GARY L. SHARPE, Senior District Judge.
Plaintiff Adam Daniel Roice commenced this action, which includes claims under 42 U.S.C. § 1983 and state law, against defendants Fulton County, Amy Gagne, Tina Atty, Jenna Graham, and Thomas Lorey. (Compl., Dkt. No. 1.) Roice alleges that defendants, in connection with his pretrial detention at the Fulton County Correctional Facility (FCCF), were deliberately indifferent to his serious medical needs in violation of the Fourteenth Amendment, implemented unconstitutional policies and practices, committed various forms of negligence, and inflicted emotional distress. (Id. ¶¶ 28-52.) Pending is Gagne's motion for summary judgment, (Dkt. No. 62), and the remaining defendants' (hereinafter "County defendants") motion for summary judgment, (Dkt. No. 66). For the reasons that follow, both motions are granted.
From March to May 2014, Roice was incarcerated, as a pretrial detainee, at FCCF for charges of attempted arson in the second degree and petit larceny. (Gagne's Statement of Material Facts (SMF) ¶ 1, Dkt. No. 62, Attach. 16; Dkt. No. 88, Attach. 13.) When he arrived at FCCF, Roice was told how to fill out a request form if he wanted to be seen for a medical issue. (County Defs.' SMF ¶ 4, Dkt. No. 66, Attach. 3.) During his incarceration, Roice filled out such forms and was seen by nurses in the medical unit. (Id. ¶ 5.) He also received medication twice a day from a nurse and was able to speak with the nurse as to any complaints that he had. (Id.) At various times, Roice was seen by Atty and Graham, two registered nurses at FCCF. (Id. ¶ 6.) Roice was also seen by Gagne, a nurse practitioner working at FCCF pursuant to her employment at Eastern Medical Support. (Id. ¶ 7; Gagne's SMF ¶¶ 2-3.)
During Roice's incarceration, Gagne treated him for various medical issues. She conducted the initial medical assessment of Roice on March 21, 2014, noting, among other things, his high blood pressure and allergies. (Gagne's SMF ¶ 6.) Roice also reported use of crack cocaine, alcohol, and cigarettes. (Id.) On May 9, Gagne prescribed Roice blood pressure medication, an antibiotic, allergy medication, saline spray for nasal congestion, blood pressure monitoring, a low salt diet, and commissary restriction. (Id. ¶ 8.) On May 13, Gagne diagnosed Roice with cluster headaches and hypertension, (id.), and ordered Ibuprofen and later Verapamil for him, (id. at ¶¶ 8, 9). Gagne saw Roice on May 20 and May 22 for headaches and a punctured ear drum, for which she ordered drops and arranged for a CT scan. (Id. ¶ 10.) On May 22, Roice filed a formal grievance seeking alternative medical treatment because of an ear infection, painful headaches, and high blood pressure. (Id. ¶ 19.) When an appointment was made with an outside provider, Roice discontinued the grievance. (Id.) The evening of May 28, Roice requested and received a stool softener from Graham, took his medications, and returned to his unit with no other complaints. (Id. ¶ 12; Dkt. No. 88, Attach. 7 at 15.)
On May 29, at approximately 7:30 A.M., Roice complained of vomiting through the night and showed Atty vomit in his toilet. (Dkt. No. 88, Attach. 7 at 14.) Atty examined him, prescribed him medication for nausea and vomiting, and advised him that she would see him later in the day. (Id.; County Defs.' SMF ¶ 15.) A few hours later, Atty gave Roice more medication, noted his "[a]bdomen [wa]s soft and non tender," and continued to monitor him. (Dkt. No. 88, Attach. 7 at 10-11.) At 1:15 P.M., Atty examined Roice and again noted that his abdomen was soft and "non tender," (id. at 9), and she and Graham continued to monitor and treat him, (id. at 6-8). At about 5:45 P.M., when Gagne examined Roice, she found a change in condition in that Roice had abdominal tenderness, hypoactive bowel sounds, costovertebral angle tenderness, and abnormal vital signs. (Id. at 5, 22; Gagne's SMF ¶ 16; County Defs.' SMF ¶ 17.) Gagne then sent Roice to St. Mary's Hospital for evaluation. (County Defs.' SMF ¶ 17; Dkt. No. 88, Attach. 7 at 4.)
At the hospital, Roice was diagnosed with acute pancreatitis and was given conservative supportive care, including fluids, pain medication, and antibiotics. (County Defs.' SMF ¶ 18; Dkt. No. 67, Attach. 4 at 6.) On June 2, Roice was transferred to Albany Medical Center for surgery. (County Defs.' SMF ¶ 18.)
Roice filed his complaint on January 9, 2015. (Compl.) He brings claims for: (1) deliberate indifference to serious medical needs under Section 1983 and the Fourteenth Amendment
After discovery, the pending motions were filed. (Dkt. Nos. 62, 66.)
The standard of review pursuant to Fed. R. Civ. P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F.Supp.2d 85, 92 (N.D.N.Y. 2011), aff'd sub nom. Wagner v. Sprague, 489 F. App'x 500 (2d Cir. 2012).
Gagne argues for summary judgment on Roice's medical malpractice claim because she was not the proximate cause of his alleged injuries. (Dkt. No. 62, Attach. 15 at 11-12.) Likewise, County defendants argue that proximate cause is lacking. (Dkt. No. 66, Attach. 2 at 8-9.) Roice did not respond to these arguments in his opposition. (See generally Dkt. No. 90.) Given that the arguments are facially meritorious, Roice's failure to respond is deemed as consent to summary judgment. See N.D.N.Y. L.R. 7.1(b)(3); Jackson v. Onondaga County, 549 F.Supp.2d 204, 222 (N.D.N.Y. 2008).
Indeed, Roice has failed to set forth his evidence in terms of the elements of medical malpractice. See Seils v. Rochester City Sch. Dist., 192 F.Supp.2d 100, 105 (W.D.N.Y. 2002), aff'd 99 F. App'x 350 (2d Cir. 2004) ("A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim.") (internal quotation marks and citations omitted). He pays mere lip service to his claim by referencing his statement of material facts and arguing that defendants were aware of his complaints. (Dkt. No. 90 at 17-18); see Scaccia v. Stamp, 700 F.Supp.2d 219, 240-41 (N.D.N.Y. 2010) (noting vague and conclusory insinuations insufficient to oppose summary judgment).
At a bare minimum, Roice fails to articulate what defendants did or did not do and how he was harmed as a result. See Steele v. Rochester City Police Dep't, No. 6:16-cv-06022, 2016 WL 1274710, at *3 (W.D.N.Y. Apr. 1, 2016) (dismissing negligence claim where "[p]laintiff does not articulate the manner in which [defendants] acted negligently"). Roice also fails to offer any "[e]xpert testimony . . . to prove a deviation from accepted standards of medical care and to establish proximate cause," as is necessary. Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995). Moreover, the record supports Gagne's argument that Roice was treated conservatively at St. Mary's Hospital for four days before his condition advanced to necrotizing pancreatitis, thereby precluding proximate cause. (Dkt. No. 62, Attach. 10 ¶¶ 11-13; Attach. 15 at 11-12; County Defs.' SMF ¶¶ 18, 20.)
Like his medical malpractice claims, Roice's emotional distress claims also fail because he does not respond to the facially-meritorious arguments of County defendants and Gagne. (Dkt. No. 66, Attach. 2 at 9-10; Dkt. No. 62, Attach. 15 at 9-10); see N.D.N.Y. L.R. 7.1(b)(3); Jackson, 549 F. Supp. 2d at 222.
Fed. R. Civ. P. 56(f)(2) "expressly allows the court to grant a motion for summary judgment on grounds that were not raised in [defendants'] motion, but only after giving the opposing party notice and the opportunity to oppose." Nick's Garage, Inc. v. Nationwide Mut. Ins. Co., 715 F. App'x 31, 34 (2d Cir. 2017). To that end, in its November 9, 2018 Order, the court noted that
(Dkt. No. 98 at 1-2 (quoting Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004)).) "Given those elements, and the summary judgment record, it appears that the County, Lorey, and/or Gagne may be entitled to summary judgment on Roice's third cause of action." (Dkt. No. 98 at 2.)
The County and Lorey, (Dkt. No. 101), as well as Gagne, (Dkt. No. 102), filed memoranda on the issue. In his response, Roice withdrew his third cause of action against Gagne. (Dkt. No. 103 at 1 n.1; Compl. ¶¶ 42-44.) Summary judgment is also granted for the County and Lorey. Nowhere does Roice address the elements of a negligent supervision or retention claim, let alone show how his claim against them is viable; he does not cite a single case. (Dkt. No. 103.) Roice's response is simply a regurgitation of his prior summary judgment opposition, in some cases verbatim. (Compare Dkt. No. 103 at 4, with Dkt. No. 90 at 9.) This is insufficient in light of the November 9, 2018 Order, (Dkt. No. 98), as well as the memorandum filed by the County and Lorey, (Dkt. No. 101).
Because he was a pretrial detainee at all relevant times, Roice's deliberate indifference claim is governed by the Due Process Clause of the Fourteenth Amendment. See Valdiviezo v. Boyer, 17-1093, 2018 WL 5096345, at *2 (2d Cir. Oct. 18, 2018) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). As with an Eighth Amendment deliberate indifference claim, two prongs must be met: (1) "the alleged deprivation of adequate medical care must be sufficiently serious," and (2) "the defendant must have acted with deliberate indifference, or a sufficiently culpable state of mind." Revels v. Corr. Med. Care, Inc., 9:17-cv-0088, 2018 WL 1578157, at *4 (N.D.N.Y. Mar. 28, 2018) (internal quotation marks and citations omitted); see Feliciano v. Anderson, 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017). The difference under the Fourteenth Amendment is that, under the second prong, the defendant's state of mind is evaluated objectively. See Valdiviezo, 2018 WL 5096345, at *3 (citing Darnell, 849 F.3d at 36). That is, "[a] plaintiff must show `that the defendant[] acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant[] knew, or should have known, that the condition posed an excessive risk to health[.]'" Valdiviezo, 2018 WL 5096345, at *3 (quoting Darnell, 849 F.3d at 35).
The first prong is the same: "the plaintiff must show that he actually did not receive adequate care and that the inadequacy in medical care was sufficiently serious." Valdiviezo, 2018 WL 5096345, at *2 (citing Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006)). In analyzing the first prong, the first question is "whether the plaintiff was actually deprived of adequate medical care," keeping in mind that the defendant's "duty is only to provide reasonable care." Salahuddin, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 844-47 (1994)). The second question "asks whether the inadequacy in medical care is sufficiently serious." Salahuddin, 467 at 280. "[I]n cases of delayed or inadequate care, it's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the p[laintiff]'s underlying medical condition, considered in the abstract, that is relevant[.]" Feliciano, 2017 WL 1189747, at *10 (internal quotation marks and citations omitted).
Gagne argues that Roice's deliberate indifference to serious medical needs claim fails because she appropriately attended to his needs. (Dkt. No. 62, Attach. 15 at 2-5.) She also argues that Roice "was not deprived of treatment[] but merely complains about the type of treatment [that] he received." (Id. at 4.)
Roice argues that the medical staff, including Gagne, largely ignored his symptoms. (Dkt. No. 90 at 3.) But this is directly controverted by the medical records that Roice cites. For example, on May 9, 2014, in response to Roice's complaints of pain, pressure, nosebleeds, and ear drainage, Atty reviewed his medical chart, examined him thoroughly, and took his vital signs. (Dkt. No. 88, Attach. 7 at 54.) When Gagne was informed of those findings, she ordered four different medications, blood pressure monitoring, a diet, and commissary restriction. (Id.) Roice was also given first time doses "with [an] explanation of medications, doses, [and] side effects," and he "verbalized understanding." (Id.) The other medical records that Roice cites also demonstrate that Gagne, Atty, and Graham treated Roice's frequent and varied medical issues. (Dkt. No. 90 at 3 (citing Dkt. No. 88, Attach. 7 at 26, 37, 42, 52).)
Roice's claim boils down to his argument that "he was only given pallative [sic] treatment . . . [but] what [he] really needed was an evaluation by a gastroenterologist and/or hospitalization to address his untreated gall stones." (Dkt. No. 90 at 7.) But "`mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a p[laintiff] might prefer a different treatment does not give rise to' a constitutional violation." Feliciano, 2017 WL 1189747, at *12 (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) and collecting cases); cf. Johnson, 1995 WL 121295, at *3 ("While the use of an MRI machine . . . might have facilitated the earlier discovery of plaintiff's injury, the Eighth Amendment does not mandate the use of any particular medical technology or course of treatment.") (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)). With the benefit of hindsight, Roice simply contends that Gagne should have done more for him and sooner, which is insufficient to defeat summary judgment. See Rodriguez v. Conway, 827 F.Supp.2d 211, 213 (W.D.N.Y. 2011) (granting summary judgment where "[a]ll that the record shows . . . is that plaintiff subjectively believes that more should have been done for him"); see Burgos v. Alves, 418 F.Supp.2d 263, 265 (W.D.N.Y. 2006) (granting summary judgment where "[w]ith the benefit of hindsight, plaintiff simply contends that [defendants] should have done more sooner").
There are myriad other deficiencies with Roice's deliberate indifference claim against Gagne. He does not state when he developed gall stones, let alone when Gagne should have known that he had developed them. (Dkt. No. 90 at 2.) Further, Roice admits that "the documentary evidence in this case does little to support [hi]s claim." (Id. at 4.)
In sum, Roice has not offered evidence from which a reasonable jury could conclude that he was actually deprived of adequate medical care. His deliberate indifference claim is a house of cards—it is supported not by sufficient evidence but by a combination of hindsight, vagueness, and quantum inferential leaps that no reasonable jury could make. And it cannot stand up in the face of the evidence that Gagne and others responded to his needs with treatment.
Like Gagne, the County, Atty, and Graham argue that the treatment of Roice was appropriate, and his deliberate indifference claim fails. (Dkt. No. 66, Attach. 2 at 3-6.)
Even if Roice had adduced enough evidence for a reasonable jury to conclude that Gagne, the County, Atty, and/or Graham were deliberately indifferent, they argue that they are entitled to qualified immunity. (Dkt. No. 66, Attach. 2 at 7-8; Dkt. No. 62, Attach. 15 at 10-11.) The court agrees. "Darnell was decided in 2017 and thus could not have clearly established that reckless medical treatment amounts to deliberate indifference [before 2017]." Monaco v. Sullivan, 737 F. App'x 6, 15 (2d Cir. 2018). For the reasons explained above, Gagne, the County, Atty, and Graham did not violate clearly-established law when they treated Roice in 2014, and summary judgment is warranted for them on this ground as well. See id.
To establish municipality liability under Section 1983, a plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy, custom, or practice. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (citing Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 692-94 (1978)). A plaintiff "need not identify an express rule or regulation." Patterson, 375 F.3d at 226 (internal citation omitted).
Id. (internal quotation marks and citations omitted). "A policy, custom, or practice may also be inferred where the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Id. (internal quotation marks and citation omitted).
Roice claims that he was harmed by the County's refusal to spend a sufficient amount of money on inmate healthcare. (Dkt. No. 90 at 11-15.) The County argues that Roice has not submitted enough evidence of other incidents where inmates suffered constitutional violations under similar circumstances. (Dkt. No. 66, Attach. 2 at 6-7.) The court agrees with the County.
Roice's only evidence of the alleged refusal to spend money on inmate healthcare is as follows. In 2000, Lorey wrote to the New York State Commission of Corrections (hereinafter "the Commission") to inform them that the County Board of Supervisors eliminated three proposed positions from the budget, and per diem employees were being used to cover shortages. (Dkt. No. 88, Attach. 9.) In 2006, the Commission conducted a site visit to FCCF, made a number of findings regarding deficiencies, and set forth the actions required to meet the Commission's standards. (Id., Attach. 10.) Less than a month later, Lorey responded to the Commission and detailed the actions taken to ensure compliance. (Id., Attach. 11.) In 2007, the Commission answered a letter from the County Board's chairman, which asked questions regarding the minimum standards for medical services staffing. (Id., Attach. 12.)
This evidence is too attenuated both in time and subject matter to support Roice's allegation that the County had a policy, custom, or practice of refusing to spend money on inmate healthcare. See Plair v. City of New York, 789 F.Supp.2d 459, 466-67 (S.D.N.Y. 2011). It seems as if Roice simply cobbled together anything having to do with the County and medical services—no matter how old or unrelated. Even evidence of four examples of a similar constitutional deprivation has been held insufficient to establish a practice that is so persistent or widespread as to justify municipal liability. See Giaccio v. City of New York, 308 F. App'x 470, 471-72 (2d Cir. 2009). Here there is no such evidence. Moreover, Roice fails to explain how a lack of County funds caused his alleged harm. See Outlaw v. City of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (holding "plaintiff must show a direct causal link between a municipal policy or custom and the alleged constitutional deprivation") (internal quotation marks and citation omitted).
Lorey and Gagne seek summary judgment on Roice's supervisory liability claims against them. (Dkt. No. 66, Attach. 2 at 3; Dkt. No. 62, Attach. 15 at 5-6.)
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal quotation marks and citations omitted).
For the same reasons that Roice has not established municipal liability, he has not established supervisory liability. That is, Roice has not offered sufficient evidence of a policy, custom, or practice, and therefore he cannot establish supervisory liability on the basis of the third prong as to Lorey or Gagne. Roice argues that "Lorey implemented and/or tolerated practices whereby medical decisions were influence [sic] by cost — namely, inmates were not given necessary healthcare, referrals to specialists or to the hospital, because of the costs involved." (Dkt. No. 90 at 13.) But he does not offer any examples or evidence to support this argument. Scaccia, 700 F. Supp. 2d at 240-41 (granting summary judgment where plaintiff offered only "his own vague and conclusory insinuations"). Further, Roice does not offer evidence of any of the other prongs such that a reasonable jury could impose supervisory liability.
