Brown v. Levitt

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SEP 26 2019

UNITED STATES DISTRICT COURT yer . os

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WESTERN DISTRICT OF NEW YORK ESTERN DISTRICT.O

JAMES BROWN,

Plaintiff, DECISION AND ORDER

V. 1:16-CV-00031 EAW

ALICE WOMACK, KELLY

SMITH, C.O. B. GILES, WARD, and Q.

SCUSSIM,

Defendants.

INTRODUCTION

Plaintiff James Brown (“Plaintiff”), a prisoner previously confined at Wende

Correctional Facility (*“Wende’”), filed a pro se complaint asserting claims under 42 U.S.C.

§ 1983 against a variety of Wende staff members based upon alleged events occurring at

that facility in 2013 and 2014. (Dkt. 1). Currently pending before the Court is a motion

for summary judgment filed by defendants Alice Womack (“Womack”), Kelly Smith

(“Smith”), Ward Bonds (“Bonds”) (named in Plaintiff's Amended Complaint as “Ward,

Civilian Cook”), and Quentin Scussim (“Scussim”) (collectively “Defendants”)!. (Dkt.

44). For the reasons that follow, the Court grants Defendants’ motion in part and denies

Defendants’ motion in part.

Named defendant C.O. B. Giles has never been served, nor has he appeared in this

action. The Court discusses the status of Plaintiff's claims against C.O. B. Giles later in

this Decision and Order.

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FACTUAL BACKGROUND

The following facts are taken from Defendants’ Statement of Undisputed Facts

(Dkt. 44-1) and the evidence in support thereof, which was submitted in compliance with

Local Rule of Civil Procedure 56(a)(1). Plaintiff did not, as required by Local Rule

56(a)(2), submit an opposing statement of facts that included a response to each of the

statements set forth in Defendant’s Statement of Undisputed Facts. Instead, Plaintiff

submitted a “Statement of Material Facts” that solely addresses his claim that he was

improperly denied food. (Dkt. 46 at 12). Accordingly, the Court deems Defendants’

Statement of Undisputed Facts admitted “except where specifically controverted by the

evidence that [Plaintiff] submitted.” Xerox Corp. v. Bus-Let, Inc., No. 18-CV-6725-FPG,

2019 WL 2514855, at *1 n.1 (W.D.N.Y. June 18, 2019); see also L. R. Civ. P. 56(a)(1)

(“Each numbered paragraph in the moving party’s statement of material facts may be

deemed admitted for purposes of the motion unless it is specifically controverted by a

correspondingly numbered paragraph in the opposing statement.”’).

At all times relevant to the instant lawsuit, Plaintiff was an inmate in the care and

custody of the New York Department of Corrections and Community Supervision

(“DOCCS”). (Dkt. 44-1 at § 1). The instant lawsuit concerns events occurring at Wende

in 2013 and 2014. (7d. at 2).

I. Alleged Denial of Food

During the relevant time period, Smith was employed by DOCCS at Wende as Food

Service Administrator II, while Bond was Wende’s head cook. (/d. at J 2-3). Womack

and Scussim were corrections officers at Wende. (/d. at {{ 7-8). In particular, Womack

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was the Hall Captain in C block on the 3 p.m. to 11 p.m. shift, and Scussim was the Hall

Captain in C block on the 7 a.m. to 3 p.m. shift. (/d. at F§ 111-12).

On September 6, 2013, Plaintiff was placed on a medically prescribed diet known

as the “Control A Diet.” (Ud. at ¢ 118). From September 22, 2013, to October 12, 2013,

Plaintiff was placed on “keeplock,” which means that an inmate cannot leave his cell for

meals or programs. (/d. at 124-26). Plaintiffs disciplinary records further reflect that

he was placed in the special housing unit (the “SHU”) from November 7, 2013, to January

24, 2014. (Dkt. 44-7 at 7). When an inmate is placed on keeplock or in the SHU, the

housing unit notifies the food service department, and a food tray for that inmate is sent at

“chow time.” (Dkt. 44-1 at 132; Dkt. 44-7 at ¥ 15).

Plaintiff testified at his deposition that he was denied all three of his daily meals on

September 22, 23, 24, 26, 27, 28, and 29, 2013, as well as on November 1, 2, 3, 4, 7, 8, 9,

10, and 11, 2013. (Dkt. 44-1 at § 127). However, these allegations are not supported by

the evidence of record. Initially, Plaintiff was not placed on keeplock status on September

22, 2013, until 7:01 p.m., after the final meal of the day had been served. (/d. at { 129).

Moreover, if an inmate misses a special diet three times, the special diet is cancelled and

that fact is documented, because of the time and expense of preparing special diets. (Dkt.

44-7 at J 23). There is no evidence that Plaintiff's Control A Diet was cancelled or that he

missed any of his Control A Diet meal trays. Moreover, while Plaintiff testified that he

was denied meals on November 1, 2, 3, and 4, 2013, the evidence of record shows that he

was not on keeplock or in the SHU on those dates. (See Dkt. 44-7 at 7). Plaintiff

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acknowledged at his deposition that during the time he was allegedly being denied meal

trays, he was obtaining food through the commissary. (Dkt. 44-4 at 64-65).

Plaintiff filed a grievance in November 2013 claiming that he had not received food

trays. (Dkt. 44-1 at § 165). Smith investigated and discovered that the food service

department had not initially been informed that Plaintiff was on keeplock, and that he had

missed a few meals as a result, but that the situation had been remedied as soon as the food

service department was made aware of Plaintiff's keeplock status. (Dkt. 44-7 at 14).

In opposition to Defendant’s motion for summary judgment, Plaintiff has submitted

an unsworn “Affidavit” and a “Statement of Material Facts” wherein he has altered his

allegations, now claiming that beginning on November 1, 2013, he was keeplocked and

deprived of food for “15 days” as a “disciplinary measure.” (See Dkt. 46 at 11-12).

II. Alleged Use of Excessive Force/Indifference to Medical Needs

On May 2, 2013, a neurologist assessed Plaintiff with multiple sclerosis, with no

need for acute treatment. (/d. at § 27). Plaintiff experienced an exacerbation of his multiple

sclerosis in February 2014, and was issued a permit to use a cane. (/d. at ¢ 42). On May

20, 2014, Plaintiff requested and received a “flats order” requiring that he be housed on the

first floor of the facility. (Ud. at § 46). The flats order was good for three months, and

stated that Plaintiff has a medical condition that prevents him from climbing stairs. (/d.;

Dkt. 46 at 15).

Plaintiff claims that on June 19, 2014, Womack forced him to climb two flights of

stairs to get a haircut, in violation of his flats order. (Dkt. 16 at 8). At that time, Plaintiff

was housed on C block, and had been for four to five months. (Dkt. 44-1 at §§ 174-75).

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Plaintiff testified at his deposition that he requested that the barber come to the first floor

to give him a haircut. (/d. at § 173). He had never previously used the barber, who was

located on the third floor. (Ud. at 9] 175-76). Plaintiff testified that he told Womack that

he could not climb stairs and showed her his cane, but that she told him that if he wanted

to get a haircut he would have to climb the stairs. (/d. at J] 181, 184). Plaintiff further

testified that he told Womack to “forget” the haircut but that she ordered him to climb the

stairs. (/d. at {§ 184). Womack denies having ordered Plaintiff to climb the stairs, and

further states that she was unaware at the time that Plaintiff had a flats order. (/d. at [J 182,

185). Plaintiff ultimately climbed the stairs and got a haircut. (/d. at J 186). Plaintiff

testified that he experienced pain from climbing the stairs. (Ud. at J 187).

Plaintiff further claims that on June 24, 2014, he was forced to climb stairs to

retrieve his commissary purchases. The commissary at Wende is located on the second

floor, and unless an inmate is confined to his cell or has a “no stairs” pass, he is required

to come to the commissary to obtain his purchases. (/d. at Ff 191-92). If an inmate has a

“no stairs” pass, a copy is provided to the commissary, and the inmate’s commissary

purchases are delivered to him. (/d. at J 193).

In April 2014, Plaintiff’s commissary purchases began to be delivered to him. (/d.

at Ff 196-99). Plaintiff testified at his deposition that in June 2014, the commissary

informed him that he did not have a “no stairs” pass and stopped delivering his commissary

purchases. (/d. at §§ 200-201). Plaintiff initially testified that Scussim had told the

business office at Wende that Plaintiff did not have a “no stairs” pass, but subsequently

acknowledged that this was merely an assumption, and that it could have been someone

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else. (Id. at J 202-204). Scussim has stated, under penalty of perjury, that he did not tell

the business office that Plaintiff did not have a “no stairs” pass. (/d. at 4 215).

On June 23, 2014, Womack made arrangements with the commissary for Plaintiffs

commissary purchases to be delivered to him. (/d. at § 207). She specifically told Plaintiff

that he did not need to go to the commissary. (/d. at | 208). On June 24, 2014, Womack

was not working when Plaintiff left for the commissary at approximately 2 p.m. (/d. at

§ 206). The commissary had packed Plaintiff's purchases and were prepared to deliver

them at 4:30 p.m. (/d. at § 210). Plaintiff fell on the stairs on June 24, 2014, at

approximately 2 p.m., while attempting to retrieve his commissary purchases. (Jd. at

4211). Plaintiff was subsequently seen at emergency sick call, where he claimed that he

was trying to get to the commissary “before the regular Hall Captain came in” because she

would not let him climb the stairs to the commissary. (/d. at { 213).

PROCEDURAL BACKGROUND

Plaintiff commenced this action on January 12, 2016. (Dkt. 1). Defendants

answered the complaint on June 13, 2016. (Dkt. 13). Plaintiff filed a motion to amend the

complaint on May 5, 2016 (Dkt. 11), and the Court adopted Plaintiff's proposed amended

complaint as the operative pleading on February 27, 2017 (Dkt. 19). Defendants answered

the amended complaint on March 28, 2017. (Dkt. 20).

Discovery in this matter closed on December 15, 2017. (Dkt. 30). On February 12,

2018, Plaintiff filed a motion to voluntarily dismiss his claims against then-defendants Dr.

J. Levitt and Diane Toporek. (Dkt. 40). The Court granted Plaintiff's motion for voluntary

dismissal on June 4, 2018. (Dkt. 48).

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Defendants filed the instant motion for summary judgment on March 23, 2018.

(Dkt. 44). Plaintiff filed his response on April 23, 2018 (Dkt. 46), and Defendants filed

their reply on May 7, 2018 (Dkt. 47).

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as

to any material fact... .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the

party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the

moving party has met its burden, the opposing party “must do more than simply show that

there is some metaphysical doubt as to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,

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781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d

Cir. 2011)). Specifically, the non-moving party “must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654

F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

Plaintiff’s Claims

The following claims remain in this matter: (1) Plaintiff's claim that he was denied

meals in September and November 2013; (2) Plaintiff's claim that Womack forced him to

climb the stairs to receive a haircut; and (3) Plaintiff's claim that Womack and Scussim

forced him to climb stairs to receive his commissary. The Court considers each of these

claims below.

A. Denial of Meals

The Eighth Amendment’s prohibition on cruel and unusual punishment “‘require[s]

that prisoners be served nutritionally adequate food that is prepared and served under

conditions which do not present an immediate danger to the health and wellbeing of the

inmates who consume it.’” Jean-Laurent v. Los, No. 12-CV-132S F, 2015 WL 1015383,

at *9 (W.D.N.Y. Mar. 9, 2015) (quoting Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.

1983)). A “substantial deprivation” of food—that is, “one that is sufficient to create a

serious danger to the inmate’s health”—can constitute an Eight Amendment violation. □□□□

see also Jackson v. Marks, 722 F. App’x 106, 107 (2d Cir. 2018) (“[A] substantial

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deprivation of food can cause serious physical harm sufficient to find cruel and unusual

punishment in violation of the Eighth Amendment.”) (quotation omitted). Accordingly,

order to establish a claim that the denial of food constitutes an Eighth Amendment

violation, a prisoner must establish that a sufficiently serious condition resulted from not

receiving food.” Sankara v. Montgomery, No. 16-CV-00885 FJS TWD, 2018 WL

4610686, at *8 (N.D.N.Y. June 25, 2018) (quotation omitted), adopted, 2018 WL 3408135

(N.D.N.Y. July 13, 2018). A denial of only a few meals does not rise to this level. See

Jean-Laurent, 2015 WL 1015383 at *9 (collecting cases).

Here, while Plaintiff testified at his deposition that he was deprived of all three

meals on sixteen non-consecutive days, that claim is flatly contradicted by the evidence of

record. As noted above, while Plaintiff testified that he was denied all three meals on

September 22, 2013, the records show that he was not placed on keeplock status on that

date until 7:01 p.m., after the final meal of the day had been served. Additionally,

Plaintiff's claim that he was denied meals on November 1, 2, 3, and 4, 2013, because he

was on keeplock status is belied by his disciplinary records, which show that his keeplock

status expired on October 12, 2013, and that he was not placed in the SHU until November

7, 2013. (See Dkt. 44-7 at 7). Moreover, there is no evidence that Plaintiff's Control A

Diet was cancelled, as it would have been had he missed three meals.

Plaintiff's new claim that he was placed into keeplock on November 1, 2013, and

then denied food for 15 days, set forth in opposition to Defendant’s motion for summary

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judgment, is also wholly unsubstantiated.” First, as already noted, Plaintiff's disciplinary

records show that he was not placed into keeplock on November 1, 2013. Second, Plaintiff

was seen by medical personnel at Wende on November 15, 2013, due to pain and weakness

on his left side. (See Dkt. 44-12 at 328). Plaintiff refused Tylenol and was advised to

engage in light exercise. (/d.). There is nothing in Plaintiff's medical records from

November 15, 2013, to suggest that he was suffering from any kind of malnutrition, as he

necessarily would have been if he had been deprived of all meals for the previous two

weeks, nor did he report such alleged deprivation to the medical staff.

It is well-established that “[a]t the summary judgment stage, a nonmoving party

must offer some hard evidence showing that its version of the events is not wholly

fanciful.” Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (quotation omitted).

In particular, on a motion for summary judgment, a plaintiff cannot rely solely on his own

testimony if it is “largely unsubstantiated by any other direct evidence” and “so replete

with inconsistencies and improbabilities that no reasonable juror would undertake the

suspension of disbelief necessary to credit the allegations.” Jd. (quotation omitted). That

is precisely the case here. There is simply nothing to support Plaintiff's claim of a

substantial deprivation of food, and his own testimony is riddled with inconsistencies and

improbabilities. No reasonable juror could credit Plaintiff's version of events under these

circumstances.

2 The Court further notes that the Second Circuit has held that “a party cannot create

an issue of fact by submitting an affidavit in opposition to summary judgment that

contradicts prior deposition testimony.” Gorzynski v. Jetblue Airways Corp., 596 F.3d 93,

104 (2d Cir. 2010).

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A reasonable juror could find, on the record before the Court, that Plaintiff was

deprived of a few meals when he was first placed on keeplock status; indeed, that fact is

undisputed. However, there is no evidence that this deprivation was more than de minimis,

or that it resulted in any danger or harm to Plaintiff. To the contrary, Plaintiff

acknowledged that he had access to food via the commissary, and Plaintiffs medical

records from November 15, 2013, do not demonstrate any significant medical issues.

Under these circumstances, Plaintiff cannot bear the burden of demonstrating that the

deprivation of a few meals due to a failure to communicate his keeplock status to the food

service department rose to the level of an Eighth Amendment violation.

. For all these reasons, the Court grants Defendant’s motion for summary judgment

as to Plaintiffs claim that he was deprived of meals, in violation of the Eighth Amendment,

in September and November of 2013.

B. The Haircut Incident

Turning next to Plaintiff's claim that in June of 2014, Womack forced him to climb

two flights of stairs to obtain a haircut, the Court notes that it is not clear whether Plaintiff

is claiming that this incident constituted an excessive use of force or a deliberate

indifference to his serious medical needs. Accordingly, the Court has considered the claim

under both potential theories.

1. Excessive Use of Force

“A claim of cruel and unusual punishment in violation of the Eighth Amendment

has two components—one subjective, focusing on the defendant’s motive for his conduct,

and the other objective, focusing on the conduct’s effect.” Wright v. Goord, 554 F.3d 255,

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268 (2d Cir. 2009). In order to prove an Eighth Amendment violation based on an

excessive use of force, a plaintiff must demonstrate each of the following two elements by

a preponderance of the evidence: (1) the defendant used force against the plaintiff

maliciously and sadistically, for the very purpose of causing the plaintiff harm; and (2) the

plaintiff suffered some harm as a result of the defendant’s use of force. Hudson v.

MeMillian, 503 U.S. 1, 7-8 (1992).

The first element is considered a subjective analysis of the defendant’s state of mind

at the time of the incident. This requires a showing that the defendant had “‘the necessary

level of culpability, shown by actions characterized by wantonness’ in light of the

particular circumstances surrounding the challenged conduct.” Goord, 554 F.3d at 268

(quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). Whether use of force

against a prison inmate is unnecessary or wanton depends on “whether force was applied

in a good faith effort to maintain or restore discipline, or maliciously and sadistically to

cause harm.” Jd. (quoting Hudson, 503 U.S. at 7).

The objective component considers the “seriousness of the injury.” Jd. “In the case

of excessive use of force by prison guards, the objective component does not require any

particular ‘quantity of injury,’ for ‘[w]hen prison officials maliciously and sadistically use

force to cause harm, contemporary standards of decency are always violated.’” Warren v.

Purcell, 2004 WL 1970642, at *7 (S.D.N.Y. Sept. 3, 2004) (quoting Hudson, 503 U.S. at

9). However, the Eighth Amendment “excludes from constitutional recognition de minimis

uses of physical force, provided that the use of force is not of a sort repugnant to the

conscience of mankind.” Hudson, 503 U.S. at 9-10 (quotation omitted). “Indeed, not even

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‘every malevolent touch by a prison guard gives rise to a federal cause of action.’” Boddie

v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (emphasis in original) (quoting Hudson,

503 USS. at 9).

On the record before the Court, even accepting Plaintiff's version of events, no

rational juror could find either of these elements satisfied. As to the subjective element,

Plaintiff acknowledges that he had requested a haircut, and prison officials have a

legitimate penological interest in maintaining “institutional . . . order.” Jova v. Smith, 346

F. App’x 741, 744 (2d Cir. 2009). There is simply no evidence in this case that, to the

extent Womack ordered Plaintiff to climb two flights of stairs and obtain his requested

haircut, it was done solely for the purpose of inflicting harm, as opposed to maintaining

internal order.

With respect to the objective element, there is no evidence that Plaintiff suffered

any serious injury as a result of having to climb two flights of stairs. While Plaintiff

testified that he experienced pain from climbing the stairs, there is no evidence that he was

required to seek out medical treatment or suffered any long-term or ongoing consequences

as a result of having to climb two flights of stairs on a single occasion. Moreover, there is

no evidence that Womack ever touched Plaintiff, as opposed to issuing a verbal command,

which is insufficient to establish an excessive use of force. See Geer v. Lewis, No. 9:14-

CV-650 DNH/CFH, 2015 WL 224667, at *3 (N.D.N.Y. Jan. 15, 2015) (dismissing claim

of excessive use of force based on alleged verbal command to carry broken typewriter back

to cell because “there is no evidence that [the defendant] used any physical force. Instead,

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he gave [the plaintiff] a direct, verbal order”). On this record, Plaintiff cannot maintain an

excessive force claim.

2. Deliberate Indifference to Medical Needs

“The Eighth Amendment forbids ‘deliberate indifference to serious medical needs

of prisoners... .’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir.

2013) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This category of Eighth

Amendment violation also requires the satisfaction of objective and subjective elements.

In the context of a deliberate indifference claim, the objective component requires that “the

alleged deprivation of adequate medical care . . . be ‘sufficiently serious,’” Salahuddin,

467 F.3d at 279 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)), while the

subjective component requires that “the charged officials . . . be subjectively reckless in

their denial of medical care,” Spavone, 719 F.3d at 138. “An official acts with deliberate

indifference when the official ‘knows of and disregards an excessive risk to inmate health

and safety.’” Paul v. Bailey, No. 09 CIV. 5784 RO, 2013 WL 2896990, at *3 (S.D.N.Y.

June 13, 2013) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).

Here, Plaintiff argues in opposition to Defendant’s motion for summary judgment

that Womack ignored the doctor’s orders that he was not to climb stairs. (See Dkt. 46 at

5). Disregard of a doctor’s orders can form the basis for a deliberate indifference claim.

See Paul v. Bailey, No. 09 CIV. 5784 RO, 2013 WL 2896990, at *4 (S.D.N.Y. June 13,

2013) (finding viable deliberate indifference claim where the defendants failed to follow

physician’s order that the plaintiff be provided special footwear); Fonck v. Riggot, No.

3:12-CV-896 RNC, 2012 WL 5408526, at *2 (D. Conn. Nov. 6, 2012) (finding viable claim

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for deliberate indifference to medical needs where the defendants discontinued changing

bandages in violation of physician’s orders because “prison officials are more than merely

negligent if they deliberately defy the express instructions of a prisoner’s doctors”).

Moreover, while Womack claims that she was unaware of the flats order, Plaintiff testified

that he showed it to her. The flats order is signed by a physician and specifically states that

Plaintiff “[h]as [a] medical condition which prevents stair climbing.” (Dkt. 46 at 15). On

this record, the Court finds that a genuine issue of material fact exists as to whether

Womack acted in deliberate indifference to Plaintiff's medical needs. A reasonable juror

could conclude, were he or she to credit Plaintiff's version of events, that Womack knew

that Plaintiff's physician had forbidden him from climbing stairs but that she nonetheless

required him to do so, despite the danger posed by his multiple sclerosis and associated

difficulties with ambulation. Accordingly, Womack is not entitled to summary judgment

as to Plaintiff's claim for deliberate indifference to serious medical needs based on the

haircut incident in June 2014.

C. The Commissary Incident

Turning finally to the incident in June 2014 wherein Plaintiff fell while trying to

retrieve his commissary purchases, the Court easily concludes that Plaintiff cannot

maintain any manner of constitutional claim based on these facts. First, Plaintiff cannot

maintain an excessive use of force claim or a deliberate indifference to medical needs claim

for the straightforward reason that there is no evidence whatsoever that he was forced to

climb the stairs to retrieve his commissary purchases on the date in question. To the

contrary, the unrebutted evidence submitted by Defendants shows that Plaintiff's

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commissary purchases were set to be delivered to him and that he voluntarily chose to

climb the stairs.

Second, Plaintiff also cannot show that Scussim told the business office that Plaintiff

did not have a “no stairs” pass. Scussim has denied this allegation under penalty of perjury,

and Plaintiff admitted at his deposition that he had merely assumed it was Scussim and that

it could have been someone else.

Finally, to the extent that Plaintiff is claiming that Womack generally prohibited

him going to the commissary to collect his purchases, the Court has already held that

“prisoners have no constitutional right to access a commissary.” (Dkt. 4 at 3-4 (collecting

cases and dismissing Plaintiffs claim that he was deprived of his commissary purchases).

For these reasons, the Court grants Defendants’ motion for summary judgment with

respect to the incident in June 2014 wherein Plaintiff fell on the stairs while attempting to

retrieve his commissary purchases.

Claims Against Unserved Defendant B. Giles

Plaintiff's Amended Complaint (Dkt. 16) identifies “B. Giles, C.O.” (“Giles”) as a

defendant. (Id. at 1). Giles is alleged to have been involved in the purported denial of

meals to Plaintiff. (/d. at 10). Giles was never served (see Dkt. 36 (summons returned

unexecuted)), and the time for service has long since expired.

Because he has never been served or appeared, Giles has not joined in the instant

motion for summary judgment. However, the Court has already found that Plaintiff cannot

assert a viable claim based on the alleged deprivation of meals, and that finding would

apply equally to a claim against Giles. Under these circumstances, it is appropriate for the

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Court to dismiss Plaintiff's claims as to Giles sua sponte. See, e.g., McLennon v. N.Y.C.,

No. 13-CV-128 KAM SMG, 2015 WL 1475819, at *3 n.9 (E.D.N.Y. Mar. 31, 2015) (“As

the court’s rulings herein would apply equally to the non-moving defendants in this case,

the court dismisses plaintiffs’ false arrest and intentional infliction of emotional distress

claims for failure to state a claim as to the non-moving and unserved defendants sua

sponte.”); Salvani v. ADVFN PLC, 50 F. Supp. 3d 459, 463 n.2 (S.D.N.Y. 2014)

(“Defendant ADVFN and Defendant Doe have not yet been served. However, because

Plaintiffs’ claims against those defendants suffer from the same deficiencies as against

InvestorsHub, the Court will treat the instant motion as if it were brought on behalf of all

defendants.”), aff'd sub nom. Salvani v. InvestorsHub.com, Inc., 628 F. App’x 784 (2d Cir.

2015); Smith v. Hogan, No. 9:09-CV-639 GTS/RFT, 2011 WL 4478503, at *6 (N.D.N.Y.

Aug. 2, 2011) (finding sua sponte dismissal of claims against unserved defendants

appropriate where “[d]efendants are entitled to judgment as a matter of law”), adopted,

2011 WL 4478496 (N.D.N.Y. Sept. 26, 2011).

CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motion for summary

judgment (Dkt. 44) in part and denies it in part. In particular, the Court denies Defendants’

motion for summary judgment solely with respect to Plaintiff's deliberate indifference to

serious medical needs claim against Womack, and otherwise grants the motion in all

respects. The Court further sua sponte dismisses Plaintiff's claims against defendant Giles.

The Clerk of Court is directed to enter judgment in favor of defendants Kelly Smith, Ward,

B. Giles, and Q. Scussim, and to terminate them as defendants in this matter.

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SO ORDERED.

ELIZABETHA. W O

United States District Judge

Dated: September 26, 2019

Rochester, New York

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