21-2292 Collymore v. Commissioner of D.O.C. IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________

August Term, 2022 Argued: March 21, 2023 Decided: July 14, 2023

No. 21-2292 ____________________ ANTHONY T. COLLYMORE,

Plaintiff - Appellant,

v.

KRYSTAL MYERS, RN; all defendants are being sued in their individual capacity, K. PHILLIPS, RN/MEDICAL SUPERVISOR; all defendants are being sued in their individual capacity, CHENA MCPHERSON, APRN; all defendants are being sued in their individual capacity,

Defendants - Appellees,

COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS, All defendants are being sued in their individual and official capacities, WARDEN, OF MACDOUGALL, All defendants are being sued in their individual and official capacities, ROBERT MARTIN, All defendants are being sued in their individual and official capacities, LIGHTNER, MS., H.S.A. OF MACDOUGALL, All defendants are being sued in their individual and official capacities, JOHN DOE #1, All defendants are being sued in their individual and official capacities, JOHN DOE #2, All defendants are being sued in their individual and official capacities, JOHN DOE #3, All defendants are being sued in their individual and official capacities, JANINE BRENNAN, All defendants are being sued in their individual and official capacities,

Defendants

____________________

Before: JACOBS, LYNCH, and LEE, Circuit Judges.

Anthony T. Collymore appeals from the order of the United States District Court for the District of Connecticut (Covello, J.) dismissing his initial and amended § 1983 complaints alleging deliberate indifference to his painful scalp condition by several prison officials and medical providers. The district court dismissed several defendants identified in his initial complaint sua sponte under the prisoner screening statute, 28 U.S.C. § 1915A(b), and granted limited leave to amend against two defendants. After Collymore amended his complaint, the district court again dismissed, this time on the ground that Defendants were entitled to qualified immunity, as Collymore had failed to plead a sufficiently “serious medical condition.”

We VACATE and REMAND.

____________________

LAUREN E. MATLOCK-COLANGELO (Omar A. Khan, on the brief), Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Plaintiff-Appellant. THOMAS J. PLUMRIDGE (Edward W. Mayer, Jr., on the brief), Danaher Lagnese, P.C., Hartford, CT, for Defendant-Appellee Chena McPherson, APRN. JAMES M. BELFORTI, Assistant Attorney General (William Tong, Attorney General, Joshua Perry, Solicitor General, on the brief), Hartford, CT for Defendants-Appellees Myers and Phillips.

2 DENNIS JACOBS, Circuit Judge:

Anthony T. Collymore, an inmate at the MacDougall-Walker Correctional

Institution, sued pro se under

alleging that the defendants failed

for years to provide him with adequate medical care for painful infections and

lesions on his scalp, in violation of the Eighth Amendment. He appeals by

counsel from a final judgment of the United States District Court for the District

of Connecticut (Covello, J.), dismissing his claims. His initial complaint (“Initial

Complaint”) named five administrators (collectively, the “Administrator

Defendants”) and three John Doe medical professionals. That complaint was

dismissed sua sponte prior to service on the defendants and without leave to

amend as to the administrators. An Amended Complaint omitted the

administrators (no leave to amend having been given as to them), and named in

addition three nurse defendants: Krystal Myers, K. Phillips, and Chena

McPherson (collectively, the “Nurse Defendants”). The Amended Complaint

was dismissed, after service, on the ground of qualified immunity because there

is no Supreme Court or Second Circuit decision holding that a scalp condition

constitutes a serious medical condition.

3 We conclude that the appeal from the judgment brings up for review the

dismissal of both complaints, that the Initial Complaint should not have been

dismissed against the Administrator Defendants on the ground of frivolousness

prior to service and without leave to amend, and that the Amended Complaint

should not have been dismissed on the qualified immunity ground adduced by

the district court. We therefore VACATE and REMAND for further

proceedings consistent with this opinion.

The Initial Complaint is considered in Point I and the Amended

Complaint, in Point II. Both were filed pro se, and are somewhat disordered; so

too is the course of procedure. We do our best.

I

The facts adduced are drawn from the Initial Complaint, filed on March 8,

2021, which alleges that starting in 2014 or so, Collymore experienced “a serious

condition of [the] scalp” that over time resulted in itching, irritation, and the

formation of painful scabs and open sores that bled and oozed pus. Complaint

at 8.

4 The condition worsened in 2017, while Collymore was in the MacDougall-

Walker Correctional Institution (“MacDougall”). After reaching out to other

officials, Collymore on August 11, 2017, requested medical care from a Health

Services Administrator, defendant Lightner (“HSA Lightner”). Writing again to

HSA Lightner on April 22, 2019, Collymore advised that his condition had

worsened and was again infected, that his pain was “intolerable,” and that his

efforts to get medical attention had failed to yield a diagnosis or effective

treatment.

HSA Lightner allegedly “failed in her administrative role to

ensure that [Collymore] received adequate medical care. And because of

Defendant Lightner’s failure to act[,] [Collymore’s] condition persisted and

worsened.”

at 8B.

The treatments administered by the John Doe Defendants were allegedly

ineffective, and requests to see a specialist were denied. One John Doe

Defendant sent by the block officer at first refused to treat Collymore, and later

prescribed a course of antibiotics that cleared up his infections only temporarily.

In the period 2014 to 2019, when Collymore was first at MacDougall, he

told the warden (defendant Chapdelain) in writing and in person that he was

receiving inadequate treatment.

5 At the end of 2019, Collymore was transferred from MacDougall to

Corrigan-Radgowski Correctional Center (“Corrigan”), where an unidentified

doctor administered antibiotics and a medicated shampoo, but advised that there

would be a long wait to see a dermatologist. When the prescription ran out,

Collymore’s condition regressed. A medical grievance filed on March 1, 2020

claimed that the pain was intolerable and demanded further treatment. Three

weeks later, Collymore wrote to the Corrigan warden (defendant Martin), who

wrote back on March 23, 2020, to say that “I have been informed by medical that

you have been referred to dermatology, but due to COVID-19, all non-urgent

appointments are being postponed.”

at 8G. On July 13, 2020, Collymore

wrote to the Commissioner of the Department of Corrections (defendant Cook),

who did not respond.

In August and October 2020, Collymore sent more grievances to defendant

health services review coordinator Janine Brennan (“HSRC Brennan”) which

were “Returned Without Disposition.” Id at 8I. HSRC Brennan allegedly

“obstruct[ed] . . . the grievance process” by failing to resolve his case or listen to

his appeals.

During this grievance process, Collymore complained directly

to Warden Martin about HSRC Brennan. Over the ensuing months, Collymore

6 continued to make complaints and file grievances. His scalp condition

ultimately resulted in painful keloid scarring.

On March 8, 2021, Collymore filed his Initial Complaint pro se against

Commissioner Cook, Warden Chapdelain, Warden Martin, HSA Lightner, HSRC

Brennan, and three John Does. The district court screened this Initial Complaint

and dismissed it sua sponte via an initial review order, pursuant to 28 U.S.C.

§ 1915A(b). Under that statute, district courts are instructed to “review . . . a

complaint in a civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity” and “dismiss the

complaint, or any portion of the complaint, if the complaint . . . is frivolous,

malicious, or fails to state a claim upon which relief may be granted[.]” 28

U.S.C. § 1915A(a)–(b). Because the dismissal was done sua sponte under the

prisoner screening statute, the original defendants were never served.

The initial review order stated that Collymore failed to state a cognizable

claim but noted that “Collymore may file an amended complaint against Drs.

Doe 2 and Doe 3 only if he can allege facts showing that one or both doctors

7 treated him frequently and did not alter treatments that proved ineffective.” 1

App’x at 19. A subsequent order directed Collymore “to file an amended

complaint, including his claims against the two additional medical providers,

within 20 days of the date of this order. The amended complaint shall allege

facts showing that these defendants treated the plaintiff with some frequency

and did not alter ineffective prior treatment.” D. Ct. ECF No. 12.

Collymore amended his complaint to name only the Nurse Defendants:

Myers, McPherson, and Phillips. This appeal was filed after the District Court

dismissed the Amended Complaint, and the Nurse Defendants argue that we

should treat the appeal as pertaining only to the Amended Complaint, but we

decline to do so. The form used by Collymore for the notice of appeal gives the

appellant the option to select whether the appeal is from 1) the final judgment, or

2) a specific “order” of the court, with a blank space to specify the date of

appealed ruling. Collymore, who had been appearing pro se up to that point,

selected neither – that is, he did not specify whether he was appealing from the

1 Dr. Doe 1 was dismissed on the ground that the claim against him was time- barred.

8 final judgment or merely from the order dismissing the Amended Complaint,

both of which were dated September 10, 2021 – but noted that he was appealing

a ruling from that date. 2

Although a notice of appeal must “designate the judgment, order, or part

thereof being appealed,” Elliott v. City of Hartford,

(2d Cir.

2016) (quoting Fed. R. App. P. 3(c)(1)(B)), “[a]s long as [a] pro se party’s notice of

appeal evinces an intent to appeal an order or judgment of the district court and

appellee has not been prejudiced or misled by the notice, the notice’s technical

deficiencies will not bar appellate jurisdiction,”

(quoting Grune v.

Coughlin,

(2d Cir. 1990)). Accordingly, where, as here, a pro se

litigant – appealing after the entry of final judgment – fails to specify the order

2 Collymore’s motion for appointment of pro bono appellate counsel references only the Amended Complaint; but a motions panel of this Court granted the motion and identified as an issue “whether the district court erred in dismissing Appellant’s initial complaint.” When the motions panel asked for briefing on this issue, it ruled implicitly that this Court has jurisdiction to review the dismissal of the Initial Complaint. We can revisit, but the Nurse Defendants’ arguments to the contrary are unavailing.

9 from which the appeal is taken, we have consistently viewed a notice of appeal

liberally and assume an intent to appeal from the final judgment. 3

Even if a notice of appeal is construed as specifying the district court’s

order dismissing the Amended Complaint, Rule 3 of the Federal Rules of

Appellate Procedure provides that “a notice of appeal encompasses the final

judgment . . . if the notice designates . . . an order that adjudicates all remaining

claims and the rights and liabilities of all remaining parties.” Fed. R. App. P.

3(c)(5)(A); see also Elliott,

(noting that “in the absence of prejudice

to an appellee, we read a pro se appellant’s appeal from an order closing the case

as constituting an appeal from all prior orders”).

3 See Frederick v. United Bhd. Of Carpenters & Joiners of Am.,

(2d Cir. 2016) (summary order) (“Because [the pro se plaintiff] filed the notice of appeal after judgment was entered but did not correctly identify the entry date of any order or the judgment, the notice of appeal should be liberally construed to designate the judgment.” (citing Phelps v. Kapnolas,

(2d Cir. 1997))); Yong Kui Chen v. Wai Yin Chan,

(2d Cir. 2015) (summary order) (“While [the pro se plaintiff’s] notice of appeal specifies that he appeals from [an order regarding damages], we construe his notice liberally as an appeal from the final judgment that confers jurisdiction over [his] challenges to the district court’s evidentiary rulings at trial that are subsumed in that judgment.”); see also Wang v. Verizon Commc’ns Inc., No. 22-128,

, at *1 (2d Cir. Jan. 19, 2023) (summary order) (explaining that “a failure to specify a particular order does not limit the scope of the appeal” (citing Fed. R. App. P. 3(c)(5)(A))).

10 And of course, an appeal from a final judgment allows appeal of all prior

interlocutory orders. Phelps v. Kapnolas,

(2d Cir. 1997).

Having decided that the Court has jurisdiction over the dismissal of the

Initial Complaint, we now conclude that that dismissal was improper. The

Initial Complaint was dismissed sua sponte under the prisoner screening statute

at 28 U.S.C. § 1915A(b), which allows dismissal of a complaint that is “frivolous,

malicious, or fails to state a claim upon which relief may be granted[.]” This

Court reviews sua sponte dismissals under the screening statute de novo.

McEachin v. McGuinnis,

(2d Cir. 2004). The dismissal of the

initial complaint against all Defendants on grounds of frivolousness was

improper because Collymore stated a non-frivolous claim that his Eighth

Amendment rights were violated. Moreover, that error was compounded by the

denial of leave to amend, which exceeded the district court’s discretion. See

Commander Oil Corp. v. Barlo Equip. Corp.,

(2d Cir. 2000).

“Sua sponte dismissal of pro se prisoner petitions which contain non-

frivolous claims without requiring service upon respondents or granting leave to

amend is disfavored by this Court.” Moorish Sci. Temple of Am., Inc. v. Smith,

(2d Cir. 1982) (citing cases); see also Benitez v. Wolff,

(2d Cir. 1990) (“Sua sponte dismissal of a pro se complaint prior to

service of process is a draconian device, which is warranted only when the

complaint lacks an arguable basis either in law or in fact. Where a colorable

claim is made out, dismissal is improper prior to service of process and the

defendants' answer.” (citations and internal quotation marks omitted)). In the §

1983 context, such dismissals are “inappropriate” – regardless of the merits – if

the complaint alleges that “(1) the defendant was a state actor . . . when he

committed the violation and (2) the defendant deprived the plaintiff of rights,

privileges or immunities secured by the Constitution or laws of the United

States.” Milan v. Wertheimer,

(2d Cir. 2015) (internal

quotation marks omitted).

“Our reluctance to dismiss [pro se] complaints at such an early stage of the

proceedings stems in part from the limited legal knowledge and resources

available to pro se plaintiffs, which may hamper their ability to articulate

potentially valid claims in legally cognizable language.” McEachin,

. “We have also noted the difficulties attendant to appellate proceedings

where the defendant has not answered the plaintiff's allegations and the waste of

12 judicial resources that results when remand for fact development proves

necessary.”

(citations omitted).

Collymore’s Initial Complaint had “an arguable basis . . . in [both] law

[and] fact.” Benitez,

. His pro se complaint is factually

consistent and legally coherent: it alleges gruesome details about his scalp

condition, and narrates how he frequently sought treatment over the course of

five years without eliciting adequate care. Its flaws raise questions of

supervisory liability that are not before us on this appeal. Rather, the question

is whether “a liberal reading of [the Initial Complaint] gives any indication that a

valid claim might be stated.” McEachin,

(internal quotation

marks omitted). The Initial Complaint withstands that lenient test. Under

these circumstances, the sua sponte dismissal of Collymore’s claims against the

Administrative Defendants on frivolousness grounds was erroneous, and the

error was compounded by the denial of leave to amend. See Abbas v. Dixon,

(2d Cir. 2007) (explaining that 1915A(b) “dismissals must accord the

inmate an opportunity to amend the complaint unless the court can rule out any

possibility, however unlikely it might be, that an amended complaint would

succeed in stating a claim”).

13 II

After the district court granted leave to amend only as to two of the John

Doe Defendants, Collymore filed a motion seeking to identify those two

remaining John Doe Defendants as a “Dr. Feder” and nurse Kara Phillips. The

court granted this motion on April 19, 2021. Collymore filed a second motion to

amend and to stay the case on May 3, 2021, claiming that new information had

come to light via the Freedom of Information Act, and that Collymore would

now seek to name not a “Dr. Feder and Kara Phillips,” but rather two different

treating nurses, Chena McPherson and Krystal Myers. The district court denied

the request for a stay of proceedings but granted the part of the motion

requesting leave to amend:

The plaintiff is hereby directed to file an amended complaint, including his claims against the two additional medical providers, within 20 days of the date of this order. The amended complaint shall allege facts showing that these defendants treated the plaintiff with some frequency and did not alter ineffective prior treatment.

D. Ct. ECF No. 12.

Collymore filed his Amended Complaint against McPherson, Myers and

Phillips on May 20, 2021. (The amendment did not strictly conform to the

14 order’s instructions directing Collymore to amend, but no issue has been made of

it). The Amended Complaint alleged the same underlying facts regarding the

symptoms and severity of his scalp condition and provided the following

examples of alleged deliberate indifference to that condition on the part of the

three Nurse Defendants:

McPherson: During Collymore’s first visit with McPherson in May 2019,

he told her that a “sebex shampoo,” prescribed by the medical staff was

ineffective and he asked to see a specialist. Am. Compl. at 7. McPherson

examined his scalp and continued the sebex shampoo without referring him to a

doctor. McPherson’s medical report described the condition as a “rash” and did

not mention the open sores. Id. at 8.

On a second visit, McPherson made Collymore choose between addressing

his scalp or an unrelated heart condition. After he elected to be examined for

the heart condition, her report omitted reference to his scalp. When Collymore

again saw McPherson about his scalp in August 2019, she prescribed a different

shampoo for two months and a cream for three months. However, he

ultimately received the same sebex shampoo, and the cream ran out in a month.

15 Myers: Collymore saw Myers in October 2019, and asked to be seen by a

specialist. Myers said she would put him on the list to see the doctor, but failed

to do so; and her report dismissed his scalp condition as “slightly red [and]

itchy.” Id. at 8-9. In December, Myers gave Collymore enough antibiotics for a

few days, and refused to schedule a doctor’s appointment.

Phillips: After his transfer to Corrigan, Collymore sent three letters to

Phillips in February and March 2020, advising that his worsening condition

required the attention of a doctor. She provided no treatment but ultimately

said he would be seen by a dermatologist. In September, Collymore wrote

again to Phillips, asking to go to the hospital for scalp treatment. Phillips

responded that he was “on the list to see dermatology.” Id. at 14. She repeated

that assurance in December when he reported to her that the pain and

inflammation was such that he could no longer sleep.

In May 2021, he was still reporting that scalp pain prevented sleep, and

was told he was being “added to see the doctor.” Id. at 15. A few days later,

he again complained to a block officer, and he was sent back to the medical unit

where he again received a short course of antibiotics.

16 The Amended Complaint sought damages as well as injunctive relief in

the form of an order directing the defendants to provide him with adequate

medical care.

Nurses Myers and Phillips were served with the Amended Complaint and

promptly moved to dismiss. (Nurse McPherson did not receive service until

later.) The District Court granted the motion on the grounds that all three

Nurse Defendants were protected by qualified immunity, while ignoring

Collymore’s request for injunctive relief, which is not barred by qualified

immunity. Sudler v. City of New York,

(2d Cir. 2012). 4

In so ruling, the District Court acknowledged the Supreme Court’s

directive that “‘clearly established law’ should not be defined ‘at a high level of

generality’” for the purposes of qualified immunity analysis. App’x at 31

(quoting White v. Pauly,

(2017)). Accordingly, the court then

looked to “Supreme Court or second circuit cases [to] determine what a

reasonable officer would understand in light of that law.” Id. at 32. Both the

4Because we conclude that the district court improperly dismissed the complaint based on flawed qualified immunity analysis and remand on those grounds, we need not consider the claim for injunctive relief.

17 parties and the district court focused that case review on the first element of the

qualified immunity analysis: whether existing caselaw put the Nurse Defendants

“on notice that Collymore’s scalp condition was a serious medical need.” Id. at

33. The district court found it to be decisive that “[t]here are no United States

Supreme Court or second circuit cases holding that a scalp condition causing

painful open sores is a serious medical need.” Id. (The district court did not

consider whether the three Nurse Defendants acted in a “deliberately

indifferent” manner toward Collymore.)

We review a district court’s dismissal order de novo, “accept[ing] as true all

the material allegations of the complaint, and draw[ing] all reasonable inferences

in the plaintiff’s favor.” Anderson v. Recore,

(2d Cir. 2003).

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments.” U.S. Const. amend VIII. This includes punishments involving

“the unnecessary and wanton infliction of pain.” Gregg v. Georgia,

(1976). In order to establish an Eighth Amendment claim arising out of

inadequate medical care, a prisoner must prove “deliberate indifference to [his]

serious medical needs.” Estelle v. Gamble,

(1976). But

qualified immunity “shields public officials from liability for their discretionary

18 acts that do ‘not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Hathaway v. Coughlin,

(2d Cir. 1994) (quoting Harlow v. Fitzgerald,

(1982)).

The District Court’s analysis rested on the objective component of this

standard: whether Collymore’s medical needs were “sufficiently serious.”

Hathaway,

(internal quotation marks omitted). And that analysis

rested on the absence of “Supreme Court or second circuit cases holding that a

scalp condition causing painful open sores is a serious medical need.” App’x at

33.

However, Eighth Amendment claims for the deprivation of medical care

are not analyzed body-part by body-part, as we have observed. See Rodriguez

v. Manenti,

(2d Cir. 2015) (summary order). A leg can be

infected by gangrene as well as athlete’s foot, but only one is serious.

Conditions such as inflammation can be minor and treatable, or they can be

agonizing and resistant. The question will be whether a plaintiff plausibly

alleges a condition that produces severe and unmanaged pain. See Hathaway,

. So while “sufficiently serious” medical conditions “should not be

defined ‘at a high level of generality,’” White v. Pauly,

(2017)

19 (quoting Ashcroft v. al–Kidd,

, 742 (2011)), it is error to demand

specificity as to the site and cause of pain if it is intense and inflicted in an

“unnecessary and wanton” manner. The absence of precedents involving scalp

infection does not mean that Collymore cannot plausibly allege “chronic and

substantial pain” that is “important and worthy of comment or treatment,” and

which “significantly affects daily activities.” Brock v. Wright,

(2d Cir. 2003).

In Chance v. Armstrong,

(2d Cir. 1998), this Court addressed

painful, degenerative conditions such as Collymore’s in the dental context:

Of course, not all claims regarding improper dental care will be constitutionally cognizable. Dental conditions, like other medical conditions, may be of varying severity. The standard for Eighth Amendment violations contemplates “a condition of urgency” that may result in “degeneration” or “extreme pain.” Hathaway,

(quoting Nance v. Kelly,

(2d Cir. 1990) (Pratt, J., dissenting)). A prisoner who nicks himself shaving obviously does not have a constitutional right to cosmetic surgery. But if prison officials deliberately ignore the fact that a prisoner has a five-inch gash on his cheek that is becoming infected, the failure to provide appropriate treatment might well violate the Eighth Amendment. Compare Arce v. Banks,

, 309–10 (S.D.N.Y. 1996) (small cyst-like growth on forehead not sufficiently serious), with Gutierrez v. Peters,

, 1373–74 (7th Cir. 1997) (large cyst that had become infected was a serious medical condition).

20 Chance,

. This Court has repeatedly invoked the analysis in

Chance, noting that conditions causing pain falling “somewhere between

‘annoying’ and ‘extreme’” can be serious medical conditions, that the condition

need not be “life-threatening,” and that the pain need not be “at the limit of

human ability to bear.” Brock,

.

In sum, it is alleged that Collymore’s scalp condition causes him

“intolerable” pain that felt like his “scalp was on fire”, Complaint at 7-9; Am.

Compl. at 9, 13-14, 16; has repeatedly become infected and required antibiotics,

id; has produced scabs that ooze pus, Complaint at 20; has interfered with

Collymore’s daily life, including his ability to sleep, Complaint at 13; Am.

Compl. at 6, 10, 15; has resulted in the formation of painful keloid scars,

Complaint at 20; and has proven to be both degenerative and resistant to

treatment for years, Am. Compl. at 7-9. The right to be free from such a

condition is clearly established.

It was therefore error to dismiss Collymore’s Amended Complaint for

failure to satisfy the objective component of the Eighth Amendment deliberate

indifference standard. While it may be that the defendants did not act with

“deliberate indifference” or that some or all of the conduct can be classified as

21 malpractice at worst, the district court did not pass on those issues and this

Court will not consider them now.

Accordingly, the judgment of the District Court is VACATED and

REMANDED with respect to the Eighth Amendment claims concerning

Collymore’s scalp condition. On remand, Collymore shall be allowed to further

amend his complaint to restate his claims against the defendants named in his

Initial Complaint.

22