Aikens v. Herbst et al
ORDER GRANTING Plaintiff's 2 Motion to proceed in forma pauperis; DENYING Plaintiff's 8 Motion for a Temporary Restraining Order; GRANTING Plaintiff leave to file an amended complaint only as directed by May 15, 2017; DISMISSING the Second Amended Complaint with prejudice if Plaintiff does not file an amended complaint as directed; DIRECTING the Clerk of the Court to close this case as dismissed with prejudice without further order in the event the Second Amended Complaint i s dismissed because Plaintiff has failed to amend; WARNING Plaintiff that in the event the Second Amended Complaint is dismissed because Plaintiff has failed to amend, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from t his Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Signed by William M. Skretny, United States District Judge on 4/3/2017. (MEAL) Copy mailed to Plaintiff. - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MR. HERBST, et al,
Plaintiff, an inmate at the Attica Correctional Facility (“Attica”), filed this pro se
action pursuant to 42 U.S.C. § 1983 and the Eighth Amendment alleging deliberate
indifference to his medical needs by several correctional officers and the prison medical
staff. Plaintiff filed his original Complaint on September 26, 2016 along with a Motion
for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). (Docket Nos.
1, 2). Plaintiff filed an Amended Complaint on October 20, 2016 (Docket No. 4), and, on
November 8, 2016, he filed a Second Amended Complaint, which will be addressed
herein as the operative pleading (Docket No. 6). This Court finds that Plaintiff has met
the statutory requirements to proceed as a poor person and has submitted a signed
Authorization. Therefore, Plaintiff's request to proceed in forma pauperis is granted.
Plaintiff has also filed an ex parte Motion for a temporary restraining order and
preliminary injunction seeking an order enjoining the Defendants from inflicting “any
harm, assaults on person [and] property and any form of retaliation in any way, and
cruel and unusual punishment or violation of any United States constitutional rights of
plaintiff.” (Docket No. 8.) In support of the Motion for a temporary restraining order and
preliminary injunction, Plaintiff asserts that since filing a prior action in this Court (Aikens
v. Rao, 13-CV-01088-WMS), he has been “constantly” harassed; his mail has been
tampered with or thrown away; he has been denied access to the court and the legal
resources needed to litigate his case; his cell is repeatedly searched; and he is being
denied medical care. Plaintiff has attached to his Motion a medical record containing
the results of magnetic resonance imaging (“MRI”) of his spine, which revealed a large
central disc protrusion at L4-L5 causing severe central canal stenosis and moderate
central canal stenosis at L3-L4. (Docket No. 8.) He also submits a sworn affidavit
alleging that he no longer has access to a “TENS unit,” which was necessary to treat his
back pain. (Id.)
Rule 65(b) (1) of the Federal Rules of Civil Procedure provides that:
The court may issue a temporary restraining order without written or oral
notice to the adverse party . . . only if (A) specific facts in an affidavit or a
verified complaint clearly show that immediate and irreparable injury, loss,
or damage will result to the movant before the adverse party can be heard
in opposition; and (B) the movant's attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1).
“Generally, a party seeking a preliminary injunction must
demonstrate that it will suffer irreparable harm absent injunctive relief and either (1) that
it is likely to succeed on the merits of the action, or (2) that there are sufficiently serious
questions going to the merits to make them a fair ground for litigation, provided that the
balance of hardships tips decidedly in favor of the moving party.” Mullins v. City of N.Y.,
626 F.3d 47, 52-53 (2d Cir. 2010) (citing Citigroup Global Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 34-35 (2d Cir. 2010)).
Here, Plaintiff does not demonstrate any effort to notify the Defendants of his
request for injunctive relief, nor do his papers demonstrate a likelihood of success on
the merits and irreparable injury, or raise any serious questions going to the merits.
Moreover, none of the Defendants named in the Second Amended Complaint are
alleged to have engaged in any of the actions asserted in the Motion, nor is any
Defendant alleged to be in position to engage in the non-medical acts Plaintiff seeks to
enjoin. See Allen v. Brown, 1998 WL 214418, *4 (N.D.N.Y. Apr. 28, 1998) (“the relief
that a plaintiff seeks by way of injunction must relate to the allegations contained in the
underlying complaint”). Plaintiff has not stated any factual allegations to support his
general assertions that unnamed prison staff members have been harassing him and
tampering with his mail. With respect to the denial of medical care, Plaintiff has not
raised any serious questions going to the merits of this claim. This Court also notes that
the medical record related to his back condition does not support his Motion in any
Consequently, Plaintiff’s Motion for a temporary restraining order and preliminary
injunction is denied.
In addition to the above findings, this Court has screened Plaintiff’s Second
Amended Complaint with respect to the 28 U.S.C. §§ 1915(e) and 1915A criteria.
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss
legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing
Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). Section 1915(e) provides that a
court shall dismiss a case in which in forma pauperis status has been granted if, at any
time, the court determines that the action (1) is frivolous or malicious; (2) fails to state a
claim upon which relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(b). Generally,
however, a court will afford a pro se plaintiff an opportunity to amend or to be heard
prior to dismissal “unless the court can rule out any possibility, however unlikely it might
be, that an amended complaint would succeed in stating a claim.” Id. (internal quotation
In order to state a claim of deliberate indifference to medical needs under the
Eighth Amendment, Plaintiff must establish that Defendants acted with “deliberate
indifference to [his] serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104
“[T]he deliberate indifference standard embodies both an objective and a
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
subjective component requires “something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result,” but “more than mere
negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). A “mere disagreement
over the proper treatment does not create a constitutional claim.
So long as the
treatment given is adequate, the fact that a prisoner might prefer a different treatment
does not give rise to an Eighth Amendment violation.” Chance v. Armstrong, 143 F.3d
698, 703 (2d Cir. 1998).
In his Second Amended Complaint, Plaintiff alleges that he developed a severe
rash due to infected bedding after being moved to a new unit in the prison on November
19, 2015. Plaintiff was seen the same day by Defendant Herbst, who was delivering
pain medication to treat Plaintiff’s back condition. Defendant Herbst advised him to
“drop a sick call slip to be seen for the severe rash.” (Docket No. 6 ¶ 3.) Plaintiff also
flagged down Defendant Sgt. Zolads and advised him that his bedding and mattress
had caused him to develop a severe rash. Sgt. Zolads responded that he would “see
what [he] could do.” (Docket No. 6 ¶ 4.) Plaintiff’s mattress and bedding were changed
at 2:30 P.M. on the following day, November 20, 2015. Fifteen minutes later, Defendant
Herbst responded to Plaintiff’s cell for the sick call and provided him with three doses of
“Diphen” to treat the rash. (Docket No. 6 ¶ 11.) Defendant Herbst declined Plaintiff’s
request to see a doctor, stating that the condition of the rash was not severe enough
and advising Plaintiff to file a grievance. Plaintiff alleges that he was then threatened by
an unknown correction officer to avoid causing “any problems because things will
happen to [Plaintiff] and he would never leave the SHU in one peace [sic].” (Docket No.
6 ¶ 12.)
The next day, Nurse Singleton, who was delivering Plaintiff’s back pain
medication, assessed Plaintiff’s rash and advised him that she would process an order
for the proper medication to treat his rash and itchiness.
Plaintiff alleges that the
promised medication did not arrive until November 27, 2015 and that, in the meantime,
he was deprived of sleep for approximately seven days.
Under the standard stated above, the facts as they are alleged in the Second
Amended Complaint are not sufficient to demonstrate a claim of deliberate indifference
to Plaintiff’s medical needs by Defendants. “[T]he liberal treatment afforded to pro se
litigants does not exempt a pro se party from compliance with relevant rules of
procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y.
2013) (internal quotation marks omitted). First, Plaintiff has not alleged the existence of
a serious medical condition.
See Chance, 143 F.3d at 702 (noting that a serious
medical condition is one that may result in death, degeneration, or chronic and
substantial pain); Lewal v. Wiley, 29 F. App'x 26, 29 (2d Cir. 2002) (prisoner’s
allegations of a persistent rash were not sufficient to allege the existence of a serious
Second, Plaintiff has failed to allege anything more than mere negligence on the
part of the prison medical staff, and he has failed to allege any wrongdoing on the part
of the non-medical staff. The decision to prescribe one form of medication in lieu of
another does not constitute deliberate indifference to a prisoner’s serious medical
needs. See Rush v. Fischer, 923 F.Supp.2d 545, 555 (S.D.N.Y. 2013). To meet the
deliberate indifference threshold, a plaintiff must set forth facts in the record establishing
that the decision to prescribe a certain medication, and a determination concerning the
severity of the medical condition presented, was based on something other than
medical judgment. See id., at 555 (plaintiff provided no factual allegations establishing
that the decision to provide a less strong pain medication deviated from reasonable
medical practice for the treatment of his pain). A plaintiff must also set forth factual
allegations establishing that the named defendants acted with the culpable state of mind
in making these decisions. Furthermore, to the extent that Plaintiff has attempted to
raise an Eighth Amendment sleep deprivation claim for the period before his rash
medication was received, he has failed to allege any harmful effects on his health
beyond mere discomfort. See Holmes v. Fischer, 2016 WL 552962, at *17 (W.D.N.Y.
2016) (citing Jones v. Smith, 2015 WL 5750136, at *15 (N.D.N.Y. Sept. 30, 2015)
(“Plaintiff does not allege any health effects resulting from the alleged sleep deprivation
that would rise to the severity necessary to trigger Eighth Amendment concerns.”)).
Because Plaintiff has not alleged facts sufficient to sustain a claim of deliberate
indifference to medical needs or prison conditions against any of the Defendants, the
Second Amended Complaint is subject to dismissal. However, this Court will permit
Plaintiff to file an amended complaint in which the necessary factual allegations, as
discussed above, must be set forth. See Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir.
1994) (‟Sparse pleadings by a pro se litigant unfamiliar with the requirements of the
legal system may be sufficient at least to permit the plaintiff to amend his complaint to
state a cause of action”); Fed. R. Civ. P. 15(a) (leave to amend shall be freely given).
Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and
filed an Authorization, his request to proceed in forma pauperis is granted (Docket No.
2). Plaintiff’s Motion for a Temporary Restraining Order is denied. (Docket No. 8). For
the reasons set forth above, the Second Amended Complaint (Docket No. 6) must be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) unless Plaintiff files an amended
complaint by May 15, 2017 in which he includes the necessary allegations as directed
above and in a manner that complies with Rules 8 and 10 of the Federal Rules of Civil
Plaintiff is advised that an amended complaint is intended to completely replace
the prior Complaints in the action, and thus it “renders [any prior complaint] of no legal
International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977).
Therefore, Plaintiff’s amended complaint must include all of the allegations against each
Defendant so that the amended complaint may stand alone as the sole complaint in this
action which the Defendants must answer.
IT HEREBY IS ORDERED, that Plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is granted;
FURTHER, that Plaintiff’s Motion for a Temporary Restraining Order (Docket No.
8) is denied;
FURTHER, that Plaintiff is granted leave to file an amended complaint only as
directed above by May 15, 2017;
FURTHER, that if Plaintiff does not file an amended complaint as directed above,
that the Second Amended Complaint (Docket No. 6) is dismissed with prejudice;
FURTHER, that in the event the Second Amended Complaint is dismissed
because Plaintiff has failed to amend, the Clerk of Court shall close this case as
dismissed with prejudice without further order;
FURTHER, that in the event the Second Amended Complaint is dismissed
because Plaintiff has failed to amend, Court hereby certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this Order would not be taken in good faith, and leave
to appeal to the Court of Appeals as a poor person is denied. See Coppedge v. United
States, 369 U.S. 438 (1962). Requests to proceed on appeal as a poor person should
be directed, on motion, to the United States Court of Appeals for the Second Circuit, in
accordance with Rule 24 of the Federal Rules of Appellate Procedure.
/s/William M. Skretny
William M. Skretny
United States District Judge
April 3, 2017
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