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finding no excessive force where a guard struck the plaintiff in the face two or three times
Summary of this case from Dixon v. Downstate Corr. FacilityOpinion
00 Civ. 2242 (AJP)
May 8, 2001
OPINION AND ORDER
Pro se plaintiff Cesar Espinal brings this action under 42 U.S.C. § 1983 and the Eighth Amendment alleging that on the night of May 18-19, 1998, (1) officials at Green Haven Correctional Facility, acting together in a conspiracy, were deliberately indifferent to his medical needs in connection with his treatment for kidney stones, and (2) Sergeant Tokarz used excessive force against him.
Defendants have moved for summary judgment, arguing that: (1) Espinal cannot demonstrate physical injury as mandated by 42 U.S.C. § 1997e(e), enacted as part of the Prison Litigation Reform Act ("PLRA") (Dkt. No. 38: Defs. Br. at 14-17); (2) Espinals claims fail to demonstrate sufficient personal involvement by defendants Dr. Norman H. Selwin and James Lagoy (id. at 8-10); (3) Espinal's claims fail to set forth genuine issues of material fact demonstrating any Eighth Amendment violations by any of the defendants (id. at 10-14); (4) Espinal has failed to state a claim for conspiracy under § 1983 (id. at 17-19); and (5) defendants are entitled to qualified immunity (id. at 21-23).
The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636 (c). (Dkt. No. 18.)
For the reasons set forth below, defendants' motion for summary judgment is: (1) GRANTED on Espinal's excessive force claim; (2) GRANTED in favor of defendants Lagoy and Selwin on the ground that Espinal has failed to allege any personal involvement by them in the alleged constitutional violations; and (3) DENIED as to Espinal's claim that defendants Bodzak, Forgit, Rodas and Tokarz were deliberately indifferent to his serious medical needs; and (4) DENIED as to Espinal's conspiracy claim against defendants Bodzak, Forgit, Rodas and Tokarz.
On August 8, 2000, the court had dismissed Espinal's claims against defendants Goord, Artuz, Zwillinger and Bernardi for lack of their personal involvement. See Dkt. No. 24: 8/8/00 Conf. Tr. at 13-15.)
FACTS
BackgroundEspinal is a prison inmate in the custody of the Department of Correctional Services ("DOCS"), serving a sentence for, inter alia, felony murder. (Dkt. No. 34: Defs. 56.1 Stmt. ¶ 1; A.A.G. Maria Filipakis Aff. Ex. A: Espinal Dep. at 4-5.) The events Espinal complains of occurred on the night of May 18-19, 1998 while Espinal was incarcerated at Green Haven Correctional Facility. (See generally Defs. 56.1 Stmt. ¶ 2; Espinal Dep.; Dkt. No. 43: Espinal Aff.) At the time, all the defendants were employed by DOCS at Green Haven: Jacqueline A. Bodzak and Lynn Forgit as Registered Nurses, Byron H. Rodas as a Physician's Assistant, Mark A. Tokarz as a Sergeant, James Lagoy as Inmate Grievance Coordinator, and Dr. Norman H. Selwin as Acting Medical Director. (See Defs. 56.1 stmt. ¶¶ 6-11; Bodzak Aff. ¶¶ 2-3; Forgit Aff. ¶¶ 2-5; Rodas Aff. ¶¶ 1-2; Tokarz Aff. ¶¶ 1-2; Lagoy Aff. ¶¶ 1-2; Selwin Aff. ¶¶ 1-2.)
Events of May 17-19, 1998
On May 17, 1998, at approximately ¶ 6:40 p.m., Espinal complained of an upset stomach and vomiting. (Defs. 56.1 stmt. ¶ 12; 5/17/98 Medical Record ("Med. Rec.") at E76; Bodzak Aff. ¶ 6; Espinal Dep. at 13; Espinal Aff. ¶ 6.) Nurse Jackie Bodzak gave Espinal water and Maalox. (Id.)
Espinal's medical records are attached as Exhibit B to the Affidavit of Dr. David S. Goldfarb.
On May 18, 1998 at 10:40 p.m., Espinal experienced severe pain in the "lower left side of his stomach." (Defs. 56.1 stmt. ¶ 13; 5/18/98 Med. Rec. at E76; Forgit Aff. ¶ 7; Bodzak Aff. ¶ 7; Espinal Dep. at 12-14; Espinal Aff. ¶ 7.) Espinal was brought on a stretcher to the clinic emergency room at Green Haven. (Id.)
At the emergency room, Espinal told Nurse Bodzak and Nurse Lynn Forgit that he was "in pain." (Espinal Dep. at 11.) Espinal testified that he was "sweating" and "crying" (Espinal Dep. at 11), and his medical records contain the notation "pupils dilated, sclera red, I/M crying" (5/18/98 Med. Rec. at E76). According to Espinal, Nurses Bodzak and Forgit reviewed his medical file and told him that "it could have been kidney stones" and that they had to get in touch with the Physician's Assistant. (Espinal Dep. at 11, 16-17; Espinal Aff. ¶ 8, 10.)
Nurses Bodzak and Forgit gave Espinal water and requested a urine sample from him. (Defs. 56.1 stmt. ¶ 14; Bodzak Aff. ¶¶ 8-9; Forgit Aff. ¶¶ 8-9; Espinal Dep. at 17-18; Espinal Aff. ¶ 9.) Espinal told them that he was unable to urinate because of the pain. (Espinal Aff. ¶ 9; Defs. 56.1 stmt. ¶ 14; Espinal Dep. at 18; Bodzak Aff. ¶ 8; Forgit Aff. ¶ 8; 5/18/98 Med. Rec. at E76 ("when urine sample req., I/M states, `I can't piss'").) Nurses Bodzak and Forgit paged Physician's Assistant Byron Rodas to the emergency room. (Defs. 56.1 stmt. ¶ 15; Bodzak Aff. ¶ 10; Forgit Aff. ¶ 10; Espinal Dep. at 18; Espinal Aff. ¶ 10; 5/18/98 Med. Rec. at E76.)
According to Espinal, Nurses Bodzak and Forgit continued to give him water but he remained unable to provide a urine sample. (Espinal Dep. at 17-18.) They accused Espinal of having drugs in his system and told him that if he didn't "give up the drugs, or urinate, they were going to get the sergeant." (Id.; Espinal Aff. ¶ 11.) Espinal told them that he could not urinate, yet they continued to make him drink. (Espinal Dep. at 17-18.) Espinal "started throwing up really bad. And the pain even got worse. . . . It felt like somebody was hitting me with a hammer or something inside and squeezing me so my body after awhile just — was just laying numb after I was there for a little while." (Id. at 21-22.) Finally, Espinal was able to produce a small amount of urine. (Id. at 24; Espinal Aff. ¶ 15.)
At around midnight, P.A. Rodas arrived, along with Sergeant Mark A. Tokarz and a new nurse, Nurse Tardio. (Espinal Dep. at 22-23; Espinal Aff. ¶ 16.) According to Espinal, Nurse Tardio, after seeing the condition Espinal was in, told "the other nurses that [Espinal] was sick" and needed further treatment. (Espinal Dep. at 24-25; Espinal Aff. ¶ 17.) Sgt. Tokarz then "took hold of [Nurse Tardio] and he pushed — he was pushing her towards the back. Like shutting her up. And he brought her to the back of the room and they started arguing back there." (Espinal Dep. at 25, 32-33; Espinal Aff. ¶ 17.) According to Espinal, Nurse Forgit said she was not going to mark in Espinal's urine sample, and instead said she was going to "forge" Espinal's medical records "if everybody's willing to do it." (Espinal Dep. at 25, 29; Espinal Aff. ¶ 19.)
Defendants' papers contain no reference to Nurse Tardio, and assert that a Nurse Priscilla Watts found blood in Espinal's urine and called the paramedics to take him to the hospital. See, e.g., Defs. 56.1 stmt. ¶¶ 26-27; Rodas Aff. ¶ 12.)
Espinal testified:
[P.A. Rodas] came up to me and he told me to move a certain way. I was on the stretcher and he told me to move a certain way. I couldn't move my body at all. . . . [H]e told me to move to my right, or to the left. I forgot which side. I couldn't move at all. I was just shaking after that. . . . [P.A. Rodas] told me, "Why are you refusing?" And he told everybody in the room that I was refusing. That if everybody was willing to put that on paper to back him down, or whatever he was going to discharge me out of there. And that's when like I said the nurse [Tardio] came back in and she tried to like don't discharge him out of here. Bring him to the hospital.
(Espinal Dep. at 26.) Espinal denies refusing medical treatment. (Espinal Dep. at 26-27.) To the contrary, he claims that "he was crying for" treatment, but that "Rodas kept saying that I was — that I didn't want no treatment." (Id.) Espinal testified:
Q. It was P.A. Rodas who suggested that you refused treatment?
A. Yes . . .
Q. And that everyone sign?
A. And everybody conspire. After that he was speaking with Lynn Forgit, and Lynn Forgit was really like trying to put stuff in to make like if he, you know refused treatment I will take care of the paper work. And that's when he came up to me to ask me to move this way. And I couldn't move any way. And he is like, "Are you refusing treatment?" And I said, "No. I was not refusing treatment." And that's when the stuff happened.
Q. Whose idea was it that said you were refusing treatment?
A. Lynn Forgit and P.A. Rodas. Everybody was going along with them too.
Q. Everyone?
A. Except [Nurse] Tardio. She was in the back room already.
(Espinal Dep. at 27-28.)
Nurses Bodzak and Forgit filled out a Form 3195 Refusal of Treatment form, which Espinal refused to sign. (Defs. 56.1 stmt. ¶ 18; Rodas Aff. ¶ 9; Bodzak Aff. ¶ 12; Forgit Aff. ¶ 12; Espinal Dep. at 30; 5/18/98 Refusal of Medical Examination and/or Treatment Form ("Refusal Form"), attached at E249 to Forgit Aff.) The Refusal Form indicates that Bodzak, Forgit, Tokarz and Rodas and two correction officers were witnesses to the refusal, but all of the signatures appear to be in the same handwriting. (See E249, Refusal Form.) According to Espinal, he refused to sign the form "because [he] wanted the treatment. [He] wanted to be treated and [he] didn't want to leave." (Espinal Dep. at 31.) Espinal testified that he was "begging them for treatment." (Id. at 35.)
In contrast, P.A. Rodas asserted that:
While I was in the emergency room, plaintiff became agitated and vocal and refused to be examined. He contended that he was unable to urinate and demanded that he be returned to his cell. Accordingly, I was unable to examine plaintiff. This was the last contact I had with plaintiff. RN Forgit and RN Bodzak wrote up a Refusal of Medical Examination and/or Treatment Form which names me as a witness.
(Rodas Aff. ¶ 9; see also Bodzak Aff. ¶ 11; Forgit Aff. ¶ 11.)
Sometime between midnight and around 1:00 a.m., Sgt. Tokarz, and two other officers brought Espinal on a stretcher back to the H-block. (Espinal Dep. at 35-36, 40-41; Espinal Aff. ¶ 20.) Espinal describes what happened when he returned to the block as follows:
I went to the H block. And they put me in front of the bubble where the supplies is at. And at that time there was a lot of chaos on the block because a lot of people had emergency calls. There was a lot of things going on and I didn't want to go back into the block. So when they came and pushed me inside and everybody seen how bad I was. I was still in the stretcher, and it even got more crazy in there. Everybody started making noise and I started calling people out that I knew to let them know that there was something wrong. That I was still in pain and these people are trying to kill me. That's what I kept saying. I got in contact with one guy. This spanish guy that I knew. He was from my country. And I told him what happened and that's when the sergeant [Tokarz] pulled me out. Put me in the hallway. Like I said, after that my mind was out and I kept screaming. I was not screaming. I was talking to them that I wanted treatment. I want treatment. And at that time [Sgt. Tokarz] struck me a couple of times.
(Espinal Dep. at 36-37; see Espinal Aff. ¶ 20 (Tokarz "punch[ed] [Espinal] in the head and face").) Later in his deposition, Espinal provided the following description of the incident:
[T]he block just went crazy, . . . everybody started screaming and shaking and the bars and saying, you all they are trying to kill him. [Sgt. Tokarz] finally pulls me out. He closes the door, and he was like, "What's wrong with you. Why are you going crazy for. I told you, and the PA told you to do something and you didn't do it and he discharged you. There is nothing wrong with you." And I kept telling him there is something wrong with me. There is something wrong with me. I got a lot of pain. And that's when it went back and forth. After that we were screaming at each other. Then he hit me a couple of times in the face. That was to calm me down he told me. And I told him that doesn't hurt. These kidney stones hurt more than that. Get me to the clinic.
(Espinal Dep. at 41; see also id. at 43-44.)
Espinal testified that Sgt. Tokarz struck him "two to three times" in the face but "it was really nothing" and the pain "wasn't really nothing." (Espinal Dep. at 45.) When asked if he suffered any injuries as a result, Espinal testified only that his face was "red." (Id. at 46.)
There is no evidence that Espinal sought any medical attention as a result of Sgt. Tokarz allegedly hitting him in the face. Sgt. Tokarz denies striking Espinal. (Tokarz Aff. ¶ 4: "I never harassed, threatened or assaulted plaintiff.").
Sgt. Tokarz took Espinal back to the clinic, where Espinal was placed in the segregation or "drug watch" room and told to disrobe and urinate. (Espinal Dep. at 46-47; Espinal Aff. ¶ 21.) According to Espinal, Sgt. Tokarz (and other officers) "put me inside the room, took all my clothes off, except my underwear, and they searched my stuff. They searched me. And in the room there was just a mattress in the floor and I just laid on the mattress." (Espinal Dep. at 47.) Sgt. Tokarz told Espinal "to give up the drugs in there. That's why you were in this room." (Id. at 52; see also Espinal Aff. ¶ 21.) When asked if Sgt. Tokarz and the officers would have any reason to ask Espinal to give up drugs, Espinal responded "I guess the urine. I couldn't take the urine test. So they figured I had some type of drugs on me . . . .(Espinal Dep. at 52.)
Nurse Tardio entered the room and told Espinal that "if you can urinate inside of this cup and I will take a sample. And if I see some type of blood in there I'm going to call the ambulance. . . .(Espinal Dep. at 51.) Unable to "urinate standing up" Espinal "had to bend down like a lady and that is when [he] could give them a [urine] sample. (Id.) Espinal gave the sample to Nurse Tardio who told Espinal, "I knew there was something wrong with you. There was a lot of blood inside the urine." (Id. at 52; Espinal Aff. ¶ 22.) Espinal left in an ambulance for St. Francis Hospital at approximately 2:30 a.m., arrived there shortly after 3:00 a.m., was admitted shortly after 9:00 a.m., and was diagnosed with a stone obstructing the left ureter. (See e.g. Defs. 56.1 stmt. ¶ 28; 5/18/98 Med. Rec. at E75; St. Francis Admit Form, at [190; Espinal Aff. ¶¶ 23-25; Espinal Dep. at 53-56.) Espinal underwent surgery to remove the kidney stones and was released from the hospital approximately five to seven days later. (Espinal Dep. at 56-60; Espinal Aff. ¶ 25.)
Espinal has no residual effects from the kidney stone. (Defs. 56.1 stmt. ¶ 32; Goldfarb Aff. ¶¶ 14-15; Espinal Dep. at 64-65, 81-82.) In addition, he has no complaints regarding the treatment he received once at the hospital or the medical treatment he received in relation to his kidney stones upon his return from St. Francis Hospital to Green Haven.
Grievance History
In an inmate grievance complaint dated May 28, 1998 and stamped "received" on June 2, 1998, Espinal stated that he was in "severe pain" and "left in the emergency room for three — four hours." (5/26/98 Inmate Grievance Compl. attached to Lagoy Aff. at E244-45; Defs. 56.1 stmt. ¶ 35; Espinal Aff. ¶¶ 27-28; Espinal Dep. at 70-71; Lagoy Aff. ¶ 6.) Espinal also alleged that he was "harass[ed] and threaten[ed] and then assaulted by the security staff" at Green Haven. (5/26/98 Inmate Grievance Compl.; see also Lagoy Aff. ¶ 6.)
On October 2, 1998, Espinal's grievance was denied by Superintendent Christopher Artuz. (10/2/98 Disp., attached to Lagoy Aff. at [246; Defs. 56.1 stmt. ¶ 36; Espinal Aff. ¶ 29; Espinal Dep. at 71-72.) Supt. Artuz found that Espinal's allegations were unsubstantiated and that Espinal was provided with appropriate medical care. (Id.)
The disposition reads as follows:
This inmate grievance complaint alleging harassment and being assaulted by staff has been investigated. Grievant was interviewed and statements obtained. It is apparent that grievants behavior and demeanor was the problem, not the conduct of staff who acted appropriately and deny assaulting grievant.
Appropriate medical care was provided to grievant and will continue to be provided as determined to be necessary. There is no evidence to substantiate any of grievant's allegations in the instant complaint.
(10/2/98 Disp., attached to Lagoy Aff. at E246.)
By appeal dated October 9, 1998 and stamped "received" on November 3, 1998, Espinal appealed to the Central Office Review Committee ("CORC"), alleging that an improper investigation was conducted. (Espinal 10/9/98 Appeal, attached to Lagoy Aff. at E243 attached to Espinal Aff. at A-38; Defs. 56.1 stmt. ¶ 37; Lagoy Aff. ¶ 8; Espinal Aff. ¶ 30; Espinal Dep. at 72.)
On November 18, 1998, CORC denied Espinal's appeal. (11/18/98 CORC Disp., attached to Lagoy Aff. at E242; Defs. 56.1 stmt. ¶ 38; Lagoy Aff. ¶ 9; Espinal Aff. ¶ 31.) By letter dated January 28, 1999, Espinal advised the director of the inmate grievance program that he had not received a copy of the disposition of his appeal. (1/28/99 Espinal Letter to Eagen, attached to Espinal Aff. at A-41; Espinal Aff. ¶ 32.) The next day, Espinal received a faxed copy of the CORC disposition. (1/29/99 Letter from Lagoy, attached to Espinal Aff. at A-40 to Lagoy Aff. at E269; Espinal Aff. ¶ 33; Espinal Dep. at 72-73.)
ANALYSIS
I. GOVERNING LEGAL STANDARDS
A. Summary Judgment Standards
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also e.g. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986);Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
See also, e.g., Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *5 (S.D.N Y Apr. 23, 2001) (Peck, M.J.); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *4 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *4 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 534 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 817 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994);Gallow v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 25525-53.
See also, e.g. Fulmore v. Mamis, 2001 WL417119 at *5; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *4; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *3; Salahuddin v. Coughlin, 999 F. Supp. at 534;Watson v. McGinnis, 981 F. Supp. at 817; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997) (Peck, M.J.).
Accord, e.g. Fulmore v. Mamis, 2001 WL 417119 at *5; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *4; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356).
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534.
See also, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513). The Court draws all inferences in favor of the non-moving party — here, Espinal — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party, summary judgment is improper." Chambers v. IBM, 43 F.3d at 37.
See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Fulmore v. Mamis, 2001 WL 417119 at *6;Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818.
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818.
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818.
In considering a motion for summary judgment, the Cgurt is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact See e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987)). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,][f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky 1997 WL 137448 at *3.
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *4; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997WL 137448 at *3.
"The Court recognizes that it must `extend extra consideration' to pro se plaintiffs" such as Espinal and that "pro se parties are `to be given "special latitude on summary judgment motions.'" Salahuddin v. Coughlin, 999 F. Supp. at 535 (citing cases). "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment."Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5; Watson v. McGinnis, 981 F. Supp. at 818; see also e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest'").
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord, 2000 WL 760751 at *5.
B. § 1983 and the Eighth Amendment
To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983;West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749 (1994).
See also, e.g., Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *7 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *6 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *4 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Ali v. Szabo, 81 F. Supp.2d 447, 453 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.).
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *5.
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials and conduct that offends "evolving standards of decency." E.g., Hudson v. McMillian, 503 U.S. 1, 5, 8, 112 S.Ct. 995, 998, 1000 (1992); Wilson v. Seiter, 501 U.S. 294, 297, 308, 111 S. Ct. 2321, 2323, 2329 (1991); Estelle v. Gamble, 429 U.S. 97, 102, 104-05, 97 S.Ct. 285, 290, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925 (1976).
See also e.g., Fulmore v. Mamis, 2001 WL 417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *5.
1. Excessive Force Claims Under the Eighth Amendment
The appropriate judicial inquiry in a prison excessive force case has been clearly articulated by the Supreme Court:
[W]e hold that whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley [v. Albers]: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 999 (1992).
Accord, e.g., Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996); Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994); Malloy v. DeFrank, 95 Civ. 9122, 1996 WL 631725 at *3 (S.D.N.Y. Oct. 31, 1996) (Peck, M.J.).
"The Supreme Court has discerned that an Eighth Amendment claim comprises both an objective and subjective component. . . . Objectively, the plaintiff must establish that the deprivation alleged is `sufficiently serious,' or `harmful enough,' to reach constitutional dimensions. . . . The subjective element of an Eighth Amendment claim plunges us into the state of mind of the defendant. . . . Specifically, the jury must be persuaded that the defendant acted wantonly. . . . Whenever an inmate's Eighth Amendment claim alleges excessive force, wantonness turns upon "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Romano v. Howarth, 998 F.2d 101, 104-05 (2d Cir. 1993).
See also e.g., Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000);Branham v. Meachum, 77 F.3d at 630; Davidson v. Flynn, 32 F.3d at 29-30;Malloy v. DeFrank, 1996 WL 631725 at *3.
To determine whether a prison official's use of force was unconstitutionally excessive, the Court should "evaluate the need for application of force, the relationship between that need and the amount of force used, the threat "reasonably perceived by the responsible officials,' and `any efforts made to temper the severity of a forceful response,'" as well as "the extent of injury suffered by an inmate."Hudson v. McMillian, 503 U.S. at 7, 112 S.Ct. at 999.
Accord, e.g., Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 1085 (1986); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462 (1973); see also, e.g., Davidson v. Flynn, 32 F.3d at 30; Romano v. Howarth, 998 F.2d at 105; Malloy v. DeFrank, 1996 WL 631725 at *4.
The Supreme Court has determined that a "significant injury" is not required for there to be an Eighth Amendment excessive force violation.Hudson v. McMillian, 503 U.S. at 7, 112 S.Ct. at 999. "[T]he extent of injury suffered by an inmate is one factor that may suggest `whether the use of force could plausibly have been thought necessary' in a particular situation, `or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.'" Id. "The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it." Id.
As the Supreme Court explained:
In the excessive force context, society's expectations are different [than in medical indifference cases]. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. . . . This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today. Id. at 9, 112 S.Ct. at 1000.
On the other hand, the Supreme Court also has made clear that de minimis use of physical force does not constitute an Eighth Amendment violation:
That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of "cruel and unusual" punishments necessarily excludes from constitutional recognition
de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.'"Hudson v. McMillian, 503 U.S. at 9-10, 112 S.Ct. at 1000 (citations omitted emphasis added). As Judge Friendly similarly pointed out inJohnson v. Glick:
[T]he constitutional protection [of the Eighth Amendment] is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it . Although "the least touching of another in anger is a battery," . . . it is not a violation of a constitutional right actionable under 42 U.S.C. § 1983. The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.Johnson v. Glick, 481 F.2d at 1033 (emphasis added, citation omitted).
Accord, e.g., Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872 (1989); Sims v. Artuz, 230 F.3d at 22; Lennon v. Miller, 66 F.3d 416, 425-26 (2d Cir. 1995); Romano v. Howarth, 998 F.2d at 105; Malloy v. DeFrank, 1996 WL 631725 at *4.
2. Deliberate Indifference to Serious Medical Needs
To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs. See, e.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291 (1976).
Accord e.g., Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *7 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.);Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *6 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *6 (S.D.N.Y. June 13, 2000) (Peck, M.J.).
As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108 (1995). "Objectively, the alleged deprivation must be "sufficiently serious.'" Id. Eighth Amendment protection extends to "`a condition of urgency' that may result in `degeneration' or `extreme pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); accord, e.g., Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("A serious medical condition exists where "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'") Moreover, deliberate indifference to future as well as present health problems may be actionable under the Eighth Amendment. See, e.g., Helling v. McKinney, 509 U.S. 25, 33-35 113 S.Ct. 2475, 2480-82 (1993) (holding that exposure to unreasonably high levels of second hand smoke is sufficient to support the objective component of an Eighth Amendment claim).
See also, e.g., Fulmore v. Mamis, 2001 WL 417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *6.
See also, e.g., Fulmore v. Mamis, 2001 WL417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *5.
Accord, e.g., Warren v. Keane 196 F.3d 330, 332-33 (2d Cir. 1999); Freeman v. Strack, 2000 WL 1459782 at *5; Culp v. Koenigsman, 2000 WL 995495 at *6; Baumann v. Walsh, 36 F. Supp.2d 508, 510 (N.D.N.Y. 1999); Petrazzoulo v. United States Marshals Service, 999 F. Supp. 401, 407 (W.D.N.Y. 1998).
"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553. "The required state of mind, equivalent to criminal recklessness, is that the official "`knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d at 553 (quotingFarmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994))).
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *6; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *6.
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *6; Culp v. Koenigsmann, 2000 WL 995495 at *6; Carbonell v. Goord, 2000 WL 760751 at *6; see also, e.g., LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998) ("To succeed in showing deliberate indifference, [plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger.").
Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291; accord, e.g., Kaminsky v. Rosenblum, 929 F.2d 922, 926 (2d Cir. 1991) ("Cruel and unusual punishment may consist of prison officials delaying an inmate access to needed medical care."). However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble, 429 U.S. at 105-06, 97 S.Ct. at 292; accord, e.g., Burton v. New York State Dep't of Corrections, 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. March 2, 1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292. As the Supreme Court has stated, "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292.
See e.g., Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994) (delay for more than two years in removing broken pins from prisoner's hip despite nearly fifty complaints of pain), cert. denied, 513 U.S. 1154, 115S.Ct. 1108 (1995); Liscio v. Warren, 901 F.2d 274, 277 (2d Cir. 1990) (failure to provide medical attention to a delirious inmate for three days); Archer v. Dutcher, 733 F.2d 14, 15-17 (2d Cir. 1984) (denying summary judgment where plaintiff "identifie[d] intentional efforts on the part of defendants to delay her access to medical care at a time when she was in extreme pain"); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974); see also, e.g., Fulmore v. Mamis, 2001 WL 417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *6.
Accord, e.g., Hathaway v. Coughlin, 99 F.3d at 553; Fulmore v. Mamis, 2001 WL 417119 at *7. Freeman v. Strack, 2000 WL 1459782 at *6; Carbonell v. Goord, 2000 WL 760751 at *9 n. 20; Felipe v. New York State Dep't of Correctional Servs., No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. Apr. 10, 1998) (Pooler, D.J.).
Accord, e.g., Hathaway v. Coughlin, 99 F.3d at 553; Burton v. New York State Dep't of Corrections, 1994 WL 97164 at *2. see e.g., Hathaway v. Coughlin, 37 F.3d at 70 (Jacobs, C.J., dissenting) ("`We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors.'"); Fulmore v. Mamis, 2001 WL 417119 at *7; Freeman v. Strack, 2000 WL 1459782 at *6; Culp v. Koenigsmann, 2000 WL 995495 at *7 ("Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim."); see also, e.g., Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y. Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim"); Brown v. Selwin, 98 Civ. 3008, 1999 WL 756404 at *6 (S.D.N.Y. Sept. 24, 1999) (citing cases); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777 at *6 (S.D.N.Y. Aug. 11, 1999); Espinal v. Coughlin, 98 Civ. 2579, 1999 WL 387435 at *3 (S.D.N.Y. June 14, 1999).
Furthermore, a delay in medical treatment does not necessarily invoke the
Eighth Amendment:
Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, this Court has reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a "life-threatening and fast-degenerating" condition for three days; or delayed major surgery for over two years. No such circumstances are present here. At no point was [plaintiff's] condition "fast degenerating" or "life threatening," and there is no indication that [defendant] delayed treatment in order to punish him. Moreover, any delay in treatment in this case does not rise to the egregious level identified in Hathaway. That [plaintiff] feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim.Demata v. New York State Correctional Dep't of Health Servs., No. 99-0066, 198 F.3d 233 (table), 1999 WL 753142 at *2 (2d Cir. Sept. 17, 1999) (citations omitted) (summary judgment for defendants where plaintiff complained of knee injury in February 1994 and surgery not performed until March 1997).
Accord, e.g., Fulmore v. Mamis, 2001 WL 417119 at *8; Freeman v. Strack, 2000 WL 1459782 at *6 (no Eighth Amendment claim against nurse who scheduled inmate with appendicitis requiring appendectomy for appointment two hours later rather than seeing inmate immediately where "[t]here was nothing in [the inmate]'s medical history which would have put [the nurse] on notice that [plaintiff] was suffering from the onset of appendicitis . . . and there is no evidence that [the officer] gave [the nurse] any reason to believe that there was an emergency on hand"); Culp v. Koenigsmann, 2000 WL 995495 at *7-8 (rejecting claim based on fact that one doctor recommended arthroscopic surgery for knee injury in April 1999, while another doctor concluded that surgery was not warranted until more conservative measures like physical therapy had been tried and failed).
C. Conspiracy Under § 1983
"To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
Accord, e.g., Sundwall v. Leuba, No. Civ. A. 300CV1309, 2001 WL 58834 at *8 (D. Conn. Jan. 23, 2001); Cipolla v. County of Rensselaer, 129 F. Supp.2d 436, 449 (N.D.N.Y. 2001); Santiago v. City of New York, 98 Civ. 6543, 2000 WL 1532950 at *8 (S.D.N.Y. Oct. 17, 2000).
D. Supervisory Liability for § 1983 Claims
"It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); accord, e.g., Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").
See also, e.g., Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *8 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.) ( cases cited therein); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *7 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *6 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Ali v. Szabo, 81 F. Supp.2d 447, 462 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.).
"The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or(S) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring."Colon v. Coughlin, 58 F.3d at 873. E. Qualified Immunity
Accord, e.g., Wright v. Smith, 21 F.3d at 501;Fulmore v. Mamis, 2001 WL 417119 at *8 ( cases cited therein); Freeman v. Strack, 2000 WL 1459782 at *7;Carbonell v. Goord, 2000 WL 760751 at *7; Zamakshari v. Dvoskin, 899 F. Supp. at 1109.
As the Second Circuit has explained, government actors are entitled to qualified immunity from liability for civil damages when they perform discretionary functions "if either (1) their conduct `did not violate clearly established rights of which a reasonable person would have known,' or (2) `it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.'" Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998); accord, e.g., Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir. 2000). "The eavailability of the defense depends on whether a reasonable [official] could have believed his action to be lawful, in light of clearly established law and the information [he] possessed." Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (internal quotation marks omitted).
See also, e.g., Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *7 (S.D.N Y Sept. 29, 2000) (Peck, M.J.) ( cases cited therein); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *8 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *7 n. 16 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 536-37 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.).
See also, e.g., Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987); Martinez v. Simonetti, 202 F.3d at 634; Freeman v. Strack, 2000 WL 1459782 at *7; Culp v. Koenigsmann, 2000 WL 995495 at *8; Carbonell v. Goord, 2000 WL 760751 at *7.
Defendants here appropriately do not dispute that it was clearly established that a prison official's deliberate indifference to an inmate's serious medical needs or use of excessive force would violate the Eighth Amendment. (See Dkt. No. 36: Defs. Br. at 21-23; see also cases cited at pages 15-18 above.) See also, e.g., Smith v. Greifinger, No. 99-0042, 208 F.3d 203 (table), 2000 WL 288362 at *3 (2d Cir. Mar. 17, 2000) (inmate's right to be free from deliberate indifference to his serious medical needs is clearly established) (citing LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 (1976))); Wright v. Dee, 54 F. Supp.2d 199, 203 (S.D.N.Y. 1999) (inmate's Eighth Amendment right to be free from excessive force clearly established); Duncan v. Keane, 95 Civ. 1090, 1995 WL 649931 at *5 (S.D.N.Y. Nov. 6, 1995) (same); Hynes v. Laboy, 887 F. Supp. 618, 632 (S.D.N.Y. 1995) (same). Rather, defendants argue that they are protected under the second prong of the qualified immunity test, i.e., that it was reasonable for them to take the actions they did with respect to Espinal. (Defs. Br. at 21-23.)
"The objective reasonableness test is met — and the defendant[s] [are] entitled to immunity — if `officers of reasonable competence could disagree' on the legality of the defendant[s'] actions." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). However, defendants are entitled to summary judgment on qualified immunity grounds only if, viewing the evidence in the light most favorable to and drawing all reasonable inferences in favor of the plaintiff, no rational jury could conclude that it was objectively unreasonable for defendants to believe that their actions did not violate a clearly established right See e.g., Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996); Lennon v. Miller, 66 F.3d at 420-21. "In other words, if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon v. Miller, 66 F.3d at 420.
Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *8; Culp v. Koenigsmann, 2000 WL 995495 at *8;Carbonell v. Goord, 2000 WL 760751 at *7.
See also, e.g., Freeman v. Strack, 2000 WL 1459782 at *8; Culp. Koenigsmann, 2000 WL 995495 at *8;Carbonell v. Goord, 2000 WL 760751 at *7.
Accord, e.g., Freeman v. Strack, 2000 WL 1459782 at *8; Culp v. Koenigsmann, 2000 WL 995495 at *8;Carbonell v. Goord, 2000 WL 760751 at *7.
II. APPLICATION OF THESE LEGAL PRINCIPLES TO ESPINAL'S CLAIMS
A. Espinal Has Satisfied § 1997e(e)'s Physical Injury Requirement With Respect To His Medical Indifference Claim, But Not With Respect To His Excessive Force Claim Against Defendant Tokarz
Defendants argue that Espinal's claims are barred because he cannot demonstrate any physical injury as required by 42 U.S.C. § 1997e(e), part of the Prison Litigation Reform Act ("PLRA"). (See Dkt. No. 36: Defs. Br. at 14-17.) Section 1997e(e) provides as follows:
Limitation on recovery. No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.42 U.S.C. § 1997e(e).
As Chief Judge Walker has explained:
Congress intended § 1997e(e) to reduce the burgeoning volume of prisoner litigation in the federal courts, particularly prisoner damages claims brought under 42 U.S.C. § 1983. Congress believed — correctly in my view —
that the overwhelming majority of these claims are frivolous and therefore impose an unnecessary burden on the federal courts and the states. As then Senate Majority Leader Robert Dole stated upon introducing the legislation:
the number of "due-process and cruel and unusual punishment" complaints filed by prisoners has grown astronomically — from 6,600 in 1975 to more than 39,000 in 1994. These suits can involve such grievances as insufficient storage locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee, and yes, being served chunky peanut butter instead of the creamy variety.
These legal claims may sound far-fetched, almost funny, but unfortunately, prisoner litigation does not operate in a vacuum. Frivolous lawsuits filed by prisoners tie up the courts, waste valuable legal resources, and affect the quality of justice enjoyed by law-abiding citizens. The time and money spent defending these cases are clearly time and money better spent prosecuting violent criminals, fighting illegal drugs, or cracking down on consumer fraud.
The National Association of Attorneys General estimates that inmate civil rights litigation costs the States more than $81 million each year. Of course, most of these costs are incurred defending lawsuits that have no merit whatsoever.
141 Cong. Rec. S14408-01, at *S14413.
To reduce the volume of frivolous prisoner claims, Congress crafted § 1997e(e) to tie recovery for emotional injury to the existence of a corresponding physical injury. It seems that Congress concluded that the existence of a physical injury would distinguish meritorious prisoner claims of emotional injury from frivolous ones; the physical injury would, in essence, vouch for the asserted emotional injury. Congress recognized that, unlike physical injuries, emotional injuries are inherently difficult to verify and therefore tend to be concocted for frivolous suits.
In structuring § 1997e(e) to preclude prisoners from "recovery" "for mental and emotional injury suffered while in custody without a prior showing of physical injury," Congress looked to the common law of torts. Under the common law of torts, § 1997e(e)'s physical injury requirement would result, in most cases, in the dismissal of claims asserting only emotional injuries. This is so because the general rule in common law tort actions is that a showing of an actual injury is an essential element of the prima facie case that must be pled
to avoid dismissal. Prohibiting emotional injuries unaccompanied by physical injuries from satisfying the prima-facie actual-injury showing, as § 1997e(e) does, would be enough to defeat the claim, necessitating its dismissal and sparing the defendants the burdens of litigation.Dawes v. Walker, 239 F.3d 489, 495-96 (2d Cir. 2001) (Walker, C.J., writing separately) (citations fns. omitted).
See also, e.g., Noguera v. Hasty, 99 Civ. 8786, 2001 WL 243535 at *5 (S.D.N.Y. Mar. 12, 2001) (in enacting § 1997e(e), "Congress sought to limit those frivolous suits which claimed only easily feigned mental and emotional injuries"); Zehner v. Trigg, 952 F. Supp. 1318, 1325 (S.D. Ind.) ("At the most general level Congress intended to curb frivolous suits arising in prison. At a more specific level, by enacting § 1997e(e), Congress took a page from the common law by limiting claims for mental and emotional injuries, which can easily be feigned or exaggerated, in the absence of physical injury."), aff'd, 133 F.3d 459 (7th Cir. 1997).
1. Excessive Force Claim
As one court in this district has noted, "there is authority for the proposition that the section 1997e(e) standard is essentially the same as the standard under the Eighth Amendment, `[t]hat is, the injury must be more than de minimis but need not be significant.'" Cole v. Artuz, 97 Civ. 0977, 2000 WL 760749 at *4 n. 2 (S.D.N.Y. June 12, 2000) (quotingSiglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) ("sore, bruised ear" does not satisfy § 1997e(e)), citing Leon v. Johnson, 96 F. Supp.2d 244, 248 (W.D.N.Y. 2000), Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (citing Siglar and holding that § 1997e(e) did not bar claim based on alleged sexual assault because assaults "would constitute more than de minimis injury if they occurred"))); see also, e.g., Warren v. Westchester County Jail, 106 F. Supp.2d 559, 570 (S.D.N.Y. 2000) ("Although the [PLRA] does not define `physical injury,' the developing case law in this area reflects the view that, consistent with Eighth Amendment jurisprudence, the predicate injury need not be significant but must be more than de minimis.");Bruce v. Goord, No. 98-CV-6088, 1999 WL 1050090 at *4 (E.D.N.Y. Nov. 12, 1999); Dale v. Bridges, No. 3:96-CV-3088, 1997 WL 810033 at *4 (N.D. Tex. Dec. 22, 1997), aff'd mem., 154 F.3d 416 (5th Cir. 1998); Luong v. Hatt, 979 F. Supp. 481, 485-86 (N.D. Tex. 1997) (physical injury must be more than de minimus to satisfy § 1997e(e)). Thus, the determination as to whether Espinal has stated a sufficient degree of harm to establish a claim under the Eighth Amendment will resolve defendants' argument under section 1997e(e).
The only physical injury Espinal alleges as a result of Sgt. Tokarz striking Espinal is that his face turned red. (Espinal Dep. at 46.) According to Espinal himself, "it was really nothing" and the pain "wasn't really nothing." (Espinal Dep. at 45.) Whether under the excessive force standard itself or the § 1997e(e) limitation on suit standard, Espinal's allegations about Sgt. Tokarz do not constitute more than de minimus excessive force or satisfy § 1997e(e)'s physical injury requirement. See e.g., Bruce v. Goord, 1999 WL 1050090 at *4 ("[B]ecause [the plaintiff] has failed to allege anything more than a de minimis injury, his [excessive force] claim must be dismissed under the Eighth Amendment and the PLRA."); see also e.g., Warren v. Westchester County Jail, 106 F. Supp. at 569-70 (Eighth Amendment excessive force claim dismissed where inmate's injuries were no more than de ininunis and thus insufficient to satisfy § 1997e(e)); Dale v. Bridges, 1997 WL 810033 at *4 (same). Accordingly, the Court grants summary judgment to Sgt. Tokarz on Espinal's excessive force claim.
As discussed at pages 17-18 above, the Eighth Amendment does not reach de minimis uses of force. While the threshold in this Circuit for finding more than a de minimis use of force is quite low, see, e.g., Griffin v. Crippen, 193 F.3d 89, 91-92 (2d Cir. 1999) (error for district court to find as matter of law that plaintiff's injuries were de minumis where plaintiff's only allegations of injury were "a bruised shin and swelling over his left knee"), this Court holds that Espinal's allegations that Sgt. Tokarz hit him two or three times in the face, causing his face to turn red, but resulting in no other injuries and described by Espinal himself as "really nothing" are insufficient to state an Eighth Amendment claim. See e.g., Santiago v. Campisi, 91 F. Supp.2d 665, 668, 674-75, 676 (S.D.N.Y. 2000) (unprovoked slap on jaw did not constitute Eighth Amendment violation, citing cases); Macebuh v. INS, 97 Civ. 6243, 1999 WL 342319 at *4 (S.D.N.Y. May 27, 1999) (allegations that officer grabbed plaintiff by the collar and lifted him "slightly off the floor" and that as a result, plaintiff had "difficulty breathing," difficulty swallowing saliva," and "several bouts of neck pain" insufficient to state excessive force claim); Yearwood v. LoPiccolo, 95 Civ. 2544, 1998 WL 474073 at *1, *7 (S.D.N.Y. Aug. 10, 1998) (choking plaintiff, hitting his head with a pair of keys and punching him in the lip constituted de minimis force);Shabazz v. Pico, 994 F. Supp. 460, 471 (S.D.N.Y. 1998) (kicking inmate's ankles and feet was de minimis); Sprau v. Coughlin, 997 F. Supp. 390, 394-95 (W.D.N.Y. 1998) ("Here, plaintiff alleges that [defendant] grabbed him behind the neck and hit him several times across the neck and face and in the eye. The medical report completed after the incident notes a small bump under plaintiff's eye. I find that the conduct alleged here by plaintiff does not reach constitutional dimensions. The amount of force used in this case was de minimis.");Show v. Patterson, 955 F. Supp. 182, 192-93 (S.D.N.Y. 1997) (officer's pushing inmate against wall or from one wall to another constituted de minimis use of force);Brown v. Busch, 954 F. Supp. 588, 596-97 (W.D.N.Y. 1997) (officer's pushing, shoving, and striking of inmate was de minimis use of force) (collecting cases); Malloy v. Defrank, 95 Civ. 9122, 1996 WL 631725 at *5 (S.D.N Y Oct. 31, 1996) (Peck, M.J.) (corrections officer's push of inmate in back did not rise to constitutional level where plaintiff experienced only momentary pain, did not seek medical help and felt "all right" the next day) (collecting cases); Bryan v. Administrative of FCI Otisville, 897 F. Supp. 134, 135, 137 (S.D.N.Y. 1995) (dismissing claim where inmate alleged that corrections officer "`drew back and came forward with force' and pushed plaintiff," such that plaintiff "experienced pains in his right leg as a result"); McMiller v. Wolf, No. 94-CV-0623, 1995 WL 529620 at *2 (W.D.N.Y. Aug. 28, 1995) (allegation that officer, without provocation, snatched plaintiff's mirror, breaking it against cell bars and thereby lacerating plaintiff's finger, insufficient to state Eighth Amendment violation);DeArmas v. laycox, 92 Civ. 6139, 1993 WL 37501 at *4 (S.D.N.Y. Feb. 8, 1993) (punching inmate in arm and kicking him in leg constituted de minimis force), aff'd mem., 14 F.3d 591 (2d Cir. 1993); Candelaria v. Coughlin, 787 F. Supp. 368, 374-75 (S.D.N.Y.), (Inmate alleged that corrections officer "pushed his fist against [the inmate's] neck so [he] couldn't move and [he] was losing his breath because of the pressure he was applying." Noting that "[p]laintiff does not allege any resulting physical injury," the Court found "the alleged force to be de minimis for Eighth Amendment purposes."), aff'd mem., 979 F.2d 845 (2d Cir. 1992).
2. Medical Indifference Claim
As for Espinal's medical indifference claim, assuming without deciding that Espinal's physical pain alone does not satisfy 1997e(e)'s physical injury requirement, the fact that Espinal had a verifiable medical condition — kidney stones — satisfies the requirement that he make a "prior showing of physical injury." The fact that Espinal suffered from kidney stones helps "vouch" for any corresponding emotional injury he may have suffered as a result of defendants' alleged delay in providing him treatment. See, e.g., Sealock v. Colorado, 218 F.3d 1205, 1210-11 (10th Cir. 2000) (where inmate alleged that sergeant was deliberately indifferent to his need for medical attention, heart attack satisfied 1997e(e)'s physical injury requirement even though inmate presented no evidence that delay caused by sergeant resulted in any damage to his heart, where jury could find the delay prolonged inmate's pain and suffering); Wolfe v. Horn, 130 F. Supp.2d 648, 658 (E.D. Pa. 2001) (§ 1997e(e) physical injury requirement satisfied where pre-operative transsexual inmate alleged that after her hormone therapy was withdrawn, she suffered headaches, nausea, vomiting, cramps, hot flashes and hair loss and that with the re-emergence of masculine physical characteristics (reduced breast size, increased body hair and lowered voice pitch), she became depressed and suicidal); Cole v. Artuz, 97 Civ. 0977, 2000 WL 760749 at *2, *4 n. 2, *5 (S.D.N.Y. June 12, 2000) (back condition "requiring aggressive treatment, therapy and most likely, surgery" satisfied § 1997e(e)'s physical in jury requirement). Accordingly, the Court denies defendants' summary judgment motion based on § 1997e(e) on Espinal's medical indifference claim.
B. Espinal Has Not Shown that Defendants Selwin and Lagoy Were Personally Involved in the Alleged Violations
Espinal has not alleged any facts which would support a finding of personal involvement on the part of defendants Selwin or Lagoy in the alleged deprivation of his constitutional rights on the night of May 18-19, 1998. (See cases cited at pages 23-24 above.) Espinal's complaint against Dr. Selwin is limited to the fact that he was the Acting Medical Director at Green Haven (see Espinal Dep. at 75-76), and James Lagoy's involvement is limited to the fact that he was Inmate Grievance Coordinator (see Espinal Dep. at 74-75).
The portion of Espinal's deposition transcript dealing with Dr. Selwin reads as follows:
Q. . . . Why did you name [Dr. Selwin] as a defendant?
A. He was the Director at the time and I guess he was their supervisor. And he was the one that was I guess teaching them something.
Q. When you say like their supervisor and teaching them something, who do you mean?
A. The medical staff.
Q. So he was like the Medical Director?
A. Yes.
Q. On May 18th or 19th, did he examine you, or was he in that area?
A. He wasn't present, no.
Q. So you named him as a defendant because he was the Medical Director?
A. Yes. He was in charge of their actions and all that.
(Espinal Dep. at 75-76.)
The portion of Espinal's deposition transcript dealing with Lagoy reads as follows:
Q. . . . Why did you name [Lagoy] as a defendant?
A. I named him because he was in charge of the grievance either in Albany or Greenhaven. Like I say, I had submitted a grievance and I guess it was lost. And then when I appealed it to Albany it had never got to my hands. So I figured that he was in charge of all of this. And, you know, if anything, it was his fault why I didn't receive the grievance.
Q. Did you have any reason to believe that he was somehow involved in the incident of May 18th or May 19th other than what you just said?
A. I don't know. I can't say that he is like in a conspiracy like to not — Like cover things up because I don't know if he knew anybody down there in jail. I'm just going by like what his job is.
Q. Did you ever speak to him, or talk to him about this lost grievance?
A. Yes, a letter was sent to him.
Q. The letter was sent to James Lagoy?
A. Yes. I guess upstate.
Q. Did he ever send you a letter?
A. I got a letter stating that the appeal was sent down.
Q. And eventually you did receive word from Albany?
A. Yes.
(Espinal Dep. at 74-75.)
Accordingly, defendants Selwin and Lagoy are granted summary judgment.
C. Summary Judgment on Espinal's Medical Indifference Claim Against Defendants Bodzak, Forgit, Rodas and Tokarz is Denied Because of Material Factual Disputes
See e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *10 (S.D.N.Y. June 13, 2000) (Peck, M.J.) (dismissing claims against supervisory officials where plaintiff's "complaint, deposition testimony, affidavit and brief all fail to make any allegations connecting the supervisory defendants to the incident" complained of);Owens v. Coughlin, 561 F. Supp. 426, 428 (S.D.N.Y. 1983) (Weinfeld, D.J.) (dismissing Eighth Amendment claims where "plaintiff has failed to allege any acts which defendants personally engaged in which were related to the alleged unlawful conduct") (internal quotations alterations omitted).
As discussed more fully at pages 18-22 above, in order to establish a violation of the Eighth Amendment on the basis of deliberate indifference to serious medial needs, the plaintiff must satisfy both an objective and subjective prong. See, e.g., Hathway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108 (1995). "Objectively, the deprivation must be `sufficiently serious'" and "[s]ubjectively, the charged official must act with a sufficiently culpable state of mind." Id.; see also cases cited at pages 18-22 above. Defendants argue that Espinal has failed to satisfy either prong. (Defs. Br. at 11-14.)
In claims for delayed medical care, the objective requirement is met if there is "a condition of urgency, one that may produce death, degeneration, or extreme pain. Hathaway v. Coughlin, 37 F.3d 63, ¶¶ (2d Cir. 1994). While Espinal has presented no evidence that his kidney stones were life-threatening, he testified that he experienced severe pain throughout the time when defendants allegedly denied him care. (See pages 3-8 above.) Accordingly, Espinal has satisfied the objective prong of the deliberate indifference test.
See, e.g., Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290 (1976) ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical torture or a lingering death, the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.") (citation internal quotations omitted); Gutierrez v. Peters, 111 F.3d 1364, 1371-73 n. 6 (7th Cir. 1997) ("This Court's post-Estelle decisions, as well as those of the other circuit courts, have repeatedly recognized that delays in treating painful medical conditions that are not life-threatening can support Eighth Amendment claims.") (collecting cases); Archer v. Dutcher, 733 F.2d 14, 15-17 (2d Cir. 1984) (denying summary judgment where plaintiff "identifie[d] intentional efforts on the part of defendants to delay her access to medical care at a time when she was in extreme pain").
As for the subjective prong, Espinal has alleged sufficient facts to show that defendants Nurses Bodzak and Forgit, P.A. Rodas and Sgt. Tokarz, were aware that Espinal was in pain and deliberately delayed his access to medical care. If Espinal's testimony is believed, he told defendants that he was in severe pain and he was sweating, crying and begging for treatment, yet defendants ignored his cries for help and fabricated a refusal of medical treatment form. (See pages 3-8 above.) While Bodzak, Forgit, Rodas and Tokarz all deny Espinal's version of events (see generally Bodzak Aff.; Forgit Aff.; Rodas Aff.; Tokarz Aff.), Espinal's testimony creates a material factual dispute as to whether the defendants were deliberately indifferent to his medical needs at a time when he was in extreme pain and asking for help. Accordingly, defendants Bodzak, Forgit, Rodas and Tokarz are not entitled to summary judgment on Espinal's deliberate indifference to medical needs claim.
See e.g., Love v. Oglesby, No. 00-2312, 2001 WL 219954 at *1 (8th Cir. Mar. 7, 2001) (judgment on pleadings improper as to inmate's claim that prison doctor p prescribed excessive dose of medication and then altered medical records); Berryman v. Rieger, 150 F.3d 561, 567 (6th Cir. 1998) (affirming denial of summary judgment on medical indifference claim where inmate contended, inter alia, that his medical records were forgeries); Green v. Branson, 108 F.3d 1296, 1303-04 (10th Cir. 1997) (denying prison doctor summary judgment where plaintiff claimed that he was brought to infirmary in severe pain, and that doctor refused to treat plaintiff and stated in medical records that nothing was wrong with plaintiff; "We are persuaded that a showing of deliberate refusal to provide medical attention, as opposed to a particular course of treatment, coupled with falsification of medical records may give rise to an Eighth Amendment violation and is cognizable under 42 U.S.C. § 1983."); Parnisi v. Colorado State Hosp. No. 92-1368, 992 F.2d 1223 (table), 1993 WL 118860 at *2 (10th Cir. Apr. 15, 1993) (reversing dismissal of Eighth Amendment claim based on refusal to treat brain and heart conditions with allegations of falsification of medical data); Aldridge v. Montgomery, 753 F.2d 970, 974 (11th Cir. 1985) (jury question as to whether doctor showed deliberate indifference where record showed that doctor, upon hearing plaintiff's complaint, told him "that she would go back and doctor [his] records"); Archer v. Dutcher, 733 F.2d at 16 ("It appears from the affidavits filed by appellees that Archer's case may well be without merit. As Judge Werker observed, appellant received extensive medical attention, and the records maintained by the prison officials and hospital do substantiate the conclusion that appellees provided Archer with comprehensive, if not doting, health care. Nonetheless, Archer's affidavit in opposition to the motion for summary judgment does raise material factual disputes, irrespective of their likely resolution. For example, Archer identifies intentional efforts on the part of defendants to delay her access to medical care at a time she was in extreme pain."); Lawson v. Dallas County, 112 F. Supp.2d 616, 636-37 n. 18 (N.D. Tex. 2000) (finding, after bench trial, that defendants had been deliberately indifferent to inmate's serious medical needs based, inter alia, on fact that jail's nursing staff falsified inmate's medical records to indicate that inmate had refused treatment);Baumann v. Walsh, 36 F. Supp.2d 508, 512-13 (N.D.N.Y. 1999) ("Although records maintained by prison officials lend credence to [Defendant]'s version of events in that they show Plaintiff was provided with substantial medical care and treatment, Plaintiff's affidavits in support of summary judgment nonetheless raise material factual disputes, regardless of their likely resolution. For example, Plaintiff identifies intentional attempts by [Defendant] to deny or delay access to medical treatment when Plaintiff was in severe pain."); Picard v. Moore, Civil A. No. 94-1750, 1996 WL 217881 at *1-2 (D.D.C. Apr. 23, 1996) (denying motion to dismiss where inmate claimed, inter alia, that defendants falsified his medical records to conceal their improper medical treatment).
D. Espinal Has Stated a Claim for ConsDiracy Under § 1983
As noted on pages 22-23 above, "[t]o prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Defendants claim that Espinal has failed to allege conspiracy in other than conclusory terms. (Defs. Br. at 17-18.) To the contrary, if believed, Espinal's testimony that Bodzak, Forgit, Rodas and Tokarz discussed "forging" medical records and filed a refusal of treatment form on which all signatures appear to be in the same handwriting ( pages 5-6 above) is sufficiently specific to survive summary judgment.
E. Defendants Bodzak, Forgit, Rodas and Tokarz Are Not Entitled to Qualified Immunity
See e.g., Cipolla v. County of Rensselaer, 129 F. Supp.2d 436, 456 (N.D.N.Y. 2001) (denying defendants summary judgment where "[o]n this record, a reasonable jury could conclude that Defendants took actions in furtherance of an agreement that violated Plaintiff's constitutional rights"); Davis v. Frazier, 98 Civ. 2658, 1999 WL 395414 at *1 (S.D.N.Y. June 15, 1999) ("Notwithstanding the blanket denials by defendants on this score, I find that [plaintiff] has presented sufficient evidence from which a reasonable jury could conclude that defendants . . . agreed or reached an understanding to deprive him of his constitutional right. . . ."); Fincher v. County of Westchester, 979 F. Supp. 989, 1001-02 (S.D.N.Y. 1997) ("[T]o support a conspiracy claim under § 1983, [plaintiff] must show that . . ., defendants acted in a willful manner, culminating in an agreement, understanding, or meeting of the minds, to violate his rights. . . . For purposes of summary judgment, we find that based on the evidence of forgery (regardless of its credibility), a reasonable jury could find that [defendants] reached an agreement to deprive [plaintiff] of clearly established constitutional rights.") (internal quotations omitted); see also cases cited at page 35 fn. 51 above.
Defendants would be entitled to a defense of qualified immunity if they could demonstrate that the particular factual circumstances made it "objectively reasonable" for them to believe that their actions were lawful. See, e.g., Rodriguez v. PhillipS, 66 F.3d 470, 475 (2d Cir. 1995); see also cases cited at pages 24-26 above. However, "[i]f the trier of fact were to find that the defendants acted with deliberate indifference to the plaintiff's serious medical needs, then it could not be said that it was "objectively reasonable' for these defendants to believe that their actions did not violate the plaintiff's constitutional rights." Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 185 (S.D.N.Y. 1996) (further holding that "[t]here is no question that a significant delay in treatment for a serious medical condition may constitute a violation under the Eighth and Fourteenth Amendments"); see also, e.g., Hernandez v. Keane, 97 Civ. 1267, 2000 WL 16951 at *5 (S.D.N.Y. Jan. 7, 2000); Lora v. Greifinger, 96 Civ. 0628, 1997WL 102473 at *5 (S.D.N.Y. Feb. 27, 1997); Carter v. Dragovich, No. Civ. A. 94-7339, 1995 WL 649314 at *2 (E.D. Pa. Nov. 1, 1995) (rejecting defendant's qualified immunity defense: The inmate plaintiff "alleges that [the defendant] falsified records and prevented him from receiving prescribed treatment. That is not conduct that a reasonable prison official . . . would believe to be lawful.") Because disputed issues of material fact prevent the Court from determining whether defendants are entitled to qualified immunity, defendants' motion for summary judgment on qualified immunity grounds is denied.
CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment is: (1) GRANTED on Espinal's excessive force claim; (2) GRANTED in favor of defendants Lagoy and Selwin on the ground that Espinal has failed to allege any personal involvement by them in the alleged constitutional violations; and (3) DENIED as to Espinal's claim that defendants Bodzak, Forgit, Rodas and Tokarz were deliberately indifferent to his serious medical needs; and (4) DENIED as to Espinal's conspiracy claim against defendants Bodzak, Forgit, Rodas and Tokarz.
As noted at page 2 fn. 1 above, the Court previously dismissed Espinal's claims against defendants Artuz, Bernardi, Goord and Zwillinger.
The court also grants the defendants summary judgment on Espinal's claim that Bodzak retaliated against him by denying him medical care on July 11, 1999 and August 2, 1999 (see Amended Compl. ¶¶ 22-23) as Espinal has failed to provide any evidence that his participation in protected conduct (e.g., the filing of a grievance against Nurse Bodzak) was a "substantial or motivating factor" in Bodzak's conduct on those dates. (See generally Espinal Aff. (making no mention of these incidents); Espinal Dep. at 67-70 (describing how on either July 11, 1999 or August 2, 1999, Bodzak dismissed him, along with many other people, from sick call after they consumed bad meat).)
Espinal had previously requested appointment of counsel, which the Court had denied without prejudice to renewal. (Dkt. No. 32.) Because the case has survived defendants' summary judgment motion and is proceeding to trial, the case may "be of substance" and having counsel for trial "would be more likely to lead to a just determination." Cooper v. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). Accordingly, the Court appoints pro bono counsel for Espinal.
The Pretrial Order will be due 45 days after pro bono counsel enters an appearance for Espinal.
SO ORDERED.