Bethel v. Wolff et al

Filing 62

OPINION & ORDER re: 54 FIRST MOTION for Summary Judgment , filed by Wahlquist, V. Bhopale, Frederick Bernstein, Carey, Enrique Pagan, William A. Lee, Charles Wolff, Sid Johnson. Because Plaintiff has adduced no evidence in supp ort of his allegations, the Court declines to address Defendants' remaining arguments regarding the personal involvement of various Defendants and qualified immunity. For the foregoing reasons, the Motion is granted. The Clerk of Court is respectfully requested to terminate the pending Motion, (Dkt. No. 54), enter judgment for Defendants, and close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 2/10/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

RONALD BETHEL,
Plaintiff,
v.
R.N. CHARLES WOLFF; SERGEANT
WAHLQUIST, Sgt. John Doe; DR. V.
BHOPALE; SID JOHNSON, Food Services
Administrator; SUPERINTENDENT
WILLIAM A. LEE; CAPTAIN CAREY;
ENRIQUE PAGAN, Physicians Assistant;
DR. FREDERICK BERNSTEIN, Health
Service Director;

No. 14-CV-6519 (KMK)
OPINION & ORDER

Defendants.

Appearances:
Ronald Bethel
Otisville, NY
Pro Se Plaintiff
John Eric Knudsen, Esq.
Neil Shevlin, Esq.
New York State Department of Law Litigation
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Ronald Bethel (“Plaintiff”), an incarcerated inmate proceeding pro se, filed the
instant Complaint and Amended Complaint against Defendants R.N. Charles Wolff, Sergeant
Wahlquist, Dr. V. Bhopale, Sid Johnston, Superintendent William Lee, Captain Carey, Enrique
Pagan, and Dr. Frederick Bernstein (collectively, “Defendants”), pursuant to 42 U.S.C. § 1983,
alleging that Defendants violated his Eighth Amendment constitutional rights by failing to

protect him from an assault by a fellow inmate and by failing to provide him adequate medical
care. (See Dkt. No. 9.) Before the Court is Defendants’ Motion for Summary Judgment. For the
reasons to follow, the Court grants the Motion.
I. Background
A. Factual Background
The following facts are taken from Defendants’ Statement Pursuant to Rule 56.1 and the
supporting documents accompanying the Motion. (See Defs.’ Statement Pursuant to Rule 56.1
(“Defs.’ 56.1”) (Dkt. No. 55).) Although Plaintiff has not offered a statement of undisputed facts
pursuant to Local Rule 56.1, Plaintiff’s failure to file such a statement does not “absolve[] the
district court of even checking whether the citation [in the Local Rule 56.1 Statement] supports
the assertion.” Giannnullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003).
Accordingly, the Court will examine the documents offered by Defendants in support of their
statement pursuant to Local Rule 56.1
On September 26, 2013, Plaintiff was incarcerated at Green Haven Correctional Facility
and was assigned to work in the kitchen area of the mess hall. (See Am. Compl. ¶ II(D), ¶ 1
(Dkt. No. 9); see also Defs.’ 56.1 ¶ 10.) Around 7:55 AM, Plaintiff was attacked by another
inmate who threw hot water at Plaintiff and cut his arm with a metal can lid. (See Decl. of Neil
Shevlin (“Shevlin Decl.”) Ex. D (Dkt. No. 57); see also Defs.’ 56.1 ¶ 10.) Defendant Sergeant
Wahlquist, who was assigned to supervise the “chow run,” heard Plaintiff scream and looked
over to investigate. (See Decl. of Robert Wahlquist (“Wahlquist Decl.”) ¶ 4; see also Defs.’ 56.1
¶ 11.)1 Wahlquist observed Plaintiff bent over with his hands covering his face and head, and

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The declarations of Defendants Dr. Frederick Bernstein, Charles Wolff, Dr. Vishmas
Bhopale, Enrique Pagan, Superintendent William Lee, Sidney Johnston, Robert Wahlquist, and
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also observed another inmate, Simard, holding a folded metal can lid and moving in a slashing
motion toward Plaintiff. (See Wahlquist Decl. ¶ 4; see also Defs.’ 56.1 ¶ 11.) Wahlquist ran
toward Simard and yelled at him to drop the weapon, which he did. (See Wahlquist Decl. ¶ 5;
see also Defs.’ 56.1 ¶ 12.) Simard laid on the floor, face first, and Wahlquist applied mechanical
restraints to Simard’s hands. (See Wahlquist Decl. ¶ 5; see also Defs.’ 56.1 ¶ 12.) Wahlquist
summoned the medical staff and instructed Officer Neithardt to escort Plaintiff to the clinic for
treatment. (See Wahlquist Decl. ¶ 5; see also Defs.’ 56.1 ¶ 13.) Wahlquist took Simard to the
Special Housing Unit. (See Wahlquist Decl. ¶ 5; see also Defs.’ 56.1 ¶ 13.)
Plaintiff testified that prior to the incident on September 26, 2013, he did not know
Simard personally and had never spoken to him. (See Shevlin Decl. Ex. F (“Pl.’s Dep. Tr.”), at
94; see also Defs.’ 56.1 ¶ 14.) Plaintiff stated that he had never had a “situation” with Simard
before, and he did not really understand what had happened or why Simard had attacked him.
(See Pl.’s Dep. Tr. 14–15; see also Defs.’ 56.1 ¶ 14.) None of Defendants responsible for
supervising the mess hall was aware of any animosity between Plaintiff and Simard or of any
danger to Plaintiff from Simard. (See Lee Decl. ¶ 4; Johnston Decl. ¶ 4; Wahlquist Decl. ¶ 7;
Carey Decl. ¶ 5; see also Defs.’ 56.1 ¶¶ 15–18.)
Inmates are assigned to work in the mess hall on a case-by-case basis by a Program
Committee. (See Lee Decl. ¶ 6; Johnston Decl. ¶ 6; see also Defs.’ 56.1 ¶ 19.) Neither Lee nor
Johnston was directly responsible for assigning inmates to work in the mess hall. (See Lee Decl.
¶ 6; Johnston Decl. ¶ 6; see also Defs.’ 56.1 ¶¶ 20–21.) The only firm criteria for working in the
mess hall is passing a medical evaluation. (See Lee Decl. ¶ 6; Johnston Decl. ¶ 6.)

Daniel Carey, as well as the declaration of non-defendant Dr. Richard Wurzel, are attached to the
declaration of Neil Shevlin.
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A civilian staff supervises the production and service of food. (See Johnston Decl. ¶ 8;
see also Defs.’ 56.1 ¶ 23.) The security staff, which consists of correction officers and their
supervisors, monitors the mess hall, the use of tools, and the disposal of sanitation. (See
Johnston Decl. ¶ 8; see also Defs.’ 56.1 ¶ 24.) Correction officers responsible for supervising
the mess hall are normally situated in the tool room and out on the floor during meal service, and
make rounds throughout the day. (See Johnston Decl. ¶¶ 7–8; see also Defs.’ 56.1 ¶¶ 26–27.)
On the day Plaintiff was attacked, there were several correction officers monitoring the mess hall
and kitchen area. (See Wahlquist Decl. ¶ 4; see also Defs.’ 56.1 ¶ 28.)
After Wahlquist summoned the medical staff, Defendant Charles Wolff, a nurse, and
Nurse Colonie responded and arrived at the mess hall to find Plaintiff sitting with security. (See
Wolff Decl. ¶ 3; see also Defs.’ 56.1 ¶ 30.) Plaintiff appeared to be alert and oriented. (See
Wolff Decl. ¶ 3; Shevlin Decl. Ex. A (“Medical Records”), at 0080; see also Defs.’ 56.1 ¶ 30.)
Wolff and Colonie escorted Plaintiff to the medical clinic at Green Haven, where they noted that
Plaintiff had first degree burns on the left side of his face, both of his eyelids, his forehead, and
the left side of his neck and shoulder. (See Wolff Decl. ¶ 4; Pagan Decl. ¶ 6; Medical Records at
0080, 0082, 0110; Shevlin Decl. Ex. B; see also Defs.’ 56.1 ¶ 31.) Plaintiff also suffered a
superficial second degree burn on his right forearm that was approximately the size of a quarter;
he also had a 3/4 inch superficial laceration on the same forearm. (See Wolff Decl. ¶ 4; Pagan
Decl. ¶ 6; Medical Records at 0080, 0082, 0110; Shevlin Decl. Ex B; see also Defs.’ 56.1 ¶ 32.)
Wolff and Colonie applied cold compresses to the burns and notified Defendant Enrique Pagan,
a physician’s assistant who was supervising the clinic that morning, requesting that Pagan assess
Plaintiff’s condition and prescribe a course of treatment. (See Wolff Decl. ¶ 5; Pagan Decl. ¶ 2;
Medical Records at 0082; Shevlin Decl. Ex. B; see also Defs.’ 56.1 ¶ 33.) Pagan directed Wolff

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and Colonie to provide Plaintiff with Ibuprofen for the pain; apply Silvadene, a topical cream, to
the first degree burns, other than the eyelids, to prevent infection; and apply Bacitracin to the
second degree burn and to his eyelids to prevent infection and to keep the tissue moist. (See
Wolff Decl. ¶ 5; Pagan Decl. ¶ 7; Medical Records at 0080, 0082, 0109; Shevlin Decl. Ex. B; see
also Defs.’ 56.1 ¶ 37.) Plaintiff was not sent to an outside hospital.
According to Defendants, there is no policy at Green Haven of denying inmates the
ability to go to an outside hospital for treatment of first and superficial second degree burns.
(See Bernstein Decl. ¶ 4; Lee Decl. ¶ 9; see also Defs.’ 56.1 ¶ 34.) Here, the decision to keep
Plaintiff at the infirmary instead of sending him to a hospital was based on the treating
physician’s and assistant’s determination that Plaintiff’s wounds were not serious enough to
warrant sending him to an outside hospital. (See Bhopale Decl. ¶ 4; Pagan Decl. ¶ 3; see also
Defs.’ 56.1 ¶ 34.) Defendants indicate that first degree burns are typically treated with cold
water or cold compresses, and that the next step is to apply topical ointment or cream to the
affected area. (See Bernstein Decl. ¶ 5; Bhopale Decl. ¶ 4; Pagan Decl. ¶ 4; see also Defs.’ 56.1
¶ 35.) If there is any sign of infection, antibiotics are given. (See Bernstein Decl. ¶ 5; Bhopale
Decl. ¶ 4; Pagan Decl. ¶ 4; see also Defs.’ 56.1 ¶ 35.) Second degree burns are classified as
either superficial or deep. (See Bhopale Decl. ¶ 6; Pagan Decl. ¶ 5; see also Defs.’ 56.1 ¶ 36.)
Superficial second degree burns receive largely the same treatment as first degree burns, but
superficial second degree burns may also result in blisters, which, if large, should be ruptured.
(See Bhopale Decl. ¶ 6; Pagan Decl. ¶ 5; see also Defs.’ 56.1 ¶ 36.) Deep second degree burns
are also treated similarly, but may sometimes require more invasive intervention, such as
surgical excision of dead tissue and a skin graft. (See Bhopale Decl. ¶ 6; Pagan Decl. ¶ 5; see
also Defs.’ 56.1 ¶ 36.) Inmates at Green Haven who suffer any type of second degree burns are

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placed in an isolation room to reduce the possibility of infection. (See Bhopale Decl. ¶ 6; Pagan
Decl. ¶ 5; see also Defs.’ 56.1 ¶ 36.) It is the opinion of Defendants that Plaintiff suffered only
first degree burns and superficial second degree burns. (See Bhopale Decl. ¶ 6; Pagan Decl. ¶ 5;
see also Defs.’ 56.1 ¶ 36.)
Later on September 26, after treating his wounds, Wahlquist gave Plaintiff the
opportunity to be placed into protective custody, but Plaintiff declined. (See Wahlquist Decl.
¶ 6; Shevlin Decl. Ex. C; see also Defs.’ 56.1 ¶ 38.) Plaintiff was, however, placed in an
isolation room at the infirmary to prevent infection. (See Pagan Decl. ¶ 7; see also Defs.’ 56.1
¶ 39.)
The next morning, the nursing staff noted that Plaintiff appeared to be resting
comfortably, but a large blister had developed on his left eye and was leaking clear liquid. (See
Medical Records at 0110; see also Defs.’ 56.1 ¶ 40.) Plaintiff was given gauze pads to pat the
blister. (See Medical Records at 0110; see also Defs.’ 56.1 ¶ 40.) Later that same morning,
Defendant Dr. Vishmas Bhopale, Plaintiff’s primary care physician at the time, saw Plaintiff.
(See Bhopale Decl. ¶ 10; see also Defs.’ 56.1 ¶ 41.) Plaintiff told Dr. Bhopale that he thought
the burn area was looking better, and Dr. Bhopale agreed. (See Bhopale Decl. ¶ 10; see also
Defs.’ 56.1 ¶ 41.) Dr. Bhopale continued the treatment of Silvadene and Bacitracin, and also
directed that Plaintiff should start taking Amoxicillin, an antibiotic, for seven days. (See
Bhopale Decl. ¶ 10; Medical Records at 0109–0110; see also Defs.’ 56.1 ¶ 42.)
On the afternoon of September 27, the nursing staff observed that Plaintiff’s left eye,
which had previously been swollen shut, was less swollen and Plaintiff was able to open it. (See
Medical Records at 0110; see also Defs.’ 56.1 ¶ 43.) Plaintiff showered and then received
treatment of Silvadene and Bacitracin. The dressing on Plaintiff’s forearm was changed. (See

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Medical Records at 0110; see also Defs.’ 56.1 ¶ 44.) That evening, the nursing staff noted that
the burn on the left side of Plaintiff’s face was improving and the dressing to his right forearm
was intact, but also documented that Plaintiff had blisters on the left side of his neck and left
eyelid. (See Medical Records at 0111; see also Defs.’ 56.1 ¶ 45.) The nursing staff applied
Silvadene and noted that Plaintiff’s swelling was subsiding and his vital signs were normal. (See
Medical Records at 0111; see also Defs.’ 56.1 ¶ 45.)
The next morning, on September 28, the nursing staff noticed that Plaintiff’s left eyelid
was swollen, but that Plaintiff’s vision was intact. (See Medical Records at 0111; see also Defs.’
56.1 ¶ 46.) The dressing on Plaintiff’s forearm was clean and his vital signs were normal. (See
Medical Records at 0111; see also Defs.’ 56.1 ¶ 46.) Later that same morning, the nursing staff
noted that Plaintiff’s left eye was much less swollen, that he had small blisters on his forehead
and open skin areas, and that he had two small open areas on his forearm. (See Medical Records
at 0111; see also Defs.’ 56.1 ¶ 47.) Plaintiff showered and had his dressing changed. (See
Medical Records at 0111; see also Defs.’ 56.1 ¶ 48.) Plaintiff refused Silvadene and Bacitracin
to his face because he was going to the visiting room to see his family, but he indicated he would
allow those medications to be applied upon his return. (See Medical Records at 0111; see also
Defs.’ 56.1 ¶ 48.)
That afternoon, Plaintiff was seen by Dr. Bentivegna and told him that he had no
complaints except dryness in the burned areas. (See Bhopale Decl. ¶ 15; Medical Records at
0112; see also Defs.’ 56.1 ¶ 50.) Later that day, the nursing staff examined Plaintiff and noted
blistering on Plaintiff’s forehead and peeling to areas of his face, but also noted that Plaintiff
denied any pain. (See Medical Records at 0112; see also Defs.’ 56.1 ¶ 51.) Plaintiff’s dressing

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was changed, Bacitracin was applied, and Plaintiff was given an antibiotic. (See Medical
Records at 0112; see also Defs.’ 56.1 ¶ 51.)
The next morning, September 29, Plaintiff was seen by the nursing staff, who observed
that he was resting comfortably and had no complaints. (See Medical Records at 0112; see also
Defs.’ 56.1 ¶ 52.) The dressing on Plaintiff’s forearm was changed. (See Medical Records at
0112; see also Defs.’ 56.1 ¶ 52.) At noon, Plaintiff complained that the skin on his face was
itching, and the nursing staff saw that the skin on his forehead was peeling and that the skin on
his cheeks was dry. (See Medical Records at 0112; see also Defs.’ 56.1 ¶ 53.) The staff noted
that Plaintiff’s vital signs were normal and that his appetite was good; Plaintiff then showered
and received his normal course of treatment. (See Medical Records at 0112; see also Defs.’ 56.1
¶ 53.) Plaintiff was also given a can of Bacitracin and was instructed to use it on the dry skin on
his face. (See Medical Records at 0112; see also Defs.’ 56.1 ¶ 54.) Plaintiff also reported a
slight burning sensation on his forehead and was advised that if the symptom persisted, he should
wash the Silvadene off and use Bacitracin. (See Medical Records at 0112; see also Defs.’ 56.1
¶ 54.)
On September 30, the nursing staff noted that Plaintiff was awake and reading with no
apparent distress or discomfort. (See Medical Records at 0112; see also Defs.’ 56.1 ¶ 56.) The
staff also noticed that the burns to Plaintiff’s face were blistering and peeling, and Silvadene and
Bacitracin were applied. (See Medical Records at 0112; see also Defs.’ 56.1 ¶ 57.) The dressing
to Plaintiff’s forearm was dry and intact. (See Medical Records at 0112; see also Defs.’ 56.1
¶ 57.) Later that morning, Dr. Bhopale saw Plaintiff and noted that the burned areas were
healing well and that there was no blistering. (See Bhopale Decl. ¶ 18; Medical Records at 0107,
0113; see also Defs.’ 56.1 ¶ 58.) Dr. Bhopale directed that Bacitracin should continue to be

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applied to the burn areas and that Plaintiff should be discharged from the infirmary, with a
follow-up with Dr. Bhopale in one week. (See Bhopale Decl. ¶ 18; see also Defs.’ 56.1 ¶ 58.)
Plaintiff did not indicate to Dr. Bhopale that he was in any kind of pain, was feeling dizzy, had
blurred vision in his eyes, or had headaches. (See Bhopale Decl. ¶ 18; see also Defs.’ 56.1 ¶ 59.)
Dr. Bhopale testified that had Plaintiff expressed those symptoms to him, Dr. Bhopale would
have indicated those comments in the medical record and would have treated Plaintiff
accordingly. (See Bhopale Decl. ¶ 18; see also Defs.’ 56.1 ¶ 60.) Later that morning, the
nursing staff noted that the skin on Plaintiff’s forehead and face was peeling. (See Medical
Records at 0113; see also Defs.’ 56.1 ¶ 61.) Plaintiff showered and Silvadene was applied to his
forehead, Bacitracin was applied to his other wounds, and a bandage was placed on his forearm.
(See Medical Records at 0080, 0113; see also Defs.’ 56.1 ¶ 62.) Plaintiff was instructed on his
medications and was discharged from the infirmary. (See Medical Records at 0080, 0113; see
also Defs.’ 56.1 ¶ 63.)
Approximately one week later, on October 7, Dr. Bhopale saw Plaintiff for the follow-up
visit, noted that Plaintiff’s burns had completely healed, and noted that he did not observe any
permanent scarring or discoloration. (See Bhopale Decl. ¶ 20; Medical Records at 0079; see also
Defs.’ 56.1 ¶ 64.) Plaintiff did complain that his left eye was experiencing sensitivity to light
and worsening vision, and while Dr. Bhopale did not see anything wrong with Plaintiff’s eyes,
because Plaintiff was already due for an examination by an optometrist, Dr. Bhopale submitted a
request form for Plaintiff to see one. (See Bhopale Decl. ¶ 20; Medical Records at 0122; see also
Defs.’ 56.1 ¶ 65.) Plaintiff did not thereafter complain to Dr. Bhopale on a regular basis of
headaches or eye pain. (See Bhopale Decl. ¶ 22; see also Defs.’ 56.1 ¶ 66.)

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Plaintiff saw Dr. Richard Wurzel, an optometrist, on October 16, 2013 and October 14,
2014, for his complaints of eye dryness and irritation. (See Wurzel Decl. ¶ 3; Medical Records at
0121, 0127; see also Defs.’ 56.1 ¶ 67.) During the examination on October 16, 2013, Dr. Wurzel
noted a number of findings and symptoms consistent with dry eye syndrome from the hot water.
(See Wurzel Decl. ¶ 4; Medical Records at 0121; see also Defs.’ 56.1 ¶ 68.) Dr. Wurzel
prescribed glasses, non-preserved artificial tears, and ocular ointments. (See Wurzel Decl. ¶ 4;
Medical Records at 0121; see also Defs.’ 56.1 ¶ 68.) On October 14, 2014, Dr. Wurzel observed
that Plaintiff’s issues had slightly improved and noted continuing symptoms consistent with mild
dry eye syndrome. (See Wurzel Decl. ¶ 5; Medical Records at 0127; see also Defs.’ 56.1 ¶ 69.)
Dr. Wurzel renewed the prescription for artificial tears and ointments. (See Wurzel Decl. ¶ 5;
Medical Records at 0127; see also Defs.’ 56.1 ¶ 69.)
Dr. Wurzel does not believe that Plaintiff suffered any long-term injuries to his eyes as a
result of the incident in 2013. (See Wurzel Decl. ¶ 6; see also Defs.’ 56.1 ¶ 70.) Dr. Wurzel
points out that the symptoms discussed in the Amended Complaint—light sensitivity, throbbing
pain, impaired vision, pounding headaches, and permanent burn and discoloration to the areas
around his eyes—are not consistent with his diagnosis of mild dry eye syndrome. (See Wurzel
Decl. ¶ 7; see also Defs.’ 56.1 ¶ 71.) Dr. Wurzel further notes that Plaintiff did not raise any of
the symptoms he now alleges when he met with Dr. Wurzel in 2013 and 2014. (See Wurzel
Decl. ¶¶ 7, 10; Medical Records at 0121, 0127; see also Defs.’ 56.1 ¶¶ 71, 74–75.) Dr. Wurzel
also points out that dry eyes can be caused by a number of conditions, and that given Plaintiff’s
recovery between 2013 and 2014, Dr. Wurzel does not believe the hot water caused the
diagnosed dry eye syndrome. (See Wurzel Decl. ¶ 8; see also Defs.’ 56.1 ¶ 72.) Moreover,

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Plaintiff is over the age of 40, and eye deterioration, particularly with respect to Plaintiff’s
astigmatism, is normal. (See Wurzel Decl. ¶ 9; see also Defs.’ 56.1 ¶ 73.)
On or about October 17, 2013, Plaintiff filed a grievance, alleging that the attack on him
could have been prevented by staff and that he was denied adequate medical care. (See Lee
Decl. ¶ 9; Shevlin Decl. Ex. E, at 0010–0014; see also Defs.’ 56.1 ¶ 76.) At the conclusion of
the investigation into the incident, Defendant William Lee, then the Superintendent at Green
Haven, determined that the allegations of misconduct could not be substantiated. (See Lee Decl.
¶ 10; Shevlin Decl. Ex. E, at 0016–0017; see also Defs.’ 56.1 ¶ 77.)
B. Procedural History
Plaintiff filed his Complaint on August 14, 2014. (See Dkt. No. 1.) Plaintiff filed an
Amended Complaint on November 7, 2014. (See Dkt. No. 9.) Some Defendants filed an
Answer on January 26, 2015. (See Dkt. No. 22.) The remainder, after being served, filed their
Answer on April 14, 2015. (See Dkt. No. 29.) A case management order was entered on
September 24, 2015, directing that all discovery was to be completed by January 31, 2016. (See
Order (Dkt. No. 36).) After issues regarding Plaintiff’s deposition and interrogatories were
resolved, (see Dkt. Nos. 45–46), Defendants requested leave to move for summary judgment,
(see Letter from John Knudsen, Esq., to Court (Feb. 11, 2016) (Dkt. No. 47)). Plaintiff
responded to the application shortly thereafter. (See Pl.’s Answer to Summ. J. (Dkt. No. 48).)
The Court set a briefing schedule for the Motion. (See Order (Dkt. No. 49).) Before Defendants
filed their Motion, Plaintiff filed an “Answer” to Defendant’s Motion, which reiterated many of
the points made in his earlier application. (See Pl.’s Answer to Summ. J. (Dkt. No. 53).)
Defendants filed their Motion and accompanying papers on May 13, 2016. (See Dkt. Nos. 54–
58.) Plaintiff did not respond. Defendants thereafter informed the Court that they would not be

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submitting a reply brief. (See Letter from Neil Shevlin, Esq., to Court (July 6, 2016) (Dkt. No.
59).)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the 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.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). “It is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v.
Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (same).
“However, when the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant’s claim,” in which case “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114,
123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, “[t]o survive a
[summary judgment] motion . . . , [a nonmovant] need[s] to create more than a ‘metaphysical’
possibility that his allegations were correct; he need[s] to ‘come forward with specific facts

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showing that there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d
Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the
pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)
(internal quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)
(“When a motion for summary judgment is properly supported by documents or other
evidentiary materials, the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading . . . .”).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage,
“[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any
factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted). Thus, a
court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm.
Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986)). Finally, the Second Circuit has instructed that “special
solicitude” should be afforded a pro se litigant on a motion for summary judgment, see Graham
v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); see also Berry, 137 F. Supp. 3d at 522 (same),
whereby a court should construe “the submissions of a pro se litigant . . . liberally” and interpret
them “to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (italics and internal quotation marks omitted).
When ruling on a motion for summary judgment, a district court should consider only
evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Group of Am.,

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Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish
facts, the statements ‘must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant . . . is competent to testify on the matters
stated.’” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4));
see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires
a motion for summary judgment to be supported with affidavits based on personal
knowledge . . . .”); Baity v. Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (disregarding
“statements not based on [the] [p]laintiff’s personal knowledge”); Flaherty v. Filardi, No. 03CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is
whether a reasonable trier of fact could believe the witness had personal knowledge.” (internal
quotation marks omitted)); Zigmund v. Foster, 106 F. Supp. 2d 352, 356 (D. Conn. 2000) (noting
that “[a]n affidavit in which the plaintiff merely restates the conclusory allegations of the
complaint” is insufficient to support a motion for summary judgment). In addition, “a pro se
party’s bald assertion, completely unsupported by evidence, is not sufficient to overcome a
motion for summary judgment.” Berry, 137 F. Supp. 3d at 520 (internal quotation marks
omitted); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (“The non-moving party
may not rely on conclusory allegations or unsubstantiated speculation.”).
B. Analysis
Plaintiff brings two claims under the Eighth Amendment—one for failure to protect
against Defendants Wahlquist, Carey, Johnston, and Lee; and one for deliberate indifference to a
serious medical need against all Defendants except Johnston. (See Am. Compl. ¶ II(D), ¶¶ 22–
25.) The Court will address each claim in turn.

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1. Failure to Protect
An inmate may state a claim under the Eighth Amendment against a prison official under
the theory that prison officials failed to protect him or her. See Farmer v. Brennan, 511 U.S.
825, 847 (1994); see also Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (“The
Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety
of inmates in their custody.”). A plaintiff seeking to make such a claim must allege both an
objective and subjective element: that “he is incarcerated under conditions posing a substantial
risk of serious harm,” and that the prison official had a “sufficiently culpable state of mind, to
wit, [was] deliberately indifferent to the harmful conditions.” Randle v. Alexander, 960 F. Supp.
2d 457, 473 (S.D.N.Y. 2013) (emphasis and internal quotation marks omitted); see also Parris v.
N.Y. State Dep’t Corr. Servs., 947 F. Supp. 2d 354, 362 (S.D.N.Y. 2013) (same); Warren v.
Goord, 476 F. Supp. 2d 407, 410 (S.D.N.Y. 2007) (same). Deliberate indifference exists “when
an official ‘has knowledge that an inmate faces a substantial risk of serious harm and he
disregards that risk by failing to take reasonable measures to abate the harm.’” Parris, 947 F.
Supp. 2d at 363 (quoting Hayes, 84 F.3d at 620).
Assuming that Plaintiff has satisfied the objective element, and the Court is far from
certain he has, Plaintiff has offered no indication, or even an allegation, that any of Defendants
were on notice that Simard intended to harm Plaintiff or posed a threat to Plaintiff. Even
Plaintiff admits that he did not know Simard well at the time and had never had any altercations
with Simard. (See Pl.’s Dep. Tr. 14–15, 94.) Moreover, none of Defendants named under this
claim was aware of any conflict between Plaintiff and Simard or of any danger that Simard may
have posed to Plaintiff. (See Lee Decl. ¶ 4; Johnston Decl. ¶ 4; Wahlquist Decl. ¶ 7; Carey Decl.
¶ 5.) “Courts routinely deny deliberate indifference claims based upon surprise attacks.” Parris,

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947 F. Supp. 2d at 363 (internal quotation marks omitted). In general, “[t]he plaintiff must allege
that the defendants knew of a prior altercation between the plaintiff and his attacker, or of threats
that had been made against the plaintiff.” Id. In the absence of such evidence, there is no basis
for a reasonable trier of fact to conclude that Defendants were aware of any threat of danger
posed by Simard or others. See Dublin v. N.Y.C. Law Dep’t, No. 10-CV-2971, 2012 WL
4471306, at *7 (S.D.N.Y. Sept. 26, 2012) (granting summary judgment where there was no
evidence that the defendant “knew of and disregarded a substantial risk of serious harm to [the]
[p]laintiff”); Fernandez v. N.Y.C. Dep’t of Corr., No. 08-CV-4294, 2010 WL 1222017, at *4
(S.D.N.Y. Mar. 29, 2010) (dismissing the complaint where the plaintiff had not pled “that he and
[his attacker] were involved in a prior altercation, that [the attacker] had previously threatened
him, or that there was any other reason for officers at [the facility] to be on notice that there was
a risk of altercation between [the] [p]laintiff and [his attacker]”).
Similarly unavailing is Plaintiff’s assertion that Defendants Johnston and Lee are liable
for adopting an “unwritten policy sanctioning violent inmates with a history of violent prison
behavior to work unsupervised.” (Am. Compl. ¶ II(D), ¶ 23.) Plaintiff offers no support for this
proposition, and Lee and Johnston expressly denied that any such policy existed. (See Lee Decl.
¶ 5; Johnston Decl. ¶ 5.) Instead, all inmates working in the mess hall were monitored by both
civilian and security staff members. (See Lee Decl. ¶ 7; Johnston Decl. ¶ 8.) The security staff
was positioned in the mess hall area and made rounds throughout the day. (See Lee Decl. ¶ 7;
Johnston Decl. ¶ 8.) That Plaintiff was attacked and the correction staff were unable to stop it
does not, on its own, show that correction officers were aware of a substantial risk and failed to
protect Plaintiff against it; it shows merely that Plaintiff was the victim of a spontaneous outburst
of violence. “The state is not expected to be an insurer of inmate safety.” Hartry v. County of

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Suffolk, 755 F. Supp. 2d 422, 440 (E.D.N.Y. Dec. 15, 2010). Outside of Plaintiff’s conclusory
allegations of gross negligence and failure to train, Plaintiff has offered no evidence to suggest
that the incident involving Simad was anything but an unforeseeable, and unfortunate, incident.
In such circumstances, no reasonable trier of fact could conclude that Plaintiff’s constitutional
rights were violated. Plaintiff’s claim under the Eighth Amendment for failure to protect is thus
conclusory and unsupported by any evidence in the record and, accordingly, judgment in favor of
Defendants should be entered.
2. Deliberate Indifference to a Serious Medical Need
“The Eighth Amendment forbids deliberate indifference to serious medical needs of
prisoners.” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(internal quotation marks omitted). “There are two elements to a claim of deliberate indifference
to a serious medical condition.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). “The first
requirement is objective: the alleged deprivation of adequate medical care must be sufficiently
serious.” Spavone, 719 F.3d at 138 (internal quotation marks omitted). Under this objective
requirement, a court must inquire first, “whether the prisoner was actually deprived of adequate
medical care,” and second, “whether the inadequacy in medical care is sufficiently serious.”
Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006). Under the first inquiry, adequate
medical care is reasonable care such that “prison officials who act reasonably cannot be found
liable.” Farmer, 511 U.S. at 845. Under the second inquiry, the Court examines “how the
offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely
cause the prisoner.” Salahuddin, 467 F.3d at 280. As part of this objective element, “the inmate
must show that the conditions, either alone or in combination, pose an unreasonable risk of
serious damage to his health.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). “There is no

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settled, precise metric to guide a court in its estimation of the seriousness of a prisoner’s medical
condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit
has presented “a non-exhaustive list” of factors to consider: “(1) whether a reasonable doctor or
patient would perceive the medical need in question as ‘important and worthy of comment or
treatment,’ (2) whether the medical condition significantly affects daily activities, and (3) ‘the
existence of chronic and substantial pain.’” Id. (quoting Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998)); see also Morales v. Fischer, 46 F. Supp. 3d 239, 247 (W.D.N.Y. 2014)
(same).
Courts distinguish between situations where no medical attention is given and situations
where medical attention is given, but is objectively inadequate. In the former, the Court need
only “examine whether the inmate’s medical condition is sufficiently serious.” Salahuddin, 467
F.3d at 280. In the latter, however, the inquiry is “narrower”; for example, “if the prisoner is
receiving on-going treatment and the offending conduct is an unreasonable delay or interruption
in that treatment, the seriousness inquiry ‘focus[es] on the challenged delay or interruption in
treatment rather than the prisoner’s underlying medical condition alone.’” Id. (quoting Smith v.
Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)).
“The second requirement [of an Eighth Amendment deliberate indifference claim] is
subjective: the charged officials must be subjectively reckless in their denial of medical care.”
Spavone, 719 F.3d at 138. Here, the inquiry is whether defendants “knew of and disregarded an
excessive risk to [a plaintiff’s] health or safety” while “both aware of facts from which the
inference could be drawn that a substantial risk of serious harm existed, and also drew the
inference.” Caiozzo, 581 F.3d at 72 (alterations and internal quotation marks omitted); see also
Farmer, 511 U.S. at 837 (“[T]he official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.”). “Deliberate indifference is a mental state equivalent to subjective recklessness,”
and it “requires that the charged official act or fail to act while actually aware of a substantial
risk that serious inmate harm will result.” Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014)
(internal quotation marks omitted); see also Gladden v. City of New York, No. 12-CV-7822, 2013
WL 4647193, at *2 (S.D.N.Y. Aug. 29, 2013) (“To meet the subjective element, the plaintiff
must show that the defendant acted with more than mere negligence, and instead knew of and
disregarded an excessive risk to inmate health or safety.” (internal quotation marks omitted)). In
contrast, “mere medical malpractice is not tantamount to deliberate indifference,” unless “the
malpractice involves culpable recklessness, i.e., . . . a conscious disregard of a substantial risk of
serious harm.” Chance, 143 F.3d at 703 (internal quotation marks omitted). Moreover, “mere
disagreement over the proper treatment does not create a constitutional claim,” and “[s]o 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.; see also Crique v. Magill, No. 12-CV3345, 2013 WL 3783735, at *3 (S.D.N.Y. July 9, 2013) (“The mere fact that an inmate feels that
he did not receive adequate attention . . . does not constitute deliberate indifference.”).
There are a number of factual issues that hinder Defendants on this point. First, as
Plaintiff points out, the medical records indicate that Plaintiff suffered only first degree burns on
his face, eyelids, forehead, neck, and shoulder areas. (See Wolff Decl. ¶ 4; Pagan Decl. ¶ 6;
Medical Records at 0080, 0082, 0110.) The medical records further indicate that Plaintiff
subsequently experienced blistering on his eyelids, forehead, and neck. (See Medical Records at
0110–0112.) But in Bernstein’s responses to Plaintiff’s interrogatories, he testified that “[f]irst
degree burns do not blister,” (see Pl.’s Answer to Summ. J. (Dkt. No. 53) at unnumbered 30),

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calling into question the accuracy of the initial diagnosis. It is thus unclear what Defendants’
position is on the severity of the injuries to Plaintiff’s eyelids, forehead, and neck. Additionally,
although Dr. Wurzel testified that he found symptoms consistent with dry eye syndrome and
irritation from the hot water thrown in Plaintiff’s face, he went on to conclude that it was his
opinion that the hot water did not cause the dry eye syndrome. (See Wurzel Decl. ¶¶ 4, 8.) It is
again unclear what Defendants’ position is on this point. Finally, although Defendants offer
detailed declarations from Bernstein, Bhopale, and Pagan attesting that Plaintiff’s injuries were
minor and were treated appropriately, (see Bernstein Decl. ¶¶ 5–6; Bhopale Decl. ¶¶ 4–6; Pagan
Decl. ¶¶ 3–5), none of those individuals has been offered as an expert, and thus their testimony
regarding the appropriate care for Plaintiff and for burn victims generally cannot be considered
by the Court in determining whether adequate medical care was rendered, cf., e.g., Gill v. Am.
Red Cross, No. 12-CV-348, 2013 WL 1149951, at *3 (D. Conn. Mar. 19, 2013) (“The testing,
protocol, and monitoring deficiencies [the] [p]laintiff alleges unquestionably implicate a medical
assessment as to whether [the decedent] was or was not a medically appropriate candidate for a
safe blood donation, which is necessarily beyond a layperson’s ability to make an informed
judgment about.” (citation omitted)).
These deficiencies notwithstanding, summary judgment in favor of Defendants is still
appropriate. Plaintiff does not allege or present evidence showing that he received no medical
attention; rather, he alleges (without any evidence in support) that he was denied access to
“adequate medical personnel qualified to exercise judgment about Plaintiff’s [f]irst and [s]econd
degree burn,” i.e., he should have been taken to a hospital. (Am. Compl. ¶ II(D), ¶ 24.)
“[D]isagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of
treatment, or the need for specialists or the timing of their intervention, are not adequate grounds

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for a [§] 1983 claim.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303,
312 (S.D.N.Y. 2001); see also id. at 311 (“A difference of opinion between a prisoner and prison
officials regarding medical treatment does not, as a matter of law, constitute deliberate
indifference. Nor does the fact that an inmate might prefer an alternative treatment, or feels that
he did not get the level of medical attention he preferred.” (citations omitted)). Plaintiff offers no
evidence that Defendants’ treatment of Plaintiff was inadequate, nor does he opine on what
treatment should have been administered; he alleges only that he should have been taken to a
hospital. Such an allegation, unsupported by any competent evidence, is insufficient to move
this case past summary judgment. See Micolo v. Fuller, No. 15-CV-6374, 2016 WL 6404146, at
*4 (W.D.N.Y. Oct. 28, 2016) (“To the extent that [the] [p]laintiff contends that he needed to be
taken to a hospital for . . . sutures, these claims are without merit. . . . [The] [p]laintiff has failed
to raise an issue of fact regarding [the defendant’s] qualifications to administer sutures.”);
Simpson v. Town of Warwick Police Dep’t, 159 F. Supp. 3d 419, 446 (S.D.N.Y. 2016) (granting
summary judgment against a plaintiff who alleged that he should have been taken to a hospital,
because “[s]o 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” (internal quotation
marks omitted)); Porter v. Goord, No. 04-CV-485, 2009 WL 2180580, at *12 (W.D.N.Y. July
22, 2009) (granting summary judgment for the defendants because the “[p]laintiff [did] not even
allege, either in the [a]mended [c]omplaint or in his deposition testimony, suffering any further
significant injury or pain based on any delayed or denied treatment, nor d[id] [the] [p]laintiff
allege that as a result of the inadequate treatment, his injuries did not heal, or that their healing
was delayed”), aff’d, 415 F. App’x 315 (2d Cir. 2011).

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Moreover, Plaintiff has offered no facts upon which a reasonable trier of fact could
conclude that any of Defendants disregarded a substantial risk to Plaintiff’s safety or health.
There is nothing about the facts presented that “shocks the conscience,” Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir. 1996), nor are there facts suggesting that Defendants knew of and
disregarded a substantial risk to Plaintiff, see Nielsen, 746 F.3d at 63, or even that such a risk
existed. The conclusory allegation in the Amended Complaint that the conduct here was
“extreme and outrageous conduct of deliberate indifference to Plaintiff’s serious medical need”
is insufficient to rescue Plaintiff’s claim from summary judgment. See Ravenell v. Van der
Steeg, No. 05-CV-4042, 2007 WL 765716, at *7 (S.D.N.Y. Mar. 14, 2007) (granting summary
judgment where the plaintiff had “offer[ed] only his own conclusory allegations that [the
defendant] consciously disregarded a substantial risk of serious harm through deliberate delay of
treatment,” and noting that the plaintiff’s “bald assertion, completely unsupported by evidence, is
not sufficient to overcome a motion for summary judgment” (internal quotation marks omitted));
Vondette v. McDonald, No. 00-CV-6874, 2001 WL 1551152, at *5 (S.D.N.Y. Dec. 5, 2001)
(granting summary judgment where the plaintiff “offer[ed] no evidence beyond his own
conclusory allegations to show that [the] defendants acted with deliberate indifference to his
medical needs”). Plaintiff’s claim for deliberate indifference to a serious medical need thus fails.
3. Plaintiff’s Response
Although he did not offer a formal reply to Defendants’ Motion, Plaintiff did submit, in
anticipation of summary judgment, a document styled as an “Answer” to the anticipated Motion.
(See Dkt. No. 53.) In that document, Plaintiff points to a number of interrogatory responses by
Defendants that, in his view, are evasive, inconsistent, or show that the supervision of the mess
hall and the treatment of his injuries were inadequate. However, Plaintiff highlights only

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collateral issues in the proceeding. None of his arguments go to the heart ofthe Eighth
Amendment claims-whether Defendants acted with deliberate indifference in denying Plaintiff
medical care. The closest Plaintiff comes is to arguing that because Simard was able to attack
Plaintiff, the supervision of the mess hall must have been inadequate. (See id. at unnumbered 23, 5.) But as detailed above, the fact that Plaintiff was attacked does not lead to the conclusion
that the attack must have been caused by the negligence of Defendants. And even if it did, there
is still no evidence that any Defendant acted with deliberate indifference. In short, none of
Plaintiffs contentions outlined in his Answer point to any evidence of deliberate indifference or
address any of the arguments raised by Defendants in the Motion. Plaintiffs claims under the
Eighth Amendment lack any basis in fact, and summary judgment for Defendants is therefore
appropriate.
III. Conclusion
Because Plaintiff has adduced no evidence in support of his allegations, the Court
declines to address Defendants ' remaining arguments regarding the personal involvement of
various Defendants and qualified immunity.
For the foregoing reasons, the Motion is granted. The Clerk of Court is respectfully
requested to terminate the pending Motion, (Dkt. No. 54), enter judgment for Defendants, and
close the case.
SO ORDERED.
DATED:

February }b , 2017
White Plains, New York

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