Zimmerman v. Former Superintendent Steven Racette et al
Filing
87
DECISION AND ORDER: ORDERED that the Court ACCEPTS and ADOPTS the recommendations in the January 24, 2020 Report-Recommendation and Order, Dkt. No. 83 , for the reasons stated therein. ORDERED that Defendants' motion for partial summary judgme nt, Dkt. No. 68 , is GRANTED, and the following claims are DISMISSED with prejudice: (1) First Amendment retaliation claims against Sgt. Orzech, C.O. Mailloux, Sgt. Randall, C.O. Gadway, C.O. Lee C.O. Beaudette, Sgt. Delisle, C.O. Stickney, and Dr. Adams; (2) First Amendment claim against Librarian Delisle; (3) First Amendment mail tampering claim against Clemons; and (4) Eighth Amendment medical indifference claim against Dr. Gillani. ORDERED that the following defendants are TERMINATED from this action: Dr.Gillani, Dr. Adams, Librarian Delisle, C.O. Mailloux, C.O. Beaudette, C.O. Gadway, C.O. Stickney, and Clemons. Signed by Senior Judge Thomas J. McAvoy on 3/23/2020. {order served via regular mail on plaintiff](nas )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
NICHOLAS ZIMMERMAN,
Plaintiff,
v.
No. 9:17-CV-375
STEVEN RACETTE, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.
Christian F. Hummel, United States Magistrate Judge, for report and recommendation.
Magistrate Judge Hummel issued a Report-Recommendation and Order on January 24,
2020 which addresses Defendants’ motion for partial summary judgment (Dkt. No. 68). See
1/24/20 Rep.-Rec. & Ord. (Dkt. No. 83) (“Rep. Rec.”). Magistrate Judge Hummel
recommends that Defendants’ motion for partial summary judgment be granted and that the
following claims be dismissed with prejudice: (1) First Amendment retaliation claims against
Sgt. Orzech, C.O. Mailloux, Sgt. Randall, C.O. Gadway, C.O. Lee, C.O. Beaudette, Sgt.
Delisle, C.O. Stickney, and Dr. Adams; (2) First Amendment claim against Librarian Delisle;
(3) First Amendment mail tampering claim against Clemons; and (4) Eighth Amendment
medical indifference claim against Dr. Gillani. Rep. Rec. at 71-72. Magistrate Judge
1
Hummel also recommends that the following defendants be terminated from this action: Dr.
Gillani, Dr. Adams, Librarian Delisle, C.O. Mailloux, C.O. Beaudette, C.O. Gadway, C.O.
Stickney, and Clemons. Id. at 72. Plaintiff filed objections to these recommendations. Pl.
Obj., Dkt. No. 86.
II.
STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged, 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.” See 28 U.S.C. §
636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997)(The
Court must make a de novo determination to the extent that a party makes specific
objections to a magistrate's findings.). “[E]ven a pro se party's objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a second bite at the apple by simply
relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2 (S.D.N.Y.,
Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v. 7-Eleven, Inc.,
662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Fisher v. Miller, No.
916CV1175GTSATB, 2018 WL 3854000, at *3 (N.D.N.Y. Aug. 14, 2018)(“[W]hen an
objection merely reiterates the same arguments made by the objecting party in its original
papers submitted to the magistrate judge, the Court subjects that portion of the
2
report-recommendation challenged by those arguments to only a clear error review.”);
Alaimo v. Bd. of Educ., 650 F. Supp. 2d 289, 291 (S.D.N.Y. 2009)(same); Chime v. Peak
Sec. Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015)(same). After reviewing the
report and recommendation, the Court may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with instructions.”
28 U.S.C. § 636(b)(1)(C).
III.
DISCUSSION
The Court presumes familiarity with Magistrate Judge Hummel's Report-
Recommendation and Order. To the extent Plaintiff makes general objections to the report
and recommendation, the Court finds no clear error and therefore these general objections
are overruled. The majority of Plaintiff's other objections appear to be re-arguments that
were presented to Magistrate Judge Hummel and rejected, and the Court considered these
arguments under plain error review and finds none.
To the extent that Plaintiff challenges Magistrate Judge Hummel's recommendations
on the asserted grounds that material questions of fact exist that must be determined by a
jury, Plaintiff fails to recognize - as pointed out by Magistrate Judge Hummel - that on a
motion for summary judgment once the moving party establishes a prima facie basis for
dismissal, the burden shifts to the nonmovant to establish by admissible evidence that a
disputed question of material fact exists. See Rep. Rec. at 35-36. This burden may not be
satisfied by “simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and
3
“[c]onclusory allegations, conjecture, and speculation . . . are insuf ficient to create a genuine
issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998); see Rep. Rec. at 3637.1 Further, although a court must afford a pro se litigant special solicitude, this special
solicitude does not exempt a pro se litigant from compliance with relevant rules of
procedural and substantive law. Rep. Rec. at 37. It is also important to note that the
Second Circuit requires courts to examine prisoners' claims of retaliation "with skepticism
and particular care" because prisoner retaliation claims are easily fabricated. Rep. Rec. at
39-40.
Plaintiff's argument that a question of fact exists as to whether all seven of his bags
of property were transferred from Attica Correctional Facility to Clinton Correctional Facility
on April 17, 2014, and whether at least one of his bags was hidden and later accessed by
Clinton staff to obtain incriminating evidence against him, is insufficient. Obj. 2-6, 9. His
contention that the defendants lied that the bags were transmitted in three parts is a broad
conclusory allegation insufficient to contest the Defendants’ properly supported contentions
to the contrary. See e.g., Dkt. 68-31. Similarly, Plaintiff presents nothing other than a broad
1
Magistrate Judge Hummel wrote after discussing Matsushita and Kerzer:
A party opposing summary judgment is required to submit admissible evidence. See Spiegel
v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (“It is well established that in determining the
appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible
evidence.”) (internal quotation marks and citation omitted); see also Schwapp v. Town of
Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“[A]ffidavtis must be based upon concrete
particulars, not conclusory allegations.” (internal quotation marks and citation omitted)).
“Statements that are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196
F.3d 435, 452 (2d Cir. 1999). “‘The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.’” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.
2005) (brackets omitted) (quoting Anderson, 477 U.S. at 252).
Rep. Rec. at 36-37 (emphasis added by Magistrate Judge Hummel).
4
conclusory allegations that C.O. Gadway went to a hidden bag to obtain incriminating
evidence against him. Obj. at 9. Further, Plaintiff's objection to Magistrate Judge Hummel's
"findings that Gadway’s violation of media review guidelines was unsupported and
previously denied by court (pg. 52)" as being "a lie," Obj. at 10, misunderstands Magistrate
Judge Hummel's finding. In footnote 12 on page 52, Magistrate Judge Hummel wrote:
Plaintiff also appears to allege that C.O. Gadway violated his constitutional
rights by confiscating certain items of his property because “the mailroom and
Media Review Committee allowed [him] to possess them,” and by failing to
submit the confiscated items to the Media Review Committee. Dkt. No. 14-1
at 13 ¶ 20. His claims in this regard are conclusory in that they are
unsupported by any record evidence and, therefore, do not defeat defendants’
motion for partial summary judgment. See Kerzer v. Kingly Mfg., 156 F.3d
396, 400 (2d Cir. 1998). To the extent plaintiff alleges that C.O. Gadway
violated DOCCS media review procedures, such claims were previously
dismissed by the Court’s November 2017 Order on initial review. See Dkt. No.
17 at 55-56, 60.
Rep. Rec. at 52, n. 12.
Magistrate Judge Hummel did not find that C.O. Gadway’s violation of Media Review
Guidelines was unsupported but rather that, even if C.O. Gadway’s conduct violated the
Media Review Guidelines this conduct did not arise to a constitutional violation. Indeed, this
was precisely the determination made by the Court in the November 2017 Order on initial
review that Magistrate Judge Hummel referenced in footnote 12. Plaintiff's objection in this
regard is without merit and is overruled.
Plaintiff’s objections to Magistrate Judge Hummel's recommendation to dismiss
certain claims based upon Plaintiff's unsupported belief as to what actually occurred with
regard to his bags and as to what material he possessed in his cell, see Obj. at 2-6, 8-9, are
insufficient and overruled. The Court adopts Magistrate Judge Hummel's recommendations
relative to dismissal of the First Amendment retaliation claims against Sgt. Orzech, C.O.
5
Mailloux, and C.O. Gadway for the reasons stated in the Report Recommendation at pages
40-45 and 50-52.
Plaintiff's argument that he was denied due process because he did not receive his
property from his transferred bags in a timely fashion, Obj. at 5, was not presented to
Magistrate Judge Hummel and will not be considered on these objections. See Monroe v.
Kocienski, No. 9:17-CV-1050 (GTS/DEP), 2019 WL 409412, at *2 (N.D.N.Y. Feb. 1,
2019)(“[A] district court will ordinarily refuse to consider argument that could have been, but
was not, presented to the magistrate judge in the first instance.”)(citing Zhao v. State Univ.
of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) ("[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge's report and recommendation that could have been raised before the magistrate but
were not.") (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.
Supp.2d 311, 312-13 (W .D.N.Y. 2009) ("In this circuit, it is established law that a district
judge will not consider new arguments raised in objections to a magistrate judge's report
and recommendation that could have been raised before the magistrate but were not.")
(internal quotation marks omitted)); Charlot v. Ecolab, Inc., 97 F. Supp. 3d 40, 51 (E.D.N.Y.
2015)("[A] district court generally will not consider new arguments raised for the first time in
objections to a magistrate judge's report and recommendation that could have been raised
before the magistrate but were not.")(citing cases); Santiago v. City of New York, No.
15-cv-517, 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016), aff'd, 697 F. App'x 36 (2d
Cir. Sept. 6, 2017) ("[C]ourts ordinarily refuse to consider arguments, case law and/or
evidentiary material which could have been, but was not, presented to the magistrate judge
6
in the first instance.")(quotations and citation omitted)).
Despite being allowed discovery in this matter, Plaintiff offers only a broad conclusory
allegation to counter Sgt. Orzech's sworn statement that he did not damage a CD by putting
a staple thru it. See Obj. at 13 ("What do you think he gonna [sic] say? That he did it? Yeah
right! Orzech was last [sic] person in possession of the CD and I have a letter from a
witness that says a staple was in it when they got it. So unless the Post Office did it, it was
Orzech!"). Plaintiff's objection on this ground is overruled.
Plaintiff’s broad conclusory allegations, Obj. at 7, also do not overcome Defendants’
evidence that 13 Cell is “a cell in normal use in Unit-14 SHU and is regularly maintained,”
Dkt. No. 68-32 at ¶ 6, that Plaintiff was “afforded the opportunity for additional cleaning
supplies Tuesdays, Thursdays, and Saturdays weekly” if he was unhappy with the
cleanliness of his cell, id., and that he was placed in 13 Cell based upon his behavior and
cell availability. See Rep. Rec. at 45-46. 2 Furthermore, Plaintiff does not overcome
2
Plaintiff asserts in his objections that he has a recorded conversation between himself and Randall
that allegedly indicates that his behavior did not warrant being placed in 13 Cell. See Obj. at 7. To the extent
this references a DVD that Plaintiff claims to have that shows his interactions with correction officers in the
property area, Magistrate Judge Hummel notes that Plaintiff stated that he could controvert Defendants’
assertion that he became aggressive in the property area but that “no such evidence has been submitted to
the Court as of the filing of plaintiff’s opposition on July 22, 2019; the deadline for filing opposition papers has
expired; and plaintiff’s general disagreement with defendants’ documentary evidence fails to raise a genuine
issue of material fact.” Rep. Rec at 44. To the extent that Plaintiff's objection is based upon the same DVD,
or is based on a different recording that was not presented to the magistrate judge, this evidence will not be
considered on the objection. See Monroe, 2019 WL 409412, at *2(“[A] a district court will ordinarily refuse to
consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first
instance.”). "[F]or the district judge to review new evidence or arguments would reduce the magistrate's
work to something akin to a meaningless dress rehearsal," Michalow v. East Coast Restoration & Consulting
Corp., No. 09-cv-5475, 2018 WL 1559762, at * 6 (E.D.N.Y. Mar. 31, 2018)(quotations and citation omitted),
and would frustrate the congressional objective behind § 636(b)(1) which is intended to alleviate the
congestion of litigation in the district courts. Cf. U.S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“[T]o construe
§ 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the
magistrate’s credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes:
1983 Addition (“The term ‘de novo’ does not indicate that a secondary evidentiary hearing is required.”)).
7
Magistrate Judge Hummel's alternative basis to dismiss the First Amendment retaliation
claim against Sgt. Randall. See Rep. Rec. at 46-49. Accordingly, the objections in this
regard are overruled and the Court adopts Magistrate Judge Hummel's recommendation to
dismiss the First Amendment retaliation claim against Sgt. Randall. Id.
As to Plaintiff’s claims against C.O. Lee, Plaintiff's contention that C.O. Lee had no
basis for a cell shield order because Plaintiff said that he was going to "verbally violate"
C.O. Lee as opposed to violate him in some physical sense is of no moment because
Magistrate Judge Hummel found that there was nothing in the record to indicate C.O. Lee
was responsible for the shield order. Rep. Rec. at 54. Plaintiff's conclusory and
unsupported contention to the contrary, see Obj. at 10 ("Lee was directly responsible for
the cell shield order because he requested it and provided the false information to obtain
it.") is insufficient to satisfy Plaintiff's burden on the summary judgment motion. See Rep.
Rec. at 54.3 Likewise, there is no basis to find that C. O. Lee issued a retaliatory false
misbehavior report because Plaintiff admits that he said he was going to "violate" C.O. Lee.
Whether this was a contention that he would verbally violate C.O. Lee or violate Lee is
some other sense still provides a basis to conclude that Plaintiff threatened C.O. Lee.
Plaintiff’s objection based upon the nomenclature of his threat does not create a material
issue of fact warranting denial of the motion in this regard.
Furthermore, Plaintiff does not overcome Magistrate Judge Hummel's conclusion that
3
(“[T]he record evidence establishes only that (1) plaintiff was placed in a cell with a shield after C.O.
Lee informed his area supervisor of plaintiff’s threatening statements; (2) Sgt. Delisle and Sgt. Orzech
recommended renewing the shield order on three separate occasions because “monitoring indicate[d] that
the threat to staff . . . ha[d] not lessened” and “continuation of th[e shield] order for staff protection [wa]s
warranted at th[ose] time[s]”; and (3) the shield order was authorized by higher ranking Clinton personnel.
Dkt. No. 14-4 at 46, 47, 48.”)
8
C.O. Lee's conduct in issuing July 12, 2015 misbehavior reports caused no adverse action
as required to satisfy the second element of a First Amendment retaliation claim because
Plaintiff suffered no harm as a result. Rep. Rec. at 56-57. Accordingly, Plaintiff's objection
in this regard is overruled.
Regarding the claim that C.O. Lee retaliated against Plaintiff by destroying his books
and papers, Magistrate Judge Hummel wrote:
[D]efendants have established that the property C.O. Lee confiscated from
plaintiff’s cell during the June and July 2015 cell searches was destroyed in
September 2015 pursuant to DOCCS Directive #4911 because the visitor
plaintiff selected to receive that property never visited the facility within the
specified time-frame—not out of retaliation for plaintiff filing his May 2015
grievance. See Dkt. No. 14-5 at 16, 17. Indeed, plaintif f signed the
Authorization for Disposal of Personal Property form on August 14, 2015,
which explicitly provided that “[t]he items [would] be held a maximum of 14
days pending arrival of a visitor,” and plaintiff did not select an alternative
choice for disposition of his property in the event the visitor did not accept his
property. Dkt. No. 68-28 at 1. Therefore, defendants have established that
plaintiff’s excess magazines and books would have been destroyed regardless
of any retaliatory motive.
Rep. Rec. at 53 (case citations omitted). Plaintiff’s conclusory allegation that "it does not
matter which visitor showed up on his visit because the package room said they had no
packages for me to send out anyway! Lee had already destroyed everything!" is insufficient
to overcome the evidence submitted by the Defendants and relied upon by Magistrate
Judge Hummel in rejecting this claim. The objection in this regard is overruled.
Plaintiff's objection to Magistrate Judge Hummel's determination regarding the First
Amendment retaliation claim against C.O. Beaudette is overruled. See Obj. at 11.
Magistrate Judge Hummel correctly determined that C.O. Beaudette’s actions resulted in de
minimus deprivations to Plaintiff, and that 7 N.Y.C.R.R. § 113.16 prohibits an inmate for
9
processing stamps in excess of $22.50 in value. See Rep. Rec. at 57-59. Plaintiff’s
objections in this regard are overruled.
Plaintiff's objections to Magistrate Judge Hummel's determination regarding the First
Amendment retaliation claims against Sgt. Delisle and C.O. Stickney are overruled.
Regardless of whether Plaintiff had a First Amendment right to "publish and promote [his]
book, [his] website, [his] literature, [his] company, and the Clean up the Clinton SHU
Campaign," Obj. at 11, he “admitted at his deposition to engaging in the unauthorized
operation of several businesses while incarcerated.” Rep. Rec. at 60. (citing Dkt. No. 68-13
at 19-20). Thus, there was a legitimate basis to dismiss the operative claims against Sgt.
Delisle and C.O. Stickney.
Plaintiff's objection to the magistrate judge's recommendation regarding the First
Amendment retaliation claim against Dr. Adams is overruled. After the Court's initial review
of Plaintiff’s Amended Compliant, it found that the only claim that survived against Dr.
Adams was a First Amendment retaliation claim. See Dkt. No. 17 at 60-61. In addressing
this claim, Magistrate Judge Hummel wrote:
[I]t is unclear whether plaintiff even bases his First Amendment retaliation
claim against Dr. Adams on his filing of grievances against Dr. Adams, as he
explicitly argues that Dr. Adams refused him medical treatment “based largely
(or probably solely) on [his] refusal to discuss [his] case [concerning Sing
Sing] with him.” Dkt. No. 14-1 at 26 ¶ 36. However, even assuming plaintiff
does premise his retaliation claim against Dr. Adams on his
constitutionally-protected conduct of filing grievances against him, see Davis,
320 F.3d at 352-53, defendants are still entitled to summary judgment.
Plaintiff’s own documentary evidence establishes that, contrary to his
contention, Dr. Adams did, in fact, examine plaintiff and proscribe various
medications to treat his skin condition, including “Hydrocortisone,
Fluocinonide[,] and Clindamyacin.” Dkt. No. 14-5 at 9; Dkt. No. 14-4 at 68. In
addition, plaintiff’s documentary evidence establishes that Dr. Adams
“determined that an electric shaver and Magic Shave [we]re not medically
indicated” and that there was “no medical indication for medical boots.” Dkt.
10
No. 14-5 at 8; Dkt. No. 14-4 at 68. Dr. Adams’ declaration, in which he states
that his “denial of plaintiff’s requests for medical boots, lotion, blood pressure
and other medications was based on [his] professional evaluation of
[p]laintiff’s medical needs”; that “[i]n [his] estimation, the boots and
medications requested were unnecessary”; and that he “never . . . with[e]ld
medications as a means of retaliation for [plaintiff’s] filing of grievances,”
corroborates plaintiff’s documentary evidence. Dkt. No. 68-14 at 2 ¶¶ 6, 8.
Plaintiff’s conclusory allegations to the contrary, including that the skin
prescriptions do not work, see Dkt. No. 14-1 at 29 ¶ 38, fail to raise a genuine
issue of material fact, are unsupported by the record, and amount only to a
personal disagreement with Dr. Adams’ treatment based on his professional
medical judgment—which fails to support a constitutional claim. See Chance,
143 F.3d at 703 (“It is well-established that mere disagreement over the
proper treatment does not create a constitutional claim.”). Consequently, it is
recommended that plaintiff’s First Amendment retaliation claim against Dr.
Adams be dismissed.
Rep. Rec. at 63-64.
Plaintiff objects to this recommendation because, he contends, he " never said
anything about grievances," and "said it was because [Plaintiff] wanted to talk to [Dr.
Adams] about [Plaintiff’s] case." Obj. at 12. Plaintiff asserts that "Adams only prescribed
the medications in question after three complaints and it was the wrong medication! [sic]"
Id. He argues that a jury "needs to decide if Dr. Adams [sic] actions is [sic] that of a normal
doctor or acceptable standards of practice." Id. Plaintiff's objection is merely a re-argument
of that presented to and rejected by Magistrate Judge Hummel, and supports the magistrate
judge's conclusion that Plaintiff fails to raise a viable constitutional claim because his claim
amounts only to a personal disagreement with Dr. Adams’ treatment based on Dr. Adams’
professional medical judgment. Plaintiff's objection in this regard is overruled.
Plaintiff asserts in conclusory fashion that Defendant Clemons did not obtain a valid
mail watch order and that such an order “doesn't even state what the probable cause is."
Obj. at 12. However, this conclusory contention does not overcome Magistrate Judge
11
Hummel's finding that “defendants establish through admissible evidence [that] Clemons did
obtain a 60-day mail watch order for all of plaintiff’s incoming and outgoing non-privileged
correspondence, which Supt. Kirkpatrick approved on December 9, 2016.” Rep. Rec. at 65
(citing Dkt. No. 68-16 at 2 ¶ 7). For reasons discussed above regarding Plaintiff's burden in
opposing a properly supported motion for summary judgment, this objection is overruled.
As to Plaintiff’s Eighth Amendment medical indifference claim against Dr. Gillani,
Magistrate Judge Hummel wrote:
Upon careful review of the evidence, the undersigned concludes that no
reasonable juror could conclude that Dr. Gillani acted with deliberate
indifference to plaintiff’s serious medical needs. It is undisputed that plaintiff
was placed in the [mental health unit ("MHU")] on April 27, 2014, where he
stayed until May 1, 2015, because he expressed threats of self-harm. See
Dkt. No. 14-1 at 10 ¶ 17; Dkt. No. 68-25 at 3 ¶ 13. Plaintif f told Dr. Gillani
“[e]very[]day . . . throughout [his] stay” in [MHU] that he “would commit suicide
if [he] was forced to go back to 13 Cell and live under such inhumane
conditions.” Dkt. No. 14-1 at 10 ¶ 17; see Dkt. No. 68-13 at 39. Thus,
plaintiff’s stated intention to commit suicide establishes the objective element
of the deliberate medical indifference test. See Allah, 2010 WL 5860290, at
*8.
As defendants argue, however, the record establishes that Dr. Gillani did not
act with deliberate indifference. See Dkt. No. 68-3 at 13-14. Dr. Gillani’s
sworn declaration and treatment notes establish that he conducted an
evaluation of plaintiff on May 1, 2014, and concluded that plaintif f was not
suffering from any psychiatric illness, but rather, exhibiting an
“environment-related agenda” designed at being “released from the SHU” and
“that plaintiff’s complaints did not stem from mental illness, but rather, were
calculated toward an effort to be released from his confinement in the SHU.”
Dkt. No. 68-25 at 3 ¶¶ 23-25. Dr. Gillani based his conclusion on num erous
factors, including that he had been informed that plaintiff had not engaged in
self-harming behavior prior to his April 2014 transfer to MHU, his statements
to Dr. Gillani that he did not wish to return to SHU and that he would prefer to
return to general population to use the law library, and his denial of having
suicidal ideas. See id. at 3 ¶¶ 15-16, 19. Dr. Gillani also observed that
plaintiff had been eating and sleeping normally, denied having psychotic or
anxiety symptoms, and had a history of engaging in “self-harming gestures”
but no history of in-patient psychiatric treatment. Id. at ¶ 21; see id. at ¶¶ 17,
19. Dr. Gillani’s May 1, 2014 conclusions are bolstered by plaintiff’s
12
deposition testimony in which he stated that, “[a]t one point, [he] couldn’t take
the smell [of 13 Cell] so [he] attempted suicide to get out of the cell so that
they going to move [him] to [MHU] so that [he] didn’t . . . have to take the smell
inside of [13 C]ell.” Dkt. No. 68-13 at 23. Moreover, consistent with Dr.
Gillani’s analysis, following his release back to SHU, on May 5, 2014, plaintiff
alleges only that he engaged in the self-harming gesture of “fixing a noose
around [his] neck,” but does not allege in his Amended Complaint that he
engaged in any actual suicide attempt on that date. See Dkt. No. 14-1 at 10 ¶
17. Based on the foregoing, “deliberate indifference cannot be inferred” from
Dr. Gillani’s decision to discharge plaintiff back to SHU on May 1, 2015, as the
evidence before the Court does not establish that his decision “was . . . such a
substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that [Dr. Gillani] did not base [his] decision on
such a judgment.” Sims, 2012 WL 566875, at *6.
Moreover, plaintiff’s allegations, made for the first time at deposition, that he
made two suicide attempts shortly after being examined by Dr. Gillani on two
unspecified occasions, are uncorroborated by the record and do not defeat
defendants’ properly supported motion for partial summary judgment as to his
Eighth Amendment medical indifference claim. See Dkt. No. 68-13 at 30,
37-42. Plaintiff’s deposition testimony that he actually attempted suicide by
hanging on two occasions is wholly self-serving and directly contradicts the
allegations made in the Amended Complaint, which state only that he
“became suicidal,” expressed “suicidal plans and ideations” prior to being
admitted to MHU in April 2014; “fix[ed] a noose to his neck” after being
released on March 5, 2014; and that he “told [Dr.] Gillani of [his] suicidal plans
if [he] returned to 13 Cell.” Dkt. No. 14-1 at 10 ¶ 17, 66 ¶ 95 (internal
quotation marks omitted). Indeed, when asked whether he “kn[e]w the dates”
of his two suicide attempts, plaintiff responded “I don’t. They’re listed in the
complaint.” Dkt. No. 68-13 at 30. However, no such dates or events are
mentioned in the Amended Complaint, and the record is devoid of any
evidence corroborating these belated and self- serving allegations. See Dkt.
No. 14-1 at 10-11 ¶ 17, 66 ¶ 95. Thus, although plaintiff’s pro se submissions
are to be construed to raise the strongest arguments they suggest, a party
opposing summary judgment “may not rely merely on allegations . . . in its own
pleading; rather, it[] must . . . set out specific facts showing a genuine issue for
trial.” Green v. Gunn, No. 06-CV-6248 (CJS), 2009 WL 1809932, at *5
(W.D.N.Y. June 24, 2009) (internal quotation marks and citation omitted).
Plaintiff has failed to make such a specific factual showing to raise a genuine
issue for trial concerning Dr. Gillani’s conduct. Accordingly, it is recommended
that plaintiff’s Eighth Amendment deliberate medical indifference claim against
Dr. Gillani be dismissed.
Rep. Rec. at 68 -71.
13
In his objections addressed to this claim, Plaintiff argues first that "even if Gillani
concluded on May 1, 2014, that I was not suffering from any psychiatric illness, but rather
exhibiting an environment-related agenda, he still should not have set me back to the SHU
to kill myself! I don't know any other doctor that would, except the ones that work for MHU of
course!” Obj. at 13. This objection is based upon a disagreement with Dr. Gillani's medical
opinion and does provide a sufficient basis to reject Magistrate Judge Hummel's
recommendation.
Plaintiff argues next that Dr. Gillani's affidavit "is not acceptable because it is based
on third-party hearsay” that he had been informed that Plaintiff had not engaged in selfharming behavior prior to his April 2014 transfer to MHU. Medical opinions are often based
upon the representations of third parties as to a patient's conduct or exhibition of symptoms,
and as Magistrate Judge Hummel indicates, Dr. Gillani's opinion was based upon a number
of factors including what Plaintiff himself told the doctor about his aversion to returning to 13
Cell in the SHU, and Dr. Gillani's observation that Plaintiff had been eating and sleeping
normally, denied having psychotic or anxiety symptoms, and had a history of engaging in
self-harming gestures but no history of in-patient psychiatric treatment. The reference to
third-party representations was not the central basis of Dr. Gillani's opinion and is not a
basis to reject that opinion or Magistrate Judge Hummel's recommendation to dismiss this
claim based on Plaintiff's failure to demonstrate deliberate indifference related to the
decision to discharge Plaintiff back to SHU on May 15, 2015. Plaintiff's current contention
that he never told Dr. Gillani that he was not having suicidal ideations, or that he was eating
and sleeping normally, appear to be issues raised for the first time in the objections and
therefore failed to provide a sufficient basis to reject the magistrate judge's thorough
14
opinion. Moreover, as Magistrate Judge Hummel stated, Dr. Gillani concluded that Plaintiff
was not suffering from any psychiatric illness and had no history of in-patient psychiatric
treatment, but rather was exhibiting an "environment-related agenda" designed to avoid
being released from the MHU to the SHU. Further, as also stated by the magistrate judge,
Dr. Gillani’s May 1, 2014 conclusions are bolstered by Plaintiff’s deposition testimony in
which he stated that, “[a]t one point, [he] couldn’t take the sm ell [of 13 Cell] so [he]
attempted suicide to get out of the cell so that they going to move [him] to [MHU] so that
[he] didn’t . . . have to take the smell inside of [13 C]ell.” Dkt. No. 68-13 at 23. Moreover,
consistent with Dr. Gillani’s analysis, following his release back to SHU on May 5, 2014,
Plaintiff alleges only that he engaged in the self-harming gesture of “fixing a noose around
[his] neck,” but does not allege in his Amended Complaint that he engaged in any actual
suicide attempt on that date. Plaintiff’s current contention that he was "depressed and
suicidal out of mind" does not provide a sufficient basis to conclude that the magistrate
judge should have rejected Dr. Gillani's opinion and found that Dr. Gillani acted with
deliberate indifference to Plaintiff’s well-being. Plaintiff's objections in this regard are
overruled.
IV.
CONCLUSION
For the reasons discussed above, the Court ACCEPTS and ADOPTS the
recommendations in the January 24, 2020 Report-Recommendation and Order, Dkt. No.
83, for the reasons stated therein. Thus, it is hereby
ORDERED that Defendants’ motion for partial summary judgment, Dkt. No. 68, is
GRANTED, and the following claims are DISMISSED with prejudice: (1) First Amendment
15
retaliation claims against Sgt. Orzech, C.O. Mailloux, Sgt. Randall, C.O. Gadway, C.O. Lee,
C.O. Beaudette, Sgt. Delisle, C.O. Stickney, and Dr. Adams; (2) First Amendment claim
against Librarian Delisle; (3) First Amendment mail tampering claim against Clemons; and
(4) Eighth Amendment medical indifference claim against Dr. Gillani, and it is further
ORDERED that the following defendants are TERMINATED from this action: Dr.
Gillani, Dr. Adams, Librarian Delisle, C.O. Mailloux, C.O. Beaudette, C.O. Gadway, C.O.
Stickney, and Clemons.
IT IS SO ORDERED.
Dated: March 23, 2020
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?