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Burgess v. Gerbing

United States District Court, S.D. New York

July 12, 2017

KELVIT BURGESS, Plaintiff,
v.
KATHLEEN GERBING; P. EARLY; A. SMITH-ROBERTS; MS. L. HURD; BRANDON SMITH; MS. M. HAMMOND; DR. D. SMITH; NURSE ADMIN. KAREN COLE; and MAXINE FORBES GOULDING, in her capacity as the representative of Dr. Herbert E. Goulding's Estate; Defendants.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge

         Plaintiff Kelvit Burgess, a former inmate proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12101 et seq., claiming (as relevant to the pending motion) that defendants Brandon Smith, Superintendent of Greene Correctional Facility (“Greene”); M. Hammond, Deputy Superintendent at Greene; Karen Cole, Nurse Administrator at Greene; and Dr. D. Smith, plaintiff's physician at Greene (collectively, the “Greene Defendants”), violated plaintiff's rights under the Eighth Amendment and discriminated against him in violation of the ADA.

         Now pending is the Greene Defendants' motion to dismiss the amended complaint, or, in the alternative, to sever and transfer the remaining claims against them to the United States District Court for the Northern District of New York. (Doc. #71).

         The Greene Defendants' motion to dismiss is GRANTED as to plaintiff's Eighth Amendment claim regarding unsafe showers against Deputy Superintendent Hammond; plaintiff's Eighth Amendment claim regarding inadequate medical care against Nurse Cole; plaintiff's Eighth Amendment claims regarding the orthopedist referral and improper documentation of his medical conditions against Dr. Smith; and plaintiff's ADA discrimination claim regarding busing at Greene against all the Greene Defendants.

         The Greene Defendants' motion to dismiss is DENIED as to plaintiff's unsafe showers claim against Superintendent Smith, Nurse Cole, and Dr. Smith; and as to the inadequate medical care claim against Dr. Smith for refusing to provide plaintiff his knee and back braces.

         The Greene Defendants' motion to sever and transfer is DENIED.

         The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

         BACKGROUND

         I. Procedural History

         On November 11, 2016, the Court granted a motion to dismiss (Doc. #32), as to plaintiff's Eighth Amendment conditions of confinement claim, the ADA retaliation claim, and the ADA discrimination claim related to busing at Greene, and denied the motion with respect to plaintiff's other claims. Burgess v. Superintendent of Otisville Corr. Facility, 2016 WL 6875895, at *6 (S.D.N.Y. Nov. 21, 2016).[1]

         The Court granted plaintiff leave to amend his complaint with respect to his conditions of confinement claim regarding allegedly unsafe showers at Greene and the ADA discrimination claim regarding busing, both of which are brought against the Greene Defendants. The Court permitted plaintiff to include in his amended complaint a claim of deliberate indifference based on allegations that Dr. Smith and Nurse Cole confiscated and failed to re-issue plaintiff knee and back braces, improperly documented his medical condition, and failed to send him to an orthopedist. Burgess v. Superintendent of Otisville Corr. Facility, 2016 WL 6875895, at *6.

         II. Factual History

         In deciding the pending motion, the Court accepts as true all well-pleaded factual allegations in the complaint, the amended complaint, and plaintiff's other submissions, including plaintiff's brief in opposition to the pending motion, and draws all reasonable inferences in plaintiff's favor.[2]

         Plaintiff was an inmate in various New York state correctional facilities beginning in 2007. He suffers from Blount's Disease, which was treated with surgical implementation of staples in his knee. Plaintiff also suffers from arthritis and asthma. These conditions cause pain, limit plaintiff's ability to walk, and require him to use a cane. As a part of his treatment for these conditions, plaintiff was prescribed knee and back braces.

         On September 3, 2015, plaintiff arrived at Greene. On September 4, plaintiff reported to sick call to request knee and back braces. His request was refused, but he was given an appointment to be seen by a doctor. On September 7, he filed a grievance regarding the layout of Greene because programs and services were provided at a location too far away for plaintiff to access by walking and busing was not provided, and because the absence of handrails in the showers made it difficult and unsafe for plaintiff to bathe. Following Nurse Cole's recommendation, non-party Superintendent Steinbach denied plaintiff's grievance. Superintendent Smith affirmed the denial on appeal, citing his investigation with Nurse Cole.

         On September 22, 2015, plaintiff complained to Dr. Smith regarding knee and back pain, and requested that handrails be installed in the showers, because plaintiff feared he might fall and injure himself. Dr. Smith denied this grievance, which Superintendent Smith affirmed on appeal. Following x-rays of plaintiff's knees taken on October 23, Dr. Smith gave plaintiff a leg sleeve that she felt would aid his “mild and moderate” condition.

         On November 20, 2015, plaintiff fell in the shower when his cane slipped on the wet floor, and he suffered injuries to his back, hand, and knee. On November 22, plaintiff told Dr. Smith about his fall and injuries. Plaintiff again requested his knee brace, but Dr. Smith refused that request. On December 24, plaintiff again requested that handrails be installed, which Dr. Smith denied.

         From September 9 through December 24, 2015, plaintiff filed multiple grievances complaining he was excluded from programing and busing because of his disability. The programs plaintiff wished to attend were located on the far side of the facility, and plaintiff's physical limitations prevented him from accessing them by foot. Although Greene had a busing system available for Greene staff and corrections officers, inmates were not permitted to use the buses. Plaintiff submitted a request to amend Greene's busing practices to accommodate the disabled. Deputy Hammond denied this request, a decision with which Superintendent Smith, Dr. Smith, and Nurse Cole agreed.

         Plaintiff also filed requests with Nurse Cole for handrails, to see an orthopedist, and to be provided braces, all of which Nurse Cole denied. Plaintiff further alleges Nurse Cole did not review his medical records or examine him in making these decisions.

         DISCUSSION

         I. Motion to Dismiss The Greene Defendants move to dismiss plaintiff's Eighth Amendment unsafe showers claim, plaintiff's Eighth Amendment claims regarding medical care, and plaintiff's ADA busing discrimination claim.

         A. Legal Standard

         In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the sufficiency of the complaint under the “two-pronged approach” outlined by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff's legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678. Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

         To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         The Court must liberally construe submissions of pro se litigants, and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court “invent factual allegations” plaintiff has not pleaded. Id.

         B. Eighth Amendment Claims

         Plaintiff asserts two distinct Eighth Amendment claims: (i) unconstitutional conditions of confinement due to unsafe showers, and (ii) deliberate indifference to plaintiff's serious medical needs. The Court addresses each claim separately.

         1. Unsafe Showers

         Plaintiff claims the conditions of his confinement at Greene violated his Eighth Amendment rights because the showers at Greene do not contain handrails, which plaintiff required because of his physical limitations. Plaintiff alleges the absence of handrails caused him to fall and injure himself, and prevented him from bathing.

         To state an Eighth Amendment conditions of confinement claim, a plaintiff must allege: “(1) objectively, the deprivation the inmate suffered was sufficiently serious that he was denied the minimal civilized measure of life's necessities, and (2) subjectively, the defendant official acted with a sufficiently culpable state of mind, such as deliberate indifference to inmate health or safety.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (internal quotation marks and alteration omitted). Moreover, plaintiff must allege each defendant's personal involvement in the violation to state a claim against that defendant. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006).

         Regarding the objective requirement, “the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.” Walker v. Schult, 717 F.3d at 125. He must allege prison officials deprived him “of his basic human needs such as food, clothing, medical care, and safe and sanitary living conditions.” Id. (internal quotation marks omitted). When a plaintiff seeks to combine individual deprivations, the sum equates a conditions of confinement claim only if the composite conditions “have a mutually enforcing effect that produces the deprivation of a single, identifiable human need.” Wilson v. Seiter,501 U.S. 294, 304 (1991). As the Court previously held, the absence of handrails in showers creates a sufficiently serious safety risk, at least for inmates who are disabled. Burgessv. Superintendent of Otisville Corr. Facility, 2016 WL 6875895, at *3 (S.D.N.Y. Nov. 21, 2016). Moreover, the amended complaint alleges plaintiff was unable to shower because of the lack of handrails. Thus, plaintiff's claim is that ...


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