Sanchez v. Ziolkowski et al
Filing
13
CORRECTED DECISION AND ORDER re 9 MOTION for Summary Judgment filed by Donna Bonning, Ziolkowski, Hawley, Brun, Fitch. Defendants' application for summary judgment is granted. The claims against all parties in their offici al capacities are dismissed. Defendants Bonning and Hawley are entitled to judgment on Plaintiffs deliberate indifference claims, and the Clerk is directed to enter judgment for both.The following claims may go forward: (1) Plaintiffs claims of exces sive force against defendants Officer Ziolkowski, Officer Brun, Officer Fitch, Sgt. John Doe 2, and John Does 1, 3, 4, 5, and 6; (2) Plaintiffs medical care claim against defendants Nurse Jane Doe 2; and (3) Plaintiffs retaliation claim against defendant John Doe 1. Signed by Hon. Charles J. Siragusa on 7/14/15. Copy of this order and the NEF mailed to pro se plaintiff.(KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LUIS SANCHEZ,
Plaintiff,
CORRECTED
DECISION AND ORDER
-vsOFFICER ZIOLKOWSKI, OFFICER BRUN, OFFICER FITCH, SGT. JOHN DOE, NURSE DONNA
BONNING, NURSE JANE DOE, NURSE HEWLEY,1
and OFFICER JOHN DOE 1–6,
Defendants.
13-CV-6657-CJS
APPEARANCES
For Plaintiff:
Luis Sanchez pro se
P.O. Box 120224
Brooklyn, NY 11212
For Defendants:
Bernard F. Sheehan, A.A.G
NYS Attorney General's Office
Department of Law
144 Exchange Boulevard
Rochester, NY 14614
(585) 327-3214
INTRODUCTION
Siragusa, J. This prisoner civil rights action is before the Court on Defendants’
motion for summary judgment filed on March 31, 2015, ECF No. 9. For the reasons
stated below, Defendants’ application is granted.
1
The spelling of this defendant’s name is incorrect and should be “Hawley.” See Hawley
Decl., Mar. 31, 2015, ECF No. 9-5.
BACKGROUND
Pursuant to the local rules, Defendants filed a statement of fact, and served
Plaintiff with a copy, as well as with a notice advising Plaintiff of the need to respond to
the statement of facts. The statement advised Plaintiff using this language:
Any party moving for summary judgment against a party proceeding pro
se shall serve and file as a separate document, together with the papers in
support of the motion, a “Notice to Pro Se Litigant Opposing Motion For
Summary Judgment: in the form indicated below. Where the pro se party
is not the plaintiff, the movant shall amend the form notice as necessary to
reflect that fact.
Notice to Pro Se Litigant Opposing Motion For Summary Judgment
Plaintiff is hereby advised that the defendant has asked the Court to decide this case without a trial based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS/HER COMPLAINT MAY BE DISMISSED WITHOUT A
TRIAL IF HE/SHE DOES NOT RESPOND TO THIS MOTION by filing
his/her own sworn affidavits or other papers as required by Rule 56(e). An
affidavit is a sworn statement of fact based on personal knowledge that
would be admissible in evidence at trial.
In short, Rule 56 provides that plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, plaintiff must submit evidence, such as witness statements or documents countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements which may include plaintiff’s own statements,
must be in the form of affidavits. Plaintiff may file and serve affidavits that
were prepared specifically in response to defendant’s motion for summary
judgment.
Any issue of fact that plaintiff whishes to raise in opposition to the motion
for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by defendant. If plaintiff
does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant’s factual assertions as true. Judgment may then be entered in defendant’s favor without a trial. Pursuant to
Rule 7.1(e) and 56.1 of the Local Rules of Civil Procedure for the Western
District of New York, plaintiff is required to file and serve the following papers in opposition to the motion: (1) a memorandum of law containing relevant factual and legal argument; (2) one or more affidavits in opposition
to the motion; and (3) a separate, short, and concise statement of the material facts as to which plaintiff contends there exists a genuine issue to be
2
tried followed by citation to admissible evidence.
In the absence of such a statement by plaintiff, all material facts set forth
in defendant’s statement of material facts not in dispute will be deemed
admitted. A copy of the Local Rules to which reference has been made
may be obtained from the Clerk’s Office of the Court.
If plaintiff has any questions, he/she may direct them to the Pro Se Office.
Plaintiff must file and serve any supplemental affidavits or materials in opposition to defendant’s motion no later than the date they are due as provided in Rule 56.1(e) of the Local Rules of Civil Procedure for the Western
District of New York.
Def.s’ Rule 56.2 Notice to Pro Se Litigants Opposing Summary Judgment, Mar. 31,
2015, ECF No. 9-1. The Court issued a motion scheduling order directing that Plaintiff
respond to the motion by May 5, 2015, and set July 30, 2015, as the date for oral argument. To date, Plaintiff has not responded to the statement of facts. The Second Circuit
held in Glazer v. Formica Corp., 964 F.2d 149 (2nd Cir. 1992) that,
When a party has moved for summary judgment on the basis of asserted
facts supported as required by Fed. R. Civ. P. 56(e) and has, in accordance with local court rules, served a concise statement of the material
facts as to which it contends there exist no genuine issues to be tried,
those facts will be deemed admitted unless properly controverted by the
nonmoving party.
Id. at 154. Since Plaintiff has not responded, the Court deems the assertions of fact 2 in
Defendants’ statement admitted for the purposes of this motion.
2
“‘[a] court may ... strike portions of an affidavit that are not based upon the affiant’s personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements.’ Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir.1999) (emphasis added). However, nothing in the Federal Rules or the Local Rules of this District requires a court to
strike such material. See Sauerhaft v. Board of Educ. of the Hastings–on–Hudson Union Free
Sch. Dist., 05 Civ. 09087(PGG), 2009 WL 1576467, at *7–8, 2009 U.S. Dist. LEXIS 46196, at
*29 (S.D.N.Y. June 2, 2009). Rather, the Court ‘may decline to conduct a line-by-line analysis
and simply disregard’ any material that does not comply with Rule 56(e). Id. at *8, 2009 U.S.
Dist. LEXIS 46196 at *30; see also, e.g., LaSalle Bank Nat'l Ass'n v. Merrill Lynch Mortgage
Lending Inc., 04 Civ. 5452(PKL), 2007 U.S. Dist. LEXIS 59303, at *17 (S.D.N.Y. Aug. 13, 2007);
Rus, Inc. v. Bay Indus., Inc., 322 F.Supp.2d 302, 307(S.D.N.Y.2003).” Primmer v. CBS Studios,
Inc., 667 F. Supp. 2d 248, 254 (S.D.N.Y. 2009).
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1.
Defendant Donna Bonning RN is a registered nurse, and she is licensed as a nurse to practice medicine in New York State. Declaration of Donna Bonning RN, dated March 26, 2015, ¶ 2.
2.
Defendant Bonning has been employed as a nurse doctor by the
New York State Department of Corrections and Community Supervision (DOCCS) for the past 6 years. Bonning Decl. ¶ 4.
3.
During the relevant period, Defendant Bonning was a nurse assigned to Attica Correctional Facility (Attica). Bonning Decl. ¶ 5.
4.
Defendant Vance Hawley RN is a registered nurse, and he is licensed as a nurse to practice medicine in New York State. Declaration of Vance Hawley RN, dated March 30, 2015, ¶ 2.
5.
Defendant Hawley was assigned as a nurse to Attica in 2010, but
he no longer works for Attica or DOCCS. Hawley Decl. ¶ 4.
6.
During the relevant period, Defendant Hawley was a nurse assigned to Attica. Hawley Decl. ¶ 4.
7.
Mr. Sanchez, who is the Plaintiff in this matter, was an inmate at Attica during the relevant time. Bonning Decl. ¶ 6; Hawley Decl. ¶ 6.
8.
Plaintiff has since been released from custody.
9.
Mr. Sanchez claims that he was assaulted on December 30, 2010
by corrections officers while he was at Attica. Bonning Decl. ¶ 8;
Hawley Decl. ¶ 8; Docket No. 1 at 12.
10.
He claims that his nose was broken and that he needed surgery to
repair the damage. Bonning Decl. ¶ 9; Hawley Decl. ¶ 9; Docket
No. 1 at 12.
11.
Mr. Sanchez claims that, after he was assaulted, Defendants Bonning and Hawley failed to provide him adequate medical treatment.
Bonning Decl. ¶ 10; Hawley Decl. ¶ 10; Docket No. 1 at 14-15, 1819.
12.
Plaintiff’s claims are not true.
13.
Attached as Exhibit A to the Bonning Declaration and to the Hawley
Declaration are true and correct copies of Mr. Sanchez’s use of
force examination report and Ambulatory Health records. Bonning
Decl. ¶ 13; Hawley Decl. ¶ 13.
14.
The pages of Exhibit A have been numbered in the lower right corner for ease of reference.
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15.
Exhibit A to the Bonning Declaration is the same as Exhibit A to the
Hawley Declaration.
16.
As shown below and in Exhibit A, Plaintiff was provided proper and
adequate medical care while he was at Attica Correctional Facility.
17.
There was a use of force involving Mr. Sanchez on December 30,
2010. Bonning Decl. ¶ 15; Hawley Decl. ¶ 15; Exhibit A at 1-2, 4.
18.
According to regular procedure, Nurse Bonning examined Mr.
Sanchez in the Attica emergency room after this use of force. Bonning Decl. ¶ 16; Hawley Decl. ¶ 16; Exhibit A at 1-3.
19.
Nurse Bonning had an adequate opportunity to examine Mr.
Sanchez and to listen and note his medical complaints. Bonning
Decl. ¶ 17.
20.
Nurse Bonning noted that Mr. Sanchez had drying blood on his
nose and around his mouth. Bonning Decl. ¶ 18; Hawley Decl. ¶ 17;
Exhibit A at 1-4.
21.
Nurse Bonning noted there was no evidence of ecchymosis (bruising) or erythema (redness) on any open area. Bonning Decl. ¶ 19;
Hawley Decl. ¶ 18; Exhibit A at 1-4.
22.
Nurse Bonning also did not note any active bleeding. Bonning Decl.
¶ 20; Hawley Decl. ¶ 19; Exhibit A at 1-2.
23.
Nurse Bonning cleansed the areas that showed blood and instructed Mr. Sanchez to follow up with sick call as needed. Bonning Decl.
¶ 22; Hawley Decl. ¶ 20; Exhibit A at 1-4.
24.
There were no signs that Mr. Sanchez had a broken nose or any
serious injury. Bonning Decl. ¶ 23; Hawley Decl. ¶ 21.
25.
Mr. Sanchez’s nose had been bleeding, but the bleeding had subsided. Bonning Decl. ¶ 24; Hawley Decl. ¶ 22.
26.
Nurse Bonning did not see any signs of swelling or ecchymosis on
Mr. Sanchez’s nose. Bonning Decl. ¶ 25; Hawley Decl. ¶ 23; Exhibit
A at 3-4.
27.
Nurse Bonning was not aware of any serious injury to Mr. Sanchez.
Bonning Decl. ¶ 26.
28.
Mr. Sanchez did not appear to be in extreme pain. Bonning Decl. ¶
27.
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29.
In fact, Mr. Sanchez did not complain of pain at all at this time, nor
did he complain about his breathing. Bonning Decl. ¶ 28.
30.
After Nurse Bonning’s examination, Mr. Sanchez was taken to the
Special Housing Unit (SHU). Bonning Decl. ¶ 29; Hawley Decl. ¶
24; Exhibit A at 5.
31.
Nurse Hawley examined Mr. Sanchez when he arrived at the SHU.
Bonning Decl. ¶ 30; Hawley Decl. ¶ 25; Exhibit A at 5.
32.
Nurse Hawley noted that Mr. Sanchez was alert and oriented. Bonning Decl. ¶ 31; Hawley Decl. ¶ 26; Exhibit A at 5.
33.
Nurse Hawley also noted the dried blood on Mr. Sanchez’s nose.
Bonning Decl. ¶ 32; Hawley Decl. ¶ 27.
34.
Mr. Sanchez was able to dress, undress, and follow all commands
without difficulty. Bonning Decl. ¶ 33; Hawley Decl. ¶ 28.
35.
Mr. Sanchez told Nurse Hawley that he had a history of cancer,
surgery on both his elbows, and rhinoplasty. Bonning Decl. ¶ 34;
Hawley Decl. ¶ 29; Exhibit A at 5.
36.
Mr. Sanchez complained of bilateral elbow discomfort to Nurse
Hawley in the Special Housing Unit, but there was no evidence of
any ecchymosis or erythema. Bonning Decl. ¶ 21; Hawley Decl. ¶
30; Exhibit A at 1, 5.
37.
Nurse Hawley also noted that Mr. Sanchez was currently taking
Naprosyn, which is a non-steroidal anti-inflammatory drug that is often prescribed for pain relief. Bonning Decl. ¶ 35; Hawley Decl. ¶
31; Exhibit A at 5.
38.
Nurse Hawley cleared Mr. Sanchez for admission to SHU. Bonning
Decl. ¶ 36; Hawley Decl. ¶ 32; Exhibit A at 5.
39.
The next day, December 31, 2011, Mr. Sanchez demanded to see
a doctor because he had pain. Bonning Decl. ¶ 37; Hawley Decl. ¶
33; Exhibit A at 5.
40.
Nurse Hawley instructed Mr. Sanchez to take the Naprosyn as ordered and that a consult was not indicated at that time. Bonning
Decl. ¶ 38; Hawley Decl. ¶ 34; Exhibit A at 5.
41.
Two days later, Mr. Sanchez complained of dry skin and discomfort
in his nose. Bonning Decl. ¶ 39; Hawley Decl. ¶ 35; Exhibit A at 5.
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42.
Nurse Hawley explained that some discomfort was to be expected
as the altercation was only 3-4 days prior. Bonning Decl. ¶ 40;
Hawley Decl. ¶ 36; Exhibit A at 5.
43.
Nurse Hawley instructed Mr. Sanchez to take the Naprosyn as ordered for pain relief. Bonning Decl. ¶ 41; Hawley Decl. ¶ 37; Exhibit
A at 5.
44.
On January 7, 2011, Mr. Sanchez again demanded to see a doctor
for injuries he claimed arose from the use of force. Bonning Decl. ¶
42; Hawley Decl. ¶ 38; Exhibit A at 6.
45.
On January 11, 2011, Mr. Sanchez complained of nasal pressure.
Bonning Decl. ¶ 43; Hawley Decl. ¶ 39.
46.
Mr. Sanchez also indicated that he was supposed to get a CT scan
of his chest because he gets a yearly scan based on his history of
Hodgkins Lymphoma. Bonning Decl. ¶ 44; Hawley Decl. ¶ 40; Exhibit A at 6.
47.
It was noted that Mr. Sanchez was scheduled to be seen by a provider the next day so he could discuss the CT scan at that time.
Bonning Decl. ¶ 45; Hawley Decl. ¶ 41; Exhibit A at 6.
48.
The following day, on January 12, 2011, Mr. Sanchez was seen by
a physician’s assistant. Bonning Decl. ¶ 46; Hawley Decl. ¶ 42; Exhibit A at 6.
49.
The physician’s assistant noted that Mr. Sanchez said that he had
been hit on the nose on December 30, 2010. Bonning Decl. ¶ 47;
Hawley Decl. ¶ 43; Exhibit A at 6.
50.
The physician assistant noted that Mr. Sanchez said that he had
bleeding, denied bruising, and at the time had nasal pain and sinus
pressure. Bonning Decl. ¶ 48; Hawley Decl. ¶ 44; Exhibit A at 6.
51.
Mr. Sanchez also denied fever, chills and discharge. Bonning Decl.
¶ 49; Hawley Decl. ¶ 45; Exhibit A at 6.
52.
The physician assistant noted that Mr. Sanchez’s nose was slightly
deviated to the left. Bonning Decl. ¶ 50; Hawley Decl. ¶ 46; Exhibit
A at 6.
53.
But she also noted that Mr. Sanchez showed no acute distress, his
nose was not tender to touch, and there was no bony abnormality
and no swelling. Bonning Decl. ¶ 51; Hawley Decl. ¶ 47; Exhibit A
at 6.
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54.
Mr. Sanchez’s sinus was slightly tender to touch, however. Bonning
Decl. ¶ 52; Hawley Decl. ¶ 48; Exhibit A at 6.
55.
The physician assistant diagnosed that Mr. Sanchez had acute sinusitis and nasal pain. Bonning Decl. ¶ 53; Hawley Decl. ¶ 49; Exhibit A at 6.
56.
She prescribed an x-ray of his nose, as well as that he should take
biaxin (an antibiotic), drink more fluids, take motrin, and return to
sick call if he did not get better or got worse. Bonning Decl. ¶ 54;
Hawley Decl. ¶ 50; Exhibit A at 6.
57.
Two weeks later, on January 27, 2011, Mr. Sanchez transferred out
of Attica. Bonning Decl. ¶ 55; Hawley Decl. ¶ 51; Exhibit A at 7.
58.
Mr. Sanchez did not note any other complaints during those weeks.
Bonning Decl. ¶ 56; Hawley Decl. ¶ 52; Exhibit A at 6-7.
59.
Nurse Bonning and Nurse Hawley did not falsify any of Mr.
Sanchez’s medical records. Bonning Decl. ¶ 57; Hawley Decl. ¶ 53.
60.
Nurse Bonning and Nurse Hawley reported all of the complaints
that Mr. Sanchez reported to them. Bonning Decl. ¶ 58; Hawley
Decl. ¶ 54.
61.
Nurse Bonning and Nurse Hawley did not fail to record any of Mr.
Sanchez’s complaints or any injuries that they saw. Bonning Decl. ¶
59; Hawley Decl. ¶ 55.
62.
Neither Nurse Bonning nor Nurse Hawley is aware of anyone falsifying Mr. Sanchez’s medical records or failing to record any of Mr.
Sanchez’s injuries. Bonning Decl. ¶ 60; Hawley Decl. ¶ 56.
63.
Nurse Bonning and Nurse Hawley never denied Mr. Sanchez any
medical treatment. Bonning Decl. ¶ 61; Hawley Decl. ¶ 57.
64.
Nurse Bonning and Nurse Hawley are not aware of anyone denying
Mr. Sanchez medical treatment. Bonning Decl. ¶ 62; Hawley Decl.
¶ 58.
65.
Nurse Bonning and Nurse Hawley did not see any evidence that
Mr. Sanchez was in extreme pain. Bonning Decl. ¶ 63; Hawley
Decl. ¶ 59.
66.
At no point did Nurse Bonning or Nurse Hawley act in any way
wantonly or maliciously towards Mr. Sanchez. Bonning Decl. ¶ 64;
Hawley Decl. ¶ 60.
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67.
Nurse Bonning and Nurse Hawley only tried to properly assess and
treat Mr. Sanchez’ medical complaints. Bonning Decl. ¶ 65; Hawley
Decl. ¶ 61.
68.
Defendants respectfully submit that Nurse Bonning and Nurse
Hawley and the rest of the staff at Attica properly addressed Plaintiff’s medical needs, and accordingly request that Plaintiff’s claims
against Nurse Bonning and Nurse Hawley be dismissed.
Plaintiff’s complaint, filed on December 16, 2013, ECF No. 1, contained claims of
excessive force, failure to protect, retaliation, and lack of medical care. The Court discussed the nature of the claims in its initial order:
Plaintiff alleges that on December 30, 2010, he was assaulted by corrections officers at Attica, suffering serious injury. He states that his nose was
broken in the incident and surgery was then required to repair the damage. Plaintiff also states that prior to the assault, he had been threatened
for testifying at another inmate's hearing against officer Defendant John
Doe 1. Plaintiff states that he was assaulted in retaliation for his testimony
at the hearing.
Plaintiff identifies his legal claims as breach of duty to protect, retaliation,
and failure to administer adequate medical care. A review of Plaintiffs allegations indicate he is also alleging a claim for use of excessive force. . . .
Decision and Order 3, Jun. 16, 2014, ECF No. 3. After screening, the Court permitted
the following causes of action to proceed: (1) Plaintiff’s claim of excessive force against
defendants Officer Ziolkowski, Officer Brun, Officer Fitch, Sgt. John Doe 2, and John
Does 1, 3, 4, 5, and 6; (2) Plaintiff’s medical care claim against defendants Donna Bonning (Jane Doe 1), Nurse Jane Doe 2, and Nurse Hawley; (3) Plaintiff’s retaliation claim
against defendant John Doe 1. The Court dismissed Plaintiff’s failure to protect claim
without prejudice, and dismissed his retaliation claims against all but John Doe 1.
STANDARDS OF LAW
Summary Judgment
Summary judgment may not be granted unless Athe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show
9
that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.@ Fed. R. Civ. P. 56(c). A party seeking summary
judgment bears the burden of establishing that no genuine issue of material fact exists.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “For the court to grant
summary judgment, the court must conclude--without resolving any fact disputes--that
the movant ‘must prevail as a matter of law.’” 11 Moore’s Federal Practice § 56.21 (Matthew Bender 3d ed.) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)). AIn moving for summary judgment against a party who will bear the ultimate
burden of proof at trial, the movant may satisfy this burden by pointing to an absence of
evidence to support an essential element of the nonmoving party's claim.@ Gummo v.
Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986)), cert. denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate specific facts
showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present
evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249.
A[F]actual issues created solely by an affidavit crafted to oppose a summary judgment
motion are not >genuine= issues for trial.@ Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614,
619 (2d Cir. 1996). Summary judgment is appropriate only where, Aafter drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving party.@ Leon v. Murphy, 988
F.2d 303, 308 (2d Cir. 1993).
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The parties may only carry their respective burdens by producing evidentiary
proof in admissible form. Fed. R. Civ. P. 56(c)(1)(B). The underlying facts contained in
affidavits, attached exhibits, and depositions, must be viewed in the light most favorable
to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover,
since Plaintiff is proceeding pro se, the Court is required to construe his submissions
liberally, Ato raise the strongest arguments that they suggest.@ Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994).
ANALYSIS
Official Capacity Claims
Plaintiff brought his claims against Defendants in both their official and individual
capacities. Compl. 3–4.3 His complaint seeks money damages. Id. 19. The Supreme
Court in Kentucky v. Graham, 473 U.S. 159 (1985) held that:
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e.g.,
Scheuer v. Rhodes, 416 U.S. 232, 237–238, 94 S. Ct. 1683, 1686–1687,
40 L.Ed.2d 90 (1974). Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an
officer is an agent.” Monell v. New York City Dept. of Social Services, 436
U.S. 658, 690, n. 55, 98 S. Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 1978).
Graham, 473 U.S. at 165-66.
In this case, the State of New York is the government agency by which each defendant was employed when allegedly depriving Plaintiff of his constitutional rights.
Consequently, Plaintiff’s attempt to sue each defendant in his or her official capacity is
an attempt to sue the State of New York. The Eleventh Amendment to the Constitution
reads as follows: “The Judicial power of the United States shall not be construed to ex3
Because Plaintiff did not number all the pages of his complaint and its attachments, the
Court will use the page numbering assigned by the portable document format software, which
numbered each page sequentially, regardless of the page numbering on the face of the document submitted by Plaintiff.
11
tend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
The Supreme Court has held that, “absent waiver by the State or valid congressional
override, the Eleventh Amendment bars a damages action against a State in federal
court.” Graham, 473 U.S. at 169 (citations and footnote omitted). This lawsuit is brought
pursuant to 42 U.S.C. § 1983. By enacting § 1983, Congress did not override a state’s
Eleventh Amendment immunity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66
(1989). Consequently, Plaintiff’s claims against Defendants in their official capacities
must be dismissed.
Plaintiff’s Medical Claims
The Complaint purports to state an Eighth Amendment “deliberate indifference”
medical claim, and the law concerning such claims is clear:
In order to establish an Eighth Amendment claim arising out of inadequate
medical care, a prisoner must prove deliberate indifference to his serious
medical needs. This standard incorporates both objective and subjective
elements. The objective ‘medical need’ element measures the severity of
the alleged deprivation, while the subjective ‘deliberate indifference’ element ensures that the defendant prison official acted with a sufficiently
culpable state of mind.
Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison
medical care will rise to the level of a constitutional violation. [T]he Supreme Court [has] explained that the Eighth Amendment’s prohibition on
cruel and unusual punishments encompasses the deliberate failure to
treat a prisoner’s serious illness or injury resulting in the infliction of unnecessary pain and suffering. Because society does not expect that prisoners will have unqualified access to health care, a prisoner must first
make this threshold showing of serious illness or injury in order to state an
Eighth Amendment claim for denial of medical care. Similarly, a prisoner
must demonstrate more than an inadvertent failure to provide adequate
medical care by prison officials to successfully establish Eighth Amendment liability. An official acts with the requisite deliberate indifference
when that official knows of and disregards an excessive risk to inmate
health or safety, a state of mind equivalent to the familiar standard of
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‘recklessness’ as used in criminal law.
Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003) (citations and internal quotations omitted).
In his complaint, Plaintiff complained about the lack of treatment for the injury to
his nose, allegedly broken when one of the defendants assaulted him. The relevant allegations in his complaint are as follows:
14. In the facility E.R. where two female nurses, Jane Doe 1 & 2, did not
attend proper medical attention but vital signs and not attending my medical need, nor reporting anything. I told them the situation i.e. that taking
any consideration to check my nose which I stated to them I had surgery
for deviated septum. They wrote other (see copies of med report) report
related to bleeding. No ex-ray where [sic] done on my face to see if anything was in danger.
15. The bruises on my body were never checked nor reported in paper.
The blood was cleaned off to make it look good in camara [sic] and was [I]
was given asprin [sic] for pain. It did not help. I was then sent to SHU, my
clouths [sic] were removed and dumped in the garbage.
16. I continued to complained [sic] while I was in SHU. Requested to see
nurse to request a doctor to request for a specialist going by procedures.
Then wrote to the nurse administrator requesting the above mention respectfully. When I did both doctor & specialist sawed [sic] I had nothing
wrong. But yet I had surgery for the (trauma) attack by Officer Ziolkowski. I
was moved about 30 days later to Southport Correctional Facility. After all
my complaints with problems sleeping & pain finally doctors in Southport
C.F. sent me to a specialist in Albany Medical Center (see medical report
to describe my undergoing surgery). I had part of piece of my rib cartalige
[sic] removed to place it in my nose. I went to lots of pain for recovery, especially the attack official did to me. Till this day I’m still complaining of
complications & requesting for a specialist to analyse [sic] me.
17. On January 2nd 2011 plaintiff requested to be seen by nurse complaining of my nose bleed & pain. That morning nurse Hewley [sic] came,
plaintiff explained of complication of nose bleed, lack of sleep, pain, pressure on eyes & headache. Plaintiff requested to be seen by doctors & a
pain reliever as well as medication for dry skin & skab [sic] wounds, & dry
lip. Defendant walked away stating “I’m not putting you to see a doctor” &
ignored my request.
Compl. at 14–15. In her declaration, Donna Bonning, R.N. (“Bonning”) asserts that she
13
provided proper care to Plaintiff after the alleged assault of December 30, 2010. Bonning examined Plaintiff at Attica’s emergency room after the use of force and listened to
his medical complaint. Bonning Decl. ¶¶ 8–17, Mar. 31, 2015, ECF No. 9-4. She noted
drying blood on his nose and around his mouth, but “saw no evidence of ecchymosis
(bruising) or erythema (redness) on any open area.” Id. ¶¶ 18 & 19. She relates that she
did not see evidence of a broken nose, nor did Plaintiff appear to be in extreme pain. Id.
¶¶ 23 & 27. At the time of the examination, Plaintiff did not complain of pain or about his
breathing. Id. ¶ 28. Bonning noted that Plaintiff told her he had a history of rhinoplasty.
Id. ¶ 34.
The medical records attached to Bonning’s declaration show that defendant
Vance Hawley (“Hawley”) cleared Plaintiff for admission to SHU on December 30, 2010,
and that Plaintiff was taking Naprosyn, which she noted that the pharmacy would refill
that day. An entry dated December 31, 2010, showed that Hawley saw Plaintiff for his
complaints of pain and ordered him to continue taking Naprosyn. Hawley also noted that
on January 2, 2010 (the date written on the report, but is probably January 2, 2011) he
saw Plaintiff for complaints of pain and told him that he should expect to feel pain after
the use of force incident, and ordered him to take the Naprosyn for pain. On January 12,
2011, Plaintiff was seen by a physician’s assistant who examined Plaintiff’s nose, noted
it was slightly deviated to the left, but noted also that Plaintiff showed no acute distress,
that his nose was not tender to the touch, and had no bony abnormality or swelling. The
physician’s assistant did noted tenderness in Plaintiff’s sinuses, and diagnosed acute
sinusitis, and then ordered an x-ray of his nose. Hawley Decl. ¶¶ 42–50, Mar. 31, 2015,
ECF No. 9-5.
14
Disagreements over treatment do not rise to the level of a Constitutional violation. See, Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) (“It is well-established
that mere disagreement over the proper treatment does not create a constitutional
claim.”). Similarly, negligence constituting medical malpractice, without more, will not
establish a constitutional claim. Id. (citation omitted).
In this context, disagreements over treatment include disagreements over
whether the inmate needs to be treated by a specialist. See, Sonds v. St. Barnabas
Hosp. Correctional Health Services, 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001)
(“[D]isagreements over medications, diagnostic techniques (e.g., the need for X-rays),
forms of treatment, or the need for specialists or the timing of their intervention, are not
adequate grounds for a Section 1983 claim. These issues implicate medical judgments
and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.”) (citation omitted).
Defendants uncontroverted evidence establishes that they are entitled to judgment. Plaintiff has failed to raise a material issue of fact and the evidentiary proof before
the Court leads only to the conclusion that defendants Bonning (Jane Doe 1), and Hawley, were not deliberately indifferent to Plaintiff’s serious medical need.
CONCLUSION
For the reasons above, Defendants’ application for summary judgment is granted. The claims against all parties in their official capacities are dismissed. Defendants
Bonning and Hawley are entitled to judgment on Plaintiff’s deliberate indifference
claims, and the Clerk is directed to enter judgment for both.
15
The following claims may go forward: (1) Plaintiff’s claims of excessive force
against defendants Officer Ziolkowski, Officer Brun, Officer Fitch, Sgt. John Doe 2, and
John Does 1, 3, 4, 5, and 6; (2) Plaintiff’s medical care claim against defendants Nurse
Jane Doe 2; and (3) Plaintiff’s retaliation claim against defendant John Doe 1.
IT IS SO ORDERED
Dated: July 14, 2015
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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