Tripathy v. Schneider et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SANJAY TRIPATHY,
Plaintiff,
-v-
ANDREA N. SCHNEIDER Acting
Superintendent Gowanda CF, Gowanda
NY, D. LOCKWOOD Acting Deputy
Superintendent of Security, Gowanda CF,
Gowanda NY, M.D. JOHN MORLEY
Deputy Commissioner and Chief Medical
Officer, DOCCS, Albany, NY, ANTHONY
J. ANNUCCI Acting Commissioner,
DOCCS, Albany, NY, and ANDREW M.
CUOMO Governor, New York State,
Albany, NY,
Defendants.
21-CV-6392-FPG
ORDER
___________________________________
INTRODUCTION
Pro se Plaintiff Sanjay Tripathy, an inmate incarcerated at the Fishkill Correctional
Facility, filed this action seeking relief under 42 U.S.C. § 1983, the Americans with
Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) regarding events which occurred
while he was incarcerated at the Gowanda Correctional Facility (“Gowanda”). 	Plaintiff
alleges that Defendants exposed him to risks related to the COVID-19 pandemic in
violation of his rights under the Eighth and Fourteenth Amendments, as well as the ADA
and RA. In its initial screening order, the Court dismissed the Complaint pursuant to 28
U.S.C. § 1915A(a) with leave to amend. ECF No. 2. Plaintiff filed an Amended Complaint,
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ECF No. 5, and, for the reasons discussed below, the conditions of confinement claim will
proceed to service against Defendants Schneider, Lockwood, and Haque, and the
remaining claims are dismissed with prejudice.
DISCUSSION
Under 28 U.S.C. § 1915A(a), this Court is required to screen the Amended
Complaint. Section 1915A “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).
The court shall dismiss a complaint in a civil action in which a prisoner seeks redress from
a governmental entity, or an officer or employee of a governmental entity, if the court
determines that the action (1) fails to state a claim upon which relief may be granted or
(2) seeks monetary relief against a defendant who is immune from such relief. 	See 28
U.S.C. § 1915A(b)(1)-(2).
I. 	The Amended Complaint
In evaluating the Amended Complaint, the Court must accept all factual allegations
as true and must draw all inferences in Plaintiff's favor. See Larkin v. Savage, 318 F.3d
138, 139 (2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
"Specific facts are not necessary,” and the plaintiff “need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’ ” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation marks omitted)); see also Boykin v. Keycorp, 521 F.3d 202, 216 (2d
Cir. 2008) (discussing pleading standard in pro se cases after Twombly: "even after
Twombly, dismissal of a pro se claim as insufficiently pleaded is appropriate only in the
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most unsustainable of cases."). Although “a court is obliged to construe [pro se] pleadings
liberally, particularly when they allege civil rights violations,” McEachin v. McGuinnis, 357
F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must meet the notice
requirements of Rule 8 of the Federal Rules of Civil Procedure. 	Wynder v. McMahon,
360 F.3d 73, 79 (2d Cir. 2004).
II. 	Section 1983
“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the
challenged conduct (1) was attributable to a person acting under color of state law, and
(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or
laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997)
(citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.1994)). 	“Section 1983 itself
creates no substantive rights; it provides only a procedure for redress for the deprivation
of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing
City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
To establish liability against a prison official under § 1983, a plaintiff must allege
that individual's personal involvement in the alleged constitutional violation; it is not
enough to assert that the defendant is a link in the prison’s chain of command. 	See
McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Moreover, the theory of respondeat
superior is not available in a § 1983 action. See Hernandez v. Keane, 341 F.3d 137, 144
(2d Cir. 2003). “[T]here is no special rule for supervisory liability. Instead, a plaintiff must
plead and prove that each Government-official defendant, through the official’s own
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individual actions, has violated the Constitution.” 	Tangreti v. Bachmann, 983 F.3d 609,
618 (2d Cir. 2020) (internal quotation marks omitted).
III. 	Plaintiff’s Allegations1
The Amended Complaint is substantially similar to the original Complaint in
alleging Defendants’ failure to implement or enforce safety protocols to control the spread
of COVID-19. 	Presumed true at this stage of the proceedings, the amended pleadings
state that Gowanda has failed to implement social distancing, “especially in Plaintiff’s
[dorm,] which has been stuffed with 51 inmates.” 	ECF No. 5 at 11. 	The masking
mandates are “rarely and sporadically enforced,” and testing is “[n]on-existent and
inadequate.” 	Id. 	There are “[p]oor, non-existent cleaning, quarantine and sanitation
protocols,” and inmates are moved between housing dorms and prison “without adequate
testing.” Id. at 12. Critical care is delayed by staff members who are untrained in handling
COVID-related emergencies. 	Id. 	The facility has “very poor ventilation” and “high
amounts of indoor[] smoking.” Id. Plaintiff, “per CDC[,] has the highest risk of death from
Covid-19, due to severe underlying medical conditions.” 	Id. at 11. Plaintiff suffers from
a “constant fear of death,” poor mental health, and increased stress. Id.
Plaintiff spoke about his deteriorating heath and COVID-19 exposure “on many
occasions” with Defendant Haque, who said there was “nothing” he could do and that
Plaintiff “should suffer the consequences” because “he is in jail.” 	Id. at 12-13. 	Plaintiff
“engaged with” Defendants Lockwood and Schneider, who denied his reasonable
accommodation requests and similarly asserted that, as a prisoner, he would have to
1 The recitation of facts is drawn from the Amended Complaint, the contents of which must be accepted as
true for purposes of initial review under 28 U.S.C. §1915A(b). See Erickson, 551 U.S. at 93-94.
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suffer the consequences of the pandemic, or “he should not be in jail.” Id. at 13. All three
Defendants denied relief, discriminated against Plaintiff, and deliberately refused to take
more action to mitigate the excessive risk of COVID-19 exposure. Id. at 13-14. Many of
Plaintiff’s “roommates and dorm-mates were Covid-19 positive and were showing
symptoms of Covid-19 but [were] neither tested nor segregated.” Id. at 14.
Defendant Morley, the Chief Medical Officer for DOCCS, ignored Plaintiff’s
petitions, letters, and grievances, suggested that Plaintiff seek medical parole, which was
unsuccessful, and “pushed the problem to local medical staff.” Id. 	He has also “failed to
implement DOCCS[‘] own Covid-19 policies” and “ignore[d] CDC and health guidelines.”
Id. 	Defendant DOCCS caused Plaintiff “irreparable harm from excessive exposure to
Covid-19.” 	Id. 	Defendant Cuomo failed to protect Plaintiff “by not mitigating the impact
of Covid-19 in prisons” or reducing “prison overcrowding.” Id. at 14-15.
Plaintiff has severe underlying conditions that place him at the “highest risk of
death” 	from 	COVID-19, 	including 	stroke, 	diabetes, 	obesity, 	high 	blood 	pressure,
respiratory illness, asthma, allergies, high cholesterol, and low vitamin D, iron, vitamin B-
12 and testosterone. Id. at 17-18. Plaintiff “suffered increasingly since the onset” of the
COVID-19 pandemic in March 2020, and Defendants’ “lack of” action “directly impacted
his health and well-being.” 	Id. at 18. 	Further, Plaintiff’s exposure to “constant and
unprecedented” second-hand tobacco smoke during his incarceration increases his risk
of death from COVID-19.2 	Id. 	Plaintiff also experienced an “[i]ncreased fear of death”
2 Plaintiff has another action pending in this Court that relates to his second-hand smoke allegations. See
Tripathy v. Schneider, 6:21-cv-06339-FPG.
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and “negative impact on mental health and overall well-being,” as well as increased
stress, high blood pressure, asthma, pulmonary disease, and “bone density ailments.” Id.
Plaintiff alleges violations of his Eighth Amendment right to be free from cruel and
unusual punishment, his Fourteenth Amendment right to equal protection, and his rights
under the ADA and RA. Plaintiff requests an expedited scheduling of his case, an order
restraining DOCCS staff from retaliating against him, and monetary damages. ECF No.
5 at 30-31.
IV. 	Constitutional Claims
A. 	Conditions of Confinement
The Court construes Plaintiff’s allegation that Defendants exposed him to harmful
conditions of confinement by failing to enforce pandemic safety protocols as claiming a
violation of his Eighth Amendment right to be free from cruel and unusual punishment.
To state a claim under the Eighth Amendment, a plaintiff must allege: (1) the
conditions were so serious that they constituted a denial of “the minimal civilized measure
of life's necessities,” and (2) the prison officials acted with “deliberate indifference.”
Wilson v. Seiter, 501 U.S. 294, 297, 298 (1991) (internal quotation marks omitted); see
also Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir. 1996).
“To meet the objective element, 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). 	Exposure to COVID-19 has been
found to constitute such a risk, see Fernandez-Rodriguez, 470 F. Supp. 3d 323, 349-51
(S.D.N.Y. 2020) (collecting cases), and “[c]ourts have long recognized that prison officials
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have an Eighth Amendment duty to protect inmates from exposure to communicable
disease,” Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 439 (D. Conn. 2020) (citing
Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996)) (“[C]orrectional officials have an
affirmative obligation to protect inmates from infectious disease.”).
“To meet the subjective element, the plaintiff must show that the defendant acted
with more than mere negligence[;] . . . the prison official must know of, and disregard, an
excessive risk to inmate health or safety.” 	Walker, 717 F.3d at 125 (internal quotation
marks, alteration, and citation omitted). “Evidence that a risk was ‘obvious or otherwise
must have been known to a defendant’ may be sufficient for a fact finder to conclude that
the defendant was actually aware of the risk.” Id. (quoting Brock v. Wright, 315 F.3d 158,
164 (2d Cir. 2003)).
The 	Amended 	Complaint 	alleges 	that 	COVID-19 	safety 	protocols 	were 	not
enforced at Gowanda, and that in the face of his express complaints to Defendants
Schneider, Lockwood, and Haque, they told him that he should not have been sentenced
to prison if he did not want to experience such conditions. They also allegedly refused to
take any additional action to protect prisoners from being exposed to COVID-19. 	The
Court finds that these allegations adequately allege Defendants’ personal involvement in
the safety protocol deficiencies alleged by Plaintiff. Generously construing the pleadings,
as the Court must, Plaintiff’s conditions of confinement claim is sufficient to proceed to
service against Schneider, Lockwood, and Haque.
His claim fails, however, with respect to Defendant’s Morley, Annucci, and
Cuomo. To the extent that Plaintiff alleges that they failed to respond to his complaints,
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the failure to respond to letters protesting unconstitutional actions and/or requesting an
investigation is, without more, insufficient to establish personal involvement. See Haley
v. Tryon, 12 F. Supp. 3d 573, 576 (W.D.N.Y. 2014); Shell v. Brzezniak, 365 F. Supp. 2d
362, 374 (W.D.N.Y. 2005) (finding no personal involvement where sole complaint is that
supervisory officials ignored letter alleging unconstitutional conduct). At most, however,
Plaintiff is alleging that Morley did not respond to his written complaints to Plaintiff’s
satisfaction. The claims against Morley, Annucci, and Cuomo as to the conditions of
confinement at Gowanda are dismissed with prejudice for lack of personal involvement.
See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (“[A] defendant in a Section 1983
action may not be held liable for damages for constitutional violations merely because
he held a high position of authority.”); Breton v. Lamont, No. 3:21-CV-719 (SRU), 2021
WL 3726011, at *5 (D. Conn. Aug. 23, 2021) (finding “bare allegation” that plaintiff wrote
to governor “insufficient to establish” governor’s personal involvement in alleged Eighth
Amendment violation related to COVID-19).
B. 	Inadequate Medical Care
To the extent that Plaintiff reasserts a violation of his Eighth Amendment right to
adequate medical care, this claim is dismissed with prejudice.
As stated in the initial screening order, for the denial of medical care to amount to
the “cruel or unusual punishment” prohibited by the Eighth Amendment, Plaintiff must
show that Defendant’s actions or omissions amounted to “deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Harrison v. Barkley,
219 F.3d 132, 136-37 (2d Cir. 2000) (“A serious medical condition exists where ‘the failure
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to treat a prisoner's condition could result in further significant injury or the unnecessary
and wanton infliction of pain.’ ” (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998)). 	This standard includes both an objective and a subjective component. 	Wilson,
501 U.S. at 298-99. With respect to the objective component, the court must ask whether
there has been a sufficiently serious deprivation of the prisoner's constitutional rights. Id.
With 	respect 	to 	the 	subjective 	component, 	the 	court 	must 	consider 	whether 	the
deprivation was brought about by Defendant in wanton disregard of those rights. Id.
“A [prisoner’s] complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.” 	Estelle, 429 U.S. at 106. 	Likewise, “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, 143 F.3d at
703.
In the Amended Complaint, Plaintiff again alleges in wholly conclusory fashion that
Defendants disregarded his medical vulnerabilities as they relate to the COVID-19
pandemic. As stated above, Morley is accused of ignoring Plaintiff’s petitions, letters, and
grievances, “push[ing] the problem to local medical staff,” and suggesting that Plaintiff
seek medical parole, which was unsuccessful. It is yet unclear what COVID-19 policies
Morley and Haque, as Gowanda’s health services director, failed to implement at the
facility level, what specific medical relief was refused by them or any other provider, and
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how these Defendants were personally involved in Plaintiff’s medical treatment, if at all.
Thus, even assuming that Plaintiff’s claim meets the objective component, he does not
inadequate treatment, personal involvement, or deliberate indifference on the part of any
named Defendant. This claim is dismissed with prejudice.
C. 	Equal Protection
Plaintiff again alleges that Defendants violated his Fourteenth Amendment right to
equal protection by “discriminating against him . . . based on his severe health conditions,
while DOCCS actions (or lack-of) puts him at severe risk of death by giving him no choice,
no recourse and forcing him to be housed in such extremely dire and risky prison
conditions.” ECF No. 5 at 28.
As set forth in the initial screening order, a state may not “deny to any person within
its jurisdiction the equal protection of the laws.” 	U.S. Const. Amend. XIV. 	At its core,
equal protection prohibits the government 	from 	treating similarly situated persons
differently. 	See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985);
Sound Aircraft Services, Inc. v. Town of East Hampton, 192 F.3d 329, 335 (2d Cir. 1999).
Generalized allegations are insufficient to make out an equal protection claim. See
Crawford-El v. Britton, 523 U.S. 574, 592 (1998) (“When intent is an element of a
constitutional violation, . . . the primary focus is not on any possible animus directed at
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the plaintiff; rather, it is more specific, such as an intent to disadvantage all members of
a class that includes the plaintiff.”).
In order to claim that Defendants’ conduct violates his equal protection rights,
Plaintiff must allege that:
(1) . . . compared with others similarly situated, [he] was selectively treated,
and (2) the selective treatment was motivated by an intention to discriminate
on the basis of impermissible considerations, such as race or religion, to
punish or inhibit the exercise of constitutional rights, or by a malicious or
bad faith intent to injure the person.
FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992) (citing Wayte v. United States,
470 U.S. 598, 608-09 (1985)). The amended pleadings fail to correct the deficiencies of
the original Complaint. 	Again, there is no indication of selective treatment based on
Plaintiff’s medical vulnerabilities, the exercise of constitutional rights, or a bad faith intent
to injure. “[A] plaintiff's mere subjective belief that he was discriminated against does not
sustain a discrimination claim.” Sethi v. Narod, 12 F. Supp. 3d 505, 536 (E.D.N.Y. 2014)
(internal quotation marks and alterations omitted). 	Plaintiff’s equal protection claim is
dismissed with prejudice.
D. 	ADA and RA Claims
Title II of the ADA “proscribes discrimination against the disabled in access to
public services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009) (internal quotation marks
omitted). The statute provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 	Id. (quoting 42 U.S.C. § 12132). 	To meet this requirement, “ ‘reasonable
accommodation’ may have to be provided to the qualified individual.” 	Id. at 73 (internal
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quotation marks omitted). 	Similarly, Section 504 of the RA provides that “[n]o otherwise
qualified individual with a disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial assistance.” 	29
U.S.C. § 794(a). “[A]lthough there are subtle differences between these disability acts, the
standards adopted by Title II of the ADA for State and local government services are generally
the same as those required under section 504 of federally assisted programs and activities.”
See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (internal quotation marks
omitted). Individuals can be sued only in their official capacities under these statutes. Keitt
v. New York City, 882 F. Supp. 2d 412, 425-26 (S.D.N.Y. 2011).
To establish a prima facie violation of either statute, a plaintiff must show that: (1) he
“is a qualified individual with a disability”; (2) “defendants are subject to one of the Acts”; and
(3) he was “denied the opportunity to participate in or benefit from defendants’ services,
programs, or activities, or was otherwise discriminated against by defendants, by reason of
[his] disability.” D.K. v. Teams, 260 F. Supp. 3d 334, 368 (S.D.N.Y. 2017) (quoting Powell v.
Nat. Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir. 2004) (internal quotation marks
omitted)). 	Here, Plaintiff alleges that while he received certain medical accommodations,
including a sneaker pass, a lower floor pass to avoid stairs, and a pass to engage in desk
jobs with limited or no physical work, he was denied “an accommodation from Covid-19.”
ECF No. 5 at 27. Plaintiff requested to be “placed in a single man room or a Covid-19 free
dorm for high risk individuals or temporary home confinement.” 	Id. 	He was “denied relief”
and “ridiculed” by Haque and Lockwood, “who said they are either not interested or not able
to provide the accommodations as they have bigger problems to deal with” and that “if it
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bothers [Plaintiff,] he should not have come to jail.” Id. 	Plaintiff further alleges that he “was
denied the opportunity to participate in programs, spend his time in library and law library and
yard and participate in normal activities enjoyed by other inmates” because “he was not given
an accommodation which would have allowed him to participate in these programs.” 	Id. at
27.
First, Plaintiff does not allege what “accommodation” he was denied with respect to
such “programs” or “normal activities,” including the library and the recreation yard. Plaintiff
states only that he was denied a single room, COVID-free housing, and release, none of
which relate to the listed facility programs. 	Second, there is no allegation that Defendants
discriminated against Plaintiff on the basis of his medical conditions. 	See, e.g., Fowler 	v.
Dep't of Correction, No. 3:18-CV-01635 (JAM), 2019 WL 2176304, at *4 (D. Conn. May 20,
2019) (“Because [plaintiff] does not allege that DOC discriminated against him because of his
[medical conditions], he has not alleged plausible grounds for relief as to his alleged
mistreatment relating to” those conditions.). Plaintiff’s ADA and RA claims are dismissed with
prejudice.
CONCLUSION
For the reasons set forth above, Plaintiff’s Eighth Amendment conditions of
confinement claim will proceed to service against Defendants Schneider, Lockwood, and
Haque. 	His remaining claims are dismissed with prejudice pursuant to 28 U.S.C. §
1915A, and Defendants Morley, Annucci, Cuomo, and DOCCS are terminated as parties
to this action.
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ORDER
IT HEREBY IS ORDERED that the Clerk of Court is directed to add Haque as a
Defendant and cause the United States Marshals Service to serve copies of the
Summons, Amended Complaint and this Order upon Defendants Schneider, Lockwood,
and Haque without Plaintiff’s payment therefor, unpaid fees to be recoverable if this action
terminates by monetary award in Plaintiff’s favor;
FURTHER, that the Clerk of Court is directed to forward a copy of this Order by
email to Ted O'Brien, Assistant Attorney General in Charge, Rochester Regional Office
<Ted.O’Brien@ag.ny.gov>; and
FURTHER, that the Clerk of Court utilize the mailing address for non-inmate mail
provided by the New York State Department of Corrections and Community Supervision's
website as needed;
FURTHER, that pursuant to 42 U.S.C. § 1997e(g), Defendants are directed to
respond to the Amended Complaint.
IT IS SO ORDERED.
Dated: October 1, 2021
Rochester, New York
_______________________________________
HON. FRANK P. GERACI, JR.
District Judge, United States District Court
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