Gssime v. Burge et al
Filing
52
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 38 Plaintiff's Motion for Summary Judgment with prejudice; denying 46 Plaintiff's Motion with prejudice; granting 48 Defendants' Motion for Summary Judgment and dismissing the Complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/8/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________
SAID GSSIME,
DECISION AND ORDER
No. 6:08-CV-6404(MAT)
Plaintiff,
-vsMr. JOHN BURGE, Elmira C.F.
Superintendent; CORRECTION
OFFICER Bennett; Lieutenant
SCHORNSTHEMER,
Defendants.
_______________________________
I.
Introduction
Pro
se
plaintiff
Said
Gssime
(“Gssime”
or
“Plaintiff”)
instituted this action pursuant to 42 U.S.C. § 1983 asserting that
Defendants, employees of New York State Department of Corrections
and Community Supervision (“DOCCS”), violated his constitutional
rights while he was an inmate in their custody. Presently pending
before the Court are the parties’ competing motions for summary
judgment (Dkt ##38, 48) pursuant to Fed. R. Civ. P. 56(c). Also
pending
is
Plaintiff’s
Motion
Pursuant
to
28
U.S.C.
§
2403
(Dkt #46).
II.
Factual Background
Plaintiff’s supporting allegations cover a number of disparate
topics. To avoid unnecessary repetition, the facts pertinent to the
alleged constitutional violations will be set forth below in the
sections addressing Plaintiff’s specific claims.
III. General Legal Principles
A.
42 U.S.C. § 1983
In order to state a claim under 42 U.S.C.
plaintiff
must
establish
the
following
elements:
§ 1983, the
(1)
conduct
attributable at least in part to a person acting under color of
state law, and (2) deprivation, as the result of the challenged
conduct,
of
a
right,
privilege,
or
immunity
secured
by
the
Constitution or laws of the United States. Dwares v. City of
New York, 985 F.2d 94, 98 (2d Cir.1993). Section 1983 “is not
itself a source of substantive rights,” but merely provides “a
method for vindicating federal rights elsewhere conferred.” Graham
v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan,
443 U.S. 137, 144, n. 3 (1979)).
B.
Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that
there exists “no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” FED. R.
CIV. P. 56(c); see generally, e.g., Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary judgment
motion may properly be made in reliance solely on the ‘pleadings,
depositions, answers to interrogatories, and admissions on file.’”
Celotex Corp., 477 U.S. at 324.
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If the movant meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine issue
as to any material fact actually does exist. Id. at 331; see also
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (citing 10A C. Wright, A. Miller, & M. Kane,
FEDERAL PRACTICE AND PROCEDURE § 2725, pp. 93-95 (1983)). “[A] complete
failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”
Celotex Corp., 477 U.S. at 323. The moving party thus is “entitled
to a judgment as a matter of law” because the nonmoving party has
failed to make a sufficient showing on an essential element of its
case with respect to which it has the burden of proof. Id.
The
nonmoving
party
must
produce
“significant
probative
evidence” demonstrating that a material factual dispute does in
fact exist; otherwise, summary judgment is appropriate. Anderson,
477 U.S. at 249 (citation omitted). In order to establish a
material issue of fact, the nonmovant need only provide “sufficient
evidence supporting the claimed factual dispute” such that a “jury
or judge [is required] to resolve the parties’ differing versions
of the truth at trial.” Id. at 248–49 (quoting First Nat’l Bank of
Arizona v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968)). Thus,
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the “purpose of summary judgment is to ‘pierce the pleadings and to
assess the proof in order to see whether there is a genuine need
for trial.’” Matsushita, 475 U .S. at 587 (quoting FED. R. CIV.
P. 56(e) advisory committee’s note on 1963 amendments).
IV.
Discussion
A.
Eighth Amendment Claim Against Correction Officer Bennett
Plaintiff alleges that on February 9, 2007, he was subjected
to
a
(“CO
pat-frisk,
Bennett”)
during
fondled
which
his
Correction
genitals.
As
an
Officer
Bennett
initial
matter,
Plaintiff has never effectuated service of the complaint upon
CO Bennett, and therefore the claim against him is dismissible
without prejudice pursuant to Fed. R. Civ. P. 4(m) (“If a defendant
is not served within 120 days after the complaint is filed, the
court–on motion or on its own after notice to the plaintiff–must
dismiss the action without prejudice against that defendant or
order that service be made within a specified time.”).
In any event, the Court finds that Plaintiff’s allegation that
his genitals were fondled during a pat-frisk fails to articulate an
actionable constitutional claim, and therefore the claim against
CO
Bennett
Castleberry,
must
be
dismissed
364
F.
Supp.2d
with
319,
prejudice. E.g.,
321
(W.D.N.Y.
Davis v.
2005)
(“Even
assuming that Casselberry did touch plaintiff’s penis, however, I
find that insufficient to state a constitutional claim.”) (citing
Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997) (holding that
-4-
several instances of alleged sexual harassment and touching, though
“despicable” and “potentially . . . the basis of state tort
actions,” “d[id] not involve a harm of federal constitutional
proportions as defined by the Supreme Court”) (citations omitted);
Williams v. Keane, No. 95 CIV. 0379, 1997 WL 527677, at *1
(S.D.N.Y. Aug. 25, 1997)).
B.
Due Process Claim Against Lieutenant Schornstemer
CO Bennett issued a misbehavior report against Plaintiff
following
the
February
9,
2007
pat-frisk
incident,
and
Lieutenant Schornstemer conducted the ensuing disciplinary hearing.
Lieutenant Schornstemer found Plaintiff guilty and sentenced him to
30 days in keeplock. Plaintiff claims that Lieutenant Schornstemer
discriminated against him and acted with retaliatory animus during
the disciplinary hearing.
To succeed on a procedural due process claim stemming from
segregated confinement, the inmate must demonstrate both that the
confinement or restraint creates an “atypical and significant
hardship” under Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293,
2300 (1995); and that the state has granted its inmates, by
regulation or statute, a protected liberty interest in remaining
free from that confinement or restraint. Frazier v. Coughlin, 81
F.3d 313, 317 (2d Cir. 1996). Post-Sandin, the decisions in the
Second Circuit are unanimous that keeplock or SHU confinement of 30
days
or
less
in
a
New
York
prison
-5-
is
not
an
“atypical
or
significant hardship” under Sandin. Williams v. Keane, No. 95 CIV.
0379 AJP JGK, 1997 WL 527677, at *6 (S.D.N.Y. Aug. 25, 1997)
(citing, inter alia, Frazier v. Coughlin, 81 F.3d at 317 (12 days
in SHU); Sullivan v. Schweikhard, 95 Civ. 0276, 1997 WL 349983, at
*3 (S.D.N.Y. June 25, 1997) (9 days in keeplock); Duncan v. Keane,
95 Civ. 1090, 1997 WL 328070, at *2 (S.D.N.Y. June 13, 1997)
(30 days in keeplock); Harris v. Keane, 962 F. Supp. 397, 404
(S.D.N.Y. 1997) (23 days in keeplock); Ramirez v. Coughlin, 93 Civ.
0765, 1996 WL 194324, at *3-4 (S.D.N.Y. April 22, 1996) (30 days
combination of SHU and keeplock)). Because Plaintiff has not
established a protectible liberty interest in remaining free from
30 days of keeplock confinement, his due process claim fails. See
Frazier, 81 F.3d at 317-18 (“Frazier cannot establish a protected
liberty interest in remaining in the general prison population, and
dismissal of his procedural due process claim was proper.”).
C.
Deliberate
Medical
Superintendent Burge
Indifference
Claim
Against
Plaintiff alleges that he was “denied access to dental surgery
or outside medical need because the Facility at that time was
operating without dental departement [sic] and for several months
defendant Mr. Burge the Superintendent refuse to hire a dentist or
to transffered [sic] inmates to outside Facility dental Immergency
[sic] and care.” Plaintiff’s Affidavit in Support of Motion for
Summary Judgment, ¶ 3.
-6-
Before
arriving
at
Elmira
Correctional
Facility
(“ECF”),
Plaintiff had complained on February 12, 2006, about pain in the
last lower molar on the left side (tooth #18) and opined that it
had to be removed. On August 9, 2006, Plaintiff submitted a note
stating that he had a dental emergency, and he was seen on August
11, 2006, and August 15, 2006, by Dr. Gibson. An x-ray of tooth #18
revealed severe bone loss around both root apices. Plaintiff
informed Dr. Gibson that he hoped to keep #18 in place until he was
going
to
be
released
from
prison
in
about
one
year’s
time.
Dr. Gibson advised Plaintiff that he believed Plaintiff would lose
the tooth within a year. Dr. Gibson gave Plaintiff prescriptions
for penicillin and Motrin, and told him to schedule a follow-up
appointment if needed.
From September 5, 2006, through January 10, 2007, Elmira
Correctional Facility (“ECF”) was without a facility dentist. See
Dkt #48-4. The facility dentist apparently was serving in the Iraq
war. During the facility dentist’s absence, three dentists from
other DOCCS facilities would see inmates each week at ECF. Id.
Superintendent Burge indicates that DOCCS Central Office in Albany
was directly responsible for hiring medical staff, and that he
played only a limited role in those decisions. Id.
Plaintiff’s records (Dkt #49) show that from October 2006, to
January 2007, he consulted with, and received treatment from,
dental care
providers
at ECF
for
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his
various
complaints.
On
January 12, 2007, Plaintiff saw Dr. Haag due to his continued pain
in tooth #18. Plaintiff gave his informed consent to have tooth #18
extracted by signing a consent form. After extracting tooth #18,
Dr. Haag prescribed Plaintiff penicillin as prophylactic measure
against infection and Motrin for pain. See Dkt #48-3. Plaintiff, at
his deposition, could not recall seeing Dr. Haag in January 2007,
and
claimed
that
he
personally
had
removed
tooth
#18.
See
Deposition of Said Gssime (“Gssime Dep.”) at 77-82, 98-100.1
On March 12, 2007, Plaintiff filed Grievance #EL32-343-07
complaining
that
ECF’s
medical
and
dental
departments
were
“extremely sub-par”2 and requestinig that ECF hire physicians and
dentists. Superintendent Burge conducted an investigation, as part
of which Plaintiff was interviewed. However, Plaintiff offered no
witnesses or evidence to support his claims. Superintendent Burge
noted in his March 19, 2007 denial of Plaintiff’s grievance that
ECF had been attempting to hire a dentist and a physician since
vacancies
existed,
and
recent
hires
for
both
positions
had
occurred.
1
Plaintiff has a history of mental health problems dating back
to 1995. In 1997, Plaintiff fell and suffered a brain injury which
caused him to have very little memory between 1997 and 2003. See
Gssime Dep. at 19-26, 105.
2
The grievance packet for Grievance #EL32-343-07 has been
submitted as an Attachment the Declaration of John Burge (Dkt #484).
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The Inmate Grievance Resolution Committee (“IGRC”) agreed with
Superintendent Burge that Plaintiff’s grievance had no merit. The
IGRC noted that
[a]ccording to Dental Records, the Grievant corresponded
with them about an issue in November 2006. The dentist
subsequently saw him on January 12, 2007. Since that
time, no requests or complaints have been received.
Attachment to
Dkt #48-4.
Likewise, the Central Office Review Committee found no merit
to Plaintiff’s grievance, noting that “[u]pon full hearing of the
facts
and
circumstances
in
the
instant
case,
and
upon
recommendation of the Division of Health Services,” Superintendent
Burge’s determination should be upheld. Attachment to Dkt #48-4.
In order to establish an Eighth Amendment claim for the denial
of adequate dental or medical care, Plaintiff must plead and prove
that prison officials acted with deliberate indifference to his
serious dental needs. Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976);
other citations omitted)). The Second Circuit has noted that DOCCS
is not constitutionally obligated “to construct a perfect plan for
dental care that exceeds what the average reasonable person would
expect or avail herself of in life outside the prison walls[,]” for
as common experience indicates, “the great majority of . . .
prisoners would not in freedom or on parole enjoy the excellence in
dental care which the plaintiffs understandably seek on their
behalf.” Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986); see
-9-
also id. at 216 (holding that the district court abused its
discretion, in civil rights action by state prisoners seeking
improved dental care, by issuing mandatory preliminary injunction
specifying in detail system of dental care to be provided, instead
of using State department of corrections plan as its guide subject
to
minor
modifications
to
cure
perceived
constitutional
deficiencies in existing system).
Defendants argue that Superintendent Burge did not have the
requisite personal involvement in Plaintiff’s claim the ECF failed
to maintain an adequate program to address the dentistry needs of
its inmates. In general, “[w]hile mere receipt of a letter from a
prisoner is insufficient to establish individual liability, an
official’s actions and responses arising out of a grievance may
[confer such liability].” Bodie v. Morgenthau, 342 F. Supp.2d 193,
203 (S.D.N.Y. 2004) (citing Greenwaldt v. Goughlin, 93 Civ. 6551
(LAP), 1995 WL 232736, at *4 (S.D.N.Y. Apr. 19, 1995)). On the
other hand, “where a supervisory official receives and acts on a
prisoner’s
grievance
or
otherwise
reviews
and
responds
to
a
prisoner’s complaint,” personal involvement will be found. Johnson
v.
Wright,
234
F.
Supp.2d
352,
363
(S.D.N.Y.
2002).
Here,
Superintendent Burge personally investigated Plaintiff’s grievance,
conducted an interview, and issued a written response. Plaintiff
thus has adequately established Superintendent Burge’s personal
-10-
involvement, at least insofar as his Complaint challenges the
overall adequacy of the dental care provided at ECF.
Nonetheless, the Court agrees with Defendants that Plaintiff
has not established that he was denied adequate dental care in
violation of the Eighth Amendment. Although ECF was without a
facility dentist for a period of time, there is no indication that
Plaintiff’s dental needs went unmet. To the contrary, Plaintiff
received regular treatment for his ailments by qualified dental
care providers at ECF. Plaintiff’s claims amount to nothing more
than mere disagreement with the appropriate course of treatment and
dissatisfaction with the level of care he received, neither of
which state actionable claims under the Federal constitution. See
Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir.) (“The Constitution
does
not
command
that
inmates
be
given
the
kind
of
medical
attention that judges would wish to have for themselves.”), vacated
in part as moot, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460
U.S. 1042 (1983).
Plaintiff also suggests that Defendants should be held liable
for alleged injuries that occurred when he supposedly extracted his
own tooth. As Defendants point out, this allegation was not part of
Plaintiff’s grievance, and thus the grievance did not fulfill the
exhaustion requirement’s purpose of “afford[ing] prison officials
time and opportunity to address complaints prior to judicial
review.” Baskerville v. Blot, 224 F. Supp.2d 723, 730 (S.D.N.Y.
-11-
2002)
(quotation
omitted).
The
claim
is
unexhausted
and
not
properly before this Court. See also Donahue v. Bennett, 2004 WL
1875019, at *7-8 (W.D.N.Y. Aug. 17, 2004) (finding that allegations
in grievance were narrower than allegations civil rights complaint,
and therefore inmate’s medical claim should be limited to what is
in
the
grievance).
Moreover,
Plaintiff
cannot
establish
Superintendent Burge’s personal involvement in this regard because
he did not have notice that the extraction of tooth #18 was an
issue. Finally, and most critically, this claim is factually
baseless. Plaintiff’s unsupported assertion that he pulled his own
toot is contradicted by the medical records, which indicate that
his tooth was extracted by a qualified dentist, with Plaintiff’s
consent.
IV.
Plaintiff’s Motion Pursuant to 28 U.S.C. § 2403
Plaintiff has filed a motion (Dkt #46) pursuant to “28 U.S.C.
§ 2403(a)(b) [sic]” in which he restates all of the claims asserted
in his Complaint under 42 U.S.C. § 1983. Section 2403(a) does not
apply because the United States is not a party to this action.
Section 2403(b) provides in relevant part that
[i]n any action, suit, or proceeding in a court of the
United States to which a State or any agency, officer, or
employee
thereof
is
not
a
party,
wherein
the
constitutionality of any statute of that State affecting
the public interest is drawn in question, the court shall
certify such fact to the attorney general of the State,
and shall permit the State to intervene for presentation
of evidence, if evidence is otherwise admissible in the
case,
and
for
argument
on
the
question
of
constitutionality.
-12-
28 U.S.C. § 2403(b). Because Plaintiff has not asserted in his
Section 2403 motion that any state laws are unconstitutional, but
has merely used the motion to repackage his civil rights claims,
Plaintiff’s request to certify a question under 28 U.S.C. § 2403 is
factually and legally baseless. His motion accordingly is denied.
V.
Conclusion
For the foregoing reasons, Plaintiff’s Motion for Summary
Judgment (Dkt #38) is denied with prejudice. Defendants’ Motion for
Summary Judgment (Dkt #48) is granted, and the Complaint (Dkt #1)
is dismissed in its entirety with prejudice. Plaintiff’s Motion
Pursuant to 28 U.S.C. § 2403 (Dkt #46) is denied with prejudice.
The Court hereby certifies pursuant to 28 U.S.C. § 1915(a) that any
appeal from this Decision and Order would not be taken in good
faith, and therefore denies leave to appeal in forma pauperis. The
Clerk of the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 8, 2013
Rochester, New York
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