Williams v. Barometre

Decision Date28 March 2022
Docket Number20-CV-7644 (KMK)
PartiesOZAN WILLIAMS, Plaintiff, v. DELTA BAROMETRE, et al., Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York





Ozan Williams (Plaintiff), proceeding pro se, brings this Action, pursuant to 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act (Title II or “ADA”), 42 U.S.C. § 12131, et seq., Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794, et seq. against the New York State Department of Corrections and Community Supervision (“DOCCS”) and DOCCS Superintendent Delta Barometre (“Barometre” collectively, Defendants), alleging that Defendants were deliberately indifferent to his serious medical needs, improperly penalized him as a result of his hearing impairment, and failed to reasonably accommodate his disabilities under the ADA and RA. (See generally Complaint (“Compl.”) (Dkt. No. 2).)[1], [2] Plaintiff expressly and repeatedly states that he seeks only injunctive relief, not monetary damages.[3]Before the Court is Defendants' Motion To Dismiss the Complaint (the “Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 19).)

For the reasons stated herein, the Motion is granted in part and denied in part.

I. Background
A. Factual Background

The following facts are drawn from Plaintiff's Complaint and the exhibits therein as well as Plaintiff's opposition papers and the exhibits therein.[4] They are assumed to be true for the purpose of resolving the instant Motion.

On August 27, 2008, prior to Plaintiff's incarceration, Plaintiff was admitted to University Hospital in Staten Island. (Compl. 3; see also Id. at 13.) Plaintiff avers that he was assaulted, sustaining injuries on his head, face, abdominal, and both wrists. (See Id. at 3; see also Id. at 13.) Specifically, Plaintiff asserts that he was assaulted by a police officer. (See Id. at 3.) “While admitted [Plaintiff underwent several] examinations, [including a] CT scan.” (Id.) Plaintiff was also provided multiple medications as treatment. (See id.) Lastly, [t]here was a report made of a head assault and multiple contiguous axial images were obtained from the base of the skull to the vertex.” (Id.)

Several years later in 2012, Plaintiff alleges that there was an audiologist report made concerning Plaintiff's hearing issues. (See id.)

The following year, in 2013, Plaintiff was incarcerated.[5] While incarcerated, on August 26, 2013, the OTO Health Hearing Aid Center (“OTO”) sent Plaintiff hearing aids. (See Compl. at 3; see also Id. at 23.) In the letter denoting the delivery of Plaintiff's hearing aids, OTO requested permission for Plaintiff to keep his hearing aids in his possession at all times, stating that it is “a matter of medical necessity and [required] for his personal security and quality of life.” (Id. at 23; see also Id. at 3.)

On or around December 14, 2013, Plaintiff reached out to the First Deputy Superintendent and Acting Superintendent regarding his hearing aids. (See Id. at 3; id. at 22.) Several days later, on December 24, 2013, Plaintiff received confirmation that “a notice of addressment for hearing aids” was received, and then forwarded to “Dr. Malvarosa, Facility Health Services Director.” (Id. at 22.)

On April 2, 2015, Plaintiff filed a grievance “based upon the hearing aids.” (Id. at 3.) The following day, the grievance was returned to Plaintiff. (Id. at 24.)

On April 12, 2015, Plaintiff wrote to Superintendent Michael Capra (“Capra”), requesting that Plaintiff's January and February 2015 disciplinary hearings be overturned because Plaintiff's hearing aids were malfunctioning. (Id. at 25.) Two weeks later on April 28, 2015, Capra denied Plaintiff's request, saying that an [i]nvestigation shows that [his] hearing aids were working.” (Id.)[6]

On November 24 and 25, 2015, Plaintiff was seen by medical staff at his Sing Sing correctional facility. (Id. at 28.) Per a letter from Susanna Nayshuler (“Nayshuler”), Regional Health Services Administrator, in March 2016, Plaintiff was concerned about his hearing at the time of these November 2015 visits. (See id.) Nayshuler wrote that the Sing Sing medical staff had already addressed Plaintiff's concerns and claimed that an audiology specialist described Plaintiff's hearing loss as “non-significant.” (Id.)

On March 4, 2016, the Regional Health Services Administrator “provided a notice of an investigation without medical confirmation of [P]laintiff's medical status.” (Id. at 5.)

On April 18, 2016, Plaintiff was issued another misbehavior report. (See Id. at 32.)[7] Plaintiff avers that on May 2, 2016, “a grievance determination was issued [following] a hearing investigation” and held Plaintiff at fault. (Id. at 5.)[8] Additionally, Plaintiff alleges that there was a “follow up” scheduled soon thereafter. (Id.) On May 10, 2016, Plaintiff's grievance appeal was deemed “not an appealable decision.” (Id. at 31.)

On June 13, 2016, the Legal Aid Society wrote to the Ombudsperson for the Office of Counsel at DOCCS, Nancy Heywood (“Heywood”), on Plaintiff's behalf regarding his inability to hear and its supposed connection to his misconduct. (See Id. at 26.) Heywood responded to this correspondence on August 25, 2016. (See id.)[9]

On November 3, 2016, a misbehavior report detailing Plaintiff's misconduct was issued, (see Id. at 27 (noting Plaintiff's misbehavior on November 3, 2016, at approximately 7:53 a.m.)), though Plaintiff avers that the behavior at issue, namely his “refusal of a direct order, ” was solely the result of his “inability to properly hear” rather than intentional non-compliance, (id. at 5).

On December 5, 2016, Plaintiff filed a grievance in which he stated that he was told by medical personnel that he was placed on “a waiting list for his hearing aids, because they were not repaired yet, ” (id.), but that he keeps getting tickets because his hearing aids have not been repaired, (id. at 30). Plaintiff alleges that two weeks later, on December 19, 2016, “the facility medical staff refused to have the hearing aids repaired, which [a]ffects [Plaintiff's] ability to hear and follow orders of staff.” (Id. at 5.)

On December 19, 2016, Plaintiff also received another letter from the Legal Aid Society discussing its aforementioned correspondence with Heywood and requesting further information regarding his inability to obtain new hearing aids, including when he last contacted medical personnel, their response, and the nature of the tickets he has received due to his disability-related conduct. (Id. at 26.) No discussion of Plaintiff's response to this letter is detailed among the materials submitted.

On January 18, 2017, “a hearing notice was provided to plaintiff from Albany Central Office for new hearing aids.” (Id. at 5.) On the same day, the Central Office Review Committee (“CORC”) of the Inmate Grievance Program (“IGP”) received Plaintiff's appeal. (See Id. at 33.)

On January 27, 2017, Plaintiff's December 5, 2016, grievance (Grievance No. SS-57297-16), was denied by the Superintendent, stating that [i]nvestigation reveals grievant was seen 12/20/16 by the audiologist, after which the audiologist advised grievant's primary care provider he has no hearing loss.” (Id. at 30.) Four days later, on February 1, 2017, Plaintiff then filed an appeal seeking a second opinion and alleging that “Dr. Serhan is telling [him] one thing and doing another]” insofar as telling him his hearing aids will be replaced but then suggesting that he does not have hearing loss.” (Id.) This appeal was received by the CORC on March 3, 2017. (See Id. at 36.)

At an undetermined time in early 2017, Plaintiff once again reached out to the Legal Aid Society regarding his hearing aids and treatment at Sing Sing. (See Id. at 29.)[10] In response, the Legal Aid Society wrote to Sing Sing on Plaintiff's behalf on February 16, 2017. (See id.)[11] The following month, on March 13, 2017, the Legal Aid Society wrote Heywood once more. (See id.) In this second correspondence, the Legal Aid Society notes that Plaintiff stated he “saw Dr.

Serhan at Sing Sing Correctional Facility in December 2016 and January 2017 to have his hearing aids repaired, but they still have not been repaired, ” notwithstanding filing several grievances and contacting medical staff since the February 16, 2017, letter. (Id.)[12]

On September 7, 2017, Karen Bellamy, an IGP Director, issued a memorandum to Plaintiff advising him that his appeal of Grievance No. SS-56508-16 was received in January of 2017, as noted above. (Id. at 33.) Ultimately, Plaintiff's December 5, 2016, grievance was reviewed by CORC in late 2017. (Id. at 32.) Following a hearing on October 25, 2017, CORC “accepted in part” the actions Plaintiff requested. (Id.) Specifically, CORC

noted that [Plaintiff] was seen by his provider 9 times between 3/2/16 and 10/5/17 for various issues, including his hearing aids. In addition, he was seen by the audiologist on 12/20/16, who determined that no follow up was needed at that time, however, he is scheduled for a follow up appointment in the near future. CORC has not been presented with evidence of improper medical misbehavior or malfeasance by staff. CORC notes that the grievant did not appeal his 4/18/16 Tier II misbehavior report and advises him that he is solely responsible for his actions while in the Department's custody.


On January 16, 2018, Shelley Mallozzi, another IGP Director issued a second memorandum to Plaintiff advising him that his appeal of Grievance No. SS-57297-16, was received by the CORC. (See Id. at 36; see also...

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