Opinion
16-CV-01047 (LDH) (ARL)
09-30-2019
Gregory BARNES, Plaintiff, v. Dr. Amy MALAVI and Suffolk County Correctional Facilities Riverhead, Defendants.
Gregory Barnes, Dannemora, NY, pro se. Brian C. Mitchell, Suffolk County Dept. of Law-County Attorney, Hauppauge, NY, for Defendants.
Gregory Barnes, Dannemora, NY, pro se.
Brian C. Mitchell, Suffolk County Dept. of Law-County Attorney, Hauppauge, NY, for Defendants.
MEMORANDUM AND ORDER
LaSHANN DeARCY HALL, United States District Judge:
Plaintiff Gregory Barnes, proceeding pro se and in forma pauperis, brings the instant action against nurse practitioner Amy Malave and Suffolk County Correctional Facilities Riverhead ("SCCF") for denial of medical care. (Compl., ECF No. 1.) Defendant Malave moves for summary judgment to dismiss the claim against her. (ECF No. 66-1.) BACKGROUND
Ms. Malave was erroneously sued as "Dr. Amy Malavi."
Although SCCF has not answered the complaint or otherwise made an appearance in this case, Plaintiff's claims against it are barred, as municipal agencies are not subject to suit apart from the municipality. See Whitty v. Suffolk Cty. Corr. Facility , No. 19-CV-00611, 2019 WL 3858947, at *2 n.2 (E.D.N.Y. Aug. 16, 2019) (finding Suffolk County Correctional Facility is not a suable entity under § 1983 claims); see also Jenkins v. City of New York , 478 F.3d 76, 93 n.19 (2d Cir. 2007) (affirming the district court's dismissal of claims against the NYPD as a non-suable entity); Schwamborn v. Cty. of Nassau , No. 06-CV-6528, 2008 WL 4282607, at *5 (E.D.N.Y. Sept. 16, 2008) (dismissing claim against Nassau County Correctional Facility because it does not have an independent legal identity to be subject to suit), aff'd , 348 F. App'x 634 (2d Cir. 2009). Therefore, Plaintiff's claim against SCCF are dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
The following facts are taken from Defendant Malave's Local Rule 56.1 statement. Facts within a party's 56.1 statement that are not contradicted by citations to admissible evidence are deemed admitted. See Giannullo v. City of New York , 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted."). Local Civil Rule 56.1(c) provides that "[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Notably, Malave acted in accordance with Local Rule 56.2, which directs a moving party to serve and file the notice from Local Rule 56.2 along with the full texts of Federal Rules of Civil Procedure 56 and Local Rule 56.1. (ECF Nos. 66-12–66-17.) Nonetheless, in direct contravention of Local Rule 56.1, Plaintiff has failed to submit a response to Malave's statement of material facts. Thus, the facts set forth in Malave's Local Rule 56.1 statement that are supported by citations to admissible evidence are deemed admitted.
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On November 8, 2015, Plaintiff was booked into the Suffolk County Jail on a parole violation. (Suffolk Cty. Defs.' Statement Pursuant Local R. 56.1 ("Def.'s 56.1") ¶ 1, ECF No. 66-3.) On the same day, Plaintiff was placed on suicide watch and the next day was housed on the suicide-watch tier at the jail. (Id. ¶ 2.) Although it is unclear why, Plaintiff was transferred to the Pilgrim State Hospital on December 17, 2015, and returned to Suffolk County Jail on January 11, 2016. (Id. ) On that day, Plaintiff presented to the medical unit with, among other things, dermatitis. (Id. ¶ 14.) As treatment for his dermatitis, Plaintiff was prescribed triamcinolone acetonide lotion to be applied to the affected area. (Id. ) Three days later, on January 14, 2016, Plaintiff returned to the Jail Medical Unit. (Id. ¶ 15.) During this visit, Plaintiff was personally treated and examined by Defendant Malave. (Id. ) Plaintiff made no complaints regarding his dermatitis during this visit. (Id. ) On January 20, 2016, Plaintiff returned to the medical unit complaining that the rash persisted. (Id. ¶ 16.) Malave examined Plaintiff that day and prescribed him permethrin, which is used to treat scabies. (Id. ) Malave advised Plaintiff to follow up with the medical unit if there was no improvement or the condition worsened. (Id. ) On January 21, 2016, Plaintiff was again seen in the Jail Medical Unit where he mentioned that he had completed the permethrin treatment for his scabies and felt better. (Id. ¶ 17.) Plaintiff was seen again by Malave regarding his scabies on February 7, February 15, and February 22, 2016, and was prescribed permethrin, hydrocortisone topical cream, and ketoconazole topical cream, during those visits respectively. (Id. ¶¶ 21, 23-24.) Subsequently, Plaintiff visited the Jail Medical Unit at least thirteen additional times complaining of various other ailments before being transferred to the New York State Department of Corrections in April of 2017. (See id. ¶¶ 30-32, 34-35, 37-38, 40, 44, 47-49, 51-52, 57.)
STANDARD OF REVIEW
Summary judgment must be granted when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of material fact exists when the evidence as to a fact that might affect the suit's outcome is such that a reasonable jury could find in favor of the non-movant at trial. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. At summary judgment, the movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Feingold v. New York , 366 F.3d 138, 148 (2d Cir. 2004). Once the movant meets that burden, the non-movant may defeat summary judgment only by adducing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P. 56(c) ; see also Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; Davis v. New York , 316 F.3d 93, 100 (2d Cir. 2002). A court is to view all such facts in the light most favorable to the non-movant, drawing all reasonable inferences in his favor. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Still, to survive summary judgment, a non-movant must present concrete evidence and may not rely on mere conclusory or speculative claims or denials. Quinn v. Syracuse Model Neighborhood Corp. , 613 F.2d 438, 445 (2d Cir. 1980) ("The litigant opposing summary judgment, therefore, ‘may not rest upon mere conclusory allegations or denials’ as a vehicle for obtaining a trial.") (quoting SEC v. Research Automation Corp. , 585 F.2d 31, 33 (2d Cir. 1978) ).
"It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest," Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and emphasis omitted), including when facing a summary judgment motion, Jorgensen v. Epic/Sony Records , 351 F.3d 46, 50 (2d Cir. 2003). Nevertheless, the "application of this different standard does not relieve [a] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen , 351 F.3d at 50 (citation omitted).
DISCUSSION
I. Denial of Medical Care
"To establish an unconstitutional denial of medical care [claim], a prisoner must prove ‘deliberate indifference to [his] serious medical needs.’ " Hathaway v. Coughlin , 37 F.3d 63, 66 (2d Cir. 1994) (quoting Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ). "Yet not every lapse in medical care is a constitutional wrong. Rather, ‘a prison official violates the Eighth Amendment only when two requirements are met.’ " Salahuddin v. Goord , 467 F.3d 263, 279 (2d Cir. 2006) (quoting Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). First , the prisoner must have been actually deprived of medical care, and second , the inadequacy in medical care must have been sufficiently serious. Id. at 279-80. Malave argues that Plaintiff has failed to make either showing. The Court agrees.
First , Plaintiff has not adduced evidence of a sufficiently serious medical condition. That is, Plaintiff's scabies is not "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway , 37 F.3d at 66 (quoting Nance v. Kelly , 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). In fact, the Second Circuit and numerous district courts within this circuit have acknowledged that scabies and other similar skin conditions simply do not rise to the level of being sufficiently grave and serious to give rise to a deliberate-indifference claim. E.g. , Lewal v. Wiley , 29 F. App'x 26, 29 (2d Cir. 2002) (summary order) (affirming dismissal because a "slightly low red blood cell count and a persistent rash" were insufficient to "allege[ ] the existence of a serious medical condition"); Reid v. Nassau Cty. Sheriff's Dep't , No. 13-CV-1192, 2014 WL 4185195, at *20 (E.D.N.Y. Aug. 20, 2014) ("[A] persistent skin rash or infection does not constitute a ‘sufficiently serious’ medical need."); Purdie v. City of New York , No. 10-CV-5802, 2011 WL 1044133, at *3 (E.D.N.Y. Mar. 15, 2011) ("A skin rash is generally insufficient to meet the objective requirement of a sufficiently grave and serious condition giving rise to a deliberate indifference [to serious medical needs] claim."); Swindell v. Supple , 02-CV-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" is not a condition of "an urgent and substantially painful nature" to constitute a serious medical condition); Samuels v. Jackson , No. 97-CV-2420, 1999 WL 92617, at *1, 3 (S.D.N.Y. Feb. 22, 1999) (finding scabies causing open sores, abrasions, and scarring did not constitute serious medical need). Accordingly, Plaintiff has not met the first element of a deliberate-indifference claim.
Second , even if Plaintiff had established a severe medical condition, he has not shown that Malave was deliberately indifferent to it. "In order to prove deliberate indifference in a challenge to a prison inmate's conditions of confinement, the prisoner must show that a particular defendant ‘knows of and disregards an excessive risk to inmate health or safety.’ " Brock v. Wright , 315 F.3d 158, 164 (2d Cir. 2003) (quoting Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ). Here, Plaintiff has not adduced any evidence that would support a finding that he was denied access to medical care or that Malave disregarded an excessive risk to his health. The medical records submitted by Malave indicate that while in custody, Plaintiff has received extensive treatment. In fact, Plaintiff's medical records indicate that he was seen by medical staff dozens of times over the course of his confinement at Suffolk County Jail. In particular, with respect to the scabies symptoms complained of here, Plaintiff was seen by medical staff on ten separate visits between January 11 and February 22, 2016. (Def.'s 56.1 ¶¶ 14-19, 21-24.) On five of those visits, Plaintiff was prescribed medication. (Id. ¶ 14, 16, 21, 23-24.) On two of those visits, Plaintiff received testing and re-evaluation of his scabies treatment. (Id. ¶ 21, 22.) Notwithstanding this treatment, Plaintiff still maintains that Malave acted indifferently to his medical needs. In the face of this record, such a contention is absurd. Malave is entitled to summary judgment.
II. Conditions of Confinement
While Plaintiff's complaint asserts a claim against Malave for denial of medical care, in his opposition submission, Plaintiff also claims that the cell in which he was held was infested with bugs and there was old food left under the mattress. (Resp. Mot. Summ. J. 1, ECF No. 73.) To the extent Plaintiff is challenging the conditions of his confinement, he has failed to adduce any evidence that Malave, a nurse practitioner, was personally involved in any way with the conditions of Plaintiff's cell. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted). This requirement is fatal to Plaintiff's claim. For this reason, any § 1983 claim against Malave predicated on the conditions of Plaintiff's confinement is dismissed.
CONCLUSION
For the foregoing reasons, Malave's motion for summary judgment is GRANTED. Plaintiff's claim against Malave for denial of medical care is DISMISSED with prejudice.
SO ORDERED.