Colon v. Porliar et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 37 Motion for Summary Judgment; granting 41 Motion for Summary Judgment: ORDERED that the motion by defendants Porliar, Colvin, Warner, Deluke, Baxter, Copeland, Kitchner, Nasmi th and Thompson (Dkt. No. 37) for summary judgment and dismissalof plaintiffs complaint in its entirety is DENIED IN PART AND GRANTED IN PART as follows:(1) Defendants motion for summary judgment and dismissal of plaintiffs claims based upon plaintif fs failure to exhaust administrative remedies is DENIED; (2) Defendants motion for summary judgment and dismissal of plaintiffs excessive force claims relating to the March 7, 2007 incident, for failure to state a cause of action is DENIED;(3) Defend ants motion for summary judgment and dismissal of plaintiffs excessive force claims relating to the March 14, 2007 incident, for failure to state a cause of action is GRANTED;(4) Defendants motion for summary judgment and dismissal of plaintiffs Eigh th Amendment claims of medical deliberate indifference is GRANTED, it is further ORDERED that defendant Burdas motion (Dkt. No. 41) for summary judgment and dismissal of plaintiffs Eighth Amendment claims of medical deliberate indifference is GRANTED in its entirety, it is further ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order upon the parties by regular or electronic mail, and it is further;ORDERED that pursuant to Local Rule 72.3, the parties are advised that the referral of this matter to the Magistrate Judge was RESCINDED, as such, any appeal taken from this Order will be to the Court of Appeals for the Second Circuit. Signed by U.S. District Judge Mae A. D'Agostino on 1/10/12. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
D. PORLIAR; A. COLVIN; G. WARNER;
F. DELUKE; S. BAXTER; K. COPELAND;
J. KITCHNER; C. BURDEN; N.P.T NASMITH;
DR. THOMPSON; MICHAEL MCCARTIN.
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
Plaintiff Pro Se
ERIC T. SCHNEIDERMAN
Christopher W. Hall, Esq.
Attorney General for the State of New York
Albany, New York 12224
Attorney for Defendants
D. Porliar, A. Colvin, G.. Warner, F. Deluke, S. Baxter,
K. Copeland, J. Kitchner, N.P.T. Nasmith
and Dr. Thompson
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
Albany, New York 12207
Attorneys for Defendant
F. Douglas Novotny, Esq.
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
In this pro se civil rights action under 42 U.S.C. § 1983, plaintiff claims that defendants
violated his Eighth Amendment rights when they subjected him to excessive force on three
occasions (March 7, 2007, March 14, 2007 and April 26, 2007) and denied him adequate medical
care. Defendants move for summary judgment and dismissal of plaintiff’s complaint pursuant to
Fed. R. Civ. P. 56. (Dkt. No. 37, 41). Plaintiff has opposed the motions. (Dkt. No. 43).
The facts in this case, unless otherwise noted, are undisputed.1 At the time of the alleged
events, plaintiff was in the custody of the New York State Department of Correctional Services
(“DOCS”). Plaintiff resided at Great Meadow Correctional Facility (“Great Meadow”) from
March 2007 until June 2007. Defendant Christa Burda2 (“Burda”) is a Registered Nurse
employed by Nursefinders, Inc. and assigned to Great Meadow. Defendant Ted Nesmith3
The facts set forth in this section are taken from: (1) the Complaint; (2) the Answer; (3) Defendants’
Statements of Material Facts; (4) Plaintiff’s response to Defendants’ Statements of Material Facts; (5) the exhibits and
evidence submitted by Defendants in support of their Motion for Summary Judgment; (6) plaintiff’s deposition
transcript; and (7) the exhibits and evidence submitted by Plaintiff in Opposition to Defendants’ Motion for Summary
In support of the motion, defendants properly filed a Statement of Material Facts pursuant to Local Rule 7.1.
Local Rule 7.1(a)(3) requires that the nonmoving party file a response to the moving party's Statement of Material
Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and
supports any denials with a specific citation to the record where the factual issue arises. Jamison v. Metz, 2011 WL
4345297, at *13 , n.6 (N.D.N.Y. 2011) (citing N.D.N.Y. L.R. 7.1(a)(3)). Here, plaintiff responded to defendants’
statements with both admissions and denials. However, where an issue was contested, plaintiff failed to provide
specific citations to the record. Therefore, to the extent that defendants’ statements are supported by the record, the
Court will deem defendants’ facts admitted by plaintiff. See Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009). The
facts, as discussed herein, are for the relevant time period as referenced in the complaint.
Defendant’s name is misspelled in the caption.
Defendant’s name is misspelled in the caption.
(“Nesmith”) is a Physicians’ Assistant employed by DOCS at Great Meadow. Defendants
Porliar, Colvin, Warner, Deluke, Baxter and Kitchner are correctional officers employed at by
DOCS at Great Meadow.4
On March 5, 2007, plaintiff was seen for the first time by Great Meadow medical staff.5
The Ambulatory Health Record indicates that plaintiff had a history of low back pain for which
he was prescribed Flexeril but no acute medical problems.6 There is no entry in plaintiff’s
Ambulatory Health records for March 7, 2007. On March 11, 2007, plaintiff was seen again by
the medical staff at Great Meadow. The entry indicates “36 y/o new @ GMCF” and notes that he
had a bullet in his right leg, “B/P occ elevated” and “s/p backache - Flexeril - scoliosis”.
On April 26, 2007, plaintiff was the subject of a use of force incident at Great Meadow.7
On April 26, 2007 at approximately 5:15 p.m., Nurse Burda examined plaintiff. Plaintiff
complained of pain in his right ankle and difficulty walking. Nurse Burda found that plaintiff had
redness on his right shoulder blade, a four inch laceration on his right bicep, a laceration on the
All claims against defendant Michael McCartin were dismissed by Order of this Court on September 29,
2011. (Dkt. No. 4). There is no information in the record regarding Dr. Thompson’s position or job duties.
In support of the motion, defendants provide an affidavit from Nesmith with plaintiff’s Ambulatory Health
Records attached. Nesmith avers that the records were kept in the ordinary course of business by DOCS employees
and that he has reviewed the records which he attests are true and accurate copies. Nesmith did not prepare all of the
medical records contained therein. However, plaintiff does not object to the admissibility of the Ambulatory Health
Flexeril is a skeletal muscle relaxant for relief of muscle spasms. Dorland's Illustrated Medical Dictionary,
465, 725 (31st ed. 2007).
The Use of Force Report for April 26, 2007 is annexed to defendants’ motion papers. Part B of the report
is entitled “Physical Examination/Treatment Report”. That portion was prepared by C. Burda and has been properly
authenticated through an affidavit. The remaining portion of the report is not in admissible form.
left side of the upper lip with edema, edema in the left eye which was half open, and sclera in the
left eye being red.8
Nurse Burda consulted with P.A. Nesmith who ordered plaintiff admitted to the infirmary.
On April 26, 2007, plaintiff was admitted to the Great Meadow infirmary and treated with
Tylenol. On April 27, 2007, a number of x-rays were taken of plaintiff’s body: the left ribs, left
shoulder, eye sockets, right hand and right ankle. The x-ray report revealed a negative finding,
meaning no fractures, dislocations, or subluxations were present. The x-rays also revealed that
plaintiff’s lungs and paranasal sinuses were clear. “Metallic fragments” were also found in the
soft tissue around the distal tibia in the right ankle. Otherwise, the surrounding soft tissue was
found “unremarkable”. While in the infirmary, plaintiff complained of rib pain. Plaintiff was
given Tylenol and an abdominal binder to help decrease the pain. On April 30, 2007, plaintiff
had “no c/o”.
On May 1, 2007, plaintiff was discharged from the infirmary with a note in his records
that he was to see Dr. Thompson in one week. Following his discharge on May 1, 2007 until June
7, 2007, plaintiff was treated nine times by prison medical staff at Great Meadow. On May 2,
2007, plaintiff complained of eye and back pain and was given Ibuprofen. On May 4, 2007,
plaintiff requested medication for pain in his right arm and was given antibiotic ointment. On
May 7, 2007, plaintiff complained of tender left ribs and right hand pain and was prescribed
Percocet.9 On May 8, 2007, plaintiff complained of “needing a sick call”. P.A. Nesmith saw
plaintiff during the morning sick call rounds and found plaintiff in no acute distress.
Sclera is the tough white outer coat of the eyeball, covering approximately the posterior five-sixths of its
surface, and continuous anteriorly with the cornea and posteriorly with the external sheath of the optic nerve. Id. at
Percocet is an opiod. Dorland’s at 1429.
On May 14, 2007, plaintiff complained of throwing up blood. The officers did not
observe plaintiff vomit blood but the PA indicated he would see plaintiff the next day and F
Block officers were advised to call if there was any change in plaintiff’s status. The next day,
plaintiff was given a prescription for eye drops and the notations indicate that his Percocet was
On June 6, 2007, plaintiff complained of “crucial pain” in his ribs, breathing problems and
stated, “he is now blind in his left eye”. Defendants claim that plaintiff refused an eye evaluation
because he wanted to be transferred. On June 6, 2007, plaintiff signed a Refusal of Medical
Examination and/or Treatment refusing treatment for his left eye. Plaintiff claims that he was
forced to sign the document in order to be transferred out of Great Meadow.10
On or about June 7, 2007, plaintiff was transferred to Upstate Correctional Facility.
On April 4, 2009, plaintiff commenced the within action. On April 5, 2011, defendants
Porliar, Colvin, Warner, Deluke, Baxter, Copeland, Kitchner, Nasmith and Thompson moved for
summary judgment and dismissal of plaintiff’s complaint arguing: (1) plaintiff failed to exhaust
his administrative remedies; (2) plaintiff failed to state a claim for excessive force relating to the
March 7 and March 14 incidents; and (3) plaintiff failed to state a claim for medical deliberate
indifference. (Dkt. No. 37). On April 8, 2011, defendant Burda moved for summary judgment
arguing that plaintiff failed to state a claim for medical indifference. (Dkt. No. 41). Plaintiff has
opposed the motions.
Defendants claim that Dr. Whalen witnessed plaintiff execute the document. While the document contains
Dr. Whalen’s signature, it has not been properly authenticated.
Summary Judgment Standard
Summary judgment is appropriate where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ( c ). Substantive
law determines which facts are material; that is, which facts might affect the outcome of the suit
under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986).
Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in
dispute. See id. The moving party bears the initial burden of establishing that there is no genuine
issue of material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
With respect to any issue on which the moving party does not bear the burden of proof, it may
meet its burden on summary judgment by showing that there is an absence of evidence to support
the nonmoving party’s case. See id. at 325. Once the movant meets this initial burden, the
nonmoving party must demonstrate that there is a genuine unresolved issue for trial. See Fed. R.
Civ. P. 56(e). It is well-settled that a party opposing a motion for summary judgment may not
simply rely on the assertions in its pleadings. See Celotex, 477 U.S. at 324 (quoting Fed. R. Civ.
P. 56( c )(e)).
“Defendants can meet their burden of establishing their entitlement to summary judgment
by relying on plaintiff's medical records to establish the absence of any evidence supporting
deliberate indifference to his mental health needs.” Guarneri v. Hazzard, 2010 WL 1064330, at
*8 (N.D.N.Y. 2010) (citing Mills v. Luplow, 2009 WL 2579195, at *8 (W.D.N.Y. 2009)).
“Though conventional wisdom might dictate the submission of affidavits from the primary actors
... [the] defendants' decision to rely instead upon the lack of evidentiary support for plaintiff's
claims, is sufficient to cast the burden upon the plaintiff to come forward with evidence
demonstrating the existence of genuinely disputed material issues of fact for trial with regard to
those claims.” Id.
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 v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations omitted). Where a
plaintiff has failed to properly respond to a defendant's Statement of Material Facts (“Rule 7.1
Statement”), the facts as set forth in that Rule 7.1 Statement will be accepted as true to the extent
that those facts are supported by the evidence in the record. See Vermont Teddy Bear Co., Inc. v.
1-800 Beargram Co., 373 F.3d 241, 243 (2d Cir. 2004) (holding that the court may not rely solely
on the movant's statement of undisputed facts contained in its Rule 56.1 statement and must be
satisfied that the movant's assertions are supported by the evidence in the record).
In reviewing a pro se case, the court “must view the submissions by a more lenient
standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289
F. Supp.2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (other
citations omitted)). The Second Circuit has opined that the court is obligated to “make reasonable
allowances to protect pro se litigants” from inadvertently forfeiting legal rights merely because
they lack a legal education. Govan, 289 F.Supp.2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)). However, this does not mean that a pro se litigant is excused from following
the procedural requirements of summary judgment. Id. at 295 (citing Showers v. Eastmond, 2001
WL 527484, at *2 (S.D.N.Y. 2001)). Specifically, “a pro se party’s ‘bald assertion,’ completely
unsupported by evidence” is not sufficient to overcome a motion for summary judgment. Lee v.
Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d
The PLRA, 42 U.S.C. § 1997e(a), provides that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004). This “requirement
‘applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes,’” and regardless of the subject matter of the claim. See id. (citation omitted).
Inmates must exhaust their administrative remedies even if they are seeking only money damages
that are not available in prison administrative proceedings. See id. The failure to exhaust is an
affirmative defense that defendants must raise and thus, it the defendants' burden to establish that
the plaintiff failed to meet the exhaustion requirements. See Giano, 380 F.3d at 675 (citation
omitted); see also Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.2004) (citation omitted).
“The IGP [Inmate Grievance Program] is a three-step process that requires an inmate to:
(1) file a grievance with the IGRC [Inmate Grievance Review Committee]; (2) appeal to the
superintendent within four working days of receiving the IGRC's written response, and (3) appeal
to the CORC [Central Office Review Committee] . . . within four working days of receipt of the
superintendent's written response.” Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004) (internal
The Second Circuit has, “fashioned a three-part inquiry appropriate in cases where a
prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to
exhaust available administrative remedies as required by the PLRA”. Brownell v. Krom, 446 F.3d
305, 311–12 (2d Cir. 2006) (citation omitted). The Court must ask whether: (1) administrative
remedies were not in fact available; (2) prison officials have forfeited, or are estopped from
raising, the affirmative defense of non-exhaustion; or (3) special circumstances justify the
prisoner's failure to comply with administrative procedural requirements. See Hemphill v. New
York, 380 F.3d 680, 686 (2d Cir.2004).
The IGP also has an “expedited” process for harassment grievances which pertains to
“[e]mployee conduct meant to annoy, intimidate, or harm an inmate.11 Espinal v. Goord, 558
N.Y. Comp. Codes R. & Regs., Title 7, § 701.8 (2008) provides:
Allegations of employee harassment are of particular concern to the administrators of department facilities.
Therefore, the following expedited procedure for the review of grievances alleging harassment shall be
(a) An inmate who wishes to file a grievance complaint that alleges employee harassment shall follow the
procedures set forth in section 701.5(a) of this Part.
Note: An inmate who feels that he/she has been the victim of harassment should report such occurrences to
the immediate supervisor of that employee. However, this is not a prerequisite for filing a grievance with the
(b) A grievance alleging harassment shall be given a grievance calendar number and recorded in sequence
with all other grievances on the grievance clerk's log (form #2136). All documents submitted with the
allegation must be forwarded to the superintendent by close of business that day.
(c) The superintendent or his/her designee shall promptly determine whether the grievance, if true, would
represent a bona fide case of harassment as defined in section 701.2 of this Part. If not, then it shall be
returned to the IGRC for normal processing.
(d) If it is determined that the grievance is a bona fide harassment issue, the superintendent shall:
(1) initiate an in-house investigation by higher ranking supervisory personnel into the allegations contained
in the grievance;
(2) request an investigation by the inspector general's office; or
(3) if the superintendent determines that criminal activity may be involved, request an investigation by the
New York State Police, Bureau of Criminal Investigation.
(e) Once a grievance has been referred to the superintendent and determined to be an allegation of
harassment, that grievance cannot be withdrawn. The superintendent must address the grievant's allegations.
(f) Within 25 calendar days of receipt of the grievance, the superintendent will render a decision on the
grievance and transmit said decision, with reasons stated to the grievant, the grievance clerk, and any direct
party of interest. Time limit extensions may be requested, but such extensions may be granted only with the
consent of the grievant.
(g) If the superintendent fails to respond within the required 25 calendar day time limit the grievant may
appeal his/her grievance to CORC. This is done by filing a notice of decision to appeal (form #2133) with
the inmate grievance clerk.
F.3d 119, 125 (2d Cir. 2009) (internal citations and citation omitted). A harassment grievance is
sent directly to the superintendent. Id. If the grievance is a bona fide harassment issue, the
superintendent must initiate or request an investigation and render a decision, after which the
prisoner could then appeal to the CORC. Id.
Here, defendants claim that plaintiff failed to exhaust his remedies because no grievances
were filed in relation to the allegations in his complaint. In support, defendants provide affidavits
from the Great Meadow Inmate Grievance Supervisor, Scott Woodard, the Upstate Correctional
Facility Inmate Grievance Supervisor, Brandi White and Karen R. Bellamy, the Director of the
DOCS Inmate Grievance Program. Woodard and White aver that they searched the grievance
records maintained in their offices and found that plaintiff never submitted any grievances at
Great Meadow or at Upstate in 2007. Bellamy searched the records maintained in the CORC
database and found no record of any appeals to CORC of grievances filed by plaintiff in 2007.
In opposition, plaintiff claims that he attempted to file “numerous” grievances but that the
“corrupt staff” “refused” to accept or file his grievances. Plaintiff argues that defendants acted in
retaliation for plaintiff filing a lawsuit in 2003 against another corrections officer.12 Plaintiff
claims that Bizao and others continually “pointed him out” to other officers. As a result, plaintiff
claims he filed Code 49 complaints with Commissioner Brian Fischer which were investigated by
the Commissioner and the Inspector General’s Office. Construing plaintiff’s pro se complaint
liberally, plaintiff alleges that the first Hemphill exception applies. To wit, administrative
(h) If the grievant wishes to appeal the superintendent's response to CORC, he/she must file a notice of
decision to appeal (form #2133) with the inmate grievance clerk within seven calendar days of receipt of that
(i) Unless otherwise stipulated in this section, all procedures, rights, and duties pertaining to the processing
of any other grievance as set forth in section 701.5 of this Part shall be followed.
A copy of plaintiff’s complaint in the matter of Colon v. Bizao, et. al. (03-CV-1535) is annexed to
defendant Burda’s motion papers.
remedies were not available to him due to his fear of retaliation. See Mateo v. Corbine, 2010
WL3629515 at *4-5 (S.D.N.Y. 2010).
At plaintiff’s deposition, defense counsel thoroughly questioned plaintiff regarding his
grievances and Code 49 complaints. Plaintiff testified that he “submitted a complaint to the
superintendent” but that he does not have a copy of the complaint, which he refers to as a “Code
49" complaint. Plaintiff also claims that, on March 8, 2007, he filed a grievance with the IGRC
regarding the March 7, 2007. According to plaintiff, a few days later, a sergeant came to
interview him in response to both the grievance and the complaint. Plaintiff could not identify the
sergeant by name. Plaintiff testified that he received a response from the grievance committee
and a decision from CORC denying his grievance. Plaintiff claims that he lost copies of all
documentation when his property was taken from him after he was transferred to the Great
Meadow SHU in late April 2007.
As to the April 2007 incident, plaintiff testified that he filed a Code 49 complaint directly
to the superintendent. Plaintiff claimed that the incident was investigated and that written
decisions were issued. Plaintiff admitted that he did not appeal his complaint to CORC but
explained that he was not required to file such an appeal because a Code 49 complaint is filed
directly with the superintendent.
During the deposition, plaintiff produced a handwritten Code 49 complaint. The
document was marked as Defendants’ Exhibit “L” for identification and contains a stamp in the
right-hand corner that reads, “Department of Correctional Services received Inspector General
June 25, 2007, Resubmitted”. Plaintiff testified that the complaint was initially submitted on
April 26, 2007 and resubmitted when he failed to receive a response. The plaintiff was asked the
following questions and provided the following responses:
So we’ve had marked for identification as Defendants’ Exhibit
L your resubmitted complaint to Commissioner Fisher, which
also went to the Inspector General’s Office; correct?
Now, in this complaint you said that the Great Meadow and
Upstate Correctional Facilities refused to respond to your
complaint under IGRC standards to appeal issues to CORC; is
What did you mean by that?
Meaning, when I sent a copy of this complaint to IGRC, being
that they refused to respond, it was submitted to
superintendent, it was submitted to Mr. Brian Fisher to do a
Being that IGRC didn’t want to respond and I tried to go
through the remedies of the IGRC submitting a complaint,
when I know for a fact Code 49 complaint [sic], they’re not
going to respond to that. What they’ll do, when an inmate
submit [sic] harassment, assault, they disregard it and throw it
Plaintiff testified that the superintendent issued a decision regarding his Code 49
complaint but that he did not receive the decision because he was transferred to Upstate.
Exhibit “L” to plaintiff’s deposition testimony is not part of the record herein as neither
plaintiff nor defendants have supplied the Court with the exhibit. In defendants’ initial motion
submission, defendants did not reference, address or annex copies of plaintiff’s Code 49
complaints. Rather, defendants based their arguments solely upon plaintiff’s failure to file
grievances at Great Meadow and Upstate. Only after plaintiff opposed the motion did defendants
address the Code 49 complaints. Defendants offer the conclusory assertion, “there is no record of
a Code 49 complaint at either prison since it would have shown up as a grievance and appeal to
CORC”. In support of that statement, defendants cite to the affidavits from Bellamy, Woodward
and White. However, the Court has thoroughly reviewed all three declarations and finds no such
statements by any of the affiants. The record is devoid of any affidavit or evidence addressing
plaintiff’s Code 49 complaints, which, based upon the deposition transcript, clearly exist.
Considering the record, as it presently exists, defendants have failed to submit sufficient
evidence to persuade this Court to award summary judgment on procedural grounds. Viewing the
evidence in a light most favorable to the pro se plaintiff, the Court finds that triable issues of fact
exist with respect to whether plaintiff exhausted his remedies. At trial, a jury could reasonably
find that plaintiff exhausted his remedies with the Code 49 complaints and further, a jury could
conclude that, “the filing of a grievance would have been redundant, and likely would ultimately
have led to the same result, with deference undoubtedly being given to the investigation
previously conducted”. See Franklin v. Oneida Corr. Facility, 2008 WL 2690243, at *7
(N.D.N.Y. 2008). If plaintiff’s Code 49 complaint prompted an investigation of the alleged
incidents, then a question of fact may exist regarding plaintiff's claim that he had been threatened
by defendants. See Jacoby v. Phelix, 2010 WL 1839299, at *8-9 (N.D.N.Y. 2010).
Accordingly, defendants’ motion for summary judgment and dismissal of plaintiff’s
complaint based upon plaintiff’s failure to exhaust his administrative remedies is DENIED.
Defendants argue that there is no record that plaintiff was injured on March 7, 2007 or
March 14, 2007, thus, the only conclusion to be drawn from the absence of evidence is that
plaintiff was not subjected to excessive force on these dates.13
“In the context of a claim by a prisoner that he was subjected to excessive force by prison
employees, the source of the ban against such force is the Eighth Amendment's ban on cruel and
Defendants do not argue that plaintiff failed to state a claim for excessive force as to the incident on April
unusual punishments.” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). “A claim of cruel and
unusual punishment in violation of the Eighth Amendment has two components-one subjective,
focusing on the defendant's motive for his conduct, and the other objective, focusing on the
conduct's effect.” Id. The subjective inquiry looks to whether the defendant prison official acted
wantonly, which “turns on whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm”. Abreu v. Nicholls, 368 F. App’x 191,
193 (2d Cir. 2010) (citation omitted). The objective inquiry is “contextual and responsive to
‘contemporary standards of decency.’” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992));
see also Geyer v. Choinski, 262 F. App’x 318, 319 (2d Cir. 2008) (“To satisfy the objective
requirement, the prisoner must demonstrate that ‘the alleged violation [was] sufficiently serious
by objective standards’”). The court must assess such factors as “the need for the application of
force, the relationship between the need and the amount of force that was used, the extent of
injury inflicted, and whether the force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of causing harm.” Corselli v.
Coughlin, 842 F.2d 23, 26 (2d Cir. 1988). The Second Circuit has consistently held that the
extent of the injury is a relevant, but not a determining factor in an excessive force claim.
Abreau, 368 F. App’x at 193; Sims v. Artuz, 103 F. App’x 434, 437 (2d Cir. 2004). “Even if the
injuries suffered ‘were not permanent or severe,’ a plaintiff may still recover if ‘the force used
was unreasonable and excessive’”. Corselli, 842 F.2d at 26 (citation omitted).
Defendants have not provided any affidavits from any of the individuals allegedly
involved in the excessive force incidents. Conversely, plaintiff was deposed and provided details
regarding the alleged March 7, 2007 incident and explains that the lack of documentation was due
to the fact that he was denied medical treatment after the March 7th incident. According to
plaintiff, on March 7, 2007, Porliar took him out of the line near the rotunda and threw plaintiff
against the wall. Plaintiff claims that Porliar told him that, “he’d better dismiss my pending
lawsuit” against another officer. Plaintiff claims that Porliar grabbed him around the neck while
three or four other officers, “punched and kicked” him. Plaintiff claims he asked for medical
treatment after the incident but that his requests were continually denied. Plaintiff also asserts
that Porliar told him to be quiet and to never speak of the incident.
Without any affidavits from the officers allegedly involved, defendants have failed to
produce any competent, admissible evidence establishing that no force or de minimis force was
used on March 7, 2007. Defendants motion is erroneously based solely upon plaintiff’s lack of
medical treatment on March 7th and March 14th. Defendants argue that the Court should infer,
from the lack of medical documentation, that plaintiff’s injury was not serious and thus, no
excessive force was used. This Court, consistent with Second Circuit holdings, rejects
defendants’ arguments. See Pierre–Antoine v. City of N.Y., 2006 WL 1292076 at *3 (S.D.N.Y.
2006) (declining to dismiss excessive force claim although "the medical evidence [made] it less
likely that [plaintiff] can prevail at trial, particularly because it does not reveal any severe
injury"); see also Griffin v. Crippen, 193 F.3d 91, 92 (2d Cir. 1999) (the seriousness of the
plaintiff’s injury is not the determinating factor). While plaintiff's evidence in support of the
March 7th incident is minimal and lacks independent corroboration, at this juncture, his
deposition testimony is uncontroverted and is sufficient to establish an issue of material fact and
defeat summary judgment. See Butler v. Gonzalez, 2010 WL 3398156, at *8 (S.D.N.Y. 2010)
(the Court places little probative value on the absence of a “use of force” incident report); see also
Scott v. Coughlin, 344 F.3d 282, 289 (2d Cir. 2003) (the plaintiff’s affidavit describing his
injuries is a sworn statement and more than mere conclusory allegations and should be treated as
evidence in deciding a motion for summary judgment). A jury may reject plaintiff’s excessive
force claims based upon the absence of medical documentation on the date of the alleged incident
and no mention of the incident anywhere in subsequent records. However, that determination
involves a credibility analysis that the Court may not carry out on a motion for summary
judgment. “The credibility of [the plaintiff’s] statements and the weight of contradictory
evidence may only be evaluated by a finder of fact.” Scott, 344 F.3d 282 at 290.
As to the alleged March 14, 2007 incident, during his deposition, plaintiff testified, several
times, that his complaint involves two incidents; one on March 7, 2007 and the other on April 26,
2007. Accordingly, as plaintiff has failed to respond to defendants’ arguments regarding the use
of force on March 14, 2007 and as the deposition testimony is devoid of any reference of any
incident, the Court deems that claim abandoned by plaintiff and dismisses plaintiff’s claims of
excessive force on March 14, 2007.
The record before this Court contains genuine, triable issues of fact regarding the use of
excessive force on March 7, 2007 that must be resolved by a jury. Thus, defendants’ motion for
summary judgment and dismissal of plaintiff’s excessive force claim relating to the March 7,
2007 incident is denied. Moreover, as defendants present no argument with respect to plaintiff’s
claim of excessive force on April 26, 2007, that claim must also be resolved by a jury.
Deliberate Indifference to Medical Needs
Defendants argue that plaintiff was not denied medical care following the April 26, 2007
use of force incident. Moreover, there is nothing to suggest that defendants knew of and
disregarded an excessive risk to plaintiff’s health. Plaintiff claims that there is a general dispute
with respect to whether plaintiff suffered from serious injuries. Plaintiff contends that Nurse
Burda never examined plaintiff’s left ribs during the April 26, 2007 examination. Plaintiff further
alleges that subsequent scans and films taken at Alice Hyde Medical Center were positive for a
fracture and dislocation of plaintiff’s left ribs.
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual
punishment." U.S. Const. amend. VIII. This prohibition includes any "unnecessary and wanton
infliction of pain" on those who have been convicted of crimes. Hathaway v. Coughlin, 37 F.3d
63, 66 (2d Cir.1994) (citations omitted). Nevertheless, the United States Supreme Court has
recognized that not "every injury" a prisoner suffers "translates into constitutional liability for
prison officials." Farmer v. Brennan, 511 U.S. 825, 834 (1994). In order to establish a claim for
unconstitutional denial of medical care, "a prisoner must prove ‘deliberate indifference to [his]
serious medical needs.' " Hathaway, 37 F.3d at 66 (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)). This standard requires proof of both an objective and subjective element.
First, the prisoner must demonstrate that his alleged deprivation was of a "sufficiently
serious" nature. Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). This can be shown by
proving "a condition of urgency, one that may produce death, degeneration, or extreme pain."
Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990). Courts have also considered factors such as "(1)
whether a reasonable doctor or patient would perceive the medical need in question as ‘important
and worthy of comment or treatment,' (2) whether the medical condition significantly affects daily
activities, and (3) ‘the existence of chronic and substantial pain.' " Brock v. Wright, 315 F.3d 158,
162 (2d Cir. 2003) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)).
Second, a prisoner must show that "the prison official knew of and disregarded his serious
medical needs." Chance, 143 F.3d at 702 (2d Cir.1998) (citing Farmer, 511 U.S. at 837). It is not
enough to merely disagree over the proper course of treatment. See id. at 703. Rather, a prisoner
must demonstrate that the prison official acted intentionally, for example, by "intentionally
denying or delaying access to medical care or intentionally interfering with ... treatment." Estelle,
429 U.S. at 97. “[A] complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under the Eighth
Amendment.” Id. at 106; see also Palacio v. Ocasio, 2006 WL 2372250, at *11 (S.D.N.Y. 2006)
(the failure to diagnose a jaw fracture did not support a claim under 42 U.S.C. § 1983).
Plaintiff alleges that his left ribs were broken in the April 26, 2007 incident. A broken rib
“could present a serious medical need” if treatment was not properly administered. Torres v. New
York City Dep't of Corrs., 1995 WL 63159, at *1 (S.D.N.Y. 1995). Plaintiff claims that the
medical records from Alice Hyde Medical Center support his assertion. During the deposition,
plaintiff produced two documents from Alice Hyde Medical Center. Plaintiff testified that the
documents (x-rays, bone scans and CAT scans) revealed a broken left rib. The documents
allegedly are dated October 29, 2007 and November 21, 2007 - six to seven months after the
alleged excessive force incident(s). These documents are not part of the record herein and
plaintiff has not provided any evidence or affidavit to support his assertion. Conversely,
defendants provided evidence establishing that x-rays of plaintiff’s left ribs taken on April 27,
2007 were negative for fractures. While plaintiff contests the veracity of these reports, he has not
come forth with any competent, admissible evidence to support his assertions. Plaintiff offers no
evidence, other than his own statement, that his left ribs were broken.14 Moreover, even assuming
plaintiff could establish that he suffered from broken ribs, there is no evidence establishing that
While the parties failed to provide the Court with medical records from Alice Hyde Medical Center, the
record indicates that such records exist. Plaintiff produced the x-ray reports from Alice Hyde Medical Center during
his deposition. The records were marked as exhibits during the deposition and plaintiff testified about the documents.
his injury was serious. Thus, the Court finds that plaintiff cannot establish the objective element
of his Eighth Amendment claim.
Even assuming plaintiff established that he suffered from broken ribs and that such an
injury was sufficiently “serious”, plaintiff has not provided sufficient evidence to raise a genuine
issue of material fact regarding whether defendants were deliberately indifferent to plaintiff's
serious medical need. Here, the parties do not dispute that plaintiff requested and received
medical treatment on the day of the excessive force incident. Therefore, the dispute involves the
adequacy of said treatment.
Plaintiff was examined on the day of the use of force incident. Nurse Burda documented
plaintiff’s complaints and her findings in both the Ambulatory Health Records and in the Use of
Force report. On the same day, plaintiff was admitted to the infirmary. Therefore, plaintiff cannot
establish that defendants delayed or denied medical treatment after the alleged incident. Plaintiff
remained in the infirmary for almost a week and during that time, x-rays were taken of plaintiff’s
ribs, shoulder, orbits, right hand and right ankle. Plaintiff was also treated with Tylenol for his rib
pain, a left eye pad and an abdominal binder. After his release from the infirmary, plaintiff
received additional medical treatment for his rib pain and other various complaints. The record
establishes that from the time he was released from the infirmary on May 1, 2007 until the time he
was transferred to Upstate one month later, plaintiff had approximately nine sick call visits for rib
pain and other various complaints of pain. In response, plaintiff was treated with Ibuprofen,
antibiotic ointment and Percocet.
Plaintiff asserts, without evidentiary support, that he did not receive adequate medical
attention. Plaintiff’s subjective complaints of rib pain, without corroborating evidence, are
insufficient to give rise to a claim for deliberate indifference. See Lewis v. Irvin, 1999 WL
603831, at *2 (W.D.N.Y. 1999). There is no evidence in the record that any of the defendants
were deliberately indifferent to any of plaintiff’s medical needs. The diagnostic films confirmed
that plaintiff was not suffering from any serious ailment. While plaintiff obviously disagrees with
that assessment, plaintiff has not established with competent, admissible evidence that he received
improper medical attention and fails to raise an issue of fact. See Moss v. Nesmith, 2008 WL
413297, at* (N.D.N.Y. 2008) (the plaintiff was seen 18 times between the date of injury and his
transfer and x-rays indicated no fractures to his ribs). Accordingly, defendants’ motions for
summary judgment and dismissal of plaintiff’s claims of deliberate indifference are granted.
Plaintiff asserted a cause of action for medical deliberate indifference against Burda,
Thompson and Nasmith. Plaintiff has not alleged, and the record does not support, any other
claims against Burda, Thompson or Nasmith. Accordingly, Burda, Thompson and Nasmith are
awarded summary judgment.
It is hereby
ORDERED that the motion by defendants Porliar, Colvin, Warner, Deluke, Baxter,
Copeland, Kitchner, Nasmith and Thompson (Dkt. No. 37) for summary judgment and dismissal
of plaintiff’s complaint in its entirety is DENIED IN PART AND GRANTED IN PART as
Defendants’ motion for summary judgment and dismissal of plaintiff’s claims
based upon plaintiff’s failure to exhaust administrative remedies is DENIED;
Defendants’ motion for summary judgment and dismissal of plaintiff’s excessive
force claims relating to the March 7, 2007 incident, for failure to state a cause of
action is DENIED;
Defendants’ motion for summary judgment and dismissal of plaintiff’s excessive
force claims relating to the March 14, 2007 incident, for failure to state a cause of
action is GRANTED;
Defendants’ motion for summary judgment and dismissal of plaintiff’s Eighth
Amendment claims of medical deliberate indifference is GRANTED, it is further
ORDERED that defendant Burda’s motion (Dkt. No. 41) for summary judgment and
dismissal of plaintiff’s Eighth Amendment claims of medical deliberate indifference is
GRANTED in its entirety, it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order upon the parties by regular or electronic mail, and it is further;
ORDERED that pursuant to Local Rule 72.3, the parties are advised that the referral of
this matter to the Magistrate Judge was RESCINDED, as such, any appeal taken from this Order
will be to the Court of Appeals for the Second Circuit.
IT IS SO ORDERED.
Dated: January 10, 2012
Albany, New York
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