Opinion
Civil Action No. 9:16-CV-0541 (FJS/DEP)
08-07-2018
DEOZ MILLER-HARRIS, Plaintiff, v. DAVID DINELLO, Defendant.
APPEARANCES: FOR PLAINTIFF: DEOZ MILLER-HARRIS, Pro se 13-B-2224 Southport Correctional Facility P.O. Box 2000 Pine City, NY 14871 FOR DEFENDANT: HON. BARBARA D. UNDERWOOD New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: MATTHEW P. REED, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: DEOZ MILLER-HARRIS, Pro se
13-B-2224
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871 FOR DEFENDANT: HON. BARBARA D. UNDERWOOD
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: MATTHEW P. REED, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought by pro se plaintiff Deoz Miller-Harris, a New York State prison inmate, against defendant David Dinello, a licensed physician employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983. In the action, plaintiff alleges he was denied adequate medical treatment following an injury sustained as a result of his participation in a fight with a fellow inmate.
Currently pending before the court is a motion brought by defendant Dinello seeking the entry of summary judgment dismissing plaintiff's complaint. For the reasons set forth below, I recommend that defendant's motion be granted. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is an inmate currently in the custody of the DOCCS. See generally Dkt. No. 1. At the times relevant to his claims in this action, plaintiff was incarcerated first in the Auburn Correctional Facility ("Auburn"), located in Auburn, New York, and subsequently in the Southport Correctional Facility ("Southport"), located in Pine City, New York. Id.; see also Dkt. No. 44-4 at 6.
On September 4, 2015, while confined at Auburn, plaintiff injured his right hand during the course of a fight with another inmate at the facility. Dkt. No. 1 at 7; Dkt. No. 44-4 at 2; see also Dkt. No. 45 at 2. Following the incident, plaintiff was taken to the facility's infirmary for evaluation and treatment. Id. Upon examination it was noted that plaintiff's right hand was slightly swollen and that he had a potential boxer's fracture; no other injuries were noted. Dkt. No. 1 at 7; Dkt. No. 45 at 2, 4. To treat his resulting pain and swelling, the medical staff at Auburn provided plaintiff with an ice pack and Motrin, an over-the-counter anti-inflammatory medication, and recommended that he be sent outside of Auburn to an emergency room for an x-ray. Dkt. No. 1 at 7; Dkt. No. 44-4 at 3; Dkt. No. 45 at 2, 4.
The term "boxer's fracture" is slang for the fracture of one of the metacarpal bones of the hand. Dkt. No. 44-4 at 2. A fracture of that nature typically occurs when a person strikes an object with a closed fist. Id. at 3. The most common types of boxer's fractures occur to the fourth or fifth metacarpals, leading to the ring finger and pinky finger, respectively. Id.
In light of the recommendation that plaintiff be sent for an outside x-ray, defendant Dinello, a DOCCS Regional Medical Director responsible for managing physicians and medical staff at ten DOCCS facilities, was contacted on the evening of September 4, 2015. Dkt. No. 44-4 at 3. After reviewing the matter, defendant Dinello concluded that the situation was not urgent and, due to the fact that there is an x-ray machine available at Auburn, he directed the medical staff at Auburn to cancel the trip to an outside emergency room and advised that an x-ray should be taken at Auburn as early as the following Tuesday, September 8, 2015. Dkt. No. 1 at 7-8; Dkt. No. 44-4 at 3-4.
Defendant's request for an x-ray of plaintiff's hand was entered in the DOCCS Health Services System on September 18, 2015. Dkt. No. 44-4 at 4; Dkt. No. 45-1 at 3.
Plaintiff's hand was ultimately x-rayed at Auburn on September 18, 2015. Dkt. No. 44-4 at 5; Dkt. No. 45 at 3; Dkt. No. 45-1 at 6. Based upon the x-ray, plaintiff's right hand injury was noted to be a "[b]oxer's fracture of the distal fifth metacarpal with moderate volar angulation . . . noted." Dkt. No. 45 at 3; Dkt. No. 49 at 52. The fifth metacarpal leads to what is commonly known as the pinky finger. Dkt. No. 44-4 at 3. Plaintiff's fracture was characterized as "non-healing," meaning that it was in the process of healing but had not yet completely healed. Id. at 5; Dkt. No. 45 at 2, 5; Dkt. No. 45-1 at 6. Following the x-ray, medical staff members at Auburn wrapped plaintiff's hand in a bulky dressing for stabilization and submitted a request that plaintiff be seen by an outside orthopedic physician. Dkt. No. 44-4 at 5; Dkt. No. 45 at 5.
Almost daily between September 5, 2015 and September 18, 2015, plaintiff submitted several sick call requests. Dkt. No. 1 at 8; Dkt. No. 49 at 35-43. In response to those requests, plaintiff was informed that he was not on the sick-call list and therefore could not be seen by medical personnel. Dkt. No. 1 at 8. Defendant Dinello was never notified by staff at Auburn that plaintiff had submitted sick-call requests or needed to see a doctor. Dkt. No. 44-4 at 5.
Plaintiff's hand was examined by an orthopedic physician on September 28, 2015, and placed in a hard cast. Dkt. No. 1 at 8; Dkt. No. 44-4 at 5; Dkt. No. 45 at 5. The cast was subsequently removed on November 2, 2015, and plaintiff's hand was again examined by an orthopedic physician and x-rayed on that date. Dkt. No. 1 at 8; Dkt. No. 44-4 at 6; Dkt. No. 45 at 6; Dkt. No. 45-1 at 7. At that time the x-ray revealed that plaintiff's fracture had healed fully and there was no malrotation to the pinky, meaning that it was moving and rotating properly. Dkt. No. 44-4 at 6; Dkt. No. 45 at 6.
Plaintiff was transferred from Auburn into Southport on December 11, 2015. Dkt. No. 44-4 at 6; Dkt. No. 44-7 at 2. He was seen at Southport during sick call on January 9, 2016, complaining of swelling to his right hand and decreased range of mobility. Dkt. No. 44-4 at 6; Dkt. No. 45 at 8. Upon examination medical personnel at Southport determined that plaintiff's third knuckle on the pinky finger of his right hand revealed some swelling but that plaintiff had good flexion, meaning the ability to bend it, with limited extension and minimal pain. Id. Three days later, on January 11, 2016, medical staff at Southport requested that plaintiff's right hand again be x-rayed. Dkt. No. 44-4 at 6; Dkt. No. 45 at 7.
On January 17, 2016, plaintiff was seen by medical staff at Southport, again complaining of right hand pain and swelling at the base of his pinky finger. Dkt. No. 44-4 at 6; Dkt. No. 45 at 7. Plaintiff was given Tylenol, a non-prescription pain reliever, because plaintiff indicated that Motrin was not effective for controlling his pain. Id. Plaintiff subsequently refused to have his hand x-rayed on January 27, 2016. Dkt. No. 44-4 at 7; Dkt. No. 45 at 9.
Plaintiff was again seen during sick call at Southport on April 13, 2016, with continuing complaints of swelling and pain in his right hand, and a request that it be x-rayed. Dkt. No. 44-4 at 7; Dkt. No. 45 at 10. Based upon that visit, medical personnel at Southport made a request to defendant Dinello for an x-ray of plaintiff's right hand; that request was approved. Id. Plaintiff's right hand was thereafter x-rayed at the Arnot Ogden Medical Center on April 20, 2016. Dkt. No. 44-4 at 7; Dkt. No. 45 at 11. That x-ray revealed no acute (meaning new) fracture or dislocation, and that the carpal bones had normal anatomic alignment, meaning that the knuckle was not sagging, and there was no soft tissue swelling. Id.
Plaintiff's hand was evaluated on several occasions by Southport medical staff in 2016, and he was provided with over-the-counter anti-inflammatory and pain reliever medication, as well as physical therapy twice a week for four weeks in July 2017. Dkt. No. 44-4 at 7-8; see Dkt. No. 45 at 13-24.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about May 11, 2016. Dkt. No. 1. His complaint names only Dr. David Dinello as a defendant, and asserts deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment and seeks compensatory damages in the amount of $25,000 and an order directing "that the basic guidelines be adhered to regarding medical attention being provided to prisoners." Id. at 9.
On September 5, 2017, following the close of discovery, defendant Dinello moved for the entry of summary judgment dismissing plaintiff's claims. Dkt. No. 44. In that motion defendant argues that (1) plaintiff has failed to establish the existence of a serious medical need; (2) the record reflects that plaintiff received adequate medical care for his injuries sustained on September 4, 2015; (3) plaintiff has failed to establish the personal involvement of defendant Dinello in denying him sick call from September 5, 2015 to September 18, 2015; and (4) subjectively, plaintiff has failed to demonstrate that defendant Dinello had a sufficiently culpable state of mind to support an Eighth Amendment violation. Dkt. No. 44-2. Plaintiff submitted opposition to defendants' motion on October 2, 2017. Dkt. No. 49. Defendants' motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and the Northern District of New York 72.3(c). See Fed. R. Civ. P. 72(b).
Plaintiff's response in opposition to defendant's motion includes a document entitled "Notice of Motion," which, though equivocal, appears to request an order "grant[ing] plaintiff's complaint in its entirety[.]" Dkt. No. 49-1 at 2. To the extent that submission may be construed as requesting summary judgment in his favor, it is denied based upon plaintiff's failure to comply with the court's local rules, including to submit a statement of material facts not in dispute pursuant to Local Rule 7.1(a)(3).
III. DISCUSSION
A. Legal Significance of Plaintiff's Failure to Respond to Defendant's Statement of Undisputed Material Facts
Although plaintiff has opposed defendant's motion for summary judgment, he did not file an opposition to defendant's Local Rule 7.1(a)(3) Statement of Material Facts. See generally Dkt. No. 49. By its terms, Local Rule 7.1 provides, in part, that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced a non-movant's failure to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Public Serv. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, No. 96-CV-0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report and recommendation by Hurd, M.J.). Stated differently, "a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.). Here, because plaintiff was warned of the consequences of failing to properly respond to defendant's Local Rule 7.1 Statement, Dkt. No. 46 at 2, and he has failed to do so, I will deem defendant's facts contained in his Local Rule 7.1(a)(3) Statement as having been admitted to the extent they are supported by accurate record citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). As to any facts not contained in defendant's Local Rule 7.1(a)(3) Statement, in light of the procedural posture of this case, the court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
All unreported cases cited to in this report have been appended for the convenience of the pro se plaintiff.
B. Legal Standard Governing Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Merits of Plaintiff's Medical Indifference Claims
In his complaint plaintiff alleges that his Eighth Amendment rights were violated by the inadequate treatment of his metacarpal fracture. Dkt. No. 1 at 8-9. In his motion, defendant contends no reasonable factfinder could conclude that he was deliberately indifferent to plaintiff's serious medical needs. See generally Dkt. No. 44-2.
The Eighth Amendment prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society[,] or which involve the unnecessary and wanton infliction of pain[.]" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quotation marks and citations omitted)). While the Eighth Amendment "does not mandate comfortable prisons, . . . neither does it permit inhumane ones[.]" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation marks and citation omitted). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering which no one suggests would serve any penological purpose." Id. (quotation marks and citations omitted).
A claim alleging that prison officials have violated an inmate's Eighth Amendment rights by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) ("[T]he objective test asks whether the inadequacy in medical care is sufficiently serious."). Factors informing this inquiry include "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted). Determining whether a deprivation is sufficiently serious requires a court to examine the seriousness of the deprivation, and whether the deprivation represents "a condition of urgency, one that may produce death, degeneration, or extreme pain[.]" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted). Importantly, it is "the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id.; see also Farmer, 511 U.S. at 837 ("[T]he 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."). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).
In this case, no reasonable factfinder could conclude either that plaintiff's injury was sufficiently serious or that, even assuming plaintiff suffered a serious injury, defendant Dinello acted with deliberate indifference in treating it. Defendant has submitted evidence suggesting that "[a] boxer's fracture is not typically a life-threatening condition capable of causing death, degeneration, or extreme pain." Dkt. No. 44-4 at 3. He notes further that such a fracture typically does not involve functionality of the hand, nor does it interfere with a patient's ability to engage in everyday activities "such as eating, drinking, and writing." Id. According to defendant Dinello, "[a] boxer's fracture typically heals correctly without treatment or medication." Id. Based on this evidence, which has not been disputed by plaintiff, I find that no reasonable factfinder could conclude that, by suffering a boxer's fracture to his right hand, he experienced a sufficiently serious injury for purposes of the objective inquiry of an Eighth Amendment deliberate indifference claim. See, e.g., Dawkins v. Whalen, No. 04-CV-0943, 2009 WL 222975, at *11 (N.D.N.Y. Jan. 28, 2009) (Suddaby, C.J., adopting report and recommendation by DiBianco, M.J.) (finding that an injury to the tip of the plaintiff's left ring finger was not sufficiently serious where the finger remained swollen two weeks after the injury, a nurse applied a split to treat the injury, and the plaintiff was able to flex and extend his finger without difficulty); Magee v. Childs, No. 04-CV-1089, 2006 WL 681223, at *4-5 (N.D.N.Y. Feb. 27, 2006) (Treece, M.J.) report and recommendation adopted by 2006 WL 1555588 (N.D.N.Y. June 6, 2008) (Sharpe, J.) (concluding that the plaintiff's pleading failed to state a cognizable deliberate medical indifference claim because an allegation that the plaintiff suffered a broken finger did not satisfy the objective element); Rivera v. Johnson, No. 95-CV-0845, 1996 WL 549336, at *2 (W.D.N.Y. 1996) ("A broken finger, without more, simply does not present a condition of urgency of the type that may produce death, degeneration or extreme pain which correspondingly merits constitutional protection.").
I note, moreover, that the record fails to disclose the existence of any unconstitutional lapse in treatment of plaintiff's injury. While there was a delay of two weeks in arranging for an x-ray of plaintiff's hand, according to defendant, a boxer's fracture will not begin to heal until a few weeks have passed, and thus a delay of two weeks still provides medical staff with the ability to diagnose and treat the injury. Dkt. No. 44-4 at 4. In any event, a delay in providing an x-ray for that injury of two weeks does not rise to a level sufficient to establish medical indifference. Ocasio v. Deluke, No. 08-CV-0051, 2010 WL 6001595, at *14 (N.D.N.Y. Sept. 3, 2010) (Homer, M.J.) report and recommendation adopted by 2011 WL 864898 (N.D.N.Y. Mar. 8, 2011) (Sharpe, J.) (finding a delay of approximately one month in performing x-ray did not constitute an inordinate amount of time sufficient to rise to a level of constitutional significance).
In addition to plaintiff's inability to meet the objective prong of the Eighth Amendment test, the record now before the court fails to reveal evidence from which a reasonable factfinder could conclude that defendant possessed the requisite state of mind to support a claim of deliberate indifference. It is clear from the record now before the court that defendant Dinello did not consider plaintiff's boxer's fracture to be a serious medical need, and that this conclusion resulted in cancellation of the trip to an emergency room on September 4, 2015. Dkt. No. 44-4 at 3. As was previously noted, in his professional opinion defendant Dinello does not regard a boxer's fracture as life threatening or capable of causing death, degeneration or extreme pain, and notes further that such a fracture will not typically affect the functionality of the hand and will normally heal without medical treatment. Id. Against this backdrop, plaintiff has offered no evidence to show any malicious intent or improper motivation on the part of the defendant in cancelling his outside trip to an emergency room on September 4, 2015, or in the manner in which treatment was subsequently rendered. As one court has noted, "the failure to treat a fracture properly or to order an x-ray is not actionable absent some evidence of deliberate behavior by the treating physician." Ravenell v. Van der Steeg, No. 05-CV-4042, 2007 WL 765716, at *5 (S.D.N.Y. Mar. 14, 2007) (citing cases). Accordingly, the failure to establish the requisite subjective culpable state of mind on the part of defendant Dinello provides another independent basis for dismissing plaintiff's deliberate indifference claims against him.
D. Personal Involvement
While not entirely clear, it appears that plaintiff's deliberate medical indifference claim also stems from allegations that defendant Dinello failed to provide him with medical attention between September 4, 2015 and September 18, 2015, when plaintiff submitted sick-call requests. Dkt. No. 1 at 8; Dkt. No. 44-6 at 36-37. There is no evidence in the record, however, that defendant Dinello was personally involved in responding to plaintiff's alleged sick-call requests. "Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his actions under section 1983. See Iqbal, 556 U.S. at 683 ("[p]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994). Plaintiff has offered no basis from which a reasonable factfinder could conclude that defendant was responsible for failing to arrange for sick-call on the dates plaintiff allegedly placed a request, and defendant has denied being aware of those sick call requests. Dkt. No. 44-4 at 5.
It is possible that plaintiff is asserting this claim against defendant Dinello based upon his status as a supervisor in his capacity as a DOCCS Regional Medical Director. It is well-established, however, that a supervisor cannot be liable under section 1983 solely by virtue of being a supervisor, "and [liability] cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
In this case, there is no basis in the record to conclude that any of these alternative grounds for imposing supervisory liability exists in this case. Indeed, to reiterate, defendant has denied any knowledge that plaintiff filed any sick-call requests, Dkt. No. 44-4 at 5, and plaintiff has failed to adduce any evidence that defendant was involved in deciding how those requests would be addressed. Accordingly, to the extent plaintiff's claims are predicated on the failure to provide medical treatment as requested in sick-call slips, his claim against defendant Dinello is subject to dismissal for lack of personal involvement.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's Eighth Amendment deliberate indifference claims in this action arise from a relatively minor injury suffered during a fight with another inmate and his contention that the injury was not properly diagnosed and treated by prison medical staff. Because the record now before the court fails to contain evidence from which a reasonable factfinder could conclude that plaintiff has met both the objective and subjective requirements necessary to support an Eighth Amendment deliberate indifference claim, and further based on lack of personal involvement on the part of defendant Dinello in connection with failure of prison officials to permit the plaintiff to be seen at sick call, it is hereby respectfully
RECOMMENDED that defendant's motion for summary judgment (Dkt. No. 44) be GRANTED, and that plaintiff's complaint in this action be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 7, 2018
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge