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noting that pro se plaintiffs opposing a motion for summary judgment were “required to submit admissible evidence”
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9:18-CV-0391 (LEK/TWD)
04-23-2020
MARCUS WILSON, et al., Plaintiffs, v. ANTHONY J. ANNUCCI, et al., Defendants.
APPEARANCES: MARCUS WILSON 17-A-3001 Plaintiff, pro se Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021 DAVID CARTER 94-A-7328 Plaintiff, pro se Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 HON. LETITIA JAMES New York State Attorney General Attorney for Defendants The Capitol Albany, NY 12224 JOSHUA E. McMAHON, ESQ. Ass't Attorney General
APPEARANCES: MARCUS WILSON
17-A-3001
Plaintiff, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021 DAVID CARTER
94-A-7328
Plaintiff, pro se
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541 HON. LETITIA JAMES
New York State Attorney General
Attorney for Defendants
The Capitol
Albany, NY 12224 JOSHUA E. McMAHON, ESQ.
Ass't Attorney General THÉRÈSE WILEY DANCKS United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
This civil rights action was brought by pro se Plaintiffs Marcus Wilson, Larry McNair, Clete Birkett, Matthew Jackson, Brian Piscopo, David Carter, and Felix Morales, asserting claims against named and "Doe" Defendants arising out of their incarceration at Auburn Correctional Facility ("Auburn C.F."). Dkt. No. 1 ("Compl."). Only the Eighth Amendment conditions-of-confinement claims brought by Plaintiffs Wilson and Carter remain in this action. See Dkt. No. 12 ("June 2018 Order") at 2, 6, 9-10; Dkt. No. 34.
The named Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. No. 54. Plaintiff Wilson filed papers opposing the motion pursuant to Fed. R. Civ. P. 56(d), and requesting that the Court strike the motion, re-open discovery, compel responses, and impose sanctions. Dkt. Nos. 57, 57-1, 57-2, 57-3, 57-4, 60 (collectively, the "Wilson Opposition and Omnibus Motion"). Plaintiff Carter did not oppose Defendants' motion, but instead filed a proposed amended complaint. Dkt. No. 63-2. Thereafter, Plaintiff Wilson also filed a proposed amended complaint. Dkt. No. 66 ("Wilson Proposed Amended Complaint").
Plaintiff Wilson separately filed papers seeking partial reconsideration of the June 2018 Order. Dkt. No. 58 ("Motion for Reconsideration"). By Decision and Order filed on April 16, 2020, the Motion for Reconsideration was denied. See Dkt. No. 69.
For the reasons that follow, the Court denies Plaintiff Wilson's motions, declines to accept either of the proposed amended complaints as the operative pleading, and recommends that Defendants' motion for summary judgment be granted in its entirety.
II. FACTUAL BACKGROUND
A. The Complaint
Plaintiffs filed this Section 1983 action in February, 2018. See Compl. at 9. The complaint alleges that between January, 2017 and February, 2018, Plaintiffs, who each have "preexisting medical conditions," were forced to eat in an environment contaminated by bird feces and "blood spatter," and use utensils that were not thoroughly cleaned and sanitized. Id. at 5-7. The complaint names the following individuals as defendants: (1) "John Doe" Corrections Sergeants who worked the 7:00 A.M. to 3:00 P.M. shift in the mess hall; (2) "John Doe" Corrections Sergeants who worked the 3:00 P.M. to 11:00 P.M. shift in the mess hall; (3) "John/Jane Doe" Food Services Administrator; (4) Graham, the Superintendent of Auburn Correctional Facility; (5) Corey, the Deputy Superintendent of Auburn Correctional Facility; and (6) Anthony J. Annucci, the Commissioner of the New York State Department of Corrections and Community Supervision. Id. at 1.
The complaint alleges that the "Doe" Defendants denied Plaintiffs' requests to "power wash" and sanitize the mess hall, in disregard of their own "policy," and that Defendants Annucci, Graham, and Corey each learned of the unsanitary conditions in the mess hall "via grievance complaints [filed] by [P]laintiffs[,]" yet failed to remedy the situation. Compl. at 5-6. The complaint further alleges that Defendants failed to ensure that the mess hall was properly cleaned despite knowing that Plaintiffs' exposure to the unsanitary conditions presented an "excessive risk" to their "health and safety." Id. at 6.
B. Undisputed Material Facts
Birds were present in the mess hall where Plaintiffs ate meals beginning in January, 2017. Dkt. No. 54-5 at 7-8; Dkt. No. 54-8 at 21-22, 62-63. Plaintiffs frequently saw bird feces in eating areas of the mess hall. Dkt. No. 54-5 at at 7-9; Dkt. No. 54-8 at 21-22, 62-63. At times, human blood spatter resulting from inmate altercations was also visible in eating areas. Dkt. No. 54-5 at 10-11.
The chairs and tables in the mess hall were wiped down and sterilized with disinfectant every morning and "after every meal" by inmates tasked with cleaning the mess hall area. Dkt. No. 54-5 at 8-9.
Several inmates from Auburn Correctional Facility, including Wilson and Carter, developed respiratory infections in or around March, 2018. Dkt. No. 54-5 at 7, 20; Dkt. No. 54-8 at 65.
Plaintiff Wilson filed a grievance on or about March 29, 2018, complaining about adverse health effects caused by an "air-borne disease" resulting from "the bird fecal problem" throughout the facility. Dkt. No. 54-7 at 9. Plaintiff Wilson filed a second grievance on April 1, 2018, complaining about the conditions of the mess hall. Id. at 10. Wilson's grievances were later consolidated with grievances filed by four (4) other inmates under Grievance Number AUB 74030-18. Id. at 5.
The grievances concerning the conditions in the mess hall were investigated by Deputy Superintendent of Administration William Fennessy, and "Bird Feces Cleanup Crews" were established to power wash areas of the facility, including the mess hall where Plaintiffs ate. Dkt. No. 54-7 at 6-8; Dkt. No. 54-8 at 63-66. An "outside" company was also brought in to remove birds from the mess hall. Dkt. No. 54-8 at 65-66.
III. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants argue that summary judgment is appropriate because (1) Plaintiffs failed to name and serve the "Doe" Defendants, (2) Plaintiffs failed to establish that Defendants Annucci, Graham, and Corey were personally involved in the alleged wrongdoing, (3) no reasonable jury could conclude that the circumstances described in the complaint rise to the level of a constitutional violation, and (4) Defendants are entitled to qualified immunity. See generally, Dkt. No. 54-1.
Defendants also argue that in the event summary judgment is not granted on one or more of the grounds raised in their motion papers, dismissal is appropriate based upon Plaintiffs' failure to exhaust their administrative remedies before commencing this action, and request an evidentiary hearing pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011). See Dkt. No. 54-1 at 7 n.3. Because "failure to exhaust" is an affirmative defense, and Defendants have not expressly moved for summary judgment on this basis, the Court declines to consider the issue of exhaustion herein.
In response, Plaintiff Wilson argues, among other things, that (1) Plaintiffs were unable to name and serve the "Doe" Defendants based on counsel's failure to properly comply with the Court's Valentin Order issued as part of the June 2018 Order, (2) Defendants Annucci, Graham, and Corey were aware of the mess hall conditions before any grievances were filed and thus were personally involved in the constitutional violation, (3) a reasonable jury could conclude that the circumstances described in the complaint rise to the level of a constitutional violation, and (4) Defendants are not entitled to qualified immunity. See Dkt. No. 57-2; 57-3; 57-4.
In an effort to establish such awareness, Plaintiff Wilson has introduced evidence showing that (1) an inmate filed a Section 1983 lawsuit before this action was commenced complaining about the presence of birds and exposure to bird feces at Auburn Correctional Facility, (2) the facility might have been cited by The Public Employee Safety and Health Bureau ("PESH") in early 2018 for a health code violation, and (3) unidentified corrections officials might have filed a lawsuit about unsanitary conditions in a separate mess hall used exclusively by corrections officials at the facility. See Dkt. No. 57-2 at 1-3; Dkt. No. 57-3 at 2-6; Dkt. No. 57-5 at 1. Wilson further argues that counsel wrongly failed to provide discovery related to the PESH investigation and lawsuit filed by corrections officials. Dkt. No. 57-2 at 2-3.
For the reasons set forth below, the Court recommends that Plaintiffs' Eighth Amendment claim be dismissed on the merits. As a result, the Court declines to consider the alternative grounds for dismissal raised by Defendants.
A. Legal Standard Governing Summary Judgment Motions
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted).
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93-CV-5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiffs in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
B. Plaintiff Carter's Failure to Comply with N.D.N.Y. L.R. 7.1(a)(3)
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). Plaintiff Carter failed to respond to the statement of material facts filed by Defendants in support of their motion for summary judgment, as required under N.D.N.Y. L.R. 7.1(a)(3).
L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."
Where a party has failed to respond to the movant's statement of material facts in the manner required under N.D.N.Y. L.R. 7.1(a)(3), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
The Clerk's Office provided Plaintiffs with the requisite notice of the consequences of their failure to respond to Defendants' summary judgment motion. See Dkt. No. 55.
C. Legal Standard Governing Conditions-of-Confinement Claim
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The prohibition extends to prison conditions. Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998). "The Constitution does not mandate comfortable prisons . . . but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and internal quotation marks omitted). "Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient" to support a claim for unconstitutional conditions of confinement. Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999).
To state a claim under the Eighth Amendment based upon conditions of confinement, an inmate must satisfy both an objective and a subjective element. Farmer, 511 U.S. at 834, 837. To satisfy the objective element, a plaintiff must establish that he was incarcerated under conditions that resulted in a "sufficiently serious" deprivation, such as the denial of a "life[ ] necessit[y]" or a "substantial risk of harm." Id. at 834. To satisfy the subjective element, a plaintiff must establish that the "defendant official acted with a sufficiently culpable state of mind . . ., such as deliberate indifference to inmate health or safety." Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citations and internal quotation marks omitted).
To establish the objective element, an inmate must show "that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health." Id. Health includes the risk of serious damage to "physical and mental soundness." Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). Prison officials violate the Eighth Amendment when they "deprive an inmate of his 'basic human needs' such as food, clothing, medical care, and safe and sanitary living conditions." Walker, 717 F.3d at 125 (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam)). There is no "static test" for determining whether a deprivation is serious enough to violate an inmate's Eighth Amendment rights. Id. (citing Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)). "The conditions themselves must be evaluated in light of contemporary standards of decency." Jabbar, 683 F.3d at 57 (citation and internal quotation marks omitted).
When the challenged prison conditions include exposure to unsanitary conditions, the Second Circuit has been unwilling "to set a minimum duration and minimum severity of an exposure for it to reach the level of a constitutional violation." Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). There is no "bright-line durational requirement for a viable unsanitary conditions claim. Nor is there some minimal level of grotesquerie required . . . ." Id. "The severity of an exposure may be less quantifiable than its duration, but its qualitative offence to a prisoner's dignity should be given due consideration." Id.
To constitute deliberate indifference under the subjective element, "[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety." Jabbar, 683 F.3d at 57; see also Trammel v. Keane, 338 F.3d 155, 162-63 (2d Cir. 2003) (the state of mind for the subjective element in cases involving prison conditions is "deliberate indifference to inmate health or safety."). "The official must be both 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." Farmer, 511 U.S. at 837. Mere negligence is not enough. Id. at 835.
D. Analysis
Turning first to the objective element, this Court previously found that an inmate's exposure to bird feces covering a heating system only ten feet from the inmate's cell, and mold on fencing a significant height above the inmate's cell, was not sufficiently serious to satisfy the objective element of an Eighth Amendment conditions-of-confinement claim, and recommended dismissal of the claim on summary judgment. See Johnson v. Fischer, No. 9:12-CV-0210, 2015 WL 670429, at *11 (N.D.N.Y. Aug. 5, 2014). That recommendation was accepted and adopted by the Honorable David N. Hurd, and the plaintiff's appeal was thereafter dismissed as lacking an arguable basis in law or fact. See Johnson v. Fischer, 2015 WL 670429, at *1 (N.D.N.Y. Feb. 17, 2015), appeal dismissed, No. 15-767 (2d Cir. Aug 6, 2015).
There is no evidence in the record that the Plaintiffs in this case experienced a greater exposure to bird feces than the plaintiff in Johnson v. Fischer, either in terms of duration or proximity. To the contrary, the evidence in the record shows that throughout the entire time that Plaintiffs ate in the mess hall, there were areas where no bird feces was present, and at least Plaintiff Wilson only ate in such areas. Dkt. No. 54-5 at 8-9. Moreover, Plaintiff Wilson testified that throughout the entire time that he ate at the mess hall at Auburn C.F., a group of inmates were tasked with cleaning the area, which they did before every meal. Id. Thus, the mess hall environment is distinguishable from environments that courts have found objectively serious based on the presence of, or exposure to, feces. See Willey v. Kirkpatrick, No. 07-CV-6484, 2013 WL 434188, at *8 (W.D.N.Y. Feb. 4, 2013) (collecting cases where Eighth Amendment conditions-of-confinement claims proceeded to trial based on protracted and concentrated exposure to feces or sewage), vacated and remanded by 801 F.3d 51 (2d Cir. 2015).
Moreover, neither Plaintiff has introduced evidence showing that they complained about, or developed an illness attributable to, exposure to "blood spatter" or bird feces in the mess hall at any point during 2017. To the contrary, Plaintiff Wilson testified that he first noticed he was having respiratory problems in March, 2018. Dkt. No. 54-5 at 20. In addition, Plaintiff Wilson testified that after inmates complained about the mess hall environment, a "power washing" crew was established to address the presence of bird feces throughout the facility, and Plaintiff Carter testified that an "outside" company was also brought in to remove the birds, which resulted in a significant reduction in the bird population. Dkt. No. 54-5 at 9; Dkt. No. 54-8 at 65-66; Dkt. No. 54-7 at 6-8. In other words, the evidence in the record shows that the conditions in the mess hall were not objectively serious in 2017, and improved thereafter.
Of course, power washing equipment would also address the alleged "blood spatter" on walls in the mess hall.
As noted, Plaintiff Wilson has also introduced showing corrections officials might have filed a lawsuit around the same time regarding the conditions of a different mess hall at Auburn C.F. where they dined, and PESH may have cited Auburn C.F. for an unidentified health code violation in early 2018. Dkt. No. 57-2 at 1-3; Dkt. No. 57-3 at 2-6; Dkt. No. 57-5 at 1. Even assuming these averments are true, neither is sufficient to establish that the conditions in the mess hall where Plaintiffs dined presented an unreasonable risk of serious damage to their health. See, e.g., Vann v. Donnelly, No. 00-CV-0911, 2005 WL 246810, at *4 (W.D.N.Y. Feb. 1, 2005) ("Without some basis to conclude that an unreasonable exposure took place, the alleged failure to comply with an OSHA regulation is not a sufficient basis to maintain an Eighth Amendment claim."); Pack v. Artuz, 348 F. Supp. 2d 63, 83 (S.D.N.Y. 2004) ("[E]ven if the concentration of airborne asbestos particulates in the counseling unit violated the air-quality guidelines set by either the State or by OSHA -- and plaintiff has offered no proof that it did -- plaintiff's limited exposure, which consisted of a few hours every three months over the course of five years, was simply insufficient to allow a reasonable fact-finder to conclude that plaintiff endured an unreasonable risk of serious damage to his health."). Moreover, if public health officials did investigate Auburn C.F. in early 2018, the fact that the investigation did not result in even a temporary closure of the mess hall where Plaintiffs dined is actually further evidence that the mess hall conditions did not present a risk of serious harm to anyone eating or working in that environment.
Based on these facts, no rational factfinder could conclude that Plaintiffs were subjected to an unreasonable risk of serious damage to their health as a result of dining in the mess hall at Auburn C.F. See, e.g., Thomas v. DeCastro, No. 14-CV-6409, 2018 WL 1322207, at *13 (S.D.N.Y. Mar. 13, 2018) (concluding that plaintiff could not satisfy "the objective prong" with respect to "the allegations surrounding the birds in the mess hall area"); Phillips v. LaValley, No. 12-CV-609, 2014 WL 1202693, at *12 (N.D.N.Y. Mar. 24, 2014) (finding that an inmate's food tray being "contaminated" with a cockroach poses a condition that is "insufficiently serious to sustain an Eighth Amendment conditions of confinement claim"); Johnson, 2015 WL 670429, at *1, *11; Mitchell v. Goord, No. 04-CV-366, 2007 WL 189087, at *5 (N.D.N.Y. Jan. 22, 2007) (holding that allegations of, inter alia, an "infestation by vermin, insects, rats, and mice" does not rise to the level of an Eighth Amendment violation); Govan v. Campbell, 289 F. Supp. 2d 289, 296-97 (N.D.N.Y. 2003) (permitting, inter alia, "wild birds . . . to fly within the cells . . . do[es] not rise to the level of a constitutional violation"); see also Vann v. Griffin, No. 16-CV-9903, 2018 WL 6199860, at *7 (S.D.N.Y. Nov. 28, 2018) ("Exposure to germs alone does not create a deprivation sufficiently serious to satisfy the objective prong." (citing Townsend v. Clemons, 2013 WL 818662, at *7 (S.D.N.Y. Jan. 30, 2013)), report and recommendation adopted by 2013 WL 868605 (S.D.N.Y. Mar. 4, 2013). Thus, Plaintiffs have failed to create a genuine issue of material fact with respect to the objective element of their claim.
Furthermore, even if the Court were to assume that the conditions in the mess hall presented an unreasonable risk of serious harm to Plaintiffs, there is no evidence in the record that any of the named Defendants or officials working in the mess hall knew that the environment was unsafe, yet refused to act to improve conditions. Indeed, neither Plaintiff has presented any evidence showing that any inmate ever made a specific complaint to any official that was ignored, or that any official was aware that inmates were suffering health complications as a result of eating in the mess hall, yet refused to act. To the contrary, as noted above, Plaintiff Carter testified that after inmates complained, additional efforts were made to clean the mess hall. Dkt. No. 54-8 at 63-66. Plaintiff Wilson similarly testified that after complaints were made, a power washing crew was established. Dkt. No. 54-5 at 9. Such testimony is also consistent with the documentary evidence in the record, which shows that within days of inmates complaining about unsanitary conditions in the mess hall, their grievances were investigated and additional cleaning efforts were instituted. Dkt. No. 54-7 at 6-8; Dkt. No. 57-3 at 16. In other words, the record is devoid of any facts from which a rational factfinder could conclude that any of the named or "Doe" Defendants acted with deliberate indifference to an excessive risk to Plaintiffs' health or safety. See Forrest v. Cnty. of Nassau, No. 14-CV-6979, 2016 U.S. Dist. LEXIS 16531, at *55-56 (E.D.N.Y. Feb. 2, 2016) ("Here, Plaintiff's Amended Complaint states that, after he filed grievances regarding his spider bite and the presence of vermin in his cell, Defendants sent an exterminator to treat his cell. . . . Thus, by Plaintiff's own admission, prison officials have taken measures to address the vermin infestation problem of which Plaintiff complained. . . . Although Plaintiff states that he still sees roaches, spiders, and mice after the extermination, this allegation is not sufficient to show that Defendants were deliberately indifferent to his health or safety."), report and recommendation adopted by 2016 U.S. Dist. LEXIS 25609 (E.D.N.Y. Feb. 25, 2016); Ortiz v. Department of Corrections, No. 08-CV-2195, 2011 WL 2638137, at *7 (S.D.N.Y. April 29, 2011) ("There is a clear difference between cases where defendants allegedly knew about unsanitary conditions but did nothing and cases where officials actually acted to resolve or alleviate the problem, as they are alleged to have done here."), report and recommendation adopted in full and complaint dismissed by 2011 WL 2638140 (S.D.N.Y. July 5, 2011); Nolley v. Lord, No. 96-CV-1621, 1997 WL 698172, at *7 (S.D.N.Y. Nov. 10, 1997) ("[A]llegations of the mere presence of roaches, ticks and cats, with no evidence to rebut defendants' affidavits that prison officials have taken measures to address these problems, do not rise to deliberate indifference on the part of prison officials."); see also Summerville v. Faciuna, No. 05-CV-6459, 2009 WL 2426021, at *9 (W.D.N.Y. Aug. 6, 2009) (granting summary judgment dismissing the plaintiff's condition of confinement claim where evidence showed that the prison superintendent had the plaintiff's cell sprayed by an exterminator and replaced the window screen of the cell, and where the plaintiff "failed to point to any evidence suggesting that [the defendant] acted with reckless indifference to [p]laintiff's health and safety by allowing him to be exposed to bugs"); Shire v. Greiner, No. 02-CV-6061, 2007 WL 840472, at *13 (S.D.N.Y. Mar. 15, 2007) (evidence that the prison official defendant arranged to have exterminators treat the plaintiff's cells "belie[d his] unsupported claim that [the defendant] was deliberately indifferent to his needs"); Townsend v. Clemons, No. 12-CV-03434, 2013 WL 818662, at *8 (S.D.N.Y. Jan. 30, 2013), report and recommendation adopted by 2013 WL 868605 (S.D.N.Y. Mar. 4, 2013) (dismissing the plaintiff's sanitation-related claims where the plaintiff "has not linked any of these alleged deprivations to defendants' 'deliberate indifference'"); Hobson v. Fischer, No. 10-CV-5512, 2011 WL 891314, at *6 (S.D.N.Y. Mar. 14, 2011) ("In Heath's denial of Hobson's appeal from the IGRC, he listed the measures that were taken to remedy the grievances. For instance, in responses to Hobson's complaint regarding bird feces, Heath pointed out that prison porters were cleaning up the bird feces on a daily basis. Heath also stated that the mess hall 'is being operated in full compliance within department regulations', and that the 'fans in the Barber Shop are used for exhaust only.' . . . Because he did not ignore the complaints brought to his attention as Superintendent, Hobson cannot allege that Heath acted with deliberate indifference. Given that Hobson's grievances were investigated and responded to, his claim of deliberate indifference fails."). Thus, Plaintiffs have also failed to create a genuine issue of material fact with respect to the subjective element of their claim.
Accordingly, the Court recommends granting summary judgment for Defendants on the merits.
IV. PLAINTIFF WILSON'S OMNIBUS MOTION AND PLAINTIFFS' PROPOSED AMENDED COMPLAINTS
Liberally construed, it appears that Plaintiff Wilson seeks to re-open discovery pursuant to Fed. R. Civ. P. 56(d), strike the motion for summary judgment, compel responses, and impose sanctions based on counsel's purported failure to provide him with discovery related to the lawsuit filed by unidentified corrections officials, the PESH investigation, and the identities of the "Doe" Defendants. See Dkt. Nos. 57, 57-1, 57-2, 57-3, 57-4, 57-5; 66 at 25-27. It also appears that both Plaintiffs seek to amend the complaint to add new allegations regarding personal harm from the conditions of the mess hall at Auburn C.F., among other things. See Dkt. No. 63-2; Dkt. No. 66.
Plaintiff Wilson's proposed amended complaint also contains new claims against new parties. See Dkt. No. 66.
As an initial matter, the discovery sought by Plaintiff Wilson was all available during the discovery period, and Plaintiffs certainly knew about the lawsuit filed by unidentified corrections officials and the PESH investigation while discovery was ongoing. Yet it does not appear from the record that either Plaintiff ever served demands regarding the discovery Plaintiff Wilson now seeks, and neither filed a motion to compel such discovery, sought to extend the discovery deadline to obtain it, or otherwise notified the Court of the need for such material during the discovery deadline.
Plaintiff Carter testified about the lawsuit filed by unidentified corrections officials, and Plaintiff Wilson repeatedly references the lawsuit filed by corrections officials and the PESH investigation in his opposition papers. See Dkt. No. 54-8 at 22-23; Dkt. No. 57-3 at 3-4; Dkt. No. 57-4 at 8.
In any event, as noted above, the Court assumed the following for purposes of this Report-Recommendation and Order: (1) corrections officials filed a lawsuit regarding the conditions of the mess hall at Auburn C.F. where they dine; and (2) PESH officials cited Auburn C.F. for a health code violation in early 2018. However, as also noted above, proof that corrections officials filed a lawsuit regarding the conditions of a different mess hall at Auburn C.F., and/or that PESH officials cited Auburn C.F. for a health code violation is insufficient to establish either element of Plaintiffs' conditions of confinement claim. Furthermore, with respect to the discovery Plaintiff Wilson seeks regarding the "Doe" Defendants, properly identifying these officials would not change the Court's recommendation to dismiss his Eighth Amendment claim on the merits. In other words, there is no legal justification for re-opening discovery and imposing sanctions.
For these reasons, the Court denies Plaintiff Wilson's request to re-open discovery pursuant to Fed. R. Civ. P. 56(d), compel responses, and impose sanctions. See Shomo v. Dep't of Corr. & Cmty. Supervision, No. 9:15-CV-1029 (GLS/ATB), 2019 WL 7971871, at *12 n.12 (N.D.N.Y. Oct. 7, 2019) ("To the extent plaintiff seeks relief under Rule 56(f), we further recommend denying the same. Plaintiff admits that these transcripts, at most, include the state's request to withdraw their 2012 state court petition to force-feed plaintiff, and its concession that the court stop short of determining plaintiff's status as a quadriplegic. . . . Even assuming the validity of plaintiff's contentions as to the contents of the transcripts, such evidence is not relevant to the instant motion and would not affect this court's recommendation." (citing Hodge v. Perilli, No. 06-CV-2480, 2010 WL 291058, at *11 (S.D.N.Y. July 12, 2010) (citing Sage Realty Corp. v. Insurance Co. of North America, 34 F.3d 124, 128 (2d Cir. 1994) (noting that to obtain Rule 56(f) relief, additional discovery sought must be material to opposition of the summary-judgment motion))), report and recommendation adopted by 2020 WL 486868 (N.D.N.Y. Jan. 30, 2020); see also Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) ("[T]he trial court may properly deny further discovery if the nonmoving party has had a fully adequate opportunity for discovery." (citations omitted)); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 2398762, at *2 (S.D.N.Y. Aug. 15, 2007) (denying plaintiff's request to extend discovery because "[p]laintiff has not shown that her failure to complete discovery was anyone's fault but her own" and "plaintiff did not diligently utilize the time available to her to complete discovery, [so] there is no reason to extend that time."); Yrityspankki Skop Oyj v. Delta Funding Corp., No. 98-CV-7888, 1999 WL 1018048, at *3-4 (S.D.N.Y. Nov. 9, 1999) ("In seeking to reopen discovery in the face of the plaintiff's summary judgment motion, the defendant must demonstrate by affidavit what additional information it wishes to discover, how that additional information can reasonably be expected to defeat the summary judgment motion by creating issues of material fact, what efforts the defendant has made during discovery to obtain this information and why it was unsuccessful in doing so. . . . Plaintiff utterly fails to satisfy these requirements of Fed. R. Civ. P. 56(f).").
The Federal Rules of Civil Procedure were amended on December 1, 2010, which included re-designating former Rule 56(f) as 56(d).
In addition, because the Court recommends that Plaintiffs' claims be dismissed on the merits, and the new allegations in the proposed amended pleadings filed by each Plaintiff would not change the Court's recommendation, it would be futile to allow either Plaintiff to file an amended complaint to add new defendants or Section 1983 claims arising out of the mess hall conditions at Auburn C.F. See Abdul-Matiyn v. Allen, No. 9:06-CV-1503 (GTS/DRH), 2010 WL 3880510, at *6 (N.D.N.Y. Sept. 28, 2010) ("[W]hen a motion to amend or supplement is made in response to a motion for summary judgment, the court assessing whether to deny the proposed amendment as futile should consider the evidence in the record and not assess the proposed amendment as if the evidence does not exist; in such a case, the proposed amended/supplemental pleading is futile if it could not survive the summary judgment motion." (citing Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (explaining that, when cross-motion to amend complaint is made in response to a motion for summary judgment, and parties have fully briefed the issue of whether proposed amended complaint could raise genuine issue of fact and have presented all relevant evidence in support of their positions, court may deny the amendment as futile, even if it states valid claim on its face, where evidence in support of proposed new claim creates no triable issue of fact and defendant would be entitled to summary judgment on it)); see also DiPace v. Goord, 308 F. Supp. 2d 274, 279 (S.D.N.Y. 2004) (where parties submitted evidence outside the pleadings in connection with a motion to amend, the court judged the proposed pleading based on whether it could survive a motion for summary judgment); Stoner v. N.Y. City Ballet Co., No. 99-CV-0196, 2002 WL 523270, at *14 n.10 (S.D.N.Y. Apr. 8, 2002) (denying motion to amend where the claim might survive a motion to dismiss, but would "immediately be subject to dismissal on a motion for summary judgment").
Insofar as Plaintiff Wilson proposes to assert a medical indifference claim based on alleged inadequate treatment he received after he allegedly became ill in or around March, 2018, and/or a conditions of confinement claim based on alleged water pollution or conditions in areas of the facility other than the mess hall, see Dkt. No. 66 at 9-13, such claims involve collateral matters, are based on different factual allegations than those set forth in the original complaint and distinct legal theories from those already at issue in this case, and would therefore require new and additional discovery. Plaintiff Wilson has also failed to explain why he waited until after the close of discovery and the amended pleadings deadline to assert these new claims. Thus, Plaintiff Wilson's proposed amended complaint must also be denied insofar as it contains new claims based on events and circumstances unrelated to the mess hall conditions at Auburn C.F. See Amusement Indus. v. Stern, No. 07-CV-11586, 2014 WL 4460393, at *13 (S.D.N.Y. Sept. 10, 2014) ("Courts regularly deny motions to amend where the moving party seeks to add claims involving collateral matters, based on different factual allegations and distinct legal theories, from the claims already at issue in a case."); Mitchell v. Cuomo, No. 17-CV-0892 (TJM/DJS), 2019 WL 1397195, at *3 (N.D.N.Y. Mar. 28, 2019) (adopting Magistrate Judge's recommendation to deny motion to supplement where "[t]he proposed First Amendment claims are neither related to nor pertain to the allegations in the operative pleading, thus providing a basis to deny amendment under Rule 15(d)"); Beckett v. Inc. Vill. of Freeport, No. 11-CV-2163, 2014 WL 1330557, at *6 (E.D.N.Y. Mar. 31, 2014) ("Supplemental pleadings are limited to subsequent events related to the claim or defense presented in the original pleading." (internal quotation marks omitted)); Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000) (noting that leave to amend or supplement is properly denied "where the belated motion would unduly delay the course of proceedings by, for example, introducing new issues for discovery" (internal citation omitted)); see also Mitchell, 2019 WL 1397195, at *3 ("Furthermore, denial of the motion to amend to add the First Amendment claims was proper because the addition of the claims would not promote the economic and speedy disposition of the controversy between the parties as framed in the operative pleading."); Girard v. Hickey, No. 9:15-CV-0187 (TJM/DJS), 2016 WL 915253, at *6 (N.D.N.Y. Mar. 4, 2016) ("[B]ecause this case presently includes multiple causes of action asserted against multiple defendants, the Court finds that the addition of numerous other defendants and unrelated claims arising at entirely distinct locations will necessarily prolong this action and impose additional expense on defendants. Moreover, the Court finds that adding these new claims would not aid in the efficient resolution of this action.").
Accordingly, insofar as Plaintiff Wilson has moved to strike the motion for summary judgment, re-open discovery, compel responses, and/or impose sanctions, his motion is denied. In addition, insofar as either Plaintiff has sought leave to amend the complaint, their motions are denied.
V. CONCLUSION
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 54) be GRANTED in its entirety; and it is hereby
ORDERED that Plaintiff Wilson's motions to strike the motion for summary judgment, re-open discovery, compel responses, and impose sanctions (Dkt. No. 57) are DENIED; and it is hereby
ORDERED that, insofar as Plaintiffs seek to amend the complaint (Dkt. Nos. 63-2, 66), their motions are DENIED; and it is hereby
ORDERED that the Clerk provide Plaintiffs with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: April 23, 2020
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-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. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge