Abreu v. Farley, et al.

Filing 121

DECISION AND ORDER granting in part and denying in part 59 Defendants' Motion for Summary Judgment, and holding 59 Defendants' Motion to Revoke Plaintiff's IFP status in abeyance. The Clerk of Court is directed to terminate all def endants from this action, with the exception of Barry Countryman, Jacob Smith, Richard Cioffa, Correctional Officer VanHorn, Kimberly Cheasman, Annette Holm, Remy Babineaux, Richard Goodliff, Correctional Sergeant T. Barber, Nurse T. Carroll, Correctional Sergeant D. Gleason, Charles Coventry and Eric Farley, and is also directed to stay this matter until further order of the Court. Signed by Hon. Elizabeth A. Wolford on 3/15/2019. (DPS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CARLOS ABREU,

DECISION AND ORDER
Plaintiff,
6:l l-CV-06251 EAW

V.

ERIC FARLEY, ET AL.,
Defendants.

INTRODUCTION
Plaintiff Carlos Abreu ("Plaintiff'), currently incarcerated at the Marcy Correctional
Facility, 1 filed this action pursuant to 42 U.S.C. § 1983, alleging constitutional violations
arising out of his incarceration at the Five Points Correctional Facility ("Five Points").
(Dkt. I). After this Court's initial screening of Plaintiffs first complaint, the Court granted
Plaintiff leave to proceed in forma pauper is ("IFP"). (Dkt. 3 ). Soon thereafter, Plaintiff
was appointed pro bona counsel to assist in the prosecution of this action. (See Dkt. 9).
Plaintiff has since filed voluminous pleadings, alleging numerous grounds for which he
believes he is entitled to relief against an array of individuals.
Presently before the Court is Defendants' motion to revoke Plaintiffs IFP status and
for partial summary judgment. (Dkt. 61). For the reasons set forth below, the Court holds
Defendants' motion to revoke Plaintiffs IFP status in abeyance pending the Second

Plaintiffs address has been ascertained from the most recent filing containing his
location in this action (Dkt. 117 (notice of interlocutory appeal)), and Plaintiffs address as
provided in a different action, see Abreu v. Brown, Case No. 6: 14-cv-06599, Dkt. 60
(W.D .N.Y. Mar. 12, 2018).
- 1-

Circuit's decision in Shepherd v. Annucci, No. 17-2261 (2d Cir. July 21, 2017), grants in
part and denies in part Defendants' motion for partial summary judgment, and stays this
action until the Court resolves Defendants' motion for IFP revocation.

BACKGROUND
Plaintiff arrived at Five Points on or about March 25, 2010 (Dkt. 46 at ,r 93), and
alleges that he has been subject to countless constitutional infractions, and other allegedly
wrongful conduct, which purportedly continued into 2012. Despite pro bono counsel's
efforts to refine Plaintiff's allegations, the operative complaint remains voluminous and is
composed of 531 paragraphs. Plaintiff's counsel also requests that the Court consider two
supplemental pro se filings submitted by Plaintiff as part of a related case that has since
been consolidated into this action. (Dkt. 93 at 25-26; see Dkt. 40; Dkt. 93-5; Dkt. 93-6;
Dkt. 93-7; Dkt. 93-8; Dkt. 93-9; Dkt. 93-10).
The following facts are taken from Defendants' and Plaintiff's Rule 56 statements
of undisputed facts. (See Dkt. 59-1; Dkt. 93-1). Between 2010 and January of 2012,
Plaintiff was examined "well over 100 times" by medical staff at Five Points. (Dkt. 59-1
at

,r

l; Dkt. 93-1 at

,r 1).

Although Plaintiff disputes that he was prescribed appropriate

medical treatment for back and neck pain on a number of occasions (Dkt. 93-1 at ,r 2; cf
Dkt. 59-1 at ,r 2), he does not dispute that he was prescribed "an albuterol inhaler for asthma
and Lipitor for elevated lipids" (Dkt. 93-1 at

,r 2).

It is also undisputed that Plaintiff

received medication, bloodwork, physical examinations, and x-rays between March 25,
2010, and January 23, 2012 (see Dkt. 59-1 at ,r 6; Dkt. 93-1 at ,r 6), and that he refused to

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take medications and to undergo physical examinations on several occasions while at Five
Points (see Dkt. 59-1 at ,r 8; Dkt. 93-1 at ,r 8).
The parties dispute whether Plaintiff was of general good health while housed at
Five Points (Dkt. 59-1 at ,r 4; Dkt. 93-1 at ,r 4), and whether many of Plaintiffs alleged
injuries and ailments were ever properly diagnosed or observed by Five Points medical
staff (Dkt. 59-1 at ,r 5; Dkt. 93-1 at ,r 5). Plaintiff also disputes Defendants' assertion that
he was "not in imminent danger of serious physical harm at any point during the relevant
period" underlying this action (Dkt. 59-1 at

,r 3),

and argues that he "endured repeated

assaults, living under a constant and imminent danger [of] being subjected to ongoing
threats of further physical assaults" while housed at Five Points (Dkt. 93-1 at ,r 3). The
parties do not dispute that only doctors, physicians assistants, and nurse practitioners may
provide prescription medication to inmates at Five Points, that corrections officers and
counselors may not do so, and that general nurses may provide limited medical treatment
only in emergency circumstances. (See Dkt. 59-1 at ,r 9; Dkt. 93-1 at ,r 9).
The New York State Department of Corrections and Community Supervision
("DOCCS") maintains a policy that corrections staff seek a court order if an inmate loses
15% of his or her baseline weight, or even prior to that point if the inmate "appears in
imminent need of hydration or nutrition." (Dkt. 59-1 at ,r 1O; Dkt. 93-1 at ,r 10). In addition,
it is undisputed that Plaintiffs baseline weight remained above 200 pounds between March
2010 and January 2012 (Dkt. 59-1 at ,r 11; Dkt. 93-1 at ,r 11), and at no point did it drop by
30 pounds, or 15% of Plaintiffs baseline weight (Dkt. 59-1 at ,r 12; Dkt. 93-1 at ,r 12).

-3-

At times, Plaintiff complained that he suffered from rectal bleeding, but on at least
one occasion, Dr. Daniel Weinstock ("Dr. Weinstock") took Plaintiffs stool samples and
discovered no blood after running hemoccult tests on April 18 and April 26, 2011. (Dkt.
59-1 at 116; Dkt. 93-1 at 116). Although Plaintiff disputes Defendants' assertion that he
"frequently harassed medical staff' (Dkt. 59-1 at 117; Dkt. 93-1 at 117), it is undisputed
that Five Points staff submitted written misbehavior reports regarding Plaintiffs conduct
on several occasions (Dkt. 59-1at118; Dkt. 93-1at118; but see Dkt. 93-1at118 (also
arguing that "false misbehavior reports were written in retaliation against [Plaintiff]")).
While Plaintiff claims that Defendants' decision not to provide him with an
interpreter during his Tier II and Tier III violation hearings violated his right to due process
(Dkt. 93-1 at 1 19), he does not dispute that he was found guilty of Tier II and Tier III
violations 17 times during the relevant period underlying this action (Dkt. 59-1 at 1 19;
Dkt. 93-1 at 1 19). Relatedly, Plaintiffs fluency in the English language is a point of
contention between the parties. (Dkt. 59-1 at 1 23; Dkt. 93-1 at

1 23).

For example,

Defendants contend that Plaintiff could meaningfully converse with corrections staff in
English (Dkt. 59-1 at

1 23),

but Plaintiff states that his understanding of the English

language is limited and notes that Spanish is his native language (Dkt. 93-1 at 1 23).
Despite his disciplinary violations, Plaintiff received a "time cut" for each violation, save
one, during the period extending from February 23, 2010, to July 5, 2013. (Dkt. 59-1 at
120; Dkt. 93-1 at 120). Plaintiff was not required to serve any time in the Special Housing
Unit ("SHU") and did not lose any good time credits as a result of these violations. (Dkt.
59-1 at 120; Dkt. 93-1 at 120). Plaintiff did spend two months' time in the SHU for an
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incident occurring in May 27, 2010, but he did not serve this time until December 2013
because he had accumulated SHU time from other incidents predating 2010. (Dkt. 59-1 at
122; Dkt. 93-1 at 122).
DOCCS Directive 4421 sets forth DOCCS' policy regarding inmate mailings. (Dkt.
59-1 at

1 25; Dkt.

93-1 at 1 25). Directive 4421 permits inmates to mail five first-class

legal letters free of charge per week and allows inmates an advance of up to $20 for
additional legal mail. (Dkt. 59-.l at 1 25; Dkt. 93-1 at 1 25). Inmates also receive free
postage for documents that "must be sent pursuant to a Court Order, statute of limitations
or legal deadline, if, by rule, such correspondence must be sent prior to receipt of the next
week's free postage allowance." (Dkt. 59-1 at 126; Dkt. 93-1 at 126). Plaintiff almost
always exhausted his weekly allotment of five free legal letters and used up his $20 advance
immediately upon arriving at Five Points. (Dkt. 59-1at127; Dkt. 93-1at127). However,
Plaintiff disputes that he was afforded free postage when a deadline so entitled himalthough "on several occasions, a court order or other deadline entitled him to free
postage"-and states that certain correspondence he addressed to courts, government
officials, and legal organizations was refused postage. (Dkt. 93-1 at 127).
PROCEDURAL HISTORY

On May 10, 2011, Plaintiff commenced this action by filing a voluminous 340-page
complaint, alleging various injuries arising from the actions of over 130 defendants. (See
Dkt. 1). Plaintiff also filed a motion for leave to proceed in forma pauper is (Dkt. 3) and a
motion for appointment of counsel (Dkt. 4). By Order, dated May 25, 2011, Plaintiff was
granted in forma pauperis status, and was directed to amend his complaint in compliance
-5-

with Rule 8 of the Federal Rules of Civil Procedure. (Dkt. 5); see Fed. R. Civ. P. 8(a)(2)
(providing that a pleading must contain "a short and plain statement of the claim"). On
August 11, 2011, Plaintiffs motion for appointment of counsel was granted and pro bono
counsel was assigned. (Dkt. 9). On April 1, 2013, Plaintiff filed a 101-page amended
complaint (Dkt. 35), and on September 19, 2013, a related case-also instituted by
Plaintiff-was merged with this matter (Dkt. 40). The pro se complaint and supplemental
filings submitted in the related case constituted a Supplemental Complaint in the instant
action. (Id. at 12; see Dkt. 41).
On February 21, 2014, Plaintiff filed a 103-page second amended complaint (the
"SAC"), which, alongside the pro se Supplemental Complaint, remains the operative
pleading in this matter. (Dkt. 46). This action was reassigned to the undersigned on
January 5, 2015. (Dkt. 48).
On April 6, 2015, Defendants filed a motion for partial summary judgment in lieu
of an answer. (Dkt. 59). Defendants also request that the Court revoke Plaintiffs IFP
status. (See Dkt. 59-2 at 5-6). After several appearances and extensions of time, Plaintiff
filed responsive papers on July 15, 2016, opposing Defendants' motion.

(Dkt. 93).

Defendants filed reply papers in further support of their motion on September 21, 2016.
(Dkt. 105).

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DISCUSSION

I.

Defendants' Motion to Revoke Plaintiff's IFP Status is Held in Abeyance
A party commencing a civil action in this Court ordinarily must pay a $350.00 filing

fee, as well as a $50.00 administrative fee. 2 See 28 U.S.C. § 1914. Of course, the Court
may grant a party leave to proceed IFP if it determines that the party is unable to pay the
filing fee. See id. § 1915. Nonetheless, not all litigants may be granted leave to proceed
IFP. As set forth in 28 U.S.C. § 1915(g), the "three strikes" provision prevents prisoners
from proceeding IFP if they have brought three or more lawsuits that have been dismissed
as frivolous or for failure to state a claim:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious physical
lilJUry.

28 U.S.C. § 1915(g).
Thus, under that statute, a prisoner with three strikes may proceed IFP only if he can
show that he is "under imminent danger of serious physical injury." Id. "An imminent
danger is not one that has dissipated by the time a complaint is filed; rather it must be one

Effective May 1, 2013, the Judicial Conference of the United States added an
administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See
September 2012 Report of the Proceedings of the Judicial Conference of the United States,
available at <http://www.uscourts.gov/about-federal-courts/reports-proceedings-judicialconference-us>.
2

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existing at the time the complaint is filed." Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir.
2010) (internal quotation marks and citation omitted). 3
The Second Circuit has instructed that, when determining whether a prisoner has
shown an imminent danger, a court should "not make an overly detailed inquiry into
whether the allegations qualify for the exception, because § 19 l 5(g) concerns only a
threshold procedural question." Id. (internal quotation marks omitted). That instruction
suggests that a court should consider only the allegations in the complaint when
considering whether the imminent danger applies, although the Second Circuit has not
specifically limited the imminent danger review to the four corners of the complaint. See

Whether the "imminent danger" must exist at the time the initial complaint was filed
or whether it can arise at the time the complaint is amended has not been expressly resolved
by the Second Circuit. One .district court has noted that "at least some cases have indicated
that even when amended complaints are filed, the imminent danger must have existed at
the time the initial complaint is filed." Antrobus v. Dapecevic, No. 17-CV-5840 (KMK),
2018 WL 3242272, at *4 (S.D.N.Y. July 3, 2018) (citing Harris v. City of New York, 607
F.3d 18, 24 (2d Cir. 2010) (considering the allegations in both the initial and amended
complaints, but concluding that the facts alleged did not "support a finding that [the
plaintiff] was in imminent danger at the time he filed his initial complaint")); accord
Jackson v. McPartland, No. 06-CV-6524 CJS, 2008 WL 619364, at *1 (W.D.N.Y. Mar. 4,
2008) ("[E]ven construing the pro se Plaintiffs Complaint and Amended Complaint
liberally, as the Court is required to do, it is clear that Plaintiff has not alleged that he was
in imminent danger at the time he filed this lawsuit."). Nonetheless, the Second Circuit
has not definitively ruled on this issue, and there is authority outside this Circuit that
supports placing the point of reference at the time the amended complaint is filed. See
Jonassen v. United States, 671 F. App'x 668, 668 (9th Cir. 2016) ("The district court
revoked Jonassen's in forma pauperis status without considering Jonassen's proposed
Third Amended Complaint ('TAC'), which made plausible allegations that Jonassen was
'under imminent danger of serious physical injury' at the time he lodged the TAC."); Burke
v. St. Louis City Jails, 603 F. App'x 525, 525-26 (8th Cir. 2015) ("[T]he District Court
should have considered whether Burke met the imminent-danger exception when he filed
his amended complaint, not when he filed his original complaint." (citing Martin v. Shelton,
319 F.3d 1048, 1051 (8th Cir. 2003))).
3

-8-

id.; see also Abreu v. Lira, No. 9:12-CV-1385 (NAM/DEP), 2014 WL 4966911, at *2
(N.D.N.Y. Sept. 30, 2014), adopting report and recommendation, 9:12-CV-1385
(NAM/DEP) (N.D.N.Y. Apr. 11, 2014).
But several courts in this Circuit-including some cases involving Plaintiff-have
revoked the IFP status of a three-strikes litigant when the defendant challenges the court's
preliminary finding that the litigant is entitled to the imminent danger exception, using
evidence outside the four comers of the complaint to refute that preliminary finding. See

Abreu v. Brown, 317 F. Supp. 3d 702, 705 (W.D.N.Y. 2018) ("The Court agrees with those
courts that it may look beyond the complaint when considering a defendant's challenge to
the preliminary finding that a three-strikes litigant is entitled to the imminent danger
exception."); Tafari v. Baker, No. 6:16-cv-06427(MAT), 2017 WL 1406274, at *2
(W.D.N.Y. Apr. 20, 2017) (collecting cases stating the same); Bernier v. Koenigsmann,
No. 15-CV-209A, 2017 WL 603217, at *4 (W.D.N.Y. Feb. 15, 2017) ("Although courts
assessing imminent danger should not make an overly detailed inquiry, they are allowed to
look at information outside the four comers of a complaint."); Green v. Venettozzi, No. 14CV-1215 (BKS/CFH), 2016 WL 6902545, at *3 (N.D.N.Y. Oct. 31, 2016) ("To refute a
preliminary finding with facts that satisfy the imminent danger exception, the Court may
look outside the four comers of the complaint."), report and recommendation adopted,
2016 WL 6902180 (N.D.N.Y. Nov. 23, 2016);Abreuv. Lira, 2014 WL 4966911, at *2 ("In
reviewing the issues surrounding plaintiffs claim that at the time he filed the complaint,
he was facing imminent danger of serious physical injury, the Court agrees ... that it is
appropriate for the Court to review evidence outside the allegations of the complaint upon
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defendants' challenge to plaintiffs IFP status."); Jackson v. Jin, No. 12-CV-6445-FPG,
2014 WL 1323211, at *1 (W.D.N.Y. Mar. 31, 2014) ("In determining whether the
imminent danger exception applies, the Court may consider more recent medical
evidence."). Some circuit courts have reached the same result. See Stine v. US. Fed.
Bureau of Prisons, 465 F. App'x 790, 794 n.4 (10th Cir. 2012) ("[A]fter a district court
provisionally grants IFP on the basis of a showing of imminent danger, the defendants are
permitted to mount a facial challenge, based on full development of the facts, to the district
court's provisional determination on the face of the complaint that the prisoner satisfies the
imminent danger element." (quotation and alteration omitted)); Taylor v. Watkins, 623 F .3 d
483, 485 (7th Cir. 2010) ("[W]hen a defendant contests a plaintiffs claims of imminent
danger, a court must act to resolve the conflict. A contrary conclusion would mean that a
three-strikes plaintiff could proceed IFP whenever his allegations of imminent danger were
facially plausible, even if the defendant had incontrovertible proof that rebutted those
allegations."); Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997) ("If the defendant, after
service, challenges the allegations of imminent danger . . . , the district court must then
determine whether the plaintiffs allegation of imminent danger is credible ... in order for
the plaintiff to proceed on the merits [IFP]."), overruled on other grounds by Abdul-Akbar
v. McKelvie, 239 F.3d 307 (3d Cir. 2001).
Although this Court recently agreed with this line of cases, see Abreu v. Brown, 317
F. Supp. 3d at 705, an appeal pending before the Second Circuit from a decision revoking
IFP status after it was initially granted will likely clarify the law of this Circuit regarding
this issue, see Shepherd v. Annucci, No. 17-2261 (2d Cir. July 21, 2017). A review of the
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briefs submitted on appeal in Shepherd reveals that the parties dispute, among other things,
the weight afforded to any evidence contradicting a plaintiffs claim of imminent danger,
the distribution of the burden of proof, and the quantum of evidence required to grant a
motion to revoke IFP status. See Shepherd, No. 17-2261, Dkt. 90; Dkt. 98. Indeed, the
Second Circuit has recently deferred any decision regarding Plaintiffs motion for leave to
proceed informa pauperis and for appointment of counsel on the appeal from this Court's
decision in Abreu v. Brown, and that appeal is now held in abeyance pending the Second
Circuit's decision in Shepherd. See Abreu v. Brown, No. 18-2722, Dkt. 30 (2d Cir. Sept.
14, 2018). Therefore, the Second Circuit appears poised to clarify the law in this Circuit
as it relates to motions to revoke IFP status. Because the Shepherd decision is likely to
establish principles that this Court will be bound to apply in ruling upon Defendants'
motion for IFP revocation, the Court is disinclined to presume the Second Circuit's position
before Shepherd is decided. Accordingly, in the interests of judicial economy, the Court
holds Defendants' motion to revoke Plaintiffs IFP status in abeyance pending the Second
Circuit's decision in Shepherd.
II.

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "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 Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury could

- 11 -

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
"The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact. ... " Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the
moving party has met its burden, the opposing party "must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)).

Specifically, the non-moving party "must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact." Brown, 654
F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).
A party may file a motion for summary judgment "at any time until 30 days after
the close of all discovery." Fed. R. Civ. P. 56(b). A party may move for summary
judgment in lieu of an answer. See, e.g., Anderson v. Rochester-Genesee Reg'! Transp.
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Auth., 337 F.3d 201,202 (2d Cir. 2003); Riehl v. Martin, No. 9:13-CV-439 (GLS/TWD),
2014 WL 1289601, at *1-2 (N.D.N.Y. Mar. 31, 2014); Beckford v. N.Y. State Office of
Mental Health, No. 06-CV-00561(SR), 2010 WL 1816689, at *I (W.D.N.Y. May 3, 2010);
Crenshaw v. Syed, 686 F. Supp. 2d 234,236 (W.D.N.Y. 2010); Wegman v. Grimmke, No.
03-CV-234S, 2004 WL 2202642, at *2 (W.D.N.Y. Sept. 30, 2004). Although summary
judgment is generally not appropriate until after some discovery has occurred in a case,
Nelson v. Deming, 140 F. Supp. 3d 248, 257-58 (W.D.N.Y. 2015), a motion for summary
judgment in lieu of an answer is appropriate where the facts are undisputed and no amount
of discovery would change the outcome, Parra v. Wright, No. 11-CV-6270 CJS, 2013 WL
6669235, at *7 (W.D.N.Y. Dec. 18, 2013). The standard for granting summary judgment
is the same whether the motion is made in lieu of an answer or after discovery has
occurred-the moving party must demonstrate that no genuine issues of material fact exist
and that it is entitled to judgment as a matter oflaw. See Anderson, 337 F.3d at 206. 8

The Court notes that in various places throughout his opposition papers, Plaintiff
argues that summary judgment is inappropriate because no discovery has taken place. (See,
e.g., Dkt. 93 at 23, 34-35, 54). However, the lack of discovery, in and of itself, cannot
justify denial of a properly supported motion for summary judgment. Moreover, although
Fed. R. Civ. P. 56(d) permits a party to oppose a motion for summary judgment on the
grounds that it needs discovery, any such opposition must demonstrate "by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition." Whelehan v. Bank of Am. Pension Plan for Legacy Companies-FleetTraditional Ben., 5 F. Supp. 3d 410,420 (W.D.N.Y. 2014) (quoting Fed. R. Civ. P. 56(d)).
"The affidavit must explain: '[ (1)] the nature of the uncompleted discovery; [ (2)] how
the facts sought are reasonably expected to create a genuine issue of material fact; [ (3) ]
what efforts the affiant has made to obtain those facts; and [ (4) ] why those efforts were
unsuccessful."' Cont'/ Cas. Co. v. Marshall Granger & Co., LLP, 921 F. Supp. 2d 111,
127 (S.D.N.Y. 2013) (quoting Hoffmann v. Airquip Heating & Air Conditioning, 480 F.
App'x 110, 112 (2d Cir. 2012)). "The failure to file a Rule 56(d) affidavit sufficiently
explaining the need for additional discovery 'is itself sufficient grounds to reject a claim
8

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III.

Plaintiff's Due Process Claims Are Dismissed
Plaintiff argues that he was deprived of a liberty interest without due process of law

when he was not afforded an interpreter during several disciplinary hearings at which he
was found guilty of the alleged wrongdoing. (See Dkt. 93 at 47-51). "The failure to provide
interpretive services or assistive devices during disciplinary hearings has been found to be
a denial [of] due process." Young v. Polizzi, No. 9:16-CV-0660 (FJS/CFH), 2018 WL
3949967, at *8 (N.D.N.Y. July 11, 2018) (citing Clarkson v. Coughlin, 898 F. Supp. 1019,
1049 (S.D.N.Y. 1995)), report and recommendation adopted, 2018 WL 3949942
(N.D.N.Y. Aug. 16, 2018). However, "[a]s a threshold matter, an inmate asserting a
violation of his or her right to due process must establish the existence of a protected
interest in life, liberty, or property." Ocasio v. Deluke, No. 08-CV-51 GLS/DRH, 2010
WL 6001595, at* 16 (N.D.N.Y. Sept. 3, 2010) (citing Perry v. McDonald, 280 F.3d 159,

173 (2d Cir. 2001)), report and recommendation adopted, 2011 WL 864898 (N.D.N.Y.
Mar. 8, 2011), aff'd, 468 F. App'x 89 (2d Cir. 2012).

that the opportunity for discovery was inadequate."' Lunts v. Rochester City Sch. Dist.,
515 F. App'x 11, 13-14 (2d Cir. 2013)(quotingPaddingtonPartners v. Bouchard, 34 F.3d
1132, 1137 (2d Cir. 1994)); see Cross v. State Farm Ins. Co., 926 F. Supp. 2d 436, 446
(N.D.N.Y. 2013) (stating that if "a proper affidavit or declaration" is not submitted in
support of a Rule 56( d) motion, the "application fails on this basis alone"); see also
Whelehan, 5 F. Supp. 3d at 421 ("Merely referencing the need for additional discovery in
a memorandum of law in opposition to a motion for summary judgment is not an adequate
substitute for a Rule 56(d) affidavit.").
Plaintiff has failed to submit an affidavit or declaration satisfying the requirements
of Rule 56(d). Although the Court recognizes the early stage of this litigation, Plaintiffs
conclusory requests for additional discovery in his opposition papers are insufficient to
oppose Defendants' motion for summary judgment on that basis.
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"The Supreme Court held in Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132
L. Ed.2d 418 (1995), that to state a claim for a violation of due process, a prisoner first
must identify a liberty interest protected by the Due Process Clause of which he was
deprived." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999). To prevail on a claim for
a violation of procedural due process, a prisoner "must establish both that the confinement
or restraint creates an 'atypical and significant hardship' under Sandin, and that the state
has granted its inmates, by regulation or by statute, a protected liberty interest in remaining
free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.
1996). "Factors relevant to determining whether the plaintiff endured an 'atypical and
significant hardship' include 'the extent to which the conditions of the disciplinary
segregation differ from other routine prison conditions' and 'the duration of the
disciplinary segregation imposed compared to discretionary confinement."' Palmer v.
Richards, 364 F.3d 6_0, 64 (2d Cir. 2004) (quoting Wright v. Coughlin, 132 F.3d 133, 136

(2d Cir. 1998)).
While the parties dispute whether Plaintiff required an interpreter at the disciplinary
hearings (see Dkt. 59-1 at 1 23; Dkt. 93-1 at 1 23), 9 Plaintiff has failed to raise a triable

The Court notes that, under New York law, "[a]n interpreter is only required when
the inmate speaks no English." Zhang v. Murphy, 1 A.D.3d 784, 785 (3d Dep't 2003); see
7 N.Y.C.R.R. § 253.2 ("A non-English speaking inmate who cannot read and understand
English must be given a translated notice of the charges and statements of evidence relied
upon and reasons for actions taken, and provided with a translator who shall be present at
the hearing."); Maldonado v. Racette, 175 A.D.2d 963, 963 (3d Dep't 1991) ("[T]he
regulations only require the presence of an interpreter when the inmate does not speak any
English."); see also Rodriguez v. Murphy, 19 A.D.3d 913, 913 (3d Dep't 2005) (rejecting
the "petitioner's contention that he should have been provided with the assistance of a
Spanish interpreter" where "the record reveals that [the] petitioner 'was sufficiently fluent
9

- 15 -

issue of fact as to whether he was deprived of a protected liberty interest. Indeed, Plaintiff
concedes that he was not confined to the SHU for any of the disciplinary violations he was
found guilty of committing, save just one. (See Dkt. 59-1 at, 20; Dkt. 93-1 at, 20); see
generally Young v. Hoffman, 970 F .2d 1154, 1156 (2d Cir. 1992) (finding that the plaintiff

had "suffered no interference with a liberty interest and has no valid claim for relief' for
procedural due process where he "was never penalized on the charges of committing
unhygienic acts"); Strasser v. New York, No. 9:10-CV-141 (FJS/DEP), 2012 WL 253391,
at *3 (N.D.N.Y. Jan. 26, 2012) (dismissing a procedural due process claim where the
plaintiff failed to allege whether he served any disciplinary confinement before his
violation was administratively reversed).
Plaintiff did serve time in the SHU during December of 2013 for an incident
occurring in May 27, 2010, but it was for a period of just two months. (See Dkt. 59-1 at
, 22; Dkt. 93-1 at , 22). The Second Circuit has stated that "restrictive confinements of
less than 101 days do not generally raise a liberty interest warranting due process
protection, and thus require proof of conditions more onerous than usual." Davis v. Barrett,
576 F.3d 129, 133 (2d Cir. 2009). Generally, the plaintiff must demonstrate that the
conditions of confinement under such relatively brief periods "were more severe than the
normal SHU conditions ... or a more fully developed record show[ s] that even relatively
brief confinements under normal SHU conditions were, in fact, atypical." Palmer, 364
F.3d at 65.

in English to understand and knowledgably participate in the disciplinary hearing"'
(quoting Santiago v. Goord, 253 A.D.2d 970, 970 (3d Dep't 1998))).
- 16 -

In response to Defendants' properly supported summary judgment motion with
respect to this incident (see Dkt. 59-6), Plaintiff has failed to set forth proof suggesting that
his confinement in the SHU, beginning in December 2013 and lasting for just two months,
was any more severe than normal, Gaines v. City of New York, No. 14 Civ. 6403 (ER),
2016 WL 951580, at *3 (S.D.N.Y. Mar. 9, 2016) (granting the defendants' motion to
dismiss where the plaintiff failed to allege "any facts regarding the conditions of his
confinement to suggest that it imposed 'atypical and significant hardship"'); Voge/fang v.
Capra, 889 F. Supp. 2d 489, 511 (S.D.N.Y. 2012) (stating that "[a]bsent additional

particularized allegations regarding the harshness of the confinement-which plaintiff
does not adduce-[sixty days ofkeeplock confinement], under the case law, is insufficient
to rise to the level of a due process violation"); Sales v. Barizone, No. 03 Civ. 6691RJH,
2004 WL 2781752, at *7 (S.D.N.Y. Dec. 2, 2004) ("Sales' other due process claim arising
out of two months' confinement in the SHU, however, cannot survive the Sandin test
absent further allegations."); Williams v. Goord, 111 F. Supp. 2d 280,289 (S.D.N.Y. 2000)
(finding that 75 days of solitary confinement under normal conditions did not implicate a
due process liberty interest). As a result, Plaintiff has failed to establish that he was
deprived of a protected liberty interest. Therefore, the Court grants summary judgment
dismissing Plaintiffs due process claims. 10

To the extent Plaintiff seeks to raise an independent due process claim concerning
the denial of his federal Freedom oflnformation Act ("FOIA") or New York State Freedom
of Information Law ("FOIL") requests (Dkt. 46 at 11 389, 405-06), the Court construes
Plaintiffs allegations as arising solely under FOIL because FOIA "applies only to federal
agencies." Chisholm v. United of Omaha Life Ins. Co., 514 F. Supp. 2d 318,321 (D. Conn.
10

- 17 -

IV.

Plaintiff's Eighth Amendment Claims
A.

General Principles

"The Eighth Amendment, which applies to the states under the Due Process Clause
of the Fourteenth Amendment, guarantees freedom from cruel and unusual punishment."
Jones v. Westchester Cty. Dep 't of Corr. Med. Dep 't, 557 F. Supp. 2d 408, 413 (S.D.N.Y.
2008). "A prison deprivation violates the Eighth Amendment only when there is an
'unnecessary and wanton infliction of pain."' Barclay v. New York, 477 F. Supp. 2d 546,
553 (N.D.N.Y. 2007) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). "In order to
prove that a prison condition amounted to cruel and unusual punishment, a plaintiff must
satisfy both an objective and a subjective standard." Stokes v. Goard, No. 9:03-CV-1402
(LEK/DRH), 2007 WL 995624, at *4 (N.D.N.Y. Mar. 30, 2007) (citing Jolly v. Coughlin,

2007) ("Although [the plaintiff] does not say so, this Court construes her constitutional
claims as having been brought under 42 U.S.C. § 1983, and her FOIA claims as arising
under the Connecticut Freedom and Information Act, since the federal Freedom of
Information Act, applies only to federal agencies." (citations omitted) (citing Grand Cent.
P'ship, Inc. v. Cuomo, 166 F.3d 473,484 (2d Cir. 1999))). Furthermore, it is well-settled
that the denial of a FOIL request "does not implicate Fifth or Fourteenth Amendment due
process rights, where [the] plaintiff did not pursue state law remedies." Murray v.
Coleman, 737 F. Supp. 2d 121, 126 (W.D.N.Y. 2010), on reconsideration (Dec. 14, 2010);
see Reed v. Medford Fire Dep 't, Inc., 806 F. Supp. 2d 594, 607 (E.D.N.Y. 2011) ("[I]t is
well-settled in New York that section 1983 is not a proper vehicle for bringing a FOIL
claim." (quotation omitted)); see also Old St. George's LLC v. Bianco, 389 F. App'x 33,
35 (2d Cir. 2010) ("[W]ith respect to appellants' claims relating to the alleged interference
by officials of the Town of Yorktown with appellants' ability to access the Town's public
records, we agree with the district court that the complaint alleges, at best, only a violation
of New York's Freedom of Information Law, and not a federal constitutional claim.").
Accordingly, insofar as Plaintiff alleges a § 1983 cause of action arising out of his FOIL
disputes, such a claim is untenable and is dismissed.
- 18 -

76 F.3d 468,480 (2d Cir. 1996)). "First, the prisoner must allege that the defendant acted
with a subjectively 'sufficiently culpable state of mind.' Second, he must allege that the
conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional
dimensions." Crawfordv. Cuomo, 796 F.3d 252,256 (2d Cir. 2015) (citations omitted).
1.

Subjective Element

"The subjective component of the claim requires a showing that the defendant 'had
the necessary level of culpability, shown by actions characterized by "wantonness"' in light
of the particular circumstances surrounding the challenged conduct." Sims v. Artuz, 230
F.3d 14, 21 (2d Cir. 2000) (quoting Blyden v. Mancusi, 186 F.3d 252,262 (2d Cir. 1999));
see Swift v. Tweddell, 582 F. Supp. 2d 437,444 (W.D.N.Y. 2008) ("To establish deliberate
indifference, then, plaintiff must prove that the defendants had a culpable state of mind and
intended wantonly to inflict pain."). "Deliberate indifference is a mental state equivalent
to subjective recklessness, as the term is used in criminal law. This mental state requires
that the charged official act or fail to act while actually aware of a substantial risk that
serious inmate harm will result." Salahuddin v. Goard, 467 F.3d 263, 280 (2d Cir. 2006)
(citation omitted).
2.

Objective Element

The objective requirement "does not mandate comfortable prisons," Rhodes v.
Chapman, 452 U.S. 337, 349 (1981); "[o]nly 'deprivations denying the minimal civilized
measure of life's necessities are sufficiently grave to form the basis of an Eighth
Amendment violation,"' Salahuddin, 467 F.3d at 279 (quoting Wilson, 501 U.S. at 298).
"States must not deprive prisoners of their 'basic human needs-e.g., food, clothing,
- 19 -

shelter, medical care, and reasonable safety."' Phelps v. Kapnolas, 308 F.3d 180, 185 (2d
Cir. 2002) (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)). In other words, the
objective component requires that a prisoner "prove that the conditions of his confinement
violate contemporary standards of decency." Id.

B.

Allegations of Contaminated Food

"[T]he Eighth Amendment prohibition against cruel and unusual punishment does
require that prisoners be served 'nutritionally adequate food that is prepared and served
under conditions which do not present an immediate danger to the health and well being of
the inmates who consume it."' Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (quoting
Ramos v. Lamm, 639 F.2d 559,571 (10th Cir. 1980)). "In food tampering claims a plaintiff
must allege that he suffered an actual injury, 'the mere allegation of food tampering alone
[ ] is insufficient to establish a claim under the Eighth Amendment."' Calvin v. Schmitt,
No. 15 CV-6584 (NSR), 2017 WL 4280683, at *5 (S.D.N.Y. July 7, 2017) (alteration in
original) (quoting Harris v. Ash/aw, No. 9:07-CV-0358(LEK/DEP), 2007 WL 4324106, at
*5 (N.D.N.Y. Dec. 5, 2007)).
Here, Plaintiffs alleged food contamination is too speculative to survive summary
judgment. Plaintiff alleges that the food loaves 11 he received "were wet[,]" as if C.O.
Countryman had spit in his food. (Dkt. 93-5 at 141; see also id. at 1 107 (alleging that
C.O. Countryman "was spitting on my loa[ves]")). He also alleges that some of the food

A "food loaf' generally "contains a variety of ingredients, including carrots and
potatoes." Alexander v. Whitney, No. 9:04-CV-1298 (LEK/GJD), 2008 WL 904897, at *6
n.8 (N.D.N.Y. Mar. 31, 2008).
11

- 20 -

items he received had been opened and mixed around or were broken into pieces. (See id.
at ,r 107). "[A] plaintiffs allegation that 'Defendants spit in his food and 'violat[ed][his]
bread by making holes in it,' without more, has been found insufficient to state an Eighth
Amendment violation." Bee v. Krupp, No. 08 Civ.10141 (SHS)(KNF), 2009 WL 2981910,
at *3 (S.D.N.Y. Sept. 15, 2009) (quoting Chavis v. Kienert, No. 9:03-CV-0039(FJSRFT),
2005 WL 2452150, at *21 (N.D.N.Y. Sept. 30, 2005)). Plaintiffs allegations that C.O.
Countryman either spit on his loaves or otherwise tampered with his food are conclusory
and unsubstantiated. Without more, such bare-bone allegations are insufficient to sustain
an Eighth Amendment conditions-of-confinement cause of action. See Sita! v. Burgio, 592
F. Supp. 2d 355, 359 (W.D.N.Y. 2009) ("the allegations in the Amended Complaint that
Defendant Karamonos 'spit' in [p]laintiffs food and poked his finger in [p]laintiffs food
are conclusory and unsubstantiated. . . . Plaintiff provides no factual support for the
contention and, therefore, the claim in subject to dismissal" (quoting Zimmerman v. Seyfert,
No. 9:03-CV-1389(TJM), 2007 WL 2080517, at *29 (N.D.N.Y. July 19, 2007))); Bee,
2009 WL 2981910, at *3 (concluding that the plaintiffs allegations that "'visible globs of
spit' were present in his food" did not give rise to an Eighth Amendment violation).
Plaintiff also makes the general assertion that his food was "regularly and frequently
contaminated and or spoiled." (Dkt. 93-5 at

,r

190). He further alleges that he became

nauseous and was forced to vomit after eating the food loaves. (Id.).

Plaintiff also

allegedly experienced stomach pains and anal bleeding, which were ''possibly due to
bacterias [sic], and parasites due to the spoiled foods" and the "dirty hands" of the
correctional officers and their practice of "spitting" into his food. (Id. (emphasis added)).
- 21 -

Plaintiffs allegations are self-serving and completely unsupported. See Martinez v. Lape,
No. 9:09-CV-0665 (TJM/RFT), 2011 WL 4527943, at *9 (N.D.N.Y. Mar. 28, 2011)
("Other than the unsupported broad assertion that he contracted H. pylori from the food or
water at Coxsackie, Plaintiff fails to allege how the expired food and juice posed an
immediate risk to his health, inflicted pain and suffering, or otherwise amounted to an
extreme deprivation."), report and recommendation adopted, 2011 WL 4528980
(N.D.N.Y. Sept. 28, 2011). Conclusory claims of spoiled food are insufficient to survive
a dispositive motion. See Black v. Fischer, No. 9:08-CV-0232, 2010 WL 2985081, at *8
(N.D.N.Y. July 1, 2010) (stating that the "plaintiffs food complaints consist entirely of
broad and conclusory allegations which, while at first blush troublesome, are devoid of the
specifics necessary to prove such a claim"); Dorsey v. Fisher, No. 9:09-CV-1011
(GLS)(DEP), 2010 WL 2008966, at *7 (N.D.N.Y. May 19, 2010) (dismissing an Eighth
Amendment claim based on contaminated food where the plaintiff alleged, in "conclusory
fashion," a conspiracy to "poison[] his food with infected DNA").
Furthermore, the injuries that allegedly resulted from Plaintiffs ingestion of the
food loaves are not borne out by the medical evidence. See Stokes, 2007 WL 995624, at
*4 ("[A]lthough Stokes makes general allegations regarding the health effects he suffered
because of the alleged contaminated and inadequate food, there is nothing in his medical
records to indicate that he suffered any adverse health effects from the food served to him
by defendants."). While a Court must view the evidence in the light most favorable to the
non-movant on a motion for summary judgment, "[v]ague assertions supported only by
self-serving statements," even if found "in the nonmoving party's affidavit[,] are
- 22 -

insufficient to defeat a properly supported summary judgment motion." Moe v. United
States, 668 F. Supp. 2d 497, 502 (W.D.N.Y. 2009); see also Brown v. Eagen, No. 9:08-

CV-0009 (TJM/DRH), 2009 WL 815724, at *10 (N.D.N.Y. Mar. 26, 2009) (rejecting the
plaintiffs "allegations that his food was contaminated" by blood, feces, semen, and
chemicals as so "conclusory and fantastic as to rise to the level of factually frivolous").
Indeed, outside his general allegations that the correctional officers had "dirty hands" and
were "spitting" in his food, Plaintiff provides no credible basis to support the assertion that
he was actually exposed to harmful "bacteria[]" or "parasites." See generally Stokes, 2007
WL 995624, at *4 ("[A]lthough Stokes contends that defendants delivered him the food,
he fails to allege that he saw any of them actually contaminate or tamper with his food.").
Therefore, Plaintiffs Eighth Amendment claim for cruel and unusual punishment,
based upon the alleged contamination of his food, is dismissed because he has failed to
raise an issue of material fact sufficient to satisfy the objective element of this cause of
action.
C.

Deliberate Medical Indifference

For purposes of opposing Defendants' motion, Plaintiff"focuses on his most serious
untreated medical conditions." (Dkt. 93 at 30). These conditions include the injuries he
allegedly sustained during an "assault that occurred on March 30, 2010, the chronic back
and neck pain that was at issue in the March 30, 2010 assault, for which he requires at least
pain medication and a back brace, and the acute incident of a potential heart attack he
suffered on April 2, 2010." (Id.).

- 23 -

"The Eighth Amendment [also] forbids 'deliberate indifference to serious medical
needs of prisoners .... "' Spavone v. NY. State Dep't of Corr. Servs., 719 F.3d 127, 138
(2d Cir. 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This category of
Eighth Amendment violation also requires the satisfaction of objective and subjective
elements. In the context of a deliberate indifference claim, the objective component
requires that "the alleged deprivation of adequate medical care . . . be 'sufficiently
serious,"' Salahuddin, 467 F.3d at 279 (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)), while the subjective component requires that "the charged officials ... be
subjectively reckless in their denial of medical care," Spavone, 719 F.3d at 138.
The "sufficiently serious" element is analyzed more broadly where the alleged claim
amounts to "a failure to provide any treatment for an inmate's medical condition" than
"where the inadequacy is in the medical treatment given." Salahuddin, 467 F.3d at 280.
In the former scenario, the focus is on whether "the inmate's medical condition is
sufficiently serious," whereas the latter situation emphasizes the treatment itself. Id.
(emphasis added); see Smith v. Carpenter, 316 F .3d 178, 185 (2d Cir. 2003) ("When the
basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the
provision of otherwise adequate medical treatment, it is appropriate to focus on the
challenged delay or interruption in treatment rather than the prisoner's underlying medical
condition alone.").
"It appears that no courts have specifically addressed neck pain in the context of a

deliberate indifference claim." Medina v. Barrett, No. 14-CV-6377-FPG, 2018 WL
1383232, at *6 (W.D.N.Y. Mar. 19, 2018). However, "courts have held that '[s]evere back
- 24 -

pain, especially if lasting an extended period of time, can amount to a "serious medical
need" under the Eighth Amendment."' Guarneri v. Hazzard, No. 9:06-CV-0985, 2008 WL
552872, at *6 (N.D.N.Y. Feb. 27, 2008) (quoting Nelson v. Rodas, No. 01-CV-7887
(RCC/AJP), 2002 WL 31075804, at* 14 (S.D.N.Y. Sept. 17, 2002)); see Mosley v. Woodly,
No. 9:11-CV-1490, 2013 WL 5347272, at *4 (N.D.N.Y. Sept. 23, 2013) ("Courts have
found chronic, debilitating back pain to be a serious injury for Eighth Amendment
purposes.").
Plaintiff appears to quarrel with the medical treatment he received at Five Points
and challenges the propriety of the Five Points medical staffs' decision to interrupt
treatment previously prescribed by other correctional facilities.

Specifically, Plaintiff

disputes Dr. Weinstock's decision to remove his back brace on March 30, 2010, even
though Plaintiff informed Dr. Weinstock that it had been prescribed by physicians at
another correctional facility, who had also recommended physical therapy and pain
medication to treat his chronic back pain. (Dkt. 93 at 30; see Dkt. 46 at 11101, 103-04).
However, Plaintiffs contentions merely challenge Dr. Weinstock's medical judgment, and
Plaintiff submits no medical evidence demonstrating that a back brace should have been
continued as a form of treatment. See Evan v. Manos, 336 F. Supp. 2d 255,263 (W.D.N.Y.
2004) (stating that the plaintiffs opinion that the defendant "should have prescribed a back
brace is also inadequate to give rise to any issue of fact about whether his constitutional
rights were violated," and noting that "[t]here is no medical evidence that a back brace was
medically called for or that it would have relieved plaintiffs alleged pain"). "It is wellestablished that mere disagreement over the proper treatment does not create a
- 25 -

constitutional claim."

Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

"Disagreement over treatment relates to an issue of medical judgment and at worst,
amounts to medical malpractice, not a constitutional violation."

Tavares v. NY. C.

Belleview Hosp., No. 13 CV 3148 (PKC)(MHD), 2015 WL 7736544, at *5 (S.D.N.Y. Nov.
30, 2015) (citing Estelle, 429 U.S. at 106).
Indeed, Dr. Weinstock indicates that his decision to remove the back brace and to
discontinue some of Plaintiffs pain medications was based upon his medical·examination
of Plaintiff and objective medical evidence, such as x-rays. (Dkt. 59-9 at ,r,r 24-28); see
Lewis v. Alves, No. 01-CV-0640A(SR), 2004 WL 941532, at *6 (W.D.N.Y. Mar. 22, 2004)
(stating that the defendant's decision to deny drug treatment while the plaintiff completed
"an alcohol and drug treatment program was based upon objective medical criteria and the
exercise of [the defendant's] medical judgment," and thus, could not support a medical
indifference claim); see also Munlyn v. Pietrie, No. 13-CV-6170FPG, 2014 WL 3695488,
at *6 (W.D.N.Y. July 24, 2014) (stating that the plaintiffs allegations only reflect his
"disagreement with [the medical staffs] evaluation and assessment of his medical
circumstances" where he claims that they "did not believe he had any pain, or disputed the
severity of the pain," and then they "refused [the p]laintiffs requests to see the doctor,"
removed his neck brace and walking cane, disapproved physical therapy, and told him "to
stop lying"). Furthermore, Dr. Weinstock affirms that Plaintiff was often seen multiple
times a week by the Five Points medical staff (Dkt. 59-9 at ,r 7), an averment that is borne
out by the medical records submitted by Defendants (see Dkt. 59-10).

- 26 -

Plaintiff also argues that Defendants consistently ignored his chronic back and neck
pains. (Dkt. 93 at 31 & n.8). However, "a delay in medical treatment does not necessarily
give rise to an Eighth Amendment violation." Pagan v. Corr. Med. Servs., No. 11 Civ.
1357 (ER), 2013 WL 5425587, at* 12 (S.D.N.Y. Sept. 27, 2013). Where delays in medical
treatment have implicated Eighth Amendment concerns, "they have involved either a
needlessly prolonged period of delay, or a delay which caused extreme pain or exacerbated
a serious illness." Ferguson v. Cai, No. 11 Civ. 6181 (PAE), 2012 WL 2865474, at *4
(S.D.N.Y. July 12, 2012).
As such, Plaintiffs allegations must be viewed in context; it appears that Plaintiff
frequently sought and received some form of medical attention, and it is undisputed that he
was examined by medical personnel "well over 100 times" while housed at Five Points.
(Dkt. 59-1 at ,r 1; Dkt. 93-1 at ,r 1). Simply because Plaintiff was not examined each and
every day he complained of some form of chronic pain does not demonstrate that
Defendants were deliberately indifferent to a serious medical need. At least under the
circumstances presented here, where the medical records reveal that Plaintiff was examined
and/or prescribed medications multiple times a month and sometimes several times a week,
Plaintiffs assertion that Defendants ignored his complaints of pain fails to establish a
viable constitutional cause of action. (See Dkt. 59-10). Indeed, many of Plaintiffs medical
evaluations were only separated by a matter of days. See Youngblood v. Glasser, No. 9: 1OCV-1430 (NAM/DEP), 2012 WL 4051846, at *8 (N.D.N.Y. Aug. 22, 2012) ("Plaintiff
maintains that his constitutional rights were violated as a result of a five-day delay in
arranging for a physician to examine his hemorrhoids. Proof of such complaints and the
- 27 -

modest delay at issue is not sufficient to establish an Eighth Amendment claim."), report

and recommendation adopted, 2012 WL 4051890 (N.D.N.Y. Sept. 13, 2012); Williams v.
Raimo, No. 9:10-CV-245 (MAD/GHL), 2011 WL 6026111, at *5 (N.D.N.Y. Dec. 2, 2011)
(noting that any delay in treating "a prisoner's injuries from the weekend to the next
business day does not constitute deliberate indifference where the prisoner 'submitted no
medical evidence showing any negative effect of the delay'" (quoting Croft v. Hampton,
286 F. App'x 955, 959 (8th Cir. 2008))); Alster v. Goord, 745 F. Supp. 2d 317, 335
(S.D.N.Y. 2010) (dismissing the plaintiffs medical indifference cause of action where he
claimed that the defendants "waited two days after he complained of abdominal pain to
take him to the hospital"); Evan, 336 F. Supp. 2d at 261 (finding that a "nine-day delay
between being placed on the callout list and plaintiffs initial visit" was not actionable
where the plaintiff "has not identified anything that [the defendant] could or should have
done had he examined plaintiff sooner, nor has he shown that he was harmed by any delay
in treatment"); see also Colon v. Plescia, No. CIVA9:07-CV-0727(DNH1DE), 2009 WL
2882944, at *7 (N.D.N.Y. July 27, 2009) ("Where a plaintiffs claim is based on a delay in
medical treatment, the plaintiff must show that substantial harm resulted from the delay
itself."), report and recommendation adopted, 2009 WL 2914160 (N.D.N.Y. Sept. 4,
2009). 12

Insofar as Plaintiff asserts a medical indifference claim based upon the many
allegedly unwarranted denials of his sick-call slips (see, e.g., Dkt. 46 at ,r,r 190, 193, 196,
200-01, 203-04, 206, 216-17, 223, 226,245,252, 265, 267, 285), it too is unsupported by
the evidence, see Kee v. Hasty, No. 01 Civ.2123 (KMW)(DF), 2004 WL 807071, at *29
(S.D.N.Y. Apr. 14, 2004) (rejecting the plaintiffs "overly conclusory" allegations that the
12

- 28 -

Notably, despite Plaintiffs claim of medical indifference, it is undisputed that he
failed to cooperate with medical staff or refused to take his prescribed medications on
several occasions. (Dkt. 59-1 at ,r 8; Dkt. 93-1 at ,r 8); see generally Buffaloe v. Fein, No.
12 Civ. 9469 (GBD) (AJP), 2014 WL 1224446, at *2 (S.D.N.Y. Mar. 20, 2014) (noting
that the plaintiffs "medical records indicate that he often refused treatment" and that a
"plaintiffs refusal of medical treatment 'has been found to effectively rebut[] ... claims
of deliberate indifference to serious medical needs"' (alteration in original) (quoting Rivera
v. Goord, 253 F. Supp. 2d 735, 756 (S.D.N.Y. 2003))). Whether or not Plaintiff ultimately

defendants failed to treat him where he failed "to specify the dates on which [he] was
denied proper treatment, the nature of his needs on those dates, and the nature of the
treatment that was purportedly denied"); Sonds v. St. Barnabas Hosp. Corr. Health Servs.,
151 F. Supp. 2d 303, 309 (S.D.N.Y. 2001) ("[A] generalized claim that an inmate was
denied access to medical treatment will not suffice."); Vento v. Lord, No. 96 Civ. 6169
(SS), 1997 WL 431140, at *4 (S.D.N.Y. July 31, 1997) (dismissing the deliberate medical
indifference claim where the plaintiff complained that "the medical staff will not see me
fit ... for medical attention," but failed to provide sufficient allegations regarding the denial
of his sick call requests or the nature of those requests). Indeed, "[t]he issue in this case is
not whether [the plaintiff] was seen every time that he requested sick call, but whether the
defendants were deliberately indifferent to his serious medical needs concerning his back
pain." Butler v. Weissman, No. CIV.9:00-CV-1240 (LEK/GLS), 2002 WL 31309347, at
*5 (N.D.N.Y. June 20, 2002). In light of the extensive medical record, which demonstrates
that Plaintiff was frequently seen in the infirmary multiple times a month, and sometimes
several times a week, any claim of medical indifference based upon the wrongful denial of
Plaintiffs sick-call slips is unsustainable. See Davidson v. Desai, 817 F. Supp. 2d 166,
190-91 (W .D .N. Y. 2011) (concluding that the plaintiff failed to point to "a request seeking
sick call for a serious medical need sufficient to support a jury verdict on the claim" where
the plaintiffs medical record establishes that he "was seen in sick call multiple time[s]
each month"); see generally Arnow v. Aeroflot Russian Airlines, 980 F. Supp. 2d 477,482
(S.D.N.Y. 2013) ("[S]elf-serving, conclusory affidavits, standing alone, are insufficient to
create a triable issue of fact and to defeat a motion for summary judgment." (citing
BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603,615 (2d Cir. 1996))).
- 29 -

agreed with the medical staffs evaluations and the medication and treatments prescribed
during his numerous examinations, Plaintiffs "personal dissatisfaction" with the treatment
received does not give rise to a constitutional violation. See Wright v. Conway, 584 F.
Supp. 2d 604, 607 (W.D.N.Y. 2008) ("Wright's complaints demonstrate no more than his
personal dissatisfaction with the level of care that he received, and these claims must
therefore be dismissed.").
Plaintiff also references a "potential heart attack" that he allegedly suffered on or
about April 2, 2010. (See Dkt. 93 at 32-33). Plaintiff alleges that Dr. Weinstock and nurse
Annette Holm ("Nurse Holm") ignored his complaints of chest pain, which he could feel
spreading over his left shoulder. (See Dkt. 46 at,, 124-26). Plaintiff further alleges that
he had difficulty breathing and speaking at that time as well. (Id. at, 125). The medical
staff allegedly ignored these symptoms even though they suggested that Plaintiff was
suffering from a "potential heart attack." (Id. at, 126).
Plaintiff fails to provide any evidence-medical or otherwise-to explain the
difference between a "potential" heart attack and an actual heart attack, or to associate his
alleged symptoms with any other cardiovascular health-related issues. Furthermore, a
review of the medical records reveals that Plaintiff was examined several times on April 2,
2010, and in the following days. (See Dkt. 59-10 at 131-33). For example, on April 2,
2010, Plaintiff complained of chest pain and discomfort in his left shoulder, but the medical
staff noted that he was ''talking easily," without any shortness of breath, and that his blood
pressure had been taken. (Id. at 133). Dr. Weinstock was notified of the assessment, and
the medical staff ordered Plaintiff to be evaluated again in an hour. (Id.). After one hour
- 30 -

had passed, Plaintiff was observed "talking easily" without shortness of breath. (Id.).
Plaintiff was instructed to request an escort back to the infirmary if he experienced an
increase in pain, shortness of breath, or dizziness, but was otherwise told to return for a
follow-up in the morning. (Id.).
The next morning, Plaintiff complained of a cough, chronic pain in his right arm,
neck, back, both wrists, legs, face, and head, but apparently did not indicate whether he felt
pain in his chest or shoulder. (Id.). Plaintiff was then provided with some ritussin and
ibuprofen. (Id.). Later that morning, Plaintiff returned to the infirmary, where he again
complained of pain in his back, wrist, head, face, and right arm, but displayed no signs of
redness or swelling. (Id. at 132). Plaintiff did not appear to exhibit any shortness of breath,
and he was "talking easily." (Id.). Plaintiff also indicated that he "doesn't feel too much
compression to [his] chest." (Id.). On April 7, 2010, Plaintiff again complained of some
"difficulty breathing," but was examined and prescribed treatment. (Id. at 131 ). The
medical notes dated April 10, 2010, reveal that Plaintiff was ''talking easily" without any
shortness of breath, and no subjective complaints of chest or shoulder pain were recorded.
(Id.).

In sum, the above-referenced medical progress notes wholly undermine Plaintiffs
contention that he suffered a sufficiently serious cardiovascular event that was ignored by
the Five Points medical staff. Even if Plaintiff suffered a "potential heart attack," the
medical records demonstrate that he was provided with consistent care and treatment at the
time his symptoms arose and in the days that followed-Plaintiff points to no medical

- 31 -

evidence demonstrating that the medical staff were "subjectively reckless" m their
examination of Plaintiffs condition. Spavone, 719 F.3d at 138.
Plaintiff has strategically chosen to focus his opposition papers on a few of the most
allegedly egregious instances of deliberate indifference to a serious medical need asserted
by Plaintiff in this action. Although the Court has reviewed the balance of Plaintiffs
alleged medical indifference claims against the medical records submitted by Defendants,
"in deciding a motion for summary judgment, a District Court is not required to 'scour the
record on its own in a search for evidence' where the non-moving party fails to adequately
present it." In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d
409, 426 (S.D.N.Y. 2014) (quoting CILP Assocs. LP v. PriceWaterhouse Coopers LLP,
735 F.3d 114, 125 (2d Cir. 2013)). Here, Defendants have established that Plaintiff was
medically examined on "numerous occasions" while incarcerated at Five Points, and
sometimes multiple times a week. (Dkt. 59-4 at 11 4-6; see Dkt. 59-7 at 1 9; Dkt. 59-9 at
14, 7, 18). Despite Plaintiffs frequent complaints of medical ailments, these complaints
were not substantiated by objective medical examination. (See Dkt. 59-4 at 19; Dkt. 59-7
at 11 10-12; Dkt. 59-9 at 11 9, 24-28, 34, 68-69). Furthermore, Plaintiff was often
prescribed medications to relieve him of the subjective pain or discomfort he complained
of, and he would usually receive medications at least once a day while housed in the SHU.
(See Dkt. 59-4 at 116-7, 20; Dkt. 59-7 at 18; Dkt. 59-9 at 115, 18, 23-24, 28, 30). These
averments are borne out by the medical records submitted by Defendants. (See Dkt.
59-10). In response, Plaintiff has submitted no medical evidence to substantiate his claims
of deliberate indifference-instead, he relies on only his conclusory claims. In light of the
- 32 -

robust medical records documenting Plaintiffs treatment, Plaintiffs self-serving
averments are insufficient to raise a triable issue of fact as to whether he suffered
constitutionally inadequate medical care during his confinement at Five Points. See Scott

v. Koenigsmann, No. 9:12-CV-1551, 2016 WL 1057051, at *12 (N.D.N.Y. Mar. 14, 2016)
(finding the record did not establish that the defendant "acted with deliberate indifference
or deliberately ignored [the p]laintiffs complaints of pain" where the plaintiff "received a
plethora of prescription medication for chronic low back pain and was routinely treated at
Sick Call, by nurse practitioners and consulted with medical providers").
Accordingly, summary judgment is granted in favor of Defendants dismissing
Plaintiffs Eighth Amendment claim for deliberate medical indifference. 13

To the extent Plaintiff raises a related claim for the deprivation of constitutionally
protected medical confidentiality (Dkt. 46 at ,r,r 221, 258-59, 292), the Court notes that
"[ c]ourts within this Circuit have accorded constitutional privacy protection to a handful
of medical conditions only, including HIV, transsexualism and sickle cell anemia," Myers
v. Dolac, No. 09-CV-6642P, 2013 WL 5175588, at *7 (W.D.N.Y. Sept. 12, 2013).
Constitutional protection will only extend to a medical condition that "is both serious in
nature and the type that is 'excruciatingly private and intimate in nature' such as those
'likely to provoke ... an intense desire to preserve one's medical confidentiality."' Id.
(quoting Matson v. Bd. ofEduc. of City Sch. Dist. ofN.Y., 631 F.3d 57, 64 (2d Cir. 2011)).
As such, this constitutional right is limited in scope and exists only under "narrow
parameters." Matson, 631 F.3d at 65 (quoting Powell v. Schriver, 175 F.3d 107, 112 (2d
Cir. 1999)). In determining whether constitutional protection extends to a particular
medical condition, "courts must determine whether the disease is 'contagious . . . or
attributed in any way to socially repugnant conduct and whether it could be said that society
as a whole views [the disease] as directly associated with any disease which might
conceivably be characterized as loathsome."' Myers, 2013 WL 5175588, at *7 (quoting
Matson, 631 F .3d at 66).
13

The instant matter "is not a case in which plaintiff has an unusual medical problem
which, if disclosed unnecessarily to other inmates, would likely expose plaintiff to
discrimination, intolerance, or potential violence." Rodriguez v. Ames, 287 F. Supp. 2d
- 33 -

D.

Eighth Amendment Excessive Use of Force

In order for an Eighth Amendment excessive force claim to survive a motion for
summary judgment, the evidence, viewed in the light most favorable to the non-moving
party, must go "beyond a mere dispute over the reasonableness of a particular use of force
or the existence of arguably superior alternatives," and instead "support a reliable inference
of wantonness in the infliction of pain .... " Whitley v. Albers, 475 U.S. 312, 322 (1986).
"' [S]ome degree of injury is ordinarily required to state a claim' of excessive use of force
in violation of the Eighth Amendment." Taylor v. NY. Dep't of Corr., No. 10 CIV. 3819
(JPO), 2012 WL 2469856, at *4 (S.D.N.Y. June 27, 2012) (quoting United States v. Walsh,
194 F.3d 37, 50 (2d Cir. 1999)). Accordingly, "a de minimis use of force will rarely suffice
to state a constitutional claim." Romanov. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).
Indeed, "[t]he extent of injury suffered by an inmate is one factor that may suggest 'whether

213, 220 (W.D.N.Y. 2003) (rejecting the plaintiffs claim where he had been "diagnosed
with proctitis, a nontoxic inflammation of the mucose tissue of the rectum, and internal
hemorrhoids"); see Webb v. Goldstein, 117 F. Supp. 2d 289,298 (E.D.N.Y. 2000) (finding
no right to privacy attendant to medical records containing information about the plaintiffs
treatment for genital conditions); see also Myers, 2013 WL 5175588, at *7 ("[C]ourts have
declined to recognize constitutional protection for many other medical conditions,
including fibromyalgia, arthritis and sleep apnea."); Ebert v. Hargreaves, No.
4:11CV3139, 2012 WL 642470, at *3 (D. Neb. Feb. 28, 2012) (assuming that prisoners
enjoy a limited right to privacy in medical information, the plaintiff failed to establish a
violation of that right where he alleged that the defendant spoke about the plaintiffs "back
pain in front of other inmates"); see generally Kendall v. Kittles, No. CO CIV. 628 (GEL),
2004 WL 1752818, at *6 (S.D.N.Y. Aug. 4, 2004) ("Hemorrhoids, albeit uncomfortable,
are a minor health issue, far removed from the category of medical conditions that have
been deemed 'sufficiently serious' by other courts."). Accordingly, Plaintiff has failed to
raise a triable issue of fact as to whether he was deprived his limited right to privacy in
medical information.
- 34 -

the use of force could plausibly have been thought necessary' in a particular situation."
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 7
(1992)).
However, "an inmate 'need not prove "significant injury" to make out an excessive
force claim."' Banks v. County of Westchester, 168 F. Supp. 3d 682,688 (S.D.N.Y. 2016)
(quoting Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir. 1999)). "[T]he core judicial inquiry
is that set out in Whitley: whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7.
Factors to consider in determining whether prison officials unnecessarily and
wantonly inflicted pain include: (1) the extent of the injury suffered; (2) the need for the
application of force; (3) the relationship between the need and the amount of force used;
(4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to
temper the severity of a forceful response. Romano v. Howarth, 998 F .2d 101, 105 (2d Cir.
1993) (citing Hudson, 503 U.S. at 7). 14

Although Plaintiff submits responsive papers opposing summary judgment on
almost every one of his alleged assaults (see Dkt. 93 at 36-45), Defendants indicate that
they have only moved to dismiss the allegations pertaining to the March 30, 2010, and
September 27, 2011, incidents (see Dkt. 105-2 at 8; see also Dkt. 59-2 at 79 ("[T]he
Supplement should be dismissed in its entirety with the exception of the alleged incident
of January 17, 2012.")). Despite Defendants' clarification, the Court will also address the
alleged use of force events pertaining to nurse Kimberly Cheasman ("Nurse Cheasman")
because Defendants' motion papers allude to at least one of these events and request that
all claims alleged against her be dismissed. (See Dkt. 59-2 at 63-65). Accordingly, the
Court does not address the assaults allegedly taking place on May 10, 2010, February 21,
2011, March 21, 2011, December 5, 2011, and January 17, 2012, and thus Plaintiffs
§ 1983 claims for excessive use of force and his common law claims arising from these
incidents may proceed.
14

- 35 -

1.

Alleged Use of Excessive Force on March 30, 2010

Plaintiff alleges that on March 30, 2010, C.O. Countryman and correctional officer
Jacob Smith used excessive force to remove Plaintiffs back brace and to restrain Plaintiff
after he protested the manner in which the correctional officers attempted to remove the
brace. (Dkt. 46 at ,, 104-06). Both correctional officers allegedly "dragged Plaintiff out
of the sick-call room, and violently slammed Plaintiff to the floor face down." (Id. at
, 107). C. 0. Countryman then "tightened the handcuffs on Plaintiffs wrists, twisting both
hands and wrists maliciously," and then "twisted Plaintiffs legs, causing extreme pain and
suffering to Plaintiffs body, legs and back." (Id. at,, 108-09). C.O. Countryman then
"shoved and pushed Plaintiff into a wall," and then he, correctional officer Richard Cioffa,
and other unidentified correctional officers "took Plaintiffs back brace violently from his
body .... " (Id. at, 110).
A review of the medical evidence reveals that the medical staff did not observe any
injuries subsequent to the alleged assault. Although Plaintiff complained of pain in his
arm, face, and wrist, no visible injuries, edema, or redness were observed ten minutes after
the use of force occurred. (See Dkt. 59-10 at 134-35). Plaintiff made similar complaints
the following day, but no swelling or any deformity was noted; nonetheless, the medical
staff prescribed Motrin to relieve any discomfort. (Id. at 134).
However, the Court does not require corroborating medical evidence demonstrating
the presence of an injury to conclude that an excessive force claim survives summary
judgment. See Ninortey v. Shova, No. 05 CIV. 542 (SHS), 2008 WL 4067107, at * 12
(S.D.N.Y. Sept. 2, 2008) (noting that courts in the Southern District of New York "have
- 36 -

not required that injuries caused by the alleged use of excessive force be corroborated by
medical records"); Beckles v. Bennett, No. 05 CIV. 2000 (JSR), 2008 WL 821827, at *16
(S.D.N.Y. Mar. 26, 2008) (denying summary judgment even though "the nurse noted no
sign of physical injury after the incident," where "the medical records provided by [the
p]laintiff show that he complained repeatedly and consistently about pain to the back and
kidney, beginning immediately after the incident and continuing for months"). "Where 'a
prisoner's allegations and evidentiary proffers could reasonably, if credited, allow a
rational factfinder to find that corrections officers used force maliciously and sadistically,'
summary judgment is improper 'even where the plaintiffs evidence of injury [is] slight
and the proof of excessive force [is] weak."' Clarke v. Anderson, No. 10-CV-319S, 2012
WL 3292879, at *5 (W.D.N.Y. Aug. 10, 2012) (quoting Wright v. Goord, 554 F.3d 255,

269 (2d Cir. 2009)). "[T]he absence of visible injuries does not mean ... that [the p]laintiff
was not harmed," and thus, "the records, standing alone, are not sufficient to permit the
Court to conclude as a matter oflaw that [the p]laintiffwas not subjected to the excessive
use of force or that he suffered only de minimis injuries." Ninortey, 2008 WL 4067107, at
*12; see also United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (finding that the
prisoner's pain resulting from the force used demonstrates a sufficient injury); Campbell
v. City ofNew York, No. 06 CV 5743 (HB), 2010 WL 2720589, at *8 (S.D.N.Y. June 30,

2010) ("That there is at best limited medical evidence in the record to corroborate [the
plaintiffs] story is insufficient to dismiss his excessive force claim as a matter oflaw.").
Furthermore, a "plaintiffs injuries are but one factor to consider in the excessive
force analysis." Cole v. NY. State Dep'tofCorr. & Cmty. Supervision, No. 9:14-CV-0539
- 37 -

(BKS/DEP), 2016 WL 5394752, at *12 (N.D.N.Y. Aug. 25, 2016), report and

recommendation adopted, 2016 WL 5374125 (N.D.N.Y. Sept. 26, 2016); see also
Dellamore v. Stenros, 886 F. Supp. 349, 352 (S.D.N.Y. 1995) (rejecting the argument that
the excessive force claim should be dismissed because the plaintiffs "medical records do
not show any injuries from the use of an alleged chokehold," and explaining that "if a
chokehold was used, the fact that it did not cause any physical injuries goes to the amount
of damages, if any, to which [the plaintiff] may be entitled, rather than the legal sufficiency
of his allegation"). Indeed, Defendants do not appear to dispute the fact that some force
was used to restrain Plaintiff on March 30,2010, nor do they argue that the amount of force
used was appropriate to maintain order and discipline. Instead, Defendants simply contend
that any injury sustained was de minimis in the absence of substantiating medical proof.

(See Dkt. 59-2 at 50-51). That Plaintiffs primary source of proof may be his own
testimony does not mean there are no material issues of fact as to the circumstances
underlying the force used and whether such force was maliciously and sadistically applied.

See Griffin, 193 F.3d at 91 (reversing the dismissal of an excessive force claim, even though
the plaintiffs evidence was "extremely thin" and "the only evidence he intended to offer
in support of his claims was his own testimony and that the only injuries he suffered were
a bruised shin and swelling"); see also Jordan v. Fischer, 773 F. Supp. 2d 255, 272
(N .D .N. Y. 2011) (denying a motion for summary judgment where the "plaintiffs excessive
force claim will tum on issues of credibility").

- 38 -

Therefore, Defendants' motion for summary judgment is denied insofar as it seeks
dismissal of Plaintiffs Eighth Amendment excessive force claim arising out of the incident
taking place on March 30, 2010.
2.

Alleged Use of Excessive Force on November 21, 2010

Plaintiff alleges that on November 21, 2010, Nurse Cheasman was informed that
Plaintiff had filed grievances and complaints against her. (Dkt. 46 at ,r 212). After being
so advised, Nurse Cheasman approached Plaintiffs cell, "opened the window panel of the
solid door," and proceeded to "physically assault[] Plaintiff with a bucket, injuring
Plaintiffs fingers and hands." (Id.).
Plaintiffs medical records indicate that he complained of hand pain for several
medical visits subsequent to the alleged assault; however, no injuries were ever discerned
and Plaintiff was always found to have full use of his hands. (See Dkt. 59-10 at 107-08,
110). On November 22, 2010, Plaintiff specifically informed medical staff that he had
been assaulted by the "log nurse" with a "medical bucket." (Id. at 110). However, the
progress notes also reveal that Plaintiff "refused to unwrap hands and show this nurse any
injuries." (Id.). Defendants argue that Plaintiffs assertion that Nurse Cheasman assaulted
him is "far too vague to make out a claim to which any Defendant can respond." (Dkt.
59-2 at 64).
The fact that Plaintiffs medical records suggest that he suffered no visible injury to
his fingers, and that he had no difficulty moving his fingers, does not wholly contradict
Plaintiffs sworn allegations that he was assaulted by Nurse Cheasman in a manner that
was unrelated to the maintenance of prison discipline and order. Indeed, Plaintiffs medical
- 39 -

records indicate that he continued to complain of hand pain for several subsequent medical
visits, and that he specifically stated that a nurse had struck him with a bucket. Although
Nurse Cheasman has affirmed that she never acted "wantonly or willfully against Plaintiff'
and never sought to harm him (see Dkt. 59-4 at

,r,r 24-25),

Defendants' reliance upon

Plaintiff's medical records fails to establish their entitlement to judgment as a matter of
law, see Abascal v. Fleckenstein, No. 06-CV-349S, 2012 WL 638977, at *6 (W.D.N.Y.
Feh. 27, 2012) (denying summary judgment where the plaintiff alleged that the correctional
officer committed a brief, yet unprovoked assault, "unrelated to any effort to maintain or
restore discipline," despite having only resulted in a minor injury); see also Cole, 2016 WL
5394752, at* 11 (acknowledging that "a court must ask whether the alleged wrongdoing is
objectively harmful enough to establish a constitutional violation," but recognizing that
"when prison officials use force to cause harm maliciously and sadistically, contemporary
standards of decency always are violated ... whether or not significant injury is evident"
(quoting Wright, 554 F.3d at 268-69)); see generally Breen v. Garrison, 169 F.3d 152, 153
(2d Cir. 1999) ("Where the parties' versions of facts differed markedly, '[t]he issue of
excessive force was ... for the jury, whose unique task it was to determine the amount of
excessive force used, the seriousness of the injuries, and the objective reasonableness of
the officer's conduct."').
Therefore, Defendants' motion for summary judgment is denied insofar as it seeks
dismissal of Plaintiff's Eighth Amendment excessive force claim arising out of the incident
taking place on November 21, 2010.

- 40 -

3.

Alleged Use of Excessive Force on December 18, 2010

Plaintiff alleges that on December 18, 2010, Nurse Cheasman assaulted him by
"slamming the hatch of Plaintiffs cell door on Plaintiffs left arm when Plaintiff was
attempting to retrieve a cup that contained [his] medications." (Dkt. 46 at ,i 24 7). However,
a review of Plaintiffs medical records over the days that followed this alleged incident
reveals that he did not complain of any pain in his left arm and was only treated for a sore
throat. (Dkt. 59-10 at 100). The Court recognizes that there is authority supporting the
proposition that "where undisputed medical records 'directly and irrefutably contradict a
plaintiffs descriptions of his injuries' attributed to an alleged use of excessive force, 'no
reasonable jury could credit plaintiffs account of the happening."' Henry v. Brown, No.
14-CV-2828 (LDH)(LB), 2016 WL 3079798, at *2 (E.D.N.Y. May 27, 2016) (quoting
Davis v. Klein, No. 11-CV-4868 ENV, 2013 WL 5780475, at* 1 (E.D.N.Y. Oct. 25, 2013));
see also Felder v. Diebel, No. 10-CV-343 JTC, 2012 WL 6690239, at *5 (W.D.N.Y. Dec.

21, 2012) (finding that the plaintiffs "medical records ... indicate no signs of injuries
consistent with his allegations and no medical treatment," and concluding that "the amount
of force used in this case was de minimis").
Nonetheless, the instant matter presents the unique scenario where a medical staff
member is charged with the use of excessive force. Under these circumstances, the person
alleged to have committed the unconstitutional act is potentially also responsible for
recording and maintaining the very progress notes relied upon by Defendants in arguing
that any amount of force used must have been de minim is. The Court cannot decipher the
identity of the medical personnel who recorded the progress notes relevant to the December
- 41 -

18, 2010, incident simply by reading the signature transcribed therein. Put another way,
Defendants have failed to provide a persuasive reason to dissociate Nurse Cheasman, a
member of the medical staff, from the rest of the medical personnel charged with recording
and maintaining the medical progress notes at issue. 16 As a result, Defendants have not
carried their burden of demonstrating the absence of a triable issue of fact regarding the
excessive force claims asserted against Nurse Cheasman.
Therefore, Defendants' motion for summary judgment is denied insofar as it seeks
dismissal of Plaintiffs Eighth Amendment excessive force claim arising out of the incident
taking place on December 18,2010.
4.

Alleged Use of Excessive Force on September 27, 2011

Plaintiff alleges that on September 27, 2011, C.O. Countryman violently assaulted
him in the presence of Nurse Holm, Dr. Weinstock, and correctional sergeant Remy

This observation differs from general claims that medical personnel falsified
medical records to minimize any injuries or illnesses. Such speculation is insufficient to
defeat a motion for summary judgment. See, e.g., Slater v. Lacapriccia, No. 13-CV-1079S,
2018 WL 437931, at *6 n.8 (W.D.N.Y. Jan. 16, 2018) ("Slater contends that [the
d]efendants and other medical providers falsified his medical records by not accurately
recording his complaints and minimizing his conditions. But Slater has presented no
evidence to support this allegation, which is essentially a denial of [the d]efendants'
evidence." (citation omitted)). Here, because Nurse Cheasman is alleged to have herself
committed an act of excessive force against Plaintiff-and because the Court is required to
view Plaintiffs sworn allegations in the light most favorable to him-the Court is not
prepared to give dispositive weight to the very medical progress notes that Nurse Cheasman
is arguably tasked with maintaining. In other words, Defendants cannot simply point to
the absence of any medical evidence where those same medical records are kept and
maintained by the person charged with the use of unconstitutional force. This is, by itself,
insufficient to carry Defendants' burden on a motion for summary judgment.
16

- 42 -

Babineaux ("Sgt. Babineaux"). (Dkt. 93-5 at 1 34). Plaintiff has submitted use of force
reports that were completed after the alleged incident took place. (See, e.g., Dkt. 93-6 at
7). Furthermore, the medical records indicate that force was used to restrain Plaintiff, and
that he sustained minor injuries. (Dkt. 59-10 at 44). Clearly some degree of force was
used on this occasion, and thus, questions of fact exist as to "whether force was applied in
a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm." Hudson, 503 U.S. at 7; see Henry v. City of New York, No. 02 Civ. 4824, at *6,
2003 WL 22077469 (S.D.N.Y. Sept. 8, 2003) ("[W]here there is a factual dispute about the
circumstances surrounding ... the degree of force used, the Second Circuit requires a jury
determination of the reasonableness of that force."). Therefore, Defendants' motion for
summary judgment is denied to the extent it seeks to dismiss any excessive force claim
arising from the events taking place on September 27, 2011.
E.

Other Eighth Amendment Claims

To the extent Plaintiffs allegations also raise several other claims falling within the
broader category of"cruel and unusual punishment," those claims are dismissed-with one
exception, related to lighting as discussed below. For example, Plaintiff alleges that he
was only provided with one clean bed sheet instead of two clean bed sheets for two weeks.
(Dkt. 46 at

11

339-40). However, "such a temporary and minimal deprivation is de

minimus at best, and as such does not rise to constitutional proportions." Ahlers v. Nowicki,

No. 9:12-CV-0539 (DNH/RFT), 2014 WL 1056935, at *5 (N.D.N.Y. Mar. 18, 2014)
(where the plaintiff claimed "he was forced to sleep on dirty sheets for approximately four
nights"). In addition, Plaintiff alleges that he was not afforded adequate access to certain
- 43 -

reading materials and the general library cart while he was housed in the SHU (Dkt. 46 at

,r 202), but this assertion fails to state an Eighth Amendment claim, see Lunney v. Brureton,
No. 04 Civ. 2438 LAK GWG, 2005 WL 121720, at *9 (S.D.N.Y. Jan. 21, 2005) (rejecting
the plaintiffs claim that "the general library court was not 'properly stocked' as it was
'void of magazines, newspapers and periodicals' ... because magazines, newspapers and
periodicals are not considered one of life's 'basic necessities' within the meaning of the
Eighth Amendment" (collecting cases)), report and recommendation adopted, 2005 WL
433285 (S.D.N.Y. Feb. 23, 2005).
Although Plaintiff sets forth general and conclusory allegations that he was deprived
of recreational privileges (Dkt. 46 at

,r,r 443, 459), he only once specifically alleges that

correctional officer Eric Farley ("C.0. Farley") actually "denied [him] his daily access to
the recreation yard for three days" (id at

,r 297).

"Because exercise is one of the basic

human needs protected by the Eighth Amendment, a plaintiff may prevail on an Eighth
Amendment claim for deprivation of exercise by alleging that defendants were deliberately
indifferent to a sufficiently serious deprivation of exercise." Dillon v. City of New York,
No. 12 Civ. 6746 (LAP), 2013 WL 3776252, at *3 (S.D.N.Y. July 18, 2013). "However,
not every deprivation of exercise amounts to a constitutional violation. Rather, a plaintiff
must show that he was denied all meaningful exercise for a substantial period of time."

Williams v. Goord, 142 F. Supp. 2d 416, 425 (S.D.N.Y. 2001). Assuming C.O. Farley
denied Plaintiff recreational access for three days, such a minor deprivation of these
privileges does not state a viable Eighth Amendment cause of action. See Davidson v.

Coughlin, 968 F. Supp. 121, 131 (S.D.N.Y. 1997) (finding that the denial of "all outdoor
- 44 -

exercise" for "fourteen days in a row" does not "implicate Eighth Amendment concerns");

Chapple v. Coughlin, 92 CIV. 8629 (TPG), 1996 WL 507323, at *2 (S.D.N.Y. Sept. 5,
1996) (finding that the deprivation of recreational privileges for three days does not violate
the Eighth Amendment); see also Calderon v. Wheeler, No. 9:06-CV-0963 (GTS/DEP),
2009 WL 2252241, at *14 (N.D.N.Y. July 28, 2009) ("Deprivations of exercise for limited
periods have been found in several instances not to support a constitutional claim under the
Eighth Amendment."); Ford v. Phillips, No. 05 CIV. 6646 (NRB), 2007 WL 946703, at *9
(S.D.N.Y. Mar. 27, 2007) ("[A]s a matter of law, minor and temporary deprivations of
property, showers and recreation do not violate the Eighth Amendment."); Hattley v.

Goord, No. 02Civ.2339(WHP)(RLE), 2003 WL 1700435, at *8 (S.D.N.Y. Mar. 27, 2003)
(noting that one hour of recreation per day and 23 hours of confinement "are the normal
conditions of an SHU").
Plaintiff also makes various allegations regarding the lighting conditions at Five
Points. In particular, Plaintiff alleges that he was subject to 24-hour illumination of his
prison cell on several occasions. (See, e.g., Dkt. 46 at

,r,r 208, 273,

281). "Requiring

inmates to live in constant illumination can[,] . . . under certain circumstances, rise to the
level of an Eighth Amendment violation."

Jones v. Rock, No. 9:12-CV-0447

(NAM/TWD), 2013 WL 4804500, at* 10 (N.D.N.Y. Sept. 6, 2013); see Holmes v. Fischer,
No. 09-CV-00829S(F), 2016 WL 552962, at *17 (W.D.N.Y. Feb. 10, 2016) (same).
"Indeed, the Second Circuit has recognized that sleep deprivation due to constant
illumination can be [a] sufficiently serious condition[] that jeopardizes a prisoner's health."

Collins v. Fischer, No. 15-CV-103 (KMK), 2018 WL 1626528, at *6 (S.D.N.Y. Mar. 30,
- 45 -

2018) (citing Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) ("[S]leep is critical to
human existence, and conditions that prevent sleep have been held to violate the Eighth
Amendment.")). "Nevertheless, 'to succeed on a claim of illegal illumination, [a] plaintiff
must produce evidence that the constant illumination had harmful effects on his health
beyond mere discomfort."' Holmes, 2016 WL 552962, at *17 (quoting Vasquez v. Frank,
No. 05-C-528-C, 2007 WL 3254702, at *5 (W.D. Wis. Nov. 2, 2007), ajf'd, 290 F. App'x
927 (7th Cir. 2008)).
Plaintiff alleges that the constant illumination of his prison cell caused him to suffer
eye problems, headaches, sleeplessness, and depression. (See, e.g., Dkt. 46 at ,r,r 181, 191,
208, 256, 281 ). In particular, he alleges three specific occasions where his prison cell was
illuminated for extended durations. Plaintiff asserts that C.O. Farley ordered the "light to
remain on in [his] cell" for an unspecified period of time on October 1, 2010, and that
correctional lieutenant Charles Coventry ("Lieutenant Coventry") kept his cell light on "for
approximately 24 hours" on November 11, 2010. (See id. at

,r,r

191, 208). Notably,

Plaintiff further alleges that on January 14, 2011, C.0. Farley "altered his cell light so that
it remained on 24 hours a day" (id. at ,r 273), causing Plaintiff to be "unable to sleep for
close to two weeks because his cell light was on day and night" (id. at ,r 274).
"The decisions evaluating Eighth Amendment claims based on continuous lighting
in the prison setting are very 'fact-driven,' generally turning on the degree of illumination,
the duration of the inmate's exposure, the extent of harm it causes, and the penological
justification for the lighting." Quick v. Graham, No. 9:12-CV-1717 (DNH/ATB), 2016

WL 873853, at *5 (N.D.N.Y. Jan. 8, 2016) (quoting Booker v. Maly, No. 9:12-CV-246
- 46 -

(NAM/ATB), 2014 WL 1289579, at* 18-19 (N.D.N.Y. Mar. 31, 2014), aff'd, 590 F. App'x
82 (2d Cir.2015)), report and recommendation adopted, 2016 WL 879310 (N.D.N.Y. Mar.
7, 2016), vacated (Mar. 7, 2016), and report and recommendation adopted, 2016 WL
1261107 (N.D.N.Y. Mar. 30, 2016).

Defendants have not submitted any evidence

disputing the fact that Plaintiff was subjected to periods of 24-hour prison cell illumination.
Instead, Defendants argue that Plaintiff has failed to set forth any injury caused by these
lighting conditions that rises to the level of an Eighth Amendment violation. (See Dkt.
59-2 at 33-34). In several cases where summary judgment was deemed appropriate, the
court relied upon the low wattage of the light bulbs illuminating the inmate's prison cell.

See, e.g., Booker, 2014 WL 1289579, at *18 & n.27 (noting that "a 3-watt LED bulb is
much less bright than the 9 or 13-watt illumination that was found acceptable" in other
cases); McGee v. Gold, No. l:04-CV-335, 2010 WL 5300805, at *5 (D. Vt. Aug. 3, 2010)
("The record indicates that Vermont prisons are using compact fluorescent lighting
between 5 and 8 watts, fluorescent bulbs between 7 and 8 watts, and 10-watt incandescent
bulbs. These intensities are in a range that courts have generally found permissible under
the Constitution." (collecting cases)) (footnote omitted), report and recommendation

adopted sub nom. McGee v. Pallito, No. 1:04-CV-00335, 2010 WL 5389996 (D. Vt. Dec.
20, 2010), vacated on other grounds and remanded sub nom. Kimber v. Tallon, 556 F.
App'x 27 (2d Cir. 2014) (finding class counsel's representation deficient). By contrast,
Defendants have not provided any indication of the intensity of the cell lights installed at
Five Points.

- 47 -

The Court recognizes that Plaintiffs medical records disclose very little to suggest
that his cell lights caused any alleged ailments. Nevertheless, Plaintiff appears to have
complained of blurry or impaired vision on several occasions (see, e.g., Dkt. 59-10 at 2-3,
48, 59, 108, 112), and he associated these symptoms with his cell lights at least twice,
indicating that the "lights hurt[] his eyes," and that the "lights ... annoy me" (id. at 50,
99). In fact, Plaintiff lodged the former complaint on January 16, 2011,just two days after
C.0. Farley allegedly "altered his cell light so that it remained on 24 hours a day." (Dkt.
46 at ,r 273; Dkt. 59-10 at 50). Although other causes could have resulted in or at least
contributed to Plaintiffs alleged sleeplessness and eye problems, Defendants have failed
to submit evidence supporting such a conclusion on their motion. Cf. McGee, 2010 WL
5300805, at *7 ("The affidavit of Dr. Burroughs-Biron establishes that there are a number
of potential causes for the symptoms being alleged."). Furthermore, in the absence of
evidence demonstrating the intensity of the lighting or the need for such illumination to
sustain a secure prison environment, the fact that Plaintiffs medical records do not
conclusively establish that his injuries were caused by the prison cell lights is not
determinative. Cf. Huertas v. Sec'y Penn. Dep't of Corr., 533 F. App'x 64, 68 & n.7 (3d
Cir. 2013) (noting that the plaintiff failed to provide "competent medical evidence"
demonstrating that his injuries were caused "because of the lighting" conditions, but
relying on the defendants' explanation "that the constant illumination is required for
security purposes" and the lack of evidence that "the lights were kept on for any
impermissible purpose" in affirming summary judgment); Tafari v. McCarthy, 714 F.
Supp. 2d 317, 368 (N.D.N.Y. 2010) (distinguishing case law where the defendants "failed
- 48 -

to cite any legitimate penological justification for their conduct" and relying on record
submissions regarding safety and security concerns to grant summary judgment on the
plaintiffs "retaliatory lighting" claim).
Therefore, because Plaintiff alleges that he suffered periods of 24-hour illumination
of his prison cell, which resulted in headaches, eye problems, depression, and the inability
"to sleep for close to two weeks" (Dkt. 46 at 'if 274; see id. at 'jf'if 181, 191, 208, 256, 273,
281 ), in the absence of admissible evidence refuting these sworn statements, Defendants
have failed to establish their entitlement to judgment as a matter oflaw, see Keenan v. Hall,
83 F.3d 1083, 1091 (9th Cir. 1996) (denying summary judgment, despite the defendants'
supporting evidence to the contrary, where the plaintiff"alleged that large florescent lights
directly in front of and behind his cell shone into his cell 24 hours a day, so that his cell
was 'constantly illuminated, and [he] had no way of telling night or day,' and that this
condition caused him 'grave sleeping problems' and other mental and psychological
problems"), opinion amended on denial ofreh 'g, 135 F.3d 1318 (9th Cir. 1998); cf Murray
v. Edwards Cty. Sheriff's Dep't, 248 F. App'x 993, 998 (10th Cir. 2007) (distinguishing

Keenan because the plaintiffs "own testimony indicated that the lights only sometimes
disturbed his sleep and that he suffered headaches as a result of his loss of sleep only every
now and then") (emphases added).

Accordingly, Plaintiffs Eighth Amendment

conditions-of-confinement claim for the unlawful illumination of his prison cell may
proceed against C.0. Farley and Lieutenant Coventry.
Plaintiff further asserts that various correctional officials allegedly entered his
prison cell and unlawfully searched his materials on several occasions. (0kt. 46 at 'if'if 130,
- 49 -

183-84, 218, 273, 436). However, Plaintiff does not appear to allege that any of these
searches occurred with greater frequency than twice in a single month. See Lashley v.
Wakefield, 367 F. Supp. 2d 461, 471 (W.D.N.Y. 2005) ("The number of searches during

the five or six month time period is not excessive, in light of the policy at Five Points that
cells are searched once or twice a month."); Little v. Mun. Corp., 51 F. Supp. 3d 473,498
(S.D.N.Y. 2014) ("[T]he three searches specifically alleged, as well as the general
allegation that Plaintiffs were subject to 'intense discriminatory search[e]s,['] are
insufficient to satisfy the objective element of an Eighth Amendment claim."). Plaintiffs
conclusory assertions that the searches took place "without cause" and "to harass" Plaintiff
are insufficient to raise a triable issue of fact, and thus, Defendants are granted summary
judgment on this claim as well. Polkv. Olles, No. 12-CV-01106S(F), 2015 WL 10381751,
at *8 (W.D.N.Y. Dec. 29, 2015) ("Plaintiff offers only conclusory assertions in support of
his position that the cell search was other than a routine random search, which statements
are insufficient to avoid summary judgment."), report and recommendation adopted, 2016
WL 777313 (W.D.N.Y. Feb. 29, 2016).
V.

Plaintiff's Common Law Causes of Action
Plaintiff has also asserted common law causes of action for assault, battery,

intentional infliction of emotional distress, negligent infliction of emotional distress, and
false imprisonment. (Dkt. 46 at 99-101 ). Defendants have not set forth specific arguments
addressing these claims. While assault and battery claims are treated similarly to a Fourth
Amendment excessive force claim, see Kavazanjian v. Rice, No. 03-CV-1923 (FB) (SMG),
2008 WL 5340988, at *7 (E.D.N.Y. Dec. 22, 2008) ("[I]n effect, 'the test for whether a
- 50 -

plaintiff can maintain [a state-law assault-and-battery] cause of action against law
enforcement officials is ... the exact same test as the one used to analyze a Fourth
Amendment excessive force claim."' (quoting Hogan v. Franco, 896 F. Supp. 1313, 1315
n.2 (N.D.N.Y. 1995))), an Eighth Amendment excessive force claim is not so analytically
aligned with its common law counterparts, see Davidson v. Brzezniak, No. 95-CV-00204RJA, 2011 WL 3236209, at *13 (W.D.N.Y. July 28, 2011) ("Although there is some
overlap between the standards for assessing a prison official's liability for assault and
battery under the common law and liability under the Eighth Amendment for use of
excessive force, the standards are not identical."); Dufort v. Burgos, No. 04-CV-4940 (FB)
(LB), 2005 WL 2660384, at *2 (E.D.N.Y. Oct. 18, 2005) (same). As Judge Friendly

explained several decades ago:
Certainly the constitutional protection [of the cruel and unusual punishment
clause] is nowhere nearly so extensive as that afforded by the common law
tort action for battery, which makes actionable any intentional and
unpermitted contact with the plaintiffs person or anything attached to it and
practically identified with it; still less is it as extensive as that afforded by the
common law tort action for assault[.]
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (citation omitted), rejected on other
grounds by Graham v. Connor, 490 U.S. 386 (1989); see also Hernandez v. Lattimore, 612

F.2d 61, 67 (2d Cir. 1979) ("Just as malpractice does not become a constitutional violation
merely because the victim is a prisoner, so, too, not every assault and battery gives rise to
a cause of action under the Eighth Amendment because the victim happens to be a
prisoner." (citation omitted)).

- 51 -

Since Defendants have set forth no specific arguments addressing any of these
distinct causes of action, Defendants have failed to carry their burden of demonstrating
their entitlement to judgment as a matter of law, and thus, Plaintiffs common law claims
may proceed. See, e.g., Guzman v. Sposato, No. 13-CV-6829 (JMA) (AYS), 2018 WL
1597395, at *5 (E.D.N.Y. Mar. 31, 2018) (stating that while the defendants "have ...
moved for summary judgment based on qualified immunity," they have "not offered any
specific argument as to why they are entitled to qualified immunity as to the excessive
force claims," and concluding that the plaintiffs excessive force claims survive summary
judgment); Shao v. City Univ. of NY, No. 12-CV-1566 (RJS), 2014 WL 5038389, at *6
(S.D.N.Y. Sept. 30, 2014) (stating that while the defendants "purport to seek summary
judgment with respect to all of [the p]laintiffs claims, [the d]efendants do not specifically
address [the p]laintiffs hostile work environment claim in either their opening brief or
reply brief," and finding that the defendants have failed to demonstrate that they are entitled
to judgment as a matter of law on that claim); Frederick v. Sheahan, No. 6:10-CV-6527
(MAT), 2014 WL 3748587, at *9 (W.D.N.Y. July 29, 2014) ("At this juncture, the Court
declines to grant summary judgment in Sgt. Bolton's favor as to this claim, since he did
not specifically address or move to dismiss the failure to supervise claim."); see also Sprott
v. Franco, No. 94 Civ. 3818 (PKL), 1997 WL 79813, at *1 n.1 (S.D.N.Y. Feb. 25, 1997)

(noting that the defendants "do not specifically argue for summary judgment with respect
to plaintiffs§ 1981 claim in their notice of motion or in their supporting memorandum of
law," and stating that "[t]he Court will not consider this issue without the benefit of briefing
from the parties"); see generally Adeghe v. Janssen Pharm., Inc., No. 16 CIV. 2235 (LGS),
- 52 -

2017 WL 4839063, at *2 (S.D.N.Y. Oct. 24, 2017) (noting that the defendant "made no
particularized arguments" as to certain claims in its initial motion for summary judgment
and finding that the defendant's "new arguments to support summary judgment on the
claims it had neglected to specifically address in its initial briefing . . . need not be
considered" on its motion for reconsideration).
VI.

First Amendment Retaliation Claims
Because of the "near inevitability of decisions and actions by prison officials to

which prisoners will take exception and the ease with which claims of retaliation may be
fabricated, [courts in this Circuit] examine prisoners' claims of retaliation with skepticism
and particular care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see Khudan v.
Lee, No. 12-CV-8147 (RJS), 2016 WL 4735364, at *6 (S.D.N.Y. Sept. 8, 2016) ("Courts

generally review claims of 'retaliation by prisoners "with skepticism" because of the ease
with which a retaliation claim may be fabricated."' (quoting Bolton v. City of New York,
No. 13-CV-5749 RJS, 2015 WL 1822008, at *2 (S.D.N.Y. Apr. 20, 2015))), app.
dismissed, No. 16-3534, 2016 WL 10100723 (2d Cir. Dec. 8, 2016).

Accordingly,

retaliation claims must "be 'supported by specific and detailed factual allegations,' not
stated 'in wholly conclusory terms.'" Dolan v. Connolly, 794 F.3d 290,295 (2d Cir. 2015)
(quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds
by Swierkiewicz v. Sorema NA., 534 U.S. 506 (2002)).

To the extent Plaintiff alleges that certain defendants falsified his medical records
or omitted certain information from them (see, e.g., Dkt. 46 at

11

150, 156, 224, 233,

306-07, 313, 329), those allegations, standing alone, do not provide a basis to support a
- 53 -

§ 1983 cause of action, see Micolo v. Fuller, No. 6:15-CV-06374(MAT), 2016 WL

6404146, at *3 (W.D.N.Y. Oct. 28, 2016) (noting that "the only omission attributed to
Jones is a failure to record all of [the p]laintiff's alleged injuries in the treatment note" and
stating that "this alleged omission does not amount to a constitutional violation"); Williams

v. Bentivegna, No. 14-CV-6105-CJS, 2015 WL 162994, at *7 (W.D.N.Y. Jan. 13, 2015)
("Williams' complaints that prescribed medication was not provided to him, or that the
doctors wrote false information in his medical record, might amount to malpractice, but
not a constitutional violation."); see also Crenshaw v. Hartman, 681 F. Supp. 2d 412,415
(W.D.N.Y. 2010) ("The law is clear that 'the issuance of false misbehavior reports against
an inmate by corrections officers is insufficient on its own to establish a denial of due
process."' (quoting Sita! v. Burgio, 592 F. Supp. 2d 355, 357 (W.D.N.Y. 2009))).
Nonetheless, "[a] prisoner may be able to state a constitutional claim by alleging facts
indicating that false charges were brought against him in retaliation for the prisoner's
exercise of a constitutionally protected right, such as the filing of grievances." Crenshaw,
681 F. Supp. 2d at 415.
To prevail on a First Amendment retaliation claim, a prisoner must demonstrate
that: "(1) he engaged in protected speech or activity; (2) the defendant took adverse action
against him; and (3) there was a causal connection between the protected speech or activity
and the adverse action." Simmons v. Adamy, 987 F. Supp. 2d 302, 306 (W.D.N.Y. 2013)
(citing Espinal v. Goord, 558 F.3d 119, 227 (2d Cir. 2009)).
Plaintiff alleges that several correctional officers filed false misbehavior reports
against him in retaliation for his filing of grievances against them, and that certain medical
- 54 -

personnel denied him appropriate care and medications in retaliation for the grievances he
filed against them as well. (See, e.g., Dkt. 46 at ,r,r 215,220,272,279,328,418,420,422,
424, 428, 430, 432, 434, 436, 438, 440, 442, 445, 450, 453, 456). "Because the filing of
prison grievances is a protected activity, Plaintiff meets the first prong of the test." Nelson
v. McGrain, No. 6:12-CV-6292 (MAT), 2015 WL 7571911, at *1 (W.D.N.Y. Nov. 24,
2015) (citation omitted). "The Second Circuit has defined 'adverse action' in the prison
context as 'retaliatory conduct "that would deter a similarly situated individual of ordinary
firmness from exercising ... constitutional rights.""' Adams v. Rock, No. 9:12-CV-1400
(GLS/ATB), 2015 WL 1312738, at *10 (N.D.N.Y. Mar. 24, 2015) (quoting Gill v.
Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)). "[C]ourts have found that 'denial of

medical evaluation, treatment, and adequate pain medication' can suffice to establish
adverse action under a First Amendment retaliation analysis." Castro v. Heath, No. 9:12CV-01250 (MAD), 2013 WL 5354241, at *10 (N.D.N.Y. Sept. 23, 2013) (quoting Burton
v. Lynch, 664 F. Supp. 2d 349, 366 (S.D.N.Y. 2009)); see Williams v. Fisher, No. 02 CIV.

4558(LMM), 2003 WL 22170610, at *11 (S.D.N.Y. Sept. 18, 2003) (finding the second
element satisfied where the plaintiff alleged that medical staff revoked a "necessary
medical rehabilitative treatment" as a result of the filing of a grievance). In addition, "[i]t
is well settled that filing ... a false misbehavior report is an adverse action." James v.
Mosko, No. 13-CV-5-LJV-MJR, 2016 WL 8671478, at *6 (W.D.N.Y. July 22, 2016)

(citation omitted), report and recommendation adopted, 2017 WL 397474 (W.D.N.Y. Jan.
30, 2017); Reedv. Doe No. 1, No. 9:11-CV-0250 (TJM/DEP), 2012 WL 4486086, at *5
(N.D.N.Y. July 26, 2012) ("The filing of a false misbehavior report can qualify as an
- 55 -

adverse action for purposes of a First Amendment retaliation." (citing Gill, 389 F.3d at
384)), report and recommendation adopted, 2012 WL 4486085 (N.D.N.Y. Sept. 27, 2012);
Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) ("Filing a false misbehavior

report about Mateo ... would deter a similarly situated person of ordinary firmness from
exercising his First Amendment rights."). Thus, Plaintiff has also sufficiently alleged an
"adverse action," satisfying the second element of a First Amendment retaliation claim.
However, Plaintiff has failed to raise a triable question of fact as to whether there is
a causal connection between the filing of his grievances and the alleged adverse actions at
issue.
In determining whether a causal connection exists between the plaintiffs
protected activity and a prison official's actions, a number of factors may be
considered, including: (1) the temporal proximity between the protected
activity and the alleged retaliatory act; (2) the inmate's prior good
disciplinary record; (3) vindication at a hearing on the matter; and (4)
statements by the defendant concerning his motivation.
Buntingv. Conway, No. 04-CV-0731A (HKS), 2010 WL 5332280, at *7 (W.D.N.Y. Nov.

1, 2010) (citing Colon, 58 F.3d at 872), report and recommendation adopted, 2010 WL
5313308 (W.D.N.Y. Dec. 20, 2010).
Given that many of the alleged adverse actions seem to have occurred within weeks
or even days of Plaintiffs grievances, it appears that Plaintiff relies on the temporal
proximity between the filing of his grievances and the alleged retaliatory acts to establish
the necessary causal connection-although Plaintiffs opposition papers do not discuss this
element in any great detail. (See Dkt. 93 at .S 1-54). However, while "the temporal
proximity of the filing of the grievance" and an "adverse action" is "circumstantial
- 56 -

evidence of retaliation, such evidence, without more, is insufficient to survive summary
judgment." Williams, 111 F. Supp. 2d at 290; see Ayers v. Stewart, 101 F.3d 687, 1996
WL 346049 (Table), at *1 (2d Cir. 1996) (stating that the plaintiff's "reliance on
circumstantial evidence of retaliation-namely, the proximity of the disciplinary action to
his complaint where no misbehavior reports were previously filed against him-does not
suffice to defeat summary judgment"); see also Colon, 58 F.3d at 873 ("If . . .
circumstantial evidence represented the sum total of Colon's proof, we might be inclined
to affirm the grant of summary judgment based on the weakness of Colon's case."); see

generally Flaherty, 713 F.2d at 13 (acknowledging the ease in which a plaintiff may
manufacture a claim for retaliation, and stating that summary judgment is appropriate if
the claim appears insubstantial). Furthermore, the sheer volume of grievances filed by
Plaintiff diminishes the weight attributed to the temporal proximity of any of his retaliatory
allegations. (See Dkt. 46 at 1408 (alleging that Plaintiff filed about 155 grievances "from
March 25, 2010 through June 5, 2011")); Andino v. Fischer, 698 F. Supp. 2d 362, 385
(S.D.N.Y. 2010) ("While there is some proximity between the complaints and the alleged
adverse actions, this results from the large number of complaints in a short period of
time.").
In addition, Plaintiff accumulated a lengthy disciplinary record while incarcerated.
It is undisputed that "[b]ecause Plaintiff had accumulated so much SHU time from
incidents occurring prior to 2010, he did not serve" an SHU penalty imposed for an incident
occurring in May 27, 2010, until over three years later in December 2013. (See Dkt. 59-1
at 1 22; Dkt. 93-1 at 1 22). The fact that Plaintiff was ultimately found guilty of at least
- 57 -

some of the charged conduct asserted in many if not all of the misbehavior reports filed
against him (see Dkt. 93 at 53; Dkt. 93-5 at ,r 61; see also Dkt. 59-1 at ,r 19; Dkt. 93-1 at

,r 19)-and that those findings were subsequently affirmed (see Dkt. 93 at 53; Dkt. 93-5 at
,r 72)-"certainly suggests that there was a valid basis for the issuance of the report, and
[P]laintiff s conclusory assertion that it was retaliatory in nature fails to state a plausible
claim," Crenshaw v. Hartman, 681 F. Supp. 2d 412, 416 (W.D.N.Y. 2010); see White v.
Bergenstock, No. 9:08-CV-717, 2009 WL 4544390, at *7 (N.D.N.Y. Nov. 25, 2009)
(stating that since ''the charges in the misbehavior report have never been
overturned[,] ... there is no sufficient allegation that the misbehavior report was false in
any material respect"); Cusamano v. Sobek, 604 F. Supp. 2d 416, 478 (N.D.N.Y. 2009)
(noting that the plaintiff "has alleged that he was ultimately convicted of the disciplinary
charge leveled" against him and that "the conviction was affirmed on appeal, plausibly
suggesting that what caused him to receive the referenced misbehavior report was his own
misconduct"). Furthermore, a large number of Plaintiffs allegations pertaining to the
retaliatory conduct purportedly advanced against him are alleged "upon information and
belief." (See, e.g., Dkt. 46 at ,r,r 220, 241, 248, 272, 281, 328, 415, 418, 420, 422, 424,
428, 430, 432, 434, 438, 440, 442, 445, 450, 453, 456). "[C]onclusory allegations 'upon
information and belief,' as [P]laintiff advances here, cannot defeat summary judgment."
Little v. Massari, 526 F. Supp. 2d 371, 376-77 (E.D.N.Y. 2007); see Estate of Gustafson
ex rel. Reginella v. Target Corp., 819 F.3d 673, 677 n.4 (2d Cir. 2016) ("The verified
answer is stated only ' [u]pon information and belief,' rather than on the basis of personal
knowledge, and therefore may not be considered in opposition to summary judgment."
- 58 -

(alternation in original) (citation omitted)); Dellacava v. Painters Pension Fund of
Westchester & Putnam Ctys., 851 F .2d 22, 26 (2d Cir. 1988) (stating that an explanation
based "'upon information and belief ... could not have been considered in the summary
judgment motion"); cf Patterson v. Cty. ofOneida, NY., 375 F.3d 206,219 (2d Cir. 2004)
("[A] verified pleading, to the extent that it makes allegations on the basis of the plaintiffs
personal knowledge, and not merely on information and belief, has the effect of an affidavit
and may be relied on to oppose summary judgment." (emphasis added)).
The Court is cognizant of the Second Circuit's instruction to view claims of First
Amendment retaliation in this context with care and skepticism given their potential for
abuse. Dawes v. Walker, 239 F.3d 489,491 (2d Cir. 2001), overruled on other grounds by
Swierkiewicz v. Sorema NA., 534 U.S. 506 (2002). Certainly, the number of grievances
and sick-call requests filed by Plaintiff provide substantial fodder for the manufacture of
numerous claims of retaliation. See generally Davidson v. Bartholome, 460 F. Supp. 2d
436, 444 (S.D.N.Y. 2006) (noting that the "possibility of abuse" of a retaliation claim is
"ever present," but was "especially apparent in the instant case" where the plaintiff had
"filed approximately 150 previous lawsuits"). Indeed, in light of Plaintiffs failure to raise
a triable issue of fact pertaining to his claim for deliberate medical indifference, as
previously discussed, Plaintiff cannot sustain a viable claim for the retaliatory denial of
constitutionally adequate medical treatment. See Bilal v. White, 494 F. App'x 143, 147 (2d
Cir. 2012) ("As for the delay in Bilal's receipt of prescription pain medication, we
conclude, for substantially the same reasons that we reject Bilal's Eighth Amendment
claim, that the record presented fails to bring Bilal's retaliation claim within 'the ambit of
- 59 -

constitutional protection."' (quoting Dawes, 239 F.3d at 493)); Vail v. Lashway, No. 9:12CV-1245 (GTS/RFT), 2014 WL 4626490, at *19 (N.D.N.Y. Sept. 15, 2014) (dismissing a
retaliation claim where "there is no evidence that [the p]laintiff was ever deprived of
adequate medical care," and stating that the court's "conclusion in this regard is, on its
own, likely sufficient to grant summary judgment against [the p]laintiffs medical
retaliation claims"); Cole v. Levitt, No. 07-CV-00767(M), 2009 WL 4571828, at *10
(W.D.N.Y. Dec. 4, 2009) ("Having concluded that Dr. Levitt was not deliberately
indifferent to plaintiffs medical needs, I likewise conclude that there is no evidentiary
basis to conclude that her conduct was retaliatory."); see generally Adams, 2015 WL
131273 8, at * 10 (stating that "[e]ven where a complaint or affidavit contains specific
assertions, the allegations may still be deemed conclusory if [they are] . . . largely
unsubstantiated by any other direct evidence" (quotation omitted)).
Therefore, for the foregoing reasons, Plaintiffs First Amendment retaliation claim
is dismissed. 18

To the extent Plaintiff also alleges that certain correctional officers and medical
personnel made hostile remarks or threats against him on various occasions (see, e.g., Dkt.
46 at ,r,r 145, 164, 212, 215, 225, 248, 286, 288, 348), these allegations fail to give rise to
a viable claim for retaliation, see Roseboro v. Gillespie, 791 F. Supp. 2d 353,373 (S.D.N.Y.
2011) (finding that the plaintiffs retaliation "claim fails because an inmate 'has no right to
redress simply because [an officer] made a hostile or derogatory comment about him."'
(quoting Davidson v. Bartholome, 460 F. Supp. 2d 436, 446 (S.D.N.Y. 2006) (dismissing
retaliation cause of action where the defendant "became hostile and began cursing" at the
plaintiff and told the plaintiff ''that he was going to issue him a 'false' misbehavior
ticket"))); see also Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) ("The claim that
a prison guard called Purcell names also did not allege any appreciable injury and was
properly dismissed.").
18

- 60 -

VII.

Plaintiff's Right to Access to the Courts

"Interference with legal mail implicates a prison inmate's rights to access to the
courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S.
Constitution." Davis v. Goard, 320 F.3d 346, 351 (2d Cir. 2003). The right of access to
the courts "requires state prisons 'to give prisoners a reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the courts."' Bellezza v.
Holland, No. 09 CIV. 8434, 2011 WL 2848141, at *4 (S.D.N.Y. July 12, 2011) (quoting
Bounds v. Smith, 430 U.S. 817,825 (1977)). "To state a claim for denial of access to the

courts-in this case due to interference with legal mail-a plaintiff must allege that the
defendant 'took or was responsible for actions that hindered [a plaintiffs] efforts to pursue
a legal claim."' Davis, 320 F.3d at 351 (quoting Monsky v. Moraghan, 127 F.3d 243,247
(2d Cir. 1997)). "[P]risoners who bring a claim for the violation of a derivative right of
access to the courts must demonstrate 'actual injury' in order to have standing." Collins v.
Goard, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008). "In other words[,] 'the plaintiff must

show that a non-frivolous legal claim had been frustrated or was being impeded due to the
actions of prison officials."' Cancel v. Goard, No. 00 CIV 2042 LMM, 2001 WL 303713,
at *4 (S.D.N.Y. Mar. 29, 2001) (quoting Warburton v. Underwood, 2 F. Supp. 2d 306,312
(W.D.N.Y. 1998)).
Nowhere in Plaintiffs submissions does he provide factual proof that a nonfrivolous legal claim was frustrated due to the alleged interference with his legal mail.
Instead, Plaintiff only alleges, in conclusory form, that "[a]s a result of the failure of
[certain of his] legal documents to reach the court, Plaintiffs rights were violated in the
- 61 -

associated court proceedings." (Dkt. 46 at

,r 352).

Plaintiff fails to elaborate upon this

general allegation in any respect. Accordingly, because Plaintiff has failed to raise a triable
issue of fact as to whether he suffered an "actual injury" from any alleged interference with
his legal mail, Plaintiffs claim is dismissed. 19
VIII. Failure to Provide Kosher Meals in Violation of the First Amendment's Free
Exercise Clause

"The Free Exercise Clause of the First Amendment is an 'unflinching pledge to
allow our citizenry to explore ... religious beliefs in accordance with the dictates of their
conscience."' Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (quoting Patrick v.
LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)). "Prisoners have long been understood to

retain some measure of the constitutional protection afforded by the First Amendment's
Free Exercise Clause." Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); see Jackson,

To the extent Plaintiff also alleges that he was denied access to the courts due to
constitutionally inadequate access to law library resources (see, e.g., Dkt. 46 at ,r,r 211,
354, 363, 368, 404, 407), this too fails to raise a triable issue of fact because Plaintiff has
failed to establish that he suffered an "actual injury" as a result of any of these purported
deprivations, see Benjamin v. Kerik, 102 F. Supp. 2d 157, 162 (S.D.N.Y. 2000) (noting
that the Supreme Court has "held that prisoners do not have a freestanding right to law
libraries or legal assistance," and that inmates "must show actual injury" (citing Lewis v.
Casey, 518 U.S. 343, 353 n.4 (1996) (rejecting "a freestanding right to libraries," and
stating that the "[d]enial of access to the courts could not possibly cause the harm of
inadequate libraries, but only the harm of lost, rejected, or impeded legal claims"))), aff'd
sub nom. Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001); see also Smith v. Donaher, No.
12-CV-6035-CJS, 2013 WL 2531750, at *9 (W.D.N.Y. June 10, 2013) ("Plaintiff was not
denied access to the courts merely because of the amount of time that it took to make the
copies."); Muhammad v. Hodge, No. 07-CV-0232(SR), 2010 WL 1186330, at *5
(W.D.N.Y. Mar. 24, 2010) ("Courts in the Second Circuit have repeatedly held that a
prisoner does not have a constitutional right to free copies ....").
19

- 62 -

196 F .3d at 320 ("An inmate is therefore entitled to a reasonable accommodation of his
religious beliefs."). "The reach of the free exercise clause extends to 'an inmate's diet and
participation in religious meals."' Riehlv. Martin, No. 9:13-CV-439 GLS/TWD, 2014 WL
1289601, at *8 (N.D.N.Y. Mar. 31, 2014) (quoting Johnson v. Guiffere, No. 9:04-CV-57,
2007 WL 3046703, at *4 (N.D.N.Y. Oct. 17, 2007)); see Bass v. Coughlin, 976 F.2d 98,
99 (2d Cir. 1992) ("[P]rison officials must provide a prisoner a diet that is consistent with
his religious scruples."). The right to participate in religious meals includes the right to a
kosher diet. See Thaxton v. Simmons, No. 9:10-CV-1318 MAD/RFT, 2012 WL 360104,
at *5 (N.D.N.Y. Jan. 5, 2012) ("Among those protected rights is the right to receive a
.kosher diet."), report and recommendation adopted, 2012 WL 360141 (N.D.N.Y. Feb. 2,
2012).
"Whether or not brought by prisoners, free exercise claims often test the boundaries
of the judiciary's competence, as courts are 'singularly ill-equipped to sit in judgment on
the verity ofan adherent's religious beliefs."' Ford, 352 F.3d at 588 (quoting Patrick, 745
F.2d at 157)).

"An individual claiming violation of free exercise rights need only

demonstrate that the beliefs professed are 'sincerely held' and in the individual's 'own
scheme of things, religious."' Fifth Ave. Presbyterian Church v. City of New York, 293
F.3d 570, 574 (2d Cir. 2002) (quoting Patrick, 745 F.2d at 157). However, "scrutiny of
the prisoner's sincerity is often essential in 'differentiating between those beliefs that are
held as a matter of conscience and those that are animated by motives of deception and
fraud."' Ford, 352 F.3d at 588 (quoting Patrick, 745 F.2d at 157).

- 63 -

Plaintiff has alleged that his "religious belief is jewish" and that his "religion is jews
too." (Dkt. 93-5 at

1 87;

see Dkt. 46 at

1 182

(alleging that Plaintiff had informed

correctional sergeant T. Barber ("Sgt. Barber") "that he was Jewish")). Plaintiff claims
that he was supposed to receive Kosher loaves, but instead he was being fed non-Kosher
loaves because Defendants did not care about his religious beliefs. (See Dkt. 93-5 at

1 103 ).

However, "[n]o where [sic] in the Complaint does Plaintiff allege the sincerity of

his beliefs and what role the kosher diet plays therein." Thaxton, 2012 WL 360104, at *6;

see Meadows v. Lesh, No. 10-CV-00223 M, 2010 WL 3730105, at *3 (W.D.N.Y. Sept. 17,
2010) ( acknowledging that the sincerity of a religious belief is usually a factual issue, but
stating that "the complaint must still assert sufficient allegations necessary to establish that
plaintiffs claim is based upon a sincerely held religious belief').

Indeed, "[m]ere

membership in an established religion is not enough to show that a prisoner has sincerely
held religious beliefs." Thaxton, 2012 WL 360104, at *6 (citing Ford, 352 F.3d at 588).
Although Plaintiff alleges that he was not provided Kosher loaves, he fails to allege that
his adherence to a Kosher diet is a "sincerely held" religious belief, nor does he explain
why a Kosher diet is important to his religion. See Woodward v. Ali, No. 9:13-CV-1304
LEKIRFT, 2015 WL 5711899, at *8 (N.D.N.Y. Sept. 29, 2015) (noting that the plaintiff
"has not explained why the removal of his name from the Ramadan feed-up list and denial
of two meals substantially burdened his exercise of religious beliefs" and finding that "in
the absence of any admissible facts with respect to [the p]laintiffs personally held beliefs
or how [the d]efendants' conduct impacted those beliefs, we find that [the p]laintiff has
failed to meet his burden of showing that his professed religious beliefs are sincerely held
- 64 -

and were infringed"); Turner v. Oakland Police Officers, No. C 09-03652 SI, 20 IO WL
816797, at *4 (N.D. Cal. Mar. 9, 2010) (dismissing the plaintiffs free exercise claim
where, "[a]bsent some description of plaintiffs religion, his religious practices, and the
role and importance of blessing oil in the religion, it is impossible to determine whether
plaintiffs beliefs are sincerely held and whether blessing oil is rooted in that religious
belief'); Evans v. Albany Cty. Corr. Facility, No. 9:05-CV-1400 GTS/DEP, 2009 WL
1401645, at *8 (N.D.N.Y. May 14, 2009) (granting summary judgment on a free exercise
claim where the plaintiff failed to "allege[] or establish[] how receiving non-vegetarian
meals infringed on his sincerely held religious beliefs" (citing Benjamin v. Coughlin, 905
F.2d 571, 580 (2d Cir. 1990))); see also Odom v. Dixion, No. 04-CV-889F, 2008 WL
466255, at *6 (W.D.N.Y. Feb. 15, 2008) (describing a plaintiffs burden of demonstrating
his religious beliefs are sincerely held as "a threshold requirement for any religious
freedom claim under either the First Amendment or the [Religious Land Use and
Institutionalized Persons Act]").
Recognizing that "the issue of sincerity can rarely be determined on summary
judgment," Snyder v. Murray City Corp., 124 F.3d 1349, 1353 (10th Cir. 1997), opinion
vacated in part on reh 'gen bane on other grounds, 159 F.3d 1227 (10th Cir. 1998), and
that "courts are not permitted to inquire into the centrality of a professed belief to the
adherent's religion or to question its validity in determining whether a religious practice
exists," Fifth Ave. Presbyterian Church, 293 F .3d at 574, the Court nevertheless concludes
that Plaintiff has failed to raise a triable issue of fact as to whether his beliefs are sincerely
held, see generally Ochoa v. Connell, No. 9:05-CV-1068 GLSRFT, 2007 WL 3049889, at
- 65 -

*7 (N.D.N.Y. Oct. 18, 2007) ("Ochoa fails to allege the nature and content of his beliefs,
how he came to hold them, and what difference they have made in his life. Ochoa does not
describe his participation in other religious activities such as Sabbath observances, dietary
strictures, religious meetings, holy feast days, or other significant religious activities to
which he purportedly adheres to so that we may comfortably determine that he has pied
enough facts to establish that his beliefs are both religious and sincerely held.").
Accordingly, Plaintiffs First Amendment Free Exercise Clause claims are dismissed. See
Farid v. Smith, 850 F.2d 917, 926 (2d Cir. 1988) ("Because Farid has neither alleged nor

submitted any proof that he sincerely holds to any religious belief that mandates the use of
Tarot cards, we conclude that summary judgment was appropriate on the free exercise
claim.").
IX.

Plaintiff's Equal Protection Clause and Section 1985 Causes of Actions
A.

Equal Protection Claim

"The Equal Protection Clause of the Fourteenth Amendment 'is essentially a
direction that all persons similarly situated should be treated alike.'" Barnes v. Ross, 926
F. Supp. 2d 499, 506 (S.D.N.Y. 2013) (quoting City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439 (1985)). "In order to prove a violation of the Equal Protection

Clause, a plaintiff must demonstrate evidence of 'purposeful discrimination ... directed at
an identifiable or suspect class."' Harnage v. Caldonero, No. 3: 16CV1876(AWT), 2017
WL 2190057, at *3 (D. Conn. May 18, 2017) (quoting Giano v. Senkowski, 54 F.3d 1050,
1057 (2d Cir. 1995)).

- 66 -

Plaintiff has failed to allege membership in a protected class and has submitted no
evidence demonstrating that he was treated disparately from similarly situated individuals.
Indeed, it is well-established that "[p]risoners are not a part of a suspect class." Tavares v.

Amato, 954 F. Supp. 2d 79, 99 (N.D.N.Y. 2013) (citing Scott v. Dennison, 739 F. Supp. 2d
342, 362 (W.D.N.Y. 2010)); see Lee v. Governor of State ofN.Y., 87 F.3d 55, 60 (2d Cir.
1996) ("[P]risoners either in the aggregate or specified by offense are not a suspect
class ...."); see also Harvey v. Harder, No. 9:09-CV-154 TJM/ATB, 2012 WL 4093792,
at *7 n.12 (N.D.N.Y. July 31, 2012) (noting that the assertion of an equal protection claim
would be meritless because the plaintiff "has not alleged that any other inmates, similarly
situated to plaintiff, were treated differently regarding classification"), report and

recommendation adopted, 2012 WL 4093760 (N.D.N.Y. Sept. 17, 2012). Plaintiffs
allegations of discrimination are based "upon information and belief' and acts of verbal
harassment or are otherwise too conclusory to demonstrate a triable issue of fact. (See,

e.g., Dkt. 46 at

,r,r 1,

103, 172, 197, 415); Giano, 54 F.3d at 1057 (concluding that the

plaintiffs "equal protection claim fails" where he "presents no evidence" of discrimination
"against a particular class of inmates"); see generally DeJesus v. Tierney, No. 9:04-CV298, 2006 WL 839541, at* 11 (N.D.N.Y. Mar. 28, 2006) (stating that it is "well settled that
verbal harassment itself does not rise to the level of a constitutional violation," and that
"[v]erbal abuse, vulgarity, and even threats are insufficient to rise to the level of
constitutional violations").
"When a plaintiff alleges an equal protection violation (without also alleging
discrimination based upon membership in a protected class), the plaintiff must plausibly
- 67 -

allege that he or she has been intentionall~ treated differently from others similarly situated
and no rational basis exists for that different treatment." Progressive Credit Union v. City

ofNew York, 889 F.3d 40, 49 (2d Cir. 2018). This category of equal protection violation
is commonly known as a "class of one" claim. Vill. of Willowbrook
562, 564, (2000).

V;

Olech, 528 U.S.

"[C]lass-of-one plaintiffs must show an extremely high degree of

similarity between themselves and the persons to whom they compare themselves."

Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). In other words, the Plaintiff
must be ''prima facie identical" to the person or persons who have received different
treatment. Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005) (quotation omitted),

overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008).
Overall, "to succeed on a class-of-one claim, a plaintiff must establish that
(i) no rational person could regard the circumstances of the plaintiff to differ
from those of a comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy; and (ii) the
similarity in circumstances and difference in treatment are sufficient to
exclude the possibility that the defendants acted on the basis of a mistake."

Progressive Credit Union, 889 F.3d at 49 (quoting Ruston v. Town Bd. for Skaneateles,
610 F.3d 55, 59-60 (2d Cir. 2010)).
It is unclear whether Plaintiff has asserted a "class of one" equal protection claim,
but to the extent that he has attempted to do so, Plaintiff "has not alleged sufficient facts to
show the requisite degree of similarity to" any other inmate. Harnage, 2017 WL 2190057,
at *3; see Riley v. Roycroft, No. 16 CV 2227 (VB), 2017 WL 782917, at *8 (S.D.N.Y. Feb.
28, 2017) (granting motion to dismiss where the plaintiff alleges that he was not given
certain medication that "was provided to other inmates with the same medical condition,"
- 68 -

because he "fails to allege facts that demonstrate a substantial similarity between himself
and the other inmates with whom he compares himself'); Ranke! v. Town of Somers, 999
F. Supp. 2d 527, 545 (S.D.N.Y. 2014) (dismissing the plaintiffs "class of one" equal
protection claim because he "has provided no facts from which it may be plausibly inferred
that ... any other citizens were similarly situated" and "provides no information about their
properties, situations or conduct that would support the conclusory statement that they were
similarly (let alone extremely similarly) situated"). In fact, Plaintiffs SAC "does not
identify any comparators or similarly situated entities at all," and thus, to the extent
Plaintiff raises a "class of one" equal protection claim, it "is deficient as a matter of law."

MacPherson v. Town ofSouthampton, 738 F. Supp. 2d 353, 371 (E.D.N.Y. 2010).

B.

Plaintiff's§ 1985 Claim

Similarly, Plaintiffs allegations that Defendants unlawfully conspired to violate his
constitutional rights in contravention of 42 U.S.C. § 1985(3) also fail to raise a triable issue
of fact because "Plaintiff nowhere alleges that he was a victim of a conspiracy due to his
membership in some protected class." Maish v. Austin, 901 F. Supp. 757, 764 (S.D.N.Y.
1995).

"42 U.S.C. § 1985(3) prohibits conspiracies undertaken 'for the purpose of

depriving, either directly or indirectly, any person or class of person of the equal protection
of the laws, or of equal privileges or immunities under the laws."' Id. (quoting Jews for

Jesus, Inc. v. Jewish Cmty. Relations Council of NY., Inc., 968 F.2d 286, 290-91 (2d Cir.
1992)). "Such a claim requires more than simply a showing that the defendants acted
jointly to achieve some end, and that they used unlawful means to do so. Instead, plaintiff
must show that defendants were motivated by animus toward plaintiff based on his
- 69 -

membership in some protected class." Robinson v. Allstate, 706 F. Supp. 2d 320, 328
(W.D.N.Y. 2010) (citations omitted), ajf'd sub nom. Robinson v. Allstate Ins. Co., 508 F.
App'x 7 (2d Cir. 2013).
A conspiracy claim under Section 1985(3) requires a plaintiff to allege: "l)
a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and 3) an act in furtherance of the
conspiracy; 4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States."

Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (quoting Britt v. Garcia, 457 F.3d
264, 269 n.4 (2d Cir. 2006)).
Because Plaintiff has failed to demonstrate that any conspiracy to violate his
constitutional rights arose due to his membership in a protected class, Plaintiffs§ 1985(3)
claim is without merit. In Katz v. Klehammer, 902 F.2d 204 (2d Cir. 1990), the Second
Circuit found that the plaintiffs "complaint is completely devoid of any claim of classbased animus, whether economic, political, or otherwise," and found that the § 1985(3)
claim "was properly dismissed as frivolous." Id. at 208 (noting also that the Supreme Court
has "strictly construed" the requirement that plaintiffs demonstrate class-based animus).
"The Supreme Court added a 'class-based animus' requirement to§ 1985(3) to prevent it
from being broadly, and erroneously, interpreted as providing a federal remedy for 'all
tortious, conspiratorial interferences with the rights of others.'" Maish, 901 F. Supp. at
764 (quoting Jews for Jesus, Inc., 968 F.2d at 291); see Dolan, 794 F.3d at 296 (stating
that "the term class 'unquestionably connotes something more than a group of individuals
who share a desire to engage in conduct that the § 1985(3) defendant disfavors"' and to
- 70 -

hold otherwise would permit "innumerable tort plaintiffs" to raise § 1985 claims "by
simply defining the aggrieved class as those seeking to engage in the activity the defendant
has interfered with" (quoting Town of W. Hartford v. Operation Rescue, 991 F.2d 1039,
1046 (2d Cir. 1993))). Although Plaintiff summarily alleges that the discrimination he
suffered was "based on his mental illness, race and ethnicity" (Dkt. 46 at 1 1; see id. at

11103 (alleging discrimination "on the basis of Plaintiffs race, ethnicity, and language"),
197 (alleging discrimination "based on Plaintiffs race"), 415 (alleging discrimination "on
the basis of his ethnicity and religion")), Plaintiff "fails to allege any facts showing he was
treated differently due to his membership in a protected class," Klein v. Zugabie, No. 15
CIV. 9093 (NSR), 2017 WL 374733, at *8 n.12 (S.D.N.Y. Jan. 24, 2017) (emphasis
added); see Hollman v. County ofSuffolk, No. 06-CV-3589 JFB ARL, 2011 WL 2446428,
at *11 (E.D.N.Y. June 15, 2011) (granting summary judgment on the plaintiffs § 1985
claim where he "only offers conclusory allegations that the actions involved discriminatory
animus," and finding "no evidence of racial or other class-based animus on the record");
see also Grantv. City ofSyracuse, No. 5:15-CV-445 (LEK/TWD), 2017 WL 5564605, at

*9 (N.D.N.Y. Nov. 17, 2017) ("Alonzo's argument in support of his conspiracy claim
consists of conclusory statements that the Arresting Officers' alleged misconduct can only
be explained by implicit racial bias. While it is undisputed that Alonzo is AfricanAmerican, conclusory statements linking officers' actions to race are insufficient to survive

- 71 -

summary judgment." (citation omitted)). Therefore, Plaintiffs § 1985 cause of action is
also dismissed. 20

X.

Plaintiff's Official Capacity Claims
Defendants argue that "Plaintiff sues certain defendants in their official and

individual capacities" (Dkt. 59-2 at 69), although Defendants do not cite to any allegation
suggesting that Plaintiff seeks recourse against any defendant in his or her official capacity.
However, to the extent Plaintiff seeks such relief, the Eleventh Amendment bars Plaintiffs
official-capacity causes of action.

See Gray-Davis v. New York, No. 5:14-CV-1490

GTS/TWD, 2015 WL2120518, at *7 (N.D.N.Y. May 5, 2015) ("The Eleventh Amendment
has been found to bar official capacity claims for money damages against [DOCCS]

20

While the Second Circuit does not appear to have directly addressed the issue, a
number of courts have ruled that "[t]he 'class of one' theory is insufficient to form the basis
for a§ 1985 action." Chance v. Reed, 538 F. Supp. 2d 500, 509 (D. Conn. 2008) (citing
Am. Nat'lBank& Tr. Co. ofChicagov. Town ofCicero, No. 01 C 1396, 2001 WL 1631871,
at * 12 (N .D. Ill. Dec. 14, 2001) ("While the 'class of one' may qualify under a section 1983
equal protection claim, plaintiffs fail to cite, and this Court fails to find, any case stating
that such a class qualifies for protection under section 1985."); see Royal Oak Entm 't, LLC
v. City ofRoyal Oak, Ml, 205 F. App'x 389,399 (6th Cir. 2006) ("Plaintiffs argue that just
as they may comprise a 'class of one' for purposes of their equal protection claim, they are
a 'class of one' for purposes of their§ 1985(3) claim. Not surprisingly, Plaintiffs provide
no authority whatsoever for this claim, and we reject it."); C & H Co. v. Richardson, 78 F.
App'x 894, 902 (4th Cir. 2003) (affirming summary judgment on§ 1985(3) claims where
the plaintiff "does not allege that the complained-of discrimination resulted from its
membership in any qualifying class"); McCleester v. Dep 't ofLabor & Indus., No. CIV.A.
3:06-120, 2007 WL 2071616, at *15 (W.D. Pa. July 16, 2007) ("The emerging consensus
among federal authority therefore falls against the 'class of one' theory in the § 1985(3)
context."). Although the Court is inclined to agree with the overwhelming consensus of
authority that a§ 1985(3) conspiracy cannot be sustained by allegations merely sufficient
to support a "class of one" equal protection claim, the Court need not decide that issue on
the facts presented. Because Plaintiff has failed to allege a "class of one" equal protection
claim, he has likewise failed to allege a § 1985(3) based upon a "class of one" theoryassuming such a claim even exists.
- 72 -

officials and parole officers."); Tompkins v. Beane, No. 9:10-CV-1200 LEK/RFT, 2012
WL 3079537, at *6 (N.D.N.Y. July 30, 2012) ("Plaintiffs claims against corrections
officers in their official capacities are ... barred by the Eleventh Amendment."); Tolliver
v. N. Y. State Corr. Officers, No. 99CIV.9555(JGK), 2000 WL 1154311, at *2 (S.D.N.Y.

Aug. 14, 2000) (dismissing official capacity claims where "[a]ll of the defendants in this
case are state officials because they are employees of [DOCCS]").

XI.

The Failure to Demonstrate the "Personal Involvement" of Several Named
Defendants
Plaintiff has also failed to allege the personal involvement of several of the named

defendants in any of the purported constitutional violations set forth in his SAC and
supplemental papers. "Because Section 1983 imposes liability only upon those who
actually cause a deprivation of rights, 'personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983. "'
Blyden, 186 F.3d at 264 (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

Correctional officer Matthew Null ("C.O. Null") is only alleged to have instructed
Plaintiff to stand back from his prison cell door so that "C.O. Null could observe whether
Plaintiff was wearing pants." (Dkt. 46 at ,r 324). This allegation fails to implicate C.O.
Null in an unconstitutional act or any other wrongful conduct. As such, any claim asserted
against C.0. Null is dismissed.
Correctional officers Jason Lortus ("C.O. Lortus") and M. Ranger ("C.O. Ranger")
are alleged to have denied Plaintiff medical attention after Nurse Cheasman allegedly hit
Plaintiffs hands with a bucket. (Id. at ,r 213). Plaintiff alleges that the incident was not
- 73 -

recorded in a logbook, which "violat[ed] the doctor's directives, policies, and regulations."
(Id.). As discussed above, Plaintiff received adequate care and treatment, and the medical

records indicate that he was examined on November 22, 2010, but refused to show his
hands to the medical staff. (See Dkt. 59-10 at 110). Plaintiffs allegations against C.O.
Lortus and C.O. Ranger also fail to establish their involvement in any constitutional
violation. See also White v. Rock, No. 9:13-CV-392 (GTS/CFH), 2016 WL 11478222, at
* 12 (N.D.N.Y. Feb. 23, 2016) ("The claim that a defendant failed to file an injury report is
insufficient to satisfy the subjective prong of the deliberate indifference test."), report and·

recommendation adopted, 2016 WL 1248904 (N.D.N.Y. Mar. 29, 2016); Harris v.
Howard, No. 907-CV-1065 TJM/GJD, 2009 WL 537550, at *12 (N.D.N.Y. Mar. 3, 2009)
("Failure to complete reports is simply not an Eighth Amendment claim under any view of
the facts."); Mitchell v. Keane, 974 F. Supp. 332, 342 (S.D.N.Y. 1997) ("Williams' failure
to fill out an injury report does not state an Eighth Amendment claim. An injury report is
not medically necessary for a minimally civilized life."), aff'd, 175 F.3d 1008 (2d Cir.
1999). Accordingly, C.0. Lortus and C.0. Ranger are also dismissed from this action.
Similarly, Plaintiff has named the Assistant Commissioner of DOCCS Mental
Health Services, Diane Vanburen, as a defendant, but has not set forth any allegations that
plausibly suggest her personal involvement in any constitutional violation. (Dkt. 46 at

,r 86).

The same can be said for defendant Eileen R. Diniston, the Regional Health Services

Administrator (id. at ,r 72), as well as Acting Deputy Superintendent Thomas Tanea (Dkt.
93-5 at 3). No allegations of wrongdoing are asserted against these defendants as well. As
a result, they too are terminated from this action.
- 74 -

Likewise, Plaintiff names the Commissioner of the New York State Office of
Mental Health, Michael Hogan, the Director of Mental Health Services for DOCCS, Doris
Romero, and the Assistant Commissioner of the New York State Office of Mental Health,
Howard Holanchock, as defendants in this action, but fails to make any specific allegations
of wrongdoing against them either. Instead, he collectively refers to these individuals as
the "MHU Defendants" (Dkt. 46 at 1 87), and generally claims "[f]or the abuses and
complaints chronicled herein, the MHU Defendants are jointly and severally liable due to
their participation in the wrongs against Plaintiff and/or their wrongful refusal to address
the issues when brought to their attention through complaints and grievances" (id. at 1349).
However, because none of these three defendants is alleged to have committed any
wrongful act, individually or in the collective, the SAC fails to set forth sufficient facts that
plausibly suggest their personal involvement in the harms otherwise set forth therein.
Therefore, these three defendants are also dismissed from this action.
Relatedly, insofar as Plaintiff seeks relief for Defendants' failure to take action on
his grievances or to process his administrative appeals (see, e.g., Dkt. 46 at 11 248, 264,
271, 313, 320, 408-09, 413), these allegations fail to sJate a constitutional claim under

§ 1983. "Generally, the receipt of a letter is insufficient to establish personal involvement
under § 1983. Instead, courts typically require something more before finding personal
involvement." Ward v. Rabideau, 732 F. Supp. 2d 162, 169 (W.D.N.Y. 2010) (citations
omitted); see Candelaria v. Higley, No. 04-CV-277A, 2008 WL 478408, at *2 (W.D.N.Y.
Feb. 19, 2008) ("Numerous courts have held that merely writing a letter of complaint does
not provide personal involvement necessary to maintain a § 1983 claim."); Johnson v.
- 75 -

Wright, 234 F. Supp. 2d 352, 363 · (S.D.N.Y. 2002) ("Personal involvement will be
found ... where a supervisory official receives and acts on a prisoner's grievance or
otherwise reviews and responds to a prisoner's complaint."); Gayle v. Lucas, No. 97 CIV.
0883 (MGC), 1998 WL 148416, at *4 (S.D.N.Y. Mar. 30, 1998) ("Generally, the allegation
that a supervisory official ignored a prisoner's letter protesting unconstitutional conduct is
not itself sufficient to allege the personal involvement of the official so as to create liability
under § 1983."). As such, Plaintiffs allegations that Defendants ignored or failed to act
upon his grievances or letters do not state a viable § 1983 claim. See Walker v. Pataro,
No. 99CIV.4607(GBD)(AJP), 2002 WL 664040, at * 12 (S.D.N.Y. Apr. 23, 2002) ("[I]f
mere receipt of a letter or similar complaint were enough, without more, to constitute
personal involvement, it would result in liability merely for being a supervisor, which is
contrary to the black-letter law that § 1983 does not impose respondeat superior
liability."). 21

Similarly, to the extent Plaintiff alleges that certain supervisory defendants failed to
overturn or otherwise rectify the actions of Five Points medical staff (see, e.g., Dkt. 46 at
,r,r 140-41, 264), this claim fails to establish a viable § 1983 cause of action as well.
Initially, insofar as Plaintiffs claim would impose respondeat superior liability upon
officials in supervisory positions for the actions of their subordinates, Plaintiffs claim is
rejected because, as previously discussed, a § 1983 claim must be premised upon the
"personal involvement" of the defendant and cannot be based simply upon theories of
vicarious liability. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)
("[S]upervisor liability in a § 1983 action depends on a showing of some personal
responsibility, and cannot rest on respondeat superior."); Poe v. Leonard, 282 F.3d 123,
140 (2d Cir. 2002) ("A supervisor may not be held liable under section 1983 merely
because his subordinate committed a constitutional tort."). In addition, supervisory
officials without any medical training are permitted to rely upon the medical decisions of
experienced and credentialed medical personnel. See Hardy v. Diaz, No. 908-CVI352GLSATB, 2010 WL 1633379, at *7 (N.D.N.Y. Mar. 30, 2010) ("The Superintendent
cannot be liable under Section 1983 for failure to supervise the prison medical staff,
21

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Furthermore, "[g]rievance procedures are the internal procedures and requirements
of DOCCS, and as such, prison inmates neither have a constitutionally protected right to a
grievance procedure, nor, as a general rule, is there a federal right to have them properly
administered." Gomez v. Sepiol, No. 11-CV-1017SR, 2014 WL 1575872, at *15
(W.D.N.Y. Apr. 11, 2014) (citations omitted); see Shell v. Brzezniak, 365 F. Supp. 2d 362,
370 (W.D.N.Y. 2005) ("If prison officials ignore a grievance that raises constitutional
claims, an inmate can directly petition the government for redress of that claim.").
"Therefore, the refusal to process an inmate's grievance or failure to see to it that
grievances are properly processed does not create a claim under§ 1983." Cancel v. Goord,
No. 00 CIV 2042 LMM, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001). In addition,
because "[t]here is no constitutional right to an inmate appeals process," Dolberry v.
Levine, 567 F. Supp. 2d 413, 416 (W.D.N.Y. 2008) (quoting Washington v. Early, No.
103CV05263LJOSMSPC, 2008 WL 795603, at * 15 (E.D. Cal. Mar. 24, 2008), report and

because he lacks the medical training and authority to do so."), report and recommendation
adopted, 2010 WL 1633390 (N.D.N.Y. Apr. 21, 2010); see also Brock v. Wright, 315 F.3d
158, 164 (2d Cir. 2003) (affirming summary judgment where a supervisory official, who
"had no medical training," gave "automatic and complete deference" to certain medical
decisions made by the medical staff); Cuoco v. Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000)
(finding it not unreasonable for a "non-medical prison official" to refrain from "dictat[ing]
the specific medical treatment to be given to particular prisoners-for whatever reason").
Such reliance does not demonstrate "personal involvement" in a constitutional violation.
See Morales v. Fischer, 46 F. Supp. 3d 239, 255 (W.D.N.Y. 2014) (dismissing claims
against "the Superintendent" of the correctional facility where he had "no medical training,
and [was] entitled to rely on the medical decisions of the doctors ... in making his decision
affirming the denial of [the p]laintiffs grievances"). Accordingly, insofar as Plaintiff
alleges that Deputy Superintendents of Administration Jeffrey Minnerly and Matthew
Thomas failed to resolve issues related to Plaintiffs medical treatment, Plaintiffs
allegations fail to state a claim pursuant to § 1983.
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recommendation adopted, 2008 WL 2261399 (E.D. Cal. June 2, 2008)), any failure to
process Plaintiffs administrative appeals does not support a§ 1983 cause of action.
XII.

Plaintiff's Claim for the Failure to Intervene
Lastly, "because '[t]here can be no failure to intervene ... where there was no

constitutional violation,"' Hardy v. Daly, No. 17-2906, 2018 WL 4631831, at *1 (2d Cir.
Sept. 26, 2018) (quoting Tavares v. City ofNew York, No. 08 Civ. 3782, 2011 WL 5877550,
at *7 (S.D.N.Y. Oct. 17, 2011)), Plaintiffs cause of action for the failure to intervene is
dismissed, except insofar as Plaintiff has sufficiently stated such a claim associated with
the use of excessive force claims that have been permitted to proceed.
XIII. The Matter is Stayed Pending the Resolution of Defendants' Motion to Revoke
Plaintiff's IFP Status
Because some of Plaintiffs claims survive Defendants' motion for partial summary
judgment, and Defendants' motion to revoke Plaintiffs IFP status is held in abeyance
pending the Second Circuit's decision in Shepherd, the Court sua sponte considers whether
to stay the balance of this action until Defendants' revocation motion can be resolved.
"[T]he power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants." Landis v. N Am. Co., 299 U.S. 248, 254 (1936); see

Javier H v. Garcia-Botello, 218 F.R.D. 72, 74 (W.D.N.Y. 2003) ("[A] 'federal district
court has the inherent power, in the exercise of its discretion, to stay an action."' (quoting

Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007, 1010 (E.D.N.Y. 1992))).
"Accordingly, the decision to issue a stay is 'firmly within a district court's discretion."'
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Tradewinds Airlines, Inc. v. Soros, No. 08 CIV. 590IJFK, 2009 WL 435298, at *3
(S.D.N.Y. Feb. 23, 2009) (quoting Am. Shipping Line, Inc. v. Massan Shipping Indus., 885
F. Supp. 499, 502 (S.D.N.Y. 1995)); see Louis Vuitton Malletier S.A. v. LY USA, Inc., 676
F.3d 83, 97 (2d Cir. 2012) ("[A] court may decide in its discretion to stay civil proceedings
when the interests of justice seem to require such action." (quoting Kashi v. Gratsos, 790
F.2d 1050, 1057 (2d Cir. 1986))). A court may determine that a stay is appropriate and "in
the interest of judicial economy, ... pending the outcome of proceedings which bear upon
the case, even if such proceedings are not necessarily controlling of the action that is to be
stayed." LaSala v. Needham & Co., 399 F. Supp. 2d 421, 427 (S.D.N.Y. 2005).
In determining whether to stay a lawsuit, courts weigh the following factors:
( 1) the private interests of the plaintiffs in proceeding expeditiously with the
civil litigation as balanced against the prejudice to the plaintiffs if delayed;
(2) the private interests of and burden on the defendants; (3) the interests of
the courts; (4) the interests of persons not parties to the civil litigation; and
(5) the public interest.

Luv N' Care, Ltd. v. Regent Baby Prod. Corp., No. 10 CIV. 9492, 2014 WL 572524, at *2
(S.D.N.Y. Feb. 13, 2014) (quoting Kappel v. Comfort, 914 F. Supp. 1056, 1058 (S.D.N.Y.
1996)).
Under the facts presented here, a stay would not unduly prejudice Plaintiff. In fact,
considering the robust medical documentation submitted by Defendants on this motion,
and the law as it currently stands in this Circuit, Plaintiff faces an uphill battle to persuade
the Court that he may maintain his IFP status. To be sure, the Second Circuit may solidify
the approach presently used by courts in this Circuit to evaluate such motions. However,
it may also divert from this approach, or, at the very least, elucidate nuances thereof in a
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manner favorable to Plaintiff. In other words, it is in Plaintiffs interest to await the Second
Circuit's opinion in Shepherd because, as it currently stands, Plaintiffs IFP status would
likely be revoked. Defendants would also benefit from the issuance of a stay. Indeed, it
would be in their interests to avoid wasting limited resources in discovery disputes against
a plaintiff who may not be entitled to IFP status. A stay is in the interests of judicial
economy as well. A premature resolution of Plaintiffs IFP status may result in duplicative
proceedings before this Court should the Second Circuit decide to depart from the approach
taken by the other circuit courts that have opined on the issue. Lastly, while there is no
evidence that any non-parties are specifically interested in the outcome of this matter, it is
in the public interest to prevent the limited time and resources of the judiciary, the Office
of the New York State Attorney General, and pro bono counsel from being unnecessarily
diverted to a matter that could possibly be impacted should the Court revoke Plaintiffs IFP
status.
Accordingly, the Court finds that it is in the interests of justice to require this action
be stayed pending the resolution of Defendants' motion to revoke Plaintiffs IFP status.

CONCLUSION
For the foregoing reasons, Defendants' motion for partial summary judgment (Dkt.
59) is granted in part and denied in part, and Defendants' motion to revoke Plaintiffs IFP
status (Dkt. 59) is held in abeyance pending the Second Circuit's decision in Shepherd v.

Annucci, No. 17-2261 (2d Cir. July 21, 2017). To the extent Plaintiff asserts§ 1983
excessive use of force and related failure to intervene claims as well as common law causes
of action against Barry Countryman, Jacob Smith, Richard Cioffa, Correctional Officer
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VanHorn, Kimberly Cheasman, Annette Holm, Remy Babineaux, Richard Goodliff,
Correctional Sergeant T. Barber, Nurse T. Carroll, and Correctional Sergeant D. Gleason,
those claims survive Defendants' motion for partial summary judgment. In addition,
Plaintiffs Eighth Amendment conditions-of-confinement claims asserted against Charles
Coventry and Eric Farley for unlawful prison cell illumination will also proceed to
discovery. The Clerk of Court is directed to terminate all other defendants from this action
and is also directed to stay this matter until further order of the Court.
SO ORDERED.

Dated:

March 15, 2019
Rochester, New York

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