Swinton v. Livingston County et al

Filing 237

REPORT AND RECOMMENDATIONS re 188 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION for Summary Judgment filed by Forrester, Schinski, Yunker, Slocum, Yasso. Objections due fourteen days from receipt. DECISION AND ORDER DENYING 198 MOTION for Sanctions filed by Robert L. Swinton, Jr. Signed by Hon. Leslie G. Foschio on 9/27/2018. (SDW)(Copy of R&R/D&O mailed to Pro Se Plaintiff at Loretto Federal Correctional Facility)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________ 
ROBERT L. SWINTON, JR.,
Plaintiff,
v.
LIVINGSTON COUNTY,
LIVINGSTON COUNTY JAIL,
MONROE COUNTY,
MONROE COUNTY JAIL,
NURSE SCHINSKI,
NURSE YUNKER,
CHIEF DEPUTY YASSO,
CORPORAL SLOCUM,
DEPUTY FORRESTER,
CORRECT CARE SOLUTION, INC.,
CORRECTIONAL MEDICAL CARE, INC.,
DR. MAXIMILLIAN CHUNG, and
DR. CHARLES THOMAS,

REPORT
and
RECOMMENDATION
----------------------------DECISION
and
ORDER
15-CV-00053A(F)

Defendants.
______________________________________
APPEARANCES:

ROBERT L. SWINTON, JR., Pro Se
22008-055
Loretto Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 1000
Loretto, Pennsylvania 15940
WEBSTER SZANYI, LLP
Attorneys for Defendants
MICHAEL P. McCLAREN,
FLORINA ALTSHILER, and
RYAN G. SMITH, of Counsel
1400 Liberty Building
Buffalo, New York 14202
JURISDICTION

This case was referred to the undersigned on April 15, 2015, by Honorable
Richard J. Arcara for all pretrial matters. The matter is presently before the court on a

motion to dismiss or for summary judgment filed by Defendants Nurse Schinski, Nurse
Yunker, Chief Deputy Yasso, Corporal Slocum, and Deputy Forrester on December 20,
2017 (Dkt. 188), and on Plaintiff’s motion for sanctions filed January 4, 2018 (Dkt. 198).1

BACKGROUND
Plaintiff Robert L. Swinton, Jr. (“Plaintiff”), proceeding pro se, commenced this
civil rights action pursuant to 42 U.S.C. § 1983, alleging violations by Defendants of his
First and Eighth Amendments in connection with the asserted failure to provide
adequate dental treatment of tooth abscesses, and an adequate law library to permit
Plaintiff to file a grievance regarding Defendants’ denial of adequate medical care and
to challenge an earlier, unrelated conviction in Florida.2 By leave of the court granted
January 18, 2017 (Dkt. 128), on January 19, 2017, Plaintiff filed the Amended
Complaint (Dkt. 129) (“Amended Complaint”). Defendants to this action include Nurse
Schinski (“Schinski”), Nurse Yunker (“Yunker”), Chief Deputy Yasso (“Yasso”), Corporal
Slocum (“Slocum”), Deputy Forrester (“Forrester”), Correct Care Solution, Inc. (“CCS”),
Correctional Medical Care, Inc. (“CMC”), Dr. Maximillian Chung (“Dr. Chung”), and Dr.
Charles Thomas (“Dr. Thomas”).3
On December 20, 2017, Defendants Forrester, Schinski, Slocum, Yasso and
Yunker (“Moving Defendants” or “Defendants”), filed a motion to dismiss or for summary
judgment (Dkt. 188) (“Defendants’ Motion”), attaching Moving Defendants’ Statement of

1

Although the motion to dismiss or for summary judgment is dispositive, whereas the motion for
sanctions is nondispositive, both motions are addressed in this combined Report and
Recommendation/Decision and Order in the interests of judicial economy and clarity.
2
The precise nature of the Florida conviction and Plaintiff’s challenge to the same is not clearly stated in
the record.
3
In a Decision and Order filed March 17, 2015 (Dkt. 4), District Judge Arcara dismissed with prejudice the
action as against Livingston County, Monroe County, Livingston County Jail, and Monroe County Jail, all
of whom were also sued as Defendants.

2 

Undisputed Material Facts (Dkt. 188-1) (“Defendants’ Statement of Facts”), Defendants’
Appendix to Local Rule 56 Statement of Material Facts (Dkt. 188-2), with exhibits A
through E (Dkt. 188-3), F through J (Dkt. 188-4), and K through P (Dkt. 188-5), and the
Memorandum of Law in Support of Defendants’ Motion to Dismiss and/or for Summary
Judgment (Dkt. 188-6) (“Defendants’ Memorandum”). On January 4, 2018, Plaintiff filed
a motion for sanctions (Dkt. 198) (“Plaintiff’s Motion”), attaching Plaintiff’s Affirmation in
Support of Motion (“Plaintiff’s Affirmation”), Plaintiff’s Response to Undisputed Facts
(“Plaintiff’s Statement of Facts”), and exhibits A through C (“Plaintiff’s Exh(s). __”).
On June 5, 2018, Moving Defendants filed the Declaration of Ryan G. Smith,
Esq. (Dkt. 225) (“Smith Declaration”), attaching exhibit A (Dkt. 225-1) (“Smith
Declaration Exh. A”). On June 6, 2018, Plaintiff filed the Declaration of Plaintiff
Opposing Summary Judgment (Dkt. 226) (“Plaintiff’s Declaration”). On June 20, 2018,
Moving Defendants filed the Reply Declaration of Ryan G. Smith, Esq. (Dkt. 227)
(“Smith Reply Declaration”), with exhibit A (Dkt. 227-1) (“Smith Reply Declaration Exh.
A”), and the Reply Memorandum of Law in Further Support of Defendants’ Motion to
Dismiss and/or for Summary Judgment (Dkt. 227-2) (“Defendants’ Reply”). On June 28,
2018, Plaintiff filed the Response to Reply Declaration of Ryan G. Smith, Esq. (Dkt.
228) (“Plaintiff’s Sur-Reply”). Oral argument was deemed unnecessary.
Based on the following, Defendants’ Motion should be GRANTED, and the action
should be DISMISSED as against Moving Defendants; alternatively, Defendants’ Motion
should, on qualified immunity grounds, be DENIED in part and GRANTED in part;
Plaintiff’s Motion is DENIED.

3 

FACTS4
Dental Health Issue
From October 19, 2012, to February 12, 2014, Plaintiff Robert Swinton (“Plaintiff”
or “Swinton”), was held as a pre-trial detainee in Monroe County Jail (“Monroe County
Jail”), pending trial on federal criminal charges. As a federal pre-trial detainee, Plaintiff,
pursuant to a policy maintained by the United States Marshal Service (“USMS”), could
obtain medical treatment from an outside health care provider, in this case, Defendant
Correctional Medical Care, Inc. (“CMC”),5 only if such treatment was deemed medically
necessary by USMS, except where emergency medical care that could not be provided
by the jail facility’s medical staff was required. In December 2012, while housed in
Monroe County Jail, Plaintiff complained of an oral abscess for which Plaintiff requested
medical care. According to Plaintiff, although multiple medical requests for dental care
were submitted by the Monroe County Jail’s medical staff, the necessary medical care
was repeatedly postponed or denied by USMS and CMC, until after Plaintiff was
transferred from Monroe County Jail.
On February 12, 2014, Plaintiff was transferred from Monroe County Jail to
Livingston County Jail (“the Jail”), where he remained until October 8, 2015. Upon
being admitted to the Jail, on February 13, 2014, Defendant Nurse Ann Schinski

4

Taken from the pleadings and motion papers filed in this action.
Although “Correct Care Solution/Correctional Medical Care Inc.” is named as a Defendant in the
Amended Complaint, Correct Care Solution (“CCS”), has provided undisputed evidence, that CCS did not
commence providing healthcare services at Monroe County Jail until January 1, 2015, almost a year after
Plaintiff was transferred from this facility. See Dkt. 172-2 (Affidavit of Monroe County Jail Superintendent
Ronald W. Harling averring CCD did not commence providing healthcare services to inmates at Monroe
County Jail until January 1, 2015), and Dkt. 183 (Declaration of James H. Cosgriff, III, Esq., averring
Defendant Correctional Medical Care, Inc. (“CMC”), and not CCS, provided inmate healthcare services at
Monroe County Jail during the relevant period of time). In papers filed October 3, 2017 (Dkt. 177 at 3),
Plaintiff indicated he did not object to the dismissal of CCS as a defendant to this action. Accordingly, the
court references only CMC as the healthcare provider at Monroe County Jail.

5

4 

(“Schinski”), completed a nursing assessment of Plaintiff during which Plaintiff made no
complaints regarding his mouth or teeth, but reported a dental cap on his left canine
tooth fell off. Nursing Assessment6 at Bates 000182. On April 14, 2014, Plaintiff
complained of a gum infection characterized by a red, raised, draining area in his left
lower gum, for which Schinski prescribed antibiotics. Inmate Progress Notes (“IPN”)7 at
Bates 000291. In a Health Care Request Form dated February 15, 2014, Plaintiff wrote
he “was in line for a tooth extraction in [Monroe County Jail]. I still need one.” Health
Care Request Forms8 at Bates 000223. Plaintiff further indicated he had the dental
problem since 2012. Id. In a Health Care Request Form dated April 13, 2014, Plaintiff
described his toothache as “turning from a dull ache and daily getting worse.” Id. at
Bates 000172. On April 24, 2014, Plaintiff stated he was “still having the same problem.
Don’t think the antibiotics worked.” Id. at Bates 000171.
On April 28, 2014, Plaintiff’s left lower gum line was less inflamed, but still
present and Plaintiff was provided with a hydrogen peroxide mouth rinse (“mouth
rinse”). IPN at Bates 000291. On May 22, 2014, Plaintiff complained of pus emanating
from his gums, the infection was still present, and he had run out of the mouth rinse,
indicating his dental problem had persisted for more than one year, having first occurred
when he was housed in Monroe County Jail. Health Care Request Forms at Bates
000169. On May 28, 2014, Plaintiff’s left lower gum line was not inflamed and without
drainage, but additional mouth rinse was provided because Plaintiff reported it was
draining pus a few days earlier. IPN at Bates 000291. On July 1, 2014, Plaintiff’s

6

Defendants’ Exh. P (Dkt. 188-5 at 69-71).
Defendants’ Exh. L (Dkt. 188-5 at 12-16.
8
Defendants’ Exh. N (Dkt. 188-5 at 41-62).
7

5 

prescription-strength Ibuprofen was discontinued for non-use, and Plaintiff was advised
he could take over-the-counter Ibuprofen. Id. On July 14, 2014, Plaintiff requested
additional mouth rinse. Health Care Request Form at Bates 000165. On July 16, 2014,
Plaintiff returned his empty mouth rinse container and additional mouth rinse was
issued. IPN at bates 000291.
On August 5, 2014, Plaintiff complained of a toothache and “exposed nerve,”
asserting he believed a “filling is out of place.” Health Care Request Forms at Bates
000162. On August 7, 2014, Plaintiff complained to Defendant Nurse Gail Yunker
(“Yunker”) of intermittent dental pain in tooth # 19,9 in which Plaintiff had a temporary
filling, and which was helped by using the mouth rinse. IPN at Bates 000291. Yunker
authorized Plaintiff to receive additional Ibuprofen and submitted a request to the USMS
for a dental appointment for tooth extraction, indicating the request was “urgent,” i.e.,
should be scheduled within two weeks. Id.; Prisoner Medical Requests10 at 000157.
The USMS granted the request, indicating the urgency of the request required treatment
within two to six weeks. IPN at Bates 000291; Prisoner Medical Requests at Bates
000158.
On September 10, 2014, Plaintiff complained about a toothache and abscess
which had bothered him for a year and a half. Health Care Request Forms at Bates
000163. On September 11, 2014, Plaintiff was examined by Dr. C. Terry Washburn,
DDS (“Dr. Washburn”), who gave Plaintiff a choice between having the abscessed tooth

9

Pursuant to the American Dental Association’s Universal Tooth Numbering System of teeth, tooth
number 19 is in the lower portion of the jaw on the left toward the back of the mouth. See
https://www.ada.org/en/publications/cdt/glossary-of-dental-clinical-and-administrative-terms, last visited
September 27, 2018. Tooth # 19 is also referred to as the lower left first molar. See
http://www.onlinemd.net/toothnumbersdiagram.html, last visited September 27, 2018.
10
Plaintiff’s Exh. O (Dkt. 188-5 at 63-68).

6 

extracted, or undergoing a root canal procedure. IPN at Bates 000291-292. Plaintiff
then refused the tooth extraction, and Dr. Washburn prescribed amoxicillin, opining
Plaintiff should have the root canal. Id. Plaintiff was advised the USMS needed to
approve the root canal, and Yunker sent the USMS a Prisoner Medical Request for the
root canal.11 IPN at Bates 000292. On September 15, 2014, Plaintiff reported to R.N.
H. Braaten (“Braaten”),12 the antibiotic helped alleviate the dental pain, and Braaten
discussed with Plaintiff alternating over-the-counter Tylenol and Ibuprofen, advising the
USMS had yet to approve the root canal request. Id.
On September 26, 2014, Plaintiff complained of a toothache which was starting
to abscess again, adding a piece of a temporary filling was missing. Health Care
Request Forms at Bates 000160. On September 29, 2014, Braaten reported a piece of
Plaintiff’s filling fell out, causing Plaintiff to worry about infection. IPN at Bates 000291.
Braaten dispensed additional mouth rinse and allowed Plaintiff to reapply dentemp
(over-the-counter dental cement for temporary tooth patch of lost filling). On November
10, 2014, Schinski refilled Plaintiff’s mouth rinse. Id. On November 20, 2014, Plaintiff
reported his tooth was abscessed again, asserting he was on the list maintained by the
USMS to receive dental care. Health Care Request Forms at Bates 000143.
According to a Prisoner Medical Request dated November 24, 2014, Plaintiff
refused to have his tooth extracted and requested a root canal. Prisoner Medical
Requests at Bates 000234. See IPN at Bates 000292 (noting on September 11, 2014,
Plaintiff refused the tooth extraction by Dr. Washburn, opting for a root canal for which
USMS approval was required, and Plaintiff was placed on additional antibiotics). The

11
12

No copy of any Prisoner Medical Request sent at this time is in the record.
Braaten is not named as a Defendant to this action.

7 

urgency of the request required treatment within two to six weeks. Prisoner Medical
Requests at Bates 000234. Because the USMS was not authorized to deny medical
requests, the request was referred to the USMS Officer of Interagency Medical Services
(“OIMS”). Id.
On December 3, 2014, Plaintiff reported he was “abscessing from the gums
again,” that he showed the pus to a deputy sheriff, and that despite repeated promises,
he had yet to receive the required dental care. Health Care Request Forms at Bates
000144. An examination revealed “a white bump at gumline” for which an unidentified
medical doctor was notified, who prescribed an antibiotic on December 4, 2014. IPN at
Bates 000292. On December 5, 2014, Yunker sent Plaintiff’s IPNs to the USMS along
with a doctor’s note recommending treatment. Id.
On December 12, 2014, Plaintiff reported he still had pain coming from his gums
which remained infected. Health Care Request Forms at Bates 000140. On December
19, 2014, Plaintiff submitted a slip complaining of infected and painful gums, and his left
lower mouth was noted to have a filling that was red at the gum base. IPN at Bates
000292. Plaintiff reported waking up in the morning with pus in his mouth. Id. Nurse
M. Candie (“Candie”)13 requested Plaintiff’s antibiotic be renewed, told Plaintiff to
continue rinsing with hydrogen peroxide, provided Plaintiff with orajel, and contacted a
physician for further instructions. Id. The physician denied the request for additional
antibiotics, advising Plaintiff continue using the mouth rinse. Id. On December 26,
2014, Plaintiff submitted Grievance No. 14-39 (“Grievance 14-39”),14 at Bates 000248,
complaining the Jail’s medical staff discontinued the pain medication and mouth rinse

13
14

Candie is not named as a Defendant to this action.
Copies of Plaintiff’s Grievances are filed as Defendants’ Exh. M (Dkt. 188-5 at 17-40).

8 

prescribed for Plaintiff’s tooth abscess. On December 29, 2014, the Jail’s Grievance
Coordinator determined that Plaintiff’s failure to return the empty mouth rinse container
resulted in denying the request for more mouth rinse. Id. Plaintiff appealed the decision
to the Chief Administrative Officer who investigated and determined Plaintiff was denied
additional mouth rinse because Plaintiff failed to return the empty container, but that
upon returning the empty container, Plaintiff was promptly issued more mouth rinse, and
that Plaintiff’s prescription Ibuprofen was discontinued because Plaintiff had ceased
taking it. Id. The Chief Administrative Officer further noted the Jail’s medical staff was
awaiting approval from the USMS for Plaintiff’s root canal. Id. On December 29, 2014,
Plaintiff reported his tooth was abscessed, the “pain has been extreme,” and the
problem existed for two years. Health Care Request Form at Bates 000141. On
December 30, 2014, Plaintiff followed up with his dental appointment request, but
denied any dental pain that day. IPN at Bates 000292. That same day, Plaintiff also
received a refill of his mouth rinse and Ibuprofen. Grievance 14-39 at Bates 000250.
On January 5, 2015, Yasso, in the course of investigating Grievance 14-39,
learned Plaintiff had been denied additional mouth rinse because he had failed to return
the container in which the mouth rinse was dispensed, but that Plaintiff had since
returned the container and received the mouth rinse Ibuprofen, and also personally
telephoned the USMS regarding the request for Plaintiff’s root canal. Declaration of
Livingston County Jail Chief Deputy Jason Yasso (Defendant’s Exh. B)15 (“Yasso
Declaration”), ¶¶ 18-20 (citing Grievance 14-39 at Bates 000249). That same day,

15

Dkt. 188-3 at 7-15.

9 

Candie also spoke with USMS regarding Plaintiff’s dental request and re-sent the
request. IPN at Bates 000292.
On January 16, 2015, Plaintiff requested a refill of his mouth rinse. Health Care
Request Form at Bates 000237. On January 23, 2015, OIMS approved Plaintiff’s
request for a root canal.16 Prisoner Medical Requests at Bates 000234. On January
27, 2015, Plaintiff’s root canal procedure was scheduled for February 4, 2015. IPN at
Bates 000293.
On February 2, 2015, Plaintiff reported “abscess in my gums again. Severe pain
at night, moderate during the day. Infected again.” Health Care Request Forms at
Bates 000227. Plaintiff indicated the problem had persisted for two years. Id. Candie
examined Plaintiff’s mouth, observing swelling in right lower gum, redness and a small
open area, white in the center, which Plaintiff reported was draining. Id. A physician
contacted by Candie regarding Plaintiff’s gum ordered amoxicillin. Id. Because of a
conflicting court appearance, Plaintiff’s dental appointment, originally scheduled for
February 4, 2015, was rescheduled for February 18, 2015. Yasso Declaration ¶ 21. On
February 12, 2015, Plaintiff filed Grievance No. 15-3 (“Grievance 15-3”), at Bates
000255, complaining Yunker would not provide Plaintiff with his mouth rinse and stating
Plaintiff did not wish to see Yunker as a Jail Nurse again. Upon investigation, the
Grievance Coordinator, on February 13, 2013, determined the issue regarding the
mouth rinse had been resolved and Plaintiff had a personality conflict with Yunker. Id.

16
Although on August 7, 2014, Plaintiff’s diseased tooth was indicated as # 19, IPN at Bates 000291, the
root canal was approved for tooth # 22, which is also referred to as the lower left canine. See
http://www.onlinemd.net/toothnumbersdiagram.html, last visited September 27, 2018. Because the
record is devoid of any explanation for the disparity, the court is unable to definitively state the diseased
tooth for which the root canal was approved on January 23, 2015, is the same tooth of which Plaintiff
complained on August 7, 2014.

10 

at Bates 000256. Plaintiff appealed the determination to the Chief Administrative Officer
who, on February 16, 2015, concurred with the Grievance Coordinator, adding that
further action regarding Plaintiff’s personality conflict with Yunker was outside the Chief
Administrative Officer’s authority given that the Jail’s nursing services were provided
pursuant to a contract with Livingston County Public Watch, the entity to whom Plaintiff
should direct any further complaint, and Plaintiff was provided with the information to file
such a complaint regarding Yunker. Id.
At some time between receiving approval for the root canal procedure and the
actual procedure being performed, Yasso was advised by the USMS of plans to transfer
Plaintiff to another facility, but upon Yasso’s request, the USMS permitted Plaintiff to
remain in the Jail until Plaintiff underwent the root canal procedure. Yasso Declaration
¶ 31. On February 18, 2015, Plaintiff underwent the root canal procedure. IPN at Bates
000293.
Legal Resources Issue
In September 2014, a kiosk machine (“the kiosk”), providing inmates with access
to LexisNexis, an on-line database for conducting legal research, was installed at the
Jail. On September 6, 2014, before the kiosk was fully operational, Plaintiff filed
Grievance No. 14-25 (“Grievance 14-25”), at Bates 000252, complaining the Jail
provided no federal legal resources, indicating Plaintiff preferred the Jail maintain a
library of legal books. On September 10, 2014, the kiosk became fully operational and
available to all inmates, Yasso Declaration ¶ 15, and on September 11, 2014, the Jail’s
Grievance Coordinator issued a decision that Grievance 14-25 was considered rectified.
Grievance 14-25 at Bates 000253. Plaintiff appealed the decision to the Jail’s Chief

11 

Administrative Officer who, on September 12, 2014, concurred with the Grievance
Coordinator that Grievance 14-25 was rectified by the fully operational kiosk. Id. On
September 16, 2014, Plaintiff stated he wished to appeal the decision to the Citizen’s
Policy and Complaint Review Council (“CPCRC”),17 but a further notation on Grievance
14-25 indicates Plaintiff verbally agreed the grievance had been rectified, id., and
Grievance 14-25 was not forwarded to CPCRC. Plaintiff claims that prior to the kiosk
becoming fully operational, Defendants Corporal Slocum and Deputy Forrester denied
Plaintiff’s requests for the training necessary for using the LexisNexis system, as well as
for legal materials. Amended Complaint ¶¶ 52-61.

DISCUSSION
1.

Summary Judgment
Moving Defendants argue in support of summary judgment18 that Plaintiff cannot

demonstrate a denial of access to the courts in violation of the First Amendment,
Defendants’ Memorandum at 4-8, Plaintiff’s First Amendment claim relating to his
Grievances have no factual or legal basis, id. at 8-12; Plaintiff did not suffer from any
serious medical condition to which Defendants were deliberately indifferent, id. at 12-18;
Yasso was not sufficiently personally involved to be held liable for Plaintiff’s denial of
medical treatment claim, id. at 18-19; any claims asserted in the Amended Complaint

17

Although not further identified in the record, CPCRC appears to be an entity within the Livingston
County Jail whose authority is also not described.
18
Although Defendants’ Motion seeks to dismiss for failure to state a claim or, alternatively, for summary
judgment, Defendants’ Memorandum at 2-4, Moving Defendants’ reliance on numerous declarations and
exhibits renders the more appropriate to review Defendants’ Motion for summary judgment and, thus, a
determination on the merits, than to dismiss for failure to state a claim, which is not a determination on
the merits and would ordinarily, if granted, be without prejudice and with leave to replead. See Global
Network Communications, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006) (reviewing
distinction between dismissal for failure to state a claim and determination on summary judgment).

12 

that were previously dismissed with prejudice must be dismissed here, id. at 19; Plaintiff
fails to sufficiently allege a Fourteenth Amendment equal protection claim, id. at 20; and
Moving Defendants are qualifiedly immune from liability on all claims. Id. at 20-25. In
opposition to summary judgment, Plaintiff filed a motion for sanctions asserting he never
authorized Moving Defendants’ attorney Ryan G. Smith, Esq. (“Smith”), to forward to
third parties or otherwise disclose Plaintiff’s unredacted medical records and that such
disclosure was “blatantly unethical” and in violation of privacy laws under the Health
Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d, et. seq.
(“HIPAA”),19 requiring sanctions against Moving Defendants. Plaintiff’s Affirmation at 12. Plaintiff also contests numerous facts as alleged in Defendants’ Statement of Facts.
Plaintiff’s Statement of Facts. In further support of summary judgment, Moving
Defendants argue Plaintiff’s papers opposing summary judgment fail to comply with the
Local Rules of Civil Procedure, particularly Local Rule 56(a)(2), fail to address
numerous facts and arguments set forth in Moving Defendants’ moving papers, and fail
to establish any issue of material fact exists requiring trial on any of Plaintiff’s claims.
Defendants’ Reply at 1. In further opposition, Plaintiff maintains his opposing Statement
of Facts establishes numerous disputed issues of fact requiring trial. Plaintiff’s SurReply at 1-4.
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

19

As relevant here, HIPAA, and the regulations promulgated thereunder, prohibits the disclosure of
patients’ medical records without the patients’ consent subject to exception as by way of court order. 42
U.S.C. § 1320d-6; 45 C.F.R. § 164.512.

13 

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, produce evidence that would be

14 

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). Any “disputed questions of material fact
[however] should be resolved by a jury at trial, not by a court at summary judgment.”
Dufort v. City of New York, 874 F.3d 338, 349-50 (2d Cir. 2017) (quoting Anderson, 477
U.S. at 255 (“Credibility determinations, the weighing of evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge . . . [when]
he is ruling on a motion for summary judgment. . . .”) (bracketed material in original)).
“[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. 1996). Furthermore, “[a]lthough summary judgment is proper
where there is ‘nothing in the record to support plaintiff’s allegations other than plaintiff’s
own contradictory and incomplete testimony,’ district courts should not ‘engage in
searching, skeptical analyses of parties’ testimony in opposition to summary judgment.’”
Rivera v. Rochester Genesee Regional Transp. Authority, 743 F.3d 11, 20 (2d Cir.
2014) (quoting Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005), and
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011)).
A.

28 U.S.C. § 1983

Plaintiff’s claims seek damages for alleged violations of 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, is
not itself a source of substantive rights but, rather, provides the mechanism by which a
plaintiff may seek vindication of federal rights elsewhere conferred. Graham v. Connor,

15 

490 U.S. 386, 393-94 (1989). Here, the federal rights for the alleged violation of which
Plaintiff seeks relief under § 1983 include the First, Eighth and Fourteenth
Amendments. Furthermore, for relief under § 1983, a plaintiff must establish the
defendant was personally involved in the alleged deprivation. Warren v. Pataki, 823
F.3d 125, 136 (2d Cir. 2016) (“To establish a section 1983 claim, ‘a plaintiff must
establish a given defendant’s personal involvement in the claimed violation in order to
hold that defendant liable in his individual capacity.’” (quoting Patterson v. County of
Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004))).
1.

Access to Courts

Plaintiff claims that without a legal library, the only means by which he and other
inmates could research federal law was by using the LexisNexis kiosk,20 which did not
provide any means to print the research, requiring a separate request for print materials
be made to Jail officials, resulting in significant delay in receiving the materials.
Plaintiff’s Statement of Facts ¶¶ 61-62. In support of summary judgment, Moving
Defendants argue Plaintiff cannot demonstrate he suffered any actual injury caused by
the lack of adequate legal resources at the Jail, Defendants’ Memorandum at 4-6,
Plaintiff has been represented by counsel throughout his federal criminal proceedings,
id. at 6-7, requiring the claims be dismissed as against Defendants Corporal Slocum
(“Slocum”), and Deputy Forrester (“Forrester”), id. at 7-8, the denial of the right to
appeal a grievance is not a constitutional violation, id. at 8, and even construing
Plaintiff’s denial of the right to appeal his grievances as alleging retaliation, such claim
must be denied for lack of the requisite adverse action and causal connection. Id. at 9-

20

Plaintiff was there facing the pending federal narcotics trafficking and firearms possession charges.

16 

12. In opposing summary judgment, Plaintiff essentially relies on disputed facts
including that the “runner system” used in place of an actual law library at the Jail by
which an inmate can obtain legal research materials only by providing Jail facility
officers with case citations and awaiting the retrieval of the requested information “has
been deemed illegal for decades,” Plaintiff’s Statement of Facts ¶ 61, and that the cases
and federal treatise Plaintiff requested to challenge his prior conviction in the State of
Florida by a coram nobis petition were not timely provided, thereby depriving Plaintiff of
his right to self-representation which was critical given that Plaintiff’s court-appointed
counsel was ineffective, resulting in Plaintiff failing to oppose being sentenced as a
career offender. Id. ¶¶ 61-69. In further support of summary judgment, Moving
Defendants reiterate that since entering the Jail in October 2012, Plaintiff’s continuous
representation by counsel with respect to his criminal matters renders this claim without
merit, Defendants’ Reply at 4, that the prior sentence Plaintiff seeks to challenge as the
basis for his career offender status was imposed in January 2002, well prior to the
alleged denial of access to legal resources, id. Plaintiff fails to distinguish the legal
authority on which Moving Defendants rely, id. at 4-5, requiring the claims be dismissed
as against Defendants Slocum and Forrester, id. at 5, nor has Plaintiff countered
Moving Defendants’ argument that Plaintiff has no constitutional right to appeal a
grievance, id., and that Plaintiff fails to allege any adverse action or causal connection
to support any First Amendment retaliation claim. Id. at 5-6.
Plaintiff’s claim that the Jail’s law library and legal assistance were inadequate to
permit Plaintiff to pursue “post-conviction relief” asserts a violation of his constitutional
guarantee of the right of access to the courts for redress of grievances as provided by

17 

the First, Fifth, and Fourteenth Amendments. See Christopher v. Harbury, 536 U.S.
403, 415 n. 12 (2002) (observing, in various civil and criminal cases, the right of access
to the courts is grounded in Article IV’s Privileges and Immunities Clause of the
Constitution, the First Amendment’s Petition Clause, and in the Due Process Clauses of
the Fifth and Fourteenth Amendments). It is settled that “meaningful access to the
courts is the touchstone” of the First Amendment as regards litigation commenced by a
prison inmate. Bounds v. Smith, 430 U.S. 817, 823 (1977) (“Bounds”). “The point is to
provide prisoners with the tools they ‘need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their confinement.’” Bourdon v.
Loughren, 386 F.3d 88, 93 (2d Cir. 2004) (quoting Lewis v. Casey, 518 U.S. 343, 355
(1996), and citing Bounds, 430 U.S. at 825 (stating that the relevant inquiry is whether
the inmate has ‘a reasonably adequate opportunity to present claimed violations of
fundamental constitutional rights to the courts”)). “[T]he right has particular application
to prisoners seeking access to the courts, where they are defending against criminal
charges, challenging convictions and sentences, and raising civil rights claims against
the conditions of their confinement.” Bourdon, 386 F.3d at 92 n. 8 (citing Lewis, 518
U.S. at 355, and Bounds, 430 U.S. at 825).
Although under Bounds, prison officials have an affirmative duty to provide
constitutionally adequate access to the courts such that where an inmate alleges, e.g.,
inadequate law libraries, the inmate need not show any actual injury, Bounds, 430 U.S.
at 829; where, however, as here, an inmate is represented by counsel, the inmate
cannot establish a denial of access to courts claim based on allegations that the
correctional facility had inadequate legal resources for the inmate’s use. See Bourdon,

18 

386 F.3d at 93-94 (“the appointment of counsel can be a valid means of fully satisfying
a state’s constitutional obligation to provide prisoners, including pretrial detainees, with
access to the courts”). “[W]hen a prisoner with appointed counsel claims that he was
hindered by prison officials in his efforts to defend himself or pursue other relevant legal
claims, he must show that, on the facts of his case, the provision of counsel did not
furnish him with the capability of bringing his challenges before the courts, . . . .” Id. at
98.
Plaintiff’s access to court claim pertains to his prior convictions in Florida State
Court, based on which Plaintiff was sentenced for his most recent Florida conviction as
a career criminal. In particular, on November 3, 1994, Plaintiff, having entered in
Florida’s 10th Circuit Court, Polk County (“the Florida Circuit Court”), a plea of no contest
to armed robbery in violation of Florida law (“armed robbery conviction”), was sentenced
to five years imprisonment, followed by ten years probation. See Dkt. 198 at 20.
Plaintiff timely appealed the conviction in Florida’s Second District Court of Appeal
where the conviction was affirmed on March 29, 1996, but several provisions of the
sentence pertaining to fines, costs, and probation conditions were stricken as imposed
in violation of applicable Florida criminal procedure laws. Swinton v. State, 670 So.2d
1128, 1129 (Fla. 2d Dist. Ct. App. 1996). Plaintiff remained incarcerated on the armed
robbery conviction until he was released on probation on October 31, 1997. On
January 24, 2002, Plaintiff, who had been arrested in New York pursuant to a warrant
and extradited to Florida where the violation of probation complaint was lodged against
him, appeared in Florida Circuit Court, Polk County, represented by assigned counsel.21

21

The nature of the asserted probation violation is not specified in the record.

19 

Dkt. 198 at 21. After some questioning of Plaintiff, the court found Plaintiff guilty without
a written plea agreement or any inquiry of Plaintiff under oath or obtaining Plaintiff’s
waiver of constitutional rights. Id. at 21-22. Without Plaintiff or his attorney being
permitted to speak, Plaintiff was sentenced for the probation violation to 72 months
imprisonment (second conviction), id. at 22, and Plaintiff did not appeal the conviction.
Id. On October 19, 2012, Plaintiff was arrested by federal law enforcement agents in
the Northern District of New York and charged with violating federal drug trafficking and
firearms possession laws. Plaintiff maintains that because of the two prior convictions
in Florida, Plaintiff was subject under Florida law to Armed Career Criminal and Career
Offender sentencing enhancements, resulting in a mandatory life sentence without
parole.22 Plaintiff’s Statement of Facts ¶¶ 61-68. On June 20, 2014, Plaintiff,
represented by court appointed criminal attorney Patrick Michael Megaro, Esq.
(“Megaro”), moved in Florida Circuit Court, Polk County, pursuant to Florida Rule of
Criminal Procedure 3.800(a), (b), and 3.850, for a court order correcting Plaintiff’s prison
sentence imposed January 24, 2002 with regard to the second conviction (“motion to
correct sentence”), but because the second conviction was never appealed, on July 1,
2014, the motion was denied as untimely. See State v. Swinton, No. 94CF-2464-XX,
slip op. at 1-2 (Fla. 10th Cir., Polk Cty. July 1, 2014) (unpublished).23 On April 1, 2015,
Plaintiff, proceeding pro se, filed in Florida’s Second District Court of Appeal a Petition
for a Writ of Error Coram Nobis under Florida law (“Coram Nobis Petition”),24 asserting
Megaro, in filing the motion to correct sentence, challenged under Florida law only the

22

Whether a Florida sentencing enhancement statute may be considered in imposing a criminal sentence
in federal court is not addressed in the papers.
23
Dkt. 198 at 27-28.
24
Dkt. 198 at 29-40.

20 

constitutionality of the sentence imposed for the second conviction, but did not
challenge the actual conviction based on a faulty guilty plea conducted by the Florida
Circuit Court. Coram Nobis Petition at 4. Petitioner then made several arguments
challenging the procedure by which the second conviction was procured, asserting each
alleged violation rendered the second conviction and, thus, the sentence imposed, in
violation of due process. Id. at 5-9. On June 8, 2015, Plaintiff’s Coram Nobis Petition
was denied, Swinton v. State, 207 So.3d 235 (Fla. 2d Dist. Ct. App. 2015) (table), and
was further dismissed upon appeal to the Florida Supreme Court. Swinton v. State, 192
So.3d 42 (Fla. 2015). On December 20, 2017, Plaintiff received his current federal
sentence, such sentence being enhanced in light of Plaintiff’s career offender status
based on the first and second convictions in Florida. Plaintiff’s Statement of Facts ¶ 61.
With regard to Plaintiff’s assertion that he was denied self-representation in his
criminal matter, particularly, the ability to challenge consideration of prior convictions
resulting in being sentenced as a career offender on the subsequent federal conviction,
the record establishes Plaintiff raised such challenge in his pro se Coram Nobis Petition,
which was considered and denied by both the Florida District Court of Appeal and the
Florida Supreme Court, significantly, more than one year prior to Plaintiff being
sentenced on the federal conviction December 20, 2017, further undermining Plaintiff’s
contention that he was deprived of any right of access to court to challenge his prior
convictions before imposition of his federal sentence. As such, Plaintiff cannot point to
any actual denial of legal rights in the criminal context of Plaintiff’s prior Florida state
conviction based on the asserted constitutionally deficient legal resources at the Jail,
and summary judgment on this claim should be GRANTED.

21 

Nor is there any merit to Plaintiff’s challenge that the Jail’s deficient legal
resources impeded Plaintiff’s appeal of inmate grievances at the Jail because
“‘[although] there is a First Amendment right of meaningful access to the courts and a
right to petition the government for redress, inmate grievance procedures are not
required by the Constitution and therefore a violation of such procedures does not give
rise to a claim under § 1983.’” Crichlow v. Fischer, 2017 WL 920753, at * 7 (W.D.N.Y.
Mar. 7, 2017) (quoting Cancel v. Goord, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29,
2001)). Accordingly, because Plaintiff has no constitutionally protected interest in the
Jail’s grievance program, even if Moving Defendants failed to provide the necessary
legal resources to effectively make use of such program, no valid § 1983 claim would
lie. See id. (holding that because the inmate plaintiff had no protected liberty interest in
prison grievance program, the defendant prison employees’ alleged violation of their
own grievance processing procedures did not give rise to a § 1983 claim). Summary
judgment on Plaintiff’s access to court claim based on the alleged interference with filing
appeals of his inmate grievances should thus be GRANTED.
The record is further devoid of any evidence establishing a valid First
Amendment retaliation claim based on Plaintiff’s filing of grievances directed to access
to legal research materials at the Jail. To prevail on a First Amendment retaliation claim
under § 1983, a prisoner must demonstrate “(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.”
Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal quotation marks and
citation omitted). “Only retaliatory conduct that would deter a similarly situated

22 

individual of ordinary firmness from exercising his or her constitutional rights constitutes
an adverse action for a claim of retaliation.” Dawes v. Walker, 239 F.3d 489, 493 (2d
Cir. 2001), overruled on other grounds, Swiekiewicz v. Sorema N.A., 534 U.S. 506, 508
(2002). “This objective inquiry is not static across contexts, but rather must be tailored
to the different circumstances in which retaliation claims arise.” Id. (internal quotation
marks and citation omitted).
In the instant case, Plaintiff’s filing of the various grievances complaining of the
Jail’s legal resources and medical treatment qualified as protected activity under the
First Amendment, thereby satisfying the first element of a First Amendment retaliation
claim. Dawes, 239 F.3d at 492. Plaintiff, however, points to no adverse action taken by
Moving Defendants against him, let alone any “retaliatory conduct that would deter a
similarly situated individual of ordinary firmness from exercising his or her constitutional
rights,” as required for the second element of a First Amendment retaliation claim. Id. at
493. Moreover, Plaintiff also cannot establish any causal connection between a nonexisting adverse action and Plaintiff’s participation in protected activity. Accordingly,
Defendants’ Motion should be GRANTED as to Plaintiff’s First Amendment retaliation
claim.
2.

Medical Indifference

Plaintiff alleges Defendants were deliberately indifferent to his abscessed tooth
for which he was denied adequate medical treatment in violation of the Eighth and
Fourteenth Amendments. Moving Defendants argue in support of summary judgment
that Plaintiff did not suffer from a serious medical condition, nor were Moving
Defendants deliberately indifferent to any such condition. Defendants’ Memorandum at

23 

12-18. Alternatively, Moving Defendants argue Yasso lacked sufficient personal
involvement to be held liable for any claim arising from Plaintiff’s medical treatment. Id.
at 18-19. In opposing summary judgment, Plaintiff essentially relies on his opposing
statement of facts, especially that Plaintiff did not complain of a dull pain, as reported in
his IPN, but of excruciating pain accompanied by pus oozing from his mouth, Plaintiff’s
Statement of Facts ¶ 43, yet the record fails to establish sufficient attempts by Moving
Defendants to obtain approval for treatment from the USMS, id. ¶¶ 50, 56, 58, the
number of sick call slips submitted by Plaintiff establish the seriousness of Plaintiff’s
dental problem, id. ¶ 59, yet notification to the USMS continued to be substantially
delayed. Id. ¶ 60. In further support of summary judgment, Moving Defendants
maintain that numerous, completely undisputed facts establish there is no merit to
Plaintiff’s deliberate indifference claim, supporting summary judgment. Defendants’
Reply at 6-8.
During the period of time relevant to this action, Plaintiff was detained at the Jail
while awaiting trial on the federal charges then pending against him, on which Plaintiff
was not convicted until July 2017, with his criminal sentence on the conviction imposed
December 20, 2017. As such, Plaintiff was a pretrial detainee at all times relevant to his
deliberate indifference to serious medical need claim, requiring the claim be analyzed
according to the Fourteenth Amendment’s Due Process Clause, rather than under the
Eighth Amendment’s Cruel and Unusual Punishments Clause. See Darnell v. Pineiro,
849 F.3d 17, 29 (2d Cir. 2017) (recognizing unconstitutional conditions of confinement
claims brought by pretrial detainees are correctly analyzed under the Fourteenth
Amendment). This is because “‘[p]retrial detainees have not been convicted of a crime

24 

and thus may not be punished in any manner – neither cruelly and unusually or
otherwise.’” Id. (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007) (further
citation and quotation marks omitted)). “A detainee’s rights are ‘at least as great as the
Eighth Amendment protections available to a convicted prisoner.’” Id. (quoting City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
“A pretrial detainee may establish a § 1983 claim for allegedly unconstitutional
conditions of confinement by showing that the officers acted with deliberate indifference
to the challenged conditions.” Darnell, 849 F.3d at 29 (citing Benjamin v. Fraser, 343
F.3d 35, 50 (2d Cir. 2003)). This showing requires satisfying two prongs or elements,
with the first element “showing that the challenged conditions were sufficiently serious to
constitute objective deprivations of the right to due process,” and the second element
“better classified as a ‘mens rea prong’ or ‘mental element prong’ – showing that the
officer acted with at least deliberate indifference to the challenged conditions.” Id. In
the context of alleged deliberate indifference to a medical condition, the Plaintiff must
establish he had a serious medical condition that was met with deliberate indifference.
Bruno v. City of Schenectady, 727 Fed. Appx. 717, 720 (2d Cir. Mar. 16, 2018) (citing
Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)). In the instant case, the record
fails to establish either that the medical condition of which Plaintiff complained, that is,
an abscessed tooth, was sufficiently serious as to satisfy the claim’s first element, or
any a genuine question of material fact regarding the second element so as to avoid
summary judgment.
In particular, the first element is the same under the Fourteenth Amendment as
under the Eighth Amendment. See Bruno, 727 Fed.Appx. at 720 (discussing first

25 

element of pretrial detainee’s medical indifference claim according to similar claims
brought by convicted plaintiffs under the Eighth Amendment, while consideration of the
second element “has nonetheless evolved over time”). The first element is satisfied by
establishing the plaintiff suffered from “‘a condition of urgency, one that may produce
death, degeneration, or extreme pain.’” Id. (quoting Johnson v. Wright, 412 F.3d 398,
403 (2d Cir. 2005)). “The objective inquiry is highly fact-specific, and factors to consider
include ‘(1) whether a reasonable doctor or patient would perceive the medical need in
question as ‘important and worthy of comment or treatment’; (2) whether the medical
condition significantly affects daily activities; and (3) the existence of chronic and
substantial pain.’” Bowden v. City of Buffalo, 2018 WL 1570176, at *7 (W.D.N.Y. Mar.
29, 2018) (quoting Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003)). Further,
although when a complete denial of medical treatment is alleged, the court must
evaluate the seriousness of the underlying medical condition. Bellotto v. County of
Orange, 248 Fed.Appx. 232, 236 (2d Cir. Sept. 26, 2007) (citing Smith v. Carpenter,
316 F.3d 178, 184-86 (2d Cir. 2003)). Where, however, as here, it is “‘a temporary
delay or interruption in the provision of otherwise adequate medical treatment’” that is
alleged, id. (quoting Smith, 316 F.3d at 185), the focus is “on the seriousness of the
particular risk of harm that resulted from ‘the challenged delay or interruption in
treatment rather than the prisoner’s underlying medical condition alone.’” Id. “In
evaluating the seriousness of the delay in treatment, a court may consider the absence
of adverse medical effects or demonstrable physical injury associated with such delay
or interruption.” Bowden, 2018 WL 1570176, at * 7 (internal quotations and citations
omitted). Significantly, unless the delay in medical care caused substantial harm, it

26 

does not amount to a constitutional claim. Id. (citing Williams v. Raimo, 2011 WL
6026111, at * 5 (N.D.N.Y. Dec. 2, 2011)). To establish the requisite harm, “[a] plaintiff
must show either that the underlying medical condition ‘actually worsened as a result of
the delay’ or must show ‘very likely future harm’ resulting from the delay; conclusory
allegations of what ‘might’ have occurred as a result of delay are insufficient.” Id.
(quoting DiChiara v. Wright, 2011 WL 1303919, at * 6 (E.D.N.Y. Jan. 6, 2011), report
and recommendation adopted as modified, 2011 WL 1301867 (E.D.N.Y. Mar. 31,
2011)).
Courts within the Second Circuit have often held an abscessed tooth is an
objectively serious medical condition to satisfy the first element of an Eighth
Amendment medical indifference claim. See Chance v. Armstrong, 143 F.3d 698, 70203 (2d Cir. 1998) (denying defendant’s motion to dismiss inmate plaintiff’s Eighth
Amendment medical indifference claim based on alleged extreme pain and deteriorating
teeth caused by abscessed tooth and rendering the plaintiff unable to properly eat);
Washington v. Farooki, 2013 WL 3328240, at ** 6-7 (N.D.N.Y. July 2, 2013) (finding
inmate’s abscessed tooth requiring multiple dental appointments, pain medication,
antibiotics, and root canal constituted sufficiently serious medical condition for Eighth
Amendment medical indifference claim); Brown v. Mewar, 2011 WL 573566, at ** 15
(W.D.N.Y. Feb. 14, 2011) (denying defendants summary judgment on plaintiff’s Eighth
Amendment medical indifference claim because inmate’s abscessed tooth “presents
medical urgency that might produce not death, but degeneration or extreme pain,
including an inability to eat”), report and recommendation adopted by 2011 WL 891403
(W.D.N.Y. Mar. 9, 2011). Accordingly, because the first element of a medical

27 

indifference claim is the same under both the Eighth and Fourteenth Amendments,
Bruno, 727 Fed.Appx. at 720, it logically follows that an abscessed tooth is an
objectively serious medical condition for purposes of a Fourteenth Amendment medical
indifference claim.
Nevertheless, in the instant case, although it is undisputed that Plaintiff’s tooth
was abscessed, and that Plaintiff experienced a delay of almost a year before finally
undergoing the medically recommended root canal on February 4, 2015, the record is
devoid of any evidence the delay caused his dental condition to actually worsen or very
likely to result in future harm. Bowden, 2018 WL 1570176, at *7. Therefore, on this
record, Plaintiff cannot establish the first element of a Fourteenth Amendment medical
indifference claim. Although the undersigned finds Plaintiff cannot establish the first
element of his Fourteenth Amendment medical indifference claim, because the matter is
before the undersigned for a report and recommendation, whether Plaintiff can establish
the second element is also discussed.
Until recently, courts applied a subjective standard in construing the second
element of a medical indifference claim under both the Eighth and Fourteenth
Amendments. Bruno, 727 Fed.Appx. at 720 (citing cases). The Second Circuit,
however, has construed Kingsley v. Hendrickson, __ U.S. __, 135 S.Ct. 2466 (2015), as
mandating a second objective standard, specifically, “whether a ‘reasonable person’
would appreciate the risk to which the detainee was subjected.” Bruno, 727 Fed.Appx.
at 720 (quoting Darnell, 849 F.3d at 29). Specifically, the second element requires
deliberate indifference, i.e., that “the official ‘acted intentionally to impose the alleged
condition, or recklessly failed to act with reasonable care to mitigate the risk that the

28 

condition posed to the pretrial detainee even though the defendant-official knew, or
should have known, that the condition posed an excessive risk to health or safety.’”
Bruno, 727 Fed.Appx. at 720 (quoting Darnell, 849 F.3d at 35) (italics in original).
“‘Mere medical malpractice’ is not akin to deliberate indifference.” Parsons v. Tryon,
2013 WL 3288315, at * 2 (W.D.N.Y. June 28, 2013) (quoting Cuoco, 222 F.3d at 107).
“Accordingly, pursuant to Darnell, an official does not act in a deliberately indifferent
manner toward [a detainee] unless the official ‘acted intentionally to impose the alleged
condition, or recklessly failed to act with reasonable care to mitigate the risk that the
condition posed to the pretrial detainee even though the defendant-official knew, or
should have known, that the condition posed an excessive risk to health or safety.’”
Bruno, 727 Fed.Appx. at 720 (quoting Darnell, 849 F.3d at 35) (italics in original). “This
intentional or reckless conduct standard requires more than mere negligence.”
Sandford v. Rugar, 2018 WL 3069107 at * 3 (W.D.N.Y. June 20, 2018). Significantly,
the second element is not met by medical malpractice, including misdiagnosis, and the
decision not to treat based on an incorrect understanding of the condition as benign or
trivial. See Figueroa v. County of Rockland, 2018 WL 3315735, at * 6 (S.D.N.Y. July 5,
2018) (finding pretrial detainee’s allegations that defendants’ denial of request to be
taken to hospital to get stitches for gash in his hand to avoid infection at worst
“amounted to an erroneous calculus of the risks facing Plaintiff, insufficient to
demonstrate an intentional deprivation or recklessness” and, thus, failed to establish
second element of Fourteenth Amendment medical indifference claim). In short,
consideration of the second element of a Fourteenth Amendment medical indifference
claim should be based “on what a ‘reasonable person’ would have believed under the

29 

circumstances,” rather than “purely on the mindset of the defendants.” Bruno, 727
Fed.Appx. at 720 (citing Darnell, 849 F.3d at 29, 33-35). The record in the instant case
fails to establish any possibility that Moving Defendants intentionally imposed Plaintiff’s
abscessed tooth condition, or recklessly failed to act with reasonable care to mitigate
any risk posed to Plaintiff by his abscessed tooth, and thus fails to establish genuine
issues of material fact exist regarding the second element. Bruno, 727 Fed.Appx at
720.
Rather, the record establishes that whenever Plaintiff complained of dental pain,
he received medical attention, including pain relief medication, antibiotics, and the
hydrogen peroxide mouth rinse, which Plaintiff repeatedly reported helped relieve the
pain. IPN at Bates 000291-292. Plaintiff was also had several dental appointments,
including, most relevantly, a September 11, 2014, dental examination during which the
examining dentist prescribed amoxicillin and gave Plaintiff the choice between having
the abscessed tooth extracted or undergoing a root canal, with Plaintiff refusing the
extraction, and opting for the root canal for which approval by the OIMS was required,
and which Plaintiff underwent on February 18, 2015. IPN at Bates 000291-292;
Prisoner Medical Requests at Bates 000234.
Although the record indicates that on November 24, 2014, a second request for
Plaintiff’s root canal was sent to the USMS, IPN at Bates 000292, it is not clear from the
record that an earlier request for the root canal was actually made. In fact, the
November 24, 2014 Prisoner Medical Request does not indicate it is a second request,
Prisoner Medical Requests at Bates 000234, and the attached comments indicate the

30 

request was initiated by one Steven Pascuzzi on November 24, 2014.25 Id. at Bates
000235. That same day, more information, particularly Plaintiff’s dental records, was
requested, id., and on December 5, 2014, Plaintiff’s dental records were reviewed with
additional medical information regarding Plaintiff’s oral health was requested. Id. For
unexplained reasons, the additional information was not requested from Dr. Washburn
until January 6, 2015, who sent the requested information on January 22, 2015, with the
root canal approved that same date. Id. Because of a conflicting court appearance.
Plaintiff’s dental appointment, originally scheduled for February 4, 2015, was
rescheduled for February 18, 2015. Yasso Declaration ¶ 21. At some time between
receiving approval for the root canal procedure and the actual procedure being
performed, Yasso was advised by the USMS of plans to transfer Plaintiff to another
facility, but upon Yasso’s request, the USMS permitted Plaintiff to remain in the Jail until
Plaintiff underwent the root canal procedure. Yasso Declaration ¶ 31. On February 18,
2015, Plaintiff underwent the root canal procedure. IPN at Bates 000293.
Despite these unexplained delays in seeking and obtaining the USMS approval
for Plaintiff’s root canal, including the possibility that following the September 11, 2014
dental examination, no request for approval was submitted until November 24, 2014,
the record establishes Plaintiff continued to be provided with antibiotics, the mouth
rinse, Tylenol and Ibuprofen, and dentape, all of which Plaintiff reported helped alleviate
his dental pain. See IPN at 000291-292. Yasso, upon being advised Plaintiff was to be
transferred to another facility, requested Plaintiff be permitted to remain at the Jail until

25

A September 15, 2014, entry to Plaintiff’s Inmate Progress indicates “[n]o approval from USMS for root
canal yet,” IPN at Bates 000291, implying the request was made, but there is no copy of a corresponding
Prisoner Medical Request in the record. See Prisoner Medical Requests, Defendants’ Exh. O.

31 

the root canal procedure was completed. Yasso Declaration ¶ 31. The record thus
simply fails to establish any delays in arranging for Plaintiff’s root canal can be attributed
to anything other than negligence, arguably by the USMS, a non-party, which cannot
establish that Moving Defendants intentionally imposed Plaintiff’s abscessed tooth
condition, or recklessly failed to act with reasonable care to mitigate any risk posed to
Plaintiff by his abscessed tooth. Sandford, 2018 WL 3069107 at * 3 (“This intentional or
reckless conduct standard requires more than mere negligence.”).26 Accordingly, the
record fails to establish a genuine issue of material fact as to the second element of
Plaintiff’s medical indifference claim under the Fourteenth Amendment.
Moreover, insofar as Plaintiff’s medical indifference claim is asserted against
Defendant Yasso, it must be dismissed for lack of sufficient personal involvement, as
Moving Defendants assert, Defendants’ Memorandum at 19, an assertion Plaintiff does
not address. It is settled that a plaintiff must establish the defendant was personally
involved in the alleged deprivation to obtain relief under § 1983. Warren, 823 F.3d at
136. The required personal involvement is not satisfied by establishing a link in the
chain of command, McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004), nor may a
supervisory defendant be held liable on a § 1983 action based on respondeat superior.
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003), absent any failure to intervene,
failure to remedy a wrong, creating or permitting to continue a policy amounting to an
unconstitutional violation, or grossly negligent supervision of subordinates, none or

26
Significantly, Plaintiff does not dispute that, without the requested USMS approval, Defendants were
prevented from providing the recommended root canal procedure to Plaintiff. Accordingly, Plaintiff cannot
meet the general causation element with regards to Moving Defendants required by § 1983. See
Poventud v. City of New York, 750 F.3d 121, 158 (2d Cir. 2014) (requiring a civil rights plaintiff “must also
satisfy the elements of the § 1983 action derived from the common law of torts—specifically, causation.”
(citing cases)).

32 

which is alleged here. Here, Yasso’s only involvement in Plaintiff’s dental treatment
claim was to investigate Grievance 14-29, Yasso Declaration ¶¶ 18-19, make an inquiry
on January 5, 2015, regarding the status of Plaintiff’s root canal request, id. ¶ 20, and
arrange for a delay in Plaintiff’s transfer to another facility to ensure Plaintiff received the
root canal prior to the transfer. Id. ¶ 31. Accordingly, Yasso’s involvement in Plaintiff’s
treatment of his abscessed tooth was limited to investigating Grievance 14-39, following
up on the progress of the request to the USMS for approval of the root canal procedure,
and arranging to delay Plaintiff’s transfer to another facility until after the procedure was
performed. The record thus fails to establish any material issue of fact as to Yasso’s
involvement in Plaintiff’s asserted medical indifference claim.
Defendants’ Motion should be GRANTED as to Plaintiff’s medical indifference
claim.
B.

Equal Protection

Moving Defendants argue that insofar as the Amended Complaint can be
construed as asserting a Fourteenth Amendment equal protection claim, Plaintiff has
failed to allege he has, based on some protected characteristic, been treated differently
than others similarly situated. Defendants’ Memorandum at 20. Plaintiff has not
responded in opposition to this argument, and Moving Defendants’ reference this failure
in further support of summary judgment on this claim. Defendants’ Reply at 8.
The Fourteenth Amendment’s Equal Protection Clause provides that no state
shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1, cl. 4. Although “the Equal Protection Clause is most commonly
used to bring claims alleging discrimination based on membership in a protected class,”

33 

which Plaintiff has not alleged here, a plaintiff nonetheless “can proceed as a ‘class-ofone’ by establishing that he or she ‘has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.’”
Holmes v. Haugen, 356 Fed.Appx. 507, 509 (2d Cir. 2009) (quoting Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). See also Roman v. Donelli, 347
Fed.Appx. 662, 663 (2d Cir. 2009) (affirming district court’s dismissal of inmate plaintiff’s
equal protection claim based on defendant prison superintendent’s denial of plaintiff’s
request to visit dying wife and attend her funeral because plaintiff had failed, in raising
such a “selective treatment claim” to “show that he was treated differently from other
similarly-situated individuals and that the differential treatment was based on
impermissible considerations.”). Accordingly, in the instant case, even assuming
Plaintiff could establish either his First Amendment access to courts claim, or his
Fourteenth Amendment medical indifference claim, Plaintiff, to prevail on an equal
protection claim, must also establish the constitutional denial was without any rational
basis. See Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001) (affirming
district court’s grant of summary judgment in favor of defendants on plaintiff’s equal
protection claim in the absence of any evidence in the record supporting a jury’s finding
of intentional discrimination in terminating plaintiff from police department for valid use
of prescription drug, while continuing to employ another officer who was prescribed the
same drug). Plaintiff has not, however, pointed to any evidence establishing any basis
on which a reasonable jury could find that other, similarly situated detainees, either
were provided with superior legal resources, or more prompt medical attention for

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Plaintiff’s dental needs. Accordingly, summary judgment is GRANTED on any equal
protection claim asserted by Plaintiff.
C.

Qualified Immunity

Although the undersigned is recommending Defendants’ Motion for summary
judgment be granted on the merits of each of Plaintiff’s claims, Moving Defendants’
argument that Moving Defendants are qualifiedly immune from liability on each of
Plaintiff’s claims is addressed in the alternative in the interest of completeness should
the District Judge disagree with the initial recommendations. Moving Defendants argue
that even if the court were to find any violation of Plaintiff’s rights, none of the rights was
so clearly established such that Moving Defendants are entitled to qualified immunity on
each of Plaintiff’s claims. Defendants’ Memorandum at 20-25. In further support of
summary judgment, Moving Defendants point to Plaintiff’s failure to argue in opposition
to qualified immunity. Defendants’ Reply at 8-9.
Inasmuch as Moving Defendants maintain they are qualifiedly immune from
liability in this action, “[q]ualified immunity shields government officials from civil suits for
damages ‘insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known,’” Costello v. City
of Burlington, 632 F.3d 41, 51 (2d Cir. 2011) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)), as enunciated by the Supreme Court or, as in this case, by the
Second Circuit. Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2009). In determining
whether a particular right was, at the time of the incident in question, clearly established,
the court considers three factors: “(1) whether the right in question was defined with
‘reasonable specificity’; (2) whether the decisional law of the Supreme Court and the

35 

applicable circuit court support the existence of the right in question; and (3) whether
under preexisting law a reasonable defendant official would have understood that his or
her acts were unlawful.” Higazy, 505 F.3d at 169 (quoting Jermosen v. Smith, 945 F.2d
547, 550 (2d Cir.1991)). “[E]ven where the law is ‘clearly established’ and the scope of
an official's permissible conduct is ‘clearly defined,’ the qualified immunity defense also
protects an official if it was ‘objectively reasonable’ for him at the time of the challenged
action to believe that his acts were lawful.” Id. at 169–70 (citing Anderson v. Creighton,
483 U.S. 635, 641 (1987)). Whether a right was clearly established at the relevant time
is a matter of law, while “whether a defendant official's conduct was objectively
reasonable, i.e., whether a reasonable official would reasonably believe his conduct did
not violate a clearly established right, is a mixed question of law and fact.” Id. at 170
(citing Kerman v. City of New York, 374 F.3d 93, 108-09 (2d Cir. 2004)). Furthermore,
“‘[a]lthough a conclusion that the defendant official's conduct was objectively reasonable
as a matter of law may be appropriate where there is no dispute as to the material
historical facts, if there is such a dispute, the factual questions must be resolved by the
factfinder.’” Id. (quoting Kerman v. City of New York, 374 F.3d 93, 108–09 (2d
Cir.2004)). Here, Moving Defendants would be shielded by qualified immunity from
liability on Plaintiff’s medical indifference claim, but not on the access to courts claim.
In particular, it was well-established by September 2014, when Plaintiff maintains
the Jail’s law library and legal assistance were inadequate to permit Plaintiff to pursue
post-conviction relief, that those incarcerated must be provided “with the tools they
‘need in order to attach their sentences, directly or collaterally, and in order to challenge
the conditions of their confinement,’” Bourdon, 386 F.3d at 93 (quoting Lewis, 518 U.S.

36 

at 355, and citing Bounds, 430 U.S. at 825), and that this “right has particular
application to prisoners seeking access to the courts, where they are defending against
criminal charges, challenging convictions and sentences, and raising civil rights claims
against the conditions of their confinement.” Bourdon, 386 F.3d 92 n. 8). As such,
Moving Defendants could not reasonably have believed that denying Plaintiff adequate
legal resources to pursue his collateral attacks on his Florida conviction, specifically, his
sentence as a career felony offender, would not have violated Plaintiff's constitutional
right of access to the courts.27
In contrast, as of 2014, the legal standard applicable to Plaintiff’s medical
indifference claim was not so clearly established. In particular, prior to the Supreme
Court’s pronouncement in Kingsley, 135 S.Ct. 2466, decided in 2015, that mandated the
second element of a pretrial detainee’s conditions of confinement claim as an objective
standard, at issue in Kingsley was a claim of excessive force, not medical indifference.
Significantly, the Supreme Court has yet to apply Kingsley to a medical indifference
claim, and the Second Circuit did not do so until this year when it construed the second
element of such claim as “whether a ‘reasonable person’ would appreciate the risk to
which the detainee was subjected,” Bruno, 727 Fed.Appx. at 720 (quoting Darnell, 849
F.3d at 29). Accordingly, because the second element of a medical indifference claim
was not clearly decided at the time relevant to Plaintiff’s claim regarding his abscessed
tooth, Moving Defendants would be qualifiedly immune from liability on such claim.

27

Although the initial recommendation is that Plaintiff’s representation by legal counsel throughout the
pendency of the criminal proceedings defeats his access to courts claim on the merits, this alternative
qualified immunity determination applies regardless of such legal representation.

37 

Accordingly, as to Moving Defendants’ alternative qualified immunity argument,
Defendants’ Motion should be DENIED with regard to the access to courts claim, but
should be GRANTED with regard to the medical indifference claim.
2.

Sanctions
Plaintiff moves for sanctions against Moving Defendants’ attorneys, Webster

Szanyi, LLP, and Ryan Smith, of Counsel, for violating HIPAA privacy provisions by
forwarding Plaintiff’s medical records to other, unidentified parties. Plaintiff’s Motion at
1-2. In opposition, Moving Defendants maintain that Plaintiff, by placing his medical
condition at issue, has waived any right to confidentiality in his medical records, Smith
Declaration ¶ 4, and, in any event, the only medical records disclosed by Moving
Defendants were those pertaining to Plaintiff’s dental issue. Id. ¶ 5. Plaintiff has not
argued in further support of his motion.
By commencing this action seeking damages for an asserted denial of
appropriate medical treatment, Plaintiff has placed his relevant medical condition at
issue, and thereby has waived any right to privacy or confidential protection otherwise
applicable to his medical records under HIPAA. See Soto v. The City of New York,
2015 WL 6503819, at ** 2-3 (S.D.N.Y. Oct. 28, 2015) (ordering plaintiffs who
commenced § 1983 excessive force claim against defendants to provide HIPAAcompliant release authorizing defense counsel access to plaintiffs’ medical records
because plaintiffs had put their medical condition at issue); see also In re Sims, 534
F.3d 117, 132, 134 (2d Cir. 2008) (waiver is required “in the interests of fairness,” so
that a party cannot “use the privilege both as a shield and a sword” (internal quotation

38 

marks and citation omitted)). Accordingly, there is no merit to Plaintiff’s Motion seeking
sanctions for HIPAA violations, and Plaintiff’s Motion is DENIED.

CONCLUSION
Defendants’ Motion (Dkt. 188) should be GRANTED on the merits of Plaintiff’s
claims, and the action should be DISMISSED as against Moving Defendants;
alternatively, with regard to qualified immunity, Defendants’ Motion should be
GRANTED as to the medical indifference claim, and should be DENIED as to the
access to courts claim; Plaintiff’s Motion (Dkt. 198), is DENIED.

Respectfully submitted, as to Defendants’
Motion to Dismiss or for Summary Judgment,
/s/ Leslie G. Foschio 

______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
SO ORDERED, as to Plaintiff’s
Motion for Sanctions.
/s/ Leslie G. Foschio  
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

September 27, 2018
Buffalo, New York

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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
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
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio  
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

September 27, 2018
Buffalo, New York

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