United States District Court, S.D. New York
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.
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 qualified
immunity (Id. at 18). Hall cross-moved for summary judgment
against defendant Dr. Bakshi. (Dkt. No. 36: Hall Br. at 7.)
I. SUMMARY JUDGMENT STANDARDS IN SECTION 1983
Rule 56(c) of the Federal Rules of Civil Procedure provides that
summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c); see also, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub.
Co., 949 F.2d 576, 580 (2d Cir. 1991).
The burden of showing that no genuine factual dispute exists rests on
the party seeking summary judgment. See, e.g.,Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp.,
43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs.,
Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may
discharge this burden by demonstrating to the Court that there is an
absence of evidence to support the non-moving party's case on an issue on
which the non-movant has the burden of proof. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must do "more
than simply show that there is some metaphysical doubt as to material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the
non-moving party must "set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e); accord,
e.g., Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. at 587, 106 S.Ct. at 1356.
In evaluating the record to determine whether there is a genuine issue
as to any material fact, "[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor."
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at
2513; see also, e.g., Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs.,
Ltd. P'ship, 22 F.3d at 1223. The Court draws all inferences in
favor of the nonmoving party only after determining that such inferences
are reasonable, considering all the evidence presented. See, e.g.,
Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert.
denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on
which summary judgment is sought, there is any evidence in the record
from any source from which a reasonable inference could be drawn in favor
of the nonmoving party, summary judgment is improper." Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d at 37. In considering a motion for summary judgment, the Court is not to
resolve contested issues of fact, but rather is to determine whether
there exists any disputed issue of material fact. See. e.g.,
Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58
(2d Cir. 1987); Knight v. United States Fire Ins. Co.,
804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932,
107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law
determines which facts are critical and which facts are irrelevant.
See, e.g., Anderson v. Liberty Lobby, Inc.,
477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that
might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment[,] [f]actual disputes
that are irrelevant or unnecessary will not be counted." Id. at
248, 106 S.Ct. at 25 10 (citations omitted); see also,
e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.
"The Court recognizes that it must `extend extra consideration' to pro
se plaintiffs" such as Hall and that "pro se parties are to be given
special latitude on summary judgment motions." Salahuddin v.
Coughlin, 999 F. Supp. at 535 (citations & internal quotations
omitted); see, e.g., McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read
liberally and interpreted "`to raise the strongest arguments that they
suggest'").*fn6 Moreover, the pro se party must be given
express notice of the consequences of failing to respond appropriately to
a motion for summary judgment. See, e.g., Irby v.
New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir.
2001) ("[W]e remind the district courts of this circuit, as well as
summary judgment movants, of the necessity that pro se litigants have
actual notice, provided in an accessible manner, of the consequences of the pro se litigant's failure to comply with
the requirements of Rule 56. . . . [E]ither the district court or the
moving party is to supply the pro se litigant with notice of the
requirements of Rule 56. . . . In the absence of such notice or a clear
understanding by the pro se litigant of the consequences of failing to
comply with Rule 56, vacatur of the summary judgment is virtually
automatic."); McPherson v. Coombe, 174 F.3d at 280-81 ("`[t]he
failure of a district court to apprise pro se litigants of the
consequences of failing to respond to a motion for summary judgment is
ordinarily grounds for reversal.'") (citations omitted).*fn7
Defendants here served the appropriate notices on Hall. (Dkt. No. 29:
Notice of Mot. for Summ. J.; Defs.' 56.2 Notice.)
"Nevertheless, proceeding pro se does not otherwise relieve a litigant
from the usual requirements of summary judgment, and a pro se party's
`bald assertion,' unsupported by evidence, is not sufficient to overcome
a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981,
1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see
also, e.g., Viruet v. Citizen Advice Bureau. 01
Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug 15, 2002) (Peck, M.J.);
Smith v. Planas, 975 F. Supp. 303, 305 n.2 (S.D.N.Y.
1997). II. DEFENDANTS SHOULD BE GRANTED SUMMARY JUDGMENT
DISMISSING HALL'S CLAIM THAT DEFENDANTS WERE DELIBERATELY INDIFFERENT TO
HIS MEDICAL NEEDS BECAUSE HE WAS KEPT IN A HOT INFIRMARY ROOM FOR FOUR
A. Applicable Law Regarding Claims of Deliberate
Indifference to Serious Medical Needs*fn8
To prevail in a § 1983 action, a plaintiff must demonstrate that he
has been denied a constitutional or federal statutory right and that the
deprivation occurred under color of state law. See
42 U.S.C. § 1983: West v. Atkins, 487 U.S. 42, 48,
108 S.Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no
substantive rights; it provides only a procedure for redress for the
deprivation of rights established elsewhere." Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert.
denied, 512 U.S. 1240, 114 S.Ct. 2749 (1994).
The Eighth Amendment protects prisoners from "cruel and unusual
punishment" in the form of "unnecessary and wanton infliction of pain" at
the hands of prison officials and conduct that offends "evolving
standards of decency." E.g., Hudson v. McMillan, 503 U.S. 1, 5,
8, 112 S.Ct. 995, 998, 1000 (1992); Wilson v. Seiter,
501 U.S. 294, 297, 308, 111 S.Ct. 2321, 2323, 2329 (1991); Estelle v.
Gamble. 429 U.S. 97, 102, 104-05, 97 S.Ct. 285, 290, 291 (1976);
Gregg v. Georgia. 428 U.S. 153, 173, 96 S.Ct. 2909, 2925
(1976). To establish an Eighth Amendment violation based on a claim that a
prison official has placed an inmate's health in danger, the inmate must
show that the prison official acted with "deliberate indifference" to the
inmate's serious medical needs. E.g., Helling v.
McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480 (1993);
Estelle v. Gamble. 429 U.S. at 104-05, 97 S.Ct. at
As the Second Circuit has explained, "the deliberate indifference
standard embodies both an objective and a subjective prong."
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1994),
cert. denied, 513 U.S. 1154, 115 S.Ct. 1108
(1995).*fn10 "Objectively, the alleged deprivation must be
`sufficiently serious.'"Hathaway v. Coughlin, 99 F.3d at 553:
see also, e.g., Hudson v. McMillian, 503
U.S. at 9, 112 S.Ct. at 1000 ("Because society does not expect that
prisoners will have unqualified access to health care, deliberate
indifference to medical needs amounts to an Eighth Amendment violation
only if those needs are `serious'"); Smith v. Carpenter, 316
F.3d at 183-84 ("The objective "medical need' element measures the
severity of the alleged deprivation . . . "); Selby v.
Coombe, 2001 WL 964195 at * 1; Chance v. Armstrong.
143 F.3d at 702; Torres v. Mazzuca, 246 F. Supp.2d 334, 339
(S.D.N.Y. 2003). "`The Constitution does not command that inmates be
given the kind of medical attention that judges would wish to have for
themselves. . . .'" Dean v. Coughlin, 804 F.2d 207, 215 (2d
Cir. 1986). "[O]nly those deprivations denying `the minimal civilized
measure of life's necessities' are sufficiently grave to form the basis
of an Eighth Amendment violation." Wilson v. Seiter,
501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991) (citation omitted); see also, e.g., Dean v. Coughlin, 804
F.2d at 215 ("`[T]he essential test is one of medical necessity and not
one simply of desirability.'"). Thus, Eighth Amendment protection is
limited to "`a condition of urgency' that may result in `degeneration' or
`extreme pain.'" Chance v. Armstrong, 143 F.3d at
702;*fn11 accord, e.g., Morales v.
Mackalm, 278 F.3d 126, 132 (2d Cir. 2002); Harrison v.
Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("A serious medical
condition exists where `the failure to treat a prisoner's condition could
result in further significant injury or the unnecessary and wanton
infliction of pain.'").
"Subjectively, the charged official must act with a sufficiently
culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553;
accord, e.g., Smith v. Carpenter, 316 F.3d at 184 ("[T]he
subjective `deliberate indifference' element ensures that the defendant
prison official acted with a sufficiently culpable state of mind.");
Selby v. Coombe, 2001 WL 964195 at *1; Chance v.
Armstrong. 143 F.3d at 702. "The required state of mind, equivalent
to criminal recklessness, is that the official "`knows of and disregards
an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.'""
Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting
Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v.
Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979
(1994))).*fn12 Deliberate indifference maybe "manifested by prison doctors in
their response to the prisoner's needs or by prison guards in
intentionally denying or delaying access to medical care." Estelle
v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291 (fn. omitted);
accord, e.g., Kaminsky v. Rosenblum,
929 F.2d 922, 926 (2d Cir. 1991) ("Cruel and unusual punishment may consist
of prison officials delaying an inmate access to needed medical
care.").*fn13 However, an "inadvertent failure to provide
adequate medical care" does not constitute "deliberate indifference."
Estelle v. Gamble. 429 U.S. at 105-06, 97 S.Ct. at 292;
accord, e.g., Burton v. New York State Dep't of
Corrections. 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. March 2,
1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state a
valid claim . . . under the Eighth Amendment." Estelle v.
Gamble. 429 U.S. at 106, 97 S.Ct. at 292.*fn14 As the
Supreme Court has stated, "[m]edical malpractice does not become a
constitutional violation merely because the victim is a prisoner."
Estelle v. Gamble. 429 U.S. at 106, 97 S.Ct. at 292;
accord, e.g., Smith v. Carpenter, 316 F.3d a 184
("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute
for state tort law, not every lapse in prison medical care will rise to
the level of a constitutional violation."); Hathaway v.
Coughlin, 99 F.3d at 553; Burton v. New York State Dep't of
Corrections, 1994 WL 97164 at *2. An act of malpractice will amount
to deliberate indifference only if "the malpractice involves culpable
recklessness, i.e., an act or a failure to act by the prison
doctor that evinces `a conscious disregard of a substantial risk of
serious harm.'" Chance v. Armstrong, 143 F.3d at 703 (quoting
Hathaway v. Coughlin, 99 F.3d at 553); Harrison v.
Barkley, 219 F.3d at 139 ("We agree that the mere malpractice of
medicine in prison does not amount to an Eighth Amendment
violation. . . . This principle may cover a delay in treatment based on a
bad diagnosis or erroneous calculus of risks and costs, or a mistaken
decision not to treat based on an erroneous view that the condition is
benign or trivial or hopeless, or that treatment is unreliable, or that
the cure is as risky or painful or bad as the malady. . . . [But]
[c]onsciously disregarding an inmate's legitimate medical needs is not
`mere medical malpractice.'"); Hathaway v. Coughlin, 37 F.3d at
66 ("Deliberate indifference requires more than negligence, but less than
conduct undertaken for the very purpose of causing harm.").
"It is well-established that mere disagreement over the proper
treatment does not create a constitutional claim. So long as the
treatment given is adequate, the fact that a prisoner might prefer a
different treatment does not give rise to an Eighth Amendment violation."
Chance v. Armstrong. 143 F.3d at 703;
accord, e.g., Hathaway v. Coughlin, 37 F.3d
at 70 (Jacobs, C.J., dissenting) ("`We do not sit as a medical board of
review. Where the dispute concerns not the absence of help, but the
choice of a certain course of treatment, or evidences mere disagreement
with considered medical judgment, we will not second guess the
doctors.'"); Culp v. Koenigsmann, 2000 WL 995495 at *7 ("Mere
disagreements with the quality of medical care, however, do not state an Eighth Amendment claim."); see also, e.g.,
Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y.
Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques
or forms of treatment employed by medical personnel does not itself give
rise to an Eighth Amendment claim"); Brown v. Selwin, 98 Civ.
3008, 1999 WL 756404 at *6 (S.D.N.Y. Sept. 24, 1999) (citing cases),
aff'd, No. 01-0144, 29 Fed. Appx. 762, 2002 WL 355901 (2d Cir.
Mar. 6, 2002); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777
at *6 (S.D.N.Y. Aug. 11, 1999); Espinal v. Coughlin, 98 Civ.
2579, 1999 WL 387435 at *3 (S.D.N.Y. June 14, 1999).*fn15 "Just as the relevant `medical need' can only be identified in
relation to the specific factual context of each case, the severity of
the alleged denial of medical care should be analyzed with regard to all
relevant facts and circumstances. The absence of adverse medical effects
or demonstrable physical injury is one such factor that may be used to
gauge the severity of the medical need at issue. Indeed, in most cases
the actual medical consequences that flow from the alleged denial of care
will be highly relevant to the question of whether the denial of
treatment subjected the prisoner to a significant risk of serious harm."
Smith v. Carpenter, 316 F.3d at 187 (citations omitted).
B. Application of the Legal Standard to Hall's "Hot
Hall asserts that defendants were deliberately indifferent to his
serious medical needs because he was placed in a hot and poorly
ventilated infirmary room from May 24, 2002 until May 28, 2002 during
treatment for and recovery from his burn wounds. (See,
e.g., Compl. ¶¶ 9-23.)
As discussed above, Hall's claims must be sufficiently serious both
objectively and subjectively. (See discussion and cases cited
11-12 above.) Whether considered under the objective or subjective prong,
Hall's claim fails. As to Sgt. Cooper, who saw Hall when he first was
admitted to the Sing Sing infirmary and at no other time, there is no
evidence that he knew or recklessly disregarded the risk that a hot room
could medically endanger Hall or cause Hall serious pain. At the other
end of the chronology, Dr. Perilli saw Hall for the first time on May
28, 2002, the very same day Hall later was moved out of the "hot" room.
(See pages 3-4 above.) There is no evidence that Supt. Fischer knew that Hall was in a "hot" room or
was complaining about the room. (See pages 20-21 below.)
As to Dr. Bakshi, Hall alleges that he complained to Dr. Bakshi on May
24, 25 and 28, and only on May 28 did Dr. Bakshi note in the medical
records that Hall should be moved to a room with better air circulation.
(See pages 3-4 above.) Even assuming arguendo that Hall's
his allegation of pain were sufficient to satisfy the objective prong of
the medical indifference standard as to Dr. Bakshi,*fn16 Hall
has not set forth evidence to satisfy the subjective prong. Hall's theory
is that Dr. Bakshi was hostile to him because Hall complained to Dr.
Perilli, Dr. Bakshi's supervisor. (See page 5 above.) But Hall
did not do
so until May 28, the very day that Dr. Bakshi noted that Hall should be
moved out of the "hot" room and when, in fact, Hall was moved from that
room. At most, therefore, Hall presented evidence from which a trier of
fact might conclude there was a lack of due care by Dr. Bakshi (as to the
hot room), but not wantonness in placing Hall's health in danger.
Moreover, as Dr. Bakshi noted, Hall did not show "any signs of heat
toxicity such as abnormal vital signs, change of mental status or
dehydration." (Bakshi Aff. ¶ 4.)*fn17 Nor is this case
one where the plaintiff was thrown in a hot room and ignored; the
evidence is undisputed that Dr. Bakshi and others treated Hall and gave
him ointments for his burns and also pain medication. (See
pages 3-5 above.) Accordingly, defendants are entitled to summary judgment dismissing
Hall's claim that all four defendants acted with deliberate indifference
by placing him in "hot" room #3. See, e.g., Byas v. State
of New York, 99 Civ. 1673, 2001 WL 1579552 at *3 (S.D.N.Y. Dec. 11,
2001) (prisoner claimed that defendants were deliberately indifferent to
his medical needs because, inter alia, the infirmary was "hot
and stuffy . . . While plaintiff was in discomfort, he has not
demonstrated that he had serious medical needs or was in great pain, nor
can he claim his condition was degenerating quickly." Plaintiff failed to
meet both the objective and subjective prongs.); Brown v.
McElroy, 160 F. Supp.2d 699, 706 (S.D.N.Y. 2001) (Allegations that
prisoner was kept in an "extremely cold" room which he complained was
making him sick was "not sufficiently serious to state a claim of
unconstitutional conditions of confinement."); Miller v.
Velasco, No. 98 C 4408, 1999 WL 529562 at *6 (N.D. Ill. July 19,
1999) ("Trudging through the snow and cold and then having to sit for
more than four hours in a hospital gown and wet booties was undoubtedly
uncomfortable" but was "not a violation of a constitutional right.");
Young v. Breeding. No. 95 C 4547, 1997 WL 43459 at *1, 5 (N.D.
Ill. Jan. 29, 1997) (Prisoner that had to "endure extremely cold air from
the hospital's air conditioning system" while held in a confinement cell
for a day without clothes has not shown "a deprivation of constitutional
magnitude."); Obregon v. Gibbons. Civ. A. No. 95-1875, 1996 WL
163942 at *3 (D.D.C. Apr. 2, 1996) (Prisoner's allegations that despite
his heart condition he was placed in a "poorly ventilated cell" failed to
rise to the level of deliberate indifference to serious medical needs
required to merit relief); Tucker v. Randall, 840 F. Supp. 1237,
1247 (N.D. Ill. 1993) (Alleged intensely cold and hot temperatures,
the latter which detainee claims caused him "rashes, ear infections and vomiting spells," in
detainee's cell did not meet deliberate indifference
III. SUMMARY JUDGMENT SHOULD BE GRANTED TO DEFENDANTS
PERILLI, FISCHER AND COOPER DISMISSING HALL'S "BEN GAY" CLAIM BECAUSE
THEY WERE NOT PERSONALLY INVOLVED IN THE ADMINISTRATION OF THE ANALGESIC
A. Legal Standard for Supervisory Liability for §
"It is well settled in this Circuit that `personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.'" Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994); accord, e.g., Back v.
Hastings on Hudson Union Free Sch. Dist., No. 03-7058, ___ F.3d___,
2004 WL 739846 at *9 (2d Cir. Apr. 7, 2004); Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir. 2003); Blyden v.
Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); Fischl v.
Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Torres v. Mazzuca, 246 F. Supp.2d 334, 338-39 (S.D.N.Y.
2003); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y.
1995) (Sotomayor, D.J. & Peck, M.J.) ("In order to maintain a cause
of action [under § 1983] against any official, a plaintiff must show
that the defendant was personally involved in the alleged deprivation of
his constitutional rights, since the doctrine of respondeat
superior does not apply to § 1983 actions.").*fn20
"The personal involvement of a supervisory defendant may be shown by
evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of inmates by failing to
act on information indicating that unconstitutional acts were occurring."
Colon v. Coughlin. 58 F.3d at 873.*fn21
B. Application of the Supervisor Liability Legal
Standard to Hall's "Ben Gay" Claim
Here, Hall has failed to show that defendants Perilli, Cooper or
Fischer were personally involved in the medical indifference claim
concerning analgesic balm, i.e., "Ben Gay."
Hall admitted that his one and only interaction with Sgt. Cooper was
when he requested another infirmary room on May 24, 2002. (Hall Dep. at
54, 64; see page 3 above.) Thus, Hall has provided no evidence that Sgt. Cooper was responsible for
or even aware that Dr. Bakshi had given Hall Ben Gay on May 28.
Hall explained during his deposition that the reason he named
Superintendent Fischer as a defendant was because "Superintendent Fischer
is the overall supervisor for the entire facility . . . [and] is the
overall provider of the facility, should be aware of everything." (Hall
Dep. at 81.) However, Hall's amorphous feeling that a prison
superintendent should have knowledge that a particular inmate was given
analgesic balm and that a prison superintendent who is not a doctor
should know that certain medication is contra-indicated does not satisfy
the standard for supervisory liability. (See pages 19-20
above.) Hall did
not provide any evidence that Supt. Fischer knew anything about the
medication that Hall received; when asked if he thought Supt. Fischer
knew about his medications Hall responded: "I don't know if he went to
that extent." (Hall Dep. at 83.) While Hall knew that Supt. Fischer
received are port about the oil incident at Clinton Correctional
Facility, Hall admitted that he did not know if Supt. Fischer had "the
details of the medical treatment [Hall] was getting at Sing Sing." (Hall
Dep. at 84.) In fact, Hall states that the sole reason that Supt. Fischer
should be responsible is because of his top supervisory position, and not
because Hall has any evidence or knowledge that Supt. Fischer knew about
his treatment (or the heat condition in that infirmary room). (Hall Dep.
at 83; see also Dkt. No. 36: Hall Br. at 9.) That is not
sufficient as a matter of law. See, e.g., Gill v.
Mooney, 824 F.2d 192, 196 (2d Cir. 1987) ("[Petitioner's]
complaint is silent as to anything which defendant Jones, the
Superintendent of the Great Meadow Correctional Facility, did or failed
to do. It alleges only that Jones is responsible `for the operations and
management of the Great Meadow Correctional Facility, and the conduct of
all staff personnel, and the care, custody and safety of all inmates
under his immediate jurisdiction.' Absent some personal involvement by [the Superintendent] in the allegedly unlawful
conduct of his subordinates, he cannot be held liable under section
1983."); Morris v. Eversley, 282 F. Supp.2d 196, 204-08
(S.D.N.Y. 2003); Torres v. Mazzuca, 246 F. Supp.2d 334, 339-40
(S.D.N.Y. 2003); Anderson v. Sullivan. 702 F. Supp. 424, 428
(S.D.N.Y. 1988) ("As the [Second Circuit] noted, dismissal is proper
where the plaintiff does no more than allege that the superintendent is
in charge of the prison.").
Finally, Hall fails to provide any evidence of Dr. Perilli's
involvement in the administration of the analgesic balm. (See
page 5 above.) It is undisputed that Dr. Bakshi discontinued the Ben Gay
the same day that Hall applied it to his face. (Perilli Aff. Ex. A:
Medical Notes at 20; see page 5 above.) Hall fails to meet any
of the means enumerated above that Dr. Perilli could have possibly had
personal involvement via his position as Dr. Bakshi's supervisor: (1)
Hall provided no evidence that Dr. Perilli directly participated in
Hall's treatment with Ben Gay; (2) by the time Dr. Perilli learned of the
administration of Ben Gay, the medication had already been discontinued
by Dr. Bakshi; (3) Hall provided no evidence that Dr. Perilli created a
policy or custom of prescribing Ben Gay for burns generally or for buned
inmates who annoyed a prison doctor; (4) Dr. Perilli's behavior does not
rise to the level of gross negligence in supervising Dr. Bakshi on the
single day Dr. Bakshi prescribed and discontinued the Ben Gay; and (5)
Dr. Perilli did not fail to act on information because he had none until
the analgesic cream was already discontinued. See, e.g., Hernandez
v. Keane, 341 F.3d 137, 145 (2d Cir. 2003) (The supervising doctor
"never examined or diagnosed plaintiff's hand. And he was not directly
responsible for placing medical holds on patients; for scheduling
treatments or procedures; or for following up on issues such as physical
therapy or `feed up' passes. There is no evidence that [the supervising
doctor] had notice of, instituted, or became aware of any
unconstitutional policy, practice or act, or that he was grossly negligent in supervising his subordinates."); Joyner v.
Greiner, 195 F. Supp.2d 500, 507 (S.D.N.Y. 2002) (dismissing
complaint of medical indifference against Dr. Perilli for alleged
unresponsiveness to prisoner's letter complaining about his medical
Accordingly, defendants Cooper, Fischer and Perilli should be granted
summary judgment dismissing all of Hall's claims against
IV. HALL'S CLAIM AGAINST DEFENDANT BAKSHI RELATING TO
THE PRESCRIPTION OF ANALGESIC BALM FOR HIS BURN IS NOT DISMISSED
Hall's complaint names as a defendant Dr. M. Bakshi, the doctor who
Hall alleges prescribed the analgesic balm for treatment of his facial
burns. (Compl. ¶ III.) Defendants did not move for summary judgment
on the deliberate indifference to Hall's medical needs claim as to Dr.
Bakshi. Hall's motion for summary judgment as to Dr. Bakshi is denied
because there are genuine issues of fact in dispute around Dr. Bakshi's
prescription of the analgesic balm and whether it was medically indicated
or contra-indicated. (See page 5 above.) Hall's medical
indiffereance claim against Dr. Bakshi for allegedly prescribing Ben Gay
accordingly should proceed to trial.
For the reasons set forth above, defendants Perilli, Fischer and
Cooper's summary judgment motion should be GRANTED, and Hall's summary
judgment should be DENIED. Hall's deliberate medical indifference claim
against Dr. Bakshi for prescribing "Ben Gay" ointment should proceed to
trial. The Pretrial Order has already been filed. The Court previously
had placed Hall's case on the list for pro bono counsel. (Dkt. No. 34: 2/4/04 Order.)
If a volunteer lawyer does not take the case soon, however, Hall's case
should proceed to trial without counsel.*fn23
FILING OF OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days from
service of this Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections (and any responses to objections)
shall be filed with the Clerk of the Court, with courtesy copies
delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl
Street, Room 1350, and to my chambers, 500 Pearl Street, Room 1370. Any
requests for an extension of time for filing objections must be directed
to Judge Casey. Failure to file objections will result in a waiver of
those objections for purposes of appeal. Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049. 1054 (2d Cir. 1993), cert. denied.
513 U.S. 822, 115 S.Ct. 86 (1994): Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson. 968 F.2d 298, 300 (2d
Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992):
Small v. Secretary of Health & Human Servs., 892 F.2d 15,
16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988):
McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).