White v. Clark et al

Filing 373

MEMORANDUM-DECISION AND ORDER: ORDERED that the Report and Recommendation of United States Magistrate Daniel J. Stewart (Dkt. No. 352 ) is adopted and accepted in its entirety. ORDERED that defendants' motion (Dkt. No. 314 ) for summary judgment is granted in part and denied in part. Signed by Senior Judge Norman A. Mordue on 3/31/16.{order served via regular mail on plaintiff} (nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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JOHN WHITE,
Plaintiff,
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9:12-CV-986 (NAM/DJS)

JEFFREY CLARK, et al.,
Defendants.
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APPEARANCES:
John H. White 08-A-3366
Southport Correctional Facility
P.O. Box 2000
Pine City, New York 14871
Plaintiff, pro se
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Hon. Eric T. Schneiderman, Attorney General of the State of New York
John F. Moore, Esq., Assistant New York State Attorney
The Capitol
Albany, New York 12224
Attorney for Defendants

Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
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Community Supervision (“DOCCS”), brought this action under 42 U.S.C. § 1983 alleging
excessive force and deliberate indifference to his serious medical needs in violation of the Eighth
Amendment. Defendants move (Dkt. No. 314) for summary judgment on the grounds that the
claims of medical indifference are insufficient and/or should be dismissed based on qualified
immunity, and that plaintiff failed to exhaust his available administrative remedies prior to
bringing this action.

Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States
Magistrate Daniel J. Stewart issued a Report and Recommendation (Dkt. No. 352) in which he
recommends that summary judgment be granted dismissing all official capacity claims for
monetary damages and all Eighth Amendment medical deliberate indifference claims against
defendants Rushford, Travers, Lashway, Rock, and Uhler. He further recommends denial of
summary judgment dismissing the remaining claims – the excessive force claims – because
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questions of fact exist requiring an exhaustion hearing.
Defendant objects (Dkt. No. 368) to so much of the Report and Recommendation as
recommends denial of summary judgment on the issue of failure to exhaust. Plaintiff submits an
untimely objection, primarily addressing the medical indifference claims (Dkt. No. 372). The
Court accepts plaintiff’s objection in view of his pro se status. Therefore, pursuant to 28 U.S.C. §

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636(b)(1)(C), this Court conducts a de novo review of the issues.
The Court adopts Magistrate Judge Stewart’s summary of the relevant facts and law, and
refers the reader thereto. The Court first conducts de novo review of whether summary judgment
is warranted dismissing plaintiff’s claims of deliberate indifference to his serious medical needs.
After a thorough review of the record, the Court adopts Magistrate Judge Stewart’s analysis of the
record before him and his conclusion that no rational jury could find that plaintiff’s medical

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condition was “sufficiently serious” under Brock v. Wright, 315 F.3d 158, 162-63 (2d Cir. 2003),1
or that defendants knew of and disregarded an excessive risk to his health such that they acted

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As Magistrate Judge Stewart noted, there is no distinct litmus test for a serious medical
condition; rather, the seriousness of a condition is determined by 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, 162-63 (2d Cir. 2003).

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with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979,
128 L.Ed.2d 811 (1994). Plaintiff’s objection does not warrant a different conclusion. The Court
notes in particular that plaintiff’s complaints that the pain medication he was given was
“ineffective,” that he received “no rehabilitation of injury,” that no “specialist neurological
exams” were performed until many months later, and similar critiques of the care he received
amount to “mere disagreement over the proper treatment,” which does not create a constitutional
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claim. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
The Court also conducts de novo review with respect to Magistrate Judge Stewart’s
recommendation that defendants’ summary judgment motion be denied regarding the excessive
force claims, and a hearing be held on the issue of exhaustion of administrative remedies. The
Court has considered the entire record, including the declaration of Brandi L. Collyer, a

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Supervisor of DOCCS’ Inmate Grievance Program at Upstate Correctional Facility, where
plaintiff was housed at the time of the alleged December 1, 2010 incidents; the declaration of
Jeffrey Hale, the Assistant Director of the DOCCS’ Inmate Grievance Program; plaintiff’s
deposition testimony; and plaintiff’s submissions – which exceed 600 pages – in opposition to
this motion. Based on the record and the applicable law, the Court agrees with Magistrate Judge
Stewart’s recommendation to deny so much of defendants’ motion for summary judgment as

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seeks dismissal of the excessive force claims on the ground of failure to exhaust. Plaintiff is
entitled to an evidentiary hearing with regard to whether he in fact exhausted his administrative
remedies on his excessive force claims and, if he failed to do so, whether special circumstances
justified that failure.
It is therefore

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ORDERED that the Report and Recommendation of United States Magistrate Daniel J.
Stewart (Dkt. No. 352) is adopted and accepted in its entirety; and it is further
ORDERED that defendants’ motion (Dkt. No. 314) for summary judgment is granted in
part and denied in part as follows:
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Plaintiff’s Eighth Amendment claim of deliberate indifference to serious medical needs is
dismissed with prejudice;
Defendants Rushford, Travers, Lashway, Rock, and Uhler are dismissed from the action;
All monetary damages claims against the remaining individual defendants in their official
capacities are dismissed;
Dismissal of plaintiff’s excessive force claims based on the alleged events of December 1,
2012 is denied at this point on the ground that a hearing is required; and
The Court will schedule an evidentiary hearing on the question of whether plaintiff
exhausted his administrative remedies regarding his excessive force claims based on the
events of December 1, 2012; and it is further
ORDERED that Clerk of the Court is directed to serve copies of this

Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of
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New York.
IT IS SO ORDERED.
March 31, 2016
Syracuse, New York

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