John Smith v. The United States Department of Justice et al

Filing 50

MEMORANDUM OPINION AND ORDER re: 42 MOTION for Summary Judgment . filed by Daniel Tarallo, Diane Sommer, United States Government, M. Yonnone. Based upon the foregoing, Defendant's motion for summary judgment and to dismiss the Complaint is GRANTED. The action is dismissed as against the Individual Defendants. The Clerk of the Court is respectfully directed to terminate the pending motion sequence (Doc. 42) and terminate Defendants EMT-P Mr. M. Yonnone (BOP Employee ), PA-C Daniel Tarallo (BOP) Employee, and Dr. Diane Sommer (BOP Employee) from this action. The United States shall serve and file its Answer to the Complaint on or before July 9, 2021 in accordance with the Sealed Order dated October 31, 2018. ( Doc. 19). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 36 9 U.S. 438, 444-45 (1962). The United States Attorney's Office is directed to serve a copy of this Memorandum Opinion and Order upon Plaintiff and file proof of such service., M. Yonnone (EMT-P (BOP) Employee), Diane Sommer ((BOP Employee)) and Daniel Tarallo ((BOP) Employee) terminated. (Signed by Judge Philip M. Halpern on 6/17/2021) (nb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
JOHN SMITH,
v.

Plaintiff,

UNITED STATES DEPARTMENT OF
JUSTICE, et al.,

MEMORANDUM
OPINION AND ORDER
18-CV-03371 (PMH)

Defendants.
---------------------------------------------------------X
PHILIP M. HALPERN, United States District Judge:
Plaintiff John Smith (“Plaintiff”), 1 a prisoner proceeding pro se and in forma pauperis,
brings claims under the Federal Tort Claims Act and 42 U.S.C. § 1983 against EMT-P Mr. M.
Yonnone (BOP Employee) (“Yonnone”), PA-C Daniel Tarallo (BOP) Employee (“Tarallo”), Dr.
Diane Sommer (BOP Employee) (“Sommer,” and collectively, the “Individual Defendants”), and
the United States 2 for allegedly inadequate medical care he received while incarcerated at the
Federal Correctional Institute (“FCI”) Otisville. (Doc. 2, “Compl.”). 3
The Individual Defendants served a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) and for summary judgment under Federal Rule of Civil Procedure 56 on
December 17, 2018. 4 On December 27, 2018, Standing Order M10-468 was issued by Chief Judge
McMahon, staying all civil cases in which the United States Attorney’s Office had appeared as
This is an alias. On April 27, 2018, Chief Judge McMahon granted Plaintiff’s application to proceed in
this action as “John Smith.” (Doc. 7).

1

The United States did not join the instant motion to dismiss. Pursuant to a Sealed Order dated October 31,
2018 issued by Judge Román, the time for the United States to answer the Complaint is stayed pending
resolution of the Individual Defendants’ motion. (Doc. 19).

2

3

Citations to the Complaint, which was filed under seal, correspond to the pagination generated by ECF.

The October 31, 2018 Order required that the motion papers be served, but not filed until the reply date.
(Doc. 19).

4

counsel of record for the United States, its agencies, and/or it employees until the business day
after a budget appropriation restoring Department of Justice funding was signed into law. (Doc.
25). On April 3, 2020, this case was reassigned to this Court. On April 10, 2020, as there had been
no activity on the docket for more than one year, the Court issued an Order directing the parties to
submit a letter concerning the status of the action. (Doc. 27). On July 29, 2020, the Court endorsed
a status letter from the parties setting a briefing schedule for Plaintiff’s opposition to the motion
and the Individual Defendants’ reply papers. (Doc. 34). On September 28, 2020, Plaintiff filed his
opposition papers. (Docs. 37-39). On November 2, 2020, the Individual Defendants filed both their
moving papers and reply memorandum of law. (Docs. 42-48).
For the reasons set forth below, the Individual Defendants’ motion to dismiss and for
summary judgment pursuant to Rules 12(b)(6) and 56(a) is GRANTED.
BACKGROUND
The facts recited herein are drawn from the Complaint and the documents annexed thereto,
which include: Plaintiff’s medical records; the Individual Defendants’ Local Civil Rule 56.1
Statement (Doc. 46, “Def. 56.1 Stmt.”); the supporting Declaration of Adam Johnson, a
Supervisory Attorney with the Federal Bureau of Prisons (“BOP”) (Doc. 45, “Johnson Decl.”),
and the exhibits annexed thereto, which include, inter alia: the results of a search of Plaintiff’s
administrative grievance history as of September 11, 2018 (Doc. 45-1, “Johnson Ex. 1”); Plaintiff’s
response to the Individual Defendants’ Local Civil Rule 56.1 Statement (Doc. 37, “Pl. 56.1 Opp.”);
and the documents annexed to Plaintiff’s memorandum of law in opposition (Doc. 39, “Pl. Opp.”),
which include a progress report from the BOP. 5 Plaintiff alleges that he was struck in the hand by
a basketball while working at his prison job assignment as a recreation orderly; and, experiencing
For ease of reference, citations to the documents referenced herein correspond to the pagination generated
by ECF.

5

2

right wrist pain as a result, went to the FCI Otisville Health Clinic (“BOP Health Services”) on
June 14, 2014. (Compl. at 5, 15, 27; Pl. Opp. at 12). Plaintiff was seen by Yonnone, who observed
some swelling and “pain to palpation” of the wrist area, but otherwise noted no deformity. (Compl.
at 15, 27). Yonnone gave Plaintiff a wrist brace, directed him to ice his wrist, and ordered X-ray
imaging to rule out a fracture. (Id. at 27, 29). The resulting X-rays were normal except for a finding
of “scapholunate interval upper limit.” (Id. at 15, 33, 45). Tarallo reviewed and co-signed the
treatment note. (Id. at 31).
On August 7, 2014, Tarallo examined Plaintiff at BOP Health Services regarding several
health concerns, including Plaintiff’s continuing right wrist pain. (Id. at 33). Tarallo observed “a
full range of motion” of the right wrist. (Id. at 35). Tarallo submitted a consultation request for
Plaintiff to be examined by an orthopedic surgeon and advised Plaintiff to continue taking his
prescribed pain medication, wearing a wrist brace, and limiting strenuous use of his right wrist.
(Id. at 37). An MRI of Plaintiff’s right wrist was taken on September 30, 2014; the resulting report
states that there was “no evidence of scapholunate ligament tear.” (Id. at 41).
On October 1, 2014, Plaintiff was examined at BOP Health Services, concerning several
health issues. (Id. at 43). The record of the examination notes that Plaintiff had a wrist brace that
he wore inconsistently. (Id.). The examination was positive for wrist tenderness, but negative for
joint swelling or crepitus. (Id. at 47). The record indicates that Sommer subsequently referred
Plaintiff to a specialist, Dr. Sodha, and that on May 14, 2015, Plaintiff presented to Crystal Run
Healthcare for his right wrist pain and a surgical consultation with Dr. Sodha. (Id. at 17, 51). Dr.
Sodha performed X-ray imaging which showed “chronic scapholunate ligament tear” in the right
wrist. (Id. at 51). Dr. Sodha and Plaintiff “discussed in detail the different options, both operative
and non-operative” and decided to proceed with “carpal bone stabilization, flexor carpii [sic]

3

radialis tendon transfer, wrist dennervation [sic].” (Id. at 17, 51). Plaintiff was seen at BOP Health
Services the following day, and the medical notes indicate that Plaintiff was to be referred for
surgery. (Id. at 55).
Plaintiff’s surgery was performed on August 3, 2015. (Id. at 73). Plaintiff alleges that Dr.
Sodha informed him that because of the purported delayed treatment of his injury, future surgeries
may be required. (Id. at 5, 67, 73). Dr. Sodha’s notes indicate that Plaintiff understood “that full
restoration of function of the wrist may not be possible.” (Id. at 73). Plaintiff was seen at BOP
Health Services for a post-operative evaluation on August 3, 2015. (Id. at 57). He was seen again
at BOP Health Services the following day on August 4, 2015. (Id. at 77, 79).
On February 4, 2016, Plaintiff had a follow-up with Dr. Sodha, who noted that Plaintiff
was “[d]oing well” despite “some pains with certain movements.” (Id. at 83). X-ray imaging taken
that day showed widened scapholunate joint space, which appeared greater than the comparison
X-ray images taken on September 24, 2015, indicating a “tear to the associated ligament.” (Id. at
87).
Plaintiff was examined by Dr. Sodha again on July 7, 2016. (Id. at 89). The medical notes
indicate that X-rays revealed post-traumatic degenerative joint disease in the wrist, and that
Plaintiff was proceeding with a cortisone injection, although “salvage procedures” might become
necessary if the pain continued. (Id. at 93). Plaintiff had another MRI performed on November 17,
2016 which revealed a tear of the scapholunate ligament. (Id. at 97). On March 9, 2017, Plaintiff
and Dr. Sodha discussed the option of a midcarpal fusion and Plaintiff decided to proceed with a
second surgery. (Id. at 105). Plaintiff alleges that unnamed prison officials deliberately ignored
Dr. Sodha’s instruction for a second surgery and instead, in violation of the Eighth Amendment,
deliberately transferred Plaintiff to another facility across the country. (Id. at 17).

4

STANDARD OF REVIEW
I.

Motion to Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion enables a court to consider dismissing a complaint for “failure to

state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
ple[d] factual content allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
acted unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations [in the complaint], a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal,
556 U.S. at 679. Thus, the court must “take all well-ple[d] factual allegations as true, and all
reasonable inferences are drawn and viewed in a light most favorable to the plaintiff.” Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not extend to “legal
conclusions, and threadbare recitals of the elements of the cause of actions.” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. 662). Therefore, a plaintiff must provide “more
than labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.

5

II.

Motion for Summary Judgment Under Rule 56
Under Rule 56, “a party may file a motion for summary judgment at any time until 30 days

after the close of all discovery.” Fed. R. Civ. P. 56(b). “Although summary judgment is generally
not appropriate until after some discovery has occurred in a case, . . . a motion for summary
judgment in lieu of an answer is appropriate where the facts are undisputed and no amount of
discovery would change the outcome.” Green v. Harris, 309 F. Supp. 3d 10, 12 (W.D.N.Y. 2018)
(internal citations omitted); see also Anderson v. Rochester-Genesee Reg’l Transp. Auth., 337 F.3d
201, 202 (2d Cir. 2003) (procedurally proper to move for summary judgment in lieu of an answer);
5 Borough Pawn, LLC. v. Marti, 753 F. Supp. 2d 186, 190 (S.D.N.Y. 2010) (same); Cover v. Am.
Postal Workers Union, AFL-CIO, No. 05-CV-2430, 2006 WL 8441397, at *4 (S.D.N.Y. July 21,
2006) (same), aff’d, 357 F. App’x 336 (2d Cir. 2009).
Rule 56 directs that a court “shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the outcome of the suit under
the governing law,’ and is genuinely in dispute ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Liverpool v. Davis, 442 F. Supp. 3d 714, 722 (S.D.N.Y.
2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Factual disputes that
are irrelevant or unnecessary’ are not material and thus cannot preclude summary judgment.” Sood
v. Rampersaud, No. 12-CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting
Anderson, 477 U.S. at 248). A court’s duty in determining whether summary judgment is
appropriate is “not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). The
task is material issue spotting, not material issue determining. Therefore, “where there is an

6

absence of sufficient proof as to one essential element of a claim, any factual disputes with respect
to other elements of the claim are immaterial and cannot defeat a motion for summary judgment.”
Bellotto v. Cty. of Orange, 248 F. App’x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord,
467 F.3d 263, 281 (2d Cir. 2006)). The claims simply cannot proceed in the absence of sufficient
proof as to an essential element.
“It is the movant’s burden to show that no genuine factual dispute exists,” Vermont Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970)), and a court must “resolve all ambiguities and draw all
reasonable inferences in the non-movant's favor.” Id. (citing Giannullo v. City of New York, 322
F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come
forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp.
3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). The non-movant cannot defeat a summary judgment motion by relying on “mere
speculation or conjecture as to the true nature of the facts.” Id. (quoting Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any evidence from which a reasonable
inference could be drawn in favor of the opposing party on the issue on which summary judgment
is sought, summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of
Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)). Should there be no
genuine issue of material fact, the movant must also establish its “entitlement to judgment as a
matter of law.” In re Davis New York Venture Fund Fee Litig., 805 F. App’x 79, 80 (2d Cir. 2020)
(quoting FIH, LLC v. Found. Capital Partners LLC, 920 F.3d 134, 140 (2d Cir. 2019)). Stated
simply, the movant must establish that the law favors the judgment sought. Gonzalez v. Rutherford
Corp., 881 F. Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that summary judgment is appropriate

7

only when . . . law supports the moving party”); Linares v. City of White Plains, 773 F. Supp. 559,
560 (S.D.N.Y. 1991) (summary judgment is appropriate when “the law so favors the moving party
that entry of judgment . . . is proper”).
With respect to its analysis under both Rules 12(b)(6) and 56, the Court is mindful that
“[p]ro se litigants are afforded a special solicitude,” which includes reading their filings “to raise
the strongest arguments they suggest.” Mortimer v. City of New York, No. 15-CV-7186, 2018 WL
1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal quotation marks omitted). A complaint
submitted by a pro se plaintiff, “however inartfully ple[d], must be held to less stringent standards
than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting
Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation marks omitted)). This status,
however, does not excuse a pro se litigant from making the showing required to defeat summary
judgment; he or she must offer more than “bald assertions, completely unsupported by evidence”
to overcome the motion. Wisdom v. Loiodice, No. 17-CV-4837, 2020 WL 4431590, at *4
(S.D.N.Y. July 31, 2020); see also Ross v. Koenigsmann, No. 14-CV-1321, 2017 WL 9511096, at
*1 (N.D.N.Y. Aug. 16, 2017) (explaining that, even for a pro se party, “mere conclusory
allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment”).
“It is through this lens of leniency towards pro se litigants that this Court must consider a
defendant’s motion for summary judgment against a pro se plaintiff.” Adams v. George, No. 18CV-2630, 2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8, 2020).
The multiple branches of this motion, one to dismiss the Complaint and one to grant
summary judgment on the yet-to-be-pled affirmative defense of exhaustion of administrative
remedies, is entirely appropriate where, as here, documents concerning events outside of the
allegations in the Complaint must be considered. The affirmative defense of failure to exhaust

8

administrative remedies under the PLRA is more properly raised on summary judgment where, as
here, the Complaint does not address the issue in any meaningful fashion. Without the summary
judgment branch of the motion, the exhaustion issue could not be adjudicated on this Complaint
because it lacks meaningful reference thereto. See Correa v. Lynch, No. 20-CV-02875, 2021 WL
2036697, at *4-5 (S.D.N.Y. May 20, 2021).
The Court will turn to the dispositive affirmative defense of failure to exhaust
administrative remedies first and before considering Plaintiff’s claim for deliberate indifference.
ANALYSIS
I.

Prison Litigation Reform Act (“PLRA”) Exhaustion
The Individual Defendants contend that they are entitled to summary judgment under Rule

56 because Plaintiff failed to exhaust his administrative remedies under the PLRA. The PLRA
provides that “[n]o action shall be brought with respect to prison conditions under [§] 1983 of this
title, or any other Federal law, 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).
“[T]o properly exhaust administrative remedies prisoners must ‘complete the
administrative review process in accordance with the applicable procedural rules,’—rules that are
defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199,
218 (2007) (internal citation omitted). When a prisoner is in a state-run prison, courts are required
to “look at the state prison procedures and the prisoner’s grievance to determine whether the
prisoner has complied with those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009).
However, when a prisoner is in a federal prison—as is the case here—the BOP’s grievance process
must be followed. See Johnpoll v. Thornburgh, 898 F.2d 849, 850 (2d Cir. 1990) (“The Bureau of
Prisons has established administrative remedy procedures by which a federal inmate may seek
formal review of a complaint which relates to any aspect of his imprisonment. . . . A federal
9

prisoner . . . is not generally exempt from exhausting federal administrative remedies.” (internal
citations and quotation marks omitted)); see also Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir.
2009) (holding that a federal inmate “had to comply with the BOP’s . . . administrative grievance
system for prisoner complaints”).
Here, Plaintiff—“[a]n inmate in BOP custody”—was required to “exhaust a four-step
administrative process,” which Gottesfeld v. Anderson details:
First, the inmate must present his or her complaint to a staff member
on a BP-8 form. If the issue is not resolved, the inmate must then submit
an Administrative Remedy Request—on a BP-9 form—to the Warden
within 20 calendar days of the incident that triggered the complaint.
Where the inmate is not satisfied with the Warden’s response, the
inmate must submit an appeal to BOP’s Regional Director on a BP-10
form, and must do so within 20 calendar days of the Warden’s
response. Where the inmate is not satisfied with the Regional
Director’s response, the inmate must file a Central Office
Administrative Remedy Appeal on a BP-11 form with the BOP’s
General Counsel, and must do so within 30 calendar days of the
Regional Director’s response.
No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6, 2020). There are three
circumstances, however, in which a BOP inmate’s failure to exhaust this four-step process is
excusable because relief is deemed “unavailable”:
First, an administrative remedy may be unavailable when ‘it operates
as a simple dead end—with officers unable or consistently unwilling
to provide any relief to aggrieved inmates.’ Second, ‘an administrative
scheme might be so opaque that it becomes, practically speaking,
incapable of use.’ In other words, ‘some mechanism exists to provide
relief, but no ordinary prisoner can discern or navigate it.’ Third, an
administrative remedy may be unavailable ‘when prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.’
Williams, 829 F.3d at 123-24 (quoting Ross v. Blake, 136 S. Ct. 1850, 1860 (2016)).
Plaintiff alleges in the Complaint that he grieved or appealed the subject claim (id. at 14,
21), specifying the denial of “Administrative Claim # TRT-NER-2017-04313” and referring the

10

Court to an exhibit annexed to the Complaint (id.). The exhibit referenced is a letter from the BOP,
dated October 27, 2017, advising Plaintiff that his claim for personal injury under the Federal Tort
Claims Act (“FTCA”) was denied. (Id. at 25). In other words, Plaintiff’s referenced exhibit is not
applicable to the Bivens claims that are the subject of this motion; the administrative prerequisites
for FTCA claims are different from the claims at issue on this motion. See Accolla v. United States
Gov’t, 668 F. Supp. 2d 571 (S.D.N.Y. 2009) (distinguishing Form SF-95, which is required for
FTCA claims, and the BP-9, which is required for Bivens claims).
Plaintiff, in his opposition, does not argue that his administrative claim exhausted his
administrative remedies for his Bivens claims against the Individual Defendants. (See Pl. Opp. at
6-7). Rather, concerning exhaustion of administrative remedies for his Bivens claims, Plaintiff
admits that he submitted two grievances concerning medical care and that neither grievance was
pursued beyond the first step of the administrative grievance system. (Def. 56.1 Stmt. ¶ 7; Pl. 56.1
Opp. at 3, ¶ 7 (“Plaintiff agrees . . . that neither medical grievance went beyond the first step (BP9)”). Plaintiff argues that although he failed to exhaust administrative remedies, such a remedy
was unavailable to him because the filing deadline had expired by the time he first became aware
of the allegedly inadequate medical care at issue. (Pl. Opp. at 6-7).
Inmates are permitted to pursue otherwise untimely grievances if there is “a valid reason
for delay.” 28 C.F.R. § 542.15(a). Instead of filing a grievance and exhausting his remedies after
he became aware of the allegedly inadequate medical care, Plaintiff unilaterally determined that
the time to file had passed and thus elected to forego the grievance process altogether. Plaintiff’s
decision not to utilize the four-step process available to him “is insufficient to negate the PLRA’s
exhaustion requirement.” Mena v. City of New York, No. 12-CV-0028, 2014 WL 2968513, at *6
(S.D.N.Y. June 27, 2014) (internal quotation marks and alteration omitted). Simply put, futility is

11

not established by an inmate’s subjective belief that his administrative complaint might be denied.
Id.; see also Indelicato v. Suarez, 207 F. Supp. 2d 216, 220 n.3 (S.D.N.Y. 2002) (The “alleged
ineffectiveness of the administrative remedies that are available, however, does not absolve a
prisoner of his obligation to exhaust such remedies when Congress has specifically mandated that
he do so.”).
Plaintiff argues further that certain differences between the administrative process
described in the Code of Federal Regulations and the FCI Otisville orientation materials that
Plaintiff received upon his arrival at the facility were so confusing that they caused the process to
be incapable of use. (Def. 56.1 Stmt. ¶¶ 2-6; Pl. 56.1 Opp. at 1-2, ¶¶ 2-6). The alleged departures
and/or deficiencies cited by Plaintiff simply do not render the administrative process so “opaque
that it becomes, practically speaking, incapable of use.” Williams, 829 F.3d at 123-24. Moreover,
it is undisputed that plaintiff filed at least eighteen administrative claims while incarcerated,
including while housed at FCI Otisville. 6 This undisputed fact undercuts any argument by Plaintiff
that the process was not described clearly enough in the inmate orientation manual issued to him.
(Pl. 56.1 Opp. at 2, ¶¶ 5, 6). Accordingly, Plaintiff’s Complaint against the Individual Defendants
is dismissed for failure to exhaust administrative remedies. 7

The documents submitted by the Individual Defendants show that Plaintiff grieved twenty-seven issues
through the BOP’s administrative grievance system (Johnson Ex. 1), nine of which he grieved while housed
at FCI Otisville (Johnson Decl. ¶ 5). Plaintiff disputes the number of grievances he filed, maintaining that
he grieved fourteen issues “during his period of incarceration to the filing date of the action” and grieved
four issues while housed at FCI Otisville. (Pl. 56.1 Opp. at 2-3, ¶ 7). The exact number of grievances filed
is immaterial to the determination herein.
6

Given the Court’s conclusion, no ruling is necessary on the Individual Defendants’ second unpled defense
of qualified immunity.

7

12

II.

Plaintiff’s Claim for Deliberate Indifference to His Serious Medical Needs
Alternatively, and assuming arguendo that Plaintiff exhausted his administrative remedies

properly before pursuing this action, Plaintiff’s claim of deliberate indifference to his serious
medical needs would nevertheless be dismissed for failure to state a claim pursuant to Rule
12(b)(6). Plaintiff alleges that the Individual Defendants were deliberately indifferent by delaying
treatment for his wrist injury, thereby violating his Eighth Amendment rights. (See Compl. at 5,
15, 17). Plaintiff alleges also that certain unnamed “Prison Officials” ignored his need for a second
surgery and transferred him to another prison facility and away from his hand surgeon. (See id. at
17).
The Individual Defendants move to dismiss arguing that the Complaint does not plausibly
allege either the objective or subjective components of the deliberate indifference test. (Doc. 43,
“Def. Br.” at 15-20; Doc. 48, “Def. Reply” at 6-8). They argue further that to the extent Plaintiff
claims the transfer before his second surgery is an Eighth Amendment violation, the claim fails to
sufficiently allege personal involvement of the Individual Defendants in the transfer decision.
(Def. Br. at 20-21). As the Court finds that Plaintiff’s allegations do not satisfy either the objective
or subject prongs of his deliberate indifference claim, and fails to sufficiently allege the Individual
Defendants’ personal involvement in the transfer decision, the Court concludes that Plaintiff’s
Eighth Amendment claim must be dismissed.
Because Plaintiff was an inmate at the time of the alleged misconduct, his claim that jail
officials were deliberately indifferent to his medical needs is be analyzed under the Eighth
Amendment. See King v. Falco, No. 16-CV-6315, 2018 WL 6510809, at *7 (S.D.N.Y. Dec. 11,
2018). 8 “In order to establish an Eighth Amendment claim arising out of inadequate medical care,
8

The record provides no basis for the Court to believe that Plaintiff was a pretrial detainee at the time of

13

a prisoner must prove ‘deliberate indifference to his serious medical needs.’” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Gamble, 429 U.S. at 104 (brackets
omitted)). “A plaintiff can prevail on a deliberate indifference to medical needs claim under the
Eighth Amendment by satisfying a two-prong test.” Sutton v. Rodriguez, No. 18-CV-01042, 2020
WL 5504312, at *4 (S.D.N.Y. Sept. 8, 2020).
The first prong is objective and requires that the alleged deprivation
in medical care be sufficiently serious. A deprivation in medical care
is sufficiently serious if (1) the prisoner was actually deprived of
adequate medical care and (2) the inadequacy in medical care is
sufficiently serious. The latter inquiry contemplates a condition of
urgency that may result in degeneration or extreme pain. . . . The
second prong of the deliberate indifference test under the Eighth
Amendment is subjective and requires that the plaintiff demonstrate
that the defendant had a sufficiently culpable state of mind. A
defendant had a sufficiently culpable state of mind if he acted or
failed to act while actually aware of a substantial risk that serious
inmate harm will result.
Id. at *4-5 (internal citations and quotation marks omitted). Defendants argue, and the Court
agrees, that Plaintiff’s allegations do not satisfy either prong.
First, Plaintiff has not alleged a “sufficiently serious” deprivation of medical care. Id. at
*4. A “sufficiently serious” deprivation results in “more than minor discomfort or injury.” Cain v.
Jackson, No. 05-CV-3914, 2007 WL 2193997, at *5 (S.D.N.Y. July 27, 2007). “To be ‘sufficiently
serious,’ the deprivation must create a ‘condition of urgency, one that may produce death,
degeneration, or extreme pain.’” Martin v. Mihalik, No. 19-CV-7979, 2021 WL 1738458, at *8
(S.D.N.Y. May 3, 2021) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)).

the alleged misconduct. Plaintiff explicitly references the Eighth Amendment in the Complaint (Compl. at
15, 17, 19), the Individual Defendants likewise refer only to the Eighth Amendment (Def. Br. at 15-16),
and the documents attached to Plaintiff’s opposition reveal that he was sentenced to thirty years
imprisonment with five years of supervised release for murder, robbery, burglary, kidnapping and
possession of firearms with a projected release date of June 22, 2032. (Pl. Opp. at 11).

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In this case, the Individual Defendants ordered X-rays and MRIs of Plaintiff’s wrist
following the injury, and the results of the imaging did not reveal the later-discovered ligament
tear, or any other degenerative condition. Rather, Plaintiff’s wrist was noted to be without
tenderness and with a full range of motion one month after the injury, and “tender” but with full
range of motion and no swelling two months after the injury. (Compl. at 15, 29, 33, 35, 41, 45,
47). Plaintiff was monitored by BOP Health Services, provided a wrist brace, and prescribed pain
medication. (Id. at 27, 37). Plaintiff was referred to an outside hand specialist for care when he
later reported continuing pain. (Id. at 49, 55). Plaintiff was referred for surgery and had a wrist
surgery on August 3, 2015. (Id. at 55, 73). After Plaintiff’s surgery the hand specialist’s notes
indicated that Plaintiff was “[d]oing well” despite “some pains with certain movements.” (Id. at
83).
Given the medical care Plaintiff received at FCI Otisville, the Complaint fails to plead
plausibly that the medical treatment was not constitutionally adequate under the circumstances.
See, e.g., Thompson v. Racette, 519 F. App’x 32, 33-34 (2d Cir. 2013) (objective prong
requirement that plaintiff was deprived of adequate medical care was not met where prison medical
personnel decided to address torn shoulder ligament with physical therapy instead of surgery which
had been recommended by an outside specialist); Bryant v. Wright, 451 Fed. App’x 12, 14 (2d Cir.
2011) (no deliberate indifference where the complaint acknowledges that prison doctors were
“trying to stop” the medical issue and the plaintiff had received treatment, in light of bare allegation
that the treatments had so far been unsuccessful).
Second, Plaintiff does not allege that the Individual Defendants acted with “sufficiently
culpable state[s] of mind.” Sutton, 2020 WL 5504312, at *5. To make a showing on the subjective
prong, Plaintiff must prove “that the defendant-official acted intentionally to impose the alleged

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condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition
posed.” Adamson v. Miller, 808 F. App’x 14, 18 (2d Cir. 2020) (quoting Darnell v. Pineiro, 849
F.3d 17, 35 (2d Cir. 2017). Plaintiff’s submissions reveal just the opposite. According to the
medical records Plaintiff submitted, from June 14, 2014 through March 9, 2017, he was examined
in connection with his wrist by medical professionals no less than eleven times: five times by the
orthopedic surgeon, Dr. Sodha; and six times by BOP Health Services staff, including once by
Yonnone and once by Tarallo. (Compl. at 27-108). The BOP Health Services staff also ordered
X-rays and MRIs of Plaintiff’s wrist; provided him with a wrist brace and prescribed pain
medication; referred him to an outside hand specialist for care; and monitored his condition both
prior to and following the surgery. (Id. at 15, 27, 29, 33, 35, 37, 41, 45, 47, 49, 55).
Initially, and assuming that the interactions between Plaintiff and the Individual
Defendants were sufficient to impugn personal involvement in any deprivation of care, the
frequency of these visits, and the care provided as a result, belie a showing under the subjective
prong. See Simpson v. Oakes, 640 F. App’x 86, 88 (2d Cir. 2016) (affirming summary judgment
on Eighth Amendment claim where the record reflects “extensive medical care”).
Next, the records’ contents do not suggest the Individual Defendants’ awareness of a
serious medical need. Mena v. City of New York, No. 13-CV-2792, 2018 WL 4328827, at *7
(E.D.N.Y. Sept. 11, 2018) (granting summary judgment where x-ray “show[ed] no remarkable
results” (internal quotation marks omitted)); see also Abreu v. Farley, No. 11-CV-6251, 2019 WL
1230778, at *12 (W.D.N.Y. Mar. 15, 2019) (granting summary judgment on Eighth Amendment
deliberate indifference for defendants where “medical progress notes wholly undermine[d]
Plaintiff’s contention that he suffered a sufficiently serious” injury); Riley v. Roycroft, No. 16-CV2227, 2017 WL 782917, at *7 (S.D.N.Y. Feb. 28, 2017) (dismissing Eighth Amendment deliberate

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indifference claim where medical notes reflected subjective conclusion that, despite plaintiff’s
requests, a back brace was unnecessary).
Finally, to the extent Plaintiff seeks to assert a deliberate indifference claim against the
Individual Defendants for his transfer to another facility prior to a second surgery, the Complaint
does not allege any actions by the Individual Defendants, nor any personal involvement by them
in the decision to transfer Plaintiff. Plaintiff does not allege that the Individual Defendants had the
authority to order his transfer or that they had any input in the decisional process. Indeed, Plaintiff
alleges that the decision to transfer him to another facility was made by unnamed “Prison
Officials,” which is insufficient to support his claim of a constitutional violation against the
Individual Defendants sued herein. See Correa, 2021 WL 2036697, at *5 (“Failing to allege that
a defendant was personally involved in, or responsible for, the conduct complained of renders a
complaint ‘fatally defective on its face.’” (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886
(2d Cir. 1987)); Greene v. Sampson, No. 18-CV-06103, 2021 WL 355477, at *4 (S.D.N.Y. Feb.
2, 2021) (“a plaintiff must show the defendants’ personal involvement in the alleged constitutional
violation.” (quoting Boley v. Durets, 687 F. App’x 40, 41 (2d Cir. 2017)).
Accordingly, Plaintiff’s deliberate indifference claim must be dismissed.

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CONCLUSION
Based upon the foregoing, Defendant’s motion for summary judgment and to dismiss the
Complaint is GRANTED. The action is dismissed as against the Individual Defendants. The Clerk
of the Court is respectfully directed to terminate the pending motion sequence (Doc. 42) and
terminate Defendants EMT-P Mr. M. Yonnone (BOP Employee), PA-C Daniel Tarallo (BOP)
Employee, and Dr. Diane Sommer (BOP Employee) from this action. The United States shall serve
and file its Answer to the Complaint on or before July 9, 2021 in accordance with the Sealed Order
dated October 31, 2018. (Doc. 19).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The United States Attorney’s Office is directed to serve a copy of this Memorandum
Opinion and Order upon Plaintiff and file proof of such service.

SO ORDERED:
Dated:

White Plains, New York
June 17, 2021
PHILIP M. HALPERN
United States District Judge

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