Purcelle v. Thomas

BRITTAIN J. PURCELLE, Plaintiff, v. JOHN THOMAS, et al., Defendants.

9:18-CV-77 (GLS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 6, 2020

APPEARANCES:

BRITTAIN J. PURCELLE

Plaintiff, pro se

14-B-0600

Clinton Correctional Facility

P.O. Box 2001

Dannemora, New York 12929

HON. LETITIA JAMES

Attorney General for the State of New York

Counsel for Defendants

300 South State Street, Suite 300

Syracuse, New York 13202

OF COUNSEL:

WILLIAM E. ARNOLD, IV, ESQ.

Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

On January 18, 2018, Plaintiff Brittain J. Purcelle, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983") regarding alleged violations of his constitutional rights while he was housed at Auburn Correctional Facility ("Auburn"). (Dkt. No. 1.) Defendants and claims remaining following the District Court's initial review of the complaint are: (1) Eighth Amendment excessive force claim against Corrections Officer John Thomas ("Thomas"); (2) Eighth Amendment excessive force and failure to intervene claims against Corrections Officers John Does 1-3; (3) Eighth Amendment medical indifference claims against Nurse A. Hoppins ("Nurse Hoppins"), Dr. Pang Kooi ("Dr. Kooi"), and Nurse Doe; (4) Fourteenth Amendment due process claim against Hearing Officer Brian Bauersfeld ("Bauersfeld") and Director of Special Housing Unit ("SHU") Donald Venettozzi ("Venettozzi"); (5) New York state law claims for assault and battery against Thomas and John Does 1-3; and (6) New York state law claims for negligence against Nurse Hoppins, Dr. Kooi, and Nurse Doe. (Dkt. No. 11.) To date, Plaintiff has not moved to substitute an identified individual as a defendant in place of any Doe Defendant. (See Docket Report.)

Defendants now move for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 96.) Defendants seek dismissal of Plaintiff's Eighth Amendment claims against Nurse Hoppins and Dr. Kooi; Fourteenth Amendment claims against Bauersfeld and Venettozzi; state law claims for assault, battery, and negligence; and claims against the Doe Defendants for failure to prosecute. Id. Plaintiff submitted an untimely response to Defendants' motion, which the Court accepts and construes solely as a response in opposition to the motion for partial summary judgment, not as a discovery motion. (See Dkt. Nos. 103, 104, 106.) Defendants submitted a reply in further support of their motion. (Dkt. No. 107.) The Honorable Gary L. Sharpe, Senior United States District Judge, referred this motion to the undersigned for a report and recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).

For the reasons that follow, the Court recommends Defendants' motion be granted.

I. FACTUAL BACKGROUND

A. January 21, 2015, Incident

On January 21, 2015, Plaintiff wanted to respond to the "early go back" call and return to his cell from the recreation yard at Auburn. (Dkt. No. 96-2 at 14.¹) Plaintiff sought to leave recreation early as he had recently fallen on icy stairs and was still experiencing pain in his hip and back. Id. According to Plaintiff's version of events, as he approached the entrance to A block, Thomas stopped Plaintiff and told him he was too late to take advantage of the early go back. Id. at 15. Plaintiff tried to explain to Thomas that he had just been released from the infirmary and was moving slowly, and that other inmates were still going inside. Id. Plaintiff found Thomas' response "[a]ggressive and angry" and wanted to file a grievance. Id. After Plaintiff looked at Thomas' badge to get his name, Thomas grabbed the back of Plaintiff's jacket and began pushing Plaintiff into A block. Id. at 16-17. Once inside, Thomas put Plaintiff into a pat-frisk position and then "punched [Plaintiff] in the back of [his] head." Id. at 18. Plaintiff fell to the floor and Thomas continued punching, kneeing, and kicking Plaintiff. Id. At least one or two other officers were present during the assault. Id. According to Thomas' version of events, Thomas was escorting Plaintiff when Plaintiff "turned and struck" Thomas "with both hands in the chest." (Dkt. No. 96-3 at 2-3.)

Thomas told a sergeant who arrived on the scene Plaintiff had struck him. (Dkt. No. 96-2 at 21.) Although Plaintiff disputed this assertion to the sergeant, he was handcuffed and escorted to SHU. Id. At SHU, Plaintiff was strip-frisked. Id. at 22. It is undisputed that during the strip-frisk officers found two packets of synthetic marijuana (K-two) on Plaintiff's person between hisbuttocks. (Dkt. Nos. 96-2 at 22; 96-3 at 6.²) According to Defendants, Plaintiff was also found with Neurontin and Flexeril on his person. (Dkt. No. 96-4 at 1.³) Plaintiff denies having Neurontin on his person. (Dkt. No. 96-2 at 26.)

After the strip-frisk, Nurse Hoppins examined Plaintiff. Id. at 24. According to Plaintiff, Nurse Hoppins "didn't try to give [him] any help." Id. Plaintiff pointed to places that hurt, including his ribs and back, which Nurse Hoppins noted. Id. Plaintiff told her these areas were "on fire" and he wanted "some type of relief." Id. Plaintiff also told her his back "was messed up, that they had been kicking [him] and kneeing" him. Id. at 25. Plaintiff did not receive any treatment from Nurse Hoppins at this time. Id.

Nurse Hoppins filled out an Ambulatory Health Record ("AHR") Progress Note after examining Plaintiff. (Dkt. No. 96-4 at 1.) Nurse Hoppins reported that Plaintiff complained of rib and back pain. Id. Nurse Hoppins noted that Plaintiff moved all of his extremities without difficulty and was sitting upright on the floor holding his upper body up with his arms. Id. She also reported Plaintiff had no difficulty breathing, no ecchymosis, and no abrasions. Id. The Note also states Plaintiff was able to dress himself and ambulate without difficulty. Id.

After the strip-frisk, Plaintiff was placed on a 24-hour contraband watch in an observation cell. (Dkt. No. 96-2 at 23.) According to Plaintiff's complaint, he was under observation until he had two bowel movements. (Dkt. No. 1 at ¶ 42.) Plaintiff began bleeding from his penis. Id. at ¶ 44. Plaintiff requested the attention of a nurse and eventually saw NurseDoe, who did not do anything for Plaintiff. Id. at ¶¶ 45-47. Plaintiff contends no mention of this was made in the contraband-watch log. Id. at ¶ 49; see also Dkt. Nos. 96-5, 96-6.

Also on January 21, 2015, Plaintiff was prescribed Ibuprofen (400 mg), a painkiller, and Cyclobenzaprine (10 mg), a muscle relaxant. (Dkt. No. 96-7 at 1.) Dr. Kooi visited Plaintiff in the contraband watch observation cell the next morning, January 22, 2015. (Dkt. Nos. 96-2 at 26; 96-6 at 4.) According to Plaintiff, Dr. Kooi had been notified Plaintiff was stashing his medication, and, as a result, Dr. Kooi would have to discontinue Plaintiff's Neurontin. (Dkt. No. 96-2 at 27.) Plaintiff received medication on January 22, 2015, at 1:05 pm, 4:10 pm, and 6:30 pm, and refused medication on January 23, 2015, at 7:30 am. (Dkt. No. 96-6 at 4-6, 9.) Plaintiff's AHR Progress Note indicates that, between January 27 and February 27, 2015, Plaintiff received attention from Auburn medical staff. (See generally Dkt. 96-4 at 2-7.) Plaintiff generally complained of back pain. See generally id. Entries dated January 27, February 6, February 17, February 20, February 23, and February 25, 2015, indicate Plaintiff was in "[no apparent distress]." Id. His prescription for Ibuprofen was renewed on February 19, 2015. Id. at 6.

Plaintiff was transferred to Southport Correctional Facility on March 3, 2015. (Dkt. No. 96-11.)

B. Disciplinary Hearing

Plaintiff was issued two inmate misbehavior reports as a result of the January 21, 2015, incident. (Dkt. Nos. 96-8 at 5-6; 96-2 at 28-29.) Plaintiff was charged with violent conduct, assault on staff, refusing direct order, contraband, smuggling, and refusing search or frisk. (Dkt. No. 96-8 at 1.) Plaintiff's disciplinary hearing began on January 28, 2015, before Bauersfeld. Id. Plaintiff pled guilty to the contraband and smuggling charges and not guilty to the remainingcharges. Id. at 4. Plaintiff requested video evidence of the officers' escort of him from A block to SHU. (See Dkt. No. 96-2 at 30-31.) At the hearing, Bauersfeld first noted Plaintiff had not been provided with all of the requested videos and said he would conduct further inquiries about their existence. (Dkt. No. 96-9 at 11.) After further inquiry, Bauersfeld informed Plaintiff the requested video evidence was unavailable due to a disc malfunction. Id. at 52. Plaintiff was provided with a memorandum from Correction Officer M. Roberts, who stated he "was not able to retrieve any data" from the disc used to record the escort "after all resources available to us were exhausted." (Dkt. No. 96-12 at 1; see Dkt. No. 96-9 at 52.)

At the hearing, Plaintiff sought to read a twenty-four-page written statement into the record. (Dkt. Nos. 96-2 at 29; see Dkt. No. 96-9 at 18-48.) Plaintiff wanted to read this statement because "[he] felt . . . [he] needed to read that entire thing in to the record because this was going to be [his] statement about - from the beginning to end, what took place and what didn't take place." (Dkt. No. 96-2 at 29.) Bauersfeld stopped Plaintiff from reading his statement when Plaintiff began speaking about his medical claims and medical staff, which Bauersfeld opined were not relevant to the subject of the disciplinary hearing. (See Dkt. No. 96-9 at 44-48.) Bauersfeld did not permit Plaintiff to read the last three pages of his written statement. Id. at 45. Bauersfeld told Plaintiff he would "certainly take [the written statement] as part of the record and put it in the record." Id. at 47. Before adjourning the hearing for disposition, Bauersfeld stated "I want to...