Micolo v. Fuller et al
-CLERK TO FOLLOW UP-DECISION AND ORDER granting in part and denying in part 31 Defendants' Motion for Summary Judgment; denying 34 Plaintiff's Motion; finding as moot 42 Plaintiff's Motion. See Decision and Order for complete de tails. Signed by Hon. Michael A. Telesca on 10/28/16. The Clerk of the Court is directed to terminate Jones, Salotti, Jansen, Sullivan, Carol Gardner, Dewberry, Roberts, and Kline as defendants from this action and to modify the caption accordingly. The Clerk of Court is further requested to mail a copy of this Decision and Order to the pro se plaintiff. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARCUS ANTHONY MICOLO,
DECISION AND ORDER
-vsJAMES H. FULLER, ROBERT M. MOSKO,
RICHARD CIOFFA, JEFFREY L. BURRI,
WILLIAM H. SEIDEL, LAWRENCE R.
BROWN, A GARDNER, M MALTESE, C.J.
ROBERTS, D KLINE, G SULLIVAN, C
GARDNER, RONALD DEWBERRY, MICHAEL
SHEAHAN, PAUL D. SABIN, B JONES,
Proceeding pro se, inmate Marcus Anthony Micolo (“Micolo” or
“Plaintiff”) instituted this action pursuant to 42 U.S.C. § 1983
against the defendants, who are all employees of the New York State
Department of Corrections and Community Supervision (“DOCCS”). The
following defendants have moved for summary judgment in lieu of
Administrator Jensen, Criminal Investigations Unit (“CIU”) Officer
C.J. Roberts and Officer Rehabilitation Counselor (“ORC”) Robert
Kline, Psychologist II Garry Sullivan, Chaplain Ronald Dewberry,
Corrections Officer Paul Sabin, and Superintendent Michael Sheahan.
The precipitating event in this case was a use-of-force
incident that occurred during a cell extraction of Plaintiff on
January 29, 2015, at Five Points Correctional Facility (“Five
Points”). Plaintiff’s supporting allegations against the moving
defendants cover a number of disparate topics. To avoid unnecessary
repetition, the facts pertinent to the alleged constitutional
violations will be set forth below in the sections addressing the
various defendants’ arguments in favor of summary judgment.
GENERAL LEGAL PRINCIPLES
42 U.S.C. § 1983
In order to state a claim under 42 U.S.C. § 1983, the
attributable at least in part to a person acting under color of
state law, and (2) deprivation, as the result of the challenged
Constitution or laws of the United States. Dwares v. City of New
York, 985 F.2d 94, 98 (2d Cir. 1993). The § 1983 plaintiff must
alleged Constitutional deprivations.” Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995). “Personal involvement of a supervisory
official may be established ‘by evidence that: (1) the [official]
participated directly in the alleged constitutional violation,
(2) the [official], after being informed of the violation through
a report or appeal, failed to remedy the wrong, (3) the [official]
created a policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or custom,
subordinates who committed the wrongful acts, or (5) the [official]
exhibited deliberate indifference to the rights of [others] by
failing to act on information indicating that unconstitutional acts
were occurring.’” Johnson v. Newburgh Enlarged School Dist., 239
F.3d 246, 254 (2d Cir. 2001) (quoting Colon, 58 F.3d at 873)
(alterations in original)).
Summary Judgment Standard
Summary judgment may be granted only when the moving party
demonstrates that “there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c); see also, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party bears burden of
demonstrating that there is an absence of evidence to support the
non-moving party’s case. Celotex Corp, 477 U.S. at 323. When the
movant has met this burden, Rule 56(e) provides that the non-moving
party “may not rest upon the mere allegations . . . [of his]
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986). Rule 56(c) further requires the
entry of summary judgment against a party who fails to make a
essential to his case and upon which that party will bear the
burden of proof at trial. Celotex Corp., 477 U.S. at 322.
The “mere existence of a scintilla of evidence” supporting the
non-moving party’s cause is insufficient. Anderson, 477 U.S. at
252. The non-moving party may not rely on evidence that is merely
colorable, conclusory, or speculative but must come forward with
“concrete evidence from which a reasonable jury could return a
verdict in [his] favor.”
Id. at 256.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Claims Against Nurse
Medical Treatment on January 29, 2015
Plaintiff alleges that following the cell extraction and useof-force on January 29, 2015, he was taken to the Facility’s
medical unit and examined by Nurse Jones (“Jones”), Nurse Kristin
M. Salotti (“Salotti”), and Nurse Administrator Robert Jansen
(“Jansen”). Jones examined Plaintiff and noted a 1-inch laceration
above his left eyebrow; a 3-inch laceration to right side of
Plaintiff’s face, across the temple into the hairline; a 3-inch
area of abrasion to left mid-back; and a ½-inch abrasion to the
inside of the right wrist. Plaintiff states that he informed
Salotti and Jansen that he had undergone facial surgery in 2004,
(“Comp.”) ¶ 101). Plaintiff complained of facial pain and asked for
a “cat-scan [sic] to see if any significant damage” had been done;
this request was denied by Salotti and Jansen. (Id. ¶¶ 102-03).
After Plaintiff’s wounds were cleaned, Salotti offered to
“administer sutures or [to] glue the injury closed” over his left
eye, but Plaintiff did not trust her and refused. (Comp. ¶ 112).
Salotti then left the room. Plaintiff states that he would have
accepted placement of “terry strips,” which Salotti allegedly
mentioned during the examination, in lieu of sutures or glue, and
complains that Salotti failed to utilize “terry strips.” (Id. ¶
Plaintiff also complains that Salotti and Jansen did not
inquire about any other injuries “other than . . . what they wanted
to see.” (Id. ¶ 107). He also complains that he was experiencing
lower back pain in the area where he had undergone lumbar surgery
in 2014, and that Salotti and Jansen erroneously denied his request
for a “cat-scan” of his back. He asserts that Salotti and Jansen
failed to clean lacerations he had sustained on his ankles, right
hand, and back, (Id. ¶¶ 114-15), but this is belied by the
treatment note and Salotti’s declaration. Plaintiff did not inform
Salotti, Jansen, and Jones about any other injuries.
“To prevail on an Eighth Amendment claim of inadequate medical
care, a plaintiff must show two things: (1) that he or she had a
sufficiently serious medical need; and (2) that the defendant was
deliberately indifferent to that serious medical need.” Dallio v.
Hebert, 678 F. Supp.2d 35, 60 (N.D.N.Y. 2009) (citing Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998); emphases in original). There are thus two
components to a deliberate indifference claim: the inmate must have
a medical need which is objectively serious, and the defendant must
have a state of mind which is subjectively culpable.
The “sufficiently serious” standard contemplates “a condition
of urgency, one that may produce death, degeneration, or extreme
pain[,]” Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt,
J., dissenting) (cited with approval in Hathaway, 37 F.3d at 66).
Here, even accepting as true the existence of all of the injuries
alleged by Plaintiff in his Complaint, and not just those that are
reflected in the medical record,1 Plaintiff has failed to establish
a genuine issue of material fact as to whether he suffered from a
sufficiently serious medical need. See Dallio, 678 F. Supp.2d at 60
(“Crediting Plaintiff’s version of his injuries, the evidence shows
that he suffered two black eyes, bruising in his kidney area on his
left side, kick marks and open lacerations on his knees, bruising
and red spots on his thigh, lacerations on his arms and wrists, a
headache, and numbness in his hands and fingers. None of these are
conditions of urgency that may produce death, degeneration, or
Plaintiff alleges additional injuries as follows, and complains that they
were not addressed or included in his medical records: facial swelling including
a blackened left eye; broken blood vessels in his face and left eye which
resulted in blood loss; “possibly fractured” ribs; increased lower back pain;
facial pain in “eye and TMJ area”; pain in his left ring finger; lacerations to
his back, ankles, right hand; and bruises on his back. (See Comp. ¶ 175(a)-(l)).
extreme pain. Although Plaintiff characterizes the bruise to his
kidney area as evidence of internal bleeding, there is no evidence
bleeding.”) (internal citations to record omitted; collecting cases
regarding similar conditions not sufficiently serious to impose
Eighth Amendment liability). Significantly, Micolo did not mention
having “possibly fractured ribs” to Jones, Salotti, or Jansen.
However, he asserts that he did mention other issues, such as the
fact that he had facial surgery in 2004, and that he was having
facial and back pain. Plaintiff’s failure to mention the existence
of certain alleged injuries, while affirmatively referring to
others, undermines his contention that the alleged injuries omitted
from the medical records were sufficiently serious for Eighth
Even assuming arguendo that Micolo did suffer from one or more
sufficiently serious medical needs, there is no genuine issue of
“requires more than negligence [on the prison official’s part], but
less than conduct undertaken for the very purpose of causing harm.”
Hathaway, 37 F.3d at 66 (citing Farmer v. Brennan, 511 U.S. 825,
––––, 114 S. Ct. 1970, 1978 (1994)). “[A] prison official does not
act in a deliberately indifferent manner unless that official
‘knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’” Id. (quoting Farmer,
511 U.S. at ----, 114 S. Ct. at 1979). There is simply no evidence
that Jones, Salotti, or Jansen acted (or failed to act) in a manner
evincing “culpable recklessness[,]” i.e., a “conscious disregard of
a substantial risk of serious harm[,]” Hathaway, 99 F.3d at 553
(citations omitted), to Plaintiff.
First, Jones is barely mentioned in the Complaint; the only
Plaintiff’s alleged injuries in the treatment note. However, this
alleged omission does not amount to a constitutional violation.
See, e.g., Bloomfield v. Wurzberger, No. CIVA908CV619 GLS/RFT, 2009
WL 3335892, at *5 (N.D.N.Y. Oct. 15, 2009) (“The filing of a false
entry in medical records, without more, does not constitute a
9:04-CV-423, 2008 WL 4767439, at *11 (N.D.N.Y. Oct. 29, 2008)
(allegation that defendants falsified plaintiff’s medical records
did not state a valid § 1983 claim); other citation omitted).
Turning to Salotti and Jansen, the Court finds that their
declarations demonstrate that there is no genuine issue of material
observation, examined Plaintiff, cleaned his facial wounds with
saline solution, and offered to provide sutures or glue for the
1-inch laceration above his left eyebrow, which Plaintiff refused.
Because Plaintiff refused sutures or glue, Salotti applied triple
antibiotic ointment and appropriate dressings (bandages and tape).
“It is well-established that mere disagreement over the proper
treatment does not create a constitutional claim. So long as the
treatment given is adequate, the fact that a prisoner might prefer
a different treatment does not give rise to an Eighth Amendment
violation.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)
(district court abused its discretion by specifying in detail
system of dental care to be provided to state prisoner instead of
using corrections department’s plan as its guide subject to minor
modifications)). “Moreover, negligence, even if it constitutes
constitutional claim.” Chance, 143 F.3d at 703 (citing Estelle v.
Gamble, 429 U.S. at 105–06 ); see also Smith v. Carpenter, 316 F.3d
178, 184 (2d Cir. 2003) (“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.”).
Here, the Court is presented with a “mere disagreement” over
the proper treatment plan. Plaintiff was offered what Salotti
stated was the optimal treatment (sutures or glue) for his facial
laceration, but he declined it. Salotti avers that the treatment
Plaintiff chose (dressing and tape) did not subject him to a risk
of degeneration, death or extreme pain; at worst, it potentially
lengthened his recovery period from about 5 days to 7-to-10 days,
and increased the likelihood of scar formation. (See Salotti Decl.
On the record before the Court, no rational jury could
find that Jones, Jansen, and Salotti knew of, and nonetheless
disregarded, an excessive risk to Plaintiff’s health. See id. On
the present record, Plaintiff has failed to raise a genuine issue
indifferent to any of Plaintiff’s medical needs.
To the extent that Plaintiff contends that he needed to be
taken to a hospital for a computed topography (“CT”) scan and
sutures, these claims are without merit. First, Plaintiff has
failed to raise an issue of fact regarding Salotti’s qualifications
to administer sutures. Second, it is evident from the record that
a CT scan not medically necessary since Plaintiff’s laceration,
which was treated with bandages, antibiotic ointment, and tape,
healed without incident. Moreover, the other injuries of which
Plaintiff complained likewise appear to have healed without any
complications, based on the medical records provided to the Court.
Finally, to the extent that Plaintiff complains that his pain
illegally disobeyed a purported “no crush” order for his pills, the
There is no allegation, however, that Plaintiff was left with any
Court finds that Plaintiff has failed raise any genuine issues of
material fact. First, Plaintiff has not raised an issue of fact
that there was a “no crush” order for his pills. Second, Salotti
indicates that as part of the treatment provided on January 29,
Neurontin was discontinued on February 10, 2015, after he refused,
on four occasions over the course of eight days, to take the pill
because it was in crushed form. (See id. ¶ 18). Salotti states that
the pill was crushed to prevent Micolo from “cheeking, hoarding,
and [engaging in] potentially suicidal behaviors.” (Id. ¶ 18).
Again, viewing the allegations in the light most favorable to
Plaintiff, the Court is presented with, at the very most, a “mere
disagreement” over the proper treatment plan; however, “as long as
the treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth
The deliberate medical indifference claims against Jones,
Salotti, and Jansen based on the treatment they provided on January
29, 2015, are dismissed as a matter of law. Jones, Salotti, and
Jansen are dismissed as defendants in this action.
Medical Treatment after January 29, 2015
To the extent that Plaintiff complains of inadequate medical
care after January 29, 2015, Defendants argue that Plaintiff failed
Alternatively, Defendants assert, the claims are without merit.
The Prison Litigation Reform Act of 1995 (“PLRA”) states in
relevant part that “[n]o action shall be brought with respect to
prison conditions under [42 U.S.C. § 1983], or any other Federal
correctional facility until such administrative remedies as are
administrative exhaustion requirement “applies to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The
recently held that, “aside from the ‘significant’
textual qualifier that ‘the remedies must indeed be “available” to
the prisoner,’ there are ‘no limits on an inmate’s obligation to
exhaust—irrespective of any “special circumstances.”’” Williams v.
Correction Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016)
(quoting Ross v. Blake, ––– U.S. ––––, 136 S. Ct. 1850 (2016)).3
appeals system for prisoner grievances. See N.Y. COMP. CODES R. &
REGS. (“NYCRR”) tit. 7, § 701.5. Completion of all three levels is
Ross abrogated the “special circumstances” exception to the PLRA’s
exhaustion requirement articulated by the Second Circuit in Hemphill v. New York,
380 F.3d 680, 689-91 (2d Cir. 2004).
a prerequisite to a Section 1983 action in federal court. See
Porter, 534 U.S. at 524. The third and final level involves an
appeal by the inmate of the facility superintendent’s written
decision to DOCCS’ Central Office Review Committee (“CORC”). See
NYCRR tit 7 § 701.5(d).
The records submitted by Defendants show that over the course
of his incarceration in DOCCS, Plaintiff has appealed approximately
50 grievances to the CORC. With regard to the time-frame relevant
here, Plaintiff completed the required three-level review with
regard to 13 grievances filed between December 2014, and March
2015, at Five Points Correctional Facility. Six of these grievances
were filed after the use of force incident on January 29, 2015.
However, none of the grievances filed on or after January 29, 2015,
at Five Points pertained to medical care received by or denied to
Plaintiff. (See Declaration of Jeffrey Hale (“Hale Decl.”) ¶¶ 3-6
& Exhibit A).
In his opposition papers, Plaintiff cites only two grievances:
FPT-30009-15, which addresses medical care provided on January 29,
2015, and as to which Defendants have not raised an exhaustion
(see Hale Decl., Ex. A, p. 1); and FPT-29960-15, which the records
Plaintiff’s Reply to Defendant’s Notice of Motion, Etc. ¶¶ 9-14.
Plaintiff argues that grievance FPT-29960-15 should be deemed
exhausted because there was a “breakdown in the process” occasioned
by his being transferred to Marcy Correctional Facility (“Marcy”).
However, Plaintiff has not raised a genuine issue of material fact
given the fact that he never attempted to appeal the grievance when
he was at Marcy, despite receiving a letter from the Commissioner’s
Office advising him to work with Marcy’s grievance coordinator to
address any problems he was having, and the fact that he grieved to
exhaustion numerous grievances while at Marcy (see Hale Decl., Ex.
A, pp. 1-2).
Based on its examination of the record, the Court agrees that
Plaintiff has failed to exhaust his administrative remedies as to
any claims of inadequate medical care provided after January 29,
administrative remedies were not, in fact, available to him. To the
contrary, Plaintiff was well aware of how the grievance process
worked within DOCCS, having employed it on many previous occasions.
Plaintiff could argue that Defendants should be estopped from
inadequate care after January 29, 2015.
In any event, Plaintiff has no viable deliberate medical
indifference claim with regard to care provided or denied after
January 29, 2015, at Five Points. Plaintiff was seen approximately
eleven times in the five weeks following the use of force incident,
but the records submitted by Defendants fail to establish the
existence of injuries or conditions involving urgency, the risk of
degeneration or death, or extreme pain. Plaintiff was offered
Naprosyn and Neurontin for pain management regarding his resolving
injuries from the use of force incident. He continued to take the
Naprosyn through the time he commenced this action but, as noted
above, he refused to take the Neurontin because the pills were
crushed, per DOCCS’ policy. He was also provided Tylenol packets on
various occasions in response to his complaints of lower back pain.
Any claims of deliberate medical indifference arising after January
29, 2015, are dismissed as unexhausted, and as without merit.
Claims Against CIU Officer C.J. Roberts and ORC Robert Kline
In his Complaint, Plaintiff asserts that CIU Officer C.J.
Roberts (“Roberts”) and ORC Robert Kline (“Kline”) “entered into
conspiracy with Sgt. J. Fuller to cover up Fuller’s wrongdoing
against Micolo [during the cell extraction on January 29, 2015,]
Fuller’s scheme and falsify [sic] documents to say he was [present]
when he never was. . . .” Comp. ¶¶ 136-37 (brackets in original).
follows: “(1) an agreement between a state actor and a private
party; (2) to act in concert to inflict an unconstitutional injury;
and (3) an overt act done in furtherance of that goal causing
damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
It is well settled that “complaints containing only conclusory,
vague, or general allegations that the defendants have engaged in
a conspiracy to deprive the plaintiff of his constitutional rights
are properly dismissed; diffuse and expansive allegations are
misconduct.” Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.
Plaintiff has not alleged any facts suggesting the existence
of any tacit or express agreement among Kline, Roberts, and Fuller
allegation that possibly could be construed as an overt act in
furtherance of a conspiracy alleged is that Roberts and Kline
falsely stated, in their respective incident reports, that Fuller
was present when, according to Plaintiff, he was not. However, it
is well-settled that “[a] prison officer’s falsifying of a report
regarding an alleged violation of an inmate’s rights does not, in
itself, rise to the level of a constitutional deprivation, absent
underlying incident.” Kee v. Hasty, No. 01 CIV.2123(KMW)(DF), 2004
WL 807071, at *27 (S.D.N.Y. Apr. 14, 2004) (citing Williams v.
Smith, 781 F.2d 319, 324 (2d Cir. 1986) (affirming dismissal of
claim against prison officer who, according to inmate, “filed a
false misbehavior report which initiated the procedurally flawed
disciplinary hearing,” because “[t]he filing of a false report does
constitutional violations which occur at a subsequent disciplinary
hearing”) (citing Sommer v. Dixon, 709 F.2d 173, 174 (2d Cir. 1983)
(dismissing claim that prison officers “had engaged in a conspiracy
to file false reports against him which, in his words, ‘set’ in
motion a series of acts by others which defendants knew would also,
cause others to inflict the constitutional injury to advocate and
substantial loss and or destruction of both legal and personal
property”)). Plaintiff does not allege, and there is nothing in the
record to suggest, that Roberts or Kline was personally involved in
the cell extraction or subsequent events.
Plaintiff’s allegations against Roberts and Kline fail to
state any constitutional claims, including a claim for conspiracy
to violate Plaintiff’s constitutional rights. See Sommer v. Dixon,
709 F.2d at 174. Roberts and Kline are dismissed as defendants from
Psychologist II Garry Sullivan
Plaintiff’s sole allegations regarding Psychologist II Garry
Sullivan (“Sullivan”) appear in two paragraphs of the Complaint.
Prior to the cell extraction on January 29, 2015, Fuller contacting
OMH for assistance, which dispatched Sullivan to Plaintiff’s cell.
When Sullivan arrived, Plaintiff informed Sullivan that he would
only come out of his cell if “the Captain and Camera were present.”
psychiatric services and that he had no intention of harming
himself or others. Sullivan then left the area. (Id. ¶ 33). In his
opposition papers, Plaintiff asserts for the first time that
Sullivan “worked with Fuller to contrive the process to make it
seem as if [he] had to come out of the cell for OBS.4 Even if
Sullivan was ignorant to Fuller[’]s intentions, Sullivan is still
part of the conspiracy.” (Plaintiff’s Declaration with Facts +
Legal Argument in Lieu of Memorandum of Law, pp. 6 of 13).
Again, as with his allegations against Roberts and Kline,
Plaintiff has not come forward with any facts suggesting the
existence of any tacit or express agreement among between Sullivant
and Fuller to act in concert to violate Plaintiff’s rights. Indeed,
Plaintiff concedes that Sullivan may have been “ignorant” of
possibility of an agreement between Sullivan and Fuller to violate
Plaintiff’s allegations against Sullivan fail to state any
constitutional claims, including a claim for conspiracy to violate
Plaintiff’s constitutional rights. See Sommer v. Dixon, 709 F.2d at
174. Sullivan is dismissed as a defendant from this action.
The Court believes that by “OBS”, Plaintiff here is referring
observation in a mental health unit of the correctional facility.
Carol Gardner, RN II
Plaintiff alleges that after Sullivan left the area, Carol
Gardner, RN II (“C. Gardner”),5 came to his cell and “asked him if
he’d come out of the cell.” (Comp. ¶ 34). Plaintiff informed her
that he would do so, but only if “the captain and camera were on
scene.” (Id.). At that point, C. Gardner left the area.
Section 1915(e)(2)(B) of Title 28 U.S.C. provides in part that
“[n]otwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
court determines that . . . (B) the action or appeal . . .
fails to state a claim on which relief may be granted. . . .” 28
U.S.C. § 1915(e)(2)(B)(ii). Although Defendants have not moved for
summary judgment on behalf of C. Gardner, the Court will exercise
its discretion to sua sponte dismiss the claims against C. Gardner
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim on which relief may be granted. As was the case
Sullivan, Plaintiff’s allegations against C. Gardner fail to state
any constitutional claims, let alone a claim based on a conspiracy
to violate Plaintiff’s constitutional rights. See Sommer v. Dixon,
709 F.2d at 174. C. Gardner is dismissed as a defendant from this
Chaplain Ronald Dewberry
To avoid confusion with named defendant A. Gardner, the Court will
refer to Carol Gardner as “C. Gardner”.
Plaintiff’s allegations regarding Chaplain Ronald Dewberry
(“Dewberry”) are nearly identical to those regarding Sullivan.
Dewberry was sent to Plaintiff’s cell prior to the extraction;
Plaintiff informed Dewberry that he would not come out unless a
captain and a videocamera were present; Dewberry then left the area
and did not return. (See Comp. ¶ 35). In his opposition papers,
Plaintiff asserts that Dewberry “allowed Fuller to use him to
attempt to have [him] come out [of] the cell without the camera and
captain present.” (Plaintiff’s Declaration with Facts + Legal
Argument in Lieu of Memorandum of Law, pp. 7 of 13). For the
reasons discussed above in Sections III and IV, these conclusory
and vague allegations plainly fail to state any constitutional
claim against Dewberry, much less a claim of conspiracy. Dewberry
accordingly is dismissed as a defendant.
Corrections Officer Paul Sabin
(“Sabin”) came to his cell, along with several other officers (nonmoving defendants Mosko and Brown), to escort him to a disciplinary
Plaintiff to exit his cell, Sabin allegedly applied them “to the
last click available” which “caused [Plaintiff] pain.” (Id. ¶ 162).
Plaintiff, “knowing he’d be injured” if he left his cell, “told
Sabin to remove the shackles and cuffs [be]cause he wasn’t going to
the hearing.” (Id. ¶ 164). Sabin replied, “[G]ood,” and “jerked the
shackle chain upwards, released the shackle and thereafter removed
the cuffs.” (Id. ¶ 165). Sabin then left the area. Plaintiff
alleges that Sabin applied the cuffs and shackles in an excessively
tight manner to purposely cause him pain, and deter him from
shackles would cut [his] ankles again and the cuffs would cause
[his] hands to go numb” and he “would be left in the cage in the
hearing room for who knows how long.” (Plaintiff’s Declaration with
Facts + Legal Argument in Lieu of Memorandum of Law, pp. 8-9 of
physical force in violation of the Cruel and Unusual Punishments
Clause of the Eighth Amendment,6 “a court should consider both the
‘objective’ and ‘subjective’ components of an alleged violation[.]”
Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994) (citing Hudson v.
McMillian, 503 U.S. 1, 112 S. Ct. 995, 999 (1992)). “The objective
component relates to the seriousness of the injury; however, ‘the
use of excessive physical force against a prisoner may constitute
cruel and unusual punishment [even] when the inmate does not suffer
serious injury.’” Id. (quoting Hudson, 503 U.S. at ––––, 112 S. Ct.
In their unpaginated memorandum of law, Defendants have relied on excessive
force cases brought by non-prisoners, which are analyzed under the Fourth
Amendment, rather than the Eighth Amendment. See Defs’ Mem., Section VII. These
cases therefore are not relevant to the Court’s analysis of Plaintiff’s claim.
at 997); footnote omitted, brackets in original). Thus, while the
seriousness of the injury is “relevant to the Eighth Amendment
inquiry, . . . [it] does not end it.” Hudson, 503 U.S. at ––––, 112
S. Ct. at 995). The Supreme Court in Hudson “specifically rejected
the dissent’s theory that an inmate must show serious injury in
Davidson, 32 F.3d at 30 n. 1 (quoting Hudson, 503 U.S. at ––––, 112
S. Ct. at 1001).
Plaintiff has adequately alleged the subjective component of
an Eighth Amendment violation, and Defendants have not raised any
argument regarding Sabin’s subjective intent. Rather, Defendants
argue that the objective component of an excessive force claim is
lacking because Plaintiff “saw medical staff on the morning of
February 17[, 2015] and did not complain of pain or injury to his
wrist or legs.” (Defs’ Mem., Section VII (citing generally to
Salotti Decl.)). However, Salotti does not state that she saw
Plaintiff on February 17, 2015; indeed, her declaration does not
mention February 17, 2015, at all. While there is a treatment note
Salotti’s declaration, the time that Plaintiff was seen by medical
staff was 7 o’clock in the morning. This appears to have been prior
to Plaintiff being summoned by Sabin for his disciplinary hearing.
Thus, the absence of complaints in that treatment note about
injuries to Plaintiff’s wrists is not necessarily probative. At
sufficiently demonstrated their entitlement to summary judgment on
this excessive force claim against Sabin. Accordingly, their motion
to dismiss this claim is denied without prejudice with leave to
VII. Superintendent Michael Sheahan
Plaintiff alleges that Five Points Superintendent Michael
Sheahan (“Sheahan”) (1) participated in a conspiracy with Fuller by
providing unspecified “aid” to him after the cell extraction on
January 29, 2015; (2) did not arrange for feces in Plaintiff’s cell
to be cleaned; (3) did not lift the water-restriction order in
pertaining to the cell extraction on January 29, 2015; (5) and did
not order new photographs of Plaintiff’s injuries. (See Comp. ¶¶
142, 146, 150-158, 192, 200-203).
furtherance of a conspiracy, Plaintiff’s Complaint contains “only
conclusory, vague, or general allegations of conspiracy[,]” Sommer,
709 F.2d at 175, which “cannot withstand a motion to dismiss.” Id.
Plaintiff’s claim of a civil rights conspiracy is dismissed as to
Turning to the second and third sets of allegations against
observation unit on February 3, 2015. He alleges he was not given
any water from 12:00 p.m. that day to at least 10:30 p.m. on
February 3, 2015. On the morning of February 4, 2015, Plaintiff had
sewage in his toilet bowl. Furthermore, he asserts, he was not
provided any water to wash up with, and was made to eat his
breakfast and lunch in a cell in which there was sewage. (See Comp.
¶ 201). That day, while Sheahan and his executive team were making
the rounds, Plaintiff showed Sheahan the sewage in his toilet and
said he had not been provided water since 12:00 p.m. the previous
day (February 3, 2015). Plaintiff states that Sheahan still did not
cause Plaintiff’s toilet to be flushed or for him to be provided
with water. (Id. ¶ 202).
Defendants’ sole argument in support of summary judgment is
that Plaintiff has failed to state a conditions of confinement
claim because he has not alleged (1) an “objectively, sufficiently
serious . . . denial of the minimal civilized measure of life’s
necessities,” and (2) a “sufficiently culpable state of mind” on
the prison official’s part. Farmer, 511 U.S. at 834 (internal
quotation marks and citations omitted). The Court finds, contrary
to Defendants’ contentions, that Plaintiff has adequately alleged
the objective component of a conditions of confinement claim. See
McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001) (vacating in
part dismissal where the plaintiff alleged that he was forced to
live “in squalor—more specifically, a feces-covered cell—for three
days”) (cited with approval in Willey v. Kirkpatrick, 801 F.3d 51,
66 (2d Cir. 2015)). As to the subjective component, Defendants
assert Plaintiff does not allege that he told Sheahan about the
feces, merely alleges that Sheahan knew it was there. This appears
to the Court to be a distinction without a difference and, in any
event, Plaintiff’s Complaint clearly alleges that he informed
Sheahan about the sewage in his toilet while Sheahan and his team
were doing rounds on February 4, 2015. (See Comp. ¶ 202 (“Micolo
showed Sheahan the raw sewage in the toilet and complained that he
had not been allowed any water. . . .”)). The Court finds that
Plaintiff’s conditions-of-confinement claim against Sheahan based
on Sheahan’s alleged failure to lift the water-deprivation order
and cause his cell to be cleaned, despite being put on notice of
these conditions by Plaintiff.
Fourth, Plaintiff’s allegation that Sheahan improperly denied
incident, and the allegedly inadequate medical care provided on
January 29, 2015, is insufficient to state a claim. See Joyner v.
Greiner, 195 F. Supp.2d 500, 506 (S.D.N.Y. 2002) “The fact that
grievance—which is all that is alleged against him—is insufficient
to establish personal involvement or ‘to shed any light on the
critical issue of supervisory liability, and more particularly,
knowledge on the part of the defendant.’”) (quoting Scott v.
Scully, No. 93 Civ. 8777(HB), 1997 WL 539951, at *4 (S.D.N.Y. Aug.
28, 1997) (granting motion to dismiss claim against superintendent
due to lack of personal involvement where inmate merely alleged
dismissal of inmate’s grievance), abrogated on other grounds by
Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999)). It is well
Superintendent of a DOCCS facility] in the allegedly unlawful
conduct of his subordinates, he cannot be held liable under Section
1983.” Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987).
Finally, the Court turns to Plaintiff’s fifth allegation
against Sheahan. According to Plaintiff, Sheahan violated his
constitutional rights by failing to order new photographs be taken
of Plaintiff’s injuries, after Plaintiff complained that the first
set of photographs was unsatisfactory for him to use in connection
constitutional claim cognizable under Section 1983. See, e.g.,
Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003) (“The
satisfaction does not create a cause of action for denial of due
process because Torres was not deprived of a protected liberty
interest. Prison grievance procedures do not confer any substantive
envisioned by the Fourteenth Amendment. . . . Torres does not have
a protected liberty interest in having his grievances investigated
at the level of thoroughness that he desires, and therefore he can
not assert a due process claim as to such failures.”) (citations
PLAINTIFF’S MOTIONS FOR MISCELLANEOUS RELIEF
Motion to Compel Production of Video Evidence
Plaintiff has filed a motion to compel Defendants to produce
references the contents of the video at various points throughout
his pleadings submitted in opposition to Defendants’ motion for
summary judgment. Defendants argue that since Plaintiff has already
drafted and filed his opposition pleadings, he cannot argue that he
however, that if the Court finds it necessary to review the video
evidence is necessary to reach a determination on the pending
summary judgment motion, they will produce the video evidence to
the Court for its in camera review. The Court finds that the video
of the use-of-force incident is unnecessary for it to resolve the
pending summary judgment motion; indeed, based on Plaintiff’s own
allegations, the moving defendants were not actually involved in
accordingly denies Plaintiff’s motion to produce the video evidence
Motion to Compel Personal Service
Plaintiff also has moved to compel personal service of the
Summons and Complaint upon DOCCS’ employee, C. Gardner. This request
is moot, in light of the Court’s sua sponte dismissal of C. Gardner
as a defendant due to Plaintiff’s failure to state a cognizable
constitutional claim against her.
For the foregoing reasons, Defendants’ Motion for Summary
Judgment is denied in part and granted in part; Plaintiff’s Motion
to Compel Production of Video Evidence is denied without prejudice;
and Plaintiff’s Motion to Compel Personal Service of C. Gardner is
denied as moot.
Specifically, Defendants’ Motion for Summary Judgment is denied
to the extent that the excessive force claim against Sabin and the
conditions of confinement claims against Sheahan remain pending; and
it is granted to the extent that all other claims against Sheahan
are dismissed. Furthermore, Defendants’ Motion for Summary Judgment
is granted to the extent that all claims against Jones, Salotti,
Jansen, Sullivan, C. Gardner, Dewberry, Roberts, and Kline are
dismissed, and these individuals all are dismissed as defendants
from this action.
Accordingly, it is hereby
ORDERED that Defendants’ Motion for Summary Judgment (Dkt #31)
is denied in part and granted in part, as specified in more detail
below; and it is further
ORDERED that the excessive force claim based on handcuffing
remains pending against Sabin; and it is further
ORDERED that the conditions of confinement claims against
Sheahan based on the failure to have feces cleaned from Plaintiff’s
cell and to lift the water-deprivation order remain pending, but all
other claims against Sheahan are dismissed; and it is further
Sullivan, C. Gardner, Dewberry, Roberts, and Kline are dismissed;
and it is further
ORDERED that Jones, Salotti, Jansen, Sullivan, C. Gardner,
Dewberry, Roberts, and Kline are dismissed as defendants from this
action; and the Clerk of Court is directed to modify the caption
accordingly; and it is further
ORDERED that Plaintiff’s Motion to Compel Production of Video
Evidence (Dkt #34) is denied without prejudice; and it is further
ORDERED that Plaintiff’s Motion to Compel Personal Service of
C. Gardner (Dkt #42) is denied as moot because, as indicated above,
C. Gardner has been terminated as a defendant from this action.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
October 28, 2016
Rochester, New York
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