Castillo v. Rodas et al
Filing
89
MEMORANDUM & ORDER: granting 75 Motion for Summary Judgment. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in its entirety. The Clerk of Court is requested to terminate this case. (Signed by Judge Alison J. Nathan on 3/25/2014) (djc) Modified on 3/26/2014 (djc).
USDCSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELECTRONICALLY FILED
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DATEFILED~MAR 2.R 2014.
PEDRO CASTILLO,
Plaintiff,
DOC#:----.!!'!1-.~~=-=~
09 Civ. 9919 (AJN)
-v-
MEMORANDUM &
ORDER
BYRON RODAS and CARL KOENIGSMANN,
Defendants.
----------------------------------------------------------------------)(
ALISON J. NATHAN, District Judge:
Plaintiff Pedro Castillo, an inmate at the Green Haven Correctional Facility ("Green
Haven"), brings claims under 42 U.S.C. § 1983 alleging that Defendants Byron Rodas and Carl
Koenigsmann were deliberately indifferent to his serious medical needs, in violation of the
Eighth Amendment, and that Rodas retaliated against him for filing a grievance, in violation of
the First Amendment. Before the Court is Defendants' motion for summary judgment. Dkt. No.
75. For the following reasons, Defendants' motion is granted.
I.
BACKGROUND
The Court will first describe the record evidence relevant to Plaintiffs claims, and then
briefly summarize this action's procedural history.
A. Factual Background
The following facts and disputes of fact are based on the Court's review of the record,
undertaken with particular attention to the evidence cited in the parties' Local Rule 56.1
statements. 1 See Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000); Agence
1
Plaintiff has filed only a response to Defendants' 56.l statement, not his own statement.
1
Fr. Presse v. Morel, 934 F. Supp. 2d 547, 551 (S.D.N.Y.), superseded on other grounds on
reconsideration, 934 F. Supp. 2d 584 (S.D.N.Y. 2013). The facts are undisputed unless
otherwise noted. Because the Court discusses certain facts in more detail later in this opinion, a
general overview suffices here.
Plaintiff is an inmate at Green Haven, in Stormville, New York. Pl. 56.1 Resp.
if 1.
Under the terms of the consent decree governing the provision of inmate medical care at Green
Haven, each inmate is assigned a primary care provider, who can be a physician assistant, a
nurse practitioner, or a primary care physician. Id.
if 15. The "primary interface" between
inmates and the medical staff is "sick call," at which an inmate, after seeking permission from a
corrections officer, can make an appointment with a nurse, who can then refer them to their
primary care provider for further treatment or distribute certain over-the-counter medications.
Id.
if 16.
If an inmate's primary care provider is unavailable, the inmate will be seen by another
primary care provider. Id. An inmate can also make an "emergency sick call" to receive
treatment immediately. Id.
if 18.
For an inmate to receive specialty care, the primary care provider must initiate a "request
for consultation." Pl. 56.1 Resp.
if 25. Such requests describe the patient's condition and
indicate a level of urgency indicating how soon a consultation with a specialist is needed. Id.
if 26. They are reviewed by a Regional Medical Director ("RMD") responsible for the medical
care at several correctional facilities. Id.
iii! 7-8, 28.
After the RMD approves a request for
consultation, the request goes to a "quality review company" to determine whether the request
meets the applicable standard of care. Id.
if 31.
If the company preliminarily declines the
request, it goes back to the RMD for a final decision, but if the company approves the request, it
2
bypasses the RMD and goes to a centralized state coordination system for the scheduling of
specialty care. Id.
iii! 32-34.
After a consultation request is approved, the inmate sees a specialist, who sends a report
with any recommendations to the inmate's primary care provider for review. Pl. 56.1 Resp.
if 35.
The primary care provider then fills out a new request for consultation based on the specialist's
report, and then submits it according to the same process. Id.
if 36.
At all relevant times, Rodas was a physician's assistant on Green Haven's medical staff
and was Plaintiffs primary care provider. 2 Pl. 56.1 Resp.
iii! 2-4.
Rodas is not a licensed
physician. Bendheim Dep., Youngwood Deel. Ex. C, at 154-55. Koenigsmann was the RMD
for Green Haven and responsible for reviewing its consultation requests. Pl. 56.1 Resp. if 7.
In August 2005, Plaintiff began experiencing hemorrhoid symptoms. Pl. 56.1 Resp. if 49.
Hemorrhoids occur in four stages: Stage I is the least severe and Stage IV is the most severe. Id.
if 42. Stage IV hemorrhoids generally require surgery-a "hemorrhoidectomy"-relatively
quickly, but patients with milder symptoms ordinarily "will have relief with conservative or
minimally invasive treatment." Id.
iii! 45, 43.
Stage III hemorrhoids do not always require
surgery, and depending on the circumstances, they can also be treated with "topical creams and
suppositories." Id.
if 46. Additionally, "hemorrhoid symptoms are 'notoriously waxing and
waning,' and there can be months when symptoms do not present themselves." Pl. 56.1 Resp.
if 41 (quoting Freed Dep., Dawkins Deel. Ex. K, at 64).
2
Plaintiff presents evidence that Rodas has been suspended since October 2011 after being indicted and pleading
guilty to criminal charges unrelated to this action. Pl. 56.l Resp. iJ 2. The Court questions Plaintiffs choice to
describe those charges in detail since it is well established that "[e]vidence of a crime ... is not admissible to prove
a person's character in order to show that on a particular occasion the person acted in accordance with the
character." Fed. R. Evid. 404(b); see also Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir. 1997) ("[O]nly admissible
evidence need be considered by the trial court in ruling on a motion for summary judgment.").
3
On August 29, 2006, Plaintiff was seen by Rodas at sick call for complaints of blood in
his stool and lower back pain; Rodas prescribed Tucks wipes and ordered a "stool occult blood
test," which came back negative for blood. Pl. 56.1 Resp. iii! 50-51; Pl. Deel., Youngwood Deel.
Ex. D, ii 8. From that appointment through May 1, 2007, Plaintiff did not complain about
hemorrhoids to the medical staff. Pl. 56.1 Resp. ii 52, Pl. Deel., Youngwood Deel. Ex. D, ii 9.
Plaintiff was seen numerous times by the medical staff between May 1, 2007 and February 25,
2008 for various ailments, and at several of these appointments he was given hemorrhoid cream.
Pl. 56.1 Resp. iii! 53-72.
On April 25, 2008, Plaintiff "bled while defecating and felt 'tremendous pain."' Pl. 56.1
Resp. ii 73. On April 28, he saw a nurse during sick call; he complained of "hemorrhoids and
bleeding from the rectum during bowel movements," and the nurse gave him a pass to go to the
clinic that afternoon. Id. ii 74. There, he saw Dr. John Bendheim, who diagnosed hemorrhoids,
prescribed "a basin with Epsom salts for soaks and Preparation Hand Dibucaine ointment," and
noted in Plaintiffs records that Plaintiff "may benefit from" a general surgery consultation. Id.
ii 75. Rodas saw Plaintiff on May 1, 2008 and submitted a consultation request for Plaintiff to
see a surgeon for follow-up. Id. ii 78. He wrote in his request that Plaintiff was experiencing
"rectal bleeding with pain in the rectum on and off for four years," and that conservative
treatments were "no longer effective." Id.
On May 22, 2008, Plaintiff was seen by a general surgeon, Dr. Aaron Roth, who
conducted a physical examination and referred Plaintiff for "evaluation under anesthesia." Pl.
56.1Resp.ii80. (That meant surgery. Id.) Roth also recommended that Plaintiff undergo a
colonoscopy. Id. On May 23, 2008, Rodas submitted a request for consultation for further
evaluation based on Roth's recommendation. That request stated that "conventional treatment
4
was no longer effective" and reported that Roth's examination had found a "stage III internal
hemorrhoid." Id.
ii 81.
From May 22 to August 5, Plaintiff states that he complained of"severe"
pain to Rodas and nurses on the medical staff. Id.
ii 80.
On May 23, 2008, Koenigsmann denied Rodas's request for consultation and determined
that Plaintiff should be referred for a colonoscopy to rule out more serious causes of his left
lower quadrant pain and rectal bleeding. Pl. 56.1 Resp.
ii 82; Koenigsmann Dep., Youngwood
Deel. Ex. B, at 158-59. From a medical standpoint, a colonoscopy is not part of a course of
treatment for hemorrhoids, nor is it an effective means of diagnosing hemorrhoids. Pl. 56.1
Resp.
iii! 82-83; Freed Dep., Youngwood Deel. Ex. F, at 95-97.
On June 16, 2008, Rodas referred Plaintiff for a colonoscopy. Pl. 56.1 Resp.
colonoscopy was performed on August 5, 2008, by Dr. Robert Antonelle. Id.
ii 89.
ii 86.
The
Antonelle
wrote a report following the procedure, which described "internal hemorrhoids [and] minimal
rectal prolapse" that was "easily reducible" and noted internal bleeding. Id.
ii 90 (alteration in
original). Antonelle prescribed "Anusol hydrocortisone cream and follow-up as needed," and
recommended a follow-up colonoscopy in ten years. Id.
iii! 90-91.
Antonelle' s report did not
say anything about whether Plaintiff's hemorrhoids required surgery.
In a declaration submitted by Plaintiff, Antonelle indicates that he did not intend for his
report to suggest that hemorrhoid surgery was not necessary; in fact, it was his understanding
that the treatments he prescribed would be supplemental to the surgery that he anticipated would
be taking place. Pl. 56.1 Resp.
iii! 91-94; Antonelle Deel., Youngwood Deel. Ex. H.
However,
"Rodas did not believe surgery was necessary because it was not prescribed in Dr. Antonelle's
5
plan." 3 Pl. 56.1 Resp. if 93; accord Rodas Dep., Youngwood Deel. Ex. A, at 229-31. As a
result, he did not request a hemorrhoidectomy on Plaintiff's behalf, and Plaintiff continued to
receive conservative treatments from the medical staff. Pl. 56.1 Resp. iii! 96, 101-103.
On February 17, 2009, Plaintiff saw a general surgeon, Dr. Bhopale, for complaints of
rectal bleeding; the rectal exam was "normal," and Plaintiff was given two containers of
laxatives. Pl. 56.1 Resp. if 104. The nature ofBhopale's examination is disputed: Plaintiff
claims that Bhopale asked him to lower his underwear but did not examine his rectum, and he
asserts on information and belief that "Dr. Bhopale ... regularly diagnos[ e]s his patients or
inmates referred to him with normal findings, even when an inmate has a condition worthy of
medical attention." Id.; Castillo Deel., Youngwood Deel. Ex. D, iii! 41-42.
On February 27, 2009, Plaintiff saw Rodas and requested surgery for his hemorrhoids.
Rodas denied the request and told Plaintiff that his rectal examination had been normal. Pl. 56.1
Resp. if 105. According to Plaintiff, Rodas also told him that "the director of the clinic" had
denied his surgery, that he would have to file a grievance if he wanted surgery, and that Rodas
was "not going to do anything else." Id.; Castillo Deel., Youngwood Deel. Ex. D, if 44.
Plaintiff filed a grievance requesting surgery on March 6, 2009, and on March 17, 2009,
Dr. Frederick Bernstein, who reviewed the grievance, responded to it by stating that Plaintiff
would be sent to a general surgeon to determine whether he was an "appropriate candidate for
surgical treatment." Pl. 56.1 Resp. iii! 108, 110. Rodas then requested a surgical consultation,
which Koenigsmann approved. Id.
2009. Id.
if 118.
if 111.
Rodas placed Plaintiff in the infirmary on March 27,
Roth saw Plaintiff and made arrangements for a hemorrhoidectomy, Rodas
3
This statement of fact is listed as disputed in Plaintiff's response to Defendants' 56.1 statement, because Antonelle
did not intend for his report to be interpreted in the way that Rodas interpreted it. However, as explained later in this
opinion, Antonelle's intentions alone are not a valid basis for disputing Rodas's subjective thought process.
6
scheduled the procedure, and Koenigsmann approved it. Id.
iii! 142, 144.
According to Plaintiff,
during his consultation with Roth, "Roth became upset because his recommendation was
ignored." Pl. Deel., Youngwood Deel. Ex. D, ii 67. Plaintiff finally received a
hemorrhoidectomy on July 2, 2009, more than a year after Roth initially recommended the
procedure. Pl. 56.1 Resp.
ii 147.
B. Procedural History
Plaintiff filed a prose complaint on December 3, 2009, naming Rodas and Bernstein as
Defendants, and the case was assigned to Judge Jones. Following an initial discovery period,
Rodas and Bernstein moved for summary judgment. In his brief opposing that motion, Plaintiff
conceded that he had named Bernstein as a defendant on the mistaken belief that Bernstein, and
not Koenigsmann, was responsible for denying his surgery after Rodas requested it in May 2008.
Dkt. No. 31, at 12-13. On September 19, 2011, Judge Jones denied the contested portion of
Defendants' motion without a written opinion and granted Plaintiff leave to amend his complaint
to add Koenigsmann as a Defendant. Dkt. No. 38.
After Plaintiff filed an amended complaint and Defendants answered, counsel appeared
on Plaintiff's behalf, and the case was reassigned to the undersigned. The Court granted Plaintiff
leave to file a Second Amended Complaint (the "2AC"), which was filed on May 2, 2012. Dkt.
No. 56. After Defendants answered, the parties engaged in additional discovery, and Defendants
again moved for summary judgment on April 1, 2013. That motion is fully submitted.
II.
LEGALSTANDARD
Summary judgment is properly granted when, construing the evidence in the light most
favorable to the non-moving party and drawing all reasonable inferences in its favor, "there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of
7
law." Fed. R. Civ. P. 56(a); Ramos v. Baldor Specialty Foods., Inc., 687 F.3d 554, 558 (2d Cir.
2012). "A fact is material if it might affect the outcome of the suit under the governing law, and
an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Ramos, 687 F.3d at 558 (quoting Niagara Mohawk Power Corp. v.
Hudson River-Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012)) (internal quotation
marks omitted).
As the moving party, Defendants bear the burden of demonstrating the absence of a
genuine issue of material fact. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219,
1223 (2d Cir. 1994). When the burden of proof at trial would fall on the non-moving party, a
movant can carry its burden by pointing to a lack of record evidence on an essential element of
its opponent's claim. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009).
"In that event, the nonmoving party must come forward with admissible evidence sufficient to
raise a genuine issue of fact for trial in order to avoid summary judgment." Id. "The mere
existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
III.
DISCUSSION
Plaintiff brings two claims under§ 1983: an Eighth Amendment claim against both
Rodas and Koenigsmann, and a First Amendment claim against Rodas. 2AC at 7-8. Defendants
move for summary judgment with respect to both of Plaintiffs claims. The Court will address
these two claims in tum.
8
A. Eighth Amendment Claim
In Count 1, brought pursuant to § 1983, Plaintiff alleges that Defendants denied him
adequate medical treatment in violation of the Eighth Amendment. 2AC iii! 34-36. A prison
official's failure to provide adequate medical treatment can constitute '"deliberate indifference'
to a substantial risk of serious harm to an inmate," and thereby violate the Eighth Amendment's
prohibition against cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 828
(1994); see Estelle v. Gamble, 429 U.S. 97, 104 (1976). Courts evaluating deliberate
indifference claims must conduct two inquiries. The first is an objective inquiry that asks
whether the alleged deprivation of medical care was "sufficiently serious." Salahuddin v. Goard,
467 F.3d 263, 279 (2d Cir. 2006). The second inquiry is a subjective one that asks whether the
charged official acted "with a sufficiently culpable state of mind." Id. at 280. Defendants argue
that no genuine issue of material fact exists concerning either inquiry, and that they are therefore
entitled to summary judgment.
1. Qualified Immunity
The Court will first address Defendants' contention that even if they violated the Eighth
Amendment, they are entitled to qualified immunity. Def. Br. at 24. The doctrine of qualified
immunity protects government officials from civil liability for conduct that "does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Following the Supreme Court's
decision in Pearson v. Callahan, 555 U.S. 223 (2009), lower courts have discretion to decide
whether the right a plaintiff invokes was "clearly established" at the time of the defendant's
conduct before addressing whether that right was actually violated. See id. at 236. If the right
9
was not clearly established, then the defendant is immune from suit, and whether his conduct in
fact violated the plaintiffs rights is irrelevant.
In this case, however, the Court will not address the question of whether the Eighth
Amendment rights Defendants allegedly violated were "clearly established." That question is a
difficult one, which depends on the level of generality at which the rights are defined. For
example, Plaintiff assumes that the relevant right is defined by "the elements" of his claim, Pl.
Opp. at 25, but in stripping away all the facts constituting the alleged violation, his approach
appears to be too broad. See Saucier v. Katz, 533 U.S. 194, 202-03 (2001); Anderson v.
Creighton, 483 U.S. 635, 639-40 (1987). For their part, Defendants argue that they are immune
because no precedent suggests that hemorrhoids are a sufficiently serious medical condition. But
their focus on symptoms-rather than, for instance, the pain or danger associated with the
symptoms-is likely too narrow. The parties' briefing on this issue is sparse. As a result, "there
would be little if any conservation of judicial resources to be had by beginning and ending with a
discussion of the 'clearly established' prong," Pearson, 555 U.S. at 236, and the Court will
proceed to consider whether there are genuine issues of material fact concerning whether
Defendants violated the Eighth Amendment. There are not.
2. Deliberate Indifference
As noted above, the parties contest both the objective and subjective elements of
Plaintiffs Eighth Amendment claim. For purposes of this motion, the Court will assume that the
objective prong is met-i.e., that Plaintiff "was actually deprived of adequate medical care" and
that the deprivation was "sufficiently serious," Salahuddin, 467 F.3d at 279-80-because
Defendants are entitled to summary judgment on the subjective prong. That is, no reasonable
jury could conclude that Defendants acted with deliberate indifference.
10
The Eighth Amendment forbids only cruel and unusual punishments. As a result, the
Supreme Court has described the "deliberate indifference" standard carefully, taking pains to
distinguish it from less culpable mental states. See Farmer, 511 U.S. at 835-47; Wilson v. Seiter,
501 U.S. 294, 296-304 (1991). The mental state required for an Eighth Amendment violation in
the context of prison medical care is "subjective recklessness as used in the criminal law."
Farmer, 511 U.S. at 839. That is, the defendant must "know[] of and disregard[] an excessive
risk to inmate health or safety; 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." Id. at 837; accord Salahuddin, 467 F.3d at 280 (defendant must "act or fail to act
while actually aware of a substantial risk that serious inmate harm will result").
Although the question of whether a defendant acted with a particular state of mind is
frequently a factual one appropriate for resolution by a jury, the Second Circuit has made clear
that summary judgment can be appropriate on the subjective prong of an inadequate-medicalcare claim, and Plaintiff must point to actual evidence in the record permitting the inference that
Defendants acted with deliberate indifference; he cannot rely on conjecture or speculation. See
Salahuddin, 467 F.3d at 281-82; Brockv. Wright, 315 F.3d 158, 164-65 (2d Cir. 2003); see also
Hernandez v. Keane, 341 F.3d 137, 145-47 (2d Cir. 2003) (affirming Rule 50 judgment for
defendants). For the reasons that follow, the Court concludes that Plaintiff has failed to
introduce sufficient evidence to create a triable issue of fact regarding deliberate indifference, so
Defendants are entitled to summary judgment.
3. Rodas Was Not Deliberately Indifferent
The Court will assess the claims against Rodas first. See, e.g., Brock, 215 F .3d at 162
(deliberate indifference must be shown for "each defendant"). Plaintiff characterizes the record
11
as establishing that he consistently suffered from severe and worsening hemorrhoid symptoms,
that he repeatedly complained of these severe symptoms to Rodas, and that Rodas continued to
provide the same non-surgical treatments whose ineffectiveness was evident from the very
symptoms of which Plaintiff complained. Pl. Opp. at 5-11, 15-16. In several respects, however,
that is not what the evidence actually shows. To explain why, the Court must review the record
in significant detail.
As an initial matter, in asserting that he "consistently complained about his hemorrhoids,"
Pl. Opp. at 15, Plaintiff points to certain complaints that did not concern hemorrhoids at all. For
example, on May 8, 2007, Plaintiff complained that he "felt a burning sensation while urinating"
and was diagnosed with a urinary tract infection. Pl. 56.1 Resp.
ii 57.
On June 18, 2007, he
complained of "left lower quadrant pain" and told the nursing staff that hemorrhoid cream-the
treatment that he now argues was inadequate-"relieved the pain." Id.
ii 58.
And with respect to
many of his complaints that were, in fact, "about his hemorrhoids," the record does not always
indicate that Plaintiff complained to Rodas, as opposed to someone else. See Pl. 56.1 Resp.
iiii 63, 65, 66, 71, 74, 79 (describing sick calls or meetings with a nurse). 4 Focusing on Rodas's
own response to Plaintiffs symptoms, the record reveals the following:
Plaintiffs hemorrhoid symptoms began in August 2005, but he did not seek medical
attention until August 2006, at which point Rodas ordered a blood test and prescribed Tucks
wipes. Pl. 56.1 Resp.
iiii 49, 50. In his Rule 56.1 response, Plaintiff disputes Defendants'
assertion that he did not complain about hemorrhoids following that appointment, noting that his
4
At sick calls, inmates are initially "triaged by a nurse," who may then refer them to their primary care provider or
another primary care provider iftheir own is not available. Bendheim Dep., Youngwood Deel. Ex. C, at 104-05.
With respect to the portions of Plaintiff's Rule 56.1 response cited in the text, the paragraphs describing Plaintiff's
sick calls do not state whether Plaintiff was referred to Rodas after being triaged by a nurse.
12
complaints were not always noted in his medical records. Id.
if 52. But Plaintiffs own
declaration states that "between ... August 29, 2006 and February 2007, it is true that I did not
complain of hemorrhoids, because I was keeping up with defendant Rodas' treatment
directions." Pl. Deel., Youngwood Deel. Ex. D, if 9. Plaintiff also does not dispute that between
February 2007 and August 3, 2007, he did not complain about hemorrhoids, although he sought
medical attention for other ailments. 5 Pl. 56.1 Resp. ifil 53-59. On August 3, 2007, a nurse
referred Plaintiff to Rodas for hemorrhoid symptoms, and on August 10, Rodas met with
Plaintiff, requested a "stool guaiac test," which came back negative, and prescribed hemorrhoid
cream and Bacitracin ointment. Id.
ifil 60-62.
It is disputed whether Rodas performed a
"physical examination" during that appointment. Id.
if 60.
From August 2007 to February 2008, it is true that the medical staff-both nurses and
Rodas-continued treating Plaintiff with hemorrhoid cream. Pl. 56.1 Rep.
ifil 63-72. But in at
least one instance, Plaintiff himself requested the cream that he now alleges was inadequate, id.
if 68, and there also is no indication either that Plaintiffs symptoms were severe or getting
worse6 or, more importantly, that he complained to the medical staff of any severe symptoms.
The record simply reflects that Plaintiff saw the medical staff several times and received
hemorrhoid cream. No reasonable jury could conclude that, during this period, Rodas was
"actually aware" that the treatments he was prescribing put Plaintiff at a "substantial risk" of
"serious harm." Salahuddin, 467 F.3d at 280; see Youngblood v. Glasser, No. 9:10-CV-1430
5
Indeed, Plaintiffs description of his condition, and the medical staffs response to his complaints, must be
understood in the context of the undisputed fact that "hemorrhoid symptoms are 'notoriously waxing and waning,'
and there can be months when symptoms do not present themselves." PL 56.1Resp.iJ41 (quoting Freed Dep.,
Dawkins Deel. Ex. K, at 64).
6
In August 2007, Plaintiffs symptoms included "burning, itching, and irritation," and "always bleeding during
bowel movements." PL 56.l Resp. il 61.
13
(NAM/DEP), 2012 WL 4051846, at *8-9 (N.D.N.Y. Aug. 22, 2012) (no deliberate indifference
where inmate complaining of hemorrhoids was given "stool softeners and ointment" by a nurse),
adopted, 2012 WL 4051890 (N.D.N.Y. Sept. 13, 2012); Domenech v. Taylor, No. 9:09-CV-162
(FJS/DEP), 2010 WL 6428459, at *8 (N.D.N.Y. Sept. 8, 2010) (same where inmate was given
"hemorrhoidal cream, cleansing pads, suppository pads, and a stool softener"), adopted, 2011
WL 1214431 (N.D.N.Y. Mar. 31, 2011).
On April 25, 2008, Plaintiff's symptoms surely did become more severe: he "bled while
defecating and felt 'tremendous pain."' PL 56.1 Resp. if 73. He saw a nurse during sick call on
April 28, who referred him to Dr. Bendheim in the clinic. Bendheim prescribed Epsom salts,
Preparation H, and an ointment, and indicated that Plaintiff "may benefit" from a surgery
consultation-a question ultimately to be determined by Rodas, his primary care provider. Id.
if 75.
The very next time that Rodas met with Plaintiff-on May 1, 2008, three days after
Bendheim did-it is undisputed that he "submitted a consultation request for plaintiff to see a
surgeon for follow-up." Id.
if 78.
At that point, Rodas recognized (and wrote in his consultation
request) that the conservative course of treatment he had previously recommended was "no
longer effective." Id. But at that point, of course, Rodas also altered that conservative course of
treatment by requesting that Plaintiff see a surgeon. And after the surgeon, Roth, recommended
surgery and a colonoscopy, Rodas "submitted a request for consultation for further evaluation
based on the surgeon's recommendation." Id.
if 81.
No reasonable jury could find that in taking
these steps, Rodas was simply "persist[ing] in a course of treatment known to be largely
ineffective," as Plaintiff claims. Pl. Opp. at 15.
It is undisputed that Koenigsmann initially denied the request for surgery because he
believed a colonoscopy should be perfonned first in order to rule out more serious causes of
14
Plaintiffs symptoms. Pl. 56. l Resp. if 82. And at that point, the evidence plausibly suggests that
Rodas made a mistake. Antonelle's report stated that Plaintiffs hemorrhoids were "easily
reducible," and he prescribed "Anusol hydrocortisone cream and follow-up as needed." He also
recommended a "[ f]ollow up [c]olonoscopy in 10 years." Id.
iii! 90, 91.
Rodas asserts that he
interpreted this report, which did not mention surgery, as an indication that Antonelle believed
that surgery was unnecessary, and he therefore did not submit a further request for Plaintiff to
undergo surgery. Id.
if 93; Rodas Supp. Deel., Dawkins Deel. Ex. F, iJ 8 ("Dr. Antonelle, an
expert in the field of gastroenterology, did not write ... that the surgery was necessary after the
colonoscopy. I interpreted Dr. Antonelle's written report to mean that since the colonoscopy
revealed that plaintiffs hemorrhoids were easily reducible, the Anusol cream was sufficient and
further surgical procedures [were] unnecessary.") (citations omitted).
Plaintiff disputes Rodas's interpretation because Antonelle did not intend for his report to
have any bearing on whether Plaintiff needed surgery, and because a colonoscopy is not part of a
course of treatment for hemorrhoids. Pl. 56.1 Resp.
iii! 83, 91-94.
But because the deliberate
indifference standard is subjective, see Farmer, 511 U.S. at 837, neither what Antonelle intended
nor what Rodas objectively should have understood the colonoscopy results to mean can suffice
to establish that Rodas was "actually aware" that Plaintiff still required surgery in order to
address a "substantial risk" of "serious harm." See Salahuddin, 467 F.3d at 282 ("the mentalstate inquiry does not include an objective-reasonableness test"). At most, the evidence
presented by Plaintiff suggests that Rodas was negligent, which is insufficient.
Plaintiff points to no direct evidence to counter Rodas's testimony that he interpreted
Antonelle's report as indicating that surgery was not required. Nor could a reasonable jury infer
from other evidence in the record that Rodas's explanation is pretextual. See Salahuddin, 467
15
F.3d at 282 (asking, in the absence of direct evidence, whether "circumstantial evidence"
contradicted defendant's showing "that [he] was not aware of a substantial risk that postponing
[plaintiffs] liver biopsy would cause serious harm"). Rodas is not a doctor, and in any case
Plaintiff never suggests that Rodas's interpretation of Antonelle's report was so egregiously
incorrect from a medical standpoint that his explanation is implausible. 7 Nor was Plaintiffs
condition so severe as to suggest that Rodas must have known surgery was necessary. See
Farmer, 511 U.S. at 842 ("a factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious"). Plaintiff describes reporting severe pain to
Rodas and the medical staff before his colonoscopy, but not after. Pl. 56.1 Resp. ir 80. On
September 16, 2008, roughly a month after his colonoscopy, Plaintiff complained to Rodas that
his hemorrhoid condition was "deteriorating," but although he now claims that he was in severe
pain at the time, he does not say that he communicated the extent of his pain to Rodas-his
September 16 appointment dealt primarily with "complaints of pain in the left side of his
abdomen." Id.
ir 96.
Additionally, while Plaintiff complained of hemorrhoids on other occasions
after his colonoscopy and was given hemorrhoid cream, there is no evidence that he complained
of severe pain. 8 Id.
irir 98,
101, 103. He did not complain about not receiving surgery until
February 2009. Id.
ir 106.
And throughout this period, Rodas continued to treat Plaintiff for
7
In fact, Bernstein, who denied Plaintiffs grievance requesting that Rodas be relieved as his primary care provider,
concluded that Plaintiff was receiving "good medical care" in part because "plaintiffs colonoscopy ... was
normal," suggesting that at least one doctor also believed that Antonelle's colonoscopy report indicated that Plaintiff
did not require surgery. PL 56.1 Resp. ii 127; see Mauro Deel., Hawkins Deel. Ex. 0.
8
Consistent with the lack of evidence supporting Plaintiffs claim with respect to Rodas' s mindset, Rodas testified
that Plaintiffs lack of complaints in the aftermath of his colonoscopy confirmed his interpretation of Antonelle' s
report. See Rodas Dep., Youngwood Deel. Ex. A, at 229-30 (stating that because "the GI ... recommended to use
cream for the hemorrhoids" and "didn't recommend any surgery," and because Plaintiff"didn't complain" about
hemorrhoids after his colonoscopy, Rodas believed "that the hemorrhoids [were] resolved.").
16
other ailments, including requesting a surgical consult for a growth on Plaintiffs forehead. Id.
if 100. Plaintiff does not explain why Rodas, who filled out several consultation requests on his
behalf-including the May 23, 2008 and June 16, 2008 requests related to hemorrhoids-would
refuse to request a hemorrhoidectomy that he actually believed was necessary.
Plaintiffs hemorrhoid condition worsened again in February and March of 2009. On
February 17, 2009, he saw Bhopale, who reported that Plaintiffs "rectal exam was nonnal." Pl.
56.1 Resp.
if 104. Plaintiff then saw Rodas ten days later and requested surgery, which Rodas
denied because Plaintiffs "rectal examination had been normal." Id.
if 105. Plaintiff attempts to
cast doubt on Rodas's motivations by claiming that Bhopale's examination was inadequate, but
he does not explain why Rodas would have known about any inadequacy. Id.
if 104. Thus, there
is no evidence suggesting that Rodas actually thought Plaintiff required surgery. That Rodas
allegedly said that Plaintiffs surgery had been denied and that Plaintiff would have to file a
grievance if he wanted surgery is somewhat troubling, id.
if 105, but the most straightforward
interpretation of Rodas's behavior is that, in light of Antonelle's and Bhopal's reports, he
strongly believed that Plaintiff did not need surgery. The Court cannot conclude that a
reasonable jury could infer the opposite. At most, Rodas's statement that he was "not going to
do anything else" on Plaintiffs behalf suggests that if he thought Plaintiff faced a risk of serious
harm, he still would not request surgery. But it does not by itself suggest that he did believe that
Plaintiff faced such a risk at the time, and, as explained above, there is no other evidence from
which to infer that he did. Rodas also ordered "a complete blood count and stool samples"
following the appointment, negating any inference that his comments evidenced a complete
refusal to treat Plaintiff. Pl. 56.1 Resp. if 105.
17
Plaintiff filed a grievance requesting surgery on March 6, 2009, and on March 17, 2009,
Bernstein responded to the grievance by stating that Plaintiff would be sent to a general surgeon
to determine whether he was an "appropriate candidate for surgical treatment." Pl. 56.1 Resp.
i!il 108, 110. As a result, Rodas requested a surgical consultation, which Koenigsmann approved.
Id.
i! 111. The fact that Bernstein reached a different conclusion than Rodas is not sufficient to
establish Rodas's deliberate indifference. See, e.g., Chapman v. Parke, 946 F.2d 894 (Table),
1991WL203080, at *1-2 (6th Cir. 1991) (disagreement between doctors over plaintiff's need
for hemorrhoid surgery did not evidence deliberate indifference); Webb v. Jackson, No. 92 Civ.
2149 (SS), 1994 WL 86390, at *3 (S.D.N.Y. Mar. 16, 1994) ("It is well established that a mere
difference[] in opinion, whether between doctors or laymen, based on medical care does not give
rise to an Eighth Amendment violation .... "). Between March 17 and July 2, when Plaintiff
received a hemorrhoidectomy, Rodas admitted Plaintiff to the infirmary, and while the parties
characterize Plaintiff's condition during that period in different ways, there is nothing from
which a jury could infer that Rodas himself delayed Plaintiff's surgery or otherwise could have
done anything differently to reduce Plaintiff's risk of harm.
To summarize, the Court's review of the record has uncovered no basis for concluding
that at any point, Rodas himself subjectively believed that his prescribed course of treatment for
Plaintiff's hemorrhoid symptoms put Plaintiff at a substantial risk of serious harm. Plaintiff
never claims that he was denied treatment. See, e.g., Estelle, 429 U.S. at 107-08 (no deliberate
indifference where plaintiff was treated many times by medical staff); Poole v. Koehler, No. 87
Civ. 6881 (PNL), 1992 WL 316179, at *1 (S.D.N.Y. Oct. 19, 1992) (no deliberate indifference
where defendants introduced "several affidavits and numerous medical records demonstrating
that plaintiff received on-going medical attention and care"). And Plaintiff's argument that
18
Rodas persisted in prescribing non-surgical treatments that he knew to be inadequate does not
accurately describe the record. No reasonable jury could conclude that Rodas ever believed
Plaintiff required surgery but prescribed non-surgical treatment instead. When Plaintiffs
condition worsened in 2008, Rodas requested a surgical consultation, and when it worsened in
2009, nothing suggests that Rodas actually believed that Plaintiff faced a significant risk of
serious harm without surgery. Even assuming that Rodas interpreted Antonelle's colonoscopy
report incorrectly, that is at most evidence from which a reasonable jury could conclude that
Rodas acted negligently, and not that he acted with deliberate indifference. As a result, the Court
concludes as a matter of law that Rodas did not have a sufficiently culpable state of mind to
support Plaintiffs Eighth Amendment claim against him.
The case law that Plaintiff relies upon does not require a different result. First, Plaintiff
cites two cases purportedly establishing that a defendant acts with deliberate indifference by
"fail[ing] to investigate the cause of an inmate's medical condition." PL Opp. at 13-14, 14-15
(citing Liscio v. Warren, 901F.2d274 (2d Cir. 1990), overruled by Caiozzo v. Koreman, 581
F.3d 63 (2d Cir. 2009); and Burton v. Lynch, 664 F. Supp. 2d 349, 364 (S.D.N.Y. 2009)).
Plaintiff argues that there is a factual dispute regarding whether Rodas "appropriately examined"
Plaintiff, because despite Rodas's testimony to the contrary, Plaintiff maintains that Rodas never
conducted a "physical examination of [his] rectum" throughout the course of his treatment. PL
Deel., Youngwood Deel. Ex. D, if 17. On its own, however, the question of whether Rodas's
examination techniques were objectively "appropriate" as a medical matter is only tangentially
relevant to his subjective culpability.
As an initial matter, Liscio v. Warren, 901 F.2d 274, has been overruled-the Second
Circuit recently described it as applying an "objective standard" that is no longer "good law"
19
after Farmer. 9 Caiozzo, 581 F.3d at 70. In any event, the defendant in Liscio had seen medical
records suggesting that the plaintiff was suffering from alcohol withdrawal-a condition that was
"both life-threatening and fast-degenerating"-yet he failed to examine the plaintiff at all for
three days. Id. at 276-77. From those facts, a jury could arguably infer that the defendant knew
the plaintiff was in danger, yet did nothing. The second case that Plaintiff cites, Burton v. Lynch,
664 F. Supp. 2d 349, is readily distinguishable too: the defendant there knew the plaintiffs
elbow was in severe pain, did not examine it, brusquely told the plaintiff there was "nothing
wrong with" it, and prescribed Motrin, to which he knew the defendant was allergic. Id. at 355,
355-56. In this case, even ifthe nature ofRodas's examinations is disputed, he clearly knew that
Plaintiff had hemorrhoids, and nothing suggests that he subjectively believed that the treatments
he was prescribing were inappropriate. In this context, Plaintiffs complaint that Rodas should
have conducted a physical examination is the kind of difference in opinion that cannot establish
deliberate indifference. See Estelle, 429 U.S. at 107 ("the question whetheran X-ray or
additional diagnostic techniques or forms of treatment is indicated is a classic example of a
matter for medical judgment"); Joiner v. Greiner, 195 F. Supp. 2d 500, 504-05 (S.D.N.Y. 2002)
(failure to perform an MRI did not establish deliberate indifference).
Second, Plaintiff cites several cases supporting his argument that Rodas knew nonsurgical treatments were largely ineffective yet continued prescribing them anyway. Pl. Opp. at
14, 16. In Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994), the Second Circuit held that a
9
Plaintiff describes Liscio as "overruled on other grounds." Pl. Opp. at 14. But he cites it for the proposition that
failing to examine an inmate can constitute deliberate indifference, despite the fact that the deliberate indifference
standard that the Liscio court employed is no longer good law. See Caiozzo, 581 F.3d at 70. Thus, the case appears
to have been overruled on very much the same ground for which Plaintiff cites it.
20
rational jury could find 10 deliberate indifference where the defendant knew an inmate was in pain
because of two broken pins in his hip, did not tell him about the pins, and waited two years to
seek a surgical consultation despite receiving more than fifty complaints of severe pain. 37 F .3d
at 67-69. The court put significant weight on the non-disclosure: one could infer that the
defendant knew the plaintiff would elect surgery had he known about the pins, and that
withholding that information effectively denied him the surgery. See also Hernandez, 341 F.3d
at 146 (discussing Hathaway). By contrast, Rodas did not withhold information, nor did he
deliberately withhold surgery: he referred Plaintiff for a surgical consult in 2008, when
Plaintiffs complaints first became severe, and the evidence shows that he believed that surgery
was unnecessary after Antonelle's report.
Additionally, unlike in Hathaway, where the plaintiff "continued to experience great pain
over an extended period of time" and complained of that pain to the defendant, 37 F.3d at 67, 68,
there is no evidence that Plaintiffs hemorrhoid complaints were accompanied by reports of
severe pain between his colonoscopy and February 2009, shortly before he was again referred for
surgery. And even assuming that Rodas was, in fact, aware that Plaintiff was in pain, the delay
for which he is responsible is at most seven months: from the time of Antonelle's colonoscopy
on August 5, 2008, to March 17, 2009, when Rodas again requested a surgical consultation.
Plaintiff received treatment over that interval. The delay in his surgery does not evidence
deliberate indifference under these circumstances. See Demata v. NY. State Corr. Dep 't of
Health Servs., 198 F.3d 233 (Table), 1999 WL 753142, at *1, *2 (2d Cir. Sept. 17, 1999)
(although plaintiff did not receive knee surgery for three years and "complained of knee pain on
10
Hathaway was decided on appeal of the district court's order denying the defendant's Rule 50 motion following a
trial at which the jury was deadlocked. See 37 F.3d at 66.
21
multiple occasions," he received other treatment and the delay did not "rise to the egregious level
identified in Hathaway"); cf Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000) (one-year
delay in treating plaintiffs cavity, where there was no evidence that defendants would have
treated it absent plaintiffs consent to unwanted procedure on another tooth, raised factual issue
as to deliberate indifference); Stevens v. Goard, 535 F. Supp. 2d 373, 388-89 (S.D.N.Y. 2008)
(unfounded assertion that plaintiffs chest pain and respiratory symptoms were "essentially
untreatable," which led to no treatment at all for nine months, raised factual issue). 11
Finally, Plaintiff argues that Rodas disregarded the recommendations of Plaintiffs
treating physicians. PL Opp. at 17-18 (citing Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005);
and Jones v. Simek, 193 F .3d 485 (7th Cir. 1999)). Again, however, disregarding a treating
physician's recommendation demonstrates deliberate indifference only if it permits an inference
of subjective culpability. In Johnson, it was "beyond cavil that all of plaintiffs treating
physicians, including two prison physicians, expressly recommended that the plaintiff be
prescribed Ribavirin," and the defendants ignored them. 412 F.3d at 405; see also Jones, 193
F.3d at 490 (defendant "knew that something might be seriously wrong," failed to give him pain
medication for six months before referring him to specialists, and then failed to follow the
specialists' prescriptions). In this case, the only available inference to be drawn from the record
is that Rodas thought he was following Antonelle's recommendation by not scheduling surgery.
11
The other cases Plaintiff cites are readily distinguishable. See Rodriguez v. Downstate Corr. Facility, No. 00 Civ.
9337 (LAP), 2003 WL 1698204, at *6-7 (S.D.N.Y. Mar. 31, 2003) (defendant expressed fear that plaintiff would
die without a transfer to another facility but did not seek such a transfer); Ruffin v. Deperio, 97 F. Supp. 2d 346, 354
(W.D.N.Y. 2000) (plaintiffs deterioration, which included "blackening of his toes" and "glycerin levels which were
regularly three to five times the normal levels," was "sufficiently obvious to infer the defendants' actual knowledge
of a substantial risk"); Pugliese v. Cuomo, 911 F. Supp. 58, 62-63 (N.D.N.Y. 1996) (upon transfer to a new facility,
plaintiffs treatment was discontinued against his doctors' advice, and his condition deteriorated to the point that he
could not lift a one-pound weight with his left arm). Both Rodriguez and Pugliese also rely on Liscio, which, as
noted in the text, is no longer good law.
22
In short, Plaintiffs efforts to squeeze the facts of this case into favorable doctrinal boxes fail; the
evidence of subjective culpability is insufficient as a matter oflaw, and Rodas is entitled to
summary judgment on Plaintiffs Eighth Amendment claim.
4. Koenigsmann Was Not Deliberately Indifferent
The Court also concludes that the evidence is insufficient to permit a reasonable jury to
conclude that Koenigsmann was deliberately indifferent. Unlike Rodas, Koenigsmann was not
involved in Plaintiffs day-to-day medical care. Thus, Plaintiffs argument that Koenigsmann
violated the Eighth Amendment centers on just one decision: his denial of Rodas's request that
Plaintiff receive surgery for his hemorrhoid condition. 12 Pl. Opp. at 18, 24.
Plaintiff suggests that Koenigsmann should not have denied the request for surgery. But
to say that he "denied" the request is to oversimplify: it is undisputed that he did so because he
believed that it was medically necessary for Plaintiff to undergo a colonoscopy to rule out more
severe causes of his symptoms. See Pl. 56.1 Resp.
iii! 82-83; Koenigsmann Dep., Youngwood
Deel. Ex. B, at 158-64. According to Plaintiff, Defendants' assertion that "all medical
professionals agree" that Koenigsmann's decision was correct is unsupported, Pl. Opp. at 18, but
at least two other doctors agreed that a colonoscopy was appropriate. See Freed Report,
Dawkins Deel. Ex. B, at 3 ("Ordering the colonoscopy ... was good medical practice in view of
the persistent bleeding to rule out other more potentially dangerous conditions like cancer.");
Bendheim Dep., Dawkins Deel. Ex. H, at 249 (opining that it would have been "irresponsible"
not to conduct a colonoscopy first). Had he known that Antonelle's colonoscopy had come back
The 2AC includes a claim of"supervisory liability" alleged against Koenigsmann. 2AC iii! 41--43. Except insofar
as the denial of Plaintiff's surgery is concerned, Plaintiff has abandoned any claim premised on Koenigsmann's role
as supervisor. PL Opp. at 24; see also Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (where a defendant does not
participate personally in a violation, he may be liable under § 1983 only if he refused to remedy the violation after
learning of it, implicitly sanctioned it, or was grossly negligent in supervising subordinates who caused it).
12
23
normal, Koenigsmann (unlike Rodas) might well have interpreted it to mean that surgery was
necessary. But there is no evidence that he received or knew about Antonelle's report. See
Koenigsmann Deel., Dawkins Deel. Ex. G, if 15 ("It would not have been necessary for ...
Rodas to notify me of Dr. Antonelle's recommendations.").
Perhaps Koenigsmann can be faulted for not following up on Rodas's initial request,
since denying it meant that another surgery request should have been forthcoming if the
colonoscopy came back normal. But his failure to do was at most negligent, and therefore
insufficient to support an Eighth Amendment claim. See Salahuddin, 467 F .3d at 282
(postponing biopsy was not evidence of deliberate indifference because no one "aroused [the
defendant's] suspicion that postponing the biopsy rather than allowing treatment to proceed
would be seriously harmful"); Hernandez, 341 F.3d at 147 (defendants' failure to "follow up on
the duties of others" to put a medical hold on plaintiff "arguably could support a finding of
negligence," but plaintiff "presented no evidence that the defendants had any reason to doubt
[the others'] reliability"). The same is true of Plaintiffs argument that Koenigsmann could have
approved the surgery while simultaneously ordering a colonoscopy to be performed first. Pl.
Opp. at 18. Whether or not his failure to do so was a mistake, it does not demonstrate deliberate
indifference. As a result, Koenigsmann is entitled to summary judgment on Plaintiffs Eighth
Amendment claim.
B. Retaliation Claim
In Count 2, brought pursuant to § 1983, Plaintiff alleges that Rodas retaliated against him
for filing a grievance by confining him to Green Haven's infirmary, in violation of the First
Amendment. 2AC ifif 38-40. Defendants concede that filing a grievance is a protected activity,
but the parties dispute whether Plaintiff suffered any "adverse action," and, if so, whether there
24
was a "causal connection between the protected [activity] and the adverse action." Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (setting forth the elements of a retaliation claim)
(quoting Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)) (internal quotation mark
omitted). As explained below, however, the Court need not reach these arguments because
Plaintiff failed to exhaust his administrative remedies with respect to his retaliation claim.
1. Plaintiff Failed to Exhaust His Administrative Remedies
In most § 1983 cases, the plaintiff need not exhaust administrative remedies before
bringing suit. See Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982). But this general
rule does not apply to prisoners. Under the Prison Litigation Reform Act of 1995 ("PLRA"),
"[n]o action shall be brought with respect to prison conditions under section 1983 of this title ...
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e(a). 13 The failure to exhaust
administrative remedies is an affirmative defense to a prisoner's claim, Jones v. Bock, 549 U.S.
199, 216 (2007), and Defendants bear the burden of demonstrating that Plaintiffs claim is not
exhausted, Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009).
To satisfy the PLRA's exhaustion requirement, a plaintiff must invoke all available
administrative mechanisms, including appeals, "through the highest level for each claim."
Varela v. Demmon, 491 F. Supp. 2d 442, 447 (S.D.N.Y. 2007); Veloz v. New York, 339 F. Supp.
2d 505, 514 (S.D.N.Y. 2004). These mechanisms are prescribed by the applicable prison
grievance process, and not by the PLRA itself. See Jones, 549 U.S. at 218. In New York, where
13
Plaintiff correctly does not contest that his retaliation claim is a claim "brought with respect to prison conditions."
The Supreme Court has clarified that the "PLRA's exhaustion requirement 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); see also, e.g., Espinal v. Goard, 558 F.3d 119, 127
(2d Cir. 2009) (assessing whether plaintiff exhausted retaliation claim).
25
Plaintiff is incarcerated, there is a three-tiered process for adjudicating inmate complaints: "(1)
the prisoner files a grievance with the Inmate Grievance Resolution Committee ('IGRC'), (2) the
prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and
(3) the prisoner then may appeal an adverse decision by the superintendent to the Central Officer
Review Committee ('CORC')." Espinal v. Goord, 558 F.3d 119, 125 (2d Cir. 2009); see N.Y.
Comp. Codes R. & Regs., tit. 7, § 701.5(b)-(d).
The facts related to Defendants' exhaustion defense are not contested. On April 3, 2009,
after Plaintiff was discharged from the infirmary, he filed grievance GH-67076-09, which
alleged that his confinement to the infirmary was retaliatory. Pl. 56.1 Resp.
if 126. Plaintiff does
not dispute Defendants' statement that he "did not file an appeal of GH-67076-09 to the
Superintendent's office." Id.
if 128. As a result, Defendants have established as a matter oflaw
that Plaintiff failed to invoke the second level of review required by New York law. Nor does
Plaintiff suggest that further review was somehow not "available" to him. See Hemphill v. New
York, 380 F.3d 680, 686 (2d Cir. 2004) ("Depending on the inmate's explanation for the alleged
failure to exhaust, the court must ask whether administrative remedies were in fact 'available' to
the prisoner."). 14 Indeed, the record shows that he appealed another grievance regarding his
medical treatment to both the superintendent and the CORC. Pl. 56.1 Resp. iii! 132-136. But
14
Hemphill set forth a framework governing PLRA exhaustion defenses that asks (1) whether administrative
remedies were actually available, (2) whether the defendants forfeited or waived their exhaustion arguments, and (3)
whether any "special circumstances" justify the plaintiffs failure to exhaust. 380 F.3d at 686; see also, e.g., Macias
v. Zenk, 495 F.3d 37, 41 (2d Cir. 2007). But cf Smith v. City ofNew York, No. 12 Civ. 3303 (CM), 2013 WL
5434144, at *9 (S.D.N.Y. Sept. 26, 2013) (questioning Hemphi!l's continued vitality in light of subsequent Supreme
Court decisions requiring strict compliance with grievance procedures but following it "in the absence of a clear
indication that [it] has been overruled"). The parties do not explicitly invoke Hemphill's three-part approach, which
seems most relevant where the plaintiff advances some reason for not exhausting his remedies-which Plaintiff does
not do. In any case, the Court has addressed whether administrative remedies were available, the next section of this
opinion discusses waiver, and Plaintiff does not argue that any "special circumstances" are present.
26
because he did not do the same for his retaliation claim, the PLRA's exhaustion requirement bars
him from asserting that claim in this Court.
The Court rejects Plaintiff's argument that his exhaustion of another grievance-GH67116-09-should excuse his failure to exhaust GH-67076-09. Pl. Opp. at 23. In support of that
argument, Plaintiff cites a single decision from the Eastern District of Pennsylvania, Thomas v.
Zinke!, 155 F. Supp. 2d 408 (E.D. Pa. 2001). In Thomas, the plaintiff fell and grieved both the
working conditions leading to his fall and his subsequent medical care, but he exhausted only the
latter grievance. The court deemed the plaintiff's working-conditions claim exhausted
nonetheless, because it was "evident" from his medical-care claim that "he was also grieving the
dangerous conditions." Id. at 413.
In this case, the Court is at a loss to see how the allegations in GH-67116-09 have
anything to do with Plaintiff's retaliation claim. That grievance concerned an appointment with
Rodas on April 6, 2009, in which Rodas asked Plaintiff to provide a urine sample. Plaintiff
complained that Rodas' s "attitude ... was very unprofessional and hostile," asserted that
Plaintiff was having trouble communicating with Rodas, and asked for Rodas to no longer be his
primary care provider. Pl. 56.1 Resp. if 132. As Plaintiff notes, the PLRA' s exhaustion
requirement is intended to allow prison officials an opportunity to address complaints before the
federal courts do. See Woodford v. Ngo, 548 U.S. 81, 93 (2006); Porter v. Nussle, 534 U.S. 516,
524-25 (2002). For that reason, "inmates must provide enough information about the conduct of
which they complain to allow prison officials to take appropriate responsive measures." Johnson
v. Testman, 380 F.3d 691, 697 (2d Cir. 2004), overruled on other grounds by Woodford, 548
U.S. at 94-95. The officials evaluating Plaintiff's exhausted claim on appeal would not have had
any inkling that Rodas had even placed Plaintiff in the infirmary, much less that his doing so was
27
allegedly retaliatory. The Court therefore concludes as a matter oflaw that Plaintiff did not
exhaust his retaliation claim.
2. Rodas Did Not Waive His Exhaustion Defense
Plaintiff also argues that any failure to exhaust his administrative remedies is irrelevant
because Rodas waived his exhaustion defense. Indeed, the PLRA's mandatory exhaustion
requirement is not jurisdictional: because the failure to exhaust administrative remedies is an
affirmative defense, it can be waived. See Johnson, 380 F.3d at 695. Plaintiff contends that
Rodas waived this defense by failing to raise it in his first summary judgment motion, in 2011.
Pl. Opp. at 22. The Court disagrees.
Plaintiff has amended his complaint twice since Judge Jones denied the initial summary
judgment motion filed by Rodas and Bernstein. "[AJn amended complaint ordinarily supersedes
the original and renders it of no legal effect." Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668
(2d Cir. 1977). When Plaintiff amended his complaint, Defendants were entitled to amend their
answer to assert new defenses. See, e.g., Diesel Props S.r.L. v. Greystone Bus. Credit II LLC,
No. 07 Civ. 9580 (HB), 2008 WL 4833001, at *5 (S.D.N.Y. Nov. 5, 2008). Defendants raised
Plaintiffs failure to exhaust as an affirmative defense in answering the 2AC, thereby preserving
that defense for purposes of this motion. See, e.g., Avent v. Solfaro, No. 02 Civ. 914 (DAB)
(RLE), 2010 WL 2985904, at *3 (S.D.N.Y. July 29, 2010) ("Having raised the defense in their
Answer, Defendants clearly have not waived the exhaustion defense."); see also Massey v.
Helman, 196 F.3d 727, 735 (7th Cir. 1999) (holding that exhaustion defense was not waived
despite defendants' failure to raise it in answering plaintiffs earlier pleadings); Legal Aid Soc '.Y
v. City ofNew York, 114 F. Supp. 2d 204, 222 (S.D.N.Y. 2000) (same). 15 Moreover, Plaintiff
15
The Second Circuit has held that defenses involving "core issue[s] of a party's willingness to submit a dispute to
judicial resolution," are not revived by the filing of an amended complaint. Gilmore v. Shearson/Am. Exp. Inc., 811
28
does not argue that he was prejudiced by Rodas's failure to raise exhaustion earlier. The parties
were able to take discovery after Defendants answered the 2AC, at which point Plaintiff was on
notice that his failure to exhaust was at issue. See Dkt. No. 53 (providing that discovery would
extend for three months after Defendants' answer); Sharijf v. Coombe, 655 F. Supp. 2d 274, 287
(S.D.N.Y. 2009) (rejecting plaintiffs' waiver argument because it was "apparent to the Court that
the parties have produced discovery on the exhaustion issue").
Plaintiff's reliance on Handberry v. Thompson, 436 F.3d 52 (2d Cir.), amended on other
grounds on reh 'g, 446 F.3d 335 (2d Cir. 2006), is unavailing. In Handberry, the Second Circuit
affirmed the district court's conclusion that certain defendants could not raise an exhaustion
defense on summary judgment because all the information relevant to that defense was available
before discovery-at which time the defendants denied that the defense applied, suggesting to
the plaintiffs that "prison grievance procedures were not available" for them to invoke. Id. at 60.
Unlike in this case, there were no intervening amendments that altered the set of claims and
defenses subject to litigation. Also unlike in this case, the plaintiffs in Handberry were given the
impression that discovery would be irrelevant to exhaustion.
Accordingly, the Court concludes that Rodas has not waived his failure-to-exhaust
defense. And because the undisputed record evidence establishes that Plaintiff failed to exhaust
his administrative remedies, the Court grants Defendants' motion for summary judgment with
respect to Plaintiff's retaliation claim.
F.2d I 08, 112 (2d Cir. 1987), overruled on other grounds by Gulfstream Aerospace C01p. v. Mayacamas Corp., 485
U.S. 271 (1988). But that principle appears to be applicable only to the kinds of defenses listed in Federal Rule of
Civil Procedure 12(b)(2)-(5), which are subject to stricter waiver rules. See Fed. R. Civ. P. 12(h); Rosenberg v. City
ofNew York, No. 09 Civ. 4016 (CBA) (LB), 2011WL4592803, at *15-16 (E.D.N.Y. Sept. 30, 2011); Pruco Life
Ins. Co. v. Wilmington Trust Co., 616 F. Supp. 2d 210, 215 (D.R.!. 2009).
29
IV.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in
its entirety. The Clerk of Court is requested to terminate this case.
SO ORDERED.
't. ( ,
2014
Dated: March
New York, New York
30
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