Dilworth et al v. Goldberg et al
Filing
476
OPINION AND ORDER re: 440 MOTION for Summary Judgment. filed by June Yozzo, Alan Schramm, M.D., Barry Muller, Terry Alexander, Randy Goldberg, M.D., John Foy, Gary Klivans, Danielle Kenney, Tracy James, Anthony Amicucci, Richard Mac cabee, Alvin Rogers, Scott Driesen, Edward Schmidt, Dennis Quast, Patrick Garrett, Jeremiah Tejeda, Joseph Spano, Westchester County Health Care Corporation, Edward Quinoy, Jason Santos, Jean Kadel, Frederick Lantz, Christopher Smith, R onald Freeman, Keith Wyatt, Robert Patrick, Michael Birrittella, James Soychak, John O'Neill, Patrick Poggi, Michael Bourhill, Frank Foes, Peter Savino, Westchester County, Anthony SanMarco, Gail Bailey-Wallace, M.D..In summary, De fendants' motion for summary judgment is GRANTED on all counts except for Dilworth's religious exercise claim against Defendant Rogers. In addition, Plaintiff's objections to Magistrate Judge Gorenstein's discovery order are DE NIED. Within thirty days of this Opinion and Order, the parties shall submit to the Court for its approval a Joint Pretrial Order prepared in accordance with the Court's Individual Rules and Practices and Fed. R. Civ. P. 26(a)(3). The parties shall also follow Paragraph 5 of the Court's Individual Rules and Practices, which identifies submissions that must be made at or before the time of the Joint Pretrial Order, including any motions in limine. The Clerk of the Court is directed to terminate Docket No. 440 and to mail a copy of this Order to Patricia Dilworth. (Signed by Judge Jesse M. Furman on 8/1/2014) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
ANTHONY G. DILWORTH et al.,
:
:
Plaintiffs,
:
:
-v:
:
RANDY A. GOLDBERG, M.D. et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
08/01/2014
10-CV-2224 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Anthony Dilworth (“Plaintiff” or “Dilworth”) and his wife, Patricia Dilworth, bring this
action against Westchester County, the Westchester County Health Care Corporation
(“WCHCC”), and over fifty employees of the Westchester County Department of Correction.
The allegations in the sprawling complaint relate primarily to Dilworth‟s detention at the
Westchester County Jail (the “WCJ”) from October 2008 to September 2009. The operative
Complaint asserts sixteen causes of action, most of which are brought pursuant to Title 42,
United States Code, Section 1983 against various combinations of Defendants. (Docket No.
340).1 Defendants now move for summary judgment, pursuant to Rule 56 of the Federal Rules
1
Specifically, the operative Complaint asserts the following causes of action: (1) Ҥ 1983
Claim for Denial of Medical Care”; (2) “§ 1983 Claim for Race Motivated Denial of Medical
Treatment”; (3) “§ 1983 Claim for the Use of Excessive Force”; (4) “§ 1983 Claim for Failure to
Intercede in the Use of Excessive Force”; (5) “§ 1983 Claim for Violation of the Right to Privacy
Guaranteed by the Ninth Amendment”; (6) “§ 1983 Claim for Denying and Placing Substantial
Burdens on Religious Exercise”; (7) “§ 1983 Claim for Unconstitutional Conditions of
Confinement”; (8) “§ 1983 Claim for Intentional Racial Discrimination”; (9) “§ 1983 Claim for
Supervisory Liability”; (10) “§ 1983 Claim for Violation of First Amendment Rights”;
(11) “§ 1983 Claim for Violation of Fourth and Fourteenth Amendment Rights”; (12) “§ 1983
Monell Claim Against Westchester County and WCHCC”; (13) “Pendent Claim for
Negligence”; (14) “Pendent Claim for Medical Negligence”; (15) “Pendent Claim for Breach of
of Civil Procedure. (Docket No. 440). Also before the Court are Plaintiff‟s objections to certain
discovery rulings made by Magistrate Judge Gabriel W. Gorenstein, to whom this case is
referred for general pretrial purposes. (Docket Nos. 423, 53). For the reasons stated below,
Defendants‟ motion for summary judgment is GRANTED except as to one claim against one
Defendant, and Plaintiff‟s objections to Magistrate Judge Gorenstein‟s rulings are rejected.
SUMMARY JUDGMENT MATERIALS
Before recounting the facts of this case, the Court must first address a threshold issue
regarding the materials upon which the Court may rely in resolving this motion for summary
judgment. As a general matter, when ruling on a motion for summary judgment, the Court “may
rely only on admissible evidence.” Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (per
curiam) (internal quotation marks omitted). It is axiomatic that such evidence does not include
the allegations in an ordinary complaint; instead, parties must cite to “competent, admissible
evidence,” which may include affidavits, deposition transcripts, or other documents. See
Galasso v. Eisman, Zucker, Klein & Ruttenberg, 310 F. Supp. 2d 569, 574 (S.D.N.Y. 2004); see
also Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999); Esposito
v. Quatinez, No. 09-CV-421 (DRH), 2014 WL 842766, at *2 (E.D.N.Y. Mar. 5, 2014). At the
same time, a verified complaint “is to be treated as an affidavit for summary judgment purposes,
and therefore will be considered in determining whether material issues of fact exist, provided
that it meets the other requirements for an affidavit.” Colon v. Coughlin, 58 F.3d 865, 872 (2d
Cir. 1995); see also Fed. R. Civ. P. 56(c)(4) (providing that an affidavit “must be made on
Contract”; and (16) “Pendent Claim for Loss of Consortium.” (Docket No. 340, 75-83). Most
causes of action are brought only on behalf of Plaintiff Dilworth; only Counts 8 and 16 refer to
Patricia Dilworth in any meaningful way. (See Docket No. 340, ¶¶ 208, 237).
2
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated”).
In this case, Plaintiff argues that the Court should accept the allegations in the operative
Complaint as true for purposes of the present motion because Dilworth “verified the pending
complaint.” (Pl.‟s Mem. Law. Opp‟n Defs.‟ Mot. Summ. J. (“Pl.‟s Opp‟n Mem.”) (Docket No.
462) 2). Where an affidavit is unsworn, however, it must comply with the requirements of Title
28, United States Code, Section 1746, see LeBoeuf, Lamb, Greene & MacRae, L.L.P. v.
Worsham, 185 F.3d 61, 65 (2d Cir. 1999), which requires, among other things, the signature of
the affiant, see 28 U.S.C. § 1746; see also, e.g., Silverman v. Miranda, 918 F. Supp. 2d 200, 218
(S.D.N.Y. 2013) (“In substance, [Section 1746] mandates that a declaration executed within the
United States certify that the contents is (1) true and correct; (2) offered under penalty of perjury;
(3) dated; and (4) signed.” (emphasis added)). Here, the unsworn “verified complaint” is not
signed, and the Court therefore cannot rely on it in resolving the instant motion. The complaint
contains the character “/s” in lieu of the signatures of Plaintiff and Patricia Dilworth, but that
character may substitute as a signature only for an attorney filing a document via the Electronic
Case Filing system. See SDNY Electronic Case Filing Rules & Instructions § 13.14 (“The filing
attorney may sign a document using a digital image of his or her signature or by placing an “s/”
before his or her typed name.”), available at http://www.nysd.uscourts.gov
/ecf/ECF%20Rules%20Revision%20031714.pdf; see also Silverman, 918 F. Supp. 2d at 218
n.18 (declining to consider declarations submitted by non-attorneys in opposition to a motion for
summary judgment where the declarations contained the character “/s/” in lieu of an actual
signature). “Signatures for all other persons (clients, witnesses, etc.) must be scanned in order to
3
capture the actual ink signature.” SDNY Electronic Case Filing Rules & Instructions § 13.14.
Accordingly, the Court will not accept as true the allegations in the operative Complaint.2
FACTUAL BACKGROUND
The following summary of the facts, therefore, is based only on admissible evidence —
primarily, Plaintiff‟s deposition testimony and other documents submitted by Defendants — and
not on the operative Complaint. Plaintiff was arrested in July 2008 “for narcotics,” and
subsequently detained at the WCJ. (Statement Material Facts Pursuant Local Rule 56.1
Submitted Supp. Defs.‟ Mot. Summ. J. (“Defs.‟ Rule 56.1 Statement”) (Docket No. 441), Ex. Q
(“Dilworth Dep.”) 20:8-16). He was released from the WCJ at some point between July and
October 2008, but in early October 2008, he was arrested again, and brought back to the WCJ.
(Dilworth Dep. 20:18-21:5; 22:22-25). Plaintiff was released from the WCJ at some point in
September 2009. (Dilworth Dep. 32:19-23).
Plaintiff‟s allegations largely center around an accident that occurred on December 16,
2008. On that day, Plaintiff slipped and fell while walking down a hallway in the WCJ. (Id.
48:2-24). He testified that, as a result of the fall, he suffered “severe pain” in his head, back, and
legs. (Dilworth Dep. 49:9-11). Video captured by the WCJ‟s surveillance camera on the date in
question shows that Plaintiff was proceeding down a corridor at approximately 1:06 p.m., and
that he slipped and fell at 1:06:50. (Defs.‟ Rule 56.1 Statement, Ex. R). Plaintiff remained on
the floor for approximately fifteen seconds, at which point an inmate who had been buffing the
floor nearby approached Plaintiff and helped him to his feet. (Id.). Plaintiff then rested by
2
Dilworth, who is represented by counsel, was informed of the signature defect on March
26, 2014, when Defendants raised the issue in their reply memorandum of law (Docket No. 471,
4-5), but has made no attempt to remedy it. Patricia Dilworth, who is now proceeding pro se,
was also notified of the defect by virtue of the reply memorandum (which was served on her at
the address she provided the Court), but has neither sought to remedy the signature defect nor
opposed the motion for summary judgment.
4
leaning against a wall for approximately a minute and a half, during which time a group of
fifteen inmates and two prison officials walked past him. (Id.). Plaintiff did not attempt to
interact with either of the prison officials. (Id.). Instead, Plaintiff walked away from the scene,
under his own power and without any visible signs of injury, at 1:09 p.m. (Id.).
The day of the fall, Plaintiff was seen twice by medical personnel at the WCJ medical
facility, where he was given an ice compress, analgesic balm, and Motrin. (Defs.‟ Rule 56.1
Statement ¶ 72; id., Ex. T, at HB000015; 177, 179; Ex. S, at HB002095; Anthony Dilworth‟s
Response to Defs.‟ Rule 56.1 Statement & Counterstatement (“Pl.‟s Rule 56.1 Statement”)
(Docket No. 460) ¶ 72).3 The following day, he was also examined by Dr. Randy Goldberg, a
physician at the WCJ. (Dilworth Dep. 97:18-99:5; 103:2-14). Plaintiff received an X-ray of his
back on December 22, 2008, and an MRI approximately two months later. (Dilworth Dep.
104:19-107:19; 112:4-24; HB00000013; 206-210). From December 16, 2008, to the date of
Plaintiff‟s release from the WCJ, Plaintiff was seen by WCJ medical personnel on approximately
forty-seven occasions, including multiple examinations by Dr. Goldberg. (Defs.‟ Rule 56.1
Statement ¶¶ 71-78; Pl.‟s Rule 56.1 Statement ¶¶ 71-78; see also generally Defs.‟ Rule 56.1
Statement, Exs. S, T).
Plaintiff also testified at his deposition about a number of incidents unrelated to his
medical treatment that took place during his detention at WCJ. Specifically, he testified that he
was prevented from going to church services (Dilworth Dep. 194:19-199:18), that his Bible and
other personal effects were taken from him (id. at 178:19-179:7; 226:7-22), that he was required
3
Exhibits S, T, and Z were properly redacted, as they comprised Plaintiff‟s private medical
records. See, e.g., Wheeler-Whichard v. Doe, No. 10-CV-0358S (DGL), 2010 WL 3395288, at
*7 (W.D.N.Y. Aug. 25, 2010) (noting that courts routinely file medical records under seal). The
Clerk of the Court is directed to maintain the unredacted records under seal.
5
to stand naked in his cell for periods of fifteen to twenty minutes at a time (id. at 172:11-172:12),
and that officers would sometimes press their elbows into his back (id. at 174:4-7).
In addition, at some point after Plaintiff was released from the WCJ, he allegedly found
an orange Westchester County Department of Correction uniform hanging from the doorknob on
the front door of his home. (Id., 113:9-24; 114:20-25; 117:3-5; Decl. Opp‟n Defs.‟ Mot. Summ.
J. (“Deem Decl.”) (Docket No. 461) Exs. 8a, 8b). Plaintiff avers that racial slurs were written on
the uniform in black marker, but, at his deposition, he was unable to identify who wrote the slurs
or who left the uniform at his home. (Dilworth Dep. 114:9-19; 117:6-21). Plaintiff did testify
that the person who left the uniform on his door had driven a red car, and that some months later,
while Plaintiff was at a bar, he saw a Correctional Officer whom he recognized from the WCJ
leave the bar and approach that same red car. (Id. 124:3-12; 126:9-11; 127:2-11).
PROCEDURAL HISTORY
The procedural history of this case is lengthy and has largely been recounted by
Magistrate Judge Gorenstein elsewhere (see Dilworth v. Goldberg, No. 10-CV-2224 (JMF)
(GWG), 2013 WL 5745989, at *1 (S.D.N.Y. Oct. 23, 2013) (Dilworth II) (Docket No. 379);
Dilworth v. Goldberg, 914 F. Supp. 2d 433, 438 (S.D.N.Y. 2012) (Dilworth I) (Docket No.
334)), so the Court will summarize it only briefly here. On May 22, 2009, Plaintiff filed a pro se
complaint, under a separate docket number, alleging mistreatment at the WCJ. (See Docket No.
2, 09-CV-4810). In September 2009, Plaintiff retained counsel, and voluntarily dismissed his
pro se complaint under that docket number. (Docket No. 8, 09-CV-4810). On March 15, 2010,
Plaintiff and Patricia Dilworth filed the instant action. (Docket No. 2). They amended their
complaint for the first time on April 2, 2010, and, after Magistrate Judge Gorenstein granted
them leave to file a second amended complaint, they did so on September 17, 2010, naming over
6
fifty defendants. (Docket Nos. 133-134). Defendants filed five separate motions to dismiss
(Docket Nos. 167, 267, 271, 173, 256), and, on September 30, 2011, the Honorable Richard J.
Holwell — to whom this case was previously assigned — adopted the report and
recommendation of Magistrate Judge Gorenstein, dismissing the claims against many
Defendants, but allowing some claims against certain Defendants affiliated with Westchester
County to proceed (see Docket No. 296).
On January 24, 2012, Plaintiff and Patricia Dilworth moved to amend the Second
Amended Complaint (Docket No. 317). Magistrate Judge Gorenstein granted the motion in part
and denied it in part on September 13, 2012. Dilworth I, 914 F. Supp. 2d 433. Plaintiff and
Patricia Dilworth subsequently filed a Third Amended Complaint (the “TAC”). (Docket No.
340). Magistrate Judge Gorenstein held a pretrial conference the following month (Docket No.
337), setting a schedule for discovery (Docket No. 336), but staying all municipal-liability claims
under Monell v. Department of Social Services, 436 U.S. 658 (1978) (Docket No. 339), agreeing
with Defense counsel that “if [Plaintiff] can‟t prove . . . deliberate indifference to his medical
needs . . . and if there‟s no underlying constitutional violation, there‟s no Monell.” (Docket No.
337, at 9:4-10). On April 4, 2013, Michael Deem, who until that point had represented both
Plaintiff and Patricia Dilworth, withdrew as counsel for Patricia Dilworth, who has since
proceeded in this matter pro se. (Docket No. 354). Subsequently, on August 2, 2013, Plaintiffs
filed a fourth motion to amend the complaint, but Magistrate Judge Gorenstein denied that
motion. Dilworth II, 2013 WL 5745989, at *4 (S.D.N.Y. Oct. 23, 2013). Accordingly, the
operative complaint is the TAC. (Docket No. 340).
On December 20, 2013 — after fact discovery had closed — Plaintiff sought additional
discovery, arguing that the need for the requested documents had not arisen until the close of the
7
discovery period. (Docket No. 413). In an order dated December 26, 2013, Magistrate Judge
Gorenstein denied Plaintiff‟s requests and also ordered Plaintiff to appear for two hours of
additional examination by Defendants‟ psychiatric expert, pursuant to Rule 35 of the Federal
Rules of Civil Procedure. (Docket No. 420). Four days later, Plaintiff objected to that ruling.
(Docket No. 423). Thereafter, Defendants filed the instant motion for summary judgment,
seeking dismissal of the TAC in its entirety. (Docket No. 440). Pursuant to this Court‟s Local
Rule 56.2, Defendants served Patricia Dilworth with notice of the motion (Docket No. 443), but
she failed to submit any opposition papers. Plaintiff, meanwhile, applied for and was granted an
extension to oppose the motion (Docket Nos. 445-46), but as noted failed to submit opposition
papers by the Court-extended deadline. Plaintiff finally submitted his opposition papers ten days
late.4 (Docket Nos. 461-62).
Notably, in addition to being late, Plaintiff‟s papers largely fail to address Defendants‟
arguments except in the vaguest and most conclusory terms.5 In fact, Plaintiff‟s summary
judgment papers are so inadequate and so unresponsive to the points that Defendants raise that
the Court would be on firm ground in deeming all Plaintiff‟s claims abandoned and summarily
dismissing the entire case. See Di Giovanna v. Beth Isr. Med. Ctr., 651 F. Supp. 2d 193, 208
4
After Plaintiff submitted his opposition papers late, the Court ordered him to show cause
why the Court should not strike the opposition memoranda or impose other sanctions, and
required Plaintiff‟s counsel to submit an affidavit explaining the tardiness of his submissions and
his failure to seek the Court‟s leave to file them late. (Docket No. 463). Plaintiff‟s counsel‟s
explanation was essentially that he had misread a Court Order and was overwhelmed by work on
other matters. (See Docket No. 464). Notwithstanding this unsatisfactory explanation, the Court
ultimately declined to strike the submissions or impose other sanctions against Plaintiff or his
counsel, instead warning Plaintiff that continuing failures to abide by the Court‟s deadlines “will
result in sanctions being imposed on Plaintiff, Plaintiff‟s counsel, or both.” (Docket No. 465).
5
Perhaps tellingly, Plaintiff refers to the instant motion for summary judgment as a motion
to dismiss. (See Pl.‟s Opp‟n Mem. 2-3 (“[T]he defendants‟ motion to dismiss . . . must be
denied.” (emphasis added)).
8
(S.D.N.Y. 2009). Additionally, Plaintiff‟s Rule 56.1 Counterstatement provides almost no
specific citations to the record, in contravention of Local Rule 56.1. See S.D.N.Y. Local Civ. R.
56.1(d) (“Each statement by the . . . opponent pursuant to Rule 56.1(a) and (b), including each
statement controverting any statement of material fact, must be followed by citation to evidence .
. . .”). Those failings have essentially forced the Court to sift through the record and make
Plaintiff‟s case for him. Finally, although not necessarily relevant to the instant motion for
summary judgment, the Court has serious doubts about the credibility of Plaintiff‟s testimony,
given that Plaintiff was unable to provide any details about many Defendants in this action (see
Defs.‟ Rule 56.1 Statement ¶¶ 42-63), not to mention the fact that the video of the slip and fall at
the heart of the case clearly shows Plaintiff walking away from the scene under his own power,
apparently unharmed. Notwithstanding these failings and reasons to be skeptical, however, the
Court will consider the motion for summary judgment on its merits.
MOTION FOR SUMMARY JUDGMENT
A.
Legal Standards
Summary judgment is appropriate when the record demonstrates that there are no genuine
disputes as to any material facts and that one party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the initial burden of informing the court of the basis for its motion and identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
that demonstrate the absence of a genuine dispute regarding any material fact. See Fed. R. Civ.
P. 56(c); Celotex, 477 U.S. at 322. In ruling on a motion for summary judgment, all evidence
9
must be viewed in the light most favorable to the non-moving party, Overton v. N.Y. State Div. of
Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must “resolve all
ambiguities and draw all permissible factual inferences in favor of the party against whom
summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391
F.3d 77, 83 (2d Cir. 2004).
The motion for summary judgment is directed not only at the claims of Dilworth, who
has opposed the motion and is represented by counsel, but also those of Patricia Dilworth, who
has not opposed the motion and is proceeding pro se. When a summary judgment motion is
brought against a pro se litigant, the Court must afford the non-movant with “special solicitude”
in the construction of pleadings and motions and in the enforcement of procedural rules. See
Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010) (“[I]n light of the particular difficulties
presented by a motion for summary judgment . . . a district court errs by failing to advise a pro se
litigant of the nature of such a motion and the consequences of failing to respond to it
properly . . . .”). That special solicitude is not unlimited, however, and it does not “relieve [a]
plaintiff of [her] duty to meet the requirements necessary to defeat a motion for summary
judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation
marks omitted). Additionally, the fact that a summary judgment motion is unopposed “does not
[by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483,
486 (2d Cir. 1996) (per curiam); see also Vt. Teddy Bear, 373 F.3d at 224. Instead, the Court
must (1) determine what material facts, if any, are disputed in the record presented on the
motion, and (2) assure itself that, based on those undisputed material facts, the law indeed
warrants judgment for the moving party. See Champion, 76 F.3d at 486; Allen v. Comprehensive
10
Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001). With that, the Court turns to
the motion‟s merits.
B.
Deliberate Indifference
Plaintiff‟s deliberate-indifference claims center on the medical treatment that he received
at the WCJ after his slip and fall. In particular, Plaintiff testified that Dr. Goldberg provided him
with inadequate treatment by failing to send him to the hospital after the accident (Dilworth Dep.
99:6-10); by refusing to order him new crutches (id. at 137:22-138:6); by causing him pain
during an examination (id. at 133:24-134:7); and by requiring him to walk without his crutches,
thereby causing him to fall (id. at 135:21-137:12). In addition, Plaintiff brings deliberate
indifference claims against Defendants Jean Kadel and June Yozzo for failing to report Dr.
Goldberg‟s inadequate medical treatment (id. at 164:4-7), failing to intervene during the
examination when Dr. Goldberg hurt Plaintiff (id. at 156:16-159:14), and instructing Plaintiff not
to submit additional sick-call slips (id. at 159:19-25).
All of these claims, however, fail as a matter of law. “[T]he Due Process Clause of the
Fourteenth Amendment protects pretrial detainees from inadequate medical care by the state.”
Burks v. Nassau Cnty. Sheriff’s Dep’t, 288 F. Supp. 2d 298, 301-02 (E.D.N.Y. 2003). “[T]he
standard for analyzing a pre-trial detainee‟s Fourteenth Amendment claim,” however, “is the
same as the Eighth Amendment standard.” Id. (internal quotation marks omitted). To make out
such a case, a plaintiff must show that the alleged inadequacy is, objectively speaking,
“sufficiently serious,” and that the defendant acted with “a mental state equivalent to subjective
recklessness.” Sledge v. Fein, No. 11-CV-7450 (PKC), 2013 WL 1288183, at *5 (S.D.N.Y. Mar.
28, 2013) (internal quotation marks omitted).
11
In the main, Plaintiff‟s claims against Dr. Goldberg constitute “mere disagreement over
the proper treatment,” which does not give rise to an Eighth Amendment claim. Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). In addition, Plaintiff‟s claims that he suffered
temporary pain during an examination and that he fell after Dr. Goldberg instructed him to walk
without crutches are not sufficiently serious for purposes of an Eighth Amendment claim. See
Chatin v. Artuz, 28 Fed. App‟x 9, 11 (2d Cir. 2001) (summary order) (holding that allegations
that “a nurse failed to provide [plaintiff] immediately with crutches” did not rise to the level of
deliberate indifference); Wandell v. Koenigsmann, No. 99-CV-8652 (WHP), 2000 WL 1036030,
at *4 (S.D.N.Y. July 27, 2000) (collecting cases for the proposition that “[w]hether an injured
prisoner should be provided crutches is a medical judgment as to the appropriate course of
treatment, and disagreement with that decision is not actionable under the Eighth Amendment”).
Finally, Plaintiff submits no evidence that any of the Defendants — including Dr. Goldberg,
Kadel, and Yozzo — acted with a sufficiently culpable state of mind. To the contrary, the record
indicates that during the approximately nine months between Plaintiff‟s fall and his release from
the WCJ, Plaintiff received extensive medical treatment at the WCJ, including nearly fifty
appointments at the patient clinic, an X-ray exam, and an MRI. (Defs.‟ Rule 56.1 Statement ¶¶
71, 76; Pl.‟s Rule 56.1 Statement ¶ 71; Defs.‟ Rule 56.1 Statement, Exs. S, T). See also Buffaloe
v. Fein, 12-CV-9469 (AJP), 2013 WL 5815371, at *8 (S.D.N.Y. Oct. 24, 2013) (finding no
deliberate indifference where plaintiff‟s medical records “demonstrate . . . that doctors were
monitoring [plaintiff‟s] condition”), adopted by Buffaloe v. Fein, 12-CV-9469 (GBD), 2014 WL
1224446 (S.D.N.Y. Mar. 20, 2014). Accordingly, Plaintiff‟s deliberate-indifference claims must
be and are dismissed.
12
C.
Race-Based Denial of Medical Treatment
Plaintiff‟s second cause of action is labeled a claim for “Race Motivated Denial of
Medical Treatment,” against Dr. Goldberg and Alvin Rogers. (TAC 76). The Court understands
the claim to be that those Defendants violated Plaintiff‟s rights under the Equal Protection Clause
of the Fourteenth Amendment. To prove such a violation, Plaintiff “must prove purposeful
discrimination directed at an identifiable or suspect class.” Giano v. Senkowski, 54 F.3d 1050,
1057 (2d Cir. 1995) (citation omitted). Plaintiff‟s evidence, however, is wholly insufficient. At
most, Plaintiff identifies a somewhat distasteful comment by Dr. Goldberg (see Dilworth Dep.
283:2 (telling Plaintiff “[y]ou people got to have soul,”)), but Plaintiff presents no evidence that
the medical care that he received was inferior to that received by detainees of other races.
Accordingly, Plaintiff‟s second cause of action must be and is dismissed. See, e.g., Giano, 54
F.3d at 1057 (“[Plaintiff] presents no evidence that the policy discriminated against a particular
class of inmates. . . . Thus, [Plaintiff‟s] equal protection claim fails.”).
D.
Excessive Force and Failure to Intervene
The Court now addresses Plaintiff‟s third cause of action, alleging excessive force, which
he brings against Defendants Rogers and Jeremiah Tejeda. As with his deliberate-indifference
claims, Plaintiff‟s excessive-force claims are analyzed under the Due Process Clause of the
Fourteenth Amendment, but the analysis is practically the same as is used to analyze claims by
convicted inmates under the Eighth Amendment. See, e.g., Tavares v. City of New York, No. 08CV-3782 (PAE), 2011 WL 5877548, at *3 (S.D.N.Y. Nov. 23, 2011). To establish an excessiveforce claim, Plaintiff must satisfy a two-part inquiry focusing on both the objective and
subjective nature of the conduct at issue. First, Plaintiff must show that the use of force is
“objectively sufficiently serious or harmful enough to be actionable.” United States v. Walsh,
13
194 F.3d 37, 50 (2d Cir. 1999); see also Cunningham v. Rodriguez, No. 01-CV-1123 (DC), 2002
WL 31654960, at *4 (S.D.N.Y. Nov. 22, 2002). Second, Plaintiff must establish that the
defendant acted with a “sufficiently culpable state of mind, shown by actions characterized by
wantonness.” Walsh, 194 F.3d at 50 (internal quotation marks omitted).
Plaintiff fails to satisfy the first prong of the inquiry. Plaintiff testified that Rogers
instructed him to strip off his clothes and remain standing without his crutches for approximately
fifteen to twenty minutes (Dilworth Dep. 171:8-173:10), and that Rogers put pressure on his
back using Rogers‟s elbow, and instructed other officers, including Tejeda, to do the same (id. at
173:15-176:8). “The Eighth Amendment‟s prohibition of cruel and unusual punishments,”
however, “necessarily excludes from constitutional recognition de minimis uses of physical
force.” Hudson v. McMillan, 503 U.S. 1, 9-10 (1992) (internal quotation marks omitted). Here,
Plaintiff provides no evidence that any of Defendants‟ alleged actions caused him any lasting
harm. Although the extent of injury is not dispositive, it is nevertheless relevant, and “an inmate
who complains of a push or shove that causes no discernible injury almost certainly fails to state
a valid excessive force claim.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); see also, e.g., Robison
v. Via, 821 F.2d 913, 923 (2d Cir. 1987) (holding that the district court should have dismissed a
claim where allegations did not “come[] close to describing force that was injurious, malicious,
or excessive”); Tavares v. City of New York, No. 08-CV-3782 (JCF), 2011 WL 5877550, at *4-7
(S.D.N.Y. Oct. 17, 2011) (recommending dismissal of an excessive-force claim where the
plaintiff failed to show an “actionable injury”), adopted by Tavares, 2011 WL 5877548.
Accordingly, Plaintiff‟s excessive-force claims are dismissed. It follows that his fourth claim —
against Defendant Keith Wyatt for “Failure to Intercede in the Use of Excessive Force” (TAC
¶ 195) — fails as well. See, e.g., Foy v. City of New York, No. 03-CV-7318 (HB), 2004 WL
14
2033074, at *3 (“[T]here can be no failure to intervene where there was no constitutional
violation.”).
E.
Right to Privacy
Next, Plaintiff alleges that Defendants Rogers, Tejeda, and Wyatt violated his “right to
privacy” by reading his “personal diaries, legal work product, legal documents, disclosing his
highly sensitive medical condition . . . , and arbitrarily compelling him to strip naked in full view
of his entire housing area on two separate occasions.” (TAC ¶ 198). Quite simply, there is no
evidence in the record to support any of those claims. Nowhere in Plaintiff‟s deposition does he
mention any officers reading his personal documents and, although he states that Defendant
Rogers ordered him to strip on multiple occasions, the Supreme Court has noted that “courts
should ordinarily defer to [the] expert judgment [of prison officials] in such matters,” unless
there is “substantial evidence in the record to indicate that the officials have exaggerated their
response to” security considerations. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510,
1517 (2012). No such evidence exists here. Accordingly, the privacy claims are without merit
and are hereby dismissed.
F.
Religious Exercise
Plaintiff also brings claims against several Defendants for interfering with his right to
freely exercise his religious beliefs. To establish a free-exercise claim, Plaintiff must show that
the disputed conduct “substantially burdens his sincerely held religious beliefs.” Salahuddin v.
Goord, 467 F.3d 263, 274-75 (2d Cir. 2006); see also LaRock v. Amato, No. 9:12-CV-503
(TJM), 2013 WL 5466410, at *8-9 (N.D.N.Y. Sept. 30, 2013) (applying First Amendment
freedom-of-religion protections to pretrial detainee); Nolley v. Cnty. of Erie, No. 07-CV-488S
(WMS), 2008 WL 859165, at *5-6 (W.D.N.Y. Mar. 31, 2008) (same). Defendants then “bear the
15
relatively limited burden of identifying the legitimate penological interests that justify the
impinging conduct.” Salahuddin, 467 F.3d at 75. As with any claim brought under Section
1983, Plaintiff must provide evidence of the Defendants‟ personal involvement in the alleged
constitutional deprivation. Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d
Cir. 2013).
Plaintiff provides evidence of personal involvement in the alleged deprivation of free
religious exercise with respect to only two Defendants: Patrick Garrett and Rogers. Specifically,
Plaintiff testified that, “a couple of times,” when he was approaching the chapel to attend
services on a Sunday, Defendant Garrett told Plaintiff to “turn around and go back,” that there
were “vultures flying over the top of [Plaintiff‟s] head,” and instructed Plaintiff to “[t]ake [his]
black ass back to the dorm.” (Dilworth Dep., at 194:19-195:13). Plaintiff also testified that
other officers informed him that a notation had been made “in the logbook” that he was not
allowed to attend church services, and that when Plaintiff said to Rogers “I would like to go to
church,” Rogers responded by saying “You are not going, Dilworth” — although Plaintiff did
not specify how often this occurred. (Id. at 222:10-13, 223:6-15, 224:6-10). Plaintiff also
testified that Defendant Rogers took his Bible. (Id. at 226:7-17).
Significantly, however, the operative Complaint does not include any religious-exercise
claim against Garrett. (TAC ¶ 201). Whether the claim should proceed against Rogers — the
one Defendant who Plaintiff claims, and testified, was personally involved — is a close question.
Courts in this circuit have held that missing two religious services does not constitute a
substantial burden on an inmate‟s right to practice his religion. See, e.g., Shapiro v. Cmty. First
Servs., No. 11-CV-4061 (KAM), 2014 WL 1276479, at *11 (E.D.N.Y. Mar. 27, 2014) (“[N]ot
permitting a prisoner to attend two religious services is a de minimis, or insubstantial, burden on
16
an inmate‟s ability to freely exercise his religion.” (internal quotation marks omitted)). Drawing
all inferences in Plaintiff‟s favor, however, a reasonable jury could find that Plaintiff was never
permitted to attend religious services; if true, that could indeed constitute a constitutional
violation, see Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (“It is well established
that prisoners have a constitutional right to participate in congregate religious services.”).
Defendants offer no penological justification — legitimate or not — for that deprivation.
Further, Defendants offer no explanation as to why Rogers confiscated Plaintiff‟s Bible, which
could also form the basis for a free exercise claim. See, e.g., Shepherd v. Powers, No. 11-CV6860 (LTS), 2012 WL 4477241, at *8 (S.D.N.Y. Sept. 27, 2012) (holding that plaintiff stated a
free exercise claim where he alleged that he was denied access to his personal Bible and Sunday
group worship). Accordingly, Plaintiff‟s free exercise claim survives, but only with respect to
Defendant Rogers.
G.
Unconstitutional Conditions of Confinement
Next, the Court turns to Plaintiff‟s unconstitutional conditions claim. For a pretrial
detainee to establish a claim for unconstitutional conditions of confinement, he must show that
“the conditions amount to „punishment‟ without due process in violation of the Fourteenth
Amendment.” Lareau v. Manson, 651 F.2d 96, 102 (2d Cir. 1981). “To state a[] . . . Fourteenth
Amendment claim based on conditions of confinement, a detainee must allege that:
(1) objectively, the deprivation the detainee suffered was sufficiently serious that he was denied
the minimal civilized measure of life‟s necessities, and (2) subjectively, the defendant official
acted with a sufficiently culpable state of mind, such as deliberate indifference to detainee health
or safety.” Best v. N.Y.C. Dep’t of Corr., No. 12-CV-7028 (KMK), 2014 WL 1612984, at *13
(S.D.N.Y. Mar. 31, 2014) (internal quotation marks and alterations omitted).
17
Having reviewed the record, the Court finds no evidence that Plaintiff was denied “the
minimal civilized measure of life‟s necessities.” In fact, the TAC fails to identify any specific
deprivations that form the basis for this claim and instead makes the vague allegation that some
Defendants “subjected [Plaintiff] to unconstitutional conditions of confinement through the
cumulative effects of their acts and omissions.” (TAC ¶ 204). Plaintiff‟s opposition
memorandum of law sheds no light on the matter either, and, as Defendants‟ memorandum of
law amply demonstrates, nothing in Plaintiff‟s deposition suggests that any particular Defendant
should be held liable for a conditions-of-confinement claim. (Mem. Law. Supp. Defs.‟ Mot.
Summ. J. (“Defs.‟ Mem.”) (Docket No. 442) 23-25). The claim is therefore meritless and hereby
dismissed.
H.
Racial Discrimination
The racial discrimination claims set forth in the TAC — on behalf of both Plaintiff and
Patricia Dilworth (TAC ¶¶ 207-08) — must also be dismissed. The primary basis for those
claims appears to be the incident when, after Plaintiff had been released from the WCJ, a prison
uniform was allegedly left in front of Plaintiffs‟ home. (Dilworth Dep. 113:9-117:21; Defs.‟
Rule 56.1 Statement, Ex. L (“Patricia Dilworth Dep.”) 32:6-33:5; Deem Decl., Exs. 8a, 8b).
Plaintiffs, however, provide no evidence as to who placed the uniform there (and their accounts
of how the uniform was discovered differ in material respects (see Defs.‟ Mem. 25-26)).
Accordingly, they have not, and cannot, establish the personal involvement of any Defendant
required to establish a Section 1983 claim. See Spavone, 719 F.3d at 135. To the extent that
Dilworth‟s discrimination claims are also predicated on Defendant Patrick having instructed him
to “get [his] black ass back into the dorm” while at WCJ (Dilworth Dep. 195:12-13), they must
also be dismissed, as “[v]erbal threats or harassment, unless accompanied by physical force or
18
the present ability to effectuate the threat, are not actionable under § 1983.” Montero v. Crusie,
153 F. Supp. 2d 368, 376 (S.D.N.Y. 2001); see also Amaker v. Foley, No. 94-CV-843E (SR),
2003 WL 21383010, at *4 (W.D.N.Y. Feb. 18, 2003) (“[B]ecause plaintiff has not alleged that he
was ever physically threatened . . . without more, his allegations of verbal threats, abusive
language and racial epithets cannot from the basis of a section 1983 claim.”). Plaintiffs‟ racial
discrimination claims are therefore dismissed.
I.
Retaliation
The TAC alleges that numerous Defendants retaliated against Plaintiff in various ways —
including by “threatening physical harm, threatening the lives of his children, [and] denying him
the right to practice his religion” for “having filed a federal lawsuit.” (TAC ¶ 214). The only
evidence in the record to support a retaliation claim, however, is Plaintiff‟s deposition testimony
that Defendant Rogers prevented him from receiving proper medical care because he was
“pursuing a lawsuit.” (Dilworth Dep. 155:13-23). That statement, however, is entirely
conclusory, and Plaintiff fails to provide any evidence that his commencement of legal
proceedings “was a substantial or motivating factor” behind Defendant Rogers‟s — or any other
Defendant‟s — allegedly retaliatory acts. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996). Accordingly, Plaintiff‟s retaliation claims must be and are dismissed.
J.
Due Process
Plaintiff‟s due process claim appears to be based on the alleged confiscation of his Bible,
some prayer books, and family pictures, as well as Defendants‟ alleged refusal to accept
Plaintiff‟s grievances regarding those confiscations. (TAC ¶ 151(f), 218). The claim fails,
however, because “[a]n unauthorized intentional deprivation of property by a state employee
does not constitute a violation of the procedural requirements of the Due Process Clause of the
19
Fourteenth Amendment if a meaningful post[-]deprivation remedy for the loss is available.”
Hudson v. Palmer, 468 U.S. 517, 533 (1984). It is well established that New York offers such a
remedy through Article 78 proceedings. See Kindell v. N.Y. State Dep’t of Corr., No. 12-CV4579 (LGS), 2013 WL 6164439, at *2 (S.D.N.Y. Nov. 22, 2013).
K.
Supervisory Liability and Monell Claims
In light of the foregoing, Plaintiff‟s supervisory-liability and municipal-liability claims —
his only other claims under federal law — must also be dismissed. In the absence of an
underlying constitutional violation, a plaintiff cannot state a claim for supervisory liability or a
claim under Monell. See Elek v. Inc. Vill. of Monroe, 815 F. Supp. 2d 801, 808 (S.D.N.Y. 2011)
(“[B]ecause Plaintiff has not established any underlying constitutional violation, she cannot state
a claim for § 1983 supervisor liability.”); Schultz v. Inc. Vill. of Bellport, 479 Fed. App‟x 358,
360 (2d Cir. 2012) (summary order) (“Because [Plaintiff] was unable to establish an underlying
violation of his constitutional rights . . . his . . . Monell claim necessarily fail[s] as well.”). Here,
for the reasons stated above, the only claim that survives Defendants‟ motion for summary
judgment is Plaintiff‟s religious-exercise claim against Defendant Rogers. As to that claim, the
record contains no allegations, let alone evidence, that any Defendant was personally involved in
a way that could support a finding of supervisory liability. See, e.g., Colon, 58 F.3d at 873
(discussing ways in which a plaintiff may show personal involvement for purposes of
establishing supervisory liability); see also, e.g., Grullon v. City of New Haven, 720 F.3d 133,
139 (2d Cir. 2013) (noting that the Supreme Court‟s decision in Ashcroft v. Iqbal, 556 U.S. 662
(2009), “may have heightened the requirements for showing a supervisor‟s personal involvement
with respect to certain constitutional violations” beyond those set forth in Colon). Similarly,
Plaintiff makes no allegation, and submits no evidence, that Defendant Rogers‟s actions were
20
undertaken pursuant to any “municipal policy or custom.” City of Canton v. Harris, 489 U.S.
378, 385 (1989).
L.
State Law Claims
Finally, the TAC also includes four state law claims: a claim by Plaintiff for negligence
against Westchester County for “failing to maintain the hallway in the Westchester County Jail
free of hazards on December 16, 2008” (TAC ¶ 228); a claim by Plaintiff for “medical
negligence” against Westchester County and Westchester County Health Care Corporation for
“denying and delaying medical care from December 16, 2008 to September 23, 2009” (TAC
¶ 231); a claim by Plaintiff for breach of contract (TAC ¶¶ 233-34); and a claim by Patricia
Dilworth for loss of consortium (TAC ¶ 236-37). In his memorandum of law, Plaintiff
unambiguously withdraws his claim for breach of contract. (Pl.‟s Opp‟n Mem. 4). The
remaining claims all fail as a matter of law.
Plaintiff‟s first claim — arising from his slip and fall on December 16, 2008 — fails
because he did not comply with New York General Municipal Law Sections 50-e and 50-h.
(Def.‟s Mem. 31-32; Reply Mem. Supp. Defs.‟ Mot. Summ. J. (“Def.‟s Reply Mem.”) (Docket
No. 471) 9). Section 50-e of the General Municipal Law requires a plaintiff bringing tort claims
against a municipality to serve a notice of claim on the municipality within ninety days of when
the claim arose, and section 50-h grants the municipality the right to demand an oral examination
of the plaintiff. N.Y. Gen. Mun. Law §§ 50-e, 50-h; see also Hardy v. N.Y.C. Health & Hosp.
Corp., 164 F.3d 789, 793 (2d Cir. 1999); Simon v. City of New York, No. 09-CV-1302, 2011 WL
317975, at *15 (E.D.N.Y. Jan. 3, 2011). Failure to comply with these requirements requires
dismissal of the cause of action. See Hardy, 164 F.3d at 794; Kemp v. Cnty. of Suffolk, 878
N.Y.S.2d 135, 136 (2d Dep‟t 2009). Here, Plaintiff argues that he complied with Sections 50-e
21
and 50-h by attending a hearing on August 19, 2009, for which he filed a notice of claim on May
20, 2009. (Pl.‟s Opp‟n Mem. 3; see also Defs.‟ Rule 56.1 Statement, Exs. B, C). That notice of
claim, however, was filed more than ninety days after his fall, however, so it cannot serve as the
basis for Plaintiff‟s compliance with Section 50-e with respect to Plaintiff‟s first negligence
claim. (See also Docket No. 296, at 8).
Plaintiff may have complied with Sections 50-e and 50-h with respect to the second state
law claim — for “medical negligence” against Westchester County and WCHCC — but that
claim fails for other reasons. First, it appears that Plaintiff may have abandoned the claim, as
Plaintiff states in his opposition memorandum of law that “plaintiff does not have pending claims
for medical malpractice.” (Pl.‟s Opp‟n Mem. 3). In any event, the claim must be dismissed
because Plaintiff offers no evidence in support of a claim for medical malpractice or negligence.
See E’Elia v. Menorah Home & Hosp. for Aged & Infirm, 859 N.Y.S.2d 224, 226 (2d Dep‟t
2008) (noting that “medical malpractice is simply a form of negligence,” and that “[g]enerally, a
claim will be deemed to sound in medical malpractice when the challenged conduct constitutes
medical treatment or bears a substantial relationship to the rendition of medical treatment by a
licensed physician” (internal quotation marks omitted)). Put simply, there is no evidence in the
record indicating that a physician “deviated or departed from accepted community standards of
practice,” as is required for a claim of medical malpractice. Stukas v. Streiter, 918 N.Y.S.2d 176,
180 (2d Dep‟t 2011).
Finally, as noted, Patricia Dilworth brings a claim for loss of consortium, alleging that
she was deprived of the “comfort, enjoyment, society and services of her spouse” after his
release from WCJ on September 23, 2009. (TAC ¶ 237). Patricia Dilworth, however, submits
no evidence in support of the claim, which is designed to “compensate for the injury to the
22
marital relationship and to the interest of the injured party‟s spouse in the continuance of a
healthy and happy marital life.” Rangolan v. Cnty. of Nassau, 370 F.3d 239, 248 (2d Cir. 2004)
(internal quotation marks and alterations omitted). In fact, as noted, Patricia Dilworth does not
oppose the summary judgment motion at all, despite the fact that she was served with
Defendants‟ motion papers as well as the required notice that, in opposing the motion, she was
required to submit evidence countering the facts asserted by Defendants and raising specific facts
to support her claims. (See Docket Nos. 440-43). Although her failure to oppose, by itself, does
not warrant dismissal of her claim, see Champion, 76 F.3d at 486, the Court concludes upon
review of the record that Defendants are entitled to dismissal of the claim.
DISCOVERY RULING OBJECTIONS
Next, the Court turns to Plaintiff‟s objections to Magistrate Judge Gorenstein‟s December
26, 2013 discovery rulings. (See Docket No. 420). Plaintiff objects to the rulings in four ways.
First, Plaintiff contends that Magistrate Judge Gorenstein erred by denying his request to
subpoena the telephone and billing records of Dr. Stuart Kleinman, Defendants‟ expert who had
conducted a psychological examination of Plaintiff pursuant to Rule 35 of the Federal Rules of
Civil Procedure. (Plaintiff‟s Objections Rulings Hon. Gabriel W. Gorenstein, U.S.M.J. Dated
Dec. 26, 2013 (“Pl.‟s Objections”) (Docket No. 423) 7-9). Second, Plaintiff objects to
Magistrate Judge Gorenstein‟s denial of a request for further discovery regarding private
investigators allegedly hired by Defendants to follow Plaintiff. (Id. 9-11). Third, Plaintiff argues
that Magistrate Judge Gorenstein should not have denied Plaintiff‟s request for discovery
regarding telephone conversations he had with employees of the Westchester County
Department of Social Services HEAP Program, a program that assists low-income residents with
home heating costs. (Id. 11-12). Finally, Plaintiff argues that he should not have been ordered to
23
submit to an additional two hours of examination by Dr. Kleinman, as Magistrate Judge
Gorenstein ordered him to do. (Id. 12-14).
All of Plaintiff‟s objections are without merit. Where a magistrate judge has ruled on a
nondispositive pretrial matter, “[t]he district judge . . . must . . . modify or set aside any part of
the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). A finding is
“clearly erroneous” if “the reviewing court . . . is left with the definite and firm conviction that a
mistake has been committed,” and is “contrary to law” if it “fails to apply to or misapplies
relevant statutes, case law, or rules of procedure.” MASTR Adjustable Rate Mortgs. Trust v. UBS
Real Estate Sec. Inc., No. 12-CV-7322 (HB), 2013 WL 6840282, at *1 (S.D.N.Y. Dec. 27, 2013)
(internal quotation marks omitted). “A party seeking to overturn a discovery order therefore
bears a heavy burden,” and reversal of a magistrate‟s decision is appropriate “only if [the
magistrate‟s] discretion is abused.” Id. (internal quotation marks omitted). Plaintiff comes
nowhere close to meeting this burden.
With respect to Plaintiff‟s request to subpoena Dr. Kleinman‟s telephone and billing
records, “[s]ubpoenas issued under Rule 45 of the Federal Rules of Civil Procedure are subject to
Rule 26(b)(1)‟s overriding relevance requirement.” During v. City Univ. of N.Y., No. 05-CV6992 (RCC), 2006 WL 2192843, at *2 (S.D.N.Y. Aug. 1, 2006). Plaintiff argues that such
records are necessary to impeach the effectiveness of Dr. Kleinman‟s examination, as well as any
opinions that he may offer (Pl.‟s Objections 7-9), but Magistrate Judge Gorenstein‟s ruling that
the “potential value of these records does not warrant further pursuit of this matter” was not
clearly erroneous (Docket No. 420 ¶ 4). Plaintiff submits no evidence suggesting that any
telephone calls Dr. Kleinman received during the examination “impair[ed] its effectiveness [or]
render[ed] it adversarial.” Hodge v. City of Long Beach, No. 02-CV-5851 (AKT), 2007 WL
24
2891266, at *6 (E.D.N.Y. Sept. 28, 2007). In any event, it is not clear how telephone or billing
records could possibly shed light on the matter.
Second, Plaintiff‟s objection to the order denying further discovery regarding private
investigators allegedly hired by Defendants is without merit. As Plaintiff admits, Defendants
had previously represented to the Court that no such private investigators exist, and the fact that
Dr. Kleinman told Plaintiff that he “see[s]” that Plaintiff rarely travels outside of Ossining, New
York, does not indicate that Defendants‟ representation was inaccurate.
Third, Magistrate Judge Gorenstein‟s order denying Plaintiff‟s request for records
regarding his “HEAP” benefits is not clearly erroneous or contrary to law. Such records go far
beyond the scope of relevant discovery, see Fed. R. Civ. P. 26(b)(1), as there is no claim in the
TAC regarding Plaintiff‟s receipt of such benefits.
Finally, to the extent that Plaintiff‟s objection to Magistrate Judge Gorenstein‟s ruling
that Plaintiff undergo an additional two hours of examination is not moot, the objection is
rejected as well. It was well within Magistrate Judge Gorenstein‟s discretion to decide that
additional time for the examination was warranted, based on the representation in Defendants‟
December 20, 2013 letter that the examination revealed that Plaintiff has a “very complicated
mental history” and that Plaintiff described “in great detail numerous stressful or traumatic
events related in some way to his mental health” during the examination (Decl. Supp. Pl.‟s
Objections Rulings Hon. Gabriel W. Gorenstein, U.S.M.J. Dated Dec. 26, 2013 (Docket No.
424), Ex. 2); see also Schaeffer v. Sequoyah Trading & Transp., 273 F.R.D. 662, 663-664 & n.5
(D. Kan. 2011) (noting that Federal Rule of Civil Procedure 35(a)(1) “grants the court
discretionary authority to order a party to submit to a physical or mental examination if the
party‟s mental or physical condition is in controversy,” and ordering a two-day examination that
25
“may be extended, depending on what develops during the examination”). The Court also rejects
Plaintiff‟s request to have the remainder of the examination recorded (Pl.‟s Objections 14), as
Plaintiff has failed “to show special circumstances for the need to have a[] court reporter present
at the examination.” E.E.O.C. v. Grief Bros. Corp., 218 F.R.D. 59, 64 (W.D.N.Y. 2003); see
also Tomlin v. Holecek, 150 F.R.D. 628, 631 (D. Minn. 1993) (finding a tape-recording of a Rule
35 examination “inconsistent with the underlying purposes of a Rule 35 examination”).
CONCLUSION
In summary, Defendants‟ motion for summary judgment is GRANTED on all counts
except for Dilworth‟s religious exercise claim against Defendant Rogers. In addition, Plaintiff‟s
objections to Magistrate Judge Gorenstein‟s discovery order are DENIED.
Within thirty days of this Opinion and Order, the parties shall submit to the Court for its
approval a Joint Pretrial Order prepared in accordance with the Court‟s Individual Rules and
Practices and Fed. R. Civ. P. 26(a)(3). The parties shall also follow Paragraph 5 of the Court‟s
Individual Rules and Practices, which identifies submissions that must be made at or before the
time of the Joint Pretrial Order, including any motions in limine.
If this action is to be tried before a jury, joint requests to charge, joint proposed verdict
forms, and joint proposed voir dire questions shall be filed on or before the Joint Pretrial Order
due date in accordance with the Court‟s Individual Rules and Practices. Jury instructions may not
be submitted after the Joint Pretrial Order due date, unless they meet the standard of Fed. R. Civ.
P. 51(a)(2)(A). If this action is to be tried to the Court, proposed findings of fact and conclusions
of law shall be filed on or before the Joint Pretrial Order due date in accordance with the Court‟s
Individual Rules and Practices. Unless the Court orders otherwise for good cause shown, the
parties shall be ready for trial two weeks after the Joint Pretrial Order is filed.
26
Finally, if the parties are interested in a settlement conference, they shall contact the
chambers of Magistrate Judge Gorenstein immediately and so advise the Court by joint letter.
The Clerk of the Court is directed to terminate Docket No. 440 and to mail a copy of this
Order to Patricia Dilworth.
SO ORDERED.
Date: August 1, 2014
New York, New York
27
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?