Fowler v. Fischer et al

Filing 114

DECISION AND ORDER: Defendants' motion for summary judgment (ECF No. 106 ) is GRANTED. The Clerk of Court is directed to enter judgment in favor of Defendants and close this case. The Pretrial Conference set for June 5, 2020 and the Jury Trial set for June 29, 2020 are cancelled. Signed by Hon. Frank P. Geraci, Jr. on 4/17/2020. (GMS)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMARR FOWLER,
Plaintiff,
Case # 13-CV-6546-FPG
DECISION AND ORDER

v.

NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION (“DOCCS”); BRIAN FISCHER,
Commissioner of DOCCS; ALBERT PRACK,
Director of Special Housing of DOCCS;
KAREN CROWLEY, Deputy Superintendent
of Programs of Wende Correctional Facility;
ROBERT KYLE, Corrections Officer of Wende
Correctional Facility; JEFFREY J. PATTERSON,
Corrections Officer of Wende Correctional Facility;
PATRICK J. FARRELL, Corrections Officer of Wende
Correctional Facility; NURSE ADMINISTRATOR SMITH,
Nurse Administrator of Wende Correctional Facility;
DAVID ROCK, Superintendent of Upstate Correctional
Facility; DR. ADAMS, Medical Doctor of Upstate Correctional
Facility; and STEVEN BULLIS, Commissioner’s Hearing
Officer of Upstate Correctional Facility;
Defendants.
INTRODUCTION
Plaintiff Jamarr Fowler brings this action pursuant to 42 U.S.C. § 1983, the Americans
with Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”), alleging that Defendants
violated his constitutional and federal statutory rights while he was incarcerated at Wende
Correctional Facility and Upstate Correctional Facility. ECF No. 1. Defendants now move for
summary judgment. ECF No. 105. Plaintiff, through counsel, opposes the motion. ECF No. 110.
For the following reasons, Defendants’ motion for summary judgment (“MSJ”) is GRANTED.

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LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most favorable
to the non-moving party and draws all reasonable inferences in the non-moving party’s favor. See
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party
“may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C. v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
DISCUSSION
Plaintiff raises five separate claims; Defendants seek summary judgment on all of them.
The Court addresses each claim in turn.
I.

Excessive Force and Retaliation Claims Against Correctional Officers Kyle,
Patterson, and Farrell
On March 24, 2011, while at Wende, Plaintiff and Defendant-Correctional Officers Robert

Kyle, Jeffrey Patterson, and Patrick Farrell were involved in an altercation. Wende’s records
indicate that Plaintiff was concealing a razor blade in his sock, and when Kyle, Patterson, and
Farrell attempted to restrain Plaintiff and recover it, he drew the blade and resisted them, elbowing
Patterson in the head. ECF No. 106-6 at 11. Plaintiff, in contrast, claims that the officers attacked
him in retaliation for filing grievances against them. ECF No. 1 ¶¶ 27-28.
This factual dispute is not relevant for purposes of this MSJ because even if Plaintiff’s
version of events is true, Plaintiff failed to exhaust his administrative remedies as to his excessive
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force and retaliation claims. Plaintiff never filed a grievance about the March 24, 2011 incident.
He does not dispute this. Rather, he argues that, because he was transferred from Wende to
Upstate, “he could not effectively pursue administrative remedies at Wende while being house at
Upstate.” ECF No. 110 at 6. This is incorrect. DOCCS’s grievance procedures specifically
permit—indeed, require— inmates to file grievances “at the facility where the inmate is housed
even if it pertains to another facility.” N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a); see also
LionKingzulu v. Jayne, 714 F. App’x 80, 82 (2d Cir. 2018) (summary order) (holding that
§ 701.5(a) is an available administrative remedy). Exhaustion of administrative remedies is
mandatory under the Prisoner Litigation Reform Act. Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)).
Accordingly, the Court grants summary judgment to Defendants Kyle, Patterson, and Farrell on
this claim.1
II.

Due Process Claims Against Deputy Superintendent Crowley, Hearing Officer Bullis,
Commissioner Fischer, and Director Prack
After Plaintiff was issued a misbehavior report for the March 24, 2011 incident, Defendant

Karen Crowley, Deputy Superintendent of Programs at Wende, held a disciplinary hearing, which
began on April 1, 2011 and ended on May 3, 2011. ECF No. 1 ¶¶ 32-33; ECF No. 106-6 at 32.
Crowley found Plaintiff guilty and penalized him with 360 days in the Special Housing Unit
(“SHU”) and loss of privileges. ECF No. 1 ¶ 36.
Plaintiff appealed Crowley’s decision to Defendant Brian Fischer, Commissioner of
DOCCS, on May 3, 2011. Id. ¶ 37. Fischer forwarded the appeal to Defendant Albert Prack,
Director of Special Housing of DOCCS. Id. On July 8, 2011, Prack reversed Crowley’s decision
and ordered a rehearing to be held by July 18, 2011 and completed by July 25, 2011 Id. ¶¶ 38, 41.

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Plaintiff also asserts a failure to protect claim against Defendant Fischer based on this incident. ECF No. 1 ¶ 45.
Defendants do not address this claim in their MSJ, but because Plaintiff did not file a grievance as to this incident, his
claim against Fischer is also unexhausted , and the Court therefore grants summary judgment to Fischer.

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When Plaintiff received notice of Prack’s decision, he wrote to Fischer explaining that his
misbehavior “ticket” needed to be expunged, not just reversed and reheard. Id. ¶ 39. He also
complained that his appeal had not been heard in a timely manner. Id.
Plaintiff was transferred from Wende to Upstate. The rehearing took place at Upstate
before Defendant-Hearing Officer Steven Bullis. The rehearing began—after several
continuances—on July 27, 2011 and ended—after several more continuances—on September 14,
2011. Id. ¶ 41; ECF No. 106-6 at 30. Bullis found Plaintiff guilty of all charges and imposed the
same penalty of 360 days in the SHU and loss of privileges. ECF No. 1 ¶ 42.
Plaintiff alleges numerous due process violations with respect to these proceedings.
As to the original disciplinary hearing, Plaintiff claims that the hearing was not started or
completed within the established time periods, and that Crowley denied him witnesses, camera
footage, documentary evidence, and a fair and impartial hearing. Id. ¶¶ 33-35, 47.
As to the appeal, Plaintiff claims that Fischer and Prack failed to timely process the appeal,
and that Fischer failed to expunge the misbehavior ticket instead of just reversing it. Id. ¶¶ 3740, 45, 48.
As to the rehearing, Plaintiff claims that Bullis denied him documentary evidence,
witnesses, a fair and impartial hearing, and the right to prepare a defense, and he asserts that the
rehearing was not timely held. Id. at ¶¶ 41-43, 49.
A. The Original Hearing Before Deputy Superintendent Crowley
Defendants argue that Plaintiff cannot establish a due process violation as to the original
hearing because the reversal, rehearing, and imposition of the same penalty cured any defects in
the original hearing. See Barnes v. Henderson, 628 F. Supp. 2d 407, 411-412 (W.D.N.Y. 2009)
(explaining that a reversal on administrative appeal will cure a due process violation in a
disciplinary hearing if the reversal occurs before the inmate has begun serving a punitive sentence)
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(citing Walker v. Bates, 23 F.3d 652, 658-59 (2d Cir. 1994), cert. denied, 515 U.S. 1157 (1995)).
In Barnes, an inmate was found guilty after a disciplinary hearing and was sentenced to 18 months
in the SHU. Id. at 410. On appeal, the inmate’s sentence was reduced to six months. Id. At the
time of the appellate decision, Plaintiff had begun serving his sentence in the SHU, but had not yet
served six months. Id. Accordingly, the court found “any possible procedural defects were cured
through the administrative appeal process before plaintiff began serving any punitive sentence as
a result of such defects.” Barnes, 628 F. Supp. 2d at 412.
Similarly, here, although Plaintiff began serving his time in the SHU before his appeal was
granted, on rehearing, he received the exact same sentence as he was originally given, and thus
served no time pursuant to the original hearing. He therefore cannot establish a due process
violation arising from the original hearing. See, e.g., Knox v. Dir. of Corr., No. 95 C 6988, 1998
U.S. Dist. LEXIS 3810, at *5 (N.D. Ill. Mar. 24, 1998) (finding no due process violation where
inmate received same penalty on rehearing as on original hearing, even though he had spent three
months in segregation by the time the rehearing took place); cf. Smallwood v. Scibana, 227 F.
App’x 747, 749 (10th Cir. 2007) (unpublished op.) (in habeas context, holding that an action
became moot when the petitioner had challenged procedures at the initial hearing, the misconduct
conviction was vacated, and the same sanctions were imposed at the rehearing); Rodriguez v.
Ratledge, 715 F. App’x 261, 267 (4th Cir. 2017) (unpublished op.) (inmate could not show
prejudice resulting from second hearing where it imposed same sentence as original hearing).
Accordingly, the Court grants summary judgment to Defendant Crowley on this claim.
B. Timeliness of Hearings and Appeals
Plaintiff claims that Defendants Fischer and Prack took too long to process his appeal, and
that his hearings were not conducted in accordance with established timeframes. Courts have held
that similar claims do not establish a due process violation. See, e.g., Soto v. Walker, 44 F.3d 169,
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173 (2d Cir. 1995) (“[T]he violation of 7 N.Y.C.R.R. § 251-5.1(a) [regarding the timing of a
disciplinary hearing] alone would not be enough generally to establish a constitutional claim.”);
Burroughs v. Mitchell, 325 F. Supp. 3d 249, 278 (N.D.N.Y. 2018) (“[A] violation of the rule set
forth in 7 N.Y.C.R.R. § 251-5.1, without more, is not enough to establish a federal constitutional
claim.”); Barnes v. Henderson, 628 F. Supp. 2d 407, 411 (W.D.N.Y. 2009) (“Due process for an
inmate disciplinary hearing does not encompass a right to a speedy hearing.”). Accordingly, the
Court grants summary judgment to Defendants Crowley, Bullis, Fischer, and Prack on these
claims.
C. Expungement
Plaintiff claims that the original hearing disposition should have been expunged rather than
just reversed. The record evidence indicates that Prack in fact ordered it to be expunged. See ECF
No. 106-6 at 4 (Memo from Prack to Inmate Records Coordinator at Upstate directing
expungement). Plaintiff thus received the relief he claims should have been given. And in any
case, “the Second Circuit has not recognized that prisoners have a constitutional right to have
incorrect information expunged from their files.”

Gee v. Annucci, No. 9:17-CV-0009

(MAD/ATB), 2017 U.S. Dist. LEXIS 16658, at *10 (N.D.N.Y. Feb. 7, 2017) (finding that the
claim that a DOCCS record contains false information is not cognizable under § 1983); see also
Amaker v. Schiraldi, No. 15-CV-4879 (CBA) (VMS), 2016 U.S. Dist. LEXIS 56610, at *13
(E.D.N.Y. Apr. 26, 2016). Accordingly, the Court grants summary judgment to Defendants
Fischer and Prack on this claim.
D. The Rehearing Before Officer Bullis – Denial of Evidence, Witnesses, a Fair and
Impartial Hearing, and the Ability to Present a Defense
In the context of a prison disciplinary hearing, due process requires that an inmate receive
“advance written notice of the charges against him; a hearing affording him a reasonable

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opportunity to call witnesses and present documentary evidence; a fair and impartial hearing
officer; and a written statement of the disposition[.]” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.
2004).
However, there are “certain limitations to these procedural protections.” Constant v.
Prack, No. 16-cv-3985 (NSR), 2019 U.S. Dist. LEXIS 121629, at *48 (S.D.N.Y. July 19, 2019).
For example, there is no right to confrontation—as in a criminal prosecution—and “the right to
call witnesses must be balanced ‘against the needs of the prison.’” Id. (citing Sira, 380 F.3d at 69,
and quoting Colon v. Annucci, 344 F. Supp. 3d 612, 634 (S.D.N.Y. 2018)); see also Jackson v.
Bradt, No. 13-CV-0004M, 2014 U.S. Dist. LEXIS 76392, at *14 (W.D.N.Y. May 28, 2014) ( “[I]t
is well settled that an inmate does not possess a constitutional right to confront or cross-examine
witnesses in prison disciplinary hearings.”). Further, inmates are not entitled to hearing officers
“with the same level of impartiality required by judges,” though they are “entitled to a hearing
untainted by arbitrary or pre-determined findings of guilt.” Hinton v. Prack, No. 9:12-CV-1844
(LEK/RFT), 2014 U.S. Dist. LEXIS 126955, at *17 (N.D.N.Y. Aug. 14, 2014). “[A] hearing
officer’s limited impartiality requirements are satisfied where the record contains ‘some evidence’
to support the officer’s findings.” Id. (quoting Superintendent v. Hill, 472 U.S. 445, 455 (1985));
see also Washington v. Gonyea, 538 F. App’x 23, 25 (2d Cir. 2013) (summary order). “This
standard is extremely tolerant and is satisfied if ‘there is any evidence in the record that supports’
the disciplinary ruling.” Sira, 380 F.3d at 69 (quoting Friedl v. City of New York, 210 F.3d 79, 85
(2d Cir. 2000)).
Here, Plaintiff claims that he was denied documentary evidence—use of force reports,
unusual incident reports, and audio/video footage of the incident—at the rehearing. The rehearing
transcript shows that Plaintiff initially told Bullis that he had not been provided any documents, so

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the rehearing was adjourned to allow for Plaintiff to receive and review the relevant documents.
In fact, the hearing was adjourned numerous times to obtain additional documents and allow
Plaintiff to review them. See, e.g., ECF No. 106-6 at 37-38, 42, 80, 83-84, 91, 106-07, 111, 118,
139-40, 156-57, 165 (Rehearing Transcript by ECF page number). Plaintiff was also advised that
if, after receiving the relevant documents, he wished to recall any witness who had testified
previously, he could do so. Id. at 67, 70-71. As to the video/audio footage of the incident, Plaintiff
never sought any audio evidence, but did request video. Id. at 162. After investigation, it was
determined and Plaintiff was advised that the camera in the area was for monitoring purposes only
and never recorded video. Id. at 170.
In any case, Plaintiff failed to respond to Defendants’ argument that summary judgment
should be granted on this claim. The Court therefore considers Plaintiff to have abandoned the
denial of evidence claim. See Gaston v. City of N.Y., 851 F. Supp. 2d 780, 796 (S.D.N.Y. 2012)
(deeming claims abandoned when plaintiff “failed to respond or even mention these claims in his
opposition brief to defendants’ summary judgment motion”).
Plaintiff also claims that he was denied witnesses at his disciplinary hearings. The Court’s
review of the rehearing transcript reveals that Bullis called the witnesses that Plaintiff identified
and tried (if unsuccessfully) to identify other witnesses that Plaintiff wanted to call but could not
identify by name. See ECF No. 106-6 at 39-40, 106, 130, 140, 143, 149, 152, 153, 169. The
rehearing was adjourned numerous times in an attempt to locate witnesses and documentary
evidence. Id. Thus, the record establishes that Bullis did not deny Plaintiff any witnesses.
Plaintiff also argues that he was denied a fair and impartial hearing. From a review of the
transcript, it appears that Plaintiff felt that Bullis interfered with Plaintiff’s ability to question the
witnesses and prepare a defense. See, e.g., id. at 48, 50, 68-71, 77, 89, 104, 149, 154. Indeed,

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Bullis frequently interrupted Plaintiff and admonished him against making “arguments” or “crossexamining” the witnesses when Plaintiff attempted to question them. The Court is sympathetic to
Plaintiff’s frustration, but, as noted, Plaintiff does not have the unlimited right to question
witnesses. See Cole v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 9:14-CV-0539
(BKS/DEP), 2016 U.S. Dist. LEXIS 114872, at *73 (N.D.N.Y. Aug. 25, 2016) (dismissing due
process claim against Bullis where plaintiff complained that he called witnesses outside of his
presence); Vigliotti v. Selsky, No. 08-CV-00875-JJM, 2014 U.S. Dist. LEXIS 51442, at *12-14
(W.D.N.Y. Apr. 14, 2014) (discussing limitations on inmates’ right to question witnesses at
disciplinary hearings); Fernandez v. Callens, No. 06-CV-0506(Sr), 2010 U.S. Dist. LEXIS
115496, at *31-25 (W.D.N.Y. Oct. 29, 2010) (same). As a matter of law, Bullis’s interference did
not violate Plaintiff’s due process rights.2
Moreover, the Court finds that there was at least “some evidence” to support Bullis’s
finding of guilt. See Hinton, 2014 U.S. Dist. LEXIS 126955, at *17; Sira, 380 F.3d at 69. The
correctional officers who were called as witnesses at the hearing testified to the version of events
that were set forth in Plaintiff’s misbehavior report—that he concealed a razor blade in his sock
and then assaulted the officers who frisked him for it.
Accordingly, the Court grants summary judgment to Defendant Bullis on this claim.
III.

Failure to Transfer Claim Against Commissioner Fischer
Plaintiff claims that he sent letters to Fischer requesting a transfer out of Wende and that

Fischer failed to act on this request.
Plaintiff failed to exhaust his administrative remedies as to this claim. Although it appears
that he filed a grievance about this claim, he failed to appeal it to the Central Office Review

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Additionally, Plaintiff points to no evidence that Bullis was biased. At most, he suggests that Bullis was more likely
to find the correctional officers more credible than Plaintiff. ECF No. 106-6 at 102, 123, 125.

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Committee (“CORC”), as required by DOCCS’s Inmate Grievance Program (“IGP”). See ECF
No. 106-1 at 1; ECF No. 106-2 at 2, 5; see also Brown v. Dubois, No. 9:15-CV-1515 (LEK/CFH),
2018 U.S. Dist. LEXIS 61661, at *3 (N.D.N.Y. Apr. 10, 2018) (“Included within the IGP’s
exhaustion requirement is the prerequisite that the inmate must file an appeal with [CORC]and
receive a response from the CORC before filing a federal lawsuit.”). Plaintiff does not dispute this
fact in his opposition memorandum or his Rule 56 Statement. ECF No. 110-2. As Defendants’
Rule 56 Statement is supported on this issue by the Declaration of Jeffrey Hale, the Court deems
Defendants’ assertion admitted. See Solomon v. City of Rochester, No. 6:17-CV-06659 EAW,
2020 U.S. Dist. LEXIS 54417, at *2 (W.D.N.Y. Mar. 27, 2020) (unopposed assertions of fact may
be admitted if supported by record evidence); Concha v. Purchase Coll. State Univ. of N.Y., No.
17 Civ. 8501 (JCM), 2019 U.S. Dist. LEXIS 119110, at *14 (S.D.N.Y. July 17, 2019).
In any case, this claim fails on its merits. Courts have held that merely receiving a letter
from an inmate is insufficient to establish personal involvement required to hold a supervisory
official liable under § 1983. See Pedraza v. Fischer, No. 9:08-CV-1057 (NAM/ATB), 2010 U.S.
Dist. LEXIS 82874, at *8 (N.D.N.Y. July 23, 2010) (“The failure of defendant Fischer to
investigate plaintiff’s claims personally due to a letter of complaint is insufficient to state a
claim.”); Barclay v. Poland, No. 03-CV-6585CJS(Fe), 2006 U.S. Dist. LEXIS 1582, at *10
(W.D.N.Y. Jan. 19, 2006) (dismissing claim against DOCCS commissioner where plaintiff only
alleged that commissioner failed to act on plaintiff’s letter requesting a transfer to another prison).
Accordingly, the Court grants summary judgment to Defendant Fischer on this claim.

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IV.

Deliberate Indifference Claims Against Nurse Administrator Smith, Superintendent
of Upstate Rock, and Medical Doctor of Upstate Adams
Plaintiff claims that Defendant Dr. Adams improperly discontinued his anti-seizure

medication, Keppra, and that Defendants Nurse Administrator Smith and Superintendent David
Rock did not rectify this situation after Plaintiff wrote to them. ECF No. 1 ¶¶ 74-82.
The claims against Smith and Rock fail for lack of personal involvement. “[A] supervisory
official’s receipt of a letter complaining about unconstitutional conduct is not enough to establish
personal involvement on the part of the official. Even the fact that an official ignored a letter
alleging unconstitutional conduct is not enough to establish personal involvement.” Brown v.
Trabout, No. 17-CV-00271 EAW, 2019 U.S. Dist. LEXIS 2786, at *11 (W.D.N.Y. Jan. 2, 2019)
(internal citations and quotation marks omitted); see also Morales v. Fischer, 46 F. Supp. 3d 239,
255 (W.D.N.Y. 2014) (finding no personal involvement where the prison superintendent was not
involved in any medical decisions regarding plaintiff); Bumpus v. Canfield, 495 F. Supp. 2d 316,
322 (W.D.N.Y. 2007) (granting summary judgment to nurse administrator where plaintiff failed
to show personal involvement beyond “testimony that he wrote her letters complaining about his
perceived lack of medical attention, and that she did not respond”).
As to Dr. Adams, Defendants argue that the discontinuation of Keppra was not a
sufficiently serious deprivation, and that Dr. Adams did not have a sufficiently culpable state of
mind. See Munger v. Cahill, 792 F. App’x 110, 112 (2d Cir. 2020) (summary order) (explaining
that to establish a deliberate indifference claim, deprivation must be objectively be sufficiently
serious; and, subjectively, the defendant must have acted with a sufficiently culpable state of mind,
i.e. criminal recklessness).
Here, Defendants submitted a Declaration from Dr. Adams in which he explained that his
decision to discontinue Keppra was based on a nurse’s report that Plaintiff had refused Keppra for
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30 days and had not shown any signs of seizures. ECF No. 106-3 ¶¶ 8-10. Keppra has possible
side effects and Dr. Adams felt that it was not in Plaintiff’s best interests to stay on unnecessary
medication. Id. ¶¶ 11-12. Dr. Adams discontinued Keppra based on his medical judgment that it
was best for Plaintiff and felt that a physical examination was not necessary to make this decision.
Id. ¶¶ 13-14. He stated that he never acted with malice or recklessness towards Plaintiff. Id. ¶ 16.
Courts have granted summary judgment to defendants in similar circumstances. See, e.g.,
Lacey v. Smith, No. 15-CV-539 (DNH/CFH), 2017 U.S. Dist. LEXIS 965, at *14 (N.D.N.Y. Jan.
3, 2017) (granting summary judgment to nurse where she concluded that plaintiff’s seizure
medication was unnecessary because he had not suffered any seizures since being taken off it);
Williams v. Senkowski, No. 9:00-CV-1580(TJM/BEP), 2003 U.S. Dist. LEXIS 28455, at *27
(N.D.N.Y. Aug. 20, 2003) (finding no culpable conduct on part of medical staff for discontinuing
seizure medication where plaintiff refused the medication and was never treated for a seizure while
incarcerated).
Plaintiff points to no evidence that would create a triable issue of fact as to the adequacy
of Dr. Adams’s care. In response to Defendants’ MSJ, Plaintiff’s counsel merely states that “I’m
not aware that it is the proper practice not to examine a patient when either prescribing medication
or ceasing the prescribing of medication.” ECF No. 110 at 5. Plaintiff’s counsel’s speculation
about proper medical practice is insufficient to create a genuine issue of fact.
Accordingly, the Court grants summary judgment to Defendants Smith, Rock, and Adams
on this claim.
V.

ADA and RA Claims
Plaintiff claims that he is hearing impaired and that DOCCS placed him a facility not

designated for the hearing impaired—Upstate—for three months in 2011. ECF No. 1 ¶¶ 53-62.

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Upstate did not offer a TTY (a telephone communication device for the deaf and hard of hearing
which uses an electronic transmission of text), an Amplified Telephone Modification, or a ClosedCaption Decoder. ECF No. 110 at 5. Further, Plaintiff claims that upon his arrival at Upstate, his
“reasonable accommodations” were confiscated. ECF No. 1 ¶ 54. He claims that DOCCS’s
actions violated his rights under the ADA and the RA.
Plaintiff’s claims fail. The record evidence shows that Plaintiff was not approved for a
TTY, an Amplified Telephone Modification, or a Closed Caption Decoder. ECF No. 106-7 at 36
(Plaintiff’s Request for Reasonable Accommodations form denying approval for these
accommodations). Thus, DOCCS did not violate his rights by placing him in a prison that did not
offer accommodations to which he was not entitled.
The only accommodation to which Plaintiff was entitled was a “shake awake alarm.” Id.
Defendants concede that Plaintiff’s shake awake alarm was confiscated at Upstate because Upstate
generally forbids them as security risks in the SHU (where Plaintiff was housed while at Upstate).
ECF No. 106-4 ¶¶ 3-4 (Declaration of Theodore Zerniak, Corrections Captain at Upstate).
Nevertheless, Plaintiff has not shown a violation of his rights under the ADA or RA based on the
confiscation of the shake awake alarm.
“In order to establish a claim under Title II of the ADA and the RA, Plaintiff must
show . . . [that] ‘he was denied the opportunity to participate in or benefit from DOCCS services,
programs, or activities, or [that] DOCCS otherwise discriminated against him by reason of his
disability.’” Quezada v. Fischer, No. 9:13-CV-00885 (MAD/TWD), 2017 U.S. Dist. LEXIS
142322, at *101 (N.D.N.Y. Aug. 31, 2017) (quoting Wright v. N.Y. State Dep’t of Corr., 831 F.3d
64, 72 (2d Cir. 2016)). Courts look to “whether a plaintiff with disabilities ‘as a practical matter’
was denied ‘meaningful access’ to services, programs, or activities to which he was ‘legally

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entitled.’” Quezada, 2017 U.S. Dist. LEXIS 142322, at *101 (quoting Henrietta D. v. Bloomberg,
331 F.3d 261, 273 (2d Cir. 2003)).
Here, Upstate accommodates hearing impaired inmates by requiring staff to knock on their
cells when performing rounds announcing programs, showers, meals, sick call, etc. ECF No. 1064 ¶¶ 5-6. Plaintiff has not identified any programs, services, or activities to which he was denied
access as a result of the confiscation of his shake awake alarm: his complaint merely makes
conclusory allegations of “pain, suffering, mental anguish and psychological torture,” ECF No. 1
¶ 62, and his response in opposition to Defendants’ MSJ does not present any argument or identify
evidence on this issue at all.
Accordingly, the Court grants summary judgment to DOCCS on this claim.
CONCLUSION
For all the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 106)
is GRANTED. The Clerk of Court is directed to enter judgment in favor of Defendants and close
this case. The Pretrial Conference set for June 5, 2020 and the Jury Trial set for June 29, 2020 are
cancelled.
IT IS SO ORDERED.
Dated: April 17, 2020
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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