Williams v. Geraci et al

Filing 145

MEMORANDUM AND ORDER granting in part and denying in part 127 Motion for Summary Judgment; For the foregoing reasons, Defendants, motion for summary judgment (Docket Entry 127) is GRANTED IN PART and DENIED IN PART. Defendants' motion for sum mary judgment is GRANTED with respect to Plaintiff's Section 1983 claims against Nurse Webster, Warden Ewald, Deputy Sheriff Shapiro, Deputy Sheriff Mehrman, Officer Koch, and the County, as well as his claim against Dr. Geraci for failing to re quest an MRI in 2014 and refusing to request an MRI of Plaintiff's entire back in 2016. Defendants' motion for summary judgment is DENIED with respect to: (1) Plaintiff's 1983 claim against Dr. Geraci for failing to provide medical tre atment between June 2014 and April 2016, and (2) Plaintiff's state law claim against Officer Koch for intentional infliction of emotional distress. The Clerk of the Court is directed to TERMINATE Nurse Webster, Warden Ewald, Deputy Sheriff Shapi ro, Deputy Sheriff Mehrman, and the County as defendants in this action. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. Given Plaintiff's pro se status, the Court certifies pursuan t to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. So Ordered by Judge Joanna Seybert on 1/31/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
STOKER OLUKOTUN WILLIAMS,
Plaintiff,

MEMORANDUM & ORDER
14-CV-5742(JS)(ARL)

-againstDR. VINCENT GERACI, CHARLES EWALD,
DEPUTY ALLEN SHAPIRO, MARION WEBSTER,
OFFICER ROBERT “BOB” KOCH, SUFFOLK
COUNTY, and DEPUTY DOUGLAS MEHRMAN,

Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Stoker Olukotun Williams, pro se
Inmate No. 16A5064
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, NY 12589
For Defendants:

Brian C. Mitchell, Esq.
Suffolk County Attorney
100 Veteran’s Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Currently pending before the Court is defendants Dr.
Vincent

Geraci

(“Dr.

Geraci”),

Warden

Charles

Ewald

(“Warden

Ewald”), Deputy Allen Shapiro (“Deputy Shapiro”), Marion Webster
(“Nurse Webster”), Officer Robert “Bob” Koch (“Officer Koch”),
Suffolk

County

(the

“County”),

and

Deputy

Douglas

Mehrman’s

(“Deputy Mehrman”) (collectively, “Defendants”) motion for summary
judgment.

(Defs.’ Mot., Docket Entry 127.)

For the following

reasons, Defendants’ Motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND
I.

Factual Background1
On September 8, 2013, Plaintiff was admitted to the

Suffolk

County

Correctional

Facility

Stmt., Docket Entry 112-1, ¶ 1.)

(“SCCF”).

(Defs.’

56.1

Defendants allege that Plaintiff

was periodically treated for a gunshot wound and a hand injury
during 2013 and did not complain about back pain.
Stmt. ¶¶ 1-2.)

(Defs.’ 56.1

Plaintiff alleges that he handed in at least two

medical “chits” per week from mid-September 2013 through midFebruary 2014, and he filed his first medical grievance on February
23, 2014.

(Pl.’s 56.1 Counterstmt., Docket Entry 112-2, ¶ 3.)

Plaintiff alleges that his medical chits were ignored.
56.1 Counterstmt. ¶ 4.)

(Pl.’s

However, it is undisputed that between

September 2013 and June 2014, Plaintiff played basketball two to

The following facts are drawn from Defendants’ Local Rule 56.1
Statement and Supplemental Rule 56.1 Statement, as well as
Plaintiff’s Local Rule 56.1 Counterstatement. Additionally,
facts are drawn from Plaintiffs’ “Response,” which the Court
construes as a Supplemental Rule 56.1 Counterstatement, as it
appears to correspond with the numbered paragraphs in
Defendants’ Supplemental Rule 56.1 Statement. (See Pl.’s Suppl.
56.1 Counterstmt., Docket Entry 131.) The Court notes that
Defendants did not request leave to file a Supplemental Rule
56.1 Statement. However, in light of Plaintiff’s amendment of
the Amended Complaint after the exchange of Rule 56.1
Statements, (see Sec. Am. Compl., Docket Entry 123), the parties
are granted leave to file supplemental Rule 56.1 Statements nunc
pro tunc. Any factual disputes are noted. All internal
quotation marks and citations have been omitted.
1

2

three times per week and was able to dunk the basketball.

(Defs.’

56.1 Stmt. ¶¶ 5-6.)
Defendants

allege

that

the

first

time

Plaintiff

complained of back pain was on February 26, 2014, when he was seen
at the Jail Medical Unit and reported a discharge from his nipple
and lower back pain.
that

Plaintiff’s

(Defs.’ 56.1 Stmt. ¶ 3.)
history

regarding

prior

Defendant alleges
back

pain

was

“inconsistent,” he did not have any “outward manifestations [of]
any pain or diminished range of motion,” and he was prescribed
ibuprofen and given physical therapy exercises to build neck and
back strength.

(Defs.’ 56.1 Stmt. ¶ 3.)

Plaintiff alleges that on April 2, 2014, he had a “writ
of habeas corpus hearing” in which he sought an MRI and orthopedic
evaluation.

(Pl.’s 56.1 Counterstmt. ¶ 4.)

On April 3, 2014,

Plaintiff was examined at the Jail Medical Unit.
Stmt. ¶ 4.)

(Defs.’ 56.1

Defendants allege that Plaintiff was “observed to be

in no apparent distress,” was prescribed Naprosyn because he
alleged that his prior medication was not working.
Stmt. ¶ 4.)

(Defs.’ 56.1

Plaintiff was also advised to use sports cream, take

hot showers, and continue lower back exercises. (Defs.’ 56.1 Stmt.
¶ 4.)
On June 18, 2014, Plaintiff was examined at the Jail
Medical Unit after he complained that he was injured while trying
to dunk a basketball.

(Defs.’ 56.1 Stmt. ¶ 7.)
3

Plaintiff alleges

that he fell and could not stand or straighten his back.
56.1 Counterstmt. ¶ 7.)

(Pl.’s

Defendants allege that while Plaintiff

did not demonstrate “apparent distress,” he was taken to Peconic
Bay Hospital for follow up treatment.

(Defs.’ 56.1 Stmt. ¶ 8.)

Plaintiff avers that medical notes documented that he was not able
to rise without assistance and displayed high blood pressure.
(Pl.’s 56.1 Counterstmt. ¶ 8.)

Defendants allege that on June 19,

2014, a corrections officer advised a nurse that Plaintiff “was
able to ambulate without any difficulty and no physical impairments
were noted.”

(Defs.’ 56.1 Stmt. ¶ 9.)

Plaintiff alleges that on

that date he was “walking hunched over.”

(Pl.’s 56.1 Counterstmt.

¶ 9.)
On June 20, 2014, Dr. Geraci saw Plaintiff and prescribed
a

muscle

relaxant

but

determined

that

necessary and instead prescribed a walker.
10.)

a

wheelchair

was

not

(Defs.’ 56.1 Stmt. ¶

Plaintiff alleges that Dr. Geraci stated that he would not

order an MRI because it was too expensive and told Plaintiff to
“man up” when he complained that the walker hurt his back.
56.1 Counterstmt. ¶ 10.)

(Pl.’s

However, Defendants allege that cost was

not a factor in determining Plaintiff’s medical treatment. (Defs.’
56.1 Stmt. ¶ 28.)

Defendants allege that observation reports

indicate that on June 24, 2014, Plaintiff was able to stand and
walk without mobility issues. (Defs.’ 56.1 Stmt. ¶ 11.) Plaintiff
alleges that records indicate he was “hunched over using a walker”
4

and used a walker and shower chair.

(Pl.’s 56.1 Counterstmt.

¶ 11.)
Progress

notes

dated

July

13,

2014,

indicate

that

Plaintiff did not display any mobility issues and was observed
going to the yard without his walker.

(Defs.’ 56.1 Stmt. ¶ 12.)

Plaintiff does not dispute that allegation and avers that he “felt
better.”

(Pl.’s 56.1 Counterstmt. ¶ 12.)

Plaintiff only used the

walker to travel to the medical unit and on July 13, 2014, his
walker was discontinued.

(Defs.’ 56.1 Stmt. ¶ 13.)

Plaintiff

concedes that he advised that he no longer needed the walker.
(Pl.’s 56.1 Counterstmt. ¶ 13.) Defendants allege that observation
reports were reviewed by the medical unit on four occasions between
November 14, 2014, and January 16, 2015, and “[o]n each occasion
the reports indicated that the [P]laintiff displayed no signs of
abnormal mobility issues.”

(Defs.’ 56.1 Stmt. ¶ 14.)

Plaintiff

alleges that he has spent twenty-three hours per day in his cell
since September 8, 2013, and typically walks three steps to a chair
or five steps to a shower.

(Pl.’s 56.1 Counterstmt. ¶ 14.)

On February 11, 2015, Plaintiff went to the medical unit
and complained that he was unable to walk through the tunnel to
court.

(Defs.’ 56.1 Stmt. ¶ 15.)

However, Defendants allege that

medical unit personnel observed Plaintiff walking in the hall
corridor without assistance.

(Defs.’ 56.1 Stmt. ¶ 15.)

Plaintiff

alleges that he told Nurse Webster that he had spinal stenosis,
5

sciatica, and herniated discs, but she did not permit him to use
a wheelchair.

(Pl.’s 56.1 Counterstmt. ¶ 15.)

The parties do not

dispute that Plaintiff was prescribed Amitriptyline; however, it
is disputed whether that medication is a muscle relaxant.

(Defs.’

56.1 Stmt. ¶ 15; Pl.’s 56.1 Counterstmt. ¶ 15.)
Defendants allege that Plaintiff remained on the medical
tier after he was seen on February 11, 2015, and observation
reports

indicate

that

he

(Defs.’ 56.1 Stmt. ¶ 16.)

did

not

display

mobility

problems.

Plaintiff alleges that he was not on

the medical tier, as he was precluded from certain housing areas
for security reasons. (Pl.’s 56.1 Counterstmt. ¶ 16.) Observation
reports for April 17, 2015, indicate that Plaintiff advised a
corrections

officer

that

he

“felt

“ambulate without difficulty.”

fine”

and

he

was

able

to

(Defs.’ 56.1 Stmt. ¶ 17.)

On May 27, 2015, Plaintiff refused to attend a physical
examination in connection with his criminal case and alleged that
he needed a wheelchair.

(Defs.’ 56.1 Stmt. ¶ 18.)

Defendants

allege that Dr. Geraci examined Plaintiff and determined that he
did not need a wheelchair.

(Defs.’ 56.1 Stmt. ¶ 18.)

Plaintiff

alleges that he had not seen Dr. Geraci since June 20, 2014.
(Pl.’s 56.1 Counterstmt. ¶ 18.)

However, pursuant to a request

from the District Attorney’s Office and the court, Dr. Geraci
approved a wheelchair for Plaintiff to use on that single occasion
“to

facilitate

the

interview.”
6

(Defs.’

56.1

Stmt.

¶

18.)

Defendants allege that observation reports reviewed by the medical
unit on June 23, 2015, indicated that Plaintiff did not have any
difficulty ambulating.

(Defs.’ 56.1 Stmt. ¶ 19.)

Plaintiff was seen by members of SCCF’s Mental Health
Unit on five occasions between July 7, 2015, and October 20, 2015,
and he did not complain about back pain.
Stmt., Docket Entry 127-3, ¶ 42.)

(Defs.’ Suppl. 56.1

Plaintiff alleges that he asked

“Jane and Joe” if they could order an MRI but was told “that is up
to Dr. Geraci.” (Pl.’s Suppl. 56.1 Counterstmt. ¶ 42.) Defendants
allege that on August 28, 2015, Plaintiff filed a written complaint
with the medical unit with respect to “alleged maltreatment by
officers,” but did not complain about his back or any pain.
(Defs.’ 56.1 Stmt. ¶ 44.)

Plaintiff alleges that he complained

about a lack of treatment.

(Pl.’s Suppl. 56.1 Counterstmt. ¶ 44.)

Defendants allege that on November 6, 2015, and November 7, 2015,
Plaintiff received a blood pressure check at the medical unit but
did not complain about his back or indicate that he was in pain.
(Defs.’ Suppl. 56.1 Stmt. ¶ 46.)

Defendants allege that Plaintiff

was seen by the SCCF Mental Health Unit on four occasions between
November 16, 2015, and March 29, 2016, and did not complain about
his back or indicate that he was in pain.
Stmt. ¶ 48.)

(Defs.’ Suppl. 56.1

Plaintiff alleges that he asked the mental health

staff for an MRI and pain medication and they stated that Dr.

7

Geraci was responsible for those determinations.

(Pl.’s Suppl.

56.1 Counterstmt. ¶ 48.)
On April 22, 2016, Dr. Geraci met with Plaintiff to
discuss a grievance in which he alleged that he was denied an MRI
based on cost.

(Defs.’ Suppl. 56.1 Stmt. ¶¶ 49, 52.)

Defendants

allege that Plaintiff appeared to be in “good spirits” and “was
not in any distress.” (Defs.’ Suppl. 56.1 Stmt. ¶ 52.) Defendants
allege that Plaintiff advised Dr. Geraci of his family history of
spinal stenosis and opined that he may have spinal stenosis;
however,

Plaintiff

also

indicated

that

basketball and walk to the law library.
¶¶ 53-54.)

he

continued

to

play

(Defs.’ 56.1 Suppl. Stmt.

Plaintiff appears to dispute that allegation by

alleging that he has not played basketball since June 2014 and
“the Law Library is less than 60 seconds away.”

(Pl.’s Suppl.

56.1 Counterstmt. ¶ 54.) Plaintiff complained of periodic “severe”
lower back pain with spasms and stated that he continued to take
Amitriptyline and Zyprexa, which helped him.
Stmt. ¶¶ 56, 58.)

(Defs.’ Suppl. 56.1

Although Dr. Geraci felt Plaintiff’s complaints

did not correspond with his physical abilities, he prescribed
Robaxin for muscle spasms, Tylenol as needed for back pain, and
requested an MRI of the lower spine to rule out stenosis.
Suppl. 56.1 Stmt. ¶ 59.)

(Defs.’

Plaintiff alleges that he requested an

MRI of his entire spine but Dr. Geraci indicated that he would
order an MRI of the lumbar spine and request an MRI for the
8

remainder of his spine at a later date.

(Pl.’s Suppl. 56.1

Counterstmt. ¶ 60.)
Plaintiff received an MRI of the lower back in May 2016,
which ruled out stenosis.

(Defs.’ Suppl. 56.1 Stmt. ¶ 62.)

Plaintiff alleges that stenosis in his lumbar spine was ruled out
but it is unclear if he suffers from stenosis in his thoratic or
cervical spine. (Pl.’s Suppl. 56.1 Counterstmt. ¶ 62.) Dr. Geraci
discussed the MRI results with Plaintiff and Plaintiff insisted he
receive a full MRI of his entire spine.
¶ 63.)

(Defs.’ Suppl. 56.1 Stmt.

Dr. Geraci declined, as a full MRI “was not medically

indicated.”

(Defs.’ Suppl. 56.1 Stmt. ¶ 63.)

Plaintiff alleges

that Dr. Geraci said he would order an MRI of the entire spine and
approve spinal surgery.

(Pl.’s 56.1 Suppl. Counterstmt. ¶ 63.)

Dr. Geraci scheduled a follow-up appointment with a neurosurgeon
to determine if Plaintiff needed surgery.
Stmt. ¶ 64.)

(Defs.’ Suppl. 56.1

Plaintiff was seen at Peconic Bay Medical Center on

July 20, 2016, where “it was recommended that the proper course of
care would be conservative therapy including physical therapy as
an appropriate modality of care.” (Defs.’ Suppl. 56.1 Stmt. ¶ 64.)
A.

Plaintiff’s Grievances
On March 22, 2015, Plaintiff filed a grievance regarding

a disciplinary infraction and included a claim that he had been
denied medical care and a wheelchair.

(Defs.’ 56.1 Stmt. ¶ 29.)

Plaintiff’s grievance was returned to him with an indication that
9

“the grievance concerned the disposition, surcharge or sanctions
of a disciplinary hearing and accordingly was not a grievable
issue.”

(Defs.’ 56.1 Stmt. ¶ 30.)

Plaintiff did not appeal the

determination of this grievance and alleges that “[i]t was not
possible to appeal it.”
Counterstmt. ¶ 32.)
a

grievance

(Defs.’ 56.1 Stmt. ¶ 32; Pl.’s 56.1

The parties dispute whether Plaintiff filed

“relating

specifically”

to

Dr.

Geraci’s

conduct.

(Defs.’ 56.1 Stmt. ¶ 33; Pl.’s 56.1 Counterstmt. ¶ 33.) Defendants
allege that even if Plaintiff filed a grievance that specifically
addressed Dr. Geraci’s conduct, he did not file an appeal. (Defs.’
56.1 Stmt. ¶ 34.)

Plaintiff alleges the determination “was not an

appealable issue.”

(Pl.’s 56.1 Counterstmt. ¶ 34.)

On August 17, 2015, Plaintiff filed a grievance against
Officer Koch.

(Defs.’ 56.1 Stmt. ¶ 35.)

Plaintiff alleges that

he previously filed multiple grievances against Officer Koch that
were accepted and then “lost.”

(Pl.’s 56.1 Counterstmt. ¶ 35.)

Plaintiff’s August 17, 2015, grievance was returned based on
untimeliness.

(Defs.’ 56.1 Stmt. ¶ 36.)

that determination.

Plaintiff did not appeal

(Defs.’ 56.1 Stmt. ¶ 37.)

On January 14, 2016, Plaintiff completed a grievance
alleging that he was denied an MRI based on cost.

In February

2016, Plaintiff’s grievance grievance was forwarded to the SCCF
medical unit.

(Defs.’ Suppl. 56.1 Stmt. ¶ 49.)

Defendants allege

that Plaintiff did not file grievances regarding conduct by Nurse
10

Webster or Warden Ewald.

(Defs.’ 56.1 Stmt. ¶ 38.)

Plaintiff

alleges that he filed a medical grievance that was returned to him
on February 11, 2015. (Pl.’s 56.1 Counterstmt. ¶ 38.) The parties
also dispute whether Plaintiff filed a grievance regarding “any
policy procedure or custom of the County of Suffolk that was the
cause of violation of his constitutional rights.”

(Defs.’ 56.1

Stmt. ¶ 40.)
B.

Warden Ewald
Defendants allege that Warden Ewald does not supervise

Dr. Geraci and “has never been personally involved in the medical
care or treatment of [Plaintiff].”
¶ 70.)

(Defs.’ Suppl. 56.1 Stmt.

Plaintiff alleges that he is in Warden Ewald’s “custody”

and he “sent [Warden Ewald] a certified letter requesting that he
step[ ] in.”
C.

(Pl.’s Suppl. 56.1 Counterstmt. ¶ 68.)

Deputy Sheriffs Shapiro and Mehrman
On June 18, 2014, Deputy Sheriffs Shapiro and Mehrman

transported

Plaintiff

from

SCCF

to

Peconic

Bay

Hospital

Riverhead, an approximately five to ten minute ride.
Suppl. 56.1 Stmt. ¶¶ 71-72.)

in

(Defs.’

Defendants allege that Deputy

Sheriffs Shapiro and Mehrman did not advise medical personnel at
Peconic Bay Hospital how to treat Plaintiff, nor did they suggest
that hospital personnel withhold treatment.
Stmt. ¶¶ 73-74.)

(Defs.’ Suppl. 56.1

However, Plaintiff alleges that Deputy Sheriffs

Shapiro and Mehrman told him that he did not “deserve to see a
11

specialist

and

they

are

not

waiting

for

[him]

to

see

the

orthopedist,” and had guns, screamed at him, and intimidated him.
(Pl.’s Suppl. 56.1 Counterstmt. ¶¶ 73-74, 16.)

Defendants allege

that Deputy Sheriffs Shapiro and Mehrman did not force Plaintiff
to leave prior to receiving treatment.

(Defs.’ Suppl. 56.1 Stmt.

¶¶ 75-76.)
II.

The Instant Action
On September 26, 2014, Plaintiff commenced this action

asserting claims for deliberate indifference to medical needs
pursuant to 42 U.S.C. Section 1983 (“Section 1983”).

On April 16,

2015, Plaintiff filed a motion to amend the Complaint.
Entry 23.)

(Docket

On May 11, 2015, Magistrate Judge Arlene R. Lindsay

granted Plaintiff’s unopposed motion (see May 11, 2015 Electronic
Order) and Plaintiff subsequently filed his Amended Complaint on
the docket (See Am. Compl., Docket Entry 44).

Plaintiff’s Amended

Complaint added, inter alia, a claim against Officer Koch for
intentional infliction of emotional distress and a state law
medical negligence claim.

(Am. Compl. at 8, 32.)

Particularly,

the Amended Complaint alleges that Officer Koch told Plaintiff he
wanted to “execute [him] with his pistol,” wrote down addresses of
his visitors, refused to contact the medical staff when Plaintiff
was having chest pains, and told Plaintiff “I don’t care if you
die.”

(Am. Compl. at 24.)

12

On September 16, 2015, Plaintiff filed a motion for leave
to amend his Amended Complaint.

(Docket Entry 60.)

On May 5,

2016, Judge Lindsay granted in part and denied in part Plaintiff’s
motion to amend.

(May 6, 2016 Order, Docket Entry 114.)

Judge

Lindsay granted Plaintiff’s motion to the extent he sought to add
Shapiro and Mehrman as defendants and add Nurse Webster to the
caption in place of “Jane Doe Nurse.”
4.)

(May 2016 Order at 1 n.1;

Judge Lindsay denied Plaintiff’s request to add an Assistant

County Attorney as a defendant as well as his request to assert a
claim for “medical negligence.” (Order at 4-7.) On June 28, 2016,
Plaintiff filed his Second Amended Complaint (the “Second Amended
Complaint”).2
III.

(Sec. Am. Compl., Docket Entry 123.)3

Defendants’ Motion
On August 26, 2016, Defendants filed their motion for

summary judgment.

(Defs.’ Mot., Docket Entry 127.)

Defendants

argue that Plaintiff cannot establish that he received inadequate
medical care or that SCCF medical personnel “act[ed] with the
requisite culpable state of mind[.]”

(Defs.’ Br., Docket Entry

On June 29, 2016, Defendants filed a partial motion to dismiss
the Second Amended Complaint with respect to Plaintiff’s
inclusion of claims against additional defendants. (See Docket
Entry 122.) On January 10, 2017, this Court granted Defendants’
motion. (See Docket Entry 142.)
2

The Court will utilize the Electronic Case Filing pagination
when citing to the Second Amended Complaint.
3

13

127-5, at 9.)

Alternatively, Defendants argue that they are

entitled to qualified immunity.

(Defs.’ Br. at 19-20.)

Additionally, Defendants aver that Plaintiff’s claim
that Deputy Sheriffs Shapiro and Mehrman were abusive and prevented
him from seeing a specialist at Peconic Bay Hospital is undercut
by record evidence indicating that Plaintiff was at the hospital
for over five hours, and was fully examined and prescribed a pain
reliever.

(Defs.’ Br. at 15.)

Defendants argue that the record

does not support Plaintiff’s allegation that Officer Koch refused
to send him to the medical unit when he was experiencing chest
pains on June 25, 2014; Officer Koch’s alleged verbal abuse is not
an actionable constitutional violation; and Plaintiff failed to
exhaust

his

administrative

alleged conduct.

remedies

regarding

(Defs.’ Br. at 16-19.)

Officer

Koch’s

Defendants allege that

Plaintiff’s claims against Warden Ewald should be dismissed based
on

his

lack

treatment.

of

personal

involvement

(Defs.’ Br. at 20-22.)

in

Plaintiff’s

medical

Finally, Defendants argue that

Plaintiff has failed to establish that a policy or custom caused
Defendants’ alleged constitutional violations such as to warrant
the imposition of municipal liability.

(Defs.’ Br. at 22-23.)

As addressed above, the Court construes Plaintiff’s “response” to
Defendants’ motion, as a Supplemental Rule 56.1 Counterstatement.
(See Docket Entry 131.)

Plaintiff has also proffered a memorandum

detailing a list of cases he argues demonstrate that his “spinal
14

condition

is

serious”

and

“Dr.

Geraci

met

the

standard

for

deliberate indifference,” (Pl.’s Br., Docket Entry 131-1), as well
as an exhibit list and exhibits, (see Docket Entries 131-2, 1314, 131-5).
DISCUSSION
Summary

judgment

will

be

granted

where

the

movant

demonstrates 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).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 91 L. Ed 2d 202 (1986).

In determining

whether an award of summary judgment is appropriate, the Court
considers

the

pleadings,

deposition

testimony,

interrogatory

responses, and admissions on file, together with other firsthand
information that includes but is not limited to affidavits.

Nnebe

v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
15

omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

However, in reviewing the summary judgment

record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”

Sheet Metal Workers’

Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
On

a

motion

for

summary

judgment,

the

Court

must

liberally construe a pro se litigant’s complaint and “read a pro
se litigant’s supporting papers liberally, interpreting them to
raise the strongest arguments that they suggest.”

Adeyi v. U.S.,

No. 06-CV-3842, 2010 WL 520544, at *3 (E.D.N.Y. Feb. 8, 2010)
(internal quotation marks and citation omitted).

Nevertheless, a

litigant’s pro se status does not excuse him from the general
requirements

of

summary

judgment

and

“bald

assertion[s]

unsupported by evidence” will not suffice to overcome summary
judgment.
I.

Id. (internal quotation marks and citation omitted).

Federal Claims
“The Eighth Amendment protects incarcerated prisoners

from cruel and unusual punishment, while the Due Process Clause of
the

Fourteenth

Amendment

protects

inadequate medical care by the state.”

pretrial

detainees

from

Flemming v. City of N.Y.,

No. 03-CV-0662, 2006 WL 2853872, at *2 n.2 (E.D.N.Y. Sept. 29,
16

2006).

Nevertheless, the Court utilizes the same standard when

analyzing

deliberate

Fourteenth Amendments.

indifferent
Id.

claims

under

the

Eighth

and

To establish deliberate indifference

to medical needs, the plaintiff must demonstrate the following
subjective and objective components: (1) “the alleged deprivation
must be, in objective terms, sufficiently serious,” and (2) “the
defendant must act with a sufficiently culpable state of mind.”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal
quotation marks and citations omitted).
With respect to the objective prong, the Court examines:
“(1) whether the prisoner was actually deprived of adequate medical
care,

and

(2)

whether

sufficiently serious.”

the

inadequacy

in

medical

care

is

Cruz v. Corizon Health Inc., No. 13-CV-

2563, 2016 WL 4535040, at *5 (S.D.N.Y. Aug. 29, 2016) (internal
quotation marks and citations omitted).

The Second Circuit has

held that “a serious medical need exists where the failure to treat
a prisoner’s condition could result in further significant injury
or the unnecessary and wanton infliction of pain.”

Smith v.

Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) (internal quotation
marks and citations omitted).

Additionally, the Court considers

factors including: “(1) whether a reasonable doctor or patient
would perceive the medical need in question as important and worthy
of

comment

or

treatment,

(2)

whether

the

medical

condition

significantly affects daily activities, and (3) the existence of
17

chronic and substantial pain.”

Goodwin v. Kennedy, No. 13-CV-

1774, 2015 WL 1040663, at *11 (E.D.N.Y. Mar. 10, 2015) (internal
quotation marks and citations omitted).
Where the alleged inadequacy relates to the medical
treatment provided, the Court employs a narrower inquiry into the
seriousness of the plaintiff’s deprivation and “‘[if] the prisoner
is receiving on-going treatment and the offending conduct is an
unreasonable

delay

seriousness

inquiry

or

interruption

focuses

on

in

the

that

treatment,

challenged

delay

the
or

interruption in treatment rather than the prisoner’s underlying
medical condition alone.’”

Cruz, 2016 WL 4535040, at *4 (quoting

Goris v. Breslin, 402 F. App’x 582, 584-85 (2d Cir. 2010)).
However, it is well-settled that “‘mere disagreement’” regarding
the

appropriate

treatment

does

not

form

the

basis

for

a

constitutional claim, and “‘[s]o long as the treatment given is
adequate, the fact that a prisoner might prefer a different
treatment does not give rise to an Eighth Amendment violation.’”
Funderburke v. Canfield, No. 13-CV-6128, 2016 WL 831974, at *7
(W.D.N.Y. Feb. 29, 2016) (quoting Chance, 143 F.3d at 704).
With respect to the subjective prong, “a plaintiff must
allege that the defendant knew of and disregarded an excessive
risk to [the detainee’s] health or safety and that [the defendant]
was both aware of the facts from which the inference could be drawn
that

a

substantial

risk

of

harm
18

existed,

and

also

drew

the

inference.”

Black v. Petitinato, No. 16-CV-3941, 2016 WL 3983590,

at *3 (E.D.N.Y. Jul. 25, 2016) (internal quotation marks and
citations

omitted;

alterations

in

original).

While

“[m]ere

negligence” does not support an Eighth Amendment claim, where
“prison officials consciously delay or otherwise fail to treat an
inmate’s serious medical condition ‘as punishment or for other
invalid reasons,’ [ ] such conduct is actionable as deliberate
indifference.”

Rodriguez

v.

Smith,

No.

10-CV-0734,

2011

WL

4479689, at *7 (N.D.N.Y. Aug. 19, 2011), report and recommendation
adopted, 2011 WL 4424357 (N.D.N.Y. Sept. 21, 2011), (quoting
Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir. 2000)).
Preliminarily,

to

the

extent

the

Second

Amended

Complaint can be construed as asserting a claim for deliberate
indifference

based

on

Defendants’

failure

to

respond

to

Plaintiff’s medical “chits” regarding back and neck pain between
September 2013 and February 23, 2014, (see Sec. Am. Compl. at 11),
that claim fails.

The Court is mindful that “severe back pain may

qualify as a serious medical need.”

Flemming v. City of N.Y.,

No. 03-CV-0662, 2009 WL 3174060, at *8 (E.D.N.Y. Sept. 30, 2009)
(“Flemming II”) (internal quotation marks and citation omitted).
However,

putting

aside

Plaintiff’s

failure

to

indicate

which

particular defendants or other SCCF employees allegedly ignored
his

medical

objectively

requests,
serious

the

notion

medical

that

Plaintiff

deprivation
19

is

suffered

belied

by

an
the

undisputed fact that he played basketball two to three times per
week between September 2013 and June 2014, and was able to dunk
the basketball. (Defs.’ 56.1 Stmt. ¶¶ 5-6; Pl.’s 56.1 Counterstmt.
¶¶ 5-6.)
A.

Dr. Geraci
The

Court

liberally

construes

the

Second

Amended

Complaint to assert that Dr. Geraci was deliberately indifferent
to Plaintiff’s medical needs by: (1) failing to request an MRI
after Plaintiff injured his back in June 2014, (Sec. Am. Compl. at
18-19); (2) ignoring medical “chits” between June 20, 2014, and
April 22, 2016, (Sec. Am. Compl. at 20-21, 29); (3) refusing to
request an MRI of Plaintiff’s entire spine in April 2016, (Sec.
Am. Compl. at 30).
The Court finds that Plaintiff was not deprived of
adequate medical care based on Dr. Geraci’s failure to request an
MRI in 2014 and failure to request an MRI of Plaintiff’s entire
spine in 2016.

“Whether an MRI should have been done is a classic

example of a matter for medical judgment as to the appropriate
course

of

Amendment.”

treatment

and

Flemming

is

II,

not
2009

actionable
WL

3174060,

under
at

*3

the

Eighth

(internal

quotation marks and citation omitted; alteration in original).
See also Wright v. Genovese, 694 F. Supp. 2d 137, 155 (N.D.N.Y.
2010), aff’d, 415 F. App’x 313 (2d Cir. 2011) (“[d]isagreements
over medications, diagnostic techniques, forms of treatment, the
20

need

for

specialists,

and

the

timing

of

their

intervention

implicate medical judgments, not the Eighth Amendment”).

When

Plaintiff was injured playing basketball on June 18, 2014, he
received an x-ray of his back at Peconic Bay Hospital and was
administered Percocet and Toradol.4
127-6, at 64.)

(Defs.’ Ex. A, Docket Entry

Dr. Geraci examined Plaintiff two days later on

June 20, 2014, and prescribed Robaxin, a muscle relaxer.
Ex. A at 38.)

(Defs.’

While Dr. Geraci determined that a wheelchair was

not necessary, Plaintiff was issued a walker that same day.
(Defs.’ Ex. A at 116.) Plaintiff’s position that Dr. Geraci should
have requested an MRI based on his prior history of back pain
and/or acute injury constitutes a disagreement over treatment, not
a constitutional violation.
The Court is mindful of Plaintiff’s allegation that Dr.
Geraci stated that he “[does not] like to order MRIs all willy
nilly because they are expensive.” (Sec. Am. Compl. at 19.) While
the allegation that a medical professional made a medical decision
based on monetary incentives can demonstrate a culpable state of
mind, Chance, 143 F.3d at 704, here, the record does not indicate
that an MRI was medically required.

See Shepherd v. Powers,

Toradol, a brand name for the drug Ketorolac, is a type of
NSAID that “is used for the short-term relief of moderately
severe pain[.]” Ketorolac, MEDLINE PLUS, https://www.nlm.nih.gov/
medlineplus/druginfo/meds/a693001.html (last visited January 23,
2017).
4

21

No. 11-CV-6860, 2012 WL 4477241, at *6 (S.D.N.Y. Sept. 27, 2012)
(dismissing the plaintiff’s deliberate indifference claim where he
alleged that he was denied an MRI based on expense but failed to
plead “any facts in support of his claim that treatment by a
specialist or an M.R.I. was medically necessary”).

Moreover, the

notion that Dr. Geraci did not order an MRI in June 2014 based on
financial concerns is undercut by the fact that in 2016, Dr. Geraci
requested

an

consultation,

MRI,
and

referred
approved

Plaintiff
Plaintiff

for

for

a

neurosurgeon

physical

therapy.

(Defs.’ Ex. G, Docket Entry, 127-13, at 41-43, 127-28.)
Similarly, Dr. Geraci’s decision to request an MRI of
Plaintiff’s lower back, rather than his entire back, relates to a
medical judgment and does not establish that he failed to provide
adequate medical care.

Dr. Geraci saw Plaintiff and noted that

his complaints of low back pain did not correlate with his physical
abilities; nevertheless, he prescribed Robaxin and Tylenol and
requested an MRI of the lower spine to rule out stenosis.
Ex. G at 25-26, 34.)

(Defs.’

Again, Dr. Geraci’s determination that an

MRI of the entire spine was not appropriate constitutes a medical
judgment, not a constitutional violation.
Conversely, the Court finds that Plaintiff has raised
triable issues of fact regarding Dr. Geraci’s alleged failure to
provide medical treatment between June or July 2014 and April 2016.
When Plaintiff ultimately received an MRI of his lower back in
22

June 2016, it revealed spinal lipomatosis in the lumbar region.5
(Defs.’ Ex. G at 34, 129.)

Thereafter, Plaintiff consulted with

a neurosurgeon, who recommended physical therapy.
at 128.)

(Defs.’ Ex. G

Plaintiff’s allegations of chronic pain combined with

his positive diagnosis of spinal lipomatosis raises issues of fact
as to whether he was suffered an objectively serious deprivation
of adequate medical care.

See Goodwin, 2015 WL 1040663, at *11

(noting that the “existence of chronic and substantial pain” is a
factor in evaluating the seriousness of the plaintiff’s medical
need) (internal quotation marks and citations omitted).
Defendants

argue

that

during

2014

through

2016,

Plaintiff failed to complain of any back pain during his mental
health evaluations and observation reports indicated that “he had
no problem ambulating about his cell area or going to the yard.”
(Defs.’ Br. at 10-11.)

The Court is mindful both that “the fact

that no reasonable doctor perceived [p]laintiff’s [injury] as
important and worthy of comment or treatment weighs against a
finding that this injury was sufficiently serious,” Goodwin, 2015
WL 1040663, at *13 (internal quotation marks and citation omitted),
and that Dr. Geraci has asserted that “[i]n [his] experience at

“Spinal epidural lipomatosis consists of the overgrowth of
epidural adipose tissue in the spinal canal causing spinal cord
or nerve root compression.” Skubisz v. Colvin, No. 12-C-10320,
2014 WL 4783851, at *3 n.7 (N.D. Ill. Sept. 24, 2014) (internal
quotation marks and citation omitted).
5

23

the jail, if an inmate expresses any acute distress regarding a
physical ailment to the mental health unit, it will be noted in
the record and the inmate will be referred to the medical unit,”
(Geraci Aff., Defs. Ex. H, Docket Entry 127-14, ¶ 22.)

However,

Plaintiff alleges that he “asked mental health for a MRI and pain
med[ication].

They said that is up to Dr. Geraci,” and that his

mental health evaluations lasted “less than 60 seconds.”
Suppl. 56.1 Counterstmt. ¶ 48.)
observation

reports

state

that

(Pl.’s

Moreover, while the relevant
Plaintiff

went

to

recreation,

visits, and the law library, (see generally Defs.’ Exs. C-1 and C2, Docket Entries 127-8, 127-9), Plaintiff asserts that he has
been on twenty-three hour lock down since September 2013 and he
typically walks three steps to a chair and five steps to a shower.
(Pl.’s 56.1 Counterstmt. ¶ 14.)
Additionally, Plaintiff has raised issues of fact as to
whether Dr. Geraci acted with a sufficiently culpable state of
mind.

As previously noted, Plaintiff alleges that he filed

numerous medical chits during 2014 through 2016 that were summarily
ignored.

(See Pl.’s Suppl. 56.1 Counterstmt. ¶ 50 (“my complaints

of pain went unanswered from 7-18-14 to 4-22-2016”).)

While there

is no documentary evidence regarding these alleged chits, it is
undisputed that on November 15, 2015, Plaintiff wrote a note to
Dr. Geraci alleging that Dr. Geraci failed to order an MRI due to
cost

concerns

and

requesting

that
24

Dr.

Geraci

order

an

MRI,

orthopedic sneakers, and physical therapy, (Defs.’ Ex. G at 10.)
Plaintiff also filed a grievance in January 2016 alleging that he
was denied an MRI based on cost, which was forwarded to the SCCF
medical unit in February 2016.

(Defs.’ Suppl. 56.1 Stmt. ¶ 49.)

Nevertheless, Plaintiff was not seen by Dr. Geraci--or any other
member of the medical unit--until April 22, 2016.

(See Defs.’ Ex.

G at 25.)
Defendants argue that Plaintiff’s November 2015 note
“did not indicate that the [P]laintiff was in any acute distress
but was rather a repeat of his prior complaints,” and Dr. Geraci
intended to meet with Plaintiff to “explain[ ] the treatment the
[P]laintiff was receiving.”

(Defs.’ Br. at 12.)

is not included in the record.
reflect

that

Plaintiff

did

Plaintiff’s note

While Dr. Geraci’s medical notes

not

expressly

state

that

he

was

suffering from back pain, a reasonable juror could conclude that
Plaintiff’s request for an MRI, orthopedic sneakers, and physical
therapy, sufficed to make Dr. Geraci aware that Plaintiff was
continuing to complain of back pain.

(See Defs.’ Ex. G at 11-12.)

Indeed, Dr. Geraci’s medical note dated November 6, 2015, indicates
that he intended to see Plaintiff the following week, (Defs.’ Ex.
G at 25); however, as noted, Dr. Geraci did not see Plaintiff until
approximately five months later.

Thus, a reasonable juror could

conclude that Dr. Geraci knew of and disregarded an excessive risk
to Plaintiff’s safety.
25

Accordingly, Defendants’ motion for summary judgment is
GRANTED with respect to Plaintiff’s claims regarding Dr. Geraci’s
refusal to request an MRI in June 2014 and an MRI of Plaintiff’s
entire back in April 2016 and DENIED with respect to Plaintiff’s
claim regarding Dr. Geraci’s failure to provide medical treatment
between June 2014 and April 2016.
B.

Nurse Webster
The Second Amended Complaint alleges that Nurse Webster

refused to provide Plaintiff with a wheelchair on February 11,
2015.

(Sec. Am. Compl. at 27-28.)

Putting aside the question of

whether Plaintiff suffered an objectively serious deprivation,
Plaintiff has not demonstrated that Nurse Webster knew of and
disregarded an excessive risk to his health.
indicate

that

on

February

11,

2015,

Medical records

Plaintiff

complained

to

correction officers that he was unable to walk through the jail
tunnel

to

Plaintiff

court;
was

however,

observed

these

ambulating

difficulty.

(Defs.’ Ex. A at 48.)

not

that

dispute

he

no

discontinued in July 2014.
56.1 Stmt. ¶ 13.)

records

longer

also

without

indicate
assistance

that
or

Additionally, Plaintiff does

needed

a

walker

when

it

was

(Pl.’s 56.1 Counterstmt. ¶ 13; Defs.’

Accordingly, Defendants’ motion for summary

judgment is GRANTED as to Plaintiff’s claim against Nurse Webster
in the absence of any evidence that she was aware of “facts from
which the inference could be drawn that a substantial risk of harm
26

existed, and also drew the inference.”

Black, 2016 WL 3983590, at

*3 (internal quotation marks and citations omitted).
C.

Warden Ewald
The Court construes Plaintiff’s claim against Warden

Ewald as a supervisory liability claim.

(See Sec. Am. Compl. at

24; Pl.’s Suppl. 56.1 Counterstmt. ¶ 68 (“I am in [Warden Ewald’s]
custody.
in”).)

I sent him a certified letter requesting that he steps
Defendants argue that Plaintiff has failed to demonstrate

Warden Ewald’s direct participation in constitutional violations.
(Defs.’ Reply Br., Docket Entry 133, at 7.)

The Court agrees.

The plaintiff must demonstrate that the defendant was
personally involved in constitutional violations to establish
supervisory liability pursuant to Section 1983.

Melvin v. Cty. of

Westchester, No. 14-CV-2995, 2016 WL 1254394, at *17 (S.D.N.Y.
Mar. 29, 2016).

However, a supervisory official may be liable for

a constitutional violation if he “participated directly in the
alleged constitutional violation” or “created a policy or custom
under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom.”

Colon v. Coughlin, 58

F.3d 865, 873 (2d Cir. 1995).6

The question of whether the three additional bases for
supervisory liability set forth in Colon have survived the
Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009), has “engendered conflict”
within the Second Circuit. Stancati v. Cty. of Nassau, No. 14CV-2694, 2015 WL 1529859, at *3 n.4 (E.D.N.Y. Mar. 31, 2015).
6

27

The Second Amended Complaint’s sole allegation regarding
Warden Ewald is that in September 2014, Plaintiff’s father sent
Warden Ewald a letter requesting that he “intervene.”7
Compl.

at

(alleging

24;
that

see

also

Plaintiff

Pl.’s
is

Suppl.

in

56.1

Warden

(Sec. Am.

Counterstmt.

Ewald’s

¶

“custody”

68
and

Plaintiff “sent him a certified letter requesting that he step[ ]
in”).)

While

district

courts

in

this

Circuit

have

reached

different results as to whether a prison official’s receipt of a
grievance

letter

demonstrates

personal

involvement,

here,

Plaintiff’s bare allegation that his father sent Warden Ewald a
vague request to “step[ ] in” does not suffice.

Donohue v.

Manetti, No. 15-CV-0636, 2016 WL 740439, at *4 (E.D.N.Y. Feb. 24,
2016) (collecting cases).

See e.g., McFadden v. Friedman, No. 12-

CV-0685, 2015 WL 5603433, at *19 (N.D.N.Y. Sept. 23, 2015) (“where
an inmate alleges that he sent a letter to a prison official, and
the prison official failed to investigate allegations of staff

See also Iqbal, 556 U.S. at 676, 129 S. Ct. at 1948 (“[b]ecause
vicarious liability is inapplicable . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution”). This Court previously held that “only personal
involvement and a custom or practice survive as viable bases for
supervisory liability.” Stancati, 2015 WL 1529859, at *3, n.4.
In the absence of additional guidance from the Supreme Court or
Second Circuit, this Court sees no reason to deviate from its
prior holding.
It is unclear whether this letter was authored by Plaintiff or
his father.
7

28

misconduct, the inmate must show more than merely reciting the
fact that they sent a letter”).
establish

Warden

Ewald’s

Thus, Plaintiff has failed to

direct

participation

in

any

constitutional violations.
Parenthetically, while Plaintiff alleges the existence
of a municipal policy, he has not alleged that Warden Ewald created
or permitted the continuance of any custom or policy that resulted
in constitutional violations.

Accordingly, Defendants’ motion for

summary judgment is GRANTED as to Plaintiff’s claims against Warden
Ewald.
D.

Deputy Sheriffs Shapiro and Mehrman
Plaintiff’s claim against Deputy Sheriffs Shapiro and

Mehrman is based on their alleged refusal to permit him to see an
Orthopedist at Peconic Bay Medical Center (“Peconic Bay”).
Am. Compl. at 15-16, 37.)

(Sec.

However, Plaintiff has not demonstrated

that a referral to see an Orthopedist was medically necessary.
Hospital records indicate that an x-ray of Plaintiff’s back was
performed, and he was examined by a physician and diagnosed with
a back contusion.8
administered

(Defs.’ Ex. A at 64-65.)

Percocet

and

Torodol

(Defs.’ Ex. A at 66, 68-69.)

and

Plaintiff was

prescribed

Ibuprofen.

Notably, the Peconic Bay medical

Plaintiff’s discharge instructions indicate that a back
contusion is a “bruise with swelling and some bleeding under the
skin. There are no broken bones. This injury takes a few days
to a few weeks to heal.” (Defs.’ Ex. A at 67.)
8

29

records do not reference any referral to an Orthopedist, nor do
they indicate that examination by an Orthopedist was medically
necessary.

Cf. Ventura v. Sinha, 379 F. App’x 1, 2 (2d Cir. 2010)

(affirming summary judgment on the deliberate indifference claim
regarding the defendant’s failure to provide a referral to an
orthopedist where the medical examination did not reveal any
injuries, diagnostic tests and X-rays did not reveal remarkable
results,

and

the

plaintiff

“responded

positively”

to

the

that

the

prescribed treatment).
Moreover,
emergency

room

discharged.

Peconic

physician

Bay

records

determined

that

indicate
Plaintiff

should

be

(Defs.’ Ex. A at 65 (circling “discharge” next to

disposition).)

Plaintiff has failed to raise any triable issues

as to whether he suffered an objectively serious deprivation of
medical care in the absence of any evidence that an orthopedic
consultation

was

judgment

GRANTED

is

medically
as

to

necessary.
Plaintiff’s

Accordingly,
claims

against

summary
Deputy

Sheriffs Shapiro and Mehrman.
E.

Officer Koch
Plaintiff’s claims against Officer Koch are based on two

sets of allegations: (1) On June 25, 2014, Plaintiff told Officer
Koch that he “felt extreme chest pains” and Officer Koch refused
to request medical care, and (2) Officer Koch made a series of
verbally abusive and/or threatening statements.
30

“[C]hest
sufficiently

pains

serious

alone

generally
condition

medical

deliberate indifference claim.”

do
for

not

constitute

purposes

of

a
a

Melvin, 2016 WL 1254394, at *5.

Plaintiff has not alleged that he advised Officer Koch that he was
experiencing additional symptoms and, indeed, appears to assert
that his chest pains were the result of heartburn.
Counterstmt. ¶ 20.)
that

Officer

Koch

(Pl.’s 56.1

Thus, Plaintiff has failed to demonstrate
disregarded

an

objectively

serious

medical

alleged

verbal

issue.
With

respect

to

Officer

Koch’s

harassment, even if the Court liberally construes the Second
Amended

Complaint

as

asserting

a

claim

for

First

retaliation against Officer Koch, that claim fails.

Amendment

(See Sec. Am.

Compl. at 26 (“I put in a grievance on [Officer Koch] the week
prior.

So he was seeking revenge”).)
To establish a claim for retaliation in contravention of

the First Amendment, the plaintiff must demonstrate “(1) protected
speech or conduct, (2) adverse action by defendant, and (3) a
causal connection between the protected speech and the adverse
action.”
Putting

Bilal v. White, 494 F. App’x 143, 146 (2d Cir. 2012).
aside

Defendants’

argument

regarding

exhaustion,

the

parties do not dispute that Plaintiff filed a grievance against
Officer Koch, (Defs.’ 56.1 Stmt. ¶ 35); thus, Plaintiff engaged in
protected activity.

Even assuming, arguendo, that Officer Koch’s
31

alleged threats and verbal abuse constitute adverse action, the
record

does

not

establish

a

causal

connection

statements and Plaintiff’s protected activity.
alleged

statements--while

Plaintiff’s

grievance

or

reprehensible--do
otherwise

relate to Plaintiff’s grievance.

indicate

between

those

Officer Koch’s
not

that

reference
his

threats

(See Sec. Am. Compl. at 25, 34-

36.) Plaintiff’s assertion that Officer Koch was “seeking revenge”
for his grievance does not suffice to establish such a connection.
Accordingly, Defendants’ motion for summary judgment is GRANTED as
to Plaintiff’s Section 1983 claims against Officer Koch.
F.

The County
Pursuant to Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978),
a municipality is not subject to Section 1983 liability on a theory
of

respondeat

Municipal

superior.

liability

only

Melvin,

2016

attaches

where

WL

1254394,

“‘action

at

*11.

pursuant

to

official municipal policy of some nature caused a constitutional
tort.’”

Id. (quoting Monell, 436 U.S. at 691).
One means of establishing the existence of a municipal

policy or custom is to allege “a practice so consistent and
widespread that, although not expressly authorized, constitutes a
custom or usage of which a supervising policy-maker must have been
aware.”

Donohue, 2016 WL 740439, at *5 (internal quotation marks

and citation omitted).

To succeed on this theory, the plaintiff
32

must demonstrate that the alleged municipal policy is “permanent
and well-settled.”

Id.

However, “[n]ormally, a single incidence

of unconstitutional conduct is insufficient to establish municipal
liability, unless there is proof that the incident was caused by
an

existing,

unconstitutional

municipal

policy

that

can

be

attributed to the municipal policymaker.” Hensel v. City of Utica,
No. 15-CV-0374, 2016 WL 1069673, at *10 (N.D.N.Y. Mar. 16, 2016).
Plaintiff cites a federal lawsuit in which the plaintiff
alleged that SCCF provides “shoddy” care, fails to treat serious
injuries, and “medical staff ‘alter’ inmates’ medical records and
it[’]s a common practice.”

(Pl.’s 56.1 Counterstmt. ¶ 41.)

In

support, Plaintiff annexes a copy of the Memorandum and Order
determining the defendants’ motion for summary judgment in Dillon
v. Suffolk Cty. Dep’t of Health Servs., 917 F. Supp. 2d 196
(E.D.N.Y. 2013) (the “Dillon Action”), and a newspaper article
regarding the trial in that matter.

(Pl.’s Ex. 4, Docket Entry

131-4, at 6-22.)
Putting aside potential hearsay issues, (see Defs.’
Reply Br. at 9), the Court finds that the existence of the Dillon
Lawsuit does not establish a municipal custom or policy.

The

Dillon Action was filed by a former SCCF physician who asserted a
First

Amendment

retaliation

claim

and

a

New

York

State

whistleblower statute claim against the County, Dr. Geraci, and
the County Commissioner of Health Services regarding events that
33

took place during 2007 and 2008.
Supp. 2d at 200-203.

See generally Dillon, 917 F.

First, the allegations in the Dillon Action-

-which were asserted in the context of a federal lawsuit and
disputed by the defendants in that matter--do not establish that
SCCF’s alleged inadequate medical treatment is a “consistent and
widespread” practice.

Second, the allegations set forth in the

Dillon Action relate to purported incidents that occurred during
2007 and 2008 and, thus, predate both Plaintiff’s admission to
SCCF in 2013 and the alleged inadequate medical treatment that
took place from 2013 onward.

Accordingly, Defendants’ motion for

summary judgment is GRANTED with respect to Plaintiff’s Monell
claim against the County.
G.

Qualified Immunity
A

individual

government
capacity

is

official

named

entitled

to

as

a

defendant

qualified

in

immunity

his

where:

(1) federal law does not prohibit the defendant’s conduct; or
(2) if the defendant’s conduct was prohibited, “the plaintiff’s
right not to be subjected to such conduct by the defendant was not
clearly

established

at

the

time

it

occurred”;

or

(3)

the

defendant’s conduct was objectively legally reasonable based on
the clearly established law at the time the actions were taken.
Manganiello v. City of N.Y., 612 F.3d 149, 164 (2d Cir. 2010)
(citations

omitted).

The

party

seeking

the

application

of

qualified immunity bears the burden of establishing that “it was
34

objectively reasonable for [him] to believe that [his] actions did
not violate a clearly established right and that [he] is entitled
to qualified immunity.”

Vasquez-Mentado v. Buitron, 995 F. Supp.

2d 93, 102-103 (N.D.N.Y. Jan. 29, 2014).
Defendants

argue

that

Dr.

Geraci

is

entitled

to

qualified immunity and aver that his conduct did not violate
clearly established law and was not objectively unreasonable.
(Defs.’ Br. at 19-20.) However, to the extent the previously noted
disputes of fact regarding Plaintiff’s deliberate indifference
claim are resolved in his favor, Dr. Geraci would not be entitled
to the defense of qualified immunity, as it was objectively
unreasonable for Dr. Geraci to believe that his failure to provide
any medical treatment regarding Plaintiff’s back pain for nearly
two years was reasonable.

See Soto v. Rezkella, No. 04-CV-1126,

2007 WL 2161791, at *3 (S.D.N.Y. Jul. 26, 2007) (“[a] prisoner’s
constitutional right under the Eighth Amendment to be free from
deliberate indifference to their serious medical need is clearly
established, and would be well known by any reasonable prison
doctor”).

The Court need not determine whether Dr. Geraci’s

individual co-defendants are entitled to qualified immunity in
light of its dismissal of Plaintiff’s Section 1983 claims against
them.

35

II.

State Law Claim
The history of Plaintiff’s amendments to the Complaint

is relevant to the Court’s determination of the nature of his state
law claims.

Briefly, on April 16, 2015, Plaintiff filed a motion

seeking to amend the complaint to “add a supplemental jurisdiction
state medical negligence claim under 28 U.S.C. Section 1367[, and]
another for emotional distress and psychological torture against
Officer Robert Bob Koch.”
at 1.)

(Pl.’s Apr. 2015 Mot., Docket Entry 23

On May 11, 2015, Judge Lindsay issued an Electronic Order

granting Plaintiff’s unopposed application.
On September 16, 2015, Plaintiff filed a motion to amend
the Amended Complaint and sought to add, inter alia, a claim of
“medical

negligence”

infliction

of

against

emotional

all

distress,

harassment” against Officer Koch.
Entry 60.)

Defendants

and

harassment

“intentional
and

sexual

(Pl.s Sept. 2015 Mot., Docket

On May 5, 2016, Judge Lindsay determined Plaintiff’s

motion and denied Plaintiff leave to assert his proposed claim for
medical negligence.

(May 2016 Order, Docket Entry 114, at 6-7.)

Accordingly, the Court construes the Second Amended
Complaint as asserting a claim for intentional infliction of
emotional

distress

against

Officer

Koch.9

While

Plaintiff

The Court acknowledges that Plaintiff attempted to assert a
claim for medical negligence in his first Amended Complaint.
(See Pl.’s Apr. 2015 Mot. at 1.) However, it is wellestablished that an amended complaint ordinarily supersedes the
9

36

referenced sexual harassment in his September 2015 motion to amend,
(see Pl.’s Sept. 2015 Mot. at 2), the Second Amended Complaint is
bereft of any factual allegations that could arguably be considered
sexual harassment, and does not even contain the phrase “sexual
harassment.”
To state a claim for intentional infliction of emotional
distress under New York state law, the plaintiff must demonstrate:
“(1) extreme and outrageous conduct; (2) intent to cause, or
reckless disregard of a substantial probability of causing, severe
emotional distress; (3) a causal connection between the conduct
and the injury; and (4) severe emotional distress.”
Bloomberg,

No.

06-CV-0403,

2007

WL

2891332,

at

Perri v.

*9

(E.D.N.Y.

Sept. 28, 2007) (internal quotation marks and citations omitted).
Courts

are

“exceedingly

strict”

in

determining

intentional

infliction of emotional distress claims and liability is limited
to cases “where conduct is so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a

original and renders it of no legal effect. Cf. Ping Tou Bian
v. Taylor, 23 F. App’x 75, 77 (2d Cir. 2001) (internal quotation
marks and citations omitted). Plaintiff requested leave to
assert a medical negligence claim in his Second Amended
Complaint and that request was denied by Judge Lindsay in her
Order dated May 5, 2016. (May 2015 Order at 6-7.) Thus, the
Second Amended Complaint--which does not contain a medical
negligence claim pursuant to Judge Lindsay’s May 2016 Order-controls.
37

civilized community.”

King v. City of N.Y., No. 12-CV-2344, 2013

WL 2285197, at *11 (E.D.N.Y. May 23, 2013) (internal quotation
marks and citation omitted).

The plaintiff’s ability to recover

for “purely emotional harm” is “extremely limited and, thus, a
cause of action seeking such recovery must generally be premised
upon a breach of a duty owed directly to the plaintiff which either
endangered the plaintiff’s physical safety or caused the plaintiff
fear for his or her own physical safety.”

Id. (internal quotation

marks and citation omitted).
Here, Plaintiff alleges that Officer Koch, inter alia,
told him that he wanted to “execute [him] with his pistol,” (Sec.
Am. Compl. at 25), and wrote down the addresses of Plaintiff’s
loved ones and stated “you can’t protect them from here,” (Sec.
Am. Compl. at 25, 34).

Additionally, Plaintiff alleges that

between September 2013 and June 2014, Officer Koch “berated [him]
daily,” and stated that: (1) “he would love to volunteer for
[Plaintiff’s] firing squad,” (2) “he [wa]s going to bring in his
pistol and shoot [Plaintiff] in [his] head if his condition
worsens,” and (3) “in Texas, they would have executed [you]
already.”

(Sec. Am. Compl. at 34.)

Plaintiff avers that Officer

Koch was aware that gangs had a “hit” on his life and stated that
“gang members [we]re going to have [Plaintiff] on [his] knees
sucking dick all day . . . [and] they [we]re going to make
[Plaintiff] their bitch.”

(Sec. Am. Compl. at 35.)
38

Further,

Plaintiff alleges that Officer Koch told him that he “should hang
[him]self after 3AM.”

(Sec. Am. Compl. at 36.)

Plaintiff avers

that as a result of this and other conduct, he has suffered from
nightmares and emotional distress.

(Sec. Am. Compl. at 36.)

Defendants have not posited any arguments regarding the
substance of Plaintiff’s state law claim and instead aver that the
Court should decline to exercise supplemental jurisdiction in the
absence

of

viable

federal

claims.

(Defs.’

Br.

at

23-24.)

Additionally, Defendants urge the Court to dismiss Plaintiff’s
state

law

claim

for

reasons

consistent

regarding Plaintiff’s federal claims.

with

their

arguments

(Defs.’ Br. at 23-24.)

The Court finds that issues of fact preclude summary
judgment

on

Plaintiff’s

intentional

infliction

of

emotional

distress claim, as a reasonable juror could conclude that Officer
Koch’s conduct was sufficiently “extreme and outrageous.”

While

“mere insults, indignities, and annoyances,” do not constitute
intentional infliction of emotional distress, “New York courts
appear to require that plaintiffs allege either an unrelenting
campaign of day in, day out harassment or that the harassment was
accompanied by physical threats, in order to state a cognizable
claim[.]”

Nunez v. A-T Fin. Info. Inc., 957 F. Supp. 438, 442

(S.D.N.Y. 1997) (internal quotation marks and citation omitted).
Cf. Rother v. NYS Dep’t of Corr. and Cmty. Supervision, 970 F.
Supp. 2d 78, 104-105 (N.D.N.Y. 2013) (dismissing the plaintiff’s
39

intentional infliction of emotional distress claim where “[the
defendant’s] tirade, although highly offensive misogynist, and
demeaning, was a one-time occurrence unaccompanied by physical
contact or the threat thereof; likewise, the vandalism, shunning,
and threats of tire slashing, however disconcerting, did not
involve

actual

or

threatened

physical

contact

or

implicate

immediate bodily harm”).
As set forth above, Plaintiff has alleged that he was
berated on a daily basis, Officer Koch threatened to kill him, and
he suffered nightmares and emotional distress as a result of
Officer Koch’s conduct.
proffer

any

Moreover, Defendants have failed to

evidence

refuting

Plaintiff’s

claims.

Parenthetically, while New York courts “routinely” award summary
judgment based on the plaintiff’s failure to support an intentional
infliction of emotional distress claim with medical evidence,
Biberaj v. Pritchard Industries, Inc., 859 F. Supp. 2d 549, 565
(S.D.N.Y. 2012), in light of Plaintiff’s claim that Dr. Geraci
ignored his requests for medical care and many of the grievances
he filed regarding Officer Koch’s conduct were “lost,” (Sec. Am.
Compl. at 36), the Court finds that an award of summary judgment
based on Plaintiff’s failure to submit medical evidence is not
appropriate at this juncture.

40

Accordingly, Defendants’ motion for summary judgment is
DENIED

as

to

Plaintiff’s

intentional

infliction

of

emotional

distress claim against Officer Koch.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

for

summary judgment (Docket Entry 127) is GRANTED IN PART and DENIED
IN PART.

Defendants’ motion for summary judgment is GRANTED with

respect to Plaintiff’s Section 1983 claims against Nurse Webster,
Warden Ewald, Deputy Sheriff Shapiro, Deputy Sheriff Mehrman,
Officer Koch, and the County, as well as his claim against Dr.
Geraci for failing to request an MRI in 2014 and refusing to
request an MRI of Plaintiff’s entire back in 2016.
motion

for

summary

judgment

is

DENIED

with

Defendants’
respect

to:

(1) Plaintiff’s 1983 claim against Dr. Geraci for failing to
provide medical treatment between June 2014 and April 2016, and
(2)

Plaintiff’s

state

law

claim

against

Officer

intentional infliction of emotional distress.

Koch

for

The Clerk of the

Court is directed to TERMINATE Nurse Webster, Warden Ewald, Deputy
Sheriff

Shapiro,

Deputy

Sheriff

defendants in this action.

Mehrman,

and

the

County

as

The Clerk of the Court is further

directed to mail a copy of this Memorandum and Order to the pro se
Plaintiff.
Given Plaintiff’s pro se status, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
41

Memorandum and Order would not be taken in good faith and therefore
in forma pauperis status is DENIED for purposes of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S. Ct. 917, 8
L. Ed. 2d 21 (1962).

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January
31 , 2017
Central Islip, New York

42