Kearney v. N.Y.S. DOCS et al

Filing 30

DECISION AND ORDER denying 27 Motion for Summary Judgment; denying 11 Motion for Default Judgment; denying 18 Motion for Default Judgment. Defendants summary judgment motion [#27] is denied. Plaintiffs applications for Default Judgment [#11] [ #18] are also denied, since he did not demonstrate his entitlement to such relief. See, Perkins v. Napoli, No. 08-CV-6248 CJS, 2010 WL 455475 at *1 (W.D.N.Y. Feb. 4, 2010) ([E]ntry of a party's default pursuant to Fed.R.Civ.P. 55(a) is a mandatory prerequisite for entry of a default judgment pursuant to Fed.R.Civ.P. 55(b).) (citation omitted). Signed by Hon. Charles J. Siragusa on 10/19/12. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
RICHARD KEARNEY, #03-A-4948,
Plaintiff
DECISION AND ORDER
-vs10-CV-6202 CJS
N.Y.S. DOCS, COMMISSIONER BRIAN
FISCHER, JOSEPH F. HALUSKA,
SUPERINTENDENT NAPOLI and
M. BRIDGE,
Defendants
__________________________________________
Richard Kearney (“ Plaintiff” ), an inmate in the custody of the New York State
Department of Corrections and Community Supervision (“ DOCCS” ), alleges that
Defendants violated his federal constitutional rights, in violation of 42 U.S.C. § 1983,
and his rights under the Americans w ith Disabilities Act (“ ADA” ). Now before the Court
is Defendant’ s motion for summary judgment (Docket No. [#27]). The application is
denied.
BACKGROUND
The follow ing are the facts of the case view ed in the light most-favorable t o
Plaintiff, the non-moving party. At all relevant times, Plaintiff w as a prisoner in the
custody of DOCCS. Plaintiff has degenerative joint disease in both knees. Prior to the
events at issue in this case, a DOCCS physician determined that Plaintiff needed a metal
knee/leg brace t o w alk, and Plaintiff’ s ambulatory health record (“ AHR” ) reflects that
diagnosis.

Prior t o June 2007, DOCCS officials at various correctional facilities

permitted Plaintiff to have such a brace.

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In or about June 2007, Plaint iff w as

transferred to Southport Correctional Facility (“ Southport” ) to serve a disciplinary
sentence in the Special Housing Unit (“ SHU” ). Upon his arrival at Southport, the facility
Medical Director, defendant Joseph Haluska, M.D., confiscated Plaintiff’ s knee brace.
The AHR indicates that the brace w as taken because it contained metal, and that the
treatment plan w as to provide Plaintiff w ith a plastic brace. Plaintiff asked to have the
metal brace returned, and in the alternative, asked to have the use of crutches or a
w heelchair for ambulating outside of his cell.

All of those request s w ere denied.

Plaintiff w as not provided a plastic brace or any type of device t o replace the knee
brace. Consequently, Plaintiff experienced significant pain w hen w alking or standing,
especially w hen w alking for any distance outside of his cell. Plaintiff w as ordered to
w alk outside of his cell several times, and experienced pain. After that, Plaintiff refused
to leave his cell, and t heref ore did not participate in activities and privileges including
recreation, show ers, medical and dental treatment and haircuts. Consequently, Plaintiff
w as issued misbehavior reports for refusing to leave his cell.

On A p r i l 8 , 2 0 1 0 ,

Plaintiff commenced this action. The Complaint alleges an Eighth Amendment medical
deliberate indifference claim.1 In conducting its initial review of the Complaint pursuant
to 42 U.S.C. § § 1915(e) and 1915A, the Court also found that the Complaint stated

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The Complaint alludes to the reason w hy Plaintiff w as sent to Southport, w hich is that
w hile at Auburn Correctional Facility (“ Auburn” ), he refused an order to occupy a double-bunk cell,
because he believed that he had a medical exemption from double bunking. The Complaint
suggests that the misbehavior report w as unw arranted and that Plaintiff’ s due process rights w ere
violated at the ensuing disciplinary hearing. The Court view s those allegations as background
information. The Complaint does not appear to state a plausible separate due process claim against
anyone at Auburn, and DOCCS cannot be liable under a theory of respondeat superior.

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a claim under the ADA, Title II. See, Order (Docket No. [#8]). 2
On August 27, 2010, Plaintiff filed a request [#I0] for Clerk’ s Entry of Default,
how ever, the Clerk of the Court denied the request because Plaint if f failed to submit
proofs of service. Nevertheless, on September 1, 2010, Plaintiff filed a Motion for
Default Judgment [#11].

Again, though, the application did not establish that

Defendants had been actually served w ith Process. On January 28, 2011, Plaintiff filed
another application for Default Judgment [#18] against Defendants Haluska, Napoli and
Bridge, “ in their individual capacit[ies] only.” Plaintiff alleged that those Defendants had
not filed Answ ers “ in their individual capacities.” See, id. at p. 2 (“ Still as of the present
date the Defendants mentioned w ithin the foregoing fo this mot ion has failed to
respond.” ). Actually, though, Haluska, Napoli and Bridge had filed Answ ers [#13] more
than tw o months earlier, on November 3, 2010.
During pretrial discovery, Defendants filed Plaintiff’ s AHR [#21] under seal. The
AHR entries conf irm t hat Plaintiff’ s leg brace w as confiscated w hen he arrived at
Southport, and that he requested to have the brace returned. The AHR also indicates
that the medical staf f at Southport offered Plaintiff an elastic “ sleeve” -type brace for
his knee, to replace the metal brace, but that he rejected the elastic brace. How ever,
at his deposition, Plaintiff denied that such AHR entry w as accurate, and more
specifically, he insisted that he w as ever given any type of alternate brace or treatment

2

“To state a claim under Title II, which applies to inmates in state prisons, see United States v.
Georgia, 546 U.S. 151, 153, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), a prisoner must show: (1) “he is a
‘qualified individual’ with a disability”; (2) “he was excluded from participation in a public entity's services,
programs or activities or was otherwise discriminated against by a public entity”; and (3) “such exclusion
or discrimination was due to his disability.” Phelan v. Thomas, 439 F. App'x 48, 50 (2d Cir.2011) (citing
Hargrave v. Vermont, 340 F.3d 27, 34–35 (2d Cir.2003)); see 42 U.S.C. § 12132.” Edwards v. Horn, No.
10 Civ. 6194(RJS)(JLC), 2012 WL 760172 at *21 (S.D.N.Y. Mar. 8, 2012).

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for his knee. See, Pl. Dep. at pp. 14, 18, 22, 24, 37-38, 44-45.
On September 20, 2011, Defendants filed the subject motion f or summary
judgment [#27], including the required Irby Notice. Defendants did not submit any
affidavits in support of the motion. Instead, Defendants rely on Plaintiff’ s deposition
transcript, the AHR, and copies of grievances that Plaintiff f iled.

Defendants’

memorandum of law maintains that Plaintiff cannot demonstrate an Eighth Amendment
claim or an ADA claim. Defendants rely largely on Tannenbaum v. Arizona, 2008 WL
2789589 at * 9 (D. Arizona 2008) (“ Tannenbaum” ) for the proposition that prison
officials are entitled to confiscate metal knee braces that pose a security risk, and that
such action does not violate prisoners’ Eighth Amendment right s w here the officials
replace the metal braces w ith non-metal braces. See, id. (“ [M]any courts have
recognized the inherent security threat in metal knee braces and have consistently
upheld prison officials’ decisions to confiscate them and provide inmates w ith
alternative knee braces that do not contain metal.” ). Defendants further contend that
Plaintiff’ s knee injury does not qualify as a “ disability” under the ADA. The individual
Defendants (Haluska, Napoli and Bridge) also argue that Plaintif f cannot maintain an
ADA claim against them in their individual capacities, and that the same claims against
them in their official capacities should be dismissed “ because they are redundant of
the claims against the government entity.” Defs. Memo of Law [#27-1] at p. 5. Plaintiff
opposes the application. See, Docket No. [#29].

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DISCUSSION
Rule 56
Summary judgment may not be granted unless "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears
the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970). “[T]he movant must make a prima facie showing
that the standard for obtaining summary judgment has been satisfied.” 11 MOORE’S FEDERAL
PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.).
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 (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).
Eighth Amendment Medical Claim
Plaintiff alleges that Def endants violated his Eighth Amendment rights in
connection w ith his medical care, and the legal standard for such claims is clear:

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In order to establish an Eighth Amendment claim arising out of inadequate
medical care, a prisoner must prove deliberate indifference to his serious
medical needs. This standard incorporat es both objective and subjective
elements. The objective ‘ medical need’ element measures the severity of
the alleged deprivation, w hile the subjective ‘ deliberate indifference’
element ensures that the defendant prison official acted w ith a sufficiently
culpable state of mind.
Because the Eighth Amendment is not a vehicle for bringing medical
malpractice claims, nor a substitute for state tort law , not every lapse in
prison medical care w ill rise to the level of a constitutional violation. [T]he
Supreme Court [has] explained that the Eighth Amendment' s prohibition
on cruel and unusual punishments encompasses the deliberate failure to
treat a prisoner' s serious illness or injury resulting in the infliction of
unnecessary pain and suffering. Because society does not expect that
prisoners w ill have unqualified access to health care, a prisoner must first
make this threshold show ing of serious illness or injury in order to state an
Eight h Amendment claim for denial of medical care. Similarly, a prisoner
must demonstrate more than an inadvertent failure to provide adequate
medical care by prison officials to successfully establish Eighth
Amendment liability. An official acts w ith t he requisite deliberate
indifference w hen that official know s of and disregards an excessive risk
to inmate health or safety, a state of mind equivalent to the f amiliar
standard of ‘ recklessness' as used in criminal law .
Smith v. Carpenter, 316 F.3d 178, 183–84 (2d Cir.2003) (citations and internal
quotations omitted). Courts have repeatedly held that disagreements over treatment do
not rise to the level of a Constitutional violation. See Chance v. Armstrong, 143 F.3d
698, 703 (2d Cir.1998) (“ It is w ell-established that mere disagreement over the proper
treatment does not create a constitutional claim.” ). Similarly, negligence constituting
medical malpractice, w ithout more, w ill not establish a constitutional claim. Id. (citation
omitted).
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In this case, Defendants maintain that they are entitled to summary judgment on
the Eighth Amendment claim, since the metal knee brace presented a security threat,
and since Plaintiff w as offered an alternative non-metallic knee brace.

How ever,

Plaintiff clearly disputes that he w as ever offered a substitute brace or any other type
of treatment or assistance for his knee condition. Accordingly, there is a triable issue
of fact on that point.

Defendants have not argued that they w ould still be entitled to

summary judgment if Plaintiff’ s version of facts w ere proven, that is, if after his brace
w as confiscated, they failed to provide him w ith any type of treatment, w hich resulted
in him being unable to w alk and leave his cell for months, even to take show ers and
obtain medical and dental treatment. Accordingly, Defendants’ motion is denied as to
the Eighth Amendment medical claim.
The ADA Claim
As mentioned earlier, Plaint if f did not expressly plead an ADA claim in his
Complaint. Instead, the Court construed the Complaint as stating such a claim, since
Plaintiff claimed that as a result of his inability to w alk, he could not leave his cell, and
therefore w as unable to access services, programs and activities, such as show ers,
dental care and recreation. At such time, the Court stated that “ the [ADA] claim may
proceed at this stage against the public entity.” Order [#8] at p. 2 (emphasis added).
In that regard, the Court w as indicat ing t hat the ADA claim could proceed against
DOCCS, not against the individual Defendants in their individual or official capacities.
See, Brow dy v. Karpe, 131 Fed.Appx. 751, 753-754 (2d Cir. May 16, 2005) (“ Title II
of that st atute [ADA] does not provide for individual capacity suits against state

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officials.” ) (citation omit ted); Loadholt v. DOCS, No. 09–CV–553Sc, 2009 WL
4230132 at * 3 (W.D.N.Y. Nov. 24, 2009) (“ The Second Circuit has recognized that a
valid ADA claim may be stated against a state official in his official capacity. . . .
How ever, w here a plaintiff has sued the state or a state entity under the ADA, and an
official capacity claim against an individual defendant w ould be redundant, courts in this
Circuit have dismissed ADA claims against individual defendants in their official
capacities.” ) (citations omitted).

With that clarification, the individual Defendants’

motion is denied as unnecessary insofar as it is directed at the ADA claim, since t hat
claim is not asserted against them.
The remaining issue is w hether DOCCS is entitled to summary judgment on the
ADA claim.3 DOCCS first argues that Plaint if f ’ s knee condition does not qualify as a
disability under the ADA. Although w alking is a “ major life activity” under the ADA, the
mere limitation of one’ s ability to w alk w ill not qualify as a disability under the ADA.
See, e.g., Sussle v. Sirina Protection Systems Corp., 269 F.Supp.2d 285, 312
(S.D.N.Y. 2003) (“ The inability t o w alk long distances or to climb stairs does not in
itself substantially limit an individual' s ability to perform a major life activity.” ) (internal
quotation marks omitted; collecting cases). A complete inability to w alk, though, or a
sufficiently severe limitation on the ability to w alk, can qualify as a disability under the
ADA. See, Epstein v. Kalvin-Miller Intern., Inc., 100 F.Supp.2d 222, 226 (S.D.N.Y.
2000) (“ [T]o succeed on his ADA claim, plaintiff must prove that his diabet es or his
3
In this Circuit, Eleventh Amendment sovereign immunity bars actions against states under Title II
of the ADA, unless the plaintiff can demonstrate that the Government’s action was “motivated by either
discriminatory animus or ill will due to disability.” Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn,
280 F.3d 98, 111-112 (2d Cir. 2001). Defendants did not move for summary judgment on the basis of
sovereign immunity.

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heart disease impairs his ability to w alk to such a great extent that he is “ unable” t o
w alk, or is “ significantly restricted” in his ability to w alk, as compared w ith the average
person.” ). View ing the instant record in the light most-favorable to Plaintiff, his knee
condition w as permanent , ext remely painful and prevented him from w alking at all.
Accordingly, there is an issue of fact on this point that precludes summary judgment.
CONCLUSION
Defendants’ summary judgment motion [#27] is denied. Plaintiff’ s applications
for Default Judgment [#11] [#18] are also denied, since he did not demonstrate his
entitlement to such relief. See, Perkins v. Napoli, No. 08-CV-6248 CJS, 2010 WL
455475 at * 1 (W.D.N.Y. Feb. 4, 2010) (“ [E]ntry of a party' s default pursuant to
Fed.R.Civ.P. 55(a) is a mandatory prerequisite for entry of a default judgment pursuant
to Fed.R.Civ.P. 55(b).” ) (citation omitted).

Dated:

Rochester, New York
October 19, 2012
ENTER:

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

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