Thompson v. New York State Corrections and Community Supervision

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

______________________________________________________

GARNELL THOMPSON,

Plaintiff,

v. 9:22-CV-289

(FJS/CFH)

NEW YORK STATE CORRECTIONS AND

COMMUNITY SUPERVISION;1 JOHN DOE, Director

of Clinton Correctional Facility Health Services;

MATHEW RUSHFORD, Nurse Administrator, Clinton

Correctional Facility; SUSAN DEVLIN-VARIN,

Nurse Practitioner, Clinton Correctional Facility;

MARIEJOSE KING, Deputy Superintendent of

Programs, Clinton Correctional Facility; and

MARY BERNADETTE SHEEHAN, Registered Nurse,

Senior Utilization Review Nurse,

Defendants.

______________________________________________________

APPEARANCES OF COUNSEL

GARNELL THOMPSON

06-A-0191

Elmira Correctional Facility

P.O. Box 500

Elmira, New York 14902

Plaintiff pro se

OFFICE OF THE NEW YORK STACEY A. HAMILTON, AAG

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

SCULLIN, Senior Judge

1 The correct name of this Defendant is "New York State Department of Corrections and

Community Supervision."

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Garnell Thompson ("Plaintiff"), who was, at all relevant times, in the custody of

the New York State Department of Corrections and Community Supervision ("DOCCS") at

Clinton Correctional Facility ("Clinton C.F."), brings this action pro se pursuant to 42 U.S.C.

§ 1983 against Defendants Matthew W. Rushford ("Rushford"), Susan Devlin-Varin ("Devlin-

Varin"), Mariejose King ("King"), Mary Bernadette Sheehan ("Sheehan"), DOCCS, and John

Doe ("Doe"). See Dkt. No. 1 ("Compl."). Plaintiff asserts that Defendants violated his rights

under the Eighth Amendment, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

§ 12101 et seq., and § 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. See id.

The case was referred to Magistrate Judge Christian F. Hummel for report and

recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). After initial review

pursuant to 28 U.S.C. § 1915, remaining were Plaintiff's (1) Eighth Amendment medical

indifference claims against Defendants Doe, Rushford, and Devlin-Varin; (2) Eighth Amendment

failure-to-protect claims against Defendants Sheehan and Devlin-Varin; and (3) ADA and RA

claims against Defendants DOCCS, King, and Devlin-Varin. See Dkt. No. 10.

Magistrate Judge Hummel addressed Plaintiff's partial motion for summary judgment, see

Dkt. No. 32, and Defendants' cross-motion for summary judgment, see Dkt. No. 36. See

generally Dkt. No. 42, Dec. 15, 2023 Report-Recommendation and Order ("Rep. Rec."). After

review, Judge Hummel recommended that the Court

(1) deny Plaintiff's motion for partial summary judgment in its entirety;

(2) grant in part Defendants' cross-motion for summary judgment and dismiss (a)

Plaintiff's ADA and RA claims against Defendants King and Devlin-Varin, (b) Plaintiff's

Eighth Amendment claims against Defendant Rushford, and (c) Plaintiff's Eighth

Amendment failure-to-protect claims and (d) deny the motion in all other respects; and

(3) sua sponte dismiss the Doe defendant from this action without prejudice due to

Plaintiff's failure to identify and/or serve that defendant.

See id. at 30.

Plaintiff filed objections to some of Judge Hummel's recommendations, see Dkt. No. 43

("Objections" or "Obj."), and separately filed copies of emails referenced in the Objections,

which Plaintiff identified as "documentary evidence" in support of the Objections. See Dkt. No.

44. Defendants filed no objections, and their time to do so has expired.

II. STANDARD OF REVIEW

When objections to a magistrate judge's report and recommendation are lodged, the

district court makes 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);

see also United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir.1997) (stating

that, if an objection is filed, "'the court shall make a de novo determination of those portions of

the report . . . to which objection is made'" (quoting [28 U.S.C. § 636(b)])); Booth v. City of

Watertown, No. 5:22-cv-1011 (BKS/ML), 2023 WL 7647777, *1 (N.D.N.Y. Nov. 15, 2023)

(stating that "[t]his Court reviews de novo those portions of the Magistrate Judge's findings and

recommendations that have been properly preserved with a specific objection" (citing Petersen v.

Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C))). "'A proper

objection is one that identifies the specific portions of the [report-recommendation] that the

objector asserts are erroneous and provides a basis for this assertion.'" Kruger v. Virgin Atl.

Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (quotation omitted); see also Booth,

2023 WL 7647777, at *1 (stating that "[p]roperly raised objections must be 'specific and clearly

aimed at particular findings' in the report" (quoting Molefe v. KLM Royal Dutch Airlines, 602 F.

Supp. 2d 485, 487 (S.D.N.Y. 2009))).

"'[E]ven a pro se party's objections to a Report and Recommendation must be specific

and clearly aimed at particular findings in the magistrate's proposal . . . .'" Machicote v. Ercole,

No. 06 Civ. 13320 (DAB) (JCF), 2011 WL 3809920, * 2 (S.D.N.Y., Aug. 25, 2011) (quotation

omitted); see also Booth, 2023 WL 7647777, at *1 (same); DiPilato v. 7-Eleven, Inc., 662 F.

Supp.2d 333, 340 (S.D.N.Y. 2009) (same). The Court reviews general or conclusory objections,

or objections which merely recite the same arguments presented to the magistrate judge for clear

error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n.2 (N.D.N.Y. 2008). Likewise, "[t]o the extent

a party makes 'merely perfunctory responses, argued in an attempt to engage the district court in

a rehashing of the same arguments' in the original submission, the Court will only review for

clear error." Ellis v. Requires, No. 9:17-cv-0577 (BKS/DJS), 2020 WL 6606327, *1 (N.D.N.Y.

Nov. 12, 2020) (quoting Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008)); see id. at

*4 (stating that "[t]he Court applies clear error review to objections that are 'simply an attempt to

rehash the same arguments that the magistrate considered and found deficient'" (quoting J.E. ex

rel. Edwards v. Ctr. Moriches Union Free Sch. Dist., 898 F. Supp. 2d 516, 527 (E.D.N.Y.

2012))). "Findings and recommendations as to which there was no properly preserved objection

are reviewed for clear error." Ellis, 2020 WL 6606327, at *1 (citing [Machicote, 2011 WL

3809920, at *2]).

After reviewing the report and recommendation, the Court may Aaccept, reject, or modify,

in whole or in part, the findings or recommendations made by the magistrate judge. The judge

may also receive further evidence or recommit the matter to the magistrate judge with

instructions.@ 28 U.S.C. ' 636(b)(1)(C).

III. DISCUSSION

Plaintiff objects to the extent Magistrate Judge Hummel recommends the dismissal of his

ADA and RA claims against Defendants King and Devlin-Varin, his Eighth Amendment medical

indifference claim against Defendant Rushford, and his Eighth Amendment failure-to-protect

claim against Defendant Devlin-Varin. See generally Objections The Court addresses these

objections in turn.

A. ADA and RA claims against Defendants King and Devlin-Varin

Plaintiff contends that the Court should not dismiss his ADA and RA claims against

Defendants King and Devlin-Varin because, based on July 7, 2020 e-mails between Defendant

King and Devlin-Varin submitted with his Objections, these Defendants "were personally

involved with Plaintiff's request for accommodation[s] making them liable for the constructive

denial of said accommodations." See Obj. at 1.2 The Court overrules this objection.

"Courts 'generally do not consider new evidence raised in objections to a magistrate

judge's report and recommendation.'" Ellis, 2020 WL 6606327, at *3 (quoting Fischer v.

Forrest, 286 F.Supp.3d 590, 603 (S.D.N.Y. [2018]) (citation omitted)). "'The submission of new

evidence following such a report is merited only in rare cases, where the party objecting to a

Report has offered "a most compelling reason" for the late production of such evidence, or a

2 References to the page numbers of documents in the record are to the page numbers that

the Court's CM/ECF System generates and are located in the upper right-hand corner of those

pages.

"compelling justification for [its] failure to present such evidence to the magistrate judge."'" Id.

(quoting [Fischer, 286 F. Supp. 3d at 603] (citations omitted)); (citing Hynes v. Squillace, 143

F.3d 653, 656 (2d Cir. 1998) (noting that while the district court has "discretion to consider

evidence that had not been submitted to the Magistrate Judge," "[c]onsiderations of efficiency

and fairness militate in favor of a full evidentiary submission for the Magistrate Judge's

consideration")).

Plaintiff has not presented, and the Court does not find, any compelling reason to

consider the new evidence he submitted with the Objections. Indeed, in addressing Plaintiff's

Eighth Amendment claims against Defendant Rushford, Magistrate Judge Hummel noted that in

opposition to Defendants' motion Plaintiff alleged that "e-mails between Rushford, Devlin-Varin,

and Sheehan establish that Rushford was personally involved in Plaintiff's" post-operative care,

but that "Plaintiff ha[d] not produced the e-mails or any other evidence suggesting that Rushford

was personally involved with Plaintiff's post-operative care in the infirmary in February 2020."

See Rep. Rec. at 20. Thus, it appears Plaintiff had possession of some or all of the e-mails upon

which he now relies. Plaintiff fails to articulate a compelling reason or justification for his

failure to present this e-mail evidence to Magistrate Judge Hummel; and, therefore, the Court

need not consider it now. See Ellis, 2020 WL 6606327, at *3.

Furthermore, even considering the e-mail evidence, the Court agrees with Magistrate

Judge Hummel's conclusion that Plaintiff's ADA and RA claims against Defendants King and

Devlin-Varin must be dismissed. As Magistrate Judge Hummel indicated, Plaintiff's ADA and

RA claims for monetary damages against Defendants Devlin-Varin and King in their individual

capacities are legally inadequate because "under the ADA and RA, a state official may not be

sued in their individual capacity." See Rep. Rec. at 9 (citing Garcia v. S.U.N.Y. Health Scis. Ctr.

of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) ("Insofar as Garcia is suing the individual

defendants in their individual capacities, neither Title II of the ADA nor § 504 of the

Rehabilitation Act provides for individual capacity suits against state officials.")).

Likewise, even though it is unsettled in the Second Circuit whether an individual

defendant can be sued in his/her official capacity to defend against ADA or RA claims, see id. at

9-10 (citations omitted), the Court agrees with Magistrate Judge Hummel that the ADA and RA

claims against Defendants Devlin-Varin and King in their official capacities should be dismissed

as redundant of the same claims against Defendant DOCCS. See id. at 10.

Accordingly, the Court overrules Plaintiff's objection in this regard.

B. Plaintiff’s Medical Indifference Claim Against Defendant Rushford

Plaintiff contends that Defendants Devlin-Varin and Rushford were deliberately

indifferent to his serious medical needs in violation of the Eighth Amendment because they

failed to adhere to post-operative instructions. See Rep. Rec. at 17 (citing Compl.). "Defendants

dispute that contention and argue that Plaintiff received adequate medical care in the infirmary

and refused to attend his February 25, 2020, appointment with Retina Consultants, PLLC." See

id. (citing Dkt. No. 36-27 at 19). "In support of summary judgment, [Defendant] Rushford, the

Registered Nurse Supervisor 1 at Clinton C.F., provided a Declaration in which he aver[red] that

he did not provide any direct health care to Plaintiff." See id. at 20 (citing Dkt. No. 36-26 at ¶ 9).

"Plaintiff does not refute this claim and testified he had no personal contact with Rushford, see

Dkt. No. 41 at 27, but alleges that e-mails between Rushford, Devlin-Varin, and Sheehan

establish that Rushford was personally involved in Plaintiff's 'medical treatment plan and outside

hospital trips that were planned for [him] to get [him] treated for both of -- my left eye and my

right eye.'" See id. (quoting [Dkt. No. 41] at 25). "Plaintiff asserts that Rushford failed to

'ensure' that 'the medical staff made the correct appointments for me and ensure[] that I was

taken to those appointments by the Department of Corrections.'" See id. (quoting [Dkt. No. 41]

at 27). However, as Magistrate Judge Hummel indicated, Plaintiff did not produce "the e-mails

or any other evidence suggesting that Rushford was personally involved with Plaintiff's post-

operative care in the infirmary in February 2020. Without such evidence, Plaintiff has not met

his burden of presenting evidence to support his claim that Rushford acted with culpable intent

with respect to Plaintiff's post-operative care." See id. (citations omitted).

In his Objections, Plaintiff contends that the Court should not dismiss his medical

indifference claims against Defendant Rushford because "[Defendant] Rushford was personally

involved with deciding whether Plaintiff qualified to receive medical verification concerning his

known sensorial disabilities that left him unable to see/walk properly or navigate the facility

safely." See Obj. at 1-2. In support of this position, Plaintiff cites to two (2) July 7, 2020 e-mails

provided with the Objections that, Plaintiff contends, "show[] that on July 7, 2020, Rushford did

not medically verify that Plaintiff had sensorial disability or was entitled to reasonable

accommodation based upon being blind in right eye plus glaucoma diagnosis made in April

2020." See Obj. at 2. Apart from the fact that the July 7, 2020 e-mail correspondence does not

appear to have been presented to Magistrate Judge Hummel - providing a reason to decline to

consider it - this evidence does not support Plaintiff's position.

The July 7, 2020 e-mail correspondence begins with an email from Defendant King to

several DOCCS officials, including Defendant Rushford. See Dkt. No. 44 at 3. Defendant

King's email, with the subject "FW: Reasonable Accommodation-Sensorial Thompson

06A0191," indicates the following: "The inmate has filed a grievance and we require an update.

Did the inmate have surgery? Where does he stand?" See id. at 3. Defendant Rushford

responded as follows:

The inmate did have eye surgery and some follow-ups. He is refusing to have laser

surgery done in follow-up to decrease his pressure. He most recently refused follow-

up appt on 6/3/20. He has referral to see the eye doctor here but that has not been

approved by the RMD3 as it is not urgent as optometry clinics are just starting back

up again on Thursday.4 It may take up to 30 more days to have him seen for this

because of COVID.

See id. at 3,

Even when viewed in the light most favorable to Plaintiff, Defendant Rushford's July 7,

2020 e-mail does not indicate that he was personally involved with deciding whether Plaintiff

could attend post-operative medical procedures or appointments, or in determining whether

Plaintiff was qualified to receive medical verification concerning his known sensorial

disabilities. See Rep. Rec. at 16-17 (setting forth the personal involvement standard in the

3 The Court presumes that RMD stands for Regional Medical Director. Cf. Salvana v.

New York State Dep't of Corr. & Cmty. Supervision, 621 F. Supp. 3d 287, 294 (N.D.N.Y. 2022),

reconsideration denied, No. 5:21-CV-735 (BKS/ML), 2022 WL 17083088 (N.D.N.Y. Nov. 18,

2022) (stating that "[a]t DOCCS, there are five Regional Medical Directors ("RMDs") and five

Regional Superintendents for Health Services ("Superintendents") who 'oversee care in their

designated areas' and report to the DOCCS Deputy Commissioner or Chief Medical Officer.

Each DOCCS prison also has a Facility Health Services Director ('Facility Director'), who serves

as the prison's highest medical authority. Facility Directors 'report directly' to Superintendents

and indirectly to RMDs" (citation omitted)); Williams v. Kepro, No. 9:21-CV-302 (TJMCFH),

2023 WL 5806418, *2 (N.D.N.Y. Aug. 8, 2023), report and recommendation adopted, No. 9:21-

CV-302 (TJMCFH), 2023 WL 5806328 (N.D.N.Y. Sept. 7, 2023) (explaining that "[i]n

situations where the medical services were recommended for denial, the Kepro Medical Director

would route the request to a New York State DOCCS Regional Medical Director [("RMD")] for

review and final decision");Wright v. Levitt, No. 13-CV-563V, 2019 WL 2646425, *2

(W.D.N.Y. June 27, 2019), report and recommendation adopted, No. 13-CV-563, 2020 WL

897258 (W.D.N.Y. Feb. 25, 2020) (noting that "[t]he parties diverge as to what procedural steps

occurred, or should have occurred, in response to the second denial from APS Healthcare for a

consultation about cochlear implants. According to defendants, a denial from APS Healthcare

for consultations or specialty care goes to the DOCCS Regional Medical Director ("RMD"). The

RMD can decide that the consultation or the specialty care in question constitutes a medical

necessity and can overturn any denial.")

4 July 7, 2020 was a Wednesday.

Second Circuit). Rather, the e-mail plainly indicates that Plaintiff had refused follow-up laser

surgery and a follow-up medical appointment and that Plaintiff's then-pending referral to see an

eye doctor was awaiting approval by the Regional Medical Director (RMD). Although Plaintiff

contends that he did not refuse post-operative procedures and appointments, see Rep. Rec. at 15,

no reasonable factfinder could conclude from Defendant Rushford's July 7, 2020 e-mail that he

played any direct role in post-operative determinations.

Furthermore, even assuming that Defendant Rushford played a direct role in post-

operative determinations, the e-mail does not indicate that he acted with the requisite culpable

intent with respect to Plaintiff's post-operative care. See Rep. Rec. at 17-20 (setting forth the

operative Eighth Amendment denial-of-medical care standard). Again, the email indicates that

Plaintiff himself rejected post-operative medical care and that the determination for then-pending

medical appointments was in the hands of the Regional Medical Director.

Accordingly, the Court overrules Plaintiff's objection in this regard.

C. Plaintiff's Failure-to-Protect Claim Against Defendant Devlin-Varin

As Magistrate Judge Hummel explained, "Plaintiff alleges that Sheehan 'ignored

Plaintiff's medical providers['] orders,' and, as a result, he suffered 'pain after being handcuffed,

leg shackled for more than six hours straight' during transports to [Albany Medical Center

(AMC)], Retina Consultants, PLLC., and New Lion Eye Clinic. See Rep. Rec. at 23 (quoting

Compl. at 10-11). "Plaintiff further claims that he reported to Devlin-Varin that he suffered

injuries to his wrists and ankles from the restraints and that the officers who transported him

'would pick him up and toss him into [a] van that was not designed to accommodate inmates with

sensorial disabilities causing him to fall onto seat or metal floor of van.'" See id. (quoting

Compl. at 11). "Defendants argue that Plaintiff has failed to establish that they failed to protect

him from conditions posing a substantial risk of serious harm." See id. (citing Dkt. No. 36-27 at

24).

After reviewing the applicable standard for the failure-to-protect claims, see Rep. Rec. at

23-24; see also id. at 24 (stating that, "[i]n this case, Plaintiff must show that the alleged

condition -- being transported in a 'regular van' while handcuffed and shackled -- was sufficiently

serious to impose an unreasonable risk to plaintiff's health" (citations omitted)), Magistrate Judge

Hummel concluded that

Plaintiff has failed to raise a triable issue of fact with respect to his failure-to-protect

claims. Initially, the undersigned notes that the record does not contain evidence to

satisfy the objective prong of this Eighth Amendment claim. In the complaint,

Plaintiff makes general claims regarding "transports" to AMC, Retina Consultants

and New Lion Eye Clinic. However, Plaintiff does not specify which transports, if

any, involved conditions posing a substantial risk of serious harm. The record lacks

dates, times, locations, or the identity of any officers or individuals involved in the

transports. Moreover, Plaintiff's vague claims related to "swollen and numb" wrists

and ankles from restraints that were "so tight," are not supported by evidence related

to when, where, or how Plaintiff sustained the alleged injuries. As presently

constituted, there is no record evidence to support Plaintiff's contention that he

sustained any injuries during any transport.

Even assuming Plaintiff was subjected to temporary or unnecessary

discomfort associated with transport, "without medical evidence demonstrating that

this caused [. . .] further injury," the Court cannot conclude that Defendants' inaction

or action resulted in a constitutional violation. See, e.g., Burgess v. Pliler, No.

CIVS030643, 2007 WL 430742, at *10 (E.D. Cal. Feb. 6, 2007) (holding that the

defendant's inaction amounted, at most, to negligence which does not constitute an

Eighth Amendment violation) (citation omitted), report and recommendation

adopted, 2007 WL 776585 (E.D. Cal. Mar. 12, 2007), aff'd sub nom Burgess v.

Johnson, 314 F. App'x 33 (9th Cir. 2008) (summary order); see also generally Shain

v. Grayson Cnty., Ky., 4:11-CV-P84-M, 2011 WL 5122667, at *4-5 (W.D. KY Oct.

28, 2011) (finding that, where the inmate plaintiff[] alleged "only that his hands were

red and swollen from the handcuffs and black box restraint and that he suffered

discomfort" during transport, and did not contend that he sought or received medical

attention during or following the transport, his complaints of injury were de minimis

and did not rise to the level of an Eighth Amendment violation).

Second, the record lacks facts to satisfy the subjective element of this Eighth

Amendment claim. In support of summary judgment, Sheehan provided a

Declaration and conceded that she was involved in decisions related to Plaintiff's

transportation from AMC in August 2020. Dkt. No. 36-23 at ¶¶ 5, 8, 10. Sheehan

assessed Plaintiff's condition and concluded that a "regular van" could be utilized to

transport him from AMC to Elmira C.F. Id. at ¶ 12. Plaintiff testified that he had no

personal interaction with Sheehan. Dkt. No. 41 at 31. Consequently, without more,

the record lacks evidence suggesting that Sheehan exhibited any deliberate

indifference. See Jones v. Lott, No. CV 17-0513, 2018 WL 1998333, at *3 (S.D. Ala.

Apr. 5, 2018) (holding that the defendant, who took action to "get [the] [p]laintiff to

where there was an infirmary, so he could be treated[,]" cannot be said to have

exhibited deliberate indifference), report and recommendation adopted, 2018 WL

1997759 (S.D. Ala. Apr. 27, 2018).

Similarly, with respect to Devlin-Varin, the record lacks evidence connecting

Devlin-Varin to any decisions related to how or when Plaintiff was transported

to/from medical appointments. To the extent that Plaintiff alleges that Devlin-Varin

[was] aware that he sustained injuries during transport, those claims are wholly

conclusory. The record lacks any evidence [to] establish when or how Plaintiff

"notified" Devlin-Varin that he was injured.

As the record lacks evidence demonstrating that Plaintiff was exposed to

conditions posing an unreasonable risk of harm, or that Defendants were personally

involved or even aware of the conditions, it cannot be said that Defendants acted

with deliberate indifference. Accordingly, it is recommended that Defendants'

motion be granted on this ground.

See Rep. Rec. at 24-26.

Plaintiff objects to these conclusions, but only as they relate to Defendant Devlin-Varin.

See Obj. at 2-3. In support of this objection, Plaintiff provides a May 21, 2020 e-mail from

Defendant Devlin-Varin sent in response to an e-mail from non-party Barbara Hough, RN. See

Dkt. No. 44 at 4. Nurse Hough's email, sent to several DOCCS officials including Defendant

Devlin-Varin, advised that Plaintiff had medical appointments scheduled on June 1 and 3, 2020

in the Albany, New York area, and asked, "Consider staying at Coxsackie???" See id. Defendant

Devlin-Varin responded that

[i]f he could stay overnight at Coxsackie, that probably would be best. He does not

do well with turn around trips (I can't blame him, he would spend the better part of

two days in shackles). He has severe issues with his eyes as well as Stage IV

[chronic kidney disease (CKD)]. I'm not sure how to make that happen, though, if

Bonnie and Wendy5 would let me know what to do. Thanks.

See id.

Plaintiff contends that Defendant Devlin-Varin's May 21, 2020 e-mail establishes that she

"was involved with decisions related to how or when Plaintiff was transported to/from medical

appointments" because it "shows that Devlin-Varin sought to have Plaintiff’s stay overnight in

Coxsackie correctional facility so plaintiff could make medical appointments." See Obj. at 2.

The Court finds that this argument is without merit.

Defendant Devlin-Varin's e-mail indicates only that she was cognizant that two trips from

Clinton CF to the Albany area would require Plaintiff to spend the better part of two days in

shackles and that Plaintiff does not "do well with turnaround trips" for this reason. See Dkt. No.

44 at 4. Defendant Devlin-Varin postulated that it would probably "be best" if Plaintiff could

spend the overnight at Coxsackie C.F. and asked how this could be accomplished. See id. This

statement, on its face, does not indicate that Defendant Devlin-Varin was involved "with

decisions related to how or when Plaintiff was transported to/from medical appointments," but

only that she questioned whether there was some way to avoid multiple trips.

Furthermore, the e-mail does not indicate that Defendant Devlin-Varin was aware that

Plaintiff was "incarcerated under conditions posing a substantial risk of serious harm" arising

from the long commutes such that it would satisfy the objective or subjective prongs of the

failure-to-protect claims against her. See Rep. Rec. at 23-24 ("As to the objective prong, the

deprivation must be sufficiently serious, and contemplate a condition of urgency, one that may

5The Court presumes that this is a reference to Bonnie Bruno and Wendy King, both of

whom are referenced in the address section of Defendant Devlin-Verin's e-mail. Dkt. No. 44, at

4.

produce death, degeneration, or extreme pain. As to the subjective prong, the plaintiff must

demonstrate that prison officials actually knew of and disregarded an excessive risk of harm to

the inmate's health and safety. The defendant 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. The plaintiff must show that the defendants actually inferred from that disclosure that

a substantial risk of serious harm existed." (cleaned up)). The e-mail indicates only that the long

commutes would require Plaintiff to spend the "better part of two days in shackles," but it does

not indicate that Defendant Devlin-Varin was aware of facts from which to conclude that these

commutes would cause Plaintiff to suffer a substantial risk of serious harm.

Plaintiff argues that the "reason why there is no record of Plaintiff's reporting to Devlin-

Varin that he was injured during transport to [a] medical appointment" is because "Devlin-Varin

did not report this incident." See Obj. at 2. This is an attempt to engage the Court in a rehashing

of the arguments presented to Magistrate Judge Hummel and does not identify a specific alleged

error in the Report-Recommendation. Subjecting Magistrate Judge Hummel's conclusions

relative to the failure-to-protect claim against Defendant Devlin-Varin to clear error review, the

Court finds none.

Further, even when conducting de novo review, this argument fails to establish a basis to

conclude that Defendant Devlin-Varin was personally involved in decisions about how or when

Plaintiff would be transported to and from his medical appointments. Indeed, even assuming that

Plaintiff reported to Defendant Devlin-Varin that he was injured during a medical transport, that

fact does not indicate that Defendant Devlin-Varin was personally involved in decisions as to

when and how Plaintiff was to be transported to his medical appointments. Absent this personal

involvement, Plaintiff may not maintain his Eighth Amendment failure-to-protect claim against

Defendant Devlin-Varin.

To the extent Plaintiff is arguing that Defendant Devlin-Varin was aware that he would

suffer significant injury during transportation from Clinton C.F. to his medical appointments

because he complained about such transportation, the argument is insufficient to withstand

Defendant Devlin-Varin's motion for summary judgment. "'[W]hen the moving party has carried

its burden[,] ... its opponent must do more than simply show that there is some metaphysical

doubt as to the material facts,'" Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d

686 (2007) (quotation omitted), and must offer "some hard evidence showing that its version of

the events is not wholly fanciful[.]" Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir.

2008). Plaintiff does not present evidence as to when the purported complaint was made, what

was stated, and whether he presented any medical evidence indicating the nature and extent of

the injuries he purportedly sustained by wearing shackles during the previous transport. "'The

mere existence of a scintilla of evidence in support of the [non-movant's] position will be

insufficient' to defeat a summary judgment motion[,]" Fabrikant v. French, 691 F.3d 193, 205

(2d Cir. 2012) (quotation omitted), and "[a] court cannot credit a plaintiff's merely speculative or

conclusory assertions." DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (citation omitted); see

also Federal Trade Comm'n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (noting that "'a party may

not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion

for summary judgment'" (quotation omitted)); Flores v. United States, 885 F.3d 119, 122 (2d Cir.

2018) (explaining that "[w]hile we are 'required to resolve all ambiguities and draw all

permissible factual inferences in favor of [the non-moving party]', . . . 'conclusory statements,

conjecture, or speculation by the party resisting the motion will not defeat summary judgment'"

(quotation omitted)); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (stating that a party

opposing a properly supported motion for summary judgment may not rest upon conclusory

allegations or unsubstantiated speculation). Plaintiff fails to present anything more than

conclusory and speculative allegations about Devlin-Varin's knowledge of the purported

excessive risk of harm that could be caused by two (2) trips for medical appointments, which is

insufficient to withstand summary judgment. Defendant Devlin-Varin's May 21, 2020 e-mail

does not change this conclusion.

Finally, Plaintiff argues that the correction officers who transported him to the subject

medical appointment were not wearing name tags or body cameras. These facts alone, even if

true, do not establish that Defendant Devlin-Varin was personally involved` in the decision as to

when and how Plaintiff would be transported to his medical appointments. Likewise, this

evidence does not establish that Defendant Devlin-Varin was aware that Plaintiff could suffer

significant injury by the transportation.

Accordingly, the Court overrules Plaintiff's objection in this regard.

D. Recommendations without Objections

The Court has reviewed for clear error Magistrate Judge Hummel's recommendations to

which there are no objections and finds none.

IV. CONCLUSION

Accordingly, the Court ACCEPTS and ADOPTS Magistrate Judge Hummel's Report-

Recommendation and Order, see(Dkt. No. 42, for the reasons stated therein. Therefore, the

Court hereby

ORDERS that that Plaintiff's motion for partial summary judgment, see Dkt. No. 32, is

DENIED IN ITS ENTIRETY; and the Court further

ORDERS that Defendants’ cross-motion for summary judgment, see Dkt. No. 36,

is GRANTED in part and DENIED in part. The cross-motion is granted insofar as (1)

Plaintiffs ADA and RA claims against Defendants King and Devlin- Varin, (2) Plaintiff's Eighth

Amendment claims against Defendant Rushford, and (3) Plaintiff's Eighth Amendment failure-

to-protect claims are DISMISSED, and the cross-motion is denied in all other respects; and the

Court further

ORDERS that the Doe defendant is sua sponte DISMISSED from this action

without prejudice due to Plaintiff's failure to identify and/or serve the defendant; and the Court

further

ORDERS that the Clerk of the Court is directed to serve copies of this Memorandum-

Decision and Order on the parties in accordance with the Local Rules of Practice.°

IT IS SO ORDERED.

Dated: February 13, 2024

Syracuse, New York

Senior United States District Judge

6 As aresult of this Memorandum-Decision and Order, Plaintiffs Eighth Amendment

claim for deliberate indifference to a serious medical need against Defendant Devlin-Varin and

his claims under the ADA and RA against Defendant DOCCS remain for trial.

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