Barclay v. State of New York et al

Filing 99

DECISION AND ORDER granting in part and denying in part 92 Motion for Summary Judgment. Defendants motion [#92] for partial summary judgment is granted in part and denied in part. The application is granted as to the John Doe claims and the failure to protect claim against Knapp-David, and those claims are dismissed. The application is denied as to Plaintiffs racial discrimination claim. Signed by Hon. Charles J. Siragusa on 10/17/13. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

H. PATRICK BARCLAY, 97A5659
Plaintiff,
vs

DECISION AND ORDER
03-CV-6585 CJS

OFFICER POLAND, et al.,
Defendants.

INTRODUCTION
Plaintiff was formerly an inmate in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”). Plaintiff, proceeding pro se, maintains
that Defendants violated his federal constitutional rights in various ways. Now before the Court
is Defendants’ motion [#92] for partial summary judgment.1 The application is granted in part
and denied in part.
BACKGROUND
The Court has already issued several written decisions in this action, addressing
motions to amend by Plaintiff and a motion to dismiss by Defendants. The combined effect of
those decisions is that the following claims are now pending: A failure to protect claim against
Counselor Warner (or Warne) (“Warner”) and Director of Classification and Movement Theresa
Knapp-David (“Knapp-David”); a retaliation claim against Corrections Officer Poland (“Poland”),
Corrections Officer Lowe (“Lowe”), Corrections Officer Mehnert (“Mehnert”), Corrections Officer
Schuck (“Schuck”), Counselor Roach (“Roach”), Education Director Michael Szemplenski

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Defendants provided Plaintiff with the "Irby" Notice to Pro Se Litigants as required by Local Rule of
Civil Procedure 56.2. (Docket No. [#92-2] ).

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(“Szemplenski”), Warner, Corrections Officer Boxer (“Boxer”) and Deputy Commissioner John
Nutal (“Nutal”); an excessive force claim against Lowe, Mehnert and John Doe defendants; a
denial of medical care claim against Lowe, Mehnert and John Doe defendants; a procedural
due process claim against Superintendent James Conway (“Conway”), Director of Special
Housing Donald Selsky (“Selsky”), Lowe, Mehnert and Schuck; a claim for denial of access to
grievance procedures/denial of court access against Conway, Selsky, Assistant Commissioner
Edward McSweeney (“McSweeney”) and John Doe defendants; a claim for denial of religious
practices against Lowe and John Doe defendants; an equal protection racial discrimination
claim against Warner, Roach and Szemplenski; and a racial discrimination claim under § 1983
and § 1981, in connection with educational programming, apparently also against Warner,
Roach and Szemplenski. See, Docket nos. [#7] at pp. 7, 9; [#17]; [#52]; [#67]; [#76] & [#77].
On November 21, 2011, Plaintiff filed a complaint [#80] that was purportedly in response
to the Court’s Order [#76] granting his motion to amend [#69]. However, Plaintiff attempted to
assert various claims beyond what the Court permitted, such as claims for libel, defamation,
slander, fraud, conspiracy to defraud, negligent misrepresentation, fraudulent inducement,
fraudulent misrepresentation and fraud in the factum. None of those claims are part of this
action. The only claims that are part of this action are those identified in the preceding
paragraph.
In connection with these claims Plaintiff has sued numerous “John Doe” defendants.
By Decision and Order [#7] issued on December 14, 2004, the Court directed Plaintiff to
“identify the ‘John Doe’ defendants named in the complaint through discovery as soon as
possible, and then apply to this Court for an order directing amendment of the caption and
service on these defendants as soon as they have been identified.” Plaintiff subsequently had
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several years in which to conduct discovery. In that regard, Plaintiff filed at least two motions
to compel. On June 22, 2010, Plaintiff filed a motion to compel [#61] which alleged that
Defendants had “failed to produce the discipline records on the Defendants in this action that
relevant to Plaintiff’s prosecution of this action, and the ‘John Doe’ defendants.” [sic] Docket
No. [#61] at ¶ 46. On January 21, 2011, the Honorable Marian W. Payson, United States
Magistrate Judge, issued a Decision and Order [#74] denying that application. On May 1,
2012, Magistrate Judge Payson issued a final Scheduling Order [#85] in this action, which
directed that all discovery be completed by October 2, 2012, and that all motions to compel be
made returnable no later than November 2, 2012. See, Docket no. [#85] at ¶ 2. Plaintiff did not
file any additional motions to compel, and discovery is closed.
On January 18, 2013, Defendants filed the subject motion [#92] for partial summary
judgment. The motion seeks essentially three types of relief: 1) an order granting summary
judgment as to the John Doe defendants, who have never been identified or served; 2) an order
granting summary judgment to Knapp-David on the “failure to protect claim”; and 3) an order
granting summary judgment as to the racial discrimination claims. Defendants’ motion also
requested summary judgment as to state-law fraud claims, however, those were already
dismissed by the Court. See, docket no. [#17] at p. 4; docket no. [#76] at p. 2, n. 3; docket no.
[#77]. Consequently, the state tort claims are not a part of this action.2
On May 8, 2013, Plaintiff filed a response [#97] to the motion.
The Court directed that Defendants could submit reply papers by May 22, 2013,
however, they chose not to do so.

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Plaintiff acknowledges as much, since in his opposition papers he asks the Court to “reconsider”
its decision regarding the tort claims. See, Plaintiff’s Response [#97] at p. 11. That request is denied.

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DISCUSSION
Summary judgment may not be granted unless “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). The underlying facts contained in affidavits, attached exhibits, and
depositions, must be viewed in the light most favorable to the non-moving party. U.S. v.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Summary judgment is
appropriate only where, “after drawing all reasonable inferences in favor of the party against
whom summary judgment is sought, no reasonable trier of fact could find in favor of the
non-moving party.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). Moreover, since Plaintiff
is proceeding pro se, the Court is required to construe his submissions liberally, “to raise the
strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The John Doe Claims
Defendants contend that the John Doe defendants should be dismissed from the action,
since Plaintiff has failed to identify or join them within the time allowed by the Court, despite
having had ample opportunity to conduct discovery. Plaintiff counters that his failure to learn
the names of the John Doe defendants is defendants’ fault. However, the Court disagrees.
Plaintiff had the opportunity to learn the names of the John Doe defendants through discovery,
but failed to do so. Plaintiff has not identified the John Doe defendants or served them, and
the Court has no jurisdiction over them. Accordingly, the John Doe defendant claims are
dismissed. See, Delrosario v. City of New York, No. 07 Civ.2027(RJS), 2010 WL 882990 at
*5 (S.D.N.Y. Mar. 4, 2010) (“Where discovery has closed and the Plaintiff has had ample time
and opportunity to identify and serve John Doe Defendants, it is appropriate to dismiss those

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Defendants without prejudice.”) (citations omitted).
The Failure-To-Protect Claim Against Knapp-David
Plaintiff contends that after a corrections officer threatened to harm him, he wrote a letter
to DOCCS Commissioner Glenn Goord, dated July 8, 2002, requesting a transfer to another
facility. Second Amended Complaint [#80] at ¶ 12. He further contends that on July 30, 2002,
Knapp-David responded on Goord’s behalf, and denied the transfer request, stating that
Plaintiff’s current placement was appropriate, but indicating that he could still pursue a transfer
at the facility level. Id. at ¶ 13. Specifically, Plaintiff’s letter to Goord, entitled “Re: Request for
Transfer,” states:
I hereby request that you direct your staff supervisor for movement and control
to have I H. Patrick Barclay, 97A5659 forthwith transferred from Attica
Correctional Facility to another correctional facility due to the following.
That I am currently engaged with an active lawsuit in the United States District
Court Western District of New York against the State of New York[,] the
Superintendent of Attica Correctional Facility Mr. Herbert, the medical doctor
‘Robert Takos,’ and some of the corrections officers. All employees at Attica
currently. The Court’s index numbers are 01-CV-6001 B and 01-CV-6109 CJS
(B).
That upon my return to Attica Correctional Facility from two and more years of
illegal confinement at Upstate Correctional Facility, 809 Barehill Road, Malone
New York 12953 Special Housing Unit, which was administratively reversed on
May 30, 2002, I was threatened by the Admittance Officers. Moreover, I had
filed a grievance as to the fact and the retaliation practices against me at Attica.
I am a disable prisoner who ambulates with the aid of a ca[ne] and because of
my ongoing litigation against one of the medical doctor ‘Robert Takos’ I has
suffered retaliatory practices the medical staff member Robert S. Magre, R.P.A.
DEA# 0727125 who is a strong supporter of Dr. Robert Takos, M.D.

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That so far the treatment given to me by Mr. Magre and the correction officers
has placed my life, care and custody in gross danger requiring my forthwith
transfer from Attica at this end.
Docket No. [#92-3], Sheehan Declaration, Ex. B. On July 30, 2002, Knapp-David sent a
responding letter which states:
Commissioner Goord has referred your June 8, 2002, letter to me for a response.
Your current placement is appropriate. You should seek the assistance of your
assigned correction counselor as your counselor is in the best position to advise
you in matters regarding transfer and to make an initial evaluation of suitability
for same. Procedurally, transfers are initiated at the facility level and forwarded
to Central Office for a final decision.
Id. Over three months later, on November 20, 2002, Plaintiff contends that Corrections Officers
Lowe and Mehnert assaulted him, breaking a bone in his hand. Id. at ¶ 35.3 Plaintiff contends
that Knapp-David is liable for failing to protect him from being assaulted. Id. at ¶ ¶ 76-86.
Knapp-David maintains, however, that she did not have notice that Plaintiff was in
imminent danger. See, Def. Memo of Law [#92-4] at p. 9 (“[P]laintiff’s letter to former defendant
Goord was not sufficiently specific about the actual significant risk that plaintiff alleges that he
faced. . . . [P]laintiff has not set forth specific facts showing that Knapp-David was aware of
a specific threat.”). Plaintiff responds that his letter gave notice that his “life, care and custody
[were] in gross danger.” Pl. Response [#97] at p. 13. However, the Court disagrees.
“A plaintiff may recovery for injuries received while in custody ‘if the injury resulted from
the defendant prison official's purposeful subjection of the prisoner to a ‘substantial risk of

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The incident on November 20, 2002, involved Plaintiff not being allowed to attend a Ramadan dinner. See,
Pl. Deposition at p. 46, 48. At that time Plaintiff was housed in the Minimum Privilege Company area of the cell
block. Id. at p. 58.

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serious harm’ or from the official's deliberate indifference to that risk.’” Murray v. Pataki, No.
9:03-CV-1263 (LEK/RFT), 2007 WL 956941 at *6 (N.D.N.Y. Mar. 29, 2007) (quoting Fischl v.
Armitage, 128 F.3d 50, 55 (2d Cir.1997)), affirmed, 378 Fed.Appx. 50 (2d Cir. May 24, 2010).
In that regard, Farmer v. Brennan established a two-pronged test:
First, the prisoner must have been “incarcerated under conditions posing a
substantial risk of serious harm.” [Farmer v. Brennan, 511 U.S. 825,834, 114
S.Ct. 1970 (1994)]. Second, the prison official must have shown “deliberate
indifference” to the prisoner's safety. Id. Deliberate indifference exists when “the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 837.
Hines v. Lacy, 189 F.3d 460, 1999 WL 642915 at *3 (2d Cir. Aug. 20, 1999) (table). In this
case, Plaintiff’s vague letter could not have alerted Knapp-David that he was facing a
substantial risk of serious harm. Nor does the record indicate that Knapp-David was indifferent
to his request. Instead, she merely advised Plaintiff that he should discuss his transfer request
with his counselor. Accordingly, Knapp-David is entitled to summary judgment on the failure-toprotect claim.
The Racial Discrimination Claims
Plaintiff makes a number of vague allegations that Defendants discriminated against him
because of his race, in violation of § 1983 and § 1981. For example, Plaintiff contends that
after he filed grievances he was “ill treated” because he is black. Id. at ¶ ¶ 56-59. He further
contends that defendants violated his procedural due process rights in connection with a
disciplinary hearing in part because of “racial discrimination.” Id. at ¶ ¶ 61, 67. Plaintiff also
includes allegations of racial discrimination as part of his religious discrimination claim. Id. at

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¶ 91.
More specifically, though, Plaintiff contends that he suffered racial discrimination in
connection with his educational programming at Attica. Plaintiff contends that Warner, Roach
and Szemplenski attempted to force him into a “pre-GED” program, based on fabricated test
scores because he is black. The primary gist of Plaintiff’s claim is that defendants falsely
indicated that he took an educational placement test and scored at the 5th grade or 6th grade
level. See, docket no. [#80] at ¶ 151 (“[Defendants] caused to be made false
representation/statement on D.O.C.S. computer that Plaintiff took a test and scored at the 5th
and 6th grade level because of their racial discrimination and hate towards Plaintiff, a black man
in prison having an advance level education and . . . refused to program him appropriately
educationally.”). Plaintiff maintains that he never took such a test. Id. at ¶ 155 (“Defendants
knew that no test was ever given to Plaintiff, or taken by Plaintiff, since being sentenced to
[DOCCS].”). Plaintiff asserts that defendants practiced
racial discrimination against him as a black person in his education specifically
by making false statement on their computers claiming to have given Plaintiff a
test for which he score at the 5th and 6th grade level, and defendants published
same to the world viewing. . . . the defendants intentional racial discrimination
against Plaintiff was furthered to be preventing Plaintiff from doing any sort of
graduate studies while in prison, and to be preventing him from teaching any
other racial minority black persons maritime studies of circumnavigation due to
their racial animus intention. Defendants specifically had total access to
Plaintiff’s sentencing order that clearly stated his higher than high school
program, and intentionally refused to follow such educational lead, and without
seeking further educational information from the court of law as to her sentencing
document order or from Plaintiff on his educational background, defendants with
their racial discrimination intent made false statement on D.O.C.S. computers.
. . . No white prisoner who was similarly situated was treated with such hate,
and indifference as generated against Plaintiff, a black man[.]

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Id. at ¶ ¶ 95-97, 101.
Plaintiff indicates that he provided defendants with information to prove his true
educational level, but they persisted in attempting to force him into a pre-GED program.
Plaintiff alleges that
D.O.C.S. officials has a very bad policy in seeking out black prisoners with higher
educational institute diploma at undergraduate and graduate levels to be
demanding from them lower level diploma (such as high school) only to be
practicing racial discrimination and preventing them from certain programs, and
no doing the same with white ..... [sic]
Second Amended Complaint [#80] at ¶ 30; see also id. at ¶ 159 (“[Defendants] did in fact
encourage themselves to be racial discriminative, and having jealously, hated Plaintiff, a black
man imprisoned with a college degree from the seamen church institute, and licentiate
merchant marine officer third mate.” [sic] ).
Defendants contend that Plaintiff cannot show that there was an intent to discriminate
against him. More specifically, Defendants indicate that during Plaintiff’s deposition he made
only a single reference to “racial slurs.” Def. Memo of Law [#92-4] at pp. 10-11 (referring to
Plaintiff’s deposition at p. 78). In that regard, at deposition, Plaintiff actually testified in pertinent
part as follows:
Q. You’re also making a claim of racial discrimination and violation of equal
protection? . . . [W]hat does that claim relate to?
A. Well, that’s relating to the treatment that I got that was given – that was quite
different to other, you know, equally situated individuals, okay, who were white.
They were prisoners, we all were in Minimum Privilege, but they were given
privileges that was supposed to also be given to me. Because the division of
privileges to those who were incarcerated, okay, should be equally divided
amongst all the individuals at the time in Minimum Privilege. But in my case, that
division was denied me, and it was given to others.
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Q. So this claim of racial discrimination in violation of equal protection . . . relates
to your being placed in Minimum Privilege Company?
A. Yes, and my education and everything, too, yes.
Q. And then you’re also asserting a claim for racial discrimination with respect
to education; is that right?
A. Yes, yes.
Pl. Dep. transcript at pp. 52-53. Plaintiff indicated generally that he had been subjected to
racial slurs. Id. at 53 (“I would not even call it epithets, there were racial slurs that was, you
know, generated against me.”); id. at p. 65 (Indicating that Lowe and Mehnert used racial slurs
when they allegedly assaulted him in November 2002: “Well, they were using all the nigger
slurs. . . . They were calling me rapist, they were calling me all different names.”); id. at 86-87
(Plaintiff vaguely suggested that defendant Boxer used some “nigger” reference: “He said I’m
trying to be too smart, you know you niggering thing, you this and you that.” A few moments
later, Plaintiff reiterated what Boxer supposedly said but omitted any “nigger” reference: “He
said, ‘You’re not going to get no recreation.’ He said, ‘If you want recreation, then go to PC or
go into GED class because you think you are too smart.”).
Defendants maintain that such testimony is too vague and insubstantial to survive
summary judgment. Defendant’s argument on this point is cursory, and cites just two cases
– Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) and Hogan v. Fischer, 2012 U.S. Dist.
LEXIS 146511 at *16-17 [2012 WL 4845609] (W.D.N.Y. Oct. 10, 2012). In Purcell v. Coughlin,
the inmate-plaintiff complained that the defendants “called him names” on one occasion. See,
id., 790 F.2d at 264. The Second Circuit affirmed the dismissal of the claim, since the plaintiff

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did not allege “any appreciable injury” in connection with the name-calling. Id. at 265.
Defendants apparently cite Hogan v. Fischer, which is not a race discrimination case, for the
same proposition, that verbal threats or harassment, “unaccompanied by any quantifiable
injury, does not constitute the violation of a federally protected right.” Hogan v. Fischer, 2012
WL 4845609 at *6. However, in the instant case, Plaintiff is not basing his racial discrimination
claim on verbal slurs or harassment. Rather, he is alleging that Defendants treated him
differently than white inmates with regard to certain aspects of his confinement, including his
educational placement. Plaintiff’s reference to racial slurs apparently goes to support his
contention that Defendants’ actions were motivated by discriminatory animus. Accordingly,
neither Purcell nor Hogan is on point. Defendants have not demonstrated that they are entitled
to judgment as a matter of law on Plaintiff’s racial discrimination claim, and consequently their
motion is denied as to that claim.
CONCLUSION
Defendants’ motion [#92] for partial summary judgment is granted in part and denied in
part. The application is granted as to the “John Doe” claims and the “failure to protect” claim
against Knapp-David, and those claims are dismissed. The application is denied as to
Plaintiff’s racial discrimination claim.
So Ordered.
Dated:

Rochester, New York
October 17, 2013 ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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