Cusamano v. Carlsen et al

Filing 61

ORDER: ORDERS that 55 Report and Recommendation is accepted in its entirety. ORDERS that 43 Motion for Summary Judgment is granted in part and denied in part. ORDERS that all of Plaintiff's claims are DISMISSED except his claim against Defendant Carlsen regarding the brown water at Ulster Correctional Facility. ORDERS that Plaintiff's request to amend is complaint is DENIED as futile. Signed by Senior Judge Frederick J. Scullin, Jr on 3/27/12.{order served via regular mail on all non-ecf parties} (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________
ANTHONY CUSAMANO, also known as
Michael Bonano,
Plaintiff,
v.

9:08-CV-755
(FJS/TWD)

SCOTT CARLSEN, Superintendent, Ulster
Correctional Facility; JANE DOE, Nurse, Ulster
Correctional Facility; MS. SARKOWSKI, Officer,
Ulster Correctional Facility; SCOTTY ROCK,
Officer, Ulster Correctional Facility; JOHN
DOE #1, Unit Officer, Ulster Correctional
Facility; JOHN DOE #2, Unit Officer, Ulster
Correctional Facility; JOHN DOE, Sergeant/
Supervisor, Ulster Correctional Facility;
JOHN DOE #1, Mess Hall Officer, Ulster
Correctional Facility; JOHN DOE #2, Mess
Hall Officer, Ulster Correctional Facility;
and JOHN DOE, Supervising Sergeant, Mess
Hall, Ulster Correctional Facility,
Defendants.
__________________________________________________
APPEARANCES

OF COUNSEL

ANTHONY CUSAMANO
11-R-1271
Gouverneur Correctional Facility
Scotch Settlement Road
P.O. Box 480
Gouverneur, New York 13642
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

WILLIAM J. MCCARTHY, JR., AAG

SCULLIN, Senior Judge
ORDER
Currently before the Court are Magistrate Judge Lowe's December 16, 2011 ReportRecommendation and Order, see Dkt. No. 55, and Plaintiff's and Defendants' objections thereto,
see Dkt. Nos. 58-59.
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 alleging various
constitutional violations against Defendants. The Court has issued previous orders in this action
disposing of several of Plaintiffs' claims. See Dkt. Nos. 20, 26. After those orders, the remaining
claims in this action are Plaintiff's first and sixth causes of action, which are essentially the same,
against Defendant Carlsen for "implementing or maintaining policies" that violate Plaintiff's right
to be free from cruel and unusual punishment; the second cause of action against Nurse Jane
Doe, subsequently identified as Donna Baker, for inadequate medical treatment; and the third and
fourth causes of action against "Scotty Rock," subsequently identified as Jess Scott, "Ms.
Sarkowski," subsequently identified as Jeanette Siatkowski, and "John Doe," subsequently
identified as David R. Galm, for the cold temperatures in the housing unit and mess hall at Ulster
Correctional Facility.
On April 18, 2011, Defendants filed a motion for summary judgment. See Dkt. No. 43.
In response to that motion, Plaintiff indicated that he had ascertained the identities of the
misidentified and unidentified Defendants and requested permission to amend his complaint to
include these Defendants. See Dkt. No. 50-2 at 13. Magistrate Judge Lowe ordered Plaintiff to
submit a proposed amended complaint containing the changes that he wanted to make. See Text
Order dated October 3, 2011. Plaintiff complied; and, after reviewing the proposed amended
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complaint, Magistrate Judge Lowe concluded that Plaintiff had only adjusted the names of the
Defendants and had not modified any of the causes of action. See Dkt. No. 55 at 3. Therefore,
Magistrate Judge Lowe decided that he would address the substance of all of the remaining
causes of action even though Defendants had filed their motion solely on behalf of Defendant
Carlsen. See id.
In a Report-Recommendation and Order dated December 16, 2011, Magistrate Judge
Lowe recommended that the Court grant Defendants' motion in part and deny that motion in part,
dismiss all of the claims except the claim against Defendant Carlsen regarding the brown water at
Ulster Correctional Facility, and deny Plaintiff's motion to amend his complaint. See id. at 25.
Plaintiff filed objections to Magistrate Judge Lowe's recommendations that the Court
dismiss his claims related to Defendants' failure to remedy the abnormally cold housing unit
temperatures, Defendants' failure to provide him with basic items, and Defendants' deliberate
indifference to his serious medical needs. See Dkt. No. 58 at 6-12. Plaintiff also objected to
Magistrate Judge Lowe's recommendation that the Court deny his request to file an amended
complaint. See id. at 13. Finally, Plaintiff objected to Magistrate Judge Lowe's failure to address
his motion to compel discovery. See id. at 14.
Defendants filed objections to Magistrate Judge Lowe's recommendation that the Court
deny their motion for summary judgment with regard to Plaintiff's claim against Defendant
Carlsen related to the brown water at Ulster Correctional Facility. See Dkt. No. 59.
In reviewing a magistrate judge's report and recommendation, the district court may
decide to accept, reject or modify the recommendations therein. See 28 U.S.C. § 636(b)(1). The
court conducts a de novo review of the magistrate judge's recommendations to which a party
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objects. See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). As part of its de novo
review, a court may consider further evidence. See 28 U.S.C. § 636(b)(1).
The Court conducted a de novo review of Magistrate Judge Lowe's ReportRecommendation and Order in light of Plaintiff's and Defendants' objections thereto. Having
concluded that review, the Court finds that Plaintiff's objections are without merit. First,
contrary to Plaintiff's contention, Magistrate Judge Lowe did not ignore or misconstrue any of the
facts that Plaintiff alleged with respect to any of his claims. Furthermore, although Plaintiff
disagrees with Magistrate Judge Lowe's reliance on certain cases, Magistrate Judge Lowe
properly relied on those cases, as well as others, in reaching his determinations with regard to
Plaintiff's claims.
In support of their objections, Defendants have submitted the Affidavit of Eric C. Greppo,
who states that he is an environmental engineer for facilities planning and development for the
New York State Department of Corrections and Community Supervision. See Dkt. No. 59-2,
Affidavit of Eric C. Greppo, sworn to January 10, 2012, at ¶ 1. Mr. Greppo further states that his
responsibilities include "the coordination of the Annual DEC State Facilities Environmental
Audit program for DOCCS facilities statewide"and in that capacity, he "receive[s], review[s] and
recommend[s] remedial actions for any and all violations of potential threats to the environment
related to DOCCS facility activities[, which] include[s] the operation and maintenance of facility
water and wastewater systems." See id. at ¶ 2. Attached to his Affidavit are reports from
Environmental Labworks, Inc., which purport to show the results of bacteriological examinations
of water collected from various parts of Ulster Correctional Facility from January 9, 2007,
through July 10, 2008. See id. at Exhibit attached thereto. Finally, Mr. Greppo states that these
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records are kept in the regular course of business and that they demonstrate that there were no
problems with the water at Ulster Correctional Facility in November and December 2007. See
id. at ¶¶4-5.
The Court finds that, even after considering this new evidence, it agrees with Magistrate
Judge Lowe's ultimate conclusion that "[t]here remain questions of fact about the seriousness of
the brown water at Ulster, and whether Defendant Carlsen had knowledge of, and disregarded, a
serious risk to inmate safety." See Dkt. No. 55 at 16; see also Bellezza v. Fischer, No. 05 CIV.
98, 2007 WL 2059824, *1 (S.D.N.Y. July 16, 2007) (finding that, although the defendants had
"offered evidence that the discolored water was actually safe to drink, the conflicting evidence
that inmates could not drink or bathe with it without suffering extreme discomfort continues to
create a genuine issue of material fact as to whether the inmates actually suffered a constitutional
deprivation" (citation omitted)).
Accordingly, for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Lowe's December 16, 2011 Report-Recommendation
and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for summary judgment is GRANTED in part and
DENIED in part; and the Court further
ORDERS that all of Plaintiff's claims are DISMISSED except his claim against
Defendant Carlsen regarding the brown water at Ulster Correctional Facility; and the Court
further
ORDERS that Plaintiff's request to amend is complaint is DENIED as futile; and the
Court further
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ORDERS that this matter is referred to Magistrate Judge Dancks for all further pretrial
matters; and the Court further
ORDERS that the Clerk of the Court shall provide Plaintiff with a copy of Bellezza v.
Fischer, No. 05 CIV. 98, 2007 WL 2059824 (S.D.N.Y. July 16, 2007); and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: March 27, 2012
Syracuse, New York

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