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Larry Allen v. C.O. Ford

July 30, 2012

LARRY ALLEN, PLAINTIFF,
v.
C.O. FORD, WENDE CORRECTIONAL FACILITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Plaintiff, Larry Allen ("Allen"), who was an inmate in the custody of the New York State Department of Corrections ("DOCS") at the Wende Correctional Facility ("Wende"), originally brought this civil rights action pursuant to 42 U.S.C. § 1983 pro se, but has since been appointed counsel. Allen claims that on or about January 26, 2006, while working as a cafeteria porter, he sustained second degree burns on his left arm and leg when he was splashed with hot water while washing hot food storage containers ("hot boxes").

Allen alleges that the defendants, DOCS employees, were negligent in failing to provide adequate safety equipment, negligent in failing to provide immediate treatment which subjected him to cruel and unusual punishment, and lastly that the defendants were deliberately indifferent to the plaintiff's health by failing to provide proper instruction and supervision. The claims against correction officers Ford and Kirkpatric have already been dismissed. The remaining two defendants, correction officer P. Nigro ("Nigro") and correction officer R. Kincannon (" Kincannon")*fn1 now move for summary judgment dismissing Allen's claims. Dkt. #34.

For the reasons that follow, the motion for summary judgment is granted, and Allen's complaint is dismissed.

I. Summary Judgment

The complaint sets forth two different theories of relief: The first alleges negligence on behalf of the defendants and the second suggests that defendants committed a constitutional violation by subjecting him to cruel and unusual punishment by their deliberate indifference to his serious medical needs. The evidence before the Court on this summary judgment motion supports neither theory.

The Court's task in analyzing a motion for summary judgment is to determine if there is any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1985). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. at 248.

A party moving for summary judgment is not required to prove the absence of genuine issues of material fact. The burden on the moving party may be discharged by simply showing that there is an absence of evidence to support the non-moving party's case. Celotex v. Catrett, 477 U.S. 317, 325 (1986). On the other hand, the non-moving part is required to, "make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial." Id. at 322. Additionally, when deciding whether to grant summary judgment the court must view the evidence in light most favorable to the non-moving party and draw all reasonable inferences in its favor. Consarc Corp. v. Marine Midland Bank, 996 F.2d 568, 572 (2d Ci. 1993).

II. Allen's Negligence Claim Against C.O. Nigro and C.O Kincannon

Plaintiff claims that the defendants were negligent in failing to provide adequate equipment to protect him from hot water when cleaning the hot boxes, and also that the defendants were negligent in failing to provide immediate treatment for the plaintiff after he was burned.

First of all, it is clear that the claims relating to the alleged negligent acts that caused the injury are not properly before this Court. A suit alleging negligence against these state officers and employees is essentially a suit against the State of New York which has sovereign immunity and has not consented to be sued in this forum. Spavone v. Fisher, 2012 WL 360289, at *2 (S.D.N.Y. Feb. 3, 2012) (quoting Coll. Sav. Bank v. Fla. Prepaid Post-secondary Ed. Expense Bd., 527 U.S. 666, 670 (1999)). There may be a remedy in the New York State Court of Claims for such relief but not in this federal court. Id. (quoting Gross v. New York, 428 Fed. Appx. 52, 53 (2d Cir. 2011)).

Finally, it appears that plaintiff does not seriously contest defendants' motion here to dismiss the negligence claims, as reflected in plaintiff's counsel's opposition to defendants' motion on the negligence claims. Therefore Allen's negligence claims are dismissed.

III. Allen's Deliberate Indifference Claim Against C.O. Nigro

It is well settled that an allegation that a defendant has been merely negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). In order to state a cognizable claim, a prisoner must allege acts or omissions ...


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