Harvey v. Farber et al
Filing
80
DECISION AND ORDER: ORDERS that Magistrate Judge Lowe's September 29, 2011 Report-Recommendation and Order is ACCEPTED in part and REJECTED in part; ORDERS that the County Defendants' motion for summary judgment (Dkt. No. 57 ) is GRANTED i n part and DENIED in part as set forth in Magistrate Judge Lowe's September 29, 2011 Report-Recommendation and Order; ORDERS that Defendant Macri's motion for summary judgment (Dkt. No. 58 ) is GRANTED in its entirety for the reasons set f orth herein; ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules; and the Court further ORDERS that this matter is referred to Magistrate Judge Lowe for all further pretrial matters, including the appointment of trial counsel. Signed by U.S. District Judge Mae A. D'Agostino on 11/4/11. {order served via regular mail on all non-ecf parties}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
GREGORY HARVEY,
Plaintiff,
vs.
9:09-CV-152
(MAD/GHL)
CHRISTOPHER FARBER, C.O. DRAKE, C.O.
JEWEL, C.O. REESE, C.O. FAHEY, C.O.
NEWTON, C.O. PARISI, CHARLENE MACRI,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
GREGORY HARVEY
07-A-3479
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
Plaintiff pro se
MURPHY BURNS BARBER & MURPHY, LLP
226 Great Oaks Blvd.
Albany, New York 12203
Attorneys for Defendants Farber, Drake, Jewel,
Reese, Fahey, Newton, and Parisi
THOMAS K. MURPHY, ESQ.
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
677 Broadway - 9th Floor
Albany, New York 12207-2996
Attorneys for Defendant Macri
JOSEPH T. PERKINS, ESQ.
ELIZABETH J. GROGAN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
In this pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983,
Plaintiff alleges that Defendants violated his rights under the Eighth and Fourteenth Amendments
to the United States Constitution. Specifically, Plaintiff claims that, on March 16, 2006,
Defendant Farber ordered his employees to discriminate against Plaintiff by not transferring him
from the Herkimer County Jail ("HCJ") to another county jail that employed a medical doctor and
psychiatric staff. See Dkt. No. 33 at 5. Plaintiff claims that HCJ's medical staff – comprised only
of a consulting nurse practitioner and a part-time nurse – could not meet his serious medical and
psychiatric needs. See id. Plaintiff asserts that Defendant Farber's decision to keep him at HCJ
demonstrates Defendant Farber's deliberate indifference to his serious medical and psychiatric
needs. See id. at 6. Plaintiff further claims that this decision violated his Fourth Amendment
Equal Protection rights because other inmates "could volunteer" to be transferred to another
facility. See id.
Regarding Defendant Drake, Plaintiff claims that, on April 11, 2007 he suffered from high
blood pressure. Plaintiff alleges that, while suffering from this high blood pressure, Defendant
Drake stood by and "watched as Plaintiff lie on the floor in serious pain" for forty-five minutes as
other corrections officers yelled "Stroke! Stroke!" See id. at 7. Plaintiff was only taken to Little
Falls Hospital for treatment after Corrections Officer White called an off-duty sergeant for help.
See id. Plaintiff claims that these actions constitute deliberate indifference to his serious medical
needs. See id.
As to Defendant Macri, Plaintiff claims that she was deliberately indifferent to his serious
medical needs on several different occasions. See id. Plaintiff asserts that Defendant Macri knew
that he was receiving physical therapy three days a week for neck, back, and shoulder injuries
prior to his incarceration, but Defendant Macri failed to treat any of these injuries. See id.
Further, Plaintiff claims that Defendant Macri failed to treat his high blood pressure, tendinitis of
the right ankle, anemia, hemorrhoids, and failed to provide him with psychiatric treatment for his
bipolar disorder. See id.
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Finally, Plaintiff alleges HCJ officials failed to protect him. Specifically, Plaintiff claims
that a fight with another inmate occurred because he was not transferred to a county jail that had
psychiatric staff and housing that would have kept him isolated from the general population. See
id. at 8.
On February 4, 2011, Defendants Herkimer County, Farber, and Drake (the "County
Defendants") filed a motion for summary judgment. See Dkt. No. 57. On that same day,
Defendant Macri filed a separate motion for summary judgment. See Dkt. No. 58. In a
September 29, 2011 Report-Recommendation and Order, Magistrate Judge Lowe recommended
that the Court grant-in-part and deny-in-part the County Defendants' motion for summary
judgment and grant Defendant Macri's motion for summary judgment in its entirety. See Dkt. No.
79. Specifically, Magistrate Judge Lowe recommended that the Court grant the County
Defendants' motion for summary judgment as to Plaintiff's failure to protect claim, but deny the
motion in all other respects. See id. at 33. Neither party filed objections to Magistrate Judge
Lowe's September 29, 2011 Report-Recommendation and Order.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
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A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having reviewed Magistrate Judge Lowe's September 29, 2011 Report-Recommendation
and Order and the applicable law, the Court finds that Magistrate Judge Lowe correctly
recommended that the Court should grant the County Defendants' motion for summary judgment
as to Plaintiff's failure to protect claim and deny the motion in all other respects. Further,
Magistrate Judge Lowe correctly found that the Court should grant Defendant Macri's motion for
summary judgment as to the federal claims pending against her because "a review of the medical
record belies Plaintiff's claims that Defendant Macri provided inadequate medical care in violation
of Plaintiff's constitutional rights." See Dkt. No. 79 at 29. As discussed below, however, the
Court finds that Magistrate Judge Lowe erred in recommending that the Court should decline to
exercise supplemental jurisdiction over Plaintiff's state-law negligent and intentional infliction of
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emotional distress claims against Defendant Macri because all federal claims against her have
been dismissed. See Dkt. No. 79 at 30-31.
Section 1367 of title 28 of the United States Code governs the exercise of supplemental
jurisdiction and states that,
in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution.
Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.
28 U.S.C. § 1367(a). Pursuant to section 1367(c)(3), the Court may only exercise its discretion to
decline to exercise supplemental jurisdiction when all original jurisdiction claims are dismissed as
to all of the defendants. See id. § 1367(c)(3); see also 16 Moore's Federal Practice-Civil §
106.66(1) at n.6 (2010) (noting that "[s]ubsection (c)(3) requires that all claims over which it has
original jurisdiction must have been dismissed before a district court may rely on that provision as
a basis for dismissing the supplemental claims. This refers to all claims in the case, not just those
claims asserted against a particular defendant. If a defendant faces only state claims, the court
must exercise its supplemental jurisdiction over those claims as long as claims remain against
other defendants for which original jurisdiction is present" (citing Hansen v. Board of Trustees of
Hamilton, 551 F.3d 599, 608 (7th Cir. 2008); Prescott v. Independent Life & Accident Ins. Co.,
878 F. Supp. 1545, 1552-53 (N.D. Ala. 1995); Gudenkauf v. Stauffer Communications, Inc., 896
F. Supp. 1082, 1084 (D. Kan. 1995); Wiggins v. Phillip Morris, Inc., 853 F. Supp. 458, 469
(D.D.C. 1994)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002)
(vacating dismissal of state-law claims against a defendant where section 1983 claim remained
against other defendants) (citation omitted).
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In light of this authority, and because Plaintiff's state-law claim against Defendant Macri
shares a "common nucleus of operative fact" with the remaining federal claims, see Ciambriello,
292 F.3d at 325, the Court will address the merits of Plaintiff's state-law claims against Defendant
Macri.
In New York, a claim of intentional infliction of emotional distress has four elements: "(i)
extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of
causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and
(iv) severe emotional distress." Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). Under
the Prisoner Litigation Reform Act ("PLRA"), a confined prisoner claiming intentional infliction
of emotional distress must have suffered actual physical injury as a result of defendants' actions;
and, although the injury need not be significant, it must be more than de minimis. See 42 U.S.C. §
1997e(e); see also Wright v. Miller, 973 F. Supp. 390, 396 (S.D.N.Y. 1997) (quoting 42 U.S.C. §
1997e(e)). A plaintiff asserting a claim for intentional infliction of emotional distress faces a
heavy burden since "'"[l]iability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community."'" Howell, 81 N.Y.2d at
122 (quotations omitted); see also Murphy v. American Home Products Corp., 58 N.Y.2d 293,
303 (1983).
A claim of negligent infliction of emotional distress similarly relies upon allegations of
conduct "'so extreme in degree and outrageous in character as to go beyond all possible bounds of
decency, so as to be regarded as atrocious and utterly intolerable in a civilized community.'"
Wolkstein v. Morgenstern, 275 A.D.2d 635, 636-37 (1st Dep't 2000) (quotation and other citation
omitted).
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As Defendant Macri correctly points out, Plaintiff's allegations fall far short of establishing
sufficiently outrageous conduct to satisfy the first element of these claims. As Magistrate Judge
Lowe discussed in relation to Plaintiff's deliberate indifference claims against Defendant Macri,
Plaintiff acknowledges that Defendant Macri provided Plaintiff with some treatment for his
medical issues, but now takes issue with the treatment choices made. The undisputed facts make
clear that Defendant Macri's conduct was not outside "all possible bounds of decency[;]" and,
therefore, the Court grants Defendant Macri's motion for summary judgment as to Plaintiff's
intentional and negligent infliction of emotional distress claims.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Lowe's September 29, 2011 Report-Recommendation
and Order is ACCEPTED in part and REJECTED in part; and the Court further
ORDERS that the County Defendants' motion for summary judgment (Dkt. No. 57) is
GRANTED in part and DENIED in part as set forth in Magistrate Judge Lowe's September 29,
2011 Report-Recommendation and Order; and the Court further
ORDERS that Defendant Macri's motion for summary judgment (Dkt. No. 58) is
GRANTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules; and the Court further
ORDERS that this matter is referred to Magistrate Judge Lowe for all further pretrial
matters, including the appointment of trial counsel.
IT IS SO ORDERED.
Dated: November 4, 2011
Albany, New York
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