Gagne v. Kaczor et al
Filing
37
ORDER granting Defendants' 23 Motion for Summary Judgment and dismissing Plaintiff's 1 Complaint in its entirety. Signed by Hon. Michael A. Telesca on 11/4/15. (SG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHEN GAGNE,
Plaintiff,
DECISION AND ORDER
12-CV-545
v.
C.O. KACZOR, et al.,
Defendants.
INTRODUCTION
Plaintiff Stephen Gagne (“Plaintiff”), a pro se prisoner,
commenced this action, pursuant to 42 U.S.C. § 1983 against the
Defendants, all of whom are former or current employees of the New
York State Department of Corrections and Community Supervision
(“DOCCS”), alleging that he was denied use of his cane despite a
medical
permit
Correctional
and
denied
Facility
meals
(“Wende”).
while
incarcerated
Compl.
(Dkt.
#1),
at
Wende
¶¶
2-80.
Plaintiff’s claims are brought under the Eighth Amendment of the
U.S. Constitution; Title II of the Americans with Disabilities Act
of 1990, 42 U.S.C. § 1213, et seq.; and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794. Id.
Currently before the Court is Defendants’ Motion for Summary
Judgment, in which Defendants argue, inter alia, that Plaintiff’s
claims
are
barred
by
the
doctrine
of
res
judicata
and,
alternatively fail on the merits (Dkt. #23). Plaintiff opposes the
motion and has submitted a Memorandum of Law, a Statement of Facts,
and a Declaration with accompanying exhibits (Dkt. ##29-31).
For the reasons that follow, the Defendants’ motion is granted
and the Complaint is dismissed in its entirety.
BACKGROUND
The following facts, drawn from the Defendants’ Rule 56
Statement of Facts (Dkt. #23) and accompanying affidavits and
exhibits, are undisputed unless otherwise indicated.
Although
Plaintiff
was
provided
with
the
requisite
Irby
Notice,1 his submissions nonetheless fail to conform to the Federal
and Local Rules of Civil Procedure. For example, his Opposing
Statement of Facts (Dkt. #31) is not correspondingly numbered,
contains no citations to any admissible evidence, and is comprised
largely of the allegations from the Complaint as well as legal
arguments. See Loc.R.Civ.P. 56(2) ("Each numbered paragraph in the
moving party's statement of material facts will be deemed admitted
for purposes of the motion unless it is specifically controverted
by
a
correspondingly
numbered
paragraph
in
the
opposing
statement."); Loc.R.Civ.P. 56(3) ("Each statement by the movant or
opponent pursuant to this Local Rule must be followed by citation
1
See Irby v. NYC Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001)
(Warning that the Circuit Court will “vacate summary judgment
dismissals against a pro se litigant when the pro se is unaware of the
consequences of failing to adequately respond to the motion for
summary judgment”).
-2-
to evidence that would be admissible, as required by Federal Rule
of Civil Procedure 56(e).") The Court is mindful of the special
solicitude owed to Plaintiff, however, his status a pro se litigant
does not excuse his non-compliance with the Local Rules. See
Faretta v. California, 422 U.S. 806, 834 n. 46 (1975) (“The right
of self-representation is not a license ... not to comply with
relevant rules of procedural and substantive law.”); Edwards v.
INS, 59 F.3d 5, 8 (2d Cir. 1995)(“While a pro se litigant's
pleadings must be construed liberally . . . pro se litigants
generally are required to inform themselves regarding procedural
rules and to comply with them.”), Self v. LaValley, No. 10-CV-1463,
2013 WL 1294448, at *3 (N.D.N.Y. Mar. 27, 2013) (“The special
solicitude afforded to pro se civil rights litigants does not give
them license to violate the Federal Rules of Civil Procedure, local
rules of practice of the district courts in which their cases are
pending, and Scheduling Orders issued by district court judges
presiding over their cases in order to manage their dockets.”)
Significantly, Plaintiff is no stranger to the complexities of
litigation: he has filed no less than five cases in this District
(Nos. 99-cv-108, 99-cv-436, 02-cv-082, 11-cv-361, 12-cv-545) as
well as a New York State Court of Claims action. See Compl. at 3.
The Court will therefore deem as admitted the Defendants’ facts to
the extent they are supported by the record.
A.
Parties
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At the time of the events alleged in the Complaint, Plaintiff
was an inmate in the care and custody of DOCCS, housed at Wende
Correctional Facility. In his Complaint, Plaintiff named Wende
medical professionals Drs. Levitt and Bukowski, and Physician
Assistant (PA) Obertean; supervisory officials Supt. Kirkpatrick,
Supt. of Health Services Post, Deputy Supt. Of Security Sticht;
Corrections Officers (CO) Kaczor and Londono, Cook Thomas, and
Recreation
Supervisor
Snowden
(collectively,
“Defendants”).
Plaintiff claims that Defendants denied him the use of his cane and
meals for various times between the time period between July, 2009
and November, 2010. Compl. ¶¶ 1-80.
B.
Previous Litigation and Current Allegations
Plaintiff filed an “Amended Claim” (No. 115986) with the New
York State Court of Claims on January 27, 2010, alleging that upon
his transfer to Wende his cane was confiscated and he was denied
meals. The Amended Claim covered the time period spanning June to
August, 2009. Murphy Decl., Ex. A.
Prior to the scheduled trial date in the Court of Claims
action, Plaintiff filed a “Trial Memorandum” on June 28, 2012, in
which Plaintiff elaborated upon his claims of denial of medical
care, food deprivation, and lack of reasonable accommodations.
Therein he also expanded the relevant time period through November
22, 2010. Murphy Decl., Ex. B. Specifically, Plaintiff’s Trial
Memorandum indicated that he intended to prove at trial, among
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other things, that: (1) Defendants negligently interfered with his
medical treatment by confiscating his cane on various dates,
including
when
Plaintiff
was
placed
in
SHU
for
disciplinary
violations; (2) Defendants denied him meals, either because he was
not being fed in his cell or because he was not permitted to use
his cane in the messhall; (3) Wende Superintendents created a
policy that discriminated against his medical disabilities in
violation
of
the
Americans
with
Disabilities
Act
and
the
Rehabilitation Act. Id. at 9-13.
On
August
14,
2012,
Plaintiff
signed
a
“Stipulation
of
Settlement and Discontinuance,” wherein he agreed to settle and
dismiss with prejudice three Court of Claims actions (Nos. 117754,
115986, 121283), releasing and discharging DOCCS, New York State,
its officers, agents, and employees from all claims, demands, and
liability of every kind and nature arising out of the facts set
forth in those actions. Murphy Decl., Exs. C & D.
With some slight variation in dates, each claim in the instant
action was included in the prior Court of Claims matter: (1) from
June 28 to September 1, 2009 Plaintiff was not issued a cane or a
feed in cell order, thereby depriving Plaintiff of his meals; (2)
on September 16, 2009, Plaintiff’s cane was confiscated for 7 days;
(3) on November 7, 2009, Plaintiff had a valid feed in cell order
but did not receive his diabetic food tray for 7 days; (4) from
November 1 to 22, 2010, he did not have a feed in cell order, which
-5-
he required as Wende had a no-cane policy in the mess hall; (5)
Plaintiff’s cane was confiscated again on November 22, 2010 for 60
days upon entering SHU, which also had a no-cane policy.
Compare
Compl. ¶¶ 4-80; with Murphy Decl., Exs. A & B.
C.
Medical Permits and Accommodations
Under Wende’s Policy and Procedures, an appropriate medical
professional may designate specific restrictions to be imposed as
a
result
of
an
inmate’s
documented
physical
limitations.
A
restriction permit will be completed by a medical professional,
which is then reviewed by the Superintendent for Security to ensure
safe and secure operations of the facility. Sticht Decl., Ex. A.
Plaintiff was admitted to Wende on June 18, 2009. He reported
to medical staff that he used his cane on average 2 to 3 times a
month, played handball up to two hours daily, and reported a
burning sensation in the left leg after his fifth lap around the
yard. He told staff that his leg pain improved with rest. On July
20, 2009, he requested a received a “flats order” (no stair
climbing) for three months. Shortly thereafter he turned in his
cane provided to him at Attica.
Levitt Decl., Ex. A, ##35-40.
Plaintiff requested and was granted a medical restriction
permit for
one
year
beginning
September
16,
2009,
which
was
comprised of a cane, a flats order, and a feed in cell order.
Sticht Decl., Exs. B & C. Supt. Sticht approved Plaintiff’s permit.
Despite a valid feed in cell order, Plaintiff also claims that
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he was denied meals and was “starved” by CO Kaczor and Cook Thomas
between December 28, 2009 and January 21, 2010. Compl. ¶¶ 35-36.
However, during that time period, no complaints were made to
medical staff regarding his meals or his cane. Notably, he was
medically cleared for hernia surgery with no health concerns around
January 6, 2010, and on January 7 he was noted to be walking
without his cane and “actively watching his diet.” Levitt Decl.,
Ex. A, ## 21-27.
Plaintiff alleged no deprivations relating to the time period
between
January
and
September,
2010,
and
Plaintiff’s
medical
reports from that time indicated no issues with his canes or meal
delivery.
Upon the expiration of his approved medical restrictions in
September, 2010, Plaintiff requested a renewal of his cane permit.
Pl. Ex. at 84. On September 10, 2010, PA Oberton noted that
Plaintiff reported participating in gym and exercise programs 4 to
5 times per week without the use of a cane and had no difficulty
with ambulation. The PA suggested discontinuance of Plaintiff’s
cane permit. Id. Dr. Bukowski's progress notes from October 1,
2010, indicate that Plaintiff had a negative straight leg raise
test, walked with a limp on the left side, and had leg pain that
waxed and
waned.
Id. at
86.
Despite
negative
x-ray
results,
Plaintiff’s medical restriction permit was continued from October
1, 2010 through April 1, 2011, without a feed in cell order. Id. at
-7-
86(B); Levitt Decl. Ex. B, ## 471, 676, 735.
On November 22, 2010, Plaintiff was admitted to SHU upon
being found guilty of a disciplinary violation after testing
positive
for
illegal
drug
use.
With
respect
to
Plaintiff’s
complaint that his cane was confiscated upon entry to the SHU, it
was Wende’s policy to prohibit canes in SHU due to the limited
walking and living situation wherein inmates were confined to their
cells for 23 hours per day for disciplinary infractions. Sticht
Decl. ¶ 8.
It was also DOCCS’ policy to disallow canes in the messhall in
maximum security facilities, including Wende. This was due to
security reasons given the large number of inmates with maximum
security status and the potential for a cane to be used as a
weapon. Sticht Decl. ¶ 9. If an inmate was unable to ambulate in
the messhall without a cane, he had option of being fed in his cell
as his medical permit provided. Plaintiff’s medical permit did not
contain a feed in cell restriction from October, 2010 through
April, 2011. Pl. Ex. at 86(B).
At no time did Plaintiff make a request for a reasonable
accommodation.
DISCUSSION
A.
General Legal Principles
Section 1983 authorizes an individual who has been deprived of
a federal right under the color of state law to seek relief through
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“an action at law, suit in equity, or other proper proceeding for
redress.” City of Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687, 707 (1999). Two essential elements comprise a Section
1983 claim: (1) the defendant acted under color of state law; and
(2) as a result of the defendant's actions, the plaintiff suffered
a denial of his federal statutory rights, or his constitutional
rights or privileges. Annis v. Cnty. of Westchester, 136 F.3d 239,
245 (2d Cir. 1998) (citation omitted).
Summary judgment is warranted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one
that might affect the outcome of a suit under governing law.
Kinsella v. Rumsfeld, 320 F.3d 309, 311 (2d Cir. 2003). A “genuine”
issue exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B.
Plaintiff’s Claims are Precluded by the Doctrine of Res
Judicata.
Defendants aver that Plaintiff’s claims are barred by the
well-established doctrine of res judicata. The Court agrees.
State court judgments are to be given the same preclusive
effect in federal court as they would be given in the courts of the
state itself. Allen v. McCurry, 449 U.S. 90, 96 (1980). The Second
-9-
Circuit
has
enumerated
four
conditions
to
be
analyzed
when
determined whether res judicata applies: (1) the earlier decision
was a final judgment on the merits; (2) the decision was rendered
by a court of competent jurisdiction; (3) the same parties or their
privies were involved; and (4) the decision involved the same cause
of action. In re Teltronics Services, Inc., 762 F.2d 185, 190 (2d
Cir. 1985) (citing Herendeen v. Champion Int’l Corp., 525 F.2d 130,
133 (2d Cir. 1975)).
Plaintiff’s claims are precluded by an application of New York
law. Barrington v. New York, 449 U.S. 90, 96 (1980). New York
follows a transactional approach to res judicata which bars the
re-litigation of not only matters that were litigated between
parties in a preceding action, but also any matters that could have
been litigated in that action. Ramsey v. Busch, 19 F. Supp. 2d 73
(W.D.N.Y. 1998). “Claims that might have been raised in an earlier
proceeding are those that arise from the same transaction or claim
forming the basis for the first lawsuit.” Berrios v. State Univ. of
NY at Stony Brook, 518 F. Supp. 2d 409, 415 (E.D.N.Y. 2007)(citing
Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2d. Cir. 2002);
internal quotation marks omitted). “Claims will be deemed to arise
from the same transaction, for example, where they ‘are related in
time, space, origin, or motivation . . . .’” Id. at 416 (quoting
Marvel, 310 F.3d at 287).
Under New York’s rule against “claim splitting,” a final
-10-
judgment rendered in an action which extinguishes the plaintiff’s
claim also extinguishes all rights of the Plaintiff to further
remedies against the defendant with respect to all or any part of
the transaction, or series of connected transactions, out of which
the
action
arose.
Livingston
v.
Goord,
225
F.
Supp.
2d
321
(W.D.N.Y. 2002), aff’d in part and vacated in part on other
grounds, 153 Fed. Appx. 769 (2d Cir. 2005) (inmate’s successful
prosecution of negligence action in New York Court of Claims
precluded inmate from bringing §1983 action based on the same
course of conduct).
Here, the conduct that Plaintiff again complains of was
resolved by the execution by the parties of a Stipulation and
Settlement discharging DOCCS, Wende, and its employees in the Court
of Claims, and accordingly, res judicata applies.
First, there was a final judgment on the merits in the Court
of Claims case, see Marvel Characters, Inc. v. Simon, 310 F.3d 280,
287 (2d Cir. 2002) (a dismissal, with prejudice, arising out of a
settlement agreement operates as a final judgment for res judicata
purposes),
and
the
Court
of
Claims
is
a
court
of
competent
jurisdiction. See, e.g., Overview Books, LLC v. U.S., 755 F. Supp.
2d 409, 416 (E.D.N.Y. 2010) aff'd, 438 Fed. Appx. 31 (2d Cir. 2011)
(Court of Claims had jurisdiction to pass on the merits of First
Amendment claim).
Next, the claims brought by Plaintiff involved the same
-11-
Defendants named in this action: DOCCS, Wende, and its employees.
Murphy Decl., Ex. D (releasing “the New York State Department of
Corrections and Community Supervision, and the State of New York,
its officers, agents and employees . . . .”) The same parties or
the privies were therefore involved.
With regard to the final
element, whether claims in a second lawsuit involve “the same cause
of action” as claims brought in the first action, courts determine
whether or not “the same transaction or a connected series of
transactions is at issue, whether the same evidence is needed to
support both claims, and whether the facts essential to the second
[action] were present in the first [action].” NLRB v. United Tech.,
706 F.2d 1254, 1260 (2d Cir. 1983).
The state court Amended Claim and Trial Brief contained nearly
entirely identical claims and causes of action as set forth here:
(1) confiscation of Plaintiff's cane upon transfer to Wende; (2)
denial of food on various dates; (3) denial Plaintiff's use of his
cane in the mess hall and in the SHU; and (4) supervisory liability
with regard to the underlying allegations.2 See Compl. ¶¶ 4-80;
Murphy Decl., Exs. A & B.
Although Plaintiff argues that the instant claims exceed the
time frame encompassed by Amended Claim in the Court of Claims, see
2
The Amended Claim covered the time period from June 28,
2009 through August, 2009; the Trial Memorandum expanded the
relevant time period to November, 2010. Murphy Decl., Exs. A & B.
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Pl. Mem. at 2, Plaintiff agreed to settle all possible claims
arising out of the alleged deprivations at Wende, in the Court of
Claims, for monetary damages, including those occurring prior to
the Stipulation of Settlement executed on August 14, 2012. Murphy
Decl., Ex. C.
Where,
as
here,
a
settlement
agreement
accompanies
a
dismissal, “the preclusive effect of the settlement is measured by
the intent of the parties to the settlement.” Berrios, 518 F. Supp.
2d at 415 (citation omitted). Under the terms of the Release,
Plaintiff unambiguously discharged DOCCS, The State of New York,
its officers, agents, and employees,
from all claims, demands, and liability of
every kind and nature, legal or equitable,
occasioned by or arising out of the facts set
forth in the foregoing claim, and in case any
action shall have been filed by me with the
Clerk of the Court of Claims for said damages
at any time prior to the date of this release.
I consent and stipulate that an order may be
made by the Court of Claims without notice to
me dismissing said claim upon the merits.
Murphy Decl., Ex. D (emphasis added).
Thus, Plaintiff explicitly released the Wende Defendants from
all claims arising out of the facts set forth in the Court of
Claims action, with specific reference to dismissal of any
claim
brought through the date of the Release. The clear purpose of the
Stipulation of Settlement and accompanying Release was to settle
the claims arising from Plaintiff’s cane denials (and resulting
food deprivation) at Wende that occurred prior to the date of the
-13-
settlement. The mere fact that Plaintiff could have raised the
additional claims (and arguably did so) is sufficient to trigger
the bar in light of the Release’s express language. See Berrios,
518 F. Supp. 2d at 419 (“the court cannot imagine a set of
circumstances under which a settling defendant would intend to
settle only the claims asserted and not all claims arising prior to
the date of the settlement. In view of the number of years that may
pass between institution of a claim and the settlement thereof, it
would make little sense for a defendant to remain open to claims,
arising from the same set of facts, that arise prior to the date of
the settlement.”)
Finally, it is worth noting that a similar conclusion was
reached in Plaintiff's previous Federal lawsuit. In Gagne v. Fix,
No. 11-CV-361, this Court applied the doctrine of res judicata to
dismiss certain of Plaintiff's claims, also arising out of the
denial
of
his
cane,
while
he
was
incarcerated
at
Attica
Correctional Facility, prior to his transfer to Wende.3 See Gagne
v.
Fix,
No.
2014)(relying
11-CV-361,
2014
on
of
Court
WL
950130
Claims
(W.D.N.Y.
settlement
to
Mar.
11,
preclude
re-litigation of certain claims).
To permit Plaintiff to re-litigate this issue every time his
3
The instant claims are virtually identical to those raised
in Gagne v. Fix and a previous lawsuit, Gagne v. Ekpe, Civ. No
02CV82, in which he complained that he was denied the use of his
cane while incarcerated at Southport Correctional Facility in
2001.
-14-
housing location changes when his physical condition and the
procedure
for
medical
precisely
the abuse
restrictions
of
litigation
has
remained
which
the
unchanged
doctrine
of
is
res
judicata was designed to prevent. Accordingly, this action is
barred due to Plaintiff’s settlement of the Court of Claims action.
CONCLUSION
For
the
reasons
discussed
above,
Defendants'
Motion
for
Summary Judgment (Dkt.#23) is granted, and Plaintiff's Complaint
(Dkt.#1) is dismissed in its entirety. The Clerk of the Court is
directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: November 4, 2015
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