Barnes v. Ross

• Citation: 926 F.Supp.2d 499
• Decision Date: 21 February 2013
• Docket Number: No. 12 Civ.1916(PKC).,12 Civ.1916(PKC).
• Parties: Arrello BARNES, Plaintiff, v. Carla ROSS, Brian Fischer, Sueann Smith, Dr. Syed Mahmud, and Osman Yildiz, Defendants.
• Court: U.S. District Court — Southern District of New York

926 F.Supp.2d 499

Arrello BARNES, Plaintiff,

v.Carla ROSS, Brian Fischer, Sueann Smith, Dr. Syed Mahmud, and Osman Yildiz, Defendants.

No. 12 Civ.1916(PKC).

United States District Court, S.D. New York.

Feb. 21, 2013.

Arrello Barnes, Attica, NY, pro se.

Kruti D. Dharia, Michael Francis Albanese, State of New York Office of The Attorney General, New York, NY, for Defendants.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge:

Plaintiff Arrello Barnes, proceeding pro se, brings this action under 42 U.S.C. § 1983. Barnes is a mentally ill inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). Defendant Fischer is Commissioner of DOCCS. Defendants Ross, Smith, Mahmud, and Yildiz are employees of the New York State Office of Mental Health. Construing the complaint liberally, plaintiff alleges that defendants have been, and continue to be, deliberately indifferent to his serious medical needs arising from his mental illness in violation of the Eighth Amendment, as applied here through the Fourteenth Amendment's Due Process Clause. The complaint also raises a claim under the Fourteenth Amendment's Equal Protection Clause insofar as plaintiff, an African American, alleges that he received disparate medical care on account of his race. The complaint seeks damages and prospective injunctive relief on behalf of Barnes as well as other inmates not parties to this action.

Defendants move, under Rule 12(b)(6), Fed.R.Civ.P., to dismiss the complaint on the following grounds: (1) failure to exhaust administrative remedies as to defendant Fischer; (2) failure to allege personal involvement by defendants Fischer and Yildiz; (3) failure to state a claim upon which relief can be granted; and (4) qualified immunity.

For the reasons set forth below, defendants' motion is granted in part and denied in part. The Court concludes that Barnes has failed to adequately allege the personal involvement of Commissioner Fischer, who is dismissed from this action. Barnes has also failed to state an Eighth Amendment claim. The motion is denied as to Barnes' equal protection claim for racial discrimination.

BACKGROUND

I. The Complaint

The following facts are taken from the complaint and assumed to be true in considering defendants' motion. All reasonableinferences are drawn in favor of plaintiff, the non-movant.¹

Since July 2011, mentally ill prisoners at the Sullivan Correctional Facility (“Sullivan”), including Barnes, have attempted to commit suicide on numerous occasions. (Compl. 2–3.) The prisoners have harmed themselves through methods such as cutting themselves and swallowing glass. ( Id. at 3.) In one instance, an inmate died from such self-inflicted injuries. ( Id. at 3.) Barnes, in particular, has suffered from mental illness since the age of eleven, having been admitted to a hospital in 1991 because he was hearing voices. ( Id. at 12.) Since August 2011, Barnes has attempted, while incarcerated at Sullivan, to hang himself and cut his ears off to prevent himself from hearing voices. ( Id.)

The complaint alleges that the treatment of mentally ill prisoners at Sullivan differed depending on their race or ethnicity. Following an attempted suicide or other self-inflicted injury, defendants Smith and Mahmud sent white inmates for treatment at an outside medical facility referred to by the parties as Marcy Hospital. ( Id. at 3.) Black and Latino inmates, including Barnes, were subject to a different procedure.² First, approximately 16 hours after a suicide attempt, defendants conducted five-minute interviews with each black or Latino prisoner who had attempted suicide. ( Id.) The complaint alleges that at least some of these interviews were conducted solely by defendant Ross, a social worker, and that during these interviews, Ross “talked down to MHU inmates” and would “kick them out of her office.” ( Id. at 3, 5.) After being interviewed, prisoners were placed, for approximately 13 days, in “OBS/MHU,” which the Court construes as a reference to observation at Sullivan's on-site mental-health unit. ( Id. at 3.) Following this observation period, inmates were sent back to their cells. ( Id.) Dr. Mahmud prescribed black and Latino prisoners, including Barnes, psychiatric medication for approximately seven days and then took the inmates off of the drugs, which caused them to feel suicidal again. ( Id. at 3, 12.) These inmates proceeded to injure themselves by cutting themselves with razors, swallowing glass and medications (which required that their stomachs be pumped), and giving themselves rope burns from hanging attempts. ( Id. at 3.) According to the complaint, Commissioner Fischer was aware of these events, which resulted in part from the fact that the facility's doctors gave the social workers too much discretion in treating inmates. ( Id.)

The complaint also alleges that mentally ill inmates have been given misbehavior reports for harming themselves, accused of attempting to manipulate the facility's mental-health system, and confined to their cells for 23 to 24 hours a day without treatment. ( Id. at 5.) Barnes states that the MHU staff used OBS/MHU as a form of punishment, leaving the lights on throughout the night and prohibiting inmates from brushing their teeth or possessing books or writing materials. ( Id. at 12.)

II. Procedural History

On September 7, 2012, plaintiff asked that the Court impose sanctions on defendants and enter a default judgment for plaintiff because defendants had failed to answer or move with respect to the complaint. (Dk. # 25.) On November 16, 2012, plaintiff again moved for a default judgment. (Dk. # 32.) Both motions are hereby denied because on August 29, 2012 Magistrate Judge Ellis entered an order extending defendants' time to answer the complaint to November 2, 2012 (Dk. # 20) and the answer date was further extended by Judge Ellis to November 16 (Dk. # 28) and by this Court to December 11, 2012. (Dk. # 30.) Defendants timely moved to dismiss the complaint on December 11, 2012. (Dk. # 34.) Thus, there is no basis to hold defendants in default or impose sanctions.

In response to defendants' motion to dismiss, plaintiff filed a motion for summary judgment, in which he responds to defendants' arguments in favor of dismissing the complaint. (Dk. # 40.) Plaintiff also filed a “Reply to Motion to Dismiss” on November 29, 2012 (Dk. # 33), i.e. before Defendants' filed their motion to dismiss. Given that plaintiff is proceeding pro se, the Court will deem both of plaintiff's filings (Dk. # 33 & Dk. # 40) as his opposition to defendants' motion to dismiss.

DISCUSSION

I. Pleading Standard

To survive a motion to dismiss for failure to state a claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing a complaint, courts draw all reasonable inferences in favor of the non-movant. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007). Legal conclusions, however, are not entitled to any presumption of truth, and a court assessing the sufficiency of a complaint disregards them. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Instead, the court must examine only the well-pleaded factual allegations, if any, “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937. Nevertheless, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citation and quotation marks omitted). Courts continue to afford special solicitude to pro se complaints after Iqbal and Twombly. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009).

“[O]n a motion to dismiss, a court may consider ‘documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken, or ... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit,’ ” although “mere notice or possession is not enough” absent plaintiff's reliance on such documents. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)) (omissions in Chambers ). A court may also consider “[a]n affirmative defense ... raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir.1998).

II. This Case May Not Proceed As A Class Action

The complaint originally named ten plaintiffs in addition to Barnes, all of whom were dismissed from the action on June 6, 2012. (Dk. # 10.) Nonetheless, Barnes purports to seek relief, not only on behalf of himself, but also on behalf of other inmates similarly situated. Aside from limited exceptions not applicable here, a litigant may only represent non-parties through a class action certified under Rule 23, Fed.R.Civ.P. See generally Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). The requirements of Rule 23 are not satisfied here because, among other things, the absent inmates are only ten in number, and hence joinder would not be impracticable. Rule 23(a)(1), Fed.R.Civ.P. Nor has Barnes, an inmate who is not an attorney, demonstrated that he is an adequate class representative. Rule 23(a)(4), Fed.R.Civ.P. In any case, “[a] pro se litigant,” such as Barnes, “is not empowered to proceed on behalf of anyone other than himself.” McCall v. Pataki, 232 F.3d 321, 322 (2d Cir.2000). Thus, the Court will only adjudicate the...