Chrichlow v. Annucci

1

KEVIN DAMION CRICHLOW, Plaintiff, v. ACTING COMMISSIONER ANTHONY J. ANNUCCI DOCCS, et al., Defendants.

No. 18-CV-03222 (PMH)

United States District Court, S.D. New York

October 7, 2022

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, United States District Judge.

Kevin Damion Crichlow (“Plaintiff”), proceeding pro se, is a chronic litigant known to the federal courts throughout New York State.^[1] The Third Amended Complaint (“TAC”)-the operative pleading, representing Plaintiff's fourth attempt at satisfying Federal Rule of Civil Procedure 8(a)(2) since this case was first filed in April 2018-spans 33 handwritten pages, refers to over 30 incidents spanning back to November 2014, and names 45 Defendants. (Doc. 175, “TAC”). Plaintiff seeks relief under 42 U.S.C. §§ 1981, 1983, 1985, 1986 the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq. (Id. at 1).

Pending presently before the Court is a partial motion to dismiss the TAC filed by: (1) Anthony J. Annucci (“Annucci”); (2) Dr. Jeffrey Arliss (“Arliss”); (3) C.O Michael Makowksi (“Makowski”); (4) Sgt. Timothy McCoy (“McCoy”); (5) Capt. Gary Sipple (“Sipple”); (6) Sgt. William Cole (“Cole”); (7) Warden William Keyser (“Keyser”); (8) C.O. Timothy Fitzpatrick (“Fitzpatrick”); (9) Deputy Edward Burnett (“Burnett”); (10) Lt. William Holloran (“Holloran”); (11) C.O. Mark Puerschner (“M. Puerschner”); (12) C.O. Edward Puerschner (“E. Puerschner”); (13) Nurse Floyd Darbee (“Darbee”); (14) C.O. Earl Jacobs (“Jacobs”); (15) C.O. Michael Terk (“Terk”); (16) Deputy Christopher Karson (“Karson”); (17) Lt. Wayne Jordan (“Jordan”); (18) C.O. George Gilmour (“Gilmour”); (19) C.O. Michael Kohler (“Kohler”); (20) Dr. Richard Skseveland (“Skseveland”); (21) C.O. Kyle Layton (“Layton”); (22) C.O. David Buchanan (“Buchanan”); (23) Sgt. Renee Askew (“Askew”); (24) Sgt. Van Fuller (“Fuller”); (25) Dr. Yelena Korobkova (“Korobkova”); (26) C.O. James Moshier (“Moshier”); (27) Dr. Janice Wolf (“Wolf”); (28) Dr. Mikhail Gusman (“Gusman”); (29) Nurse Sandra Proulx (“Proulx”); and (30) Nurse Lisa LaPenna (“LaPenna,” and with the other twenty-nine individuals identified, “Moving Defendants”). Moving Defendants filed their motion on May 20, 2022. (Doc. 225; Doc. 226, “Def. Br.”). Plaintiff responded on July 5 and July 11, 2022 with: (1) a 5-page “Affidavit in Opposition(s) of Motion(s) & Memorandum of Law(s);” (2) a 248-page (inclusive of attachments) “Opposition(s) of Motion(s) Rule 56 → Statement;” and (3) a 27-page “Declaration Part II of Motion Plaintiffs to Respond to File Opposition 3rd Amended Complaint Newly Discovered Evidences.” (Doc. 238; Doc. 239; Doc. 240). Moving Defendants filed a reply brief in further support of their motion on July 19, 2022. (Doc. 242, “Def. Reply”).

For the reasons set forth below, Moving Defendants' motion is GRANTED.

BACKGROUND

The Court limits its discussion only to potentially timely allegations (i.e., those arising at least after April 6 2015).^[2] Cleaving untimely incidents from the discussion leaves 18 separate events for consideration, which are addressed chronologically infra.^[3]

I. April 13, 2015 (Deliberate Indifference)

Arliss denied Plaintiff surgeries ordered by somebody on October 17, 2014. (TAC at 19).

II. April 19, 2015 (Excessive Force, Failure to Intervene)

At approximately 08:45 a.m., Sipple, Makowski, Cole, McCoy, and Fitzpatrick used a “dog strap” on Plaintiff. (Id.). Plaintiff claims that he was escorted by Makowski, who punched Plaintiff in the face while the others present watched. (Id.). Plaintiff alleges that Makowski “pull[ed] so hard” on the strap that bones popped out of joints and nerve damage resulted. (Id.).

III. May 15, 2015 (Conditions of Confinement and Denial of Medical Care)

Plaintiff and other inmates complained about showers being too hot. (Id. at 21). Plaintiff maintains that he “suffer[ed] skin swelling” that “fill[ed] up with pus,” and could not take a shower. (Id.). Plaintiff insists that Makowski, Fitzpatrick, Gilmour, Cole, and McCoy knew about the injuries from their own observations and “face to face reports,” but that these men refused to allow Plaintiff to seek medical treatment. (Id.).

IV. May 29, 2015 (Excessive Force, Failure to Intervene)

At about 09:00 a.m., Makowski and Fitzpatrick searched Plaintiff's cell. (Id. at 21). About two hours later, at 11:00 a.m., Burnett came to Plaintiff's cell and advised that Makowski and Fitzpatrick were going to “run in there [(i.e., Plaintiff's cell)] and br[eak] [Plaintiff's] fucking neck.” (Id.). At that point, Fitzpatrick entered the cell and hit Plaintiff “so hard [with] bulletproof shields” that he ended up suffering a concussion, bleeding from the forehead, and a lump the “size of a baseball.” (Id. at 22). Plaintiff was slammed “violently to the floor,” at which point he was beaten all over his body by M. Puerschner, Makowski, and “6 other John Does.”^[4] (Id.).

V. May 30, 2015 (Deliberate Indifference)

At about 09:00 a.m., Deputy Superintendent Gail Williams (“Williams”) and Fitzpatrick denied Plaintiff emergency sick call.^[5] (Id. at 23). Plaintiff says that he felt lightheaded and passed out. (Id.).

VI. June 12, 2015 (Procedural Due Process)

Plaintiff writes:

[o]n or about 6.12.2015 at S.H.U. Cell 252, Plaintiffs filed a PREA complaint & grievances & O.S.I. from June 8^th & 5^th & two time on June 8, 15 a retaliation Plaintiffs was sexual assaulted 3-differents time & prior by C.O. Makowski. Defendants Lt. [Holloran] and Captin Sipple on Tier 2 & 3 hearing tape & deny reasonable accommodation headphones & pocket talker, Lt. [Holloran] is blackout on video-tape to cover up willful misconduct and due process violation in 1^st, 8^th, 14^th Amendment.

(Id.).

VII. June 13, 2015 - June 15, 2015 (Procedural Due Process)

Plaintiff insists that Jordan, Holloran, Burnett, Makowski, and Fitzpatrick denied Plaintiff hearing aids, a battery, a pocket talker, and headphones at a disciplinary hearing. (Id. at 24). These individuals refused Plaintiff the items because Translator Jason Gibson (“Gibson”) allowed the deprivation. (Id.). Plaintiff claims that he was denied the devices “as retaliation” for grievances, “fabricated misbehavior reports,” and participating in an “interview . . . with O.S.I.” (Id.).

VIII. June 23, 2015 (Reasonable Accommodation)

At 08:13 a.m., Makowski and M. Puerschner told Audiologist John Sherhan (“Sherhan”) not to issue Plaintiff hearing aids, batteries, and headphones as “retaliation & revenge, in violation of” the ADA and Rehabilitation Act.^[6] (Id. at 24-25). This refusal denied Plaintiff “the right to participation in [a] due process hearing” at some point. (Id. at 25).

IX. July 10, 2015 - July 16, 2015 (First Amendment Retaliation)

At 07:30 a.m., presumably on one of the days in the above-identified timeframe, Makowski and M. Puerschner denied Plaintiff food “as . . . retaliation & revenge” in connection with unidentified grievances and “protected activities.” (Id. at 25).

X. July 29, 2015 (Failure to Protect)

Between 09:00 a.m. and 11:00 a.m., as Makowski, McCoy, and Coles were preparing another inmate for transport, Makowski told the inmate “to throw[] urine & feces on Plaintiff.” (Id. at 25). Plaintiff, Gilmour, and Makowski all saw that the other inmate had “several cups of urine & feces,” but Makowski said he “didn't care” if Plaintiff was doused in human excrement. (Id. at 25-26). Plaintiff asked “Group of Defendants” to take him a different way and “they refused” to do so. (Id. at 26). Both Plaintiff and his personal belongings were thereafter coated “with toxins & sour milk.” (Id.). Plaintiff maintains that he suffered from, inter alia: double vision; painful swelling around his eyes; chronic headaches; conjunctivitis; and sensitivity to light. (Id.).

XI. September 7, 2018 (Deliberate Indifference, Excessive Force, and Procedural Due Process)

At 08:00 a.m., Buchanan “squeezed [Plaintiff's] butt” and “forcibl[y]” touched Plaintiff's penis during a pat frisk. (Id. at 26). Plaintiff maintains that, when he protested, Buchanan “became belligerent.” (Id.). Fuller covered up the incident. (Id.). Buchanan “fabricated [a] false misbehavior report & said we don't forget asshole.” (Id.). Plaintiff reported the incident to Jordan. (Id.). Jordan had Plaintiff placed in keeplock for 30 days without a pocket talker. (Id.).

XII. November 1, 2018 (Deliberate Indifference)

Plaintiff was stabbed by an unidentified prisoner. (Id. at 27). Moshier and Layton thereafter refused Plaintiff “emergency sick call.” (Id.).

XIII. November 2, 2018 (Deliberate Indifference)

Plaintiff “went to emergency sick call” and Darbee refused him the “right to notify senior staffs about puncture wound from ice pick injury.” (Id. at 27). Darbee told Plaintiff to return to his cell, but he refused. (Id.). Presumably, when returning to his cell, Plaintiff encountered Askew. (Id.). Plaintiff told Askew what happened and Askew returned Plaintiff to the infirmary. (Id.).

XIV. November 15, 2018 (Excessive Force, Failure to Protect, and Deliberate Indifference)

Plaintiff told Buchanan that he had been stabbed in D South Block. (Id. at 27). Buchanan acknowledged the statement but escorted Plaintiff back to D South Block. (Id.). Plaintiff was then, in front of Buchanan, attacked by the “same prisoners” who stabbed him previously. (Id.). Buchanan, during the altercation, sprayed Plaintiff with an entire can of pepper spray. (Id at 28). Plaintiff suffered, inter alia, two broken fingers and a swollen hand, but “received no emergency treatment”...