United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, District Judge.
Angel Hernandez filed this action on January 2, 2014,
proceeding pro se, alleging that Defendant Corizone
Medical Department Staff delivered substandard medical
treatment while he was incarcerated at Rikers Island. (Dkt.
No. 2.) This Court granted a motion to dismiss the initial
complaint and also gave Hernandez leave to amend.
Hernandez v. Corizone Med. Dep't Staff, No. 14
Civ. 192, 2015 WL 273690, at *4 (S.D.N.Y. Jan. 22, 2015).
Hernandez obtained pro bono counsel (Dkt. No. 53), and filed
the operative Sixth Amended Complaint
(“Complaint”), alleging deliberate indifference
to his medical condition, under 42 U.S.C. § 1983,
against the City of New York, the New York City Health
Department, Correction Officer Captain Isaac, Correction
Officer Adun, and other corrections personnel at Rikers
Island, named in the Complaint as Doe Defendants (Dkt. No. 69
¶¶ 70-77 (“Compl.”)). Hernandez also
alleges that all Defendants, except for the New York City
Health Department, were negligent under state law and caused
him injury. (Id. ¶¶ 78-86.)
move to dismiss the Complaint. (Dkt. No. 79.) For the reasons
that follow, the motion is granted in part and denied in
familiarity with the facts of this case is presumed; the
contours of the events are chronicled in this Court's
earlier Opinion and Order on the first motion to dismiss.
See Hernandez, 2015 WL 273690, at *1. The following
facts are taking from the operative Sixth Amended Complaint
and are presumed true for the purposes of this motion.
relevant to the pending motion to dismiss, Hernandez alleges
that Rikers Island staff manually regulated and maintained
the temperature of the water in the inmate showers in the 1
Lower South (“1LS”) building at the Robert N.
Davoren Complex at Rikers. (Compl. ¶¶ 12-14.) The
temperature could not be controlled by inmates and was
adjusted only by accessing the locked boiler room, which was
staffed by authorized personnel. (Id. ¶ 13) On
October 16, 2013, the staff on duty left the water in the
showers in 1LS at a “scalding temperature.”
(Id. ¶ 14.) When Hernandez turned on the
shower, the shower head “broke off from the faucet,
” and a large volume of “scalding hot”
water cascaded over him, causing “severe skin
burns” on his head, back, and legs. (Id.
around October 18, 2013, Hernandez's burns had not
healed, and blisters erupted on his back and right leg.
(Id. ¶ 17.) He informed Defendant Correction
Officer (“CO”) Adun of the injuries and the
“excruciating pain” they caused; he asked that
Adun help him get medical care. (Id.) That same day,
CO Adun told his superior, CO Captain Isaac, what Hernandez
had reported to him, including that Hernandez had blisters on
his back and right leg and was experiencing tremendous,
excruciating pain. (Id. ¶ 18.) Hernandez
further alleges that Adun and Isaac were personally in charge
of his custody and care-and, based on this first exchange,
that they were aware of this medical condition from start to
finish. (Id. ¶¶ 6-8.)
his initial report to CO Adun, Hernandez was examined by a
physician's assistant (“PA”) at a New York
City Correctional Health Services office located at Rikers.
(Id. ¶ 19.) He was diagnosed with
“contact dermatitis due to hot water, ” and the
PA documented multiple pus blisters and other irritation,
including a visible rash. (Id. ¶ 20.) Hernandez
was given an ointment to spread over the affected areas and
told to take ibuprofen for pain. (Id.)
days later, Hernandez returned to the same medical facility
because of worsening discomfort-the “severe pain”
made lying in bed too painful for him to sleep. (Id.
¶ 21.) The PA noted that Hernandez had developed
“scaly erythematous patches on his back, ” and
that the blisters and rash caused by the scalding water had
begun to spread to other parts of his body. (Id.)
The PA also noted that Hernandez's skin had become
pruritic, which could be an indication of infection or skin
disease. (Id.) On the basis of Hernandez's
severe and worsening condition, and at Hernandez's
request, the PA issued a referral for an examination and
treatment by a dermatologist through Bellevue Hospital.
(Id. ¶ 23.)
spite of Hernandez's worsening medical condition and the
referral to Bellevue, the authorities in charge of
Hernandez's custody refused to make arrangements for him
to receive appropriate dermatological care. (Id.
¶ 25.) A month later, around November 22, 2013, he was
brought to a dermatology clinic onsite at Rikers, where a PA
again reviewed his case and documented a worsening condition,
including the further spread of blisters and rash, additional
signs of infection, and the outbreak of lesions.
(Id. ¶ 26.) The PA diagnosed Hernandez with a
skin infection called “lichen planus v. gultata
psoriasis” and ordered that he have a follow-up visit
within six weeks. (Id. ¶ 29.) But the follow-up
did not occur. (Id. ¶ 43.)
November 28, 2013, Angel called a physician to explain that
his condition was worsening. (Id. ¶ 30.) The
doctor concluded that the treatments were not working and
that Hernandez's condition was indeed deteriorating.
(Id. ¶ 31.) Hernandez's blisters and
“scales” grew and began “secreting blood
and pus.” (Id. ¶ 32.) He filed a
grievance with the New York City Health Department in
December, describing his substandard medical treatment.
(Id. ¶ 34.) He also filed a New York City
Department of Correction Inmate Grievance and Request Program
Statement Form, in which he begged for medication to help him
“get better.” (Id. ¶¶ 36-37.)
In response, the New York City Department of Correction
issued an Inmate Grievance and Request Program Disposition
Form, acknowledging that Hernandez “need[ed]
treatment” and directing its provision. (Id.
¶¶ 38-39.) However, no action was taken.
(Id. ¶ 40.) At the end of the December, 2013,
Hernandez filed a second “Inmate Grievance.”
(Id. ¶¶ 41-42.) Then, in January,
Hernandez penned a letter to the warden about the situation;
the letter was never answered. (Id. ¶¶
Hernandez submitted another request to see a dermatologist, a
physician onsite at Rikers issued a referral for evaluation,
examination, and treatment. (Id. ¶¶
46-47.) Around the same time, the New York City Health
Department also issued a dermatology referral. (Id.
¶ 48.) Still, nothing happened. (Id. ¶
not until January 17, 2014, that Hernandez was brought in for
a dermatology review. (Id. ¶ 50.) And at the
end of January, Bellevue Dermatology was, at last, able to
review photographs of Hernandez's skin condition-albeit
remotely-and recommended that he be transported for further
evaluation in several weeks at the latest. (Id.
¶¶ 51-52, 55.) But, again, no one approved or
arranged for this visit. (Id. ¶ 56.)
February, Hernandez filed another health grievance form
(id. ¶ 58), and got another referral
(id. ¶¶ 60, 65). But, still, he was not
transported-instead, Hernandez was sent back to the clinic at
Rikers. (Id. ¶ 59.)
only on the last day of March, 2014, that Hernandez was
transported offsite to see a dermatologist at Bellevue. The
dermatologist observed extensive scarring caused by the
condition and told Hernandez it ...