr. Parks’
deliberate indifference claim based on the treatment of his HIV/AIDS.
b. Hepatitis C
Mr. Parks claims that Dr. Blanchette was deliberately indifferent to his serious medical
need in denying him Interferon treatment for his Hepatitis C from September 19, 2005 to April
45
18, 2008. This time period can be sub-divided into two separate intervals for which the legal
analysis is different. From September 19, 2005 to December 3, 2007, Mr. Parks was awaiting
approval by the HepCURB for his treatment. From December 3, 2007 to April 2008, Mr. Parks
was approved for treatment and was waiting to receive it. The Court finds that Mr. Parks has
failed to show a genuine issue of material fact with respect to the subjective prong during either
time period.
i. September 19, 2005 to December 3, 2007
Regarding this first time period of roughly two years, Mr. Parks first argues that he has
shown that a genuine issue of material fact exists because he “did not have mental issues” and
complied with the Hepatitis C regimen when he finally received it. Pl.’s Opp. Br. 64, ECF No.
232. He contends the concerns about his mental health that Defendants claim prevented him
from receiving treatment earlier were “a post hoc rationalization,” which Dr. Blanchette created
in April 2006 when he realized that Mr. Parks was contacting human rights organizations with
concerns about his treatment. Id. at 63.
Based on the record before it, the Court finds that no fact-finder could reasonably agree
with this view. Dr. Blanchette’s Clinical Record notes from December 1, 2005 explicitly refer to
concerns about Mr. Parks’s mental health condition. There is no evidence, other than Mr.
Parks’s own conjecture, that these notes were created after April 2006, when Mr. Parks claims
Dr. Blanchette developed a motive or realized a need to justify his treatment of Mr. Parks. See
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (noting that a party opposing a motion for
summary judgment “may not rely on mere speculation or conjecture as to the true nature of the
facts to overcome a motion for summary judgment.”). The fact that Dr. Blanchette did not
convey these concerns to Mr. Parks on December 1, 2005, as Mr. Parks testifies, does not mean
46
that he did not have these concerns at the time. Ex. C, Parks Decl. ¶60. Moreover, Mr. Parks
admits that, on January 5, 2006, Dr. Blanchette reiterated his mental health concerns in his notes.
Pl.’s Local Rule 56(a)2 Stmt. ¶¶198-99, 207-208. Nor does Mr. Parks dispute that Dr. Lewis
met with him in February and March 2006 and observed that he had mental health conditions.
Id. ¶¶209-210, 214-16.
There also is ample record evidence indicating that Mr. Parks suffered from some kind of
mental health condition and that health care professionals, other than Dr. Blanchette, believed
this to be the case in late 2005 through 2006. See e.g., Ex. 25, Clinical Record Notes labeled
psychiatry dated 11/23/2005, 0108 (noting patient’s paranoia and agitation); Ex. 25, Clinical
Record Notes dated 2/22/2006, 0138 (“GAD, paranoia, hypomania, anxiety, doing well”); Ex.
25, Clinical Record Notes dated 3/29/2006, 0146 (“bipolar D/O… hypomania, paranoia”); Ex.
25, Initial Psychiatric Evaluation dated 4/22/2006, 0156 (noting diagnoses of “[illegible] Bipolar
D/O” and “Personality D/O”); Ex. 25, Mental Status Evaluation dated 7/6/2006 and 7/12/2006,
0167 (noting diagnoses of “Psychosis,” “Bipolar,” “personality [ ] + antisocial + paranoid
traits”); Ex. 25, Mental Health Services Individual Treatment Plan dated 10/24/2006, 0174
(noting diagnoses of “BiPolar Dis, Anxiety Dis, Personality Disorder.”) In addition, Dr. Lazrove
diagnosed him with severe/extreme anti-social personality disorder while he was treating him at
Garner in the Fall of 2007. Ex. 20, Lazrove Aff. ¶¶3,4, 41. Mr. Parks emphasizes portions of the
record that indicate that he was doing well, see e.g., Edlin Decl. ¶56, but the fact that he was
doing well does not mean he did not have any mental health conditions at the time.
Record evidence indicates that Mr. Parks’s mental health conditions caused Dr.
Blanchette’s and the HepCURB’s decision not to administer Hepatitis C medication. On April
6, 2006, a psychiatrist explicitly indicated that Mr. Parks’s mental state precluded him from
47
receiving Interferon treatment. Ex. 25, Clinical Record Notes dated 4/6/2006, 0149 (“requesting
to be on Inteferon [sic]… currently not a candidate for this protocol @ this time. He is noncompliant with meds and is [illegible], verbally assaultive, and paranoid…. Exhibits severe
personality pathology as well as serious mental illness/BAD v. schizoaff… This pt is noncompliant, aggressive, and exhibits signs of a psychotic D/O.”). The HepCURB itself also
periodically analyzed Mr. Parks’s readiness for the Hepatitis C treatment and expressed the same
concerns about Mr. Parks’s mental health condition. Ex. 25, Utilization Review Reports dated
4/3/2007, 8/8/2007, 0189-91; Ex. E, Treatment Recommendation dated 4/10/2005 at 006083; Ex
E, HepCURB Minutes dated 5/10/2006, 4/24/2007, 8/8/2007, 006143-44, 006147-51. There is
no evidence other than Mr. Parks’s own speculation that the decision to withhold the treatment
was not related to concerns about his mental health conditions.
Mr. Parks argues that Dr. Blanchette improperly influenced the other two members of the
HepCURB to consistently vote against Mr. Parks’s requests for treatment. Pl.’s Opp. Br. 62,
ECF No. 232; Pl.’s Local Rule 56(a)2 Stmt. ¶¶240-41, 282, ECF No. 234; Pl.’s Counterstmt.
¶¶116-17, 124-27, ECF No. 234. In making this argument, he relies on Dr. Blanchette’s
testimony that the HepCURB’s decisions were typically unanimous and that Dr. Blanchette
participated in the discussion of Mr. Parks and shared information about his experiences with
him. Ex. E, Blanchette Dep. 14:8-13, 198:16-22, 211:4-212:20. This testimony does not
indicate that the HepCURB votes were unanimous for improper reasons, unrelated to medical
judgment. Nor does it suggest that Dr. Blanchette was providing an improper opinion or
conveying anything other than his medical judgment. Indeed, Dr. Blanchette testified that he
provided information about Mr. Parks’s mental health condition that he believed was relevant to
48
determine whether he was fit to receive Interferon treatment. Ex. E, Blanchette Dep. 239:22241:18.
Mr. Parks also argues that, even if he had some mental conditions that formed the basis
for the decisions to deny him Hepatitis C treatment, they were not the types of conditions that
should have precluded him from receiving Interferon treatment. See e.g., Ex. B, Edlin Decl.
¶¶49-51 (“personality disorders are not a contraindication to hepatitis C treatment”). Mr. Parks
does not contest that Interferon could negatively impact a patient’s mental health. Pl.’s Local
Rule 56(a)2 Stmt. ¶423, ECF No. 234 (admitting that Interferon is known to have
“neuropsychiatric side effects”) (citing Ex. B, Edlin Decl. ¶48). Accordingly, he does not argue
that mental health is generally an inappropriate consideration in evaluating a patient’s fitness for
Interferon treatment. Instead, he claims that he was not suicidal or depressed, which are, in his
view, the only mental health conditions that could justify withholding Interferon treatment. Pl.’s
Opp. Br. 64, ECF No. 232; Ex. B, Edlin Decl. ¶52. Mr. Parks’s expert, Dr. Edlin, opines that the
decision to allow the other mental health conditions to prevent him from receiving treatment was
a significant deviation “from accepted medical standards of care.” Id. ¶¶47, 59. He cites to no
external source to support this conclusion.
Conversely, Defendants’ expert, Dr. George Wu, opines that the delay in the
administration of Interferon in Mr. Parks’s case was consistent with the standard of care. Ex. 1,
Wu Aff. ¶17. He indicates that the consideration of Mr. Parks’s mental illnesses, including
psychiatric conditions outside of depression such as “manic behavior, aggressiveness, and noncompliance with medications [ ], and the administration of psychiatric medications,” triggered an
appropriate amount of caution and justified waiting to administer the Hepatitis C treatment. Id.
¶¶14, 16-17, 19. Consistent with his broader view, DOC’s Hepatitis C Guidelines indicate that
49
treatment may proceed if the results of the mental health assessment do not indicate “any
increased psychological risk.” Ex. Q, Hepatitis C Guidelines at 4. Moreover, the notes from the
psychiatrist who recommended Mr. Parks not receive the treatment because of his mental health
status as well as the HepCURB’s reasoning indicates a focus on Mr. Parks’s mental condition
generally, not exclusively on depression or suicidal ideation.
In essence, the remaining question presented here is whether Dr. Blanchette acted with
deliberate indifference by substantially deviating from accepted medical practice in withholding
Hepatitis C treatment based on mental health conditions other than depression or suicidal
ideation. Mr. Parks has failed to show in a non-conclusory way that a genuine question of
material fact exists on this inquiry. His expert, Dr. Edlin, cites to no external source to justify his
opinion that depression or suicidal ideations are the only mental health reasons Hepatitis C
treatment may be delayed. His conclusory testimony fails to create a genuine question of
material fact sufficient to defeat a summary judgment motion and is the type of conclusion that
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1992), renders inadmissible. See
In re Agent Orange Prod. Liab. Litig., 818 F.2d 187, 193 (2d Cir. 1987) (“mere speculation or
idiosyncratic opinion, even if that opinion is held by one who qualifies as an expert” cannot
establish a genuine issue of material fact on summary judgment); Kelsey v. City of N.Y., No. 03
CV 5978(JFB)(KAM), 2007 WL 1352550, at *5 (E.D.N.Y. May 7, 2007) (“Conclusory
affidavits, even from expert witnesses, do not provide a basis upon which to grant or deny
motions for summary judgment.”) (internal quotation marks and citation omitted); Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311-12 (2d Cir. 2008) (affirming a district
court’s finding that an expert who conclusorily disagreed with another failed to create a genuine
question of material fact sufficient to defeat a summary judgment motion); see also Simmons v.
50
United States, 88 F. App’x 435, 437-38 (2d Cir. 2004) (expert’s conclusory statement that
physician’s actions fell below the standard of care was “rightly regarded by the district court as
insufficient to raise a genuine issue of material fact”).
Even accepting Dr. Edlin’s position as true, as a matter of medicine and admissible under
Daubert, there is no evidence in the record that Dr. Blanchette was subjectively aware of this
alleged mistake other than Mr. Parks’s own speculation. The record supports the contrary
assertion, that Dr. Blanchette was evaluating Mr. Parks carefully for Interferon treatment and
making judgments about his health and fitness for that treatment.
Because Dr. Blanchette exercised his medical judgment in deciding to delay the
administration of Interferon and that judgment was not entirely arbitrary, the Court finds that no
reasonable fact-finder could conclude that Dr. Blanchette acted with deliberate indifference. See
Victor v. Millcevic, 361 F. App’x 212, 215 (2d Cir. 2010) (finding that a ten-month delay in
administering a liver biopsy did not constitute deliberate indifference because one of plaintiff’s
doctors believed that he did not meet the Department of Correctional Services criteria for the
procedure); Pabon v. Wright, No. 99 Civ.2196(WHP), 2004 WL 628784, at *6-8 (S.D.N.Y. Mar.
29, 2004) (finding that summary judgment was appropriate on plaintiff’s deliberate indifference
claim because the requirement for regular liver biopsies to continue Interferon treatment for
Hepatitis C was a “medical judgment” “made to ensure that Interferon treatment was appropriate
for plaintiff[ ].”).
“Many courts in this circuit have held that determinations as to whether to treat HepatitisC with Interferon, pursuant to [Department of Correctional Services] Guidelines, reflect medical
judgments, not ‘deliberate indifference’ under the Eighth Amendment.” Watson v. Wright, No.
9:08-CV-62 (NAM/ATB), 2011 WL 4527789, at *10 (N.D.N.Y. Aug. 4, 2011) (collecting cases)
51
(granting summary judgment for the defendant on a deliberate indifference claim based on a
denial of Hepatitis C treatment for two weeks) (Report and Recommendation adopted by the
District Court 2011 WL 4528931 (N.D.N.Y. Sept. 28, 2011)). Mr. Parks’s case is no different.
This case does not involve a mechanical application of aspects of the guidelines “that are less
clearly correlated with treatment success.” Id. (citations omitted); see also cf. Johnson, 412 F.3d
at 404 (finding that a mechanical application of a Hepatitis C guideline created a genuine
question of material fact as to whether defendant acted with deliberate indifference). Instead,
this case involves a reasoned medical judgment by Dr. Blanchette, supported by the DOC
guidelines, that the benefit of Interferon treatment did not outweigh the risk of exacerbating his
mental health conditions.
The fact that Dr. O’Halloran and Dr. Edlin disagree with Dr. Blanchette’s course of
treatment does not mean he was deliberately indifferent, because Dr. Blanchette’s decision was
based on a condition that the record shows existed, and there is no evidence that it was an
arbitrary judgment. “[T]he law is clear that a difference of opinion… even among medical
professionals themselves, as to the appropriate course of medical treatment does not in and of
itself amount to deliberate indifference.” Williams v. M.C.C. Inst., 97 CIV. 5352, 1999 WL
179604, at *7 (S.D.N.Y. Mar. 31, 1999) (citations omitted).
Moreover, this case is distinguishable from Johnson, where the Second Circuit reversed a
grant of summary judgment on a deliberate indifference claim based on (1) the fact that every
single one of plaintiff’s treating physicians indicated that he should receive the treatment, (2) that
there was conflicting evidence about whether the decision to not provide the treatment was
medically justifiable, and (3) there was no evidence suggesting that the defendants took any steps
to verify whether not treating him was medically appropriate. 412 F.3d at 404. Here, there may
52
have been some disagreement among treating physicians, namely between Dr. O’Halloran and
Dr. Blanchette, but there is little evidence on the record as to why this disagreement existed. The
parties also agree that a patient’s mental health status generally is relevant to prescribing
Interferon, because the medication can exacerbate certain mental illnesses or conditions. Dr.
Blanchette took steps to verify whether treatment was medically appropriate by relying on
evaluations performed by a psychiatrist.
Finally, Mr. Parks argues that in delaying the administration of Interferon, Dr. Blanchette
acted with an inappropriate financial incentive because it is an expensive treatment. Pl.’s Opp.
Br. 7, 64, ECF No. 232. Although the Hepatitis C medications are certainly costly, see Ex. P,
Prescription and Treatment Costs for Mr. Parks, 3, there is absolutely no evidence in the record
that Dr. Blanchette considered the cost in specifically in evaluating Mr. Parks other than Mr.
Parks’s own speculation. See cf. Leavitt, 645 F.3d at 498 (finding that a genuine question of
material fact existed with respect to whether a defendant was deliberately indifferent in not
prescribing medication for HIV/AIDS where there was evidence that defendant “had a financial
interest” in not prescribing the drug).
Mr. Parks does show that a non-voting member of the HepCURB was aware of the cost
of Interferon generally, but there is evidence that the HepCURB did not directly consider cost in
making its decisions. Ex. E, Blanchette Dep. 236:10-237:18 (“I do know that [Dr. Buchanan]
was concerned about the high cost of hepatitis C therapy and having the budget reflect the
ongoing and escalating costs… But the URB itself didn’t have any role in that.”), 248:16-23,
221:19-21 (indicating that Dr. Buchanan did not vote on HepCURB decisions). In Leavitt, the
First Circuit relied on direct evidence that the treating physician’s assisstant was motivated by
financial concerns. He “purportedly said to Leavitt that he would not provide him with HIV
53
medications because they are too costly” and had a “financial stake in keeping treatment and
referral costs low” as the president and largest shareholder of a medical contractor that provided
healthcare services to the prisoners where Leavitt was housed. Leavitt, 645 F.3d at 498-99. Mr.
Parks has failed to provide any similar evidence in this case that Dr. Blanchette considered cost
at all when making a determination about Mr. Parks’s readiness for Interferon.
ii. December 3, 2007 to April 2008
With respect to the second time period, after Mr. Parks was approved and waiting for the
treatment, Mr. Parks has failed to show how the delay was caused by deliberate indifference.
“[A] delay in treatment does not violate the constitution unless it involves an act or failure to act
that evinces ‘a conscious disregard of a substantial risk of serious harm.’” Thomas v. Nassau
Cnty. Corr. Ctr., 288 F.Supp. 2d 333, 339 (E.D.N.Y. 2003) (quoting Chance, 143 F.3d at 703).
Based on the current record, the Court does not know why this delay occurred. Mr. Parks has
provided no evidence, other than his own conjecture, that the delay of treatment during this
period was the result of conscious disregard by anyone at DOC. Moreover, the delay between
the approval and the administration of treatment was roughly four months, which may indicate
negligence but not deliberate indifference without more evidence about the Defendant’s state of
mind.
Mr. Parks also has failed to show that Dr. Blanchette was involved with the delay in
treatment during this time period. “It is a well-established principle that ‘personal involvement
of defendants in alleged constitutional deprivations is a prerequisite to an award of damages
under [section] 1983.’” Pelletier v. Armstrong, Civ. No. 3:99cv1559(HBF), 2007 WL 685181, at
*6 (D. Conn. Mar. 2, 2007) (citation omitted and alteration in original); see also Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1996) (citations omitted); Murphy v. State of Conn. Dep’t. of Public
54
Health, 3:04CV976RNC, 2006 WL 908435, at *2 (D. Conn. Mar. 30, 2006) (“A suit for
deliberate indifference to a serious medical need cannot be maintained against a defendant who
has no role in the provision of medical care.”) (citation omitted).
Personal involvement of a supervisory official may be shown by evidence that “(1) the
defendant participated directly in the alleged constitutional violation, (2) the defendant, after
being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional practices occurred, or allowed
the continuance of such a policy or custom, (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifferent to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).28
The parties agree that, after December 3, 2007, Dr. Blanchette was not seeing Mr. Parks
as a patient, and the role of the HepCURB in the process was complete. There also is no
evidence that he was aware that Mr. Parks was not receiving the treatment that was approved by
HepCURB. Without more evidence of personal involvement, the Court must dismiss this aspect
of the claim. See Pelletier, 2007 WL 685181, at *8 (finding that a plaintiff could not establish
the personal involvement of a director of the UConn program from which he was receiving
treatment in a deliberate indifference claim because he had no personal contact with the plaintiff
and was not involved with his care or treatment); Ozuno v. Vadlamudi, Civil No. 9:03-CV28
The Court is not aware of any ruling from the Second Circuit clarifying the impact of Ashcroft v. Iqbal, 556 U.S.
662 (2009), on the Colon factors. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (noting that
Iqbal “may have heightened the requirements for showing a supervisor’s personal involvement with respect to
certain constitutional violations” but declining to specifically address the issue); Johnson v. White, No. 9:14-cv00715 (MAD)(DJS), 2015 WL 6449126, at *4 n.2 (N.D.N.Y. Oct. 23, 2015) (noting that the Second Circuit has yet
to decide the impact of Iqbal on Colon); see also Koehl v. Bernstein, No. 10 Civ. 3808(SHS)(GWG), 2011 WL
2436817, at *9 (S.D.N.Y. June 17, 2011) (noting that in Iqbal, the Supreme Court “explicitly rejected the argument
that, ‘a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s
violating the Constitution.’”) (quoting Iqbal, 556 U.S. at 677). Accordingly, the Court will apply the five factors as
they were described in Colon.
55
00475(GLS/DEP), 2005 WL 1977618, at *9 (N.D.N.Y. July 11, 2006) (granting summary
judgment on a deliberate indifference claim in favor of the associate commissioner of health
services because there was no evidence that he was aware of, much less involved in, the
plaintiff’s treatment).
3. Conclusion
Accordingly, for all of the foregoing reasons, summary judgment is hereby GRANTED
on both of Mr. Parks’s deliberate indifference claims.
G. Statement of Facts Regarding Transfers
As mentioned above, Mr. Parks also makes retaliation claims and claims under the ADA
and Rehabilitation Act, both of which involve Mr. Parks’s transfer to different cells and different
facilities in the DOC system. The Court will provide a brief summary of the relevant facts and
then apply the law of each claim to those facts.
1.
Inter-Facility Transfers
Mr. Parks was transferred to different facilities within the DOC system twelve times
while he was in DOC custody from October 2004 to November 2010. He claims that
Defendants29 caused eight of these transfers, all between MWCI and Garner, to retaliate against
him for filing grievances, threatening to sue, and generally complaining about the quality of his
medical care.30 Pl.’s Opp. Br. 28-29, ECF No. 232. In particular, Mr. Parks believes that Dr.
Blanchette continually transferred him from MWCI to Garner under the pretext of receiving
29
Mr. Parks alleges in his Complaint that John Sieminski was warden of MWCI from 2004 to 2007 and was,
therefore, responsible for some of these earlier transfers. Am. Compl. ¶9, ECF No. 146. Because the claims based
on those transfers were dismissed, Mr. Sieminski is not currently a party to this lawsuit but under Mr. Parks’s
theory, he was responsible for the transfers during his tenure as warden.
30
Defendants’ Local Rule 56(a)1 Statement discusses more than just these eight transfers. Mr. Parks was
transferred to Corrigan for treatment June 2007 and was transferred to Osborn in 2010. Defs.’ Local Rule 56(a)1
Stmt. ¶¶598-604, 615-20, ECF No. 219-1. He was transferred back to Garner after his stay at Corrigan and back to
MWCI after his stay at Osborn. Id. Since Mr. Parks does not put these other transfers at issue in his Complaint or
his Opposition Brief to Defendants’ Summary Judgment Motion, the Court will not consider them.
56
mental health treatment, and that, repeatedly, the doctors at Garner found that he did not require
such treatment and transferred him back to MWCI. Id. at 31-32. It is undisputed that Garner
provides housing for inmates with significant mental health issues that require specialized mental
health care as well as general population housing for inmates at security level 4. Defs.’ Local
Rule 56(a)1 Stmt. ¶¶ 326-27, 573, ECF No. 219-1; Ex. 7, Dzurenda Aff. ¶¶ 6, 17. MWCl does
not have this specialized mental health housing and only offers general population housing at
security levels 4 and 5. See Ex. 17, Murphy Affidavit ¶¶ 14-16.
Defendants argue that they have provided a non-retaliatory reason that all of the transfers
occurred. Defs.’ Br. 8-10, ECF No. 219-2. They also have produced evidence that the Director
of Offender Classification and Population Management, and none of the three Defendants, was
responsible for authorizing all inter-facility inmate transfers. Ex. 8, Administrative Directive
9.1(4) (“The Director of Inmate Classification and Population Management shall be responsible [
] for all inmate transfers and placement.”). According to Administrative Directive 9.1, the
Director “shall be authorized to transfer an inmate for medical purposes at the request of medical
personnel.” Id. at 7(D). This subsection also provides that “[u]pon resolution of the medical
concern, the inmate shall be returned to the sending facility as soon as possible unless
reclassification or reassignment is warranted.” Id.
More specifically, the parties take the positions described below with respect to each
disputed transfer.
a. April 19, 2006 Transfer From MWCI to Garner
Defendants argue that Mr. Parks was transferred on April 19, 2006 to receive mental
health treatment available only at Garner. Defs.’ Local Rule 56(a)1 Stmt. ¶231-32, 244, ECF
No. 219-1. In support of this theory, Mr. Parks’s Inmate Transfer History indicates that this
57
transfer occurred because “facility unable to meet MH nee[d].” Ex. 26, Display Inmate Transfer
History, 005386. In addition, Psychiatrist Dr. Lewis noted that she referred Mr. Parks at this
time to level 4 mental health housing. Ex. 25, Inter-Agency Patient Referral Report dated
4/5/2006, 0150; Ex. 19, Clinical Record Notes dated 4/6/2006, 1 (Dr. Lewis notes that Mr. Parks
required mental health housing). As of October 3, 2005, the last date Mr. Parks’s mental health
status was adjusted before he was transferred, he was at a level 4. Ex. 19, Needs History, 12.
Mr. Parks argues that he was transferred on this date because he had filed numerous
grievances about his health care in the preceding months. See Ex. C, Parks Decl. ¶103; Defs.’
Local Rule 56(a)1 Stmt. ¶¶ 73, 79, ECF No. 219-1; see also e.g., Ex. 25, Inmate Request Form
dated 12/6/05, 116; Ex. 25, Inmate Request Form dated 2/28/06, 139; Ex. C, Ex. 6, Inmate
Request Form dated 3/24/2006, DEF_001616. He indicates that Dr. Blanchette was angry with
him and, on April 4, 2006, Dr. Blanchette orally threatened to send him to Garner as a result.
Pl.’s Local Rule 56(a)2 Stmt. ¶244, ECF No. 234; Ex. C., Parks Decl. ¶¶ 51-75. Mr. Parks does
not contest the contents of the Inter-Agency Patient Referral Report or the Clinical Record Notes
cited by Defendants. Pl.’s Local Rule 56(a)2 Stmt. ¶231-32, ECF No. 234. But he argues that
Dr. Blanchette’s own testimony indicates that he “played a major role” in having Mr. Parks
transferred to Garner, and that Mr. Parks’s mental health classification score was a 2 or 3 until
August 2006. Id. ¶244; Pl.’s Counterstmt. ¶¶112-13.
In addition to Mr. Parks’s complaints, after hearing from Mr. Parks, a prisoner rights
organization wrote a letter dated March 28, 2006 to MWCI asking why Mr. Parks was not
receiving treatment for his HIV/AIDS and Hepatitis C. Ex. J, Letter to Wanda White-Lewis
Dated 3/28/2006, DEF_001613. On April 3, 2006, Ms. Wanda White of the DOC responded to
this letter, copying Dr. Blanchette; thus making Dr. Blanchette aware of this organization’s letter
58
in early April. Pl.’s Counterstmt. ¶142-43, ECF No. 234; Ex. E, Blanchette Dep. 112:1-10; Ex.
C, Ex. 8, Letter dated 4/3/2006 at DEF_001609.
b. August 11, 2006 Transfer from Garner to MWCI
Defendants argue that Mr. Parks was transferred on August 11, 2006 at the request of
mental health because his treatment at Garner had been completed. Defs.’ Local Rule 56(a)1
Stmt. ¶¶587-88, ECF No. 219-1. Mr. Parks’s Clinical Record notes indicate “notified by mental
health that I/M Parks will transfer to MacDougall later this afternoon.” Defs’ Local Rule 56(a)1
Stmt. ¶ 587, ECF No. 219-1; Ex. 19, Clinical Record Notes dated 8/11/2006, 3. Mr. Parks had
been upgraded to a level 4 mental health status on June 7, 2006 and was downgraded to a level 3
on August 7, 2006. Ex. 19, Needs History, 12. Accordingly, when the need for treatment
stopped, per Administrative Directive 9.1, Section 7(D), he was sent back to the originating
facility, MWCI.
Mr. Parks admits that mental health initiated the transfer on this date, Pl.’s Local Rule
56(a)2 Stmt. ¶¶587-88, ECF No. 234, but believes that this transfer was part of a scheme
orchestrated by Dr. Blanchette to continually transfer Mr. Parks out of MWCI to Garner for
complaining about his medical care. Pl.’s Opp. Br. 31-32, ECF No. 232. He believes that this
transfer shows that Dr. Blanchette’s assessment of Mr. Parks’s mental health need was not
credible. Id. Surrounding the date of this transfer, Mr. Parks also continued to complain about
not receiving treatment for Hepatitis C and about the frequent transfers. Ex. C., Parks Decl.
¶¶90, 122.
c. August 25, 2006 Transfer from MWCI to Garner
Defendants argue that Mr. Parks was transferred on August 25, 2006 to receive mental
health treatment available only at Garner. Defs.’ Local Rule 56(a)1 Stmt. ¶¶589-93, ECF No.
59
219-1. As reflected in Mr. Parks’s Clinical Record, around 4 pm, it was noted that he had been
placed at a level 5 mental health status on August 24, 2006. Ex. 19, Clinical Record Notes dated
8/24/2006, 4; Ex. 19, Needs History, 12. Social worker Sara Cyr, who saw Mr. Parks later that
same day, referred Mr. Parks to level 4 mental health housing. Ex. 19, Clinical Record Notes
dated 8/24/2006, 4-5; Ex. 19, Needs History, 11.
Mr. Parks does not dispute the facts on which Defendants rely. Pl.’s Local Rule 56(a)2
Stmt. ¶¶589-93, ECF No. 234. He argues that this transfer is part of Dr. Blanchette’s scheme to
retaliate against him for complaining about his medical care. Pl.’s Opp. Br. 31-32, ECF No. 232.
Surrounding the date of this transfer, Mr. Parks continued to complain about not receiving
treatment for Hepatitis C and about the frequent transfers. Ex. C, Parks Decl. ¶¶ 90, 122. The
Clinical Record also reflects that Mr. Parks “seems to try [and] use the ‘conspiracy’ thought
context in terms of threatening to sue us” and that Mr. Parks “notified the district courts.” Ex.
25, Clinical Record Notes dated 8/22/2006, 171; Ex. 19, Clinical Record Notes dated 8/24/2006,
4.
d. October 16, 2006 Transfer from Garner to MWCI
Defendants argue that this transfer occurred because Mr. Parks completed his mental
health treatment at Garner and was transferred to the originating facility under Administrative
Directive 9.1, Section 7(D). Defs.’ Local Rule 56(a)1 Stmt. ¶¶594-97, ECF No. 219-1. Mr.
Parks remained at a level 4 mental health status until October 10, when he was downgraded to a
level 3 by Social Worker Hashim. Ex. 19, Needs History, 11.31 Mr. Parks’s Inmate Transfer
31
Licensed Social Worker Hashim recommended that Mr. Parks’s mental health status be downgraded from level 4
to 3 on October 2, 2006, Ex. 25, Notice of Mental Health Score Change dated 10/2/2006, 0173, but this downgrade
did not officially occur until October 10, 2006. Ex. 19, Needs History, 11. The Clinical Record notes dated the day
after Mr. Hashim’s recommendation indicate that there was no “overt evidence of psychosis.” Ex. 19, Clinical
Record Notes dated 10/3/2006, 6.
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History indicates that he was transferred because he was “CLEARED BY MH FOR GP
RETURN.” Ex. 19, Display Inmate Transfer History, 005383.
Mr. Parks admits that mental health initiated the transfer on this date, Pl.’s Local Rule
56(a)2 Stmt. ¶¶594-97, but believes that this transfer was part of a scheme orchestrated by Dr.
Blanchette to continually transfer Mr. Parks out of MWCI to Garner. Pl.’s Opp. Br. 31-32, ECF
No. 232. He argues that the fact that Mr. Parks was transferred back to MWCI shows that Dr.
Blanchette’s assessment of Mr. Parks’s mental health need was not credible. Id. Surrounding
the date of this transfer, Mr. Parks also continued to complain about not receiving treatment for
Hepatitis C and about the frequent transfers. Ex. C, Parks Decl. ¶¶ 90, 122.
e. January 16, 2007 Transfer from MWCI to Garner
Defendants argue that Mr. Parks was transferred on January 16, 2007 to receive mental
health treatment because, in part, “he had exhibited out of control behavior such as yelling while
in the Infirmary.” Defs.’ Local Rule 56(a)1 Stmt. at 71 & ¶271, ECF No. 219-1. Defendants
also argue that the transfer was intended to place Mr. Parks in the care of Dr. O’Halloran, with
whom he had a good relationship. Id. ¶¶277-80. Mr. Parks’s Inmate Transfer History indicates
that “inmate needs specific treatment at Garner.” Ex. 27, Display Inmate Transfer History,
005382. Mr. Parks’s Clinical Record notes from January 3 and January 6 indicate that “ID” or
infectious disease doctors determined that Mr. Parks should be sent back to Garner for treatment
of his psychiatric issues and Hepatitis C. Ex. 25, Clinical Record Notes dated 1/3/07 and 1/6/07,
180-81; Ex. 23, Blanchette Aff. ¶ 163.32
Mr. Parks denies that the transfer occurred so that he could be treated by Dr. O’Halloran
and to manage his psychiatric issues. Pl.’s Local Rule 56(a)2 Stmt. ¶280, ECF No. 234. He
32
The transfer occurred as soon as possible after this determination, given that Mr. Parks was injured in a scuffle
with another inmate on December 27, 2006. Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 273-74, 279, ECF No. 219-1.
61
argues that this transfer is part of Dr. Blanchette’s retaliatory scheme against him for
complaining about his medical care. Id. Mr. Parks’s transfer history indicates the transfer is
“Per Dr. Blanchette, inmate needs specific treatment at Garner.” Ex. 27, Display Inmate
Transfer History, 005382. Surrounding the date of this transfer, Mr. Parks continued to complain
about the frequent transfers. Ex. C, Parks Decl. ¶122.
f. September 27, 2007 Transfer from Garner to MWCI
Defendants argue that Mr. Parks was transferred on September 27, 2007 because he had a
separation profile with an inmate at Garner. Defs.’ Local Rule 56(a)1 Stmt. ¶¶605-608, ECF No.
219-1. They argue that Counselor Supervisor Kim Jones requested the transfer because of this
“profile,” which is defined as a disagreement between two inmates that requires separation. Id.;
Ex. 11, Inmate Transfer History, 005379 (noting the reason for the transfer as “separation from
inmates”); see also Ex. 12, Administrative Directive 9.9, Sections 3(D), 8 (defining a “separation
profile” as a “record specifying the need and reason for keeping two (2) or more individuals
apart from each other” and noting that inmates may be transferred to another facility for their
safety).
Mr. Parks admits that the profile caused the transfer, Pl.’s Local Rule 56(a)2 Stmt. ¶¶605608, but believes that this transfer was part of a scheme orchestrated by Dr. Blanchette to
continually transfer Mr. Parks out of MWCI to Garner and indeed shows that Dr. Blanchette’s
assessment of Mr. Parks’s mental health need was not credible. Pl.’s Opp. Br. 31-32, ECF No.
232. Surrounding the date of this transfer, Mr. Parks continued to complain about the frequent
transfers. Ex. C, Parks Decl. ¶122.
62
g. October 26, 2007 Transfer from MWCI to Garner
Defendants argue Mr. Parks was transferred on October 26, 2007 to receive mental health
treatment available at Garner. Defs.’ Local Rule 56(a)1 Stmt. ¶¶290-95. Dr. Blanchette
requested that Mr. Parks be held at Garner for one year because he wanted to make sure Mr.
Parks stayed in one facility for one year, which is the duration of the Hepatitis C treatment. Id.
Mr. Parks argues that this transfer is part of Dr. Blanchette’s retaliatory scheme against
him for his complaints about his medical care. Pl.’s Local Rule 56(a)2 Stmt. ¶¶291-92, 294,
ECF No 234. Mr. Parks’s Inmate Transfer History indicates, “[r]eturn to Garner per Dr.
Blanchette and hold at Garner for a year.” Ex. 28, Display Inmate Transfer History, 005377.
Surrounding the date of this transfer, Mr. Parks continued to complain about the frequent
transfers. Ex. C, Parks Decl. ¶122.
h. August 21, 2008 Transfer from Garner to MWCI
Defendants argue that this transfer occurred because Garner’s “mental health team”
determined that Mr. Parks had received the mental health treatment he needed. Defs.’ Local
Rule 56(a)1 Stmt. ¶¶609-14. In accordance with DOC policy, therefore, Mr. Parks was
transferred back to the originating facility. Ex. Ex. 8, Administrative Directive 9.1, Section
7(D). Dr. Bogdanoff (from Mental Health) determined that Mr. Parks could be placed into the
general population on August 20; he was transferred to MWCI the next day. Defs’ Local Rule
56(a)1 Stmt. ¶¶ 609-13, ECF No. 219-1; Ex. 19 Clinical Record Notes dated 8/20/08, 9.
Mr. Parks does not dispute any of the facts Defendants assert justifying their explanation
for the transfer. Pl.’s Local Rule 56(a)2 Stmt. ¶¶609-14. Surrounding the date of this transfer,
Mr. Parks continued to complain about the frequent transfers. Ex. C, Parks Decl. ¶122.
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2. Intra-Facility Transfers
In addition to these facility-to-facility moves, Mr. Parks also was placed on “high
security status” on February 9, 2005, which required him to be moved to a new cell, but not
necessarily a new facility, every 90 days. Defs’ Local Rule 56(a)1 Stmt. ¶¶ 621-31, ECF No.
219-1; Ex. 16, High Security Recommendation for Inmate Parks dated 2/9/2005, 003650.33
Warden Simienski recommended the placement because Mr. Parks had a history of escape,
attempted escape, and had written a letter, docketed in this case, listing security vulnerabilities in
the Walker Building at MWCI. Id.; see also Ex. 7, Dzurenda Aff. ¶31; Am. Compl. at 30-37,
Ex. 1, Letter dated 2/7-8/2005, ECF No. 17. High security status provides for increased
supervision of inmates who pose a threat to the safety and security of the facility and requires
that the inmate be housed at security level 4 or 5. Defs’ Local Rule 56(a)1 Stmt. ¶¶ 621-23, ECF
No. 219-1. Mr. Parks does not challenge this initial designation but rather argues that he should
have been removed from the status earlier and that the Defendants’ failure to do so was
retaliation.
DOC policy in place at the time required that an inmate’s high security status designation
be reviewed every six months. Id. ¶ 628; Ex. 15, Administrative Directive 9.4, Section 13(H).
In March 2007, the Classification Committee recommended that Mr. Parks be removed from
high security status, but Defendant Dzurenda rejected the request and cannot recall why. Pl.’s
Counterstmt. ¶¶170-71, ECF No. 234; Ex. J, Letter to Fred Levesque dated 3/12/2007, 004027.
On February 28, 2008, during a review undertaken at Garner, the Classification Committee again
33
There has been some debate as to how high security status impacted the relocation of inmates, which will be
discussed further below, but discovery has demonstrated that high security status requires that an inmate be housed
in a secured cell and that the inmate be transferred to a different cell “at a minimum of every 90 days.” Ex. 15,
Administrative Directive 9.4, Section 13(E). A High Security Monitoring designation also required that an inmate
be housed in a level 4 or 5 facility. Id. at Section 14. As such, this designation would only require an inter-facility
transfer if the inmate was housed at a level 3 or lower facility at the time of designation.
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recommended that Mr. Parks be removed from high security status “based on medical illness”
and noted that “frequent cell moves have exacerbated his illness.” Ex. J, High Security Review
Hearing Form dated 2/28/2008, 003637. Warden Dzurenda concurred with that recommendation
and wrote a letter on the same date requesting Mr. Parks be removed from high security status
due to his medical condition. Ex. J, Letter to Fred Levesque dated 2/28/2008, 003636.
Defendant Murphy also requested that Mr. Parks be removed from high security status in
a letter dated July 8, 2009. Ex. J, Letter to Acting Director Milling dated July 8, 2009, 003621.
In doing so, he noted the February 28, 2008 recommendation of removal due to his medical
condition. Id. Classification concurred with this recommendation, Ex. J, Letter from Director of
Offender Classification & Population Management dated 7/10/2009, 003622, which likely
resulted in his removal from high security status shortly thereafter. Ex. G, Dzurenda Dep. 107:7109:16; Pl.’s Counterstmt. ¶177, ECF No. 234 (indicating that Mr. Parks remained on high
security status until July 22, 2009). Even after Mr. Parks was removed from high security status,
he notes that his cell was moved thirteen times from September 2009 through November 2010,
“or roughly once a month.” Pl.’s Opp. Br. 38, ECF No. 232 (citing Ex. J at 27, List of Cell
Locations for Parks as of 7/22/2009, at 2867).
Mr. Parks claims that the Defendants knew that he complained about these cell moves
and their negative impact on his health, because he complained by filing inmate request forms.
Ex. C, Parks Decl. ¶¶114, 122, 125. More specifically, he claims that Defendant Murphy
received three complaints in August 2008 regarding the frequent prison transfers, including
allegations that they were interfering with his ability to pursue grievances and that they
negatively impacted his health. Pl.’s Counterstmt. ¶¶157-60, 163-65, ECF No. 234. In each
instance, Defendant Murphy forwarded the complaint to the unit manager and either did not
65
follow-up or does not recall what action was taken. Id. ¶¶158, 164-65. Mr. Parks also
complained to Warden Murphy about cell moves on June 2, 2009, a few weeks before he was
removed from high security status. Id. ¶190; Ex. H, Murphy Dep. and Exhibits, Ex. 18, Letter to
Murphy dated 6/2/2009, 004702-04.
Warden Dzurenda received a written complaint from Mr. Parks about the cell movements
in February 2008, just before he recommended that Mr. Parks be removed from high security
status. Ex. J, Inmate Request Form dated 2/9/2008, 004065-66. He also testified that he recalled
Mr. Parks making complaints about the stress that frequent cell moves caused Mr. Parks. Ex. G,
Dzurenda Dep. 88:8-14.
3. Impact of the Transfers on Mr. Parks
Mr. Parks attests that the frequent transfers (both intra- and inter-facility) caused him
stress and anxiety that resulted in night sweats, panic attacks, and dizziness, that they inhibited
the timely administration of his medication, and that he lost certain personal items, including a
box of his grievances, during the moves. Ex. C, Parks Decl. ¶¶ 111-13. He explains that, given
his heightened sensitivity to germs, because of his medical conditions, he had to clean each new
cell carefully when he arrived. Id. ¶ 112. Mr. Parks also indicates that Dr. O’Halloran told him
that the transfers had a negative impact on his health and anxiety. Id. ¶¶ 124, 137. Dr.
O’Halloran noted in Mr. Parks’s medical records in February 2008, that he was experiencing
stress from the moves. Ex. H, Murphy Dep. and Exhibits, Clinical Record Notes dated
2/14/2008, 004705.
Additionally, Mr. Parks found being housed in Garner to be very disruptive and
upsetting, because he was surrounded by “serious mental illness that caused some to be almost
comatose and others to act and scream wildly.” Ex. C, Parks Decl. ¶ 120. He also indicates that
66
the moves inferred with his ability to pursue grievances, because they precluded him from being
able to exhaust his remedies at any given facility. Id. ¶ 119.
4. Preclusion from Filing Grievances
Mr. Parks also claims that Defendants Dzurenda and Murphy retaliated against him by
prohibiting him from filing grievances. These prohibitions occurred on April 29, 2009, May 7,
2010, and October 6, 2010 for Warden Murphy and May 14, 2008 from Warden Dzurenda. Ex.
J, Letter from Murphy dated 4/29/2009, 004710; Ex. J, Letter from Dzurenda dated 5/14/2008,
004812; Ex. J, Letter from Murphy dated 5/7/2010, 004962; Ex. H, Murphy Dep. and Exhibits,
Ex. 22, Letter from Murphy dated 10/6/2010, 004959. Mr. Parks notes that the April 29, 2009
prohibition by Warden Murphy occurred within 20 days of him filing this lawsuit. Pl.’s
Counterstmt. ¶189, ECF No. 234.
H. Legal Analysis of Retaliation Claims
Mr. Parks has brought retaliation claims under 42 U.S.C. §1983 claiming that the
Defendants violated the First and Fourteenth Amendments. Am. Compl. ¶¶77-82, ECF No. 146.
Mr. Parks believes that the retaliatory actions taken against him include: (1) the Defendants
transferring him between and within facilities often; (2) Dr. Blanchette “inappropriately
manipulat[ing] the HepCURB process to ensure” that Mr. Parks was denied treatment for his
Hepatitis C; and (3) Defendants Dzurenda and Murphy “preclud[ing] Mr. Parks from filing any
grievances.” Pl.’s Opp. Br. 29, ECF No. 232. He has sued all three Defendants on this claim in
their individual capacity. Am. Compl. ¶¶ 6-8, 82, ECF No. 146.
To survive summary judgment on a claim of retaliation, Mr. Parks must demonstrate
genuine issues of material fact exist regarding the following: (1) he engaged in protected speech
or conduct, (2) the defendant took adverse action against him, and (3) a causal connection
67
existed between the protected speech and the adverse action. See Espinal v. Goord, 558 F.3d
119, 128 (2d Cir. 2009). The “adverse action” taken must be “meaningfully” and objectively
adverse in that it would deter a similarly situated individual of “ordinary firmness” from
exercising the constitutional right. Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004)
(citations omitted). With respect to the last prong, Mr. Parks must show “his punishment was
motivated, in whole or in part, by his conduct – in other words, that the prison officials’ actions
were substantially improper retaliation.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
To prevail on his claim, he must also show by a preponderance of the evidence that the
Defendants were “personally involved—that is, [they] directly participated—in the alleged
constitutional deprivations.” Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005); see also
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1996).
Once a plaintiff has proved there are genuine issues of material fact on all three of the
elements of a retaliation action, the burden shifts to the defendant to prove that the plaintiff
would have received the same treatment “even in the absence of the protected conduct.”
Graham, 89 F.3d at 79 (citing Mount Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)). “[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.” Id. (citations omitted). The
Second Circuit has recognized that this defense is often appropriately applied in the context of
prison administration. Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984) (noting that a finding of
sufficient proper reasons under Mount Healthy “is readily drawn in the context of prison
administration where we have been cautioned to recognize that ‘prison officials have broad
administrative and discretionary authority over the institutions they manage.’”) (quoting Hewitt
68
v. Helms, 459 U.S. 460, 467 (1983), receded from on other grounds by Sandin v. Conner, 515
U.S. 472, 481-84 (1995).
Courts examine prisoner retaliation claims with “particular care,” because they can be
easily fabricated. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citation omitted).
Prisoner plaintiffs may rely on circumstantial evidence to prove their retaliation claims, such as
temporal proximity of events, but in doing so, the plaintiff also must usually provide some nonconclusory evidence that raises an inference of “retaliatory animus” in order to proceed to trial.
See cf. id. at 873 (noting that the Court would have granted summary judgment if the only
evidence of retaliation had been plaintiff’s good behavior and temporal proximity between the
lawsuit and the disciplinary charges but plaintiff was entitled to a trial because he provided
evidence that the disciplinary charge was based on false information); see also Faulk v. Fisher,
545 F. App’x 56, 58-59 (2d Cir. 2013) (affirming grant of summary judgment where plaintiff
failed to provide any evidence, circumstantial or otherwise, of retaliatory intent); Bennett v.
Goord, 343 F.3d at 138-39 (2d Cir. 2003) (noting that direct evidence of retaliatory intent may
not be required where the circumstantial evidence is “sufficiently compelling”).
As mentioned in analyzing qualified immunity, the Court finds that Mr. Parks engaged in
constitutionally protected activity by filing lawsuits and grievances and complaining about his
medical care and frequent transfers. See Gill, 389 F.3d at 384 (the “use of the prison grievance
system” is a protected activity); Espinal, 558 F.3d at 128-29 (filing a federal lawsuit is a
protected activity) (citation omitted). Thus, its analysis will focus on the remaining factors.
1. Transfers Under Consideration
As a preliminary matter, Defendants argue that Plaintiff’s Second Amended Complaint
inappropriately includes transfers that have already been dismissed by the Court and that only the
69
transfer that occurred on August 21, 2008 remains at issue. Defs.’ Br. 5 n.2, ECF No. 219-2.
The Court agrees. Defendants correctly note that the Court dismissed Mr. Parks’s retaliation
claims for all transfers that occurred before February 28, 2008, because it found that Mr. Parks
had alleged that he was on “high security status” during that time. Ruling on First Mot. To
Dismiss 22-23, ECF No. 96. In its ruling, the Court noted that inmates on “high security status”
are subject to prison transfers every sixty days. Id. Therefore, the Court reasoned that Mr. Parks
failed to state claims of retaliation on pre-February 28, 2008 transfers because “defendants have
demonstrated that they would have transferred the plaintiff ‘even in the absence of the protected
conduct.’” Id. at 23 (citing Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)).
On June 7, 2013 (over two years after the Motion to Dismiss Ruling was issued), Mr.
Parks filed a motion for partial reconsideration of this aspect of the Court’s ruling, arguing that it
was based on the false premise that inmates on high security status were required to be moved to
different prison facilities every sixty days. Pl.’s Mot. For Partial Reconsideration 1-2, ECF Nos.
148-149. He explained that discovery had revealed that being on high security status did not
require transfers to a different prison every 60 days. Id. Defendants did not dispute that this was
factually true. Opp. Br. 1, ECF No. 150. The Court denied Mr. Parks’s Motion for Partial
Reconsideration “as untimely and not based on newly discovered evidence which could not, in
the exercise of due diligence, have been discovered prior.” Order dated 8/16/2013, ECF No.
162.
Mr. Parks has not squarely put before this Court a motion to reconsider its prior ruling on
this issue at this time. Thus, the disposition of Defendants’ summary judgment motion depends
only on the Court’s analysis of the August 21, 2008 transfer. However, because the parties have
addressed these additional transfers in their briefs, the Court will analyze them.
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2. Legal Analysis of Inter-Facility Transfers
Defendants have set out two arguments as to why summary judgment is appropriate on
Mr. Parks’s transfer-based retaliation claims regarding all eight transfers that Mr. Parks has put
at issue.34 First, Defendants argue that assuming Mr. Parks has met his burden, his claim still
fails because the DOC transferred Mr. Parks for “legitimate reasons.” Defs.’ Br. 7-8, ECF No.
219-2 (citing Mount Healthy Sch. Dist., 429 U.S. at 287). Second, Defendants argue that since
they were not personally involved in ordering the transfers, Mr. Parks cannot hold them liable
under section 1983. Id. at 10-11.
a. August 21, 2008 Transfer
On August 21, 2008, Mr. Parks was transferred from MWCI to Garner. As indicated
above, a mental health professional determined that Mr. Parks, who had been receiving mental
health treatment at Garner, was no longer in need of that specialized treatment and could be
placed into the general population. Defs.’ Local Rule 56(a)1 Stmt. ¶¶ 609-13, ECF No. 219-1;
Ex. 19, Clinical Record Notes dated 8/20/08, 9. Consistent with DOC policy, Mr. Parks was
transferred back to MWCI, because it was the facility from which Mr. Parks originated. Ex. 8,
Administrative Directive 9.1, Section 7(D) (“Upon resolution of the medical concern, the inmate
shall be returned to the sending facility as soon as possible.”). The foregoing facts are sufficient
to show that Defendants would have transferred Mr. Parks on August 21, 2008, even in the
absence of him engaging in constitutionally protected conduct.
Mr. Parks does not dispute any of the facts supporting Defendants’ explanation for the
transfer. Pl.’s Local Rule 56(a)2 Stmt. ¶¶609-14, ECF No. 234. Thus, he cannot defeat
Defendants’ summary judgment motion, because they have “proferr[ed] an alternative basis [for
34
The Court has already analyzed and disposed of the Defendants’ third argument regarding qualified immunity
above.
71
the actions taken] that would apply to him even if his version of events were true.” Graham, 89
F.3d at 81. Accordingly, Defendants have satisfied the Mount Healthy test and summary
judgment must be GRANTED on the August 21, 2008 inter-facility transfer for all Defendants.
b. The Other Seven Transfers Contested by Mr. Parks
If the seven other transfers Mr. Parks puts at issue were before the Court on summary
judgment, the result would be no different. The Court would have granted summary judgment
for the Defendants. First, Mr. Parks has provided insufficient evidence of retaliatory intent.35
Mount Healthy City Sch. Dist., 429 U.S. at 287 (identifying plaintiff’s initial burden, before the
defendant must offer a legitimate reason justifying the action, as requiring a showing that
engaging in protected conduct was a “substantial” or “motivating factor” in the defendant’s
adverse action). The best evidence that Mr. Parks has of retaliatory intent is one discussion in
April 2006, during which Mr. Parks contends that Dr. Blanchette referred to him as being
“crazy” and “threatened” have him sent to Garner. Ex. C, Parks Decl. ¶75. These comments do
not show retaliatory intent, as they do not link Mr. Parks’s engaging in protected activity with a
transfer. Moreover, this lone angry discussion is simply too remote from all but the first April
2006 transfer to create a reasonable inference that Dr. Blanchette was retaliating against Mr.
Parks. Second, the Court would have dismissed all seven transfers because Defendants have
offered evidence that they would have occurred even in the absence of the protected conduct.
Thus, under Mount Healthy, they would have been dismissed.
The transfers that occurred on August 11, 2006, October 16, 2006, and September 27,
2007 easily satisfy the Mount Healthy test. On each of these dates, Mr. Parks was transferred
35
Despite the comments allegedly made by Wardens Dzurenda and Murphy about Mr. Parks’s frequent transfers,
there is no evidence that either of them were directly or indirectly involved in the inter-facility transfers. Thus, the
Court need not address their comments in analyzing the claims based on the inter-facility transfers. Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1996) (personal involvement is required to sustain a section 1983 action)
72
from Garner back to MWCI, and Defendants point to documentary evidence indicating that the
transfer would have occurred, even in the absence of Mr. Parks engaging in protected conduct.
The August 11, 2006 and October 16, 2006 transfers both involved a downgrade in Mr. Parks’s
mental health level. Once, Mr. Parks’s mental health status was downgraded, per Administrative
Directive 9.1, he was transferred back to the facility from which he had originally come, MWCI.
Mr. Parks does not dispute any of the facts Defendants asserted that support their theory as to
why these three transfers. Pl.’s Local Rule 56(a)2 Stmt. ¶¶587-88, 594-97, ECF No. 234. Thus,
these transfers satisfy the Mount Healthy test for the same reasons as the August 21, 2008
transfer.
The September 27, 2007 transfer occurred because of a “profile” filed by Counselor
Supervisor Kim Jones, which required the separation of Mr. Parks from another inmate under
Administrative Directive 9.9. Ex. 12, Administrative Directive 9.9, Section 3(D) (defining
separation profile as “[a] record specifying the need and reason for keeping two (2) or more
individuals apart from each other.”); see also Ex. 7, Dzurenda Aff. ¶22 (“DOC does not keep
inmates with profiles at the same housing unit.”). Again, Mr. Parks does not dispute any of these
facts that provide a “legitimate” reason for the transfer to have occurred, Pl.’s Local Rule 56(a)2
Stmt. ¶¶605-608, ECF No. 234, thus, Defendants have satisfied the Mount Healthy test.
There is also no evidence that Dr. Blanchette was ever located at Garner or influenced the
individuals that made the decision to transfer Mr. Parks on these three dates, other than Mr.
Parks’s own conjecture. Such conjecture is insufficient to create a genuine issue of material fact
on summary judgment. See Read v. Calabrese, No. 9:11-cv-459 (GLS/DEP), 2015 WL
1400542, at *12 (N.D.N.Y. Mar. 26, 2015) (Report and Recommendation adopted by the District
Court) (finding that plaintiff’s conclusory and speculative allegations that defendant acted with
73
retaliatory animus, without other evidence, was insufficient to support a retaliation claim) (citing
Ayers v. Stewart, 101 F.3d 687, 687 (2d Cir. 1996)); Applegate v. Annucci, No. 9:02-cv0276(LEK/DEP), 2008 WL 2725087, at *15 (N.D.N.Y. July 10, 2008) (noting that since “the
matter has progressed to the summary judgment stage, it is no longer sufficient for the plaintiff to
engage in mere conjecture” regarding the nexus because the protected activity and the adverse
actions taken and granting defendants’ motion for summary judgment because of the absence of
evidence on this issue) (citations omitted). Accordingly, the August 11, 2006, October 16, 2006
and September 27, 2007 could not have survived a summary judgment motion with respect to
any of the Defendants.
The other transfers from MWCI, where Dr. Blanchette was based, require a bit more
scrutiny but two of them still meet the Mount Healthy test for dismissal. The April 19, 2006
transfer was caused not by Dr. Blanchette but by Dr. Lewis, who explicitly referred Mr. Parks to
level 4 mental health housing, which was only available at Garner. Mr. Parks does not contest
that Dr. Lewis analyzed Mr. Parks’s mental health condition in early April 2006 nor does he
dispute the content of that evaluation as represented by the Defendants. Pl.’s Local Rule 56(a)2
Stmt. ¶¶231-32, ECF No. 234. While there is evidence that Dr. Blanchette agreed with this
result, there is no evidence, other than Mr. Parks’s own speculation, that Dr. Lewis did not
independently assess Mr. Parks and determine that he needed mental health treatment that could
not be provided at MWCI. Such speculation is insufficient at summary judgment to refute
Defendants’ showing that the transfer would have occurred even in the absence of the protected
conduct. See Read, 2015 WL 1400542, at *12; Applegate, 2008 WL 2725087, at *15.
The August 25, 2006 transfer was caused by a social worker, Sara Cyr, who saw Mr.
Parks on August 24 and referred him to level 4 mental health housing. Again, there is no
74
evidence that Dr. Blanchette was involved in this transfer other than Mr. Parks’s speculation,
which is insufficient at this stage to create a triable issue of fact. Id. Mr. Parks also does not
deny any of the facts explaining Defendants’ legitimate reason for the transfer. Pl.’s Local Rule
56(a)2 Stmt. ¶¶589-93. Thus, the April 19, 2006 and August 25, 2006 transfers would have been
dismissed on summary judgment.
For the remaining transfers, which occurred on January 16, 2007 and October 26, 2007,
Defendants’ reason that the transfers would have occurred, even in the absence of the protected
conduct, is Dr. Blanchette’s medical assessment of Mr. Parks. Transferring someone to receive
medical treatment is certainly a legitimate, non-retaliatory reason that satisfies Defendants’
burden under Mount Healthy.
Because Dr. Blanchette personally recommended both of these transfers, the Court also
explored whether there was any evidence of retaliatory intent. It concludes that there is none.
On January 16, 2007, Dr. Blanchette wrote that Mr. Parks needed “specific treatment” at Garner.
This transfer occurred nearly one year after Dr. Blanchette had expressed anger towards Mr.
Parks in April 2006. There is nothing in the record close in time to or about this particular
transfer to indicate that Dr. Blanchette was acting with retaliatory intent. See Brown v. Graham,
No. 9:07-CV1353(FJS/ATB), 2010 WL 6428251, at *17-18 (N.D.N.Y. Mar. 30, 2010) (granting
summary judgment for defendants on a retaliation claim where there was no “factual support” for
plaintiff’s “conclusory allegation” that defendants were motivated by retaliatory animus) (Report
and Recommendation adopted by the District Court, 2011 WL 1213482 (N.D.N.Y. Mar. 31,
2011), aff’d, 470 F. App’x 11 (2d Cir. 2012)); LeBrown v. Selsky, No. 9:05-CV-0172
(GTS/DRH), 2010 WL 1235593, at *5 (N.D.N.Y. Mar. 31, 2010) (granting summary judgment
for defendants because, among other reasons, the record was devoid of evidence of retaliatory
75
intent and the defendants’ action was roughly three weeks after the protected activity, which was
“somewhat attenuated” in the Court’s view). Similarly, on October 26, 2007, Dr. Blanchette
requested that Mr. Parks be held at Garner for one year. There is nothing in the record close in
time to or about this particular transfer that shows Dr. Blanchette was acting with a retaliatory
intent. Id. Moreover, there is evidence in the record that Mr. Parks was going to start Interferon
treatment soon after that date, which was known to have neuropsychiatric side effects that would
be best monitored at Garner. Accordingly, the Court would have dismissed the claims based on
the January 16, 2007 and October 26, 2007 transfers.
Because the Court has found that all seven of the transfers are constitutionally proper, the
claims would have been dismissed against all Defendants, regardless of their level of
involvement. Accordingly, even if the Court were to have considered the other seven transfers
not currently before it, it would have granted summary judgment on those claims as well on the
current record.
3. Intra-Facility Transfers
With respect to the intra-facility transfers, Mr. Parks’s claim fails because he has not met
his affirmative burden. As with the inter-facility transfers, to meet his burden, Mr. Parks must
show that a genuine question of material fact exists as to whether the Defendants acted with
retaliatory animus. See Colon, 58 F.3d at 873; Faulk, 545 F. App’x at 58-59 (affirming grant of
summary judgment where plaintiff had produced circumstantial evidence that the actions could
have been retaliatory but failed to provide any evidence of retaliatory intent).
Mr. Parks cites two statements as evidence of Defendants Dzurenda and Murphy
harboring retaliatory intent. He recalls Commissioner Dzurenda asking him “something along of
the lines of ‘how the bus therapy was?’” Ex. C, Parks Decl. ¶130. Mr. Parks defines “bus
76
therapy” as the transfer of a prisoner who has complained in order to make their continued
complaints or the filing of grievances more difficult. Id. ¶131. On another occasion, Warden
Murphy asked Mr. Parks, “‘Haven’t you had enough of the bus?’” Id. ¶132. The Wardens both
have testified that they bear no ill will toward Mr. Parks and Defendant Dzurenda specifically
denies making the statements Mr. Parks attributes to him. Ex. 7, Dzurenda Aff. ¶¶33-34; Ex. 17,
Murphy Aff. ¶20.
Because neither of these comments could possibly be related to intra-facility transfer,
which could not have involved a bus, no reasonable juror could conclude that they create an
inference of retaliatory intent with respect to the intra-facility transfers. Mr. Parks has cited no
other evidence of such intent with respect to Defendants Murphy and Dzurenda. Mr. Parks also
has put forth no evidence that Dr. Blanchette was personally involved in his placement on high
security status. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1996) (personal involvement is
required to sustain a section 1983 action). Thus, summary judgment must also be GRANTED
for all Defendants with respect to the intra-facility transfers.
4. The Prohibition on Filing of Grievances
As mentioned above, Mr. Parks was informed by letter when he was precluded from
filing grievances. Both Wardens specifically note in their letters that they were acting under
Administrative Directive 9.6. The letters note that the Directive permits suspension of an
inmate’s ability to file grievances when that inmate files repetitive grievances or when he files
more than seven grievances in a 60-day period. Mr. Parks does not claim that he did not fit
either of these criteria at the time he received the letters, nor does he claim that the DOC policy
differs from what the letters indicate. Accordingly, Defendants followed DOC policy as it is
written. Because they have provided a legitimate and non-retaliatory reason for their action,
77
Defendants have met their burden under the Mount Healthy test. See Graham, 89 F.3d at 79; see
also Jackson v. Jackson, 15 F.Supp. 2d 341, 352 (S.D.N.Y. 1998) (granting summary judgment
on a retaliation claim based on the filing of a misbehavior report, because defendant showed that
he was obligated by statute to file the report which demonstrated he would have issued the
misbehavior report “even in the absence of a retaliatory motive”).
Mr. Parks also has produced no evidence that Dr. Blanchette was personally involved in
his placement on high security status. See Wright, 21 F.3d at 501 (personal involvement is
required to sustain a section 1983 action). Thus, summary judgment is GRANTED with respect
to Mr. Parks’s claim based on the prohibition on filling grievances as to all Defendants.
5.
Denial of Hepatitis C Treatment
With respect to Dr. Blanchette’s denial of Hepatitis C treatment, the Court has found in
its analysis of Mr. Parks’s deliberate indifference claims above that, when Dr. Blanchette was
treating Mr. Parks, he did not prescribe Hepatitis C treatment because of concerns about his
mental health status. This reason satisfies the Mount Healthy test, because even if Mr. Parks had
not complained, he still would not have received Hepatitis C treatment. See Graham, 89 F.3d at
81. Thus, Mr. Parks retaliation claim against Dr. Blanchette regarding his Hepatitis C treatment
must also be dismissed. As discussed in analyzing the deliberate indifference claim, Mr. Parks
also has failed to show that Dr. Blanchette was personally involved in the delay of the
administration of Interferon after he was approved for treatment in December 2007. Thus, he
cannot be liable on the retaliation claim during the time period when Mr. Parks was waiting for
treatment that had been approved.
Moreover, the best evidence that Mr. Parks has that Dr. Blanchette was acting with
retaliatory intent is when, in April 2006, Dr. Blanchette allegedly referred to him as being
78
“crazy” and “threatened” to have him sent to Garner. Ex. C, Parks Decl. ¶75. This event is close
in time to the first decision made by the HepCURB to deny Hepatitis C treatment, but such
temporal proximity alone cannot create a genuine issue of material fact as to whether the
motivation behind Dr. Blanchette’s actions was retaliation. See cf. Colon, 58 F.3d at 873 (noting
that it would have granted summary judgment if the only evidence of retaliation had been
plaintiff’s good behavior and temporal proximity between the lawsuit and the disciplinary
charges, but plaintiff was entitled to a trial because he provided evidence that the disciplinary
charge was based on false information); see also Williams v. Goord, 111 F. Supp. 2d 280, 290
(S.D.N.Y. 2000) (“Although the temporal proximity of the [protected activity] and the [adverse
action] is circumstantial evidence of retaliation, such evidence, without more, is insufficient to
survive summary judgment.”) (citation omitted).
To the extent these claims are asserted against Defendants Dzurenda and Murphy, they
must also be dismissed because there was no constitutional violation, nor is their evidence that
either was directly involved. See Wright, 21 F.3d at 501 (personal involvement is required to
sustain a section 1983 action). Accordingly, summary judgment is GRANTED on Mr. Parks’s
retaliation claim based on the denial of treatment for Hepatitis C.
6. Conclusion
For all of the foregoing reasons, summary judgment is GRANTED with respect to all of
Mr. Parks’s retaliation claims against all Defendants.
I. Legal Analysis of ADA and Rehabilitation Act Claims
Mr. Parks claims that Wardens Dzurenda and Murphy violated Title II of the ADA and
Section 504 of the Rehabilitation Act by failing to reasonably accommodate Mr. Parks’s
disability by continuing to transfer him both intra-facility inter-facility. Am. Comp. ¶¶ 84-85,
79
ECF No. 146. 36 He has sued Wardens Dzurenda and Murphy in their official capacity and
requests that the Court “enjoin[ ] them from further transferring Mr. Parks or otherwise
discriminating… against him based on disability.” Id. ¶¶ 7-8, 86. At summary judgment, Mr.
Parks also requested that monetary damages and attorney’s fees be awarded for violations of
both Acts. Pl.’s Opp. Br. 80, ECF No. 232.37 Mr. Parks now concedes that his claim for
injunctive relief is moot, because he has been released from DOC custody. Notice of Pl.’s
Release from DOC Custody, ECF No. 260.38 Thus, the only non-moot claim before the Court
under the ADA and the Rehabilitation Act is for damages and attorney’s fees.
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. Similarly, the Rehabilitation Act provides “[n]o otherwise qualified
individual with a disability in the United States… shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance….” 29 U.S.C. § 794.
36
Title II of the ADA and Section 504 of the Rehabilitation Act do not provide for individual capacity suits against
state officials. Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (citations
omitted). The ADA authorizes lawsuits for money damages against individuals in their official capacity, provided
that the plaintiff can show that the relevant conduct was caused by “discriminatory animus or ill will towards the
disabled.” See id. at 111. To recover damages from individuals in their official capacity under the Rehabilitation
Act, Mr. Parks must show that the defendants acted with “deliberate indifference” to rights secured by the Act. See
cf. Garcia, 280 F.3d at 113-15 (holding that New York had not “in fact” waived its sovereign immunity when it
accepted federal funds for SUNY but noting that claims for money damages generally have been permitted upon a
showing that the violation resulted from “deliberate indifference” to rights secured the disabled by the Rehabilitation
Act).
37
Both the ADA and the Rehabilitation Act apply to inmates housed in state prisons. See Penn. Dep’t of Corrs. v.
Yeskey, 524 U.S. 206, 210-13 (1998) (ADA); see also e.g., Clarkson v. Coughlin, 898 F.Supp. 1019, 1035 (S.D.N.Y.
1995) (Rehabilitation Act).
38
Mr. Parks was sentenced for the robbery in September 2005, served his sentence, and was recently released from
DOC custody while Defendants’ summary judgment motion was still pending. Pl.’s Opp. To Defs.’ Mot. Seeking
Extension for Filing of Joint Trial Memorandum 1-2, ECF No. 247. After his initial release, he resided “in
homeless/temporary housing arranged through the Veterans Administration.” Id. Just before the Court held oral
argument on the summary judgment motion in March 2015, Mr. Parks was arrested again and was in DOC custody
at the time of the argument. But since then, he has been released from DOC custody. Notice of Pl.’s Release from
DOC Custody, ECF No. 260.
80
To establish a violation of Title II of the ADA, a plaintiff must show “(1) that he is a
‘qualified individual’ with a disability; (2) that he was excluded from participation in a public
entity’s services, programs or activities or was otherwise discriminated against by a public entity;
and 3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont, 340
F.3d 27, 34-35 (2d Cir. 2003) (citation omitted). A plaintiff must make the same showing under
the Rehabilitation Act and must also prove that the program attacked was federally funded.
Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (citation omitted).
“The purpose of both statutes is to ‘eliminate discrimination on the basis of disability and
to ensure evenhanded treatment between the disabled and the able-bodied.’” Maccharulo v. New
York State Dept. of Corr. Servs., No. 08 CIV 301 (LTS), 2010 WL 2899751, at *2 (S.D.N.Y.
July 21, 2010) (quoting Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)). As part of this
mandate, both statutes may require reasonable modifications39 to assure equal access to services
for disabled individuals. Disabled in Action v. Bd. of Elections in New York, 752 F.3d 189, 197
(2d Cir. 2014) (citations omitted). A modification is reasonable if it would not “‘fundamentally
alter the nature of the service provided’, or ‘impose an undue financial or administrative
burden.’” Id. (citations omitted).
Defendants argue that summary judgment is warranted because Mr. Parks cannot prove
he was prevented from participating in any program, service or activity due to his illness or that
any member of DOC staff discriminated against him due to his illness. Defs.’ Br. 31, ECF No.
219-2. The Court agrees.
39
Technically, Title II of the ADA requires “reasonable modifications” to enable access to the public benefit or
service, as opposed to “reasonable accommodation” under Title I, which applies in the employment context.
McElwee v. County of Orange, 700 F.3d 635, 640 n.2 (2d Cir. 2012). In evaluating a “reasonable modification”
claim, the Court may look to Title I, “reasonable accommodation” case law for guidance. Id.
81
1. Failure to Show Denial of Access Based on Disability
First, Mr. Parks’s claim fails because no reasonable fact-finder could conclude that in
being transferred to different cells and facilities, he was treated differently from able-bodied
inmates or that he was denied access to programs and services able-bodied inmates had access to,
because he had HIV/AIDS. While proof of disparate impact is not required to state a reasonable
modification claim, “there must be something different about the way the plaintiff is treated ‘by
reason of… disability’” such that “a disability makes it difficult for a plaintiff to access benefits
that are available to both those with and without disabilities.” Henrietta D., 331 F.3d at 276-77
(citation omitted).
Inmates do not have a right to be housed at a specific facility or in a specific type of
housing. See Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (holding that inmates do not have
a constitutional right to avoid transfer to a less agreeable prison, even where the transfer visited a
“grievous loss” upon the inmate); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (holding that
inmates do not have a constitutionally protected right to rehabilitative programs or certain
classifications); accord McKinnon v. Chapdelaine, No. CV115035454S, 2013 WL 951324, at *1
(Conn. Super. Ct. Feb. 13, 2013) (“Our courts have clearly held that a prisoner has no liberty
interest in his classification or assignment within the prison system because the commissioner of
correction has discretion to classify or transfer prisoners held in his custody.”) (citing Wheway v.
Warden, 215 Conn. 418, 431 (1990)). Indeed, the decision of where to house an inmate is
expressly left to DOC’s discretion. Conn. Gen. Stat. §18-86 (“The commissioner may transfer
any inmate of any of the institutions or facilities of the department to any other such institution
or facility… when it appears to the commissioner that the best interests of the inmate or the other
inmates will be served by such action”). Thus, in being transferred to different cells and
82
different facilities, Mr. Parks was not being treated differently from able-bodied inmates because
he had HIV/AIDS.
Moreover, Defendants have produced evidence that Mr. Parks was transferred for reasons
that were entirely unrelated to his HIV/AIDS. To survive summary judgment under the ADA
and the Rehabilitation Act, a plaintiff must produce some evidence that supports an inference
that the plaintiff was treated differently from non-disabled individuals because of his disability.
See Doe v. Pfrommer, 148 F.3d 73, 83-84 (2d Cir. 1998) (affirming a grant of summary
judgment dismissing a plaintiff’s ADA and Rehabilitation Act claims because he was
challenging the quality of services he received rather than any discrimination against him
because of his disability); see also Flight v. Gloeckler, 68 F.3d 61, 63-64 (2d Cir. 1995) (per
curiam) (finding no liability for defendant under the ADA and Rehabilitation Act because
plaintiff was not denied a benefit available to non-handicapped and was not denied the benefit
because he was disabled). As discussed above, Mr. Parks was moved between cells within
facilities because he was on high security status and between facilities to provide him with
mental health treatment. He has presented no evidence indicating that these transfers occurred,
because he had HIV/AIDS. Accordingly, his ADA and Rehabilitation Act claims must fail. See
Beckford v. Portuondo, 151 F.Supp.2d 204, 220 (N.D.N.Y. 2001) (granting defendants’
summary judgment motion on plaintiff’s ADA and Rehabilitation Act claims based on his
transfer to a cell that was not wheelchair equipped, because defendants provided a reason
unrelated to his disability as to why the transfer had occurred and there was no evidence that
defendants acted “because of an overt intent to deprive him of a service, program or activity by
reason of his disability”).
83
Mr. Parks argues that his claim should survive because the frequent transfers caused his
medical condition to worsen and he suffered “more pain and punishment” because he was not
treated differently from able-bodied inmates to accommodate his disability. Pl.’s Opp. Br. 78,
ECF No. 232 (citing United States v. Georgia, 546 U.S. 151 (2006)). While Georgia stands for
the proposition that an act that violates the Eighth Amendment can state a plausible claim under
the ADA, Georgia, 546 U.S. at 156, it does not change the fact that, under the ADA and the
Rehabilitation Act, the discriminatory act (or inaction) needs to occur because of an inmate’s
disability. Nor does it change the fact that to survive a summary judgment motion, a plaintiff
must provide evidence that he was denied access to “the services, programs, or activities of a
public entity.” 42 U.S.C. § 12132. In Georgia, the Court determined that because the claim
involved impaired access to “such fundamentals as mobility, hygiene, medical care, and virtually
all other prison programs,” it satisfied this standard. Georgia, 546 U.S. at 157. The conditions
were ones that would have inhibited any person from carrying out fundamental aspects of human
life, including basic hygiene, and were caused by the person’s need to use a wheelchair.
Here, there is no evidence that the conditions were so unhygienic or problematic that they
must have denied Mr. Parks access to services, programs or activities. Evidence of a general
decrease in one’s well-being without a link to an inability to participate in a service, program or
activity provided by a public entity, does not survive summary judgment under the ADA or
Rehabilitation Act. See Carrasquillo v. City of New York, 324 F.Supp.2d 428, 443 (S.D.N.Y.
2004) (granting defendants’ motion to dismiss based on claims that plaintiff was placed in a
housing unit located far from prison services, requiring him to walk great distances and causing
him pain, because plaintiff failed to plead denial of access to a service, program or activity); see
also Alster v. Goord, 745 F.Supp. 2d 317, 340 (S.D.N.Y. 2010) (granting summary judgment on
84
plaintiff’s claims based on accommodations he requested for his walking and hearing disabilities,
because plaintiff failed to provide evidence that deficiencies in his prison housing denied him
access to the benefits of services, programs or activities at the prison but denying summary
judgment where plaintiff was unable to shower because of his disability).
2. Mr. Parks’s Requested Modification Was Not Reasonable
Second, Mr. Parks’s requested modification—that he not be transferred between or
within prison facilities—was unreasonable. “[S]tatutory rights applicable to the nation’s general
population [must] be considered in light of effective prison administration.” Gates v. Rowland,
39 F.3d 1439, 1446 (9th Cir. 1994) (with respect to the Rehabilitation Act); see also Turner v.
Safley, 482 U.S. 78, 84-85 (1987) (noting deference to prison administration regarding managing
prison populations is appropriate). In evaluating whether a given modification is reasonable in
the prison context, the Court must take into account the legitimate interests of prison
administrators in “‘maintaining security and order’” and “‘operating [an] institution in a
manageable fashion.’” Pierce v. Cnty. of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008) (quoting
Bell v. Wolfish, 441 U.S. 520, 540 n.23 (1979)).
As discussed above in analyzing the retaliation claims, Mr. Parks was transferred
between facilities to receive mental health treatment and for other population management
reasons. Before July 2009, he was moved within a given facility because he was on high
security status, meaning DOC had determined that he “pose[d] a threat to the safety and security
of the facility, staff, inmates or the public.” Ex. 15, Administrative Directive 9.4, Section 3(H).
Stopping these transfers would have denied Mr. Parks mental health treatment and sacrificed the
safety and security of the inmates at Garner and MWCI.
85
“The Second Circuit has explained that although the public entity must make ‘reasonable
accommodations,’ it does not have to provide a disabled individual with every accommodation
he requests or the accommodation of his choice.” Kearney v. N.Y.S. D.O.C.S., No. 9:11-CV-1281
(GTS/TWD), 2013 WL 5437372, at *8 (N.D.N.Y. Sept. 27, 2013) (citing McElwee v. Cnty. of
Orange, 700 F.3d 635, 640 (2d Cir. 2012)) (granting summary judgment on ADA and
Rehabilitation Act claims based on the denial of a request to transfer the plaintiff to a facility
with a “medical infirmity unit” because the request was not a reasonable accommodation); see
also Wright v. Guiliani, 230 F.3d 543, 548 (2d Cir. 2000) (“[T]he disabilities statutes do not
require that substantively different services be provided to the disabled, no matter how great their
need for the services may be.”). The Court finds that Mr. Parks’s request that he not be
transferred, given the reasons that those transfer were occurring, was not a reasonable
modification.
Defendants’ Motion for Summary Judgment, with respect to the claimed monetary relief
under the ADA and the Rehabilitation Act, is hereby GRANTED.
III.
CONCLUSION
For all of the foregoing reasons, Defendants’ Motion to Correct Exhibits, ECF No. 255, is
DENIED AS MOOT. Defendants’ Motion for Summary Judgment, ECF No. 219, is
GRANTED in its entirety. The Clerk is directed to enter judgment for the Defendants and close
the case.
SO ORDERED at Bridgeport, Connecticut this 4th day of November 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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