Brown v. Dodge

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

IKIKO BROWN, 10-B-3588,

Plaintiff,

-vs-

DECISION AND ORDER

CORRECTIONS OFFICER DODGE,

18-CV-6491 (CJS)

et al.,

Defendants.

INTRODUCTION

Plaintiff Ikiko Brown (“Brown”) brought this case pursuant to 42 U.S.C. § 1983

after an incident that occurred while he was incarcerated at Wende Correctional

Facility.1 Brown alleges a “violation of [P]laintiff’s 8th Amendment right to be free from

cruel and unusual punishment by the use of excessive force by the action of defendant

[Corrections Officer] Dodge, and failure to protect and deliberate indifference by the non-

actions of defendants [Corrections Officers] M. Harsch and K. Rosplock.” Compl., 5, Jul.

3, 2018, ECF No. 1. Additionally, Brown alleges that “Defendants [Corrections Officers]

Dodge, Rosplock, and Harsch further exercised deliberate indifference to Plaintiff’s

health, by refusing to take him to the infirmary after the assault . . . .” Compl. at 7.

The matter is presently before the Court on Defendants’ motion for partial

summary judgment on Brown’s claims of deliberate medical indifference, and Plaintiff’s

motion for the appointment of counsel. Mot. Summ. J., Dec. 27, 2018, ECF No. 9; Mot. to

Appoint, Jan. 25, 2019, ECF No. 15. For the reasons stated below, Defendants’ motion

[ECF No. 9] is granted, and Plaintiff’s motion for the appointment of counsel [ECF No.

1 Brown has since been transferred to Clinton Correctional Facility. Pl.’s Statement, Jan. 11, 2019,

ECF No. 14.

15] is denied. Defendants are directed to answer the remainder of Plaintiff’s complaint

within thirty days from the date of this order.

BACKGROUND

The following background is drawn from the statements of fact that the parties

are required to submit under local rule of civil procedure 56(a)(1), and is limited to those

details relevant to the issue of whether or not Defendants exhibited deliberate medical

indifference.

After an incident on September 12, 2015, that involved Defendants Corrections

Officers Dodge, Rosplock, and Harsch, Brown was seen by the medical staff at Wende

Correctional Facility. Pl.’s Statement, ¶ 1, Jan. 11, 2019, ECF No. 14. According to

medical records submitted by Defendants, the examining nurse conducted a visual

assessment at 3:25 and noted a two-centimeter bump on the right side of Brown’s

forehead, a three-centimeter bump on his mid-forehead, and a scratch on his shoulder.

Def. Statement (Ex. A), 5, Dec. 27, 2018, ECF No. 9-3. The nurse also noted that Brown

was alert and oriented, walked with a steady gait, and did not report any dizziness. Id.

The nurse applied an ice pack and advised Brown to report to medical for any problems,

and then Brown was taken to his cell block. Id.

At 5:15 p.m. that same day, Brown was assessed again prior to his admission to

the Special Housing Unit (“SHU”). Id. The examining nurse noted that Brown was alert

and oriented, and that he denied any injury or medical issues. Id. Regardless, the nurse

explained the sick call process to Brown. Id.

According to a series of “sick call slips” submitted with Brown’s papers, it appears

that in addition to the assessments described above, in the two months following the

incident Brown was seen for “sick calls” or by his provider on September 15, 2015,

September 17, 2015, September 22, 2015, September 29, 2015, October 5, 2015, October

14, 2015 (by an M.D.), and November 11, 2015. Pl.’s Statement (Ex. H) at 51–55. In

addition, on November 9, 2015 and November 20, 2015, the medical staff attempted to

make a “sick call” on Brown, but his lights were out so he was not seen. Id. at 54–55.

In addition to receiving the medical attention described above, Brown’s

administrative grievances also appear to have been duly processed. On September 29,

2015, Brown filed a grievance stating that he wanted the correctional facility to pay to

replace his eyeglasses that were broken during the incident with Defendants Corrections

Officers Dodge, Rosplock, and Harsch. Pl.’s Statement (Ex. A) at 23–24. The grievance

was heard by the inmate grievance review committee and the superintendent. Id.

Thereafter, upon a “full hearing of the facts and circumstances,” the Inmate Grievance

Program Central Office Review Committee (“CORC”) noted that Brown was wearing eye

glasses in his ID photograph taken on November 5, 2015, and denied his request that the

facility pay to provide him with new eyeglasses. Id.

On October 5, 2015, Brown filed another grievance through the inmate grievance

program stating that “he is not getting proper care from the Doctor because she never

stops to see him. He says he has put in multiple sick call requests but no Doctor sees him

at those times.” Pl.’s. Statement (Ex. A) at 22. The grievance was again heard by the

inmate grievance review committee and the superintendent. Id. Thereafter, upon a “full

hearing of the facts and circumstances,” CORC noted that Brown “was seen at sick call 5

times between 9/15/15 and 10/5/15 and by his provider on 10/14/15.” Id. See also Pl.’s

Statement (Ex. H) at 51–52 (reproducing Brown’s health record notes from assessments

on September 15, 2015, September 17, 2015, September 22, 2015, September 29, 2015,

October 5, 2015, October 14, 2015). Therefore, CORC concluded that it had “not been

presented with sufficient evidence to substantiate improper medical care or malfeasance

by staff . . . .” Id.

On July 3, 2018, Brown filed a complaint in this Court pursuant to 42 U.S.C.

§ 1983 alleging violation of his Eighth Amendment rights through Defendants’ excessive

use of force, failure to protect, and deliberate indifference to his serious medical condition.

Compl., ECF No. 1. He later amended that complaint to add Anthony J. Annucci as a

Defendant, in addition to the already named Defendants Corrections Officers Dodge,

Harsch, and Rosplock. Am. Compl., Nov. 19, 2018, ECF No. 5. Defendants moved this

Court for partial summary judgment on the deliberate indifference to Brown’s medical

condition on January 4, 2019, and included a proper Irby notice. Mot. for Summ. J., ECF

No. 11 and No. 11-2. Brown then moved this Court to appoint him pro bono counsel. Mot.

to Appoint, ECF No. 15.

SUMMARY JUDGMENT STANDARD

It is well-settled that summary judgment may not be granted unless “the movant

shows 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). A party moving for summary

judgment bears the burden of establishing that no genuine issue of material fact exists.

See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “A party asserting that a fact

. . . cannot be genuinely disputed must support that assertion by . . . citing to particular

parts of materials in the record . . . .” Fed. R. Civ. P. 56(c)(1).

Once the movant meets its burden, the burden shifts to the non-moving party to

demonstrate “specific facts showing that there is a genuine issue for trial.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must

present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at

249. The non-movant cannot oppose a properly-supported summary judgment motion

with bald assertions that are not supported by the record. See, Bickerstaff v. Vassar Coll.,

196 F.3d 435, 452 (2d Cir. 1999) (“Statements that are devoid of any specifics, but replete

with conclusions, are insufficient to defeat a properly supported motion for summary

judgment.”), as amended on denial of reh'g (Dec. 22, 1999). Rather, the non-movant must

support its assertion that a fact is genuinely disputed by citing to particular parts of the

record or showing that the materials cited by the movant are inadmissible or do not

establish the absence of a genuine dispute. Fed. R. Civ. P. 56(c)(1).

Under Irby v. New York City Transportation Authority, 262 F.3d 412 (2d Cir.

2001), unless the opposing party has already provided the pro se litigant with the

requisite notice, the court is obligated to inform him that failure to respond to a motion

for summary judgment may result in the grant of judgment for the party seeking

summary judgment and dismissal of the case. Moreover, when a litigant is pro se, his

pleadings must be held to “less stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, the pro se litigant

must still establish the existence of genuine issues of material fact to survive a motion

for summary judgment; the pro se party's “bald assertion,” when unsupported by

evidence, is insufficient. Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).

Bearing the above in mind, summary judgment is appropriate only where, “after

drawing all reasonable inferences in favor of the party against whom summary judgment

is sought, no reasonable trier of fact could find in favor of the non-moving party.” Leon

v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The underlying facts contained in affidavits,

attached exhibits, and depositions, must be viewed in the light most favorable to the non-

moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

DELIBERATE INDIFFERENCE

Defendants argue that they are entitled to summary judgment on Brown’s claims

of deliberate indifference to his medical needs because he fails to demonstrate either the

objective or the subjective dimensions of his claim. Defs.’ Mem. of Law, 3–5, Dec. 27, 2018,

ECF No. 9-4. Brown responds that Defendants knew of his serious medical condition, yet

disregarded his medical needs. Pl.’s Mem. of Law, 1, Jan. 11, 2019, ECF No. 14. He states

that “not to provide and/or seek outside medical attention, MRI CAT SCAN etc. to

evaluate [his] injuries, [was] a direct[] violation of” his Eighth Amendment rights. Id.

“Only in the rarest of cases may summary judgment be granted against a plaintiff

who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S. Dep't

of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000). Such cases include those in which the

claims are insufficient as a matter of law, and the record before the court is sufficient for

it to conclude that “no amount of discovery would breathe life into” the claims. M.B. v.

Reish, 119 F.3d 230, 232 (2d Cir. 1997). For the reason stated below, the Court believes

that partial summary judgment is appropriate in this case.

The legal principles applicable to claims filed pursuant to 42 U.S.C. § 1983 are

well settled. In order to establish individual liability under § 1983, a plaintiff must show

(a) that the defendant is a “person” acting “under the color of state law,” and (b) that the

defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape,

365 U.S. 167, 81 (1961). Additionally, “[i]n this Circuit personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of

damages under § 1983.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977).

The law is equally clear with respect to Eighth Amendment claims arising out of

allegedly inadequate medical care:

“In order to establish an Eighth Amendment claim arising out of

inadequate medical care, a prisoner must prove ‘deliberate indifference to

[his] serious medical needs.’” Chance v. Armstrong, 143 F.3d 698, 702 (2d

Cir.1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This

standard incorporates both objective and subjective elements. The objective

“medical need” element measures the severity of the alleged deprivation,

while the subjective “deliberate indifference” element ensures that the

defendant prison official acted with a sufficiently culpable state of mind.

See id.; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996).

Because the Eighth Amendment is not a vehicle for bringing medical

malpractice claims, nor a substitute for state tort law, not every lapse in

prison medical care will rise to the level of a constitutional violation. See

Estelle, 429 U.S. at 105–06; Snipes v. DeTella, 95 F.3d 586, 590–91, (7th

Cir.1996), cert. denied, 519 U.S. 1126 (1997). In Estelle v. Gamble, the

Supreme Court explained that the Eighth Amendment's prohibition on

cruel and unusual punishments encompasses the deliberate failure to treat

“a prisoner's serious illness or injury” resulting in the infliction of

unnecessary pain and suffering. Estelle, 429 U.S. at 105 (emphasis added).

“Because society does not expect that prisoners will have unqualified access

to health care,” a prisoner must first make this threshold showing of serious

illness or injury in order to state an Eighth Amendment claim for denial of

medical care. Hudson v. McMillian, 503 U.S. 1, 9 (1992); see also Chance,

143 F.3d at 702 (not all claims of inadequate medical care are

“constitutionally cognizable”). Similarly, a prisoner must demonstrate more

than “an inadvertent failure to provide adequate medical care” by prison

officials to successfully establish Eighth Amendment liability. See, e.g.,

Estelle, 429 U.S. at 105–06 (noting that mere negligence in diagnosis or

treatment is insufficient to state a valid Eighth Amendment claim and

emphasizing that “[m]edical malpractice does not become a constitutional

violation merely because the victim is a prisoner”). “An official acts with the

requisite deliberate indifference when that official ‘knows of and disregards

an excessive risk to inmate health or safety,’” Chance, 143 F.3d at 702

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)), a state of mind

“equivalent to the familiar standard of ‘recklessness' as used in criminal

law.” Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002) (per curiam).

Smith v. Carpenter, 316 F.3d 178, 183–84 (2d Cir. 2003).

After a thorough review of the record, the Court finds that Defendants have met

their burden to show that no genuine dispute exists with respect to the medical treatment

Brown received. As set forth above, exhibits submitted by both parties indicate that

Brown had multiple medical evaluations by prison medical staff, none of which indicate

a diagnosis of a serious medical condition. In addition, Brown himself states that he

“doesn’t contend that []he wasn’t seen by medical staff, but he didn’t receive adequate

medical treatment . . . . I should [have received] outside medical treatment, which would

of consisted of all or one of the following: A cat scan, MRI or an X-Ray, but I didn’t . . . .”

Pl.’s Statement at 5.

Brown, on the other hand, has failed to make a threshold showing of serious illness

or injury that would adequately state his Eighth Amendment claim for denial of medical

care. Hudson, 503 U.S. at 9. Although Brown asserts that he still suffers from chronic

migraine headaches, blurred vision, and mental anguish, he has provided no

documentary evidence of these conditions to controvert the medical records submitted by

Defendants – and by Brown himself – which show that the prison medical staff diagnosed

him with relatively minor injuries.

Moreover, even if Brown’s condition was sufficiently serious, he has not shown

that Defendants acted with deliberate indifference. In that regard, he cannot show that

Defendants were personally aware of his complaints or the serious symptoms he alleges.

Even assuming that Brown is correct that he should have been sent out for a CAT scan

or MRI to properly diagnose his head injuries, such a conclusion would indicate that at

most, Defendant was negligent. However, negligence is insufficient to establish a claim

of deliberate indifference to a serious medical need. Preslar v. Dr. Tan, No. 00-CV-6103

CJS, 2003 WL 553273, at *4 (W.D.N.Y. Feb. 6, 2003) (collecting cases to support the

proposition that “[a]llegations of negligence in diagnosis or treatment alone, without facts

supporting a charge of deliberate indifference, cannot support a claim under § 1983.”).

MOTION TO APPOINT COUNSEL

Lastly, in considering Brown's request for the appointment of counsel, the Court

must first determine whether his position seems likely to be of substance. Brown v.

Wayne Cty. Sheriff's Office, No. 18-CV-06573 CJS, 2018 WL 6592684, at *4–5 (W.D.N.Y.

Dec. 13, 2018). If any claim meets this threshold requirement, the Court shall then

consider a number of other factors in making its determination. See Hodge v. Police

Officers, 802 F.2d 58, 61 (2d Cir. 1986). Although this action was commenced in 2018,

Defendants have not yet fully responded to Brown's allegations. The only facts upon

which this Court may base its decision are those portions of the complaint where Plaintiff

states the facts surrounding his remaining claims. Thus, the Court lacks sufficient

information at this stage to consider the factors set forth in Hodge. Plaintiff's motion for

appointment of counsel [ECF No. 15] is therefore denied without prejudice as premature.

CONCLUSION

Consistent with the foregoing, it is hereby

ORDERED that Defendants’ motion for partial summary judgment [ECF No. 9] is

granted; and it is further

ORDERED that Plaintiff Ikiko Brown’s motion to appoint counsel [ECF No. 15] is

denied; and it is further

ORDERED that Defendants are to file and serve an answer with respect to

Brown’s remaining claims on or before 30 days from the date of this order.

SO ORDERED.

DATED: November 18, 2020

Rochester, New York

/s/ Charles J. Siragusa

CHARLES J. SIRAGUSA

United States District Judge