Fitzgerald v. Canfield

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

JAHAD QUAWEE FITZGERALD,

Plaintiff, DECISION AND ORDER

v. 6:18-CV-06359 EAW

BENJAMIN OAKES and JANE DOE,

Defendants.

___________________________________

INTRODUCTION

Plaintiff Jahad Quawee Fitzgerald (“Plaintiff”), a prisoner previously confined at

Southport Correctional Facility (“Southport”), filed a pro se complaint asserting claims

under 42 U.S.C. § 1983 against former-defendant Wesley Canfield (“Dr. Canfield”) and

current defendants Physician’s Assistant Benjamin Oakes (“PA Oakes”), and Nurse Jane

Doe (“Nurse Doe”) (collectively “Defendants”) related to medical care he received at

Southport beginning in 2012. (Dkt. 1). Currently pending before the Court is a motion for

summary judgment filed by PA Oakes. (Dkt. 23). For the reasons that follow, the Court

grants PA Oakes’ motion. The Court further sua sponte dismisses Plaintiff’s claims against

Nurse Doe.

FACTUAL BACKGROUND

The factual background of this matter is set forth in detail in the Court’s Decision

and Order of December 13, 2019, granting summary judgment to Dr. Canfield. (Dkt. 22

(the “December 13th D&O”)). Familiarity with the December 13th D&O is presumed for

purposes of the instant Decision and Order. The Court summarizes the relevant facts

briefly below.

On April 20, 2012, during his intake at Southport, Plaintiff complained to medical

staff about stomach pains he was experiencing. (Dkt. 22 at 2). Blood testing revealed that

Plaintiff was positive for H. Pylori antibodies, and he was placed on “callout” to speak with

Dr. Canfield, but the appointment was cancelled as a matter of policy when Plaintiff was

transferred to a new cell block. (Id.). Plaintiff did not request a new callout appointment

and one was not scheduled. (Id.). Plaintiff was transferred out of Southport on or about

September 5, 2012, having not made any additional complaints about stomach or

abdominal pain. (Id.).

Plaintiff was transferred back to Southport on March 6, 2015. (Id. at 3). Plaintiff’s

history of H. Pylori was noted, but Plaintiff did not make any complaints regarding

abdominal pain at that time. (Id.). Without treatment, H. Pylori may resolve itself or it

may lay dormant for a number of years. (Id.). Plaintiff began to complain about abdominal

pain again in June 2015, and in July 2015 a stool test was performed and tested positive

for H. Pylori bacteria. (Id.). Plaintiff was treated for H. Pylori with antibiotics, and stool

tests performed in August and September of 2015 were negative for H. Pylori. (Id.).

PROCEDURAL BACKGROUND

Plaintiff commenced this action on May 11, 2018. (Dkt. 1). On September 12,

2018, the Court entered a Decision and Order granting Plaintiff leave to proceed in forma

pauperis and screening his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(a). (Dkt. 5). The Court permitted Plaintiff’s claims for denial of medical care and

for violation of his right to substantive due process under 42 U.S.C. § 1983 to proceed to

service as to all Defendants. (Id.).

Dr. Canfield filed a motion for summary judgment in lieu of an answer on February

5, 2019. (Dkt. 11). Plaintiff failed to file any response to Dr. Canfield’s motion, and the

Court granted it on December 13, 2019. (Dkt. 22).

PA Oakes filed the instant motion for summary judgment in lieu of an answer on

December 18, 2019. (Dkt. 23). Plaintiff did not file any response, despite having been

warned by the Court that the failure to respond could result in the dismissal of his claims.

(See Dkt. 24 at 1).

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.,

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).

In this case, PA Oakes has moved for summary judgment in lieu of filing an answer.

While the Court exercises additional caution in considering a motion for summary

judgment made before discovery has been taken, the Court may grant such a motion in

appropriate circumstances. See Morales v. Fischer, 46 F. Supp. 3d 239, 246 (W.D.N.Y.

2014) (collecting cases).

II. Statute of Limitations

In granting Dr. Canfield’s motion for summary judgment, the Court found that any

claims against Dr. Canfield based on medical care Plaintiff received in 2012 were barred

by the applicable statute of limitations. (Dkt. 22 at 5-6). PA Oakes argues that the same

analysis applies to any such claims against him. (Dkt. 23-3 at 2). The Court agrees.

Plaintiff’s claims against PA Oakes are brought pursuant to 42 U.S.C. § 1983. “For

§ 1983 actions arising in New York, the statute of limitations is three years.” Eagleston v.

Guido, 41 F.3d 865, 871 (2d Cir. 1994). “Federal law determines when a section 1983

cause of action accrues, and [the Second Circuit has] ruled that accrual occurs when the

plaintiff knows or has reason to know of the injury which is the basis of his action.” Pearl

v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (citations and quotations omitted).

As the Court explained in the December 13th D&O, Plaintiff was aware of the

alleged denial of medical care at the time it occurred, and the continuing violation doctrine

does not apply because Plaintiff was transferred out of Southport in September 2012, and

medical staff at Southport (including PA Oakes) ceased caring for him at that time. (See

Dkt. 22 at 6). Accordingly, the statute of limitations for any claims against PA Oakes based

on care Plaintiff allegedly did or did not receive in 2012 expired in 2015, well before this

action was commenced in 2018. PA Oakes is entitled to summary judgment on such

claims.

III. Denial of Adequate Medical Care Claim

Further, for substantially the same reasons set forth in the December 13th D&O,

Plaintiff’s claim that PA Oakes denied him adequate medical care, whether in 2012 or

2015, fails on the merits. The Eighth Amendment prohibits cruel and unusual punishment,

which encompasses deliberate indifference to an inmate’s serious medical needs. See

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). “The deliberate indifference standard

requires the plaintiff to prove that the prison official knew of and disregarded the plaintiff’s

serious medical needs.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

“‘Deliberate indifference’ describes a mental state more blameworthy than negligence; but

a plaintiff is not required to show that the defendant acted for the very purpose of causing

harm or with knowledge that harm will result. Deliberate indifference is a state of mind

that is the equivalent of criminal recklessness.” Hernandez v. Keane, 341 F.3d 137, 144

(2d Cir. 2003) (internal quotations and citations omitted).

The Court concluded in the December 13th D&O that the medical records in this

case clearly established that Dr. Canfield had not acted with deliberate indifference to

Plaintiff’s medical needs. (Dkt. 22 at 7). The same is true of PA Oakes. PA Oakes did

not cancel Plaintiff’s appointment in 2012—it was cancelled as a matter of policy. Further,

Plaintiff’s medical records show that when he returned to Southport in 2015, his complaints

of abdominal pain were promptly investigated, and he was appropriately tested and treated

for H. Pylori. (See id.). No reasonable factfinder could conclude that PA Oakes was

deliberately indifferent to Plaintiff’s medical needs.

IV. Substantive Due Process

Plaintiff also cannot maintain a claim against PA Oakes for the alleged violation of

his right to substantive due process.1 In order to maintain a substantive due process claim

against PA Oakes, Plaintiff must show that he engaged in conduct that “shocks the

1 As the Court noted in the December 13th D&O, and as discussed in detail later in

this Decision and Order, Plaintiff’s substantive due process claims should have been

dismissed by the Court upon its review under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a).

(See Dkt. 22 at 8 n.2).

conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). “The poles of the

range of states of mind that can support a determination that . . . conduct shocks the

conscience and can therefore constitute a substantive due process violation are clear,” and,

at a minimum, a plaintiff asserting a substantive due process claim must show that the

defendant acted with deliberate indifference. Correction Officers’ Benevolent Ass’n, Inc.

v. City of New York, No. 17 CV 2899-LTS, 2018 WL 2435178, at *3-4 (S.D.N.Y. May 30,

2018). The Court has already concluded that Plaintiff cannot show that PA Oakes acted

with deliberate indifference, and so Plaintiff cannot maintain a substantive due process

claim against him.

V. Claims Against Nurse Doe

As noted above, in addition to his claims against Dr. Canfield and PA Oakes,

Plaintiff has also asserted claims against unnamed defendant Nurse Doe. According to the

Complaint, in 2012 Nurse Doe dismissed Plaintiff’s complaints of stomach and chest pain,

falsely told Plaintiff that his blood was being taken for his “yearly physical examination,”

and did not inform him he had tested positive for H. Pylori. (Dkt. 1 at 6). The Complaint

contains no allegations related to actions by Nurse Doe in 2015. The Court allowed

Plaintiff’s claims against Nurse Doe to proceed to service and requested that the New York

State Attorney General’s Office produce information regarding her identity. (Dkt. 5).

However, Nurse Doe has never been identified or served.

Having further reviewed the Complaint, the Court sua sponte revisits its earlier

determination that Plaintiff’s claims against Nurse Doe were sufficient to proceed to

service. See 28 U.S.C. § 1915(e)(1)(B)(ii) (requiring court to dismiss action if the Court

determines at any time that the complaint fails to state a viable claim); Whitelaw v.

Kennedy, No. 04-CV-6626 CJS, 2010 WL 1741381, at *5 (W.D.N.Y. Apr. 28, 2010) (sua

sponte revisiting initial screening determination under § 1915 upon additional review of

the complaint).

As an initial matter, the Court finds that Plaintiff’s substantive due process claims

fail as a matter of law. “[W]here a particular Amendment provides an explicit textual

source of constitutional protection against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due process, must be the guide

for analyzing these claims.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998)

(quotation and alteration omitted). Here, Plaintiff’s claims are within the purview of the

Eighth Amendment’s prohibition on cruel and unusual punishment, and so his substantive

due process claims are subject to dismissal. See, e.g., Kaminski v. Oniyuke, No. 3:19-CV-

58 (SRU), 2019 WL 1877075, at *4 (D. Conn. Apr. 26, 2019) (holding, in screening

complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a), that “if [the plaintiff’s]

substantive due process claim is based on the same action(s) that gave rise to his Eighth

Amendment claim for deliberate indifference to medical needs, then his due process claim

will be dismissed”); Guzman v. Albany Med. Ctr. Hosp., No. 16-CV-0087 GLS ATB, 2016

WL 3823492, at *2 (N.D.N.Y. July 12, 2016) (dismissing substantive due process claim

that was “based on the same allegations as the Eighth Amendment medical indifference

claim”).

Further, all of the factual allegations in the Complaint as to Nurse Doe relate to

actions taken in 2012. As the Court has now twice determined, any claim based on such

actions is time-barred. Further, the Complaint itself makes it clear that Plaintiff was

transferred out of Southport after his positive H. Pylori test and returned in 2015. (See Dkt.

1 at 6).2 It is therefore clear from the face of the Complaint that Plaintiff’s claims against

Nurse Doe are untimely. See Pino v. Ryan, 49 F.3d 51, 54 (2d Cir. 1995) (holding that

dismissal under § 1915 is appropriate where a statute of limitations defense is apparent on

the face of the complaint).

While the Court would ordinarily afford Plaintiff an opportunity to amend before

dismissing his claims against Nurse Doe on this basis, in this case, Plaintiff has twice been

afforded the opportunity to explain why his claims from 2012 are timely and has failed to

do so either time. In fact, with respect to Dr. Canfield’s motion, Plaintiff was given

multiple extensions of the deadline to respond and did not do so. (See Dkt. 16; Dkt. 20).

Under these circumstances, the Court finds it is not necessary to permit amendment. See

generally Islamic Soc’y of Fire Dep’t Pers. v. City of New York, 205 F. Supp. 2d 75, 80

(E.D.N.Y. 2002) (collecting cases holding that leave to amend may be denied where

amendment would be futile because claims could not survive a motion for summary

judgment).

2 The Complaint contains an apparent typographical error, stating that Plaintiff was

transferred out of Southport on “9-27-2013.” (Dkt. 1 at 6). This is contradicted by the

evidence of record, which shows that the transfer occurred in September 2012. (See Dkt.

11-4 at 105-106). However, even were the 2013 date correct, the statute of limitations

would have expired at the latest in 2016, and this action was not commenced until 2018.

Accordingly, this discrepancy in dates does not change the Court’s analysis.

CONCLUSION

For the foregoing reasons, the Court grants PA Oakes’ motion for summary

judgment. (Dkt. 23). The Court further sua sponte dismisses Plaintiff’s claims against

Nurse Doe pursuant to 28 U.S.C. § 1915(e)(2)(B). The Clerk of Court is instructed to enter

judgment in favor of Defendants and close the case.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this

Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a

poor person is denied. See Coppedge v. United States, 369 U.S. 438 (1962). Requests to

proceed on appeal as a poor person should be directed, on motion, to the United States

Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules

of Appellate Procedure.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: June 1, 2020

Rochester, New York