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
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.
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
"doctors 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 ...