Aikens v. Herbst et al
ORDER DISMISSING the 11 Third Amended Complaint with prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); DIRECTING that any appeal from this Order would not be taken in good faith, and DENYING leave to appeal to the Court of Appeals as a poor person; DIRECTING the Clerk of Court to close this case.Signed by William M. Skretny, United States District Judge on 6/30/2017. (MEAL) Copy mailed to Plaintiff. -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MR. HERBST, et al,
Plaintiff Anthony Aikens, an inmate at the Attica Correctional Facility (“Attica”),
filed this pro se 42 U.S.C. § 1983 action against several prison officials and a member
of the prison medical staff, alleging deliberate indifference to his medical needs in
violation of his Eighth Amendment rights.
Plaintiff filed his original Complaint on
September 26, 2016 (Docket No. 1), together with a Motion for leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a) (Docket No. 2).
Plaintiff filed an
Amended Complaint on October 20, 2016 (Docket No. 4), and, on November 8, 2016,
filed a Second Amended Complaint (Docket No. 6).
In its April 3, 2017 Order (Docket No. 10, hereinafter, the “April 2017 Order”), this
Court granted Plaintiff’s request to proceed in forma pauperis, denied his ex parte
Motion for a temporary restraining order and preliminary injunction (Docket No. 8), and
screened Plaintiff's Second Amended Complaint pursuant to the 28 U.S.C. §§ 1915(e)
and 1915A criteria. This Court found that the allegations concerning Plaintiff’s medical
treatment were insufficient to allege an Eighth Amendment claim based on Defendants’
deliberate indifference to medical needs because he failed to establish (1) the existence
of a serious medical condition or (2) anything more than negligence on the part of the
prison staff. In the April 2017 Order, this Court held that the violation described by
Plaintiff was based on the decision to prescribe one form of medication in lieu of
another, and therefore did not constitute deliberate indifference to Plaintiff’s medical
needs. See Rush v. Fischer, 923 F. Supp. 2d 545, 555 (S.D.N.Y. 2013). With respect
to Plaintiff’s Eighth Amendment sleep deprivation claim, this Court found that Second
Amended Complaint failed to allege any harmful effects on Plaintiff’s health beyond
temporary pain and discomfort.
This Court dismissed the Second Amended Complaint with leave to amend.
Specifically, this Court granted Plaintiff leave to file an amended complaint alleging, if
possible, that the decision to prescribe him a certain medication and the determination
concerning the severity of his medical condition were based on something other than
medical judgment, and that Defendants acted with a culpable state of mind in making
Presently before this Court is Plaintiff’s Third Amended Complaint (Docket No.
11), in which he again asserts an Eighth Amendment claim of deliberate indifference to
medical needs against Defendants Nurse Herbst, Sergeant Zolads, Inmate Grievance
Supervisor Becker, and Superintendent Thompson. Plaintiff’s current factual allegations
are substantially similar to those alleged in the Second Amended Complaint; indeed, the
Third Amended Complaint repeatedly refers to the Second Amended Complaint. The
Third Amended Complaint describes an alleged incident in which Plaintiff developed a
rash after being moved to a new cell that was equipped with infected bedding. He was
advised by Nurse Herbst to submit a sick call slip to be treated for the rash. The
bedding was changed the following day and, shortly thereafter, Nurse Herbst provided
Plaintiff with pills to treat the symptoms of his rash.
In the April 2017 Order, this Court advised Plaintiff that he must establish that
Defendants acted with “deliberate indifference to [his] serious medical needs.” Estelle
v. Gamble, 429 U.S. 97, 104 (1976). “[T]he deliberate indifference standard embodies
both an objective and a subjective prong.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d
Cir. 1996). The subjective component requires “more than mere negligence,” Farmer v.
Brennan, 511 U.S. 825, 835 (1994), and a “disagreement over [ ] 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).
Again, as in the Second Amended Complaint, Plaintiff has failed to allege the
existence of a serious medical condition that could result in death, degeneration or
extreme pain. Although Plaintiff alleges that he did suffer a week-long period of severe
pain, his complaints concerning his rash essentially amount to “a dispute between
patient and [the medical staff] over the proper diagnosis for his symptoms, and [his
claim] is therefore not cognizable.” Lewal v. Wiley, 29 F. App'x 26, 28 (2d Cir. 2002)
(citing Chance, 143 F.3d at 703) (finding that plaintiff’s claim concerning defendants
failure to treat his persistent rash did “not allege[ ] the existence of a serious medical
condition, nor . . . anything more than mere negligence on the part of the medical
staff.”). Plaintiff specifically alleges that Nurse Herbst “clearly knew that [he] suffered
and was being treated for a degenerative condition that tends to cause extreme pain
and denied [his] request to be seen by a doctor for the severe rash he had all over his
body” (Docket No. 11, p. 5). Plaintiff reveals, however, that Nurse Herbst declined his
request to see the doctor because the nurse initially determined that the rash was not
severe enough to require a doctor’s opinion, and he provided Plaintiff with medication to
treat his itchiness. Even assuming that Nurse Herbst incorrectly assessed Plaintiff’s
condition, such allegations would not constitute anything more than mere negligence.
Moreover, the Third Amended Complaint is devoid of factual allegations that any
Defendant acted with the culpable state of mind required for deliberate indifference.
Nothing in the pleadings suggests that the prison medical staff or officials knew of and
disregarded an excessive risk to Plaintiff’s health and safety: Plaintiff’s infected bedding
was changed the day after the condition was discovered; his rash was also treated the
next day with medication to relieve “the itching”; and additional rash treatment
medication was ordered on the following day (Docket No. 11, p. 4). Plaintiff does not
allege that determinations concerning the bedding and the severity of his medical
condition were based on some ulterior motive, or were made with anything other than
With respect to Plaintiff’s claim of sleep deprivation, the Third
Amended Complaint does not allege any additional facts establishing that Plaintiff
suffered health effects resulting therefrom that would rise to the severity sufficient to
state an Eighth Amendment violation.
See Jones v. Smith, No. 9:09-CV-1058
GLS/ATB, 2015 WL 5750136, at *15 (N.D.N.Y. Sept. 30, 2015).
As this is Plaintiff’s fourth attempt to plead a valid claim, this Court concludes that
any further attempt to amend the pleadings would be futile. Consequently, the Third
Amended Complaint is dismissed without leave to amend. See Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam) (“Where it appears that granting
leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny
leave to amend.”).
For the reasons set forth above, the Third Amended Complaint (Docket No. 11)
is dismissed, with prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
This 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.
IT IS HEREBY ORDERED, that the Third Amended Complaint (Docket No. 11) is
dismissed, with prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1);
FURTHER, 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;
FURTHER; that the Clerk of Court is directed to close this case.
/s/William M. Skretny
William M. Skretny
United States District Judge
DATED: June 30, 2017
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