Rosario v. Anson et al

Filing 76

ORDER adopting 69 Report and Recommendations and granting 63 Motion for Summary Judgment. Plaintiff's claims against John Doe #1 are dismissed without prejudice for failure to serve. Signed by Judge Brenda K. Sannes on 9/28/15 (served on plaintiff via regular and certified mail). (rjb, ) Modified on 9/28/2015 (rjb, ). (Additional attachment(s) added on 9/28/2015: # 1 Unpublished decision) (rjb, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
WILFREDO ROSARIO,
Plaintiff,
v.

9:12-cv-1506 (BKS/CFH)

CAPTAIN ANSON, Summit Shock
Incarceration Facility, JOHN DOE #1,
Facility Nurse, Summit Shock Incarceration
Facility.
Defendants.
___________________________________________
APPEARANCES:
Wilfredo Rosario
Plaintiff Pro Se
Orlando, Florida
Hon. Eric T. Schneiderman
Attorney General for the State of New York
Colleen D. Galligan, Esq.
Assistant Attorney General
The Capitol
Albany, New York 122241-0341
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff pro se Wilfredo Rosario brought this action under 42 U.S.C. § 1983 alleging that

defendant Captain Anson was deliberately indifferent to his serious medical needs, in violation

of the Eighth Amendment, by refusing to discharge plaintiff from the program he was
participating in at Summit Shock Incarceration Correctional Facility 1 and transfer him to another
facility so that he could receive medical treatment for his knee condition and asthma. Dkt. No. 2.
Defendants filed a motion for summary judgment on December 10, 2014, seeking to dismiss the
complaint. Dkt. No. 63. Plaintiff did not file a response to the motion. Defendants’ motion was
referred to United States Magistrate Judge Christian F. Hummel for a report and
recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c).
On July 31, 2015, Magistrate Judge Hummel issued a Report-Recommendation and
Order recommending that defendants’ motion for summary judgment be granted and that
plaintiff’s claims against John Doe #1 be dismissed without prejudice for failure to serve that
defendant. Dkt. No. 69, p. 20. Magistrate Judge Hummel’s recommendation is based on his
conclusion that no reasonable fact finder could conclude that Captain Anson was aware of a
substantial risk of harm when he recommended that plaintiff continue in the program for the
weekend or that Captain Anson intentionally delayed or denied medical care. Dkt. No. 69, pp.
16-17.
Plaintiff objects to Magistrate Judge Hummel’s conclusion and asserts that he was denied
adequate medical care for his knee condition and asthma at Summit and that Captain Anson
ignored” his “constant pleas” to be discharged from Summit “in order to receive immediate

1

According to defendants, the “Shock Program is a voluntary boot camp style drug treatment
program available to inmates with non-violent drug convictions; inmates who successfully
complete the program can shorten their sentence.” Dkt. No. 65, ¶ 2.
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medical attention.” Dkt. No. 73, p. 4. Defendant has not responded to this objection. For the
reasons set forth below, the Report-Recommendation is adopted in its entirety.
II.

DISCUSSION
A. Standard
The Court adopts Magistrate Judge Hummel’s summary of the facts and applicable law

and does not repeat them here. This Court reviews de novo those portions of the Magistrate
Judge’s findings and recommendations that have been properly preserved with a specific
objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. §
636(b)(1)(C). Findings and recommendations as to which there was no properly preserved
objection are reviewed for clear error. Id.
B. Sufficiently Serious Medical Conditions - Objective
In his objections, plaintiff argues that the evidence shows that he had no “knee problems
prior to entering the shock program,” that he suffered knee swelling after entering the shock
program, and that he was asthmatic. Dkt. No. 73, p. 2. Plaintiff’s objection with respect to his
knee condition is irrelevant, however, because Magistrate Judge Hummel found “there exists a
question of fact whether plaintiff’s knee pain was sufficiently serious,” (Dkt. No. 69, p. 14), in
satisfaction of the objective element of an Eighth Amendment deliberate indifference to serious
medical needs claim. See Spavone v. New York State Dep’t of Corr. Svcs., 719 F.3d 127, 138 (2d
Cir. 2013) (“The objective component requires that the deprivation be ‘sufficiently serious,’
creating a risk of ‘death, degeneration, or extreme pain.’”) (quoting Salahuddin v. Goord, 467
F.3d 263, 279 (2d Cir. 2006)).

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Further, although Magistrate Judge Hummel found the evidence insufficient to allow a
reasonable factfinder to conclude that plaintiff’s asthma was sufficiently serious, Dkt. No. 69, p.
16, even crediting plaintiff’s assertion in his objections that the deprivation of an inhaler was
sufficient to meet the first, objective element of a deliberate indifference claim, Dkt. No. 73, p. 3,
plaintiff fails to raise a genuine issue of fact as to the second, subjective element of the claim.
Spavone, 719 F.3d at 138 (“The second requirement is subjective: the charged officials must be
subjectively reckless in their denial of medical care.”).
C. Deliberate Indifference – Subjective
In his objections, plaintiff asserts that when he spoke with Captain Anson on November
12, 2010, 2 Captain Anson “acknowledged the swelling on the knee when the plaintiff rolled up
his pants and revealed. . . the injury on his left knee.” Dkt. No. 73, p. 4. Plaintiff contends that he
asked Captain Anson to discharge him “from the shock program in order to receive immediate
medical attention.” Id. Plaintiff asserts that the he has suffered “long term complications . . .
which . . . still affects his left leg and prevents [him] from performing everyday physical labor
duties.” Id.
The subjective element of a deliberate indifference claim requires evidence that “that the
charged official [must] act or fail to act while actually aware of a substantial risk that serious
inmate harm will result.” Spavone, 719 F.3d at 138. “Officials need only be aware of the risk of

2

In his objections, plaintiff states that he made “constant pleas to Anson to be discharged” from
Summit. Dkt. No. 73, p. 4. Plaintiff’s objections, however, are unsworn, and there is no evidence
in the record indicating that his pleas were “constant.” The record indicates that plaintiff
requested to speak to Captain Anson once prior to their Friday, November 12, 2012 meeting and
spoke with officers about seeing Captain Anson the following Monday. Dkt. No. 63-5, p. 45.
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harm, not intend harm.” Id., see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that
to establish deliberate indifference, “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.”).
Plaintiff does not present any evidence from which a reasonable fact finder could
conclude that Captain Anson acted with a “sufficiently culpable mental state.” Salahuddin v.
Goord, 467 F.3d 263, 282 (2d Cir. 2006). Even viewed in the light most favorable to plaintiff,
the evidence shows that Captain Anson’s delay in allowing plaintiff to sign out of the program
was the result of his efforts to persuade plaintiff to remain in the program. Dkt. No. 63-1, p. 3.
Captain Anson explained that his “direction to plaintiff to think over his decision was purely
meant to help plaintiff, since continued participation in the shock treatment program would be to
his benefit and would have shortened his time of incarceration.” Id., see, e.g., Victor v. Milicevic,
361 F. App’x 212, 215 (2d Cir. 2010) (finding summary judgment appropriate where the plaintiff
“failed to demonstrate that Laux was deliberately indifferent to his serious medical needs
because the ten-month delay in receiving a liver biopsy was the result of [the defendant’s] belief
that [the plaintiff] did not meet the Department of Correctional Services’. . . criteria for such a
procedure.”). Though plaintiff stated in his deposition that he expected Captain Anson to “call
[him] back up” on Monday, November 15, Dkt. No. 63-5, p. 42, there is no evidence from which

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a factfinder could conclude that the reason Captain Anson failed to contact plaintiff that day was
deliberate indifference to plaintiff’s serious medical needs. 3
Nor is there evidence that Captain Anson had reason to believe that requiring plaintiff to
remain for the weekend posed a substantial risk of harm. Although plaintiff had reported that his
knee was “building up a lot of inflammation” and “getting wors[e],” and showed Captain Anson
his swollen knee, Captain Anson explained that he nevertheless “directed plaintiff to assess his
situation over the coming weekend before making a decision to quit the program,” because
“plaintiff was medically cleared and had actively participated in physical training” the day of
their meeting and the day before, Dkt. No. 63-1, p. 2. There is therefore no evidence from which
a reasonable fact finder could conclude that Captain Anson had reason to believe that requiring
plaintiff to remain at Summit for the weekend would be “seriously harmful.” Salahuddin, 467
F.3d at 282-83 (finding that although the defendant’s conclusion that that cancelling a biopsy
may have been “unsound,” in the absence of evidence that “any physician ever informed [him]
that it would be harmful to cancel the scheduled . . . biopsy, “the record evidence does not raise a
genuine factual question concerning whether [the defendant] acted with a sufficiently culpable
mental state.”). Thus, plaintiff has failed to raise a genuine issue of material fact as to whether
Captain Anson was deliberately indifferent to his serious medical needs.
The Court has reviewed for clear error the portions of the Report-Recommendation to
which plaintiff has not objected and finds none.

3

Plaintiff’s transport on November 16, 2010, to another facility for a court appearance was an
additional source of delay. Dkt. No. 65, ¶ 37. There is no evidence that this transfer was
attributable to Captain Anson.
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III.

CONCLUSION
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 69) is ACCEPTED and

ADOPTED in its entirety; and it is further
ORDERED that defendant’s motion for summary judgment (Dkt. No. 63) is
GRANTED; and it is further
ORDERED that plaintiff’s claims against John Doe # 1 are DISMISSED without
prejudice for failure to serve that defendant, despite notice of that requirement (Dkt. Nos. 30,
39); and it is further
ORDERED that the complaint (Dkt. No. 2) is DISMISSED and the Clerk of the Court is
directed to close this case; and it is further
ORDERED that a copy of this Memorandum-Decision and Order as well as all
unpublished decisions cited above be served on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 28, 2015

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