Cabassa v. Oshier et al

Filing 52

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Hummel's October 30, 2012 49 Report-Recommendation and Order is ADOPTED in part and REJECTED in part as set forth herein; and the Court further ORDERS that Defendants' 34 motio n to dismiss is GRANTED in part and DENIED in part as set forth herein; and the Court further ORDERS that all further pretrial matters are referred to Magistrate Judge Hummel. Signed by U.S. District Judge Mae A. D'Agostino on 3/21/2013. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SAMUEL CABASSA,
Plaintiff,
vs.

CHRISTINA OSHIER, Clerk II, Individually
and official capacity; DALE A. ARTUS, Supt.
Clinton C.F. Individually and official capacity;
THOMAS L. LaVALLEY, Supt. Clinton C.F.
Individually and official capacity; NEW YORK
STATE DEPARTMENT OF CORRECTIONAL
SERVICES; E. BLAISE, Registered Nurse, Individually
and official capacity; S. MILLER, Nurse Practitioner,
Individually and official capacity; MARK MAXON,
Optometrist, Individually and official capacity;
OFFICER JENNETT, Correctional Officer, Individually
and official capacity; OFFICER EZRO, Correctional
Officer, Individually and official capacity; JOHN
MILBURN, Correctional Officer, Individually and
official capacity; MAX PATNODE, Deputy
Superintendent for Programs, Individually and official
capacity; B. LECUYER, Nurse Administrator,
Individually and official capacity; NURSE BADGER,
Registered Nurse, Individually and official capacity;
KANG MAENG LEE, Medical Doctor, Individually and
official capacity; VONDA JOHNSON, Medical Doctor,
Individually and official capacity; JOHN A. DOE,
Correctional Sergeant, Individually and official capacity;
JOHN B. DOE, Correctional Officer, Individually and
official capacity; JOHN C. DOE, Correctional Officer,
Individually and official capacity; JOHN D. DOE,
Correctional Officer, Individually and official capacity;
JOHN E. DOE, Correctional Officer, Individually and
official capacity; JOHN F. DOE, Correctional Officer,
Individually and official capacity; JOHN G. DOE, DOCS
Utilization Review Committee, Individually and official
capacity; JOHN H. DOE, DOCS Utilization Review
Committee, Individually and official capacity,
Defendants.
____________________________________________

9:11-CV-01237
(MAD/CFH)

APPEARANCES:

OF COUNSEL:

SAMUEL CABASSA
84-A-0364
Wende Correctional Facility
P.O. Box 1187
Alden, New York 14004
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

GREGORY J. RODRIGUEZ, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff pro se Samuel Cabassa ("Cabassa"), commenced the present action pursuant to
42 U.S.C. § 1983, alleging that he was denied adequate care and accommodations, in violation of
his Eighth and First Amendment rights, when Defendants failed to provide him with appropriate
treatment concerning his partial blindness and other visual impairments. See Dkt. No. 1.
Plaintiff's allegations span an approximate two-year period, from October 2008 to late December
2010, and comprise of claims against multiple Defendants including, the New York State
Department of Corrections and Community Supervision ("DOCCS"), fourteen DOCCS
employees, and eight John Does. See id. Additionally, Plaintiff asserts claims pursuant to 42
U.S.C. § 12132, the Americans with Disabilities Act ("ADA"), and 42 U.S.C. § 794, the
Rehabilitations Act ("RA"). See id. at 52-56. Primarily, Plaintiff seeks compensatory and
punitive damages for the alleged violations.
In a Report-Recommendation and Order dated October 30, 2012, Magistrate Judge
Hummel recommended that the Court grant in part and deny in part Defendant's motion to dismiss
2

certain Defendants and claims pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. No. 49. Currently
before the Court are Plaintiff's and Defendants' objections to the Report-Recommendation and
Order.

II. BACKGROUND
Plaintiff is an inmate currently in the custody of Defendant DOCCS, housed at the Wende
Correctional Facility ("Wende C.F."). At all times relevant, however, Plaintiff was confined at
the Clinton Correctional Facility ("Clinton C.F."). Plaintiff suffers from blindness in his left eye
and visual impairments in his right eye, and requires a contact lens and non-prescription glasses
with a grey gradient tint to control his photophobia, a sensitivity to bright natural or artificial
lighting. See Dkt. No. 1 at ¶ 6(2); see also Dkt. No. 47-2 at 2. Clinton C.F. policy requires a
prisoner to obtain a medical permit in order to wear any eyeglasses or equipment in the facility.
See id. at ¶¶ 6(3), (5). Without the proper eye protection, Plaintiff claims to suffer from
intolerable pain and frequent migraine headaches. See id. at ¶ 6(6).
Upon being transferred to Clinton C.F. on October 9, 2008, Plaintiff met with Defendants
Blaise, a nurse, and Oshier, a clerk, to explain his eye condition and his need for the special visual
accommodations. See id. at ¶ 6(3). Despite explanation of his impairment and light sensitivity,
Plaintiff contends that Defendants Blaise and Oshier accused him of lying and refused to issue
him the requisite permit or any accommodations. See id. at ¶¶ 6(4), (7). Shortly thereafter,
Plaintiff contends that Defendant Ezero, a correctional officer, threatened to retaliate against him
for voicing his intent to file a grievance against her. See id. at ¶¶ 6(10)-(12). After the alleged
denial and threat, Plaintiff sent a letter of complaint to the superintendent, Defendant Artus, who

3

subsequently referred the letter to Defendant LaValley, another superintendent at Clinton C.F.
See id. at ¶ 6(12).
On October 12, 2008, Plaintiff informed the nursing staff that he would be unable to pick
up his nightly medication because of the irritation to his eyes and migraine headaches that would
be caused by the bright lights on his walk through the facility. See id. at ¶ 6(13). A nurse
provided Plaintiff with a refusal form where he noted this reason and also requested delivery of
the medication to his cell. See id. at ¶¶6(14)-(15). At this time, one of the nurses — Defendant
Miller — denied Plaintiff's request and discontinued his nighttime medication. See id. at ¶ 6(16).
Thereafter, Plaintiff used two methods to inform staff at Clinton C.F. of his grievances
related to their failure to provide him with adequate accommodations for his visual disability. See
id. at ¶¶ 6(17)-(19). On October 20, 2008, Plaintiff sent a letter to Defendant Johnson, a medical
doctor. See id. at ¶¶ 6(17)-(18). Plaintiff's letter included a complaint with regard to Defendants
Oshier and Blaise's denial of his medically necessary glasses, his resulting exposure to risk of
danger and pain, and requested the following relief: (1) a temporary permit to wear glasses; (2)
delivery of his nightly medication to his cell; and (3) reasonable accommodations for showering
to avoid extreme pain to his hips, knees, and back. See id. On October 21, 2008, Plaintiff also
informed Defendant Miller of Defendants Blaise and Oshier's refusal. See id. at ¶ 6(19). Plaintiff
provided Defendant Miller with substantiation of his medical need for visual assistive devices,
including medical records and permits provided to him in the past from other prisons. See id. At
this time, Defendant Miller addressed Plaintiff's other concerns. See id. at ¶¶ 6(17)-(20).
First, Defendant Miller instructed Defendant Oshier to issue Plaintiff a pair of solar shield
sunglasses to address his photophobia. See id. at ¶¶ 6(22)-(23). Plaintiff described the glasses as
"a huge pair of 100% black sunglasses" that impaired his vision and led to several accidents and
4

injuries with both objects and other inmates. See id. at ¶ 6(49). Plaintiff supports this contention
with declarations from three other inmates observing such incidents. See Dkt. No. 47-6 at 68, 7273. Next, Defendant Miller notified an officer and the nursing staff that Plaintiff had feed-in-cell
status and would require delivery of his nighttime medication to his cell. See Dkt. No. 1 at ¶¶
6(23)-(24). Finally, after hearing Plaintiff's complaints regarding his difficulty traversing the
shower stair case and slippery shower floors, the alleged risk to his physical mobility, and his
susceptibility to inmate quarrels given the layout of the showers, Defendant Miller determined
that Plaintiff's concerns warranted a medical shower designation. See id. at ¶¶ 6(25)-(28); see
also Dkt. No. 47-6 at 75. Several days later, on October 31, 2008, Plaintiff sent Defendant Miller
a letter requesting an exemption from heavy lifting because of the resulting pain and damage to
his shoulder, back, hips, and knees; no response was received. See Dkt. No. 1 at ¶ 6(29).
On November 19, 2008, Plaintiff was transferred to C-block and provided one of the
correctional officers, Defendant Jennette, his feed-in-cell and glasses permits. See id. at ¶ 6(41).
Jennette allegedly refused to honor the permits — citing lack of authority of the permit issuers —
and sent Plaintiff to the infirmary after Plaintiff skipped breakfast the following morning. See id.
at ¶¶ 6(42)-(43). Plaintiff explained the incident to Defendant Blaise, who then received
permission from Defendant Miller to re-issue another thirty day feed-in-cell status permit. See id.
at ¶ 6(44). Despite issuance of a new permit, Plaintiff contends that Defendant Jennette refused to
honor his feed-in-cell status. See id. at ¶ 6(46). On November 24, 2008, Plaintiff sent a letter to
Defendant Miller describing Defendant Jennette's conduct and the involuntary hunger strike that
was occurring as a result, as well as reiterating his previous complaints and requests — to receive
delivery of his nightly medication and feed-in-cell status. See id. In the days following, Plaintiff
was affirmatively denied these requests.
5

On November 25, 2008, Plaintiff consulted Defendant LaValley about a grievance
previously filed against Defendant Maxon, an optometrist. See id. at ¶ 6(47). During this
interaction, Defendant LaValley ordered Plaintiff to remove his tinted glasses despite being
supplied medical records and shown a comparison of his tinted glasses with the substantially
darker, and allegedly harm inducing, glasses provided by Defendant Oshier. See id. at ¶¶ 6(47)(49). At this time, Defendant LaValley declined Plaintiff's request to wear his personal tinted
glasses and confirmed the rescission of his feed-in-cell status by Defendant Jennette. See id. at ¶¶
6(49)-(50). The following day, Defendant Badger, another nurse at the facility, informed Plaintiff
that his nightly medication was terminated. See id. at ¶ 6(51). Later that day, Plaintiff received a
letter from the nursing staff explaining that his feed-in-cell status was terminated because no
medical restrictions precluded him from walking to the cafeteria. See id. at ¶ 6(53).
Thereafter, on December 1, 2008, Plaintiff sent a letter to the DOCCS Commissioner
complaining that Defendants Maxon, Blaise, Oshier, Jennette, Artus, and LaValley intentionally
subjected him to an involuntary hunger strike when they failed to comply with his feed-in-cell
permit and subsequently terminated such status. See id. at ¶ 6(53). The next day, Plaintiff sent
Defendant Artus a copy of his December 1 complaint, his complaint against Defendants Maxon
and Oshier alleging retaliation for filing grievances, as well as a copy of the grievance he filed
earlier that day alleging that: (1) Defendants Artus and LaValley were aware of, and condoned,
discriminatory acts against Plaintiff's visual impairment; (2) Defendant Jennette refused to honor
his feed-in-cell permit and compelled the medical staff to rescind the permit; and (3) the failure to
follow the feed-in-cell permit was effectively subjecting Plaintiff to an involuntary hunger strike.
See id. at ¶¶ 6(40), (66).

6

On December 12, 2008, Plaintiff alleges that Defendant Milburn, a correctional officer,
and six unnamed officers — John Does A through F — physically assaulted him in front of DBlock, which resulted in "brutalization and humiliation" to Plaintiff. See id. at ¶¶ 6(68)-(74). On
December 31, 2008, Defendant Maxon, the optometrist, met with Plaintiff and, per his
instructions, denied Plaintiff permission to use his personal tinted sunglasses or permanent tinted
lenses. See id. at ¶ 6(81). Defendant Maxon informed Plaintiff that he was authorized to
prescribe transitional lenses. See id. When Plaintiff expressed his concern over the migraine
headaches and pain caused by transitional glasses, Defendant Maxon responded that these were
his instructions. See id. at ¶ 6(82).
Plaintiff saw Defendant Miller again on March 3, 2009, and at this time, complained of
severe pain in his shoulder, hips, and back caused by the December 12, 2008 assault. See id. at ¶
6(83). During this encounter, Plaintiff begged for his nighttime pain medication — promising to
walk to the infirmary to pick it up — and was told by Defendant Miller that he should be
receiving state-issued glasses within two weeks. See id. at ¶¶ 6(83)-(84). On the night of April
30, 2009, when Plaintiff picked up his medication, he complained to Defendant Badger of
immense pain caused by the bright lights in the mess-hall and again requested delivery of the
medicine to his cell at night. See id. at ¶ 6(86). Contrary to this encounter alleged by Plaintiff,
Defendant Miller's entry on May 1, 2009, in his Ambulatory Health Records ("AHR"), indicated
that Plaintiff had refused his nighttime Tylenol-3 and prescribed a discontinuation of both day and
night Tylenol-3. See id. at ¶ 6(87). Almost two months later, when Plaintiff asked Defendant
Miller why both medications had been stopped, Defendant Miller responded that Defendant
Badger had refused to have the nursing staff perform the deliveries. See id.

7

On August 28, 2009, an orthopedist recommended that Plaintiff receive cortisone
injections to combat his knee pain. Defendant Miller, however, disregarded this advice after
review on September 17, 2009. See id. at ¶ 6(90). A retinal specialist, Dr. Gigante, consulted
Plaintiff on September 14, 2009. See id. at ¶ 6(92). During this appointment Dr. Gigante
discovered a cataract growth on Plaintiff's right eye and named this as the likely source of his
migraine headaches, eye irritation, and pain. See id. at ¶ 6(92). Dr. Gigante recommended
Plaintiff use tinted glasses to reduce glare and irritation and suggested that Plaintiff not yet
receive the high-risk corrective surgery. See id. at ¶ 6(93). A few months later, at a follow up
appointment on December 14, 2009, Plaintiff was informed that the growth had increased in size.
See id. at ¶ 6(95). At this time Dr. Gigante, (1) opined that surgery was likely necessary despite
its high risks; (2) recommended Plaintiff's transfer to a sensorially disabled facility; and (3)
prescribed that Plaintiff should receive a new contact lens and pair of glasses with gradient grey
tints. See id. Plaintiff alleges that Defendant Maxon agreed that he needed to be transferred to a
sensorially disabled facility when asked on January 11, 2010, but refused to carry out the order to
commence the transfer process. See id. at ¶¶ 6(101)-(103). Almost six months after the growth
was initially found, at a third consultation with Dr. Gigante on April 12, 2010, Dr. Gigante opined
that Plaintiff required surgery because his vision was deteriorating rapidly. See id. at ¶ 6(96).
The following month, on May 12, 2010, Plaintiff's counselor at the facility told him to
complete and submit a Request for Reasonable Accommodations to Defendant Patnode, the
Deputy Superintendent for Programs. See id. at ¶ 6(96). Although the primary purpose of filing
the form was to obtain transfer to a sensorially disabled facility, Plaintiff also used this form to
reiterate his requests for gradient tinted glasses, a contact lens, and medical and feed-in-cell
permits. See id. at ¶¶ 6(97)-(99). The next month, Plaintiff met with a cornea specialist, who
8

once again recommended that Plaintiff receive permanent gradient tinted glasses and a new
contact lens while awaiting the cataract-removal surgery. See id. at ¶ 6(100).
In Mid-July, Defendant Johnson issued Plaintiff the requested medical, shower and feedin-cell permits. See id. at ¶ 6(104). The following month, on August 27, 2010, Plaintiff wrote a
complaint to Defendant Johnson about Defendant Lee, a medical doctor, whom he contends
refused to provide him with his pain medication. See id. at ¶ 6(105). Plaintiff filed two more
complaints with Defendant Johnson against Defendant Lee for failing to comply with his medical
recommendations on December 20th and 29th after Plaintiff's second consultation with the
orthopedist on September 10, where he was administered cortisone injections and prescribed
additional medications. See id. at ¶¶ 6(106), (109).
On October 28, 2010, Plaintiff requested expedited transfer to a sensorially disabled
facility in letters to both LeClair, the deputy commissioner of correctional facility operations, and
Carver-Jordan, the director of classification and movement. See id. at ¶ 6(107). Although this
request was denied the following day, on December 3, 2010, Plaintiff was transferred to Wende
C.F.'s Sensorially Disabled Program, where he was also provided with tinted glasses in late
March of 2011. See id. at ¶¶ 6(108), (111).

III. DISCUSSION
In their motion to dismiss, Defendants contend the following: (1) Plaintiff's section 1983
claims are barred under the applicable statute of limitations; (2) the Eleventh Amendment bars
Plaintiff's section 1983 claims against Defendant DOCCS and the Defendants in their official
capacities; (3) Plaintiff failed to allege the personal involvement of Defendants Artus, LaValley,
Ezero, Patnode, Lecuyer, and Miller for as to the section 1983 claims; (4) the Eleventh
9

Amendment bars Plaintiff's ADA and RA claims against individual Defendants in their official
capacities as redundant to Plaintiff's claims against DOCCS; (5) Plaintiff failed to state an access
to the courts claim under the First Amendment. See Dkt. No. 34-1 at 2.
In his objections to Judge Magistrate's Report-Recommendation and Order, Plaintiff
requests that the Court deny Defendants' motion to dismiss in its entirety. Plaintiff directly
objects to the Report-Recommendation and Order insofar as it recommends the dismissal of the
claim against Defendant Patnode. See Dkt. No. 51 at 2. Specifically, Plaintiff alleges facts to
show Defendant Patnode's personal involvement and "constructive role," including his: (1) review
and response to an October 23, 2009 grievance (#CL-59504-09) filed by Plaintiff; (2) approval
for modified accommodations in the form of requesting the Central Office to consider transferring
Plaintiff to a sensorially disabled facility; (3) involvement in instructing Counselor Casper that he
had approved the modified accommodations for Plaintiff, particularly the transfer; (4) alleged
awareness about Plaintiff's hardships incurred bathing in his cell; (5) forwarding an
interdepartmental communication to Plaintiff; and (6) review and denial of Plaintiff's grievance
(#CL-59986-10) filed June 7, 2010, despite being an interested party in the grievance. See id. at
2-6.

A.

Standard of review on a motion to dismiss

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
10

F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct.
1955). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the[ ] complaint must be dismissed[,]" id. at 570.
"The Iqbal plausibility standard applies in conjunction with employment discrimination
pleading standards." Gillman v. Inner City Broad. Corp., No. 08 Civ. 8909, 2009 WL 3003244,
*3 (S.D.N.Y. Sept. 18, 2009). Employment discrimination claims need not contain specific facts
11

establishing a prima facie case of discrimination, see Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514-15 (2002); rather, an employment discrimination complaint "must include only a short and
plain statement of the claim . . . [that] give[s] the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests," id. at 512 (quotation marks and citations omitted); see
also Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (applying Swierkiewicz to NYSHRL
discrimination claims).
Despite this recent tightening of the standard for pleading a claim, complaints by pro se
parties continue to be accorded more deference than those filed by attorneys. See Erickson v.
Pardus, 551 U.S. 89, 127 (2007). As such, Twombly and Iqbal notwithstanding, this Court must
continue to "construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that
[it] suggests." Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002).

B.

Review of a magistrate judge's report-recommendation
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 of specified proposed
findings or recommendations to which objection in made." 28 U.S.C. § 636(b)(1) (2006).
However, when a party files "[g]eneral or conclusory objection 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).

12

C.

Statute of Limitations
Defendants move to dismiss Plaintiff's claims arising pursuant to section 1983 as barred

under the applicable statute of limitations. See Dkt. No. 34-1 at 2. 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 (N.D.N.Y. 2000). However, Federal law
governs the accrual date for these claims and 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). A
claim brought pursuant to section 1983 by a prisoner filing pro se is deemed filed under the
Statute of limitations when it has been delivered to prison officials. See Tapia-Ortiz v. Doe, 171
F.3d 150, 152 (2d Cir. 1999).
In the present matter, Plaintiff's claim is not barred by the statute of limitations. As an
inmate, filing pro se, Plaintiff's claim is considered as filed under the statute of limitations on the
date it was delivered to prison officials at Clinton C.F. See Tapia-Ortiz, 171 F.3d at 152.
Plaintiff delivered his complaint on October 11, 2011. See Dkt. No 1-1 at 1. According to the
record, the earliest date at which Plaintiff knew or had reason to know of his alleged injury is
October 9, 2008, when Defendants Blaise and Oshier refused to issue glasses or a permit for
Plaintiff and accused him of lying about his visual impairments. See id. at 6(4)-(7). Therefore,
applying the three-year Statute of limitations to the accrual date in the present case would bar any
claim brought later than October 9, 2011. However, because October 9, 2011 was a Sunday
followed by the Columbus day Holiday, application of Rules (3)(A) and 6(A) of the Federal Rules
of Civil Procedure pushes the actual statute of limitations date to October 11, 2011. Therefore,
13

Plaintiff has timely filed his section 1983 action in this case as it was filed no later than the date
of expiration (October 11, 2011) and Defendants' motion on this ground is denied.

D.

Eleventh Amendment immunity
The Eleventh Amendment to the United States Constitution bars federal courts from

exercising subject matter jurisdiction over claims against states absent their consent to such a suit
or an express statutory waiver of immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 90-100 (1984). Congress did not abrogate the Eleventh Amendment immunity granted
to the states when it enacted 42 U.S.C. § 1983 because it is well-settled that states are not
"persons" under section 1983. See Quern v. Jordan, 440 U.S. 332, 240-41 (1979); see also Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (citation omitted). Moreover, because a suit
against a state official in his or her official capacity is considered a suit against the entity that
employs the official, this immunity extends to state agencies and state officials sued in their
official capacities. See Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988) (citation omitted); see
also Kentucky v. Graham, 473 U.S. 159, 166 (1985).
In the present matter, although Plaintiff has brought claims pursuant to section 1983
against Defendants in both their individual and official capacities, the claims against Defendants
in their official capacities are precluded by the Eleventh Amendment. See Dkt. No 1-1 at 8. The
Second Circuit has held that DOCCS employees are state officials for purposes of section 1983.
See Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002); Booker v. Rock, No. 9:11-CV-247, 2012
WL 501629, *2 (N.D.N.Y. Jan. 31, 2012) (citations omitted). In light of this authority, the Court
grants Defendants' motion to dismiss as to Plaintiff's official capacity claims.

14

E.

Personal Involvement
"It is well settled in [the Second Circuit] that personal involvement of defendants in

alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon
v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)). Therefore, a supervisory official may not be held liable solely on the ground that they
held a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citation
omitted). However, supervisory personnel may satisfy the personal involvement requirement if:
(1) The defendant participated directly in the alleged constitutional
violation; (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong; (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom; (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or (5) the defendant
exhibited deliberate indifference to the rights of inmates by failing
to act on information indicating that unconstitutional acts were
occurring.
Coughlin, 58 F.3d at 873.
Personal involvement is a question of fact and must be satisfied as to each individual
defendant. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (citation omitted). "A
plaintiff asserting a § 1983 claim against a supervisory official in his individual capacity must
allege that the supervisor was personally involved in the alleged constitutional deprivation."
Rivera v. Fischer, 655 F. Supp. 2d 235, 237 (W.D.N.Y. 2009). Merely writing a letter of
complaint does not provide the personal involvement necessary to maintain a section 1983 claim
against an individual defendant. See id. at 238. However, if the official "personally look[s] into
the matters raised in the letter, or otherwise acts on the prisoner's complaint or request, the official
may be found to be personally involved." Id. (citing Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
1997)). In the present case, Defendants claim that Plaintiff failed to allege the personal
15

involvement of Defendants Artus, LaValley, Ezero, Patnode, Lecuyer, and Miller for his § 1983
claims. See Dkt. No. 34-1 at 2.

1. Defendant Artus
Magistrate Judge Hummel recommended that the Court find that Plaintiff's verbal
complaint to Defendant Artus with respect to his medical concerns and prior assault was
sufficient to establish his personal involvement. See Dkt. No. 49 at 21 (citing Harnett v. Barr,
538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008)). The Court agrees. Although Defendant Artus'
failure to respond to letters of complaint or delegate grievances to other officials would be
insufficient to establish personal involvement, Plaintiff's allegations that he spoke with Defendant
Artus personally regarding an ongoing violation of his rights is sufficient to allege a plausible
claim that Defendant Artus was personally involved in the alleged unconstitutional act. See
Harnett, 538 F. Supp. 2d at 524; see also Dkt. No. 46 at ¶ 82.

2. Defendant LaValley
Plaintiff has pled sufficient facts to allege the personal involvement of Defendant
LaValley's deliberate indifference to his medical needs. On November 2008, Plaintiff consulted
Defendant LaValley about a grievance previously filed against Defendant Maxon, an optometrist.
See Dkt. No. 1 at ¶ 6(47). Defendant LaValley also ordered Plaintiff to remove his tinted glasses
despite being supplied medical records and declined Plaintiff's request for an eyeglasses permit.
See id. ¶¶ at 6(47)-(49). Moreover, Defendant LaValley confirmed the rescission of his feed-incell status by Defendant Jennette. See id. at ¶¶ 6(49)-(50). The Court agrees with Magistrate
Judge Hummel's finding that Defendant "LaValley was directly involved in multiple alleged
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Eighth Amendment violations" and "clearly participated in investigations into the alleged
constitutional violations." See Dkt. No. 49 at 22. Accordingly, Defendants' motion on this
ground is denied.

3. Defendant Patnode
Magistrate Judge Hummel recommended that the Court find that Plaintiff failed to
plausibly allege Defendant Patnode's personal involvement because Plaintiff merely alleged that
Defendant Patnode failed to act on letters of complaint Plaintiff submitted to him and because he
does not allege that Defendant Patnode personally investigated or acted on the letters. See Dkt.
No. 49 at 23. If the Court were to rely solely on the complaint, the Court would agree with
Magistrate Judge Hummel. In his objections to the Report-Recommendation and Order, however,
Plaintiff provides the Court with specific allegations against Defendant Patnode that were not
before Magistrate Judge Hummel. Plaintiff's objections provide plausible allegations that
Defendant Patnode was personally involved in the alleged unconstitutional conduct. Although
the Court will not usually consider allegations not contained in the complaint when deciding a
motion to dismiss, in the interests of judicial economy and in light of the special solicitude the
Court must show litigants proceeding pro se, the Court will consider these allegations in deciding
Defendants' motion. See Johns v. Goord, No. 9:09-CV-1016, 2010 WL 3907826, *6 (N.D.N.Y.
Sept. 30, 2010) (holding that, "[b]ecause plaintiff is proceeding pro se, the Court considers the
facts and allegations contained in his opposition to defendants' motion and objections in addition
to those in the complaint") (citing Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998)).
In the present case, Plaintiff contends in his objections that Defendant Patnode did not
merely act in a ministerial capacity. Plaintiff alleges that, despite being an interested party in the
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grievance (#CL-59986-10) filed June 7, 2010, Defendant Patnode reviewed and decided the issue
himself, denying Plaintiff's requests. See Dkt. No. 51 at 5. Plaintiff also alleges that Defendant
Patnode was made aware of his hardships bathing in his cell and his ongoing hardship in
receiving accommodations for his visual disability.
Construing these facts in the light most favorable to Plaintiff, the Court rejects Magistrate
Judge Hummel's Report-Recommendation and Order insofar as it finds that Plaintiff failed to
allege Defendant Patnode's personal involvement; and, therefore, Defendants' motion as to this
claim is denied. See Charles v. N.Y. State DOCS, No. 07-CV-1274, 2009 WL 890548, *6
(N.D.N.Y. Mar. 31, 2009).

F.

Plaintiff's ADA and RA claims against Defendants Miller and Johnson
In their objections to Magistrate Judge Hummel's Report-Recommendation and Order,

Defendants argue that the Court should dismiss Plaintiffs' ADA and RA claims against
Defendants Miller and Johnson in their official capacities because the State is the real party in
interest and Plaintiff has brought this claim against Defendant DOCCS. See Dkt. No. 50.
Therefore, Defendants argue that Plaintiff's ADA and RA claims against Defendants Miller and
Johnson in their official capacities are redundant of his ADA and RA claims against Defendant
DOCCS. The Court agrees. See Hallett v. New York State Dept. of Correctional Servs., 109 F.
Supp. 2d 190, 199-200 (S.D.N.Y. 2000) (holding that "because plaintiff is able to assert his ADA
and Rehabilitation Act claims against DOCS directly, I find that there is no justification for
allowing plaintiff to also assert ADA and Rehabilitation Act claims against the individual
defendants in their official capacities").

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According, the Court grants Defendants' motion to dismiss Plaintiff's ADA and RA claims
against Defendant Miller and Johnson in their official capacities as redundant of the claims
against Defendant DOCCS.

G.

Remaining claims
Having reviewed the remainder of Magistrate Judge Hummel's Report-Recommendation

and Order, the Court finds that Magistrate Judge Hummel correctly recommended that the Court
should grant Defendants' motion as to the ADA and Rehabilitation Act claims against Defendants
Miller and Johnson in their individual capacities. Further, Magistrate Judge Hummel correctly
recommended that the Court should deny Defendants' motion as to Plaintiff's (1) Eighth
Amendment medical deliberate indifference claims against Defendants Blaise, Oshier, Johnson,
Lee, Jennette, and Badger; (2) ADA and RA claims against Defendant DOCCS; and (3) First
Amendment denial of access to the courts claim against Defendants Oshier, Miller, Maxon,
Johnson, and Lecuyer.
Having found no clear error, the Court adopts Magistrate Judge Hummel's ReportRecommendation and Order as to these claims.

IV. CONCLUSION
After carefully considering Magistrate Judge Hummel's Report-Recommendation and
Order, Plaintiff's objections thereto, and the applicable law, and for the reasons stated herein, the
Court hereby
ORDERS that Magistrate Judge Hummel's October 30, 2012 Report-Recommendation

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and Order is ADOPTED in part and REJECTED in part as set forth herein;1 and the Court
further
ORDERS that Defendants' motion to dismiss is GRANTED in part and DENIED in
part as set forth herein; and the Court further
ORDERS that all further pretrial matters are referred to Magistrate Judge Hummel; and
the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 21, 2013
Albany, New York

Magistrate Judge Hummel's Report-Recommendation and Order is rejected insofar as it
finds that Plaintiff failed to allege Defendant Patnode's personal involvement and insofar as it
recommended not dismissing Plaintiff's ADA and RA claims against Defendants Miller and
Johnson in their official capacities, since these claims are redundant of the ADA and RA claims
against Defendant DOCCS.
1

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