Thurmond v. Thomas-Walsh et al
Filing
26
OPINION & ORDER re: 21 MOTION to Dismiss pursuant to FRCP 12(b)(6). filed by Frederick Bernstein, Avion Thomas-Walsh. For the foregoing reasons, the Court grants Defendants' Motion To Dismiss with respect to Plaintiffs Eighth Amendment medical deliberate indifference claim, and denies the Motion with respect to Plaintiffs First Amendment retaliation claim. In light of Plaintiffs prose status, and because this is the first adjudication of Plaintiffs claims, his Eighth Amendment claim is dismissed without prejudice. If Plaintiff wishes to file an Amended Complaint alleging additional facts and otherwise addressing the deficiencies identified above, Plaintiff must do so within 30 days of the date of this Opinion a nd Order. Failure to do so will result in the dismissal of this claim with prejudice. Plaintiff is advised that the amended complaint will replace, not supplement, the earlier complaint. The amended complaint must contain all of the claims against all Defendants. The Court will not consider factual allegations contained in supplemental letters, declarations, or memoranda. The Clerk of Court is respectfully direct to terminate the pending Motion, (see Dkt. No. 21 ), and mail a copy of this Opinion and Order to the Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/29/2019) (ks) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KEVIN THURMOND,
Plaintiff,
v.
No. 18-CV-409 (KMK)
AVION THOMAS-WALSH, Medical
Provider; FREDERICK BERNSTEIN,
Facility Health Services Director and
Nurse Administrator,
OPINION & ORDER
Defendants.
Appearances:
Kevin Thurmond
Woodbourne, NY
Pro Se Plaintiff
Janice Powers, Esq.
Office of the New York State Attorney General
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Kevin Thurmond (“Plaintiff”), currently incarcerated at Woodbourne
Correctional Facility (“Woodbourne”), filed the instant Complaint (“Complaint”), pursuant to 42
U.S.C. § 1983, against Medical Provider Avion Thomas-Walsh (“Thomas-Walsh”), and Facility
Health Services Director and Nurse Administrator Frederick Bernstein, MD, FHAS (“Dr.
Bernstein”) (collectively, “Defendants”).1 (Compl. (Dkt. No. 2).) Plaintiff alleges that
Plaintiff also sometimes refers to Thomas-Walsh as “Nurse Practitioner” or “NP.” See
Plaintiff’s Declaration in Opposition to Defendants’ Motion to Dismiss. (Pl.’s Decl. in Opp’n to
Defs.’ Mot. To Dismiss (“Pl.’s Opp’n”) 13–14 (Dkt. No. 23).)
1
Defendants violated his rights under the First and Eighth Amendments because they were
deliberately indifferent to his need for medication for his skin condition, and retaliated against
him for filing grievances. (Id.) Before the Court is Defendants’ Motion To Dismiss the
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No.
21).) For the following reasons, Defendants’ Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are taken from Plaintiff’s Complaint, (Compl.), and Plaintiff’s
Opposition to Defendants’ Motion to Dismiss, (Pl.’s Decl. in Opp’n to Defs.’ Mot. To Dismiss
(“Pl.’s Opp’n”) (Dkt. No. 23)), both of which include attached exhibits, and are taken as true for
the purpose of resolving the instant Motion.
Plaintiff alleges that on December 24, 2013, he started to experience “attacks,” during
which his skin would “swell up, turn red and sting and itch uncontrollably.” (Compl. 7.)2
Plaintiff was prescribed Hydroxyzine Pamoate (or “Vistaril”), the generic form of Vistaril, with
one refill that same day, on December 24, 2013. (Id. at 25.)3
2
The Plaintiff’s Complaint and Opposition both contain several exhibits and do not have
consistent pagination. To avoid confusion, the Court cites to the ECF-generated page numbers at
the top right corner of the relevant page.
3
The prescription label for Hydroxyzine Pamoate is attached to Plaintiff’s Complaint as
Exhibit B. (Compl. 25.) Hydroxyzine Pamoate is an antihistamine used to treat itching caused
by allergies and “may also be used short-term to treat anxiety . . . .” See Hydroxyzine Pamoate,
WebMd, https://www.webmd.com/drugs/2/drug-7092/hydroxyzine-pamoate-oral/details (last
visited Feb. 19, 2019). Hydroxyzine Pamoate is the generic form of Vistaril. See Vistaril,
RxList, https://www.rxlist.com/vistaril-side-effects-drug-center.htm (last visited Feb. 19, 2019).
2
On May 21, 2014, Plaintiff was prescribed a new medication, Atarax (or Hydroxyzine
Hydrochloride).4 (Compl. 7, 29.) Plaintiff alleges that Atarax did not work to relieve his
symptoms. (Id. at 7.) While on Atarax, he continued to have “attacks” and also developed
phobias about whether the medical personnel at the facility intended to hurt him. (Id.) Plaintiff
alleges he took Atarax for three days and continued to have attacks. (Pl.’s Opp’n 4.) Plaintiff
alleges it took him eight days to be rescheduled to see Thomas-Walsh to let her know Atarax was
not working at all. When he told her that Atarax was not working she allegedly responded, “No!
I’m not giving you anything! [G]et out!” (Id.)5
On May 29, 2014, Plaintiff wrote a letter to Dr. Bernstein, the Facility Health Services
Director and Nurse Administrator explaining that Thomas-Walsh had switched him from Vistaril
to Atarax, that the latter was not working, that he was still having terribly painful attacks, and
that Thomas-Walsh refused to switch him back to Vistaril. (Id. at 15–16.) Plaintiff detailed his
anguish at length and alleged that he was afraid for his life because he had previously filed a
grievance against Thomas-Walsh related to her taking his white blood cell count without his
permission, and that he did not believe that his suffering would end while he was under her care.
Atarax is an antihistamine used to treat itching caused by allergies, and “may also be
used short-term to treat anxiety . . . .” The generic name of Atarax is Hydroxyzine Hcl. See
Hydroxyzine Hcl, WedMd, https://www.webmd.com/drugs/2/drug-7681/hydroxyzine-hcloral/details (last visited Feb. 19, 2019). Atarax can be used for “symptomatic relief of anxiety
and tension associated with psychoneurosis.” See Atarax, RxList, https://www.rxlist.com/ataraxdrug.htm#description (last visited Feb. 19, 2019).
4
Throughout his Opposition, Plaintiff refers to “the defendant” when discussing his
primary care provider, specifically the person who wrote the prescriptions at issue in May 2014
and whom he filed grievances against in February 2014. (See Pl.’s Opp’n 2–5.). The Court
understands this “defendant” to be Thomas-Walsh, who was Plaintiff’s Medical Provider and
refers to her specifically in describing Plaintiff’s allegations.
5
3
(Id.)6 Dr. Bernstein responded on June 12, 2014, stating that he had reviewed Plaintiff’s medical
record and concluded that the “primary care provider prescribed . . . the correct medication.”
(Compl. 21.) Dr. Bernstein instructed Plaintiff that if the medication he was on was not helpful
he should address this concern with his primary care provider, and that he could request an
appointment with her during the next block sick call. (Id.) Dr. Bernstein also concluded that
there was no medical reason to change Plaintiff’s primary care provider and denied his request to
have his primary care provider changed. (Id.)
On June 2, 2014, Plaintiff wrote a letter to Deputy Superintendent O’Neil to the same
effect—stating that Thomas-Walsh had switched his medication in retaliation for his filing a
grievance against her for taking his white blood cell count, and that he could not go back to sick
call because it would require him to see her again. Plaintiff asked for a new medical provider.
(Pl.’s Opp’n 14.)
On June 5, 2014, Plaintiff filed a grievance asking to be prescribed medication for
itching. (Compl. 29.) The Superintendent denied his request on September 8, 2014, stating,
The Facility Health Services Director and the grievant’s provider previously met
with the grievant and explained to him that Vistaril . . . is used for psychological
purposes and the Atarax . . . is used for itching. Vistaril is not [to] be used for that
purpose long term. The grievant’s provider prescribed Vistaril once because the
grievant reported it helped relieve his itching at that time. The provider informed
the grievant that this relief would be short term. The grievant must use Atarax.
6
Plaintiff filed a grievance on February 24, 2014, alleging that an HIV test was
conducted on him without his consent and requesting a change of provider. (Pl.’s Opp’n 12.)
Plaintiff also alleged that the IGRC granted his request for a new provider. The Superintendent
concluded that the medical record did not indicate Plaintiff was tested for an impaired immune
system and that there was no documentation that the IGRC has found in his favor. (Id.)
Accordingly, Plaintiff’s grievance was denied. (Id.) Plaintiff appealed that decision on May 7,
2014, stating that Thomas-Walsh had told him to show her his rash and that he responded that he
did not have one. She then asked him if it was hard for him to swallow and he responded that it
was not. He also told her that there was no reason to test his immune system other than to see if
he was HIV positive. (Id.)
4
(Id.)
Plaintiff alleges he was not given any other medication until July 8, 2014, at which time
he was given Benadryl. (Compl. 7, 23.)7 Plaintiff was not sent to a dermatologist until August
5, 2014. (Id. at 7.) During his August 5, 2014 appointment with the dermatologist, Plaintiff
alleges he was diagnosed with a “severe and extremely painful skin disorder called ‘Hives.’”
(Pl.’s Opp’n 2.) 8 On August 6, 2014, Thomas-Walsh filled out a consultation request for
Plaintiff to see the dermatologist again. (Id. at 20.)
During Plaintiff’s follow-up visit with the dermatologist on September 18, 2014, the
dermatologist prescribed Vistaril again and allegedly told Plaintiff that he should take Vistaril for
“a year or however long it takes for the Hives attacks to go away completely.” (Id. at 2.) The
dermatologist’s September 18, 2014 consultant report confirmed the Hives or “Urticaria”
diagnosis. (Id. at 20.)
Plaintiff appealed the denial of his grievance to the Central Office Review Committee
(“CORC”) on September 11, 2014. (Compl. 29.) By opinion dated January 14, 2015, CORC
accepted Plaintiff’s grievance request in part. (Id. at 31.) The opinion states that “although not
usually prescribed for long term use, [Plaintiff] is currently prescribed Vistaril (hydroxyzine
pamoate), and Benadryl for itch relief.” (Id.) The opinion further states that “the grievant is not
entitled to be seen by the health care provider of his choice” and that “CORC has not been
The prescription label for Diphenhydramine (“similar to Benadryl”) is attached to
Plaintiff’s Complaint as Exhibit A. (Compl. 23.)
7
Urticaria, or Hives, “is an outbreak of swollen, pale red bumps or plaques []on the skin
that appear suddenly—either as a result of the body’s reaction to certain allergens, or for
unknown reasons . . . . Hives cause itching, but may also burn or sting.” See Hives, WebMd,
https://www.webmd.com/skin-problems-and-treatments/guide/hives-urticaria-angioedema#1
(last visited Feb. 19, 2019). Some patients may have acute or chronic urticaria. Id.
8
5
presented with sufficient evidence of improper medical care, retaliation or malfeasance by staff.”
(Id.)
On October 30, 2017, Plaintiff underwent a mental health screening during which he
reported “increased anxiety over not being able to receive medication,” but denied any need for
mental health services. (Pl.’s Opp’n 21.) During the screening Plaintiff reported he was taking
Vistaril and Zyrtec for allergies and Hives. The nurse told him Vistaril was mental health
medication, but Plaintiff “knew that it wasn’t, because he had never seen [the] mental health
[department]” and he was taking it for his Hives. (Id.)
Plaintiff alleges that Defendants allowed him “to go 40[] days without any medication at
all, even though they had knowledge that there was other medication to treat [his] attacks.”
(Compl. 5.) Plaintiff alleges Defendants denied him the medication that did work to stop his
attacks, specifically, Vistaril, “in retaliation for [g]rievances filed against them.” (Id.) Plaintiff
claims that his “medication that was intentionally interrupted by [Thomas-Walsh] to cause the
plaintiff pain in retaliation for Grievances that were filed on [February 24, 2014] and decided by
the Superintendent on [April 7, 2014] prior to the incident, to have [Thomas-Walsh] removed as
his medical provider because the defendant was having all kinds of tests taken on the [Pla]intiff
without consulting him first.” (Pl.’s Opp’n 2.)
Plaintiff alleges Thomas-Walsh “deliberately changed [Plaintiff’s] medication from
Vistaril to [] Atarax [] because the defendant knew that [Plaintiff’s] medical condition was
serious and knew that . . . Atarax []would not work,” (id. at 2), and in order to cause Plaintiff
“extreme pain and suffering,” (id. at 2–3). Plaintiff alleges that Vistaril and Atarax are both “itch
medications,” that Atarax is the “the weaker medication” “used by children,” and that Thomas-
6
Walsh knew this and intentionally prescribed it to him “knowing it was not strong enough in
retaliation.” (Id. at 5).
Plaintiff alleges that as a result of being denied Vistaril, he “suffered serious harm”
including further swelling, redness, stinging, and itchiness of his skin, that advanced to the point
of his skin bleeding. (Compl. 5.) These attacks impacted all areas of Plaintiff’s body and face.
(Id.)
Plaintiff alleges that the fact that he was prescribed Vistaril again in September 2014 by
the dermatologist, proves that he was not switched off of Vistaril for Defendants’ stated reason,
specifically that it was a psychological purposes. Plaintiff alleges that this reason offered by
Defendants was pretextual, that Vistaril is not just a psychological drug, and that with respect to
him it was used to treat Hives. (Pl.’s Opp’n 6–7.) Plaintiff alleges in the alternative that
inasmuch as Vistaril is a psychological drug, then so is Atarax because they both “contain[] the
ingredient Hydroxyzine.” (Id. at 7.)
B. Procedural Background
Plaintiff filed his Complaint on January 12, 2018. (Compl.) He was granted in forma
pauperis status on January 18, 2018. (Dkt. No. 4.) On January 23, 2018, the Court issued an
Order directing service on Defendants. (Order of Service (Dkt. No. 6).) Defendants were
properly served. (Dkt. (entries for Jan. 23, 2018); Dkt. No. 7; Letter from Janice L. Powers,
Esq., to Court (Apr. 11, 2018) (Dkt. No. 11); Dkt. Nos. 15–16.)
On May 7, 2018, counsel for Defendants submitted a pre-motion letter to the Court
requesting permission to file a Motion To Dismiss. (See Letter from Janice L. Powers, Esq., to
Court (Dkt. No. 17).) On May 15, 2018, the Court granted Defendants leave to file a Motion To
Dismiss and set a motion briefing schedule. (Dkt. No. 18.)
7
On June 14, 2018, Defendants filed the instant Motion To Dismiss and accompanying
papers. (See Not. of Mot.; Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (“Defs.’ Mem.”)
(Dkt. No. 22).) On July 17, 2018, Plaintiff filed his Opposition to Defendants’ Motion to
Dismiss. (Pl.’s Opp’n.) Defendants filed their Reply in Further Support of their Motion To
Dismiss on July 30, 2018. (See Defs.’ Mem. of Law in Further Supp. of Mot. To Dismiss
(“Defs.’ Reply”) (Dkt. No. 24).)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation
marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the allegations
in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to
relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims
across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will
8
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense. But where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—’that
the pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed.
R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
In considering Defendants’ Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the
Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must
“construe[] [his complaint] liberally and interpret[] [it] to raise the strongest arguments that [it]
suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation
marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a
pro se party from compliance with relevant rules of procedure and substantive law.” Bell v.
Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted);
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks omitted). However, when the Plaintiff is pro se, the Court may consider “materials
9
outside the complaint to the extent that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)
(quotation marks omitted), including, “documents that a pro se litigant attaches to his opposition
papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)
(italics omitted), statements by the plaintiff “submitted in response to [a] defendant’s request for
a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL
5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents that the plaintiff[] either possessed or
knew about and upon which [he or she] relied in bringing the suit,” Rothman v. Gregor, 220 F.3d
81, 88 (2d Cir. 2000).
B. Eighth Amendment Deliberate Indifference Claim
Defendants argue that Plaintiff fails to state an Eighth Amendment claim because his skin
condition was not sufficiently serious and the delay in providing him medication was not so
unreasonable as to satisfy the objective standard of deliberative indifference. (Defs.’ Mem. 1, 4–
5; Defs.’ Reply 2–7.) Defendants also argue that disagreements about medication choice and
dosage, and post hoc proven ineffectiveness of medication, do not satisfy the subjective standard
of deliberate indifference. (Defs.’ Mem.1, 5–10; Defs.’ Reply 8–10.)
1. Applicable Law
“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)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A convicted prisoner’s claim of deliberate
indifference to his medical needs by those overseeing his care is analyzed under the Eighth
Amendment because it is an allegation that his “conditions of confinement [are] a form of
punishment” and thus are a “violation of [the] Eighth Amendment right to be free from cruel and
10
unusual punishments.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). To state a deliberate
indifference claim, Plaintiff must plausibly allege (1) “that he suffered a sufficiently serious
constitutional deprivation,” and (2) that Defendants “acted with deliberate indifference.”
Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017).
“The first requirement is objective: the alleged deprivation of adequate medical care must
be sufficiently serious.” Spavone, 719 F.3d at 138 (citation and quotation marks omitted). In
other words, “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) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Analyzing this objective
requirement involves two inquiries: “whether the prisoner was actually deprived of adequate
medical care,” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006), and “whether the
inadequacy in medical care is sufficiently serious,” which in turn “requires the [C]ourt to
examine how the offending conduct is inadequate and what harm, if any, the inadequacy has
caused or will likely cause the prisoner,” id. at 280 (citing Helling v. McKinney, 509 U.S. 25, 32–
33 (1993)). “There is no 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 suggested the following non-exhaustive list of
factors to consider when evaluating an inmate’s medical condition: “(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)).
11
“The second requirement is subjective: the charged officials must be subjectively reckless
in their denial of medical care.” Spavone, 719 F.3d at 138 (citation omitted). This means that
the defendant must “appreciate the risk to which a prisoner was subjected,” and have a
“subjective awareness of the harmfulness associated with those conditions.” Darnell, 849 F.3d
at 35; see also Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (“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.”
(citation and quotation marks omitted)). In other words, “[i]n medical-treatment cases not
arising from emergency situations, the official’s state of mind need not reach the level of
knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted
with deliberate indifference to inmate health.” Id. (citation and quotation marks omitted). A
defendant’s awareness of the risk of serious harm can be established through “inference from
circumstantial evidence,” including “from the very fact that the risk was obvious.” Farmer v.
Brennan, 511 U.S. 825, 842 (1994). However, “mere negligence” is insufficient to state a claim
for deliberate indifference. Walker, 717 F.3d at 125 (quoting Farmer, 511 U.S. at 835). Neither
does “mere disagreement over the proper treatment . . . create a constitutional claim,” and
accordingly, “[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.” Chance, 143 F.3d at
703.
2. Application
a. Objective Prong
“A skin rash is generally insufficient to meet the objective requirement of a sufficiently
grave and serious condition giving rise to a deliberate indifference claim.” Purdie v. City of New
12
York, No. 10-CV-5802, 2011 WL 1044133, at *3–4 (S.D.N.Y. Mar. 15, 2011) (dismissing
deliberate indifference claim where plaintiff alleged “only a ‘bad itch’ on his penis and arms”
(citing inter alia Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (per curiam))); see also
Cooper v. Orange County, No. 15-CV-10075, 2017 WL 3309754, at *5 (S.D.N.Y. Aug. 2, 2017)
(holding that the plaintiff failed to allege his skin rash was sufficiently serious where “the only
stated symptoms of which were an undescribed level and duration of pain, and eventually
scarring,” and where the plaintiff did “not allege that the rash caused him to suffer chronic and
substantial pain or that it significantly affected his daily activities”), appeal dismissed, No. 172815, 2018 WL 1276746 (2d Cir. Jan. 24, 2018); Ahlers v. Kaskiw, No. 12-CV-501, 2014 WL
4184752, at *10 (N.D.N.Y. Aug. 21, 2014) (holding that the plaintiff’s skin rash and eczema
were not sufficiently serious medical conditions to meet the objective element of the deliberate
indifference standard); Melendez v. Costello, No. 12-CV-6226, 2013 WL 5937052, at *7
(W.D.N.Y. Nov. 1, 2013) (holding that the “[p]laintiff cannot establish the ‘serious medical
need’ component of a deliberate indifference claim based on his eczema” (citing Sledge, 564
F.3d at 107)); Green v. Cent. Office Review Comm., No. 06-CV-6312, 2012 WL 1191596, at *13
& n.5 (W.D.N.Y. Apr. 9, 2012) (holding that the plaintiff failed to demonstrate that his skin
condition, Pseudofolliculitis Barbae, “a facial skin condition that occurs when hair follicles curve
back into the skin [and] become inflamed,” was sufficiently serious); Swindell v. Supple, No. 02CV-3182, 2005 WL 267725, at *7 (S.D.N.Y. Feb. 3, 2005) (holding that a “skin condition . . .
producing excessive itching, scratching, soreness from scratching, and cracked skin” on the
plaintiff’s arms, legs, and torso, and bleeding on the legs, was not a condition of “an urgent and
substantially painful nature as would satisfy the” seriousness of deprivation requirement (citation
omitted)); Samuels v. Jackson, No. 97-CV-2420, 1999 WL 92617, at *1–3 (S.D.N.Y. Feb. 22,
13
1999) (holding that inmate’s various skin conditions of “papules, vesicles, pustules, burrows, and
intense itching” causing “constant scratching of the affected areas, causing open sores, and
abrasions” and “permanent scars” did not constitute a sufficiently serious medical condition
(alteration omitted)).
However, “if the prisoner is receiving on-going treatment and the offending conduct is an
unreasonable delay or interruption in that treatment, the seriousness inquiry focuses on the
challenged delay or interruption in treatment rather than the prisoner’s underlying medical
condition alone.” Salahuddin, 467 F.3d at 280 (citation and quotation marks omitted); see also
Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (noting that the “seriousness of a delay in
medical treatment may be decided by reference to the effect of delay in treatment . . .
[c]onsequently, delay in medical treatment must be interpreted in the context of the seriousness
of the medical need, deciding whether the delay worsened the medical condition, and
considering the reason for delay” (citation and quotation marks omitted)). “Where temporary
delays or interruptions in the provision of medical treatment have been found to satisfy the
objective seriousness requirement in [the Second] Circuit, they have involved either a needlessly
prolonged period of delay, or a delay which caused extreme pain or exacerbated a serious
illness.” Ferguson v. Cai, No. 11-CV-6181, 2012 WL 2865474, at *4 (S.D.N.Y. July 12, 2012).
For example, in Smith, an HIV positive inmate alleged that prison defendants deprived him of
HIV medication on two occasions, first for seven days then for five days, despite his repeated
requests for medication. See 316 F.3d at 181. The Second Circuit concluded that in assessing
the seriousness of the plaintiff’s medical condition, it was appropriate to consider that the
plaintiff failed to present any evidence “that the two alleged episodes of missed medication
resulted in permanent or on-going harm to his health” and whether the plaintiff had been
14
“exposed to an unreasonable risk of future harm due to the periods of missed HIV medication.”
Id. at 188–89. With respect to delays in providing treatment for serious skin conditions, courts in
the Second Circuit have rarely held that a “[p]laintiff’s discomfort during [a] period of
misdiagnosis and his resulting scars” satisfy the objective requirement of a deliberate
indifference claim. Samuels, 1999 WL 92617, at *2 (dismissing the inmate’s deliberate
indifference claim related to his delay in effective treatment for scabies because, even though the
“plaintiff’s condition was initially misdiagnosed and the two medications initially prescribed
appear not to have worked,” such allegations “establish nothing more than ordinary
negligence”); see also Cooper, 2017 WL 3309754 at *5 (dismissing inmate the plaintiff’s
deliberate indifference claim related to his delay in receiving treatment for his skin rash because
during the alleged delay the defendant had “repeatedly treated [the] plaintiff for his complainedof condition”).9
9
The Court is aware of only one case in the Second Circuit in which a plaintiff
successfully stated an Eighth Amendment medical deliberate indifference claim based on a skin
condition. In Gonzalez v. Correctional Management Health Care, 17-CV-1402, 2018 WL
5817004 (D. Conn. Nov. 6, 2018), the plaintiff was treated by a prison doctor for “painful
tingling, itching, and burning skin with various creams/ointments and oral medications” from
2012 to June 2016. Id. at *7. In early 2014, after taking an oral medication for nine months, the
plaintiff reported to his doctor that the medication was not alleviating his symptoms. At that
time, the doctor did not prescribe new treatment for the skin condition but instead ordered other
testing related to the plaintiff’s liver. Id. In February 2015, the doctor finally prescribed a new
drug that alleviated the plaintiff’s skin symptoms. Subsequently, the doctor repeatedly adjusted
the dosages of the new drug to try and optimize its effectiveness. The court concluded that the
plaintiff alleged a plausible claim that the doctor was deliberately indifferent to his “painful and
itchy skin condition” with respect to the period from early 2014 to February 2015, during which
the plaintiff had no effective medication, but not with respect to the periods before and after
because during those periods the doctor prescribed various ointments and oral medications to try
and alleviate the plaintiff’s symptoms. Id. at *8. The Gonzalez court, however, did not consider
the threshold question of whether a skin rash is a serious medical condition, or whether the delay
or interruption in treatment was serious enough to satisfy the objective requirement of a
deliberate indifference claim, nor the line of cases addressing skin conditions in the medical
deliberate indifference context to which this Court cites above. In any event, the year-long delay
in providing treatment to the plaintiff in Gonzalez, is readily distinguishable from the seven15
Here, Plaintiff alleges an interruption of treatment. From December 24, 2013, to May 21,
2014, Plaintiff took Vistaril, which effectively treated his “attacks.” (Compl. 7, 25.) Then,
starting on May 21, 2014, Thomas-Walsh prescribed him Atarax, which did not relieve his
symptoms, so that Plaintiff continued to experience his painful symptoms. (Compl. 7, 29.)
Plaintiff took Atarax for three days but continued to have attacks, and reported this to ThomasWalsh eight days later at a follow-up appointment. She allegedly responded, “No! I’m not
giving you anything! [G]et out!” (Pl.’s Opp’n 4.) Plaintiff was not given any other medication
until July 8, 2014, at which time he was given Benadryl. (Compl. 7, 23.) During Plaintiff’s
follow-up visit with the dermatologist on September 18, 2014, the dermatologist prescribed
Vistaril again. (Pl.’s Opp’n 2.)
The Court is sympathetic to Plaintiff’s contentions that he was in serious pain. However,
a skin rash or condition, even one that involves bleeding and scarring, is not a medical condition
that gives rise to an Eighth Amendment deliberate indifference claim, even where there are
delays in treatment. See Ahlers, 2014 WL 4184752, at *10 (holding that the plaintiff’s skin rash
and eczema were not sufficiently serious medical conditions to meet the objective element of the
deliberate indifference standard); Swindell, 2005 WL 267725 at *7 (holding that a “skin
condition . . . producing excessive itching, scratching, soreness from scratching, and cracked
skin” on the plaintiff’s arms, legs, and torso, and bleeding on the legs, was not a condition of “an
urgent and substantially painful nature as would satisfy the” seriousness of deprivation
requirement); Samuels, 1999 WL 92617, at *1–3 (holding that an inmate’s various skin
conditions of “papules, vesicles, pustules, burrows, and intense itching” causing “constant
week interruption in treatment in the present case during which Plaintiff allegedly had no
medication.
16
scratching of the affected areas, causing open sores, and abrasions” and “permanent scars” did
not constitute a sufficiently serious medical condition). Plaintiff has not alleged that his
condition has impacted his daily activities and he has not alleged any facts that establish that his
condition was any worse than the similar types of skin conditions that courts in the Second
Circuit have repeatedly found are not serious medical conditions. As to the delay in treatment
here—specifically the period from May 21, 2014 to July 8, 2014, during which Plaintiff had no
medication before he was prescribed Benadryl—Plaintiff has not alleged that his condition
worsened during this period, or that he will suffer any long-term consequences because of the
delay in treatment. (Compl. 7, 23.) Plaintiff was again prescribed Vistaril by September 18,
2014—within three months of his initial complaint. (Pl.’s Opp’n 2.) And during the threemonth period, Plaintiff was seen by Thomas-Walsh and the dermatologist on a number of
occasions. (Compl. 7, 23, 25, 27; Pl.’s Opp’n 2, 4–5, 20.) Cf. Balkum v. Unger, No. 06-CV6578, 2009 WL 290439, at *5 (W.D.N.Y. Feb. 5, 2009) (granting summary judgment in favor of
defendants where the “record indicate[d] that [one of the defendants] was attentive to [the]
[p]laintiff’s medical needs, as shown by the fact that [the defendant] provided pain medication
and diagnostic testing . . . .”). The Court therefore concludes that Plaintiff has failed to state an
objectively serious medical condition.
b. Subjective Prong
Plaintiff also has insufficiently pleaded the subjective element required to state a claim
under the Eighth Amendment. Deliberate indifference “requires that the charged official act or
fail to act while actually aware of a substantial risk that serious inmate harm will result.”
Nielson, 746 F.3d at 63 (citation omitted); see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir. 1994) (stating that “a prison official does not act in a deliberately indifferent manner unless
17
that official ‘knows of and disregards an excessive risk to inmate health or safety’” (quoting
Farmer, 37 F.3d at 837)).
Here, Plaintiff alleges that on May 21, 2014, Thomas-Walsh intentionally interrupted his
use of Vistaril to hurt him and that she did this knowing that Atarax was not strong enough to
alleviate his severe symptoms. (Compl. 7, 25; Pl.’s Opp’n 2, 4–5, 12.) Plaintiff alleges he told
Thomas-Walsh in late May 2014 that the new medication was not working, and that she told him
she was not giving him any other medication. (Pl.’s Opp’n 4.) Plaintiff’s submissions make
clear, however, that his doctors placed him on various medications during the relevant time
period and seemingly disagreed as to which medication was appropriate. On July 8, 2014,
Plaintiff was prescribed Benadryl. (Compl. 7, 23.) On September 18, 2014, Plaintiff was placed
back on Vistaril by the dermatologist. (Pl.’s Opp’n 2.) On January 14, 2015, CORC noted with
approval that Plaintiff was prescribed Vistaril and Benadryl for itch relief—implying that this
was an appropriate combination. (Compl. 31.) Dr. Bernstein, on the other hand, had concluded
in his June 12, 2014 response to Plaintiff’s complaint that Thomas-Walsh correctly prescribed
Atarax. (Id. at 21.) The Superintendent also concluded on September 8, 2014, that Atarax was
an appropriate drug for Plaintiff to take. (Id. at 29.)
“[C]ourts have repeatedly declined to find that a medical provider was deliberately
indifferent to an inmate’s medical needs” when a plaintiff challenges “the type and quantity of
pain medication.” Williams v. Williams, No. 13-CV-3154, 2015 WL 568842, at *5 (S.D.N.Y.
Feb. 11, 2015) (citation omitted); see also Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011)
(holding that an inmate failed to state a claim for deliberate indifference where he alleged that
stronger pain medication was necessary to treat his medical condition); Veloz v. New York, 339
F. Supp. 2d 505, 525 (S.D.N.Y. 2004) (“Differences in opinion by a doctor and a prisoner over
18
the appropriate medication to be prescribed is a disagreement over a treatment plan and does not
implicate the Eighth Amendment.” (citations omitted)), aff’d, 178 F. App’x 39 (2d Cir. 2006).
Here, there was disagreement among Plaintiff’s doctors as to what the correct medication for
Plaintiff was. That Atarax turned out to be ineffective and that Vistaril was ultimately prescribed
to Plaintiff for long-term use does not give rise to an Eighth Amendment violation. See Harris v.
Westchester Cty. Med. Ctr., No. 08-CV-1128, 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011)
(“As for misdiagnosis, without more, allegations of negligent treatment and misdiagnosis do not
state a cause of action under the Eighth Amendment.” (citation, alteration and internal quotation
marks omitted)); Ravenell v. Van der Steeg, No. 05-CV-4042, 2007 WL 765716, at *6 (S.D.N.Y.
Mar. 14, 2007) (“While a plaintiff may be able to state an Eighth Amendment claim where a
doctor acts without medical justification, no claim is stated when a doctor disagrees with the
professional judgment of another doctor.” (citation and quotation marks omitted)).
Plaintiff’s conclusory allegation that Thomas-Walsh intended to hurt him by prescribing
what Plaintiff describes as a “weaker medication,” (Pl.’s Opp’n 5), does not amount to her
having disregarded an “excessive risk to [Plaintiff’s] health or safety,” Hathaway, 37 F.3d at 66;
see also Evans v. Albany Cty. Corr. Facility, No. 05-CV-1400, 2009 WL 1401645, at *9
(N.D.N.Y. May 14, 2009) (noting that “a showing of deliberate indifference requires more than
just vague and conclusory allegations” (citation and quotation marks omitted)). Plaintiff does
not allege what “excessive risk” to his health and safety Thomas-Walsh and Dr. Bernstein were
aware of and disregarded. Instead, Plaintiff alleges that Thomas-Walsh and Dr. Bernstein were
aware that he had an allegedly severe skin condition and that there was back-and-forth about
what itch medication to prescribe him. After all, Plaintiff does not allege that Thomas-Walsh
denied him medicine of any kind. Plaintiff’s conclusory allegations thus do not plausibly allege
19
that Thomas-Walsh and Dr. Bernstein were deliberately indifferent to his medical condition.
Plaintiff’s Complaint in fact recounts the numerous medical appointments Plaintiff had with
Thomas-Walsh and the dermatologist related to his skin condition during the period in question,
and the treatment he received during those appointments. (Compl. 7, 23, 25, 29; Pl.’s Opp’n 2,
20.) Thomas-Walsh prescribed Plaintiff Vistaril in December 2013, (id. at 7, 25), Atarax in May
2014, (id. at 7, 29), Benadryl in July 2014, (Compl. 23), and referred him to the dermatologist in
August 2014, (Pl.’s Opp’n 20). The dermatologist ultimately placed him back on Vistaril in
September 2014. (Id. at 2.) Simply put, Plaintiff’s medical needs were not ignored. Therefore,
Plaintiff’s Eighth Amendment claim is dismissed as to Thomas-Walsh and Dr. Bernstein.
C. First Amendment Retaliation Claim
Construing the Complaint liberally, as this Court must, Plaintiff states a claim for
retaliation. Plaintiff alleges that Defendants denied him Vistaril, the medication that was
effective in treating his Hives, “in retaliation for [g]rievances filed against them,” (Compl. 5),
and claims that Thomas-Walsh intentionally prescribed Atarax “knowing it was not strong
enough” to treat his Hives in retaliation for his filing grievances against her in February 2014.
(Pl.’s Opp’n 5). Defendants argue that “[t]here is no retaliation where the inmate is able to file
grievances and lawsuits” and that any “alleged adverse action [Defendants took] did not have an
actual deterrent effect on [Plaintiff’s] exercise of his First Amendment rights,” because Plaintiff
was able to file grievances and this lawsuit after the allegedly retaliatory conduct. (Defs.’ Reply
10.)
1. Applicable Law
“Prisoners have a constitutional right to petition the government, and it is a violation of
§ 1983 for prison officials to retaliate against prisoners for the exercise of that right.” Bartley v.
20
Collins, No. 95-CV-10161, 2006 WL 1289256, at *4 (S.D.N.Y. May 10, 2006) (citing Gayle v.
Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)). To state a First Amendment retaliation claim,
Plaintiff must allege “(1) that the speech or conduct at issue was protected, (2) that . . .
[D]efendant took adverse action against . . . [P]laintiff, and (3) that there was a causal connection
between the protected conduct and the adverse action.” Holland v. Goord, 758 F.3d 215, 225
(2d Cir. 2014) (citation, alteration, and quotation marks omitted); see also Washington v.
Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *9 (S.D.N.Y. Mar. 30, 2015) (same).
“[B]ecause virtually any adverse action taken against a prisoner by a prison official—even those
otherwise not rising to the level of a constitutional violation—can be characterized as a
constitutionally proscribed retaliatory act,” the Second Circuit has instructed district courts to
“approach prisoner retaliation claims with skepticism and particular care.” Dolan v. Connolly,
794 F.3d 290, 295 (2d Cir. 2015) (citation and quotation marks omitted); see also Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by prisoners are prone to abuse
since prisoners can claim retaliation for every decision they dislike.” (citation and quotation
marks omitted)).
2. Application to Thomas-Walsh
a. Protected Speech
“It is well-established that inmates’ filing of grievances is a constitutionally protected
exercise of their right under the First Amendment to petition the government for the redress of
grievances.” Mateo v. Bristow, No. 12-CV-5052, 2013 WL 3863865, at *4 (S.D.N.Y. July 16,
2013) (citations omitted); see also Dolan, 794 F.3d at 294 (“It is well established that retaliation
against a prisoner for pursuing a grievance violates the right to petition [the] government for the
redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable
21
under § 1983.” (citation and quotation marks omitted)); Houston v. Zen Zen, 388 F. Supp. 2d
172, 174 (W.D.N.Y. 2005) (“The filing of lawsuits or prison grievances is a constitutionally
protected activity.” (citing Graham, 89 F.3d at 80)); Baskerville v. Blot, 224 F. Supp. 2d 723,
731 (S.D.N.Y. 2002) (noting that a “prisoner’s filing of a grievance” and “the filing of a lawsuit”
are “constitutionally protected activit[ies]” (citations omitted)). Here, Plaintiff filed a grievance
on February 24, 2014 alleging that Thomas-Walsh conducted an HIV test on him without his
consent and requesting a change of provider. (Pl.’s Opp’n 12.) When his grievance was denied,
Plaintiff appealed that decision on May 7, 2014. (Id.) Plaintiff alleges that Thomas-Walsh
intentionally interrupted his use of Vistaril, which alleviated his symptoms, “to cause [him] pain
in retaliation for [g]rievances that were filed on [February 24, 2014].” (Id. at 2.) Plaintiff thus
engaged in protected activity.
b. Adverse Action
An adverse action is any “retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights.” Davis v. Goord,
320 F.3d 346, 353 (2d Cir. 2003) (citation omitted). In determining whether a prison official’s
conduct constitutes adverse action, “the court’s inquiry must be tailored to the different
circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to
tolerate more than average citizens.” Id. (citation, quotation marks, and alterations omitted).
“[T]he test, however, is not whether [the] plaintiff . . . himself was chilled (if that were the
standard, no plaintiff likely would prevail, for the very commencement of a lawsuit could be
used by [the] defendants to argue that the plaintiff was not chilled).” Id. at 353–54 (citation
omitted).
22
“[I]t is plausible that a denial of medical evaluation, treatment, and adequate pain
medication would suffice to deter a similarly situated individual of ordinary firmness from filing
a constitutionally protected grievance against a prison doctor.” Burton v. Lynch, 664 F. Supp. 2d
349, 367 (S.D.N.Y. 2009) (citation omitted); see also Arriaga v. Gage, No. 16-CV-1628, 2018
WL 1750320, at *10 (S.D.N.Y. April 6, 2018) (holding that the plaintiff’s numerous allegations
that prison doctor interfered with his medical passes, outright denied his requests for treatment
recommended by another doctor, and denied him any treatment while forcing him to wait at sick
call once a week for two months, were sufficient to state an adverse action); Davis, 320 F.3d at
353 (reversing dismissal of a retaliation claim because denial of medically prescribed high fiber
diet and delay in scheduling medical appointment could constitute an adverse action).
Defendants cite Gill v. Pidlypchak, 389 F.3d 379 (2d Cir. 2004), to argue that there was
no retaliation here because Plaintiff was able to file further grievances and this lawsuit after the
allegedly retaliatory conduct occurred. Defendants represent Gill as a case in which the First
Amendment retaliation claim was ultimately unsuccessful because the plaintiff was not himself
deterred from filing further grievances. (Defs.’ Reply 10.) This, is a curious position because in
Gill, the Second Circuit actually vacated the district court’s dismissal of Plaintiff’s First
Amendment retaliation claim. Gill, 389 F.3d at 384. The Court explained that although
“subjective chilling is a general requirement, where a plaintiff alleges that the protected conduct
at issue is the prior filing of a grievance or lawsuit against the defendant, it would be unfair in
the extreme to rule that plaintiff’s bringing of the subsequent claim in itself defeated his claim of
retaliation.” Id. at 383. Thus, it is not dispositive that Plaintiff here was able to file further
grievances even after the alleged adverse action of switching his medication was taken.
23
Contrary to Defendants’ argument, in evaluating Plaintiff’s retaliation claim, the Court
asks whether the denial of medication that allegedly occurred would “deter a similarly situated
individual of ordinary firmness from filing a constitutionally protected grievance against a prison
doctor.” Burton, 664 F. Supp. 2d at 367. Plaintiff alleges that from May 21, 2014, when
Thomas-Walsh prescribed him Atarax, until he was given Benadryl on July 8, 2014, (Compl. 7,
23), for seven weeks, he was without any medication at all. Ultimately, Plaintiff was without
Vistaril between May 21 and September 18, 2014. (Pl.’s Opp’n 2.) During this time, Plaintiff
alleges he was in excruciating pain. According to Plaintiff, his medication was withheld and
delayed in retaliation for filing a grievance against Thomas-Walsh. (Id. at 2, 12.) The Court
concludes that withholding effective medication for seven weeks in retaliation for filing a
grievance constitutes an adverse action under the circumstances Plaintiff alleges. See Olutosin v.
Lee, No. 14-CV-685, 2016 WL 2899275, *10 n.5 (S.D.N.Y. May 16, 2016) (denying motion to
dismiss First Amendment retaliation claim where one of the alleged adverse actions was delay in
providing inmate care for his injured eye after a fight and stating “general allegations of denial of
medical care are sufficient to allege an adverse action”); Walker v. Schriro, No. 11-CV-9299,
2013 WL 1234930, at *9 (S.D.N.Y. Mar. 26, 2013) (stating that “[d]enial of medical care that
could address ‘extreme pain’ surely qualifies as an [adverse] action”) (quoting Dawes v. Walker,
239 F.3d 489, 493 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002))); Williams v. Fisher, No. 02-CV-4558, 2003 WL 22170610, at *10–11
(S.D.N.Y. Sept. 18, 2003) (“Allegations that [a prison doctor] revoked Plaintiff’s necessary
medical rehabilitative treatment because he filed a grievance are sufficient to satisfy the second
element of a retaliation claim [for the purposes of a motion to dismiss.]”).
24
Cases in which courts in the Second Circuit have found the denial of medical treatment to
not amount to an adverse action have involved de minimis injuries or denials of medication—for
example, one missed dose of medication, or minor delays in receipt of medication. See, e.g.,
Bumpus v. Canfield, 495 F. Supp. 2d 316, 326–27 (W.D.N.Y. 2007) (holding that ordering
allegedly retaliatory urine test was not an adverse action where plaintiff failed to allege that test
was not administered for legitimate purpose and because urine tests are a fact of prison life and
taking one test would not chill a prisoner of ordinary firmness); Davidson v. Bartholome, 460 F.
Supp. 2d 436, 447 (S.D.N.Y. 2006) (holding that nurse’s refusal to administer prisoner a single
dose of an over-the-counter pain reliever was de minimis, where prisoner had received his
medication a few hours earlier and received more medication a few hours after nurse allegedly
refused to treat him). An alleged seven-week delay in receiving any effective medication, during
which an inmate is allegedly in severe pain and bleeding, is not de minimis and indeed amounts
to an adverse action.
c. Causal Connection
The third prong requires a “causal connection” between the protected conduct and the
adverse action. Garcia v. Watts, No. 08-CV-7778, 2009 WL 2777085, at *11 (S.D.N.Y. Sept. 1,
2009); see also Dawes, 239 F.3d at 492 (holding that in order to satisfy the causation
requirement, allegations must be “sufficient to support the inference that the speech played a
substantial part in the adverse action” (citation, alteration, and quotation marks omitted)). A
plaintiff must allege facts suggesting that the protected conduct was a “‘substantial or motivating
factor’ in the prison officials’ decision to take action against [him].” Smith v. Christopher, No.
06-CV-1196, 2008 WL 4283519, at *10 (N.D.N.Y. Sept. 18, 2008) (citing Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). “The element of intent [in a First
25
Amendment retaliation claim] requires an assessment of what evidence, if any, demonstrates that
Defendants’ conduct “was motivated by or substantially caused by [Plaintiff’s] exercise of free
speech.” Van Dunk v. Brower, No. 11-CV-4564, 2013 WL 5970172, at *8 (S.D.N.Y. Nov. 7,
2013) (ultimately quoting Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994));
Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357, 371 (S.D.N.Y.
2011) (same); see also Washington v. Afify, 681 F. App’x 43, 46 (2d Cir. 2017) (reinstating
retaliation claim in part because there was evidence of “retaliatory animus” where plaintiff
alleged that officers confronted him directly about his practice of filing grievances before they
issued the allegedly false misbehavior report against him); Fann v. Graham, No. 15-CV-1339,
2018 WL 1399331, at *9 (N.D.N.Y. Jan. 11, 2018) (denying summary judgment motion where
there was evidence the correction officer made comments to plaintiff that could be interpreted as
threatening before issuing him an allegedly false misbehavior report), adopted by 2018 WL
1399340 (N.D.N.Y Mar. 19, 2018).
Circumstantial facts indicating a retaliatory motive include “(i) the temporal proximity
between the protected activity and the alleged retaliatory act; (ii) the inmate’s prior good
disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the
defendant concerning his motivation.” Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y.
2002) (citing Colon v. Coughlin, 58 F.3d 865, 872–73 (2d Cir. 1995)). There is no “bright line to
define the outer limits beyond which a temporal relationship is too attenuated to establish a
causal relationship,” Gorman–Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir.
2001), so courts determine “the permissible inferences that can be drawn from temporal
proximity in the context of particular cases,” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).
26
Here, Plaintiff filed a grievance against Thomas-Walsh on February 24, 2014 and
appealed the denial of that grievance on May 7, 2014. (Pl.’s Opp’n 12.) On May 21, 2014, he
was switched off of the medication that he alleges had effectively treated his “attacks” since
December 24, 2013. (Compl. 7, 25.) This three-month gap between the protected speech and
the alleged adverse action alone plausibly established an inference of causal connection. See
Espinal, 558 F.3d at 129 (finding that a six-month gap between the protected conduct and
adverse action were sufficient to support an inference of causal connection). Additionally, by
opinion dated January 14, 2015, CORC accepted Plaintiff’s grievance request in part, noting with
approval that “although not usually prescribed for long term use, [Plaintiff] is currently
prescribed Vistaril (hydroxyzine pamoate), and Benadryl for itch relief.” (Compl. 31.) Thus,
Plaintiff’s allegation that he needed Vistaril was arguably “vindicated at a hearing on the
matter.” Burton, 664 F. Supp. 2d at 368 (quotation marks omitted). Plaintiff does not allege an
outright statement by Thomas-Walsh that she switched his medication in retaliation for his filing
of a grievance, but he does allege that he told her the new medication was not working for him at
all and she responded, “No! I’m not giving you anything! [G]et out!” (Pl.’s Opp’n 4.) And
perhaps most importantly, Plaintiff alleges that Thomas-Walsh intentionally interrupted his
medication to hurt him, knowing Atarax was not strong enough to alleviate his severe symptoms,
because he filed a grievance against her related to the HIV testing and asked for a new medical
provider. (Id. at 2, 5.) Taken together, Plaintiff’s allegations about the timing of the change in
prescription, CORC’s ultimate finding, and Thomas-Walsh’s words and conduct, plausibly
allege a causal connection between the February 24, 2014 grievance and the denial of medication
to Plaintiff for seven weeks. See Arriaga, 2018 WL 1750320, at *10 (holding that plaintiff
showed a causal connection where he alleged that within a week of filing a grievance against the
27
prison doctor, that same doctor issued him a limited medical pass for only a cane, excluding
other prescribed aids recommended by another doctor, where that prison doctor had previously
just signed plaintiff’s pass without alteration); Burton, 664 F. Supp. 2d at 367–68 (concluding
inmate stated a prima facie case of retaliation under the First Amendment where inmate alleged
prison doctor retaliated against him for filing a grievance by denying him medical evaluation,
treatment, and adequate pain medication, where all levels of the inmate grievance process
determined that doctor had prescribed prisoner a medication to which he was allergic, and where
doctor failed to detect a condition which was later determined to require surgery on prisoner’s
elbow). Plaintiff therefore plausibly alleges a First Amendment retaliation claim against
Thomas-Walsh and Defendants’ Motion To Dismiss with respect to this claim against ThomasWalsh is denied.10
10
The Court is aware that some courts in the Second Circuit have concluded that there
can be no retaliation where there is no deliberate indifference. See, e.g., Cole v. Levitt, No. 07CV-767, 2009 WL 4571828, at *10 (W.D.N.Y. Dec. 4, 2009) (stating that no medical retaliation
occurred where there was no evidence of medical deliberate indifference); Tatta v. Wright, 616
F. Supp. 2d 308, 320 (N.D.N.Y. 2007) (dismissing plaintiff’s claim that he was denied adequate
medical care in retaliation for filing grievances where plaintiff failed to establish the denial of
adequate medical care). However, these courts did not expressly consider that the standards for
what amounts to an instance of deliberate indifference under the Eighth Amendment and what
constitutes an adverse action under the First Amendment are different. This Court is persuaded
by the reasoning in Olutosin, 2016 WL 2899275, where the court considered the separate Eighth
and First Amendment standards, and concluded that, “[t]hough the Court previously concluded
that [p]laintiff failed to state a claim for deliberate indifference . . . general allegations of denial
of medical care are sufficient to allege an adverse action.” Id. at *10 n.5. Thus, although the
Court here concludes that Plaintiff has failed to allege an Eighth Amendment deliberate
indifference claim, it nonetheless concludes that Plaintiff has alleged an adverse action in the
withholding of medical treatment as part of a First Amendment retaliation claim.
28
3. Dr. Bernstein
a. Supervisory Liability
A supervisory official cannot be held liable in a § 1983 action based on respondeat
superior. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); see also Iqbal, 556 U.S. at
676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each [g]overnment-official defendant, through the official’s own individual actions, has violated
the Constitution.”). “‘Absent some personal involvement by [the supervisory official] in the
allegedly unlawful conduct of his subordinates,’ he cannot be liable under [§] 1983.”
Hernandez, 341 F.3d at 144–45 (quoting Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987)).
“Holding a position in a hierarchical chain of command, without more, is insufficient to support
a showing of personal involvement.” Groves v. Davis, No. 11-CV-1317, 2012 WL 651919, at *6
(N.D.N.Y. Feb. 28, 2012) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)); see
also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (noting that a “mere ‘linkage in the
prison chain of command’ is insufficient to implicate a state commissioner of corrections . . . in
a § 1983 claim” (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985))). Therefore, “a
plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Moreover, “‘direct participation’
as a basis of liability in this context requires intentional participation in the conduct constituting
a violation of the victim’s rights by one who knew of the facts rendering it illegal.” Provost v.
City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001).
The Second Circuit has held that personal involvement by a supervisor necessary to state
a claim under § 1983 may be found where: “(1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the violation through a report
29
or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4)
the defendant was grossly negligent in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to
act on information indicating that unconstitutional acts were occurring.” Colon, 58 F.3d at 873
(citation omitted).
Some courts have questioned the continuing applicability of these factors based upon the
heightened pleading requirements set forth in Iqbal. See, e.g., Bellamy v. Mount Vernon Hosp.,
No. 07-CV-1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (holding that “[o]nly the
first and third part of the Colon categories pass Iqbal’s muster”), aff’d, 387 F. App’x 55 (2d Cir.
2010). However, the Second Circuit has not yet ruled on the issue. See Carpenter v. Apple, No.
15-CV-1269, 2017 WL 3887908, at *9 (N.D.N.Y. Sept. 5, 2017) (citing Raspardo v. Carlone,
770 F.3d 97, 117 (2d Cir. 2014) (“We have not yet determined the contours of the supervisory
liability test . . . after [Iqbal] [.]”) (collecting cases)). Notwithstanding the Second Circuit’s
silence, the majority of courts considering the issue have determined that “even after the U.S.
Supreme Court’s decision in Iqbal, these ‘categories supporting personal liability of supervisors
still apply as long as they are consistent with the requirements applicable to the particular
constitutional provision alleged to have been violated.’” Hernandez v. Goord, No. 01-CV-9585,
2013 WL 2355448, at *7 (S.D.N.Y. May 29, 2013) (citations and quotation marks omitted); see
also Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017)
(holding that the five categories “still control[] with respect to claims that do not require a
showing of discriminatory intent” post-Iqbal); Manning v. Griffin, No. 15-CV-3, 2016 WL
1274588, at *12 (S.D.N.Y. Mar. 31, 2016) (holding that the Colon factors “remain relevant” only
30
to the extent that the type of conduct sufficient for supervisory liability under Colon “could serve
as conduct that supports a theory of direct liability” (citation omitted)); Plunkett v. City of New
York, No. 10-CV-6778, 2011 WL 4000985, at *9 (S.D.N.Y. Sept. 2, 2011) (“Colon remains the
standard for establishing personal involvement by supervisory officials under 42 U.S.C.
§ 1983.”).
Here, the underlying First Amendment retaliation violation requires a showing that the
protected conduct was a “‘substantial or motivating factor’ in the prison officials’ conduct,”
Smith, 2008 WL 4283519, at *10, or that the conduct “was motivated by or substantially caused
by [Plaintiff’s] exercise of free speech,” Tomlins, 812 F. Supp. 2d at 371.
b. Application
Dr. Bernstein was the Facility Health Services Director and Nurse Administrator.
(Compl. 5.)11 Plaintiff’s sole allegation with respect to Dr. Bernstein is that Plaintiff wrote him a
letter on May 29, 2014 explaining in great detail that Thomas-Walsh had switched him from
Vistaril to Atarax, that the latter was not working, that he was still having terribly painful attacks,
that Thomas-Walsh refused to switch him back to Vistaril, and that Plaintiff was afraid for his
life because he believed Thomas-Walsh was retaliating against him because of a grievance he
filed against her. (Pl.’s Opp’n 15–16.) Plaintiff attached a copy of this letter to his Opposition.
(Id.) Dr. Bernstein responded on June 12, 2014, stating that he had reviewed Plaintiff’s medical
record and concluded that Thomas-Walsh prescribed the correct medication and instructed
Plaintiff to further consult with Thomas-Walsh if the medication continued to not be effective.
11
Plaintiff does not expressly allege that Dr. Bernstein was Thomas-Walsh’s supervisor,
but reading Plaintiff’s Complaint liberally, and taking the fact that Dr. Bernstein responded to
Plaintiff’s letter into consideration, (Compl. 21), the Court considers Plaintiff’s Complaint to
allege that Dr. Bernstein was Thomas-Walsh’s supervisor.
31
(Compl. 21.) Dr. Bernstein also denied Plaintiff’s request to have his primary care provider
changed. (Id.) Plaintiff attached Dr. Bernstein’s response to his Complaint. Moreover, the
Superintendent on September 8, 2014 noted that Thomas-Walsh and Dr. Bernstein together
explained to Plaintiff that Vistaril was not appropriate for long-term use. (Compl. 29.)
Courts in the Second Circuit are divided on whether a supervisor’s “review and denial of
a grievance constitutes personal involvement in the underlying alleged unconstitutional act.”
Burton, 664 F. Supp. 2d at 360 (citation omitted). Judge Sand noted in Burton that some courts
distinguish between the degree of response to an inmate’s grievance—for example, between
summarily denying a grievance and denying it in a detailed response that specifically addresses
the plaintiff’s allegations. See id. This Court finds that distinction persuasive. “A supervisor’s
detailed, specific response to a plaintiff’s complaint suggests that the supervisor has considered
the plaintiff’s allegations and evaluated possible responses. . . . A pro forma response suggests
nothing like that.” Mateo v. Fischer, 682 F. Supp. 2d 423, 430–31 (S.D.N.Y. 2010) (holding that
the plaintiff’s allegations that defendant received his letters, forwarded them to subordinates for
investigation, and sent the plaintiff a response that he provided insufficient information to
support his allegation, “prove only the scantest awareness of [the plaintiff’s] claims” and failed
to allege personal involvement (citation omitted)); see also Keitt v. Schun, No. 11-CV-438, 2014
WL 347053, at *7 (W.D.N.Y. Jan. 30, 2014) (declining to impose supervisory liability on a nurse
administrator to whom the plaintiff had sent a letter complaining about intentional interference
with his pain medication and who responded to the plaintiff that he was “scheduled to see a
medical clinician to assess [his] medical concerns” because the nurse administrator’s
“generalized response to [the] plaintiff’s complaint [was] not sufficient to establish personal
involvement”); Rosario v. Fischer, No. 11-CV-4617, 2012 WL 4044901, at *5–6 (S.D.N.Y.
32
Aug. 28, 2012), adopted by 2012 WL 6681695 (S.D.N.Y. 2012) (holding that a pro forma letter
sent to the plaintiff in response to his complaints did not allege sufficient facts to establish
personal involvement).12
Drawing all reasonable inferences in favor of Plaintiff and reading his Complaint
liberally, the Court concludes that taken together, Plaintiff’s detailed letter to Dr. Bernstein, and
Dr. Bernstein’s response, plausibly suggest that Dr. Bernstein “considered . . . [P]laintiff’s
allegations and evaluated possible responses,” Mateo, 682 F. Supp. 2d at 430–31, and that Dr.
Bernstein’s letter was not just a pro forma response, see Burroughs v. Petron, 138 F. Supp. 3d
182, 221–22 (N.D.N.Y. 2015) (imposing supervisory liability on a defendant the plaintiff sent a
letter detailing the alleged retaliatory conduct where he attached a copy of the letter to his
complaint, but declining to impose supervisory liability on the defendant that the plaintiff alleged
responded to his complaint letter but failed to provide “any specific facts related to this alleged
response”). Therefore, Plaintiff has plausibly alleged personal involvement by Dr. Bernstein and
Defendants’ Motion To Dismiss with respect to Plaintiff’s First Amendment retaliation claim
against Dr. Bernstein is denied.
It appears that even before Iqbal’s prohibition on the imposition of vicarious liability in
§ 1983 cases, courts in the Second Circuit declined to impose supervisory liability where a
plaintiff made the conclusory allegation that he sent a letter to a prison supervisor alleging a
deprivation of a right, but failed to allege sufficient further facts about the contents of the letter
or the supervisor’s response. See, e.g., Applegate v. Annucci, No. 02-CV-276, 2008 WL
2725087, *18 (N.D.N.Y. July 10, 2008) (holding that letter written to superintendent, without
response, was insufficient to find personal involvement or awareness on behalf of
superintendent); Amaker v. Goord, No. 98-CV-3634, 2002 WL 523371, *16 (S.D.N.Y. Mar.29,
2002) (holding that letters sent to commissioner, where letters were delegated to other prison
officials, were insufficient to establish supervisory liability).
12
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III. Conclusion
For the foregoing reasons, the Court grants Defendants' Motion To Dismiss with respect
to Plaintiffs Eighth Amendment medical deliberate indifference claim, and denies the Motion
with respect to Plaintiffs First Amendment retaliation claim. In light of Plaintiffs prose status,
and because this is the first adjudication of Plaintiffs claims, his Eighth Amendment claim is
dismissed without prejudice. If Plaintiff wishes to file an Amended Complaint alleging
additional facts and otherwise addressing the deficiencies identified above, Plaintiff must do so
within 30 days of the date of this Opinion and Order. Failure to do so will result in the dismissal
of this claim with prejudice. Plaintiff is advised that the amended complaint will replace, not
supplement, the earlier complaint. The amended complaint must contain all of the claims against
all Defendants. The Court will not consider factual allegations contained in supplemental letters,
declarations, or memoranda.
The Clerk of Court is respectfully direct to terminate the pending Motion, (see Dkt. No .
21 ), and mail a copy of this Opinion and Order to the Plaintiff.
SO ORDERED.
Dated:
March~ , 2019
White Plains, New York
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