Collymore v. Commissioner of D.O.C. et al

Filing 104

ORDER denying 64 Motion to Dismiss. For the reasons described in the attached ruling, Defendant McPhersons motion to dismiss, ECF No. 64 , is denied. Signed by Judge Sarala V. Nagala on 8/30/2024. (Lum, A)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANTHONY T. COLLYMORE,
Plaintiff,
v.
COMMISSIONER OF D.O.C., et al.,
Defendants.

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CASE NO. 3:21-CV-303 (SVN)
August 30, 2024

RULING ON DEFENDANT McPHERSON’S MOTION TO DISMISS
Pro se Plaintiff Anthony T. Collymore, a sentenced inmate, brings this action pursuant to
42 U.S.C. § 1983 asserting Eighth Amendment claims for deliberate indifference to his serious
medical needs. The Court (Covello, U.S.D.J.), initially dismissed Plaintiff’s complaint in this case
on the grounds that the complaint was frivolous, and later dismissed Plaintiff’s amended
complaint, finding that the Defendants sued therein were protected by qualified immunity.
Plaintiff successfully appealed the dismissals. Collymore v. Myers, 74 F.4th 22, 29 (2d Cir. 2023).
Following the Second Circuit’s remand order, Plaintiff filed a Second Amended Complaint
(“SAC”) restating his claims. After conducting an initial review of the SAC, the Court allowed
claims against several Defendants, including Defendant APRN McPherson (“Defendant”), to
proceed to service. See ECF Nos. 49, 50.
Defendant has now filed a motion to dismiss the claims against her, arguing that Plaintiff
has not alleged facts showing that she was deliberately indifferent to his medical needs. For the
following reasons, Defendant’s motion to dismiss is denied.

I.

FACTUAL BACKGROUND 1

The operative Complaint contains the following allegations, which are accepted as true for
the purpose of this motion. Ashcroft v. Iqbal, 55 U.S. 662, 678 (2009).
Plaintiff suffers from an infection on his scalp which presents as bumps and open pustules
that bleed, ooze pus, and itch and burn severely to the point of affecting Plaintiff’s daily activities.
SAC, ECF No. 45, ¶ 35. Although Plaintiff has repeatedly sought treatment for his scalp condition
since 2015, the condition has not been fully remedied. Id. ¶¶ 47–48. Plaintiff alleges that he was
seen multiple times by various medical staff to treat his scalp condition and specifically alleges
that he saw Defendant, a nurse on the medical staff of the Department of Corrections who provides
medical care to inmates, three times in 2019. Id. ¶¶ 12, 80–81, 96–104.
Defendant first examined Plaintiff’s scalp on May 14, 2019. Id. ¶¶ 80–81, 96–97. She
diagnosed a “rash” and continued a prescription for Seebex 2 shampoo even though Plaintiff told
her the shampoo was not working. Id. ¶¶ 80–81, 97. Plaintiff asked Defendant to refer him to a
specialist, but she did not do so. Id. ¶¶ 80, 96. In her notes on the examination, Defendant
described Plaintiff’s condition as a rash and made no mention of any open sores, scabs, blood, or
puss. Id. ¶ 97.
Plaintiff saw Defendant a second time on May 21, 2019, at which time he again complained
that the Seebex shampoo was not working, stated his scalp condition was worsening, and again
asked to see a specialist. Id. ¶ 98. In response, Defendant told Plaintiff that he had been called to
the medical unit because of his complaints of a possible heart condition and told him, “you want

The Court includes only the facts relating to Defendant McPherson’s treatment and those providing necessary
background.
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Plaintiff has alternatively referred to the brand name of the shampoo as “Seebex,” as in his SAC, and “Sebex,” as in
the operative complaints for his appeal. See Collymore, 74 F.4th at 29. The Court refers to it as “Seebex” in this
ruling, to be consistent with the SAC.
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me to look at your head or chest? I won’t do both!” Id. ¶ 99. Defendant did not treat Plaintiff for
his scalp condition on this visit and made no reference to Plaintiff’s scalp condition in her notes of
the visit. Id. ¶ 101.
Plaintiff saw Defendant for the third and final time on August 14, 2019. Id. ¶ 102. When
Plaintiff stated that his scalp was burning badly during and after showering and was affecting his
ability to sleep most every night, Defendant stated that she would prescribe a different shampoo
other than Seebex and a cream that would last for three months. Id. ¶¶ 102–03. Plaintiff alleges
that he received the same Seebex shampoo that he had previously been prescribed, that the cream
lasted only one month instead of three, and that neither the cream nor the Seebex shampoo
alleviated his symptoms or cured his scalp infection. Id. ¶ 104.
II.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
case or cause of action for failure to state a claim upon which relief can be granted. When
determining whether a complaint states a claim upon which relief can be granted, highly detailed
allegations are not required, but the complaint must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678. This plausibility standard is not a
“probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant
has acted unlawfully.” Id. In undertaking this analysis, the Court must “draw all reasonable
inferences in [the plaintiff’s] favor, assume all well-pleaded factual allegations to be true, and

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determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted).
The Court is not “bound to accept conclusory allegations or legal conclusions
masquerading as factual conclusions,” Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008), and
“a formulaic recitation of the elements of a cause of action will not do,” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Consequently, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555). Ultimately, “[d]etermining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
These pleading standards apply to self-represented parties. It is true that Courts are under
an obligation to extend “special solicitude” to pro se litigants and ought to read their pleadings “to
raise the strongest arguments that they suggest.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378,
387 (2d Cir. 2015) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006))
(internal quotation marks omitted). But at the same time, a pro se complaint must meet the basic
pleading standards outlined above to survive a motion to dismiss. Fowlkes, 790 F.3d at 387 (citing
Twombly, 550 U.S. at 570).
III.

DISCUSSION

To state a plausible claim and survive a motion to dismiss in this type of action, Plaintiff
must allege facts showing Defendant’s “deliberate indifference to [his] serious medical needs.”
Thomas v. Wolf, 832 F. App’x 90, 92 (2d Cir. 2020) (quoting Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011)). There are two elements to a claim for deliberate indifference to medical needs.
The first element is objective. The inmate must show that he was “actually deprived of

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adequate medical care” by an official’s failure “to take reasonable measures in response to a
[sufficiently serious] medical condition.” Id. (quoting Salahuddin v. Goord, 467 F.3d 263, 279–
80 (2d Cir. 2006) (abrogated on other grounds)). Thus, determining whether this element is
satisfied requires the court to make two separate inquiries. First, the court must determine whether
the inmate “was actually deprived of adequate medical care.” Salahuddin, 467 F.3d at 279. In
providing such care the medical providers are only required to have “act[ed] reasonably.” Id. The
second inquiry requires the court to determine whether the inadequacy in medical care is
“sufficiently serious,” which requires the court to examine “how the offending conduct is
inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Id.
at 280.
The second element is subjective. The inmate must show that the official acted with
“subjective recklessness,” such that the official “knew of and consciously disregarded an excessive
risk to inmate health or safety.” Wolf, 832 F. App’x at 92 (quoting id. at 279–80 and Hill, 657
F.3d at 122) (cleaned up). Because this is a recklessness standard, allegations constituting
negligence or medical malpractice are insufficient. Id. (citing Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996)); see also Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (“mere
negligence” is insufficient to state a claim for deliberate indifference).
On appeal of the dismissal of earlier iterations of Plaintiff’s complaint, the Second Circuit
concluded that Plaintiff’s allegations concerning his scalp condition—which are mirrored in the
SAC—plausibly alleged a serious medical need, satisfying the objective component of the Eight
Amendment deliberate indifference standard. Collymore, 74 F.4th at 31 (holding that the “right to
be free” from the condition caused Plaintiff intolerable pain, oozed pus, interfered with his sleep,
and caused painful scars was “clearly established” such that the district court’s ruling that the

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Defendants, including McPherson, were entitled to qualified immunity was erroneous); see id. (“It
was therefore error to dismiss Collymore’s Amended Complaint for failure to satisfy the objective
component of the Eight Amendment deliberate indifference standard.”).

The question that

remained—and which the district court had not previously addressed—was whether Defendants
acted with deliberate indifference or merely “malpractice at most.” Id.
For the reasons the Second Circuit found the Amended Complaint to satisfy the objective
element, this Court finds that the Second Amended Complaint does as well. Plaintiff alleges a
serious, painful condition that has been “degenerative and resistant to treatment for years.” Id.
His condition causes him intense pain such that he feels his scalp is “on fire,” and causes his skin
to ooze pus. Id.; SAC ¶¶ 35, 61. Thus, the Court concludes that Plaintiff has adequately alleged
that he was deprived of adequate medical care for a sufficiently serious medical need.
Plaintiff has also plausibly established the subjective element of the deliberate indifference
test. Plaintiff alleges that, on his first visit with Defendant, Plaintiff said that his shampoo was not
effective and asked to see a specialist. SAC ¶ 96. Yet, Defendant’s only treatment of Plaintiff
was prescribing the same shampoo he had already been using, and she did not refer him to a
specialist. Id. ¶ 80. These allegations plausibly suggest that Defendant knowingly disregarded
Plaintiff’s statement that his shampoo was ineffective. Defendant argues that her prescription of
Seebex despite Plaintiff specifically informing her of its inefficacy simply amounts to a difference
of opinion in medical treatment. See Def.’s Br., ECF No. 64–1 at 5. However, Plaintiff’s wellpleaded facts show that it is at least plausible that Defendant “knew of and consciously disregarded
an excessive risk to inmate health or safety” by ignoring Plaintiff’s complaints about how his
prescription failed to alleviate his serious symptoms. Wolf, 832 F. App’x at 92 (internal quotation
marks omitted).

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Plaintiff’s allegations about Defendant’s notes from the first visit further bolster the
plausibility of Defendant’s subjective recklessness. Defendant’s notes from the first visit allegedly
do not contain any reference to the open sores, scabs, and puss and reflect her diagnosis of
Plaintiff’s condition as a rash. SAC ¶ 97. It is true that Plaintiff does not specifically allege the
exact symptoms that his condition was presenting on the day of his first visit, to include any
allegation of having sores, scabs, and puss specifically on the day of the first visit that Defendant
missed. But given the sheer longevity and persistent nature of Plaintiff’s serious condition, it is
plausible to infer from the operative complaint that Defendant would have observed some scalp
symptoms beyond what could be characterized as a mere rash. Therefore, Defendant’s alleged
failure to record more symptoms makes it all the more plausible that Defendant was knowingly
indifferent to Plaintiff’s medical needs.
Plaintiff’s allegations concerning his second visit with Defendant also support the
plausibility of his claim. During Plaintiff’s second visit, he told Defendant that his condition was
worsening, reiterated that the shampoo was still not relieving his symptoms, and that he wanted to
see a specialist. Id. ¶ 98. Defendant refused to address any of these complaints. Id. ¶ 99–101.
Defendant argues that she did so in order to treat Plaintiff’s heart condition, and that this decision
was a reasonable choice given the life-threatening nature of a heart condition and given that she
had seen Plaintiff for his scalp condition just a week earlier. Def.’s Br., ECF No. 64–1 at 6. It is
true that a prisoner does not have the right to choose his medical treatment so long as the treatment
he receives is adequate. See Hill, 657 F.3d at 123. But Plaintiff’s operative complaint brings into
question whether the treatment of his scalp condition was adequate and whether Defendant ignored
his scalp condition complaints entirely at this visit, causing a delay in his treatment that resulted
in his remaining in significant (and potentially unnecessary) pain.

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The allegations arising from Plaintiff’s third visit are less conclusive than the allegations
from the previous two visits. Defendant allegedly said she would prescribe a shampoo other than
Seebex, but Plaintiff ended up receiving Seebex again. SAC ¶¶ 103–04. It is not clear from the
operative complaint whose fault it was that Plaintiff did not receive a new shampoo. Similarly, it
is unclear why the cream Defendant prescribed ran out two months before she suggested it would.
See id.
Nonetheless, taking the allegations of the SAC as a whole, the Court is satisfied that
Plaintiff has pleaded sufficient facts to plausibly show that the subjective element of the deliberate
indifference to medical needs test is satisfied. Defendant may revisit her arguments at summary
judgment or trial based on a more fully developed record.
IV.

CONCLUSION

For the reasons described herein, Defendant McPherson’s motion to dismiss, ECF No. 64,
is denied.

SO ORDERED at Hartford, Connecticut, this 30th day of August, 2024.
/s/ Sarala V. Nagala
SARALA V. NAGALA
UNITED STATES DISTRICT JUDGE

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