Grubbs v. Serrell

Decision Date18 August 2016
Docket NumberNo. 14-CV-467 (GLS/CFH),14-CV-467 (GLS/CFH)
PartiesBOBBY GRUBBS, Plaintiff, v. JOHN SERRELL, Correction Officer, Great Meadow Correctional Facility; et al., Defendants.
CourtU.S. District Court — Northern District of New York



Bobby Grubbs

Plaintiff ProSe

Clinton Correctional Facility

P.O. Box 2001

Dannemora, New York 12929


Attorney General for the

State of New York

The Capitol

Albany, New York 12224-0341

Attorney for Defendants



Assistant Attorney General


Plaintiff pro se Bobby Grubbs, an inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, fifteenDOCCS employees, violated his constitutional rights under the First, Eighth, and Fourteenth Amendments. At all relevant times, Grubbs was incarcerated at Great Meadow Correctional Facility ("Great Meadow"). Grubbs commenced this action on April 24, 2014. Dkt. No. 1. On August 25, 2014, Grubbs filed an amended complaint as of right pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 15(a). Am Compl. (Dkt. No. 11). Following initial review of the complaint pursuant to 28 U.S.C. § 1915A, the remaining claims are: (1) defendant Correction Officer ("C.O.") John Serrell, used excessive force on Grubbs on February 1, 2012; (2) defendant C.O. Marcie Everleth, failed to protect Grubbs during the February 1, 2012 excessive force incident; (3) defendants Registered Nurse ("R.N.") Kimberly Lipka, Dr. David Karandy, M.D., and R.N. David Lehmann were deliberately indifferent to Grubbs' serious medical need following the February 1, 2012 excessive force incident; (4) defendants C.O. Joseph Harrington, and C.O. Eugene Raimo used excessive force on Grubbs during a cell move on January 22, 2013; (5) defendant Sergeant Toby Williams placed Grubbs on keeplock for three days in retaliation for Grubbs' filing a grievance against him; (6) defendant C.O. Robert McCauley denied Grubbs access to legal supplies and other services in January 2013; (7) defendants Serrell, C.O. Lee Lawton, C.O. Brian Hood, and Mailroom Supervisor Sara Nakiewicz prevented Grubbs from mailing a notice of claim to the New York Court of Claims and the New York Attorney General's Office; and (8) defendant Superintendent Steven Racette failed to properly supervise staff or protect Grubbs from staff misconduct. See Dkt. No. 18.

Presently pending is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt. No. 54. Plaintiff opposed the motion. Dkt. No. 66. Defendants filed a reply. Dkt. No. 68. For the following reasons, it is recommended that defendants motion begranted in part and denied in part.

I. Background

The facts are reviewed in the light most favorable to Grubbs as the non-moving part. See subsection II.A infra.

A. Grubbs' Recitation of Facts

1. February 1, 2012 Incident and Subsequent Medical Care

On February 1, 2012, at approximately 7:40 p.m., Grubbs was standing by the wall of Great Meadow's rotunda, awaiting escort to the clinic. Am. Compl. at 3. When the procession of inmates began walking toward the clinic, defendant Serrell pulled Grubbs out of the line. Id. Once Grubbs was out of the line, he encountered defendant Everleth, who instructed Grubbs to go where he is "supposed to be." Id.

Once the procession of inmates was out of sight, Serrell repeatedly poked Grubbs in the chest, saying "who do you think you are?" Am. Compl. at 4. Grubbs asked Serrell to stop touching him, and Serrell responded by saying "I can do whatever I want to do, just like you can do whatever you want to do." Id. Grubbs responded by saying "that's what I plan to do." Id. Serrell then pushed Grubbs into the wall, and Grubbs assumed the "pat frisk" position. Id. Serrell "violently" kicked Grubbs' legs open, even though they were already spread. Id. Everleth then pulled Grubbs' right hand and arm behind his back, and Serrell handcuffed him. Id. at 4-5. Serrell then threw Grubbs to the ground and punched him repeatedly in his stomach and torso. Id. at 5. Everleth watched the assault but did notintervene. Id. After approximately five minutes, the commissary officer pulled Serrell off of Grubbs. Id.

Immediately following the assault, Grubbs was examined by defendant Lehman. Am. Compl. at 5. Grubbs suffered a black and bloodshot eye, and multiple lumps, including on his left forehead and scalp area, although he states that these injuries were not fully visible until the evening after the assault. Id. at 6. Beginning on February 2, 2012, the day after the assault, Grubbs sent multiple sick call requests asking to receive an MRI, and an examination by a doctor. Id. He also sent multiple letters to defendant Dr. Karandy. Id. Dr. Karandy ignored the letters. Id.

Although defendant Lipka made a notation in Grubbs' medical file indicating that he was examined on February 3, 2012, Grubbs states that he did not receive any medical care on that date. Am. Compl. at 6. He states that he received Tylenol while on "administrative hold" or keeplock. Id. While Lehmann was delivering Grubbs' evening medication, Grubbs attempted to show him his contusions and swelling, but Lehmann ignored them. Id. at 6-7.

On February 15, 2012, Dr. Karandy examined Grubbs. Am. Compl. at 9. Grubbs states that, although Dr. Karandy wrote in his medical file that Grubbs's issues were resolved, he was still suffering from headaches, dizziness, and other ailments. Id. At this examination, Grubbs showed Dr. Karandy scarring on his body, and complained of jaw and temple pain on the right side of his face. Id. Dr. Karandy did not have Grubbs' medical file in the exam room during this visit, nor did he take Grubbs' "vitals." Id. Dr. Karandy sent Grubbs for an x-ray, and also sent him for an MRI in August 2012. Id.

While Grubbs was confined to the Special Housing Unit ("SHU") from February 7, 2012 until February 14, 2012, Lipka denied his requests for "over the counter strengthmedications." Am. Compl. at 11. Lipka "downplayed" Grubbs' injuries when noting them in his medical file, and Grubbs believes that Lipka deliberately destroyed his sick call requests. Id. at 12.

2. Issues with Mailing Legal Papers, April-May 2012

While confined to the SHU, Grubbs attempted to mail a notice of intention, but could not get an officer to notarize his signature, despite multiple requests. Am. Compl. at 12. Grubbs eventually obtained a notary's signature and sent his papers to the Attorney General on April 25, 2012. Id. at 13. Grubbs attached a note to the papers alerting the Great Meadow mailroom of the approaching deadline for him to file the notice of intent. Id. However, Grubbs incorrectly addressed the disbursement form, which collects postage fees, causing the papers to be returned to Grubbs through mail distribution on April 27, 2012. Id. As a result, the Attorney General's Office received the notice of intention on May 4, 2012, past the ninety-day accrual deadline. Id.

3. January 22, 2013 Incident

On January 22, 2013, Grubbs was told to pack his belongings in preparation for his move from C6 Company to B5 Company. Am. Compl. at 14. Grubbs became upset at the prospect of moving to B5 Company and suffered a panic attack. Id. at 15. He felt weak and suffered chest pains and vision issues. Id. While Grubbs was hyperventilating, defendant Raimo told him that if he did not pack his belongings, Raimo would do so for him. Id. Raimo then left and defendant Harrington appeared. Id. Grubbs told Harrington that heneeded medical treatment. Id. Defendant Williams then appeared, and Grubbs asked for medical treatment again. Id. Williams instructed Grubbs to stand by the catwalk gate while Raimo and Harrington packed his belongings. Id. Grubbs then blacked out, and came to while being dragged down the stairs. Id. at 15-16. Raimo and Harrington then threw him on top of the inmate clerk's desk. Id. at 16.

Following the incident, Grubbs was taken for medical treatment on a stretcher. Am. Compl. at 16. Grubbs cried during the transport to the MHC. Id. During the transport, Williams threatened Grubbs, and told him not to say anything about the incident. Id. Grubbs was examined by Dr. McCloskey at the MHC and released to normal activities. Id. Williams observed the examination. Id.

4. Denial of Access to Legal Services and Supplies, Mail Tampering, and RetaliatoryKeeplock - January 2013

On January 24, 2013, Grubbs visited the Great Meadow law library. Am. Compl. at 18. He asked defendant McCauley if he could use the photocopier. Id. Grubbs was entitled to "special access" to the photocopier because of an impending deadline. Id. McCauley informed Grubbs that the photocopier was broken. Id. Grubbs told McCauley that his filing deadline was February 1, 2013. Id. McCauley told Grubbs that, if the photocopier was not functional by January 28, 2013, he would allow Grubbs to use a different photocopier "upstairs in the school's office." Id. When Grubbs expressed concern that he still would not meet his deadline, McCauley stated that he would be sure that the papers go out as legal mail. Id.

On January 28, 2013, Grubbs went to the Great Meadow law library during hisapproved time. Am. Compl. at 19. He presented McCauley with an "approved advance" that had been signed by the "Acting Dep. Spt. of Programs," Ms. Tynon, in order for Grubbs to obtain a hall pass to use the school office photocopier. Id. McCauley told Grubbs that he would need verbal confirmation from Ms. Tynon before he could allow Grubbs to use the school office photocopier. Id.

While Grubbs was waiting for McCauley to receive verbal confirmation from Ms. Tynon for him to use the school office photocopier, Williams called McCauley and asked him to send Grubbs to his office for an interview. Am. Compl. at 19. When Grubbs arrived to Williams'...

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