# Matagrano v. Levitt

> District Court, W.D. New York · June 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10366265

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10366265

## How later opinions describe it (automated extraction)

- reversing district court’s grant of summary judgment to supervisory prison officials where inmate sent requests detailing threat of inmate assault to defendants and officials took no action

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MATTHEW JOHN MATAGRANO,

Plaintiff,
DECISION AND ORDER
v.
6:21-CV-06415 EAW

DR. JAQUELINE LEVITT, TERRANCE
MCANN, STEWART T. ECKERT, and
RANDY K. MOORE,

Defendants.

INTRODUCTION
Plaintiff Matthew John Matagrano (“Plaintiff”), an inmate in the custody of the New
York State Department of Corrections and Community Supervision (“DOCCS”), filed a
complaint on May 27, 2021, alleging that Dr. Jaqueline Levitt (“Levitt”), Wende
Correctional Facility (“Wende”) Superintendent Stewart T. Eckert (“Eckert”), and Chief
of the Forensic Mental Health Unit Margaret Stirk (“Stirk”) were deliberately indifferent
to a substantial risk of harm to Plaintiff, and that Sgt. Terrance McCann (“McCann”), Sgt.
Scott Lambert (“Lambert”), and Correctional Officer Randy Moore (“Moore”) failed to
intervene to mitigate a substantial risk of harm in violation of the Eighth Amendment to
the United States Constitution. (Dkt. 1). Plaintiff voluntarily dismissed his claims against
Lambert and Stirk (Dkt. 17), and the Court dismissed the claim against Moore (Dkt. 19),
leaving Levitt, Eckert, and McCann as the remaining defendants (collectively
“Defendants”).
Currently pending before the Court is Defendants’ motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56 (Dkt. 36) and Plaintiff’s motion to seal
(Dkt. 45). For the reasons set forth below, Defendants’ motion for summary judgment is

denied and Plaintiff’s motion to seal is denied with leave to renew as set forth below.
BACKGROUND
I. Factual Background
The following facts are taken from Defendants’ statement of material facts (Dkt.
36-1), Plaintiff’s response to Defendants’ statement of material facts and statement of

additional undisputed facts (Dkt. 42), Defendants’ response to Plaintiff’s additional
undisputed facts (Dkt. 47), and the exhibits submitted by the parties. Where a fact is
disputed, the Court has noted the same.1

1 Plaintiff argues that Defendants’ failure to comply with the Court’s Local Rules
warrants outright denial of the summary judgment motion. Specifically, Plaintiff notes that
11 of Defendants’ numbered statements of undisputed facts contain no citation to the record
and 29 of Defendants’ numbered statements do not contain citations with the specificity
required under Local Rule 56. While the Court agrees with Plaintiff that portions of
Defendants’ submission lack the requisite specificity, the Court nevertheless exercises its
discretion to consider the motion on the merits. Kelly v. Snap-on Inc., No. 21-CV-729-
LJV, 2023 WL 3579068, at *3 (W.D.N.Y. May 22, 2023) (“[A] district court has broad
discretion to determine whether to overlook a party’s failure to comply with local court
rules.” (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)). It is also
worth noting that this District has adopted Civility Principles and Guidelines which apply
to all counsel in this Court. Portions of Plaintiff’s brief arguably approach violations of
those principles. (See, e.g., “A lawyer’s conduct should be characterized at all times by
personal courtesy and professional integrity in the fullest sense of those terms,” and
“[c]onduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive
impedes the fundamental goal of resolving disputes rationally, fairly, and efficiently”). For
example, the tone of footnote one on page 21 of Plaintiff’s brief is unnecessary. While
Plaintiff’s counsel’s frustration may be understandable, that does not warrant engaging in
the type of attacks set forth in the submissions to the Court.

Plaintiff was an inmate in the custody of DOCCS who was housed at Wende during
the relevant time periods at issue in the complaint. Pursuant to Wende’s policy concerning
inmate use of razors, all inmates in general population are issued a razor which they are

required to keep in their cell at all times. (Dkt. 36-1 at ¶¶ 1, 2; Dkt. 42 at ¶ 44; Dkt. 43-7
(“The razor exchange will be mandatory for all inmates. . . . All inmates will be required
to maintain possession of a razor.”)). Failure by an inmate to produce a razor upon demand
by a corrections official results in the issuance of a misbehavior report. (Dkt. 36-1 at ¶ 2;
Dkt. 42 at ¶ 47; Dkt. 47 at ¶ 45). The alleged purpose of this policy is to ensure

accountability for razors that are issued to inmates in order to prevent the misuse, trade, or
distribution of razors among inmates. (Dkt. 36-1 at ¶ 3).
Exemptions from the razor policy requirements are permitted with appropriate
approval. (Dkt. 36-1 at ¶ 4; Dkt. 42 at ¶ 48). Defendants suggest that exemption approval
was contingent upon a recommendation from Office of Mental Health Staff and the

approval of facility security (Dkt. 36-1 at ¶ 4), whereas Plaintiff contends that exemptions
could be granted by a medical doctor, mental health staff member, or security staff, which
includes Defendants (Dkt. 42 at ¶¶ 4, 49). It is undisputed that no exemption was granted
for Plaintiff. (Dkt. 36-1 at ¶ 5; Dkt. 42 at ¶ 5).
Plaintiff has a number of chronic mental health conditions for which he is treated

including major depressive disorder, bipolar depression, manic depression, and borderline
personality. (Dkt. 42 at ¶ 53; Dkt. 47 at ¶ 53). He also suffers from epilepsy and is hearing
impaired. (Dkt. 42 at ¶ 54; Dkt. 47 at ¶ 54). Plaintiff’s mental illnesses have resulted in a
long history of self-mutilation, self-harm, and suicide attempts. (Dkt. 36-1 at ¶ 10; Dkt. 42
at ¶ 57; Dkt. 47 at ¶ 57). Plaintiff’s forearms reflect obvious scarring from numerous
incidents involving self-harm and self-mutilation. (Dkt. 42 at ¶ 59).
On or about September 18, 2017, Plaintiff sustained a serious self-harm incident

using a DOCCS-issued razor, resulting in significant blood loss. (Dkt. 36-1 at ¶ 12; Dkt.
42 at ¶¶ 12, 60). Following this incident, Plaintiff was moved to an outside hospital and
then sent to the Central New York Psychiatric Center. (Dkt. 36-1 at ¶ 14; Dkt. 42 at ¶¶ 60,
61; Dkt. 47 at ¶¶ 60, 61). Specifically, on October 4, 2017, Levitt submitted the
commitment papers seeking inpatient psychiatric treatment at Central New York

Psychiatric Center for Plaintiff. (Dkt. 42 at ¶ 86; Dkt. 47 at ¶ 86). Eckert also reviewed
and co-signed the commitment papers. (Dkt. 42 at ¶ 108; Dkt. 47 at ¶ 108).
From January 31, 2018, through June 23, 2019, Plaintiff returned to Wende and was
placed in the general population and back under the care of Levitt as his primary care
provider. (Dkt. 36-1 at ¶ 15; Dkt. 42 at ¶¶ 61, 87; Dkt. 47 at ¶¶ 61, 87). During this time

frame, the policy requiring inmates to possess razors was not strictly enforced and Plaintiff
was informally permitted to refuse receipt of a razor. (Dkt. 36-1 at ¶ 15; Dkt. 42 at ¶¶ 15,
62). Plaintiff self-harmed using his hearing aids, toenail clippers, or by banging his head
against the cell bars or walls during this same time period. (Dkt. 36-1 at ¶ 16; Dkt. 42 at
¶ 16). Levitt never investigated whether she could provide Plaintiff with a formal

exemption from the razor policy and testified that she believed she did not have the
authority to do so. (Dkt. 42 at ¶ 95; Dkt. 47 at ¶ 95).
On June 23, 2019, Wende staff began to strictly enforce the razor policy. (Dkt. 36-
1 at ¶ 18; Dkt. 42 at ¶¶ 63, 119). Plaintiff was ordered by corrections officers to take a
razor and when he declined, McCann, the new D Block Housing Sergeant, was called.
(Dkt. 36-1 at ¶ 18; Dkt. 42 at ¶¶ 18, 63, 119; Dkt. 47 at ¶ 63). Plaintiff was advised that if
he did not accept a razor, he would receive a misbehavior report, despite him claiming that

he informed McCann of his history of suicide attempts and mental health struggles. (Dkt.
36-1 at ¶ 18; Dkt. 42 at ¶¶ 18, 63, 119; Dkt. 47 at ¶ 63). Plaintiff continued to refuse the
razor and was referred to mental health and placed on one-on-one observation. (Dkt. 36-1
at ¶ 18; Dkt. 42 at ¶¶ 18, 63; Dkt. 47 at ¶ 63; Dkt. 43-3 at 3 (mental health referral form
noting that “Inmate refuses to take razor in fear of self harm”)). On June 24, 2019, Plaintiff

spoke with his social worker and Stirk, the mental health unit chief, and requested an
exemption from the razor policy. (Dkt. 36-1 at ¶ 19; Dkt. 42 at ¶¶ 19, 64). Records from
that meeting reflect: “[Patient] states that he was not, and is not suicidal, but he didn’t want
a razor in his cell in the event he gets upset. [Patient] states that he knows he gets impulsive
when upset and doesn’t want the temptation. [Patient] was praised for being proactive and

was encouraged to think of other ways to keep himself safe.” (Dkt. 42 at ¶ 19; Dkt. 43-3
at 6).
On June 24, 2019, Plaintiff wrote an inmate grievance complaint requesting an
exemption from the razor policy, and the grievance was denied on July 23, 2019. (Dkt. 42
at ¶ 66; Dkt. 47 at ¶ 66; Dkt. 43-4 at 10, 11). Plaintiff appealed the grievance denial to

Eckert, who denied the appeal. (Dkt. 42 at ¶ 66; Dkt. 47 at ¶ 66; Dkt. 43-3 at 12). The
appeal denial signed on behalf of Eckert indicates agreement with the denial of Plaintiff’s
grievance and states that the razor policy is “mandatory for all inmates” and there “is no
exemption policy in place regarding razors.” (Dkt. 43-3 at 12). Plaintiff also wrote letters
to Central New York Psychiatric Center requesting an exemption from the policy. (Dkt.
42 at ¶ 67). In addition, he contacted the Legal Aid Society Prisoners’ Legal Right Services
to request assistance in advocating for an exemption from the policy. (Dkt. 42 at ¶ 68).

Legal Aid Society Prisoners’ Legal Right Services wrote letters to DOCCS, Eckert, and
Central New York Psychiatric Center requesting a review of the razor policy on Plaintiff’s
behalf. (Id. at ¶¶ 68, 113, 114).
Between June 25, 2019, and October 2020, Eckert and Levitt participated in
meetings where Plaintiff’s request for a razor exemption was discussed, but no exemption

was recommended. (Dkt. 36-1 at ¶ 21; Dkt. 42 at ¶ 21). During that time period, Plaintiff
engaged in a number of incidents of self-harm, including: swallowing his hearing aid;
cutting himself with a sharpened piece of metal; cutting himself with an unknown object;
and scratching his arms and banging his head on the walls of the infirmary. (Dkt. 36-1 at
¶¶ 27-36; Dkt. 42 at ¶¶ 27-36). Plaintiff contends that he spoke to Eckert personally on

two occasions requesting an exemption from the razor requirement. (Dkt. 42 at ¶ 72).
Plaintiff alleges that Eckert told Plaintiff he would not grant an exemption to Plaintiff
because he did not want to open the floodgates to other inmates making the same request.
(Dkt. 42 at ¶ 112).
On January 20, 2020, Plaintiff was transferred from Wende to the Sullivan CF

Intermediate Care Program, where he was not provided with a razor in his cell. (Dkt. 36-
1 at ¶ 37; Dkt. 42 at ¶ 37). Plaintiff engaged in self-harm on numerous occasions while in
the Intermediate Care Program. (Dkt. 36-1 at ¶¶ 38-42; Dkt. 42 at ¶ 38).
II. Procedural Background
Plaintiff commenced the instant action on May 27, 2021. (Dkt. 1). On July 6, 2021,
Defendants filed a letter motion seeking an extension of time to file an answer to the

complaint (Dkt. 8), which the Court granted, requiring Defendants to answer or otherwise
respond to the complaint on or before August 6, 2021 (Dkt. 9). On August 6, 2021,
Defendants filed a motion to dismiss. (Dkt. 12). On March 16, 2022, the Court granted
the motion to dismiss as to Moore but denied it as to the remaining Defendants. (Dkt. 19).
On January 20, 2023, Defendants filed the instant motion for summary judgment.

(Dkt. 36). On February 13, 2023, Plaintiff sought an extension of time to file a response
(Dkt. 38), which the Court granted (Dkt. 39). On February 27, 2023, Plaintiff filed his
response to Defendants’ motion. (Dkt. 42; Dkt. 43; Dkt. 44). On February 28, 2023,
Plaintiff filed a motion to seal. (Dkt. 45). On March 9 and March 10, 2023, Defendants
filed their reply to Plaintiff’s opposition and response to Plaintiff’s statement of additional

undisputed facts. (Dkt. 46; Dkt. 47). No opposition to the motion to seal has been filed.
DISCUSSION
I. Defendants’ Motion for Summary Judgment
A. 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).
B. Failure to Protect
“The Eighth Amendment, which prohibits cruel and unusual punishment, requires
prison officials to ‘take reasonable measures to guarantee the safety of inmates in their
custody.’” Murphy v. Spaulding, No. 20-CV-9013 (KMK), 2022 WL 294552, at *5
(S.D.N.Y. Feb. 1, 2022) (quoting Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir.
1996)). “[C]laims involving the risk of suicide have been articulated and addressed as

violations of the duty to protect, particularly when asserted against non-medical
personnel[.]” Phillips v. Mitchell, No. 919CV0383(TJM/TWD), 2021 WL 1175051, at *4
(N.D.N.Y. Mar. 29, 2021) (quoting Allah v. Kemp, No. 9:08-CV-1008 (NAM/GHL), 2010
WL 1036802, at *4 (N.D.N.Y. Feb. 25, 2010)).2
A claim for failure to protect arises when an inmate is incarcerated under conditions

posing an unreasonable risk of serious harm and prison officials exhibit deliberate
indifference to that risk. Busch v. Cnty. of Erie, No. 1:20-CV-01515, 2022 WL 1460022,
at *4 (W.D.N.Y. May 9, 2022) (“To state a claim under the Eighth Amendment based on
deliberate indifference, a plaintiff must plead: ‘(a) conditions of confinement that
objectively pose an unreasonable risk of serious harm to their current or future health, and

(b) that the defendant acted with ‘deliberate indifference.’” (quoting Vega v. Semple, 963
F.3d 259, 273 (2d Cir. 2020)). An analysis of deliberate indifference thus consists of an
objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 828-347 (1994);
Lewis v. Siwicki, 944 F.3d 427, 430-31 (2d Cir. 2019). Objectively, the inmate must

2 Although the claim against McCann is styled as a failure to intervene in Plaintiff’s
complaint, the Court previously ruled and the parties agree that the claim amounts to a
failure to protect rather than a failure to intervene. (See Dkt. 19 at 9 (“Both Plaintiff and
Defendants construe Plaintiff’s claim as a failure to protect claim (see Dkt. 12-1 at 4-8;
Dkt. 16 at 11-12), and the Court concurs that a failure to protect claim is the proper styling.
Accordingly, the Court will analyze Plaintiff’s claim under the standard that applies to
failure to protect claims.”).
establish the existence of “conditions of confinement that objectively pose an unreasonable
risk of serious harm to their current or future health[.]” Vega, 963 F. 3d 259. “Subjectively,
the official charged with deliberate indifference must have acted with the requisite state of

mind, the ‘equivalent of criminal recklessness.’” Lapierre v. Cnty. of Nassau, 459 F. App’x
28, 29 (2d Cir. 2012) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).
Specifically, to satisfy the subjective element, a plaintiff must establish that the prison
official knew of a substantial risk to inmate health or safety and nonetheless disregarded it.
Farmer, 511 U.S. at 837. However, “[a] defendant’s knowledge can be established through

‘inference from circumstantial evidence,’ including ‘from the very fact that the risk was
obvious.’” Murphy v. Spaulding, 2022 WL 294552, at *5 (quoting Farmer, 511 U.S. at
842)).
1. Objective Element
Defendants contend that Plaintiff cannot establish that the policy requiring him to

possess a razor in his cell posed an objectively unreasonable risk of serious harm to his
health. In support of this argument, they point to evidence that Plaintiff engaged in self-
harm activities both with and without a razor, which they contend demonstrates that the
presence of a razor “did not increase the frequency or severity of his incidents of self-
harm.” (Dkt. 36-5 at 7). The Court disagrees.

As noted, ‘“[t]o meet the objective element, the inmate must show that the
conditions, either alone or in combination, pose an unreasonable risk of serious damage to
his health,’ with their severity being ‘evaluated in light of contemporary standards of
decency.’” Garcia v. Chevalier, No. 3:22-CV-1328 (SVN), 2023 WL 2988891, at *4 (D.
Conn. Apr. 18, 2023) (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). “In
the context of mental health needs, propensities to attempt suicide, harm oneself, and/or
exhibit severe depression or anxiety attacks have been viewed as ‘sufficiently serious.’”

Barrett v. Livingston Cnty., New York, No. 14-CV-6593-FPG, 2019 WL 1083027, at *10
(W.D.N.Y. Mar. 7, 2019) (quoting Young v. Choinski, 15 F. Supp. 3d 194, 199 (D. Conn.
2014)); see also Powell v. City of Jamestown, No. 1:21-CV-721, 2022 WL 1913581, at *16
(W.D.N.Y. June 3, 2022) (“Here, the Complaint includes multiple allegations that Mr.
Powell expressed suicidal ideation and that he engaged in self-harm. The allegations

plausibly establish sufficiently serious mental health conditions and safety needs of which
defendants were aware.”); Outman v. Waldron, No. 914CV0540 (TJM/DEP), 2016 WL
11478231, at *6 (N.D.N.Y. Feb. 29, 2016) (denying summary judgment and concluding
that “[i]f a reasonable factfinder credits plaintiff’s testimony and believes that he informed
defendants . . ., in advance of his suicide attempt, that he was experiencing suicidal

tendencies and yet they took no steps to intervene, defendants’ conduct could be
determined to have been in violation of plaintiff’s clearly established constitutional right
to be free from deliberate indifference to a serious medical need and/or to a serious risk of
harm”), report and recommendation adopted, No. 914CV0540 (TJM/DEP), 2016 WL
1175235 (N.D.N.Y. Mar. 24, 2016).

Here, Plaintiff has raised genuine issues of material fact to support his claim that
requiring an individual with a known history of self-harm to possess a razor posed a
substantial risk of serious harm to Plaintiff’s health and safety. It is undisputed that
Plaintiff’s history of self-harm was well-known and that he and others informed
Defendants of a concern that the mandate to possess a razor posed a danger to Plaintiff.
The fact that Plaintiff previously engaged in self-harm behavior both with and without a
razor does not negate the particular harm posed by the provision of a razor blade to an

individual with Plaintiff’s compulsions, nor does it suggest that it was not worth attempting
any safety measures if every safety risk could not be minimized. In other words, whether
or not Defendants could prevent Plaintiff from engaging in any form of self-harm may be
debatable, but in terms of evaluating the presence of an objectively serious risk of harm to
Plaintiff’s health by requiring his possession of a razor, taking the facts in the light most

favorable to Plaintiff, the Court is satisfied that this standard has been met here.
2. Subjective Element
As noted, to establish the subjective requirement, the official must know of and
disregard an excessive risk to inmate health or safety and “both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,” and

“must also draw the inference.” Farmer, 511 U.S. at 837. “In the context of an inmate’s
risk of suicide, the subjective prong of the deliberate-indifference standard requires ‘a dual
showing that the defendant: (1) subjectively knew the prisoner was at substantial risk of
committing suicide; and (2) intentionally disregarded that risk.’” McTerrell v.
Koenigsmann, No. 18-CV-1028-JLS-HKS, 2021 WL 5772484, at *6 (W.D.N.Y. Aug. 18,

2021) (quoting Phillips v. Mitchell, No. 19-CV-383, 2021 WL 1175051, at *4 (N.D.N.Y.
Mar. 29, 2021)), report and recommendation adopted, No. 18CV1028-JLS-HKS, 2021
WL 4549168 (W.D.N.Y. Oct. 5, 2021); see also Outman, 2016 WL 11478231, at *6
(finding clearly established DOCCS inmate’s right to be free from deliberate indifference
where officials knew of suicide risk).
Defendants argue that they acted reasonably and in Plaintiff’s best interest in

declining to provide an exemption from the razor policy. They argue that McCann, Eckert,
and Levitt did not ignore Plaintiff’s concerns for safety but instead sent him for observation
and treatment by mental health specialists and consulted with mental health staff about
whether an exemption was appropriate. They argue that their reliance on the opinions of
the mental health professionals that “taking the razor away from Plaintiff would be

detrimental rather than helpful” was reasonable.3 (Dkt. 36-5 at 8). Specifically, they
maintain that mental health staff were concerned that Plaintiff was psychologically
compelled to harm himself and that using an improvised weapon could result in even more
severe lacerations than those from a razor. (Id.).
To support their reliance on mental health staff opinions that a razor did not pose a

substantial risk to Plaintiff, Defendants cite cases in which deliberate indifference claims
were dismissed where correctional staff relied on determinations made by medical staff.
(Dkt. 36-5 at 8). In Brock v. Wright, the Second Circuit affirmed the grant of summary

3 Plaintiff urges the Court to disregard or strike the portions of Defendants’
submissions that allege that Plaintiff’s possession of a razor was discussed at team medical
treatment meetings and that the medical team recommended that an exemption not be
granted because it was beneficial to Plaintiff to be given a razor. (Dkt. 44 at 24-28).
Plaintiff argues that these statements are hearsay and inadmissible expert testimony not
otherwise disclosed during discovery. Because the Court concludes that Defendants’
motion is subject to denial even when taking this information into consideration, it need
not resolve Plaintiff’s request on the instant motion. Plaintiff is free to renew his concerns
at or before trial, if appropriate.
judgment for the correctional facility superintendent as to Plaintiff’s deliberate indifference
claim where the superintendent denied a request for a medical consultation and the regional
medical director also denied the request. 315 F.3d 158, 164 (2d Cir. 2003). In Ruggiero

v. Canfield, the superintendent of Southport Correctional Facility denied the plaintiff’s
request for a tumor biopsy in reliance on a doctor’s determination that a biopsy was not
warranted under the circumstances. 14-CV-00307A(F), 2017 WL 9485692, at *10
(W.D.N.Y. Mar. 23, 2017), adopted, 2017 WL 5152178 (W.D.N.Y. Nov. 7, 2017).
However, in this case, unlike in Brock and Ruggiero, Plaintiff does not allege that

he was denied medical care. Moreover, whether mandatory possession of a razor poses a
substantial risk of harm to an inmate with a history of self-harm and suicide attempts does
not require specialized medical knowledge of the kind relied on in Brock or Ruggiero. Nor
is there undisputed medical evidence before the Court to unequivocally demonstrate that
Plaintiff’s possession of a razor was medically recommended, “not unreasonable or

inconsistent with Plaintiff’s diagnosis, symptoms, and actions,” and that their efforts to
minimize the harm Plaintiff could do to himself was “the highest quality patient care that
could be provided under very sad and difficult circumstances.” (Dkt. 36-5 at 9). At the
very least, genuine issues of material fact exist as to whether requiring Plaintiff’s
possession of a razor was a sound determination, in addition to the question of whether

Defendants were in a position or had the authority to contradict those mental health
recommendations and award Plaintiff a policy exemption if they disagreed.
Finally, Defendants argue that Plaintiff has come forward with no useful alternative
to the razor policy. In support of this point, Defendants note that even under conditions
where a razor has been provided solely for shaving and quickly retrieved, Plaintiff was able
to self-harm during that short time-period. Defendants cite no legal authority for the
premise that Plaintiff has a legal obligation to provide an alternative policy in order to

survive summary judgment and none is otherwise apparent.
In sum, taking the facts in light most favorable to Plaintiff, the Court concludes that
genuine issues of fact exist as to whether Defendants knew that Plaintiff was at risk of self-
harm and intentionally disregarded that risk by requiring him to possess a razor in his cell.4
Accordingly, because genuine issues of material fact exist as to whether Defendants

failed to protect Plaintiff in a manner sufficient to establish a deliberate indifference claim,
Defendants’ motion for summary judgment is denied.

4 In order to support a § 1983 claim, Plaintiff must show the personal involvement of
each defendant. Keesh v. Quick, No. 19-CV-08942 (PMH), 2022 WL 2160127, at *5
(S.D.N.Y. June 15, 2022) (noting that “[a]s a fundamental prerequisite ‘[t]o establish[ing]
a § 1983 claim, a plaintiff must show the defendants’ personal involvement in the alleged
constitutional violation.’” (quoting Boley v. Durets, 687 F. App’x 40, 41 (2d Cir. 2017))).
In addition, it is undisputed that a constitutional violation must be directly attributable to a
supervisory official in order to establish liability and cannot arise merely from their status
as a supervisor. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (“The
[constitutional] violation must be established against the supervisory official directly.”).
Accordingly, where the underlying alleged constitutional violation requires deliberate
indifference to establish a § 1983 claim, this same test applies to claims against any
supervisors. Id. Therefore, Plaintiff need only raise a genuine issue of material fact as to
whether Levitt, McCann, and Eckert were personally involved and deliberately indifferent
to Plaintiff’s complaints to avoid summary judgment. See Morgan v. Dzurenda, 956 F.3d
84, 89 (2d. Cir. 2020) (reversing district court’s grant of summary judgment to supervisory
prison officials where inmate sent requests detailing threat of inmate assault to defendants
and officials took no action). The Court concludes that he has and Defendants do not argue
otherwise with respect to their personal involvement.
II. Plaintiff’s Motion to Seal
Although initially phrased generally as seeking to seal the entirety of Defendants’
motion for summary judgment, including all exhibits (Dkt. 45), Plaintiff actually only

appears to be requesting to seal two transcripts attached to Defendants’ motion papers (see
Dkt. 36-4 at 49-84 (Margaret Stirk transcript); id. at 85-143 (Stewart Eckert transcript)).5
“The notion that the public should have access to the proceedings and documents of
courts is integral to our system of government.” United States v. Erie Cnty. N.Y., 763 F.3d
235, 238-39 (2d Cir. 2014); see also Doe 1 v. Starpoint Cent. Sch. Dist., No. 23-CV-207-

LJV, 2023 WL 2752509, at *1 (W.D.N.Y. Apr. 3, 2023) (“One of the cornerstones of our
judicial system is the right of public access to judicial proceedings, including a presumption
that judicial documents are public.”). The presumption of public access to judicial
documents is grounded in both the common law and the First Amendment. See Coventry
Cap. v. EEA Life Settlements, Inc., No. 117CV07417 (JLR)(SLC), 2023 WL 2810660, at

*1 (S.D.N.Y. Apr. 6, 2023) (“A court must evaluate a request to seal under both a ‘common
law right of public access to judicial documents,’ and the press and public’s ‘qualified First
Amendment right to attend judicial proceedings and to access certain judicial documents.’”
(quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006)).
In order to overcome the presumption, it is necessary for the Court to make

“specific, on-the-record findings that sealing is necessary to preserve higher values” and

5 Following the filing of Plaintiff’s motion to seal, the Clerk revised access to
Defendants’ summary judgment submissions to court users and case participants only,
pending resolution of the instant motion.
any sealing order must be “narrowly tailored to achieve that aim.” Lugosch, 435 F.3d at
124. When considering a motion to seal, the Court will generally engage in a three-step
process regarding the applicability of this presumptive right of access. First, the Court

“determines whether the record at issue is a ‘judicial document’—a document to which the
presumption of public access attaches.” Mirlis v. Greer, 952 F.3d 51, 59 (2d Cir. 2020)
(quoting Lugosch, 435 F.3d at 119). Second, “if the record sought is determined to be a
judicial document, the court proceeds to ‘determine the weight of the presumption of
access’ to that document.” Id. (quotations omitted). Third, “the court must identify all of

the factors that legitimately counsel against disclosure of the judicial document, and
balance those factors against the weight properly accorded the presumption of access.” Id.;
see also Monahan v. City of New York, No. 20-CV-2610 (PKC), 2022 WL 993571, at *1
(S.D.N.Y. Mar. 30, 2022) (“Sealing or redaction is warranted if the privacy interests of the
party resisting disclosure outweigh the presumption of access.”).

As to the first step, a judicial document is an item that is filed with the Court and
“relevant to the performance of the judicial function and useful in the judicial process[.]”
United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). That standard is satisfied here
with respect to the filings at issue, and so the Court must proceed with the inquiry. As to
the second step, “the Second Circuit has emphasized that the weight of the presumption as

it relates to documents filed in connection with summary judgment motions is of the
highest: ‘documents used by parties moving for, or opposing, summary judgment should
not remain under seal absent the most compelling reasons.’” Moroughan v. Cnty. of
Suffolk, No. 12-CV-0512 JFB AKT, 2021 WL 280053, at *2 (E.D.N.Y. Jan. 24, 2021)
(emphasis in original and quoting Lugosch, 435 F.3d at 123); see also Matthews v. New
York State Dep’t of Corr. & Cmty. Supervision, No. 9:17-CV-503, 2023 WL 2664418, at
*3 (N.D.N.Y. Mar. 28, 2023) (“Summary judgment filings should not remain under seal

‘absent the most compelling reason’ or ‘absent exceptional circumstances’ because the act
of formal adjudication should be subject to public scrutiny.” (quoting Monahan, 2022 WL
993571, at *1); Burns v. Rovella, No. 3:19-CV-553 (JCH), 2021 WL 4263372, at *7 (D.
Conn. Sept. 20, 2021) (“The Second Circuit has instructed that ‘documents submitted to a
court for its consideration in a summary judgment motion are—as a matter of law—judicial

documents to which a strong presumption of access attaches, under both the common law
and the First Amendment.’” (quoting Trump v. Deutsche Bank AG, 940 F.3d 146, 151 (2d
Cir. 2019))).
Plaintiff argues that the transcripts should be sealed because they have been
designated as Attorneys’ Eyes Only pursuant to a Confidentiality Stipulation and Protective

Order that was entered in related litigation. Plaintiff’s counsel believes those designations
are in the best interest of both Defendants and her clients in custody and warrant the sealing
of Defendants’ motion for summary judgment. While there may be a countervailing basis
to seal some portion of these transcripts sufficient to outweigh the strong presumption of
public access afforded, that does not extend to the wholesale filing of the entire transcripts.

As an initial matter, it is well-established that “[c]onfidentiality agreements alone
are not an adequate basis for sealing” and “[m]aterial designated as Confidential by a
protective order ‘might not overcome the presumption of public access once it becomes a
judicial document.’” Metcalf v. TransPerfect Translations Int’l, Inc., No.
19CV10104(AJN)(KHP), 2022 WL 2116686, at *1 (S.D.N.Y. June 13, 2022) (quoting
Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 155 (S.D.N.Y. 2015));
Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *3

(N.D.N.Y. Sept. 29, 2021) (“However, ‘that a document was produced in discovery
pursuant to a protective order has no bearing on the presumption of access that attaches
when it becomes a judicial document.’” (quoting Collado v. City of New York, 193 F. Supp.
3d 286, 289-90 (S.D.N.Y. 2016))), aff’d, No. 21-2622-CV, 2022 WL 289314 (2d Cir. Feb.
1, 2022), cert. denied, No. 21-1422, 2022 WL 4657197 (Oct. 3, 2022).

Nor are conclusory statements about the alleged confidentiality of the information
sufficient to support sealing. See, e.g., Rowe v. Google LLC, No. 19 CIV. 8655 (LGS),
2022 WL 4467628, at *3 (S.D.N.Y. Sept. 26, 2022) (requiring party to show with
particularity the basis for a sealing request to permit the court to make specific findings as
to the necessity for sealing); Bronx Conservatory of Music, Inc. v. Kwoka, No.

21CV1732(AT)(BCM), 2021 WL 2850632, at *3 (S.D.N.Y. July 8, 2021) (“Neither
‘conclusory assertion[s]’ of harm nor ‘[b]road and general findings by the trial court’ will
suffice [to support sealing judicial documents].” (quoting In re N.Y. Times Co., 828 F.2d
110, 116 (2d Cir. 1987))). Plaintiff has not adequately documented the particularized harm
that would arise from public disclosure of the documents in question. See Oliver v. New

York State Police, No. 115CV00444 (BKS/DJS), 2020 WL 1227141, at *4 (N.D.N.Y. Mar.
13, 2020) (denying motion to seal internal investigation materials because defendants
failed to sustain burden to “through competent declarations, show[ ] the court what interests
[of law enforcement or privacy] would be harmed, how disclosure . . . would cause the
harm, [and] how much harm there would be.” (quotation and citation omitted)).
Because the parties have not sufficiently explained how the judicial documents in
question would legitimately counsel against disclosure, when balanced against the weight

accorded the presumption of public access, sealing of the entire transcripts is denied. See
Matthews, 2023 WL 2664418, at *5 (denying motion to seal where defendants failed to
overcome the presumption of access to OSI investigative reports with the exception of
identification of nonparty inmate witnesses); Cremeans v. Miller, No.
520CV00535(BKS/TWD), 2022 WL 7286974, at *4 (N.D.N.Y. Aug. 24, 2022) (denying

motion to seal where “[t]he documents comprise a significant portion of the factual record
before the Court, and they pertain to matters that ‘directly affect’ the Court’s adjudication
of Defendants’ motion for summary judgment”), report and recommendation adopted, No.
520CV535 (BKS/TWD), 2022 WL 4591745 (N.D.N.Y. Sept. 30, 2022); Moroughan, 2021
WL 280053, at *4 (“To the extent that the information referenced in the Court’s Opinion

derives from documents and recordings that were part of internal affairs investigations, the
confidential and internal nature of those materials does not outweigh the strong
presumption of public access to judicial documents related to summary judgment motions,
as well as court opinions referencing those documents.”).
Accordingly, the motion to seal is denied. However, the documents filed at Docket

36-4 will remain provisionally sealed and Plaintiff is granted leave to renew the motion
within 20 days of the date of entry of this Decision and Order, wherein it must be identified
with particularity which portions of the transcripts should be sealed and why. If no such
motion is filed within the aforementioned deadline, the Clerk of Court is directed to unseal
Docket 36-4. Moreover, the Clerk of Court is immediately directed to unseal Defendants’
motion for summary judgment filed at Docket 36, including all attachments, with the
exception of the documents contained within Docket 36-4, which includes the transcripts.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 36) is
denied and Plaintiff’s motion to seal (Dkt. 45) is denied with leave to renew.
SO ORDERED. ) /
L. JOA Ll pC
ELIZABETHA. WOLEORD
1ef Judge
United States District Court
Dated: June 26, 2023
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366265. Public record. Not legal advice.