Sides v. Paolano

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

DARRICK LEE SIDES,

Plaintiff,

vs. 9:15-CV-1203

(MAD/CFH)

DOCTOR PAOLANO, Coxsackie Medical

Unit, individually and officially; DOCTOR JON

MILLER, Coxsackie Medical Unit, individually and

officially; P. SNYDER, Nurse, Coxsackie Medical

Unit, individually and officially; and P. SCHMIDT,

Nurse, Coxsackie Medical Unit, individually and

officially,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

DARRICK LEE SIDES

96-A-5286

Groveland Correctional Facility

7000 Sonyea, New York 14556

Plaintiff pro se

OFFICE OF THE NEW YORK CHRISTOPHER J. HUMMEL, AAG

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

Mae A. D'Agostino, U.S. District Judge:

ORDER

Plaintiff, an inmate who was at all relevant times in the custody of the New York State

Department of Corrections and Community Supervision ("DOCCS"), commenced this action on

October 5, 2015, alleging that Defendants were deliberately indifferent to his serious medical

needs in violation of the Eighth Amendment. See Dkt. No. 1.

On March 1, 2017, Defendants moved for summary judgment, arguing that Plaintiff's

claims were barred by the statute of limitations, or, in the alternative, that Plaintiff failed to

exhaust his administrative remedies. See Dkt. No. 40. On January 8, 2018, Magistrate Judge

Hummel issued a Report-Recommendation and Order recommending that the Court grant

Defendants' motion for summary judgment, finding that Plaintiff's claims were time barred. See

Dkt. No. 48. Magistrate Judge Hummel concluded that, for the purposes of the statute of

limitations, the complaint was filed on October 5, 2015, and that Plaintiff did not present any

evidence establishing that he was entitled to the benefit of the continuing violation doctrine or

equitable tolling. See id. at 14-18. On March 29, 2018, the Court adopted Magistrate Judge

Hummel's Report-Recommendation and Order and dismissed this action. See Dkt. No. 50.

On November 13, 2019, the Second Circuit reversed the dismissal order and remanded the

action, holding that "[t]he District Court has not yet ruled ... on the argument that Sides

emphasizes on appeal: whether Sides's inability to access notary services during the eight days

between September 21 and 29 entitles him to equitable tolling." Dkt. No. 56 at 4. In remanding

the case, the Second Circuit invited the Court to address Defendants' claims of "qualified

immunity and Sides's failure in conflict with the Prison Litigation Reform Act ... to exhaust

administrative remedies" and "other defenses." Id. at 5.

Upon remand, the parties submitted additional briefing on the issues identified by the

Second Circuit. On June 3, 2020, Magistrate Judge Hummel issued a Report-Recommendation

and Order recommending that the Court grant Defendants' renewed motion for summary

judgment. See Dkt. No. 68. Specifically, Magistrate Judge Hummel found that the three-year

limitations period began to run on September 28, 2012 and that Plaintiff's complaint, which was

filed "no earlier than October 1, 2015" was untimely. See id. at 9. Further, Magistrate Judge

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Hummel found that Plaintiff was not entitled to equitable tolling because his complaint did not

need to be notarized, which allegedly caused some of his delay, and because he failed demonstrate

that he otherwise acted with diligence in bringing this action. See id. at 10-13. Even assuming

that Plaintiff had timely filed this action, Magistrate Judge Hummel further recommended that the

Court find that Plaintiff failed to exhaust his available administrative remedies. See id. at 13-22.

Magistrate Judge Hummel further found that, even assuming the complaint was timely and not

barred by Plaintiff's failure to exhaust, Defendants are nevertheless entitled to summary judgment

on the merits. See id. at 22-33. Specifically, Magistrate Judge Hummel found that the record

demonstrates that Defendants provided Plaintiff with consistent and reasonable care in response to

his complaints and that Plaintiff failed to establish that Defendant knew of and disregarded an

"excessive risk" to his health. See id. Finally, Magistrate Judge Hummel recommended that the

Court sua sponte dismiss the case against Defendant Snyder since he was never served with

process. See id. at 34-35.

Currently before the Court are Magistrate Judge Hummel's June 3, 2020 Report-

Recommendation and Order and Plaintiff's objections thereto.1 When a party files specific

objections to a magistrate judge's report-recommendation, the district court "make[s] a de novo

determination of those portions of the report or specified proposed findings or recommendations

to which objection is made." 28 U.S.C. § 636(b)(1)(C). However, when a party files "[g]eneral or

conclusory objections, or objections which merely recite the same arguments [that he] presented

to the magistrate judge," the court reviews those recommendations for clear error only. O'Diah v.

Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations and

1 For a complete recitation of the relevant background facts, the Court refers the parties to

the June 3, 2020 Report-Recommendation and Order.

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footnote omitted). After the appropriate review, "the court may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §

636(b)(1)(C).

A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and, based on the undisputed facts, judgment for the

movant is warranted as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36

(2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court

"cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37

(quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion

for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c) (e)).

In assessing the record to determine whether any such issues of material fact exist, the

court is required to resolve all ambiguities and draw all reasonable inferences in favor of the

nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the

motion or fails to dispute the movant's statement of material facts, the court may not rely solely on

the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to

evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d

139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion

for summary judgment "would derogate the truth-finding functions of the judicial process by

substituting convenience for facts").

"[I]n a pro se case, the court must view the submissions by a more lenient standard than

that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,

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295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations

omitted). The Second Circuit has opined that the court is obligated to "make reasonable

allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because

they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

"However, this does not mean that a pro se litigant is excused from following the procedural

requirements of summary judgment." Kotler v. Fischer, No. 9:09-CV-01443, 2012 WL 929823,

*12 (N.D.N.Y. Mar. 19, 2012) (citations omitted). Specifically, "a pro se party's 'bald assertion,'

completely unsupported by evidence is not sufficient to overcome a motion for summary

judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi,

923 F.2d 18, 21 (2d Cir. 1991)).

Having carefully reviewed the June 3, 2020 Report-Recommendation and Order, the Court

finds that Magistrate Judge Hummel correctly determined that Defendants' motion for summary

judgment should be granted. In his objections, Plaintiff first argues that Magistrate Judge

Hummel "incorrectly concluded 'Sides' inability to timely obtain a notary for his complaint does

not warrant the "extraordinary measure" of equitable tolling'" and that this decision is "clearly

against the instructions" of the Second Circuit that the temporary unavailability of notary services

entitles him to equitable tolling. See Dkt. No. 69 at 8-9. Contrary to Plaintiff's assertions, the

Second Circuit did not direct this Court that the temporary unavailability of notary services

entitled Plaintiff to equitable tolling. Rather, the Second Circuit remanded the matter to this

Court to determine, in the first instance, whether equitable tolling should apply. Magistrate Judge

Hummel correctly determined neither the Federal Rules of Civil Procedure nor the Local Rules of

the Northern District of New York require complaints to be notarized. Moreover, to the extent

that Plaintiff moved for preliminary injunctive relief, there is no requirement that such motions be

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filed simultaneously with the complaint. As such, the Court finds that Magistrate Judge Hummel

correctly determined that Plaintiff has not presented the Court with a "rare and exceptional

circumstance" warranting the application of equitable tolling. See Johnson v. Arnone, No. 3:15-

cv-532, 2015 WL 9451029, *1 (D. Conn. Dec. 23, 2015) (rejecting the inmate's tolling argument

based on his inability to have the complaint notarized for six days). Additionally, to receive the

benefit of tolling, Plaintiff was required to demonstrate that he pursued this action with the

appropriate amount of diligence, which is clearly lacking in the present matter. See Lyons v.

Emerick, 187 Fed. Appx. 219, 221-22 (3d Cir. 2006) (concluding that the plaintiff did not act with

"reasonable diligence" because he had two years to file his complaint but "waited until the last

minute when his schedule was derailed by a delay for the paperwork necessary to file his

complaint in forma pauperis"); Torres v. Droun, No. 3:01-cv-1844, 2004 WL 721729, *5 (D.

Conn. Mar. 30, 2004) (rejecting claim of equitable tolling due to alleged delays by prison officials

in providing the plaintiff with a trust account statement). As such, Plaintiff's complaint is

untimely and Defendants are entitled to summary judgment.

Even assuming that Plaintiff was entitled to equitable tolling, Magistrate Judge Hummel

correctly determined that Plaintiff failed to exhaust his available administrative remedies. In his

objections, Plaintiff contends that Magistrate Judge Hummel "failed to consider the policy

'exception' that the IGP supervisor can deem 'any grievance of an emergency nature directly to the

appropriate response level' thereby bypassing the three step process for a[n] immediate

resolution." Dkt. No. 69 at 11. As such, Plaintiff claims that administrative remedies were

unavailable to him. See id. Contrary to Plaintiff's contentions, Magistrate Judge Hummel did

specifically consider Plaintiff's argument that his grievance was an "emergency grievance," and

rejected the argument. See Dkt. No. 68 at 19-20. The issue that Plaintiff faces is not whether or

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not the grievance was of an emergency nature; rather, the issue is that there is no record of

Plaintiff having filed a grievance in August of 2012 regarding his medical care. Plaintiff was

unable to produce a copy of the grievance and failed to submit any evidence related to how he

submitted it or to whom he gave the grievance for mailing or filing. See id. at 20-21. Without

competent, admissible evidence supporting Plaintiff's claim that he filed a grievance in August

2012, or any specific facts surrounding the grievance or the outcome, Plaintiff's wholly conclusory

assertions that administrative remedies were unavailable are insufficient to overcome Defendants'

motion for summary judgment. See Grayson v. Courtney, No. 9:16-cv-1118, 2018 WL 6933296,

*6 (N.D.N.Y. Dec. 3, 2018) (holding that, due to "the complete lack of corroboration" of the

plaintiff having filed a grievance, "no rational fact finder could conclude that plaintiff actually

attempted to file such a grievance") (collecting cases). As such, the Court finds that Defendants

are entitled to summary judgment on this alternative ground.

The Court further finds that Magistrate Judge Hummel correctly determined that, even

assuming that Plaintiff's complaint was timely and that he exhausted his administrative remedies,

Defendants are nevertheless entitled to summary judgment on the merits of Plaintiff's Eighth

Amendment deliberate indifference claim. Construing the complaint liberally, Plaintiff alleges

that Defendants were deliberately indifferent for failing to refer him to a specialist prior to July

31, 2012, and that Defendants violated his Eighth Amendment rights because they failed to

implement Dr. Conete's recommendation and delayed surgery from July 31, 2012 until October 4,

2012, allowing his condition to worsen. See Dkt. No. 40-8 at 14. As Magistrate Judge Hummel

noted, Plaintiff concedes that from 2009 until September 2012, he was treated twenty times at

Coxsackie C.F. for rectal bleeding and related symptoms. See Dkt. No. 43-1 at 23; Dkt. No. 43-3

at ¶ 7. During this time, the record demonstrates that his condition responded to the treatment

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provided. For example, in October 2011, Defendant Paolano prescribed Plaintiff Metamucil,

Ibuprofen, a suppository, and an ointment. See Dkt. No. 40-5 at ¶ 7; Dkt. No. 41 at 102-04. From

October 2011 until April 2012, Plaintiff accepted the medications without complaint. Further,

during this time Plaintiff did not request additional medical treatment or make any complaints

during this time that his symptoms were worsening. In July 2012, Plaintiff informed his medical

providers that he stopped taking his suppository "two weeks ago as he believes they made him

bleed more." Dkt. No. 41 at 85. At that time, Defendant Paolano concluded that Plaintiff was not

responding to the treatment and referred him to a specialist. See id. at 84; Dkt. No. 40-5 at ¶ 7.

Although Plaintiff might disagree with the treatment provided to him, the record is clear that

Defendants provided him with consistent and reasonable care in response to his complaints.

Further, even assuming that Defendants' continuing treatment of Plaintiff's hemorrhoids with

medications and ointments, rather than immediately referring him to a specialist, caused him

unintended harm, negligence is not actionable under Section 1983. See Burroughs v. Petrone, 138

F. Supp. 3d 182, 211 (N.D.N.Y. 2015) (quotation omitted).

Additionally, the record also makes clear that, when Plaintiff's condition began to worsen

in September 2012, more drastic medical intervention was immediately undertaken by

Defendants. Specifically, on September 25, 2012, Defendant Paolano met with Plaintiff to

discuss blood work after it was determined that Plaintiff was anemic. See Dkt. No. 40-5 at ¶ 16;

Dkt. No. 71 at 23. Based on the results of the blood work, Defendant Paolano ordered additional

blood work for Plaintiff to be completed on the next available day. On September 28, 2012,

Defendant Miller reviewed the results of the blood work and referred Plaintiff to Albany Medical

Center for further medical attention. See Dkt. No. 40-6 at ¶ 24. Later that day, Plaintiff was

admitted to Albany Medical Center and received a blood transfusion and underwent a

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colonoscopy to evaluate his hemorrhoids. See Dkt. No. 40-6 at ¶ 25. The colonoscopy revealed

stage III hemorrhoids and, as a result, medical staff at Albany Medical Center deemed a

hemorrhoidectomy medically necessary. See id. Plaintiff underwent the hemorrhoidectomy on

October 4, 2012, and was returned to Coxsackie C.F. on October 6, 2012, where he was housed in

the infirmary. See id.; see also Dkt. No. 40-5 at ¶ 20. On October 9, 2012, Plaintiff denied

experiencing any rectal bleeding and was discharged from the infirmary.

As the record in the present matter makes clear, Plaintiff was provided with consistent

medical care that, when it became clear that the conservative course of treatment was no longer

working, he was referred to a surgeon for treatment. At best, the record before the Court

demonstrates that Plaintiff may have disagreed with the course of treatment Defendants provided.

There is no evidence before the Court that Defendants ever ignored Plaintiff's complaints of pain

or that Defendants were unresponsive when Plaintiff's condition deteriorated. See Castillo v.

Rodas, No. 09-cv-9919, 2014 WL 1257274, *10 (S.D.N.Y. Mar. 25, 2014). Accordingly, the

Court finds that Defendants are entitled to summary judgment on this alternative ground.

Finally, the Court finds that Magistrate Judge Hummel correctly determined that

Defendant Snyder should be dismissed from this action because he has not been served with

process. Where a defendant has not been served with process within 120 days after the complaint

is filed, the Court must, on motion or sua sponte after notifying the plaintiff, dismiss the

complaint without prejudice as to that defendant or "order that service be made within a specified

time." Fed. R. Civ. P. 4(m). Here, more than four years have passed since Plaintiff filed his

complaint. Plaintiff has failed to address this issue in either his response to the motion for

summary judgment or in his objections to the Report-Recommendation and Order. As such, he

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has failed to establish good cause for his service failure and dismissal of the case as to Defendant

Snyder is appropriate.

Accordingly, the Court hereby

ORDERS that Magistrate Judge Hummel's Report-Recommendation and Order (Dkt. No.

68) is ADOPTED in its entirety; and the Court further

ORDERS that Defendants' motion for summary judgment (Dkt. No. 40) is GRANTED;

and the Court further

ORDERS that Defendant Snyder is DISMISSED sua sponte in light of Plaintiff's failure

to serve him with process; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close

this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in

accordance with the Local Rules.

IT IS SO ORDERED.

Dated: September 14, 2020 J) : if 2 G 3 Zp .

Albany, New York a □ = = a pes

U.S. District Judge

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