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Barnes v. Ross

United States District Court, S.D. New York

April 3, 2014



P. KEVIN CASTEL, District Judge.

Plaintiff An-dlo Barnes, who is pro se, contends that the defendants denied him adequate mental health treatment due to his race, in violation of the Fourteenth Amendment's guarantee of equal protection under the law. The four defendants are mental health professionals employed by the Office of Mental Health (the "OMH") at Sullivan Correctional Facility ("Sullivan"). Discovery in this case is closed. Defendants move for summary judgment pursuant to Rule 56, Fed. R. Civ. P., arguing that no reasonable jury could find in plaintiffs favor.

For the reasons explained below, the defendants' motion is granted, and judgment is entered in their favor. Defendants have come forward with evidence that their diagnosis of Barnes and their decision not to designate him for certain additional mental health programs were based on non-discriminatory considerations. In opposition, Barnes offers conclusory assertions of misdiagnosis and discrimination that are unsupported by evidence, an affidavit that contradicts his own sworn testimony, and affidavits from other Sullivan inmates that contain vague or irrelevant assertions. As the non-movant, Barnes has not come forward with evidence of discrimination that would permit a reasonable jury to find in his favor. The defendants' motion is therefore granted.


Local Civil Rule 56.1 of this District requires a summary judgment movant to submit a statement with numbered paragraphs setting forth "the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). "Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local Civil Rule 56.1(c). "Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c)." Local Civil Rule 56.1(d). "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Rule 56(c)(2), Fed.R.Civ.P. "Therefore, only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.'" Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)).

The defendants have submitted the statement required by Local Rule 56.1. (Docket # 84.) Pursuant to Local Civil Rule 56.2, the defendants also submitted the notice required to a pro se party as to the requirements for opposing a motion for summary judgment, and annexed the text of Rule 56 and Local Rule 56.1. (Docket # 83.)

In opposition to defendants' motion, Barnes has submitted a memorandum of law that attaches thirteen exhibits. (Docket # 94.) Barnes has not, however, submitted a statement in opposition to the defendants' Local Rule 56.1 statement. "[W]hile a court is not required to consider what the parties fail to point out' in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record' even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001). In light of Barnes's pro se status, as well as his submission of evidence in opposition to the defendants' motion, the Court has reviewed and considered all materials submitted by Barnes. Barnes's failure to submit a Local Rule 56.1 statement plays no role in the outcome of defendants' motion, and all reasonable inferences are drawn in Barnes's favor as the party opposing a motion for summary judgment.

Separately, Barnes has captioned his memorandum in opposition as a "Cross-Motion for Summary Judgment (Rule 56)." (Docket # 94.) Though labeled a cross-motion, Barnes does not currently seek judgment in his own favor, and his submissions are reviewed for the purpose of opposing the defendants' motion.


In reviewing the summary judgment record, the Court views all evidence in the light most favorable to Barnes as the non-moving party, and draws all reasonable inferences in his favor. See generally Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011)

A. Barnes's Mental Health History.

Barnes's claims are directed toward the allegedly deficient mental health treatment he received while incarcerated at Sullivan. (Def. 56.1 ¶ 1.) According to Barnes, he has a long history of serious mental illness that required assignment to either the Behavioral Health Unit ("BHU") or Residential Mental Health Unit ("RMHU") at Sullivan. Section 137(6) of the New York Correction Law governs eligibility for BHU and RMHU treatment. Barnes, who is African American, asserts that defendants, all of whom were employed in the OMH, refused to designate him to these programs based on discriminatory motives. As evidence of the severity of his mental illness, Barnes has submitted evidence of his mental health that pre-dates his incarceration with the New York State Department of Corrections ("DOCS").

Barnes asserts that he was diagnosed with mental illness at age eleven, and has "been hearing voices" since that time. (Barnes Mem. at 3.) In a screening at the Elmhurst Hospital Center in August 1991, when he was approximately twelve years old, Barnes was diagnosed with "major depression & psychotic features, " beliefs resembling psychosis and posttraumatic stress disorder. (Barnes Mem. Ex. A.) He exhibited "command type" auditory hallucinations, visual hallucinations and was prone to "screaming" without provocation. (Barnes Mem. Ex. A.)

In March 1998, the Department of Psychiatry at the Kings County Hospital reviewed Barnes "for further observation in order to determine his fitness to proceed to court." (Barnes Mem. Ex. B.) A written review of Barnes by Ruth Finch, M.D., stated in part:

The defendant is charged with Murder in the second degree with acting in concert with a codefendant. He appeared at today's interview as a rather anxious individual who seems to function on a mildly mentally retarded level stammering and stuttering.... This 18-year-old young man seems to function on a mild mentally retarded level. He was stuttering and stammering and very anxious. He refused to answer any given questions.

(Barnes Mem. Ex. B.) Barnes was eventually sentenced to a term of incarceration of 21-1/2 years to life for the crimes of murder, robbery and grand larceny of an automobile. (See, e.g., Steinberg-Ross Dec. Ex. A at BARNES 000247.)

B. Barnes's Mental Health Diagnoses While in DOCS Custody.

Although Barnes's claims are directed toward events that occurred at Sullivan in 2011, defendants have come forward with evidence of incidents relating to Barnes's mental health that pre-date his assignment to Sullivan.

Barnes entered state custody in 2000. (Def. 56.1 ¶ 9.) For "the great majority" of Barnes's 11 years of incarceration, he has been categorized as OMH Level 6, indicating that he had no service needs. (Steinberg-Ross Dec. ¶ 6.) However, on June 10, 2003, while assigned to the Upstate Correctional Facility, he was designated OMH Level 4 "in relation to a strange recurring dream." (Def. 56.1 ¶ 10.) A staff psychologist concluded that Barnes had no treatable disorder and that there was no need for additional OMH intervention. (Def. 56.1 ¶ 11.)

On or about July 2, 2003, while at Upstate, Barnes threatened to commit suicide. (Def. 56.1 ¶ 12.) An OMH social worker concluded that his threats were not genuine and that he was attempting to manipulate his housing situation in order to avoid double bunking. (Def. 56.1 ¶ 13.) On July 3, 2003, Barnes "recanted all threats of self-harm and admitted that his actions were based on his displeasure at being transferred to a double bunk cell." (Def. 56.1 ¶ 14.)

On August 22, 2003, Barnes made "vague" threats of self-harm, but refused OMR treatment when informed that OMH could not facilitate his transfer. (Def. 56. ¶ 15.) As described by the defendants, Barnes's claims of depression and threats of self-harm "were based on his statement that he had just received word that his mother had passed away. Later, however, it was revealed that his mother had passed away years earlier." (Def. 56.1 ¶ 16.) "When challenged, Plaintiff stated, What do I have to do to get out of this jail?' The psychologist concluded that his threats of self-harm were based on his desire to acquire a transfer." (Def. 56.1 ¶ 16.)

C. Barnes's Conduct at Sullivan from August 2011 through October 2011.

Barnes was transferred to Sullivan on or about October 4, 2010. (Def. 56.1 ¶ 17.) He was assigned to the Special Housing Unit (the "SHU") on or about August 11, 2011, "following an incident involving a weapon, assault on an inmate, and gang-related activity." (Def. 56.1 ¶ 18.) Plaintiff asserts that he was denied Equal Protection under the law because, once he was assigned to the SHU, the defendants refused to provide him additional mental health treatment on the basis of his race.

All four defendants worked at Sullivan, where they were employed in the facility's OMB. (Def. 56.1 ¶¶ 2-4.) From July 1, 2001 through March 31, 2012, defendant Sueann Smith was the OMH unit chief at Sullivan. (Def. 56.1 ¶ 2.) Defendants Carla Steinberg-Ross and Osman Yildiz were OMH social workers at Sullivan, and defendant Dr. Syed Mal-mud was an OMH psychiatrist at Sullivan. (Def. 56.1 ¶¶ 3-4.)

The OMH diagnosed Barnes with Anti-Social Personality Disorder. (Def. 56.1 ¶ 56.) The defendants do not identify the precise date and under what circumstances that this diagnosis was first made. The OMH never classified Barnes with "serious mental illness, " a condition that is defined by New York Corrections Law § 137(e).[1] (Def. 56.1 ¶¶ 55, 58.) To qualify as having a "serious mental illness, " a patient must suffer from frequent episodes of psychosis or depression, resulting in significant functional impairment involving acts of self-harm or other behavior that severely affects the inmate's mental or physical health. (Def. 56.1 ¶

Pursuant to OMB policy, when an inmate becomes psychiatrically unstable, unpredictable or dangerous, the inmate is transferred to a Residential Crisis Treatment Program ("RCTP") Observation Cell. (Def. 56.1 ¶ 5.) The inmate may be transfen-ed out of an Observation Cell when 1.) the underlying crisis is resolved, 2.) a psychiatric assessment suggests that a patient is capable of receiving a lower level of care, or 3.) a patient requires a higher level of care. (Def. 56.1 ¶ 6.) The OMH has created specialized treatment regimens - the Behavioral Health Unit (the "BHU") and the Residential Mental Health Unit (the "RMHU") - for inmates with serious mental illness who also are assigned to the SHU. (Def. 56.1 ¶ 7.)

The BHU is "a residential mental health treatment unit for inmate-patients serving disciplinary sanctions who require intensive mental health services." (Lilly Dec. ¶ 5(a).) Patients designated to BHU "have a pattern of disturbed and disruptive behavior" accompanied by "violent or destructive impulses, " and receive two hours of mental health services five days a week. (Lilly Dec. ¶ 5(a).) The RMHU also treats patients with mental illness who are serving disciplinary sanctions. (Lilly Dec. ¶ 5(c).) It "provides four hours daily, five days a week, of group treatment in the least restrictive setting permitted by the patient's mental health needs and safety and security concerns." (Lilly Dec. ¶ 5(c).)

On August 12, 2011, Barnes was admitted to the RCTP for observation, after stating both that "he might hurt himself' and that "he is not suicidal and does not want to kill self." (Def. 56.1 ¶¶ 19-20.) After observing Barnes, defendant Steinberg-Ross concluded that he was "inconsistent... impulsive, angry, demanding, unpredictable, " with a history of "acting out." (Def. 56.1 ¶ 21.) As evidence of the severity of his condition, Barnes cites a screening record from that same date, which stated that Barnes "continues to present as reckless and impulsive" and suffered from an "Adjustment Disorder, " but also noted that Barnes did not exhibit "signs or symptoms of psychosis...." (Barnes Mem. Ex. C.) This screening record also described an incident in which Barnes claims that, while incarcerated, he "used a piece of string from a t-shirt, given to him by another inmate, to wrap around his neck and he states he tied it off at the light, " and "was hanging feet off the ground" when the string broke and he fell to the floor. (Barnes Mem. Ex. C.) The record notes that no witnesses or physical evidence were found as to this incident. (Barnes Mem. Ex. C.)

On August 15, 2011, Barnes stated to an OMR employee, "I feel good, " and that he "was never suicidal, I told you that on Friday. You can send me back." (Def. 56.1 ¶¶ 22.) Barnes was returned to the SHU, but placed back under suicide watch that same day after making new threats of self harm. (Def. 56.1 ¶¶ 23-24.) The next day, Barnes stated, "I'm good, " asked to be returned to the SHU, and, when asked, would not explain why he was placed on suicide watch. (Def. 56.1 ¶ 25.) Defendant Steinberg-Ross concluded that Barnes was alert, oriented, not psychotic and "exhibited agenda driven behavior" concerning disciplinary issues. (Def. 56.1 ¶ 26.) On August 17 and 18, Barnes maintained that he was feeling better, not suicidal and ready to return to the SHU, and Steinberg-Ross continued to observe that he exhibited no psychosis or thought disorder. (Def. 56.1 ¶¶ 27-30.) Steinberg-Ross later conducted a therapy session with Barnes on August 24, 2011, where he reported feeling "fine, " and displayed no psychotic or suicidal symptoms. (Def. 56.1 ¶¶ 31-32.)

According to Barnes, by this point, the defendants were aware that he suffered from mental illness so severe that he warranted placement in either the BHU or RMIIU. (Barnes Mem. at 3.) He states that, by defendants' own accounts, he suffered from "a personality disorder" that required special placement for mentally ill inmates within the SHU. (Barnes Mem. at 3.) He notes that defendant Mahmud gave him a thorazine prescription, and that because thorazine is an anti-psychotic drug, that prescription is evidence that defendants diagnosed him as psychotic. (Barnes Mem. at 6 & Barnes Mem. Ex. L & M.)

Separately, and in the same time period, as evidence that defendants failed to treat his condition with sufficient seriousness, Barnes cites to a file note dated August 25, 2011, which was written by an official at Sullivan whose signature is unintelligible and who Barnes does not identify. (Barnes Mem. Ex. E.) The file note described a call from an attorney at Disability Advocates Inc. in Albany, who received a letter "that raised concerns about [Barnes] possibly being at risk for suicide. She asks that [Barnes] be evaluated and adds that she cannot disclose the contents of the letter." (Barnes Mem. Ex. E.) The unidentified Sullivan official then summarized Barnes's mental health history. (Barnes Mem. Ex. E.)

On August 30, 2011, Barnes "reported hearing voices and made general threats of self-harm." (Def. 56.1 ¶ 33.) Barnes was then admitted to RCTP observation for "vague threats of self-harm" and reporting "voices and someone being seated in his stool, " all of which occurred just prior to a scheduled disciplinary interview. (Def. 56.1 ¶ 34.) As described in the defendants' Local Rule 56.1 statement: "Defendant Steinberg-Ross concluded that the timing of this behavior strongly suggested that it was agenda-driven." (Def. 56.1 ¶ 35.) When she asked Barnes whether he was having suicidal thoughts, he responded, "I told you yesterday I am hearing voices, matter of fact, just send me back." (Def. 56.1 ¶ 36.) Steinberg-Ross believed that Barnes was giving "evasive answers" with "provocative content, refusing to specify further" about voices and suicidal thoughts. (Def. 56.1 ¶ 37.) On September 1, 2011, Barnes stated that he felt fine, was not suicidal, but still wanted help as to hearing voices. (Def. 56.1 ¶ 38.) He refused to respond to mental health services on September 2, 7, 8 or 9. (Def. 56.1 ¶ 39.)

On September 14, 2011, Barnes returned to suicide watch after making "superficial scratches behind his ears in the shower in SHU." (Def. 56.1 ¶ 42.) He was uncooperative with mental health staff during interactions with them on September 16, 19, 20 and 21. (Def. 56.1 ¶ 43.) On September 22, he stated that he was "never suicidal" and "not paranoid, no schizophrenia, not nervous, " but that he needed medication. (Def. 56.1 ¶¶ 44-45.) Barnes was observed in the RCTP until October 17, 2011, when he was discharged to the SHU to address his disciplinary status. (Def. 56.1 ¶¶ 46-47.)

On October 19, 2011, contemporaneous to the hearing process for a pending disciplinary charge, Barnes made the apparently suicidal gesture of wrapping a sheet around his neck. (Def. 56.1 ¶ 48.) Defendant Yildiz stated that when Barnes was told that he was being manipulative, Barnes replied, according to Yildiz's summary, "that he wants to go back to block and complete the job he needs to do, means hang up." (Def. 56.1 ¶ 48.) ...

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