West et al v. Goord et al

Filing 115

DECISION AND ORDER: Defendants' Motion for Summary Judgment (ECF No. 102) is GRANTED IN PART AND DENIED IN PART. Specifically, the Motion is DENIED with respect to Plaintiff's claims alleging discrimination and retaliation in violation of the ADA and the Rehabilitation Act. The Motion is GRANTED with respect to the remaining causes of action, and Plaintiff's First Amendment, Title VII, Due Process, Equal Protection, Deliberate Indifference, and Conspiracy claims are dismissed. Defendants Case, Keefe, Lauber, and Pabon remain in this action as relevant to Plaintiff's ADA and Rehabilitation Act claims. Plaintiff's claims against Defendant Henrich are dismissed by operation of Fed. R. Civ. P. 25(a)(1), and all other named Defendants are dismissed from this action in accordance with the above Decision and Order. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 7/31/17. (SCE)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________________
JAMES A. WEST A/K/A WESS,
Plaintiff,
05-CV-447-FPG
DECISION AND ORDER
v.
GLENN S. GOORD, STEPHAN BERNARDI,
THOMAS POOLE, THOMAS EAGEN
JANICE HENRICH, LISA LAUBER
DAVID NAPOLI, DONALD SELSKY,
LUCIEN LECLAIRE, SGT. CASE,
SGT. PABON, SGT. O’KEEFE, and
C.O. L. LAUBER,
Defendants.
______________________________________________
INTRODUCTION
Plaintiff James West a/k/a James Wess (“Plaintiff’), commenced this action alleging
violations of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act
(“Rehabilitation Act”), and various federal Constitutional rights pursuant to 42 U.S.C. § 1983.
ECF. No. 29 (“2d Am. Compl.”).
Currently pending before the Court is the Defendants’ Motion for Summary Judgment.
ECF No. 102. Having considered the moving papers, the record evidence and the applicable law,
the Court finds oral argument unnecessary and for the following reasons, Defendants’ summary
judgment motion is granted in part and denied in part.

BACKGROUND1
Plaintiff is an inmate in the New York State Department of Corrections and Community
Supervision (“DOCCS”), and is currently housed at Five Points Correctional Facility (“Five
Points”). At all times relevant to Plaintiff’s claims, he has been wheelchair-bound and suffers from
a host of medical issues.
Plaintiff’s Second Amended Complaint alleges: (1) violations of his Eighth Amendment
rights when he was denied adequate wheel chair maintenance, hand and wrist splints, and a
sufficient supply of proper catheters; (2) denial of his due process rights under the Fourteenth
Amendment during impeachment proceedings; (3) withholding of reasonable accommodations
and medical equipment under the ADA and Section 504; (4) racial discrimination in violation of
the Equal Protection Clause; and (5) various retaliatory actions taken by Defendants in violation
of his First Amendment rights. 2d Am. Compl., ¶¶ 76, 78, 85-86, 102, 104, 119, 121, 136, 146,
180-85, 187. Plaintiff also advances an overarching conspiracy claim in violation of 42 U.S.C. §§
1985(3) and 1986. Id., ¶ 186.
Defendants are or were all employees of DOCCS. Defendants Case, Henrich, Keefe,
Lauber, Napoli, Pabon, and Poole were assigned to Five Points. All Defendants, with the exception
of Deputy Commissioner of Policy & Compliance Stephan Bernardi, are sued in their individual
capacities only.

1
The following material facts, drawn from the parties’ Local Civil Rule 56 Statements and
evidentiary submissions, are undisputed unless otherwise noted.
2

I.

The Inmate Grievance Resolution Committee (“IGRC”)2
A.

Plaintiff’s Involvement and Impeachment

In June 2003, Plaintiff was elected as an IGRC representative. In connection with his
election to serve as an alternate IGRC representative, Plaintiff received a copy of the Inmate
Grievance Program (“IGP”) Manual, and signed and agreed to the IGRC Code of Ethics. The
Code, applicable to IGRC staff, inmate representatives, clerks, and its chairperson, provides that
violations thereof may result in dismissal from participation in the grievance program.
During a staff meeting on July 2, 2003, Defendant Henrich, Inmate Grievance Supervisor,
noted that Plaintiff was “continually disputing the meaning of parts of Directive 4040 and the
training manual.” ECF No. 114-6 (“Def. Ex. I”) at 3373. Plaintiff states that he was “inquiring
about the interpretations of Directive 4040.” ECF No. 110 (“West Decl.”), Ex. 4. In the same
memorandum, Henrich noted that “timeliness was addressed,” and that Plaintiff was reminded that
he “signed a Code of Ethics . . . what transpires in the office is to stay in the office.” Id. Plaintiff
disputes that he was “reminded.” ECF No. 109 (“Pl. Opp’n Stmt.”), ¶ 60.
On July 7, 2003, Plaintiff received an Informal Counseling Memorandum from Defendant
Henrich, which advised Plaintiff of the confidentiality of the information received in the grievance
office, and stated that Plaintiff could assist inmates with grievance preparation without
incorporating any personal knowledge of the grievance office. Plaintiff was also reminded of the
time frames required in addressing hearings and grievances.

2
DOCCS Directive #4040 sets forth the policy for inmate grievances, providing each inmate with
“an orderly, fair, simple and expeditious method for resolving grievances . . . and allegations of
discriminatory treatment . . . .” 7 N.Y.C.R.R. § 701.1 Each facility has an Inmate Grievance Review
Committee, a five-member body consisting of two inmates with voting rights, two voting staff members,
and a non-voting chairperson. Id., § 701.4. Inmate representatives are elected by their peers and serve for
terms of six months.
3

Page references in exhibits refer to the bates numbers on the documents.
3

A July 10, 2003 memorandum written to Plaintiff’s file by Defendant Henrich stated her
observations of Plaintiff’s performance as an IGRC representative. She noted that Plaintiff “needed
to be more careful with the files,” on the basis that a duplicate hearing had been conducted without
a complete investigation. Def. Ex. I at 340-41. The memorandum further noted that Plaintiff
“continue[d] to read more into a grievance that is stated . . . attempting to create more work in the
IGRC office.” Id. On multiple occasions, Plaintiff’s vote on a grievance would result in a deadlock.
On July 23, 2003, the informational notes from Plaintiff’s Informal Counseling
Memorandum indicated that Plaintiff and another individual were disruptive to the IGRC office.
The notes stated that Plaintiff was reminded of the purpose of the IGRC and the importance of
timeliness, and that Plaintiff was issued a copy of his proposed job duties. Def. Ex. I at 343-45.
Plaintiff disputes that any conversation took place regarding disruptions and responsibilities. Pl.
Opp’n Stmt., ¶ 69. The following day, Defendant Henrich observed that Plaintiff “attempted to
force things out of control,” and was “undermining the IGRC . . . .” Def. Ex. I at 346. For example,
Plaintiff was observed providing inmates with partial information. Id.
On July 25, 2003, Plaintiff received an Inmate Counseling Notification for poor
program/work performance when Plaintiff was observed reviewing a large group of grievances
from a week prior that had potentially become untimely due to Plaintiff’s improper filing.
On August 1, 2003, Plaintiff was issued a Formal Counseling Memorandum regarding his
continued failure to thoroughly conduct and complete grievance investigations. A subsequent
Formal Counseling Memorandum dated September 3, 2003, noted that Plaintiff should fully
review folders prior to formal hearings to ensure that all documentation is present in the grievance
file, and to advise if there were incomplete files. Plaintiff was requested to provide all information
available to provide a complete investigation whether refuting or substantiating a grievant’s claim.

4

Plaintiff was issued another Formal Counseling Memorandum on September 11, 2003, for
inappropriate behavior during a hearing held on September 9, 2003. During that hearing, Plaintiff
provided incorrect information to a grievant regarding the confidentiality of his medical health,
resulting in the disclosure of irrelevant medical information.
In two memoranda dated October 2, 2003 and October 7, 2003, Defendant Henrich noted
Plaintiff’s continued issues with improper coding of grievances and adversarial demeanor.
Plaintiff testified that he told Defendant Case at some point that “[y]ou have a racial
component in the grievance office . . . and you can either get rid of it, or there’s going to be a
problem.” ECF No. 114-5 (“Def. Ex. H”) at 59. He stated that he asked Defendant Pabon “why
don’t you just act like you got balls?” Id. at 100. Plaintiff further testified that he told the IGRC
defendants that he would “eventually” sue them for “denying [him] well-established law” and for
discrimination. Id. at 108-09. Finally, according to Plaintiff, “in a joking sense,” he called
Defendant Keefe a “sensitive hooker.” Id. at 116-17.
Defendants Henrich and Lauber never voiced any feeling of displeasure about Plaintiff for
filing grievances against the IGRC. Defendant Lauber testified that she “answered a lot of
grievances,” and that Plaintiff’s filings “did not stand out in any way.” ECF No. 114-1 (“Def. Ex.
D”) at 88.
Plaintiff was served with a Recommendation for Impeachment and hearing notification on
October 21, 2003, in which he was alleged to have breached IGRC confidentiality, improperly
safeguarded grievance files, and undermined IGRC’s operation and credibility. Def. Ex. I at 6972, 74-75. In her recommendation for impeachment, Defendant Henrich stated that Plaintiff used
the inmate grievances process as an “adversary process,” contrary to the goals of the program

5

which were to promote mediation and conflict resolution. Id. She further alleged that Plaintiff
failed to follow staff direction.
Plaintiff’s impeachment hearing began on October 28, 2013, during which testimony was
heard from 25 witnesses over the course of several days. Defendant Napoli served as the hearing
officer.
Four of Plaintiff’s requested inmate witnesses refused to testify. Another inmate witness
was no longer housed at Five Points, and Plaintiff concedes that the inmate had no knowledge of
the incidents surrounding Plaintiff’s charges. Plaintiff was denied his request to call various
Commissioners and Superintendents who were located in the DOCCS Central Office on the basis
that they were immaterial and lacked direct knowledge of the issues raised in the impeachment
hearing.4
The hearing resulted in Plaintiff’s removal from his position as IGRC representative for a
three-year period. He signed a copy of the determination on November 17, 2003, which indicated
that Plaintiff provided “no real defense to the charges,” and noted that the evidence showed that
Plaintiff was adversarial and failed to follow staff direction. Def. Ex. I at 69-70. Specifically,
Plaintiff was in violation of Rules B, E, F, and G of the IGRC Code of Ethics.5
Plaintiff began filing grievances regarding the IGRC in March of 2002 and continued to do
so throughout the entire course of his service as an inmate representative, which ended in the fall
of 2003. On April 18, 2003, he wrote a letter to Defendant Goord and copied to Defendants

4
Although Plaintiff testified that his request to call inmates Campbell, Divine, Hauk, Lashley, and
Millard was denied, the record shows that inmate Campbell did testify at his hearing and the others were
not listed as potential witnesses by Plaintiff.
5

The Code provides, in relevant part, that “a willing and tactful attitude is required,” “members shall
not disclose information of a confidential nature,” “members shall be responsible for safekeeping grievance
files,” and that “no member . . . shall intentionally undermine the IGRC’s operation or credibility.” Def.
Ex. I at 101.
6

Bernardi and Leclaire regarding multiple violations of Directive #4040, the IGRC Training
Manual, and the DOCCS Employee Manual, as well as other misconduct. Plaintiff also testified
that he had filed grievances against the IGRC, and notified supervisory staff of the improprieties
of the IGRC. Def. Ex. H at 23. Those grievances were investigated by members of the IGRC, none
of whom are named Defendants in this case. The matter was upheld by the Central Office Review
Committee.
B.

Facility Access

Prior to the start of Plaintiff’s term as an IGRC representative, African-American,
Caucasian, and Latino inmates had served in the position. At that time, inmate representatives were
permitted access to the entire Five Points facility to conduct IGRC investigations.
The previous rule permitting IGRC representatives to move freely about the facility to
conduct IGRC investigations was suspended sometime in 2002, before Plaintiff’s IGRC term
began in June of 2003. Defendant Lauber testified that she was not responsible for the rule change,
and she believed the policy change was due to Five Points being a maximum security facility. As
such, allowing unrestricted movement passes would be difficult, in that inmate representatives
would need to be escorted, and because inmates were not permitted to be in housing units to which
they were not assigned. She could not recall having personally escorted an inmate to conduct an
IGRC investigation. Likewise, Defendants Case and Pabon denied ever escorting an inmate to
conduct IGRC investigations.
Plaintiff, on the other hand, claims that Defendants Bernardi, Dennis, Eagen, Goord,
Henrich, Leclaire, and Poole conspired to prevent him from having access to move freely about
the facility to conduct IGRC business on the basis of his race.
II.

Plaintiff’s Medical Care and Accommodation Requests

7

A.

Wheelchair

The IGRC office contained a table, desks, and unattached chairs, used by all IGRC staff
and representatives to conduct their duties. There was no assigned seating in the IGP office.
Although a table was available for Plaintiff to work at, he contends there was no wheelchairaccessible desk available. Def. Ex. H at 95. Plaintiff testified that he verbally requested a
wheelchair-accessible desk for the IGP office, and no action was taken in response. Id. at 94-96.
Defendants Case, Keefe, Lauber, and Pabon could not recall whether any such request was
received.
From 2002 to 2006, Plaintiff notified staff of issues regarding his wheelchair. Those
complaints were forwarded to the proper departments, but Plaintiff disputes the sufficiency of the
repairs made to his wheelchair during that time. Def. Ex. H at 43-44.
On October 4, 2005, Plaintiff complained about his wheelchair, and was advised that he
could swap his wheelchair with another, but would be responsible for repairing his current
wheelchair.
On June 5, 2006, Plaintiff was offered a new wheelchair, as the old one was deemed unsafe.
Plaintiff refused to accept the new wheelchair.
B.

Catheters

Records indicate that on February 20, 2002, Plaintiff was to receive three catheters per
week, along with swab sticks and gloves. On February 27, 2002, Plaintiff was issued 21 catheters.
The same day, Plaintiff was issued two additional catheters upon his request.
From March 6, 2002, through March 20, 2002, Plaintiff was issued seven catheters per
week. Beginning March 27, 2002, Plaintiff was issued 28 catheters per week.

8

On April 4, 2002, Plaintiff’s medical permit was changed to include the following: four
catheters per day (issued weekly), disposable underpads, surgical lubricant, and instructions for
usage. Beginning June 20, 2002, Plaintiff was issued four catheters per day on a daily basis.
On December 2, 2002, Plaintiff was issued a 12-day supply of catheters.
Regarding his alleged injuries, Plaintiff testified that:
They exacerbated my medical problems that I came here under, in
the conditional discharge order for James West . . . . They were
supposed to give me appropriate catheters – a supply of catheters.
They didn’t . . . At times, they gave me catheters that I wasn’t
supposed to have that caused me pain and suffering, medically
messed me up. And at times, I couldn’t breathe . . . .
Def. Ex. H at 200.
Plaintiff also testified that he experienced an enlarged scrotum and a urinary tract infection
stemming from Defendants’ failure to provide an adequate supply of catheters. Id. at 33-36.
On December 8, 2002, Plaintiff complained of being unable to urinate. The nurse on duty
offered him a bed in the infirmary, which he refused. He was provided Tylenol for his discomfort,
and a urine specimen container. His medical record was noted for follow-up with a Physician
Assistant (“PA”). Later in the day, Plaintiff returned the urine sample to medical and again was
offered a bed in the infirmary. He again refused the bed, and he also refused Tylenol.
On December 9, 2002, blood was noted in Plaintiff’s urine sample, which was noted as
being likely due to his self-catheterization technique, and a urinalysis was ordered. Two days later,
Plaintiff returned to medical, complaining of testicular discomfort. The medical records indicate
that Plaintiff’s right testicle was hard, tender, and approximately four times larger than the left
testicle. Plaintiff was given Tylenol for discomfort and was scheduled to meet with the doctor on
December 13, 2002.

9

On December 12, 2002, Plaintiff reported to medical with complaints of back pain, but
denied any scrotal discomfort. The PA notes indicated a 2x3cm mass that was firm and nonmobile. The PA further noted that a urinalysis was pending to rule out a urinary tract infection,
and ordered a sonogram of Plaintiff’s testes. The urinalysis laboratory results confirmed that no
urinary tract infection was present.
Plaintiff was seen again on December 13, 2002. Medical notes indicate that his right testicle
was enlarged, but was a non-painful area.
Plaintiff does not dispute that the named Defendants in this matter are not or were not
DOCCS medical professionals, and were not involved in Plaintiff’s medical treatment. Dr. David
Dinello, Regional Medical Director for DOCCS, has no recollection and/or knowledge of the
Plaintiff or his allegations, nor was he involved in grievances or complaints at the facility level.

DISCUSSION
I.

Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); see Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574 (1986). Regarding materiality, “[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248. More importantly, “summary judgment will not lie if the dispute about

10

a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
Thus, the Court’s function in deciding a summary judgment motion is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. When a properly supported motion for summary judgment is made, the
adverse party “must set forth specific facts showing that there is a genuine issue for trial. Id. at
250.
“In assessing the record to determine whether there is a genuine issue as to any material
fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the
party against whom summary judgment is sought.” Duse v. Int’l Business Machines Corp., 252
F.3d 151, 158 (2d Cir. 2001) (citing e.g., Anderson, 477 U.S. at 255). However, “[i]f the
undisputed facts reveal that there is an absence of sufficient proof as to one essential element of
the claim, any factual disputes with respect to other elements of the claim become immaterial and
do not suffice to defeat a motion for summary judgment.” Id., see also Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 11-12 (2d Cir. 1986) (the existence of a factual issue will not suffice to defeat a
motion for summary judgment where that issue is not material to the ground of the motion).

II.

Section 1983
42 U.S.C. § 1983 imposes liability on persons who, “under color of any statute, ordinance,

regulation, custom, or usage, of any State,” cause a “deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983; see also Pitchell v. Callan,
13 F.3d 545, 547 (2d Cir. 1994). Section 1983 “is not itself a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred by those parts of the United States

11

Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979). “In this Circuit, personal involvement of defendants in alleged constitutional deprivations
is a prerequisite to an award of damages under [§] 1983.” McKinnon v. Patterson, 568 F.2d 930,
934 (2d Cir. 1977).
III.

Defendant Henrich
Regarding Defendant Henrich, on May 18, 2016, Defendants’ counsel filed a Suggestion

of Death noting that Defendant Janice Henrich died on February 23, 2015. ECF No. 90.
Under Rule 25(a) of the Federal Rules of Civil Procedure, “If a party dies and the claim is
not thereby extinguished, the court may order substitution of the proper party . . . . If the motion
[for substitution] is not made within 90 days after service of a statement noting the death, the action
by or against the decedent must be dismissed.” There is no requirement that the notification of
death of a party be filed by a party or the formal or appointed representative of the decedent’s
estate or that the statement identify the successor or legal representative of the decedent. See
Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 469-70 (2d Cir. 1998).
Plaintiff, who is represented by counsel, has not filed a motion for substitution pursuant to
Fed. R. Civ. P. 25(a)(1). Contrary to Plaintiff’s contention, Henrich was not sued in her official
capacity, see ECF No. 108 (“Pl. Mem.”) at 6, and Plaintiff was thus required to substitute a new
party. Fed. R. Civ. P. 25(d). Accordingly, Plaintiff’s claims against Defendant Henrich must be,
and hereby are, dismissed.

IV.

Defendants’ Motion for Summary Judgment

12

In their summary judgment motion, Defendants argue that: (1) Plaintiff’s due process rights
were not violated; (2) the supervisory Defendants in this action lack personal involvement;6 (3)
the Defendants did not retaliate against Plaintiff; (4) the Defendants were not deliberately
indifferent to a serious medical need; (5) Plaintiff’s equal protection rights were not violated; and
(6) Plaintiff’s conspiracy claims fail as a matter of law. ECF No. 102-1 (“Def. Mem.”) at 3-30.
A.

First and Fourteenth Amendment Claims

Plaintiff claims that he was retaliated against for filing grievances regarding the IGRC
when Defendants: (1) modified the IGP policies after his election to the IGRC to prevent him from
moving freely about Five Points; (2) failed to provide Plaintiff with a wheelchair-accessible work
desk; and (3) impeached him from his position as IGRC representative. Pl. Mem. at 7-8.
Because prisoner retaliation claims are easily fabricated and may intrude into matters of
prison administration, the Court must approach Plaintiff’s First Amendment retaliation claim with
skepticism and particular care. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on
other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
To establish a First Amendment retaliation claim, an inmate must show that: (1) he was
engaged in constitutionally protected activity; (2) the defendants took adverse action against the
plaintiff; and (3) there was a causal connection between the protected activity and the adverse
action in that the alleged conduct was substantially motivated by the protected activity. Gill v.
Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004).
It is well-established that “the filing of prison grievances is a constitutionally protected
activity.” Davis v. Goord, 320 F.3d 346, 352–53 (2d Cir. 2003). An adverse action is “retaliatory

6
In light of the Court’s determination as discussed below, it need not address Defendants’ argument
for lack of personal involvement.
13

conduct that would deter a similarly situated individual of ordinary firmness from exercising . . .
constitutional rights.” Gill, 389 F.3d at 381 (internal quotation omitted).
To satisfy the causation requirement, Plaintiff must adduce facts “to support the inference
that the speech played a substantial part in the adverse action.” Davis, 320 F.3d at 354 (quotation
omitted). There are a number of factors relevant to whether a causal connection exists, including:
(1) the temporal proximity between the protected activity and the alleged retaliatory act; (2) the
inmate’s prior good disciplinary record; (3) vindication at a hearing on the matter; and (4)
statements by the defendant concerning his motivation. Colon v. Coughlin, 58 F.3d 865, 872-73
(2d Cir. 1995); accord Sloane v. Mazzuca, No. 04 CV 8266, 2006 WL 3096031, at *14 (S.D.N.Y.
Oct. 31, 2006). Yet, “even if plaintiff makes the appropriate showing, defendants may avoid
liability if they demonstrate that they would have taken the adverse action even in the absence of
the protected conduct.” Brown v. McGinnis, No. 05-CV-758S, 2012 WL 267638, at *3 (W.D.N.Y.
Jan. 30, 2012); see also Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) (“Regardless of
the presence of retaliatory motive, however, a defendant may be entitled to summary judgment if
he can show dual motivation, i.e., that even without the improper motivation the alleged retaliatory
action would have occurred.”)
Although Plaintiff’s opposition brief almost exclusively addresses his third basis for the
retaliation cause of action—removal from the IGRC—the Court will briefly discuss his other
contentions.
With respect to the modification of the IGP policy regarding unrestricted movement about
Five Points, it is undisputed by the parties that the policy was amended sometime in 2002, well
before Plaintiff’s IGRC term began in June of 2003. See supra at 11-12. This claim fails because
Plaintiff cannot allege, much less raise an issue of fact, that any adverse action was causally related

14

to his filing grievances. The protected conduct must be “a substantial or motivating factor in the
prison officials’ decision to discipline the plaintiff.” Graham v. Henderson, 89 F.3d at 79. In this
case, the adverse action—a policy prohibiting unrestricted movements by inmate representatives
around Five Points—occurred prior to his election to the IGRC. No reasonable trier of fact could
draw the inference that the Defendants anticipated Plaintiff’s election to the IGRC and
preemptively instituted a facility-wide policy in retaliation against Plaintiff for criticizing the
IGRC. Accordingly, the alleged adverse actions are, “by definition—unconnected to [Plaintiff’s]
pursuit of [free speech],” which, in this case, was the filing of grievances. Duffy v. Evans, No. 11
Civ. 7605, 2013 WL 3491119, at *7 (S.D.N.Y. July 12, 2013).
Plaintiff also cannot show a causal connection between his grievances against the IGRC
and the alleged denial of a wheelchair-accessible desk in the IGP office. Assuming Plaintiff
requested such a desk, and assuming the denial of such a desk is an adverse action for purposes of
his First Amendment claim, he does not allege a causal connection between the filing of grievances
against the IGRC and adverse action. Because Plaintiff did not address the wheelchair-accessible
desk in the context of his retaliation claim, see Pl. Mem. at 7-10, he has identified no facts
regarding the particular grievances, when they were filed, or anything else that would permit an
inference of a causal relationship.
Plaintiff’s primary assertion relative to this claim is that he was impeached from the IGRC
by Defendants for retaliatory purposes. Defendants do not challenge the characterization of
Plaintiff’s removal from the IGRC as an adverse action. Def. Mem. at 16-22.
Here, the undisputed facts establish that the alleged retaliatory actions of which Plaintiff
now complains occurred shortly after Plaintiff engaged in protected activity, including, for
example, a twelve-day period between Plaintiff’s most recent grievance dated October 9, 2003,

15

and the October 21, 2003 notice by Defendant Henrich that he had been suspended from the IGRC.
Notwithstanding the short period of time that suffices to establish temporal proximity between the
alleged protected conduct an the adverse action, see King v. McIntyre, No. 11-CV-1457, 2015 WL
1781256, at *5 (N.D.N.Y. Apr. 8, 2015), a plaintiff alleging a First Amendment retaliation claim
may not rely on temporal proximity alone to defeat summary judgment. See Faulk v. Fisher, 545
F. App’x 56, 58 (2d Cir. 2013) (although temporal proximity between protected conduct and
adverse action constitutes circumstantial evidence of retaliation, “we have consistently required
some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a
retaliation claim”).
Neither party addresses Plaintiff’s prior disciplinary record per se. The record does
indicate, however, that in connection with his service as an IGRC representative, Plaintiff: (1)
questioned and/or objected to the applicability and meaning of Directive #4040 on July 2, 2003;
(2) was reminded of grievance timeliness and office confidentiality on the same date; (3) received
an Informal Counseling Memorandum regarding his duties and obligations as an inmate
representative on July 7, 2003; (4) was observed to have performed poorly, did not conduct
thorough investigations, and became argumentative during hearings on July 10, 2003; (5) was
spoken with by Defendants Henrich and Lauber regarding his behavior, the purpose of the IGRC,
and the importance of timeliness on July 23, 2003; (6) was observed to exhibit unruly behavior
during a hearing and was noted to undermine the IGP process on July 24, 2003; (7) received a
Formal Counseling Notification regarding his poor work performance on July 25, 2003; and (8)
received a Formal Counseling Notification regarding his failure to thoroughly conduct and
complete grievance investigations on August 1, 2003. Def. Ex. I at 337-363.

16

The Issuance of Counseling Memoranda continued into the fall months. After four
additional memoranda detailing Plaintiff’s work performance, which included issues with
incomplete files, adversarial demeanor, and improper coding of grievances, Plaintiff was served
with an impeachment recommendation and notification of impending hearing. Def. Ex. I at 73-87.
Following the impeachment hearing, which ran for several days, Plaintiff signed a copy of the
November 17, 2003, determination, which noted that Plaintiff provided “no real defense to the
charges.” Def. Ex. I at 69-70, 105. Plaintiff was found to have violated several rules of the IGRC
Code of Ethics. In sum, Plaintiff has not established that he had a positive record of performance
with the IGRC before the alleged protected conduct, or that he was vindicated at the hearing.
Inasmuch as Plaintiff seeks to allege a continuous pattern of retaliation, he still fails to
establish a causal connection, because it is clear that Plaintiff continued to file grievances against
the IGP department after Defendants Henrich and Lauber issued the allegedly retaliatory
memoranda. Accordingly, Plaintiff was not deterred by Defendants’ conduct and therefore he has
not proffered sufficient evidence to establish a causal connection.
Even assuming Plaintiff has established a prima facia First Amendment retaliation claim,
thus shifting the burden to Defendants, the record establishes that “even without the improper
motivation the alleged retaliatory action would have occurred.” Scott v. Coughlin, 344 F.3d 282,
287-88 (2d Cir. 2003). “At the summary judgment stage, if the undisputed facts demonstrate that
the challenged action clearly would have been taken on a valid basis alone, defendants should
prevail.” Davidson v. Chestnut, 193 F.3d 144, 149 (2d Cir. 1999) (per curiam). In the context of
prison administration, “the conclusion that the state action would have been taken in the absence
of improper motives is readily drawn . . . [because] we have been cautioned to recognize that

17

prison officials have broad administrative and discretionary authority over the institutions they
manage.” Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (internal quotation marks omitted).
In this case, Defendants had legitimate, non-retaliatory reasons to impeach him from the
IGRC. The IGRC Training Manual and Code are applicable to IGRC staff, inmate representatives,
clerks, and the chairperson. The Code provides, in relevant part, that “[v]iolations of this code may
result in dismissal from participation from the Grievance Program.” Def. Ex. I at 77. Shortly after
Plaintiff’s election, he was counseled regarding his work product and confidentiality issues.
Plaintiff was advised, throughout the course of his term as an inmate representative, of the IGRC
purpose, duties, and the Code. He was observed to exhibit unruly and adversarial behavior and did
not complete timely grievance investigations. Four months after his tenure began, Plaintiff was
served with an impeachment recommendation which charged him with using the IGRC as an
adversarial process and failing to follow staff direction. After the impeachment hearing, which
lasted several days, it was determined that Plaintiff had violated certain of the Code rules.
The record establishes that Plaintiff, during his four-month period of service, almost
continually exhibited poor performance and disruptive behavior, and was given multiple
opportunities to correct his shortcomings by his superiors by verbal and written warnings. Plaintiff
was found guilty of the charges by ample evidence, and that finding has not been overturned. Def.
Ex. I at 68-70, 207. Because Defendants would have sought Plaintiff’s removal from the IGRC
even if Plaintiff had not filed grievances, Defendants have established “dual motivation” and are
entitled to summary judgment with regards to Plaintiff's retaliation claims. See Allred v. Knowles,
No. 06CV0456, 2010 WL 3911414, at *7 (W.D.N.Y. Oct. 5, 2010) (“Assuming, arguendo, that
plaintiff could show that the disciplinary actions were motivated by retaliatory animus (an
assumption that has no basis in the record before this Court), plaintiff's retaliation claims would

18

fail because defendants can easily show that they would have taken the same disciplinary actions
even in the absence of the protected conduct.”) (citing Davidson v. Chestnut, 193 F.3d 144, 149
(2d Cir. 1999) (“At the summary judgment stage, if the undisputed facts demonstrate that the
challenged action clearly would have been taken on a valid basis alone, defendants should
prevail.”)).
C.

ADA and Section 504 Claims

Plaintiff alleges that Defendants discriminated and retaliated against him in violation of the
ADA and the Rehabilitation Act. Pl. Mem. at 10-13.7 Defendants, in turn, argue that the individual
Defendants are not covered entities for purposes of the disability discrimination statutes, and that
DOCCS is not a named defendant; and that Plaintiff’s claims fail as a matter of law. Def. Mem. at
3-4.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of . . . a public entity,
or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, section 504
of the Rehabilitation Act “protects a ‘qualified individual with a disability’ from exclusion of
participation, denial of the benefits, or subjection to discrimination ‘under any program or activity
receiving Federal financial assistance,’ because of the individual’s disability.” Harrington v.
Vadlamudi, No. 13-CV-0795, 2014 WL 4829483, *3 (N.D.N.Y. Sept. 29, 2014) (citing 29 U.S.C.
§ 749(a)). “[T]he standards adopted by Title II of the ADA for State and local government services
are generally the same as those required under section 504” of the Rehabilitation Act. Henrietta
D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).

7
Although Plaintiff states that he was retaliated against in violation of the above-mentioned statutes,
the pertinent portions of his opposition papers address only a claim of intentional discrimination claim on
a failure-to-accommodate theory.
19

The Court need only briefly address Defendants’ threshold arguments. First, DOCCS was
in fact named as a defendant in this action. See 2d Am. Compl. at 3, ¶ 35; ECF No. 62 at 8. Second,
the Attorney General of the State of New York filed a Notice of Appearance and motion papers
seeking relief on behalf of all Defendants. See ECF Nos. 27, 58. Such an appearance on behalf of
the unserved defendants constitutes a waiver of service. See Coble v. Stinson, 210 F.3d 354 (2d.
Cir. 2000). Finally, as Plaintiff points out, the protections offered under both statutes extend to
inmates in state correctional facilities. See Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 213 (1998);
see Pl. Mem. at 10.
Turning to the merits, “[t]o establish a violation under Section 504 or Title II, a plaintiff
must demonstrate that (1) he is a qualified individual with a disability; (2) the defendant is subject
to one of the Acts; and (3) he was denied the opportunity to participate in or benefit from the
defendant’s services, programs, or activities, or was otherwise discriminated against by the
defendant because of his disability.” Disabled in Action v. Bd. of Elections in City of New York,
752 F.3d 189, 196 (2d Cir. 2014) (internal quotation omitted). Here, Plaintiff’s discrimination
claims are premised upon DOCCS’ alleged failure to make a reasonable accommodation. See
Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).
It is undisputed that Plaintiff, who is confined to a wheelchair, is a qualified individual with
a disability. As previously stated, the ADA “plainly covers state institutions without any exception
that could cast coverage of prisons into doubt.” Yeskey, 524 U.S. at 209. Here, the parties dispute
whether, as a result of Plaintiff’s disability, he was denied the benefit of full participation on the
IGRC. Plaintiff contends that he verbally requested8 a wheelchair-accessible desk and was not

8
DOCCS Directive 2614(IV)(A) provides that an inmate request for accommodation may be made
orally or in writing. If said request is made orally, the inmate “should be assisted in completing the
Reasonable Accommodation Request Form.” ECF No. 102-5 at 4, et seq. (“Def. Ex. B”).
20

provided one, requiring him to work at a desk or table that was not designed for wheelchair
accommodation, causing discomfort and requiring him to take additional time to complete his
work. Pl. Mem. at 12. Defendants, on the other hand, maintain that Plaintiff never “filed a [written]
reasonable accommodation request,” ECF No. 102-5, ¶ 18, but could not recall if Plaintiff made a
verbal request. Defendants further argue that even if Plaintiff had made such a request, DOCCS
was not required to provide a wheelchair-accessible desk because there were a variety of other
accessible work spaces available to Plaintiff at which he could use to fulfill his duties. Def. Mem.
at 4-5.
While it is true that a public entity need not “provide a disabled individual with every
accommodation he requests or the accommodation of his choice,” McElwee v. Cnty. of Orange,
700 F.3d 635, 641 (2d Cir. 2012), an issue of fact exists as to whether Plaintiff requested a
wheelchair-accessible desk. Moreover, “[d]etermining the reasonableness of an accommodation is
a fact-specific question that often must be resolved by a factfinder.” Wright v. New York State
Dep’t of Corr., 831 F.3d 64, 72–73 (2d Cir. 2016) (citation, internal quotation marks and brackets
omitted). Given the factual dispute of whether Plaintiff requested and was denied a reasonable
accommodation by Five Points administrators, a genuine issue of material fact exists that prevents
the grant of summary judgment on Plaintiff’s ADA and Rehabilitation Act claims. Benimovich v.
Fieldston Operating LLC, No. 11 CIV. 780 RA, 2013 WL 1189480, at *8 (S.D.N.Y. Mar. 22,
2013) (denying summary judgment where disputed issue of fact existed as to whether the plaintiff
requested and was provided a reasonable accommodation). Defendants’ summary judgment
motion is therefore denied on Plaintiff’s failure to accommodate claim.
D.

Due Process Claims

21

Plaintiff claims that his due process rights were violated in connection with his
impeachment from the IGRC. Pl. Mem. at 16-17.
DOCCS Directive 4040 provides, in relevant part:
Before an elected inmate representative or an inmate representative
who has permanently replaced an elected representative of the IGRC
may be removed from his/her position on the committee or
transferred to another facility, a limited due process hearing must be
held. When the inmate is served with the notice of charges, the
notice must indicate that the affirmation of these charges may result
in removal from the IGRC. This hearing may be a disciplinary Tier
III hearing or an IGRC impeachment hearing (procedurally the same
as a Tier III hearing; see Part 254 of this Title). The hearing
determines whether or not the representative should be removed
from his/her representative position and for how long he/she should
be precluded from holding a representative position. Although other
sanctions may result from a disciplinary Tier III hearing, no other
sanctions may result from an IGRC impeachment hearing.
N.Y.C.R.R. 7 § 701.4.
Because the IGRC impeachment hearing is procedurally identical to a Tier III disciplinary
hearing, the Court utilizes the due process standards applicable to prison disciplinary proceedings.
Id.
“Due process requires that a prison disciplinary hearing be impartial.” See Russell v. Selsky,
35 F.3d 55, 59 (2d Cir. 1994) (citation omitted). However, the Second Circuit has held that “prison
disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other
contexts,” and “the degree of impartiality required of prison officials does not rise to the level of
that required of judges generally.” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citations
omitted). According to the Second Circuit, “an impartial decisionmaker is one who, inter alia,
does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not
yet seen.” Patterson v. Coughlin, 905 F.2d 564, 569–70 (2d Cir.1990) (citation omitted).

22

To comply with procedural due process, prison authorities must provide an inmate charged
with a violation in a disciplinary hearing with “advance written notice of the charges against him;
a hearing affording him a reasonable opportunity to call witnesses and present documentary
evidence; a fair and impartial hearing officer; and a written statement of the disposition, including
the evidence relied upon and the reasons for the disciplinary actions taken.” Sira v. Morton, 380
F.3d 57, 69 (2d Cir. 2004). The requirements of due process are satisfied if “some evidence”
supports the conclusion of the disciplinary hearing. Supt., Mass. Corr. Inst., Walpole v. Hill, 472
U.S. 445, 455 (1985).
Plaintiff, who was served with a Recommendation for Impeachment on October 21, 2003
(seven days prior to his hearing), contends he was denied his right to call nine witnesses to testify
on his behalf. Pl. Mem. at 16-17.
The record establishes that Plaintiff requested to call approximately 38 witnesses, four of
whom refused to testify, one who was no longer was housed at Five Points, and nine whom were
denied by Hearing Officer Napoli. Def. Ex. I at 98-101. Napoli determined that those witnesses
were immaterial as they lacked direct knowledge of the issues regarding Plaintiff’s hearing. Id.
Although Plaintiff now complains that he was denied his request to call inmate witnesses
Campbell, Divine, Hauk, Lashley, and Millard, the record is clear that Campbell did in fact testify
on October 30, 2003, and that the remaining witnesses were never requested to be called. Id. at 91,
94, 105-06. Finally, Plaintiff concedes that two of those witnesses had no knowledge surrounding
the charges against him. Def. Ex. H at 148-49. In total, 25 witnesses testified at Plaintiff’s
Impeachment hearing. Plaintiff’s sole remaining challenge is to Napoli’s determination that nine
of the witnesses sought were immaterial.

23

A prisoner’s right to call witnesses at a disciplinary hearing may be denied “on the basis
of irrelevance or lack of necessity.” Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991)
(citations omitted). In exercising discretion to exclude evidence from a disciplinary hearing, a
prison official:
may be required to explain, in a limited manner, the reason why
witnesses were not allowed to testify, but [ ] they may do so either
by making the explanation a part of the “administrative record” in
the disciplinary proceeding, or by presenting testimony in court if
the deprivation of a “liberty” interest is challenged because of that
claimed defect in the hearing. In other words, the prison officials
may choose to explain their decision at the hearing, or they may
choose to explain it “later.”
Ponte v. Real, 471 U.S. 491, 497 (1985).
The record evidence establishes no violation of Plaintiff’s due process rights by Defendant
Napoli. First, certain of Plaintiff’s claims regarding witnesses are flatly contradicted by the
undisputed facts. Second, Defendant Napoli completed a Witness Interview Notice for each of the
nine witnesses, all of whom appear to be DOCCS administrators (including Napoli himself),
indicating that the proposed witness either had no direct knowledge of Plaintiff’s IGRC activities,
the circumstances of impeachment, or the issues presented at the hearing. Def. Ex. I at 98-101. The
Second Circuit has upheld the right of prison officials to refuse to call a witness whose testimony
would be irrelevant or redundant. See Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (“The
refusal to call witnesses whose testimony would be redundant is not a violation of any established
due process right.”); see also Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999) (holding that
hearing officer did not violate due process by failing to call fourteen requested witnesses who were
not present during incident); Russell v. Selsky, 35 F.3d 55, 58–59 (2d Cir. 1994) (prison official
“did not violate any clearly established constitutional or statutory right” when he refused to permit

24

inmate’s requested witnesses to testify where the witnesses’ testimony would have been
“duplicative or non-probative”).
Significantly, Plaintiff’s hearing included testimony from 25 witnesses. Although he states,
in conclusory fashion, that “the record demonstrates that Plaintiff was denied the right to call nine
witnesses to testify on his behalf,” there is no evidence in the record that the testimony of any of
the prison administrators would have changed the result of his hearing had they been permitted to
testify, nor does he identify what those witnesses would have testified to. He has therefore failed
to demonstrate any prejudice in connection with the alleged denials by showing that they affected
the outcome of the hearing. See, e.g., Clark v. Dannheim, 590 F. Supp. 2d 429, 429 (W.D.N.Y.
2008) (citing Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991)) (other citations omitted). As
a result, there is no triable issue of fact as to whether Plaintiff had an opportunity to appear and
call witnesses, and Plaintiff’s due process claim must therefore be dismissed.
E.

Eighth Amendment Claims

Plaintiff alleges that his Eighth Amendment rights were violated when he was denied
proper medical care insofar as he was not provided adequate wheelchair maintenance, hand and
wrist splits, and a sufficient supply of proper catheters. Pl. Mem. at 21-23.
In order to establish a violation of the Eighth Amendment arising out of inadequate medical
treatment, Plaintiff must prove that Defendants acted with “deliberate indifference to [his] serious
medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). The “deliberate indifference” standard
has both objective and subjective components. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994). To satisfy the objective component, the alleged medical need must be “sufficiently serious.”
Id. A “sufficiently serious” medical need is “a condition of urgency, one that may produce death,
degeneration, or extreme pain.” Id. “Factors that have been considered include the existence of an

25

injury that a reasonable doctor or patient would find important and worthy of comment or
treatment; the presence of a medical condition that significantly affects an individual’s daily
activities; or the existence of chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998).
To satisfy the subjective prong, a plaintiff must show that a defendant acted with a
“sufficiently culpable state of mind” in depriving him of adequate medical treatment. Hathaway
v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). “The subjective element of deliberate indifference
entails something more than mere negligence . . . [but] something less than acts or omissions for
the very purpose of causing harm or with knowledge that harm will result.” Id. In order to be
found “sufficiently culpable,” the official must “know[ ] of and disregard[ ] an excessive risk to
inmate health or safety; [ ] must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
More than medical malpractice is required to establish a constitutional violation. “Medical
malpractice does not rise to the level of a constitutional violation unless the malpractice involves
culpable recklessness.” Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011). Mere negligence is not
actionable, see Estelle, 429 U.S. at 106, nor is a disagreement over the proper treatment. Chance,
143 F.3d at 703.
In opposition to Defendants’ motion for summary judgment, Plaintiff focuses on the
issuance of catheters by medical staff at Five Points. Pl. Mem. at 21-23. Plaintiff, who is
represented by counsel, does not address Defendant’s remaining arguments with respect to Point
VII of the Defendant’s memorandum, making only a cursory reference to unidentified medical
staff “fail[ing] to properly maintain his wheelchair, and den[ying] him appropriate wrist splints,”

26

with no further discussion. See Pl. Mem. at 21-31; Def. Mem. at 21-26. As such, the Court finds
that Plaintiff has abandoned his claims relating to Defendants’ alleged failure to provide adequate
wheelchair maintenance and denial of hand and wrist splints,9 and dismissal of Plaintiff’s Eighth
Amendment claims on those grounds is therefore warranted. See Frontera v. SKF USA, Inc., No.
07-CV-563-JTC, 2010 WL 3241123, at *10 (W.D.N.Y. Aug. 16, 2010) (granting summary
judgment on the basis of abandonment where the plaintiff failed to respond to the defendant’s
arguments); Avola v. Louisiana-Pacific Corp., 991 F. Supp. 2d 381, 390 (E.D.N.Y. 2013) (granting
summary judgment on five claims not directly opposed in the plaintiff’s opposition papers);
Douglas v. Victor Capital Group, 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (finding claims
abandoned where plaintiff failed to address claims in opposition to defendants’ summary judgment
motion) (citations omitted).
With regard to the issuance of catheters, Plaintiff attempts to establish a claim of deliberate
indifference based upon a disagreement about treatment.10 While Plaintiff appears to contend that
medical staff at Five Points was deliberately indifferent because his catheters were provided in
varying quantities throughout his time, see supra at 9-11, he does not indicate how many catheters
per week were required for his condition. Indeed, Plaintiff has submitted nothing to refute Dr.
Dinello’s assertion that Plaintiff’s treatment was consistent with the prevailing standards of
medical care. ECF No. 102-4, ¶ 47. The record also indicates that Plaintiff was regularly provided

9
In any event, both of Plaintiff’s claims are belied by the record evidence and undisputed facts.
10
Defendants do not squarely address whether Plaintiff’s need for catheters constitutes a serious
medical need. See Def. Mem. at 22. The Court assumes, without deciding, that his condition satisfies the
objective component of the deliberate indifference standard. See, e.g., Woods v. City of Utica, 902 F. Supp.
2d 273, 283 (N.D.N.Y. 2012) (“The County defendants do not seriously dispute that Woods, a paraplegic
who requires the use of a catheter to urinate and suppositories to maintain regular bowel movements, suffers
from a serious medical condition.”).

27

with his catheters, instructions on how to use them, and that he was provided additional supplies
whenever he requested them. ECF. No. 102-4 (“Def. Ex. A”).
Although Plaintiff repeatedly references a Court Order from the Southern District of New
York dated January 31, 2002, see ECF No. 110-14,11 he nonetheless fails to identify any evidence
in the record indicating that the failure to provide a specific number of catheters was medically
insufficient, or that it represented a deliberate indifference to any serious medical risk. The only
other evidence that Plaintiff points to in support of his position is his own declaration, in which he
contends that he was “only provided urinary catheters on a sporadic basis with varying amounts.”
West Decl., ¶ 44, et seq.
It is well-settled that “mere disagreement over the proper treatment does not create a
constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth Amendment violation.” Chance, 143
F.3d at 703. Here, Plaintiff’s opinion that he was not provided an adequate supply of catheters
does not raise a material issue of fact on the subjective component of a deliberate indifference
claim. See Hicks v. Meko, No. 09–01–HRW, 2009 WL 2043556 (E.D. Ky. July 13, 2009) (“Nor
does [the plaintiff’s] disagreement with his physicians regarding the frequency of replacing a
catheter state a cognizable constitutional claim.”); Morgan v. Mississippi, No. 2:07cv15, 2009 WL
1609060, at *7–10 (S.D. Miss. June 8, 2009) (rejecting deliberate indifference claim predicated
upon prisoner’s concern about developing urinary tract infection because physician ordered only

11
Plaintiff’s Conditional Discharge Order was issued in connection with a class action suit brought by
prisoners at Green Haven in 1979 for alleged violations of their rights through denial of necessary medical
treatment. The parties entered into a settlement, which was modified several times and ultimately embodied
in the Consent Decree on September 27, 1991. The Conditional Discharge Order followed, setting forth
various parameters and provisions related to Plaintiff’s medical care upon his discharge to Five Points,
including that Plaintiff “shall be provided with an adequate supply of urinary catheters in his cell.” See Pl.
Ex. 14, ¶ 12, ECF No. 110-14.
28

one new external catheter per week and new leg bag per month); McGiffin v. Clayton, No.
6:07cv184, 2008 WL 416929, at *4–5 (E.D. Tex. Feb. 13, 2008) (plaintiff-prisoner’s allegations
regarding delays in receiving new catheters and frequency of replacement constituted
disagreement regarding sufficiency of medical care, a claim sounding in medical malpractice
rather than deliberate indifference); Jenkins v. Mohr, No. 2:14-CV-248, 2014 WL 4748619, at *5
(S.D. Ohio Sept. 23, 2014), report and recommendation adopted, No. 2:14-CV-248, 2014 WL
7403992 (S.D. Ohio Dec. 30, 2014) (“The Complaint demonstrates that plaintiff disagrees with
defendants about the frequency with which his catheters should be replaced. Such a disagreement
does not, however, amount to a constitutional violation.”).
Finally, Plaintiff claims that the “repeated use of single-use catheters caused Plaintiff
painful urination, blood in his urine, and a painful scrotal enlargement.” See Pl. Mem. at 23.12 The
record indicates that Plaintiff complained of scrotal discomfort lasting two to three days, and that
his test for a urinary tract infection was negative. Def. Ex. A. Defendants contend that these
symptoms have been held not to constitute sufficiently serious medical conditions for purposes of
an Eighth Amendment claim. Def. Mem. at 24. In support of their position, Defendants cite to
Ford v. Phillips, No. 05 Civ. 6646, 2007 WL 946703, at *12 & n.70 (S.D.N.Y. Mar. 27, 2007)
(bruises, abrasions, and blood in urine did not give rise to a medical indifference claim), and Tapp
v. Tougas, No. CIVA905CV01479, 2008 WL 4371766, at *9 (N.D.N.Y. Aug. 11, 2008), report
and recommendation adopted in part, rejected in part, No. 05-CV-1479, 2008 WL 4371762
(N.D.N.Y. Sept. 18, 2008) (allegations of “swollen testicles, blood in urine & stool, lower back
pain, bruises to [his] wrist & face,” even if credited, did not set forth a “sufficiently serious”

12
The Court notes that neither party explains what is meant by “single-use.” The medical records
indicate that the catheters issued were vinyl, but are unclear as to whether single-use is defined as disposable
(one-time use) or to be used by a single individual.
29

condition)). Plaintiff’s complained-of symptoms (enlarged scrotum, scrotal and urinary pain, and
blood in the urine) were arguably more serious than in the cases cited by Defendants. Moreover,
the Ford court addresses scratches and bumps as not being sufficiently serious, and with regard to
the plaintiff’s urinary complaints, he could not establish the subjective component of a deliberate
indifference claim because the medical defendants “continued to monitor the plaintiff’s possible
internal injuries, such as blood in his urine, until the symptoms subsided.” Ford, 2007 WL 946703
at *12. The Court finds that Ford better supports the position that urinary pain and blood in the
urine can present a sufficiently serious condition capable of causing extreme pain. See Hathaway,
37 F.3d at 66.
But even assuming that Plaintiff’s conditions were “sufficiently serious,” the record
nonetheless establishes that Plaintiff was repeatedly offered medical care at Five Points, and he
rejected it. See supra at 9; see generally Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)
(facts must give rise to a reasonable inference that the persons charged with providing medical
care knew of those serious medical needs and intentionally disregarded them). He therefore cannot
establish the subjective component of the deliberate indifference test. Finally, the record does not
substantiate his claim that his ailments were caused by re-using single-use catheters, but were
rather likely due his self-catheterization technique. See Def. Ex. A. He submits no evidence, other
than his own conclusory allegations, to the contrary.
For all of these reasons, Plaintiff’s Eighth Amendment claim of deliberate indifference
must be dismissed.
F.

Equal Protection / Conspiracy Claims

Plaintiff, who is African-American, claims that certain of the Defendants violated his Equal
Protection rights by not permitting him access to the facility to conduct IGRC investigations, when

30

Caucasian and Latino IGRC representatives were previously permitted to do so. Pl. Mem. at 1719.
The Equal Protection Clause of the Fourteenth Amendment provides that the government
shall treat all similarly-situated people alike. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.
1995) (citing Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Generally, the equal
protection clause has been “concerned with governmental ‘classifications that affect some groups
of citizens differently than others.’” Engquist v. Or. Dep’t of Agric., 533 U.S. 591, 601 (2008).
Racial and/or religious discrimination in prisoner job assignments is a violation of the Equal
Protection Clause. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Bussey v. Phillips, 419
F.Supp.2d 569, 588–89 (S.D.N.Y. 2006).
“To prove a violation of the Equal Protection Clause . . . a plaintiff must demonstrate that
he was treated differently than others similarly situated as a result of intentional or purposeful
discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005); see also Brown v. City of
Syracuse, 673 F.3d 141, 151 (2d Cir. 2012). For prisoners asserting an Equal Protection claim, a
plaintiff “also must show that the disparity in treatment cannot survive the appropriate level of
scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not
‘reasonably related to [any] legitimate penological interests.’” Phillips, 408 F.3d at 129 (quoting
Shaw v. Murphy, 532 U.S. 223, 225 (2001)). “The government can treat persons differently if they
are not ‘similarly situated.’” Yuen Jin v. Mukasey, 528 F.3d 143, 158 (2d Cir. 2008) (alteration and
quotation marks omitted).
Here, Plaintiff submits no evidence sufficient to raise a triable issue of fact that he was
treated differently or intentionally discriminated against as an African-American inmate. The
parties do not dispute that prior to Plaintiff’s election to the IGRC, African-American, Caucasian,

31

and Latino inmates had served in the position, and those inmates were permitted access to the
entire Five Points facility to conduct IGRC investigations, and that the rule permitting IGRC
representatives to move freely about the facility to conduct IGRC investigations was suspended
sometime in 2002, prior to the date that Plaintiff’s term began in June of 2003. See Def. Exs. D &
H. Plaintiff does not argue, much less submit any proof, that the restriction in facility access was
either racially motivated or that it was applied to him and not other, similarly-situated inmates. Pl.
Mem. at 18.
Moreover, Defendant Lauber testified that the policy permitting IGRC inmate
representatives to move freely about the facility to conduct investigations was suspended shortly
after she began her job at the IGRC office in 2002. Def. Ex. D at 17-18, 39. While it was not her
decision, she believed the policy change was enacted because Five Points is designated as a
maximum security prison and as such, allowing unrestricted movement throughout the facility
would be problematic as it is not permissible for inmates to be in housing units to which they are
not assigned, and each IGRC inmate representative would need to be escorted throughout Five
Points to conduct investigations. Id. at 14-20, 81-82. Thus, even if there was a disparity in
treatment, which the record evidence plainly refutes, a policy denying unrestricted facility access
to IGRC inmate representatives can serve as a legitimate penological interest of prison order and
security. See, e.g., Jean-Laurent v. Los, No. 12-CV-132, 2015 WL 1015383, at *9 (W.D.N.Y.
Mar. 9, 2015) (Prison’s enforcement of policy prohibiting inmates to move freely about the facility
was related to a valid penological interest and “pose[d] little hardship on Plaintiff's free exercise
of his religion or to Plaintiff's access to the courts.”).

32

Plaintiff has failed to raise an issue of fact as to whether he was the subject of intentional
discrimination on the basis of his race, and therefore the Defendants are entitled to summary
judgment on his Fourteenth Amendment Equal Protection claim.
Because Plaintiff’s § 1985(3) conspiracy claim is premised upon the same allegations, see
Pl. Mem. at 18-19, it must necessarily fail. To establish a conspiracy claim pursuant to 42 U.S.C.
§§ 1983 and 1985, a plaintiff first must establish an underlying deprivation of a constitutional
right. Romer v. Morgenthau, 119 F.Supp.2d 346, 363 (S.D.N.Y. 2000) (“[a] violated constitutional
right is a natural prerequisite to a claim of conspiracy to violate such right.”). Summary judgment
is therefore appropriate in favor of Defendants on the conspiracy claim as well.
G.

Title VII Claim

Finally, Plaintiff attempts to bring a Title VII claim against Defendants on the basis that he
allegedly was subjected to illegal discrimination and retaliation during his participation as an IGRC
representative. Pl. Mem. at 14-16. Federal courts have repeatedly held that Title VII, an
employment discrimination statute, does not apply to inmates who are assigned to prison jobs. See
Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (inmate was not “employee” under Title
VII because his relationship with defendants arose from his status as inmate, not as employee);
Wilkerson v. Samuels, 524 F. App’x 776, 779 (3d Cir. 2013) (protections afforded under Title VII
did not apply to prisoners’ job in prison factory); Iheme v. Smith, 529 F. App’x 808, 809 (8th Cir.
2013) (inmate worker should not be treated as an “employee” for purposes of Title VII); Stile v.
Fed. Bureau of Prisons, No. CV 16-3832, 2016 WL 8710396, at *6 (D. N.J. Aug. 26, 2016) (same);
McCaslin v. Cornhusker State Indus., 952 F.Supp. 652, 657 (D. Neb. 1995) (concluding that Title
VII does not apply to prisoners working in a prison setting); Smith v. Sumner, No. 11CV39MLM
(E.D. Mo. 2011), 2011 WL 4342617 at *6 (“Title VII does not apply to the prisoner working in

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the state prison, for the state prison industry as part of his or her sentence”); Jones v. Lockett, NO.
CIV.A 08–16 (W.D. Pa. 2009), 2009 WL 2232812 at *5 (citing several federal cases supporting
the conclusion that prison inmates are not employees for purposes of Title VII).
Based on this ample authority, Plaintiff does not have a covered employment relationship
with the Defendants that would allow him to pursue a discrimination claim against them under
Title VII. Summary judgment is appropriate in favor of Defendants on this claim.
CONCLUSION
For all of the foregoing reasons, the Defendants’ Motion for Summary Judgment (ECF No.
102) is GRANTED IN PART AND DENIED IN PART. Specifically, the Motion is DENIED with
respect to Plaintiff’s claims alleging discrimination and retaliation in violation of the ADA and the
Rehabilitation Act. The Motion is GRANTED with respect to the remaining causes of action, and
Plaintiff’s First Amendment, Title VII, Due Process, Equal Protection, Deliberate Indifference,
and Conspiracy claims are dismissed without prejudice.
Defendants Case, Keefe, Lauber, and Pabon remain in this action as relevant to Plaintiff’s
ADA and Rehabilitation Act claims. Plaintiff’s claims against Defendant Henrich are dismissed
by operation of Fed. R. Civ. P. 25(a)(1), and all other named Defendants are dismissed from this
action in accordance with the above Decision and Order.
IT IS SO ORDERED.
DATED:

July 31, 2017
Rochester, New York
___________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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