Triplett v. Ash et al

Filing 111

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Dancks' June 2, 2020 Order and Report-Recommendation (Dkt. No. 110 ) is ADOPTED in its entirety. ORDERS that Defendants' motion for summary judgment (Dkt. No. 93 ) is GRANTED in part and DENIED in part. Signed by U.S. District Judge Mae A. D'Agostino on 6/22/2020. {order served via regular mail on plaintiff}(nas )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
OMAR TRIPLETT, a/k/a The Doctor,
Plaintiff,
vs.

9:17-CV-656
(MAD/TWD)

CHAD ASCH, et al.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

OMAR TRIPLETT
01-A-2100
Marcy Correctional Facility
Post Office Box 3600
Marcy, New York 13403
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

CHRISTOPHER J. HUMMEL, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On June 19, 2017, Plaintiff pro se Omar Triplett ("Plaintiff"), an inmate in the custody of
the New York State Department of Corrections and Community Supervision ("DOCCS"),
commenced this action asserting claims arising out of his previous confinement at the Central
New York Psychiatric Center ("CNYPC"). See Dkt. No. 1. On August 29, 2017, the Court
reviewed the sufficiency of the Complaint, directed certain Defendants to respond, dismissed
certain claims with and without prejudice, and afforded Plaintiff the opportunity to submit an

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amended pleading. See Dkt. No. 12. On November 30, 2018, the Court granted in part Plaintiff's
motion to amend his complaint, and the amended complaint is now the operative pleading. See
Dkt. Nos. 65 & 66. The claims that survived initial review are: (1) Eighth Amendment excessive
force claims against Security Hospital Treatment Assistants ("SHTA") Chad Asch, Mark Martin,
and Teryle Williams; (2) Eighth Amendment excessive force and failure to protect claims against
SHTA Supervisor Kenneth Paparella; and (3) Fourteenth Amendment due process claims against
Dr. Harold Berkheimer, Dr. Luis Hernandez, and Executive Director Maureen Bosco (collectively
"Defendants"). See Dkt. No. 65.
Presently before the Court is Defendants' motion for partial summary judgment of
Plaintiff's amended complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure,
seeking dismissal of Plaintiff's Eighth Amendment claims against Defendant Paparella and
Fourteenth Amendment due process claims against Defendants Berkheimer, Hernandez, and
Bosco. See Dkt. No. 93. Plaintiff filed a response in opposition to Defendants' motion on
December 3, 2019. See Dkt. No. 103. In an Order and Report-Recommendation dated June 2,
2020, Magistrate Judge Thérèse Wiley Dancks recommended that the Court grant in part and deny
in part Defendants' motion. See Dkt. No. 110.
Currently before the Court is Magistrate Judge Dancks's Order and ReportRecommendation.
II. BACKGROUND
For a complete recitation of the relevant factual background, the Court refers the parties to
Magistrate Judge Dancks' June 2, 2020 Order and Report-Recommendation. See Dkt. No. 110 at
2–6.

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III. DISCUSSION
A.

Standard of Review
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36–37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56 (c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely on
the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of New York., 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the
motion for summary judgment "would derogate the truth-finding functions of the judicial process
by substituting convenience for facts").
"Assessments of credibility and choices between conflicting versions of the events are
matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York, 426
F.3d 549, 553–54 (2d Cir. 2005) (quotation omitted). "However, '[t]he mere existence of a
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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.'" Id. at 554 (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (emphasis and alteration in original). "To defeat
summary judgment, therefore, nonmoving parties 'must do more than simply show that there is
some metaphysical doubt as to the material facts,' . . . and they 'may not rely on conclusory
allegations or unsubstantiated speculation.'" Id. (internal quotations omitted).
"[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. 2003) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has directed that the court is obligated to "'make reasonable
allowances to protect pro se litigants'" from inadvertently forfeiting legal rights merely because
they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "This
liberal standard, however, does not excuse a pro se litigant from following the procedural
formalities of summary judgment." Id. (citing Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL
527484, *2 (S.D.N.Y. May 16, 2001)). Specifically, "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 Cary v. Crescenzi, 923 F.2d 18, 21 (2d
Cir. 1991)).
When a party files specific objections to a magistrate judge's report-recommendation and
order, the district court "make[s] 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)(C). However, "[g]eneral or conclusory objections, or objections which merely recite
the same arguments presented to the magistrate judge, are reviewed for clear error." O'Diah v.
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Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (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)(C).
B.

Eighth Amendment Excessive Force and Failure to Protect Claims
Plaintiff alleges that Defendant Kenneth Paparella, a Security Hospital Treatment

Assistant Supervisor, failed to supervise his staff despite knowing there was a pattern of "extreme
abuse and assaults" on Ward 601, and "knowingly and sadistically" placed Plaintiff in harm's way
by returning him to Ward 601 after an incident on June 19, 2014, which allowed a subsequent
assault to occur on June 20, 2014. See Dkt. No. 66 at ¶¶ 34–36. Defendants contend they are
entitled to summary judgment because Plaintiff cannot establish Defendant Paparella's personal
involvement or deliberate indifference. See Dkt. No. 93-4 at 3–4.
Having carefully reviewed Magistrate Judge Dancks' Order and Report-Recommendation,
the parties' submissions, and the applicable law, the Court finds that Magistrate Judge Dancks
correctly determined that the Court should grant Defendants' motion for partial summary
judgment as to Defendant Paparella. First, Magistrate Judge Dancks correctly determined that the
summary judgment record contains no evidence that this Defendant directly participated in, failed
to intervene in, or failed to protect Plaintiff during the alleged incidents of June 19 and June 20,
2014. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Indeed, the record is devoid of
any evidence that this Defendant was even present at CNYPC on June 19 or June 20, 2014 at the
time of either alleged incident. See Dkt. No. 93-2 at ¶¶ 7; Dkt. No. 94 at 97.
Furthermore, the Court finds that Magistrate Judge Dancks correctly determined that there
is no evidence that Defendant Paparella knew of, or failed to remedy, any alleged wrongdoing.
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See Colon, 58 F.3d at 873. Plaintiff relies exclusively on conclusory statements that Defendant
Paparella had knowledge of his situation and has not provided any admissible evidence to support
these contentions. See Cole v. Artuz, No. 93 Civ. 5981, 1999 WL 983876, *3 (S.D.N.Y. Oct. 28,
1999). Moreover, the Court agrees with Magistrate Judge Dancks' determination that there is no
evidence that this Defendant created a policy or custom under which unconstitutional practices
occurred, allowed the continuance of any such policy or custom, was grossly negligent in
supervising subordinates, or exhibited deliberate indifference by failing to act on information. See
Colon, 58 F.3d at 873.
As such, the Court agrees with Magistrate Judge Dancks that Defendant Paparella is
entitled to summary judgment.
C.

Fourteenth Amendment Due Process Claims
Plaintiff alleges Defendants Dr. Harold Berkheimer, Dr. Luis Hernandez, and Executive

Director Maureen Bosco violated his Fourth Amendment due process rights by forcibly
administering psychotropic medication against his will on June 19 and June 20, 2014. See Dkt.
No. 66 at ¶¶ 30–31. Plaintiff also claims that Defendants Berkheimer and Hernandez, with the
authorization of Defendant Bosco, sought and received a court order authorizing his medication
for one year over his objection. See id. at ¶ 32. Defendants contend they are entitled to summary
judgment for lack of personal involvement, on the merits, and under the doctrine of qualified
immunity. See Dkt. No. 93-4 at 12–19.
1. Claims Relating to Treatment on June 19, 2014 and June 20, 2014
Plaintiff contends Defendants Berkheimer, Hernandez, and Bosco violated his due process
rights by forcibly administering psychotropic medication over his objections on June 19 and 20,
2014. See Dkt. No. 66 at ¶¶ 30–31. Having carefully reviewed Magistrate Judge Dancks' Order
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and Report-Recommendation, the parties' submissions, and the applicable law, the Court finds
that Magistrate Judge Dancks correctly determined that the Court should grant Defendants' motion
for summary judgment as to Defendants Hernandez and Bosco with regards to these claims. See
Dkt. No. 110 at 18–19. The Court agrees with Magistrate Judge Dancks that no reasonable jury
could find personal involvement on the part of Defendant Hernandez on either June 19, 2014 or
June 20, 2014 because of the evidence in the summary judgment record, including Defendant
Berkheimer's statements that he prescribed Plaintiff's medication on June 19, 2014, and notations
in the record that Dr. Siddiqi made the decision to treat Plaintiff on June 20, 2014. See id.
Furthermore, the Court agrees with Magistrate Judge Dancks that there is no evidence in the
record that indicates that Defendant Bosco was consulted before the administration of medication,
and Plaintiff does not allege that this Defendant was otherwise involved in his treatment on these
dates. See id.
The Court similarly agrees with Magistrate Judge Dancks' consideration of the claims
against Defendant Berkheimer relating to the treatment of Plaintiff on June 19 and June 20, 2014.
First, Magistrate Judge Dancks correctly determined that the record evidence does not support a
claim against Defendant Berkheimer with regards to the administration of medication on June 20,
2014. See Dkt. No. 110 at 19–20. Second, the Court agrees with Magistrate Judge Dancks that
the record evidence does, however, support a claim against Defendant Berkheimer with regards to
the administration of medication on June 19, 2014. See id. at 20–21. Namely, the record
evidence shows that this Defendant authorized the administration of medication over Plaintiff's
objection, as described in detail in Defendant Berkheimer's declaration. See id.; see also Dkt. No.
94-1 at ¶¶ 5–16.

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As such, the Court grants summary judgment as to Plaintiff's Fourteenth Amendment due
process claims regarding his treatment on June 19 and 20, 2014 for Defendants Hernandez and
Bosco, and Defendant Berkheimer regarding Plaintiff's treatment on June 20, 2014. The Court
denies summary judgment as to Plaintiff's Fourteenth Amendment claim against Defendant
Berkheimer regarding Plaintiff's treatment on June 19, 2014.
2. Claims Relating to Obtaining Court Authorization to Medicate
Plaintiff alleges that Defendants Berkheimer, Hernandez, and Bosco violated his
Fourteenth Amendment due process rights by seeking and receiving a court order authorizing him
to be medicated over his objections for one year. See Dkt. No. 66 at ¶ 32. Defendants contend
that summary judgment is proper because Plaintiff received all of the process to which he was
entitled. See Dkt. No. 93-4 at 15–17. The Court finds that Magistrate Judge Dancks correctly
determined that Defendants are entitled to summary judgment as to these claims. Courts in the
Second Circuit have held that compliance with N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8
("Section 527.8") affords a patient even more process than required by the Constitution. See, e.g.,
Spencer v. Bellevue Hosp., No. 11 Civ. 7149, 2012 WL 1267886, *8–9 (S.D.N.Y. Apr. 12, 2012).
The process followed by these Defendants substantially complied with the relevant CNYPC
policy, which tracks Section 527.8. See Dkt. No. 110 at 23. The Court agrees with Magistrate
Judge Dancks that Plaintiff has provided no evidence rebutting "the presumption of correctness to
which Defendants' decisions are entitled or suggesting their conduct substantially departed from
accepted professional standards," nor has he "produced any evidence supporting his conclusory
allegations that Defendants acted fraudulently in seeking and obtaining the court order." Id. at
23–24. The Court further agrees that the remaining contentions in Plaintiff's opposition papers are
without legal merit. See id. at 24; see also Dkt. No. 103.
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As such, the Court finds summary judgment is appropriate for Defendants Berkheimer,
Hernandez, and Bosco relating to Plaintiff's Fourteenth Amendment due process claims arising
from the court order authorizing his medication over his objection for one year.
3. Qualified Immunity
To the extent that Defendants move for summary judgment for all Fourteenth Amendment
claims based on the doctrine of qualified immunity, the Court will only consider these arguments
for claims that survived the above analysis. See Posr v. City of New York, No. 10 CIV 2551, 2013
WL 2419142, *10 n.8 (S.D.N.Y. June 4, 2013) ("Because [the defendant] did not violate [the]
[p]laintiff's [constitutional] rights, there is no need to consider if [the defendant] is entitled to
qualified immunity"), aff'd sub nom. Posr v. Ueberbacher, 569 Fed. Appx. 32 (2d Cir. 2014).
Magistrate Judge Dancks correctly determined that Defendant Berkheimer is not shielded
by qualified immunity as to the events on June 19, 2014, because of "the clear factual disputes
regarding the incident . . . including who initiated the altercation, whether and to what extent
Plaintiff was violent or struggling, whether Plaintiff ignored all staff direction, and whether
Plaintiff lost consciousness . . . ." Dkt. No. 110 at 21–22. As stated by Magistrate Judge Dancks,
"[i]f a jury were to credit Plaintiff's version of events, it could not be said as a matter of law that
Berkheimer's belief that Plaintiff was dangerous and his decision to forcibly medicate him were
not a substantial departure from accepted professional standards and practices." Id. at 21. The
Court agrees that this factual dispute renders qualified immunity to be inappropriate at this time.
See, e.g., Haden v. Hellinger, No. 9:14-CV-0318, 2016 WL 8673144, *10 (N.D.N.Y. Sept. 30,
2016) (denying qualified immunity where there was a factual dispute regarding the plaintiff’s
dangerousness where the plaintiff testified he did not instigate physical altercations or resist once
force was used on him), adopted by 2016 WL 6248432 (N.D.N.Y. Oct. 26, 2016).
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As such, Defendants' motion for summary judgment on Plaintiff's Fourteenth Amendment
due process claim as to Defendant Berkheimer relating to his treatment on June 19, 2014 is
denied.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Thérèse Wiley Dancks' June 2, 2020 Order and ReportRecommendation (Dkt. No. 110) is ADOPTED in its entirety; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 93) is GRANTED in
part and DENIED in part;1 and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance in the Local Rules.
IT IS SO ORDERED.
Dated: June 22, 2020
Albany, New York

Thus, the only claims that survive at this time are Plaintiff's Eighth Amendment
excessive force claims against Defendants Asch, Martin, and Williams, as well as Plaintiff's
Fourteenth Amendment due process claim against Defendant Berkheimer arising from the June
19, 2014 incident.
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