Surlock et al v. New York State Office for People with Developmental Disabilities et al

Filing 423

MEMORANDUM-DECISION AND ORDER re 238 242 249 250 251 253 258 : The Court hereby ORDERS that the following claims are dismissed pursuant to Plaintiffs' voluntary withdrawal: (1) all claims against Defendant Jasiewicz; (2) the First Ame ndment claims against Defendants Graham, Dickerson, Reynolds, Motyka, Maynes and Finster; (3) the intimate association claim against all Defendants; and (4) the procedural due process claim against Defendants LeBoeuf, Reid, Perkins and Graham; and the Court further ORDERS that Defendant Graham's motion for summary judgment (Dkt. No. 258) is GRANTED in its entirety and she is dismissed from this action; and the Court further ORDERS that Defendant Finster's motion for summary judgm ent (Dkt. No. 238) is GRANTED in its entirety and she is dismissed from this action; and the Court further ORDERS that Defendant Maynes' motion for summary judgment (Dkt. No. 242) is GRANTED in part and DENIED in part; and the Court further ORDERS that Defendant Maynes' motion for summary judgment is granted only as it applies to the alleged medication errors, wrist splint application, and failure to report as discussed above; and the Court further ORDERS that Defendant Spencer& #039;s motion for summary judgment (Dkt. No. 251) is GRANTED in part and DENIED in part; and the Court further ORDERS that Defendant Spencer's motion for summary judgment is denied only as to the substantive due process claim relating to the laundry basket incident and alleged abusive language, and as to the motion for severance or to bifurcate; and the Court further ORDERS that Defendants Elliott, Alexander, Reid, LeBoeuf, and Perkins' motion for summary judgment (Dkt. No. 250) is GRANTED in its entirety and they are dismissed from this action; and the Court further ORDERS that Defendants Dickerson, Motyka, and Reynolds' motion for summary judgment (Dkt. No. 253) is GRANTED in its entirety and they are dismissed fr om this action; and the Court further ORDERS that Defendants Gleason, O'Brien and DiNuzzo's motion for summary judgment (Dkt. No. 249) is GRANTED in its entirety and they are dismissed from this action; and the Court further ORDERS that t he following claims and Defendants remain in this action: (1) all claims against Defendant Hillard; (2) the claim for prospective injunctive relief against Defendant Delaney; (3) the substantive due process claim against Defendant Maynes as to t he March 25, 2011 incident; and (4) the substantive due process claim against Defendant Spencer as to the alleged abusive language and laundry basket incident; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 6/8/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRADFORD J. SURLOCK, individually and as
next friend of Michael Surlock, and MARY-ANNE
SURLOCK, individually and as next friend of
Michael Surlock,
Plaintiffs,
vs.

KERRY DELANEY, Acting Commissioner of the
New York State Office For People With
Developmental Disabilities; JOHN GLEASON,
Director, Central New York DDSO; LYNETTE
O'BRIEN, Deputy Director, Central New York
DDSO; ANTHONY DINUZZO, Deputy Director
of Quality Assurance, Central New York DDSO;
LAURIE ELLIOTT, Treatment Team Leader,
Central New York DDSO, Fulton Office; BARBARA
ALEXANDER, Development Assistant III, Central
New York DDSO, Fulton Office; RON REID, House
Director, Fravor Road IRA; VICTORIA LEBOEUF,
Former House Director, Fravor Road IRA; AMY
HILLARD, Assistant House Director, Fravor Road
IRA; FELICIA GRAHAM, Former Assistant House
Director, Fravor Road IRA; RAY PERKINS, Former
Assistant House Director, Fravor Road IRA;
MONIQUE DICKERSON, Fravor Road IRA Nurse;
DONNA MOTYKA, Former Fravor Road IRA Nurse;
DENISE REYNOLDS, Former Fravor Road IRA Nurse;
CORA SPENCER, Fravor Road IRA Direct Care Staff;
TRACEY JASIEWICZ, Former Assistant House
Director, Fravor Road IRA; JEANETTE MAYNES,
Fravor Road IRA Direct Care Staff; and DIANE
FINSTER, Fravor Road IRA Direct Care Staff,
Defendants.
____________________________________________

5:11-cv-1121
(MAD/DEP)

APPEARANCES:

OF COUNSEL:

OFFICE OF GUSTAVE J. DIBIANCO
62 Cherry Tree Circle
Liverpool, New York 13090
Attorneys for Plaintiffs

GUSTAVE J. DIBIANCO, ESQ.

SUSSMAN & WATKINS
55 Main Street, Suite 6
P.O. Box 1005
Goshen, New York 10924
Attorneys for Plaintiffs

MICHAEL H. SUSSMAN, ESQ.

OFFICE OF WILLIAM J. PORTA
42 Maple Avenue
Hamilton, New York 13346
Attorneys for Plaintiffs

WILLIAM J. PORTA, ESQ.

SMITH, SOVIK, KENDRICK &
SUGNET, P.C.
250 South Clinton Street
Suite 600
Syracuse, New York 13202-1252
Attorneys for Defendants Delaney,
Gleason, O'Brien, and DiNuzzo

MICHAEL P. RINGWOOD, ESQ.
JOHN P. COGHLAN, ESQ.
KAREN G. FELTER, ESQ.

GOLDBERG SEGALLA
5786 Widewaters Parkway
Syracuse, New York 13214
Attorneys for Defendants Elliott,
Alexander, Reid, LeBoeuf,
Perkins and Jasiewicz

KENNETH M. ALWEIS, ESQ.
HEATHER K. ZIMMERMAN, ESQ.
LISA MARIE ROBINSON, ESQ.
MOLLY M. RYAN, ESQ.

OFFICE OF LESLIE R. LEWIS
23 Genesee Street
New Hartford, New York 13413
Attorneys for Defendant Hillard

LESLIE R. LEWIS, ESQ.

CARROLL & CARROLL, P.C.
Galleries of Syracuse, 2nd Floor
441 South Salina Street
Syracuse, New York 13202-0352
Attorneys for Defendant Graham

WOODRUFF LEE CARROLL, ESQ.

GALE, GALE & HUNT, LLC

CATHERINE A. GALE, ESQ.
2

P.O. Box 6527
Syracuse, New York 13217
Attorneys for Defendants Dickerson,
Motyka, and Reynolds

MATTHEW J. VAN BEVEREN, ESQ.

MACKENZIE HUGHES LLP
101 South Salina Street
P.O. Box 4967
Syracuse, New York 13221-4967
Attorneys for Defendant Spencer

JENNIFER PLOETZ WILLIAMS, ESQ.
MARK R. SCHLEGEL, ESQ.

AMDURSKY, PELKY, FENNELL &
WALLEN, P.C.
26 East Oneida Street
Oswego, New York 13126
Attorneys for Defendant Maynes

TIMOTHY J. FENNELL, ESQ.

SATTER LAW FIRM, PLLC
217 South Salina Street
6th Floor
Syracuse, New York 13202
Attorneys for Defendant Finster

MIMI C. SATTER, ESQ.
SARAH E. RUHLEN, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Michael Surlock ("Michael") and his parents Bradford and Mary-Anne Surlock
commenced this action on September 21, 2011, asserting claims for constitutional violations
pursuant to 42 U.S.C. § 1983, claims under Title II of the Americans with Disabilities Act
("ADA"), and claims under New York State common law. See Dkt. No. 1. Thereafter, Plaintiffs
amended the complaint and Judge Mordue granted in part and denied in part Defendants' joint
motion to dismiss the amended complaint. See Dkt. No. 106.1

1

Defendants were originally all represented by the New York State Attorney General's

Office.
3

On September 30, 2015, through seven separate motions, sixteen of the eighteen
Defendants moved for summary judgment on Plaintiffs' claims.2 In their joint response, Plaintiffs
withdraw the following claims: (1) all claims against Defendant Jasiewicz; (2) the First
Amendment claims against Defendants Graham, Dickerson, Reynolds, Motyka, Maynes, and
Finster; (3) the intimate association claim against all Defendants; and (4) the procedural due
process claim against Defendants LeBoeuf, Reid, Perkins, and Graham. See Dkt. No. 371 at 11.3
As such, in their response Plaintiffs defend the following claims: (1) the substantive due process
claims against Defendants Gleason, O'Brien, DiNuzzo, Elliott, Alexander, Reid, LeBoeuf,
Perkins, Graham, Dickerson, Reynolds, Motyka, Spencer, Maynes, and Finster; (2) the First
Amendment claims against Defendants Gleason, O'Brien, DiNuzzo, Elliott, Alexander, Reid,
LeBoeuf, Perkins, and Spencer; (3) the procedural due process claims against Defendants
Gleason, O'Brien, DiNuzzo, Elliott, and Alexander; (4) the negligent supervision claims against
Defendants Gleason, O'Brien, DiNuzzo, Elliott, Alexander, Reid, LeBoeuf, Perkins, and Graham;
and (5) the medical malpractice claims against Defendants Dickerson, Reynolds, and Motyka.
See id.4
Despite her counsel having appeared in this matter and having filed an answer,
Defendant Hillard did not move for summary judgment. Moreover, while Defendant Delaney's
counsel filed a motion on behalf of Defendants Gleason, O'Brien and DiNuzzo, that group's
notice of motion does not specify that it is seeking any relief on behalf of Defendant Delaney and
their memorandum of law does not make any argument specifically on Defendant Delaney's
behalf.
2

To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
3

Plaintiffs also note that they "continue all of their Section 1983 claims for prospective
injunctive relief against Kerry Delaney in her official capacity as [Office for People with
Developmental Disabilities] Commissioner and all claims they have asserted against Amy
Hillyard [sic], both of whom . . . have not moved for summary judgment." Dkt. No. 371 at 11,
4

(continued...)
4

Currently before the Court are Defendants' motions for summary judgment.

II. BACKGROUND
A.

The parties
Michael Surlock is a profoundly disabled young man who resides in the care and custody

of the State of New York. See Dkt. No. 371 at 9. He has a severe form of autism and an
intelligence quotient in the range of profound to severe mental retardation. See id. Michael is
non-verbal, cannot perform most basic life-sustaining tasks on his own, engages in self-injurious
behavior ("SIB") and requires constant, around-the-clock supervision just to survive. See id.
Michael also suffers from epilepsy and osteoporosis. See id. at 12. In October of 2007, it became
evident that Michael (then twenty five) required full-time care in a residential facility, so his
parents, Plaintiffs Bradford and Mary-Anne Surlock, placed him in the care and custody of the
New York State Office for People with Developmental Disabilities ("OPWDD" or the "agency").
See id. The agency placed him at Fravor Road Individual Residential Alternative ("IRA"), a
facility it owned and operated in Mexico, New York. See id. Michael's care at Fravor Road was
governed by multiple Skill Acquisition Plans ("SAPs"), Residential Habilitation Plans ("RHPs"),
Individual Plans of Protective Oversight ("IPPOs"), and Behavior Plans. See Dkt. No. 390-1 at ¶
9. Michael lived at Fravor Road until December 18, 2012, when the agency moved him to the
Central Square IRA in Central Square, New York. See Dkt. No. 371 at 12.
According to Michael's behavior plan, "Michael displays unusual flexibility and strength,
particularly when escalated. It is difficult for anyone to safely intervene and/or protect

4

(...continued)

n.5.
5

themselves or Michael from injury. Recent records indicate injuries to Michael (e.g. bruising,
sutures, broken teeth), injuries to staff working with Michael (e.g. broken teeth, concussions,
neck/back injuries), and some instances of property damage[.]" Dkt. No. 375-39 at 1. Moreover,
the behavior plan dated August 27, 2010 noted the following in regards to his progress:
When first admitted to [Fravor Road], Michael averaged
approximately 11 episodes of self injurious behavior
(slapping/scratching his face, banging head/limbs) a day at the
residence alone. He also engaged in episodes of "floor sprawling"
an average of approximately 5 times per day. According to current
data, . . . Michael continues to exhibit "floor sprawling" at an
average rate of 2 to 3 times per day; with a similar rate for episodes
of SIB. Due to the severity of these behaviors when they occur, the
risk of serious injury remains unacceptably high.
Id. at 6.
OPWDD is a cabinet level agency of the State of New York. See Dkt. No. 390-1 at ¶ 1.
OPWDD provides services for New Yorkers with developmental disabilities, including
intellectual disabilities, autism spectrum disorders, and other neurological impairments. See id. at
¶ 2. OPWDD provides services at sites throughout New York State, including facilities offering
long-term residential support. See id. at ¶ 3. OPWDD operates IRA facilities where individuals
with disabilities reside under the care of OPWDD staff. See id. at ¶ 4. One such IRA is located at
Fravor Road in Mexico, New York. See id. OPWDD provides services directly and through a
network of approximately 750 nonprofit service providing agencies, with about 80 percent of
services provided by the private nonprofits and 20 percent provided by state-run services. See
Dkt. No. 377-1 at ¶ 7.

6

Defendant Diane Finster began working for OPWDD at Fravor Road on August 12, 2010.
See Dkt. No. 390-1 at ¶ 27.5 Defendant Finster was a trainee during the entire time that she
worked at Fravor Road. See id. at ¶ 28. Defendant Finster's training included an initial threeweek introductory course, followed by on-the-job training throughout her one-year probationary
trainee status. See id. at ¶ 29. Defendant Finster's training included instruction provided by
OPWDD, which covered behavior management plans, intervention procedures, self-injurious
behaviors ("SIBs") and other matters. See id. Defendant Finster was never in a supervisory
position and never had authority to change Michael's care plan. See id. at ¶ 30. Further,
Defendant Finster did not have the ability to discipline any co-workers. See id. Defendant
Finster did not work at Fravor Road after July 14, 2011. See id. at ¶ 31.
The Central New York Developmental Disability Services Office ("CNYDDSO")
encompassed approximately 200 facilities in 8 counties with about 2,400 staff and 1200 residents.
See Dkt. No. 377-1 at ¶ 8. OPWDD is the state agency that oversees CNYDDSO. See id. at ¶ 10.
Defendant John Gleason, who is currently retired, began working for CNYDDSO in 1980. See id.
at ¶¶ 11-12. From 2007 through 2012, Defendant Gleason was the Acting Director or Director of

The Court notes that counsel for Defendant Finster, as well as counsel for Defendants
Dickerson, Motyka, and Reynolds, provided the Court with courtesy copies of their underlying
motions and exhibits. Counsel failed, however, to provide the Court with the courtesy of binding
the courtesy copies in any way whatsoever (although Defendant Finster's counsel did place a
rubber band around all 310 pages of her motion). Defendants Dickerson, Motyka, and Reynolds'
motion is comprised of 3,283 pages. While the Court appreciates counsel taking the time to
provide the Court with courtesy copies of their voluminous motions, binding the papers in some
way, i.e., a staple, three-ring binder, etc., along with tabs separating and identifying the attached
exhibits is necessary for such courtesy copies to be helpful in any meaningful way. This
particular omission is made all the more egregious due to the fact that their counsel failed to
provide any way to recognize what the exhibits listed on the docket actually are, since they are all
simply titled "Exhibit(s)." See Dkt. No. 254. Compounding the issue is the fact that, even upon
opening the documents labeled "Exhibit(s)," the first page of the document fails to identify what
exhibit you are actually looking at.
5

7

CNYDDSO. See id. at ¶ 13. From July 2012 to November 2014, Defendant Gleason was the
Associate Commissioner for State Operations for OPWDD. See id. at ¶ 14.
Defendant Anthony DiNuzzo, who has been retired since 2011, began working for
CNYDDSO in 1979. See Dkt. No. 377-1 at ¶¶ 15-16. Between 2007 and 2011, Defendant
DiNuzzo's position and title was Deputy Director for Quality Assurance. See id. at ¶ 17.
Defendant Lynette O'Brien has been employed with OPWDD for approximately thirtyseven years. See id. at ¶ 18.6 Defendant O'Brien began as an Aide at the Syracuse Developmental
Center. See id. at ¶ 19. Defendant O'Brien's current position and title is Acting Director of the
Central New York Developmental Disability Services Office of Region 2 and the Deputy Director
for CNYDDSO. See id. at ¶ 20. Between late 2009 and 2012, Defendant O'Brien's position and
title was Developmental Disability Program Specialist IV ("DDPS4") and later Deputy Director
for CNYDDSO. See id. at ¶ 21. As a DDPS4 and Deputy Director, it was part of Defendant
O'Brien's job to supervise the team leaders for the program teams of all consumers/residents in
CNYDDSO IRAs, including Michael's program team. See id. at ¶ 42. Moreover, according to
Defendant O'Brien, as part of her responsibilities, she facilitated communication between
program teams and the families of residents. See id. at ¶ 43.
Defendant Jeanette Maynes was employed by OPWDD as a Direct Care Staff Member at
the Fravor Road facility from June 2008 to April 2011. See Dkt. No. 392-1 at ¶ 5. In their
amended complaint, Plaintiffs allege that video footage shows Defendant Maynes yelling at
Michael on March 25 and 28, 2011. See Dkt. No. 392-1 at ¶ 47. Defendant Maynes was subject
to a disciplinary hearing for the March 25, 2011 incident. See id. at ¶ 50. In the disciplinary

Defendants Gleason, O'Brien and DiNuzzo are collectively referred to as the
"Administrative Defendants."
6

8

proceeding, the arbitrator concluded that the claim of psychological abuse was sustained because
the video showed Defendant Maynes "speaking with an angry expression on her face and
gesticulating much of the time" she was on camera. See id. at ¶ 51. However, the arbitrator
concluded that the claim of physical abuse was not sustained because the video did not show
whether Defendant Maynes struck Michael. See id. at ¶ 52.
Also during the relevant time, Defendant Laurie Elliott was employed as a Treatment
Team Leader with OPWDD. See Dkt. No. 394-1 at ¶ 451. Defendant Elliott has worked for
OPWDD for approximately thirty years, and has been a Treatment Team Lead for approximately
seven years. See id. at ¶¶ 466-67. As Treatment Team Leader, Defendant Elliott oversaw seven
OPWDD care facilities, including the Fravor Road facility. See id. at ¶ 468. As a Treatment
Team Leader, Defendant Elliott visited Fravor Road approximately once every two weeks during
the times relevant to this action. See id. at ¶ 469.
Defendants Barbara Alexander, Ron Reid, Ray Perkins, Victoria LeBoeuf,7 and Tracey
Jasiewicz were all employed as Developmental Assistants at the Fravor Road facility during the
relevant time period. See Dkt. No. 394-1 at ¶ 450. Defendant Alexander has worked for
OPWDD for approximately twenty-nine years. See id. at ¶ 497. She was involved with the
Fravor Road facility from August 2007 through October 2012. See id. at ¶ 498. Defendant
Alexander was a Developmental Assistant III and visited the Fravor Road facility approximately
two times per week for approximately four hours each visit. See id. at ¶¶ 499-501. When visiting
Fravor Road, Defendant Alexander would meet with the site supervisor, work on the computer,
observe and interact with the staff and residents, complete personal allowance audits, provide

Defendants Elliott, Alexander, Reid, LeBoeuf, and Perkins are collectively referred to as
the "Supervisory Defendants."
7

9

training to the staff, respond to physical plant issues, and review and bundle records, such as
habilitation plans and billing records. See id. at ¶ 502. Moreover, Defendant Alexander was part
of Michael's treatment team. See id. at ¶ 503. As a Developmental Assistant III, Defendant
Alexander was not present at Fravor Road at all times to supervise Michael's direct care providers
and observe their actions regarding Michael's dining plan, toileting, and general medical care.
See id. at ¶¶ 510-14.
Defendant Ron Reid has worked for OPWDD for approximately twenty-five years. See
Dkt. No. 394-1 at ¶ 537. Defendant Reid was employed at the Fravor Road facility from June 21,
2007 to January 10, 2008 and again from February 25, 2010 to October 18, 2012, as a
Developmental Assistant II. See id. at ¶ 538. In this position, Defendant Reid "would maintain
schedules, set out the house budget, maintain personal funds for the residents, attend meetings for
the residents, maintain house vehicles, and maintain the house." Id. at ¶ 539. Further, according
to Plaintiffs, Defendant Reid was also responsible for tracking the medication re-certification
dates for employees. See id. As a Developmental Assistant II, Defendant Reid generally worked
at Fravor Road five days per week. See id. at ¶ 540. Moreover, in this capacity, he would
occasionally pass medications to Michael and was otherwise occasionally involved with
Michael's personal care. See id. at ¶¶ 544, 551, 553. On October 18, 2012, Defendant Reid was
promoted to Developmental Assistant III. See id. at ¶ 541. As a Developmental Assistant III,
Defendant Reid oversaw four houses, including Fravor Road and Central Square SOIRA
("Central Square"). See id. at ¶ 542. According to Defendant Reid, as a Developmental Assistant
III, he did not personally administer medications to Michael. See id. at ¶ 545.
Defendant Victoria LeBoeuf worked for the OPWDD for approximately thirteen years and
was employed at Fravor Road from February 14, 2008 until December 31, 2009 as a
10

Developmental Assistant II. See Dkt. No. 394-1 at ¶¶ 581-82. While she was a Developmental
Assistant II at Fravor Road, she maintained schedules, worked on the house budget, maintained
personal funds for the residents, attended meetings for the residents, and maintained the house.
See id. at ¶ 583. Moreover, according to Plaintiffs, as a Developmental Assistant II, Defendant
LeBoeuf was also responsible for "the overall function of the house, including cleanliness,
adherence to safety guidelines, and supervising the direct care workers to ensure that they were
performing their responsibilities." Id. Further, in this role, Defendant LeBoeuf would
occasionally pass medications to Michael. See id. at ¶ 585. Also, Defendant LeBoeuf was
occasionally involved in applying Michael's wrist splint and with his general personal care. See
id. at ¶¶ 587, 590. According to Defendant LeBoeuf, "[i]f she ever noticed Michael had an injury,
she would document and/or report it as required by OPWDD regulations depending on the
severity of the injury and seek appropriate medical treatment for Michael." Id. at ¶ 597.
Moreover, Defendant LeBoeuf contends that she would also seek appropriate medical treatment
for Michael when needed, whether that meant treating more minor injuries herself or taking
Michael to a hospital or emergency room for urgent treatment. See id. at ¶ 600.
Defendant Ray Perkins has worked for OPWDD for approximately sixteen years and was
employed at Fravor Road from January 29, 2009 through December 30, 2010 as a Development
Assistant I Trainee. See Dkt. No. 394-1 at ¶¶ 609-610. While a Developmental Assistant I
Trainee at Fravor Road, he generally worked split shifts with three evenings and two days. The
evening shifts were from 2:00 p.m. or 3:00 p.m. to 10:00 p.m. or 11:00 p.m., and the day shifts
were from 7:00 a.m. to 3:00 p.m. See id. at ¶ 611. As a Developmental Assistant I Trainee,
Defendant Perkins claims that he had no supervisory responsibility or authority over the
administration of medication to Michael or any other Fravor Road resident, and he had no
11

supervisory authority or responsibility over nurses or nurse supervisors at Fravor Road. See id. at
¶ 612. Defendant Perkins would, however, occasionally pass medications to Michael and was
otherwise occasionally involved with Michael's personal care. See id. at ¶¶ 613, 615, 618.
Defendant Cora Spencer is a Direct Support Assistant ("DSA") and held that position
during the entire time she worked at Fravor Road. See Dkt. No. 389-1 at ¶ 9. Defendant Spencer
worked at Fravor Road from October 2007 until April 2011 and from July 2011 until August
2012. See id. at ¶ 1 (Plaintiffs' Counterstatement of Material Facts). The job description for
Defendant Spencer's position states, among other things, that it is "entry level" and is to be
performed "under general supervision of clinical or higher level staff." Dkt. No. 389-1 at ¶ 10;
see also Dkt. No. 252-2 at 1-5. According to Defendant Spencer, as a DSA she "was never a
supervisor while at Fravor Road and did not supervise any work performed by co-workers,
including medication administration." Dkt. No. 389-1 at ¶ 11.8 As a DSA, Defendant Spencer
never disciplined, trained, or evaluated the job performance of any of her co-workers at Fravor
Road and did not have the authority or power to ban individuals from the facility. See id. at ¶¶
12-13.
Defendants Monique Dickerson, Donna Motyka, and Denise Reynolds (collectively, the
"Nurse Defendants"), who are all registered professional nurses ("RN"), were employed by
OPWDD during certain portions of the relevant time period with the title "Supervising RN." Dkt.

The Court notes that Plaintiffs deny this assertion and claim that "Defendant Spencer
worked for the agency for about twenty-years . . . and was tasked to supervise Michael Surlock
and as a mandated reporter she had a heightened obligation to monitor her co-workers and report
neglect." Dkt. No. 389-1 at ¶ 11 (internal citations omitted). This denial is one of many made in
response to the pending motions for summary judgment that entirely misconstrues the underlying
statement of fact. The underlying statement of fact clearly states that Defendant Spencer did not
supervise "co-workers," which is an entirely accurate statement given that the job is described as
an "entry level" position.
8

12

No. 385-1 at ¶ 6. Specifically, Defendant Motyka oversaw Fravor Road as the Supervising RN
from the time of Michael's arrival in October 2007 until July 2009. See id. at ¶ 7. Defendant
Reynolds held the position from July 2009 until May 2010, when Defendant Dickerson took over
as the Supervising RN. See id. The Office of Mental Retardation and Developmental
Disabilities' (a precursor to OPWDD) guidelines require that IRAs employ Registered
Professional Nurses responsible for supervising the unlicensed direct care staff in their
performance of nursing tasks and activities. See id. at ¶ 9. Generally, the Supervising RN's role
is limited to providing oversight of the direct care staff in relation to the performance of nursing
tasks and activities. See id. at ¶ 12. The Supervising RNs do not supervise the direct care staff in
their day-to-day responsibilities except in relation to performance of nursing tasks and activities.
See id. at ¶ 13. According to Defendants, adequate supervision, as defined by the OMRDD
guidelines, is achieved by the Supervising RNs by ensuring that the direct care staff are trained to
perform the nursing task or activity in question and periodically inspecting that performance. See
id. at ¶ 14 (citing OMRDD Mem. # 2003-01).9 Supervising RNs are not present at the facilities
on a day-to-day basis, but the Supervising RNs are required to visit each residence assigned to
them at least once every week. See id. at ¶ 15. The direct care staff are required to notify the
Supervising RN or the RN on call regarding any changes in medical orders or the medical status
of the individuals residing at the IRA to ensure they receive proper medical attention when
needed. See id. at ¶ 17. Moreover, Supervising RNs develop and annually update individualized
plans for nursing services for any individual requiring nursing care or medications. See id. at ¶

Plaintiffs again deny this allegation and contend that "[w]hether OMRDD guidelines
make this statement, adequate supervision did not occur simply by training direct care staff and
periodically inspecting performance." Dkt. No. 385-1 at ¶ 14.
9

13

18. Further, when delegating nursing tasks or activities to direct care workers, the Supervising
RN employs her professional judgment, and she considers the complexity of the task, the
condition of the individual involved, and the training, skill, and experience of the staff in
question. See id. at ¶ 20. Moreover, the Supervising RNs are required to certify the direct care
staff for medication administration. See id. at ¶ 23. Each individual certified as an Approved
Medication Administration Personnel ("AMAP") is subject to yearly re-certification, which
includes a review of medication administration performance and any errors made over the past
year, an update and review of medications and policies, a review of the "five rights" of
medication administration, and an observation of one errorless medication pass. See id. at ¶ 24.
Defendant Felicia Graham10 was the Fravor Road Assistant House Director from January
2008 until July 2008.11 See Dkt. No. 258-5 at 1. According to Defendant Graham, during her
tenure, "the [Fravor Road] facility was in disrepair and basically unclean." Dkt. No. 258-33 at ¶
34. Moreover, according to Defendant Graham, she was accused of abusing Michael as follows:
"Michael was seated in a chair. Felicia Graham approached Surlock, sat onto his lap with her legs
across his thighs, poked his nose and stated 'I hate you, you are bad.'" Id. at ¶ 35. After this event,
Defendant Graham was transferred to another home and did not return to Fravor Road. See id. at
¶ 99.

Defendant Felicia Graham is referred to as Felicia Graham, Felicia Weber, and Felicia
Graham-Weber throughout her moving papers. To avoid confusion, the Court will refer to her as
Felicia Graham.
10

The Court notes that Defendant Graham's statement of material facts is replete with
vague and incomplete statements. See Dkt. No. 258-33. For example, paragraph eighteen states
as follows: "The interrogatories state (Exhibit 5 114)." Id. at ¶ 18. One has to assume that the
Court is being directed to exhibit 5, which is "Plaintiffs' Second Supplemental Response and
Objections to Defendant Graham Weber's Interrogatories" so that the Court can decide for itself
what is relevant and probably should have been included in the statement of material facts.
11

14

B.

General allegations of abuse and neglect
Plaintiffs claim that throughout Michael's time as a resident at Fravor Road he was

subjected to numerous incidents of abuse and neglect, and that his constitutional rights were
thereby violated. These allegations include injuries that were caused directly by staff, by his own
actions, or were of unknown origins. For purposes of the present motion, the Court will set forth
the alleged injuries and incidents below as they pertain to the individual Defendants. The fact
that these injuries occurred, in most instances, is undisputed. Instead, the parties disagree as to
whether Michael's constitutional rights were violated and whether the individual Defendants sued
herein can be held responsible for these injuries.12

III. DISCUSSION
A.

Standard
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a

For many of their allegations, Plaintiffs rely on several videos. These videos, which do
not contain audio, were obtained from a camera that Plaintiffs Mary-Anne and Bradford Surlock
placed in a clock radio on a shelf in Michael's room in February of 2011. See Dkt. No. 375-3 at 2.
According to Mary-Anne, they placed the video camera in his room because they had periodically
observed that Michael had indications of injuries. See id. Mary-Anne and Bradford would
regularly review the video taken by the camera. See id.
12

15

motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court must be satisfied that
the citations to evidence in the record support the movant's assertions. See Giannullo v. City of
New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the
assertions in the motion for summary judgment "would derogate the truth-finding functions of the
judicial process by substituting convenience for facts").

B.

42 U.S.C. § 1983
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the

complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
Section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
16

(citing Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619
(1979)) (other citation omitted).

C.

Personal involvement
"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) (quotation and other citations omitted). "'[W]hen monetary damages are sought under §
1983, the general doctrine of respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required.'" Id. (quoting Johnson v. Glick, 481 F.2d
1028, 1034 (2d Cir.)). There is a sufficient showing of personal involvement of a defendant if (1)
the defendant directly participated in the alleged constitutional deprivation; (2) the defendant is a
supervisory official who failed to correct the wrong after learning about it through a report or
appeal; (3) the defendant is a supervisory official who created a policy or custom under which the
constitutional deprivation occurred, or allowed such a policy or custom to continue; or (4) the
defendant is a supervisory official that was grossly negligent in managing subordinates who
caused the constitutional deprivation. See id. (quoting Williams v. Smith, 781 F.2d 319, 323-24
(2d Cir. 1986)).

D.

Statute of limitations
Although Section 1983 contains no explicit statute of limitations, New York law is

"borrow[ed]," and applies a three-year limitation on such claims. See Pearl v. City of Long
Beach, 296 F.3d 76, 80 (2d Cir. 2002) (citation omitted); N.Y. C.P.L.R. § 214(5); see also Romer
v. Leary, 425 F.2d 186, 187 (2d Cir. 1970); Lugo v. Senkowski, 114 F. Supp. 2d 111, 113
17

(N.D.N.Y. 2000) (citation omitted). While the court must apply New York's three-year statute of
limitations, federal law governs the accrual date for these claims. Pursuant to federal law, accrual
occurs "when the plaintiff knows or has reason to know of the injury which is the basis of his
action." Pearl, 292 F.3d at 80 (citation omitted). In addition, federal courts also borrow the
state's tolling provision. See Pearl v. City of Long Beach, 296 F.3d 76, 80-81 (2d Cir. 2002)
(citation omitted).
Under New York law, the statute of limitations period may be tolled "[i]f a person entitled
to commence an action is under a disability because of infancy or insanity at the time the cause of
action accrues[.]" N.Y. C.P.L.R. § 208. "The insanity toll of CPLR 208 is available to 'those
individuals who are unable to protect their legal rights because of an over-all inability to function
in society.'" Garvey v. Lutheran Med. Ctr., 137 A.D.3d 1212, 1212 (2d Dep't 2016) (quotation
omitted).
Plaintiffs commenced this action on September 21, 2011. See Dkt. No. 1. Several
Defendants contend that some of the allegations are outside of the applicable three-year statute of
limitations. Plaintiffs, however, have sufficiently demonstrated that Michael was under a
disability throughout the relevant time period. As such, Michael's claims against all Defendants
were tolled and, therefore, timely.
Plaintiffs Bradford and Mary-Anne, however, are not entitled to the same tolling as to
their individual claims. Plaintiffs Bradford and Mary-Anne assert claims of First Amendment
retaliation and freedom of association, and Fourteenth Amendment procedural due process
against various Defendants. To the extent that any of the conduct alleged in support of those

18

claims occurred before September 21, 2008, it is beyond the statute of limitations and, therefore,
subject to dismissal.13

E.

Law of the case
Throughout their memorandum of law in response to the pending motions for summary

judgment, Plaintiffs repeatedly contend that by denying the previous motion to dismiss, the
remaining claims must survive the motions for summary judgment since they have produced
evidence to substantiate the allegations contained in the complaint. See, e.g., Dkt. No. 371 at 33.
Plaintiffs rely on, among other cases, ACLI Government Securities v. Rhoades, No., 97 Civ. 2471,
1998 WL 142347 (S.D.N.Y. Mar. 26, 1998), in support of their argument. See Dkt. No. 371 at
26. In ACLI, the defendant argued that the court lacked subject matter jurisdiction over the case
because the parties were not completely diverse. See ACLI, 1998 WL 142347, at *1. In a March
25, 1997 order, the court had denied the defendant's motion to dismiss for lack of subject matter
jurisdiction, in which the defendant raised the exact same arguments. See id. In denying the
motion to dismiss for lack of subject matter jurisdiction, the court specifically relied on evidence
outside of the pleadings to resolve the disputed jurisdictional fact issues. See ACLI Government
Securities, Inc. v. Rhoades, No. 96 Civ. 7502, 1997 WL 137437, *1-*3 (S.D.N.Y. Mar. 25, 1997).
As such, the court rejected the defendant's arguments in the later proceeding, finding that they
were barred by the law of the case doctrine. See ACLI, 1998 WL 142347, at *1.
Unlike the authority upon which Plaintiffs rely, in the present matter the Court has only
rendered a decision determining the plausibility of the allegations in the complaint. See Dkt. No.

As discussed below, however, the Court has granted the pending motions for summary
judgment as to all of Mary-Anne and Bradford's claims.
13

19

106. Contrary to Plaintiffs' arguments, the law of the case doctrine does not preclude the Court
from granting summary judgment simply because Plaintiffs have now produced evidence they
claim supports the allegations the Court found sufficient in denying Defendants' motion to
dismiss. See Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 92 (2d Cir. 2013)
(holding that the law of the case doctrine "would not preclude a district court from granting
summary judgment based on evidence after denying a motion to dismiss based only on the
plaintiff's allegations") (citation omitted); see also McAnaney v. Astoria Fin. Corp., 665 F. Supp.
2d 132, 142-43 (E.D.N.Y. 2009) (holding that if a court first resolves a motion to dismiss and is
then presented with the same issues on summary judgment, the doctrine would not apply "because
of the divergent standard of review applicable to motions to dismiss and motions for summary
judgment") (citation omitted).
Based on the foregoing, the Court finds that law of the case is inapplicable to the present
matter.

F.

Substantive due process
Plaintiffs have alleged substantive due process violations against Defendants Gleason,

O'Brien, DiNuzzo, Elliott, Alexander, Reid, LeBoeuf, Perkins, Graham, Dickerson, Reynolds,
Motyka, Spencer, Maynes, and Finster.

1. Substantive due process standard
The Due Process Clause of the Fourteenth Amendment protects persons against
deprivations of "life, liberty, or property." U.S. CONST. AMEND. XIV, § 1. However, the scope of
substantive due process is very limited. See Washington v. Glucksberg, 521 U.S. 702, 720
20

(1997). The Supreme Court has said that it "has always been reluctant to expand the concept of
substantive due process because guideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)
(citation omitted).
Generally, to establish a substantive due process violation, a plaintiff must (1) identify the
constitutional right at stake and (2) demonstrate that the government's action were
conscience-shocking or arbitrary in the constitutional sense. See Little v. City of New York, 487
F. Supp. 2d 426, 443 (S.D.N.Y. 2007) (citing Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.
1994)). The "shock the conscience" standard is not easily met; the plaintiff must show that the
government's conduct was "'egregious'" and "'outrageous,'" not "not merely incorrect or
ill-advised." Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006) (quotation omitted).
Courts have generally found that verbal abuse alone is not normally sufficient to satisfy the shock
the conscience standard. See M.C. v. Arlington Cent. Sch. Dist., No. 11-cv-1835, 2012 WL
3020087, *5 (S.D.N.Y. July 24, 2012) (citations omitted); see also T.W. v. Sch. Bd. of Seminole
Cnty., Fla., 610 F.3d 588, 601-02 (11th Cir. 2010) ("It is clear that '[p]laintiffs have not fared well
where psychological damage forms either the sole basis of or is an element of the plaintiff's
substantive due process claim,' . . . but we can imagine a case where an exercise of corporal
punishment — even one that causes only psychological injury — might be so severe that it would
amount to torture equal to or greater than the stomach pumping abuse condemned in Rochin")
(quoting Dockery v. Barnett, 167 F. Supp. 2d 597, 603 (S.D.N.Y. 2001)) (other citation omitted);
but see H.M. v. Bd. of Educ. of Kings Local Sch. Dist., No. 1:14-cv-64, 2015 WL 4624629, *6
(S.D. Ohio Aug. 3, 2015) (denying the motion to dismiss and holding that "while courts that have
permitted substantive due process claims to proceed to trial customarily require the student to
21

sustain dramatic physical injuries, the parties have directed the Court to no caselaw indicating that
psychological injury standing alone or with minimal physical injury can never pass the
constitutional threshold") (citations omitted).
To satisfy his or her burden, a plaintiff must demonstrate that the defendant's actions were
"so egregious, so outrageous, that [they] may fairly be said to shock the contemporary
conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); see also Matican v.
City of New York, 524 F.3d 151, 158 (2d Cir. 2008). In Lewis, the Supreme Court noted that
intentionally inflicted injuries are the "most likely to rise to the conscience-shocking level."
Lewis, 523 U.S. at 849. On the other end of the spectrum, the Supreme Court has emphasized that
"negligently inflicted harm is categorically beneath the threshold of constitutional due process."
Id.; see also Okin, 577 F.3d at 431 (distinguishing between intentionally inflicted harms, which
are likely to rise to conscience shocking level, and negligently inflicted harms, which cannot
constitute conscience-shocking behavior). In between these poles, the Supreme Court has held
"that harm inflicted recklessly or with deliberate indifference does not shock the conscience in the
context of a time sensitive emergency such as a high-speed chase." Matican, 524 F.3d at 158
(citing Lewis, 523 U.S. at 853-54, 118 S. Ct. 1708). However, even in the context of deliberative
decision-making, the Second Circuit has recognized that where state actors have been subject "to
the pull of competing obligations," Lombardi, 485 F.3d at 83 (internal quotation marks omitted),
the courts should be reluctant to impose "broad constitutional liability for the government
officials, whose decisionmaking might be inhibited by the threat of lawsuits," Matican, 524 F.3d
at 159 (citing Lombardi, 485 F.3d at 84). But where "the alleged behavior of ... defendants [took
place] over an extended period of time and in the face of action that presented an obvious risk of
severe consequences and extreme danger," the Second Circuit has found that official inaction can
22

shock the conscience. Pena, 432 F.3d at 114; see also Okin, 577 F.3d at 431-32 (finding that the
plaintiffs' allegations regarding the officers' repeated failure to address obvious domestic abuse
created a triable issue about the officers' deliberate indifference and their conscience-shocking
behavior).
In determining whether alleged conduct shocks the conscience, the court has to consider
the totality of the circumstances. See Hatfield v. O'Neill, 534 Fed. Appx. 838, 847 (11th Cir.
2013) (citing Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir.
2000)). Some courts have found that "'the conscience-shocking threshold is more quickly reached
in cases where the victim is particularly vulnerable to abuse and is otherwise defenseless.'" Id.
(quoting M.S. ex rel. Soltys v. Seminole Cnty. School Bd., 636 F. Supp. 2d 1317, 1323 (M.D. Fla.
2009)).

2. Confusion regarding the appropriate standard
A person in non-punitive state custody has several interests protected by due process: a
liberty interest in personal safety, an interest in freedom from undue bodily restraints and
excessive force, and an interest in adequate medical care and treatment. See Youngberg v.
Romeo, 457 U.S. 307, 315-19, 324 (1982). Further, when individuals are placed in custody or
under the care of the government, sometimes their governmental custodians are charged with
affirmative duties, the non-feasance of which may violate the Constitution. See P.C. v.
McLaughlin, 913 F.2d 1033, 1044 (2d Cir. 1990) (quotation omitted). Such individuals also have
a right to be protected from harm. See O'Dell v. Bill, No. 9:13-cv-1275, 2015 WL 710544, *5
(N.D.N.Y. Feb. 18, 2015). Moreover, they are also entitled to adequate medical care and such
claims are analyzed under the same standard applied to deliberate indifference claims brought by
23

convicted prisoners and pretrial detainees under the Eighth Amendment. See James v. Kaskiw,
No. 9:13-cv-526, 2016 WL 770193, *4 (N.D.N.Y. Jan. 28, 2016) (citation omitted); see also
Ahlers v. Kaskiw, No. 9:12–CV–501, 2014 WL 4184752, *5 (N.D.N.Y. Aug. 21, 2014)
(collecting cases); Beck v. Wilson, 377 F.3d 884, 889 (8th Cir. 2004) ("The Supreme Court
explained that 'when the State takes a person into its custody and holds [her] there against [her]
will, the Constitution imposes upon it a corresponding duty to assume responsibility for [her]
safety and general well-being'") (quoting DeShaney v. Winnebago Couty Dep't of Soc. Servs., 489
U.S. 189, 199-200, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989)). Deliberate indifference exists if an
official "knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).

There has been some confusion as to the appropriate legal standard to apply to substantive
due process claims alleged by involuntarily committed patients. Some circuits follow Youngberg
and hold that the standard for determining whether an involuntarily committed patient's
substantive due process rights have been violated is whether a "decision by [a] professional is
such a substantial departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the decision on such a judgment."
Youngberg, 457 U.S. at 323; see also Amnions v. Washington Dep't of Soc. & Health Servs., 648
F.3d 1020, 1027 (9th Cir. 2011) (applying the professional judgment standard to Fourteenth
Amendment claims alleged by involuntarily committed patients); Lanman v. Hinson, 529 F.3d
673, 684 (6th Cir. 2008) (applying the professional judgment standard to Fourteenth Amendment
claims alleged by involuntarily committed patients, but recognizing the application of the
24

deliberate indifference standard for claims alleged against non-professionals); Patten v. Nichols,
274 F.3d 829, 838 (4th Cir. 2001) (applying the professional judgment standard to Fourteenth
Amendment claims alleged by involuntarily committed patients and rejecting the deliberate
indifference standard for involuntarily committed patients); Feagley v. Waddill, 868 F.2d 1437,
1439-40 (5th Cir. 1989) (applying the professional judgment standard to Fourteenth Amendment
claims alleged by involuntarily committed patients); but see Lavender v. Kearney, 206 Fed. Appx.
860 (11th Cir. 2006) (interpreting Youngberg as articulating a standard of deliberate indifference
for Fourteenth Amendment claims alleged by involuntarily committed patients).
Other circuits follow the Supreme Court's ruling in County of Sacramento v. Lewis which
applied the "shocks the conscience" standard to all substantive due process claims involving
"abusive executive action." Lewis, 523 U.S. at 846; see also Benn v. Universal Health Sys., Inc.,
371 F.3d 165, 174 (3d Cir. 2004) (applying the shocks the conscience standard to Fourteenth
Amendment claims alleged by involuntarily committed patients); Moore ex rel. Moore v. Briggs,
381 F.3d 771, 773 (8th Cir. 2004) (applying the shocks the conscience standard to Fourteenth
Amendment claims alleged by involuntarily committed patients, but noting that "conduct may
shock the conscience of federal judges only if [defendants] acted with 'deliberate indifference'")
(emphasis omitted); but see Davis v. Rennie, 264 F.3d 86, 99 (1st Cir. 2001) (finding that the
lower court did not err by declining to give a shocks the conscience instruction for a substantive
due process claim alleged by an involuntarily committed patient). As discussed above, under this
standard, "conduct intended to injure in some way unjustifiable by any government interest is the
sort of official action most likely to rise to the conscience-shocking level." Lewis, 523 U.S. at
849.

25

In Lewis, the Court noted that, in a substantive due process claim brought under the
Fourteenth Amendment by a pretrial detainee, deliberately indifferent conduct could shock the
conscience. See id. at 849-50. Based on this language, other courts have noted that deliberate
indifference is the appropriate standard against non-professional individuals. See Groves v.
Davis, No. 9:11–CV–1317, 2012 WL 651919, *3 (N.D.N.Y. Feb. 28, 2012); McChesney, 2010
WL 3613806 at *6; Lane, 2009 WL 3074344, at *19; Vallen, 2005 WL 2296620, at *9 (also
considering the shocks the conscience standard); Daniel H. ex rel. Hardaway H. v. City of New
York, 115 F. Supp. 2d 423, 430 (S.D.N.Y. 2000) (only considering deliberate indifference
standard); cf. Yeldon, 2012 WL 1995839, at *7 (acknowledging both standards but declining to
favor one); Dove, 2007 WL 805786, at *8 (acknowledging both standards but declining to favor
one).
The Second Circuit has applied the professional judgment standard to substantive due
process violations under the Fourteenth Amendment alleged by involuntarily committed patients
against professionals. See Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 188-89
(2d Cir. 2005) (citing Rodriguez v. City of New York, 72 F.3d 1051, 1061-62 (2d Cir. 1995)). The
Supreme Court has defined a professional for purposes of the professional judgment standard as:
a person competent, whether by education, training or experience,
to make the particular decision at issue. Long-term treatment
decisions normally should be made by persons with degrees in
medicine or nursing, or with appropriate training in areas such as
psychology, physical therapy, or the care and training of the
retarded.
Youngberg, 457 U.S. at 323 n.30.
However, the Second Circuit has not specifically articulated whether to apply this
standard to substantive due process violations under the Fourteenth Amendment alleged by
26

persons in non-punitive state custody against non-professionals. Moreover, Olivier involved a
physician's decision to involuntarily commit the plaintiff pursuant to New York Mental Hygiene
Law § 9.39. District courts within the Second Circuit have distinguished cases applying the
professional judgment standard found in Youngberg from cases where the defendants – such as
psychiatric center aides – are "low-level staff members." Vallen v. Carrol, No. 02 Civ. 5666,
2005 WL 2296620, *8 (S.D.N.Y. Sept. 20, 2005) (determining that the defendant security
hospital treatment assistants at Mid-Hudson Forensic Psychiatric Center were low-level staff
members); see also McChesney v. Hogan, No. 9:08-CV-0563, 2010 WL 3613806, *5 (N.D.N.Y.
Aug. 11, 2010) (citing Vallen to find that the security hospital treatment assistants at Central New
York Psychiatric Center were not professionals); Dove v. City of New York, No. 03-CV-5052,
2007 WL 805786, *8 (E.D.N.Y. Mar. 15, 2007) (acknowledging that both circuit and district
courts have chosen to apply a standard of deliberate indifference to non-professionals as
suggested in Youngberg).
Although these decisions often applied seemingly different standards, often without
explanation, the Supreme Court has consistently made clear that, at its core, the concept of due
process is intended to protect against the arbitrary exercise of the powers of the government. See
Lewis, 523 U.S. at 845. Determining whether the right to due process has been abridged requires
a balancing of the individual's liberty interest against the government's asserted reasons for
infringing upon that individual liberty. The Supreme Court has indicated that the shocks-theconscience inquiry is not a stand-alone inquiry for determining whether particular executive
conduct violates substantive due process; rather, it provides a framework for making such
determinations. Id. at 847. These seemingly varying "standards" that have been applied are more
appropriately described as different iterations of how to decide if conduct meets the shocks-the27

conscience standard, made to better fit within specific factual situations. As the Supreme Court
and Second Circuit have noted,
"'[t]he phrase [due process of law] formulates a concept less rigid
and more fluid than those envisaged in other specific and particular
provisions of the Bill of Rights. Its application is less a matter of
rule. Asserted denial is to be tested by an appraisal of the totality of
facts in a given case. That which may, in one setting, constitute a
denial of fundamental fairness, shocking to the universal sense of
justice, may, in other circumstances, and in the light of other
considerations, fall short of such denial.'"
Bolmer v. Oliveira, 594 F.3d 134, 143 (2d Cir. 2010) (quoting Betts v. Brady, 316 U.S. 455, 462,
62 S. Ct. 1252, 86 L. Ed. 2d 1595 (1942)) (other quotation omitted). Therefore, "'concern with
preserving the constitutional proportions of substantive due process demands an exact analysis of
circumstances before any abuse of power is condemned as conscience shocking.'" Id. (quotation
omitted).
In Bolmer, the plaintiff claimed that his substantive due process rights were violated when
he was involuntarily committed. See Bolmer, 594 F.3d at 138. On appeal, the plaintiff argued
that the district court erred by applying the "medical-standards test" as opposed to the shockedthe-conscience test set forth in Lewis. See id. at 144. The Second Circuit disagreed and held that
the "medical-standards test . . . imposed a rule for determining when an involuntary commitment
violates substantive due process that is consistent with Lewis' shocks-the-conscience framework.
In other words, a physician's decision to involuntarily commit a mentally ill person because he
imposes a danger to himself or others shocks the conscience, thereby violating substantive due
process, when the decision is based on 'substantive and procedural criteria that are . . .
substantially below the standards generally accepted in the medical community.'" Id. (quoting
Rodriguez, 72 F.3d at 1063. Further, in Lewis, the Supreme Court explained that, since the due
28

process rights of a pretrial detainee are "'at least as great as the Eighth Amendment protections
available to a convicted prisoner," it follows that "deliberately indifferent conduct must also be
enough to satisfy the fault requirement for due process claims" based on the medical needs of
someone in non-punitive state custody. See Lewis, 523 U.S. at 849-50 (citations omitted).
These differing "standards" set forth above make it clear that they are in fact merely
different ways of determining whether government conduct rises to the level of shocking the
conscience, taking into consideration the given factual circumstances of a particular case. As
such, the Court will address Plaintiffs' substantive due process claims taking into consideration
the various applications that courts have applied.

3. Defendant Graham
As to Defendant Graham, Plaintiffs primarily allege that on July 7, 2008 Defendant
Graham "sat on Michael's lap, poked her finger at his noise [sic] and declared, 'I fucking hate you.
You are so bad.'" Dkt. No. 371 at 33. According to Defendant Graham, on this date, when
Michael started yelling, she put her legs over his legs in an effort to calm him. See Dkt. No. 3931 at ¶¶ 86-88.14 According to Plaintiffs, Defendant Graham did not place her legs across
Michael's legs in an effort to calm him. See id. at ¶ 88. Further, Plaintiffs claim that the exhibit
demonstrates that Defendant Graham "sat on Michael's lap." Id. According to Defendant
Maynes, as a result of this incident, Michael "'didn't appear to be upset, but . . . it was difficult to

Defendant Graham contends that "Michael was yelling." Dkt. No. 258-33 at ¶ 87 (citing
Exhibit 23, pg. 324). For reasons unknown, Plaintiffs deny this assertion as follows: "Deny. The
exhibit does not support this statement since it says Michael was 'somewhat loud and yelling.' . . .
And so the defendant has failed to support the asserted statement by a 'specific citation to the
record where the fact is established.'" Dkt. No. 393-1 at ¶ 87.
14

29

tell.'" Id. at ¶ 91. Mr. Douglas Lee conducted an official investigation of this incident.
Defendant Graham was investigated for her verbal statement to Michael, but she was not
investigated for any alleged physical abuse. See id. at ¶¶ 95-96. Mr. Lee recommended to the
committee that Defendant Graham should be demoted to Developmental Aide. See id. at ¶ 97.
The committee, however, did not act on this recommendation because Susan Skiff provided
testimony that contradicted Defendant Maynes' allegations. See id. at ¶ 98. Nevertheless,
Defendant Graham did not return to Fravor Road after this incident and was transferred to another
facility. See id. at ¶ 99. Plaintiffs admit that there is no evidence that Michael was physically
injured as a result of this incident. See id. at ¶ 101.
Plaintiffs also contend that, while Defendant Graham served as Assistant House Director
from January through July of 2008, "house staff were responsible for four medication
administration failures . . . and two reported incidents of staff abuse and/or neglect of Michael, . .
. who was admitted on two occasions to the emergency room." Dkt. No. 393-1 at ¶ 3. As to
medication errors, Plaintiffs specifically allege the following incidents: (1) Protonix overdose on
February 14, 2008; (2) missed dose of Bentyl on April 6, 2008; (3) "under dose" of Dicyclomine
on May 16, 2008; and (4) missed dose of Protonix on May 28, 2008. See id. at ¶ 4. Further, in
addition to the July 7, 2008 incident, Plaintiffs contend that on July 3, 2008 Michael was left in
his safe chair15 unattended with a restrictive device on. See id. at ¶ 5; see also Dkt. No. 371-4 at
1. According to the incident report, the July 3, 2008 incident involved an employee by the name

The "safe chair" is a chair with a high back, which was "tilted about forty-five degrees."
Dkt. No. 394-2 at ¶ 10. The purpose of the chair was to provide a refuge for Michael so that he
could calm himself before he escalated into self-injurious behavior. See id. Moreover, the safe
chair was equipped with restraints, including a device referred to as a "bear hug," which were
used to restrain Michael while he was engaged in SIBs.
15

30

of Amy Wallace, who had mistakenly left the "bear hug" in place and, contrary to protocol, was
more than arms length away from Michael for a period of "no more than 2 minutes." Dkt. No.
371-4 at 3. As a result of the incident, Amy Wallace was "retrained" before working again with
Michael. See id. at 3-4.
Aside from the July 7, 2008 incident, notably absent from all of these alleged incidents is
any reference to Defendant Graham. Further, there is no indication that Defendant Graham was
even working at Fravor Road when these incidents took place. Without such proof, Plaintiffs
have failed to establish that Defendant Graham was personally involved in these incidents.
Moreover, even if Defendant Graham had been working during the alleged medication incidents
and when Michael was left unattended in his chair for less than two minutes, these allegations are
patently insufficient to meet the shocks the conscience standard. Both the medication incidents
and the July 3, 2008 incident amount to negligence at best. Further, as discussed, after the July 3,
2008 incident, Amy Wallace was retrained before working again with Michael. Far from
conscience shocking, the response to the July 3, 2008 incident demonstrates responsive
supervision by Ms. Wallace's superiors.
As to the July 7, 2008 incident, while Defendant Graham's conduct was certainly
inappropriate, it still fails to shock the contemporary conscience. In M.M. v. Tredyfrin/Easttown
Sch. Dist., No. 06-cv-1966, 2006 WL 2561242 (E.D. Pa. Sept. 1, 2006), the plaintiff was a
disabled elementary school student who alleged that the defendants, among other things, violated
his substantive due process right to bodily integrity. Specifically, the plaintiff alleged that a thirdgrade teacher had made negative comments about the plaintiff's handwriting, as well as several
incidents of "staring and intimidation," which led the plaintiff to seek psychological counseling.
See id. at *12. The defendant also allegedly deliberately stepped on the plaintiff's finger, causing
31

pain and requiring the finger to be put into a splint. See id. Dismissing the substantive due
process claim, the district court found that the alleged physical and non-physical incidents "do not
illustrate sufficiently severe verbal, psychological or physical abuse to qualify as conscienceshocking behavior." Id. (citing County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)) (other
quotation and citations omitted).
In Jackson v. Sumner Cty. Bd. of Educ., No. 3:09-cv-1005, 2011 WL 42618 (M.D. Tenn.
Jan. 6, 2011), the plaintiff was an elementary school child with impaired hearing and
communication abilities, and the primary defendant was the plaintiff's special education teacher.
See id. at *2-*3. On several occasions, the defendant allegedly squeezed the plaintiff's cheek,
"slammed" the plaintiff into a chair to make him sit down, and "jerked" the plaintiff off of a stepstool in front of the water fountain because the plaintiff did not have permission to get a drink.
See id. at *3. Further, one time when the plaintiff cut into a line, the defendant shoved him into a
bookcase. See id. Granting the defendant's motion for summary judgment, the court held as
follows: "In sum total, the evidence in this record indicates that [the defendant] shoved [the
plaintiff] against a bookshelf, squeezed his face painfully tightly on at least one occasion,
forcefully 'slammed' him into a chair, and 'yanked' him away from the drinking fountain. These
incidents, while potentially abusive, did not cause severe physical harm and do not shock the
conscience." Id. at *5.
In Hartfield v. O'Neill, 534 Fed. Appx. 838 (11th Cir. 2013), the plaintiff was an
elementary school child who suffered from pronounced mental and physical disabilities, including
hemimegalencephaly, which prevented the left side of her brain from fully developing. See id. at
840. Further, the plaintiff was blind, nonverbal, bound to a wheelchair that she was unable to
maneuver on her own, and suffered from a seizure disorder. See id. The plaintiff's various
32

ailments rendered her with the mental and intellectual abilities of a one-year-old child, requiring
around-the-clock care. See id. Prior to the events leading to the lawsuit, the plaintiff underwent a
surgery whereby a substantial portion of her brain was removed and a shunt placed therein. See
id. The surgical procedure left the plaintiff's head extremely tender at the location where the
sizable portion of her brain had been removed, which caused mundane activities, such as brushing
her hair, to be painful. See id. at 841. The defendant was the plaintiff's teacher for six years, until
she was terminated due to conduct related to the case. See id. at 840. It was alleged that the
defendant would occasionally "rip" excess skin from the plaintiff's peeling lips instead of
applying Vaseline as instructed by the plaintiff's grandmother, which would occasionally cause
the plaintiff's lips to bleed. See id. at 841. Further, the plaintiff alleged that the defendant was
"purposefully forceful" in feeding her, causing her mouth to bleed. See id. The defendant also
allegedly shoved the plaintiff's thumb down her throat in an effort to get her to stop sucking her
thumb, which caused the plaintiff to gag and cry out in pain. See id. at 842. Finally, the
defendant was also observed striking the plaintiff on numerous occasions with her hand and other
objects. See id. The most serious of the strikes involved an incident in which the defendant
backhanded the plaintiff on the side of her head that was rendered tender because of her prior
surgery. See id.
Affirming the district court's denial of summary judgment on qualified immunity grounds,
the Eleventh Circuit first concluded that the plaintiff's "allegations regarding forceful feeding and
the removal of skin from [the plaintiff's] lips do not shock the conscience. There is a range of
teacher conduct that is simply 'no[t] so conscience-shocking as to trigger a substantive due
process violation.'" Id. at 845 (quoting T.W. ex. rel. Wilson v. Sch. Bd. of Seminole Cnty., Fla.,
610 F.3d 588, 598 (11th Cir. 2010)). Further, the court found that the allegations relating to the
33

defendant forcing the plaintiff's thumb down her throat in an effort to stop her from sucking her
thumb "are certainly more troubling but fall within this range as well." Id. However, the Circuit
found that "striking a defenseless and profoundly disabled child on the head – at the precise
location where she had previously undergone brain surgery and was particularly vulnerable –
shocks the conscience of the court." Id. In reaching this conclusion, the court found that there
was no need for the application of force and, therefore, no governmental interest in the
application of such force. See id. at 845-46. Further, the court found that, although the plaintiff's
disabilities made it difficult to fully discern the exact nature of her injuries, the fact that she
experienced bruising, vomited, showed a lack of energy, and cried with pain weighed in favor of
denying the defendant's motion for summary judgment. See id. at 846. Finally, the court noted
that, at the time the defendant struck the plaintiff on her head, the defendant made numerous
derogatory statements directed at the plaintiff which created an inference of subjective malice.
See id. at 847. Considering the totality of the circumstances, the Eleventh Circuit found that the
district court properly denied the defendant's motion for summary judgment as to the substantive
due process claim. See id.
In the present matter, unlike the situation in Hartfield, Defendant Graham's alleged
conduct falls far short of violating Michael's substantive due process rights. Unquestionably,
sitting on a profoundly disabled individual's lap, poking him in the nose, and telling him "I
fucking hate you" was unprofessional, deplorable conduct. However, this conduct,
unaccompanied by any physical injuries or even the use of force intended to cause such a physical
injury, is insufficient to satisfy the high burden of a substantive due process claim.
Based on the foregoing, the Court grants Defendant Graham's motion for summary
judgment as to the substantive due process claim.
34

4. Defendant Finster
Plaintiffs contend that, on March 28, 2011, Defendant Finster "unjustifiably pushed and
shoved Michael and yanked him out of his room." Dkt. No. 371 at 31 (citing Dkt. No. 376-32 at
1). Additionally, Plaintiffs contend that a video from February 21, 2011 shows Defendant Finster
slapping Michael while in his bedroom. See id. Further, Plaintiffs allege that Defendant Finster
regularly observed Defendant Spencer verbally and physically abuse residents, including
Michael, yet failed to report the conduct or otherwise prevent it from happening. See id.
Moreover, Plaintiffs assert that Defendant Finster consistently failed to follow Michael's
Residential Habilitation Plan by not teaching him daily living skills, such as dressing himself,
putting his clothes in his closet hamper and then taking them to the laundry room, and making his
bed. See Dkt. No. 390-1 at ¶¶ 14-18 (Plaintiffs' Counterstatement of Material Facts). Finally,
Plaintiffs claim that Defendant Finster repeatedly failed to ensure that Michael wore his
prescribed daytime wrist splint. See id. at ¶ 20.
As discussed, Plaintiffs contend that Defendant Finster failed to report incidents when
Michael was abused by other employees, including an incident when Defendant Spencer placed a
laundry basked on Michael's head. See Dkt. No. 390-1 at ¶ 28 (Plaintiffs' Counterstatement of
Material Facts). Although Defendant Finster did testify that she was intimidated by Defendant
Spencer and, at first, reluctant to report the incident involving the laundry basket, Defendant
Finster reported the incident to her supervisor, Defendant Reid, the day after the incident
occurred. See Dkt. No. 391-1 at 215, 217. Further, Defendant Finster testified that she had
previously discussed with her supervisor Defendant Spencer's alleged vulgar and abusive
language, which was directed at both residents and staff. See id. at 214-219. Such conduct, or
lack thereof, does not rise to the level of a substantive due process violation.
35

As to the allegations that Michael was observed not wearing his wrist splint in Defendant
Finster's company, they fail to constitute a substantive due process violation. Michael's
Residential Habilitation Plan during the time at issue stated that he should "wear his left wrist
cock up splint each hour for a minimum o[f] 15 minutes each hour or as tolerated from 8AM-8PM
daily. Michael will wear his resting hand splint throughout the night." Dkt. No. 251-25 at 3.
None of the videos in which Michael is allegedly not wearing his wrist splint are longer than two
minutes in length. Simply put, the videos are not of sufficient length to determine whether
Michael was or was not wearing his wrist splint for the minimum fifteen minutes per hour for any
given hour that the videos purportedly capture. Further, most of the videos upon which Plaintiffs
rely for this claim depict individuals other than Defendant Finster with Michael. Simply put, this
alleged conduct fails to support Plaintiffs' substantive due process claim against Defendant
Finster.
Notably, Plaintiffs have not directed the Court to any case in which a court has found a
substantive due process violation from a factually similar situation. Undoubtedly, no such
caselaw is available because failing to report the use of vulgar language used by a more senior
employee, when supervisors have already been made aware that the employee is regularly
engaging in such conduct, does not shock the conscience. While these actions and inactions may
demonstrate bad judgment and insensitivity, even to a high degree, they are not "brutal" and
"offensive" enough to meet the high standard of conscience shocking behavior. See Lewis, 523
U.S. at 847; see also Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cty., Okla., 960 F. Supp. 2d
1254, 1262-62 (N.D. Okla. 2013) (citations omitted).
Plaintiffs also contend that Michael's rights were violated when Defendant Finster
repeatedly failed to follow his Residential Habilitation Plan. For example, Plaintiffs contend that,
36

despite the fact that the plan called for Michael to perform tasks such as fold his own laundry and
make his own bed, Defendant Finster was repeatedly observed folding Michael's clothes and
making Michael's bed. It goes without saying that making Michael's bed, folding his clothes, and
helping with his laundry is not "brutal" and "offensive" conduct that shocks the Court's
conscience.16 Moreover, the Residential Habilitation Plan in place from February 14, 2011,
identified nine non-exclusive tasks, four of which were to be completed by Michael each day,
"with unlimited assistance." Dkt. No. 390-1 at ¶ 151. These tasks included "wiping tables,
sweeping, mopping, vacuuming, collecting/taking out trash, dishes, laundry, picking up his
personal belongings, tidying his room, etc." Id. at ¶ 152. Plaintiffs' video evidence, depicting
Defendant Finster completing several of these tasks, without Michael's assistance, does not
support the inference that the plan was not otherwise being followed throughout the day.
As to allegations pertaining to March 28, 2011, Defendant Finster is alleged to have
mishandled Michael "by yanking and pushing him and then pulling him out of his bedroom."
Dkt. No. 390-1 at ¶ 25 (Plaintiffs' Counterstatement of Material Facts). The incident was
captured on video and was investigated by Mr. Douglas Lee. Based on his investigation, which
included an interview with Defendant Finster and review of the hidden video taken from
Michael's room, Mr. Lee concluded "that the allegation of physical [a]buse against Ms. Finster

What is shocking is that Plaintiffs seem to be of the opinion that by folding Michael's
laundry and making his bed, Defendant Finster somehow violated Michael's constitutional rights
and should be held to account for such actions. What is even more shocking is that Plaintiffs also
complain about the fact that they occasionally observed that Michael's clothing was wrinkled,
improperly folded, or "deliberately folded in strange ways with sleeves going one way, away
from the shirt, pants were placed on hangers with one pang leg inside-out, and other clothing was
inside-out and/or stored in ways that resulted in excessive wrinkling and messy." Dkt. No. 390-3
at ¶ 17. So, Plaintiffs take issue not only when Defendants folded Michael's laundry, but also
when they did not fold Michael's laundry in a satisfactory manner or, perhaps, when they
permitted Michael to fold his own laundry.
16

37

towards [Michael] is substantiated[.]" Dkt. No. 391-1 at 307. When questioned about the
conduct, Defendant Finster claimed that she was using a method of "personal persuasion." Dkt.
No. 391-1 at 297. Defendant Finster stated that this was not an "official technique" and was
unaware if anything in Michael's plan called for this type of escort. See id. at 297-98. Finally,
Defendant Finster testified that she was attempting to get Michael to leave his room because if he
stays in his room alone once he is fully dressed, he would often have behavioral issues. See id. at
298-99.
The Court has reviewed the video of the incident, Mr. Lee's report, and the other relevant
evidence and finds that, while Defendant Finster's conduct could be considered misguided and in
violation of protocols, it does not rise to the level of a substantive due process violation. The
undisputed facts, including the video and Defendant Finster's testimony, clearly demonstrate that
Defendant Finster was not acting with any malice in escorting Michael from his room. Rather,
the undisputed evidence clearly demonstrates that Defendant Finster used a minimal amount of
force to get a noncompliant Michael to leave his bedroom. See Cox, 654 F.3d at 276 (holding that
a substantive due process claim requires more than an "incorrect or ill-advised" act and absent
evidence that the defendant acted with malice, the plaintiff's substantive due process claim could
not withstand summary judgment motion).
Finally, as to the allegation that Defendant Finster "unjustifiably slapped Michael while in
his bedroom[,]" the Court finds that Plaintiffs have grossly exaggerated/misrepresented the
alleged incident. The video upon which Plaintiffs rely shows Defendant Finster tenderly assisting
Michael getting dressed and, at one point while Michael is laying down on the bed just below the
camera angle, Defendant Finster slowly lowers her hand off camera in something similar to a
slapping motion. Even assuming that Defendant Finster made contact with Michael, no
38

reasonable fact finder could conclude that Defendant Finster was acting with malice considering
the speed at which her hand was moving, as well as the gentle manner in which she is otherwise
assisting Michael. See Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168,
170, 173 (2d Cir. 2002) (holding that "[s]triking a student without any pedagogical or disciplinary
justification," while "undeniably wrong," does not "shock the conscience" even though the slap
caused "great physical pain").
Based on the foregoing, the Court grants Defendant Finster's motion for summary
judgment.

5. Defendant Jeanette Maynes
i. March 25, 2011 incident
Plaintiffs contend that, on March 25, 2011, Defendant Maynes walked into Michael's
room while he was laying in bed and, "in a swift and violent motion, swung her hand down upon
Michael, striking his back and ripping his blanket off of him. . . . She then proceeded to yell at
him with an angry expression on her face, using aggressive, threatening mannerisms." Dkt. No.
371 at 25-26 (citations omitted). When brought to her supervisors attention, the incident was
investigated and the allegation of psychological abuse was substantiated. See id. at 26.
Defendant Maynes was terminated because of the incident. See id.
As a result of the March 25, 2011 incident, Defendant Maynes was charged with
misconduct and incompetence by the CNYDDSO as follows:
1. On March 25, 2011, at approximately 2:38 pm, you hit individual
M.S., while he was lying in his bed.

39

2. On March 25, 2011, at approximately 2:38 pm, you lunged
toward individual M.S. in a menacing manner to frighten M.S.
before you put on his underwear.
Dkt. No. 375-3 at 1-2. CNYDDSO suspended Defendant Maynes as a result of the charges and
recommended that she be terminated. See id.
In the subsequent arbitration proceeding, the arbitrator sustained the allegation of
psychological abuse, but not the allegation of physical abuse. See id. at 2. In making her
findings, the arbitrator described the conduct at issue as follows:
The camera was activated by motion within its range. The video
shows an interaction between Grievant and M.S. for a period of
approximately two minutes. At the outset, Grievant has approached
the side of the bed on which M.S. is lying. She brings her raised
arm down fast and hard either onto the bed or onto Grievant, who
has been shown on a slightly earlier clip as lying down on the bed.
Because the camera angle is too high to show the bed itself, it is
impossible to conclude with the requisite degree of certainty that
Grievant struck M.S. On this basis, Specification 1 cannot be
sustained. It is clear that Grievant was striking something,
however, so I conclude she was striking the bed. . . .
Throughout the approximately two minute period Grievant is on the
video, she is clearly very angry at M.S., speaking with an angry
expression on her face and gesticulating much of the time she is on
camera. The video begins with her hitting the bed hard, as stated
above. She then quickly throws a blanket back, presumably off of
M.S. M.S. then rises to a sitting position on the edge of the bed
with his back to the camera. Grievant disappears off screen and
returns with what appears to be an adult diaper. She approaches
Grievant and thrusts her face toward him with arms back in an
angry and threatening manner, speaking angrily. She then partially
puts this undergarment on M.S., who is sitting on the edge of the
bed. She then makes several trips to the closet, getting other
clothing for M.S, partially putting them onto Grievant who is still
seated on the bed, and taking away from the floor the underclothes
and pants M.S. had earlier taken off. She then leaves, speaking
with an angry expression one last time to M.S. before she does so.

40

Dkt. No. 375-3 at 3. The arbitrator also noted that Michael appeared calm during the entire
incident and that Defendant Maynes could not recall what had frustrated her on the day in
question. See id. Further, the arbitrator indicated that Defendant Maynes showed no remorse for
her "obvious misconduct" and failed to provide an explanation. See id. at 4. As such, the
arbitrator decided that termination was appropriate. See id.
Plaintiffs rely largely on the case West v. Whitehead, No. 04-cv-9283, 2008 WL 4201130
(S.D.N.Y. Sept. 11, 2008), in support of their position. See, e.g., Dkt. No. 371 at 26. In West, the
plaintiff was a non-verbal individual with "profound-range mental retardation" who resided in a
residence for developmentally disabled individuals. See West, 2008 WL 4201130, at *1.
Although the plaintiff was non-verbal, she could vocalize by making an "aaying" sound at times.
See id. Further, the plaintiff sometimes demonstrated aggressive and self-injurious behavior,
which was largely controlled by psychotropic medications. See id. Due to the plaintiff's
disabilities, she was unable to protect herself from abuse or peer aggression, or to communicate or
report abuse, discomfort, fear, injury, or illness. See id. The plaintiff alleged that throughout her
ten years as a resident she was subjected to numerous incidents of abuse and neglect, and that her
constitutional rights were violated. See id. In one such incident, the plaintiff was in a van with
several employees of the home. See id. at *4. The plaintiff was "aaying" very loudly and the
defendant asked one of the other employees, "'[w]here is the brush?'" Id. Upon seeing the brush,
the plaintiff "became quiet" and crossed her arms. See id. The defendant's supervisor later
reported that, upon seeing the brush, the plaintiff "'stopped aaying and flinched and immediately
sat back and away. While [the plaintiff] did this[,] she took her arms and wrapped them around
her.'" Id. Further, the supervisor noted that, while the defendant did not hit the plaintiff with the
brush, it appeared that she was afraid of it. See id. at *5. Moreover, the plaintiff also alleged that,
41

on several occasions, the defendant tied a bib around her face, between her nose and mouth. See
id. at *6. Finally, the most serious allegation involved the claim that the defendant beat the
plaintiff with a clothes hanger. See id. at *7. Although no one witnessed the actual alleged
abuse, bruises were observed on the plaintiff's body, and the defendant, who was one of two
employees working the shift, had spent several hours alone with the residents of the home before
the bruises were first noticed. See id. at *7-*9.
The plaintiff filed suit, alleging that the defendant violated her liberty interest in freedom
from physical, psychological, and emotional harm by carrying out "the alleged hairbrush, bib, and
hanger incidents, in addition to speaking to [the plaintiff] in a harsh and punitive manner on
numerous occasions." Id. at *16. Denying the defendant's motion for summary judgment, the
court first found that the plaintiff, as someone in the state's care, had a liberty interest in
reasonably safe conditions and freedom from physical, emotional, and psychological harm, as
well as freedom from excessive force unjustified by any legitimate governmental purpose. See id.
at *18 (citations omitted). As to the second element, the court found that "a reasonable jury could
conclude – taking into consideration Plaintiff's vulnerable state, her complete dependence on the
BRH staff members, and her inability to defend herself or report any abuse that she suffers – that
any conduct which takes advantage of these facts and causes her substantial harm shocks the
conscience, and therefore, violated Plaintiff's constitutional rights." Id. Further, the court held
that a reasonable jury could conclude that the defendant's alleged conduct was carried out only for
the purpose of causing harm, that there existed no legitimate governmental purpose for the
conduct, and that the conduct caused the plaintiff to suffer substantial physical and psychological
injury. See id.

42

In the present matter, the Court agrees with Plaintiffs that questions of fact preclude the
Court from granting Defendant Maynes' motion for summary judgment. The Court has reviewed
the video of the March 25, 2011 incident and finds that the arbitrator's decision provides an
accurate description of the event. Although the arbitrator did not sustain the allegation of
physical abuse because of the video angle, the Court finds that a reasonable jury could conclude
that Defendant Maynes struck Michael out of malice, as opposed to Michael's bed as Defendant
Maynes contends. Further, although there is no audio, the video clearly shows Defendant Maynes
angrily/aggressively addressing Michael and approaching him in a threatening manner. A
reasonable jury could conclude that this conduct violated Michael's constitutional rights to be free
from excessive force and physical, psychological, and emotion harm. See West, 2008 WL
4201130, at *17-*19.
Based on the foregoing, the Court denies Defendant Maynes' motion for summary
judgment as to the March 25, 2011 incident.

ii. Medication errors, wrist splint application, and failure to report
In their interrogatory responses to Defendant Maynes, Plaintiff asserted that "under her
supervision, Defendant Maynes and her co-workers were responsible for twenty-five medication
administration error, eleven Report Instances of Staff Abuse and/or Neglect . . . , seventeen
emergency room admissions, and hundreds of serious injuries, which directly affected Michael[.]"
Dkt. No. 242-10 at 1. Of all of the alleged violations, Plaintiffs only specifically identify
Defendant Maynes as being personally involved with the following: (1) Defendant Maynes failed
to report for ten days an incident where Defendant Graham sat on Michael's lap; (2) a medication
error on February 3, 2009 where Defendant Maynes gave Michael his medication with water that
43

did not have "Thick-it;" (3) a medication error on March 11, 2011 where Defendant Maynes gave
Michael his medication without liquid; and (4) Defendant Maynes failed to apply Michael's wrist
splint on February 17 and 19, 2011. See id. at 4-6.
Since Plaintiffs have failed to provide any evidence that Defendant Maynes was
personally involved in any alleged violations other than those specifically listed above, they are
subject to dismissal. In fact, for most of the allegations, Defendant Maynes has provided
evidence establishing that she was either not working or that they occurred after she was
terminated from Fravor Road or that she was simply not involved in the alleged conduct. See
Dkt. No. 242-1 at 15-19.
As to the specific alleged violations listed above, the Court finds that the conduct is not
arbitrary, conscience shocking, or oppressive. As discussed, on June 27, 2008, Defendant
Graham allegedly sat on Michael's lap, pointed her finger at his nose, and "declared 'I fucking
hate you. You are so bad.'" Dkt. No. 371 at 33. Defendant Maynes witnessed this incident but
did not report it until July 7, 2008. See Dkt. No. 242-1 at 22. During the investigation of this
event, Defendant Maynes was asked why she did not immediately report the incident, to which
she indicated that she had just started working at Fravor Road and because Defendant Graham
was her direct supervisor. See Dkt. No. 242-15 at 10, 12. Defendant Maynes further stated that
Defendant Graham spoke to Michael in a "'normal speaking voice'" and she did not appear to be
"angry, upset or out of control." Id. at 10. Further, Michael did not appear to be upset or fearful
during the incident. See id. Given the totality of the circumstances, Defendant Maynes' delay in
reporting this incident does not shock the conscience. See Lombardi, 485 F.3d at 82 (citations
omitted).

44

As to the two alleged medication errors which are attributable to Defendant Maynes, again
such allegations fail to support a due process claim. See Lee v. Richland Parish Detention Ctr.,
483 Fed. Appx. 904, 905-06 (5th Cir. 2012) (holding that the plaintiffs "allegations of a few
instances of delay or error in administering his medicine and in meeting his dietary needs
establish, at most, a disagreement with his treatment, unsuccessful treatment, or negligent
treatment, and do not amount to a constitutional violation") (citations omitted). Similarly, the
alleged failures to apply Michael's wrist splint are insufficient to impose liability under the
Fourteenth Amendment. See id. at 905 (dismissing the plaintiff's due process claim because he
failed to show that any of the instances of delayed medical treatment was done with "subjective
knowledge of facts from which an inference of substantial risk of serious harm could be drawn")
(citation omitted).
Based on the foregoing, the Court grants Defendant Maynes' motion for summary
judgment as it applies to the alleged medication errors, wrist splint application, and failure to
report.

6. Defendant Cora Spencer
Plaintiffs contend that, "[o]n two occasions in late February 2011, for no justifiable
reason, Spencer pushed and shoved Michael out of his room." Dkt. No. 371 at 28. On another
occasion, Plaintiffs assert that, in violation of Michael's behavior plan and in contravention of
generally accepted protocol, Defendant Spencer placed a laundry basket over Michael's head. See
id. Moreover, Plaintiffs argue that Defendant Spencer "verbally intimidated and berated Michael
(and other residents) on a constant basis using offensive language and an aggressive, threatening
tone." Id. Further, Plaintiffs claim that, on at least two occasions, Defendant Spencer
45

"intentionally unplugged Michael's radio, thus depriving him of a therapeutic sensory device, and
also kept a box of Michael's other sensory items locked away while other residents' sensory
devices were readily available to them." Id.

i. The "shoving" incident
Plaintiffs contend that on two instances in February of 2011, Defendant Spencer "pushed
and shoved" Michael out of his room. See Dkt. No. 371 at 28; see also Dkt. No. 251-24.
Defendant Spencer, however, contends that the video clearly shows that she was simply guiding
Michael out of his room. See Dkt. No. 409 at 14. Further, Plaintiffs argue that the Court "may
not resolve this quintessential factual question on this motion and, instead, should accept
plaintiffs' interpretation of the video depicting these incidents." Id. at 29. The Court disagrees.
Similar to Plaintiffs' allegations regarding the video of Defendant Finster allegedly
slapping Michael, the Court finds that Plaintiffs have grossly exaggerated/misrepresented this
alleged incident. The Court has reviewed the videos of the alleged incidents and agrees with
Defendant Spencer that they simply depict her guiding Michael into or out of his room by placing
her hand on the small of his back. See Dkt. No. 251-24. In fact, the New York State Trooper
who investigated the alleged incident concluded that "it appears that [Spencer and Dawn Bixler]
are either directing Michael into or out of his room" and that their actions "do not appear
criminal." Dkt. No. 251-31 at 13. Far from criminal, the alleged "shoving" depicted on the video
is something that no reasonable jury could conclude is conscience shocking. See Tierney v.
Davidson, 133 F.3d 189, 199 (2d Cir. 1998) (granting summary judgment where the alleged use
of force was "de minimis" and "benign"); House v. Wackenhut Servs., Inc., No. 10 Civ. 9476,

46

2012 WL 4017334, *24 (S.D.N.Y. Aug. 20, 2012) ("If the video is plaintiff's only evidence of
malice, there is no evidence of malice, because the video proves nothing").
Accordingly, the Court grants Defendant Spencer's motion for summary judgment as to
the alleged "shoving" incident.

ii. Wrist splint and medication issues
As discussed above, Michael's Residential Habilitation Plan provided that he should wear
his wrist splint during the day for a minimum of fifteen minutes per hour and a different hand
splint throughout the night. See Dkt. No. 251-25 at 3. The videos upon which Plaintiffs rely in
support of this claim are all less than two minutes in length and are insufficient to establish that
Michael's plan was not being complied with. Further, there are approximately ten dates starting
in February of 2011 through April of 2011 that Plaintiffs allege show Michael without his wrist
splint on. See Dkt. No. 389-1 at ¶¶ 324-343. The time sheets for Defendant Spencer, however,
conclusively demonstrate that she was not working during those ten days and/or times alleged.
See id. As such, Defendant Spencer was not personally involved in these alleged incidents. See
Wright, 21 F.3d at 501. The few remaining instances which can be attributable to Defendant
Spencer do not rise to the level of a substantive due process violation.
Plaintiffs also claim in their Counterstatement of Material Facts that Defendant Spencer
"failed to administer Michael's medication as prescribed" on several occasions either through the
use of non-thickened liquid or entirely without the aid of liquid. See Dkt. No. 409-1 at ¶¶ 11, 14.
These isolated incidents, in which Defendant Spencer is actually making sure that Michael
received his medication, just not in the exact manner prescribed, are patently insufficient to
support the alleged substantive due process violation.
47

iii. Unplugging Michael's radio
Plaintiffs contend that, on several occasions, Defendant Spencer unplugged Michael's
sensory devices, which were caught on video. See Dkt. No. 409-1 at ¶¶ 22-24, 29-30. In addition
to the instances caught on video, Plaintiffs claim that Michael's radio and other sensory items
were either removed from his room, not working, or unplugged. See Dkt. No. 389-1 at ¶¶ 417-19.
Although Plaintiffs admit that Mary-Anne Surlock's journal indicates that employees other than
Defendant Spencer were working at the time these incidents were discovered, Plaintiffs deny the
allegation that Defendant Spencer was not involved with any of these incidents. See id.
Specifically, Plaintiffs contend that the "dates stated are often dates when acts of retaliation were
discovered and the act may have occurred one or more days prior to the discovery by the
Surlocks." Id. at ¶ 417.
Plaintiffs' speculation that Defendant Spencer was somehow personally involved in the
incidents that they did not witness is insufficient to withstand the pending motion. As to the
incidents caught on video in which Defendant Spencer is seen unplugging the radio, these isolated
incidents are also insufficient to withstand summary judgment. Nothing in the record indicates
that these acts were done with malice or that Michael was harmed in any way from these isolated
incidents. Under any of the standards set forth above, the allegations and evidence submitted in
support thereof are insufficient to support a substantive due process claim.17

According to Defendant Finster, when staff started to suspect that they were being
recorded on video, they unplugged items such as Michael's radio, thinking that the recording
device might be located within them. See Dkt. No. 375-8 at 2.
17

48

Based on the foregoing, the Court grants Defendant Spencer's motion for summary
judgment as to these allegations.

iv. Duty to protect Michael from harm
Although Plaintiffs admit that Defendant Spencer was not a supervisor, they contend that
she nevertheless had a duty to monitor and care for all residents and to protect them from harm.
See Dkt. No. 371 at 30-31. Plaintiffs claim that, despite this duty, "Michael suffered scores of
injuries, many of which were self-inflicted." Id. at 31. In support of this assertion, Plaintiffs cite
to three exhibits, with no pincite to specific pages within those exhibits. See id. (citing Exs. 6, 10,
and M-38). Exhibit "6" is a 297 page document that Plaintiffs have entitled "Injuries Linked to
FR Defendant Timesheets + BC + PRN." Dkt. No. 372-1; see also Dkt. No. 371-2 at 2. This
handwritten document, appears to be a summary of injuries Michael sustained on various dates
and provides who was working on the day in question. While in theory such a summary should
be helpful, Plaintiffs fail to provide any meaningful citation to where in the record this
information is actually found. Although it appears that Plaintiffs did attempt to make reference to
the underlying documents used to generate the summary, they did so using what appear to be
designations used by Plaintiffs' attorneys and are entirely unhelpful in locating the underlying
documents. See, e.g., Dkt. No. 372-1 at 3 (citing to, among other things, "Behavioral Data File
S131104" and "Body Charts File DD7119"). It is neither the Court's nor opposing counsel's
responsibility to scour the record in this case – which is thousands of pages – to determine
whether such evidence actually exists. Plaintiffs also cite to Exhibit "10" which does not appear
to exist. In fact, according to Plaintiffs' declaration, Exhibit "10" is entitled "(No Exhibit)." Dkt.
No. 371-2 at 2. Plaintiffs' conclusory allegations, unsupported by any evidence that Defendant
49

Spencer was even present when these unspecified injuries occurred, is insufficient to withstand
summary judgment on this claim.
Further, the only case upon which Plaintiffs rely in support of this conclusory argument is
Doe v. N.Y.C. Dep't of Soc. Servs., 649 F.2d 134 (2d Cir. 1981). That case, however, discusses
when officials in charge of an agency can be held liable for alleged Section 1983 violations. See
id. at 141. As a non-supervisory official, the case is entirely inapplicable to Defendant Spencer.
Based on the foregoing, the Court grants Defendant Spencer's motion for summary
judgment as to these allegations.

v. Laundry basket incident and abusive language
Plaintiffs contend that, "in violation of Michael's behavior plan and in contravention of
generally accepted protocol, [Defendant] Spencer placed a laundry basket over Michael's head."
Dkt. No. 371 at 28. Further, Plaintiffs assert that Defendant Spencer "verbally intimidated and
berated Michael (and other residents) on a constant basis using offensive language and an
aggressive, threatening tone." Id. Defendant Spencer contends that, even assuming the truth of
these allegations, they are insufficient to support a substantive due process cause of action.
According to Defendant Finster, while in the general living area with Defendant Spencer,
Michael and the other residents, Michael began "acting up." Dkt. No. 375-6 at 3-4. In response,
Defendant Spencer "put a laundry basket over his head to see if that would calm him down or
something. And she took it back off, but Cora is kind of intimidating. . . . I didn't try to say too
much around her, but I did mention it to Ron a different day." Id. at 4. Moreover, Defendant
Finster testified that Defendant Spencer constantly used foul language directed at Michael and the

50

other residents. See id. at 4-5. For instance, she specifically recalled Defendant Spencer saying
things such as "get your f-ing butt up, or go in the f-ing kitchen." Id. at 4.
As Plaintiffs correctly contend, considering the totality of the circumstances, the Court
finds that a reasonable jury could find that this conduct violated Michael's substantive due process
rights. Like the plaintiff in West, questions of fact exist as to whether the alleged verbally abusive
and harsh manner, in addition to the laundry basket incident which was clearly not an approved
manner in which to assist Michael when he was engaging in self-injurious behavior, violated
Michael's liberty interest in being free from physical, psychological, and emotional harm. See
West, 2008 WL 4201130, at *16-*18. Although Defendant Finster believed that Defendant
Spencer placed the basket on Michael's head in an effort to calm him down, that belief could be
rejected by the jury upon weighing her credibility. Rather, a reasonable jury could conclude that
the conduct was not done in an effort to aide Michael, but was actually done maliciously or in an
effort to cause Michael psychological harm. See Shabazz v. Pico, 994 F. Supp. 460, 475
(S.D.N.Y. 1998) (holding that, "[u]nder certain circumstances, the intentional infliction of
psychological pain may constitute an Eighth Amendment violation, so long as the pain is not de
minimus") (citation omitted). If the alleged conduct occurred as Plaintiffs claim, the Court finds
that, taking into consideration Michael's vulnerable state, his complete dependence on the Fravor
Road staff members, and his inability to defend himself or report such abuse, a reasonable jury
could conclude that this conduct shocks the conscience. See West, 2008 WL 4201130, at *18.
Indeed, a reasonable jury could conclude that Defendant Spencer's alleged conduct was carried
out only for the purpose of causing harm, that there existed no legitimate government purpose for
the conduct, and that the conduct caused Michael to suffer substantial psychological injury. See
Lewis, 523 U.S. at 848 (stating that "conduct intended to injure in some way unjustifiable by any
51

government interest is the sort of official action most likely to rise to the conscience-shocking
level").
Based on the foregoing, the Court denies Defendant Spencer's motion for summary
judgment as to these allegations.

7. Administrative Defendants
Plaintiffs contend that Defendants Gleason, O'Brien and DiNuzzo (the "Administrative
Defendants") "deprived Michael of his rights to be provided a reasonably safe environment and
protected from harm, to be provided adequate medical care and minimal training and to be free
from physical and psychological abuse and that their decisions which caused these deprivations
departed substantially from prevailing professional standards or were otherwise deliberately
indifferent to Michael's rights." Dkt. No. 371 at 50. First, Plaintiffs claim that "by failing to
provide Michael the level of supervision he required, these defendants failed to protect Michael
from his own self-injurious behavior." Id. (citation omitted). According to Plaintiffs, it is
undisputed that the Administrative Defendants had knowledge of the seriousness of Michael's
self-injurious behavior and the severe physical injuries he sustained as a result thereof. See id.
(citing Exs. 2, 4, 6-8). Further, Plaintiffs contend that, "over the years, Michael's parents, his
Medicaid Service Coordinators, OPWDD's Commission on Quality Care and even certain
OPWDD employees working with Michael advised these defendants that Michael did not have
adequate supervision at Fravor and required one-to-one care." Id. (citing Exs. 8). Plaintiffs argue
that "despite having authority to act and awareness of the numerous requests from qualified
professionals that they do so, and despite their awareness of the substantial risk of serious injury
to Michael, these defendants repeatedly refused to even attempt one-to-one care." Id. at 51 (citing
52

Ex. 8). "Instead, in December 2009, the Administrative Defendants, in conjunction with
Michael's treatment team, decided to provide Michael 'enhanced staffing' on Saturdays and
holidays only. . . . This limited measure provided line-of-sight supervision of Michael by a
dedicated staff member throughout the day." Id. at 51-52 (citing Ex. M-60). According to
Plaintiffs, this limited measure proved ineffective, and the repeated requests for one-to-one care
by themselves and others were again denied. See id. at 52.
As the Administrate Defendants correctly contend, the vast majority of citations to the
record that Plaintiffs provide simply do not support their allegations. For example, Plaintiffs
repeatedly argue that the van used to transport Michael was unsafe and that, despite being
informed of this, they "still failed to take reasonable measures to protect Michael and provide him
with an adequately safe environment during transport." Dkt. No. 415-8 at ¶ 13 (citations
omitted). The exhibits to which Plaintiffs cite, however, demonstrate the lengths to which the
Administrative Defendants went to ensure that Michael was transported safely and to address the
demands of his parents. For example, in a series of emails, Joyce Flynn discusses the fact that she
spoke with two separate contractors regarding replacing the seat in the transport van to better
ensure Michael's safety during transport and to prevent any injuries that might occur if Michael
engages in self-injurious behavior during transport. See Dkt. No. 382-1 at 60-61 (Ex. A-167).
The email recounted Ms. Flynn's conversation with Mr. Surlock regarding the available options
and indicated that it was a productive conversation and that Mr. Surlock "expressed thanks" for
the call. See id. Far from supporting Plaintiffs' claim, the evidence demonstrates that the
Administrative Defendants took immediate action on Mr. Surlock's concerns about safely
transporting Michael in the van. Moreover, even assuming that the Administrative Defendants

53

failed to take these steps as alleged, Plaintiffs fail to provide any evidence that Michael suffered
any injury as a result of the alleged nonfeasance.
Moreover, Plaintiffs also claim that "[o]n Wednesday, February 18, 2009, plaintiffs
expressed concerns regarding Michael's care. Instead of attempting to correct the numerous
problems that Michael faced, Defendant Gleason suggested that Michael be moved to a new
home." Dkt. No. 415-8 at ¶ 14. The only evidence cited in support of this claim is an entry from
Mrs. Surlock's journal. See Dkt. No. 382-1 (Ex. A-170). This journal entry provides as follows:
Had meeting at 6:00 p.m. at DSO in Syracuse with John Gleason
[and] Tony DiNuzzo. Lasted about 2hr 20 minutes. They seemed
to listen to us and agreed things did not go right, right from day one.
John felt that Laurie should not be involved with us. He suggested
a new psychiatrist [and] he would have him get in touch with us.
Asked if we wanted Michael moved to a new house. Suggested a
few homes in Camden that he felt would be good for Michael but
there are no openings as of this time. He said we could go [check]
them out anytime we wanted to.
I did feel like they wanted to end the meeting [and] we still had
things to talk about.
At morning DSO meeting Donna again tells Brad Michael has a
dental [appointment] on March 5th but she's not sure of the time –
will get back to us.
Dkt. No. 382-1 at 67-68 (Ex. A-170). This journal entry does not identify any specific concerns
Plaintiffs expressed that Defendants Gleason and DiNuzzo failed to address. Rather, it
demonstrates that Defendants Gleason and DiNuzzo spent a considerable amount of time – two
hours and twenty minutes – in an attempt to allay Plaintiffs' concerns regarding Michael's care.
Further, in Mrs. Surlock's own words, Defendant Gleason offered Plaintiffs the option of moving
Michael to one of a few homes, which "he felt would be good for Michael[.]" Id.

54

Contrary to Plaintiffs contentions, the undisputed facts in this case demonstrate that the
Administrative Defendants actively participated in Michael's care, provided thorough oversight,
and were responsive to concerns that were brought to their attention. The record clearly
demonstrates that the Administrative Defendants constantly fielded calls, letters, and emails from
the Surlocks, sometimes on a daily basis. Once Michael's BMP, IPOP, and other care plans were
developed and implemented, CNYDDSO was inundated with calls, letters, and complaints from
the Surlocks regarding every aspect of Michael's care, from minor details such as whether his bed
was made and his laundry done properly, to more concerning issues of injuries and medication
errors. Further, the record is replete with instances in which Plaintiff Bradford Surlock would
complain to a supervisory official about some aspect of Michael's care, treatment, or interaction
with staff. Then, without giving that supervisor any time whatsoever to remedy the situation or
even investigate, he would proceed to complain to someone else in the agency's hierarchy. See,
e.g., Dkt. No. 383-1 at 18-19. For example, on February 17, 2010, Defendant Gleason spoke
directly with Mr. Surlock regarding some of his concerns, which Defendant Gleason assured him
that he would look into. See id. at 25. Defendant Gleason also told Mr. Surlock that, after
investigating his concerns, he would be back in touch with him to set up a time to meet with him,
which his secretary attempted to do that same day. See id. However, following Defendant
Gleason's conversation with Mr. Surlock, and before permitting him time to attempt to follow up
as agreed, Mr. Surlock proceeded to call Defendant O'Brien and voiced the same concerns. See
id. According to the email, Defendant O'Brien was forced to terminate the call after Mr. "Surlock
refused to stop screaming into the phone, calling her names, and belittling her every attempt to
have a reasonable conversation about the issues." Id. Thereafter, still on February 17, 2010, Mr.
Surlock attempted to call Ceylane Meyers, who is listed as a client advocate with OPWDD. See
55

id. at 26. Although Ms. Ceylane was unavailable that day, Bertha Moore reported that, upon
informing her about all of his complaints, which had just been relayed to Defendants Gleason and
O'Brien, Mr. Surlock asked that Ms. Ceylane call him back and also indicated that "he is ready to
talk to the papers to express his anguish and frustration over the care and lack of response he is
receiving from the DDSO." Id.
Plaintiffs are correct that the suggestion was made that Michael and staff would benefit
from 1:1 staffing for Michael and that this was not implemented. See Dkt. No. 382-2 at 87. The
record, however, clearly demonstrates that, in light of this recommendation and the
Administrative Defendants' recognition that Michael needed more staff attention, several changes
were made. See id. First, several changes at Fravor Road helped increase the staff-to-patient
ratio. See id. For example, they increased staff during the evening shift, "which was specifically
done for Michael." Id. Also, an additional nurse was hired in January of 2009. See id. Further,
when another patient was moved to a different facility, Defendant O'Brien decided to keep that
bed vacant, thereby reducing the number of patients residing at Fravor Road to nine. See id.; see
also Dkt. No. 383-1 at 20-24.
Further, other staff, including Defendant Alexander, indicated in an email to the
Administrative Defendants that "Michael having a 1:1 staff is not necessarily the answer." Dkt.
No. 383-1 at 7. Defendant Alexander further expressed the belief that even if Michael was
provided with 1:1 staff, it would not necessarily prevent Michael from injuring himself when he
engages in self-injurious behavior and there would still be injuries for which the staff could not
explain. See id. at 7-8. Defendants O'Brien and Elliott similarly expressed the opinion that 1:1
staffing would not prevent Michael from hurting himself when he engages in self-injurious
behavior. See Dkt. No. 374-1 at 62. As such, the Administrative Defendants' failure to acquiesce
56

to this request can hardly be said to constitute a substantive due process violation. Rather, this
was a mere disagreement as to the appropriate treatment that Michael should receive. Moreover,
in a letter to Defendant Gleason on September 14, 2009, Michael's Medicaid Services
Coordinator ("MSC") Caitlin Prior noted that Michael's care was already "virtually one on one"
and that "his behaviors need to be dealt with in another way[.]" Dkt. No. 374-1 at 16. In a
follow-up letter dated September 25, 2009, Ms. Prior suggested that 1:1 staffing or downsizing
the home would be beneficial to Michael. See id. at 17 (emphasis added).
Additionally, the undisputed facts clearly demonstrate that the Administrative Defendants
spent extraordinary amounts of time attempting to address the Surlocks's concerns. For example,
soon after Michael first moved into the Fravor Road facility, Defendant O'Brien, along with
members of Michael's care team, held weekly meetings with Plaintiffs Bradford and Mary-Anne
in an attempt to facilitate better communication between the Surlocks and the staff, and to work
together to ensure that Michael was receiving care and treatment to everyone's satisfaction. See,
e.g., Dkt. No. 382-1 at 103. Such conduct can hardly be said to be conscience shocking or acting
with deliberate indifference.
Plaintiffs rely on their expert, Mark Levine, in support of their contention that "the
prevailing standards of professional judgment require the decision maker to be proactive and not
just reactive and that the Administrative Defendants here substantially departed from this
standard. . . . More specifically, Levine explained that, if certain measures proved ineffective, the
exercise of professional judgment requires the decision maker to try a different approach." Dkt.
No. 371 at 52; see also Dkt. No. 371-7 at 17. However, as discussed, Michael's care team, with
the Administrative Defendants' oversight, continually reviewed and revised Michael's behavior

57

and treatment plans. This occurred not merely on a regular basis, but also in response to issues as
they arose.
The record clearly demonstrates that the Administrative Defendants, along with Michael's
care team, repeatedly revised Michael's treatment plan, largely based on suggestions/demands
made by the Surlocks. Despite tension between the Surlocks and Fravor Road staff, the team
members continued to ensure that the Surlocks' input was solicited and acted upon. For example,
starting in October of 2009, the care team developed a revised "toileting plan" "after lengthy input
from both parents, OT, and Psychologist." Dkt. No. 382-2 at 104. In an email from Defendant
O'Brien to the other Administrative Defendants, as well as members of Michael's care team,
Defendant O'Brien directed that the "clinical staff will ensure that Mr. Surlocks [sic] input is
included, and that he supports the plan before it is implemented." Id. This toileting plan, which
required staff to prompt Michael to use the bathroom every forty-five minutes, was implemented
at the Surlocks' insistence, and required staff to prompt Michael to use the bathroom considerably
more frequently than the toileting schedule for the other residents, who required prompting about
every two hours. See id. at 105. Despite the concessions, the Surlocks were still not entirely
satisfied with the new plan because they wanted language added that, in the event that Michael
did not go to the bathroom at the forty-five minute interval, staff must retry at fifteen-minute
intervals until he goes to the bathroom. See id. at 107. Although the language was not
specifically included, staff indicated that fifteen-minute retry "was likely but could not be
guaranteed" because of their other responsibilities. See id. These allegations clearly fail to
support a substantive due process claim.
Moreover, Michael's care/treatment team and Defendant O'Brien spent considerable
amounts of time discussing how best to ensure that Michael stayed safe when he engaged in self58

injurious behavior. During an August 12, 2010 meeting, the care team proposed potentially
locking Michael's bedroom door at certain times during the day to prevent him from entering the
room because the majority of his self-injurious behavior occurred in the bedroom. See Dkt. No.
374-1 at 40-42. Although Mrs. Surlock believed that this was an idea worth trying, Mr. Surlock
opposed the idea and remained steadfast in his position that the only appropriate course of action
was to provide Michael with 1:1 staffing. See id. The staff explained to Mr. Surlock that, even
with 1:1 staffing, the assigned staff member would not follow Michael into his bedroom at all
times, only when assisting him with tasks or when they observe that he is about to engage in selfinjurious behavior. See id. at 43-44. Further, Defendant O'Brien inquired whether the Surlocks
would oppose if they requested to put a video camera in Michael's room so that staff would be
able to hear some of the telltale signs that generally occurred prior to episodes of self-injurious
behavior. See id. at 45. Although indicating that it was not a perfect solution, Mrs. Surlock was
receptive to the idea. See id. Mr. Surlock, however, indicated that "[p]utting a little monitor in
his room is unacceptable" and remained insistent in his view that the only acceptable solution was
to provide Michael with 1:1 staffing. See id.
Moreover, when Defendant O'Brien first assumed oversight for Oswego County, she had a
meeting with the Surlocks at their home which lasted for approximately three hours. See Dkt. No.
383-1 at 3. Defendant O'Brien assured them that she would look into some of the past events that
were of concern to them, but tried to get them focused on moving forward and working in a more
positive way with staff to ensure Michael is provided will all that he needs. See id. According to
Defendant O'Brien, the following is an outline of what she had in mind and "loosely discussed
with the family:"

59

1. I will look into the past issues. I asked them to refrain from
bringing up past concerns with the team, in order to be more
focused on moving forward.
2. End the Wednesday meetings. It has become a free for all attack
session, and not one that I feel worthy of supporting.
3. Instead meet only as needed to work on specific issues, such as
the toileting schedule plan, and other issues as they come up. Any
meetings will have ground rules such as respected listening.
4. I will work with the team to develop a more positive interaction
style, and coping strategies for working with this family.
5. The MSC will be a partner in developing teamwork.
Dkt. No. 383-1 at 3-4.
Finally, the record demonstrates that the Administrative Defendants engaged in extensive
investigations and reviews when alleged errors or inadequacies were brought to their attention.
See, e.g., Dkt. No. 383-1 at 29-41. These investigations led to improvements and changes to help
ensure that Michael received the care he needed. See id. In fact, in a seven-page letter dated
April 17, 2010 from Mary-Anne Surlock to Defendant Gleason, Mrs. Surlock rehashes many of
the perceived slights, incidents of staff being rude to her and her husband, and alleged
inadequacies in Michael's care and treatment that had been the focus of many past discussions.
See Dkt. No. 383-1 at 42-48. After rehashing these past events, Mrs. Surlock concludes the letter
as follows: "John, I feel that you are a good man, dedicated to your job. I know you are a very
busy man but when we have come to you in the past you do seem to care and help to get things
done. I can't help but feel that you may not know all the details of the problems. On several
occasions when Brad spoke to you on the phone with regard to a problem you never once thought
. . . they were unreasonable requests. I do hope we can keep the doors open and move beyond
these problems." Id. at 47-48.
60

The undisputed facts clearly demonstrate that the Administrative Defendants exercised
their professional judgment as administrators of OPWDD in making decisions about what was in
the best interests of residents and staff. Through the Administrative Defendants' oversight, with
the input of Michael's program team and his parents, issues involving both safety and
programming were developed, decided, authorized, and managed with oversight provided by the
Behavior Management Committee ("BMC"). Additionally, Defendants authorized the use of
restraining devices and medication, including helmets, psychotropic drugs, straps, restraints, and
other restraining measures were implemented and repeatedly revised to address Michael's needs.
Further, the Commissioner's Committee for Review of Restrictive Interventions ("CRC") oversaw
the use of Michael's safe chair. When the CRC declined to extend authorization for use of the
safe chair because of the progress Michael was showing and the reduced need for its use,
Plaintiffs appealed the decision, which was affirmed by the Commissioner of OPWDD. See Dkt.
No. 418 at 10; Dkt. No. 415-2 at ¶¶ 62-63.
In the decision denying their appeal to the Commissioner regarding the reduced use of the
safe chair, the Commissioner found that Plaintiffs "offered no evidence to show where and when
each injury was sustained by Michael, and thus failed to establish that the injuries were the result
of the use of the less restrictive methods being used by Fravor IRA. Mr. Faber testified that most
of the injuries sustained by Michael occurred outside the Fravor residence while he was attending
a day program at a private agency, a fact which was not contested by appellants." Dkt. No. 37732 at 6. Moreover, in response to Plaintiffs' argument that Michael's behaviors improved over
time, thereby justifying the reduced use of the safe chair, the Commissioner noted as follows:

61

However, as previously discussed, the BP18 with the
implementation date of October 15, 2011 references the progress
that Michael has made with regard to the decreased use of the safe
chair and the increased use of the safe area and bean bag chair. In
its November 15, 2011 letter, the CCRII, having reviewed the
current BP, concurred that improvements toward the goal of fading
use of the safe chair had been demonstrated. In fact, all of the
letters from the CCRII entered into the record, dating back to 2009,
and the Bps dating back to 2010, called for fading use of the safe
chair and recommended continued efforts in the use of less
restrictive methods to assist Michael in calming himself. The safe
chair has been recommended for use as a last resort, if other
methods are not successful in calming Michael during a SIB
episode. The safe chair has consistently been approved for use by
the CCRII in accordance with these plans and the plans are
consistent with therapeutic, clinical, safety and regulatory
requirements and goals.
Dkt. No. 377-32 at 6. Finally, the Commissioner held that reducing the use of the safe chair was
supported by credible evidence, and indicated that
the evidence at the hearing shows that the methods implemented
have had positive results. According to the 2011 BP, the episodes
of SIB have decreased, there have been no major injuries in over a
year, and as a result, there has been a decreased need for use of the
safe chair. It is the consistent policy of OPWDD that the least
restrictive intervention methods always be used, when appropriate.
This includes the use of the bean bag chairs and a safe area, as
prescribed in the plans presented.
Id.19
The decision to reduce the use of the safe chair, along with a majority of the other
complaints discussed above, demonstrate that the Surlocks simply disagreed with the professional

18

Behavior Plan.

As the Administrative Defendants correctly contend, they are also entitled to summary
judgment relating to any claims that they caused the removal or limited use of Michael's safe
chair because they were not personally involved in the decision. The evidence clearly
demonstrates that the decision was made by the Commissioner's Review Committee on
Restrictive Interventions and it was upheld by Courtney Burke, who was then the Commissioner
of OPWDD. See Dkt. No. 415-2 at ¶ 65.
19

62

opinions regarding the appropriate treatment methods for their son. Such disagreements, do not
constitute deliberate indifference. See Chance, 143 F.3d at 703. When a person is
institutionalized or living in state care like Michael and wholly dependent on the state, a duty to
provide certain services and care exists. Although such a duty exists, the state "necessarily has
considerable discretion in determining the nature and scope of its responsibilities." Youngberg,
457 U.S. at 317 (citing Richardson v. Belcher, 404 U.S. 78, 83-84 (1971); Dandridge v. Williams,
397 U.S. 471, 478 (1970)). Despite the Surlocks' disagreements over the treatment and care
Michael received, the undisputed facts demonstrate that Michael's incidents of self-injurious
behavior decreased over time as a result of the modifications to his behavior plan, changes were
made to enhance his level of supervision and to increase staffing at Fravor Road, and staff
continually worked to become better equipped to manage Michael's challenging behaviors. As
the Administrative Defendants note, the fact that the safe chair was ultimately ordered
discontinued is evidence that Michael's self-injurious behavior was improving, even in the
absence of the strict one-on-one supervision the Surlocks' demanded. Far from deliberate
indifference, the evidence demonstrates that the Administrative Defendants provided an
incredible amount of supervision and were very responsive to the issues that arose. Although
mistakes were undeniably made at various times, the Administrative Defendants were not
responsible for these incidents and, when brought to their attention, they acted in a timely manner
to ensure that the matter was appropriately handled.
Based on the foregoing, the Court grants the Administrative Defendants' motion for
summary judgment as to Plaintiffs' substantive due process claim.

8. The Nurse Defendants
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Plaintiffs contend that the Nurse Defendants had an affirmative obligation to provide
Michael reasonably adequate medical care and to protect him from harm. See Dkt. No. 371 at 35.
Further, Plaintiffs argue that they had a supervisory obligation to ensure that their subordinate
staff were providing adequate care to Michael. See id. Despite these obligations, Plaintiffs claim
that "the record demonstrates that these defendants substantially departed from prevailing
professional standards or were otherwise deliberately indifferent to Michael's rights and, as a
result, Michael was harmed and put at substantial risk for significant medical complications and
injuries." Id.
In support of this claim, Plaintiffs assert that, "during their respective tenures as the
supervising Fravor Road nurse, Motyka's staff was responsible for at least thirteen medication
errors, . . . Reynolds' staff was responsible for at least three medication errors, . . . and Dickerson's
staff was responsible for twenty-one medication errors." Id. (citing M-31).20 According to
Plaintiffs' expert, based on the inadequacy of the record-keeping and reporting processes the
Nurse Defendants followed, the actual number of medication errors over this time frame is likely
higher. See id. Moreover, Plaintiffs contend that a reasonable jury could find that Michael's
substantive due process rights were violated through Defendant Motyka's failure to suspend or
counsel any of the direct care staff despite the repeated documented medication errors. See id. at
36-37.
In their reply, the Nurse Defendants generally concede personal involvement regarding the
allegations pertaining to their training and oversight of medication administration. See Dkt. No.

The Court notes that Plaintiffs cite to Exhibit "M-31" in support of this assertion. See
Dkt. No. 371 at 35. This exhibit, however, is simply a summary of alleged medication errors
created by either Plaintiffs' counsel or Plaintiffs themselves, and provides no indication as to
where this information is actually contained in the record.
20

64

414 at 6-7; see also Dkt. No. 253-4 at 8. They note, however, that Plaintiffs' response relates
"solely to the Nurse Defendants' oversight of medication administration; no other conduct by the
Nurse Defendants is implicated." Dkt. No. 414 at 7. As such, the Nurse Defendants argue that
because "Plaintiffs do not address the other allegations previously raised, the Court should
therefore consider them abandoned." Id. The Court agrees. Plaintiffs' response only addressed
the Nurse Defendants' alleged responsibility for the medication administration errors. As such,
the Court finds that Plaintiffs have abandoned all substantive due process claims against the
Nurse Defendants except for those relating to the alleged medication administration failures. See
Jackson v. Federal Exp., 766 F.3d 189, 197-98 (2d Cir. 2014) (holding that, where a party is
represented by counsel and files a partial response to a motion for summary judgment, i.e.,
referencing some claims or defenses but not others, the court may deem abandoned those claims
or defenses that are not defended); Howard v. City of New York, 62 F. Supp. 3d 312, 324
(S.D.N.Y. 2014) (same). This result is particularly appropriate considering the amount of time
Plaintiffs spend in discussing the alleged medication administration failures and the lack of any
indication in the record that the Nurse Defendants were in any way personally involved in the
numerous other allegations supposedly supporting Plaintiffs' substantive due process claims.
Plaintiffs incorrectly assert that Defendant Motyka failed to suspend or counsel any of the
direct care staff in response to medication errors. On February 3, 2009, Defendant Maynes was
observed giving Michael his final three pills with regular water after she ran out of thickened
liquid, in violation of his care plan. See Dkt. No. 387-1 at 299. In response to this incident,
Defendant Maynes was not permitted to accept the medication keys or pass medication until she
was retrained by the supervising nurse (Defendant Motyka). See id. at 299-300.

65

Plaintiffs also take issue with the fact that Defendants Motyka and Dickerson's "responses
to medication errors were entirely reactive, not proactive. The most they did was verbally
counsel direct care staff on what that person did wrong and warn them not to make the same
mistake in the future." Dkt. No. 371 at 38. Again, this statement is misleading. First, as required
by the regulations, the Nurse Defendants were required to re-certify the direct care staff on a
yearly basis so that they could continue to distribute medication to patients. Second, as discussed
in more detail below, the Nurse Defendants did take additional steps in addition to "verbally
counseling" the direct care staff. For example, when issues were brought to their attention, the
direct care staff were retrained to avoid the issue in the future. Further, additional safeguards
were put in place to ensure that when Michael's prescriptions would change (which occurred on a
regular basis), all individuals responsible for distributing his medication would be aware. Third,
the very nature of the alleged medication errors dictates that their responses would be "reactive,
not proactive." As Defendant Motyka explained, one staff member would dispense the
medication for the house, while another would distribute it to the patients. See Dkt. No. 254-4 at
100-01. Only after the medication has been distributed would the records be reviewed to ensure
that the patients received their medication as prescribed. See id. Absent the Nurse Defendants
following the direct care staff from patient to patient, observing each patient receiving his
medication, each time medication was being distributed, the "proactive" response that Plaintiffs
claim should have occurred would be impossible. Indeed, while Plaintiffs argue in a conclusory
fashion that the Nurse Defendants should have been more "proactive" in dealing with medication
errors, they fail to provide any example as to how such a proactive response would be possible.
Moreover, Mary-Anne Surlock admits that, when medication errors were discovered, the
issues were discussed and the offending direct care worker was re-educated as to the proper
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procedures to follow. See Dkt. No. 385-2 at ¶ 14. Plaintiffs complain that this re-education
process was insufficient and that the direct care workers should have had their certification to
administer medication suspended. Again, however, Mary-Anne Surlock admits that, in one
instance where a direct care worker made four medication errors during the same shift, the Nurse
Defendants did, in fact, suspend this worker's certification. See id.
Additionally, Plaintiffs deny in an entirely conclusory fashion that direct care workers
were re-educated when medication errors were discovered. For example, the Nurse Defendants
contend that, on May 5, 2012, it was claimed that the direct care staff failed to administer the
proper dosage of Lamictal. See Dkt. No. 385-1 at ¶ 108. Further, according to the Nurse
Defendants, Monique Dickerson "followed-up with the direct care staff and re-educated the staff
on protocol including the three checks required for proper medication administration." Id. at ¶
109. Plaintiffs deny that staff was re-educated, but only provide citation to a summary list of
medication errors that Plaintiffs themselves created for this litigation. See id. (citing Ex. 1). This
summary does not refute the fact that Defendant Dickerson re-educated direct care staff after this
alleged error.
Further, it is alleged that, on May 28, 2010, direct care staff failed to administer a dose of
Depakote. See Dkt. No. 385-1 at ¶ 71. Again, the Nurse Defendants contend that Defendant
Dickerson followed up with the direct care staff and re-educated them on protocol, including the
three checks required for proper medication administration. See id. at ¶ 72. In denying this
allegation, Plaintiffs cite to the same summary of medication errors, as well as letters from the
Commission seeking explanations and Fravor Road's response to the requests. See id. (citing Exs.
N-38-48, N-51, and Ex. 1). Plaintiffs claim that these exhibits demonstrate "that the direct care
staff was not re-educated." Id. (emphasis in original). These exhibits, however, repeatedly
67

indicate that the direct care staff was "re-trained on three checks and proper med administration
protocols." Dkt. No. 385-4 at 99. Moreover, to address the concern that the direct care staff were
not providing timely notice to the supervising nurse, the Nurse Defendants "provided training to
staff with a written protocol of their responsibility for timely notification and documentation of all
med events." Id. Once again, these exhibits do not support Plaintiffs' contention that the Nurse
Defendants did not re-educate/re-train direct care staff when medication issues occurred. As to
nearly every alleged medication incident in which Plaintiffs deny an adequate response by the
Nurse Defendants, Plaintiffs rely on these same documents which, if anything, support the Nurse
Defendants' position that actions were always taken to prevent these incidents from happening in
the future.
Moreover, Plaintiffs complained to the Commission that on April 27, 2009, Dr. Bock
issued a prescription for CoQ10, which was not started as prescribed. See Dkt. No. 385-4 at 102.
As noted by both Defendant Gleason and the Commission, this prescription was not immediately
administered to Michael at the request of Bradford Surlock! See id. at 99, 102. It is conceded
that the direct care staff should have informed the supervising nurse, who then should have
contacted the prescribing physician. See id. Again, in response to this, the Nurse Defendants
provided training to staff with written protocols of the actions expected of them, should this issue
arise in the future. See id. at 99. Interestingly, Plaintiffs now claim that, despite the fact that the
supplement was not immediately given to Michael as prescribed at Mr. Surlock's request, the
Nurse Defendants' failure to immediately administer the supplement somehow violated Michael's
substantive due process rights.
Further, the evidence demonstrates that additional safeguards were put in place to address
the issues of medication errors. According to a letter dated August 2, 2010 from the Commission
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on Quality of Care and Advocacy, the Commission was satisfied with the newly implemented
procedures put in place to address the issues related to medication errors. See Dkt. No. 385-4 at
97. Specifically, the Commission approved of the decision to inform the prescribing physician
any time a medication error occurred to seek guidance on how to proceed. See id.
In an entirely conclusory manner, Plaintiffs also argue that Michael was harmed by these
medication errors. See Dkt. No. 371 at 41. They contend that "the Nurse Defendants' expert's
opinion as to the clinical effect of these medication errors is based entirely on theory; she did not
personally observe or examine Michael after these errors." Id. (citing Dkt. No. 252-5). Mr. and
Mrs. Surlock contend that they "witnessed first-hand the physiological effects of these
medications errors on their son, see (Ex. G-72 and J), and so a reasonable jury could find that
these errors, in fact, caused Michael physical harm." Id. Further, Plaintiffs argue that, "even if
Michael experienced no physiological effect from these specific medication errors, a reasonable
jury could find that their recurring nature and the substantial risk of harm in which they put
Michael created an unsafe environment for him and that having to live in such an environment
constitutes the constitutional harm." Id. (citing Farmer v. Brennan, 511 U.S. 834 (1994)).
First, the exhibits to which Plaintiffs cite do not appear to exist. Second, even assuming
that the Surlocks are qualified to testify how the occasional missed or incorrect dose of a
medication impacted their son, their conclusory assertions that Michael experienced adverse
effects from these medication errors are insufficient. Notably, although they indicate that
Michael had "physiological effects" from the medication errors, they fail to provide the Court
with a single example of such a physiological effect. Finally, contrary to Plaintiffs' contentions,
the Nurse Defendants' expert provides a comprehensive analysis of the clinical effects of the
alleged medication errors. For example, Dr. Carmen Nichita discussed the four missed doses of
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Depakote, which is used to control seizures. See Dkt. No. 252-5 at 2. The alleged missed doses
occurred over a four year period. See id. Around the dates when the alleged missed doses
occurred, Dr. Nichita asserts that Michael's Depakote blood level ranged from 85-199, "which is
an appropriate, therapeutic level for epilepsy." Id. Further, Dr. Nichita claims that "[i]t usually
takes five days for this medication to obtain a stable level in the blood. One missed dose on
occasion would not cause a major fluctuation in the blood level." Id. As to the three missed
doses of Lamictal (Lamotrigine), which is also used to control seizures, Dr. Nichita contends that
the "pharmacokinetics apply to lamotrigine as Depakote: One single, missed dose would not
affect the blood level overall." Id. at 2-3. Further, since it takes longer for Lamictal to be
eliminated from the blood in individuals who also take Depakote, a single missed dose would not
significantly impact blood levels. See id. at 3. Although Dr. Nichita acknowledges that Michael
still had occasional "breakthrough seizures" while on this medication, "he did not have seizure
activity around the time of the missed doses of Lamictal or Depakote." Id.
Throughout her report, Dr. Nichita provides a similar analysis for each alleged medication
error. See id. at 3-9. According to Dr. Nichita's report, notably absent from the record, with one
minor exception, are any adverse events or effects from the alleged medication errors. See id.
The only exception to this is that on September 29, 2009, Michael was administered three tablets
of Diflucan 200mg tablets instead of Depakote. See id. at 6. Michael's primary care physician
was called and, according to the physician's records, Michael had a "slight upset stomach, but no
other adverse effects." Id. Plaintiffs' conclusory allegations regarding the "physiological effects"
that these medication errors had on Michael are simply insufficient to withstand the Nurse
Defendants' motion for summary judgment.

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Finally, the Court notes that Michael was taking an extraordinary number of prescription
medications and supplements during his time at Fravor Road. For example, the following
represents the medications and supplements Michael was prescribed as of February 3, 2009: (1)
Bentyl, (2) Protonix, (3) Trazodone 100mg, (4) Trazodone 50mg, (5) Geodon, (6) Dulcolox, (7)
Benefiber, (8) Depokote, (9) melatonin, (10) "General Digestion," (11) Glutamine plus, (12)
Calcium with Vitamin D, (13) Opti Zinc, (14) Probiotic Complete, (15) Cod Liver Oil, (16)
Omega 3 Comp., (17) nutri Vitamin E, (18) Citramin, (19) Buffered vit. C, (20) magnesium
Taura, (21) B-6, (22) P5P, (23) Co Enzyme B complex, and (24) B-12 injections given twice per
week. See Dkt. No. 387-1 at 301. Most of these prescriptions and supplements were given
multiple times per day, sometimes in a different dose than that which was given earlier in the day.
See id. Further, the prescriptions were constantly changing. See, e.g., id. at 304. Given the sheer
volume of medication and supplements that Michael was prescribed on a daily basis, the
identified medication errors, over the course of four years, many of which were simply failures to
document that a particular medication was given, are simply insufficient to support Plaintiffs'
substantive due process claim against the Nurse Defendants.
This result is further supported by the fact that a number of the alleged medication errors
occurred immediately following a change to Michael's prescriptions. For example, on May 14,
2009, Defendant Motyka reported that Michael's prescription for Geodon was changed from
40mg three times per day, to 60mg two times per day. See Dkt. No. 387-1 at 310. Cheryl Van
Epps was not informed of the change, and Michael received three doses of Geodon on May 13
(two 40mg pill and one 60mg pill, resulting in a total of 140mg). See id. Upon discovering the
error on May 14, the evening dose was withheld so that Michael only received 100mg that day,
instead of 120mg, and Michael's doctor was informed of the issue. See id.; see also Dkt. No. 38871

1 at 219 (explaining the error and indicating that "after consultation he was under dosed on
Thursday to compensate"). Further, in light of this event, it was decided that the "informal way
med changes are communicated with Day program is being modified to a written notification."
Id.
Quite simply, the evidence Plaintiffs have set forth is insufficient to support a substantive
due process claim regardless of whether Plaintiffs' claim against the Nurse Defendant is analyzed
under the deliberate indifference standard, the professional judgment standard, or the general
shocks the conscience standard. As such, the Court grants the Nurse Defendants' motion for
summary judgment as to Plaintiffs' substantive due process claim.

9. The Supervisory Defendants
Plaintiffs contend that Defendants Elliott, Alexander, Reid, LeBoeuf, and Perkins (the
"Supervisory Defendants") violated their duty to provide Michael with a reasonably safe
environment, to protect him from harm, and to provide him with adequate care and minimal
habilitation. See Dkt. No. 371 at 42-50. As a result of these failures, Plaintiffs argue that
"Michael was repeatedly injured, both physically and psychologically, was deprived adequate
medical care and suffered regression in basic life skills." Id. at 42. "Specifically, on their
supervisory watch, over the years, Michael was subjected to over fifteen reported incidents of
physical and psychological abuse and neglect, over twenty serious injuries requiring ER visits,
hundreds of other injuries, dozens of medication administration errors, worsening of his wrist
contracture condition and regression in his toileting skills." Id. at 42-43.
According to Plaintiffs, the record demonstrates that Defendants "Reid and Perkins failed
adequately to implement Michael's behavior plan to keep him safe from SIBs" in that they "took
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the position that Michael's behavior plan made no provision for intervening once Michael had
begun floor sprawling, except to try to get his helmet and mitts on and wait for his behavior to
subside." Id. at 43 (citing Defendant Motyka Tr. at pp. 154-155 Ex. M-21).21 Plaintiffs contend
that this position "directly contravenes the plain language of the August 27, 2009, March 27, 2010
and August 27, 2010 behavior plans, which were in effect during both Reid's and Perkins'
tenures." Id. Without citation to the record or even alluding to a specific incident, Plaintiffs
argue as follows:
Yet, despite the clear directives of Michael's behavior and their
knowledge that the safe chair was an eminently safer place for
Michael than being sprawled on the floor flailing about, both Reid
and Perkins, and their subordinate staff at their direction, failed to
move Michael to an available safer environment and thereby protect
him from harm. As a result, Michael suffered form numerous
physical injuries, which could have been avoided if Reid and
Perkins properly implanted [sic] his behavior plan.
Dkt. No. 371 at 44.
First, Plaintiffs' citation to Defendant Motyka's deposition does not support their
allegations. Defendant Motyka was asked about what staff were permitted to do when Michael
was having an episode of SIB and Bradford Surlock was there trying to control Michael by
holding him down on the floor. See Dkt. No. 375-20 at 1-2. When asked if staff would assist Mr.
Surlock in restraining Michael, Defendant Motyka responded that they did not because, unlike

In their response to the pending motions for summary judgment, Plaintiffs decided to
file each individual Defendant's deposition transcript as multiple exhibits, which usually included
no more than two pages. For example, in response to Defendant Finster's motion, Plaintiffs
attached portions of Defendant Finster's deposition transcript as the following exhibits: F-104, F105, F-110, F-111, F-112, F-113, F-114, F-115, F-116, F-118, F-119, F-120, F-124, F-125, F-126,
F-127, F-129, F-130, F-131, F-132, F-133, and F-134. This practice created hundreds of needless
exhibits, since it was used for all depositions taken in this matter. In the future, counsel is
instructed to file an individual's deposition transcript as a single exhibit, including only those
pages deemed relevant.
21

73

Mr. Surlock, staff was "not allowed to hold him down on the floor." Id. Staff would, however,
place mitts on Michael's hands and a helmet on his head when he was engaging in such behavior,
as per his treatment plan. See id. Not once were Defendants Reid or Perkins mentioned in the
cited portion of Defendant Motyka's deposition. Further, the testimony demonstrates that staff
were actually following Michael's behavior plan, which called for the use of "the least intrusive
physical intervention necessary." Dkt. No. 397-1 at 104-08. Staff were directed to place the
protective mitts and helmet on Michael at the first sign of SIB and then redirect Michael's
attention if possible. See id. If staff were unable to redirect Michael, they were then instructed to
escort Michael to his safe chair. See id. Further, the plan specifically provided as follows:
"Restrictive Physical Intervention (that is, the use of a take-down to a supine control) can not be
safely used with Michael due to his significant osteoporosis and the increased associated risk of
fractures." Id. at 99. Finally, the record clearly demonstrates that the behavior plan was actually
working in that the frequency of his SIBs had decreased significantly from when Michael first
came to Fravor Road. See id. at 97-98. This was attributed, in part, to the fact that the behavior
plan called for staff to use the least amount of physical contact necessary to keep Michael safe
because physical contact appeared to encourage the proliferation/exacerbation of Michael's SIBs.
See id.
Next, Plaintiffs argue that "the record demonstrates that LeBoeuf knew of, but
disregarded, the high degree of risk that her subordinates would violate Michael's constitutional
rights, and her deliberate indifference caused such violations." Dkt. No. 371 at 44-45.
"Specifically, when OPWDD interviewed her during its investigation of defendant Graham's
abusive behavior of Michael, which consisted of Graham sitting on Michael's lap, poking him in
the nose and declaring, 'I fucking hate you; you are so bad,' LeBoeuf admitted that she had seen
74

other staff do 'similar things,' such as sit on one arm of Michael's recliner, with their legs across
his lap and not reported the behavior or taken any meaningful remedial step." Id. at 45 (citing
Defendant Graham Dep. Doc. Exhibit 17 at M-24).
Again, Plaintiffs entirely misconstrue the cited document. The incident report issued after
the investigation into Defendant Graham's alleged conduct made the following findings:
I spoke with Ms. LeBoeuf in my office on the morning of 7/14/08
to review this situation. She mentioned that she has never seen a
staff sit in Michael's lap, but that she has seen other staff do
"similar" things such as sit next to him with an arm around his
shoulder or maybe standing next to Michael with one of the staff's
legs against Michael's thigh. She also said that possibly a staff
could sit on one arm of Michael's recliner with one or both legs
crossing Michael's lap, but actually on the other arm of the recliner
so that it would appear they were sitting on his lap. Ms. LeBoeuf
also mentioned the fact that Michael appeared to get some degree of
satisfaction from having physical contact with some of the female
staff.
Dkt. No. 375-23 at 1. Nothing in this report indicates that Defendant LeBoeuf was aware of
allegedly abusive conduct that would have put her on notice that Michael's rights were potentially
being violated. Rather, the report indicates that the other "similar situations" were, in fact, staff
engaging with Michael in a positive manner which appeared to bring him "some degree of
satisfaction." Id. Far from supporting their argument, the evidence to which Plaintiffs cite
actually undermines it.
Next, Plaintiffs contend that "the record demonstrates that Elliott and Alexander, each of
whom had influence over staffing levels at Fravor Road, failed to advocate for and provide the
one-to-one supervision Michael required to stay safe." Dkt. No. 371 at 45 (citing Ex. 8).
Plaintiffs argue that Defendants Elliott and Alexander "were repeatedly put on notice by Bradford
and Mary-Anne, Michael's Medicaid Service Coordinators, CQC and even house staff that
75

Michael was receiving insufficient supervision at Fravor to stay safe. . . . Indeed, both testified
that it was unreasonable to leave Michael alone for any significant period of time, . . . [and] at one
point, even Alexander expressed to her supervisors and members of Michael's team that Michael
could benefit from one-to-one supervision." Id. at 45-46 (citing Ex. 8 p. 22).
As a preliminary matter, the Court notes the fact that Plaintiffs begin by arguing that
Defendants Elliott and Alexander "failed to advocate for and provide the one-to-one supervision
Michael required to stay safe." Dkt. No. 371 at 45. Then, two sentences later, Plaintiffs admit
that Defendant Alexander did, in fact, discuss with her supervisors the fact that Michael could
benefit from one-to-one supervision. As Plaintiffs concede, in an email dated December 22,
2009, Defendant Alexander suggested increasing staff levels to provide Michael with one-to-one
supervision or, alternatively, changing staff arrangements to provide Michael with greater
supervision. See Dkt. No. 374-1 at 22.
As discussed above, contrary to Plaintiffs' position, the undisputed facts clearly
demonstrate that, in light of requests for one-to-one staffing or greater supervision, changes were
made. See, e.g., id. at 19, 24. Further, the record also demonstrates that the frequency of
Michael's SIBs and injuries decreased over time, in part due to the additional staff oversight and
reduction in patients residing at Fravor Road. Moreover, the record is replete with evidence that
the Supervisory Defendants constantly addressed Michael's supervision level and ways in which
to prevent him from injuring himself. For example, on January 5, 2010, the Treatment Team held
a meeting in response to the Surlocks' requests to discuss the feasibility and desirability of
providing one-to-one supervision for Michael. See Dkt. No. 410-2 at ¶ 54; Dkt. No. 410-18 at 25. In response to the request, the Treatment Team "agreed to provide enhanced staffing to
Michael on Saturdays and holidays when Michael is home from Program." Dkt. No. 410-18 at 2.
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Further, it was decided that staff would be assigned to Michael in two-hour shift increments, that
they would need to remain within visual sight of him, and that they would need to "be available to
respond to him immediately at all times." Id. (emphasis in original). The evidence makes clear
that, at every stage, the Supervisory Defendants evaluated all requests for one-to-one supervision
both in person and through written communication. See, e.g., Dkt. Nos. 410-18, 410-21, 410-45
& 410-46.
Plaintiffs also heavily rely on a series of investigations by the New York State
Commission on Quality of Care & Advocacy for Persons with Disabilities (the "CQC") in support
of their argument that the Supervisory Defendants failed to remedy inadequate staffing at Fravor
Road. Plaintiffs fail to mention, however, that the OPWDD, with the cooperation of the
Supervisory Defendants, investigated the concerns raised and provided thorough and thoughtful
responses to the CQC detailing their efforts to address concerns. See Dkt. Nos. 410-7, 410-10,
410-12 & 410-15. The CQC approved of the OPWDD's responses and the investigations were
closed. See, e.g., Dkt. No. 410-8 at 2 ("The Commission has completed its review of the DDSO's
March 20, 2009 response to our February 20, 2009 letter of findings regarding our review of the
care and treatment being provided to Fravor Road IRA resident Michael Surlock. The findings
and corrective actions detailed in Mr. DiNuzzo's letter adequately addressed all of the
Commission's noted concerns and you may now consider our involvement in this matter to be
concluded"); see also Dkt. Nos. 410-13 & 410-16.
Further, the fact that Michael did not eventually receive one-to-one supervision does not
mean that the Supervisory Defendants "failed to remedy a wrong." The undisputed facts clearly
demonstrate that the decision to implement Enhanced Staffing was clinically driven and
influenced by the fact that actual one-to-one supervision would not be appropriate for Michael,
77

who enjoyed having some privacy. See Dkt. No. 410-46 at 2-3. It is undisputed that Michael
sustained injuries while at Fravor Road. However, as Plaintiffs concede, it is impossible to
prevent all injury to Michael when he engages in SIBs and floor sprawling. See id. at 3.
Plaintiffs also claim that "the record demonstrates that the Supervisory Defendants failed
to take adequate measures to ensure Michael had access to, and was not deprived of, his critical
sensory devises. For instance, as early as June 26, 2008, Bradford notified Elliott that Fravor
Road staff [were] unplugging Michael's electronic and sensory devices, an integral part of his
treatment and care." Dkt. No. 371 at 46-47 (citing Ex. M-46). Plaintiffs contend that the other
Supervisory Defendants were put on similar notice. See id. at 47 (citing Ex. M-47). As a result
of their failure, Plaintiffs claim that Michael was harmed "by depriving him of these critical
sensory devices which helped calm him and prevent SIBs." Id. (citing Ex. 11).
Contrary to Plaintiffs' allegations, the undisputed facts demonstrate that, in response to the
Surlocks' repeated complaints, the Supervisory Defendants directed Michael's direct care
providers not to unplug any of the devices in Michael's room. Further, the Supervisory
Defendants investigated Plaintiffs' allegations and, even though the complaints were generally not
substantiated, the Supervisory Defendants took corrective actions to ensure that the activities
Plaintiffs complained of would not occur in the future. See, e.g., Dkt. No. 410-2 at ¶¶ 110-11;
Dkt. No. 410-1 at ¶¶ 113-15; Dkt. No. 410-52 at 214, 216-17; Dkt. No. 410-53 at 225-26.
Plaintiffs also argue that the Supervisory Defendants "failed to ensure that Michaels' [sic]
corrective wrist splint was being properly applied. Indeed, Bradford and Mary-Anne repeatedly
complained about this issue, which was also the subject of a CQC investigation, which
substantiated plaintiffs' claim that Michael's night-time splint was not being applied consistently
with doctor's orders." Dkt. No. 371 at 47 (citing Exs. 12-14, and M-46). Plaintiffs contend that
78

this "caused a worsening of Michael's wrist contracture, requiring him to undergo surgery for the
condition." Id. (citing Ex. M-51).
Although Plaintiffs are correct that the CQC substantiated the allegation that Michael's
wrist splint was not being properly applied, they omit the fact that the CQC later approved of the
OPWDD's corrective response (retraining was provided to ensure the splint was properly applied,
and a splint accountability procedure was put in place) and closed the investigation. See Dkt. No.
250-29; Dkt. No. 410-15; Dkt. No. 410-16; Dkt. No. 410-2 at ¶¶ 100-02; Dkt. No. 410-1 at ¶¶
100-08; Dkt. No. 410-4 at ¶¶ 34-36. Moreover, with their motion for summary judgment, the
Supervisory Defendants presented an affidavit and report from Dr. Daniel G. DiChristina, who is
an orthopedic surgeon licensed to practice in New York. See Dkt. No. 252-6. According to Dr.
DiChristina, Michael suffered from flexion contracture in his left wrist. See id. at ¶ 10. Dr.
DiChristina indicated that the "value of the splint is to provide a temporary correction of the
wrist. Splinting will not change the underlying spasticity." Id. at ¶ 18. Further, Dr. DiChristina
stated that, "regardless of the duration of splinting, [Michael's] current level of wrist flexion
contracture could not be avoided." Id. at ¶ 20. In opposition, Plaintiffs rely on their expert, Mark
Levine, who purports to be an expert in "the field of health care/housing administration" and does
not claim to have any medical training. See Dkt. No. 371-7 at 1. In fact, Mr. Levine
acknowledges that he "will not opine on medical causation." Id. As such, the Court finds that
Plaintiffs' conclusory assertions that Michael's wrist condition was worsened due to the failure to
consistently apply his wrist splint is insufficient to create a question of fact as to this claim. Even
assuming that such a question of fact exists, as discussed above, the evidence also demonstrates
that when these issues were brought to the Supervisory Defendants' attention, they took

79

reasonable measures to ensure that the problem was remedied. Accordingly, the Supervisory
Defendants are entitled to summary judgment as to these allegations.
Plaintiffs also contend that, "on the Supervisory Defendants' watch, Michael's toileting
skills substantially regressed. Indeed, as early as September 22, 2009, Medicaid Service
Coordinator Price wrote Elliott and advised that, prior to entering Fravor and when he was living
at home, Michael was successfully toilet-trained but that, since his entry into Fravor, there has
been confusion by house staff as to his toilet training." Dkt. No. 371 at 47. Moreover, Plaintiffs
claim that similar complaints were made to Defendant LeBoeuf, but she and "her staff constantly
ignored Michael's toileting plan, routinely leaving Michael in diapers, and Elliott and Alexander
failed to ensure that Michael's team and the Fravor Road staff minimally train Michael in this
basic life skill." Id. at 47-48 (citing Exs. M-48-52).
Contrary to Plaintiffs' contentions, the Supervisory Defendants actively addressed these
concerns through the Treatment Team. In response to these concerns, the Treatment Team, which
included Michael's parents, developed a comprehensive plan to address these issues and train staff
as to its implementation. See, e.g., Dkt. No. 410-41; Dkt. No. 410-42. In an October 6, 2009
email from Defendant Elliott, she indicates that the "toileting plan was developed by Jim Spillett
after lengthy input from both parents, OT, and Psychologist. Mrs. Surlock did not agree to the
plan because it did not include taking Michael back to the bathroom every 15 minutes until he
voided. The plan does state 'staff may ask him if he has to go any time up to the next scheduled
toileting: time permitting.'" Dkt. No. 410-41. Moreover, staff were required to keep
comprehensive records concerning Michael's toileting schedule and results. See Dkt. No. 410-42.
It is undisputed that, despite these efforts, which included being prompted to use the toilet every
forty-five minutes and return visits in between, Michael continued to have accidents. As the
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Supervisory Defendants correctly contend, the Treatment Team's inability to cure Michael's
toileting issues does not amount to a substantive due process violation. Rather, the evidence
demonstrates that they continually changed Michael's treatment plan and ensured that direct care
staff were trained as to any changes.
Plaintiffs also claim that the Supervisory Defendants failed to provide Michael with safe
transportation. First, the Supervisory Defendants were merely responsible for implementing
Michael's transportation plan, which was developed by his Treatment Team with his parents'
input. See Dkt. No. 410-33; Dkt. No. 410-34; Dkt. No. 410-36; Dkt. No. 410-38. Second, when
it was decided that the rear seat in Fravor Road's current van was not providing Michael with
sufficient support, they first attempted to replace the current seat. See Dkt. No. 410-33. When
that solution proved to be insufficient, Fravor Road actually purchased a new van that could
better deal with the safety concerns. Moreover, the record also indicates that, despite the fact that
the Transportation Plan was working, several modifications were made pursuant to the Surlocks'
requests. See, e.g., Dkt. No. 410-36 at 2-3; Dkt. No. 410-38 at 2-4. Some of these requests
included transporting Michael without mitts on his hands. See Dkt. No. 410-36 at 2-3; Dkt. No.
410-38 at 2-4. Although the staff had concerns about transporting Michael in this manner
because it could put him at risk of harming himself or others, they acceded to the Surlocks'
demands and transported Michael in this manner for a trial period. See id. The Treatment Team
decided that mitts during transportation were in Michael's best interest, in part, based on the trial
run. During that two week period, "[t]here were 6 times out of a possible 20 when Michael
became self injurious or agitated to the point where the van pulled off the road, and his mitts were
applied." Dkt. No. 410-38 at 3. Again, far from showing a deliberate indifference to Michael's
safety and well-being, the Supervisory Defendants and direct care staff spent considerable time
81

and resources ensuring Michael's safety. In fact, the only changes to Michael's Transportation
Plan that raised safety concerns were demanded by the Surlocks, despite the concerns raised by
those tasked with providing his care.
Finally, also in support of their claim, Plaintiffs contend that "Defendant Reid admitted, 'I
wouldn't want [FR] staff working for me or my child.'" Dkt. No. 410-57 at ¶ 202 (quoting
Defendant Reid Dep. Tr. at p. 276 (Ex. S-215)) (alteration in original). Again, this statement is
taken entirely out of context and is, at best, a disingenuous representation of what Defendant Reid
stated. The complete interaction is set forth below:
Q. Do you agree that the staff person who slaps a resident at the
Fravor Road facility should not be working with individuals with
disabilities?
A. That's not my – I wouldn't want the staff working for me or my
child.
Dkt. No. 410-53 at 276. As the complete interaction makes clear, Defendant Reid did not state
that he would not want Fravor Road staff in general working for him or with his child. Rather, he
would not want someone working for him or with his child who had, in the past, slapped residents
at the home. Indeed, Defendant Reid generally spoke very highly of the dedicated and caring
staff employed at Fravor Road.
In sum, the undisputed facts establish that the Supervisory Defendants went above and
beyond to accommodate the Surlocks' constant demands and did all that they could to provide
Michael with the best care possible. Under any of the above-mentioned standards, the
Supervisory Defendants have demonstrated that they are entitled to summary judgment as to
Plaintiffs' substantive due process claims.

82

G.

Procedural due process
In order to prevail on a Fourteenth Amendment procedural due process claim pursuant to

42 U.S.C. § 1983, "the plaintiff must show (1) that he possessed a protected liberty or property
interest; and (2) that he was deprived of that interest without due process." Rehman v. State Univ.
of N.Y. at Stony Brook, 596 F. Supp. 2d 643, 656 (E.D.N.Y. 2009) (citing McMenemy v. City of
Rochester, 241 F.3d 279, 285-86 (2d Cir. 2001)). "Property rights arise from '"an independent
source such as state law," [with] federal constitutional law determin[ing] whether that interest
rises to the level of a "legitimate claim of entitlement" protected by the Due Process Clause.'"
Pichen v. City of Auburn, N.Y., 728 F. Supp. 2d 192, 198 (N.D.N.Y. 2010) (quotation and other
citation omitted). The essential principle of procedural due process is that a deprivation of life,
liberty or property should be preceded by notice and an opportunity for a hearing appropriate to
the nature of the case. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)
(citation omitted). However, "[w]here there is a meaningful postdeprivation remedy, there is no
due process violation." Gudema v. Nassau County, 163 F.3d 717, 724 (2d Cir. 1998) (citation
omitted).
"'Choices about marriage, family life, and the upbringing of children are among
associational rights [the Supreme] Court has long ranked as of basic importance in our society, . .
. rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation,
disregard or disrespect.'" Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999) (quoting
M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996)). The Supreme
Court has recognized that parents have a "constitutionally protected liberty interest in the care,
custody, and management of their children," id. (collecting cases), and the Second Circuit has
noted that "'[c]hildren have a parallel constitutionally protected liberty interest in not being
83

dislocated from the emotional attachments that derive from the intimacy of daily family
association.'" Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2011) (quoting Kia P.
v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000)).
As a general rule, procedural due process requires a hearing prior to depriving a parent of
the care, custody or management of their children without their consent, id. at 149 (quoting
Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003)), or a prompt post-deprivation hearing
if the child is removed under emergency circumstances, K.D. ex rel. Duncan v. White Plains Sch.
Dist., 921 F. Supp. 2d 197, 215 (S.D.N.Y. 2013) (citing Velez v. Reynolds, 325 F. Supp. 2d 293,
303 (S.D.N.Y. 2004)), or where the deprivation occurs at a time when the child is already in the
custody of the State. Kia P., 235 F.3d at 760 (citing Gottlieb v. Cnty. of Orange, 84 F.3d 511,
520 (2d Cir. 1996)).
"To determine whether there have been sufficient procedural protections before an
individual is deprived of a liberty interest, courts rely on the test stated in Mathews v. Eldridge,
assessing: 1) 'the private interest that will be affected by the official action;' 2) 'the risk of an
erroneous deprivation of such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards;' and 3) 'the Government's interest, including the
function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.'" Graham v. City of New York, 869 F. Supp. 2d 337, 350
(E.D.N.Y. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893 (1976)). "'As a
general rule . . . before parents may be deprived of the care, custody or management of their
children without their consent, due process – ordinarily a court proceeding resulting in an order
[approving,] permitting[,] [or ordering] removal – must be accorded to them.'" Graham, 869 F.
Supp. 2d at 350 (quoting Tenenbaum, 193 F.3d at 593) (other citation omitted). "Similar process
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is due when the government action substantially restricts a non-custodial parent's relationship
with the child." Id.
In the present matter, Plaintiff Bradford Surlock "asserts his procedural due process claim
against defendants Gleason, O'Brien, DiNuzzo, Elliott and Alexander for their decision to restrict
his ability to visit Michael at Fravor, including banning him from entering the house for a threemonth timeframe." Dkt. No. 371 at 63. Defendants contend that Plaintiffs have failed to cite to
any "policy, rule, regulation or legal authority in support of their claim that Mr. Surlock had a
federally protected liberty interest of unrestricted access to the Fravor Road IRA after he
flagrantly and repeatedly engaged in abusive and sexually harassing conduct toward staff at the
Fravor Road IRA including interfering with and making demands of staff while they were
attending to Michael, the use of profanity, wearing clothing with inappropriate sexual messages,
making references to staff's body parts and to nude photographs and even making inappropriate
sexual comments to female staff as he observed his son engaging in private sexual conduct at the
home." Dkt. No. 249-46 at 29-30 (emphasis omitted).
As a threshold matter, the Court must determine whether banning Plaintiff Bradford
Surlock from Fravor Road for three months infringed on his right to the "care, custody and
management" of Michael or his right to remain together as a family, such that he can argue that
process was due to him either before or after the order banning him from the facility. See K.D. v.
White Plains Sch. Dist., 921 F. Supp. 2d 197, 214 (S.D.N.Y. 2013) (citing Rodriguez v.
McLoughlin, 214 F.3d 328, 341 (2d Cir. 2000)). Defendants correctly contend that the present
litigation is not the typical case in which a child has been removed from a parent's custody by the
state without hearing. Nor does it fall into the more rare case occurring when a parent voluntarily
leaves a child with a third party, and the third part later refuses to return the child to the parent on
85

the basis of state authority. See, e.g., Cecere v. City of New York, 967 F.2d 826, 830 (2d Cir.
1990). As such, the Court must determine whether Plaintiff Bradford Surlock has a liberty
interest in unrestricted access to the state-owned facility where his son was residing.
"In light of the Second Circuit case law holding that the liberty interest in the care,
custody and management of a minor child is implicated by removal of the child from the custody
of the parents, district courts in this Circuit have repeatedly dismissed procedural due process
claims where there is no allegation that the parents were ever deprived of custody over their
children." K.D., 921 F. Supp. 2d at 215 (citation omitted); see also Phillips v. County of Orange,
894 F. Supp. 2d 345, 373-76 (S.D.N.Y. 2012) (collecting cases). "'[O]utside of removal or the
compulsory provision of medical care, the Second Circuit has not specified what other kinds of
government action may violate a parent's protected liberty interest in the care, custody and
management of his or her child in the child abuse context.'" Id. (citing Phillips, 894 F. Supp. 2d
at 374, 376-77).
Some lower courts have recognized that government actions other than physical removal
might also implicate the liberty interests of parents. See, e.g., Graham v. City of New York, 869 F.
Supp. 2d 337, 349 (E.D.N.Y. 2012) (noting that "[g]overnment actions other than removal may
also implicate important rights," and concluding that temporary orders of protection that forbade a
father from having any contact with his son for more than a year and significantly limited their
contact for several years implicated the father's "vital rights as a parent"). Despite these cases, the
Court finds that Bradford Surlock did not have a protected liberty interest in unlimited access to
the Fravor Road facility in which Michael resided.
Plaintiffs cite to no authority, either within or without the Second Circuit, to support their
position that Defendants Gleason, O'Brien, DiNuzzo, Elliott and Alexander violated Plaintiff
86

Bradford Surlock's procedural due process rights when they precluded him from entering the
Fravor Road facility for a three-month period and the Court was unable to find any such
authority.
The letter precluding Mr. Surlock from entering Fravor Road indicated that the restriction was
being implemented because of inappropriate and insulting comments made to an employee in the
presence of the house manager and within earshot of another employee. See Dkt. No. 378-8 at 1.
The letter states that Mr. Surlock allegedly made reference to "nude photos" and a comment to a
staff member that she should "walk more" and that the tone and content of the comments
"violated parameters that had been put in place for you in April of this year, as they violate the
requirement that you refrain from comments, gestures, or innuendo of a sexual or suggestive
nature when you are visiting at the IRA." Id. The letter further indicated as follows:
This restriction will remain in place for a period of 3 months, at
which time the Deputy Directors will meet with you to discuss and
review the parameters to ensure that you are prepared to comply
prior to re-entering this worksite. We feel this measure is necessary
to reinforce the seriousness of these violations, and to stabilize the
Fravor IRA worksite.
We understand that this worksite is also the home of your son,
Michael. Please be advised that while your visits to the IRA are
restricted, there is no such restriction or limitations on your wife's
visitation. Furthermore, there is no restriction on your visitation
with Michael at your home or other locations outside of this IRA.
The agency continues to support your relationship with your son
and your involvement in his plan of care. We understand that you
may necessarily need to interface with staff during Dr's
appointments and treatment team meetings outside of the IRA, and
we request that these interactions are limited to discussion of
Michael's care. We understand that you may need to assist your
wife in transporting Michael for home visits; however, we request
that you remain in your vehicle in the driveway during these times.
If your wife requires assistance of the IRA staff to transport
Michael for home visits, she may discuss this with the house
manager to make arrangements.
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Id. at 1-2.
As the letter makes clear, Defendants Gleason, O'Brien, DiNuzzo, Elliott and Alexander
did not block all access to Michael. Rather, Defendants Gleason, O'Brien, DiNuzzo, Elliott and
Alexander simply precluded Plaintiff Bradford Surlock from entering the Fravor Road facility to
see his son for a three-month period. These Defendants did not interfere with Mr. Surlock's rights
to the "care, custody and management" of Michael; rather, they prevented him from exercising
those rights in the exact manner and place of his choosing. Significantly, Plaintiffs Bradford and
Mary-Anne Surlock were able visit with Michael at their home or any location other than the
Fravor Road facility. Unlike the situation where a child is placed in state custody following an
allegation of abuse, Michael was voluntarily placed in Defendants' custody. Although Bradford
and Mary-Anne Surlock unquestionably continue to possess protected liberty interests with
respect to the care, custody, and management of Michael, Defendants' alleged conduct simply did
not infringe on those rights.
As such, Defendants Gleason, O'Brien, DiNuzzo, Elliott and Alexander are entitled to
summary judgment on this claim.

H.

First Amendment retaliation
"[T]he Second Circuit has 'described the elements of a First Amendment retaliation claim

in several ways, depending on the factual context.'" Sloup v. Loeffler, No. 05-CV-1766, 2008 WL
3978208, *22 (E.D.N.Y. Aug. 21, 2008) (quoting Williams v. Town of Greenburgh, [535 F.3d 71,
76 (2d Cir. 2008)]). Where a private citizen asserts a First Amendment claim against a public
official, the plaintiff must demonstrate that (1) the plaintiff engaged in speech or conduct that the
First Amendment protects; (2) the plaintiff's exercise of his First Amendment rights motivated the
88

defendant's actions; and (3) the defendant's actions effectively chilled the plaintiff's exercise of
those rights. See Williams, 535 F.3d at 76 (citing Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d
Cir. 2001)); Moran v. City of New Rochelle, 346 F. Supp. 2d 507, 517 (S.D.N.Y. 2004) (citation
omitted).
In cases "involving criticism of public officials by private citizens," the Second Circuit has
generally "impose[d] an actual chill requirement for First Amendment retaliation claims[,]" i.e., a
requirement that the plaintiff allege and ultimately prove an "actual chill" of his First Amendment
rights. Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (citing Spear v. Town of West
Hartford, 954 F.2d 63, 68 (2d Cir. 1992)); see also Curley, 268 F.3d at 73 (holding that the
"plaintiff must show, with respect to the third element, that his First Amendment rights were
'actually chilled'"). To establish this element, it is not enough for the plaintiff simply to show that
he changed his behavior in some way; he must show that the defendant intended to, and did,
prevent or deter him from exercising his rights under the First Amendment. See, e.g., Greenwich
Citizens Comm., Inc. v. Counties of Warren & Washington Indus. Dev. Agency, 77 F.3d 26, 31
(2d Cir. 1996) (holding that, to establish a First Amendment retaliation claim, the plaintiffs must
show that the defendants acted "with the purpose of deterring the exercise of First Amendment
freedoms"); Wolff v. Town of Mount Pleasant, No. 06 Civ. 3864, 2009 WL 1468691, *6
(S.D.N.Y. Apr. 27, 2009) (holding that, "[i]n order to maintain a First Amendment retaliation
claim, a private citizen complainant must allege that the defendant took some action in response
to his or her First Amendment activity that 'effectively chilled the exercise of his First
Amendment right'" (quoting Williams, 535 F.3d at 76)); Spear v. Town of W. Hartford, 954 F.2d
63, 67 (2d Cir. 1992) (holding that "Spear's naked assertion of a chill does not suffice to defeat a
Rule 12(b)(6) motion"); see also Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir. 2002)
89

(affirming summary judgment for the defendant on the plaintiff's First Amendment claim and
indicating that the plaintiff had failed to even state a valid claim because she had "alleged no
actual affect on the exercise of her First Amendment rights at all").
However, "where the retaliation is alleged to have caused an injury separate from any
chilling effect, such as a job loss or demotion, an allegation as to a chilling effect is not necessary
to state a claim." Puckett v. City of Glen Cove, 631 F. Supp. 2d 226, 239 (E.D.N.Y. 2009) (citing
Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir. 2005)) (other citation omitted). As the Second
Circuit has noted,
defendants are correct that a plaintiff asserting First Amendment
retaliation must allege some sort of harm, but they are wrong that
this harm must, in all cases, be a chilling of speech. In the
employment context, under this framework, the harm is some
concrete diminution in job responsibilities, security, or pay – up to
and including termination. In the prison context, the harm could
include such an adverse action as placing a plaintiff in keeplock for
a period of weeks. Indeed, even in certain cases involving public
official/private citizen retaliation claims, we have seemingly not
imposed a subjective chill requirement where some other harm is
asserted. For example, in Gagliardi v. Village of Pawling, 18 F.3d
188 (2d Cir. 1994), we confronted the plaintiffs' claim that the
municipal defendants' alleged misapplication of the zoning code
was conducted in retaliation for the plaintiffs' exercise of their free
speech rights. To establish a retaliation claim under 42 U.S.C.
§ 1983 under those circumstances, we held that the plaintiffs must
initially show (1) "that [their] conduct was protected by the first
amendment," and (2) that "defendants' conduct was motivated by or
substantially caused by [plaintiffs'] exercise of free speech." Id. at
194 (quoting Brady v. Town of Colchester, 863 F.2d 205, 217 (2d
Cir. 1988)), and nothing beyond the two requirements. Still, the
Gagliardi plaintiffs' retaliation claim apparently survived a motion
to dismiss because (1) they made an adequate showing on both of
these accounts, but also because (2) they adequately pleaded
non-speech injuries – among other things, noise pollution. Id. at
190. See also Dougherty v. Town of N. Hempstead Bd. of Zoning
Appeals, 282 F.3d 83 (2d Cir. 2002) (applying same test in similar
context).
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Gill, 389 F.3d at 383.

1. Defendant Spencer
Plaintiffs Mary-Anne and Bradford contend that Defendant Spencer engaged in several
retaliatory acts that were "motivated by the Surlock's protected activity of monitoring and
advocating for Michael's care." Dkt. No. 371 at 62-63. Specifically, Plaintiffs contend that
Defendant Spencer "admits that she unplugged Michael's radio, and the record demonstrates she
did this on more than [one] occasion. By doing so, Spencer deprived Michael of a critical sensory
device, thereby causing him psychological injury and putting him at risk of physical injury." Id.
at 62. Further, Plaintiffs argue that "[i]n light of Finster's testimony that staff suspected that the
Surlocks had installed a camera in Michael's room and were unplugging his electronic devices to
avoid being recorded, a reasonable jury could reject Spencer's contention that she unplugged the
radio for a legitimate reason and, instead, find that her action was motivated by the Surlock's
protected activity of monitoring and advocating for Michael's care." Id. at 62-63. Moreover,
Plaintiffs contend that this claim is "also supported by Maynes' disclosures to the Surlocks that
direct care staff intentionally retaliated against them in various ways, including by depriving
Michael of his sensory devices, and that the Supervisory Defendants and direct care staff disliked
them and purposefully gave them and Michael the 'silent treatment.'" Id. at 63.
First, to the extent that Plaintiffs Mary-Anne and Bradford contend that they received the
silent treatment from staff or that staff members were rude to them, these conclusory allegations
are insufficient to support a First Amendment retaliation claim. See Monz v. Rocky Point Fire
Dist., 853 F. Supp. 2d 277, 287 (E.D.N.Y. 2012) (holding that the plaintiff's evidence of receiving

91

the "silent treatment" was insufficient to support causation for his First Amendment retaliation
claim).
Plaintiffs contend that "monitoring" Michael's care is an activity protected by the First
Amendment. Notably, they have failed to provide any cases to support this proposition.
Generally, courts have recognized a First Amendment right to monitor and record the actions and
words of public officials on public property. See Smith v. City of Cumming, 212 F.3d 1332, 1333
(11th Cir. 2000) (citations omitted). This right to record matters of public interest, however,
generally involves public meetings, police interactions with the public, and the general actions of
officials in public locations. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (holding
the "filming of government officials engaged in their duties in a public place, including police
officers performing their responsibilities," is protected by the First Amendment); Blackston v.
Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (finding that the plaintiffs' interest in filming public
meetings is protected by the First Amendment); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th
Cir. 1995) (recognizing a "First Amendment right to film matters of public interest"); Iacobucci v.
Boulter, No. 94-cv-10531, 1997 WL 258494 (D. Mass. Mar. 26, 1997) (finding that an
independent reporter has a protected right under the First Amendment and state law to videotape
public meetings); see also United States v. Hastings, 695 F.2d 1278, 1281 (11th Cir. 1983)
(finding that the press generally has no right to information superior to that of the general public)
(citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S. Ct. 1306, 55 L. Ed. 2d
570 (1978)); Lambert v. Polk County, 723 F. Supp. 128, 133 (S.D. Iowa 1989) ("[I]t is not just
news organizations . . . who have First Amendment rights to make and display videotapes of
events. . . ."); Thompson v. City of Clio, 765 F. Supp. 1066, 1070-71 (M.D. Ala. 1991) (finding
that the city council's ban on a member's attempt to record proceedings constituted regulated
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conduct protected by the First Amendment). Notably, each of these scenarios involved public
officials in public spaces. Nothing in these cases supports the proposition that the First
Amendment protects a parent's right to place a hidden camera in the bedroom of their child who
resides in a state run home for severely handicapped individuals.
Next, Plaintiffs do not claim that their speech was effectively chilled as a result of any
alleged retaliation, nor could they. As such, Plaintiffs are required to put forth evidence that they
"suffered some other concrete harm." Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir.
2013). In their memorandum of law, Plaintiffs argue that Defendant Spencer deprived Michael of
his sensory devices on several occasions because of their advocacy on Michael's behalf. See Dkt.
No. 371 at 62-63. This speculative and conclusory allegation, however, is not the type of nonspeech related harm that has been found sufficient to support a First Amendment retaliation
claim. See Dorsett, 732 F.3d at 161 (finding that delay in approving a settlement did not
"constitute[ ] a concrete injury giving Plaintiffs standing"). As discussed, various non-speech
related harms are sufficient to give a plaintiff standing to support a First Amendment retaliation
claim. See Zherka v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (lost government contract);
Tabbaa v. Chertoff, 509 F.3d 89, 102 (2d Cir. 2007) (additional scrutiny at border crossing);
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002)
(revoking a building permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d Cir. 1994)
(refusal to enforce zoning laws). Plaintiffs have failed to put forth any evidence establishing any
such non-speech related harms as to Defendant Spencer and, therefore, Plaintiffs' First
Amendment retaliation claim against Defendant Spencer must be dismissed.
Based on the foregoing, the Court grants Defendant Spencer's motion for summary
judgment as to this claim.
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2. The Administrative Defendants
According to Plaintiffs, the Administrative Defendants "do not dispute that they were
personally involved in issuing parameters restricting Bradford's ability to visit with Michael at
Fravor and advocate for Michael's care and in suspending his visitation rights or that these actions
constitute actionable concrete harms. [The Administrative Defendants] argue only that there is no
causal link between Bradford and Mary-Anne's protected activity and these actions, that they
would have taken these actions irrespective of any protected activity and that, in any event, they
are entitled to qualified immunity." Dkt. No. 371 at 59. Plaintiffs contend that summary
judgment is inappropriate because these "defenses all implicate fact intensive analysis which is
not appropriate on a motion for summary judgment." Id. Specifically, Plaintiffs claim that "a
reasonable jury could find from the face of the April 6, 2010 letter sent by O'Brien and DiNuzzo
to Bradford as well as from the restrictive 'parameters' attached thereto, that Brad's protected
activity substantially motivated their decisions to restrict Brad's visitation and, ultimately, ban
him from Fravor." Id. (citing Ex. M-65). Although Plaintiffs admit that the letter and its
parameters address alleged "sexual innuendo and offensive comments," they contend that a
reasonable jury could find that these claims are merely a pretext for the Administrative
Defendants' First Amendment retaliation. See id. at 60. Plaintiffs note that Bradford denies
having engaged in the alleged activity and finds significant that "neither Gleason, O'Brien nor
DiNuzzo cared to hear his version of events before imposing these draconian restraints on his
ability to visit his son and monitor the care provided to Michael." Id. Plaintiffs further contend
that the same is true with regard to the September 2010 decision to ban Bradford from entering
Fravor Road for three months. See id.

94

In Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), the plaintiff was arrested in
the course of a robbery, pleaded guilty to criminal charges, and then brought an action against the
arresting officers and their employer alleging that they had used excessive force in effecting his
arrest. The plaintiff asserted that the officers had beaten him after he surrendered and then threw
him from a third-story window. The officers denied this and all testified that the plaintiff had
attempted to escape by jumping from the window. The defendants moved for summary judgment,
which was granted by the district court, and the plaintiff appealed, arguing that a material
question of fact existed in the conflicting versions of events presented by the plaintiff and the
defendants. See id. at 551–53.
On appeal, the Second Circuit Court of Appeals noted that conflicting testimony
concerning a material issue of fact generally presents issues of credibility which can only be
resolved by a fact-finder at trial. See Jeffreys, 426 F.3d at 554. On a motion for summary
judgment, however, the party opposing the motion is required to do more than offer opposing
conclusory or speculative statements. See id. (quoting D'Amico v. City of N.Y., 132 F.3d 145, 149
(2d Cir.1998)) (holding that a nonmoving party "must offer some hard evidence showing that its
version of the events is not wholly fanciful"). Upholding the district court's decision, the Second
Circuit found that (1) nothing in the record supported the plaintiff's allegations "other than
plaintiff's own contradictory and incomplete testimony," and (2) "no reasonable person could
believe Jeffreys' testimony." Id. at 555 (internal quotation marks omitted).
For the Jeffreys exception to apply, the following conditions must be present: (1) the
plaintiff must rely almost exclusively on his own testimony; (2) the plaintiff's testimony must be
contradictory or incomplete; and (3) the plaintiff's testimony must be contradicted by evidence
produced by the defense. See id. The Second Circuit has made clear that the exception set forth
95

in Jeffreys is only appropriate in extraordinary circumstances, and "'if there is a plausible
explanation for discrepancies in a party's testimony, the court considering a summary judgment
motion should not disregard the later testimony because an earlier account was ambiguous,
confusing, or simply incomplete.'" Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,
106 (2d Cir. 2011) (quoting Jeffreys, 426 F.3d at 555 n.2). "However, in certain extraordinary
cases, where 'the facts alleged are so contradictory that doubt is cast upon their plausibility, the
court may pierce the veil of the complaint's factual allegations and dismiss the claim.'" Id.
(quotation omitted). "To hold otherwise, and require district courts to allow parties to defeat
summary judgment simply by testifying to the allegations in their pleadings (or, as here, to facts
not alleged in their pleadings), would 'license the mendacious to seek windfalls in the litigation
lottery.'" Id. (quoting Arrington v. United States, 473 F.3d 329, 444 (D.C. Cir. 2006)).
In the present matter, the Court finds that, although Plaintiff Bradford Surlock disputes the
fact that he was ever abusive or inappropriate, or that he ever yelled at staff at Fravor Road,
summary judgment is still appropriate as to the First Amendment retaliation claims against the
Administrative Defendants. His allegations are supported almost exclusively by his own selfserving, incomplete testimony, that is contradicted by an overwhelming amount of evidence to the
contrary, including observations by the named Defendants, non-party individuals, and even MaryAnne Surlock.
In a letter dated April 6, 2010 from Defendants O'Brien and DiNuzzo to Plaintiff Bradford
Surlock, parameters were established for Mr. Surlock's "adherence during visitation with Michael
at the IRA, and in the state vehicle." Dkt. No. 376-20 at 1. Further, the parameters also contained
guidelines for Mr. Surlock's interactions with clinical staff and administrative team members. See
id. These parameters including the following:
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- Refrain from any actions or words that could be interpreted as
threatening or aggressive.
- No comments, gestures or innuendo of a sexual or suggestive
nature to employees.
- Refrain from demands for information from staff. (Other than
critical information required to be exchanged before or after a home
visit).
- Refrain from criticism of staff; concerns should be channeled
through the house manager.
- Refrain from derogatory statements about clinical staff and
administrative team members.
-Refrain from intervening or directing staff when they are in
process of implementing a care plan or behavioral plan. (IE; If staff
are implementing the safe chair procedure, you should move away
from the area).
-During evening visits remain directly with Michael or wait for him
in his bedroom. (IE; if Michael is occupied with bathing, please
wait for him in his bedroom).
- Any request for accompanying staff and Michael in the vehicle
must be approved in advance by the site managers.
Dkt. No. 376-20 at 1. The letter concluded with the warning to Mr. Surlock that "[f]ailure to
comply with these parameters may result in further limitations on your visitation at the IRA." Id.
These parameters were revised in June of 2010 to include a restriction on sexually offensive
clothing. See Dkt. No. 249-12 at 156. According to Defendant O'Brien, on June 5, 2010, Mr.
Surlock came to Fravor Road wearing a t-shirt that contained "graphic material of a sexual nature.
Specifically, the shirt logo stated 'Republic of Poontang,' and it contained a sexually graphic
drawing of a woman." Id. Defendant O'Brien made this amendment after receiving an email
from Defendant Reid reporting the incident, which indicated that he and three other employees
found the shirt offensive and inappropriate. See id. at 158.
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On September 9, 2010, Sandra Coant filed a workplace violence event report. See Dkt.
No. 249-8 at 151-52. According to the report, while Ms. Coant was talking to Defendant Reid,
Mr. Surlock entered the office and interjected himself into their conversation, eventually making
reference to "nude photos" and that Ms. Coant "should walk some more." Id. After the report
was made, Senior Personnel Administrator Doug Lee investigated the incident. See id. at 155.
From this investigation, and in consultation with Counsel's Office, the Administrative Defendants
determined that Mr. Surlock's conduct violated the parameters previous set forth governing his
conduct while at Fravor Road or engaging with its staff. See id. at 171-73. As such, in a letter
dated September 17, 2010, Defendant O'Brien informed Mr. Surlock that, in light of his continued
violations of the parameters, he would not be permitted to enter Fravor Road for three months.
See id.
Additionally, in a report dated March 2, 2009, Pamela Wellman, NPC, and Deb Rickard,
NA, went to Fravor Road to observe medication procedures and report on any issues. See Dkt.
No. 250-26 at 34-37. In this report, Ms. Wellman and Ms. Rickard provided the following
comments regarding an interaction between Mr. Surlock and staff:
During the observed medication administration pass, staff interacted
pleasantly with Michael and Mr. Surlock, who remained at the
house. Mr. Surlock asked staff a question about changing the
amount of liquid the powdered substance, glutamine, is mixed with.
Staff calmly answered that Mr. Surlock would have to address this
question to Ms. Motyka, RN. As Mr. Surlock became more
adamant to have his question answered, staff asked him to exit the
building. He refused to leave. When staff called the State Troopers
to report Mr. Surlock['s] non-cooperative stance, Mr. Surlock did
relent, calmly said good-bye to Michael and left. This was a very
intense situation as an observer. Staff did an excellent job of
remaining calm and polite, and reminding Mr. Surlock that he
needed to speak with Ms. Motyka.

98

Id. at 36. Again, Mr. Surlock's abusive and aggressive conduct was noted by non-party
individuals.
Plaintiffs contend that the fact that the Administrative Defendants took these actions
without hearing their side of the story supports their position that these actions were retaliatory in
nature. Regardless, no reasonable juror could believe that the Administrative Defendants' actions
were a pretext for retaliation. As discussed, the Administrative Defendants received a plethora of
complaints regarding Mr. Surlock's abusive and inappropriate behavior from nearly all employees
associated with Fravor Road. For example, in a February 18, 2010 email, Defendant Gleason
recounted how Defendant O'Brien had to terminate a call from Mr. Surlock after he "refused to
stop screaming into the phone, calling her names, and belittling her every attempt to have a
reasonable conversation about the issues." Dkt. No. 383-1 at 25.
Plaintiffs rely on the Bradford Surlock's affidavit in response to Defendant Finster's
motion for summary judgment, in which Mr. Surlock denies outright or attempts to explain some
of the conduct on which the Administrative Defendants rely to support the imposition of the
parameters and ultimate decision to preclude Mr. Surlock from entering the Fravor Road facility
for three months. See Dkt. No. 371 at 60 (citing "BS Aff. in Finster" at ¶¶ 8, 10, 14).
Specifically, Mr. Surlock contends that he "did not 'scream' at employees or use profanity towards
them." Dkt. No. 390-3 at ¶ 8. The fact that Mr. Surlock yelled at employees is well documented
throughout the record, and not only by the named Defendants. In fact, even Mrs. Surlock has
admitted that Mr. Surlock raised his voice to staff members on occasion and made derogatory
comments. See, e.g., Dkt. No. 383-1 at 43 ("Yes, Brad did raise his voice to the staff person");
id. at 45 ("Yes, Brad did make a derogatory statement against Laurie and it was reported and yes
he did admit to it and he was not right to say this").
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Further, after a February 19, 2010 meeting with Mr. Surlock and two staff members to
discuss his concerns regarding "flex" in the rear seat of the van where Michael sits, Fran Koon
informed Defendant Gleason that when the staff explained to Mr. Surlock their rationale for staff
positioning when riding in the van with Michael, he refused to listen and "became somewhat
argumentative." Dkt. No. 383-2 at 1. Ms. Koon asked him to calm down, but Mr. Surlock
refused. See id. At this point, Mr. Surlock "pulled out his tape recorder and repeated his refusal
to allow us to transport Michael and asked that we acknowledge this on tape which we all did."
Id. The email to Defendant Gleason further recounts that after Mr. Surlock left, Ms. Koon and
Joyce Flynn continued discussing the possible use of an Uplander van instead of the Astro van
that they were currently using. See id. Specifically, according to Ms. Koon,
[t]he biggest advantage is that the middle seats are bucket seats and
one could be removed to provide greater access by staff to Michael
in the rear at the same time complying with Joyce's clinical
recommendation. Also, the Uplander's rear seat does not flex like
the current seat in the Astro. So Joyce is researching
accommodations for both and she expects to have feedback by
Monday. I do think that no matter what "stock" modifications we
come up with we will need to address the headrest issue for the
middle position of the back seat even though I believe Joyce may
not see this as critical because of the neck brace Michael wears
during transports.
Id. Despite Mr. Surlock's alleged disruptive and combative behavior, Ms. Koon and Ms. Flynn
continued to discuss how best to ensure that Michael is kept safe during transport after Mr.
Surlock's departure, and then conveyed these thoughts to Defendant Gleason. See id. Far from
displaying retaliatory animus, these actions truly reflect that, regardless of how the
Administrative Defendants may have felt about Mr. and Mrs. Surlock, they generally sought to
provide Michael with the best care possible.

100

Further, Debby Rickard conducted a review of changes made at Fravor Road and made
recommendations to improve consistent training for staff. See Dkt. No. 249-8 at 168-170. In her
report dated September 13, 2010, Ms. Rickard made the following observation:
What was extremely discouraging was the continued staff turnover
at this home. Although administrative meetings continue with the
Surlocks, disparaging and sometimes sexually explicit comments
continue to be made to staff. Mr. Surlock has decreased some of his
overbearing attitude toward staff but continues to intimidate anyone
that he can. Staff continue to receive forceful direction from the
parents about seating arrangements while transporting Michael and
themselves, and comments about staff caring for other individuals
in the home. From conversation with Monique [Dickerson] and the
DA II, staff are so burnt out that they no longer report the ongoing
staff abuses by the Surlocks. This results in staff bidding out of the
house, new staff in need of training, and less consistent care.
Id. at 170.
Moreover, on March 23, 2010, Defendant O'Brien held a staff meeting to discuss concerns
regarding Mr. Surlock's conduct after having received several complaints. After the meeting, she
personally interviewed a number of employees who indicated that they were "the target of Mr.
Surlock's aggression or sexual comments." Dkt. No. 250-55 at 1-9. The employees who reported
such conduct to Defendant O'Brien during these interviews include the following: Sandra Coant,
Debbie Kersey, Jeanette Maynes, Chelise Blauvelt, Cheryl Van Epps, Tonya Rodriguez, Wendy
Goodberry, Cora Spencer, and Laura Wallace. See id. at 5-9. Common to all the reported
incidents by these nine employees is that Mr. Surlock was repeatedly aggressive, made
inappropriate sexual comments, and yelled at staff. See id. Notably absent from the record is any
evidence refuting these repeated and persistent allegations of abuse, other than Mr. Surlock's
vague and conclusory denials.

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Further, to the extent that Plaintiffs claim that they were retaliated against when staff
deliberately bleached or ruined Michael's laundry, the Court finds these conclusory allegations
insufficient to support their position. Not only are such allegations insufficient on their face to
support the claim, the allegations are further undermined by the fact that OPWDD reimbursed the
Surlocks for any such lost or damaged clothing. See Dkt. No. 415-1 at ¶ 45; Dkt. No. 383-2 at 37.
In fact, Defendant Alexander testified that staff brought to her attention that Michael's comforter
had been inadvertently bleached in their attempt to wash it. See Dkt. No. 410-52 at 217-19. In
response, Fravor Road purchased two new comforters for Michael to replace the one that had
been inadvertently ruined. See id.
Throughout the record, one common theme is present: Bradford Surlock was repeatedly
aggressive and inappropriate towards staff. These incidents were reported throughout Michael's
time as a resident at Fravor Road, and often reported by individuals who are not named as
Defendants in the present action. See, e.g., Dkt. No. 250-68 at 6 (letter from Joseph Bertoli to
OPWDD administration requesting that some action be taken to deal with Bradford Surlock's
continued aggressive and hostile behavior towards staff and arguing that it is the "job of upper
management to protect the employees"). As the undisputed facts establish, the written parameters
that Mr. Surlock received made clear that, while he was free to raise concerns regarding Michael's
treatment, they should not be directed at Fravor Road direct care staff or made while staff were
"in the process of implementing a care plan or behavioral plan." These parameters and eventual
denial of entry to the facility for three months were only implemented after years of outbursts and
aggressive behavior towards staff. Tellingly, Mrs. Surlock raised continual complaints and
strongly advocated on Michael's behalf during this entire period as well. The difference being
that she did so in a manner that, while fervent, was not considered aggressive, abusive, or
102

inappropriate. As such, no reasonable juror could conclude that the imposition of the parameters
and temporary ban was in retaliation for Mr. Surlock's advocacy on behalf of Michael.
Accordingly, the Court finds that Plaintiffs have failed to establish that their speech was "a
substantial motivating factor" in the Administrative Defendants' decision to take this adverse
action against Mr. Surlock.
Based on the foregoing, the Court grants the Administrative Defendants' motion for
summary judgment as to the First Amendment retaliation claim.

3. The Supervisory Defendants
Plaintiffs contend that the Supervisory Defendants were put on notice that other staff
members were retaliating against them but failed to take adequate remedial measures. See Dkt.
No. 371 at 61. Specifically, Plaintiffs assert that "[a]s early as June 2008, Mr. Surlock notified
defendant Elliott that Fravor staff were unplugging Michael's radio and other sensory items and,
thereby, depriving him of tools critical to his care and treatment. Plaintiffs notified Alexander
and the other Supervisory Defendants about these deprivations as well." Id. According to
Plaintiffs, "despite their knowledge that these devices were critical therapeutic tools, the
deprivation of which caused Michael psychological injury and put him at risk of physical injury,
these defendants failed to take adequate remedial measures to prevent this from happening." Id.
Moreover, Plaintiffs contend that, "as house directors and assistant house director, Reid, LeBoeuf
and Perkins oversaw the daily activities [at] the house and, as such, were well aware of, and
contributed to, Michael's exclusion from house activities vis-a-vis leaving him out of house
photos and refusing to celebrate his birthday or other holidays while other residents enjoyed such
attention. As Mary-Anne explained, this rendering of Michael as an outcast increased his
103

frustration and anxiety, which caused him psychological harm and increased his risk of physical
harm through SIBs." Id. (citing MAS Aff. in Supervisors ¶ 39).
Plaintiffs allege that a reasonable jury could conclude that the Supervisory Defendants
"failed to prevent and, in some case[s] directly partook in, these adverse actions because of their
disdain for the Surlocks' criticism of them and persistent advocacy for Michael's care." Id.
Plaintiffs argue that, "[i]ndeed, Maynes told the Surlocks that Alexander did not like them and
even threatened to withhold her pay raise if she was found talking to them." Id. (citing Ex. M-69
p.4). Further, Plaintiffs claim that "Reid once admitted to the Surlocks that 'staff hold grudges'
and Perkins told them to 'be careful what you say because it gets back to Barb [Alexander] and
Laurie [Elliott]." Id. at 61-62 (citing Exs. M-73-74 p.2). In response to the Supervisory
Defendants' arguments that they were not personally involved, Plaintiffs argue that "these
defendants' personal involvement is established by their deliberate indifference to known acts of
retaliation by the very staff over which they exercise supervisory responsibility, as well as by
their allowance of the continuation of a policy and practice of such retaliatory acts, which
continued unabated on scores of occasions over the years, and, in some cases, such as ostracizing
Michael from house activities, by their very own direct participation." Id. at 62.22
Again, despite the sheer volume of their opposition to the pending motions, Plaintiffs have
failed to support their First Amendment retaliation claims against the Supervisory Defendants
with "specific and detailed factual allegations," rather than generic and conclusory assertions. See

In their motion for summary judgment, the Supervisory Defendants argue that the Court
should dismiss any retaliation claims against them regarding the decision to restrict Bradford
Surlock from entering Fravor Road. See Dkt. No. 250-77 at 30-33. Plaintiffs, however, have not
responded to this argument and, therefore, the Court deems this claim abandoned as to the
Supervisory Defendants.
22

104

Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000). Plaintiffs conclusory allegations
fail to establish the personal involvement of the Supervisory Defendants, or even that the alleged
retaliatory acts are causally related to any alleged protected activity.
Moreover, Plaintiffs have failed to establish that their speech was effectively chilled as a
result of the alleged retaliatory conduct or that they suffered some other concrete harm sufficient
to support this claim. Plaintiffs' speculative and conclusory allegations as to non-speech related
harm have been repeatedly found to be insufficient to support a First Amendment retaliation
claim. See Dorsett, 732 F.3d at 161 (finding that delay in approving a settlement did not
"constitute[ ] a concrete injury giving Plaintiffs standing"). As discussed, various non-speech
related harms are sufficient to give a plaintiff standing to support a First Amendment retaliation
claim. See Zherka v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (lost government contract);
Tabbaa v. Chertoff, 509 F.3d 89, 102 (2d Cir. 2007) (additional scrutiny at border crossing);
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002)
(revoking a building permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d Cir. 1994)
(refusal to enforce zoning laws). Plaintiffs contend that they experienced "extreme frustration"
from alleged retaliatory conduct, such as having to untie several knots in Michael's shoelaces, and
that they suffered "emotional distress" as a result of Michael's comforter being bleached. See
Dkt. No. 394-1 at ¶¶ 346-351. While the Court can appreciate how difficult it can be to untie
shoelaces tied with several knots, the "extreme frustration" the Surlocks experienced is simply not
the type of non-speech related harm that has been found to be sufficient to support a First
Amendment retaliation claim.
Further, Plaintiffs are correct that the sensory items were part of Michael's treatment plan.
Plaintiffs fail to provide any evidence, other than Mrs. Surlock's own conclusory assertions,
105

establishing that Michael was harmed through these alleged deprivations. Significantly, Plaintiffs
fail to provide the Court a single example of how he was psychologically harmed through these
alleged deprivations, or even that he experienced an episode of SIB when he sought out but was
unable to find or use one of his sensory items. See, e.g., Dkt. No. 394-1 at ¶¶ 355-57.
Finally, Plaintiffs admit that the Supervisory Defendants did not personally unplug, turn
off, or change the station on Michael's clock radio, or otherwise deprive Michael of his sensory
devices. See Dkt. No. 394-1 at ¶ 372. Rather, they contend that other staff at Fravor Road
engaged in this behavior. See id. at ¶¶ 371, 374. Plaintiffs admit that the Supervisory Defendants
directed all Fravor Road staff to plug in Michael's sensory devices and to not unplug them
without authorization from a supervisor. See id. at ¶ 378. Further, the Supervisory Defendants
directed all staff not to cover any of Michael's possessions in response to the Surlocks'
complaints. See id. Although it is alleged that staff continued engaging in this behavior, the
Supervisory Defendants responded to the complaints in a reasonable manner and were not
personally involved in the alleged retaliatory conduct. Further, it is unclear what other steps the
Supervisory Defendants could have taken in response to these complaints, considering the fact
that it was unknown who had actually engaged in the alleged retaliatory conduct.
Based on the foregoing, the Court grants the Supervisory Defendants' motion for summary
judgment as to Plaintiffs' First Amendment retaliation claim.

I.

Negligent supervision
Under New York law, a plaintiff must establish three elements to prevail on a negligence

claim: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached that
duty; and (3) as a result of the breach, the plaintiff suffered damages. See Pasternack v. Lab.
106

Corp. of Am., 892 F. Supp. 2d 540, 546-47 (S.D.N.Y. 2012) (citing Farash v. Cont'l Airlines, Inc.,
574 F. Supp. 2d 356, 367 (S.D.N.Y. 2008)). A claim for negligent hiring, supervision, or
retention, "in addition to the standard elements of negligence," requires "a plaintiff [to] show: (1)
that the tortfeasor and the defendant were in an employee-employer relationship; (2) that the
employer 'knew or should have known of the employee's propensity for the conduct which caused
the injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's
premises or with the employer's chattels.'" Ehrens v. Lutheran Church, 38 F.3d 232, 235 (2d Cir.
2004) (quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 229
A.D.2d 159, 161 (2d Dep't 1997)). "A cause of action for negligent hiring or retention requires
allegations that the employer . . . failed to investigate a prospective employee notwithstanding
knowledge of the facts that would lead a reasonably prudent person to investigate that prospective
employee." Richardson v. City of N.Y., No. 04-CV-5314, 2006 WL 3771115, *13 (S.D.N.Y. Dec.
21, 2006) (internal quotation and alteration omitted).

1. Defendant Graham
It is unclear to the Court why Defendant Graham was included in this claim and, despite
Plaintiffs' arguments in their opposition that Defendant Graham was a "supervisor" at Fravor
Road and that she should be included in this claim, they failed to put forth any evidence in
support of this claim. In fact, the only allegations that could possibly apply to Defendant Graham
in regards to this claim are that, while Defendant Graham served as Assistant House Director
from January through July of 2008, "house staff were responsible for four medication
administration failures . . . and two reported incidents of staff abuse and/or neglect of Michael, . .
. who was admitted on two occasions to the emergency room." Dkt. No. 393-1 at ¶ 3. As
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discussed in greater detail above, however, nothing in the record indicates that Defendant Graham
was even present at the Fravor Road facility when these alleged incidents occurred.
Moreover, during Defendant Graham's time at Fravor Road, she served as a Development
Assistant 1 trainee. See Dkt. No. 258-30 at 2. According to Defendant Graham's job description,
she was responsible for, among other things, the following supervisory duties:
-Supervises Developmental Aides and Developmental Aide
Trainees (and others as appropriate) in the care, treatment and
habilitation of developmentally disabled individuals.
-Schedules and assigns staff to specific activities in order to provide
the most efficient and effective services.
-Maintains and posts scheduled assignments and adjusts such
assignments as required based on availability of staff, the abilities
of specific staff members and the particular requirements of the
developmentally disabled individual involved.
-Instructs staff as to the specific tasks to be performed and provides
them with appropriate written guidelines if necessary.
-Personally observes staff carry out assignments to ensure that
instructions/guidelines are being adhered to.
-Periodically meets with staff individually or as a group to discuss
observations, deficiencies, new techniques, administrative matters
or other circumstances that might have a bearing on the effective
and efficient functioning of the staff.
-Meets with staff on an individual basis to discuss job performance
strengths and weaknesses, suggestions for improvement, and
follows up as appropriate.
-Maintains appropriate records of staff relating to time, attendance,
level of performance, specific deficiencies, counseling sessions,
training needs, etc.
-Supervises staff in appropriate reactions to emergency or crisis
situations.

108

-Manages or supervises the management of consumers funds and
related records.
*****
-As needed, performs the duties/activities of the Developmental
Aide/Trainee.
Dkt. No. 258-30 at 7. As Defendant Graham points out, the evidence in this case make clear that
she was not responsible for the distribution of Michael's medication, nor was she responsible for
the policies regarding the use of body charts or medical notes to document Michael's injuries.
Defendant Graham's job description makes clear that her responsibilities were almost entirely
administrative and not directly related to any medical care of the residents at Fravor Road.
Based on the foregoing, the Court grants Defendant Graham's motion for summary
judgment as to Plaintiffs' negligent supervision cause of action.

2. The Administrative Defendants
Plaintiffs contend that the Administrative Defendants "were made aware on numerous
occasions that Fravor Road staff were improperly administering Michael's medications, failing to
apply Michael's wrist splint as prescribed and depriving Michael of needed sensory devices;
however, they failed to take adequate steps to address these issues, which continued unabated
over the years." Dkt. No. 371 at 71. Further, Plaintiffs claim that, "[i]n addition, these
defendants' failure to supervise created a reasonably foreseeable risk of danger to Michael.
Specifically, by failing to provide Michael with one-to-one care, these defendants left Michael
insufficiently supervised, which led to an increased risk, and occurrence, of SIBs, abuse, neglect
and physical and psychological injury." Id. Moreover, Plaintiffs contend that the Administrative
Defendants were put on notice of their employees' propensity to engage in tortious conduct
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because they were "put on notice various times throughout the year of the inadequate treatment
and improper conduct by Michael's care takers, and so these defendants were well aware of the
risk of harm to Michael." Id. at 73. Plaintiffs also argue that "these defendants' failure to ensure
an adequate level of supervision for Michael created a reasonably foreseeable risk of danger, as
evidence[d] by, inter alia, the pleas to these defendants for such care by Michael's parents,
Medicaid Service Coordinators and CQC over the years." Id.
Plaintiffs' claim of negligent supervision against the Administrative Defendants is entirely
conclusory, unsupported by any citation to evidence in the record. Plaintiffs have failed to put
forth any evidence establishing that the Administrative Defendants knew or should have known
that any of the employees at Fravor Road had a propensity for tortious conduct, prior to any such
alleged wrongdoing. See Valenti v. Citigroup, Inc., 837 F. Supp. 2d 304, 330 (S.D.N.Y. 2011).
Moreover, Plaintiffs have failed to even identify the individual employees upon whom the
Administrative Defendants' derivative liability would be predicated. See id. Further, Plaintiffs
have failed to put forth any evidence that the Administrative Defendants had any personal
involvement in the hiring or training of any staff before they came to work at Fravor Road.
Moreover, Plaintiffs failed to put forth any evidence demonstrating that any of the staff hired to
work at Fravor Road had a prior record of having engaged in or had a propensity for abusive or
negligent conduct or that the Administrative Defendants were aware of any such conduct.
Finally, as discussed above, the undisputed facts demonstrate that the reports of abuse or neglect
by employees resulted in immediate action, i.e., the charged employee was removed from the
residence pending investigation.
Based on the foregoing, the Court grants the Administrative Defendants' motion for
summary judgment as to Plaintiffs' negligent supervision claim.
110

3. The Supervisory Defendants
Plaintiffs contend that the "record contains sufficient evidence from which a reasonable
jury could find that the Supervisory Defendants, and each of them, breached their duty of care in
supervising, training and retaining staff at Fravor Road, thereby causing Michael injury." Dkt.
No. 371 at 70-73. Specifically, Plaintiffs argue that the Supervisory Defendants "were made
aware on numerous occasions that Fravor Road staff were improperly administering Michael's
medications, failing to apply Michael's wrist splint as prescribed and depriving Michael of needed
sensory devices; however, they failed to take adequate steps to address these issues, which
continued unabated over the years." Id. at 71. Additionally, Plaintiffs assert that the Supervisory
Defendants' "failure to supervise created a reasonably foreseeable risk of danger to Michael.
Specifically, by failing to provide Michael with one-to-one care, these defendants left Michael
insufficiently supervised, which let to an increased risk, and occurrence, of SIBs, abuse, neglect
and physical and psychological injury." Id.23
As with their claim against the Administrative Defendants, Plaintiffs' claim of negligent
supervision against the Supervisory Defendants is entirely conclusory and unsupported by any
citation to evidence in the record. Plaintiffs have failed to put forth any evidence establishing that
the Supervisory Defendants knew or should have known that any of the employees at Fravor
Road had a propensity for tortious conduct, prior to any such alleged wrongdoing. See Valenti,
837 F. Supp. 2d at 330. Moreover, Plaintiffs have failed to even identify the individual
employees upon whom the Supervisory Defendants' derivative liability would be predicated. See
id. Further, as discussed in more detail above, the undisputed facts demonstrate that, when

Again, notably absent from these allegations are any citation to the record or even a
reference to a specific incident.
23

111

allegations of wrongdoing were brought to the Supervisory Defendants' attention, they took
prompt action to ensure that such conduct would not occur again. Aside from conclusory
allegations, Plaintiffs have failed to put forth any evidence demonstrating how a specific breach
by the Supervisory Defendants caused any injury to Michael. Rather, they simply argue that, had
Michael been provided one-to-one supervision, he would have suffered fewer SIBs and fewer
injuries. Again, however, they failed to cite to a single incident in which they believe that one-toone supervision would have remedied any such unspecified injury. Finally, as discussed above,
the Supervisory Defendants did not have the authority to provide Michael with one-to-one
supervision.
Based on the foregoing, the Court grants the Supervisory Defendants' motion for summary
judgment as to Plaintiffs' negligent supervision claim.

J.

Medical malpractice24
The Nurse Defendants contend that most of Plaintiffs' allegations against them relate to

claims that Michael's medications were not properly administered, were not administered with
thickened fluid, or were not administered at all. See Dkt. No. 253-4 at 26-27. Even accepting the
allegations as true, the Nurse Defendants claim that there is no evidence that the medication
errors resulted in harm to Michael. See id. at 27. The Nurse Defendants argue that "Plaintiffs
have not identified any actual injuries as a result of the medication errors and have no[t] disclosed

In their memorandum of law, the Nurse Defendants argue that the Court should construe
this claim against them as a medical malpractice claim and not as a general negligence claim. See
Dkt. No. 253-4 at 25. In their response, Plaintiffs have only argued in support of a medical
malpractice claim against the Nurse Defendants. See Dkt. No. 371 at 73-75. As such, the Court
finds that Plaintiffs have abandoned any general negligence claim against the Nurse Defendants
and will only address the merits of the medical malpractice claim.
24

112

a medical expert witness who will (1) identify actual injuries and (2) link those injuries to the
Nurses' conduct." Id. Unlike Plaintiffs, the Nurse Defendants claim that they have retained
nursing and pharmacology experts who have "given opinion that there are no documented injuries
as a result of the medication errors, and further, the errors as alleged would not be expected to
cause injury." Id. In response to the Nurse Defendants causation arguments, Plaintiffs contend as
follows: "As to causation, Motyka and Dickerson both testified to the potential negative effects of
medication errors on Michael and the Surlocks recount in their journals and aver in their
affidavits that they saw some of these effects, such as increased lethargy, befall Michael in the
wake of medication errors." Dkt. No. 371 at 75 (citing Motyka Dep. Tr. pp. 54-54 (M-71) and
Dickerson Dep. Tr. p. 39 (M-72)).
"The elements of a cause of action to recover damages for medical malpractice include a
deviation or departure from the accepted standard of care and evidence that the deviation or
departure was a proximate cause of injury or damage." Feuer v. Ng, 136 A.D.3d 704, 706 (2d
Dep't 2016) (citations omitted). "To prevail on a motion for summary judgment in a medical
malpractice action, the defendant must 'make a prima facie showing either that there was no
departure from accepted medical practice, or that any departure was not a proximate cause of the
patient's injuries.'" Id. (quotation omitted). "In response, the plaintiff need only raise a triable
issue of fact regarding 'the element or elements on which the defendant has made its prima facie
showing.'" Id. (quotation and other citation omitted).
In the present matter, the Court finds that the Nurse Defendants have made a prima facie
showing that, even assuming their was a departure from the accepted standard of care, such
departure was not was not a proximate cause of any injury. Again, Plaintiffs' response focuses
entirely on the alleged medication errors. As discussed in relation to the substantive due process
113

allegations against the Nurse Defendants, Dr. Nichita reviewed the medical record in this matter
and determined that, with the exception of a slight upset stomach in one instance, no adverse
effects/injuries were caused as a result of the medication errors. See Dkt. No. 252-5. Dr. Nichita
discusses the uses of each drug at issue, the pharmacokinetics of the drugs, her opinion as to why
the alleged errors would not have caused any adverse effects, and the fact that the record is
devoid of any alleged injuries as a result of the errors. See id. Dr. Nichita is Board Certified in
forensic psychiatry by the American Board of Psychiatry and Neurology and is currently licensed
to practice in New York. See Dkt. No. 252-4. The Nurse Defendants have satisfied their prima
facie burden.
In response to Dr. Nichita's determination that Michael did not suffer any injury as the
result of any alleged medication error, Plaintiffs rely on the observations of Mr. and Mrs. Surlock
and the statements of Defendants Motyka and Dickerson. First, Plaintiffs reliance on the
statements of Defendants Motyka and Dickerson is entirely misplaced and insufficient to rebut
the Nurse Defendants' prima facie case. As Plaintiffs admit, Defendants Motyka and Dickerson
testified about the "potential negative effects of medication errors." Specifically, Defendant
Motyka testified as follows:
Q.

But assuming the Geodon and/or the Lamictal were used for
anti-seizures, if he was not given dosages, that could have
increased the tendency to have seizures?

A.

It could.

Dkt. No. 376-26 at 1. Similarly, Defendant Dickerson such an error "could lead to a seizure."
Dkt. No. 376-27 at 1-2. The fact that Michael could have been potentially harmed through
medication errors is not at issue. What is at issue is whether he was, in fact, harmed by such
medication errors. Plaintiffs have offered nothing but their own conclusory allegations that
114

Michael suffered any such injury, which is patently insufficient to rebut the Nurse Defendants'
prima facie case. Finally, Mr. and Mrs. Surlock's conclusory allegations that the medication
errors had an impact on Michael is insufficient to rebut the Nurse Defendants' prima facie case.
Without question, the physiological impact of different medications and the impact that a missed
or improper dose may have on a person is not something within the ordinary experience or
knowledge of lay persons. Without such expert testimony, Plaintiffs have failed to rebut the
Nurse Defendants' prima facie case. See Sitts v. United States, 811 F.2d 736, 740 (2d Cir. 1987)
("[E]ven where negligence is easily within the layman's realm of knowledge and hence properly
provable without expert testimony, expert testimony may be required to prove that the negligence
was the proximate cause of the injury complained of, for '[a]lmost every person who receives the
services of a physician is sick or disabled when he first goes to the physician. Thus there lurks
the ever present possibility that it was the patient's original affliction rather than the physician's
negligence which caused the ultimate damage'") (quotation and other citation omitted); Hall v.
County of Saratoga, No. 1:10-cv-1120, 2013 WL 838284, *12 (N.D.N.Y. Mar. 6, 2013)
("Whether the claim is grounded in negligence or medical malpractice, '[w]here medical issues
are not within the ordinary experience and knowledge of lay persons, expert medical testimony is
a required element of a prima facie case'") (quoting Myers v. State of New York, 46 A.D.3d 1030,
1031 (3d Dep't 2007)) (other citations omitted).
Accordingly, the Court grants the Nurse Defendants' motion for summary judgment as to
Plaintiffs' medical malpractice claim.

K.

Qualified immunity

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"The doctrine of qualified immunity shields public officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Salahuddin v. Goord, 467 F.3d 263,
273 (2d Cir. 2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d
396 (1982)).
For a constitutional right to be "clearly established" for purposes of
determining whether an officer is entitled to qualified immunity, the
"contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.
This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent."
Mollica v. Volker, 229 F.3d 366, 370-71 (2d Cir. 2000) (quoting Anderson v. Creiehton, 483 U.S.
635, 640 (1987)) (emphasis in original). "Where the right at issue in the circumstances
confronting police officers . . . was clearly established but was violated, the officers will
nonetheless be entitled to qualified immunity 'if . . . it was objectively reasonable for them to
believe their acts did not violate those rights.'" Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir.
2007) (quotation and other citation omitted).
"Although a mere mistake in the performance of an official duty may not deprive the
officer of qualified immunity, the doctrine does not shield performance that either (a) was in
violation of clearly established law, or (b) was plainly incompetent." Manganiello v. City of New
York, 612 F.3d 149, 165 (2d Cir. 2010) (citations omitted). "With respect to both the legal
question and the matter of competence, the officials' actions must be evaluated for objective
reasonableness. . . . That is, '[e]ven if the right at issue was clearly established in certain respects
. . . an officer is still entitled to qualified immunity if "officers of reasonable competence could
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disagree" on the legality of the action at issue in its particular factual context.'" Id. (quotations
omitted).
The determination of whether an official's conduct was objectively reasonable is a mixed
question of law and fact. See Zellner, 494 F.3d at 367 (citing Kerman v. City of New York, 374
F.3d 93, 109 (2d Cir. 2004)) (other citations omitted). "The ultimate question of whether it was
objectively reasonable for the officer to believe that his conduct did not violate a clearly
established right, i.e., whether officers of reasonable competence could disagree as to the
lawfulness of such conduct, is to be decided by the court." Id. (citation omitted). "However, '[a]
contention that . . . it was objectively reasonable for the official to believe that his acts did not
violate those rights has "its principle focus on the particular facts of the case."'" Id. (quotation
and other citations omitted).
If there is no dispute as to any material fact, the issue of whether the official's conduct was
objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation
omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting
Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's
decision as to "what the facts were that the officer faced or perceived," the court must then "make
the ultimate legal determination of whether qualified immunity attaches on those facts."
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (quotation omitted); see also Lennon v. Miller,
66 F.3d 416, 421 (2d Cir. 1995) (quotation omitted).

2. Defendant Finster
In the alternative, the Court finds that Defendant Finster is entitled to qualified immunity
as to Plaintiffs' substantive due process claim. As discussed above, Plaintiffs contend that
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Defendant Finster "pushed" Michael out of his room and, during another incident, "slapped"
Michael while he was on his bed. A review of the video capturing these incidents makes clear
that Plaintiffs have grossly exaggerated the alleged incidents. The video clearly shows Defendant
Finster guiding Michael out of his room by placing her hand on his back. Nothing in the video
depicts conduct that could be considered abusive. As to the alleged "slapping" incident, again
Plaintiffs grossly misrepresented the alleged incident. As set forth more fully above, the video
depicts Defendant Finster gently assisting Michael with his clothes and then gently lowering her
hand towards Michael. No reasonable fact finder could conclude that Defendant Finster
"slapped" Michael as alleged.
Based on the foregoing, the Court finds that, in the alternative, Defendant Finster is
entitled to qualified immunity as to Plaintiffs' substantive due process claim.

3. Defendant Maynes
Defendant Maynes argues that she is entitled to qualified immunity because a reasonable
person would not have believed her conduct violated clearly established rights. See Dkt. No. 2421 at 34-35. Specifically, she contends that "an objectively reasonable defendant would not
believe Defendant Maynes' alleged failure to report Defendant Graham-Webber, two medication
errors, two failures to put Michael's wrist splints on, and one allegation of abuse violated any
clearly established rights." Id. at 35.
The Court finds it unnecessary to spend much time on this argument, having already
decided that a reasonable jury could conclude that Defendant Maynes violated Michael's
constitutional rights to be free from excessive force and physical, psychological, and emotional

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harm, rights which have been clearly established for some time. See Youngberg, 457 U.S. at 324;
see also West, 2008 WL 4201130, at *19.
Accordingly, Defendant Maynes' motion for summary judgment on qualified immunity
grounds is denied.

4. Defendant Spencer
For the reasons set forth in the Court's discussion of the substantive due process claim
against Defendant Spencer, questions of fact preclude the Court from finding that she is entitled
to summary judgment as to that claim.
As to Plaintiffs' First Amendment retaliation claim, however, the Court finds that, in the
alternative, Defendant Spencer is entitled to qualified immunity because the law was not clearly
established. Specifically, as discussed, the right to monitor and record public officials' conduct in
public locations is clearly established in various situations. See Glik v. Cunniffe, 655 F.3d 78, 8284 (1st Cir. 2011) (discussing the various situations in which the right to videotape public
officials is clearly established). The Court, however, is not aware of any authority setting forth
the proposition that the First Amendment protects a parent's right to engage in unauthorized video
surveillance of staff and his child in the bedroom of a state-operated facility. As such, to the
extent that this surreptitious monitoring could be considered a protected activity, it was not
clearly established. See Katherine Anne Meier, Removing the Menacing Specter of Elder Abuse
in Nursing Homes Through Video Surveillance, 50 GONZ. L. REV. 29, 34 (2014) (discussing the
fact that the installation of cameras in nursing homes and other like facilities and the privacy
implications it presents are an emerging area of law).

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Based on the foregoing, the Court finds that, in the alternative, Defendant Spencer is
entitled to qualified immunity as to Plaintiffs' First Amendment retaliation claim.

5. The Administrative Defendants
i. Substantive Due Process
As discussed above, most of Plaintiffs' allegations as to their substantive due process
claims center around their disagreements with the treatment decisions made. These decisions
were made after spending considerable time consulting experts in all fields. Further, the refusal
to grant some of Bradford and Mary-Anne's requests for changes in Michael's treatment were
similarly made after substantial deliberation and consultation, and were often made because of the
fact that Michael was showing improvement with his current course of treatment. No reasonably
objective official would believe that such conduct violated Michael's substantive due process
rights.
Further, as discussed, the Administrative Defendants spent an extraordinary amount of
time overseeing the Fravor Road facility and, in particular, the care that Michael was receiving.
When complaints were brought to their attention, they were investigated and, when necessary,
remedial action was taken. Such actions included re-training employees, reassigning employees
to different facilities, and terminating/placing employees on leave. Moreover, the Administrative
Defendants personally handled a multitude of Mr. and Mrs. Surlocks' complaints and repeatedly
met with them in an effort to ensure that Michael was receiving the treatment he deserved. No
reasonably objective official would believe that such attentive oversight violated Michael's
substantive due process rights.

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Accordingly, in the alternative, the Court finds that the Administrative Defendants are
entitled to qualified immunity on Plaintiffs' substantive due process claims.

ii. Procedural due process
Even had the Court found that questions of fact precluded the Court from granting
Defendants Gleason, O'Brien, DiNuzzo, Elliott and Alexander's motion for summary judgment as
to this claim, the Court finds that they are entitled to qualified immunity. It is hardly "clearly
established" that the operators of a state-run home for those with mental disabilities violate a
parent's due process rights when they prevent the parent from entering the home because of
several alleged incidents of misconduct but still afford the parent unlimited access to his child
outside of the home. Further, Defendants Gleason, O'Brien, DiNuzzo, Elliott and Alexander
made this decision after first implementing parameters to guide Mr. Surlock's interactions with
employees. Those parameters were drafted and provided after Defendants consulted with legal
counsel who advised that Mr. Surlock should be put on notice that his failure to comply could
result in limitations on his visitation rights at Fravor Road. The three-month ban was also
imposed only after Defendants consulted with legal counsel. Accordingly, even if the law was
clearly established, an objectively reasonable official would not believe that such conduct
violated Bradford Surlock's clearly established rights.
Based on the foregoing, the Court finds that the Administrative Defendants are entitled to
qualified immunity as to Plaintiffs' procedural due process claim.

iii. First Amendment Retaliation

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As discussed above, the Administrative Defendants implemented the parameters for Mr.
Surlock and eventually temporarily banned him after years of complaints from staff regarding his
aggressive and abusive behavior. In fact, the Administrative Defendants were often subject to
that same behavior. During the years that Michael was housed at Fravor Road, his parents
continuously complained about the care that he was receiving and advocated on his behalf. More
than two years after Michael first moved into Fravor Road, the Administrative Defendants finally
implemented parameters governing Mr. Surlock's conduct. While Mrs. Surlock advocated on
behalf of Michael and complained about his treatment during this entire time, staff did not raise
complaints of verbal abuse, or aggressive or inappropriate conduct against her, only Mr. Surlock.
In light of the repeated complaints the Administrative Defendants received from staff regarding
Mr. Surlock's conduct and in light of the deliberation in which they engaged before imposing the
parameters and eventual temporary ban, which included consulting with counsel, no objectively
reasonable official would believe that such conduct was in retaliation for Plaintiffs' protected
activity. See Contes v. Porr, 345 F. Supp. 2d 372, 381 (S.D.N.Y. 2004) (holding that the city's
corporate counsel was entitled to qualified immunity in action alleging that firefighters' First
Amendment rights were violated when disciplinary charges were initiated against them in
retaliation for their political affiliation where counsel conducted an investigation after having
received complaints of harassment by female firefighters) (citation omitted). In fact, Plaintiff
Bradford Surlock was still permitted to raise complaints regarding Michael's treatment, now
simply with parameters as to how such complaints should be raised. Moreover, Mrs. Surlock,
who advocated on behalf of Michael just as ardently, had no such parameters governing her
conduct.

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Accordingly, the Court finds that, in the alternative, the Administrative Defendants are
entitled to qualified immunity as to Plaintiffs' First Amendment retaliation claim.

6. The Nurse Defendants
Contrary to Plaintiffs' contentions, the Nurse Defendants are, in the alternative, entitled to
qualified immunity as to the substantive due process claim. As discussed in more detail above,
when medication errors were discovered, the Nurse Defendants took remedial action to try to
ensure that the same mistake would not happen again. These actions included discussing the
issue with the direct care staff, retraining the direct care staff, altering policies to ensure that
changes in medication are more effectively disseminated, and occasionally revoking a direct care
worker's medication certification. Moreover, the Nurse Defendants reinforced the policy that,
when a medication error occurred, the prescribing physician would be contacted to receive
directions on any actions that should be taken.
The undisputed facts make clear that no reasonably objective official in the Nurse
Defendants' position would believe that their actions or omissions violated Michael's clearly
established rights. This result is further supported by the fact that Michael was taking an
extraordinary number of prescription medications and supplements during his time at Fravor
Road. These prescriptions and supplements were constantly changing, and many of the alleged
mistakes occurred immediately following a change in prescription. Accordingly, the Court finds
that, in the alternative, the Nurse Defendants are entitled to qualified immunity as to Plaintiffs'
substantive due process claim.

7. Supervisory Defendants
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i. Substantive due process
As discussed in more detail above, the Supervisory Defendants tirelessly worked to ensure
that Michael received quality care. These efforts included a considerable amount of time trying to
appease Michael's parents. The undisputed facts establish that an objectively reasonable official
in the Supervisory Defendants' positions would not believe that his conduct violated Michael's
substantive due process rights.
Accordingly, the Court finds that, in the alternative, the Supervisory Defendants are
entitled to qualified immunity as to Plaintiffs' substantive due process claim.

ii. First Amendment retaliation
As discussed above, in response to the Surlocks' complaints, the Supervisory Defendants
directed staff to cease all alleged retaliatory conduct. Considering that the complaints failed to
specify the staff members who had actually engaged in the conduct, the Supervisory Defendants'
response was reasonable. Further, given the nature of the complaints, which generally consisted
of allegations that staff members were giving the Surlocks the silent treatment and that Michael's
sensory devices were being unplugged, no objectively reasonable official in the Supervisory
Defendants' position would believe that they were violating Plaintiffs' clearly established rights.
Based on the foregoing, the Court finds that, in the alternative, the Supervisory
Defendants are entitled to qualified immunity as to Plaintiffs' First Amendment retaliation claim.

K.

Defendants Finster and Spencer's motions to bifurcate

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In the event that their motions for summary judgment are denied, Defendants Finster and
Spencer ask the Court to sever the claims against them under Rule 21 of the Federal Rules of
Civil Procedure.25 See Dkt. No. 261 at 34. Alternatively, Defendant Spencer requests that the
Court order a bifurcated trial for the claims against her in accordance with Rule 42. See id. at 3435.
Rule 21 governs "misjoinder and nonjoinder of parties" and provides, in part, that "[a]ny
claim against a party may be severed and proceeded with separately." Fed. R. Civ. P. 21. Rule
42(b) states, in part, that "[t]he Court, in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy, may order a separate trial of
any claim." Severance under Rule 21 results in entirely independent actions being tried, and two
independent judgments. By contrast, separate trials under Rule 42 usually will result in one
judgment. See 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d
§ 2387.
The Court has broad discretion to sever claims under Rule 21 or to grant separate trials
under Rule 42, and the Court will consider the same factors under both Rules. See, e.g., Amato v.
City of Saratoga Springs, 170 F.3d 311, 316 (2d Cir. 1999); New York v. Hendrickson Bros., Inc.,
840 F.2d 1065 (2d Cir. 1988); Corporan v. City of Binghamton, No. 05-CV-1340, 2006 WL
2970495, *2 n.2 (N.D.N.Y. Oct. 16, 2006); Jeanty v. County of Orange, 379 F. Supp. 2d 533, 549
(S.D.N.Y. 2005). The factors for the Court to consider are (1) whether the claims arise out of the
same transaction or occurrence; (2) whether the claims present some common questions of law or
fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether

Since the Court has granted Defendant Finster's motion for summary judgment, her
request is denied as moot.
25

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prejudice would be avoided if severance were granted; and (5) whether different witnesses and
documentary proof are required for the separate claims. See Morris v. Northrop Grumman Corp.,
37 F. Supp. 2d 556, 580 (E.D.N.Y. 1999).
In the present matter, the Court finds that neither severance nor separate trials is
warranted. There is substantial overlap in the witnesses, parties and evidence relating to all of the
remaining claims. Further, the convenience of the witnesses and the parties argues strongly for a
single trial and against severance or separate trials.
Defendant Spencer's primary argument in favor of severance or separate trials is that
because of the number of named Defendants and because she was not personally involved in
much of the alleged misconduct, she will be prejudiced. See Dkt. No. 261 at 36. As a result of
Plaintiffs' voluntary withdrawal of several claims and because the Court has now dismissed a
majority of Plaintiffs' claims, any prejudice Defendant Spencer would have suffered is
significantly diminished. Further, the jury will be instructed regarding personal involvement,
which will further mitigate any such prejudice.
Based on the foregoing, the Court denies Defendant Spencer's motion for severance or
separate trials.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the following claims are dismissed pursuant to Plaintiffs' voluntary
withdrawal: (1) all claims against Defendant Jasiewicz; (2) the First Amendment claims against
Defendants Graham, Dickerson, Reynolds, Motyka, Maynes and Finster; (3) the intimate
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association claim against all Defendants; and (4) the procedural due process claim against
Defendants LeBoeuf, Reid, Perkins and Graham; and the Court further
ORDERS that Defendant Graham's motion for summary judgment (Dkt. No. 258) is
GRANTED in its entirety and she is dismissed from this action; and the Court further
ORDERS that Defendant Finster's motion for summary judgment (Dkt. No. 238) is
GRANTED in its entirety and she is dismissed from this action; and the Court further
ORDERS that Defendant Maynes' motion for summary judgment (Dkt. No. 242) is
GRANTED in part and DENIED in part; and the Court further
ORDERS that Defendant Maynes' motion for summary judgment is granted only as it
applies to the alleged medication errors, wrist splint application, and failure to report as discussed
above; and the Court further
ORDERS that Defendant Spencer's motion for summary judgment (Dkt. No. 251) is
GRANTED in part and DENIED in part; and the Court further
ORDERS that Defendant Spencer's motion for summary judgment is denied only as to the
substantive due process claim relating to the laundry basket incident and alleged abusive
language, and as to the motion for severance or to bifurcate; and the Court further
ORDERS that Defendants Elliott, Alexander, Reid, LeBoeuf, and Perkins' motion for
summary judgment (Dkt. No. 250) is GRANTED in its entirety and they are dismissed from this
action; and the Court further
ORDERS that Defendants Dickerson, Motyka, and Reynolds' motion for summary
judgment (Dkt. No. 253) is GRANTED in its entirety and they are dismissed from this action;
and the Court further

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ORDERS that Defendants Gleason, O'Brien and DiNuzzo's motion for summary
judgment (Dkt. No. 249) is GRANTED in its entirety and they are dismissed from this action;26
and the Court further
ORDERS that the following claims and Defendants remain in this action: (1) all claims
against Defendant Hillard; (2) the claim for prospective injunctive relief against Defendant
Delaney; (3) the substantive due process claim against Defendant Maynes as to the March 25,
2011 incident; and (4) the substantive due process claim against Defendant Spencer as to the
alleged abusive language and laundry basket incident; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 8, 2016
Albany, New York

As noted, the Administrative Defendants' motion for summary judgment did not address
Defendant Kerry Delaney and Plaintiffs indicate that they wish to "continue all of their Section
1983 claims for prospective injunctive relief against [her] in her official capacity as OPWDD
Commissioner[.]" Dkt. No. 371 at 3 n.5. It is unclear from the amended complaint what
injunctive relief Plaintiffs believe that they are entitled to, especially since Michael no longer
resides at Fravor Road. Without the benefit of the parties' guidance, however, Defendant Delaney
shall remain in this action in her official capacity.
26

128