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HALL v. PERILLI

May 13, 2004.

GARY HALL, Plaintiff, -against- JOHN PERILLI, M. BAKSHI, BRIAN FISCHER & SERGEANT COOPER, Defendants


The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

Pro se plaintiff Gary Hall, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendant Sing Sing Correctional Facility employees violated his constitutional rights by deliberate indifference to his serious medical needs. (See generally Dkt. No. 2: Compl.) After the conclusion of discovery, defendants Perilli, Fischer and Cooper (but not defendant Bakshi) moved for summary judgment (Dkt. Nos. 28-32, 35), and plaintiff Hall cross-moved for summary judgment against all defendants. (See Dkt. No. 36.)

For the reasons set forth below, defendants Perilli, Fischer and Cooper's summary judgment motion should be GRANTED, and Hall's cross-summary judgment motion should be DENIED. Accordingly, the claim of deliberate indifference to Hall's serious medical needs against defendant Bakshi regarding the analgesic cream shall proceed to trial. FACTS*fn1

 The Hot Infirmary Room

  Plaintiff Gary Hall was convicted of third degree criminal sale of a controlled substance, and sentenced to four and a half to nine years imprisonment. (Dkt. No. 32: Hertzberg Aff. Ex. A: DOCS Inmate Information re Hall; Hertzberg Aff. Ex. B: Hall Dep. at 7.) On May 19, 2002, while incarcerated at Clinton Correctional Facility, Hall was attacked by another inmate who threw hot oil onto his face, burning his face and eyes. (Hall Dep. at 15, 27-28, 35-36.) DOCS transported Hall to a Westchester County hospital for emergency treatment. (Hall Dep. at 27-28.) Hall remained hospitalized until May 24, 2002, when he was transported to Sing Sing Correctional Facility. (Hall Dep. at 28, 41-42; Dkt. No. 2: Compl. ¶ 9; Hertzberg Aff. Ex. C: Defs. Response to 2d RFAs No. 1.)

  Upon arrival at Sing Sing, Hall was placed in protective custody and put into an isolation room (room number 3) in the infirmary with an officer, Sergeant Cooper, posted at his door. (Hall Dep. at 42, 65; Compl. ¶¶ 9-11; Defs. Response to 2d RFAs Nos. 2-3.) Hall requested to Sergeant Cooper that he be removed from room #3 due to the "heat and lack of ventilation." (Hall Dep. at 53-55, 64; Compl. ¶¶ 13-14; Hertzberg Aff. Ex. C: Defs. Int. Response No. 3 (responding "Yes" to the question, "Did plaintiff at this time request of [Sgt. Cooper] to be removed from room #3 due to the heat and lack of air, no ventilation?").) Sgt. Cooper said Hall might be moved to a room with better air circulation later but for now he had to stay in room #3. (Hall Dep. at 54.)*fn2 This was the only interaction Hall had with Sgt. Cooper for the duration of his treatment in the Sing Sing infirmary. (Hall Dep. at 54, 64.)

  Defendant Dr. M. Bakshi also visited Hall on May 24, 2002 in order to provide medical treatment. (Hall Dep. at 45; Hertzberg Aff. Ex. C: Defs. Int. Response No. 13 ("Dr. Bakshi did examine plaintiff on May 24, 2002."); Dkt. No. 30: Bakshi Aff. ¶ 3.) Dr. Bakshi was informed about the heat in the room during that visit. (Compl. ¶ 16; Defs. Int. Response No. 14 ("Dr. Bakshi noted in plaintiff's charts both that the air conditioning in Sing Sing Infirmary Room No. 3 was inadequate and that there was a risk that plaintiff's burns might become infected.").)*fn3 Later that same day, a nurse attended to Hall and noted in his records that Hall complained that the room was "uncomfortable/stuffy," and also noted "negative pressure is off [and] room is poorly ventilated at this time, problem reported . . . " (Dkt. No. 35: Perilli Aff. ¶ 9 & Ex. A: Medical Notes at 2.)

  Dr. Bakshi saw Hall again on May 25, 2002. (Bakshi Aff. ¶ 3.) During the visit, Dr. Bakshi made a notation about Hall's burns, but did not record any information about the temperature of the infirmary room. (Perilli Aff. Ex. A: Medical Notes at 2.) Hall alleges that during this visit he complained to Dr. Bakshi about the room conditions. (Compl. ¶ 16.)

  On May 28, 2002, defendant Dr. John Perilli visited Hall in his infirmary room. (Perilli Aff. ¶ 3; Defs. Int. Response No. 19.) Dr. Perilli noted that Hall was suffering from a rash, and discontinued his topical medications; he recorded no information about the room's temperature. (Perilli Aff. ¶ 4 & Ex. A: Medical Notes at 4; cf. Hall Dep. at 90-91.) Later that same day, Dr. Bakshi saw Hall, noting that Hall complained of facial pain, and executed an order sheet requesting that Hall be moved to a room "with better air circulation." (Perilli Aff. Ex. A: Medical Notes at 5, 18; see also Hall Dep. at 86-87; Bakshi Aff. ¶¶ 3, 7; Defs. Int. Response No. 15 ("Dr. Bakshi made the following notation on plaintiff's medical chart on May 28, 2002: `Please change room to room w[ith] better air circulation.'").) Hall was moved to another room that same day (i.e., May 28). (Compl. ¶ 23; Hall Dep. at 76.)

  Hall claims that because of his stay in infirmary room #3, he suffered from the "high [room] temperatures due to no ventilation," "which subsequently brought about severe heat rash" on his arms and chest, which "doctor[]s attributed to [burn] medications." (Compl. ¶ 29; Hall Dep. at 47-49, 55-57, 71-72, 87-88.) Hall also claims that as a result of the heat, his "face was swollen to a point where [his] eyes was almost shut." (Hall Dep. at 55; see Perilli Aff. Ex. A: Medical Notes at 2.) The rash on Hall's arms and chest cleared up four or five days after he was moved out of that room and given hydrocortisone cream. (Hall Dep. at 58, 94-96.) Hall's physical injuries have completely healed. (Hall Dep. at 96.) As a result of the room conditions, however, Hall further alleges that he suffered "tremendously" and "often has recurring nightmares and extended bouts of depression regarding his confinement to room #3." (Compl. ¶¶ 30-31; Hall Dep. at 94-95.)*fn4 The Analgesic Balm

  On May 28, 2002, Dr. Bakshi examined Hall and prescribed a number of medications to treat his facial burns, including analgesic balm (also referred to as "Ben Gay"). (Compl. ¶ 25; see also Defs. Int. Response No. 24; Perilli Aff. Ex. A: Medical Notes at 19; Hall Dep. at 46-47, 49-50, 52-53, 72-73.) On May 29, 2002, following Dr. Bakshi's orders, Hall applied the analgesic balm to his face; Hall alleges that it "caused [Hall] a great deal of mental anguish, and stress, which leads to bouts of depression and . . . triggers to [his] mind the `initial burns received from the hot oil.'" (Compl. ¶ 32; Hall Dep. at 73-74.) Hall testified that he believed Dr. Bakshi gave him the Ben Gay deliberately to cause him pain, because Dr. Bakshi was very "hostile" to him. (Hall Dep. at 70-71.) Hall added that he beliefed that "due to [his] complaints and going to the supervisor, . . . Dr. Bakshi intended to assault [him]. . . . This was a deliberate attack on [Hall] just like the burn." (Hall Dep. at 105-06; Compl. ¶ 24.)

  Dr. Bakshi discontinued the Ben Gay on May 29. (Perilli Aff. Ex. A: Medicat Notes at 20; Defs. Int. Response No. 25.) According to defendants, Dr. Bakshi discontinued the Ben Gay "as no longer medically necessary as improvement in plaintiff's condition was noted on that date." (Defs. Int. Response No. 25.)

 The Summary Judgment Motions

  At the conclusion of discovery, defendants Perilli, Cooper and Fischer filed a summary judgement motion. (Dkt. Nos. 28-32, 35.) Defendants assert that summary judgment should be granted to Perilli, Cooper and Fischer because: (1) they were not deliberately indifferent to Hall's needs (Dkt. No. 28: Defs.' Br. at 6); (2) they were not personally involved in Hall's claims (Id. at 9); and (3) they are entitled to ...


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