Neason v. Bienko et al
ORDER granting 27 Defendants' Motion for Summary Judgment and dismissing the second amended complaint 6 . (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/5/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DALE A. NEASON,
DECISION AND ORDER
-vsCaptain BIENKO, Lieutenant PYJAS,
Sergeant GREEN, Superintendent
LIVINGSTON, JANE DOE #1, JANE DOE
#2 and JANE DOE #3,
In this action commenced pursuant to 42 U.S.C. § 1983, pro se
plaintiff Dale A. Neason (“Neason” or “Plaintiff”) alleges that
defendants were deliberately indifferent to his serious medical
needs and his safety in violation of the Eighth Amendment to the
subsequent to the filing of this action.
Defendants have moved for summary judgment dismissing the
Second Amended Complaint, the operative pleading in this case. The
matter was transferred to the undersigned on October 3, 2012. For
the reasons discussed below, Defendants’ First Motion for Summary
Judgment is granted, and the Second Amended Complaint is dismissed.
Unless otherwise noted, the following facts are undisputed,
and are derived from the parties’ statements pursuant to FED. R.
CIV. P. 56.1, affidavits and declarations, and other submissions.
Plaintiff was an inmate at ECHC and ECCF during all times
relevant to this lawsuit. Defendant Superintendent Livingston was,
at all relevant times, the First Deputy Superintendent of the Erie
Captain Bienko (“Bienko”) was and is a Captain with the Erie County
Sheriff’s Office JMD and, at all relevant times, was assigned to
ECCF. Defendants Lieutenant Pyjas and Sergeant Green were at all
relevant times, officers with the JMD. The Jane Doe defendants have
not been identified by Plaintiff.
Plaintiff’s Mental Health Treatment
Neason entered ECHC on February 21, 2009. On February 24,
screening assessment and concluded that Neason was maintaining his
competency and stability, and thus he was capable of living in
general population at ECCF.
On March 5, 2009, Hunter and Psychiatric Nurse Practitioner
Ellen Riley (“Riley”) met with Neason, who was complaining of
having difficulty sleeping and anxiety. Riley prescribed Trazodone
(50 mg) to address the sleep issues and Lexapro (10 mg) to address
the anxiety symptoms. On March 19, 2009, Neason returned for his
impairments and a general depressed mood. Riley increased Neason’s
dosage of Lexapro to 20 mg and increased his dosage of Trazodone to
appointment, at which time he offered no complaints and indicated
his sleeping and mood had improved and he was feeling calmer.
Neason’s medications were continued unchanged, and he was scheduled
for a follow-up visit in four weeks. On April 30, 2009, Neason
stated to Riley and Hunter that he was doing “a lot better” but had
begun perspiring excessively at night. Riley discontinued the
Trazodone and started him on Remeron (15 mg).
At his follow-up appointment on May 21, 2009, Neason reported
that his sleeping had been uninterrupted and his perspiration had
decreased since discontinuing the Trazodone. Riley increased the
dosage of Remeron to 30 mg and maintained the dosage of Lexapro.
Hunter scheduled Neason for a follow-up visit in approximately
On May 24, 2009, Neason was transferred to ECCF. On May 27,
2009, Bonnie McLaughlin, M.S., L.M.H.C. (“McLaughlin”), performed
an initial screening assessment. When Neason saw McLaughlin and
psychiatrist Evelyn Coggins, M.D. (“Dr. Coggins”), he indicated
that he was having continued difficulty sleeping. Dr. Coggins
decreased the Lexapro dosage from 20 mg to 10 mg and left his
Remeron dosage unchanged.
Dr. Coggins, Neason indicated he was still having difficulty
sleeping. Dr. Coggins discontinued the Lexapro and increased the
Remeron dosage to 45 mg. Neason returned to see Dr. Coggins on
August 17, 2009, at which time he reported feeling “unbalanced” and
“down” with low energy. Dr. Coggins decreased the Remeron to 30 mg
At his follow-up appointment on September 3, 2009, Neason
reported continued trouble sleeping and concern related to his
criminal charges. Dr. Coggins increased the Pristiq from 50 mg to
100 mg and decreased the Remeron from 30 mg to 15 mg. Dr. Coggins
approximately four weeks.
reclassified as a security risk and accordingly was transferred
from ECCF, a medium security facility, back to ECHC, a maximum
security facility. After he returned to ECHC, Hunter and Riley
resumed treatment of Neason until his transfer to the custody of
New York State Department of Corrections and Community Supervision
on February 18, 2010. During this period, Neason’s dosage of
discontinued at Neason’s request on February 4, 2010.
Upon admission to ECCF, Neason was examined by a nurse from
the medical department who noted that Neason had been diagnosed
with glaucoma for which he applied eye drops in the morning. Neason
(amlodipine) (10 mg), which is used to treat high blood pressure.
At the conclusion of her examination, the nurse faxed a request to
ECHC for confirmation of the prescriptions, including Norvasc.
On May 26, 2009, physician’s orders were entered for both
prescription was for a ninety-day supply of the medications. On
June 15, 2009, Neason was examined by Stephen Swain (“Swain”), a
physician’s assistants at ECCF. Swain noted that Neason was getting
all of his necessary medications.
On June 24, 2009, Neason was examined in the medical unit at
ECCF, and a ninety-day prescription for hydrochlorothiazide was
ordered to augment the treatment of Neason’s chronic hypertension.
On June 29, 2009, Neason was examined in the medical unit by
Swain at which time Swain diagnosed conjunctivitis in Neason’s left
eye. Swain prescribed a seven-day supply of Polytrim antibiotic eye
drops. On July 21, 2009, Neason presented in ECCF medical unit
complaining of an earache in his right ear and discomfort in his
left eye. A prescription for Cortisporin was ordered to treat
Neason’s earache. With respect to his eye-related complaints,
Neason was referred to the Ross Eye Clinic (“the Clinic”), a
private clinic not affiliated with ECCF. Also during this visit, a
refill for the Xalatan eye drops was ordered.
On July 22, 2009, at 10:30 a.m. Paulette Hill (“Hill”), a
nurse from ECCF, called the Clinic to schedule Neason’s referral
voicemail message. When she failed to receive a call back, Hill
called the Clinic again on July 23, 2009, at 10:05 a.m. Hill spoke
with a receptionist who informed her that Anne, the nurse who
July 27, 2009. The receptionist requested that Hill call back then.
Hill called the Clinic on July 27, 2009 at 1:00 p.m. as
instructed and spoke with Anne. Hill’s notes indicate that Anne
would call her back with a date and time for Neason’s appointment.
After not receiving a call back from Anne, Hill called the Clinic
for a fourth time on July 29, 2009, at 11:30 a.m. Finally, on
August 3, 2009, Hill spoke with Anne who confirmed that Neason had
been scheduled for an appointment on August 25, 2009, at 8:30 a.m.
Meanwhile, on July 27, 2009, and July 31, 2009, while Hill was
attempting to schedule Neason’s appointment with the Clinic, Neason
was examined twice in ECCF medical unit. On both occasions, the
clinician who examined Neason noted that he was using
drops to treat his glaucoma.
On August 25, 2009, Neason was seen at the Clinic for a
consultation at which artificial tears were prescribed to assist
with the lubrication of Neason’s eyes. His prescription for Xalatan
eye drops remained unchanged.
Neason was transferred to ECHC on or about September 10, 2009,
following a threatened escape attempt. While in the custody of the
Erie County Sheriff, Neason was evaluated and treated for medical
Heidelberger, M.D., Ph.D., ¶¶ 20-23.
Allegations in Plaintiff’s Second Amended Complaint
In his Second Amended Complaint (Dkt #6-2), the operative
pleading in this case, Plaintiff asserts that Sergeant Green denied
him the proper medical care “by refusing [him] a grievance and not
looking into [his] medical problem.” Dkt #6-2 at 5. He alleges that
Lieutenant Pyjas “refused to correct the wrong by having [him]
transferred back to” the facility where he wanted to be housed,
ECHC. Id. Plaintiff asserts that he is “not to be housed” at ECCF,
and that he does not receive the proper medical care at ECCF. Id.
at 7, 9. He also contends generally that his safety is at risk at
Defendants failed to protect him from harm.
Plaintiff alleges that he was denied medical treatment “for
eyes and mental Health by Jane Doe #1, Jane Doe #2, Jane Doe #3.”
Id. Specifically, he contends that he was supposed to have his eye
drops administered by a nurse. Id. at 7. In addition, he asserts
that the “doctor has been experimenting on [him] with different
types of medications.” Id.
Plaintiff asserts that Captain Bienko “forced [him] to sign
off on [a] Grievance which never got Processed. . . .” Id. at 5. He
also asserts that Bienko, Pyjas, and Green “conspired to cover-up”
the alleged constitutional violations. Id.
Defendants’ First Motion for Summary Judgment
On February 28, 2011, Defendants filed their First Motion for
Summary Judgment, arguing that Plaintiff has failed to raise a
material issue of fact as to whether any of the defendants acted
lacked the requisite personal involvement; and that all defendants
are entitled to qualified immunity. Plaintiff unsuccessfully moved
to have counsel appointed, but he has not opposed the summary
Summary Judgment Standard
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c). Initially,
the moving party must show that there is “an absence of evidence to
support the non-moving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Once the moving party has carried its burden,
the opposing party must set forth “specific facts showing that
there is a genuine issue for trial[,]” FED. R. CIV. P. 56(e), and
must introduce evidence beyond the mere pleadings to show that
there is an issue of material fact concerning “an element essential
to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322.
Title 42 U.S.C. § 1983
In order to maintain a section 1983 action, “two essential
elements must be present: (1) the conduct complained of must have
been committed by a person acting under color of state law; and
(2) the conduct complained of must have deprived a person of
rights, privileges, or immunities secured by the Constitution or
laws of the United States.” Pitchell v. Callan, 13 F.3d 545, *549
(2d Cir. 1994) (citations omitted). To bring a § 1983 claim against
a prison official, a plaintiff must allege that individual’s
personal involvement; it is not enough to assert that the defendant
is a “link in the prison chain of command.” McKenna v. Wright, 386
F.3d 432, 437 (2d Cir. 2004) (quotation omitted); see also Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Analysis of Plaintiff’s Eighth Amendment Claims
General Legal Principles
The Eighth Amendment prohibits the infliction of “cruel and
unusual punishment.” U.S. CONST. amend VIII; see also, e.g.,
Estelle v. Gamble, 429 U.S. 97, 101 (1976).
To establish an Eighth
Amendment claim arising out of inadequate medical care, a prisoner
must prove that the prison official acted with the subjective
objectively “serious medical needs.” Id. at 104; accord, e.g.,Hill
v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). “The standard for
deliberate indifference includes a subjective component and an
objective component.” Hill, 657 F.3d at 122 (citing Hemmings v.
Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (per curiam)).
Subjectively speaking, the official charged with deliberate
indifference must “know[ ] of and disregard[ ] 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.” Farmer
v. Brennan, 511 U.S. 825, 837 (1994). The objective prong of the
test requires the alleged deprivation to “be sufficiently serious,
in the sense that a condition of urgency, one that may produce
death, degeneration, or extreme pain exists.” Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks omitted).
Deliberate Indifference to Plaintiff’s Medical Needs
It is clearly established that “a prisoner does not have the
right to choose his medical treatment as long as he receives
adequate treatment.” Hill, 657 F.3d at 123 (citing Estelle v.
Gamble, 429 U.S. 97, 106-07 (1976);
Chance v. Armstrong, 143 F.3d
698, 703 (2d Cir. 1998); see also Jackson v. Fair, 846 F.2d 811,
817–18 (1st Cir. 1988) (no claim of deliberate indifference to
serious medical needs when prisoner transferred from high security
institution, because treatment at new facility was adequate and
prisoner did not have right to treatment of his choice).
Neason’s second amended complaint “falls far short of alleging
a deliberate indifference on the part of” any of the medical
defendants “to his serious medical needs.” Hill, 657 F.3d at 123.
As Defendants point out, while Neason was incarcerated at ECHC and
ECCF between February 21, 2009, and February 18, 2010, he was
qualified mental health professionals and medical doctors. When
Defendants found that Neason required treatment beyond that which
they could provide, they arranged to have him seen by an outside
“Inmates have no ‘right’ to dictate the type of procedure that must
be utilized in a particular instance[,]” and therefore Plaintiff’s
“personal opinion concerning the nature and quality of care is of
little value in determining whether there has been a constitutional
violation concerning his medical care.” Ross v. Kelly, 784 F. Supp.
35, 45 (W.D.N.Y. 1992).
“experimenting” on him is wholly speculative and unsubstantiated.
“[R]eliance upon conclusory statements or mere allegations is not
sufficient to defeat a summary judgment motion.” Davis v. N.Y., 316
F.3d 93, 100 (2d Cir. 2002)(citing Ying Jing Gan v. City of N.Y.,
996 F.2d 522, 532-33 (2d Cir. 1993); FED. R. CIV. P. 56(e)).
Likewise, his contention that he is not receiving treatment for his
glaucoma is contradicted by his medical history, recounted above,
which demonstrates that he received consistent, regular care and
was prescribed an appropriate medication for his condition. Dr.
Heidelberger states that there was no medical reason that prevented
Neason from applying his own Xalatan eye drops, and accordingly, it
aforementioned eye drops. Defendants’ Appendix (“Defs’ App.”),
Exhibit (“Ex.”) F, ¶¶ 22 (Dkt #29-7). Thus, the Court finds
Neason’s contention that he was entitled to the special treatment
of having a nurse administer the eye drops for his glaucoma to be
Neason also asserts that he was not receiving the “proper”
appropriate course of treatment and level of care that he should
receive[,]” Ross v. Kelly, 784 F. Supp. 35, 45 (W.D.N.Y.), aff’d
___Fed. Appx. ___, 970 F.2d 896 (Table) (2d Cir. 1992), which “does
not constitute a constitutional violation.” Id.; see generally,
Chance, 143 F.3d at 703.
“Because Plaintiff has not produced any evidence demonstrating
more than a possible disagreement about treatment options, he has
not shown the subjective component of his claim of deliberate
indifference.” Alexander v. Galeno, No. 07 Civ. 9662(RMB), 2011 WL
1793266, at *3 (S.D.N.Y. Apr. 25, 2011) (citing, inter alia,
Whitfield v. O’Connell, No. 09 Civ.1925, 2010 WL 1010060, at *7
(S.D.N.Y. Mar. 18, 2010) (quoting Estelle v. Gamble, 429 U.S. at
106 (“Disagreements over medications, diagnostic techniques, [or]
forms of treatment, . . . are not adequate grounds for a § 1983
claim.”)). Since the Court finds that Plaintiff has not shown the
subjective component of a deliberate indifference claim, it need
not consider whether Plaintiff has shown a dispute of fact as to
the objective component. See Johnson v. Goord, No. 01 Civ. 9587,
2004 WL 2199500, at *6 (S.D.N.Y. Sept. 29, 2004) (analysis of
objective component immaterial where Plaintiff “ha[s] failed to
come forward with admissible evidence sufficient to create a
triable issue of fact on the subjective prong”); accord Alexander,
2011 WL 1793266, at *3 n. 11.
Deliberate Indifference to Plaintiff’s Safety
reasonable measures to guarantee the safety of inmates in their
custody.” Hayes v. N.Y. City Dep’t of Corrs., 84 F.3d 614, 620
(2d Cir. 1996) (citation omitted). For a claim based on the failure
incarcerated under conditions posing a substantial risk of serious
harm.” Farmer, 511 U.S. at 832 (citing Helling v. McKinney, 509
U.S. 25, 35 (1993)). Second, the inmate must show that prison
officials acted with “deliberate indifference” to his safety.
Hayes, 84 F.3d at 620 (citing Morales v. N.Y. State Dep’t of
Corrs., 842 F.2d 27, 30 (2d Cir. 1988)).
Here, as Defendants argue, Neason has failed to come forward
conditions posing a “substantial risk of serious harm[,]” Farmer,
511 U.S. at 532. Neason asserts without record support that he was
Declaration of Coralyn Hunter, M.S., at the time of his transfer to
ECCF in May of 2009, Neason was competent and mentally stable, and
was capable of living in general population. Thus, there were no
mental health concerns preventing Neason from being housed at ECCF.
See Defs’ App. Ex. A, ¶ 4 (Dkt #29-2). Moreover, Dr. Heidelberger
found that from a medical perspective, it was appropriate to house
Neason at ECCF during the relevant time period. See Defs’ App.
Ex. F, ¶ 5 (Dkt. #29-7).
Finally, there was no security-related reason for Neason not
to be housed at ECCF during the relevant time period. As set forth
in the Declaration of Sergeant Joseph Usinski (“Usinski”), in early
November 2008, Neason was housed at ECHC. Once he was sentenced, he
comprised of two types of housing units-dorm and podular. A dorm
style unit consists of one large room with multiple bunk beds
contained therein; inmates eat, socialize and sleep in that one
room. A podular unit consists of one common area with individual
rooms connected to it; inmates eat and socialize in the common area
and sleep in the individual rooms. See Defs’ App., Ex. C, ¶ 2
Due to discipline problems, however, Neason was returned to
ECHC, higher-security facility, on
November 12, 2008, at which
time he was assigned to a more restrictive housing unit, namely, a
linear style unit consisting of a row of individual cells with
metal bars. Defs’ App., Ex. C, ¶ 3 (Dkt #29-4). As a result of
Neason’s disciplinary problems, and contemporaneously with Neason’s
transfer, Usinski entered a message into the JMD’s computer system
indicating that Neason was not to be housed at ECCF at that time.
precluding Neason from being housed at a lower-security facility
such as ECCF. Had there been a medical or mental health reason for
Departments would have entered the notation in the JMD’s computer
system. Id., ¶ 7 (Dkt #29-4).
By entering the message into the JMD’s computer system on
November 12, 2008, indicating that Neason was not to be housed at
ECCF during his November 2008 incarceration, Usinski did not intend
that Neason could never be housed at ECCF. Id., ¶ 8 (Dkt #29-4). In
fact, in February 2009, when Neason was arrested again and booked
at ECHC, he was assigned to a podular housing unit, the less
restrictive type. Id., ¶ 9 (Dkt #29-4).
Because Neason was stable
during this time period and did not have any disciplinary issues,
he was transferred on May 24, 2009, to a podular unit at ECCF where
he remained until September 10, 2009. Id.
Based upon the forgoing, it is clear that Neason was not
incarcerated under conditions posing a substantial risk of serious
classification and there were no medical or mental health reasons
that Neason could not be housed at ECCF between May 24, 2009, and
September 10, 2009.
Neason also points to three alleged incidents demonstrating
that the corrections officers were deliberately indifferent to a
substantial risk of harm posed to him at ECCF. In particular,
Neason asserts that (1) he fell in the shower, (2) was spit on by
an unidentified inmate, and (3) had feces thrown on him by another
unidentified inmate. He states that ECCF administration has “done
nothing” about the spitting or the feces-throwing.
Dkt #6-2 at 9.
Neason has not come close to satisfying his burden at the
summary judgment stage. With regard to the shower incident, Neason
has not set forth any facts tending to show that Defendants were
aware of substantial risk that he would be harmed in the shower or
that they acted with a callous disregard of his safety. Moreover,
Neason did receive medical treatment for the injury he sustained in
the shower. With regard to the incident of being spit upon by
another inmate, he has not alleged even a de minimis injury. See
Sheils v. Rock, 9:04CV861(LEK/GJD), 2008 WL 907320, at *9 (N.D.N.Y.
Mar. 31, 2008) (“The fact that [corrections officers] may have spit
tobacco on plaintiff [inmate], although vulgar and inappropriate,
would not rise to the level of a constitutional violation.”).
Finally, with regard to the incident of feces-throwing by another
inmate, such incidents unfortunately are a regular part of prison
life. See Porter v. Selsky, 287 F. Supp.2d 180, 186 (W.D.N.Y.
2003). Neason has not established more than a de minimis injury, or
that Defendants were aware of a substantial risk of harm posed by
the unidentified inmate. Furthermore, there is no allegation that
he was subjected to repeated harassing conduct. Accordingly, the
Court finds that Neason has failed to raise a triable issue of fact
with regard to his failure-to-protect claim.
VII. Pendent State Law Claim
Complaint as asserting a cause of action under New York state law,
and they argue that the claim must be dismissed because Plaintiff
failed to comply with N.Y. County Law § 52 and N.Y. General
Municipal Law § 50-e(1) by filing a notice of claim. Assuming that
Plaintiff has raised a state-law claim, the Court finds that it
should be dismissed since the Court has dismissed all of the
federal claims with prejudice. See Marcus v. AT & T Corp., 138 F.3d
46, 57 (2d Cir. 1998) (Under 28 U.S.C. § 1367(c)(3), it is well
settled that “[i]n general, where the federal claims are dismissed
before trial, the state claims should be dismissed as well.”).
Summary Judgment (Dkt #27) is granted, and Plaintiff’s Second
Amended Complaint (Dkt #6) is dismissed in its entirety. The Clerk
of the Court is directed to close this case.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Rochester, New York
October 5, 2012
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