White v. Ezekwe

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

FRANK W. WHITE JR.,

OPINION AND ORDER

Plaintiff,

-against-

22-CV-04451 (PMH)

FELIX IKESHUKWU EZEKWE, et al.,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Frank W. White, Jr. (“Plaintiff”) initiated this action, pro se, on May 27, 2022 against

Defendant Felix Ikeshukwu Ezekwe (“Ezekwe” or “Defendant”) and Razia Ferdous (“Ferdous”).

(Doc. 1, “Compl.”).1 This case was assigned to me on September 9, 2022 and I entered an Order

of Service which, inter alia, dismissed all claims against Ferdous. (Doc. 7).2 Plaintiff proceeds

against Ezekwe, asserting medical claims under 42 U.S.C. 1983 that arose during Plaintiff’s

incarceration at Sing Sing Correctional Facility.

Pending before the Court is Ezekwe’s motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). (Doc. 24; Doc. 25, “Def. Br.”). Plaintiff timely opposed the motion (Doc. 28;

Doc. 26; Doc. 27, “Pl. Br.”; Doc. 28). The motion was fully briefed with the filing of Ezekwe’s

reply. (Doc. 29, “Reply”).

For the reasons set forth below, the motion to dismiss is GRANTED.

1 Citations to the documents referenced herein correspond to the pagination generated by ECF.

2 This decision is available on commercial databases. See White v. Ezekwe, No. 22-CV-04451, 2022 WL

4227096 (S.D.N.Y. Sept. 13, 2022).

BACKGROUND

Plaintiff alleges that on April 30, 2019, Ezekwe treated Plaintiff for a hairline rash with

“black tar shampoo for dandruff.” (Compl. at 4). For the next month, Plaintiff continued to visit

the medical unit to complain about the rash, when on May 31, 2019, the “black tar shampoo

[Ezekwe prescribed to treat the rash] was burning his scalp especially around the hairline.” (Id.).

“Ezekwe [then] prescribed medicated shampoo called selenium sulfide.” (Id.). On June 29, 2019,

after Plaintiff applied the sulfide shampoo to his dreadlocks and scalp, he “immediately felt a

burning sensation.” (Id.). When Plaintiff washed the sulfide out, “his dreadlocks c[a]me away at

the roots.” (Id.). Plaintiff called for help and, after handing the sulfide bottle to an unnamed nurse,

correctional staff “rushed” Plaintiff to Westchester Medical Center (“WMC”). (Id.). At WMC, the

treating physician diagnosed Plaintiff with “a fungal infection of [t]he scalp which was irritated by

medicated shampoo.” (Id.). Plaintiff saw a dermatologist who prescribed treatment for the

infection.

Plaintiff contends that he complained for “over 3 weeks for meds for burning scalp but was

ignored.” (Id.). He also alleges that in addition to suffering from headaches as a result of the sulfide

treatment, he lost his dreadlocks, which he had “been growing for over 10 years [as] a part of the

Rastafarian religion.” (Id.).

STANDARD OF REVIEW

On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the ple[d] factual

content allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted

unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Thus, the Court must “consider the legal sufficiency of the complaint, taking its factual allegations

to be true and drawing all reasonable inferences in the plaintiff’s favor.” Harris v. Mills, 572 F.3d

66, 71 (2d Cir. 2009). The presumption of truth, however, “is inapplicable to legal conclusions,

and threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. at 72. A plaintiff must provide “more than labels and conclusions”

to show entitlement to relief. Twombly, 550 U.S. at 555.

A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to

less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429

U.S. 97, 106 (1976) (internal quotation marks omitted). Because pro se plaintiffs “‘are often

unfamiliar with the formalities of pleading requirements,’ courts must ‘apply a more flexible

standard in determining the sufficiency of a pro se [complaint] than they would in reviewing a

pleading submitted by counsel.’” Smith v. U.S. Dep’t of Just., 218 F. Supp. 2d 357, 361 (W.D.N.Y.

2002) (quoting Platsky v. Cent. Intell. Agency, 953 F.2d 26, 28 (2d Cir. 1991)). However, while

“[p]ro se complaints are held to less stringent standards than those drafted by lawyers, even

following Twombly and Iqbal,” dismissal is “appropriate where a plaintiff has clearly failed to

meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-CV-06718, 2013 WL

3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Chappius,

618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a court must accept as true

all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and

threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” (internal quotation marks omitted)). Therefore, while the Court must “draw the

most favorable inferences that [a plaintiff’s] complaint supports, [it] cannot invent factual

allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. The Court does, however,

have a duty to interpret “the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the

strongest arguments that they suggest.’” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)

(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

ANALYSIS

The Court construes the Complaint as asserting two medical claims under the Eighth

Amendment: (1) Ezekwe delayed treating Plaintiff’s fungal infection, which presented as a rash;

and (2) Ezekwe inadequately treated the rash with sulfide shampoo, which resulted in Plaintiff’s

experiencing pain and losing his dreadlocks. Plaintiff, for the first time in his opposition, appears

to argue also that Ezekwe violated his religious rights in violation of the First Amendment in that

Plaintiff had lost his dreadlocks, which he had been growing for over 10 years as a part of the

Rastafarian religion, as a result of the treatment provided.3

3 Plaintiff pled the loss of his dreadlocks which he had grown as part of his religion in his Complaint.

Plaintiff first noted in his opposition to Ezekwe’s pre-motion letter that he had filed a grievance against

Ezekwe for violating, inter alia, his First Amendment rights. (Doc. 22 at 3). The Court then permitted

Plaintiff to amend his complaint (Doc. 23), but Plaintiff declined to do so. “A pro se plaintiff may not raise

entirely new causes of action for the first time in his opposition papers, but the Court may consider new

claims appearing for the first time in briefing if the claims could have been asserted based on the facts

alleged in the complaint.” Davila v. Lang, 343 F. Supp. 3d 254, 267 (S.D.N.Y. 2018). Given the liberality

afforded pro se litigants, the Court considers Plaintiff’s First Amendment claim as it could have been

asserted based on the facts alleged in the Complaint. Indeed, Plaintiff has not raised any additional

allegations to support this new claim outside of the allegations contained in the Complaint.

Because Plaintiff alleges violations of his federal constitutional rights, the Court construes

the Complaint as asserting claims under 42 U.S.C. § 1983. That statute provides, in pertinent part,

that “[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any

citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983. This

language creates a mechanism by which individuals can vindicate the violation of rights secured

elsewhere. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

I. Eighth Amendment Claims

The Eighth Amendment instructs that “[e]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted,” U.S. Const. amend. VIII, and the

Supreme Court has explained that the Eighth Amendment requires that prison officials “provide

humane conditions of confinement,” which include making sure “that inmates receive adequate

food, clothing, shelter, and medical care . . . .” Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Accordingly, prison officials must, inter alia, “take reasonable measures to guarantee the safety of

inmates in their custody.” Rennalls v. Alfredo, No. 12-CV-05300, 2015 WL 5730332, at *3

(S.D.N.Y. Sept. 30, 2015) (quoting Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 620 (2d

Cir. 1996)). As such, the Eighth Amendment “imposes a duty upon prison officials to ensure that

inmates receive adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).

“In order to establish an Eighth Amendment claim arising out of inadequate medical care, a

prisoner must prove deliberate indifference to serious medical needs.” Chance v. Armstrong, 143

F.3d 698, 702 (2d Cir. 1998). A plaintiff can prevail on a deliberate indifference to medical needs

claim under the Eighth Amendment by satisfying a two-prong test, comprised of an objective

component and a subjective component. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).

The objective component requires that the alleged deprivation in medical care be

“sufficiently serious.” Salahuddin, 467 F.3d at 279. A deprivation in medical care is sufficiently

serious if (1) “the prisoner was actually deprived of adequate medical care” and (2) “the

inadequacy in medical care is sufficiently serious.” Id. at 279–80. The latter inquiry “contemplates

a condition of urgency such as one that may produce death, degeneration, or extreme pain.”

Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019); see also Harrison v. Barkley, 219 F.3d

132, 136 (2d Cir. 2000) (holding that the medical need must be a “sufficiently serious” condition

that “could result in further significant injury or the unnecessary and wanton infliction of pain”).

When medical treatment was provided, but a complaint alleges that treatment was delayed or

inadequate, the relevant concern is not “the severity of the prisoner’s underlying medical

condition,” but the “particular risk of harm faced by a prisoner due to the challenged deprivation

of care.” Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003); see also Salahuddin, 467 F.3d at

280 (“[T]he seriousness inquiry focuses on the challenged delay or interruption in treatment rather

than the prisoner’s underlying medical condition alone.”).

The second prong of the deliberate indifference test under the Eighth Amendment is

subjective and requires that the plaintiff demonstrate that the defendant had a sufficiently culpable

state of mind. Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014). That is, the prisoner must state

facts showing that the defendant “acted or failed to act while actually aware of a substantial risk

that serious inmate harm will result.” Horace v. Gibbs, 802 F. App’x 11, 14 (2d Cir. 2020).

“Where a medical professional inadvertently or negligently fails to provide adequate care,

a prisoner cannot state a constitutional violation under the Eighth Amendment.” Curry v. Kim, No.

22-CV-04127, 2022 WL 2702744, at *3 (S.D.N.Y. July 11, 2022) (citing Estelle, 429 U.S. at 106).

A “mere disagreement over the proper treatment” is not actionable. See Chance, 143 F.3d at 703;

see, e.g., Hill, 657 F.3d at 123 (holding that medical officer who prescribed Motrin rather than

stronger pain medication to treat a broken wrist did not have the “culpable state of mind” required

to satisfy the subjective component of the deliberate indifference standard).

Plaintiff’s claims of deliberate indifference fail to satisfy the objective component of the

two-prong test. Courts in the Second Circuit have held that hair loss, itching, and other

dermatological scalp issues are not sufficiently serious medical conditions for purposes of the

objective prong of a deliberate indifference claim. See LaTouche v. Rockland County, No. 22-CV-

01437, 2022 WL 953111, at *7 (S.D.N.Y. March 29, 2022) (finding hair loss, itching, and apparent

ringworm on the scalp insufficient to constitute a sufficiently serious medical condition that

satisfies the objective prong of a deliberate indifference claim); see also Barnes v. Malavi, 412 F.

Supp. 3d 140, 143 (E.D.N.Y. 2019) (“[T]he 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.”).

Plaintiff’s complaints are that his scalp was “burning and peeling for months before,

during, and after hair loss,” that he suffers headaches, and that he lost his dreadlocks. (Compl. at

4-5). Plaintiff does not allege that his condition affected his daily activities—let alone affected

them “significantly”—or that he experienced “chronic and substantial pain.” Chance, 143 F.3d at

702. “Plaintiff’s discomfort during the period of misdiagnosis . . . notwithstanding, his condition

does not qualify as a serious medical need for the purposes of stating a claim under the

Constitution.” Samuels v. Jackson, No. 97-CV-02420, 1999 WL 92617, at *3 (S.D.N.Y. Feb. 22,

1999) (finding scabies causing open sores, abrasions, and scarring did not constitute serious

medical need); see also Hill v. Napoli, No. 09-CV-06546, 2014 WL 1322476, at *15 (W.D.N.Y.

March 31, 2014) (skin rashes, seborrhea on the scalp not a serious medical condition); Guthrie v.

United States Fed. Bureau of Prisons, No. 09-CV-00990, 2010 WL 2836155, at *5 (S.D.N.Y. July

7, 2010) (hair loss is generally not a serious medical condition).

Even if Plaintiff had established a serious medical condition, he has not shown that Ezekwe

was deliberately indifferent to it. To the contrary, Plaintiff alleges that Ezekwe, during the alleged

first sick call on April 30, 2019, assessed Plaintiff’s complaints of rash and prescribed him a

medicated black tar shampoo. (Compl. at 4-5). Ezekwe saw Plaintiff again on May 31, 2019 when

Plaintiff complained that the black tar shampoo was burning his scalp, and prescribed a different

medicated shampoo, selenium sulfide. (Id.). When Plaintiff complained that the medicated

shampoo burned his scalp and caused his dreadlocks to “come away at the roots,” he was instantly

rushed to WMC and was also brought to a dermatologist on July 1, 2019, where he was prescribed

“creams and ointments” to help relieve the burning and flaky scalp. (Id.). Plaintiff alleges that

Ezekwe ordered Plaintiff medications on the very same day he is alleged to have been notified of

Plaintiff’s burning scalp. (Id.). Plaintiff does not allege that Ezekwe intentionally or knowingly

delayed delivery of medication or appointments for Plaintiff. Rather, Plaintiff pleads that Ezekwe

attempted to provide Plaintiff with adequate medical care by providing him with multiple types of

medicated shampoos to help relieve his symptoms, and when those mediated shampoos did not

work, he sent Plaintiff to a dermatologist and later ordered medication for the pain and burning on

the scalp.

Plaintiff has alleged, at most, the existence of a difference of opinion between Plaintiff and

Defendant, or conceivably negligence on the part of Defendant. See Sledge v. Kooi, No. 04-CV-

01311, 2007 WL 951447, at *6 (N.D.N.Y. Feb. 12, 2007), adopted by, 2007 WL 969576

(N.D.N.Y. Mar. 28, 2007), aff’d, 564 F.3d 105 (2d Cir. 2009). “[E]ven if true, such a difference of

opinion, or such negligence, would not be enough to render Defendant liable to Plaintiff under the

Eighth Amendment. Id.; see also Chance, 143 F.3d at 703 (“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.”); Estelle, 429 U.S. at 106 (A complaint that a physician or a medical

department “has been negligent in diagnosing or treating a medical condition does not state a valid

claim of medical mistreatment under the Eighth Amendment [as] medical malpractice does not

become a constitutional violation merely because the victim is a prisoner”).

Accordingly, Defendant’s motion to dismiss Plaintiff’s Eighth Amendment claims of

deliberate indifference is granted.4

II. First Amendment Claim

Plaintiff also alleges that his First Amendment religious rights were violated by Ezekwe

prescribing selunium sulfide shampoo which caused Plaintiff to lose his dreadlocks. “The religion

clauses of the First Amendment, applicable to the states through the Fourteenth Amendment,

4 Defendant also argues that Plaintiff’s claims that arose on April 30, 2019 are time-barred. The statute of

limitations for § 1983 claims is found in the “general or residual [state] statute [of limitations] for personal

injury actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). In New York, that period is

three years. See N.Y. C.P.L.R. § 214(5). Section 1983 claims generally accrue when a plaintiff knows or

has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir.

2013). Plaintiff alleges that he first visited the medical clinic on April 30, 2019, and complained throughout

the month of May 2019, until he received the sulfide shampoo on May 31, 2019. The continuing violation

doctrine is an “exception to the normal knew-or-should-have-known accrual date.” Harris v. City of New

York, 186 F.3d 243, 248 (2d Cir. 1999).

It applies to claims ‘composed of a series of separate acts that collectively

constitute one unlawful [ ] practice.’ Washington v. Cty. of Rockland, 373

F.3d 310, 318 (2d Cir. 2004) (quoting Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 111 (2002)). The continuing violation doctrine

thus applies not to discrete unlawful acts, even where those discrete acts

are part of a ‘serial violation[ ],’ but to claims that by their nature accrue

only after the plaintiff has been subjected to some threshold amount of

mistreatment. Morgan, 536 U.S. at 114-115.

Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015). The delay in providing care arguably accrued at the

end of that delay, not the beginning. Thus, when Plaintiff finally visited the clinic on May 31, 2019, which

is within the three-year time period to file this complaint, and Ezekwe prescribed the sulfide shampoo, the

over-three-week delay accrued. This discussion is academic, however, given the Court’s rulings herein.

provide that ‘Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof.’” Kravitz v. Purcell, --- F.4th ----, 2023 WL 8177114, at *4 (2d Cir. Nov.

27, 2023). Alleged violations of the right to free exercise, in the prison context, are “judged under

a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of

fundamental constitutional rights.” Id. (quoting O’Lone v. Est. of Shabazz, 482 U.S. 342, 349

(1987)). Accordingly, a prisoner’s first amendment right to the free exercise of his religious beliefs

may only be infringed to the extent that such infringement is reasonably related to legitimate

penological interests. Id.; see also Turner v. Safley, 482 U.S. 78, 89 (1987); Young v. Coughlin,

866 F.2d 567, 570 (2d Cir. 1989). “In short, to assess a free exercise claim, a court must determine

(1) whether the practice asserted is religious in the person’s scheme of beliefs, and whether the

belief is sincerely held; (2) whether the challenged practice of the prison officials infringes upon

the religious belief; and (3) whether the challenged practice of the prison officials furthers

legitimate penological objectives.” Kravitz, 2023 WL 8177114, at *11.

Plaintiff alleged in the Complaint that he grew his dreadlocks as a part of his Rastafarian

religion and that he lost all his dreadlocks “at the roots” due to the treatment provided. (Compl. at

4-5). The Court thus accepts for purposes of this motion that Plaintiff has pled that his sincere

religious beliefs were burdened. Courts have held, however, that providing incarcerated

individuals with medical treatment is a legitimate penological interest. See Michael v. Perez, No.

16-CV-07850, 2017 WL 5991794, at *2 (S.D.N.Y. Dec. 1, 2017) (“The facts as alleged show

[defendant] disclosed the medical information in the course of providing emergency medical

treatment to an inmate, a legitimate penological interest”); Swinson v. City of New York, No. 19-

CV-11919, 2022 WL 142407, at *8 (S.D.N.Y. Jan. 14, 2022) (holding that prison officials had

legitimate penological interest in conducting the medical examinations in the manner described by

plaintiff). Here, because there existed a legitimate penological interest in providing Plaintiff with

medical treatment, a free exercise claim fails.

Moreover, to establish a defendant’s individual liability in the context of the Free Exercise

Clause, the defendant must have acted “with at least deliberate indifference in depriving an inmate

of the ability to engage in a religious practice.” Kravitz, 2023 WL 8177114, at *12. Plaintiff has

not alleged that Ezekwe was even aware of Plaintiff’s Rastafarian religious beliefs or that he

maintained dreadlocks for religious purposes. As discussed supra, the allegations against Ezekwe

at most amount to negligence in causing Plaintiff to lose his deadlocks, which is insufficient to

maintain a First Amendment claim against him. Negligent infringement of a prisoner’s right to

religious freedom is not actionable under the First Amendment. See Hamilton v. Countant, No. 13-

CV-00669, 2016 WL 881126, at *4 (S.D.N.Y. March 1, 2016) (colleting cases).

Accordingly, to the extent Plaintiff pleads a violation of his First Amendment rights, that

claim is dismissed.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss is GRANTED.5

Although “[d]istrict courts should frequently provide leave to amend before dismissing a

pro se complaint,” it is “not necessary when it would be futile.” Reed v. Friedman Mgmt. Corp.,

541 F. App’x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

The parties, prior to the instant motion practice, exchanged letters concerning the deficiencies in

the pleading raised by Defendant pursuant to the Court’s Individual Practices and Plaintiff advised

Defendant that he intended to stand on his pleading. (Doc. 20). The Court thereafter expressly

5 In light of the conclusions reached herein, the Court need not and does not address Defendant’s argument

regarding qualified immunity.

permitted Plaintiff the opportunity to amend his pleading (Doc. 23) and he elected not to do so. In

any event, the Court dismisses the claims alleged in Plaintiff's Complaint with prejudice as any

amendment would be futile.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Opinion and

Order would not be taken in good faith, and therefore in forma pauperis status is denied for the

purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that

an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

The Clerk of the Court is respectfully directed to terminate the motion pending at Doc. 24,

close this case, and mail a copy of this Opinion and Order to Plaintiff.

SO ORDERED:

Dated: White Plains, New York

December 11, 2023 (ym

Philip M. Halpern”

United States District Judge

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