13-826 - Allah v. Karandy et al [PDF 2119 KB]

177 Pages·2016·2.11 MB·English

Case 9:13-cv-00826-FJS-TWD Document 65 Filed 05/09/16 Page 1 of 177
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
KHAILAIRE ALLAH,
Plaintiff,
9:13-CV-0826
v.
(FJS/TWD)
B. HILTON, et. al.,
Defendants.
_____________________________________________
APPEARANCES: OF COUNSEL:
KHAILAIRE ALLAH
Plaintiff pro se
01-B-0997
Marcy Correctional Facility
P.O. Box 3600
Marcy, New York 13403
HON. ERIC T. SCHNEIDERMAN MELISSA A. LATINO, ESQ.
Attorney General for the State of New York Assistant Attorney General
Counsel for the Defendants
The Capitol
Albany, New York 12224
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
This pro se civil rights action, commenced by Plaintiff Khailaire Allah pursuant to 42
U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Glenn
T. Suddaby, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.
L.R. 72.3(c). Plaintiff claims that while he was in the custody of the New York State Department
of Corrections and Community Supervision ("DOCCS") and confined at Marcy Correctional
Facility ("Marcy C.F."), Defendants Dr. Khan ("Khan"), Medical Director, B. Hilton ("Hilton"),
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Deputy Superintendent for Mental Health, and Diane L. Van Buren ("Van Buren"), Executive
Assistant Commissioner, violated his Eighth Amendments rights and Fourteenth Amendment
right to due process. (See generally Dkt. No. 1.) Plaintiff seeks declaratory relief, injunctive
relief and compensatory damages. Id. at 17.
Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure. (Dkt. No. 54.) Plaintiff filed papers in opposition to the motion. (Dkt. No.
60.) Plaintiff also filed a second motion for the appointment of counsel. (Dkt. No. 64.)
Defendants have not opposed the motion to appoint counsel. For the reasons that follow, the
Court recommends that the motion for summary judgment (Dkt. No. 54) be granted in its entirety
as to Defendant Khan. The Court further recommends that the motion for summary judgment be
granted in part and denied in part as to Defendants Hilton and Van Buren. Plaintiff’s motion for
appointment of counsel is denied without prejudice. (Dkt. No. 64.)
I. FACTUAL BACKGROUND
In September 2010, DOCCS issued a Draft Directive on Inmate Exposure Control (No.
4939) ("Draft Directive"). (Dkt. No. 54-3 at 4, 14-18.) The purpose of the Draft Directive was
to establish protections from an inmate with a history of engaging in lewd conduct by exposing
private areas or public sexual activity/masturbation. Id. at 14. The policy provided
administrators with "tools" to control lewd behavior including a one piece green jumpsuit with a
zipper in the back secured with a small padlock. Id. This jumpsuit was defined in the Draft
Directive as an "Exposer-Control Suit" (hereinafter, "jumpsuit"). (Dkt. No. 54-3 at 14.) The
jumpsuit was designed to be worn over regular clothing and did not restrict movement but
prevented the inmate from exposing his or her "private areas." (Dkt. No. 54-3 at 14.)
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The Draft Directive included instructions regarding the procedure for use of an "Exposer
Control Order." (Dkt. No. 54-3 at 15.) Specifically, the Draft provided:
IV. PROCEDURE
Inmates who engage in lewd conduct shall be provided a one time
warning, Form #4939B, Attachment B, (*See note below for exception)
by a security supervisor explaining that further conduct of this nature
may result in the inmate being placed on an Exposer Shield and
Exposer Placard order and/or Exposer Control Suit order. The original
completed "Inmate Exposure Control - One Time Warning" Form,
(Attachment B) will be forwarded to the disciplinary office as part of
the Hearing packet, 1 copy to be retained in inmate's Guidance folder
and 1 copy to the inmate.
*Note: A warning is not necessary for Inmates who engage in lewd
conduct or sexual activity in the visiting areas.
(Dkt. No. 54-3 at 15.)
With respect to the use of the Exposer Control Suit, the Draft Directive provided:
B. Use of Secure Exposer Control Suit
1. The Deputy Superintendent for Security or, in his or her
absence, the O.D. or higher ranking authority may issue an
order (see Attachment A)1 placing an inmate who has
repeatedly and actively exposed his or her private area(s) to
staff and or visitors or has engaged in sexual activity in the
visiting areas on an Exposer Control Suit Order. The Secure
Exposer Control Suit may be used for:
b. Inmates in Mental Health Programs whenever they are
out of their cells for:
(1) Private interviews;
(2) Group Counseling;
(3) Visits; or
(4) Exercise.
(Dkt. No. 54-3 at 15.)
1 "Attachment A" is entitled Exposer Control Order. (Dkt. No. 54-3 at 17.)
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In February 2011, Plaintiff was transferred to Marcy C.F. (Dkt. No. 54-2 at 3.) Plaintiff was
housed in the Residential Mental Health Unit ("RMHU") and was designated as a "Level II."2 (Dkt. No.
54-3 at 7, 11.) As a "Level II" inmate, Plaintiff was required to be handcuffed from behind.3 Id. at 11.
At the relevant times referenced in the complaint, Defendant Hilton was the Deputy Superintendent of
Mental Health at Marcy C.F. (Dkt. No. 54-3 at 2.) Hilton was advised by DOCCS Central Office that
he was authorized to use the jumpsuit and therefore, he implemented Draft Directive No. 4939. Id. at 4-
5. If an inmate at Marcy C.F. engaged in lewd conduct, a one-time warning was issued advising the
inmate that if the behavior continued, the inmate would be required to wear the jumpsuit. Id. at 6.
Marcy C.F. staff could issue warnings without a finding of guilt on a ticket for lewd conduct. (Dkt. No.
54-3 at 8.) Hilton, or another high ranking official, could issue a recommendation for an Exposer
Control Order placing the inmate in the jumpsuit if the inmate exposed his private area(s) or engaged in
sexual activity. Id. The recommendation was forwarded to the Superintendent for approval. Id. If
approved, Hilton was charged with ensuring that the Exposer Control Order was issued to protect the
safety and security of the staff and inmate. Id. Hilton conferred with the RMHU treatment staff and
reviewed Exposure Control Orders every seven days. (Dkt. No. 54-3 at 8.)
At the relevant times referenced in the complaint, Defendant Khan was employed by DOCCS as
a Clinical Physician and assigned to provide medical care and treatment to inmates at Marcy C.F. (Dkt.
No. 55-1 at 1.) Khan attended to inmates approximately ten hours each month while the health care
2 The RMHU is a program that includes separate housing within the facility to provide
treatment of inmates with serious mental illness. (Dkt. No. 54-3 at 3.) Defendant Hilton
supervised the mental health services provided to inmates in the RMHU. Id. Hilton made
recommendations related to the services provided to those inmates. Id.
3 The manner in which an inmate is handcuffed is determined by the RMHU Operational
Manual and the inmate's "stage." (Dkt. No. 54-3 at 11.)
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staff at Marcy C.F. provided the majority of the care and treatment. (Dkt. No. 55-1 at 2.) When Plaintiff
arrived at Marcy C.F., Plaintiff suffered from contractures in both of his hands with a chronic
contracture in his right hand. (Dkt. No. 55-1 at 4.) Khan reviewed Plaintiff's medical records and noted
that while Plaintiff previously received occupational therapy, the treatment was not effective. Id. Khan
was aware that Plaintiff had exposed himself inappropriately on multiple occasions and was required to
wear an exposure jumpsuit and to be handcuffed from behind. Id. at 5. As part of Plaintiff's treatment,
Khan provided Plaintiff with prescription medications including Neurontin. Id. at 7. On February 17,
2011, Plaintiff received an Inmate Medical Excuse for braces for his wrists.4 (Dkt. No. 55-1 at 12.)
On February 17, 2011, Plaintiff was charged with lewd conduct in violation of Rule 101.20.5
(Dkt. No. 54-4 at 6.) On March 11, 2011, after a disciplinary hearing, Plaintiff was sentenced to forty-
five days in the Special Housing Unit ("SHU") with a loss of privileges.6 Id. On March 25, 2011, OMH
N.A. Makuch7 issued a Misbehavior Report charging Plaintiff with violating Rule 101.20 and engaging
in lewd conduct in the RMHU program area. (Dkt. No. 60-1 at 5.) After the Misbehavior Report was
issued, Hilton "recommended" that Plaintiff wear the exposure jumpsuit for thirty days.8 (Dkt. No. 60-1
4 The name of the Health Representative who executed the Medical Excuse is illegible.
(Dkt. No. 55-1 at 12.)
5 Rule 101.20 states that an inmate shall not engage in lewd conduct by intentionally
masturbating in the presence of an employee, or intentionally expose the private parts of their
bodies. (Dkt. No. 63-1 at 7); see also N.Y. Comp.Codes R. & Regs. tit. 7, § 270.2(B)(2)(iii).
6 The record of Plaintiff's Inmate Disciplinary History indicates that Captain Harper
presided over the disciplinary hearing. (Dkt. No. 54-4 at 6.) Harper is not a defendant herein.
7 Makuch is not a defendant herein.
8 The record does not include any documentation related to the recommendation including
the date that the recommendation was made.
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at 5; Dkt. No. 1 at ¶¶37-39.) Hilton was aware that Plaintiff had a "history" of engaging in lewd conduct
while in the custody of DOCCS. (Dkt. No. 54-3 at 6.) DSS Barry McArdle9 approved the
recommendation, "effective immediately." (Dkt. No. 60-1 at 5.) Pursuant to the Exposer Control
Order10, Plaintiff was required to wear the jumpsuit when he left his cell for visits, programming time,
callouts and interviews. (Dkt. No. 1 at ¶38; Dkt. No. 60-1 at 5.) The Exposer Control Order was
scheduled to terminate in thirty days, provided Plaintiff did not receive any further misbehavior reports.
(Dkt. No. 1 at ¶39.) After a Tier III hearing related to the March 25, 2011, Misbehavior Report, Hilton
found Plaintiff "not guilty" based upon video tape evidence.11 (Dkt. No. 1 at ¶40; Dkt. No. 60-1 at 5.)
On March 30, 2011, Plaintiff received a Misbehavior Report charging him with lewd conduct in
violation of Rule 101.20. (Dkt. No. 54-3 at 31.) The report was issued by Sergeant Lansing.12 Id.
Lansing indicated that while Plaintiff was at St. Luke's Hospital, a nurse reported that Plaintiff exposed
his erect penis in the emergency room. Id. Corrections Officers Relf and Bassett were assigned to
Plaintiff, but did not witness the incident.13 Id. On April 7, 2011, Hilton presided over a Tier III hearing
related to the March 30, 2011, Misbehavior Report. (Dkt. No. 54-3 at 20.) Plaintiff did not attend the
9 McArdle is not a defendant herein.
10 The Exposer Control Order is not part of the record herein.
11 The record does not contain any evidence related to this hearing, including the date that
the hearing occurred. Hilton does not have any record of any such proceeding but does not
dispute that he "may have" presided over more than one Tier III hearing related to Plaintiff and
charges of lewd conduct. (Dkt. No. 54-3 at 7.) If a Misbehavior Report is dismissed, it is
generally expunged from the inmate's records. Id. Moreover, a finding of "not guilty" is only
maintained by the facility for a twelve month period. Id.
12 Lansing is not a defendant herein.
13 Relf and Bassett are not defendants herein.
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hearing. (Dkt. No. 54-3 at 7, 20.) On April 14, 2011, Plaintiff was found guilty of the charges and
sentenced to ninety days in keeplock. Id. The Exposer Control Order was in effect during, and after, the
disciplinary hearing. Id. at 9.
On April 25, 2011, Plaintiff was charged with lewd conduct. (Dkt. No. 54-4 at 6.) On May 13,
2011, after a disciplinary hearing, Plaintiff was sentenced to forty-five days of SHU confinement with a
loss of privileges.14 Id.
Plaintiff filed a Freedom of Information Law request for a copy of the Draft Directive regarding
the exposure suit. (Dkt. No. 54-3 at 9.) Plaintiff directed his request to Hilton. (Dkt. No. 1 at ¶41.)
Hilton refused to provide a copy of the document and advised Plaintiff that it was not available for
public review. (Dkt. No. 54-3 at 9.) Hilton withheld the document because it was a draft, not a final
agency determination, and contained confidential information. Id.
On May 15, 2011, and May 16, 2011, Plaintiff was treated for left shoulder pain due to being
handcuffed behind his back. Id. at 45. On May 18, 2011, an Inmate Medical Excuse was issued
allowing Plaintiff to use bilateral wrist splints in his cell and to carry the splints in his pocket to utilize
during programs. (Dkt. No. 55-1 at 13.) On May 29, 2011, Plaintiff complained of arm pain due to
being handcuffed behind his back. Id. at 41. The medical provider advised Plaintiff that the placement
of handcuffs was a "security issue." Id. On June 1, 2011, an Inmate Medical Excuse was issued for a
"front cuff order for visits only." (Dkt. No. 55-1 at 14.) On June 9, 2011, Plaintiff received an Inmate
Medical Excuse permitting Plaintiff to wear his bilateral wrist braces in his cell. Id. at 15. In June 2011,
Khan ordered an x-ray of Plaintiff's left shoulder due to pain and swelling. (Dkt. No. 55-1 at 34.)
14 Hilton did not preside over the disciplinary hearing related to the charges. (Dkt. No.
54-4 at 5-6.)
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On June 13, 2011, Plaintiff forwarded correspondence to Defendant Van Buren regarding
"Program Deprivation/Inconsistencies." Dkt. No. 63-1 at 14. In the letter, Plaintiff admitted, "[i]t is no
secret I have a history of lewd conduct." Id. Plaintiff advised:
On 6/8/11, I was released from security exception status; at which point
an agreement was determined that either I wear the "jumpsuit" or attend
program "with restraints." Needless to say, I opted to be cuffed to the
desk and began programming immediately after I was released from
security exception.
All of a sudden, on 6/9/11, the option I chose which was to program in
restraints rather than wearing the jumpsuit, was no longer an option for
me. I was informed that I must wear the jumpsuit OR attend no mental
health programs.
(Dkt. No. 63-1 at 14.)
Plaintiff claimed that his due process rights were violated because the rules regarding lewd
conduct were not posted in the "DOCS rule book and/or RMHU manual." (Dkt. No. 63-1 at 14.)
On July 22, 2011, Van Buren responded to Plaintiff's letter and stated:
The purpose of the exposure control suit is to keep an inmate from
exposing himself to staff, including OMH clinical staff and others who
are assisting in therapeutic programs beneficial for inmate-patients.
On instances where you were placed in restraints, it was for conduct
unrelated to exposing yourself, not staff changing their mind.
(Dkt. No. 63-1 at 17.)
Van Buren noted that Plaintiff was attending programming "more consistently" and had not
engaged in any recent incidents of exposure. (Dkt. No. 63-1 at 17.) Plaintiff was advised that the
Superintendent modified Plaintiff's Order so that he did not have to wear the jumpsuit on visits. Id.
In July 2011, Plaintiff made repeated requests to medical providers for occupational therapy.
(Dkt. No. 55-1 at 37.) Plaintiff was continually advised that the issue was already discussed with the
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doctor and that "therapy would not help at this point." Id. During a visit with Khan, Plaintiff received a
recommendation for occupational therapy and bilateral wrist splints/braces for his hands.15 (Dkt. No. 55-
1 at 7,8.) In August 2011, Plaintiff met with an orthopedic specialist who took measurements for a
glove/brace. (Dkt. No. 1 at ¶54.) Plaintiff was told that a future appointment would be "arranged." Id.
On September 9, 2011, during a medical visit at his cell, Plaintiff asked about occupational therapy.
(Dkt. No. 55-1 at 31.) The provider advised that Plaintiff's appointment was "pending." Id. On
September 14, 2011, Plaintiff was told that the order for therapy was approved by "Albany" and that he
needed to wait for "scheduling."16 Id. at 35.
On October 11, 2011, Plaintiff complained of mental health issues. (Dkt. No. 55-1 at 27.) While
the medical provider discussed Plaintiff's condition, Plaintiff "kept moving his hands down to his penis."
Id. Plaintiff was told to keep his hands at chest level and the sick call visit was terminated. Id. On
October 14, 2011, Plaintiff was directed to provide a stool sample. Id. at 23. While the provider was at
Plaintiff's cell, Plaintiff began masturbating and exposed his penis to the provider. (Dkt. No. 55-1 at 27.)
The encounter was terminated. Id. On October 14, 2011, Plaintiff was charged with lewd conduct in
violation of Rule 101.20. (Dkt. No. 54-4 at 5-6.) After a disciplinary hearing related to the charges,
Plaintiff was sentenced to sixty days of SHU confinement. Id.
On October 24, 2011, Plaintiff was scheduled to receive his glove. (Dkt. No. 55-1 at 16.) Due to
transportation difficulties (the vehicle used for transport "broke down"), the appointment and
occupational therapy had to be rescheduled. (Id.; Dkt. No. 1 at ¶55.) On October 26, 2011, October 27,
15 The date of this visit is not clearly indicated in the record.
16 Khan did not have any role or responsibility in providing occupational therapy or
securing transportation for inmates. (Dkt. No. 55-1 at 31.)
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2011, October 28, 2011, and October 31, 2011, Plaintiff inquired as to the status of his brace/glove and
occupational therapy. (Dkt. No. 55-1 at 16-17.) Plaintiff was told that the delay was due to scheduling.
Id. In November 2011, Plaintiff left Marcy C.F. without the glove/brace or occupational therapy. (Dkt.
No. 1 at ¶56.)
II. PROCEDURAL HISTORY
Plaintiff filed his Complaint and applied for leave to proceed in forma pauperis in this action on
April 22, 2013. (Dkt. Nos. 1 and 3.) In September 2013, Judgment was entered and the case was
dismissed as Plaintiff failed to comply with the filing requirements. (Dkt. No. 6.) In October 2013,
Plaintiff filed a motion to reopen the case and paid the filing fee. (Dkt. No. 7.) In a Decision and Order
filed on July 28, 2014, the Court vacated the Judgment, reopened the action and reviewed the complaint
in accordance with 28 U.S.C. § 1915A. (Dkt. No. 16 at 5.) The Court dismissed several causes of
action and transferred portions of Plaintiff's Complaint to the United States District Court for the
Southern District of New York and the United States District Court for the Western District of New
York. (Dkt. No. 16, generally.) Upon review of the allegations that arose in the Northern District, the
Court directed Defendants Khan, Hilton and Van Buren to respond to the allegations in the Complaint.
Id. at 22-23. In August of 2014, Plaintiff filed a motion for assignment of counsel. (Dkt. No. 23.) The
Court denied the motion in a September 2014, Decision and Order. (Dkt. No. 26.) On November 27,
2015, Defendants filed the motion for summary judgment now before me for Report and
Recommendation. (Dkt. No. 54.) Plaintiff’s second motion for appointment of counsel also before the
Court was filed on February 25, 2016. (Dkt. No. 64.)
10