Barnes et al v. Smith et al

Filing 107

ORDER granting 82 Motion for Summary Judgment. The defendants' motion for summary judgment is GRANTED. (Docket # 82.) The Clerk is directed to terminate the motion and enter judgment for the defendants. This Court certifies pursuant to 28 U.S. C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S, 438, 444-45 (1962). SO ORDERED. (Signed by Judge P. Kevin Castel on 4/3/2014) (kgo)

USDSSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ARRELLO BARNES,
Plaintiff,

ELECTRONICALLY FILED
DOC#: ______~----~
DATE FILED: ~-3-FI
12 Civ. 1916 (PKC)
MEMORANDUM
AND ORDER

-against-

CARLA ROSS, SUEANN SMITH, DR. SYED
MAHMUD and ORMAN YILDIZ
Defendants.

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CASTEL, U.S.D.J.
Plaintiff Anello Barnes, who is pro se, contends that the defendants denied him
adequate mental health treatment due to his race, in violation of the Fomteenth Amendment's
guarantee of equal protection under the law. The four defendants are mental health professionals
employed by the Office of Mental Health (the "OMH") at Sullivan Correctional Facility
("Sullivan"). Discovery in this case is closed. Defendants move for summary judgment
pursuant to Rule 56, Fed. R. Civ. P., arguing that no reasonable jury could find in plaintiffs
favor.
For the reasons explained below, the defendants' motion is granted, and judgment
is entered in their favor. Defendants have come fOlward with evidence that their diagnosis of
Barnes and their decision not to designate him for certain additional mental health programs
were based on non-discriminatory considerations. In opposition, Barnes offers conclusory
assertions of misdiagnosis and discrimination that are unsupported by evidence, an affidavit that
contradicts his own sworn testimony, and affidavits from other Sullivan inmates that contain
vague or irrelevant assertions. As the non-movant, Barnes has not come fOlward with evidence

of discrimination that would permit a reasonable jury to find in his favor. The defendants'
motion is therefore granted.
LOCAL RULE 56.1 AND THE SUMMARY JUDGMENT RECORD.
Local Civil Rule 56.1 of this District requires a summary judgment movant to
submit a statement with numbered paragraphs setting forth "the material facts as to which the
moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). "Each
numbered paragraph in the statement of material facts set forth in the statement required to be
served by the moving party will be deemed to be admitted for pUlposes of the motion unless
specifically controverted by a cOiTespondingly numbered paragraph in the statement required to
be served by the opposing P31ty." Local Civil Rule 56.1(c). "Each statement by the movant or
opponent pursuant to Rule 56. 1(a) and (b), including each statement controvelting any statement
of material fact, must be followed by citation to evidence which would be admissible, set forth as
required by Fed. R. Civ. P. 56(c)." Local Civil Rule 56.1(d). "A party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible
in evidence." Rule 56(c)(2), Fed. R. Civ. P. "'Therefore, only admissible evidence need be
considered by the trial COUlt in ruling on a motion for summary judgment.'" Presbyterian
Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) (quoting Raskin v.
Wvatt Co., 125 F.3d 55, 66 (2d Cir. 1997».
The defendants have submitted the statement required by Local Rule 56.1.
(Docket # 84.) Pursuant to Local Civil Rule 56.2, the defendants also submitted the notice
required to a pro se party as to the requirements for opposing a motion for summary judgment,
and annexed the text of Rule 56 31ld Local Rule 56.1. (Docket # 83.)

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In opposition to defendants' motion, Barnes has submitted a memorandum of law
that attaches thilteen exhibits. (Docket # 94.) Barnes has not, however, submitted a statement in
opposition to the defendants' Local Rule 56.1 statement. "[W]hile a court 'is not required to
consider what the pmties fail to point out' in their Local Rule 56.1 statements, it may in its
discretion opt to 'conduct an assiduous review ofthe record' even where one of the pmties has
failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62,73 (2d Cir. 2001).
In light of Barnes's pro se status, as well as his submission of evidence in opposition to the
defendants' motion, the COUlt has reviewed and considered all materials submitted by Barnes.
Barnes's failure to submit a Local Rule 56.1 statement plays no role in the outcome of
defendants' motion, and all reasonable inferences are drawn in Barnes's favor as the party
opposing a motion for summary judgment.
Separately, Barnes has captioned his memorandum in opposition as a "CrossMotion for Summmy Judgment (Rule 56)." (Docket # 94.) Though labeled a cross-motion,
Barnes does not cUlTently seek judgment in his own favor, and his submissions are reviewed for
the purpose of opposing the defendants' motion.
BACKGROUND
In reviewing the summary judgment record, the Court views all evidence in the
light most favorable to Barnes as the non-moving party, and draws all reasonable inferences in
his favor. See generally Costello v. City ofBuriington, 632 F.3d 41, 45 (2d Cir. 2011)
A. Barnes's Mental Health History.
Barnes's claims are directed toward the allegedly deficient mental health
treatment he received while incarcerated at Sullivan. (Def. 56.1

~

1.) According to Barnes, he

has a long history of serious mental illness that required assignment to either the Behavioral

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Health Unit ("BHU") or Residential Mental Health Unit ("RMHU") at Sullivan. Section 137(6)
of the New York Correction Law governs eligibility for BHU and RMHU treatment. Barnes,
who is African American, asserts that defendants, all of whom were employed in the OMH,
refused to designate him to these programs based on discriminatory motives. As evidence of the
severity of his mental illness, Barnes has submitted evidence of his mental health that pre-dates
his incarceration with the New York State Depmtment of COll'ections ("DOCS").
Barnes asselts that he was diagnosed with mental illness at age eleven, and has
"been hearing voices" since that time. (Barnes Mem. at 3.) In a screening at the Elmhurst
Hospital Center in August 1991, when he was approximately twelve years old, Barnes was
diagnosed with "major depression & psychotic features," beliefs resembling psychosis and posttraumatic stress disorder. (Barnes Mem. Ex. A.) He exhibited "command type" auditory
hallucinations, visual hallucinations and was prone to "screaming" without provocation. (Barnes
Mem. Ex. A.)
In March 1998, the Department of Psychiatry at the Kings County Hospital

reviewed Barnes "for further observation in order to detennine his fitness to proceed to court."
(Barnes Mem. Ex. B.) A written review of Barnes by Ruth Finch, M.D., stated in part:
The defendant is charged with Murder in the second degree with
acting in conceit with a codefendant. He appeared at today's
interview as a rather anxious individual who seems to function on
a mildly mentally retarded level stammeling and stuttering. ...
This 18-year-old young man seems to function on a mild mentally
retarded level. He was stuttering and stmnmeling and very
anxious. He refused to answer any given questions.
(Barnes Mem. Ex. B.) Barnes was eventually sentenced to a tenn of incarceration of21-1I2
years to life for the crimes of murder, robbery and grand larceny of an automobile.
Steinberg-Ross Dec. Ex. A at BARNES 000247.)

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(See,~,

B. Barnes's Mental Health Diagnoses While in DOCS Custody.
Although Barnes's claims are directed toward events that occurred at Sullivan in

2011, defendants have come forward with evidence of incidents relating to Barnes's mental
health that pre-date his assignment to Sullivan.
Barnes entered state custody in 2000. (Def. 56.1 '119.) For "the great majority" of
Barnes's 11 years of incarceration, he has been categorized as OMH Level 6, indicating that he
had no service needs. (Steinberg-Ross Dec. '116.) However, on June 10, 2003, while assigued to
the Upstate Correctional Facility, he was desiguated OMH Level 4 "in relation to a strange
recurring dream." (Def. 56.1 '1110.) A staff psychologist concluded that Barnes had no treatable
disorder and that there was no need for additional OMH intervention. (Def. 56.1 '1111.)
On or about July 2, 2003, while at Upstate, Barnes tlu'eatened to commit suicide.
(Def. 56.1 "12.) An OMH social worker concluded that his tlu'eats were not genuine and that he
was attempting to manipulate his housing situation in order to avoid double bunking. (Def. 56.1

'1113.) On July 3, 2003, Barnes "recanted all threats ofself-hatm and admitted that his actions
were based on his displeasure at being transferred to a double bunk cell." (Def. 56.1 '1114.)
On August 22, 2003, Barnes made "vague" threats of self-harm, but refused OMH
treatment when informed that OMH could not facilitate his transfer. (Def. 56.1 '1115.) As
described by the defendants, Barnes's claims of depression and threats of self-hatm "were based
on his statement that he had just received word that his mother had passed away. Later,
however, it was revealed that his mother had passed away years earlier." (Def. 56.1 '1116.)
"When challenged, Plaintiff stated, 'What do I have to do to get out ofthis jail?' The
psychologist concluded that his threats of self-harm were based on his desire to acquire a
transfer." (Def. 56.1 '1116.)

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C. Bames's Conduct at Sullivan from August 2011 through October 2011.
Bames was transfelTed to Sullivan on or about October 4, 2010. (Def. 56.1

~

17.)

He was assigned to the Special Housing Unit (the "SHU") on or about August 11, 2011,
"following an incident involving a weapon, assault on an inmate, and gang-related activity."
(Def. 56.1 '\)lS.) Plaintiff asserts that he was denied Equal Protection under the law because,
once he was assigned to the SHU, the defendants refused to provide him additional mental health
treatment on the basis of his race.
All four defendants worked at Sullivan, where they were employed in the
facility's OMH. (Def. 56.1 '\)'\)2-4.) From July 1, 2001 through March 31, 2012, defendant
Sueann Smith was the OMH unit chief at Sullivan. (Def. 56.1 '\)2.) Defendants Carla SteinbergRoss and Osman Yildiz were OMH social workers at Sullivan, and defendant Dr. Syed Mahmud
was an OMH psychiatrist at Sullivan. (Def. 56.1 '\)'\)3-4.)
The OMH diagnosed Barnes with Anti-Social Personality Disorder. (Def. 56.1 '\)
56.) The defendants do not identify the precise date and under what circumstances that this
diagnosis was first made. The OMH never classified Bames with "serious mental illness," a
condition that is defined by New York COlTections Law § 137(e).! (Def. 56.1 '\)'\)55, 5S.) To
qualify as having a "serious mental illness," a patient must suffer from frequent episodes of
psychosis or depression, resulting in significant functional impairment involving acts of selfharm or other behavior that severely affects the inmate's mental or physical health. (Def. 56.1 '\)
57.)

In their submissions, the defendants frequently use the phrase usevere mental illness," when the text of section
137(e) speaks instead of programs to treat "serious mental illness." Section I 37(e)(6)(v) describes circumstances
when "a severe personality disorder" qualifies as a "serious mental illness." It appears that defendants have used the
words "severe" and "serious" interchangeably. While defendants' word choices are sometimes imprecise, they do
not affect the outcome oflhis motion.
I

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Pursuant to OMH policy, when an inmate becomes psychiatrically unstable,
unpredictable or dangerous, the inmate is transferred to a Residential Crisis Treatment Program
("RCTP") Observation Cell. (Def. 56.1 '1[5.) The inmate may be transferred out of an
Observation Cell when 1.) the underlying crisis is resolved, 2.) a psychiatric assessment suggests
that a patient is capable of receiving a lower level of care, or 3.) a patient requires a higher level
of care. (Def. 56.1 '16.) The OMH has created specialized treatment regimens - the Behavioral
Health Unit (the "BHU") and the Residential Mental Health Unit (the "RMHU") - for inmates
with serious mental illness who also are assigned to the SHU. (Def. 56.1 '1[7.)
The BHU is "a residential mental health treatment unit for inmate-patients serving
disciplinary sanctions who require intensive mental health services." (Lilly Dec. '1[5(a).)
Patients designated to BHU "have a pattem of disturbed and disruptive behavior" accompanied
by "violent or destructive impulses," and receive two hours of mental health services five days a
week. (Lilly Dec. '1[5(a).) The RMHU also treats patients with mental illness who are serving
disciplinary sanctions. (Lilly Dec. '1[5(c).) It "provides four hours daily, five days a week, of
group treatment in the least restrictive setting pennitted by the patient's mental health needs and
safety and security concems." (Lilly Dec. '1[5(c).)
On August 12,2011, Bames was admitted to the RCTP for observation, after
stating both that "he might hUlt himself' and that "he is not suicidal and does not want to kill
self." (Def. 56.1 '1['1[19-20.) After observing Bames, defendant Steinberg-Ross concluded that he
was "inconsistent ... impulsive, angry, demanding, unpredictable," with a history of "acting
out." (Def. 56.1 '1[21.) As evidence of the sevelity of his condition, Bames cites a screening
record from that same date, which stated that Bames "continues to present as reckless and
impulsive" and suffered from an "Adjustment Disorder," but also noted that Bames did not

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exhibit "signs or symptoms of psychosis .... " (Bames Mem. Ex. C.) This screening record also
described an incident in which Bames claims that, while incarcerated, he "used a piece of string
from a t-shilt, given to him by another inmate, to wrap around his neck and he states he tied it off
at the light," and "was hanging feet off the ground" when the string broke and he fell to the floor.
(Bames Mem. Ex. C.) The record notes that no witnesses or physical evidence were found as to
this incident. (Bames Mem. Ex. C.)
On August 15,2011, Bames stated to an OMH employee, "I feel good," and that
he "was never suicidal, Itold you that on Friday. You can send me back." (Def. 56.1 '1[22.)
Bames was retumed to the SHU, but placed back under suicide watch that same day after
making new threats of selfhann. (Def. 56.1 '1['1[23-24.) The next day, Bames stated, "I'm good,"
asked to be retumed to the SHU, and, when asked, would not explain why he was placed on
suicide watch. (Def. 56.1 '1[25.) Defendant Steinberg-Ross concluded that Bames was alert,
oriented, not psychotic and "exhibited agenda driven behavior" conceming disciplinary issues.
(Def. 56.1 '1[26.) On August 17 and 18, Bames maintained that he was feeling better, not
suicidal and ready to retum to the SHU, and Steinberg-Ross continued to observe that he
exhibited no psychosis or thought disorder. (Def. 56.1 '1['1[27-30.) Steinberg-Ross later
conducted a therapy session with Bames on August 24, 2011, where he reported feeling "fine,"
and displayed no psychotic or suicidal symptoms. (Def. 56.1 '1['1[31-32.)
According to Bames, by this point, the defendants were aware that he suffered
from mental illness so severe that he warranted placement in either the BHU or RMHU. (Bames
Mem. at 3.) He states that, by defendants' own accounts, he suffered from "a personality
disorder" that required special placement for mentally ill inmates within the SHU. (Bames
Mem. at 3.) He notes that defendant Mahmud gave him a thorazine prescription, and that

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because thorazine is an anti-psychotic dlUg, that prescription is evidence that defendants
diagnosed him as psychotic. (Barnes Mem. at 6 & Barnes Mem. Ex. L & M.)
Separately, and in the same time period, as evidence that defendants failed to treat
his condition with sufficient seriousness, Barnes cites to a file note dated August 25, 2011, which
was written by an official at Sullivan whose signature is unintelligible and who Barnes does not
identify. (Barnes Mem. Ex. E.) The file note described a call from an attorney at Disability
Advocates Inc. in Albany, who received a letter "that raised concerns about [Barnes] possibly
being at risk for suicide. She asks that [Barnes] be evaluated and adds that she cannot disclose
the contents of the letter." (Barnes Mem. Ex. E.) The unidentified Sullivan official then
summarized Barnes's mental health history. (Barnes Mem. Ex. E.)
On August 30, 20 II, Barnes "reported hearing voices and made general threats of
self-harm." (Def. 56.1 '1[33.) Barnes was then admitted to RCTP observation for "vague threats
of self-harm" and reporting "voices and someone being seated in his stool," all of which
occurred just prior to a scheduled disciplinary interview. (Def. 56.1 '1[34.) As described in the
defendants' Local Rule 56.1 statement: "Defendant Steinberg-Ross concluded that the timing of
this behavior strongly suggested that it was agenda-driven." (Def. 56.1 '135.) When she asked
Barnes whether he was having suicidal thoughts, he responded, "I told you yesterday I am
hearing voices, matter of fact, just send me back." (Def. 56.1 '1[36.) Steinberg-Ross believed
that Barnes was giving "evasive answers" with "provocative content, refusing to specify further"
about voices and suicidal thoughts. (Def. 56.1 '137.) On September 1, 2011, Barnes stated that
he felt fine, was not suicidal, but still wanted help as to hearing voices. (Def. 56.1 '1[38.) He
refused to respond to mental health services on September 2,7,8 or 9. (Def. 56.1 '1[39.)

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On September 14, 2011, Barnes returned to suicide watch after making
"superficial scratches behind his ears in the shower in SHU." (Def. 56.1

~

42.) He was

uncooperative with mental health staff during interactions with them on September 16, 19, 20
and 21. (Def. 56.1

~ 43.)

On September 22, he stated that he was "never suicidal" and "not

paranoid, no schizophrenia, not nervous," but that he needed medication. (Def. 56.1

~~

44-45.)

Barnes was obselved in the RCTP until October 17, 2011, when he was discharged to the SHU
to address his disciplinary status. (Def. 56.1

~~

46-47.)

On October 19, 2011, contemporaneous to the hearing process for a pending
disciplinary charge, Barnes made the apparently suicidal gesture of wrapping a sheet around his
neck. (Def 56.1

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48.) Defendant Yildiz stated that when Barnes was told that he was being

manipulative, Barnes replied, according to Yildiz's summary, "that he wants to go back to block
and complete the job he needs to do, means hang up." (Def. 56.1

~

48.) Barnes stated that if

returned to the SHU, he would be back under RCTP supervision that same day. (Def. 56.1

~

48.)

On October 20, Barnes said that he had a plan to kill cOlTections officers and
himself, and that he needed "to wait on the details and get artillery." (Def. 56.1

~

49.) He also

complained to Steinberg-Ross about the injustice of his disciplinary hearing, and Steinberg-Ross
concluded that Barnes "clearly" planned to use the RCTP "as a way to avoid proceeding with his
disciplinary situation." (Def 56.1
(Def. 56.1

~

~

50.) Barnes was returned to the SHU on October 25,2011.

52.)
From October 25,2011 through the commencement ofthis action, Barnes was

treated by Sullivan's mental health professionals. (Def. 56.1

~~

52-53.) The OMH conducted

daily rounds through the SHU, and plaintiff was offered at least two private interviews with a
social worker each month and at least one private interview with a psychiatrist. (Steinberg-Ross

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Dec. ~ 24.) During that time, he made no additional threats of harm against himself or others.
(Def. 56.1

~

52.)
Although Bames would later attempt to dramatically alter his testimony by way of

an elTata sheet and an affidavit, he testified in his deposition that the defendants never made any
statements indicating that their diagnoses of him were based on his race. (See Albanese Reply
Dec. Ex. A at 39 & 71.)
PROCEDURAL HISTORY.
Bames commenced this action on March 14, 2012. (Docket # 1.) In addition to
Bames himself, the Complaint identified ten other named plaintiffs. (Docket # 1.) The
Complaint asserted that all plaintiffs suffered from mental health problems, specifically
including suicidal tendencies. (Docket # 1.) It alleged that white inmates received "proper
treatment," while African American and Latino inmates were returned to their cells, where they
remained suicidal. (Docket # 1, at 3.) The Complaint seeks injunctive reliefto require mental
health staffers "to provide mentally ill inmates with the proper mental treatment," including daily
interviews. (Docket # 1, at 5.) It also seeks monetary damages of$5,000 for each plaintiff
named in the Complaint. (Docket # 1, at 5.) Of the eleven plaintiffs listed in the caption, only
Barnes himself signed the Complaint. (Docket # 1, at 7.)
In an Order dated June 6, 2012, Chief Judge Preska dismissed all plaintiffs except

Barnes. (Docket # 10.) One of the named plaintiffs expressly stated that he did not wish to be a
party to the action, one was deceased and the remaining eight either elected not to respond to
Court orders or attempts to contact them resulted in returned mail. (Docket # 10.)
On June 13,2012, the action was reassigned to the undersigned. (Docket # 11.)
The defendants filed a motion to dismiss the case pursuant to Rule 12(b)(6), Fed. R. Civ. P.

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(Docket # 34.) In a Memorandum and Order dated February 20,2013, this COUlt dismissed
plaintiff's deliberate medical indifference claim under the Eighth Amendment and dismissed all
claims against one defendant, but denied the defendants' motion as to Barnes's equal protection
claim. Barnes v. Ross, 926 F. Supp. 2d 499 (S.D.N.Y. 2013). It also concluded that the
Complaint did not plausibly allege claims on behalf of other similarly situated inmates, and that
to the extent the Complaint purpOlted to bring claims on behalf of such persons, those claims
were dismissed. Id. at 505.
Defendants thereafter filed their Answer. Discovery in this case is now complete.
The defendants filed their motion for summary judgment on October 11, 2013. (Docket # 82.)
STANDARD ON A MOTION FOR SUMMARY JUDGMENT.
Summary judgment "shall" be granted "ifthe movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Rule 56(a), Fed. R. Civ. P. It is the initial burden of the movant to come forward with
evidence on each material element of its claim or defense, sufficient to demonstrate that it is
entitled to relief as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,
244 (2d Cir. 2004). In raising a triable issue of fact, the non-movant calTies only "a limited
burden of production," but nevettheless "must 'demonstrate more than some metaphysical doubt
as to the material facts,' and come forward with 'specific facts showing that there is a genuine
issue for trial.'" Powell v. Nat'l Bd. ofMed. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting
Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993».
A fact is material if it "might affect the outcome of the suit under the governing
law," meaning that "the evidence is such that a reasonable jury could return a verdict for the
nonmoving patty." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The Court must

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view the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor, granting summary judgment only when no reasonable trier of fact could
find in favor ofthe nonmoving party. Costello, 632 F.3d at 45; accord Matsushita Elec. Indus.
Co. v. Zenith Radio Com., 475 U.S. 574, 585-88 (1986). In reviewing a motion for
summaty judgment, the court may scrutinize the record, and grant or deny summary judgment as
the record warrants. Rule 56(c)(3), Fed. R. Civ. P. In the absence of any disputed material
fact, summary judgment is appropriate. Rule 56(a), Fed. R. Civ. P.
"A patty opposing summary judgment does not show the existence of a genuine
issue of fact to be tried merely by making assertions that are conclusory or based on
speculation." Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290,310 (2d Cir.
2008) (citations omitted); see also Anderson, 477 U.S. at 249-50 (summary judgment "may be
granted" if the opposing evidence is "merely colorable" or "not significantly probative")
(citations omitted). An opposing party's facts "must be material and of a substantial nature, not
fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor
merely suspicions." Contemporary Mission. Inc. v. U.S. Postal Serv., 648 F.2d 97,107 n.14 (2d
Cir. 1981) (internal quotation marks and citation omitted).
A pro se party's submissions must be read liberally. This is especially impottant
in the summary judgment context, where claims are subject to final adjudication. See Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). "However, at some point in a lawsuit even pro
se litigants must make clear to the court their claims and the facts that they believe entitle them
to specific relief. The summary judgment stage is an appropriate juncture to identify the real
issues in a case," even where a patty proceeds pro se. Salahuddin v. Coughlin, 781 F.2d 24,29
(2d Cir. 1986).

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DISCUSSION
I.

Defendants Have Come Forward With Evidence that Their Assessments
of Bames Were Based Solely on Non-Racial Considerations, and
Defendant Has Submitted No Relevant Evidence in Opposition.
A. Defendants Have Come Forward with Evidence that Their Diagnosis
of Plaintiff Was Not Racially Motivated.

"To prove a violation ofthe Equal Protection Clause ... a plaintiff must
demonstrate that he was treated differently than others similarly situated as a result of intentional
or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005); see also
Brown v. City of Syracuse, 673 F.3d 141, 151 (2d Cir. 2012) ("The Equal Protection Clause of
the Fourteenth Amendment is essentially a direction that all persons similarly situated should be
treated alike.") (quotation marks omitted). For prisoners asserting an Equal Protection claim, a
plaintiff "also must show that the disparity in treatment cannot survive the appropriate level of
scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not
'reasonably related to [any] legitimate penological interests.'" Phillips, 408 F.3d at 129 (quoting
Shaw v. Murphy, 532 U.S. 223, 225 (2001)). "The govemment can treat persons differently if
they are not 'similarly situated. '" Yuen Jin v. Mukasey, 528 F.3d 143, 158 (2d Cir. 2008)
(alteration and quotation marks omitted).
In suppOli of their motion for summary judgment, the defendants have come
forward with evidence that they did not assign Barnes to treatment tlll"ough the BHU or the
RMHU because they concluded that he did not suffer from a "serious mental illness," as that
term is defined under New York Correction Law § 13 7(6). Defendants have offered significant
evidence that, while Bames suffered from some form of mental illness, the defendants all
concluded that he did not have a "serious mental illness" under section 137, and that assignment
to a BHU or RMHU was therefore not necessary. Instead, defendants repeatedly concluded that
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Bames sought a change of his mental health classification in order to manipulate his pending
disciplinary proceedings. In opposition, Bames has offered no relevant or admissible evidence
to support his argument that the defendants had a discriminatory motivation.
Designation to a BHU or RMHU is govemed by statute. In 2008, the New York
legislature amended the provision of New York Conection Law § 137 that deals with the mental
health problems of inmates in placed in segregated confinement. Section 137 states that DOCS,
"in consultation with mental health clinicians, shall divert or remove inmates with serious mental
illness, as defined in paragraph (e) of this subdivision, from segregated confinement, where such
confmement could potentially be for a period in excess of thirty days, to a residential mental
health treatment unit." N.Y. Conection L. § 137(6)(d)(1). Subparagraph (e), in tum, provides in
part that an inmate has "serious mental illness" if:
(i)

He or she has a CUlTent diagnosis of ...
(A) schizophrenia (all sub-types),
(B) delusional disorder,
(C) schizophremifonn disorder,
(D) schizoaffective disorder,
(E) brief psychotic disorder,
(F) substance-induced psychotic disorder
intoxication and withdrawal),
(G) psychotic disorder not othelwise specified,
(H) major depressive disorders, or
(I) bipolar disorder I and II [or]

(v)

(excluding

he or she has been diagnosed with a severe personality disorder
that is manifested by frequent episodes of psychosis or depression,
and results in a significant functional impainnent involving acts of
self-hann or other behavior that have a seriously adverse effect on
life or on mental or physical health ....

N.Y. COlTection L. § 137(6)(e). "The core of the new approach is the creation of residential
mental health treatment units designed to provide clinically appropriate treatment for inmates."
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Bonacquist, Practice Commentary, McKinney's Consolidated Laws ofN.Y., Book lOB,
Corrections Law, § 137 (2014 pamphlet). "An inmate determined to be suffeling from a serious
mental illness must be removed to a residential health treatment unit," unless removal would be
"a substantial risk" to the safety of staff or the imnate. Id.
As this COUlt has already recounted in extensive detail, the defendants, after
numerous interactions with Barnes, concluded that Barnes did not suffer from a "serious mental
illness" that would qualify him for assigmnent to the BHU or RMHU. Defendant Mahmud, a
psychiatrist employed at Sullivan, states that he diagnosed Barnes with "Anti-Social Personality
Disorder," which does not qualify as a "serious mental illness" under section 137 unless it is
"manifested by frequent episodes of psychosis or depression .... " (Mahmud Dec. ~ 7.) As
stated in his declaration:
I evaluated Plaintiff throughout the period in which he was in the
Residential Crisis Treatment Program, from approximately August
11, 2011 through October 25,2011, and I concluded that Plaintiff
was not severely mentally ill because he did not meet these
requirements. Importantly, I observed that (i) Plaintiffs [sic1 did
not have a significant history of psychosis or depression; (ii)
Plaintiff repeatedly stated to me that he was not suicidal and would
never harm himself; and (iii) Plaintiffs acts of self-harm were not
frequent or severe enough to meet the standard for a severe mental
illness.
(Mahmud Dec.

~

8.) Mahmud states that Barnes's threats of self-harm coincided with his

scheduled disciplinary proceedings, "which strongly suggested to me that [he1had an agenda to
falsify or embellish mental health symptoms to avoid his disciplinary hearing or his sentence."
(Mahmud Dec.

~

9.)

The other individual defendants similarly concluded that Barnes did not suffer
from "serious mental illness" as defined by section 137, and believed that Barnes's statements
and actions arose in reaction to his disciplinary proceedings. Their diagnoses of Barnes are
- 16 -

discussed extensively in the Background section of this Memorandum and Order. As noted,
pursuant to the text of section 137(6)(e)(v), a "severe personality disorder" does not qualify as a
"serious mental illness" requiring treatment in a BHU or RMHU unless it "is manifested by
frequent episodes of psychosis or depression, and results in a significant functional impairment
involving acts of self-harm or other behavior that have a seriously adverse effect on life or on
mental or physical health." Steinberg-Ross specifically notes that Barnes's claims to be suicidal
were often vague, that he fi'equentIy recanted or qualified them, that they coincided with
scheduled disciplinary hearings, and that his purported suicide attempts were superficial in
nature. (Steinberg-Ross Dec. ~~ 8-22.) In their declarations, the individual defendants all state
that they did not use race as a factor when evaluating the mental-health status of Barnes or any
other inmate. (Steinberg-Ross Dec. '1'13-5; Smith Dec. ~~ 4-6; Yildiz Dec. ~~ 4-6; Mahmud Dec.
~~

3-5.)

The Court therefore concludes that defendants have come forward with evidence
that their diagnoses of the plaintiff, and whether he qualified for BHU or RMHU assignment
under section I3 7, was based on non-discriminatory factors.
B. In Opposition, Barnes Has Not Come Forward with Evidence that
Would Permit a Reasonably Jury to Find in His Favor.

1. Barnes Has Not Submitted Evidence that He Was Misdiagnosed.
In opposition to defendants' motion, Barnes has come forward with no evidence
that ii-om which a reasonable jury could infer a discriminatory motivation by the defendants.
Instead, Barnes primarily challenges the accuracy ofthe defendants' assessments of his mental
health. He states that his "diagnose [sic1does fall in the category of being placed in a MHU
Program for inmates who are SHU." (Barnes Mem. at 3.)

- 17-

Barnes's evidence does not support his argument that he was misdiaguosed.
Barnes states in his memorandum of law that, at one time, "defendants were going to place
plaintiff in a SHU, MHU program, after his screening with the BHU Director." (Barnes Mem. at
3.) Barnes cites to Exhibit E of his declaration as support for the proposition that the defendants
once believed that he should have been placed in an RMHU. (Barnes Mem. at 3.) That exhibit,
however, summarized the previously discussed incident when an outside attorney telephoned
Sullivan to state that she received a letter concerning Barnes's mental health. (Barnes Mem. Ex.
E.) The memo summarizing that call recounts Barnes's mental health histOly, noting, among
other thing, that Barnes has denied suicidal or homicidal thoughts; that he was coherent; that his
speech was clear; that his thoughts were organized and logical; that there were no "acute warning
sigus of imminent risk of suicide"; that he was willing to discuss medication options; that he was
"calm"; and that he "denies hearing voices at this time." (Barnes Mem. Ex. E.) The exhibit does
not support Barnes's contention that, at one point, defendants desiguated him for RMHU
assigurnent. Similarly, Exhibit C, which Barnes also cites, stated, among other things, that as of
July 23, 2012, Barnes "did not present a severe mood or thought disorder." (Barnes Mem. Ex.
C.) Exhibit D, which Barnes also cites, merely contains the text of New York Conection Law §
137(6)(e).
None ofthe evidence that Barnes cites supports his argument that he suffered
from a serious mental illness under section 137, let alone that the defendants' diaguosis of him
was discriminatory.

- 18 -

2. Bames's Affidavits Do Not Defeat Defendants' Motion.
a. Without Offering Any Explanation, Bames's Affidavit and
Errata Sheet Directly Contradict His Deposition Testimony.
Bames has submitted swom affidavits from himself and others, which assert that
defendants practiced discrimination when assigning inmates to BHU and RMHU placement.
Bames states in one affidavit that defendants Ross and Smith "told me, Black People are lying
and Manipulator, who tries to Manipulate D.O.C.C.S. to get out of box time." (Bames Mem. Ex.
H.)
Bames's affidavit at Exhibit H directly contradicts testimony that he gave in his
deposition of May 23,2013. (Albanese Reply Dec. Ex. A.) First, Bames testified that no
doctors made any discriminatory statements concerning their treatment of inmates:
Q: Besides your having observed that white inmates were treated
one way and black inmates were treated another way, did any of
the doctors ever say anything to you?
Bames: If they would have said it, then it would have been in the
complaint. I would have put it in the complaint. No, they never
verbalized it and said, "You're black and you don't need nothing."
No, they never did that. The actions spoke louder than words.
(Albanese Reply Dec. Ex. A at 39.) Later in the deposition, defendants' counsel phrased this
question more broadly, and asked whether Bames had heard any defendant utter a remark based
on race:
Q: Have you ever at any time heard any of the defendants make a
comment about race?
Bames: I already told you that. No. Everything I put in my
complaint is what I know. To say I heard them and they told me,
no, they never told me anything. No, sir.
(Albanese Reply Dec. Ex. A at 71.)

- 19 -

After expressly denying that he heard any defendant utter a discriminatory
comment, three months later, Barnes proposed a revision of this testimony by way of an errata
sheet, which he attached to a cover letter dated August 15, 2013. (Albanese Reply Dec. Ex. B.)
Barnes stated that his answer to the first -quoted question, in which he denied that any doctors
made discriminatory comments, should be revised to state, "They said things, but I didn't put it
in the complaint. They did verbalized [sic1it by saying, 'You're black and you don't need
nothing .... '" (Albanese Reply Dec. Ex. B.) Barnes submitted this elTata sheet shortly after the
defendants sent the Court a pre-motion letter, dated August 6, 2013, which noted that in his
deposition, Barnes admitted that he had no direct evidence that treatment decisions were based
on race. (Albanese Reply Ex. C.)
Barnes offered no explanation for the proposed change. Rule 30(e)(I)(B), Fed. R.
Civ. P., permits a patty or a deponent to make "changes in fOlm or substmce" to a deposition
transcript md "to sign a statement listing the changes and the reasons for making them." The
proposed changes may be made within 30 days of the deponent or patty being informed that a
transcript is available. Rule 30(e)(l), Fed. R. Civ. p.2 Both the original testimony and the elTata
become patt ofthe record, but at the summary judgment stage, a district comt is "on firm
ground" if it does not credit an en'ata sheet that reflects a party's attempt to "retrieve the situation
by scratching out and recanting his original testimony .... " Podell v. Citicol]J Diners Club, Iuc.,
112 F.3d 98,103 (2d Cir. 1997). A district court should weigh the "totality of the evidence" in
considering whether the alteration to prior testimony creates an issue that must be determined by
a jury. Id. (emphasis in original); see also Margo v. Weiss, 213 F.3d 55, 60-61 (2d Cir. 2000)

'While Bames's deposition occUlTed on May 23,2013 and the errata sheet was attached to a letter dated August 15,
2013, defendants confirm that Bames "complied with the timing requirements ofFRCP 30(e) in this case." (Reply
at 7 n.3.)

- 20-

("plaintiffs cannot defeat a motion for summary judgment ... by submitting errata sheets long
after their depositions were taken .... ").
Similarly, a '''palty may not, in order to defeat a summary judgment motion,
create a material issue of fact by submitting an affidavit disputing his own prior sworn
testimony.'" AEP Energy Selvs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699,736 (2d
Cir. 2010) (quoting Trans-Orient Marine COl]). v. Star Trading & Marine, Inc., 925 F.2d 566,
572 (2d Cir. 1991»; accord Margo, 213 F.3d at 60-61 ("plaintiffs cannot defeat a motion for
summary judgment by responding with affidavits recanting that earlier testimony. ").
Barnes's errata sheet, while timely, was offered only after the defendants
addressed his deposition testimony in their pre-motion letter. Barnes has supplied no explanation
for the revision, and the self-selving revision flatly contradicts his deposition testimony. Given
the totality of the evidence, a reasonable jury could not conclude that Barnes's errata sheet raises
an inference of discriminatory intent by any defendant. See generally Podell, 112 F.3d at 103.
As with the content of Barnes's en'ata sheet, the affidavit he submits at Exhibit H
contradicts his previous, sworn testimony. He now claims in Exhibit H that Ross and Smith
"told me, Black People are lying and Manipulator, who tries to Manipulate D.O.C.C.S. to get out
of box time." But in his deposition, Barnes attributed no such remarks to Ross or Smith. When
asked whether any defendant made a comment about race, he made this definitive statement: "I
already told you that. No. Everything I put in my complaint is what I know. To say I heard
them and they told me, no, they never told me anything. No, sir." (Albanese Reply Dec. Ex. A.
at 71.) Because Barnes's affidavit attempts to create a material issue of fact by disputing his own
prior testimony, it does not defeat defendants' summary judgment motion. AEP Energy, 727
F.3d at 736; Margo, 213 F.3d at 60.

- 21 -

b. Barnes's Affidavits Recounting the Comments of Two NonParties Are Inadmissible Hearsay and Do Not Defeat
Defendants' Motion.
Barnes has submitted two additional affidavits, in which he describes remarks that
were purportedly made by fellow inmates. According to Barnes, two inmates, both of whom are
white, heard defendants express to discriminatory animus toward African-American inmates and
favoritism toward white inmates. In one affidavit, Barnes states that a white inmate named Billy
Potts told him that defendant Ross said to Potts: "I don't believe you're trying to get out of your
SHU time, like the black inmates does. They think they could manipulate by playing crazy.
After observing you, I can tell you agaited [sic].,,3 (Barnes Mem. Ex. 1.) Barnes also describes a
conversation that he had with a white inmate named Johnny Phiffer. (Barnes Mem. Ex. l)
Barnes summarizes their conversation as follows: "[Phiffer] told me, he'll be going to Marcy
Hospital to get treatment, cause the defendants, Ms. Ross, Ms. Smith, Mr. Yildiz and Dr.
Mahmud, all believed he needed extra treatment cause he's caucasian and doesn't have to lie to
get out of his SHU time." (Barnes Mem. Ex. l)
"An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated." Rule 56(c)(4). Barnes's affidavits
recounting what Potts and Phiffer told him that others had told them are pure hearsay. They are
offered for the truth of their contents, not the fact that Potts or Phiffer allegedly uttered certain
comments. See Rule 803(3), Fed. R. Evid. The statements of Potts and Phiffer are out-of-comt

3 Potts was originally listed as a plaintiff in the caption ofBames's complaint. (Docket # 1.) The Complaint
attached a sworn affidavit from Potts, in which he asserted that defendant Ross told him that he had the coping skills
to deal with his mental illness and offered him monthly therapy sessions. (Docket # 1 at 8.) The affidavit did not
mention any allegedly discriminatory conduct. While this case was assigned to Chief Judge Preska, Potts stated in a
letter that he did not wish to be a plaintiff in this action. (Docket # 10.)

- 22-

statements offered for the tmth oftheir contents - in this case, that defendants expressed special
sympathy toward white imnates and disbelieved black imnates. They are hearsay.
A "hearsay assertion that would not be admissible iftestified to at trial is not
competent materialfor a Rule 56 affidavit." Howley v. Town of Stratford, 217 F.3d 141, 155
(2d Cir. 2000); Samo v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999)
(disregarding portion of plaintiffs affidavit in opposition to summary judgment because his
"statement as to what he 'was told' was hearsay that would not be admissible at a trial."). The
third-hand statements recounted in Exhibit I and Exhibit J are inadmissible hearsay, and they
may not properly be considered in opposition to the defendants' motion.
3. Other Affidavits Submitted by Barnes Do Not Defeat Defendants'
Summaty Judgment Motion.
In addition to his own three affidavits, Barnes has submitted affidavits from four
non-parties, all of whom purpolt to asselt that white imnates received preferential mental health
treatment. None ofthese affidavits sets forth detail as to the purportedly discriminatory
treatment given to Sullivan's mentally ill imnates who were assigned to the SHU.
Thomas Trathen (Exhibit K). An affidavit of Thomas Trathen, Jf. identifies
Trathen as a white imnate "who has expelienced that the incarcerated caucasians receive
favorable treatment and care by OMH while the incarcerated african americans are deterred from
receiving adequate treatment and care." (Barnes Mem. Ex. K) Trathen states that "caucasians
receive easier and faster treatment and care within OMH programs than african americans."
(Barnes Mem. Ex. K) No further'details are provided about the nature ofthis purpOltedly
differential treatment. Trathen does not state that he has been housed at Sullivan or assigned to
the SHU, and his affidavit makes no mention any defendant to this action. His affidavit does not
defeat defendants' motion for summary judgment.
- 23 -

Pitu Umoja (Exhibit K-B). The affidavit ofPitu Umoja, who identifies himself as
black, states that when he palticipated in a hunger strike at Sullivan, he passed out and was force
fed. (Bames Mem. Ex. K-B.) Umoja also signed a do-not-resuscitate form, which officials did
not honor. (Bames Mem. Ex. K-B.) He states that "[i]nstead of being treated for my mental
health ill-ness on seeking to die," he was transferred to a different correctional facility, "while
other inmates who displayed equal mental illness if not less were transferred to Marcy Mental
Hospital. These inmates were white though." (Barnes Mem. Ex. K-B.) The affidavit does not
specify which mental illness Umoj a suffered, and does not identify any of the defendants as
having been involved in his u·eatment. The affidavit does not set forth any infOimation as to the
status ofthe white inmates who were purportedly transpOited to Marcy Mental Hospital, except
the conclusory observation that their mental illness was less severe than Umoja's own
unspecified condition.
Christopher Dixon (Exhibit K-C). The affidavit of Christopher Dixon states that
after he suffered from depression and attempted suicide by hanging himself from a toilet using a
slip-knotted T-shilt, defendant Smith accused him of "attempting to 'manipulate the system.'"
(Bames Mem. Ex. K-C.) He adds that he "personally was lied to by Ms. Smith on a number of
occasions," but does not identify the nature of the purported lies. (Bames Mem. Ex. K-C.)
Dixon states that he observed that black inmates were "treated with little to no care while the
caucasian inmates were regularly shipped to the psychiatric center in marcy." (Barnes Mem. Ex.
K-C.) Dixon's affidavit offers only a conclusory, generalized impression about the differential
treatment between inmates. It sets forth no facts that explain whether the inmates who, he
claims, received differential treatment were similarly situated. Smith is the only defendant who
Dixon discusses, and the conduct that he attributes to her is not alleged to be discriminatory;

- 24-

rather, Smith accused Dixon of manipulation, and Dixon accuses Smith oflying. (Barnes Mem.
Ex. K-C.)
Ronald Brooks (Exhibit K-D). In an affidavit, Ronald Brooks states that after he
refused to eat for "31-days or so," defendant Smith refused to treat him and said he "was playing
some type of game .... " (Barnes Mem. Ex. K-D.) Brooks state that he was then transfened and
received "the proper treatment that I need. The white inmates receive better treatment than
Afi'ican Americans, such as myself." (Barnes Mem. Ex. K-D.) As with Dixon, Smith is the only
defendant that Brooks identifies, and he does not attribute discriminatory conduct to her. His
assertion that white inmates received differential treatment is conclusOlY, and he sets forth no
facts that support a conclusion that similarly situated inmates received differential treatment, let
alone treatment that was based on race.
No reasonable jury considering all ofthe evidence proffered, including the
Trathen, Umoja, Dixon and Brooks affidavits, could find in favor of Barnes.
II.

While Defendants Have Come Forward With Some Evidence that the
Mental Health Designation of Inmates Is Generally Consistent with the
DOCS Population as a Whole, the COUlt Affords Minimal Weight to This
Evidence.

Separately, the defendants have come fOlward with some evidence that the racial
demographics of inmates assigned to Sullivan's BHU and RMHU were, broadly speaking,
consistent with the racial demographics of all male inmates housed by DOCS.
The defendants have submitted a declaration from non-party Stephanie Lilly, who
is the Acting Director of Evaluation and Research for the OMH. (Lilly Dec.

'If 1.)

Lilly's

declaration attaches charts that were generated fi'om OMH records at Sullivan's RCTP from July
1,2011 through March 31, 2012; the charts summarize the demographics of inmates placed in
the Sullivan RCTP. (LiIIyDec. Ex. B & C.) Exhibit C reflects that fi'om July 1, 2011 through
- 25 -

March 31, 2012, out of the 208 inmates treated in the Sullivan RCTP, 100 (48%) were African
American, 62 (30%) were Hispanic and 42 (20%) were white. (Lilly Dec.

~

7.) During the same

time period, 39 inmates were refened to treatment through the BHU, the RMHU or the Central
New York Psychiatric Center, the latter of which provides in-patient treatment to inmates who
present a danger to themselves or others. (Lilly Dec.

~~

5(g), 7.) Of those 39 inmates, 16 (41 %)

were Ali-ican American, 10 (25%) were Hispanic and 12 (31%) were white. (Lilly Dec.

~

7.) As

of January 1, 2012, the overall inmate population incarcerated by DOCS was 49.9% African
American, 24.8% Hispanic and 22.6% white. (Def. Mem. at 18.) As summarized in defendants'
memorandum oflaw, "the proportion of inmates by race in each group, despite the small sample
size, is within 10% of the overall statistics for male inmates as of January 1, 2012." (Def. Mem.
at 19.)
According to Barnes, these records were "falsified," and discovery established
that "plaintiffs were not in the RCTP on those dates." (Barnes Mem. at 3.) Barnes cites to
Sullivan RCTP records as evidence in support of his assertion, but, if anything, those records
appear to confirm defendants' assertions concerning the racial demographics of the RCTP, the
BHU and RMHU. (Barnes Mem. Exs. F, G)
Nevettheless, the Comt, on this motion, affords no weight to the defendants'
evidence ofthe racial composition of those inmates assigned to Sullivan's BHU and RMHU.
First, the defendants compare the racial composition of Sullivan's mental health programs to the
DOCS male inmate population as a whole, and not to the racial composition of inmates housed at
Sullivan or to those designated to the SHU at Sullivan. Barnes's claim is, after all, directed
toward practices within Sullivan's SHU. A more useful comparison might have looked to the
overall racial composition of Sullivan's SHU, then compared it to the racial composition of those

- 26-

inmates in Sullivan's SHU who were treated in the RCTP, the BHU and the RMHU. As it
stands, the wider comparison between the mental health assignments within Sullivan's SHU and
the overall DOCS population is of minimal relevance.
Second, the Court is not in a position to weigh the significance of the variation
between the overall DOCS population and the inmates who received mental health assistance in
the Sullivan SHU. Defendants emphasize that "the proportion of inmates in race by each group,
despite the small sample size, is within 10% of the overall statistics for male inmates as of
January 1,2012." (Def. Mem. at 19.) Without more, the Court cannot at the summary judgment
stage determine whether it is significant that, among Sullivan's inmates in the SHU who were
referred to the BHU or the RMHU, 41 % were Afiican American, when 49.9% ofthe male prison
population overseen by DOCS was African American during the same time period. (Lilly Dec.

~

7 & Def. Mem. at 18.) There is no basis from which to conclude that this 8.9% difference
SUppotts defendants' position.
Therefore, in dealing with this motion, the Court affords no weight to the
defendants' demographic evidence. Nevertheless, the defendants have come forward with other
evidence that their assessments of Barnes were not motivated by race, and Barnes has not come
forward with admissible evidence to the contrary.
III.

Defendants Are Entitled to Qualified Immunity.

Qualified immunity applies in "circumstances where an official's conduct 'does
not violate clearly established statutoty or constitutional rights of which a reasonable person
would have known,' and applies 'regardless of whether the government official's error is a
mistake oflaw, a mistake offact, or a mistake based on mixed questions oflaw and fact. '"
Spavone v. N.Y. State Dep't of Con'. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (quoting Pearson

- 27-

v. Callahan, 555 U.S. 223, 231 (2009». The purpose of qualified immunity is "to serve the
public good by shielding public officials fi'om potentially disabling threats of liability." rd. at
134.
Based on this record, the individual defendants all are entitled to qualified
immunity. No reasonable jury could conclude that Barnes had a clearly established statutory or
constitutional right to be assigned to the BHU or RMHU based on the defendants' diagnosis of a
personality disorder that did not include psychosis or depression. See generally id. at 134-35.
The record would not SUppOlt the requisite factual finding that defendants were objectively
unreasonable to assign Barnes to an RCTP observation cell, as opposed to providing him the
additional treatment that he claims was necessary.
Qualified immunity provides a separate and independent basis to grant the
defendants' motion for summary judgment.
CONCLUSION
The defendants' motion for summary judgment is GRANTED. (Docket # 82.)
The Clerk is directed to terminate the motion and enter judgment for the defendants.
This COUlt certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith, and in forma pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369 U.S, 438, 444-45 (1962).
SO ORDERED.

Unite States District Judge
Dated: New York, New York
April 3, 2014

- 28-