McNAIR v. KIRBY FORENSIC PSYCHIATRIC CENTER

See Babcock v. New York State Office of Mental Health, No. 04 Civ. 2261, 2009 WL 1598796 at *26 (S.D.N.Y. June 8, 2009) (stating that psychiatric facilities established within OMH are state agencies protected by the Eleventh Amendment).

See Hafer v. Melo, 502 U.S. 21, 25 (1991).

B. Plaintiff's Claims for Prospective Injunctive Relief Must Be Dismissed

In addition to seeking money damages, plaintiff seeks injunctive relief including an injunction against "threats, physical force, verbal abuse, [and] abuse of authority." However, plaintiff is no longer a patient at Kirby and he cannot show that he is likely to be recommitted there, given that his brief commitment in 2009 for restoration to fitness to stand trial was the first time he had ever been committed for such a purpose despite a long criminal history with numerous convictions and over twenty arrests. Because plaintiff cannot show a real and immediate threat of injury that would warrant prospective injunctive relief from the conduct of which he has complained, all claims for injunctive relief must be dismissed.

Complaint § V (Relief).

See McNair Dep. at 68, 73.

See City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983).

C. Plaintiff's Claims of Inadequate Medical Care Must Be Dismissed

Plaintiff, a pre-trial detainee, claims that defendants "repeatedly refused" to provide him with medical and psychiatric treatment. These claims must be dismissed because plaintiff has offered no evidence that defendants acted with deliberate indifference. Plaintiff's reliance on the Eighth Amendment in this regard is misplaced because the Eighth Amendment applies only to persons in prison pursuant to a criminal conviction. Here, the Fourteenth Amendment applies. Claims brought by pre-trial detainees for gross negligence or reckless failure to meet medical treatment needs are assessed under a "deliberate indifference" standard that requires satisfaction of both an objective and a subjective prong. Plaintiff cannot prove that the medical judgment exercised by Dr. Tuzel, his treating psychiatrist, was substantially below the standard of care so as to support any finding of violation of his constitutional rights.

See, e.g., Complaint ¶¶ 4-5, 25, 30, 32, and 36.

See Estelle, 429 U.S. at 104.

See Complaint ¶ 5.

See Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009).

See Groves v. State of N.Y., No. 9:09-CV-0412, 2010 WL 1257858, at *6-7 (N.D.N.Y. Mar. 1, 2010); Caiozzo, 581 F.3d at 69.

See Youngberg v. Romeo, 457 U.S. 307 (1982).

To satisfy the objective prong of the deliberate indifference standard, plaintiff must first demonstrate that he had a serious medical condition and that the condition was met with deliberate indifference by defendants. A serious medical condition must be proven objectively in the sense that "a condition of urgency" exists or that the condition "may produce death, degeneration, or extreme pain." The serious medical condition inquiry must be "tailored to the specific circumstances of each case." Where, as in this case, the serious medical need claim concerns only a "temporary delay or disruption of otherwise adequate medical treatment," courts focus on "the challenged delay or interruption in treatment" rather than on the "underlying medical condition alone." To meet the subjective prong of the deliberate indifference test, plaintiff must prove that defendants had a sufficiently culpable state of mind, a state of mind equivalent to criminal recklessness. Plaintiff must demonstrate that defendants were "`aware of facts' from which one could infer that "a substantial risk of harm' exists, and that [they] drew that inference."

See Groves, 2010 WL 1257858, at *7 (citing Caiozzo, 581 F. 3d at 72).

Hathaway v. Coughlin, 99 F. 3d 550, 553 (2d Cir. 1996).

Smith, 316 F. 3d at 185.

Bellotto v. County of Orange, No. 06-1185-pr, 2007 WL 2808028, at *3 (2d Cir. Sept. 26, 2007) (citing Smith, 316 F. 3d at 185 (noting that there is no "precise metric" for evaluating such claims)).

See Hathaway, 99 F.3d at 553.

Bellotto, 2007 WL 2808028, at *3 (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Accord Silvera v. Connecticut Dep't of Corr., No. 3:09CV1398, 2010 WL 2232471, at *6 (D. Conn. May 27, 2010) (citing Weyant v. Okst, 101 F. 3d 845, 856 (2d Cir. 1996)).

1. Plaintiff Cannot Establish that Defendants Were Deliberately Indifferent to His Heart Condition

Plaintiff, who suffers from congestive heart failure, alleges that defendants Dr. Tuzel and Cuff were deliberately indifferent to his serious medical condition by withholding his heart medication in retaliation for his complaining about missing legal papers. The record reflects, however, that plaintiff was treated for his pre-existing heart condition by his attending medical specialist, Dr. Evangelista, who is not named as a defendant in this case. Plaintiff cannot show, therefore, that Dr. Tuzel, a psychiatrist, ignored his pre-existing heart condition because this condition was actually treated and monitored by a non-defendant. Nor can he show that Dr. Tuzel instructed Nurse Cuff to withhold his heart medication. Therefore, plaintiff cannot establish the subjective prong of the deliberate indifference standard, which requires a state of mind equal to criminal recklessness. On the contrary, plaintiff admits that he was encouraged to take his heart medications while at Kirby. In sum, plaintiff cannot prove that defendants were deliberately indifferent to his medical needs.

See Complaint ¶ 16.

See Evangelista Decl. ¶¶ 1-2, 15-18, 28.

See Hathaway, 99 F.3d at 553.

See McNair Dep. at 161.

2. Plaintiff Cannot Show that Defendants Were Deliberately Indifferent to His Psychiatric Needs

Plaintiff's complaints concerning his psychiatric treatment are properly analyzed under the professional judgment standard set forth in Youngberg v. Romeo, which states that decisions of professionals are presumptively valid and will result in liability "only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment."

Youngberg, 457 U.S. at 320.

First, plaintiff claims that Dr. Tuzel failed to treat his "major depressive disorder" and that this failure was a substantial departure from accepted professional judgment. Dr. Tuzel determined that plaintiff did not suffer from a depressive disorder that required medication, based on his examination of plaintiff's Transfer Record and his examination of plaintiff at Kirby. Pending further observation and evaluation, Dr. Tuzel continued plaintiff on the same medication he had been prescribed at Rikers, Seroquel, an anti-psychotic medication to which plaintiff responded favorably. Dr. Tuzel also found that plaintiff displayed no signs associated with suicidal or self-injurious behavior such as feelings of depression, pain or hopelessness. Plaintiff's mental status exam revealed that plaintiff's mood was stable and appropriate although he appeared irritable; his cognitive functioning was not impaired; and he had a good awareness of the consequences of his actions. Thus, Dr. Tuzel's refusal to prescribe anti-depressant medication to plaintiff was based on sound medical judgment.

See Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 190-91 (2d Cir. 2005); Rodriguez v. City of New York, 72 F.3d 1051, 1063 (2d Cir. 1995).

Plaintiff also claims that defendants violated his rights because he requested "individualized counseling" at his treatment team meeting but was only provided with group counseling. Plaintiff cannot prove that the prescribed group therapy was substantially below the standard of care so as to violate his constitutional rights because he has no medical evidence to show that he needed individual therapy. Moreover, plaintiff's challenge to the particular therapy he received fails because he has "no right to the treatment of [his] choice."

See Complaint ¶ 4.

See Bolmer v. Olivera, 594 F.3d 134, 163 (2d Cir. 2010) (affirming objective medical standards test set forth in Rodriguez, 72 F.3d at 1063).

White v. Rosenberg, No. 07 Civ. 1807, 2010 WL 423055, at *8 (S.D.N.Y. Feb. 3, 2010) (citing United States ex rel. Hyde v. McGinnis, 429 F. 2d 864, 867-68 (2d Cir. 1970) (stating that the right of prisoner's access to medical care does not include the right to have "the type or scope of medical care which he personally desires")).

3. Plaintiff's Equal Protection Claim Must Be Dismissed

Plaintiff purports to plead a violation of the Equal Protection Clause by alleging denial of treatment and individual counseling for his alleged depressive disorder. This claim fails because plaintiff has neither alleged nor proven that defendants subjected him to discriminatory treatment based on his membership in an identifiable or suspect class. To the extent that plaintiff's claim is predicated on a "class of one" theory, that claim fails as well because plaintiff has not proffered any evidence showing how defendants intentionally treated him differently, without any rational basis, from other similarly situated Kirby patients.

See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995).

See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010) (requiring a high degree of particularity in class-of-one claims).

4. Plaintiff's Claim that Defendants Failed to Treat An Ankle Injury Must Be Dismissed

Plaintiff claims that defendant Cuff refused to examine his ankles, which he alleges were swollen for reasons related to his congestive heart failure condition. The evidence, however, is to the contrary. Plaintiff admits that he twisted his ankle playing basketball at Kirby, that the nurse on duty looked at it, and that he was treated. In sum, plaintiff cannot prove that any defendant obstructed or otherwise delayed treatment for his ankle injury. Plaintiff's claim is nothing more than a garden variety tort that is not cognizable under section 1983 and must be dismissed.

See Complaint ¶ 36.

See Flowers v. City of New York, 668 F. Supp. 2d 574, 578 (S.D.N.Y. 2009).

D. Plaintiff's Claim of Denial of Access to Courts Must Be Dismissed

To support his claim that defendants denied him access to the courts, plaintiff must show deliberate and malicious interference that actually impeded his access to a court or prejudiced an existing action. Plaintiff's "access claim" must be dismissed because he offers no evidence that any defendant deliberately and maliciously took actions, or caused actions to be taken, that actually hindered plaintiff's efforts to pursue a legal claim.

See Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).

Plaintiff alleges that he gave his social worker at Kirby, defendant Carolyn Todd, a forty-page legal document to be photocopied, but that some pages were not returned to him after copying. Plaintiff claims that this alleged failure to return all his papers caused him to miss a June 1, 2009 discovery deadline in the Stevens case, which resulted in dismissal of that case. However, plaintiff fails to set forth any evidence that defendants impeded him from contacting the court either before or after the June 1, 2009 deadline. Contrary to plaintiff's allegations, the record demonstrates that it was plaintiff's inaction before and after the June 1, 2009 discovery deadline that eventually caused the Stevens case to be dismissed. Plaintiff did not give his legal papers to Todd until June 9, 2009 at the earliest. Thus, plaintiff had failed to meet his discovery deadline before he ever gave the legal papers to Todd for copying. On June 19, 2009, Judge Harold Baer placed the Stevens case on the suspense calendar for ninety days pending dismissal if plaintiffs failed to contact the court regarding a discovery schedule. In fact, the Stevens case was not dismissed until October 7, 2009, nearly three months after plaintiff's discharge from Kirby. Consequently, the dismissal of the Stevens case cannot be attributed to any of the defendants. In addition, plaintiff's claim is moot because the Stevens case was reinstated on January 12, 2010, and thereafter settled. Plaintiff cannot show, therefore, that the alleged loss of his legal papers caused him any actual harm.

See David v. N. Y.P.D. 42nd Precinct Warrant Squad, No. 02 Civ. 2581, 2004 WL 1878777, at *4 (S.D.N.Y. Aug. 23, 2004) (finding that no reasonable juror could conclude that the dismissal of plaintiff's lawsuit resulted from the loss of his legal papers, when plaintiff failed for three months thereafter to re-file his action despite the opportunity to do so).

See Robinson v. NYS Dep `t of Corr. Servs., No. 9:08-CV-0911, 2009 WL 3246818, at *12-13 (N.D.N.Y. Sept. 30, 2009).

Finally, plaintiff cannot show that any defendant deliberately or maliciously hindered his access to the courts. The record shows that plaintiff's concerns about his missing legal papers were duly investigated. Moreover, despite the lack of evidence that any papers were missing, Todd made efforts to locate any missing papers. Plaintiff's claim that he was denied access to the courts must therefore be dismissed.

See Smith v. O'Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995) ("At best, plaintiff's allegation that his `law work' was destroyed supports the conclusion that he was temporarily inconvenienced by the loss of his papers. While understandably frustrating, it does not violate a constitutional right.").

Furthermore, in claiming that defendants denied him access to the courts, plaintiff also alleges that defendants refused to let patients mail more than two letters a day. This putative First Amendment claim fails as he cannot show that defendants "regularly and unjustifiably" interfered with his mail. Mailing restrictions imposed at an OMH psychiatric facility are properly analyzed under the same "legitimate penological interests" standard that applies to prisoners. Under Kirby policy, postage stamps are considered contraband and are prohibited because possession of such items tends to promote theft and exploitative conduct among patients. However, patients are permitted to mail two letters per day at no cost to them, beyond which they are charged the cost of mailing. Not only has plaintiff failed to show any injury arising from Kirby's mail policy, but he has also failed to show why the policy is not reasonably related to Kirby's interest in the safety and security of its patients. Therefore, his claims regarding mailing restrictions fail. E. Plaintiff's First Amendment Claims Fail

See DeLeon v. Doe, 361 F.3d 93, 94 (2d Cir. 2004).

Ahlers v. Rabinowitz, No. 08 Civ. 11091, 2010 WL 808773, at *2 (S.D.N.Y. Mar. 9, 2010) (citing Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006)). Accord Rodriguez v. James, 823 F.2d 8, 12 (2d Cir. 1987) ("A regulation affecting an inmate's attempt to send or receive mail is valid if it is reasonably related to legitimate penological interests.") (quotation marks and citation omitted).

See Davis, 320 F.3d at 351 (viewing prison mailing regulations that further "security, order, and rehabilitation" as justifiable).

Plaintiff identifies his treating psychiatrist, Dr. Tuzel, as the primary individual responsible for a series of adverse actions purportedly taken in response to plaintiff's complaints about missing legal papers. Plaintiff alleges that his ward privileges and visits were restricted, that he was subjected to intrusive searches and medication by injection, that his medical appointments were canceled and medications withheld, and that he was not treated for an ankle condition. He further alleges that Dr. Tuzel threatened him with physical force when plaintiff complained about the loss of his legal papers. As with prisoner retaliation claims, plaintiff's claims should be approached "with skepticism and particular care" because such claims may be "easily fabricated." His retaliation claims fail because plaintiff makes wholly conclusory allegations without any competent evidence that any defendant took an adverse action on the basis of plaintiff's complaining about his missing legal papers or any other matter. 1. Plaintiff's Claim That His Treating Psychiatrist Threatened Him Is Insufficient to Sustain a First Amendment Claim

See Complaint ¶¶ 11, 16, 24, 25, 34, 36.

Dawes v. Walker, 239 F 3d. 489, 491 (2d Cir. 2001).

Although plaintiff alleges that his treating psychiatrist, Dr. Tuzel, threatened him with physical force when he asked about his missing legal papers, plaintiff admits that Dr. Tuzel did not touch him and that plaintiff actually threatened Dr. Tuzel with physical harm by telling him that he "would do something to him" should he see him "in the street." Therefore, plaintiff's claim based on the threat of physical harm must be dismissed.

2. Restricted Ward Privileges, Intrusive Searches, and Medication by Injection Are Insufficient to Sustain a First Amendment Claim

Plaintiff alleges that Dr. Tuzel used Kirby's Patient Level System "as a mechanism to abuse mentally ill patients." To the extent that plaintiff means that Dr. Tuzel used the Level System to retaliate against plaintiff, the claim must be dismissed because Dr. Tuzel reduced plaintiff's privileges in response to plaintiff's threat of physical violence against him, and not because plaintiff complained about the loss of his legal papers. Dr. Tuzel reduced plaintiff's privileges in accordance with Kirby policy, under which patients who engage in verbal abuse or threatening behavior have their ward privileges restricted pending their return to nonviolent or non-threatening behavior. Therefore, plaintiff's retaliation claim in connection with the Patient Level System must be dismissed as there is no nexus between his complaints about his lost legal papers and his reduced ward privileges. Similarly, plaintiff's claim that his visiting privileges at Kirby were restricted in response to his complaints must be dismissed. Dr. Tuzel restricted plaintiff's visits over the Fourth of July weekend after he was found in possession of contraband (cigarettes) in violation of Kirby policy. In doing so, Dr. Tuzel acted in accordance with established Kirby policy. Plaintiff's inability to demonstrate that Dr. Tuzel's actions were taken pursuant to something other than established policy warrants dismissal of this claim.

Complaint ¶ 11.

See Victor v. Milicevic, No. 08-1772-pr, 2010 WL 227646, at *2 (2d Cir., Jan. 19, 2010) ("[A] plaintiff must demonstrate that constitutionally protected conduct was a substantial or motivating factor for a prison official's adverse action.") (citing Bennett, 343 F.3d at 137).

See Cruz v. Church, No. 9:05-CV-1067, 2008 WL 4891165, at *12 (N.D.N.Y. Nov. 10, 2008) (dismissing prisoner's retaliation claim in the absence of any evidence establishing a nexus between protected activity and the adverse actions complained of).

Plaintiff also claims that he was subjected to intrusive searches and medication by injection in retaliation for his complaints. The record shows, however, that plaintiff was given emergency medication by intramuscular injection and secluded for one to two hours following an incident during a ward search for contraband on July 7, 2009, in which plaintiff threatened to kill Dr. Cristina Musat and lunged at another (non-defendant) staff member before being physically restrained. Plaintiff's claim must be dismissed as has failed to offer any evidence of a causal connection between his complaints about his missing legal papers (or any other matters) and the complained-of actions.

3. Canceled Medical Appointments and Withheld Ankle Treatment Are Insufficient to Sustain a First Amendment Claim

Plaintiff alleges that Dr. Tuzel canceled two medical appointments scheduled for June 18 and June 19, 2009. Plaintiff's claim is de minimis in that the cancellation of an eye doctor appointment and a cardiology follow-up appointment does not give rise to a claim of constitutional magnitude. Moreover, plaintiff has not offered any evidence showing a causal connection between his canceled appointments and any complaints that he made. Therefore, plaintiff's purely conclusory claim that his psychiatrist canceled an eye clinic appointment and a follow-up cardiology appointment in retaliation for plaintiff's complaints must be dismissed.

See James v. Phillips, No. 05 Civ. 1539, 2008 WL 1700125, at *7 (S.D.N.Y. Apr. 9, 2008) (viewing the claim of a canceled physical therapy appointment to be a de minimis claim "not sufficiently serious to amount to a cognizable claim under any theory").

Plaintiff's further claim that his medical (i.e., non-psychiatric) medications were withheld in retaliation for his complaints must also be dismissed as plaintiff has neither produced any competent evidence that any defendant withheld his medications, nor adduced any evidence of a causal connection between his complaints about the loss of his legal papers and the allegedly retaliatory conduct. Plaintiff's claim that Dr. Tuzel directed Cuff not to administer his non-psychiatric medications is wholly conclusory and, therefore, must be dismissed because plaintiff has presented no facts to support such a claim. The record shows that defendant Cuff, the ward nurse who allegedly refused to give plaintiff his morning medications, documented plaintiff's refusal of medication on days he refused, and informed plaintiff's attending medical specialist, Dr. Evangelista (a non-defendant) and other Kirby staff of plaintiff's refusal. Plaintiff's unsupported claims are insufficient, therefore, to allow a reasonable jury to find that plaintiff's medications were withheld from him, let alone in retaliation for his complaints. Plaintiff does not even suggest any motive for either Dr. Tuzel or Cuff to retaliate against him for complaining about his legal papers.

See Shabazz v. Pico, 994 F. Supp. 460, 468 (S.D.N.Y. 1998).

See Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Key v. Toussaint, 660 F. Supp. 2d 518, 526 (S.D.N.Y. 2009) (noting the need for "skepticism and particular care" when examining prisoners' retaliation claims) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).

See Green v. Phillips, No. 04 Civ. 10202, 2006 WL 846272, at *3 (S.D.N.Y. Mar. 31, 2006) (dismissing prisoner's retaliation claims where prisoner failed, among other things, to allege why defendants would wish to retaliate against him for engaging in a hunger strike).

Plaintiff's claim that Cuff failed to treat him for an ankle injury on June 20, 2009, must be dismissed on the same basis as his other retaliation claims. The record demonstrates that plaintiff complained on two occasions about ankle pain sustained while running and playing basketball — on the weekend of June 13-14, 2009, and again between June 27 and June 30, 2009 — and was treated by medical staff on both occasions. Plaintiff has not produced evidence to the contrary that would support any alleged retaliation claim.

F. No Personal Involvement Is Alleged as to Six Defendants

In order to hold a defendant liable under Section 1983, a plaintiff must show "that each Government-official defendant, through that official's own individual actions, has violated the Constitution." Under Iqbal, a plaintiff must show purposeful activity to violate an individual's constitutional rights. Plaintiff has not done so here with regard to the following defendants.

Iqbal, 129 S. Ct. at 1948.

129 S. Ct. at 1948-49.

1. Commissioner Hogan

Plaintiff sued Commissioner Hogan solely because he is a high-level official who plaintiff contends is responsible for the actions of his subordinates. It is well settled, however, that supervisory officials "cannot be liable solely on account of the acts of omissions of his or her subordinates." Plaintiff has not shown that Commissioner Hogan participated directly in any denial of medical or psychiatric treatment, loss of legal papers, or retaliation against plaintiff. Nor has plaintiff shown that Commissioner Hogan participated at all in plaintiff's care and treatment. His only contact with Commissioner Hogan was through telephone calls to his office, at which time he spoke with the Commissioner's secretaries. Assuming, arguendo, that plaintiff communicated with the Commissioner's office, mere notification of alleged wrongdoing does not establish personal involvement under Section 1983. Therefore, all claims against Commissioner Hogan must be dismissed.

Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009).

See Gibson v. Commissioner of Mental Health, No. 04 Civ. 4350, 2008 WL 4276208, at *8 (S.D.N.Y. Sept. 17, 2008).

2. The Two Kirby Administrators

Plaintiff has offered no evidence to support his claims against Kirby's Executive Director, Steven Rabinowitz, or against Deputy Executive Director, Vincent Miccoli. He sued them on the same basis that he sued Commissioner Hogan. There is no evidence, however, that either administrator was directly involved in the challenged conduct by subordinates so as to create liability against them under Section 1983.

3. Cristina Musat, M.D., Stunis Machanical, L.C.S.W., and Jessica Klaver, Ph.D.

Dr. Musat was Kirby's Director of Psychiatry at the time plaintiff was a patient. Plaintiff named her in his Complaint merely because he believes that Dr. Musat was responsible for the actions of her subordinates and because she allegedly told plaintiff that "we make the rules here." Although plaintiff claims that he complained to Dr. Musat about his missing legal papers, mere notification of alleged wrongdoing does not establish personal involvement. Thus, his claims against Dr. Musat fail.

See Chambers v. Wright, No. 05 Civ. 9915, 2007 WL 4462181, at *3 (S.D.N.Y. Dec. 19, 2007); Joyner v. Greiner, 195 F. Supp. 2d 500, 506-07 (S.D.N.Y. 2002).

Plaintiff's allegations concerning the treatment team leader, Stunis Machanical, L.C.S.W., are similarly insufficient to establish his personal involvement. Plaintiff named him merely because Mr. Machanical, as treatment team leader, was present on at least one occasion when Dr. Tuzel and other team members listened to plaintiff's concerns about his psychiatric treatment. However, Machanical was not responsible for prescribing McNair's psychiatric or medical treatment and plaintiff's subjective beliefs to the contrary cannot overcome this fact. Finally, with regard to Jessica Klaver, the ward psychologist, McNair never spoke to her, and named her merely because she is listed on his treatment plan. Accordingly, the above defendants must be dismissed for lack of personal involvement regardless of the other deficiencies in plaintiff's Complaint.

IV. CONCLUSION

In sum, the Eleventh Amendment bars plaintiff's claims against Kirby and the individual defendants sued in their official capacities. Plaintiff's claim for injunctive relief fails because he cannot show a real and immediate threat of injury. Plaintiff's claims of inadequate medical care fail because he cannot show that defendants acted with deliberate indifference to his medical needs or that they violated his right to equal protection. Plaintiff's claim of denial of access to the courts fails because defendants did not hinder his access to the courts and there was no injury. Plaintiff's retaliation claims also fail as they are conclusory and unsupported by evidence that any defendant took an adverse action in retaliation for plaintiff's complaining. In addition, plaintiff fails to show any personal involvement on the part of the following six defendants: Commissioner Hogan, Executive Director Steven Rabinowitz, Deputy Director Vincent Miccoli, Kirby's Director of Psychiatry (Cristina Musat, M.D.), the ward psychologist (Jessica Klaver, Ph.D.), and his treatment team leader (Stunis Machanical).

For these reasons, defendants' motion for summary judgment is granted and plaintiff's Complaint is dismissed in its entirety. The Clerk of the Court is directed to close this motion (Document # 39) and this case. Because plaintiff is proceeding in forma pauperis, any appeal from this Order would not be taken in good faith.

SO ORDERED:

Dated: New York, New York

November 5, 2010