Palmer
v.
Seidman

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORKAug 13, 2018
9:16-cv-00027 (GLS/TWD) (N.D.N.Y. Aug. 13, 2018)

9:16-cv-00027 (GLS/TWD)

08-13-2018

DEVROL PALMER, Plaintiff, v. DR. MICHAEL SEIDMAN, et. al., Defendants.

APPEARANCES: DEVROL PALMER Plaintiff, pro se Trysee Brown's Town P.O. St. Ann Jamaica WI BARBARA D. UNDERWOOD Attorney General of the State of New York Attorney for Defendants The Capitol Albany, New York 12224 OF COUNSEL: SHANNAN C. KRASNOKUTSKI, ESQ


APPEARANCES: DEVROL PALMER
Plaintiff, pro se
Trysee
Brown's Town P.O.
St. Ann
Jamaica WI BARBARA D. UNDERWOOD
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: SHANNAN C. KRASNOKUTSKI, ESQ THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER

I. INTRODUCTION

This pro se civil rights action, commenced pursuant to 42 U.S.C. §1983, has been referred for Report and Recommendation by the Hon. Gary L. Sharpe, Senior U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3 (c). Plaintiff Devrol Palmer, a former inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges Eighth Amendment deliberate indifference claims against Defendants Dr. Michael Seidman, C. Wheeler, K. Wyen, J. Parks, Grace Kennedy, and C. Hayes. (Dkt. No. 28 at 2.)

Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.

Defendants, with the exception of K. Wyen who has not been properly served in this action, have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP"). (Dkt. No. 80.) Plaintiff has not opposed the motion despite the Court sua sponte granting an extension of time within which to do. (Dkt. No. 84.) For reasons explained below, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 80) be granted and that Plaintiff's amended complaint (Dkt. No. 28) be dismissed in its entirety.

II. BACKGROUND

Dr. Seidman treated Plaintiff for his seizure disorder at Riverview Correctional Facility ("Riverview") from August 2014, through September 2015. (Dkt. No. 80-1 at 2.) At all relevant times, Dr. Seidman prescribed Plaintiff Keppra, an anti-seizure medication, to be taken twice a day on a "nurse administered" or "1:1" basis. Id. Plaintiff alleges he missed multiple doses of Keppra from July 10, 2015, through July 23, 2015, while in transit from Riverview to a court appearance in Bronx, New York, which involved stops at Watertown Correctional Facility ("Watertown") and Ulster Correctional Facility ("Ulster"). (Dkt. No. 28 at 3-5.)

Plaintiff was released to parole supervision on September 14, 2015. See http://nysdoccslookup.doccs.ny.gov (information for former inmate Devrol Palmer, DIN 01-A-4746) (last visited August 13, 2018) (noting Palmer was conditionally released to immigration). In February 2017, Plaintiff was deported from the United States to Jamaica, where he currently resides. (Dkt. 80-17 at 4, 10-12.)

Specifically, Plaintiff claims he missed the following scheduled doses of Keppra:

(1) July 10, 2015, a.m. dose at Riverview;

(2) July 13, 2015, a.m. dose at Watertown;

(3) July 13, 2015, p.m. dose at Ulster;

(4) July 14, 2015, a.m. dose at Ulster;

(5) July 15, 2015, a.m. dose at Ulster;

(6) July 21, 2015, a.m. dose at Ulster;

(7) July 23, 2015, a.m., dose at Watertown; and

(8) July 23, 2015, p.m. dose at Riverview. Id. Plaintiff also claims he missed his morning/early afternoon dose of Keppra on July 25, 2015, at Riverview. Id. at 5. Later that afternoon, on July 25, 2015, Plaintiff suffered two seizures. Id. at 6.

Plaintiff alleges Dr. Seidman was deliberately indifferent to his serious medical needs because he prescribed Keppra on a 1:1 basis, failed to provide appropriate instruction or otherwise ensure Plaintiff received his medication while in transit in July 2015, and was grossly negligent in his supervision of subordinates. Id. at 6-10. Plaintiff alleges Parks, Hayes, Kennedy, and Wheeler were deliberately indifferent to his serious medical needs by failing to administer scheduled doses of Keppra at various point in time in July 2015, thereby contributing to his medication "falling below the therapeutic level" and causing Plaintiff's seizures on July 25, 2015. Id. at 10-17.

Dr. Seidman, Parks, and Hayes have submitted declarations in support of Defendants' motion, along with declarations from non-party Nurse Administrators at Riverview, Watertown, and Ulster. (Dkt. Nos. 80-1 through 80-17.) Generally, Defendants contend Dr. Seidman is entitled to summary judgment because he provided appropriate treatment, does not develop policy, and does not supervise any other Defendant. (Dkt. No. 82 at 10-14.) Wheeler, Parks, Kennedy, and Hayes seek summary judgment for lack of personal involvement because they were either (1) not working during the shift they allegedly failed to administer medication; (2) actually administered the alleged missed dose, and/or (3) Plaintiff was marked as a "No Show" for the alleged missed dosage. Id. at 14-19.

III. APPLICABLE LEGAL STANDARD

Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, 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." Liberty Lobby, 477 U.S. at 248.

Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating 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.") (quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).

The Court finds Plaintiff's amended complaint was adequately verified under 28 U.S.C. § 1746 by Plaintiff's declaration under penalty of perjury. (Dkt. No. 28 at 1, 20.)

In Jeffreys v. City of New York, 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." 426 F.3d 549, 554 (2d Cir. 2005). "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 [FRCP] 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); see also Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994) (district court "should have afforded [pro se litigants] special solicitude before granting the . . . motion for summary judgment"). 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 Civ. 5981 (WHP) (JCF), 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 Plaintiff in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

When a party fails to respond to a motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the moving party. Id.; see also Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

IV. PLAINTIFF'S FAILURE TO COMPLY WITH 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). In this case, Plaintiff has failed to respond to Defendants' statement of material facts as required under 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, the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to comply with the requirements of FRCP Rule 56(e) and L.R. 7.1. 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." But 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).

Plaintiff was provided with the requisite notice of the consequences of his failure to respond to their summary judgment motion. (Dkt. No. 83.)

This Circuit adheres to the view that nothing in FRCP Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute where a nonmovant willfully fails to respond to a properly filed summary judgment motion. Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). However, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.

V. DISCUSSION

A. Personal Involvement

The law is settled 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) (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)). In order to prevail on a § 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). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). Thus, "[h]olding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934).

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. Colon, 58 F.3d at 873 (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). "Further, a [§] 1983 plaintiff must 'allege a tangible connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)) (other citation omitted).

The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the standards in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).

B. Deliberate Indifference to Serious Medical Needs

Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure, among other things, that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A claim that prison officials have intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).

To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin, 467 F.3d at 280 ("[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); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (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[.]" (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 element, the plaintiff must demonstrate that defendants 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).

Disagreements over medication, diagnostics, forms of treatment, and the need for specialists are not adequate grounds for a § 1983 claim, since those issues implicate medical judgment and at worst negligence constituting malpractice. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001). Stated another way, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106; accord Hill, 657 F.3d at 123; see also Smith, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation.").

C. Analysis

1. Serious Medical Need

Since his arrival at Riverview in August 2014, Plaintiff received on-going treatment for his seizure condition and was prescribed Keppra, 500 mg, twice daily. (Dkt. No. 80-1 at 2.) Plaintiff alleges he missed multiple doses of his required seizure medication from July 10, 2015, through July 25, 2015, and, as a result, he suffered two seizures on July 25, 2015. (Dkt. No. 28 at 3-6.) Thus, for purposes of this motion, the Court finds Plaintiff's seizure condition constitutes a serious medical need. See, e.g., Harrington v. Vadlamudi, No. 9:13-CV-0795(BKS/DJS), 2016 WL 4570441, at *7 (N.D.N.Y. Aug. 9, 2016) (finding a seizure condition is a serious medical condition); Bennett v. Hunter, No. 9:02-CV-1365 (FJS/GHL), 2006 WL 1174309, at *3 (N.D.N.Y. May 1, 2006) (same).

Defendants do not address the first prong of the deliberate indifference standard in their memorandum of law. (Dkt. No. 80-2.)

2. Dr. Seidman

Plaintiff claims Dr. Seidman was deliberately indifferent to his serious medical needs because he (1) prescribed Keppra on a 1:1 basis as opposed to "self-carry" while in transit; (2) failed to ensure Plaintiff would receive his medication as scheduled; and (3) was grossly negligent in his supervision of subordinates. (Dkt. No. 28 at 7-10.)

The Court finds no reasonable fact finder could conclude that Dr. Seidman's treatment was inadequate or, to the extent it could be construed as inadequate, which the Court seriously doubts, that Dr. Seidman acted with a culpable state of mind. Plaintiff's allegations boil down to a disagreement regarding the course of treatment Dr. Seidman chose. The Eighth Amendment does not afford prisoners a right to medical treatment of their choosing, and prison medical personnel are vested with broad discretion to determine what method of care and treatment to provide their patients. Estelle, 429 U.S. at 107.

In addition to work in the private and academic sectors, Dr. Seidman has been employed by DOCCS since 1987, and has been the Medical Director at Riverview since 2005. (Dkt. No. 80-1 at 1-2.) As Medical Director, his duties include treating inmate patients and supervising other physicians at Riverview. Id. at 2.

Dr. Seidman received his medical degree from Boston University in 1979. (Dkt. No. 80-1 at 1.) He completed residences at Montefiore Hospital in Bronx, New York and SUNY HSC Brooklyn in Brooklyn, New York. Id. He is board certified in Internal Medicine and Nephrology. Id.

Dr. Seidman prescribed Keppra to Plaintiff, to be taken twice a day on an 1:1 or nurse administrated basis. (Dkt. No. 80-1 at 2; Dkt. No. 80-2.) Generally, Plaintiff alleges Dr. Seidman was deliberately indifferent to his serious medical needs because he failed to prescribe Keppra as "self-carry" or "keep on person" while out to court. (Dkt. No. 28 at 7-8.) In support of Defendants' motion, Dr. Seidman declares:

My prescription of Keppra to Plaintiff reflected my medical judgment that Plaintiff required this medication, in the dosage and the frequency at which I prescribed it to him. When I prescribed this medication to Plaintiff on a 1:1 basis, I understood that my medical orders would be carried out, and that Plaintiff would continue to receive this medication, whether at Riverview or elsewhere. It was certainly my intention that my orders be carried out.

Id
. at 4. Indeed, Dr. Seidman considers nurse administration to be the most appropriate means of dispensing seizure medications. Id. He explains requiring nurse administration of essential medication reduces problems of non-compliance, which otherwise arise frequently in a correctional facility setting. Id. Similarly, requiring nurse administration avoids improper dosing or overdose of seizure medications. Id. In fact, during the many years Dr. Seidman has worked as a DOCCS physician, he has always prescribed seizure medication on a 1:1 basis, and he continues to prescribe these medications on a 1:1 basis for all seizure patients currently housed at Riverview. Id.

As to Plaintiff's claim that Dr. Seidman "failed to provide specific written instruction" or otherwise failed to ensure that Plaintiff would not "miss" his medication while in transit, Dr. Seidman does not develop procedures relating to transport of inmates. Id. at 3. Rather, such policies are contained in DOCCS Directives originating from Central Office. (Dkt. Nos. 28 at 8, 80-1 at 2-3.) Dr. Seidman's role is to issue orders and prescribe medication for the proper treatment of his patients at Riverview. Id. at 2. Thus, when Dr. Seidman's patients are in transit, he relies on DOCCS policies and procedures to ensure continuity of their care. Id. Among those procedures, when transfer of an inmate is anticipated, medical staff complete documentation informing transporting personnel and receiving facilities of an inmate's ongoing medical needs. Id. Accordingly, non-party medical staff issued an Intersystem Transfer/Pre-Screening Form for Plaintiff on June 26, 2015, indicating, among other health information, Plaintiff has a seizure disorder, and requires "1:1 drugs" and a bottom bunk. (Dkt. No. 81-2.) Dr. Seidman explains that completion of that form was to facilitate continuation of Plaintiff's medical treatment pursuant to his orders while in transit. Id. at 4. Plaintiff's claim that Dr. Seidman should have changed his medication regimen prior to his court trip amounts to nothing more than a disagreement and preference over medical treatment. See, e.g., Patterson v. Lilley, No. 02 Civ.6056 NRB, 2003 WL 21507345, at *5 (S.D.Y.Y. June 30, 2003) (finding prisoner's disagreements with method in which medication was administered involved mere difference of opinion rather than deliberate indifference).

As to Plaintiff's contention Dr. Seidman was "grossly negligent in managing subordinates," Dr. Seidman does not supervise any other Defendant in this action. (Dkt. No. 28 at 9.) As Medical Director, Dr. Seidman has supervisory authority over other physicians at Riverview. (Dkt. No. 80-1 at 2.) He does not, however, supervise the nurses at Riverview; these employees are supervised by Nurse Administrator Lisa Cota. Id.; see also Dkt. No. 80-4 at 1. Nor does Dr. Seidman supervise personnel at any other DOCCS facility. (Dkt. No. 80-1 at 2.)

As Nurse Administrator at Riverview, Cota's responsibilities include the supervision of the nursing staff, nursing scheduling, monitoring time and attendance of nursing staff, training of nursing staff, and overseeing the provision of nursing care to patients. (Dkt. No. 80-4 at 1.)

Nevertheless, at this juncture, Plaintiff has not identified and/or properly served any Riverview employee who allegedly failed to provide him with medication on one of the specified dates at issue. While Plaintiff claims he did not receive his morning dose of Keppra at Riverview on July 10, 2015, the Court notes Plaintiff has not named any individual responsible for this incident, and, notably, Plaintiff's Treatment and Medication Record ("TMR") indicate both scheduled doses were administrated to Plaintiff at Watertown on that date. (Dkt. No. 28 at 11; Dkt. No. 80-11 at 2.) As to Plaintiff's claim that K. Weyn, purportedly a registered nurse at Riverview, failed to provide him with medication on the afternoon of July 23, 2015, no individual identified as K. Weyn had been properly served in this action. A summons addressed to K. Weyn at Riverview was returned unexecuted. (Dkt. No. 28 at 14-15; Dkt. No. 40.) Finally, although Plaintiff claims he missed his scheduled medication on the morning of July 25, 2015, Plaintiff apparently attributes that failure to unnamed corrections officers supervising Riverview's Rastafarian Family Day event on July 25, 2015, rather than to any subordinate of Dr. Seidman. (See Dkt. No. 28 at 5-6, 18.)

Based on the foregoing, the Court recommends granting summary judgment to Dr. Seidman.

3. Parks

Plaintiff claims Parks failed or refused to provide him his morning doses of Keppra on July 13, 2015, and July 23, 2015, prior to his departure from Watertown on each of those dates. (Dkt. No. 28 at 10.) Parks seeks summary judgment for lack of personal involvement. (Dkt. No. 82 at 17-18.) "It is axiomatic that, as with any other type of civil rights violations, personal involvement in the conduct giving rise to a deliberate indifference claim is a prerequisite to a finding of liability." Johnson v. Adams, No. 914-CV-0811 (GLS/DEP), 2016 WL 6604129, at *7 (N.D.N.Y. July 25, 2016) (collecting cases).

Michelle McCormick, Nurse Administrator at Watertown has submitted a declaration in support of Defendants' motion. (Dkt. No. 80-11 at 1.) Her responsibilities in this position include the supervision of the nursing staff, nursing scheduling, monitoring time and attendance of nursing staff, training of nursing staff, and overseeing the provision of nursing care to patients. Id . Attached to her declaration are Watertown's nursing duty records for July 2015 and Plaintiff's TMR. (Dkt. Nos. 80-11; 80-12; 80-13.)

The record demonstrates Parks was the medication administration nurse on duty for the "noon medication runs" on both dates. (Dkt. No. 80-11 at 2.) However, there is no indication Plaintiff ever reported for the noon medication run on either date and/or was denied medication. Id. Plaintiff's TMR indicates Plaintiff was either "No Show" or not present in the facility for the noon medication runs on July 13, 2015, and July 23, 2015. Id., Dkt. No. 80-13. In her declaration, Park states she does not recall seeing Plaintiff or interacting with him during the medication runs at issue. (Dkt. Nos. 80-15 at 2.)

As discussed above, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass, 790 F.2d at 263. Here, the record demonstrates Parks was not personally involved in Plaintiff's alleged missed doses on either July 13, 2015, or July 23, 2015. Therefore, the Court recommends granting summary judgment to Parks for lack of personal involvement.

4. Hayes

Plaintiff claims Hayes, a registered nurse at Ulster, failed or refused to provide him with medication on three occasions: (1) July 13, 2015, p.m. dose; (2) July 14, 2015, a.m. dose; and (3) July 15, 2015, a.m. dose. (Dkt. No. 28 at 12.) Defendants argue Hayes is entitled to summary judgment because the record demonstrates Hayes administered medication to Plaintiff on July 13, 2015, and had no personal involvement in the alleged denial of medication on July 14, 2015, and July 15, 2015. (Dkt. No. 82 at 14-16.)

Merri White, Nurse Administrator at Ulster, has submitted a declaration in support of Defendants' motion. (Dkt. No. 80-7 at 1.) Like McCormick, her responsibilities include the supervision of nursing staff, nursing scheduling, monitoring time and attendance of nursing staff, training of nursing staff, and overseeing the provision of nursing care to patients. Id . Attached to White's declaration are Ulster's nursing duty record for July 2015 and Plaintiff's TMR. (Dkt. Nos. 80-8; 80-9.)

Plaintiff's TMR indicates Hayes administered medication to Plaintiff on the afternoon of July 13, 2015. (Dkt. Nos. 80-7 at 1, 80-10 at 2.) To the extent Plaintiff claims Hayes should have administered an "extra" dose of medication to account for an alleged missed dose at Watertown earlier that day, both Hayes and White testify that such unilateral action by Hayes would have violated Ulster's policy. (Dkt. Nos. 80-7 at 2; 80-10 at 2.) Indeed, Hayes declares he has "no authority to 'double up' doses or authorize extra doses of medication." (Dkt. No. 80-10 at 2.) Further, both Hayes and White testify an alleged single missed dose would not have prompted any emergency action by medical staff. (Dkt. Nos. 80-7 at 2; 80-10 at 2.) As such, the Court finds Plaintiff's allegations pertaining to July 13, 2015, reflect no more than a dispute as to the appropriate medical treatment for Plaintiff. See Chance, 143 F. 3d at 703 (holding disagreement over the proper treatment does not create a constitutional claim).

Regarding the alleged missed doses of Keppra on July 14, 2015, and July 15, 2015, the record demonstrates Hayes was not the nurse on duty for the morning medication run on either day. (Dkt. Nos. 80-10 at 2; 80-7 at 3.) Further, Plaintiff's TMR was marked "No Show" for the morning medication runs on these days. (Dkt. No. 80-7 at 3.)

Based on the foregoing, the Court finds Hayes was not personally involved in any alleged missed doses of Keppra at Ulster. See, e.g., Gabriel v. Cty. of Herkimer, 889 F. Supp. 2d 374, 396 (N.D.N.Y. 2012) (granting summary judgment to nurse for lack of personal involvement where record demonstrated she was not on duty during times at issue). Therefore, the Court recommends that Hayes be granted summary judgment for lack of personal involvement.

5. Kennedy

Plaintiff alleges Kennedy, a registered nurse at Ulster, failed or refused to provide Plaintiff with medication in the morning/early afternoon of July 21, 2015, before he left the facility on his return trip to Riverview. (Dkt. No. 28 at 4, 13.) Defendants argue Kennedy is entitled to summary judgment because there is absolutely no evidence that she had any personal involvement in any alleged failure to provide medication to Plaintiff on that date. (Dkt. No. 82 at 16-17.) The Court agrees with Defendants.

The record demonstrates Kennedy was not on duty during the shift at issue. (Dkt. No. 80-7 at 3.) Therefore, the Court recommends granting summary judgment to Kennedy for lack of personal involvement. See, e.g., Gabriel, 889 F. Supp. 2d at 396.

6. Wheeler

Plaintiff alleges Wheeler, a registered nurse at Riverview, was deliberately indifferent by failing to provide medication to him in the morning/early afternoon on July 25, 2015. (Dkt. No. 28 at 15-17.) Defendants argue Wheeler is entitled to summary judgment because there is no evidence that Wheeler was personally involved in any alleged failure or denial of medication to Plaintiff on that date. (Dkt. No. 82 at 19.)

The record demonstrates Wheeler was not the Riverview nurse on duty during the morning/early afternoon medication run on July 23, 2015. (Dkt. No. 80-4 at 2.) Rather, Wheeler worked the 2 p.m. to 10 p.m. shift that day. Id. Plaintiff's TMR reflects Plaintiff was a "No Show" for the noon medication run. Id. According to Plaintiff, he attended a religious family day event that day scheduled from 8 a.m. until 2:30 p.m. Id. at 15. At approximately 2:50 p.m., all inmates that attended the religious family event were sent back to their housing unit. Id. at 6. Later that afternoon, Plaintiff suffered two seizures. Id.

Here, the Court finds Wheeler had no personal involvement in any alleged failure to provide medication to Plaintiff on July 25, 2015. Therefore, the Court recommends granting summary judgment to Wheeler for lack of personal involvement. See, e.g., Gabriel, 889 F. Supp. 2d at 396.

VI. FAILURE TO PROSECUTE

Plaintiff had a duty to diligently litigate his claims, including a specific duty to identify, name, and serve Defendant K. Weyn, purportedly a registered nurse at Riverview. See Fed. R. Civ. P. 41(b); L.R. 41.2(a); Fed. R. Civ. P. 4(m). Plaintiff has failed to fulfill that duty.

As indicated above, K. Weyn has not been properly served in this action; a summons addressed to K. Weyn at Riverview was returned unexecuted on February 13, 2017. (Dkt. No. 40.) On November 14, 2017, Plaintiff was directed to advise the Court within thirty (30) days whether he actually intended to name "Katherine Weegar" a nurse employed at Riverview on July 23, 2013, as Defendant instead of "K. Weyn." (Dkt. No. 77.) If, however, Plaintiff was not able to determine if K. Weyn was "Katherine Weegar," he was directed to show cause within thirty (30) days of the issuance of the November 14, 2017, Text Order why his claims against Defendant K. Weyn should not be sua sponte dismissed without prejudice for failure to serve Defendant K. Weyn pursuant to FRCP Rule 4(m). Id. To date, Plaintiff has not responded to this directive nor communicated with the Court in any fashion. (See Docket Report.)

"United States Courts are vested with broad discretion to impose sanctions for non-compliance with court orders, and those sanctions can include the severe sanction of dismissing a case." Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006) (Kahn, D.J.) (citing Internet Law Library, Inc. v. Southridge Capital Mgmt., LLC, No. 01 Civ. 6600(RLC), 2005 WL 3370542, at *1 (S.D.N.Y. Dec. 12, 2005) ("Moreover, the court has the inherent authority to dismiss a case when a party disobeys any of its orders.")). Furthermore, FRCP Rule 41(b) provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190 (RSP/RWS), 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996). It is also well-settled that the term "these rules" in Rule 41(b) refers not only to the Federal Rules of Civil Procedure, but also to the local rules of practice for a district court. Tylicki, 244 F.R.D. at 147.

In determining whether such dismissal is appropriate, the court should consider (1) the duration of the delay occasioned by the plaintiff's conduct, (2) whether the plaintiff has received notice that further delay would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4) the plaintiff's right to due process, and (5) the efficacy of lesser sanctions. Lucas v. Miller, 84 F.3d 532, 535 (2d Cir. 1996); Davis v. Citibank, N.A., 607 F. App'x 93, 94 (2d Cir. 2015). No one factor is dispositive. See Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001). However, with regards to pro se litigants, Rule 41(b) dismissal "remains a harsh remedy to be utilized only in extreme circumstances," and pro se plaintiffs "should be granted special leniency regarding procedural matters." LeSane, 239 F.3d at 209 (citation omitted).

In this instance, the Court finds that the above five factors weigh decidedly in favor of dismissal for failure to prosecute and for failure to comply with a court directive. Considering the first factor, L.R. 41.2(a) states that "the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution. L.R. 41.2(a). Here, Plaintiff has failed to take any action in the case for approximately one year. (See Docket Report.)

Regarding the second factor, "[t]he Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction." Folk v. Rademacher, No. 00-CV-199S, 2005 WL 2205816, at *4 (W.D.N.Y. Sept. 9, 2005) (citing Martens, 273 F.3d at 180- 81). Here, Plaintiff was ordered on November 17, 2017, to show cause why his claims against K. Weyn should not be sua sponte dismissed. (Dkt. No. 77.) Plaintiff has not responded. See, e.g., Nolan v. Primagency, Inc., No. 07 Civ. 134 (RJS), 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) ("A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.").

With respect to the third factor, "prejudice to defendants resulting from unreasonable delay may be presumed." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Here, the fact that K. Weyn has not been properly served presents an obvious impediment to the case going forward. Moreover, the events giving rise to Plaintiff's claims occurred in July 2015, and the statute of limitations regarding the alleged July 23, 2013, missed dosage of Keppra has since expired. See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (holding statute of limitations applicable to claims brought in New York under 1983 is three years).

As to the fourth factor, the Court finds that the need to alleviate congestion on the Court's docket outweighs Plaintiff's right to receive a further chance to be heard in this case. With respect to the fifth factor, the Court has carefully considered sanctions less drastic than dismissal and finds them to be inadequate.

Based on the foregoing, the Court recommends sua sponte dismissing Plaintiff's claims against K. Weyn with prejudice for failure to diligently litigate. See, e.g., McNamee v. Schoharie Cty. Jail, No. 9:06-CV-1364 (TJM/GHL), 2008 WL 686796, at *1 (N.D.N.Y. Mar. 10, 2008) (sua sponte dismissing the complaint against defendants with prejudice for failure to prosecute); Garcia v. City of New York, No. 14-CV-4160 (NGG) (LB), 2016 WL 1275621, at *4 (W.D.N.Y. Mar. 31, 2016) (same); Baker v. Volpe, No. 9:01-cv-1894 (GLS/GJD), 2006 WL 3150030, at *1 (N.D.N.Y. Nov. 1, 2006) (dismissing complaint in its entirety with prejudice for failure to prosecute).

WHEREFORE, it is hereby

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 80) be GRANTED; and it is further

RECOMMENDED that Plaintiff's claims against K. Weyn be sua sponte DISMISSED WITH PREJUDICE for failure to prosecute; and it is further

RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 28) be DISMISSED IN ITS ENTIRETY; and it is further

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (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. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: August 13, 2018


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. P. 6(a)(1)(C). --------

Syracuse, New York

/s/_________


Thérèse Wiley Dancks


United States Magistrate Judge