Davidson v. Desai

• Citation: 817 F.Supp.2d 166
• Decision Date: 25 August 2011
• Docket Number: No. 03–CV–00121S(F).,03–CV–00121S(F).
• Parties: Ronald DAVIDSON, Plaintiff, v. M.D. Uday K. DESAI, M.D. Cheng Yin, N.P. Herman Fowler, M.D. Lester Wright, M.D. Marshall Trabout, Floyd Bennett, former Superintendent of the Elmira Correctional Facility (“ECF”), R.N. Anne Rabideau, former nurse administrator at ECF, Calvin West, First Deputy Superintendent of ECF and Present Acting Superintendent of ECF, R.N. Marijon Hopkins, present nurse administrator at ECF, R.N. Katherine Frawley, staff nurse at ECF, R.N. Deborah Bartlett–Bigg, former acting nurse administrator at ECF and current staff nurse at ECF, Sheryl Graubard, supervisor of the Inmate Grievance Program at the ECF, Thomas Eagen, Director of the Inmate Grievance Program, assigned to the DOCS central office in Albany, N.Y., R.N. Nancy O'Connell, past ECF nurse administrator, Wexford Health Services (or whatever other corporation name they are known by) and their officers and executives, Dana Smith, former First Deputy Superintendent at Elmira C.F., M.D. Wesley Canfield, present facility health services director at Elmira C.F., Robert Guzman, former deputy superintendent of programs at Elmira C.F., and Glenn Goord, Defendants.
• Court: U.S. District Court — Western District of New York

817 F.Supp.2d 166

Ronald DAVIDSON, Plaintiff,

v.M.D. Uday K. DESAI, M.D. Cheng Yin, N.P. Herman Fowler, M.D. Lester Wright, M.D. Marshall Trabout, Floyd Bennett, former Superintendent of the Elmira Correctional Facility (“ECF”), R.N. Anne Rabideau, former nurse administrator at ECF, Calvin West, First Deputy Superintendent of ECF and Present Acting Superintendent of ECF, R.N. Marijon Hopkins, present nurse administrator at ECF, R.N. Katherine Frawley, staff nurse at ECF, R.N. Deborah Bartlett–Bigg, former acting nurse administrator at ECF and current staff nurse at ECF, Sheryl Graubard, supervisor of the Inmate Grievance Program at the ECF, Thomas Eagen, Director of the Inmate Grievance Program, assigned to the DOCS central office in Albany, N.Y., R.N. Nancy O'Connell, past ECF nurse administrator, Wexford Health Services (or whatever other corporation name they are known by) and their officers and executives, Dana Smith, former First Deputy Superintendent at Elmira C.F., M.D. Wesley Canfield, present facility health services director at Elmira C.F., Robert Guzman, former deputy superintendent of programs at Elmira C.F., and Glenn Goord, Defendants.

No. 03–CV–00121S(F).

United States District Court, W.D. New York.

Aug. 25, 2011.

Ronald Davidson, Wallkill, NY, pro se.

Eric T. Schneiderman, Attorney General, State of New York, George Michael Zimmermann, Assistant New York Attorney General, of Counsel, Buffalo, NY, for Defendants.

ORDER

WILLIAM M. SKRETNY, Chief Judge.

Presently before this Court are Objections to the Magistrate Judge's Report & Recommendation. Having reviewed the Report & Recommendation de novo, after considering the Objections and the parties' submissions, see 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Local Rule 72.3(a), this Court concurs with the findings and recommendations contained in the Report & Recommendation. Accordingly, the Objections are DENIED, and the Report & Recommendation is ACCEPTED in its entirety, including the authorities cited and the reasons given therein.

IT HEREBY IS ORDERED, that the 140 Report & Recommendation is ACCEPTED. Further, that the Objections 141, 146 are DENIED. Further, that the Defendants' 106 Motion for Judgment on the Pleadings or for Summary Judgment is GRANTED in part and DENIED in part, consistent with the Magistrate Judge's recommendations. FURTHER, that Plaintiff and counsel for Defendants shall appear before this Court on October 7, 2011, at 9:00 a.m. to discuss how this case will proceed. FURTHER, that Defendants' counsel shall arrange to have Plaintiff available by telephone at his correctional facility for the status conference and shall provide to the Courtroom Deputy the number at which Plaintiff can be reached at least two days before the status conference.

SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by Honorable William M. Skretny on August 10, 2009, for a report and recommendation on dispositive motions. The matter is presently before the undersigned on Defendants' motion for summary judgment (Doc. No. 106), filed November 18, 2009.

BACKGROUND

Plaintiff Ronald Davidson (“Plaintiff” or “Davidson”), proceeding pro se, commenced this civil rights action, pursuant to 42 U.S.C. § 1983, on February 18, 2003, while incarcerated at Elmira Correctional Facility (“Elmira” or “the correctional facility”). Defendants to this action, all current or former employees of New York State Department of Corrections (“DOCS”), include M.D. Uday K. Desai (“Dr. Desai”), M.D. Cheng Yin (“Dr. Yin”), N.P. Herman Fowler (“N.P. Fowler”), M.D. Lester Wright (“Dr. Wright”), M.D. Marshall Trabout (“Dr. Trabout”), former Elmira Superintendent Floyd Bennett (“Bennett”), former Elmira Nurse Administrator R.N. Anne Rabideau (“R.N. Rabideau”), Elmira First Deputy and Acting Superintendent Calvin West (“West”), Elmira Nurse Administrator R.N. Marijon Hopkins (“R.N. Hopkins”), Elmira staff nurse R.N. Katherine Frawley (“R.N. Frawley”), former Elmira Acting Nurse Administrator and current staff nurse R.N. Deborah Bartlett–Bigg (“R.N. Bartlett–Bigg”), Elmira Inmate Grievance Program (“IGP”) Supervisor Sheryl Graubard (“Graubard”), DOCS IGP Director Thomas Eagen (“Eagen”), past Elmira Nurse Administrator R.N. Nancy O'Connell (“R.N. O'Connell”), Wexford Health Services (“Wexford”), former Elmira First Deputy Superintendent Dana Smith (“Smith”), present Elmira Health Services Director M.D. Wesley Canfield (“Dr. Canfield”), former Elmira Deputy Superintendent of Programs Robert Guzman (“Guzman”), and DOCS Commissioner Glenn Goord (“Goord”) (together, “Defendants”). With the exception of Wexford who, by order dated March 19, 2003 (Doc. No. 2), was terminated as a Defendant to this action, all Defendants have been served and have appeared in this action.

Plaintiff asserts 12 claims for relief alleging violations of his First, Eighth and Fourteenth Amendment rights, largely challenging the medical care Plaintiff received, or failed to receive, while incarcerated at Elmira, and the handling of numerous Inmate Grievances Plaintiff filed regarding his medical treatment. Plaintiff's 12 claims for relief include (1) deliberate indifference to serious medical need in connection with a “discogram” medical procedure Plaintiff underwent on November 24, 1999 (“First Claim”); (2) deliberate indifference to serious medical need in connection with a surgical procedure on Plaintiff's shoulder originally scheduled for December 15, 2000 (“Second Claim”), (3) denial of medical treatment for allergies (“Third Claim”); (4) denial of medical treatment for shortness of breath and asthma (“Fourth Claim”); (5) exposure to second-hand tobacco smoke and other allergens (“Fifth Claim”); (6) deprivation of privacy based on the sick call procedure (“Sixth Claim”); (7) failure to provide proper eye glasses (“Seventh Claim”); (8) failure to provide a proper diet (“Eighth Claim”); (9) interference with Plaintiff's attempts to file Inmate Grievances (“Ninth Claim”); (10) tying Plaintiff's access to specialized medical care to Plaintiff's compliance with certain conditions not otherwise required under the law (“Tenth Claim”); (11) repeatedly ignoring Plaintiff's requests for sick call (“Eleventh Claim”); and (12) refusing to provide Plaintiff with certain medical records (“Twelfth Claim”). Defendants' answer (Doc. No. 27) (“Answer”), was filed September 23, 2004.

On November 18, 2009, Defendants filed the instant motion for summary judgment (Doc. No. 106) (“Defendants' motion”), with supporting papers, including the Declarations of Floyd Bennett (Doc. No. 107) (“Bennett Declaration”), Dr. Wesley Canfield (Doc. No. 108) (“Dr. Canfield Declaration”), Dr. Uday Desai (Doc. No. 109) (“Dr. Desai Declaration”), Thomas Eagen (Doc. No. 110) (“Eagen Declaration”), Herman Fowler (Doc. No. 111) (“Fowler Declaration”), Assistant Attorney General George M. Zimmermann (Doc. No. 112) (“Zimmermann Declaration”) with attached exhibits A (portions of Plaintiff's June 29, 2007 deposition testimony (“Plaintiff's Dep. Tr. at –––”)), and B (Plaintiff's certified medical record, Bates stamped 000001–001216 (“Medical Record at Bates No. –––”)), Sheryl English (Doc. No. 113) (“English Declaration”), Marijon Hopkins (Doc. No. 114) (“Hopkins Declaration”), Anne Rabideau (Doc. No. 116) (“Rabideau Declaration”), Dr. Marshall Trabout (Doc. No. 117) (“Dr. Trabout Declaration”), Dr. Lester Wright (Doc. No. 118) (“Dr. Wright Declaration”),¹ Dr. Cheng Yin (Doc. No. 119) (“Dr. Yin Declaration”), and Defendants' Memorandum of Law in Support of Motion to Dismiss Pursuant to F.R.C.P. 56(a) and Motion for Summary Judgment Pursuant to F.R.C.P. 12(c) and 56(a) (Doc. No. 115) (“Defendants' Memorandum”).

After several extensions of time in which to file papers opposing Defendants' motion, including a stay while Plaintiff sought to have counsel appointed, Plaintiff, on September 8, 2010, filed his Affidavit in Opposition to Defendants' Motion for Summary Judgment (Doc. No. 131) (“Plaintiff's Affidavit”), attached to which is Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss Pursuant to F.R.C.P. 5(a) and Motion for Summary Judgment Pursuant to F.R.C.P. 12(c) and 56(a), Date 18 November 2010 (“Plaintiff's Response”), with attached exhibits A though G (“Plaintiff's Exh(s). –––”). On November 10, 2010, Defendants filed Defendants' Reply Memorandum of Law in Support of Motion to Dismiss and Motion for Summary Judgment (Doc. No. 133) (“Defendants' Reply”), and a Statement of Undisputed Facts in Support of Defendants' Motion for Summary Judgment (Doc. No. 134) (“Defendants' Statement of Facts”).

By letter to the undersigned dated November 17, 2010 (Doc. No. 135), Plaintiff requested permission to file a sur-reply. By Text Order entered November 24, 2010 (Doc. No. 136), Plaintiff's request to file a sur-reply was granted. Accordingly, on January 31, 2011, Plaintiff filed his Supplemental Affidavit in Opposition to Defendants' [ sic ] (Doc. No. 138) (“Plaintiff's Supplemental Affidavit”),² and, on February 1, 2011, Plaintiff filed his Sur–Reply (Doc. No. 139) (“Plaintiff's Sur–Reply”). Oral argument was deemed unnecessary.

Based on the following, Defendants' motion should be GRANTED in part and DENIED in part.

FACTS ³

At all times relevant to this action, Plaintiff Ronald Davidson (“Plaintiff” or “Davidson”), an inmate in the custody of New York State Department of Correctional Services (“DOCS”), was incarcerated in Elmira Correctional Facility (“Elmira” or “the correctional facility”). Plaintiff makes numerous allegations regarding the medical care and treatment he either received or was denied while housed at Elmira, as well as the mishandling of various inmate grievances Plaintiff filed in connection with his medical care.

On November 24, 1999, Plaintiff was escorted by DOCS personnel to Strong Memorial Hospital (...