Lewis v. Havernack et al
MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge David E. Peebles' October 3, 2013 Report-Recommendation and Order (Dkt. No. 70 ) is ADOPTED in its entirety. ORDERED that Sheridan's motion to dismiss (Dkt. No. 63 ) is GRAN TED, and that only Lewis' Eighth Amendment excessive force claim against Sheridan remain in this action. ORDERED that Lewis' motion to substitute (Dkt. No. 73 ) is construed as a motion for the enlargement of time to file a proper motio n to substitute, which is GRANTED. ORDERED that within thirty (30) days of this Memorandum-Decision and Order, counsel for Sheridan must: (1) provide a reason or reasons for why he cannot or should not provide Lewis with the information regardin g Sheridan's successor or legal representative; or (2) identify to Lewis the successor or legal representative, if any, of Sheridan's estate. ORDERED that all further proceedings with respect to Lewis' motion to substitute (Dkt. No. 73 ) are referred to Magistrate Judge David E. Peebles. Signed by Chief Judge Gary L. Sharpe on 3/19/14.(served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FOR THE PLAINTIFF:
Gowanda Correctional Facility
P.O. Box 311
Gowanda, NY 14070
FOR THE DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany, NY 12224
GREGORY J. RODRIGUEZ
Assistant Attorney General
Gary L. Sharpe
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Marc Lewis commenced this action against defendant
Kevin Sheridan pursuant to 42 U.S.C. § 1983, alleging violations of his
Eighth Amendment rights. (Am. Compl., Dkt. No. 62.) Sheridan filed a
motion to dismiss, seeking dismissal of Lewis’ Eighth Amendment medical
indifference claim.1 (Dkt. No. 63.)
In a Report-Recommendation and Order (R&R) dated October 3,
2013, Magistrate Judge David E. Peebles recommended that Sheridan’s
motion be granted. (Dkt. No. 70.) Lewis filed timely objections to the R&R.
(Dkt. No. 71.) Later, on December 3, 2013, counsel for Sheridan filed a
suggestion of death, stating that Sheridan—the only remaining
defendant—passed away on November 8, 2013. (Dkt. No. 72.) On
January 13, 2014, Lewis filed a motion to substitute pursuant to Fed. R.
Civ. P. 25. (Dkt. No. 73.)
Pending before the court are Lewis’ objections to the R&R, (Dkt. No.
71), and his motion to substitute, (Dkt. No. 73). For the reasons that
follow, the R&R is adopted in its entirety, Lewis’ motion to substitute is
Lewis’ Eighth Amendment claims include a medical indifference
claim and an excessive force claim. (Am. Compl. at 5; Dkt. No. 70 at 2, 8
n.3.) Sheridan moved to dismiss only Lewis’ medical indifference claim.
(Dkt. No. 63, Attach. 1.) Accordingly, neither Judge Peebles nor this court
has considered Lewis’ excessive force claim, which therefore remains
intact. (Dkt. No. 70 at 2, 8 n.3.)
construed as a motion seeking an extension of time under Rule 6(b), and
that motion is granted.
Lewis is a New York State inmate currently held in the custody of the
New York State Department of Corrections and Community Supervision
(“DOCCS”). (See generally Am. Compl.) Lewis alleges that, on February
20, 2009 at the Mt. McGregor Correctional Facility, between 8:43 and 9:20
A.M., Sheridan, a corrections lieutenant, “punched [Lewis] from behind in
his face, causing [Lewis] to be knocked out of his chair and un-conscious,
injuring him to both the right and left side of his face.” (Id. at 1, 5.) Lewis
further alleges that, despite having “at least twenty[-]five (25) minutes to
contact medical personnel” and unlimited resources, Sheridan failed to
seek medical attention for Lewis, resulting in additional pain and suffering.
(Id. at 5.)
Ultimately, Lewis visited the hospital and was given a head scan.
(Id.) The medical records that Lewis appended to his amended complaint
indicate that, at 11:00 A.M., 1:45 P.M., and 5:00 P.M., on February 20,
2009, Lewis had slight to moderate swelling on the right and left side of his
face, but “no acute medical problems” or “other injuries or trauma,” and his
oral cavity was intact. (Dkt. No. 62 at 9-13.) The medical records also
showed that Lewis had “clear vision” and indicated that he “refus[ed] ice”
for the swelling. (Id. at 10.) Additional medical records dated February 23,
2009 indicate that there was no trauma noted, the swelling decreased, and
there were no visual changes. (Id.)
III. Standard of Review
Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are filed, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error.2 See id. at
Lewis’ Objections to the R&R
Lewis filed both general and specific objections to the R&R, which
are considered below. (Dkt. No. 71.)
Lewis specifically objects to the portion of the R&R in which Judge
Peebles stated that Sheridan waited twenty-five minutes to contact medical
personnel; Lewis claims that Sheridan did not contact medical personnel at
all, (Dkt. No. 71 ¶¶ 1-3, 9), although he does concede, and his medical
documents show, that he nevertheless received medical attention on the
same day that Sheridan struck him, (Am. Compl. at 5; Dkt. No. 62 at 9-12).
The court reviews this objection de novo.
“[A] report is clearly erroneous if the court determines that there is
a mistake of fact or law which is obvious and affects substantial rights.”
Almonte, 2006 WL 149049, at *6.
“[A] delay in treatment does not violate the constitution unless it
involves an act or failure to act that evinces a conscious disregard of a
substantial risk of serious harm.” Thomas v. Nassau Cnty. Corr. Ctr., 288
F. Supp. 2d 333, 339 (E.D.N.Y. Oct. 28, 2003) (internal quotation marks
and citation omitted). Further, a prisoner must show that, as a result of the
delay, “his condition became worse or deteriorated.” Johnson v. Enu, No.
08-CV-158, 2011 WL 3439179, at *10 (N.D.N.Y. July 13, 2011).
Here, even accepting Lewis’ argument that he waited a few hours for
medical treatment, (Dkt. No. 71 ¶ 5), rather than, as Judge Peebles noted,
twenty-five minutes, (Dkt. No. 70 at 12), Lewis was not denied medical
treatment; medical treatment was simply delayed. Accordingly, Lewis’
medical indifference claim is properly analyzed as a delay in treatment,
rather than a total deprivation of treatment.3 This type of delay is not
In any event, even if the court were to view Lewis’ claim against
Sheridan as a total deprivation of treatment, his claim would still fail. An
Eighth Amendment claim must satisfy both an objective and subjective
test. See Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). As part of
the objective inquiry, if a plaintiff alleges a complete failure to provide
treatment, the court must look to the seriousness of the inmate’s medical
condition. See Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003).
“Factors relevant to the seriousness of a medical condition include
whether a reasonable doctor or patient would find [it] important and worthy
of comment, whether the condition significantly affects an individual’s daily
activities, and whether it causes chronic and substantial pain.”
enough to trigger a deliberate indifference claim. See Herbert v. N.Y.C.
Dep’t of Corrs., No. 10 CV 8799, 2012 WL 3834660, at *4 (S.D.N.Y. Aug.
21, 2012) (finding that the plaintiff’s complaint failed to state a claim for
deliberate indifference where the plaintiff “concede[d] . . . that he ultimately
did receive medical treatment on the same days that he alerted
[defendants] to his condition”); Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (finding that the
plaintiff’s complaint failed to state a claim for deliberate indifference where
the plaintiff suffered an injury to his finger and waited for three and a half
hours for treatment).
Additionally, aside from claiming that he “was subject[ed] to
additional pain and suffering, requiring a visit to the hospital for a head
scan,” (Am. Compl. at 5), Lewis has alleged no facts to show that his
condition deteriorated as a result of the delay in treatment. In his
objections to the R&R, Lewis claims, for the first time, that he suffered from
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (internal quotation
marks and citation omitted). Here, the medical records that Lewis
appended to his complaint demonstrate that he had “no acute medical
problems,” only slight to moderate swelling—for which he refused
ice—and that he had clear vision. (Dkt. No. 62 at 9-12.) These medical
records belie any claim that his medical condition was sufficiently serious
to give rise to an Eighth Amendment violation.
dizziness and blurred vision, resulting in him having to wear glasses for the
first time in his life. (Dkt. No. 71 ¶ 2.) Generally, however, “courts do not
consider such ‘new arguments’ or new evidence ‘raised in objections to a
magistrate judge’s report and recommendation that could have been raised
before the magistrate but were not,’” and this court declines to do so here.
Chalasani v. Daines, No. 10-CV-1978, 2011 WL 4465408, at *1 n.3
(E.D.N.Y. Sept. 26, 2011) (quoting Illis v. Artus, No. 06-CV-3077, 2009 WL
2730870, at *1 (E.D.N.Y. Aug. 28, 2009)). Accordingly, Lewis’ Eighth
Amendment medical indifference claim fails for substantially the reasons
stated in the R&R.
Lewis also objects to the portion of the R&R in which Judge Peebles
determined that Sheridan did not act with malice, (Dkt. No. 71 ¶¶ 4, 7), and
to the portion of the R&R in which Judge Peebles “erroneously” read and
considered Lewis’ medical records, (id. ¶¶ 5-6, 8). These “objections,”
however, simply restate a portion of Lewis’ amended complaint and rehash arguments already submitted to the court, which Judge Peebles
properly considered. (Compare Dkt. No. 71 ¶¶ 4-8, with Am. Compl. at 5;
Dkt. No. 66 ¶¶ 7-14.) The court therefore does not construe these as
specific objections. See Gusky v. Astrue, No. 10-CV-00919, 2013 WL
3776257, at *3 (W.D.N.Y. July 2, 2013) (“[W]hen the objections simply
reiterate previous arguments . . . the Court should review the report for
clear error.”); Almonte, 2006 WL 149049, at *4. The court, having carefully
reviewed the record, finds no clear error in the R&R.
Lewis’ Motion to Substitute
On December 3, 2013, counsel for Sheridan filed and served a
suggestion of death, stating that Sheridan died on November 8, 2013; the
notice did not indicate whether a representative for Sheridan’s estate had
been appointed.4 (Dkt. No. 72.) Further, to the court’s knowledge, the
suggestion of death appears to have only been served on Lewis, (Dkt. No.
72, Attach. 1), and not, as Rule 25 requires, also on Sheridan’s legal
representative or successor. See Hamilton v. Fisher, No. 9:10-CV-1066,
2012 WL 987374, at *16 (N.D.N.Y. Feb. 29, 2012) (noting that, in order for
a suggestion of death to be properly filed, the “suggesting party must serve
The court notes that an Eighth Amendment excessive force claim,
brought pursuant to § 1983, generally survives after a defendant’s death.
See Young v. Patrice, 832 F. Supp. 721, 723-24 (S.D.N.Y. 1993).
other parties and non-party successors or representatives of the deceased
with a suggestion of death in the same manner as required for service of
the motion to substitute” (internal quotation marks and citations omitted)).
On January 13, 2014, Lewis filed a motion to substitute pursuant to
Fed. R. Civ. P. 25(a)(1). (Dkt. No. 73.) In his motion, Lewis noted that he
“wishes to substitute the beneficiary-heir to defendant Kevin Sheridan[’]s
Estate,” but that he “does not have the information to go forth with suing
the beneficiary heir to [Sheridan’s] estate.” (Id. at 1-2.) Thus, Lewis also
failed to properly serve his motion on Sheridan’s legal representative or
successor pursuant to Fed. R. Civ. P. 4.5 Sheridan’s counsel opposed the
motion, and argues only that Rule 25 does not require a party to identify
the successor or legal representative; it only requires that a suggestion of
death be served on the involved parties.6 (Dkt. No. 74 at 1.)
Rule 25 provides, in pertinent part, that:
If a party dies and the claim is not extinguished, the court may
See Allah v. Juchnewioz, No. 93 Civ. 8813, 2003 WL 22144352, at
*2 (S.D.N.Y. Sept. 16, 2003) (noting that motion to substitute must be
served on non parties pursuant to Fed. R. Civ. P. 4).
The court notes that Rule 25 does not require that a statement of
death “identify the successor or legal representative.” Unicorn Tales, Inc.
v. Banerjee, 138 F.3d 467, 470 (2d Cir. 1998).
order substitution of the proper party.
A motion for
substitution may be made by any party or by the decedent’s
successor or representative. If the motion is not made within
90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.
Fed. R. Civ. P. 25(a)(1). Under certain circumstances, this ninety-dayperiod can be extended. Indeed, where there is “an inability or a significant
difficulty in identifying [the decedent’s] legal representative or successor, a
motion [can] be brought under Rule 6(b) to enlarge the time in which to file
the motion for substitution.” Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467,
470 (2d Cir. 1998).
Rule 6(b) provides that:
When an act may or must be done within a specified time,
the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a
request is made, before the original time or its extension
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
Fed. R. Civ. P. 6(b). Thus, if the time for making a motion under the
applicable rule has not yet run, as is the case here, then a court may, with
or without motion, grant an extension upon good cause. Fed. R. Civ. P.
6(b)(A). At least one court in this Circuit has, in light of a plaintiff’s pro se
status, construed a motion to substitute pursuant to Rule 25 as a motion
seeking an extension of time under Rule 6(b). See Go v. Rockefeller
Univ., No. 04 Civ. 4008, 2013 WL 3816700, at *3-5 (S.D.N.Y. July 19,
Here, Lewis’ Rule 25 motion was timely filed, and Fed. R. Civ. P.
6(b)(1)(A) therefore controls. Thus, the court may extend Lewis’ time to
move for good cause. See id. at *3-4; Weingarten v. Optima Commc'ns
Sys., Inc., 544 F. Supp. 2d 193, 195 n.1 (S.D.N.Y. 2008). Lewis has
demonstrated good cause justifying an extension of time; the suggestion of
death did not identify, and does not appear to have been served on,
Sheridan’s successor or legal representative, and Lewis asserts that “only
the New York State Department of Correctional and Community Services
[has] this information, and due to security reasons, this information will not
be disclosed to a[n] inmate plaintiff.” (Dkt. No. 73 at 1-2.) Notably,
however, on this record, counsel for Sheridan raised no concerns with
providing Lewis this information based on security reasons.
In view of Lewis’ pro se status, the court construes his timely Rule 25
motion as a motion seeking an extension of time under Rule 6(b).
Accordingly, within thirty (30) days of this Memorandum-Decision and
Order, counsel for Sheridan is directed to: (1) provide a reason or reasons
for why he cannot or should not provide Lewis with the information
regarding Sheridan’s successor or legal representative; or (2) identify to
Lewis the successor or legal representative, if any, of Sheridan’s estate,
see Go, 2013 WL 3816700, at *3-4 (directing deceased defendant’s
counsel to identify to the pro se plaintiff the representative, if any, of the
deceased defendants’ estate); Allah, 2003 WL 22144352, at *2 (directing
the Attorney General to provide the pro se prisoner plaintiff with the
address of the deceased defendant’s legal representative “so that he may
effect service on her.”). All further proceedings with respect to Lewis’
motion to substitute are referred to Judge Peebles.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ October 3, 2013
Report-Recommendation and Order (Dkt. No. 70) is ADOPTED in its
entirety; and it is further
ORDERED that Sheridan’s motion to dismiss (Dkt. No. 63) is
GRANTED, and that only Lewis’ Eighth Amendment excessive force claim
against Sheridan remain in this action; and it is further
ORDERED that Lewis’ motion to substitute (Dkt. No. 73) is construed
as a motion for the enlargement of time to file a proper motion to
substitute, which is GRANTED; and it is further
ORDERED that within thirty (30) days of this Memorandum-Decision
and Order, counsel for Sheridan must: (1) provide a reason or reasons for
why he cannot or should not provide Lewis with the information regarding
Sheridan’s successor or legal representative; or (2) identify to Lewis the
successor or legal representative, if any, of Sheridan’s estate; and it is
ORDERED that all further proceedings with respect to Lewis’ motion
to substitute (Dkt. No. 73) are referred to Magistrate Judge David E.
Peebles; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 19, 2014
Albany, New York
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