United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
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.
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.
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.
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.
Greene Defendants' motion to sever and transfer is
Court has subject matter jurisdiction pursuant to 28 U.S.C.
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,
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.
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
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.
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
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.
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.
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.
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
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
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.
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
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.
Eighth Amendment Claims
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
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.
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
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 ...