Jones v. Sheriff of Suffolk County

UNITED STATES DISTRICT COURT C/M

EASTERN DISTRICT OF NEW YORK

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:

KHALIK JONES, :

Plaintiff, : MEMORANDUM DECISION

: AND ORDER

- against – :

: 18-cv-0665 (BMC) (AYS)

SHERIFF OF SUFFOLK COUNTY, et al., :

:

Defendants. :

:

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COGAN, District Judge.

This is a pro se prisoner’s civil rights action under 42 U.S.C. § 1983. Plaintiff filed a

number of pleadings after the initial complaint that the previously assigned Magistrate Judge

deemed “supplemental”. That resulted in surviving claims against 24 defendants employed by

Suffolk County prison facilities or law enforcement, not counting the claims against another

dozen or so institutional and state-employed defendants who were previously dismissed. All of

these claims arise largely from unrelated incidents while plaintiff was in custody, although a few

of the claims involve two defendants. In opposition to defendants’ motion for summary

judgment, however, plaintiff has not pursued his claims against 19 of the defendants. As to those

19 defendants, I have reviewed the record in light of plaintiff’s pro se status and conclude that

those defendants are entitled to summary judgment.1

1 These are: Sheriff Errol Toulon, Former Sheriff Vincent DeMarco, Warden Michael Franchi, Dr. Stephen John,

LPN Sha’Kiera Bryant, Corrections Officer Jeffrey Campbell, Corrections Officer Sergeant Brian Loppicollo,

Corrections Officer Michael Newman, Corrections Officer Franklin Scholl, Corrections Officer Sergeant John

Lowry, Corrections Officer Michael Mazzaferro, Corrections Officer Thomas Heavey, RN Maryann Jadick, CNP

Amy Malave, Sergeant Vincent Worthington, LPN Dot Kerrigan, Corrections Officer Michael Ryan, Corrections

Officer Raymond Falk, and Corrections Officer Zachary Tyler.

That leaves us with five defendants. I will discuss plaintiff’s claims as to each of them

below. I have taken the facts from plaintiff’s affidavits and exhibits, except as to additional facts

that defendants have proffered which he does not dispute, and have construed the record in the

light most favorable to plaintiff.2

I. Dr. Geraci and Dr. Wickramaaratchi (“Dr. Ari”)

A. Background

Plaintiff’s claims against these two staff physicians arise out of separate incidents. I have

attempted to reconstruct the record of his complaints and the facilities’ responses from the

medical records and his requests for medical appointments (which were extensive). For the most

part, the incidents arise out of plaintiff’s relentless demands for oxycodone and the doctors’

decisions to first give him other painkillers instead, and then, when he engaged in hoarding the

substitutes, cut him off.

As to the first incident, plaintiff arrived at the Suffolk County Correctional Facility

(“SCCF”) as a pretrial detainee on May 27, 2017. He had his initial medical screening from Dr.

Ari. Plaintiff advised Dr. Ari that he suffered from nerve damage and “other debilitating

injuries,” that he had “extreme chronic pain,” and that he needed the prescribed medications that

he brought with him. Those medications were Oxycontin (generic: oxycodone, a very strong

opiate); Robaxin (generic: methocarbamol, a muscle relaxer that blocks nerve/pain sensations);

and Neurontin (generic: gabapentin, an anti-seizure medication). Dr. Ari confirmed through a

medical database that plaintiff had a prescription for these medications.

2 Since I am dismissing all of plaintiff’s claims against these defendants on the merits, I need not reach defendants’

qualified immunity arguments. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998).

Dr. Ari advised plaintiff that he was going to change the oxycodone prescription to

codeine sulfate. Plaintiff objected to this change.

By May 29, 2017, plaintiff had not received one of his medications, apparently the

codeine sulfate. That same day, plaintiff submitted a medical health request form, noting that he

was requesting “mental health” treatment. He checked boxes showing he had a “medication

problem”; a “mental health issue”; and “pain” in his hand, wrist, and back. In the narrative

portion of the form, he wrote, “I really need to speak with someone & I had a psych earlier this

month when I was home.” The request went to Dr. Geraci, who noted that the missing drug was

not currently available in the SCCF pharmacy and referred plaintiff’s case back to Dr. Ari to

prescribe a replacement medication. Dr. Geraci made a note in plaintiff’s chart that there was

“[n]o indication that this case needs immediate attention.”3 On June 2, 2018, some six days after

his admission to SCCF, plaintiff began receiving codeine sulfate. Ultimately, a grievance panel

concluded that plaintiff should have been given a “bridge” medication for the six days between

May 27th and June 2nd.

The second incident traces back to July 3, 2017, when plaintiff requested another medical

consultation, this one labeled “medical” (not “mental health”). Essentially, he demanded that

SCCF reinstate his oxycodone prescription because he did not consider the codeine sulfate to be

adequate. He complained that the “pain medication [codeine sulfate] was not working and I’ve

been expressing this since day one that I NEED my medication [oxycodone], and it’s like you

don’t even care.” He filed similar requests with increasing levels of agitation on July 6th, 7th,

8th, and 12th, the last of which noted that he had “excruciating chronic pain, due to having nerve

3 Defendants maintain that plaintiff actually met with Dr. Geraci on June 29th, but plaintiff denies such a meeting. It

is not material whether they met on that day or not, and, in any event, I accept plaintiff’s version for purposes of this

motion.

damage.” He saw Dr. Geraci on July 20th, who suggested a cane as a possible way to reduce his

leg pain. On July 21st, 22nd, and 24th, plaintiff filed additional requests for medical

intervention, focusing on his need for the cane.

After meeting with plaintiff, Dr. Geraci concluded that plaintiff was malingering. He

noted on July 13, 2017 that plaintiff

DOES NOT need any additional meds in my opinion and if I were him, then I

would request that we reduce any of the meds he is taking. I do not believe that

his pain is 8 of 10 as reported and I think he just wants more medication (not

considering the negative effects of the meds on his organ systems). He does not

want a reduction of meds at this time despite my recommendation that he only

takes what he needs in terms of his aches and pains that he reports. Again, he is

not in any distress and looks well.

A week later, Dr. Geraci commented further on plaintiff’s condition:

We reviewed his EKG and it is noted to have bradycardia with [] RBBB and

LAFB; my concern is that the meds may be causing a conduction delay as he is

taking Codeine, Robaxin, Neurontin, Seroquel and he seems to want more

narcotic analgesics but he is refraining for now due to the benefit risk concerns

that I have regarding cardiac status. He agrees that NOT adding additional meds is

the prudent thing to do at this time and he accepted my offer for a PT eval and to

see if a cane has more benefit than harm for his needs; [although] a cane can

cause problems associated with center of gravity compensations which can result

in more back pain.4

Plaintiff nevertheless received a change of pain medication a few days or a week later,5

but not back to the oxycodone that he wanted. Instead, his codeine sulfate prescription was

changed to morphine sulfate.

About seven weeks later, on September 13, 2017, plaintiff was caught during a cell check

and internal strip search hoarding his morphine and Seroquel, i.e., not taking them. The cell

4 Bradycardia is a slow heart rate, which could be caused by the conditions to which Dr. Geraci referred, i.e., RBBB

(right bundle branch block) and LAFB (left anterior fascicular block).

5 Dr. Geraci’s interrogatory responses assert that plaintiff’s medication was changed on July 26, 2017, but the

medical records suggest that the start date for the new medication was August 6, 2017.

check occurred because he was observed on a video recording talking to a female inmate6 who

was then found in possession of morphine sulfate (for which she apparently had no prescription).

The search of plaintiff and his cell resulted in the discovery of 23 Seroquel pills and 27 morphine

pills. The vast majority of the pills were found in plaintiff’s buttocks wrapped in plastic.

On the same day that the pills were found, Dr. Geraci terminated plaintiff’s prescription

for the morphine and Seroquel, concluding that if plaintiff was hoarding and hiding it, there was

no reason to prescribe it. The next day, the facility filed disciplinary charges against plaintiff for

possessing and hiding the contraband morphine and Seroquel. He was found guilty and

penalized with an extensive loss of privileges. He was also criminally charged with illegal drug

possession.7

Plaintiff does not dispute any of this but adds some embellishment. According to

plaintiff, he was hoarding some, but not all, of his medication because taking the prescribed

amount made him feel sleepy and he needed to focus on his legal case because he was suffering

from “ineffective assistance of counsel.” He asserts that he confronted medical on several

occasions (no particulars given and nothing in the record) to discuss this problem but was told

that if he wasn’t going to take the prescription medication according to the schedule that the

doctors wanted him to, then the medical department would no longer prescribe the medication.

Two things happened thereafter. First, plaintiff suffered seizures on September 16th and

September 18th. He had a long history of seizures stemming from epilepsy that may have been

6 Plaintiff referred to this female inmate in his deposition as a “playmate.”

7 As of the date of plaintiff’s deposition in this action, that criminal charge remained pending. Its current status is

not disclosed in the record before me. However, the public record reflects that plaintiff’s current prison sentence

includes a conviction for promoting prison contraband in the first degree. Available at:

http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130 (last visited Feb. 8, 2021). It seems likely, but

not certain, that this conviction is for the incident at issue in this case.

triggered by a fall in his youth. His prescription for Neurontin was purposed specifically as an

anti-seizure medication, and he had been taking it for decades.

Second, plaintiff was receiving care from a psychiatrist at SCCF, Dr. Chatterjee, who

reinstated his Seroquel prescription on October 14, 2017. On October 20th, Dr. Geraci

countermanded that prescription, stating, “this patient was caught misusing seroquel and mso4

[morphine sulfate], he is not trustworthy or reliable; that’s dangerous, and I will not allow those

meds at this time; safety reason.” Dr. Chatterjee saw plaintiff again on October 28th, and

renewed the Seroquel again. It does not appear to have been terminated thereafter.

From this chain of events, plaintiff contends that Drs. Ari and Geraci were deliberately

indifferent to his medical needs in three respects: (1) they left him without pain medication for

six days (May 27, 2017 to June 2, 2017); (2) Dr. Ari gave him codeine sulfate instead of

oxycodone, even though plaintiff believes that codeine sulfate is “less affective [sic]” than

oxycodone; and (3) Dr. Geraci should not have cut off plaintiff’s morphine in September, or, at

least, he should have “weaned” plaintiff off it slowly instead of having him go cold turkey.

B. Analysis

Plaintiff claims that defendants’ deliberate indifference to his serious medical concerns

violated his rights under the Eighth and Fourteenth Amendments. Because he was a pretrial

detainee during the period of treatment, I must evaluate his claims under the Fourteenth

Amendment’s due process clause. See Yancey v. Robertson, 828 F. App’x 801, 803 (2d Cir.

2020) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). That requires a showing of

deliberate indifference to a detainee’s medical needs. There is both an objective and a subjective

component involved in making this assessment.

Plaintiff must first demonstrate that he had a “sufficiently serious need” of medical

treatment. Darnell, 849 F.3d at 29. A “sufficiently serious need” means that he was at risk for

death, degeneration, or that he suffered “extreme” physical pain. See Hathaway v. Coughlin, 99

F.3d 550, 553 (2d Cir. 1996). This focuses on plaintiff’s physical ailments, not simply how he

reported them (because detainees sometimes overstate their level of pain), but whether according

to the medical records and the other facts of record, a reasonable jury could conclude that

plaintiff faced death, degeneration of his conditions, or extreme physical pain. See Brock v.

Wright, 315 F.3d 158, 162-64 (2d Cir. 2003) (self-reports of chronic pain considered with

medical records in objective test).

The second, subjective component focuses on the intent and conduct of the physician

charged with plaintiff’s care. Prison officials and medical officers have wide discretion in

treating prisoners, and “determinations of medical providers concerning the care and safety of

patients are given a ‘presumption of correctness.’” Sonds v. St. Barnabas Hosp. Corr. Health

Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (quoting Perez v. Cty. of Westchester, 83 F.

Supp. 2d 435, 440 (S.D.N.Y. 2000)). “[D]isagreements over medications, . . . 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 . . . .”

Id.

As these cases suggest, courts must be careful to not consider departure from the

accepted standard of medical care, so as to constitute medical malpractice, as serious

indifference. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Rather, the physician

must act, at a minimum, in reckless disregard of the serious consequences that his action would

cause, or, at most, with the deliberate intent to cause injury and pain. The Second Circuit has

phrased this standard as “act[ing] intentionally to impose the alleged condition, or recklessly

fail[ing] to act with reasonable care to mitigate the risk that the condition posed to the pretrial

detainee even though the defendant-official knew, or should have known, that the condition

posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35.8

Each of plaintiff’s claims fail to meet either or both of the objective and subjective

criteria. Turning first to the six-day lapse of pain medication for his hand and back, there is

nothing to suggest that Dr. Geraci or Dr. Ari were subjectively reckless or intentionally caused

him pain. Dr. Ari understandably (and wisely, as became apparent when plaintiff started

hoarding drugs) switched him from oxycodone, with its potential for abuse in the prison context

(and other contexts), to codeine sulfate, a less abused but still powerful pain medication. The

fact that the prison pharmacy did not have any codeine sulfate may reflect, at worst, a mistake on

Dr. Ari’s part, but certainly not recklessness. And when plaintiff complained two days later that

he needed more pain medication, Dr. Geraci promptly sent him back to Dr. Ari for a

replacement. Assuming the passage of four more days before he received a substitute caused

plaintiff some degree of pain or discomfort, that brief delay is not constitutionally deficient

where plaintiff suffered neither death nor degeneration of his condition. See Hathaway, 37 F.3d

at 67 (serious medical need where plaintiff “experience[d] great pain over an extended period of

8 Although the Second Circuit incorporated a “knew or should have known” standard in defining deliberate

indifference as the outside limit of potential liability, that standard requires either expert opinion or facts that would

allow a reasonable jury to reach a conclusion of recklessness, not just negligence. This is because a jury cannot be

allowed to guess at the degree of deviation from objectively reasonable medical practice. Thus, although the “knew

or should have known” standard may be sufficient to constitute medical malpractice under state law, cf. Cohen v.

Cabrini Med. Ctr., 94 N.Y.2d 639, 709 N.Y.S. 2d 151 (2000) (physician liable for malpractice if he knew or should

have known that a failure to warn created heightened risk), it requires a higher level of indifference in the

constitutional context. Otherwise, the malpractice standard and the constitutional standard would merge, and

“liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”

Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849,

(1998)).

time” and degeneration); Morehouse v. Vasquez, No. 17-CV-4836, 2020 WL 1049943, at *18

(S.D.N.Y. Mar. 4, 2020) (pain that “subsided after a couple of days to two weeks at the most”

was not sufficiently serious).

Plaintiff’s assertion that Dr. Ari should have kept him on oxycodone instead of moving

him to codeine sulfate merely reflects a disagreement as to the appropriate medication. But as

noted above, it is well-established that a prison doctor’s disagreement with a detainee over

proper medical treatment does not constitute malice or reckless disregard. See, e.g., Hill v.

Curcione, 657 F.3d 116, 123 (2d Cir. 2011); Sonds, 151 F. Supp. 2d at 312 (“[D]isagreements

over medications . . . are not adequate grounds for a Section 1983 claim.”).9

Similarly, plaintiff’s claim that Dr. Geraci’s characterization of his condition as not

requiring “immediate attention” demonstrates his indifference depends entirely on plaintiff’s

self-description of his pain as “extreme” or “excruciating.” But there are no medical or other

records reflecting a level of pain requiring immediate attention other than plaintiff’s self-

reporting, and Dr. Geraci, who was in a position to make a judgment, concluded that plaintiff

was exaggerating his pain. Plaintiff’s characterization of his level of discomfort, standing alone,

is an inadequate basis for a jury to conclude that either Dr. Geraci or Dr. Ari had a constitutional

duty to respond faster than four days.

This is especially true considering that shortly thereafter, Dr. Geraci found plaintiff to be

physically malingering and engaging in drug-seeking behavior. This is a not-unknown

characteristic among the prison population, see Sanchez v. Wright, No. 09-cv-469, 2012 WL

528578, at *7 (W.D.N.Y. Feb. 17, 2012); Verbitsky v. Montalbano, No. 08-cv-5148, 2012 WL

9 Plaintiff inquires why, if the doctors thought he was malingering and not in need of oxycodone, they moved him in

July from codeine sulfate to morphine sulfate. It seems obvious that they gave his constant complaints enough

credit to warrant a stronger medication, but insufficient to warrant oxycodone.

371994, at *3 (E.D.N.Y. Feb. 1, 2012), and one that warrants the doctor’s discounting the

prisoner’s credibility, cf. Weakland v. Astrue, No. 10-cv-519, 2012 WL 1029671, at *5

(W.D.N.Y. Mar. 26, 2012) (“Plaintiff’s drug seeking behavior serves to generally discount her

testimony as it relates to the severity of her symptoms.”); Anderson v. Shalala, 51 F.3d 777, 780

(8th Cir. 1995) (drug-seeking behaviors cast a “cloud of doubt” over the legitimacy of a

claimant’s numerous doctor visits and discredits allegations of disabling pain). See also Walker

v. Fischer, No. 08-cv-1078, 2011 WL 4369116, at *9 (N.D.N.Y. July 25, 2011) (“[I]n refusing to

prescribe stronger back pain medication, Defendant [Dr.] Lashway was entitled to her own

medical judgment that Plaintiff showed drug-seeking behavior.”) (citing Wright v.

Genovese, 694 F. Supp. 2d 137, 160 (N.D.N.Y. 2010) (“[C]oncern about prescribing narcotic

pain medication, on which inmates with possible substance abuse issues could become

dependent, may inform a medical judgment about what drug to prescribe.”)).

The second incident, the suspension of morphine and Seroquel when plaintiff was caught

hoarding, has to be placed in context. Dr. Geraci knew that plaintiff was abusing his

prescriptions – plaintiff does not deny it – and believed that the means for accomplishing abuse

was the continued refilling of the prescriptions. Under those circumstances, the only reasonable

thing to do was eliminate the source of the abuse.

In addition, plaintiff’s argument that Dr. Geraci should have “weaned” him off these

drugs instead of cutting him off again reflects nothing but plaintiff’s preferred treatment over that

directed Dr. Geraci. Dr. Geraci had to not only consider what would make plaintiff happy and

comfortable in the short term. He also had to consider the potential harm if he kept the opiates

and Seroquel flowing, not only to plaintiff, but to other inmates who might buy or receive

“favors” from plaintiff. Nor is there anything in the record to allow a reasonable inference that

plaintiff suffered undue pain from being cut-off – in fact, there is nothing suggesting that

plaintiff was addicted to these drugs at all – and, obviously, plaintiff’s statements as to how

much morphine he needed were not entitled to any credit from Dr. Geraci considering plaintiff’s

abuse. As Dr. Geraci stated, “He is not trustworthy or reliable; that’s dangerous.” No reasonable

person could conclude that plaintiff’s insistence on dictating his own pharmacological needs was

anything else.

Finally, if plaintiff is trying to blame Dr. Geraci for his seizures (it is not clear if he is),

there is nothing to support it. Plaintiff was not cut off from Neurontin, which he had been taking

for decades to control his seizures, and the other drugs addressed different impairments, not the

seizures.

II. Nurse Alarcon

Plaintiff appears to have both denial of medical treatment and First Amendment

retaliation claims against this staff nurse. They arise from an incident during the dispensation of

morning medication to prisoners on April 3, 2018. Although plaintiff denies using any obscene

language during the encounter, it is undisputed that he engaged in some form of verbal

altercation with Nurse Alarcon because he believed she had not properly cleaned a pill crusher

before using it to prepare his medication, and that she was not wearing gloves. She terminated

the encounter without giving him his medicine but came back just after 11:00 a.m., and plaintiff

received his medication.

After the first aborted attempt to give him his medication, plaintiff filed a grievance

against Nurse Alarcon for not cleaning the pill crusher and wearing gloves. The facility’s

grievance unit received it on April 5, 2018, at 8:08 AM. Less than six hours later, Nurse Alarcon

marked a “late entry” on plaintiff’s medical chart, noting that his medication on April 3 had been

delayed: “Apparently, Mr. Jones wanted me to use a (sterile) gauze pad opened from a package.

This was not available on the med cart.” A few minutes later, she filed a Disciplinary Action

Report (“DAR”) against him for using obscene language during the incident. Plaintiff’s

grievance was denied on the merits because his allegations regarding the incident could not be

substantiated. Nurse Alarcon’s DAR was dismissed after a hearing on April 17, 2018; the

hearing board stating only that the dismissal was based on “incorrect paperwork.”10

In addition, plaintiff claims that on three occasions beginning about five weeks later –

May 14, June 4, and July 31 – she withheld his medications.

Reading plaintiff’s submissions liberally, it appears he is alleging that Nurse Alarcon: (1)

improperly attempted to medicate him without a clean pill crusher and gloves, and then delayed

his medication; (2) filed a false DAR in retaliation for the grievance he had filed against her; and

(3) withheld his medications on three occasions in further retaliation for the grievance.

As to the pill dispensing incident, plaintiff acknowledges that after a brief delay, Nurse

Alarcon administered his medication with a clean pill crusher and gloves. The brief delay in

medication is not actionable for the reasons stated above. See e.g. Sonds, 151 F. Supp. 2d at

312.

The retaliation claims are more complex. At the outset, I note that the Second Circuit has

urged caution in evaluating retaliation claims by prisoners: “[B]ecause we recognize both the

near inevitability of decisions and actions by prison officials to which prisoners will take

exception and the ease with which claims of retaliation may be fabricated, we examine prisoners’

claims of retaliation with skepticism and particular care.” Hayes v. Dahlke, 976 F.3d 259, 272

(2d Cir. 2020) (quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), abrogated on other

10 Plaintiff has interpreted the board’s decision as being based on a finding that Nurse Alarcon lied about her

encounter with plaintiff, but that is a conclusion without any support in the record.

grounds, Tangreti v. Bachmann, 963 F.3d 609 (2d Cir. 2020)). That caution is particularly

appropriate in this case because plaintiff has sued nearly three dozen individuals from three

different institutions, many of them for petty disputes. Although he has abandoned most of his

claims in opposing defendants’ summary judgment motion, I cannot help but be cognizant of the

fact that plaintiff tends to see constitutional violations in any conduct that offends him.

To prove a First Amendment retaliation claim under 42 U.S.C. § 1983, a prisoner must

first show that “(1) that the speech or conduct at issue was protected, (2) that the defendant took

adverse action against the plaintiff, and (3) that there was a causal connection between the

protected speech and the adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)

(quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds,

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). Even if a prisoner pleads sufficient facts to

show that he plausibly meets these three factors, that is merely sufficient to state a claim for First

Amendment retaliation. See Phelps v. Kpanolas, 308 F.3d 180, 186-87 (2d Cir. 2002). To

survive summary judgment, the prisoner must do more. He must adduce sufficient evidence to

allow a reasonable jury to infer these criteria are met from the totality of the circumstances. See

Gayle v. Gonyea, 313 F.3d 677, 682-83 (2d Cir. 2002).

For purposes of this motion, defendants concede that plaintiff has produced enough

evidence to show, if his view of the facts were accepted, that he engaged in protected speech –

his filing of a grievance against Nurse Alarcon – and that the actions of which he complains –

Nurse Alarcon’s filing of a retaliatory DRA and retaliatory withholding of medication – would

constitute adverse actions. Defendants assert, however, that there is no causal connection

between plaintiff’s filing of his grievance and these subsequent actions.

As to the alleged retaliatory filing of a DAR, this case presents the opposite of the usual

inquiry into causation. In most cases, in considering whether a reasonable jury could find a

causal relationship, one of the factors courts consider is the temporal proximity of the alleged

retaliation to the protected activity. Although the Second Circuit has not “drawn a ‘bright line’

as to exactly when a temporal relationship supports a finding of a causal relationship,” Hayes,

976 F.3d at 273, the general rule is that the closer they are connected in time, the more likely the

facts will support an inference of causation. See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.

2009) (temporal proximity established despite six months having elapsed where other evidence

made it “plausible that the officers waited to exact their retaliation at an opportune time”);

Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (passage of three months

weighed against finding a causal connection).

Here, however, plaintiff has the opposite problem – the protected activity and alleged

retaliation are too close in time to allow a reasonable inference of causation. Under plaintiff’s

theory of the case, the grievance unit received his complaint against Nurse Alarcon at 8:08 in the

morning, and by 2:00 that same day, she had both made false entries in his medical record and

generated a DAR in retaliation. Putting aside that it seems an awfully quick turnaround to

engage in retaliation under almost any state of facts, plaintiff has adduced no evidence that Nurse

Alarcon even knew that he had made a grievance against her when, five or six hours later, she

filed the DAR. See Faulk v. Fisher, 545 F. App’x 56, 59 (2d Cir. 2013) (summary judgment

warranted on retaliation claim based on misbehavior report filed the day after prisoner’s

successful grievance where there was no evidence suggesting that the officers were even aware

of the grievance). There is no reason to believe that his grievance traveled like greased lighting

from the grievance panel to Nurse Alarcon and that she responded virtually immediately by

filling out medical records and a DAR.

Plaintiff seems to recognize this deficiency. The most that he can say in his affidavit is

that “[o]n information and belief, when a prisoner files a grievance, the grievance staff calls the

matter to the attention of those responsible for the matter that the grievance concerns.” That is

probably true – one would hope that a grievance panel would hear from the accused staff

member before making a decision – but it is not evidence that it could happen here as quickly as

plaintiff posits, or that it happened at all before Nurse Alarcon filed her DAR.11 A jury finding

that some unnamed person on the grievance panel alerted Nurse Alarcon of plaintiff’s grievance

as soon as it was received and that she retaliated with a DAR within a matter of hours would

require a degree of speculation that juries are not permitted to undertake.

The lack of causation is even more apparent with regard to plaintiff’s claim of retaliation

by failing to medicate. As plaintiff acknowledges, Nurse Alarcon had at least two opportunities

to deprive plaintiff of medication every day over the next three months. If she wanted to

retaliate, it would make no sense for her to wait five weeks for one act of petty retaliation, then

three weeks for another, then seven weeks for another, especially when such retaliation could

have occurred twice every day from the day of the protected activity. Grievances annexed to

plaintiff’s amended complaint confirm that plaintiff did not receive his medications on three

days,12 but another grievance alleging Nurse Alarcon’s failure to provide medication – filed on

11 When plaintiff inquired of Nurse Alarcon as to why she waited until April 5th to file a DAR for an incident that

had happened on April 3rd, she responded that the first opportunity she had to prepare a DAR was on April 5th.

12 Plaintiff’s own description of at least one of these incidents points less to retaliation and more to a missed

connection: on May 14, 2018, plaintiff’s grievance states that he went to the law library in the morning and religious

services in the afternoon and, upon his return both times, learned that the Nurse had already come and gone.

April 6, 2018, the day after the Nurse submitted the allegedly retaliatory DAR and the most

likely date for any retaliatory withholding of medication – was denied on the merits because

plaintiff in fact had received his medication that day. On these facts, no reasonable jury could

view three widely dispersed, missed doses of twice-daily medications over a three-month period

as causally related to his protected activity.

III. Captain Boyle

Plaintiff alleges that defendant Deputy Sheriff Patrick Hess sexually assaulted him in the

SCCF on July 17, 2018, when plaintiff was turned over to Deputy Sheriff Hess’s custody for

transport to court.13 Plaintiff filed a grievance against Deputy Sheriff Hess for the alleged sexual

assault, and Captain Boyle was assigned to investigate it. Captain Boyle’s preliminary report

states that he reviewed video and concluded that plaintiff’s claim against Deputy Sheriff Hess

was unfounded. Plaintiff’s claim against Captain Boyle is that Captain Boyle denied him due

process because he lied about reviewing any relevant video.

In discovery, plaintiff posed the following interrogatories to Captain Boyle and received

the following answers:

2. In reference to grievance #R-2018-290, that Khalik Jones wrote, allegedly what

camera did you review?

RESPONSE: I viewed video footage from a camera in the holding pen.

3. Allegedly, where would this camera be located at?

RESPONSE: This camera is located in the holding pen.

4. How many more cameras are located in this area, allegedly?

RESPONSE: There are two camera located in the holding pen.

13 That claim is not the subject of the present motion and defendants have acknowledged that there are factual issues

requiring a trial against Deputy Sheriff Hess.

5. Isn’t it true, that there are no cameras where the Sheriff Deputies house

prisoners, awaiting to be turned over to Court Officers?

RESPONSE: I am not aware if there any video cameras where the deputy sheriffs

are assigned, for when prisoners are to be turned over to the court officers.

Plaintiff seizes upon this last response in opposing summary judgment. He claims that he

was not assaulted in the holding pen, but “where the deputy sheriffs are assigned.” Captain

Boyle, therefore, was looking at irrelevant video, and his conclusion that no assault occurred was

without any basis.

Plaintiff is thus asserting that there is some difference between “the holding pen” and

“where deputy sheriffs are assigned” to deliver prisoners to court officers, and that he was

assaulted in the latter, not the former. However, the grievance he filed was very vague as to

where the assault occurred, and the only place referenced was the “holding cell.” Indeed, even

the way he describes the location in opposition to summary judgment is vague. Plaintiff

describes these “two” areas as one – he claims the sexual assault occurred “in the holding pen

where Deputy Sheriffs[] are assigned for when prisoners are to be turned over to the Court

Officers.” (Emphasis added). Captain Boyle reviewed the video cameras from the holding pen –

I don’t see how he could do otherwise – and concluded that there was nothing in them to show

an assault.

Plaintiff may have demonstrated, at most, that Captain Boyle could have done a more

thorough job in investigating his grievance. However, plaintiff’s disagreement over how

thorough Captain Boyle should have been does not amount to a due process violation. District

courts in this Circuit have consistently rejected due process claims based on allegations that

investigating officers did less than they should have or fabricated what they did:

The law is clear that inmates do not enjoy a constitutional right to an investigation

of any kind by government officials. The Due Process Clause confers no right to

governmental aid, even where that aid may be necessary to secure life, liberty, or

property interests of which the government itself may not deprive the individual.

Banks v. Annucci, 48 F. Supp. 3d 394, 414 (N.D.N.Y. 2014) (citations omitted) (citing Bernstein

v. New York, 591 F. Supp. 2d 448, 460 & n.105 (S.D.N.Y. 2008) (collecting cases)); accord,

Jackson v. Bertone, No. 20-cv-1092, 2020 WL 6385066, at *12 (N.D.N.Y. Oct. 30, 2020);

McCloud v. Prack, 55 F. Supp. 3d 478, 481-82 (W.D.N.Y. 2014) (“Plaintiff’s allegations that

Olles deliberately conducted an inadequate investigation for the purpose of covering up Griffin’s

alleged misconduct, and that he did so at the direction of defendant Shepanski, are likewise

insufficient to make out a § 1983 claim against either of them.”).

IV. Corrections Officer Becker14

Plaintiff avers that at 2:05 PM on June 17, 2018, after being out in the yard, he alerted

C.O. Becker that he (plaintiff) urgently needed medical care. Becker advised him at 2:35 PM

that he (Becker) had contacted the medical unit for assistance and that medical care was “on the

way,” but medical never came until Becker went off shift and his replacement observed, at 3:00

PM, that plaintiff was in distress. Plaintiff concludes from this that Becker lied about calling

medical and did not inform other staff of plaintiff’s distress, and that this demonstrates that

Becker was deliberately indifferent to his “medical emergency.”

The medical records show that two health care providers from the medical unit saw

plaintiff on June 17, 2018, prior to 3:32 PM, and completed their evaluation by 3:46 PM. The

treatment notes state that plaintiff reported 1 ½ hours of chest pain, profuse sweating, dizziness,

seeing spots, and “not feeling right.” The notes further indicate that plaintiff had “recovered” by

the time he was seen. The notes go on to state that plaintiff had a history of an abnormal EKG,

14 Plaintiff’s various pleadings asserted three separate claims against C.O. Becker, but in opposing defendants’

motion for summary judgment, he has only addressed one. Because he is pro se, I have reviewed the other two and

conclude that the record shows that he is not entitled to relief.

and that he should be sent for further cardiac evaluation. No other treatment was provided.

Plaintiff has not disputed any of the entries in these medical records.

Under the standards set forth above with respect to Dr. Geraci and Dr. Ari, plaintiff has

failed to raise an issue of fact as to deliberate indifference in providing medical treatment. Even

assuming that C.O. Becker lied to him about contacting the medical department (and there is

nothing to support that except plaintiff’s characterization), plaintiff has not adduced evidence

that he had a “sufficiently serious need” of immediate medical treatment. Darnell, 849 F.3d at

29. In considering whether a delay caused a risk of harm, a court may consider “[t]he absence of

adverse medical effects or demonstrable physical injury.” Smith v. Carpenter, 316 F.3d 178, 187

(2d Cir. 2003). To meet the objective prong for a claim of deliberate indifference to serious

medical needs, a plaintiff must show that he actually did not receive adequate care and that the

inadequacy in medical care was sufficiently serious. Salahuddin v. Goord, 467 F.3d 263, 280

(2d Cir. 2006).

Nothing in plaintiff’s description of his symptoms shows that he was at risk of death or

degeneration. And although plaintiff seizes on terms used in the caselaw by characterizing his

discomfort as “extreme” or “excruciating,” the undisputed facts are that he recovered on his own

within 1 ½ hours of first reporting his symptoms to Becker. These facts in their totality show

that the 1 ½ hour delay did not constitute deliberate indifference to a serious medical need. See

Bumpus v. Canfield, 495 F. Supp. 2d 316, 322 (W.D.N.Y. 2007) (dismissing deliberate

indifference claim based on “a delay of several days in dispensing plaintiff’s hypertension

medication” absent evidence that “the delay gave rise to a significant risk of serious harm”); see

also Lewis v. Cavanugh, 685 F. App’x 12, 14 (2d Cir. 2017) (affirming dismissal of deliberate

indifference claim where prisoner complained that his “head was swollen”; that he was “seeing

double”; and that he was “dizzy, nauseous,” and later was treated only for bruising and minor

abrasions).

V. State Law Claims

Defendants seek summary judgment dismissing plaintiff’s state law claims that fall under

this Court’s supplemental jurisdiction. Their argument is that plaintiff failed to timely file a

notice of claim for any of these claims, and that such a notice is a prerequisite for maintaining

them. N.Y. Gen. Mun. Law § 50-e et seq. Plaintiff does not dispute this, and his opposition may

reflect that he does not understand the distinction between his federal and state claims. Again,

however, because of his pro se status, I have considered whether to dismiss the state law claims

or decline to exercise my supplemental jurisdiction over them under 28 U.S.C. § 1367.

My conclusion is that the state law claims should be dismissed for failure to file the

required notice of claim. This case is over three years old and even a glance at the docket sheet

shows that it has been extensively litigated at great cost and burden to all parties. Permitting

plaintiff to start anew in state court would not be in the interests of justice or efficiency, as the

need to have filed a notice of claim is firmly established and regularly followed under state law.

See Radin v. Tun, 12-cv-1393, 2015 WL 4645255, at *15-16 (E.D.N.Y. Aug. 4, 2015)

(exercising supplemental jurisdiction and dismissing state law claims after dismissal of federal

claims where plaintiff had failed to file a notice of claim) (citing Cornado v. City of New York,

No. 11 Civ. 5188, 2014 WL 4746137, at *4 (S.D.N.Y. Sept. 24, 2014) (on a motion to dismiss,

dismissing the pro se plaintiff’s supplemental state law claims along with his § 1983 claims

where he failed to file a notice of claim)); Boda v. Phelan, No. 11-CV-28, 2014 WL 3756300, at

*7 (E.D.N.Y. July 30, 2014) (same, on a motion for summary judgment); Excell v. City of New

York, No. 12-cv-2874, 2012 WL 2675013, at *4 (E.D.N.Y. July 5, 2012).

CONCLUSION

Defendants’ motion for partial summary judgment is granted. The case will proceed to

trial against the remaining defendant (see fn. 13 supra).

Digitally signed by Brian M.

SO ORDERED.

Cogan

U.S.D.J.

Dated: Brooklyn, New York

February 10, 2021