Holmes v. Fischer et al
REPORT AND RECOMMENDATIONS re 112 MOTION for Summary Judgment filed by W. Zigenfris, Cathy Felker, Philip Heath, Ludquist, Mary Batroney, Canfield, J. Smith, Henry Fowler, Brian Fischer, Napoli, Inmate Grievance Supervisi or Abrunzo, Mark Bradt, Lucien Leclaire, Norman Bezio, Karen Bellamy, Southport Prison Nurse Dyal-Weaver, S.J. Wenderlich. Objections due fourteen days from receipt. DECISION AND ORDER denying 125 Plaintiff's motion seeking to dismiss court-appointed counsel. Signed by Hon. Leslie G. Foschio on 2/10/2016. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRIAN FISCHER, Commissioner of the New York
State Department of Correctional Serv., LUCIEN
LeCLAIRE, Deputy Commissioner (DOCS), UNKNOWN
CORRECTIONAL LIEUTENANT (or Higher-Ranking
Authority), Elmira, NORMAN BEZIO, Special Housing
Unit/Disciplinary Director, KAREN BELLAMY, Assistant
Commissioner/Director of Department of Correctional
Services (DOCS), LUDQUIST, Acting Director of DOCS,
S.J. WENDERLICH, Deputy Superintendent of Security for
Elmira Prison, MARK BRADT, Superintendent of Elmira
Prison, INMATE GRIEVANCE SUPERVISOR ABRUNZO,
SOUTHPORT PRISON NURSE DYAL-WEAVER,
DOCTOR HENRY FOWLER, DOCTOR CANFIELD,
UNKNOWN INFORMANTS, ELMIRA PRISON, W.
ZIGENFRIS, Correctional Lieutenant, J. SMITH,
Correction Sergeant, PHILIP HEATH, Sing Sing Prison
Superintendent, and CATHY FELKER, Southport Prison
THE REDDY LAW FIRM LLC
Attorneys for Plaintiff
PRATHIMA C. REDDY, of Counsel
455 Linwood Avenue
Buffalo, New York 14209
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL, STATE OF NEW YORK
Attorney for Defendants
DAVID J. SLEIGHT
Assistant Attorney General, of Counsel
350 Main Street
Buffalo, New York 14202
This case was referred to the undersigned on July 19, 2010, by Honorable
William M. Skretny for all pretrial matters including preparation of a report and
recommendation on dispositive motions. The matter is presently before the court on
Defendants’ motion for summary judgment (Doc. No. 112), filed December 10, 2014,
and Plaintiff’s motion seeking to dismiss his court-appointed counsel (Doc. No. 125),
filed December 17, 2015.1
On September 22, 2009, Plaintiff Brandon Holmes, then proceeding pro se,
commenced this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of
his constitutional rights based on incidents occurring in 2008 at Elmira Correctional
Facility (“Elmira”), and between 2009 and 2010 at Southport Correctional Facility
(“Southport”), where Plaintiff was then housed in the custody of New York Department
of Corrections and Community Supervision (“DOCCS”). Plaintiff alleges Defendants, all
DOCCS employees assigned to either Elmira or Southport, violated his civil rights,
including his rights under the First, Fourth, Eighth, and Fourteenth Amendments, by
subjecting Plaintiff to suspicionless, non-random urinalysis drug testing, improperly
cuffing Plaintiff, sleep deprivation, failing to properly treat Plaintiff’s cardiac complaints,
failing to maintain an adequate health intervention program, delaying treatment of
Plaintiff’s wounds sustained in a physical altercation with another inmate, and interfering
with Plaintiff’s attempt to petition for redress of grievances, and further alleges claims for
Although Defendants’ motion seeking summary judgment is dispositive, whereas Plaintiff’s request to
dismiss his court-appointed attorney is nondispositive, the court addresses both motions in this combined
Report and Recommendation/Decision and Order in the interests of judicial economy and convenience.
retaliatory harassment and conspiracy pertaining to Defendants’ alleged unwarranted
urinalysis drug testing. On January 30, 2012, Plaintiff filed an amended complaint (Doc.
No. 34) (“Amended Complaint”). Defendants’ answer to the Amended Complaint was
filed February 9, 2012 (Doc. No. 36).
By motion filed April 11, 2013 (Doc. No. 67), Plaintiff requested appointment of
counsel, which request was granted by the undersigned on June 21, 2013 (Doc. No.
77), with Prathima C. Reddy, Esq. (“Reddy”), appointed to represent Plaintiff in
connection with this matter. Plaintiff’s subsequent request filed November 6, 2013
(Doc. No. 92), to have Reddy discharged as Plaintiff’s assigned counsel was denied by
the undersigned on January 30, 2014 (Doc. No. 96) (“January 30, 2014 D&O”).
On December 10, 2014, Defendants filed the instant motion for summary
judgment (Doc. No. 112) (“Defendants’ motion”), and supporting papers, including the
Statement of Undisputed Facts (Doc. No. 113) (“Defendants’ Statement of Facts”),
attaching exhibits A and B (Docs. Nos. 113-1 and 113-2) (“Defendants’ Exh(s). __”), the
Declaration of Wesley Canfield, M.D. (Doc. No. 114) (“Dr. Canfield Declaration”),
attaching exhibit B2 (Doc. No. 114-1) (“Dr. Canfield Exh. B”), the Declaration of Stephen
J. Wenderlich (Doc. No. 115) (“Wenderlich Declaration”), attaching exhibits A and B
(Docs. Nos. 115-1 and 115-2) (“Wenderlich Exh(s). __”), and the Memorandum of Law
in Support of Motion for Summary Judgment (Doc. No. 116) (“Defendants’
Memorandum”). By letter to the undersigned dated November 24, 2015, and filed
December 17, 2015 (Doc. No. 125) (“Plaintiff’s motion”), Plaintiff complains that he
repeatedly has failed to receive legal mail from his attorney, Reddy, which has
Dr. Canfield’s Exh. A is a volume containing Plaintiff’s medical records which Defendants declined to
electronically file, choosing instead to provide hard copies to Plaintiff’s counsel and to the court for in
camera review. Dr. Canfield Declaration ¶ 3 and n. 1.
interfered with Plaintiff’s meaningful participation in telephone calls with Reddy.
Plaintiff’s motion at 1.3 Plaintiff further asserts there are several arguments he wishes to
raise in opposition to Defendants’ motion for summary judgment, and requests Reddy
be dismissed as his counsel. Id. at 1-2. After several requests for extensions of time to
oppose summary judgment were granted, Plaintiff filed on November 30, 2015, the
Affirmation in Support of Plaintiff’s Motion in Opposition of Defendant’s Motion for
Summary Judgment (Doc. No. 123) (“Plaintiff’s Affirmation”), attaching exhibits (Docs.
Nos. 123-1 through 123-6) (“Plaintiff’s Exh(s). __”), and Plaintiff’s Memorandum [of]4
Law in Opposition to Defendant’s Motion for Summary Judgment (Doc. No. 123-7)
(“Plaintiff’s Memorandum”). On December 30, 2015, Defendants filed the Memorandum
of Law in Further Support of Defendants’ Motion for Summary Judgment (Doc. No. 126)
(“Defendants’ Reply”). Oral argument was deemed unnecessary.
Based on the following, Defendants’ motion should be GRANTED; Plaintiff’s
motion is DENIED.
Between March 10, 2007, and November 28, 2008, Plaintiff Brandon Holmes
(“Plaintiff” or “Holmes”), then incarcerated at Elmira Correctional Facility (“Elmira”), was
given eight “full scan” urinalyses (“the urinalyses”), of which two were random and six
In another letter dated November 28, 2015, and filed December 14, 2015 (Doc. No. 124) (“November
28, 2015 Letter”), Plaintiff similarly asserts communication difficulties with Reddy including that Reddy
“refuses to consider” Plaintiff’s unspecified “meritorious input. . . .” November 28, 2015 Letter at 2.
Plaintiff also requests Reddy be censured and removed from this case if she cannot diligently defend
[Plaintiff’s] interests.” Id. at 4. Because the November 28, 2015 Letter is not addressed to the
undersigned, but is only a copy of a letter addressed to the Attorney Grievance Committee for the Fourth
Department of New York Supreme Court, the court need not further consider it.
Unless otherwise indicated, all bracketed material is added.
Taken from the pleadings and motion papers filed in this action.
were based on suspicion. Specifically, Plaintiff was required to submit to urine
specimen collection on March 10, 2007, pursuant to a March 10, 2007 request by
DOCCS Sgt. Tipton based on “suspicion – confidential information,” Defendants’ Exh. B
at Bates 000424, on July 13, 2007, pursuant to a July 10, 2007 request by DOCCS
Corrections Officer (“C.O.”) K. Curren who observed Plaintiff with “glossey [sic] eyes
and slurred speech,” id. at Bates 000425, on July 25, 2007, pursuant to a July 20, 2007
request by DOCCS Sgt. Thatcher because “confidential information indicates possible
drug use,” id. at Bates 000426, on February 2, 2008, pursuant to a December 29, 2007
request by DOCCS Sgt. Hucul after “reliable confidential inmate stated that Holmes is
using and dealing illegal narcotics,” id. at Bates 000427, on August 28, 2008 pursuant to
a August 27, 2008 request by DOCCS Sgt. Gregory Harvey (“Harvey”),6 because
“confidential information indicates inmate is involved in contraband drug use,” id. at
Bates 000429, and on November 22, 2008 pursuant to a November 18, 2008 request by
DOCCS Sgt. J. Smith following Plaintiff’s “involve[ment] in fight with weapon utilized,
possibly due to drug involvement.” Id. at Bates 000002. Urine samples were also
collected from Plaintiff for random full scan urinalyses on July 24, 2008 pursuant to a
July 7, 2008 request, and on August 30, 2008 pursuant to an August 11, 2008 request.
Id. at Bates 000428, 000430. DOCCS Lt. Pierri made the requests for both random
tests. Id. All eight urinalyses yielded negative results. For each specimen collection,
Plaintiff was required to urinate into a cup while observed by a DOCCS official which
Plaintiff maintains caused him stress resulting in insomnia, erectile dysfunction, nausea,
headaches, burning of eyes, dizziness, and loss of energy. Plaintiff, who steadfastly
Sgt. Harvey is not a Defendant to this action.
denies ever illegally using narcotics, asserts that each urinalysis procedure purportedly
based on suspicion by an unidentified but reliable confidential informant was unfounded.
Following the February 2, 2008 collection of his urine specimen pursuant to the
December 29, 2007 request, Plaintiff sought to obtain from Defendant Elmira Records
Access Officer Palmiera (“Palmiera”), by a Freedom of Information Law (“FOIL”) request
records supporting the need for DOCCS’s repeated urinalyses of Plaintiff, but Palmeira
never supplied the requested information.7 On February 6, 2008, Plaintiff filed inmate
grievance EL 33-913-08, dated February 2, 2008 (“First Grievance”),8 challenging the
repeated urinalyses as intended to sexually harass Plaintiff and asserting DOCCS
officials should be required to assess the reliability of such confidential informants
before requiring Plaintiff submit to urinalysis. First Grievance, passim. The First
Grievance was investigated on February 10, 2008, by Defendant J. Smith (“Smith”),
who reported the urinalyses to which Plaintiff was subjected were either based on
information received that the inmate is or has used illicit drugs or alcohol, which would
present a serious threat to the correctional facility’s safety and security, or upon random
selection by a computer generated program. Investigative Report9 at 1. Smith further
stated that despite concurring that Plaintiff should not be subjected to any form of
harassment pertaining to urinalyses, information supplied by confidential sources must
be investigated. Id. at 2. Plaintiff alleges that at a hearing on the First Grievance,10 an
unidentified DOCCS corrections officer and sergeant informed that the urinalyses to
No copy of Plaintiff’s FOIL request is in the record and Plaintiff does not further specify when he made
the FOIL request.
Plaintiff’s Exh. 3 (Doc. No. 123-3).
Plaintiff’s Exh. 5 (Doc. No. 123-5).
The record does not contain the date of such hearing or any other evidence that such hearing was
which Plaintiff was subjected did not amount to sexual harassment because a DOCCS
official, lieutenant or higher, was required to order the urinalyses and no procedure was
in place to test the confidential informant’s reliability which could be confirmed or
rebutted only by the urinalyses results. Amended Complaint ¶ 11. Plaintiff maintains
that Defendant Lt. Zigenfris (“Zigenfris”) merely “rubber-stamps” bogus urinalysis
requests and refuses to implement a policy to avoid such concerns causing Plaintiff to
question how, under these circumstances, the reliability of such informants could be
deemed “reliable.” Amended Complaint ¶ 7. Plaintiff also maintains that unless
DOCCS’s officials confirm the reliability of the confidential informants, it is essentially
the confidential informants who submit the inmate for urinalysis. Id. Plaintiff further
testified at the hearing that after each urinalysis, he experienced insomnia for weeks
awaiting the urinalysis results and anxiety about a possible “false-positive” result. Id. ¶
The First Grievance was initially denied on February 27, 2008. By letter dated
April 16, 2008 (“April 16, 2008 Letter”),11 Defendant DOCCS Deputy Commissioner
Lucien J. LeClaire, Jr. (“LeClaire”), advised Plaintiff that Defendant DOCCS
Commissioner Brian Fischer (“Fischer”), had requested LeClaire respond to Plaintiff’s
letter regarding urinalyses, explaining that the urinalyses were conducted pursuant to
DOCCS Directive 4937 – Urinalysis Testing (“Directive 4937”), a copy of which was
available for Plaintiff’s review in the correctional facility’s law library. LeClaire further
advised that if Plaintiff was not satisfied with the response he received to the First
Grievance, Plaintiff could file an appeal of the response. Id. On May 22, 2008, Plaintiff
filed an appeal of the First Grievance’s denial with the Inmate Grievance Resolution
Plaintiff’s Exh. 3 (Doc. No. 123-3), at 15.
Committee (“IGRC”), which was denied on June 3, 2008. On June 5, 2008, Plaintiff
further appealed the decision to the Central Officer Review Committee (“CORC”), which
on July 25, 2008, upheld the IGRC’s decision. On July 27, 2008, less than 72 hours
after the CORC’s decision, an “unknown lieutenant” approved a random urinalysis of
Plaintiff, Amended Complaint ¶ 12, which Plaintiff maintains was retaliatory because
absent a history of drug use, Plaintiff should not have even been on the random
urinalysis list. Plaintiff filed another inmate grievance that same date (“Second
Grievance”),12 asserting that the timing of the “random analysis” to which he was
subjected on July 27, 2008, indicated the urinalysis was not truly random but intended
as retaliation against Plaintiff for filing the First Grievance.
On August 27, 2008, both Plaintiff and another inmate, one “Gilmore” were
subjected to urinalysis based on suspicion. The urinalysis results were negative as to
Plaintiff, but positive for Gilmore who was then required to undergo a disciplinary
hearing from which Plaintiff learned that the August 27, 2008 urinalysis was not properly
ordered because an unknown DOCCS official had forged Sgt. Harvey’s signature to
order the test. Although at Gilmore’s disciplinary hearing Sgt. Harvey denied ordering
the urinalysis, Harvey later signed an affidavit stating he had ordered the August 27,
2008 urinalysis for Plaintiff, but averring he was unable to identify the confidential
informant who supplied the suspicion for which the urinalysis had been ordered. On
August 30, 2008, Plaintiff was ordered to submit to a “random” urinalysis. Id. ¶ 29.
On September 7, 2008, Plaintiff complained about the urinalysis to Wenderlich.
advising Zigenfris’s approval was crucial to avoid procedural errors in ordering
urinalyses. In October 2008, Plaintiff sought from one Dr. Brasselman (“Dr.
Plaintiff’s Exh. 3 (Doc. No. 123-3), at 22-23.
Brasselman”), medical treatment for sleeping problems which had caused Plaintiff to
experience fatigue, nausea, headaches, burning eyes, inability to exercise, loss of
appetite, and aggravation of an old gunshot wound, all of which Plaintiff attributes to the
repeated urinalyses. Dr. Brasselman diagnosed Plaintiff with hypertension.
On October 22, 2008, DOCCS Inspector General’s Office received an
“anonymous letter” accusing Plaintiff of “running a commissary, football tickets/
gambling,” had assaulted other inmates, was a gang member, and had been targeted
by another gang (the Bloods) to be stabbed. Amended Complaint ¶ 32; Plaintiff’s Exh.
6 (Doc. No. 123-6). Id. According to the Inspector General’s Office’s Investigative
Report, there was no evidence supporting the anonymous inmate’s allegation and the
inmate who made the allegation admitted he was without any proof that anyone planned
to stab Plaintiff. When an agent from the Inspector General’s Office interviewed Plaintiff
on November 5, 2008, regarding the physical threat, Plaintiff signed a waiver indicating
he was offered but refused protective custody and the matter was closed. Id.
On November 17, 2008, Plaintiff, still housed at Elmira, was involved in a
physical altercation (“the altercation”), with another inmate. Plaintiff maintains he was
attacked by another inmate wielding a metallic instrument, cutting Plaintiff several times
in the head and face, and used force only in self-defense against his assailant.
According to an inmate misbehavior report (“the Misbehavior Report”),13 issued by
Defendant Smith following the altercation, however, Plaintiff instigated the assault by
running into the cell of inmate Paul Jolley (“Jolley”), where both Plaintiff and Jolley
wrestled with each other. Smith noticed that both inmates were injured and observed a
bloodied, folded can lid on the floor of the cell which Smith secured by placing in a
Wenderlich Exh. A (Doc. No. 115-1), at 3.
plastic bag and into his pocket. The fighting inmates refused several direct orders to
separate and spilled out to the gallery where they were separated by force and Plaintiff
was then escorted to Elmira’s medical unit for treatment of a 2” laceration on his left
cheek, a 4” laceration on the back of his head, a 2 1/2” laceration on the right side of his
head, and two ½” cuts on his right arm. Plaintiff was later transported to the emergency
room at Arnot Ogden Medical Center in Elmira, New York, for further treatment of his
injuries and, upon returning to Elmira, was placed in the Special Housing Unit (“SHU”).
In the Misbehavior Report, Plaintiff was charged with violating DOCCS Rules
100.13 (fighting), 104.11 (violent conduct), 106.10 (refusing a direct order), and 113.10
(weapon possession). Wenderlich, one of the DOCCS officials to whom Plaintiff had
directed his complaints regarding the urinalyses, presided over the Tier III disciplinary
hearing held on the Misbehavior Report (“the disciplinary hearing”). The only witness
Plaintiff requested testify at the disciplinary hearing was Jolley who refused to testify. At
the disciplinary hearing, Plaintiff denied provoking the altercation and also testified that
the other inmate involved in the altercation was not Jolley whom Plaintiff described as “a
short guy,” but was instead “a big guy.” Hearing Tr.14 at Bates 000013-15, 000033
(describing his assailant as “much taller” than Jolley). Wenderlich denied Plaintiff’s
request to view video surveillance of the altercation, asserting there were no recording
cameras within the vicinity and, thus, no recording of the altercation was available to
view, id. at Bates 000015-16, 000019, 000043, as well as Plaintiff’s request for copies of
the correctional facility’s video surveillance policy. Id. at Bates 000017-18. Wenderlich
also refused Plaintiff’s requests for pictures of Jolley’s injuries, id. at 000016-17, and to
References to “Hearing Tr.” are to the Bates stamped page of a copy of the disciplinary hearing
transcript filed as Wenderlich Exh. B (Doc. No. 115-2).
call as a witness the Inspector General who had received on October 22, 2008 the
anonymous threat toward Plaintiff, and to present evidence regarding the threat.
Wenderlich called as a witness Sgt. Smith who testified consistent with the Misbehavior
Report that Plaintiff entered Jolley’s cell where Plaintiff instigated the altercation with
Jolley and no other inmates were involved, id. at Bates 000036-40, but also admitted he
was unsure whether the can lid weapon was Plaintiff’s or Jolley’s. Id. at Bates 00004041. The disciplinary hearing was continued on December 3, 2008, when Wenderlich
called as a witness DOCCS Corrections Officer Zolkosky whose testimony corroborated
Smith’s testimony, i.e., describing Plaintiff as entering Jolley’s cell and instigating a
physical altercation with Jolley resulting in injuries to both Plaintiff and Jolley. Id. at
Bates 000046-48. Plaintiff then called Jolley as a witness, but Jolley refused to testify at
the disciplinary hearing. Id. at Bates 000055, 000057-58. On December 3, 2008, at
the conclusion of the disciplinary hearing, Wenderlich found Plaintiff guilty of the violent
conduct, fighting, and refusing a direct order charges, but not guilty of the weapon
possession charge. Plaintiff was sentenced to 18 months in SHU, and loss of 18
months of packages, commissary, and phone privileges, and 18 months loss of good
time was recommended. Plaintiff subsequently filed three administrative appeals of the
penalty on December 7 and December 9, 2008 and January 1, 2009, but Plaintiff’s
conviction on the prison disciplinary charges was upheld by Defendant SHU/Disciplinary
Director Norman Bezio (“Bezio”) on January 20, 2009.
Since the November 17, 2008 altercation, Plaintiff had been confined to Elmira’s
SHU, where Plaintiff experienced chest pains, breathing problems, and shoulder pain
which Plaintiff attributes to DOCCS procedures requiring inmates in SHU be handcuffed
through the cell door prior to being removed from the SHU cell. On December 22,
2008, Plaintiff was transferred from Elmira to Southport Correctional Facility where he
was placed in SHU. Upon Plaintiff’s arrival at Southport, Plaintiff’s Ambulatory Health
Record (“AHR”),15 was reviewed by Southport’s medical staff who noted Plaintiff’s
chronic medical problems included asthma, possible hypertension and glaucoma,
Plaintiff’s medications included Ramipril, 5 mg per day for blood pressure control, and
Albuterol as needed for asthma, Plaintiff was awaiting an ophthalmological consult to
address eye pressure complaints, and Plaintiff was to receive a diet low in fat and
cholesterol, but a vitamin E lotion was discontinued. AHR at Bates 000134.
Plaintiff maintains that while housed in Southport’s SHU, his cell was illuminated
24 hours a day, interfering with Plaintiff’s ability to sleep, causing Plaintiff to be fatigued
and to suffer from nausea, burning eyes, and an inability to exercise, yet multiple
grievances Plaintiff filed regarding the constant cell illumination were ignored. Plaintiff
further alleges that while housed at Southport he was denied adequate winter clothing
causing Plaintiff to experience pain in his hands and feet, and hindering his ability to
exercise outside, and was also denied requests for medical care including a screening
to assess the condition of Plaintiff’s arteries in light of his hypertension diagnosis,
hypertension treatment, and relief for his hand and foot pain, and for eczema.
During sick call on December 23, 2008, Plaintiff was seen by Nurse Gorg and
requested Albuterol, daily showers and vitamin E in both a topical lotion and pill form for
both eczema and a scar on his face. Id. at 000133. Because no scaling, vesicles (scaly
Although Dr. Canfield’s Declaration indicates that portions of Plaintiff’s AHR are attached as exhibit A,
no exhibit A to Dr. Canfield’s Declaration has been electronically filed; rather portions of Plaintiff’s AHR
were delivered to the court on December 11, 2014, for in camera review. Such records will be preserved
under seal for further review as Court Exhibit A.
patches), rash, or eczema were observed, and Plaintiff’s scar on his face was noted to
be well-healed, Plaintiff’s vitamin E request was denied. Id. Nurse Gorg also noted
Plaintiff had no need for a “front cuff order” or “FCO.” Id. Plaintiff was again seen by
Nurse Gorg on December 24, 2008 in connection with a request for a FCO which was
denied according to the order of a physician’s assistant (“PA”). Id. By letter to the
“Nurse Administrator” dated January 10, 2009, Plaintiff explained that he had been
diagnosed as a child with “eczema,” and in 2006 with “dermatitis,” but that the two terms
are used interchangeably to refer to a skin disorder involving a red, itchy rash. Id. at
Bates 000124. In a Sick Call Response dated January 13, 2009, Southport Nurse
Administrator advised Plaintiff he was being denied treatment for a skin condition
because Plaintiff had “been unable to document a skin problem requiring treatment. . . .”
Id. at Bates 000123.16
On January 12, 2009, Plaintiff complained of an inability to sleep and requested a
sleep aid, but Plaintiff was advised that his inability to sleep was a mental health issue
and Plaintiff was referred for a mental health assessment. AHR at 000127. On January
15, 2009, Plaintiff was told to use moisturizer from the commissary to treat some
“slightly dry areas” on his right and left forearms. Id. at Bates 000121. On February 5,
2009, Plaintiff was instructed to continue to use Lubriderm. Id. at Bates 000119. On
February 26, 2009, Plaintiff was seen in Southport’s sick call for complaints of pressure
in his eyes, for which Plaintiff was scheduled for an ophthalmology consultation to rule
out glaucoma. Id. at Bates 000118.
In another Sick Call Response on which the date is illegible, Plaintiff was advised by the P.A. that
Plaintiff “may buy commissary moisturizer if needed.” AHR at Bates 000122.
On April 17, 2009, Plaintiff requested a “low sodium high fiber diet” so that he
could discontinue medication for his high blood pressure, AHR at Bates 000114, which
was 107/73 on April 27, 2009. Id. Plaintiff was seen by Nurse Practitioner Henry
Fowler (“N.P. Fowler”)17 on June 22, 2009 for complaints of mid-sternal pain at night.
Id. at Bates 000113. Upon examination, Plaintiff’s weight was 246, and blood pressure
was elevated at 153/81, but no bruits (whooshing sound indicative of change or reduced
blood flow caused by plaque buildup in carotid artery),18 were detected in his carotid
artery, his thyroid was within normal limits, heart rate and rhythm were normal and lungs
were clear. Id. N.P. Fowler reviewed with Plaintiff his laboratory reports, discussed
Plaintiff’s treatment options, ordered additional laboratory tests, prescribed Zantac, and
encouraged Plaintiff to continue taking Ramipril for hypertension. Id.
Plaintiff was examined on August 3, 2009, by Defendant Wesley Canfield, M.D.
(“Dr. Canfield”), who reviewed Plaintiff’s latest laboratory tests which showed Plaintiff’s
cholesterol was normal at 187, with slightly high LDL of 122. AHR at Bates 000111. Dr.
Canfield also reviewed an EKG done in April 2009 which was within normal limits.
Upon examination, Plaintiff’s weight was 235, a 21-lb. weight gain since 2005, blood
pressure was elevated at 149/87, and Plaintiff’s right ear canal was inflamed, but
Plaintiff made no cardiac complaints warranting further investigation at that time. Id.
Plaintiff, since being transferred to Southport on December 22, 2008, had not
been subjected to any urinalysis, random or otherwise, at least until he completed his
disciplinary sentence in Southport’s SHU, subsequent to which Plaintiff was transferred
Although Plaintiff refers to this Defendant as “Doctor Henry Fowler,” the record indicates that Fowler is
a Nurse Practitioner. See Dr. Canfield Declaration ¶ 10.
See What Are the Signs and Symptoms of Carotid Artery Disease?, available at
https://www.nhlbi.nih.gov/health/health-topics/catd/signs, last visited Jan. 21, 2016.
to Sing Sing Correctional Facility (“Sing Sing”), where, on February 3, 2011, two days
after the denial of Defendants’ motion to dismiss the instant action, Plaintiff was
selected for a random urinalysis. Amended Complaint ¶¶ 107-107(b). Plaintiff was
unable to urinate during the three-hours allotted for urinalysis pursuant to Directive
4937. Id. ¶¶ 107(c)-(d). Plaintiff then filed a grievance regarding the urinalysis (“Third
Grievance”). Because the Third Grievance was never answered, Plaintiff wrote letters
to the Sing Sing inmate grievance committee which were ignored, and to Defendants
Sing Sing Superintendent Heath and DOCCS Commissioner Fischer. Heath’s response
was that there was no record of the Third Grievance. By letter dated June 14, 2011,
Defendant DOCCS Inmate Grievance Director Karen Bellamy (“Bellamy”), advised
Plaintiff that a grievance is to be directed to the correctional facility where the related
incident occurred. Neither Fischer nor Bellamy, however, addressed Plaintiff’s assertion
of interference with his Third Grievance.
Summary judgment of a claim or defense will be granted when a moving party
demonstrates that there are no genuine issues as to any material fact and that a moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-51 (1986); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003). The court is required to construe the evidence in the light most favorable to the
non-moving party. Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party
moving for summary judgment bears the burden of establishing the nonexistence of any
genuine issue of material fact and if there is any evidence in the record based upon any
source from which a reasonable inference in the non-moving party's favor may be
drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322;
see Anderson, 477 U.S. at 247-48 (“summary judgment will not lie if the dispute about a
material fact is "genuine," that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party”). “A fact is material if it ‘might affect the
outcome of the suit under governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35
(2d Cir. 2008) (quoting Anderson, 477 U.S. at 248).
“[T]he evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions.” Brady v. Town of
Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary
judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit
a reasonable juror to return a verdict in his or her favor on’” an essential element of a
claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379
(2d Cir. 1992)). Once a party moving for summary judgment has made a properly
supported showing of the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence that
would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created
solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’
issues for trial.” Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.
Plaintiff’s claims seek damages for alleged violations of his constitutional rights
pursuant to 42 U.S.C. § 1983 (“§ 1983”), which imposes civil liability upon persons who,
acting under color of state law, deprive an individual of rights, privileges, or immunities
secured by the Constitution and laws of the United States. Section 1983, however,
does not itself provide a source of substantive rights, but instead provides the
mechanism by which a plaintiff may seek vindication of federal rights conferred
elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Here, Plaintiff claims
violations of his First, Fourth, Eighth and Fourteenth Amendment rights. Plaintiff’s
claims are based on Defendants’ repeatedly subjecting Plaintiff to urinalyses
unsupported by any suspicion other than that supplied by unidentified confidential
informants whose reliability Plaintiff maintains was never established, Defendants’
alleged failure to provide Plaintiff with appropriate medical treatment for his
hypertension and eczema, and a denial of due process at the disciplinary hearing held
on the Misbehavior Report. Plaintiff also asserts a claim for conspiracy in violation of 42
U.S.C. § 1985.
Preliminarily, the court addresses Defendants’ assertion that Plaintiff’s failure to
to submit a counter statement to Defendants’ Statement of Facts requires each of the
facts therein asserted by deemed admitted. Defendants’ Reply at 2 (citing Local Rules
of Civil Procedure – W.D.N.Y., Rule 56(a)(2)). As relevant, Fed.R.Civ.P. 83 provides
that a “local rule imposing a requirement of form must not be enforced in a way that
cause a party to lose any right because of a nonwillful failure to comply.” Fed.R.Civ.P.
83(a)(2). See Buck v. Cleary, 345 Fed.Appx. 660, 662 (2d. Cir. Sept. 14, 2009) (finding
district court abused discretion in deeming admitted defendants’ statement of material
facts based on plaintiff’s failure to separately respond to each stated fact as required
under the applicable local rule, vacating in the absence of any evidence that the failure
to comply was willful, and remanding that portion of judgment based on such deemed
admitted facts). Similarly, in the instant case, nothing in the record establishes that
Plaintiff’s failure to formally comply with Local Rule 56 was willful. Accordingly, the
court, in the exercise of its discretion, does not deem admitted the facts set forth in
Defendants’ Statement of Facts.
Plaintiff raises several challenges to the six urinalyses that ostensibly were based
on probable cause (“non-random urinalyses”), and the two random and suspicionless
urinalyses (“random urinalyses”). Plaintiff particularly alleges supervisory liability
against Defendants Fischer and LeClaire based on the six non-random urinalyses in
violation of the Fourth, Eighth, and Fourteenth Amendments, Amended Complaint, First
Cause of Action, that Defendant Smith and “unknown Lieutenants or higher-ranking
authority” who approved the non-random urinalyses failed to test the reliability of the
confidential sources prior to conducting the non-random urinalyses of Plaintiff in
violation of the Fourth, Eighth and Fourteenth Amendments, id., Second and Third
Causes of Action, Defendant Inmate Records Coordinator/Records Access Officer Mary
Batroney (“Batroney”), interfered with Plaintiff’s First Amendment Right to petition the
government for redress of grievances by denying Plaintiff access to records containing
the identity of the confidential informants who made the statements supporting the non-
random urinalyses, and Defendants Heath, Bellamy, and Fischer are liable for failing to
correct Batroney’s actions, id., Fourth Cause of Action, and Defendants CORC Director
Ludquist (“Ludquist”), Smith, Zigenfris, Wenderlich, Superintendent Mark Bradt
(“Bradt”), and LeClaire subjected Plaintiff to unreasonable urinalyses and failed to take
any action to cease such actions, in violation of the First, Fourth, Eighth and Fourteenth
Amendments, id., Fifth Cause of Action. Defendants argue in support of summary
judgment that Defendants are entitled to qualified immunity of Plaintiff’s claims that the
non-random urinalyses violated the Fourth Amendment’s prohibition against
unreasonable searches and seizures asserting Defendants’ research has failed to
reveal any definitive legal authority that a suspicionless urinalysis of an inmate
constitutes a Fourth Amendment violation. Defendants’ Memorandum at 5-7.19 In
opposition to summary judgment, Plaintiff asserts that requiring a “reasonable
suspicion” of drug use before ordering a urinalysis for a specific individual was clearly
established prior to the 2007 and 2008 urinalyses Plaintiff challenges in this action.
Plaintiff’s Memorandum at 3-6 (quoting Strauch v. Coughlin, 1993 WL 88154, at * 4
(S.D.N.Y. Mar. 24, 1993)). In further support of summary judgment, Defendants argue
Plaintiff has misconstrued the relevant caselaw, asserting at least one District Court
within the Second Circuit has granted a prison official qualified immunity for a nonrandom urinalysis that was not supported by reasonable suspicion. Defendants’ Reply
at 2-3 (citing Strauch v. Demski, 892 F.Supp. 503, 505 (S.D.N.Y. 1995).
Defendants make no argument in support of summary judgment with regard to Plaintiff’s § 1983 claims
based on the two random urinalyses.
Qualified immunity shields law enforcement officials who perform discretionary
functions from liability if their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable prison official would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982); Washington Square Post No. 1212 v. Maduro,
907 F.2d 1288, 1291 (2d Cir. 1990). “To determine whether a right was clearly
established, we consider ‘whether the right in question was defined with reasonable
specificity,’ ‘whether the decisional law of the Supreme Court and the applicable circuit
court support the existence of the right in question,’ and ‘whether under preexisting law
a reasonable defendant officer would have understood that his or her acts were
unlawful.’” Barnes v. Furman, __ Fed.Appx. __, 2015 WL 6216534, at * 3, (2d Cir. Oct.
22, 2015) (quoting Dean v. Blumental, 577 F.3d 60, 68 (2d Cir. 2009)). Even if the right
at issue were clearly established, if it was objectively reasonable for the defendant to
believe that his act did not violate the plaintiff’s constitutional rights, the defendant may
nevertheless be entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201-02
(2001); Lowth v. Town of Cheektowaga, 82 F.3d 563, 568-69 (2d Cir. 1996). “The
availability of the defense depends on whether a reasonable officer could have believed
his action to be lawful, in light of clearly established law and the information he
possessed.” Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (internal quotation
marks and citation omitted). Where, however, the objective reasonableness of an
officer’s actions depends on disputed facts, summary judgment based on qualified
immunity is properly denied. Rivera v. United States, 928 F.2d 592, 607 (2d Cir. 1991).
Significantly, “[w]hen officials follow an established prison policy, as defendants did
here, their entitlement to qualified immunity depends on ‘whether a reasonable officer
might have believed that the challenged order was lawful in light of legitimate
penological interests supporting’ the directive.” Barnes v. Furman, __ Fed. Appx. __,
2015 WL 6216534, at *4 (2d Cir. Oct. 22, 2015) (denying summary judgment based on
qualified immunity to defendant DOCCS officials who confiscated from the inmate
plaintiff, whose registered religious belief was Jewish, a religious head covering that
relevant prison regulations permitted to be worn only by prisoners whose registered
religious belief was Rastafarian because a genuine issue of material fact existed as to
whether there was a legitimate penological reason to limit the head covering only to
prisoners registered as Rastafarian).
It is settled that urinalysis constitutes a search subject to the Fourth Amendment.
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989) (holding breath
and urine tests of railroad employees required by private railroads acting pursuant to
federal regulations implicates Fourth Amendment concerns); Harris v. Keane, 962
F.Supp. 397, 407 (S.D.N.Y. 1997) (observing non-consensual urinalysis constitutes a
search under the Fourth Amendment). It is also well-established that a prisoner’s right
to be free from unreasonable searches is diminished once he enters a correctional
facility. Skinner, 489 U.S. at 619-20; Bell v. Wolfish, 441 U.S. 520, 557 (1979)).
Nevertheless, urinalyses performed for drug testing constitutes an illegal search when it
is undertaken to harass an inmate. Harris, 962 F.Supp. at 407; Rodriguez v. Coughlin,
795 F.Supp. 609, (W.D.N.Y. 1992). Further, “when correctional staff receives
information from a source that the inmate is currently under the influence of or has
recently used illicit drugs or alcohol,” N.Y. Comp.Codes R. & Regs. tit. 7, § 1020.4(a)(4)
(“DOCCS Reg. § 1020.4(a)(4)”), there is reasonable cause supporting urinalysis.
McFadden v. Roy, 2009 WL 799968, at *14, n. 18 (N.D.N.Y. Mar. 25, 2009).
The Supreme Court has held that a urinalysis constitutes a search with the
meaning of the Fourth Amendment, Skinner, 489 U.S. at 614, but to date, neither the
Supreme Court nor the Second Circuit has held that non-random urinalyses of inmates
not based on reasonable suspicion are unreasonable under the Fourth Amendment.
See Strauch v. Demskie, 892 F.Supp. 503, 506 n. 6 (S.D.N.Y. 1995) (noting that as of
1995, whether a suspicionless, non-random urinalyses of inmate violated the Fourth
Amendment was undecided). Nevertheless, although inmates’ Fourth Amendment
rights are necessarily restricted by concerns of prison security and safety, prison
inmates retain “some, albeit limited, protection from urinalyses conducted in an
unreasonable manner. . . .” Storms v. Coughlin, 600 F.Supp. 1214, 1224 (S.D.N.Y.
In Storms, the inmate plaintiff challenged the state prison officials’ practice of
daily unrinalyses conducted on inmates ostensibly randomly selected. Id. at 1216-17.
The specific manner in which inmates were selected for the daily random urinalyses
included the prison’s watch commander, upon request by the prison official who
processes urinalyses, selecting cards from a board holding a group of cards with the
name of an inmate listed on each card. Id. at 1216. Each inmate whose card is picked
from the board is ordered to report for urinalysis. Id. The court granted a preliminary
injunction enjoining the defendant prison officials’ procedure for randomly selecting the
inmates to be subjected to urinalyses. Id. at 1216 (commenting that the defendants
were, at the time, designing a computer program to “select prisoners on a truly random
basis”). The court also compared the inmate plaintiff’s challenge to the random
urinalyses testing procedure to the mandatory body cavity searches each inmate is
required to undergo after every “contact” visit with outsiders. Id. at 1219 (citing Bell v.
Wolfish, 441 U.S. 520, 547 (1979)). Observing that the Supreme Court held that the
visual body cavity searches, despite invading the personal privacy of inmates and being
based on less than probable cause, were permissible when balanced against “the
significant and legitimate security interests of the institution . . . ,” id. (quoting Bell, 441
U.S. at 560), the court took “judicial notice that drug use among prisoners is a serious,
disruptive problem within American prisons,” and deferred to the defendant New York
prison authorities’ use of random urinalyses provided such searches were conducted “in
a reasonable manner,” and upheld the random urinalyses challenged under the Fourth
Amendment. Id. at 1211. Although Plaintiff maintains Storms does not permit urinalysis
absent reasonable suspicion, Plaintiff’s Memorandum at 4-5 (citing Storms, 600 F.Supp.
at 1224), a plain reading of Storms establishes that the court took issue only with the
manner in which the purported random urinalyses were conducted, specifically, that the
method employed by the defendant corrections officials to select the inmates to be
tested was subject to potential abuse and harassment – whether conscious or
unconscious – by the prison’s watch commander who made the selections. Storms,
600 F.Supp. at 1216, 1224.
Further, in the instant case, the suspicion-based urinalyses to which Plaintiff was
subjected were undertaken by Defendants pursuant to Directive 4937, which is
essentially a restatement of DOCCS Reg. § 1020.4(a)(4), providing that “[u]rinalysis
testing of inmates shall be conducted . . . when correctional staff receives information
from a source that the inmate is currently under the influence of or has recently used
illicit drugs or alcohol.” It is significant that the plain language DOCCS Reg. §
1020.4(a)(4) does not require that the “source” from whom the correctional staff
receives the information that the inmate is or has used drugs be reliable. Absent such
stated requirement, Plaintiff’s argument that the reliability of the confidential informants
can be determined only by the urinalyses results is moot. Moreover, it cannot be
questioned that in conducting the challenged urinalyses, including both suspicion-based
and random, Defendants were acting pursuant to the prison policy, Directive 4937,
established by DOCCS Reg. § 1020.4, which was promulgated in furtherance of
DOCCS “legitimate penological interests in maintaining prison security and discipline,
particularly concerning the suspected smuggling and possession of illegal drugs. . . ,”
and which outweigh any privacy rights retained by Plaintiff under the facts of this case.
Sital v. Burgio, 592 F.Supp.2d 355, 359 (W.D.N.Y. 2009) (citing cases). See Varrone v.
Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) (considering the problems and realities that face
prison officers, including dealing with drugs in those institutions, and the deference and
discretion given those officers’ day-to-day decisions relating to prison safety, security,
and discipline” in holding prison officers were entitled to qualified immunity on inmate
plaintiff’s Fourth Amendment claim challenging strip search of inmate’s prison visitors).
There are thus no issues of fact which could support a finding that Defendants’ actions
in submitting Plaintiff to the challenged urinalyses violated any clearly established rights
of which Defendants should have been aware such that Defendants are entitled to
qualified immunity on this claim.
Accordingly, summary judgment should be GRANTED insofar as Defendants
assert they are entitled to qualified immunity on Plaintiff’s § 1983 claims based on the
Insofar as Plaintiff challenges the procedures by which he was selected for the
suspicion-based urinalyses violate due process given that Defendants have admitted
the reliability of an inmate’s assertion that another inmate has or is using drugs can be
determined based only on the urinalyses results, Amended Complaint ¶¶ 5, 7, and First
Cause of Action, because none of the urinalyses Plaintiff challenges in this action
yielded positive results, Plaintiff cannot establish the requisite deprivation of a protected
liberty interest to support such claim. See Sandin v. Conner, 515 US. 472, 483-84
(1995) (holding to assert a due process claim, an inmate must show he has been
deprived of a protected liberty interest). In particular, because none of the urinalyses
yielded positive results, Plaintiff was never subjected to any discipline in connection with
the urinalyses such that Plaintiff’s due process claim is based not on Defendants’
violation of Plaintiff’s protected liberty interest but, rather, on mere speculation that a
false positive result could wrongly subject Plaintiff to a deprivation of a protected liberty
interest. See Storms, 600 F.Supp. at 1225-26 (declining to consider inmate plaintiff’s
due process challenge to random urinalyses selection procedures where inmate plaintiff
successfully challenged sole positive urinalysis results and, thus, was not disciplined).
Summary judgment must thus be GRANTED as to Plaintiff’s Fourteenth Amendment
due process challenge to the urinalyses procedures.
Plaintiff alleges that the repeated urinalyses to which he was subjected to by
Defendants was intended as retaliation against Plaintiff for filing grievances regarding
the urinalyses. Amended Complaint, Fourth Cause of Action ¶ 2. Defendants argue in
support of summary judgment that Plaintiff cannot establish the requisite causal
connection between Plaintiff’s protected activity and the urinalyses. Defendants’
Memorandum at 10-12. In opposition to summary judgment, Plaintiff maintains he was
subjected to a “continuous combination of retaliatory acts” that sufficiently establishes
the causal connection requirement of his First Amendment retaliation claim. Plaintiff’s
Memorandum at 10-14. Defendants do not argue in further support of summary
judgment on this claim.
Although prison officials may not retaliate against prisoners for exercising their
constitutional rights, Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (holding inmate
plaintiff’s allegation that he sought relief in the courts on two occasions causing
defendant prison officials to retaliate against him brought claim within purview of § 1983,
and citing Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988)), retaliation claims typically
are viewed with skepticism because “prisoners can claim retaliation for every decision
they dislike.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Accordingly, “[a] complaint of retaliation that
is ‘wholly conclusory’ can be dismissed on the pleadings alone.’” Id.
“To establish a prima facie case of First Amendment retaliation, a plaintiff must
establish ‘(1) that the speech or conduct at issue was protected, (2) that the defendant
took adverse action against the plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.’” Scott v. Coughlin, 344 F.3d
282, 287 (2d Cir. 2003) (quoting Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)
(citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001))). “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.” Id. at 287-88 (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The initial burden is on
the plaintiff to demonstrate an improper motive played part in the defendants’ action,
after which the burden shifts to the defendants to show the same action would have
been taken absent any improper motive. Id. at 288.
In the instant case, it is undisputed that Plaintiff’s filing of grievances and
complaints challenging Defendants’ actions in repeatedly subjecting Plaintiff to
urinalysis constitutes protected activity under the First Amendment. Davis v. Goord,
320 F.3d 346, 352-53 (2d Cir. 2003) (“the filing of prison grievances is a constitutionally
protected activity”). The first element for a prima facie retaliation claim is thus satisfied.
With regard to the second element for a prima facie retaliation claim, in the
context of a First Amendment retaliation claim, an “adverse action” is “conduct that
would deter a similarly situated individual of ordinary firmness from exercising . . .
constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (quotation
omitted). In the prison context, “this objective test applies even where a particular
plaintiff was not himself subjectively deterred; that is, where he continued to file
grievances and lawsuits.” Id. “Otherwise the retaliatory act is simply de minimus and
therefore outside the ambit of constitutional protection.” Davis, 320 F.3d at 352
(quotation omitted). Insofar as urinalysis “involves both embarrassment and potential
punishment,” Storms, 600 F.Supp. at 1223, being required to submit to a urinalysis
constitutes an adverse action. Compare Davis, 320 F.3d at 353 (holding failing to
provide inmate plaintiff with high fiber diet and requiring inmate plaintiff to wait for three
hours for a medical appointment could constitute adverse actions supporting First
Amendment retaliation claim). There is thus an issue of fact as to whether the
urinalyses to which Plaintiff was subjected constituted adverse actions, but as
discussed below, such question of fact is not dispositive.
To satisfy the causation requirement, Plaintiff must make sufficient allegations “to
support the inference that the speech played a substantial part in the adverse action.”
Davis, 320 F.3d at 354 (quotation omitted). Significantly, the causative element may be
established by circumstantial evidence, including temporal proximity between the
protected activity and the adverse action. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
1995). Specifically, a short time frame between the filing of a grievance and the alleged
retaliatory action, and the continued alleged retaliatory conduct can support the
requisite inference of a causal connection. Davis, 320 F.3d at 354 (citing Morales v.
Mackalm, 278 F.3d 126, 131 (2d Cir. 2002), abrogated on other grounds by Porter v.
Nussle, 534 U.S. 516, 532 (2002), as recognized in Berry v. Kerik, 366 F.3d 85, 87-88
(2d Cir. 2003)). Evidence of prior good behavior may also be circumstantial evidence of
retaliation. Colon, 58 F.3d at 872 (citing Flaherty, 713 F.2d at 13). Here, the
undisputed facts establish that the alleged retaliatory actions of which Plaintiff
complains largely occurred shortly after Plaintiff engaged in protected activity, including,
for example, that on July 27, 2008, less than 72 hours of the CORC’s decision on the
First Grievance, Plaintiff was ostensibly randomly selected for urinalysis, and was tested
along with known drug abusers, Amended Complaint ¶¶ 12-13, 20, is circumstantial
evidence of retaliation. Davis, 320 F.3d at 354. Further, that none of Plaintiff’s
urinalyses yielded a positive result is evidence of prior good behavior which may be
circumstantial evidence of retaliation. Colon, 58 F.3d at 872.
The presence in the record of genuine issues of material facts as to whether
Plaintiff was subjected to adverse action triggered by his filing of inmate grievances so
as to establish a prima facie First Amendment retaliation claim. Nevertheless, even
assuming, arguendo, that a reasonable jury would, upon trial, construe the genuine
issues of material fact to support a prima facie 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, 344 F.3d at 287-88. Specifically,
not only were both the non-random urinalyses and the random urinalyses conducted
pursuant to Directive 4937, with the non-random urinalyses conducted upon receiving
information from an unidentified informant that Plaintiff was using illegal drugs, and the
random urinalyses conducted upon being randomly selected by a computer program,
but nothing within Directive 4937 permits any DOCCS official, including those sued as
Defendants in this action, any discretion to dispense with conducting a test of Plaintiff’s
urine once he was selected, even if the DOCCS officials doubted the informant’s
statement or had reason to doubt the random selection process. As such, the record
establishes Plaintiff would have been required to submit to the challenged urinalyses
even without the alleged improper motivation. See Scott, 344 F.3d at 288.
Summary judgment on Plaintiff’s retaliation claim therefore should be
Due Process Claim
In his Seventh Cause of Action, Plaintiff claims Defendants Wenderlich and
Bezio deprived him of Fourteenth Amendment due process in connection with the Tier
III disciplinary hearing held on the First Misbehavior Report by denying Plaintiff (1) any
audio and video recordings of the November 17, 2008 altercation involving inmate
Jolley; (2) copies of DOCCS’s policies regarding the retention of audio and video
recordings; (3) testimony from the DOCCS inspector who investigated the death threats
against Plaintiff as well as documentation of such threats, (4) photographs of the injuries
sustained by Jolley, the other inmate with whom Plaintiff was allegedly fighting; and (5)
a copy of the inmate witness refusal form signed by Jolley in refusing to testify for
Plaintiff at the disciplinary hearing. Amended Complaint, ¶¶ 38-46 and Seventh Cause
of Action. Plaintiff also maintains that Defendant Smith, who authored the Misbehavior
Report, materially misrepresented to Wenderlich that Plaintiff had been targeted by
other inmates as a “snitch” despite the fact that Plaintiff made numerous complaints to
Smith about being repeatedly subjected to urinalyses based on false statements by
confidential informants, and that Wenderlich refused to consider the numerous, bogus
confidential informants’ statements according to which Plaintiff was required to submit to
the non-random urinalyses. Id. ¶ 39-41. Defendants argue in support of summary
judgment on this claim that Plaintiff was provided all process he was due under the
Fourteenth Amendment, and that the evidence Plaintiff was denied either does not exist
or was irrelevant to the determination of the charges pending against Plaintiff at the
disciplinary hearing. Defendants’ Memorandum at 14. In opposition to summary
judgment, Plaintiff argues there exist material issues of disputed facts as to whether
Defendant Wenderlich’s denial of Plaintiff’s request for testimony and documents from
the inspector general who received information of the death threats against Plaintiff
were justified given that such information was directly relevant to Plaintiff’s defense that
his involvement in the altercation was solely in self-defense, and the Investigative
Report would have established that a confidential informant fabricated allegations that
Plaintiff was extorting other inmates and that physical threats had been made against
Plaintiff three weeks prior to the altercation. Plaintiff’s Memorandum at 16-17.
Defendants do not argue in further support of summary judgment on this claim.20
“Prison disciplinary proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). “[R]egardless of state procedural guarantees,
the only process due an inmate is that minimal process guaranteed by the Constitution
as outlined in Wolff.” Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004). As such, a
violation of a state prison regulation during a prison disciplinary hearing does not give
rise to a § 1983 due process claim. Blouin v. Spitzer, 356 F.3d 348, 363 (2d Cir. 2004)
(“federal law, not state regulations, determines the procedures necessary to protect that
liberty interest.”). Prison inmates nevertheless are “entitled to certain procedural
protections when disciplinary actions subject them to further liberty deprivations such as
. . . special confinement that imposes an atypical hardship.” Sira v. Morton, 380 F.3d
The parties do not dispute that the prison discipline – 18 months in SHU with loss of privileges and
good time – imposed following the guilty disposition constituted a deprivation of a protected liberty
interest, a prerequisite to a viable Fourteenth Amendment due process claim. Sandin v. Connor, 515
U.S. 472, 484 (1995) (holding Fourteenth Amendment due process violation requires inmate establish he
was deprived of a protected liberty interest without sufficient process).
57, 69 (2d Cir. 2004). In particular, “an inmate is entitled to 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 action taken.” Sira, 380 F.3d at 69.
In the instant case, the court construes as a challenge to Wenderlich’s
impartiality that Wenderlich, who presided over the disciplinary hearing, was wrongly
misled by Smith regarding other inmates’ targeting Plaintiff as a “snitch” despite
Plaintiff’s repeated complaints to Smith that the non-random urinalyses were based on
false statements by confidential informants and that Wenderlich staunchly refused to
consider the numerous, bogus confidential informants’ statements proffered in support
of the non-random urinalyses. It is “well recognized that prison disciplinary hearing
officers are not held to the same standard of neutrality as adjudicators in other
contexts,” and “[t]he 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). Further, the due process impartiality standard is satisfied if “some evidence” in
the record supports the decision of the prison disciplinary proceeding. Superintendent
v. Hill, 472 U.S. 445, 455-56 (1985).
Here, the disciplinary hearing evidence included information regarding Jolley’s
injuries, establishing Jolley sustained numerous lacerations, some of which were deep,
which Wenderlich considered but refused to share with Plaintiff, Hearing Tr. at Bates
000026-28, pictures of the bloodied, folded over can lid which was used as a weapon
during the altercation, id. at Bates 000029, and testimony from Defendant Smith, the
Misbehavior Report’s author, who testified that he observed Plaintiff enter Jolley’s cell
where Plaintiff engaged in an altercation with Jolley that later spilled out of Jolley’s cell
and into the gallery. Id. at Bates 000036-39. Smith denied any doubt that Plaintiff was
fighting with Jolley. Id. at Bates 000040. Following the altercation, a weapon was
recovered from Jolley’s cell. Id. Also testifying at the disciplinary hearing was
Corrections Officer Zolkosky (“Zolkosky”), whose testimony corroborated Smith’s
testimony, i.e., describing Plaintiff as entering Jolley’s cell and instigating a physical
altercation with Jolley resulting in injuries to both Plaintiff and Jolley. Id. at Bates
000040-48. Although Plaintiff called Jolley as a witness, Jolley refused to testify at the
disciplinary hearing. Id. at Bates 000055, 000057-58. There thus is, even without
Jolley’s testimony and the other evidence sought by Plaintiff by denied by Wenderlich,
some evidence supporting Wenderlich’s determination that Plaintiff was guilty on the
disciplinary charges of fighting, violent conduct, and refusing to obey a direct order.
Moreover, despite pleading not guilty to each of the disciplinary charges in the
Misbehavior Report, Plaintiff has not denied being involved in the November 17, 2008
altercation; rather, Plaintiff’s due process challenge to the disciplinary hearing is limited
to asserting that he did not provoke the altercation but acted only in self-defense, that
he was not in possession of any weapon, and that Jolley was not the other inmate
involved in the altercation. Such assertions by Plaintiff, even if true, do not undermine
Wenderlich’s determination that Plaintiff was guilty of three of the four charged prison
disciplinary rule infractions. Furthermore, Smith’s denial of any knowledge of “snitch
notes” written about Plaintiff by other inmates, or of death threats against Plaintiff, id. at
Bates 000039, even if incorrectly recalled by Smith, is irrelevant to whether Plaintiff was
involved in the November 17, 2008 altercation.
Although Plaintiff maintains he was denied due process at the disciplinary
hearing when Defendants failed to provide Plaintiff with a copy of any audio or video
recordings of the November 17, 2008 altercation, including video of the C-Block gallery
and mess halls and of the SHU block, as well as Elmira’s policy for maintaining and
recycling such recordings, Defendants, in support of summary judgment, have
submitted a statement from Wenderlich explaining that there is no recording video
camera located at the C-Block gallery where the incident occurred. Wenderlich
Declaration ¶ 5. Although Wenderlich could not recall whether there were recording
cameras located in the C-Block mess halls and the SHU block at the time of the
altercation, Wenderlich explains that even if there were, any such video from such
recordings would be irrelevant to the disciplinary charges with which Plaintiff was faced
at the disciplinary hearing because the altercation did not occur in the C-Block mess
halls or the SHU block. Id. ¶ 6. As for Plaintiff’s request for the DOCCS Directive
pertaining to the retention and storage of video, Wenderlich maintains that such policy is
also irrelevant because no relevant video of the altercation ever existed, such that there
can be no failure to preserve based on a DOCCS directive. Id. at 3, ¶ 1.21 Similarly,
Wenderlich explains that the photographs of the injuries sustained in the altercation by
Jolley, the inmate with whom Plaintiff was charged with fighting, are irrelevant to
whether Plaintiff was involved in the altercation. Id. ¶ 7.
The court notes that two separate paragraphs in Wenderlich’s Declaration are denominated as “1” and,
in the interest of clarity, includes the page number on which the ¶ 1 to which the court cites is located.
Although Wenderlich denied Plaintiff’s request to call as a witness the inspector
general who Plaintiff maintains received the death threats made toward Plaintiff,
Hearing Tr. at Bates 000053, it is unclear how such testimony would have assisted
Plaintiff in avoiding being found guilty of fighting, violent conduct, and refusing a direct
order; instead, the Hearing Transcript establishes Plaintiff sought the inspector
general’s testimony only to corroborate Plaintiff’s assertion that his involvement in the
altercation was limited to self-defense. Id. Furthermore, the record establishes that
Plaintiff was permitted to call Jolley as a witness, id. at Bates 000054-55, but that Jolley
declined to testify. Id. at 000057-58.
The record thus is devoid of any evidence supporting Plaintiff’s claim that he was
denied due process in connection with the disciplinary hearing. Defendants’ motion
thus should be GRANTED as to the denial of Fourteenth Amendment due process at
the disciplinary hearing as alleged in Plaintiff’s Seventh Cause of Action.
Eighth Amendment Claims
Plaintiff’s Eighth Cause of Action alleges Defendants Dr. Canfield, N.P. Fowler,
Nurse Dyal-Weaver, and Nurse Administrator Cathy Felker (“Felker”) denied Plaintiff
adequate medical care in violation of the Eighth Amendment’s prohibition of cruel and
unusual punishment because Defendants ignored Plaintiff’s complaints of chest pain
and a skin condition, failed to provide Plaintiff with adequate winter clothing, and kept
Plaintiff’s cell illuminated 24 hours a day, interfering with Plaintiff’s ability to sleep.
Amended Complaint, Eighth Cause of Action. Defendants argue in support of summary
judgment that the record is devoid of any evidence establishing Defendants were
deliberately indifferent to any serious medical need of Plaintiff’s. Defendants’
Memorandum at 7-10. In opposition to summary judgment, Plaintiff asserts that triable
issues of fact exist as to whether Plaintiff was deprived of adequate medical care when
Defendants failed to respond to Plaintiff’s complaints of chest pains, breathing
problems, and shoulder pain caused by requiring Plaintiff to be handcuffed through the
door to his SHU cell, and also failed to provide Plaintiff with adequate winter clothing
and kept Plaintiff’s cell illuminated 24 hours a day, interfering with Plaintiff’s ability to
sleep. Plaintiff’s Memorandum at 8-10. In further support of summary judgment,
Defendants maintain that each of the issues Plaintiff raises in opposing summary
judgment has been addressed by Dr. Canfield who establishes that Defendants
adequately responded to all of Plaintiff’s medical complaints, and there is no evidence
that any of DOCCS’s medical staff were responsible for providing Plaintiff with winter
clothing or the illumination of Plaintiff’s cell. Defendants’ Reply at 3-5.
To prevail on an Eighth Amendment claim based on inadequate medical care or
unsafe living conditions, a plaintiff must establish (1) he was incarcerated under
conditions posing a substantial risk of serious harm, and (2) prison officials acted with
deliberate indifference to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834
(1994). A deliberate indifference claim has both objective and subjective elements.
Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). “Objectively, the alleged
deprivation must be sufficiently serious, in the sense that a condition of urgency, one
that may produce death, degeneration or extreme pain exists.” Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir. 1996) (internal citation and quotation marks omitted).
“Because society does not expect or intend prison conditions to be comfortable, only
extreme deprivations are sufficient to sustain a ‘conditions of confinement’ claim.”
Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (citing Hudson v. McMillan, 503
U.S. 1, 9 (1992) (only deprivations denying “the minimal civilized measures of life’s
necessities” are sufficiently serious to form the basis of an Eighth Amendment violation).
“Subjectively, the official charged . . . must act with a sufficiently culpable state of mind.”
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citation and internal quotation marks
omitted). “Deliberate indifference” requires more than negligence, but less than conduct
undertaken for the very purpose of causing harm. Hathaway, 37 F.3d at 66 (citing
Farmer, 511 U.S. at 835). For a prison official to act with deliberate indifference, he
must both know of and disregard an excessive risk to an inmate’s health or safety. Id.
Here, the court addresses Plaintiff’s Eighth Amendment claim alleged under Plaintiff’s
Eighth Cause of Action first as to the alleged deprivation of adequate medical care, and
then as to the alleged prison conditions.
To substantiate an Eighth Amendment claim for medical indifference, an inmate
plaintiff must prove the defendants were deliberately indifferent to a serious medical
need. Farmer, 511 U.S. at 834-35. Where the inmate plaintiff alleges defendants failed
to provide any treatment for a medical condition, “courts examine whether the inmate’s
medical condition is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006). “[P]rison officials and medical officers have wide discretion in treating
prisoners, and Section 1983 is not designed to permit federal courts to interfere in the
ordinary medical practices of state prisons.” Sonds v. St. Barnabas Hospital
Correctional Health Services, 151 F.Supp. 303, 311 (S.D.N.Y. 2001) (citing cases). “[A]
prisoner does not have the right to choose his medical treatment as long as he receives
adequate treatment,” Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011), and a
difference of opinion between an inmate and prison officials as to prescribed medical
treatment does not, as a matter of law, rise to the level of a constitutional violation.
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Where, as here, the challenge
is to the adequacy of the treatment provided, such as in cases where treatment is
alleged to have been delayed, the seriousness inquiry focuses on “the particular risk of
harm faced by a prisoner due to the challenged deprivation of care, rather than the
severity of the prisoner’s underlying medical condition, not considered in the abstract.”
Smith, 316 F.3d at 186.
In the instant case, it is without question that three of Plaintiff’s alleged medical
complaints, i.e., hypertension, chest pain, and eye pressure, were sufficiently serious in
that, left untreated, they could result in degeneration and extreme pain or even death.
The same cannot be said for Plaintiff’s complaints of some skin irritation which was
adequately treated with over-the-counter moisturizer that Plaintiff was able to purchase
at the correctional facility’s commissary, and Plaintiff’s occasional left shoulder pain
which Plaintiff attributed to DOCCS policy requiring inmates housed in SHU be
handcuffed through the cell door prior to being removed from the cell. The objective
prong of Plaintiff’s deliberate indifference claim is thus satisfied only with regard to
Plaintiff’s complaints of hypertension, chest pain and eye pressure and, accordingly, it is
these same three complaints to which the court limits its consideration of the subjective
prong, i.e., whether there is a material issue of fact as to whether Defendants acted with
a sufficiently culpable state of mind in failing to adequately treat Plaintiff’s hypertension,
chest pain, and eye pressure.
A person acts with deliberate indifference to an inmate’s health or safety only if
he “knows of and disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exits, and he must also draw the inference.” Farmer, 511 U.S. at
837. The requisite state of mind lies “somewhere between the poles of negligence at
one end and purpose or knowledge at the other.” Id. at 836. It is the equivalent of
recklessly disregarding a substantial risk of serious harm to the inmate. Id. An inmate
is not required to show that the official acted or failed to act believing that harm actually
would befall an inmate; it is sufficient that the official acted or failed to act despite the
official’s knowledge of a substantial risk of serious harm. Id. at 837. Supreme Court
“‘cases mandate inquiry into a prison official’s state of mind when it is claimed that the
official has inflicted cruel and unusual punishment.’” Id. at 838 (quoting Wilson v. Seiter,
501 U.S. 294, 299 (1991)). “But an official’s failure to alleviate a significant risk that he
should have perceived but did not, while no cause for commendation, cannot under
[Supreme Court] cases be condemned as the infliction of punishment.” Id. “The civil
law generally calls a person reckless who acts or (if the person has a duty to act) fails to
act in the face of an unjustifiably high risk of harm that is either known or so obvious that
it should be known.” Farmer v. Brennan, 511 U.S. 825, 836 (1994) (italics added)
(citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of
Torts § 34, pp. 213-14 (5th ed. 1984); Restatement (Second) of Torts § 500 (1965)).
“In medical-treatment cases not arising from emergency situations, the official’s
state of mind need not reach the level of knowing and purposeful infliction of harm; it
suffices if the plaintiff proves that the official acted with deliberate indifference to inmate
health.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). “Deliberate
indifference is a mental state equivalent to subjective recklessness . . . . This mental
state requires that the charged official act or fail to act while actually aware of a
substantial risk that serious inmate harm will result.” Id. (internal citation omitted).
Nevertheless, “[t]he defendant’s belief that his conduct poses no risk of serious harm (or
an insubstantial risk of serious harm) need not be sound so long as it is sincere.” Id. at
281. Here, there are no undisputed issues of fact which, if decided in Plaintiff’s favor,
could establish the requisite subjectively culpable state of mind to hold Dr. Canfield,
N.P. Fowler, Nurse Dyal-Weaer, or Nurse Administrator Felker liable for denying
Plaintiff adequate medical care.
In particular, Plaintiff was regularly provided with medication for his high blood
pressure, to wit, Ramipril, 5 mg per day, and was placed on a low cholesterol/low fat
diet to further assist Plaintiff in controlling his blood pressure. Dr. Canfield Declaration
¶¶ 3-4. Plaintiff’s blood pressure was regularly monitored at Southport. Id. ¶ 8. In April
2009, Plaintiff, at his request, was permitted to temporarily discontinue his hypertension
medication but in June 2009, when Plaintiff’s blood pressure was elevated at 153/81,
N.P. Fowler encouraged Plaintiff to continue taking Ramipril. Id. ¶¶ 8, 10. Plaintiff’s
hypertension diagnosis was, for unknown reasons, inactivated on August 17, 2009 by
Nurse Felker, who, on September 13, 2014, rectified the mistake. Id. ¶ 8. Accordingly,
there is no evidence in the record that a reasonable jury could construe as establishing
any Defendant had the requisite subjectively culpable state of mind with regard to
As for Plaintiff’s complaints of chest pain and possible cardiovascular disease,
Plaintiff was first examined in connection with complaints of mid-sternal pain at night on
June 22, 2009, when N.P. Fowler found Plaintiff weighed 246 lbs., his blood pressure
was elevated at 153/81, but without bruits in his carotid artery, his thyroid was within
normal limits, heart rate and rhythm were normal and lungs were clear. AHR at Bates
000113. N.P. Fowler reviewed with Plaintiff his laboratory reports, discussed Plaintiff’s
treatment options, ordered additional laboratory tests, prescribed Zantac, and
encouraged Plaintiff to continue taking Ramipril for hypertension. Id. Plaintiff’s medical
records further establish that aside from his hypertension, which was well-controlled
with medication which was routinely prescribed, AHR at Bates 000111, 000113,
000114, nothing supports Plaintiff’s claim that he had cardiovascular disease but,
rather, Plaintiff had no family history of cardiovascular disease, a chest X-ray on
November 19, 2004 was normal, laboratory blood tests on June 25, 2009 showed
Plaintiff’s cholesterol and triglycerides within normal limits, and EKGs done on April 6,
2009 and October 9, 2009, were normal. Dr. Canfield Declaration ¶ 8. Accordingly,
there is no evidence in the record on which a reasonable jury could find Defendants
acted with subjective recklessness with regard to Plaintiff’s complaints of chest pain and
As for Plaintiff’s complaints of bilateral eye pressure, the record establishes that
an ophthalmological consultation to rule out glaucoma had been ordered for Plaintiff on
December 18, 2008, prior to his transfer from Elmira to Southport, and occurred on
February 23, 2009. AHR at Bates 000134, 000190. The ophthalmologist found
Plaintiff’s eye pressure to be within normal limits such that it was doubtful that the
bilateral eye pressure of which Plaintiff complained was caused by glaucoma. Id. at
Bates 000190. Accordingly, no evidence in the record could support a reasonable jury’s
determination that Defendants acted with subjective recklessness in connection with
Plaintiff’s complaints of bilateral eye pressure.
On this record, a reasonable jury could find only that Defendants Dr.Canfield,
N.P. Fowler, Nurse Dyal-Weaver, and Nurse Administrator Felker did not act with
deliberate indifference to Plaintiff’s serious medical needs. Summary judgment on
Plaintiff’s claims for relief asserting violations of his Eighth Amendment rights based on
an alleged denial of medical care should be GRANTED.
Defendants are also entitled to summary judgment insofar as Plaintiff claims
Eighth Amendment violations based on Defendants’ alleged failure to provide him with
adequate winter clothing and the continuous illumination of his cell. “While the Eighth
Amendment’s prohibition against cruel and unusual punishment ‘does not mandate
comfortable prisons,’ the conditions must be at least ‘humane.’” Gaston v. Coughlin,
249 F.3d 156, 164 (2d Cir. 2001) (quoting Rhodes v. Chapman, 452 U.S. 337, 349
(1981), and Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Specifically, with regard to
Plaintiff’s prison condition claims, “[u]nder the Eighth Amendment, States must not
deprive prisoners of their ‘basic human needs – e.g., food, clothing, shelter, medical
care, and reasonable safety.’” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002)
(quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)). “Ultimately, to establish the
objective element of an Eighth Amendment claim, a prisoner must prove that the
conditions of his confinement violate contemporary standards of decency.” Id. (quoting
Helling, 509 U.S. at 35). With regard to the subjective requirement, “the Supreme Court
has explained that ‘a prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both be
aware of facts form which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.’” Id. (quoting Farmer, 511 U.S. at
837). Further, “‘[w]hether a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, . . . and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.’” Id. (quoting
Farmer, 511 U.S. at 842).
Plaintiff specifically claims he was denied, pursuant to DOCCS Directive 4933,22
winter boots, a thermos, and winter gloves to protect Plaintiff from inclement weather
while he was housed in Southport’s SHU during the winter months of December 2008
through February 2009. Amended Complaint ¶ 96. Without such items, Plaintiff
maintains he was not able to exercise outside without experiencing pain in his hands
and feet from exposure to the cold, and caught a head cold. Id. ¶ 97. According to
Plaintiff, because DOCCS Directive 4933 bears LeClaire’s signature as the approving
authority, LeClaire is liable to Plaintiff for an Eighth Amendment violation based on the
failure to provide Plaintiff with adequate winter clothing.
The denial of winter boots and gloves, however, objectively does not violate
contemporary standards of decency. Although without boots and gloves Plaintiff may
be uncomfortable exercising outside when the temperature is cold, Plaintiff does not
No copy of DOCCS Directive 4933 is in the record.
claim that he was forced to exercise outside, or that he was unable to exercise within
his cell on such occasions. Significantly, the denial of only out-of-cell exercise for a
period of several weeks does not establish an Eighth Amendment violation provided an
inmate may still exercise inside his cell. Phelan v. Zenzen, 2012 WL 5420423, at *5
(W.D.N.Y. Nov. 6, 2012 (quoting Dumpson v. Goord, 2011 WL 4345760, at * 9
(W.D.N.Y. Sept. 15, 2011)). In fact, Plaintiff has also failed to provide any evidence
establishing that the outside temperature consistently was so cold as to require boots
and gloves, such as historical weather data, and, as such, has failed to establish the
objective element of this claim. Nor does Plaintiff explain how the failure to provide
Plaintiff with a thermos constituted a deprivation of a basic human need in violation of
contemporary standards of decency. Phelps, 308 F.3d at 185. Plaintiff thus is unable
to establish the objective element of his claim, and the court need not reach the
subjective element. See Wilson v. Seiter, 501 U.S. 294, 298 (1991) (holding both the
objective and subjective components of an Eighth Amendment claim challenging prison
conditions must be established). Accordingly, summary judgment should be GRANTED
on this claim.
With regard to Plaintiff’s assertion that his cell was illuminated 24 hours,
preventing Plaintiff from sleeping, the Second Circuit recognizes that “sleep is critical to
human existence, and conditions that prevent sleep have been held to violate the Eighth
Amendment.” Walker v. Schult, 717 F.3d 116, 126 (2d Cir. 2013) (citing cases).
“Requiring inmates to live in constant illumination can. . . , under certain circumstances,
rise to the level of an Eighth Amendment violation.” Jones v. Rock, 2013 WL 4804500,
at * 10 (N.D.N.Y. sept. 6, 2013) (citing Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir.
1996), amended on other grounds, 135 F.3d 1318 (9th Cir. 1998)). Courts’ analyses of
Eighth Amendment claims based on continuous lighting within a prison setting are “‘factdriven,’ based upon the degree of illumination, the discomfort that it caused, and the
penological concern for the lighting.” Booker v. Maly, 2014 WL 1289579, at * 18
(N.D.N.Y. Mar. 31, 2014) (citing cases). Nevertheless, “to succeed on a claim of illegal
illumination, plaintiff must produce evidence that the constant illumination had harmful
effects on his health beyond mere discomfort.” Vasquez v. Frank, 290 Fed.Appx. 927,
929 (W.D.Wis. Nov. 2, 2007) (affirming summary judgment on inmate plaintiff’s Eighth
Amendment prison condition claim where medical records failed to substantiate any
causal link between cell conditions, including constant illumination with a single 9-watt
bulb, and inmate’s alleged medical symptom of eye pain).
In the instant case, not only has Plaintiff failed to describe, let alone presented
any substantiating evidence of, the cell illumination of which he complains, but Plaintiff
has also failed to allege that such illumination resulted in anything more than some
sleep deprivation which has consistently been held below the requisite severity for an
Eighth Amendment claim. See, e.g., Jones v. Smith, 2015 WL 5750136, at * 15
(N.D.N.Y. Sept. 30, 2015) (adopting report and recommendation that summary
judgment be granted on Eighth Amendment claim where inmate plaintiff’ failed to allege
any serious health effects caused by sleep deprivation resulting from 13-watt night light
illuminating cell); and Booker v. Maly, 2014 WL 1289579, at * 19 (N.D.N.Y. Mar. 31,
2014) (adopting report and recommendation that summary judgment be granted
dismissing plaintiff inmate’s Eighth Amendment claim based on 24-hour illumination of
prison cell where evidence established low wattage night light enabled corrections
officers to see into cell without further disturbing inmate, thereby furthering a legitimate,
penological interest, e.g., helping keep safe both corrections staff and inmate).
Accordingly, Defendants’ motion for summary judgment should be GRANTED insofar as
Plaintiff alleges an Eighth Amendment claim based on constant illumination of his cell.
Plaintiff claims that “unknown confidential informants” conspired to deny Plaintiff
his Eighth and Fourteenth Amendment rights by repeatedly subjecting Plaintiff to
unfounded urinalyses to humiliate and sexually harass Plaintiff, lodging death threats
against Plaintiff, and conspiring to carry out such threats, and that Wenderlich conspired
with the confidential informants by refusing Plaintiff’s request to view video surveillance
of the November 17, 2008 altercation, thereby interfering with Plaintiff’s preparation of
his defense for the Disciplinary Hearing. Amended Complaint, Sixth Cause of Action.
Defendants argue in support of summary judgment that this claim is barred by the intracorporate conspiracy doctrine, rooted in the conspiracy provision of Section One of the
Sherman Antitrust Act, 15 U.S.C. § 1, providing an entity cannot conspire with one or
more of its employees acting within the scope of employment. Defendants’
Memorandum at 12-13. In opposing summary judgment, Plaintiff argues the intraagency conspiracy doctrine does not apply to an allegation of conspiracy between an
entity’s employees and a confidential informant, as alleged in the instant action.
Plaintiff’s Memorandum at 14-15. In further support of summary judgment, Defendants
maintain their research has revealed no case supporting Plaintiff’s asserting that the
intra-agency conspiracy doctrine does not apply to an alleged conspiracy involving
confidential informants. Defendants’ Reply at 5. The court need not address whether
the intra-agency conspiracy doctrine bars Plaintiff’s claim because the conspiracy claim
fails on a more fundamental point as discussed below.
Although not specifically stated as such, Plaintiff’s conspiracy claim is brought
pursuant to 42 U.S.C. § 1985(3) (“§ 1985(3)”) which proscribes a conspiracy to deprive
a person of any rights or privileges under the laws. The four elements of a § 1985(3)
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of equal protection of the laws, or of equal privileges
and immunities under the laws; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any
right of a citizen of the United States. Furthermore, the conspiracy must also be
motivated by ‘some racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators’ actions.’
Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087-88 (2d Cir.
1993) (citing and quoting United Bd. of Carpenters, Local 610 v. Scott, 463 U.S. 825,
Significantly, in the instant case, the record is devoid of any evidence establishing the
requisite “racial or [ ] otherwise class-based invidious discriminatory animus” motive.
See Harrison v. Lutheran Medical Center, 468 Fed.Appx. 33, 37 (2d Cir. Mar. 14, 2014)
(citing United Bd. of Carpenters, Local 610, 463 U.S. at 828, in affirming district court’s
dismissal for failure to state a claim § 1985(3) conspiracy claim in the absence of any
allegation of facts supporting requisite motive).
Summary judgment should be GRANTED in favor of Defendants insofar as
Plaintiff alleges a conspiracy under § 1985(3).
Defendants seek summary judgment on Plaintiff’s claims against Defendants
Fischer, LeClaire, Bezio, Bradt, Napoli, Abrunzo, and Heath (“supervisory Defendants”)
based on a theory of supervisory liability, asserting such claims are premised only on
the fact that Plaintiff wrote letters, grievances, and complaints advising of the asserted
constitutional violations which Plaintiff further maintains such supervisory Defendants
failed to correct. Defendants’ Memorandum at 15-17. In opposition to summary
judgment, Plaintiff maintains that where a supervisory official is advised of a particular
grievance yet fails to act in response, the supervisory official may be found to have
sufficient personal involvement to establish individual liability for the alleged
constitutional violation. Plaintiff’s Response at 17-18. Defendants have not argued in
further support of summary judgment on this claim.
“[S]upervisor liability in a § 1983 action depends on a showing of some personal
responsibility, and cannot rest on respondeat superior.” Hernandez v. Keane, 341 F.3d
137, 144 (2d Cir. 2003) (citing Al-Jundi v. Estate of Rockfeller, 885 F.2d 1060, 1065 (2d
Cir. 1989)). “Similarly, proof of ‘linkage in the prison chain of command’ is insufficient.”
Id. (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). “‘Absent some personal
involvement by [the supervisory official] in the allegedly unlawful conduct of his
subordinates,’ he cannot be liable under section 1983.’” Id. at 144-45 (quoting Gill v.
Mooney, 824 F.2d 192, 196 (2d Cir. 1987)). Even an imperfect investigation, without
more, does not give rise to a constitutional violation. Friedman v. New York City Admin.
for Children’s Services, 502 Fed.Appx. 23, 27 (2d Cir. Nov. 6, 2012) (citing Wilkinson v.
Russell, 182 F.3d 89, 106 (2d Cir. 1999)).
In the instant case, should the District Judge agree with the recommendation that
summary judgment be granted as to Plaintiff’s claims, the dismissal of such claims
would render moot the related supervisory liability claims. Accordingly, summary
judgment should be GRANTED as to the supervisory Defendants.
Motion to Dismiss Attorney
Plaintiff has complained to the undersigned that Plaintiff repeatedly has failed to
receive legal mail from his court-appointed counsel, Reddy, which Plaintiff maintains
has interfered with Plaintiff’s meaningful participation in telephone calls with counsel.
November 24, 2015 Letter at 1. Significantly, Plaintiff asserts he wishes to raise several
additional arguments in response to Defendant’s summary judgment motion23 and
requests Reddy be dismissed as his counsel. Id. at 1-2.
In contrast to criminal cases, there is no constitutional requirement that an
indigent litigant in a civil matter be appointed pro bono counsel, although a court has
discretion to appoint counsel pursuant to 28 U.S.C. § 1915(e). Barnes v. Alves, 10
F.Supp.3d 382, 384 (W.D.N.Y. 2014). Court-appointed representation can, however, be
dismissed even though the only alternative is self-representation. See Leftridge v.
Conn. State Trooper Officer # 1283, 640 F.3d 62, 67 (2d Cir. 2011) (requiring pro se
plaintiff to proceed by counsel in a civil case violates 28 U.S.C. § 1654 which provides
that in federal courts “the parties may plead and conduct their own cases personally”);
see also Norman v. Talcovitz, 1996 WL 648970, at * 1 (S.D.N.Y. Nov. 7, 1996)
(observing that plaintiff “has dismissed his court-appointed counsel and is now
proceeding pro se. . . .”). Nevertheless, as discussed in connection with Plaintiff’s
earlier motion seeking dismissal of court-appointed counsel, January 30, 2014 D&O at
7-8, Plaintiff, by requesting assignment of counsel, waived his right to self-
Plaintiff has not explained what such arguments are, but characterizes them as “meritorious.”
November 24, 2015 Letter at 2.
representation and does not have an unfettered right to demand such court-appointed
counsel be discharged and return to his pro se status absent grounds establishing
Plaintiff’s assigned counsel has failed to act with reasonable diligence and competence
in prosecuting Plaintiff’s case. Id. (citing Taylor v. Dickel, 293 F.3d 427, 431-32 (8th Cir.
2002) (appointment of counsel pursuant to § 1915(e) does not permit party to demand
court discharge such counsel and revert to pro se status)).
In the instant case, although Plaintiff has requested his court-appointed counsel
be dismissed, Plaintiff has not asked the court to appoint substitute counsel such that
the dismissal of Reddy would result in Plaintiff reverting to his pro se status. As with the
earlier request for dismissal of court-appointed counsel, January 30, 2014 D&O at 7-8,
however, Plaintiff again has provided no grounds supporting a determination that there
has been a fundamental breakdown in communications or cooperation with Reddy, or
that Reddy has been less than diligent in her representation of Plaintiff and prosecution
of his case; rather, Plaintiff attributes his dissatisfaction with his court-appointed counsel
not to any actions by Reddy, but to difficulties with the correctional facility’s legal mail
and telephone policies. Accordingly, Plaintiff’s request that his court-appointed counsel
be dismissed is DENIED.
Based on the foregoing, Defendants’ motion (Doc. No. 112), should be
GRANTED, and the Clerk of the Court should be directed to close the file; Plaintiff’s
motion (Doc. No. 125), is DENIED.
SO ORDERED as to Plaintiff’s motion,
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted as to Defendants’ motion,
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
February 10, 2016
Buffalo, New York
ORDERED that this Report and Recommendation be filed with the Clerk of the
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
February 10, 2016
Buffalo, New York
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