Brock v. Avanzado

Background

Vincent A. Brock, representing himself and proceeding without prepaying filing fees, sued medical personnel under 42 U.S.C. § 1983. He alleged that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The defendants moved to dismiss the complaint for failure to state a claim.

Brock alleged that he injured his right toe at Fishkill Correctional Facility in November 2017. He claimed that the injury worsened from a minor abrasion to a painful, black, and heavily bleeding condition, while he repeatedly sought medical attention. A hospital vascular surgeon allegedly diagnosed gangrene and said that amputation was necessary. Brock alleged that his right leg was amputated below the knee after three surgeries.

Brock also alleged that he injured his left big toe at Fishkill in November 2018. He claimed that Dr. Zamilus prescribed dressings, antibiotic ointment, and later Epsom salt soaks, but did not prescribe oral antibiotics. Brock alleged that other medical providers told him to stop the soaks and that, after he was transferred to Wende Correctional Facility, three toes on his left foot were amputated.

Legal standard

To state an Eighth Amendment medical-care claim, Brock had to plausibly allege both that his medical condition or the inadequate treatment was sufficiently serious and that the defendant knew of and consciously disregarded a substantial risk of serious harm. Mere negligence, medical malpractice, or disagreement over treatment is not enough. Because Brock was representing himself, the court read his filings liberally, including certain allegations raised in his opposition papers and supporting declaration.

Rulings on the federal claims

The court held that Brock did not plausibly state a claim against Nurse Awaka. The court noted that Brock alleged the initial injury was a minor abrasion and did not allege that Awaka failed to provide the ointment and bandages she said she would obtain. The court also found no sufficient allegation that Awaka knew about or participated in treating the later left-toe injury. The claim against Awaka was dismissed.

The court also dismissed the claims against Nurses Harewood and Stevens. Brock alleged that Harewood said she would put him on a list to see a doctor and that Stevens would put him at the top of the list. The court found no facts showing that either nurse failed to take reasonable measures or acted with the required awareness of a serious risk. The court separately dismissed allegations that the nurses sometimes failed to change Brock’s bandages because those allegations did not plausibly show deliberate indifference.

The court dismissed the claims against Nurse Milanes. Regarding the right-toe injury, Brock alleged that Milanes said she would notify the doctors and that he would be seen urgently; the court found that any failure to follow up, as alleged, amounted at most to negligence. Regarding the left-toe injury, Brock alleged that Milanes had Dr. Zamilus examine him soon after he reported it. The court also found insufficient factual allegations that Milanes knew about and recklessly disregarded Brock’s peripheral vascular disease.

The court dismissed the claim against Dr. Parikh. Although Brock alleged that nurses said they would ask Parikh to see him, the court found that Brock did not plausibly allege that Parikh knew of a substantial risk of serious harm. The court found insufficient his allegation that Parikh was present during his pain and later walked out of the nurses’ station after Brock asked to see him.

The court allowed the claim against Dr. Avanzato concerning the right-toe injury to proceed. Brock alleged that Avanzato learned about the injury, prescribed dressings and antibiotic ointment without examining him, and did not examine or change the treatment after the toe became black, bled heavily, and made walking difficult. Brock also alleged that Avanzato ignored his peripheral vascular disease. The court found these allegations sufficient at the dismissal stage to plausibly suggest that Avanzato knew of and disregarded a substantial risk of serious harm.

The court also allowed the claim against Dr. Zamilus concerning the left-toe injury to proceed. Brock alleged that Zamilus prescribed Epsom salt soaks after the toe became black and more painful, did not prescribe oral antibiotics despite Brock’s request, and failed to account for Brock’s peripheral vascular disease. Allegations that a vascular surgeon told Brock to stop the soaks because they were worsening the toe, and that later providers said different antibiotics should have been used, supported the court’s conclusion that the treatment was plausibly inadequate and potentially reckless rather than merely negligent.

State-law claims and disposition

The court dismissed any state-law medical-malpractice and negligence claims. It applied New York Correction Law § 24, which provides immunity for New York Department of Corrections and Community Supervision employees sued personally for damages arising from acts within the scope of their employment. The court found that Brock’s allegations did not suggest the defendants acted outside that scope.

The court’s order was granted in part and denied in part. The Clerk was directed to terminate Dr. Parikh and Nurses Awaka, Harewood, Stevens, and Milanes from the docket. Dr. Avanzato and Dr. Zamilus were ordered to answer the complaint. The court also certified that an appeal would not be taken in good faith and denied Brock permission to proceed without prepaying fees for an appeal.