Parkinson v. Goord, 98-CV-6408L.

• Decision Date: 28 September 2000
• Docket Number: No. 98-CV-6408L.,98-CV-6408L.
• Citation: 116 F.Supp.2d 390
• Parties: Donald S. PARKINSON, Plaintiff, v. Glenn GOORD, et al., Defendants.
• Court: U.S. District Court — Western District of New York

116 F.Supp.2d 390

Donald S. PARKINSON, Plaintiff, v. Glenn GOORD, et al., Defendants.

No. 98-CV-6408L.

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

September 28, 2000.

Donald S. Parkinson, Sonyea, NY, plaintiff pro se.

Emil J. Bove, Office of New York State, Attorney General, Rochester, NY, for Glen Goord, Commissioner, NYS Dept. of Corrections, defendant.

DECISION AND ORDER

LARIMER, Chief Judge.

Procedural Background

Plaintiff, Donald Parkinson, appearing pro se and an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), commenced this action under 42 U.S.C. § 1983. Plaintiff initially named a number of individuals at Collins Correctional Facility ("Collins") as defendants: Collins Superintendent Victor Herbert¹, Collins senior corrections counselor Thomas Hicks, Collins Health Services Director Dr. John Cetin, and DOCS Commissioner Glenn Goord. Plaintiff alleges that all defendants violated his constitutional rights under the Eighth Amendment.

By decision and order entered January 26, 1999, plaintiff's section 1983 claims against defendant Goord were dismissed with prejudice, and the Court deemed certain of plaintiff's claims to arise under the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12132. (Dkt.# 5). By decision and order entered August 17, 1999, plaintiff was permitted to amend his complaint to add as defendants Collins Correction Lieutenant Gregory Sarra, Collins Deputy Superintendent for Administration Thomas Mudra, Collins Deputy Superintendent for Security Patricia O'Connor², Collins Deputy Superintendent for Program Services Richard Becker, and John & Jane Doe of Central Office Health Services. (Dkt.# 24).

The relief requested in the complaint includes compensatory and punitive damages, a restraining order protecting him from retaliation, and injunctive relief. Plaintiff has requested relief against all defendants in both their individual and their official capacities. (Dkt.# 9). Presently before the Court are plaintiff's and defendants' motions for summary judgment.

Factual Background

Parkinson was convicted of two counts of attempted assault upon a police officer and reckless endangerment in the first degree for shooting a rifle at two New York State troopers. Parkinson was briefly incarcerated at Collins from June 25, 1998 through November 17, 1998. Plaintiff is an amputee with only one leg. He has raised several claims that relate to his medical treatment and housing during his short tenure at Collins. First, he alleges that he repeatedly requested a prosthetic leg, either his old one or a new one, but that when he filed his complaint he was still without a prosthesis. Plaintiff wrote letters to defendants Dr. Cetin and Counselor Hicks requesting the prosthesis. Plaintiff also alleges that his medical needs as an amputee have not been met. For example, he is authorized to receive an additional pillow to raise the remainder of his amputated limb to decrease swelling, but plaintiff claims that he was given neither a pillow for his head nor one for his limb.

The lack of a prosthetic leg resulted in further difficulties. At the time he filed his complaint, he was still housed on an upper floor in an older building at Collins that he claims is not designed to accommodate his needs. Defendants Hicks and Deputy Superintendent Herbert acknowledged plaintiff's requests for transfer and sought to have plaintiff transferred to a facility with ground-floor housing and programs, but were unsuccessful in obtaining approvals for such transfer requests. When he was at Collins, plaintiff claimed he did not have access to a handicapped-equipped bathroom, toilet or shower. He alleges that he had to shower on one leg without any handgrips, bars, or anti-skid mats to provide stability. Plaintiff also claimed that it was very difficult for him to move around the facility on crutches, in that he had to regularly negotiate stairs that were covered with debris, and use floors which were often wet and slippery. These conditions caused him to fall several times, and he hurt his wrist, arm and back and broke his crutches during one of his falls. He further claims that he experienced back pain from this fall, and complains that the prescribed medication was not alleviating his pain.

On August 31, 1998, plaintiff began working in the Collins "storehouse" but within hours he was removed from the job. On or about August 31, 1998 and September 8, 1998, Parkinson filed grievances about this removal with the Inmate Grievance Resolution Committee ("IGRC"). The IGRC recommended that Parkinson be allowed to return to the storehouse. Becker Aff., Ex. H. Superintendent Herbert disagreed with the IGRC's decision, and stated that Parkinson would not be considered for work until after he received his prosthetic limb. Id. The Central Office Review Committee ("CORC") affirmed Superintendent Herbert's response on November 10, 1998. Id. On November 17, 1998, plaintiff was transferred from Collins for disciplinary reasons.

This is one of three suits involving similar allegations that plaintiff has commenced in federal court. Plaintiff filed his first lawsuit against a number of Columbia County officials (including a County Court judge, the local district and assistant district attorneys, and the local sheriff), the New York State Attorney General, and DOCS. Parkinson v. Fort, 98-CV-1432 (N.D.N.Y.). Plaintiff's stipulation discontinuing that action was filed November 19, 1998. Another lawsuit, filed November 19, 1998, is currently pending in the Northern District of New York, again including DOCS as one of the defendants. Parkinson v. New York State Department of Correctional Services, 98-CV-1788 (N.D.N.Y.) ("Parkinson's Northern District action").

Discussion

I General Standards

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." McKelvie v. Cooper, 190 F.3d 58, 61 (2d Cir.1999). Where, as here, the plaintiff is proceeding pro se, the court will liberally construe the plaintiff's pleadings, and "interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment. Carbonell v. Goord, 99-CV-3208, 2000 WL 760751, *5 (S.D.N.Y. June 13, 2000).³

II The Eighth Amendment Claim

Plaintiff's claims arise, in part, under the Eighth Amendment, which proscribes "cruel and unusual punishment." Defendants argue that plaintiff's Eighth Amendment claims should be dismissed because plaintiff has not exhausted his available administrative remedies. Plaintiff does not respond to this argument.

Under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.A. § 1997e et seq., an inmate is required to exhaust all available administrative remedies before bringing suit on a federal claim. Specifically, section 1997e(a) provides:

No action shall be brought with respect to prison conditions under section ... 1983 [of this title], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a); see Snider v. Melindez, 199 F.3d 108, 109 (2d Cir.1999). As the Second Circuit recently stated: "Section 803(d) of the PLRA added teeth to the 1997e(a) exhaustion provision, affirmatively requiring prisoners to exhaust administrative remedies, whether federal or state, before bringing any federal claims `with respect to prison conditions.'" Nussle v. Willette, 99-0387, 224 F.3d 95, 2000 WL 1199957, *3 (2d Cir. August 24, 2000). Although the pre-PLRA section 1997e(a) provided a more limited exhaustion requirement, granting district courts discretion whether to require a prisoner to exhaust administrative remedies, the amended statute clearly requires prisoners first to pursue challenges to the conditions of their confinement though the highest level of the available administrative procedures. In so doing, Congress intended section 1997e(a) to "curtail the ability of prisoners to bring frivolous and malicious lawsuits by forcing prisoners to exhaust all administrative remedies before bringing suit in Federal court." Alexander v. Hawk, 159 F.3d 1321, 1324, reh'g en banc denied, 172 F.3d 884 (11th Cir.1999) (citing 141 Cong.Rec.H. 472-06, *H1480 (daily ed. Feb. 9, 1995)). Consequently, the PLRA mandates that plaintiff exhaust the available administrative remedies before filing his section 1983 claim in this Court. District courts in this circuit have similarly held that claims of deliberate indifference to medical needs, like those made here, are subject to the PLRA's exhaustion requirement. See Hernandez v. Greiner, 99-CV-4601, 2000 WL 520639, *1-2 (S.D.N.Y. May 1, 2000); Parkinson v. New York State Department of Correctional Services, 98-CV-1788 (N.D.N.Y. March 16, 2000) (involving same plaintiff, and holding that "[t]he PLRA's exhaustion requirement applies ... since a plain meaning of the phrase `prison conditions' encompasses medical treatment"); Cruz v. Jordan, 80 F.Supp.2d 109, 113 (S.D.N.Y. 1999) (holding that deliberate indifference claim is action "with respect to prison conditions" and therefore subject to PLRA's exhaustion requirement, notwithstanding unavailability of monetary damages in prison's administrative proceedings); Vasquez v. Artuz, 1999 WL 440631, *5-7 (S.D.N.Y. June 28, 1999); Wright v. Dee, 54 F.Supp.2d 199, 204-06 (S....