Thurmond v. Thomas-Walsh

Background

Kevin Thurmond, formerly incarcerated at Woodbourne Correctional Facility, represented himself and was proceeding without paying the filing fee. His sole remaining claim was brought under 42 U.S.C. § 1983, a law that provides a way to seek relief for violations of federal constitutional rights. He alleged that Dr. Avion Thomas-Walsh and Dr. Frederick Bernstein retaliated against him, in violation of the First Amendment, after he filed a grievance against Thomas-Walsh.

Thomas-Walsh initially prescribed Thurmond Vistaril for itching and hives. After Thurmond filed a grievance on February 24, 2014, alleging that a blood test had been taken without his consent, Thomas-Walsh changed his prescription to Atarax on May 21, 2014. Thurmond later filed another grievance about that medication change. The record showed that Vistaril and Atarax could treat similar skin conditions, but Vistaril had more serious potential side effects when used long term. Thurmond complained that Atarax was not working, but medical records showed that he consistently failed to take it. Bernstein, Thomas-Walsh’s supervisor, informed Thurmond that Atarax was the correct medication.

Legal standard

The defendants sought summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is appropriate when the evidence shows that no genuine dispute over an important fact requires a trial and that the moving party is entitled to judgment under the law. To proceed with a prisoner retaliation claim, a plaintiff must provide evidence that: (1) he engaged in protected speech or conduct; (2) the defendant took an action that could deter a person from exercising constitutional rights; and (3) the protected activity caused the adverse action.

A defendant may avoid liability by showing that the same action would have occurred even without the protected activity. The plaintiff must support the retaliation claim with evidence sufficient for a reasonable jury to find the required elements; conclusory statements alone are not enough.

Court’s analysis

The court rejected the defendants’ argument that the falsity of Thurmond’s blood-testing grievance automatically prevented a retaliation claim. Because the grievance occurred before the alleged retaliation, the court stated that defendants could theoretically have retaliated even if they knew the grievance was false.

The court nevertheless concluded that the medication change was supported by legitimate medical reasons. The record showed that Thurmond had used Vistaril for nearly five months, that Vistaril and Atarax were interchangeable for his skin conditions, and that Vistaril had more serious potential long-term side effects. The court found no evidence, apart from Thurmond’s conclusory statements, that contradicted the medical evidence. It therefore held that the defendants had shown they would have changed the prescription even without any retaliatory motive, defeating the required causal connection.

The court also held that the timing independently defeated causation. Thurmond filed his grievance on February 24, 2014, and Thomas-Walsh changed his prescription on May 21, 2014—nearly three months later. Thomas-Walsh saw Thurmond three times during that interval and continued allowing him to use Vistaril. The court found no explanation for the delay and no other evidence of retaliation.

As to Bernstein, the court held that the retaliation claim against him necessarily failed because there was no underlying First Amendment retaliation. Separately, the allegations did not show that Bernstein was personally involved in a constitutional violation. The court also explained that supervisory responsibility alone does not create liability under Section 1983.

Disposition

Judge Philip M. Halpern granted the defendants’ motion for summary judgment. The court dismissed the complaint against the defendants with prejudice in its entirety, directed that judgment be entered for the defendants, and closed the case.