Cruz v. Gordon et al
MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Dancks' October 6, 2014 73 Report-Recommendation and Order is ADOPTED in its entirety for the reasons stated therein. ORDERED that Defendant Lipka's 54 motion for summary judgment is GRANTED. ORDERED that Defendant Lipka is DISMISSED from this action. Signed by U.S. District Judge Mae A. D'Agostino on 2/6/15. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
A. GORDON, et al.,
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff, pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorney for Defendants
GREGORY J. RODRIGUEZ, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Pro se plaintiff, Edwin Cruz, is an inmate currently in custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”). Plaintiff commenced this
prisoner civil rights action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his
Eighth Amendment rights by acting with excessive force and deliberate indifference to his
medical needs. See Dkt. No. 1. In an October 6, 2014 Report-Recommendation and Order,
Magistrate Judge Thérèse Wiley Dancks recommended that the Court grant Defendant Kimberly
Lipka’s motion for summary judgment. See Dkt. No. 73. On October 17, 2014, Plaintiff objected
to Magistrate Judge Dancks’ Report-Recommendation and Order. See Dkt. No. 76. Currently
before the Court is Defendant Lipka’s motion for summary judgment.
On January 19, 2011, while imprisoned at Great Meadow Correctional Facility, Plaintiff
and another inmate had a "heated verbal exchange,” which quickly escalated into a physical fight.
Dkt. No. 1 at ¶¶ 4,9. Defendant correctional officers A. Gordon, J. Burch, D. Huse, D. Hood, and
John Doe #1 responded to the altercation. Id. at ¶ 10. Plaintiff alleges that, upon arrival,
Defendants immediately began assaulting the combatants “with kicks, punches, and batons.” Id.
Defendants then handcuffed both inmates around their wrists and ankles, and proceeded to beat
them all the way to the facility hospital; once at the facility hospital, Defendants allegedly
continued their assault on Plaintiff. Id. at ¶¶ 11-12.
After the incident occurred, Defendant Nurse Kimberly Lipka conducted a brief medical
examination of Plaintiff. See Dkt. No. 54-1. Defendant Lipka noted slight swelling and bruising
on Plaintiff’s upper right forehead and left ear, cleaned Plaintiff’s bloody nostrils, and then
referred Plaintiff to a Physician Assistant (“P.A.”) for further assessment of his injuries. Id. at ¶
8. Defendant Lipka contends that, consistent with protocol, she did not provide Plaintiff with any
pain medication pending P.A. Nesmith’s evaluation in order to avoid any complications that may
arise from giving such medication (i.e. need of surgery, internal bleeding). See Dkt. No. 54-1 at ¶
5. Plaintiff alleges, however, that his repeated complaints of head pain should have been
addressed, and that some of his injuries were not documented or treated. See Dkt. No. 54-5 at 35;
Dkt. No. 1 at ¶ 13. Plaintiff claims that Defendant Lipka did not document the cuts on his wrists
and ankles due to the handcuffs, his swollen nose, or the bruises on his back and legs “due to
batons.” Id. at ¶ 14. P.A. Nesmith ordered x-rays for Plaintiff’s spine and facial structure; the xray results were negative for fractures, but Plaintiff claims he suffers hearing loss from the
incident. Dkt. No. 54-1 at ¶ 10; Dkt. No. 1 at ¶¶ 18-19. After Plaintiff was referred to P.A.
Nesmith, Defendant Lipka did not render any further medical care to Plaintiff. Dkt. No. 54-1 at ¶
In a letter dated January 30, 2011, Plaintiff described what happened and expressed his
fears of reporting the incident: "[t]he officers . . . assaulted [Plaintiff], by clubbing, punching and
kicking [him] into unconsciousness. . . [T]he officers threatened to kill [him] if [he] reported the
incident." See Dkt. No. 54-2 at 35. Plaintiff also stated that he felt unsafe at the facility, and that
he feared for his life. Id. Despite his apprehensions, on February 10, 2011, Plaintiff filed a
grievance against the correctional officers for the use of force incident that occurred on January
19, 2011. See Dkt. No. 54-2 at 22-24. Plaintiff's grievance was assigned grievance number GM
51,347-11. Dkt. No 54-2 at ¶ 10. On March 18, 2011, Plaintiff’s grievance was denied because
there was “absolutely no evidence to support the allegations in this case.” See Dkt. No. 54-2 at
25. Plaintiff appealed the decision because the officers “admit[ted] . . . [t]hey use[d] force [i]n the
incident against [Plaintiff]." Id. at 31. On June 15, 2011, the Central Office Review Committee
(“CORC”) denied Plaintiff’s appeal. Id. at 21. Plaintiff never filed a formal grievance against
Defendant Lipka. Dkt. No. 54-2 at ¶ 11-12.
Plaintiff filed his complaint on January 9, 2013, naming A. Gordon, J. Burch, D. Huse,
Hood, John Doe #1, and Nurse Lipka as defendants. See Dkt. No. 1. Defendant Lipka currently
moves for summary judgment. See Dkt. No. 54. Plaintiff opposes the motion. See Dkt. No. 62;
Dkt. No. 67.
Magistrate Judge Dancks’ Report-Recommendation and Order
On October 6, 2014 Magistrate Judge Dancks issued a Report-Recommendation and
Order in which she recommended granting Defendant Lipka’s motion for summary judgment.
See Dkt. No. 73. Defendant Lipka moved for summary judgement on (1) failure to exhaust
administrative remedies, (2) failure to establish deliberate indifference, and (3) qualified
immunity. See Dkt. No. 54-4. Only the first issue was addressed because it is dispositive. See
Dkt. No. 73. Magistrate Judge Dancks agreed with Defendant Lipka that the claims against her
must be dismissed because Plaintiff failed to exhaust his administrative remedies as required by
the Prison Litigation Reform Act (“PLRA”) prior to commencing this action. Id.
On October 17, 2014, Plaintiff objected to the Report-Recommendation and Order,
alleging that his grievances did, in fact, include statements about how "medical [did] not giv[e]
[Plaintiff] any medication for the pain that he was in, arising from that incident." See Dkt. No.
76. Plaintiff argues that, at the time he filed his grievances, he did not know Defendant Lipka's
name; he only knew the department she worked in, which was "medical." Id. Plaintiff contends
that, for this reason, he has successfully exhausted his administrative remedies against Defendant
Lipka consistent with the requirements of the PLRA. Id.
Standard of Review
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 or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).
However, when a party files "[g]eneral or conclusory objections 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).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
warranted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The initial burden of
showing that no genuine issue of material fact exists, through the production of admissible
evidence, lies with the party moving for summary judgment. Salahuddin v. Goord, 467 F.3d 263,
272-73 (2d Cir. 2006). Once the moving party has met its burden, the nonmoving party must
produce evidence demonstrating that genuine issues of material fact remain in dispute. Id. at 273.
A material fact is genuinely in dispute “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Finally, granting summary judgment is only justified when the court finds that no reasonable trier
of fact could rule in favor of the non-moving party. Bldg. Trades Employers’ Educ. Ass’n v.
McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002).
"[I]n 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, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). "However, 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
Defendant Lipka argues the claims against her must be dismissed because Plaintiff failed
to exhaust all administrative remedies available to him as required by the PLRA. See Dkt. No.
54-4. Under the PLRA, “[n]o action shall be brought with respect to prison conditions under
section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facilitiy until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s
exhaustion requirement is applicable in this case because it “applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). In
order to correctly exhaust administrative remedies under PLRA, the inmate must complete the
administrative review process in accordance with the rules applicable to the particular institution
in which he is confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548
U.S. 81, 88 (2006)). In New York state prisons, the Department of Corrections and Community
Supervision (“DOCCS”) has a well-established three-step inmate grievance program. See N.Y.
Comp. Codes R. & Regs. tit. 7, § 701.5 (2013).
In general, the DOCCS Inmate Grievance Program (“IGP”) involves the following
procedure for filing grievances. First, an inmate must file a complaint with the facility's IGP clerk
within twenty-one calendar days of the incident. Id. at § 701.5(a). Upon receipt of the grievance,
a representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen
calendar days to informally resolve the issue. Id. at § 701.5(b)(1). If the matter is not resolved
informally, then the full IGRC must conduct a hearing within sixteen calendar days of receipt of
the grievance, id. at § 701.5(b)(2), and issue a written decision within two working days of the
conclusion of the hearing. Id. at § 701.5(b)(3).
Next, the grievant may appeal the IGRC’s decision to the facility’s superintendent within
seven calendar days. Id. at § 701.5(c)(1). The superintendent must issue a written decision
within twenty calendar days for all grievances that do not involve a DOCCS-wide policy issue.
Id. at § 701.5(c)(3)(ii). Finally, within seven working days of receipt of the superintendent’s
written decision, a grievant may appeal to CORC. Id. at 701.5(d)(1)(i). Upon receipt of the
appeal, CORC has thirty calendar days to issue a written decision. Id. at 701.5(d)(3)(ii).
If a prisoner has failed to properly follow each of the applicable steps prior to
commencing litigation, then he has failed to exhaust his administrative remedies. Woodford, 548
U.S. at 93. Plaintiff concedes that he filed no other grievances besides grievance number GM 51,
347-11: "That's all the grievance that I do about telling what happened with [the correctional
officers], what they do to me. . ." Dkt. No. 54-5 at 52:16-21. Although Plaintiff argues that
grievance number GM 51, 347-11 included an allegation that "medical" failed to provide him
with medication for his pain, a review of GM 51, 347-11 reveals that he made no such statement.
See Dkt. No. 76; Dkt. No. 54-2 at 22-24; Dkt. No. 54-2 at ¶¶ 11-12. Since Plaintiff never filed a
grievance in which he mentioned Defendant Lipka, and made no reference to the medical
department in the grievance he did file, Plaintiff has failed to exhaust his administrative remedies
as to his claim against Defendant Lipka prior to commencing this action.
Plaintiff’s failure to exhaust his administrative remedies, however, does not conclude the
review. The Second Circuit has held that a three-prong analysis is required where a prisoner has
failed to exhaust his available administrative remedies. Hemphill v. New York, 380 F.3d 680,
686, 691 (2d Cir. 2004). First, “the court must ask whether [the] administrative remedies [not
pursued by the prisoner] were in fact ‘available’ to the prisoner.” Id. at 686. Second, if those
remedies were available:
the court should . . . inquire as to whether [some or all of ] the
defendants may have forfeited the affirmative defense of nonexhaustion by failing to raise or preserve it . . . or whether the
defendants’ own actions inhibiting the [prisoner’s] exhaustion of
remedies may estop one or more of the defendants from raising the
plaintiff’s failure to exhaust as a defense.
Id. Third, if the remedies were available and the defendant did not forfeit, and was not estopped
from raising, the non-exhaustion defense, “the court should consider whether ‘special
circumstances’ have been plausibly alleged that justify the prisoner’s failure to comply with the
administrative procedural requirements. Id.
First, the administrative remedies not pursued by Plaintiff were available to him. On
February 16, 2011, Plaintiff filed grievances against the correctional officer Defendants. See Dkt.
No. 54-2 at 22-24. On Apri1 1, 2011, Plaintiff appealed because "the officers admit th[at] they
use[d] force on the incident against [Plaintiff]." Id. at 31. At his deposition, Plaintiff conceded
that he was aware of the grievance procedure prior to pursing the administrative remedies
available to him, but he simply cannot recall whether he ever made allegations against Nurse
Lipka. See Dkt. No. 54-5 at 53: 7-15; Dkt. No. 54-5 at 54:10-22. Plaintiff has not provided any
documentation to support his conclusory statement that he filed a grievance against Nurse Lipka.
Second, Defendant Lipka preserved the exhaustion defense by pleading it in her answer.
See Dkt. No. 34 at ¶ 14. Here, there is no evidence that Defendant Lipka's behavior estops her
from asserting the exhaustion defense. See Ziemba v. Wezner, 366 F.3d 161, 162-164 (2d Cir.
2004) (directing the district court to consider whether the defendants were estopped from raising
the exhaustion defense where the plaintiff alleged that he was beaten, threatened, denied
grievance forms, and transferred to another prison in order to prevent him from seeking
administrative remedies). Finally, as stated above, Plaintiff clearly was not prevented from
exhausting his administrative remedies against the other Defendants as he did, in fact, file
grievances against them. See Dkt. No. 54-2 at 22-24.
Finally, Plaintiff alleges no “special circumstances” that warrant excusing his failure to
comply with the PLRA with regards to Defendant Lipka. First, Plaintiff argued in his opposition
to Defendant Lipka’s motion for summary judgment that he was dissuaded from filing a
grievance against Defendant Lipka by his feelings of "imminent danger.” See Dkt. No. 62 at 2.
Again, this argument fails because Plaintiff’s feelings of imminent danger were not significant
enough to prevent him from filing his grievance against the correctional officer Defendants. See
Dkt. No. 54-2 at 22-24. Next, Plaintiff argues that, because he did not have personal knowledge
of Defendant Lipka's name, he mentioned the “medical department” in his filed grievance. See
Dkt. No. 76. Regardless of whether or not Plaintiff had personal knowledge of Defendant Lipka’s
name, his argument fails because his filed grievance does not include any allegations against the
medical department. See Dkt. No. 54-2 at 22-24.
Plaintiff did not exhaust his administrative remedies against Defendant Lipka in
accordance with the PLRA. Further, as discussed above, the administrative remedies were
available to Plaintiff, Defendant Lipka properly preserved the defense and is not estopped from
asserting it, and no "special circumstances" excuse Plaintiff’s failure to comply. Accordingly, the
Court grants Defendant Lipka’s motion for summary judgment granted.
After carefully reviewing the record in this matter, the parties’ submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Dancks' October 6, 2014 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant Lipka's motion for summary judgment is GRANTED; and the
ORDERS that Defendant Lipka is DISMISSED from this action; 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 Local Rules.
IT IS SO ORDERED.
Dated: February 6, 2015
Albany, New York
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