Barker v. The State of New York et al

Filing 12

DECISION AND ORDER: ORDERED that the Clerk of the Court consolidate Barker I (No. 9:15-CV-0869), Barker II (No. 9:15-CV-0872), and Barker III (No. 9:15-CV-1038). The Clerk shall reassign these consolidated actions to the Honorable Brenda K. Sannes a s presiding District Judge and shall refer the consolidated actions to the Honorable David E. Peebles as Magistrate Judge. Barker I shall be referred to and treated as the "Lead Case", and all subsequent Orders of the Court and papers that are submitted by the parties hereto that pertain to any of the foregoing actions shall be filed in Barker I. ORDERED that the Clerk of the Court place a copy of this Decision and Order in the file of Barker II and Barker III. ORDERED that the Clerk o f the Court shall place copies of the following documents in the file of this Lead Case: (1) the complaint and the September 23, 2015 Decision and Order of District Judge Kahn issued in Barker II, and (2) the complaint in Barker III. ORDERED that in light of the consolidation of Barker I, Barker II, and Barker III, and because plaintiff's application to proceed in forma pauperis was already granted in Barker II, plaintiff's applications to proceed in forma pauperis in Barker I and Bark er III are DENIED as moot. ORDERED that the Clerk of the Court shall edit the docket in the Lead Case to include the following additional defendants: "Doctor Zakis, Marcy Correctional Facility"; "The State of New York"; and " John/Jane Doe Doctor at Walsh Clinic Otolaryngology Unit, Mohawk Correctional Facility". ORDERED that The State of New York and all claims against it are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 19 15A(b) as barred by the Eleventh Amendment. ORDERED that if plaintiff wishes to proceed with this consolidated action he must file a signed consolidated amended complaint within thirty (30) days of the filing date of this Decision and Order as set fo rth above. ORDERED that in the event plaintiff fails to submit a signed consolidated amended complaint within thirty (30) days from the filing date of this Decision and Order, the Clerk shall, without further order of this Court, enter judgment notin g that this consolidated action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) due to plaintiff's failure to state a claim upon which relief can be granted and to comply with the terms of this Decision and Order and the September 23, 2015 Decision and Order of Senior District Judge Kahn issued in Barker II. In that event, the Clerk shall close Barker I, Barker II, and Barker III. Signed by Judge Brenda K. Sannes on 11/5/15. (served on plaintiff as directed)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

LLOYD BARKER,
Plaintiff,
9:15-CV-0869
(BKS/DEP)
(LEAD CASE)

v.
JOHN DOE DOCTOR,
Defendant.

LLOYD BARKER,
Plaintiff,
9:15-CV-0872
(LEK/DJS)
(MEMBER CASE)

v.
THE STATE OF NEW YORK, et al,
Defendants.

LLOYD BARKER,
Plaintiff,
9:15-CV-1038
(TJM/DEP)
(MEMBER CASE)

v.
DOCTOR ZAKIS, et al.,
Defendants.

APPEARANCES:
LLOYD BARKER
Plaintiff, pro se
CNY PC
Ward 601
P.O. Box 300
Marcy, NY 13403
BRENDA K. SANNES
United States District Judge
DECISION AND ORDER

I.

INTRODUCTION
Presently before the Court is a complaint filed by pro se plaintiff Lloyd Barker in

Barker v. John Doe Doctor, No. 9:15-CV-0869 ("Barker I"), together with an application to
proceed in forma pauperis.1 Barker I, Dkt. Nos. 1, 2. The Clerk of the Court has advised
the Court of related complaints filed by plaintiff in Barker v. The State of New York, No.
9:15-CV-0872 (LEK/DJS) ("Barker II") and Barker v. Zakis, No. 9:15-CV-1038 (TJM/DEP)
("Barker III"). See Barker II, Dkt. No. 2 and Barker III, Dkt. No. 1. Plaintiff is presently
confined at the Central New York Psychiatric Center and has filed in forma pauperis
applications in all three actions. 2 Barker I at Dkt. No. 9; Barker II at Dkt. No. 7; Barker III at
Dkt. No. 5. In Barker II, as more fully discussed below, Senior United States District Judge
Lawrence E. Kahn granted plaintiff's in forma pauperis application, sua sponte dismissed
plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or
failure to state a claim upon which relief may be granted; but granted plaintiff permission to
submit an amended complaint in that action. See Barker II, Dkt. No. 10.
For the reasons set forth below, Barker I, Barker II, and Barker III are consolidated,
plaintiff's applications to proceed in forma pauperis in Barker I and Barker III are denied as
moot, and plaintiff's complaints in Barker I and Barker III are sua sponte dismissed

1

This action was originally filed in the Southern District of New York on May 21, 2015, and was
transferred to this District by Order of Chief United States District Judge Loretta A. Preska of the Southern
District of New York. Dkt. No. 6.
2

Plaintiff was an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS") when he filed each of these actions. See Barker I, Dkt. No. 1 at 1; Barker II,
Dkt. No. 2 at 1; and Barker III, Dkt. No. 1 at 5. According to the DOCCS website, plaintiff was released to
another agency on August 25, 2015. Plaintiff's maximum expiration date is listed as January 24, 2017. See
http://nysdoccslookup.doccs.ny.gov/ (information for inmate Lloyd Barker, DIN 99-B-0916) (last visited October
29, 2015).

2

pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or failure to state a claim
upon which relief may be granted unless, within thirty (30) days of the date of this Decision
and Order, plaintiff files a consolidated amended complaint that cures the pleading
defects identified in the Decision and Order issued by Senior District Judge Kahn in Barker
II and this Decision and Order.
II.

DISCUSSION
A.

Summary of the Complaints in Barker I, Barker II, and Barker III

In all three actions, plaintiff asserts Eighth Amendment medical indifference claims
relating to alleged failure to receive adequate medical treatment for problems he was
having with his ears. The claims arose at the Marcy Correctional Facility ("Marcy C.F.")
and Mohawk Correctional Facility ("Mohawk C.F.") in 2015. The facts, as alleged by
plaintiff in each complaint, are set forth below.
1. Barker I
While incarcerated at Marcy C.F., plaintiff told the nurses and doctors that he
suffered from a perforated right ear drum which required draining. Barker I, Dkt. No. 2 at
5. Plaintiff went to the infirmary to see the doctor and was told that they were scheduling
him to see an ear, nose, and throat specialist in February 2015, but the appointment was
not made until April 2015, and then it was postponed. 3 Id. at 4-5. Plaintiff has lost hearing
in his right ear and the hearing in his left ear has decreased "to 60/40 percent." Id. at 8.
Plaintiff's hearing aid stopped working on January 16, 2015. Id. at 5. Plaintiff gets dizzy,
he lacks coordination, and he "throw[s] up meals even with the medication that [he is]

3

Plaintiff does not identify who "they" were.

3

given." Id. Plaintiff names John Doe Doctor at Marcy C.F. as the sole defendant. Id. at 1.
Construed liberally, the complaint alleges a claim for deliberate indifference to serious
medical needs in violation of the Eighth Amendment.
2. Barker II
Upon arrival at Marcy C.F., plaintiff told the nurses and doctors that he suf fered
from a perforated right ear drum that required treatment. Barker II, Dkt. No. 2 at 4.
Plaintiff alleges that on "different dates and times," while confined in his cell, he
experienced dizziness and pressure in his right ear causing him to lose his balance. Id. at
3. Plaintiff had to avoid falling by remaining seated on his bed. Id. Plaintiff told "them"
about the incidents but "no one did anything."4 Id. After three months, plaintiff was
informed that he had an appointment, "but it was postponed." 5 Id. As a result, plaintiff's
hearing in his left ear has decreased " to 60/40 percent," he is going deaf in his right ear,
and he is losing his coordination. Id. at 3-4. In January 16, 2015, plaintiff's hearing aid
"quit operating." Id. at 4. Plaintiff names The State of New York and John Doe Doctor at
Marcy C.F. as defendants. Id. at 1. Construing plaintiff's allegations liberally, Judge Kahn
found that plaintiff intended to set forth a claim under the Eighth Amendment for deliberate
indifference to serious medical needs.
3. Barker III
While confined at Marcy C.F. in February, 2015, plaintiff told defendant Dr. Zakis
that plaintiff's right inner ear needed to be drained. Baker III, Dkt. No. 1 at 3. Dr. Zakis

4

Plaintiff does not identify "them" in any respect.

5

The complaint lacks any information with respect to where, when, or with whom plaintiff had an
appointment.

4

told plaintiff that he should wait until he goes to the Walsh Clinic, which is located in
Mohawk C.F., to "see what they say."6 Id. When plaintiff went to the Walsh Clinic, "[t]hey
didn't drain [plaintiff's ear] or say anything." Id. "They" sent plaintiff for a CT scan in July,
2015, but as of August, 2015, plaintiff had received no results.7 Id. Plaintiff suffers from
dizziness and vomiting, and fell several times in his cell. Id. In August, 2015, plaintiff
stopped taking his medication because it was not helping him. Id. Dr. Zakis told plaintiff
he would get "sick stopping the thyroid medication." Id. Plaintiff now requires a hearing
aid for his left ear. Id. Plaintiff names Doctor Zakis at Marcy C.F., The State of New York,
and Doctor at Walsh Clinic Otolaryngology Unit at Mohawk C.F. as defendants.
Construed liberally, the complaint alleges claims for deliberate indifference to plaintiff's
serious medical needs in violation of the Eighth Amendment.
B.

Consolidation

Under Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 42, "[i]f actions before the
court involve a common question of law or fact, the court may: (1) join for hearing or trial
any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other
orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). "The trial court has
broad discretion to determine whether consolidation is appropriate." Johnson v. Celotex
Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990).
Upon review of the three complaints, the Court finds that common questions of law
and/or fact exist in these cases. Therefore, the Court hereby consolidates these actions.

6

Although not entirely clear, it appears that Dr. Zakis may be the same individual previously identified
only as John Doe Doctor at Marcy C.F. in the complaints in Barker I and Barker II.
7

Plaintiff does not indicate who "they" are.

5

Fed. R. Civ. P. 42(a). Barker I shall be referred to and treated as the "lead" case, and all
subsequent orders of the Court and papers that are submitted by the parties hereto that
pertain to any of the three foregoing actions shall be filed in Barker I.
C.

In Forma Pauperis Status

Plaintiff filed in forma pauperis applications in all three of his actions. See Barker I,
Dkt. No. 9; Barker II, Dkt. No. 7; and Barker III, Dkt. No. 5. In Barker II, Senior District
Judge Kahn granted plaintiff's in forma pauperis application. Barker II, Dkt. No. 10 at 9.
Because Barker I, Barker II, and Barker III have been consolidated, plaintiff is entitled to
proceed in forma pauperis in this consolidated action based upon the g rant of in forma
pauperis status in Barker II.8 Accordingly, plaintiff's in forma pauperis applications in
Barker I (Dkt. No. 9) and Barker III (Dkt. No. 5) are denied as moot.
D.

Standard of Review for the Complaints

Section 1915(e)(2)(B) directs that, when a plaintiff seeks to proceed in forma
pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that –
. . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief." 28 U.S.C. § 1915(e)(2)(B). Similarly, Section 1915A(b) directs that a court
must review any "complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity" and must "identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be

8

Thus, plaintiff will only pay one filing fee for the three consolidated actions.

6

granted; or . . . seeks monetary relief from a defendant who is immune from such relief."
28 U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating
that both sections 1915 and 1915A are available to evaluate prisoner pro se complaints).
Thus, although the court has the duty to show liberality toward pro se litigants, see Nance
v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise "extreme
caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse
party has been served and both parties (but particularly the plaintiff) have had an
opportunity to respond," Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal
citations omitted), the court also has a responsibility to determine that a claim is not
frivolous before permitting a plaintiff to proceed with an action in forma pauperis.9
A court should not dismiss a complaint if the plaintiff has stated "enough facts to
state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although the court should construe the factual allegations in the light most favorable to the
plaintiff, "the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing

9

"Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915e is appropriate to prevent abuses of the
process of the court," Nelson v. Spitzer, No. 9:07-CV-1241 (TJM/RFT), 2008 WL 268215, at *1 n.3 (N.D.N.Y.
Jan. 29, 2008) (citation omitted), as well as "to discourage the filing of [baseless lawsuits], and [the] waste of
judicial . . . resources[.]" Neitzke v. Williams, 490 U.S. 319, 327 (1989). To determine whether an action is
frivolous, a court must look to see whether the complaint "lacks an arguable basis either in law or in fact." Id. at
325.

7

Twombly, 550 U.S. at 555). Thus, "where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it has
not 'show[n]' – 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).
E.

Judge Kahn's Decision and Order in Barker II

After reviewing plaintiff's complaint in Barker II pursuant to 28 U.S.C. § 1915(e)(2)
and 28 U.S.C. § 1915A(b), Judge Kahn found that plaintiff's claims against The State of
New York were barred by the Eleventh Amendment and dismissed those claims with
prejudice. Barker II, Dkt. No. 10 at 6.
With respect to plaintiff's Eighth Amendment deliberate medical indifference claims
against defendant John Doe Doctor at Marcy C.F., Judge Kahn noted that "[t]o state an
Eighth Amendment claim for medical indifference, a plaintiff must allege that the
defendant was deliberately indifferent to a serious medical need." Barker II, Dkt. No. 10 at
6-7 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Judge Kahn found that, even
assuming that plaintiff's injuries were sufficiently serious, plaintiff had
not sufficiently plead that any individual was deliberately indifferent to his
medical needs. The Complaint lacks the date(s) or any specific facts
regarding when Plaintiff experienced "dizziness" and pressure. Moreover,
the Complaint is void of any facts establishing when or to whom Plaintiff
made sick call requests, the nature of his requests, and when/why the
requests were denied. Plaintiff’s conclusory allegations that "nobody did
anything" are insufficient to state a claim for a constitutional violation. See
Kee v. Hasty, No. 01 Civ. 2123, 2004 WL 807071, at *29 (S.D.N.Y.
April 14, 2004) (dismissing complaint where the inmate failed to specify the
dates on which he was denied proper treatment, the nature of his needs on
those dates, and the nature of the treatment that was purportedly denied by
the defendants). At best, the Complaint contains allegations related to
negligence and malpractice, which are not actionable under § 1983. See
Morales v. N.Y. State Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988); see also
8

Hathaway [v. Coughlin], 99 F.3d [550,] 553 [(2d Cir. 1996)].
Barker II, Dkt. No. 10 at 7-8. Moreover, Judge Kahn found that plaintiff's allegations
against defendant John Doe Doctor were "also subject to dismissal based upon the failure
to plead personal involvement on the part of John Doe Doctor or any individual." Id. at 8.
Thus, plaintiff's Eighth Amendment deliberate indifference claims against defendant John
Doe Doctor were dismissed without prejudice and plaintiff was granted leave to submit an
amended complaint with respect to those claims within thirty days of Judge Kahn's
Decision and Order.10 Id. at 9-10.
F.

Review of Complaints in Barker I and Barker III
1. Barker I

The complaint in Barker I asserts Eighth Amendment medical indifference claims
against John Doe Doctor. See Barker I, Dkt. No. 2. Those claims are virtually identical to
the claims asserted against John Doe Doctor in the complaint in Barker II. Compare
Barker I, Dkt. No. 2 with Barker II, Dkt. No. 2. Therefore, the complaint in Barker I is
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be granted for the same
reasons set forth in Judge Kahn's well-reasoned Decision and Order in Barker II. See
Barker II, Dkt. No. 10.
2. Barker III
a. The State of New York

10

Plaintiff was required to submit his amended complaint in Barker II on or before October 23, 2015.
Barker II, Dkt. No. 10. Plaintiff did not submit an amended complaint in Barker II. However, since Barker II will
now be consolidated with Barker I and Barker III, plaintiff will have an additional opportunity to amend the claims
against John Doe Doctor by submitting a consolidated amended complaint in this action.

9

Initially, the Court notes that plaintiff seeks monetary damages and injunctive relief
against defendant The State of New York. Barker III, Dkt. No. 1 at 1, 4. As Judge Kahn
noted in his Decision and Order in Barker II, plaintiff's claims against the State of New
York are barred by the Eleventh Amendment.11 Barker II, Dkt. No. 10 at 6. Thus, The
State of New York and all claims against it are dismissed with prejudice.
b. Dr. Zakis and the Unnamed Doctor at Walsh Clinic
To state an Eighth Amendment claim for medical indifference, a plaintiff must allege
that the defendant was deliberately indifferent to a serious medical need. See Farmer,
511 U.S. at 825, 834. Deliberate indifference has two necessary components, one
objective and the other subjective. See Hathaway, 99 F.3d at 553. Objectively, the
deprivation must be "sufficiently serious," creating a risk of "death, degeneration, or
extreme pain." Id. Subjectively, the official must have the requisite state of mind, which is
the "equivalent of criminal recklessness." Id.
The protections afforded by the Eighth Amendment do not extend to remedy harms
which may be inflicted as a result of conduct amounting to negligence or medical
malpractice but not encompassing conscious disregard of an inmate's health. An
"inadvertent failure to provide adequate medical care" does not constitute "deliberate
indifference." Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Moreover, a complaint that

11

In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an exception to state
sovereign immunity in federal actions where an individual brings an action seeking injunctive relief against a
state official for an ongoing violation of law or the Constitution. Under the doctrine, a suit may proceed against a
state official in his or her official capacity, notwithstanding the Eleventh Amendment, when a plaintiff, "(a) alleges
an ongoing violation of federal law and (b) seeks relief properly characterized as prospective." See In re Deposit
Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations omitted); see also Santiago v. New York
State Dep't of Corr. Serv., 945 F.2d 25, 32 (2d Cir. 1991) (holding that such claims, however, cannot be brought
directly against the state, or a state agency, but only against state officials in their official capacities).

10

a physician has been negligent in diagnosing or treating a medical condition does not state
a valid claim . . . under the Eighth Amendment." Id. Stated another way, "medical
malpractice does not become a constitutional violation merely because the victim is a
prisoner." Id.; see also Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) ("Because
the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a
substitute for state tort law, not every lapse in prison medical care will rise to the level of a
constitutional violation.").
Additionally, "[i]t is well-established that mere disagreement over the proper
treatment does not create a constitutional claim." Chance v. Armstrong, 143 F.3d 698, 703
(2d Cir. 1998). "So long as the treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth Amendment violation." Id.;
Graham v. Gibson, No. 04-CV-6088, 2007 WL 3541613, at *5 (W.D.N.Y. Nov. 14, 2007)
("Courts have repeatedly held that disagreements over treatment do not rise to the level of
a Constitutional violation."); Jones v. Westchester Cnty. Dep't of Corrs. Med. Dep't, 557 F.
Supp. 2d 408, 413 (S.D.N.Y. 2008) (The word "adequate" reflects the reality that "[p]rison
officials are not obligated to provide inmates with whatever care the inmates desire.
Rather, prison officials fulfill their obligations under the Eighth Amendment when the care
provided is 'reasonable.'"). "Determinations made by medical providers within their
discretion are given a 'presumption of correctness' when it concerns the care and safety of
patients." Mendoza v. McGinnis, No. 9:05-CV-1124 (TJM/DEP), 2008 WL 4239760, at *11
(N.D.N.Y. Sept. 11, 2008). Thus, "disagreements over medications, diagnostic techniques
(e.g., the need for X-rays), forms of treatment, or the need for specialists . . . are not

11

adequate grounds for a section 1983 claim." Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001); see also Estelle, 429 U.S. at 107
(noting that medical decisions such as whether or not to order X-rays or other "diagnostic
techniques" do not rise to the level of cruel and unusual punishment but are, at most,
indicative of medical malpractice).
Even assuming that plaintiff suffered from a serious medical need, plaintiff does not
set forth facts to plausibly suggest that either Dr. Zakis or the unnamed doctor at the
Walsh Clinic denied him medical care for those needs. Plaintiff alleges that defendant Dr.
Zakis denied plaintiff's request to have his ear drained because plaintiff was scheduled to
see an ear, nose, and throat specialist and Dr. Zakis wished to await the specialist's
recommendation. Barker III, Dkt. No. 1 at 3. Plaintiff further alleges that plaintiff
voluntarily chose to discontinue his thyroid medicine because he did not believe it was
helping him, even though Dr. Zakis told plaintiff that stopping the medication would make
him sick. Id. None of these allegations suggest that defendant Dr. Zakis denied plaintiff
medical treatment; at best plaintiff only alleges that Dr. Zakis scheduled him for more
appropriate treatment than he himself could provide. With respect to plaintiff's treatment
at the Walsh Clinic, plaintiff alleges that "[t]hey didn't drain [his ear] or say anything" and
"they" sent him for a CT scan. Id. Plaintiff does not associate these actions with the
unnamed doctor at the Walsh Clinic, however, even if he did, plaintiff fails to allege that his
medical needs were not addressed. Instead, plaintiff alleges that he was sent for further
testing in the form of a CT scan and had yet to receive the results of the CT scan when he
filed his complaint. At best plaintiff alleges that he disagreed with the treatment provided
by Dr. Zakis and by the unnamed doctor at the Walsh Clinic. Moreover, the complaint
12

contains no facts to plausibly suggest that either Dr. Zakis or the unnamed doctor at the
Walsh Clinic culpably and deliberately disregarded plaintiff's medical needs. Finally, to the
extent that plaintiff alleges that he now needs a hearing aid because of "all the
DELIBERATE INDIFFERENCE, NEGLIGENCE, and MALPRACTICE," this conclusory
allegation is insufficient to allege an Eighth Amendment medical indifference claim. See
Iqbal, 556 U.S. at 678 (Although the Court should construe the factual allegations in the
light most favorable to the plaintiff, "the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions."); see also Smith,
316 F.3d at 184 ("[T]he Eighth Amendment is not a vehicle for bringing medical
malpractice claims, nor a substitute for state tort law.").
Accordingly, the Eighth Amendment medical indifference claims against Dr. Zakis
and the unnamed doctor at Walsh Clinic are dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
G.

Status of the Pleadings

Upon review, and with due regard for plaintiff's status as a pro se litigant, the
complaints in Barker I, Barker II, and Barker III have been found to be insufficient to
survive sua sponte review and subject to dismissal without prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may
be granted. In light of his pro se status and because these actions a re now consolidated,
plaintiff is afforded the opportunity to file a single signed consolidated amended
complaint if he wishes to proceed with this consolidated action. See Gomez v. USAA Fed.

13

Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). In any consolidated amended complaint
that plaintiff submits in response to this Decision and Order, he should set f orth a short
and plain statement of the facts on which he relies to support his claims that the
individuals named as defendants engaged in misconduct or wrongdoing that violated his
constitutional rights.12 Plaintiff is advised that any consolidated amended complaint will
completely replace the prior complaints in Barker I, Barker II, and Barker III, and that no
portion of any of those prior complaints shall be incorporated into his consolidated
amended complaint by reference. Plaintiff is advised that if he fails to submit a signed
consolidated amended complaint within thirty (30) days of the filing date of this Decision
and Order, the Court will, without further order, dismiss this consolidated action without
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or failure to
state a claim upon which relief may be granted.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that the Clerk of the Court consolidate Barker I (No. 9:15-CV-0869),

Barker II (No. 9:15-CV-0872), and Barker III (No. 9:15-CV-1038). The Clerk shall reassign
these consolidated actions to the Honorable Brenda K. Sannes as presiding District Judge
and shall refer the consolidated actions to the Honorable David E. Peebles as Magistrate
Judge. Barker I shall be referred to and treated as the "Lead Case", and all subsequent
Orders of the Court and papers that are submitted by the parties hereto that pertain to any

12

In other words, plaintiff should combine his allegations regarding his Eighth Amendment medical
indifference claims arising at Marcy C.F. and Mohawk C.F. into one consolidated amended complaint which
should include all of the defendants he intends to name.

14

of the foregoing actions shall be filed in Barker I; and it is further
ORDERED that the Clerk of the Court place a copy of this Decision and Order in
the file of Barker II and Barker III; and it is further
ORDERED that the Clerk of the Court shall place copies of the following documents
in the file of this Lead Case: (1) the complaint and the September 23, 2015 Decision and
Order of District Judge Kahn issued in Barker II, and (2) the complaint in Barker III; and it
is further
ORDERED that in light of the consolidation of Barker I, Barker II, and Barker III, and
because plaintiff's application to proceed in forma pauperis was already granted in Barker
II, plaintiff's applications to proceed in forma pauperis in Barker I and Barker III are
DENIED as moot; and it is further
ORDERED that the Clerk of the Court shall edit the docket in the Lead Case to
include the following additional defendants: "Doctor Zakis, Marcy Correctional Facility";
"The State of New York"; and "John/Jane Doe Doctor at Walsh Clinic Otolaryngology Unit,
Mohawk Correctional Facility";13 and it is further
ORDERED that The State of New York and all claims against it are DISMISSED
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred
by the Eleventh Amendment; and it is further
ORDERED that if plaintiff wishes to proceed with this consolidated action he must
file a signed consolidated amended complaint within thirty (30) days of the filing date of
this Decision and Order as set forth above. The Clerk is directed to provide plaintiff with a
13

Because the Doctor at Walsh Clinic is not identified by name, he or she will be referred to a
John/Jane Doe defendant.

15

blank civil rights form complaint; and it is further
ORDERED that in the event plaintiff fails to submit a signed consolidated amended
complaint within thirty (30) days from the filing date of this Decision and Order, the Clerk
shall, without further order of this Court, enter judgment noting that this consolidated action
is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) due to plaintiff's failure to state a claim upon which relief can be granted and to
comply with the terms of this Decision and Order and the September 23, 2015 Decision
and Order of Senior District Judge Kahn issued in Barker II. In that event, the Clerk shall
close Barker I, Barker II, and Barker III; and it is further
ORDERED that upon the filing of plaintiff's consolidated amended complaint this
matter shall be returned to the Court for further review; and it is further
ORDERED that the Clerk of the Court shall provide plaintiff with copies of the
unpublished decisions cited herein in accordance with the Second Circuit decision in
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: November 5, 2015
Syracuse, NY

16