JUDITH C. McCARTHY, Magistrate Judge.
Plaintiff Avery Whittle ("Plaintiff"), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against Defendant N.P. Uszynski ("Defendant"). (Docket Nos. 1, 17). Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Motion"). (Docket No. 98). Plaintiff opposed the Motion, (Docket No. 106), and Defendant replied, (Docket No. 108). For the reasons set forth below, the Court grants Defendant's Motion.
On November 10, 2015, Plaintiff commenced this action against Dr. Raul Ulloa, Captain W. Smiley, Warden Vollmer, and a Jane Doe nurse ("Defendants") alleging that they were deliberately indifferent to his medical needs in violation of his rights under the United States Constitution.
Following the completion of discovery, Defendant N.P. Uszynski filed a motion for summary judgment, (Docket No. 98), accompanied by a memorandum of law ("Def. Br."), (Docket No. 99), a statement of facts pursuant to Local Civil Rule 56.1 ("Def. 56.1"), (Docket No. 102), and a declaration attaching seventeen exhibits, (Docket No. 101), including: relevant entries of Plaintiff's medical records ("Def. Ex. J"), (Docket No. 101-10), a copy of Plaintiff's deposition transcript ("Whittle Dep."), (Docket No. 101-11), video surveillance footage depicting Plaintiff's interaction with Defendant on December 12, 2014
The following facts are gathered from Defendant's 56.1 Statement, Plaintiff's 56.1 Response, the exhibits attached to the parties' submissions, and the affidavits submitted by the parties in support of their contentions.
At all relevant times, Plaintiff was a pretrial detainee at Westchester County Jail ("WCJ") in Valhalla, New York. (Am. Compl., Docket No. 17 at 8). Defendant was a nurse practitioner in WCJ responsible for conducting infirmary rounds, recording patients' progress notes, and providing treatment under the supervision of the facility's physicians. (Uszynski Aff. at ¶¶ 3-4). On December 12, 2014, Plaintiff underwent surgery at Mount Vernon Hospital to remove a cyst located on the side of his neck. (Whittle Dep.
Plaintiff was discharged from Mount Vernon Hospital on December 12, 2014 at approximately 6:05 p.m., (Def. Ex. J at 12), and transported to the medical unit within WCJ, (Whittle Dep. at 30). Upon arrival, a nurse, who was not Defendant, escorted Plaintiff to a bed, took his vital signs, and gave him something to eat. (Id. at 32). Surveillance video of the medical unit shows that later that evening Plaintiff was escorted to a hallway chair by a male officer at 7:30 p.m.
Following their interaction in the hallway, Defendant updated Plaintiff's medical chart with the treatment that she provided to Plaintiff. (Def. Ex. J at 17-18); (Uszynski Aff. at ¶ 7). Defendant also included Doctor Roth's discharge instructions in Plaintiff's medical chart. (Id.). Specifically, Defendant noted that Plaintiff should receive pain relievers every 8 hours for 24 hours, Bactrim and Bacitracin administered twice a day, and no showering for 48 hours. (Id.). Defendant's medical notes also indicate that Plaintiff was scheduled for suture removal in fourteen days and a surgical follow up appointment. (Def. Ex. J at 17-18). Defendant did not encounter Plaintiff again for several months thereafter. (Whittle Dep. at 46); (Uszynski Aff. at ¶ 10); (Pl. Ex. E at 19).
Plaintiff's medical records indicate that on December 14, 2014, medical personnel cleaned the surgery site with saline, applied dry dressing, and administered Bactrim and Doxycycline to Plaintiff.
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party bears the burden of demonstrating that it is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The Court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to a material fact "exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A fact is material if it might affect the outcome of the suit under the governing law." Casalino v. N.Y. State Catholic Health Plan, Inc., No. 09 Civ. 2583(LAP), 2012 WL 1079943, at *6 (S.D.N.Y. Mar. 30, 2012) (internal quotation and citation omitted).
In reviewing a motion for summary judgment, the Court "must draw all reasonable inferences in favor of the [non-moving] party" and "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000). That said, the Court may not weigh the evidence or determine the truth of the matter, but rather conducts "the threshold inquiry of determining whether there is the need for a trial." Anderson, 477 U.S. at 250.
The moving party bears the initial burden of "demonstrating the absence of a genuine issue of material fact." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex, 477 U.S. at 323). If the moving party meets this initial burden, the burden then shifts to the non-moving party to "present evidence sufficient to satisfy every element of the claim." Id. "The non-moving party is required to `go beyond the pleadings' and `designate specific facts showing that there is a genuine issue for trial,'" id. (citing Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 249-50), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party fails to establish the existence of an essential element of the case on which it bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Parties moving for and opposing summary judgment in the Southern District of New York must also submit short and concise statements of facts, supported by evidence that would be admissible at trial. Local Civ. R. 56.1. The opposing party must specifically controvert the moving party's statement of material facts, or the moving party's facts will be deemed admitted for purposes of the motion. Local Civ. R. 56.1(c); T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) ("A non-moving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible."). However, uncontested facts cannot be deemed true simply by virtue of their assertion in a Local Rule 56.1 statement; the Court is free to disregard the assertion in the absence of citations or where the cited materials do not support the factual assertions in the statements. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). The Court therefore has discretion "to conduct an assiduous review of the record" even where one of the parties has failed to file such a statement. Id.; see also Fed. R. Civ. P. 56(c)(3). Nevertheless, the Court is "not required to consider what the parties fail to point out." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000) (internal quotation marks and citation omitted).
A pre-trial detainee's claim for deliberate indifference to serious medical needs is evaluated under the Due Process Clause of the Fourteenth Amendment. Davis v. McCready, 283 F.Supp.3d 108, 116 (S.D.N.Y. 2017) (citing Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). "[W]hen a claim arises under the Fourteenth Amendment, `the pre-trial detainee must prove that the defendant-official acted intentionally . . . or recklessly failed to act with reasonable care . . . even though the defendant-official knew, or should have known that the condition posed an excessive risk to health or safety.'" Ryan v. Cty. of Nassau, No. 12-CV-5343(JS)(SIL), 2018 WL 354684, at *3 (E.D.N.Y. Jan. 10, 2018) (quoting Darnell, 849 F.3d at 35). To establish a claim for deliberate indifference to serious medical needs under the Fourteenth Amendment, a plaintiff must satisfy both objective and mens rea components. Davis, 283 F. Supp. 3d at 116.
The objective standard has two prongs. "The first prong is whether the prisoner was actually denied adequate medical care." James v. Correct Care Sols., No. 13-CV-0019(NSR), 2013 WL 5730176, at *4 (S.D.N.Y. Oct. 21, 2013) (citing Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.2006)); see Valdiviezo v. Boyer, No. 17-1093, 2018 WL 5096345, at *2 (2d Cir. Oct. 18, 2018) (noting that "[f]or Fourteenth Amendment claims, this Court applies the same standard as the Eighth Amendment to determine whether an alleged action is objectively serious enough to be a constitutional violation.") (summary order). The second prong of the objective standard is "whether the `medical condition is sufficiently serious.'" Figueroa v. Cty. of Rockland, No. 16-CV-6519 (NSR), 2018 WL 3315735, at *5 (S.D.N.Y. July 5, 2018) (quoting Salahuddin, 467 F.3d at 280). To establish that the medical condition was sufficiently serious, a plaintiff must show "the existence of `a condition of urgency, one that may produce death, degeneration, or extreme pain[.]'" Id. at *4 (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). However, "where the inadequacy is in the medical treatment given, the seriousness inquiry is narrower . . . [and] the seriousness inquiry `focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.'" Salahuddin, 467 F.3d at 280 (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003).
In Darnell v. Pineiro, the Second Circuit modified the mens rea component for deliberate indifference claims brought under the Fourteenth Amendment. 849 F.3d at 35; Lloyd v. City of New York, 246 F.Supp.3d 704, 718 (S.D.N.Y. 2017) ("[t]he reasoning of Darnell applies equally to claims of deliberate indifference to serious medical needs under the Fourteenth Amendment."). Since Darnell, courts must determine "whether an objectively reasonable person in Defendant's position would have known, or should have known, that Defendant's actions or omissions posed an excessive risk of harm to [Plaintiff]." Davis, 283 F. Supp. 3d at 120 (citing Darnell, 849 F.3d at 35; Lloyd, 246 F. Supp. 3d at 719). "In other words, the second element of a deliberate indifference claim under the Fourteenth Amendment `is defined objectively,' and a plaintiff is not required to show subjective awareness by the defendant that `[his] acts (or omissions) have subjected the pre-trial detainee to a substantial risk of harm.'" Ryan, 2018 WL 354684, at *3 (quoting Darnell, 849 F.3d at 35) (alteration in original). Nevertheless, "[a] detainee must prove that an official acted intentionally or recklessly, and not merely negligently." Darnell, 849 F.3d at 36.
Plaintiff in the instant matter alleges two theories of liability against Defendant. First, Plaintiff claims Defendant removed the post-surgical dressing from Plaintiff's neck when she examined him on December 12, 2014. (Am. Compl. at 8-9). Second, Plaintiff appears to argue that Defendant altered Doctor Roth's post-surgery treatment plan, which prevented Plaintiff from received proper dressing changes for weeks. (Pl. Br. and 56.1 Resp. at 5, 7).
Plaintiff's claim premised on his first theory of liability fails under the objective test of the deliberate indifference analysis because the evidence demonstrates that Defendant did not, in fact, remove the post-operative dressing from Plaintiff's neck on December 12, 2014. The first prong of the objective test requires that Plaintiff establish that he "was actually denied adequate medical care." James, 2013 WL 5730176, at *4 (citing Salahuddin, 467 F.3d at 279). In the instant case, video surveillance reveals that Defendant did not remove Plaintiff's dressing on any of the three occasions Defendant approached Plaintiff while he was seated in the hallway of the medical unit. (Ex. N). Rather, Defendant complied with Doctor Roth's discharge instructions to leave the dressing intact for 24 hours following surgery. (Def. Ex. J at 7). In fact, the video surveillance shows that the dressing on Plaintiff's neck is clearly intact as he exited the hallway of the medical unit following his interaction with Defendant. (Ex. N). Additionally, Plaintiff fails to offer any evidence supporting his contention other than his own self-serving deposition testimony. See Scott v. Harris, 550 U.S. 372, 378-81 (2007) (holding that video evidence may be credited over non-movant's account if the video "blatantly contradicts" the non-movant's version of events). Furthermore, Plaintiff admits that he had no other pertinent interactions with Defendant after December 12, 2014. (Whittle Dep. at 46). Accordingly, Defendant is entitled to summary judgment on Plaintiff's first theory of deliberate indifference because no rational jury could conclude, based on the video evidence, that Defendant removed the post-surgical dressing from Plaintiff's neck on December 12, 2014.
Plaintiff also argues that Defendant was deliberately indifferent when she failed to include a portion of Doctor Roth's discharge instructions in Plaintiff's medical chart, which allegedly prevented Plaintiff from receiving new dressing on his neck for approximately twenty-two days. (Pl. Br. and 56.1 Resp. at 4-5). In other words, Plaintiff maintains that Defendant's omission led to an unreasonable delay in receiving dressing changes. While the need for repeated dressing changes may constitute a serious medical need, see Nelson v. Warren, No. 10-CV-990 (GTS)(DRH), 2011 WL 7445581, at *3 (N.D.N.Y. Dec. 12, 2011), report and recommendation adopted, 2012 WL 685755 (N.D.N.Y. Mar. 2, 2012), Defendant's alleged omission does not rise to a level sufficient to satisfy the second prong of the objective inquiry under the facts herein. Defendant noted Doctor Roth's discharge orders in the records and even recommended that medical personnel clean Plaintiff's wound with Bacitracin twice a day rather than once a day. (Def. Ex. J at 18). Defendant also took measures to alleviate Plaintiff's pain and to prevent infection. Defendant's instructions further recommended that medical personnel monitor Plaintiff's post-operative condition for additional treatment, if necessary, on a daily basis. Such actions do not amount to deliberate indifference to his serious medical needs. See Maldonado v. Wells, No. 9:12-CV-1290 (LEK)(CFH), 2015 WL 3455215, at *8 (N.D.N.Y. May 28, 2015) (holding that the plaintiff failed to establish deliberate indifference where the defendants "took measures to treat and avoid the harm of the possible infection, including prescribing pain medication, including antibacterial medication, cleaning the wound, keeping plaintiff in the infirmary for days at a time, instructing him on how to treat his wound, scheduling follow-up visits, and re-testing the incision site.").
Furthermore, Plaintiff's medical records and deposition testimony establish that Plaintiff received a dressing change, saline cleaning at the surgery site, and antibiotics at approximately 11:46 a.m. on December 14, 2014—a little over 36 hours after surgery and consistent with Doctor Roth's discharge notes directing the dressing to be changed after 24 hours. (Def. Ex. J at 7); (Whittle Dep. at 44-45). Plaintiff maintains that he did not actually receive a full dressing change or saline cleaning on December 14, 2014. (Whittle Dep. at 45-46). This contention, however, is belied by Plaintiff's medical records. (Def. Ex. J at 29-30); see Benitez v. Pecenco, No. 92 Civ. 7670 (DC), 1995 WL 444352, at *7, n. 5 (S.D.N.Y. July 27, 1995) (granting summary judgment where conclusory claim that plaintiff was never issued medication was directly contradicted by medical records and was insufficient to create a factual dispute on that issue). Consequently, because any delay in treatment was minimal and not sufficiently serious, Defendant is entitled to summary judgment under the objective prong of the two part test. See Salahuddin, 467 F.3d at 280.
Assuming arguendo that Plaintiff's second theory of liability satisfies the objective prong, the evidence does not support the inference that Defendant acted with the requisite state of mind necessary to establish Plaintiff's claim. Under the mens rea component, Plaintiff must show that an objectively reasonable person in Defendant's position "knew, or should have known" that her actions or omissions on December 12, 2014 "posed an excessive risk to [Plaintiff's] health or safety." Darnell, 849 F.3d at 35. Here, based upon the evidence in the record, a reasonable jury could not conclude that Defendant knew or should have known that noting Doctor Roth's discharge instructions in Plaintiff's medical chart would delay Plaintiff's dressing changes. While Plaintiff's medical chart does not affirmatively state that Plaintiff should receive dressing changes, Defendant's notations indicate that Plaintiff should not shower for 48 hours, the surgery site on Plaintiff's neck should be cleaned with Bacitracin twice daily, and Plaintiff should receive both topical and oral antibiotics in conformance with Doctor Roth's discharge instructions. (Def. Ex. J at 17-18). In addition, there is no evidence that any delay in changing Plaintiff's dressing posed an excessive risk to Plaintiff. See Stewart v. City of New York, No. 15-CV-4335 (RA), 2018 WL 1633819, at *8 (S.D.N.Y. Mar. 31, 2018) ("Although [plaintiff] allegedly did not have his dressings changed as often as prescribed . . . there is no indication in the Complaint that any Individual Defendant should have known that such delays posed an excessive risk to [plaintiff]."). Moreover, Defendant could not have the requisite state of mind because she ordered daily wound care and pain medication, and had no further contact with Plaintiff after December 12, 2014. See Lloyd, 246 F. Supp. at 720 (concluding that a doctor did not act with necessary state of mind in part because he ordered daily wound care and prescribed pain medication, but had no further contact with the plaintiff). Even if the delay in changing Plaintiff's dressing can be imputed to Defendant's alleged omission, "this amounts to negligent conduct at most, and `negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.'" Lloyd, 246 F. Supp. at 720 (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). Accordingly, because Defendant's conduct does not establish that she acted with the requisite state of mind necessary to find deliberate indifference, Defendant is entitled to summary judgment on Plaintiff's second theory of liability.
For the foregoing reasons, Defendant's motion for summary judgment is granted. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk is respectfully requested to terminate the pending Motion, (Docket No. 98), enter judgment for Defendant, and mail a copy of this Opinion and Order to the pro se Plaintiff.
Henry Benitez, Comstock, N.Y., pro se.
Dennis C. Vacco, Atty. Gen. of the State of N.Y. by Richard T. Mathieu, Judy E. Nathan, New York City, for defendants.
CHIN, District Judge.
Plaintiff is an inmate at the Greenhaven Correctional Facility ("Greenhaven") and is housed in the Special Housing Unit (the "SHU"). He was transferred to Greenhaven from another prison on May 5, 1992. Defendant Pecenco is a registered nurse at Greenhaven; in the spring and summer of 1992, she worked in the clinic area during the day shift. Her responsibilities included attending to inmates in the SHU.
Upon his arrival at Greenhaven, plaintiff was given a medical checkup by a Nurse Berthold during which he complained of low back pain but denied chronic medical problems. (Pl.Exh. A). The Ambulatory Health Record ("AHR") for that day states that an examination of plaintiff did not reveal any signs of "fresh trauma." (Id.). Plaintiff was checked again the next day by another nurse, and the AHR indicates that plaintiff stated he had "no medical problems at this time" and is not on any prescribed medication. (Id., AHR dated May 6, 1992). The AHR also reveals that plaintiff had no signs or symptoms of distress.
Between May 8, 1992 and June 5, 1992, plaintiff was examined by various medical personnel (but not defendant Pecenco) 24 times. The record reveals that plaintiff intermittently complained of low back pain and a sore throat and that he requested band-aids. (Pl.Exh. A). The AHR's also reflect the medical staff's assessments that plaintiff showed no signs of acute distress and walked with a normal gait. Nevertheless, plaintiff was prescribed a painkiller, Robaxin, and was given the non-prescription medicines Advil and Motrin.
On Friday, June 5, 1992, plaintiff was examined by Dr. Chander, who ordered a prescription pain killer, Fioricet, for his back pain and who referred the case to a physiatrist for consultation.
On Monday, June 8, plaintiff complained of back pain to another medical staff member but refused to accept either the Fioricet that had been prescribed or Motrin. (Pl.Exh. A, AHR dated June 8). On June 9, 1992, plaintiff complained again of back pain but his condition was evaluated as a "non-emergency" by a Nurse Ryan, due to the fact that plaintiff had been recently examined by a doctor and had refused to accept medication. (Pl.Exh. A, AHR dated June 9). Plaintiff was sent to a physiatrist for an examination on June 15, 1992, but refused to cooperate or give any information with respect to his back pain. He was therefore returned to his cell without being examined. (Pl.Exh. B, Physiatrist's Consultation Report dated June 15, 1992).
Defendant also noted on the July 4th AHR that plaintiff became verbally abusive to her at which point a corrections officer Zemkin intervened and warned plaintiff that he was abusing his sick call privileges. Zemkin later filed an inmate misbehavior report concerning the incident, which was signed by defendant as an "employee witness." Plaintiff was found guilty after a disciplinary hearing of verbal interference with prison employees and verbal harassment (a charge of making threats was dismissed). (Pl.Exh. C).
An AHR dated July 5, 1992 reveals that plaintiff had MRIs ordered to determine the cause of his lower back pain, but had refused to go for them. (See PI.Exh. A, AHR dated July 5). The final AHR indicates that plaintiff was to be examined after July 31, 1992.
The parties have cross-moved for summary judgment. Plaintiff alleges that defendant refused to give plaintiff medication for back pain and signed a "trumped-up" disciplinary report against plaintiff. Defendant asserts that she did not give plaintiff his medication because she is not authorized to provide medication without an order from a physician. She also claims that the disciplinary report was not falsely made.
The standards applicable to motions for summary judgment are well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but [to] determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248-49, 106 S.Ct. at 2510-11 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598-1609 (1970)). To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356 (1986). There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. As the Court held in Anderson, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 1065 S.Ct. at 2511 (citations omitted). With these standards in mind, I turn to the parties' motions for summary judgment.
Apart from plaintiff's conclusory assertions, there is nothing in the record to support his claim that he suffered from a serious medical condition. First, plaintiff's own conduct refutes any claim that his back pain was serious: plaintiff refused to cooperate with the physiatrist for an examination and would not leave his cell for scheduled MRIs. (Pl.Exhs. A and B). See Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir.1986) (prisoner's back condition not deemed serious medical need given his constant refusal to be examined by doctors). Furthermore, plaintiff was offered both over-the-counter and prescription medication for back pain on several occasions but refused to accept it. (See, e.g., Pl.Exh. A., AHRs dated May 21, 24, 25, and June 8, 1992).
Second, there is nothing in the record to suggest that plaintiff's back pain was severe or excruciating. Plaintiff was visited by various medical staff members, including prison doctors, 43 times over a period of two months. None of the 43 AHRs registered by the medical staff indicate that plaintiff was in acute distress or had any difficulty standing or walking. Furthermore, his complaints of back pain were only sporadically made and were interspersed with complaints of a sore throat and sore finger, all of which were treated as requested.
Plaintiff's intermittent complaints of back pain simply do not constitute a serious medical need. The Second Circuit has required medical conditions more serious than those posed in this case to find an Eighth Amendment violation. See, e.g., Liscio v. Warren, 901 F.2d 274, 276 (2d Cir.1990) (in holding that doctor exhibited deliberate indifference by failing to examine prisoner for three days, court contrasted prisoner's alcohol withdrawal, which was life-threatening and fast-degenerating, with the back condition at issue in Estelle, which did not require immediate attention and thus was not a serious medical condition); Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir.1994) (prisoner with degenerative hip condition requiring corrective surgery including the placement of pins held to have serious medical needs); Kaminsky v. Rosenblum, 929 F.2d 922, 924 (2d Cir.1991) (high blood pressure, diabetes, angina, gout and an enlarged spleen held to be serious medical needs, particularly in light of prisoner's extreme weight loss and "alarmingly deteriorating" condition).
Even assuming that plaintiff's back condition did constitute a serious medical need, the record before me does not contain any evidence from which a jury could reasonably find that defendant exhibited deliberate indifference to plaintiff's condition.
To succeed on his claim, plaintiff must show that defendant intentionally denied him needed medical care over a period of time or completely withheld medical care. See Hathaway v. Coughlin, 841 F.2d 28, 50 (2d Cir.1988). Plaintiff argues that on June 6, June 20 and July 4, 1992, defendant "deliberately refused, on each occasion, either to ascertain the status or whereabouts of plaintiff's prescribed medication and/or to summon a doctor, even though empowered to do so." (Pl.Mem. at 7). This argument fails, however, for several reasons.
First, plaintiff has adduced no proof that defendant intentionally interfered with or intentionally delayed treatment prescribed by doctors. See Bowman v. Campbell, 850 F.Supp. 144, 147 (N.D.N.Y .1994) (defendant nurse's motion for summary judgment granted where prisoner failed to adduce any proof that nurse intentionally withheld treatment). Plaintiff claims that defendant exhibited deliberate indifference on June 6 by informing him that "she was not going to issue plaintiff medication because there was no way of her investigating the matter." (Pl.Aff., ¶ 19). The AHR from that day, which plaintiff cites, notes defendant's statement that she could not ascertain the status of a prescription from the pharmacy over the weekend and that plaintiff would probably receive the medicine on Monday. (Pl.Exh. A; Pl.Mem. at 9). At worst, defendant's conduct arguably constituted negligence, which is not sufficient to state a claim under section 1983. Estelle, 429 U.S. at 106-07, 97 S.Ct. 292-93; Bryant v. Maffucci, 923 F.2d 979, 982-83 (2d Cir.), cert. denied, 112 S.Ct. 152 (1991).
Furthermore, the record clearly reveals that plaintiff was not prescribed any medication by a doctor prior to being seen by defendant on June 20 or July 4. Since defendant had no authority to dispense medication without a prescription by a physician, she could not provide plaintiff with medical treatment.
Second, plaintiff's claim that he complained of severe back pain to defendant on June 20 and that she wailfully ignored his request for emergency medical care has no support in the record. The AHR from that day simply indicates that plaintiff requested band-aids from defendant. Indeed, plaintiff was examined by a different nurse on June 21, who noted only that plaintiff again requested band-aids. (Pl.Exh. A, AHR dated June 21, 1992). See Bowman, 850 F.Supp. at 147 (no evidence of deliberate indifference where record established that nursing staff attended to prisoner no fewer than eighteen times during his incarceration). Plaintiff has not disputed the accuracy of the AHR for that day; indeed, he relies on it himself.
Since plaintiff has not shown that defendant exhibited deliberate indifference to his serious medical needs, his claim must be dismissed.
Plaintiff alleges that defendant's endorsing the allegedly false disciplinary report interfered with his First Amendment right to complain about his illnesses. Generally, a prison inmate does not have a "constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in deprivation of protected liberty interest," so long as the prisoner is provided with due process. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986), cert. denied, 485 U.S. 982, 108 S. 1273 (1988). Where the false report is issued in retaliation for a prisoner's having exercised his substantive constitutional rights, however, a constitutional violation occurs and subsequent procedural due process does not correct the violation. Franco v. Kelly, 854 F.2d 584 (2d Cir.1988) (claim that prison officials intentionally filed false disciplinary charges against inmate in retaliation for his cooperation with a state investigation into reported incidents of inmate abuse at the prison sufficiently stated a claim under § 1983). Because retaliation claims may easily be fabricated, however, they should be viewed "with skepticism and particular care." Colon v. Coughlin, 1995 WL 383310, *5 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)). As the Second Circuit held in Flaherty:
713 F.2d at 13.
Of course, the initial question is whether defendant's conduct in endorsing the disciplinary report abridged any of plaintiff's substantive constitutional rights. This is not an instance where plaintiff was disciplined in retaliation for bringing a lawsuit against defendant or otherwise petitioning the government for a redress of grievances. See, e.g., Colon, 1995 WL 383310 (alleged retaliation for instituting lawsuits); Franco, 854 F.2d at 589 (cooperation with state investigation); Flaherty v. Coughlin, 713 F.2d 10 (2d Cir.1983) (participation in a class action suit against prison officials). Nor is plaintiff contending that he was deprived of medical treatment in retaliation for complaining. Rather, he alleges that his First Amendment rights were violated because he was retaliated against, i.e., disciplined, for "repeatedly" complaining about his medical ailments. While I do not believe that an inmate has a constitutional right to "repeatedly" complain about his medical ailments, see Garrido v. Coughlin, 716 F.Supp. 98, 101 (S.D.N.Y.1989) (section 1983 claim dismissed where prisoner alleged that prison officials filed false disciplinary report against him in retaliation for his verbal confrontation with a guard over the guard's treatment of another inmate; court held that confrontation did not affect any constitutional right), I need not reach that question, for I will assume for purposes of this motion that a substantive constitutional right has been implicated.
Significantly, the misbehavior report was issued not by defendant but by officer Zemkin, who was personally involved in the incident. Indeed, the report states that plaintiff told officer Zemkin that he was only "fucking security" and that he should mind his "fucking business."
The Second Circuit's recent decision in Colon is instructive. There, the inmate had filed two lawsuits complaining about the conditions of his confinement. Shortly after he was to begin participating in a Family Reunion Program that had been the subject of one of his lawsuits, he was brought up on disciplinary charges (possession of marijuana and a weapon) that prevented him from participating. In addition, the inmate presented evidence that he had never previously been found to be in possession of weapons or drugs. While the Second Circuit noted that the temporal proximity between the inmate's lawsuits and disciplinary action and the evidence of prior good conduct presented some circumstantial evidence of retaliation, the Court held that if this circumstantial evidence had represented "the sum total" of the inmate's proof, "we might be inclined to affirm the grant of summary judgment based on the weakness of [the inmate's] case." Colon, 1995 WL 383310 at *7. Because there also existed direct evidence of retaliation, however (the defendant's alleged admission of a retaliatory scheme), the Court reversed.
Plaintiff's proof of retaliation in the present case is not even as strong as the circumstantial evidence in Colon that the Second Circuit suggested might not be enough. Based on the record before me, a reasonable jury could only conclude that defendant did not retaliate against plaintiff for his exercising any substantive constitutional rights.
Accordingly, plaintiff's claim is dismissed.
LORETTA A. PRESKA, Chief Judge.
The Court presumes the parties' familiarity with the facts of this case, which are quite lengthy and have been set out in detail in the parties' 56.1 Statements and Counter— Statements [dkt. nos. 40-42, 48.] Nevertheless, the Court undertakes to include a brief summary of the facts for the purposes of this opinion, citing variously to Defendant's Rule 56.1 Statement ("D.56.1"), Plaintiff's Rule 56.1 Statement ("P.56.1"), and Defendant's Response to Plaintiff's Statement of Facts ("Def. Reply 56.1"). To the extent there appears to be a material dispute as to any fact referenced in this fact summary or opinion based on admissible evidence, the Court has endeavored to so indicate.
Casalino is a board-certified pediatrician with a subspecialty in Neonatal—Perinatal medicine. She holds a Master's Degree in public health. In 1998 Plaintiff moved from clinical and academic medicine into public health administration. In 2003 she entered the field of managed health care. In February 2005 she was hired by Mark Lane ("Lane"), Chief Executive Officer of Fidelis, as a medical director. Plaintiff reported directly to Dr. Marco Michelson ("Michelson"), Fidelis' Chief Medical Officer, and she worked out of Fidelis' headquarters in Rego Park, Queens. In autumn 2005 a second medical director, Dr. Nancy Klotz ("Klotz"), joined Fidelis and also began reporting to Michelson. (P. 56.1 ¶¶ 312-15, 324.)
In October 2005 Fidelis acquired Center Care, another health plan located in Manhattan. After having received a generally positive 90-day written performance evaluation in June 2005, Fidelis appointed Plaintiff medical director of its new Center Care branch in addition to her other duties. She maintained offices at Center Care and at Fidelis. In March 2006, Michelson gave her a written performance evaluation with an overall score of "successful" which resulted in a raise. (P. 56.1 ¶¶ 322-23.) At all times, Fidelis had a Code of Conduct and an Employee Handbook, both of which prohibited employee discrimination and harassment. The Handbook states that any allegations of harassment or discrimination will be "promptly and thoroughly investigated." It states that harassment can occur "over email, phone mail or other electronic media." The Handbook also sets forth a formal corrective action procedure, under which employees with performance problems are to be given two written warnings on a specific "corrective action form." (P. 56.1 ¶¶ 331-41.)
On May 15, 2006, Vicki Landes ("Landes"), Director of Clinical Services and Davis's immediate supervisor, received a phone call from Michelson in which he became very angry and vocal, accusing her of not doing job and then slamming his phone down. Landes became very upset at the interaction and spent 10-15 minutes in a co-worker's office trying to compose herself. Landes then called Robert Fazzolari ("Fazzolari"), Assistant Vice President for Corporate Compliance. Fazzolari called her back with Regina Trainor ("Trainor"), Chief Legal Officer and Head of Compliance at Fidelis. Landes explained the incident to them, and they informed her that Tucker would be following up with her. (P. 56.1 ¶¶ 361-75.) Landes also called Plaintiff, who was her direct supervisor, who was at home on medical leave at the time. Landes was very upset, and Plaintiff tried to help her regain her composure. Plaintiff told Landes that she was going to come back to work and help her with this incident. In the meantime, Plaintiff and Landes agreed that Landes should stay clear of Michelson. (P. 56.1 ¶¶ 376-80.)
Human Resources did not contact Landes. On May 17 and 19, 2006, Landes e-mailed Tucker and Fazzolari requesting a follow-up on the Michelson situation. Tucker did not reply to either e-mail. (P. 56.1 ¶¶ 382-85.) On May 17, 2006, Plaintiff returned to work, and Tucker came to visit her about the Landes-Michelson incident. Plaintiff reported to Tucker that she found it upsetting that Landes had been so frightened by the call and said she would do whatever she could to help smooth things over. (P. 56.1 ¶¶ 386-89.) Tucker then spoke to Michelson and requested that he reprimand individuals, if at all, one-on-one and not with others around. (P. 56.1 ¶ 391.)
Thereafter, Landes attempted to stay clear of Michelson, but Plaintiff shortly found herself mediating an additional dispute between them. Michelson had sent Landes an e-mail accusing her of not doing certain work on Fidelis' website. Landes explained to Plaintiff that she had never been assigned the work. When Plaintiff attempted to explain this to Michelson, he reacted sharply, harshly criticizing Landes. Plaintiff told Landes they would try and address the website issue together and Landes could go through Plaintiff in her dealings with Michelson. (P. 56.1 ¶¶ 393-400, 403-05.) Following this mediation, however, Plaintiff noticed that Michelson became more difficult for her to deal with. He attempted to marginalize Plaintiff in her meetings with Lane and Fidelis Chief Operating Officer Father Patrick Frawley ("Frawley"). He prevented Plaintiff from including her matters on the meeting agendas, interrupted her when she attempted to speak, and criticized her comments after she had spoken. Plaintiff eventually began taking notes and making comments in private conversations with participants after meetings ended. She told Michelson that she was being quiet due to his interruptions and criticisms whenever she spoke. Michelson then began criticizing Plaintiff's written submissions. He eventually became difficult to deal with on administrative matters like approvals for days off or time for medical appointments. (P. 56.1 ¶¶ 417-24.)
On September 8, 2006, while waiting to make the final presentation to Lane and Frawley, Michelson began berating Plaintiff in the anteroom outside Fidelis' executive office. Specifically, Michelson said he was frustrated that Plaintiff had not taken ownership for her projects and assignments, had not gotten her work done, and had left assignments for others. Klotz and two additional staff were present in the room during this interaction. After Plaintiff gathered herself, the meeting on the submission to the New York State Department of Health took place. After the meeting, Michelson called Plaintiff to his office and started yelling and waiving his hands. Plaintiff asked Michelson not to speak to her that way but "he just kept screaming and screaming." Plaintiff left Michelson's office, returned to her own, and broke down. She called Tucker who came to Plaintiff's office. Plaintiff informed Tucker that Michelson had treated her the way she had heard that he treated other women. Plaintiff remained in her office with the door closed for the rest of the day. (P. 56.1 ¶¶ 454-58; Def. 56.1 ¶¶ 154-58.)
On September 13, 2006, Plaintiff met with Trainor and Fazzolari regarding the incident. She told them she had been frightened and reduced to tears and sobbing and that there were women who were afraid to be in an office with Michelson. Plaintiff told Trainor, "you have a problem employee who behaves inappropriately towards women and you are now on notice from me that you have to do something about him." Plaintiff felt that Trainor was unsympathetic. Trainor told Plaintiff that she felt this was an issue with Michelson's management style and that Michelson was trying to manage her. (P. 56.1 ¶¶ 464-67.) Tucker did not conduct any further investigation into Plaintiff's complaint. Tucker did speak with Michelson, advising him to "adjust how he was interacting and figure out a way to work with Marie." (P. 56.1 ¶¶ 478-81.)
While working under Klotz during Michelson's leave of absence, Klotz informed Plaintiff that Lane and Frawley had a negative opinion of her work. Plaintiff told Klotz that she felt that Michelson had made an effort to diminish her in their eyes. Plaintiff worked closely with Klotz during this period, dividing up Michelson's responsibilities, and Klotz ultimately felt that she could not have done the work of acting Chief Medical Officer without Plaintiff's help. On December 7, 2006, after a series of presentations to a committee of the Fidelis Board of Directors, Klotz told Plaintiff that she felt that "we had turned a corner" in restoring Plaintiff's credibility. Plaintiff told Klotz she felt it was owing to Michelson's absence. (P. 56.1 ¶¶ 493-505.) In mid-December, word spread that Michelson would be returning in January 2007. Plaintiff was very worried and spoke to both Klotz and Tucker about her concerns. Both assured her that things would be better upon his return. (P. 56.1 ¶¶ 513-36.)
Klotz left for a vacation in Israel from December 21, 2006 through January 2, 2007. As of December 21, her October performance review notwithstanding, Plaintiff had never received a warning notice under the Fidelis corrective action policy as described in the Employee Handbook and had never been advised that she was in danger of termination. Her feedback from Klotz had been positive. (P. 56.1 ¶¶ 517, 600.) Beginning December 22, 2006, however, four incidents came to a head almost simultaneously which, according to Fidelis, were "significant performance deficienc[ies]" and largely formed the basis for Plaintiff's ultimate termination. (See, e.g., Def. 56.1 ¶¶ 216, 253.) They were: (1) Plaintiff's failure to revoke the credentials of a Dr. Cheng as a Fidelis provider consistent with Fidelis' policy regarding medical license revocations and the like; (2) Plaintiff's failure timely to revoke the credentials of a Dr. Florio for substantially the same reasons; (3) Trainor's realization that Plaintiff had "never given or ensured that Behavioral Health staff had proper access to Fidelis computer system when they were on-call at night and over the weekend;" and (4) the "Family K" incident in which authorization of provider services was granted without having a required negotiated rate in place for those services. Each of these incidents or issues arose on or after December 22, 2006, within a 10-day period.
Simultaneously, and as a result of the incidents in late December 2006, Frawley had prepared a memo to Klotz for her review upon her return and copied it to Trainor, Lane, and Plaintiff on the morning of January 3, 2007 when Klotz returned. The memo describes what Frawley felt were Plaintiff's "numerous performance deficiencies" and "serious concerns" about Plaintiff's work. Frawley describes "grave concerns relative to Dr. Casalino's judgment, ownership, and overall ability to perform appropriate oversight of a critical process that has significant regulatory and quality implications for the Plan and its members." Trainor responded to the memo via e-mail, largely concurring in his judgment. Though Klotz testified that she began the day with no intention of terminating Plaintiff, (P. 56.1 ¶ 591), after reviewing Frawley's memo, Trainor's e-mail, and additional materials on Plaintiff's performance, she resolved to terminate her. (Def. 56.1 ¶¶ 290.) Though Michelson had returned to Fidelis as Chief Medical Officer the day before, Fidelis represents that "Dr. Klotz had the authority to do so . . . because she was Plaintiff's supervisor during the December mishaps and Dr. Michelson was not yet fully integrated back into his role." (Def. 56.1 ¶ 290.)
Fidelis notes that Klotz was the sole decision maker in Plaintiff's termination and had no knowledge of Plaintiff's prior complaints about Michelson. (Def. 56.1 ¶ 215.) Similarly, Fidelis states that Michelson played no role in the decision. (Def. 56.1 ¶¶ 293-94.) Plaintiff, however, points to testimony from Trainor that a January 3, 2007 meeting was called in which Trainor, Lane, Frawley, Klotz, and possibly even Michelson attended and "a conclusion was reached at the meeting to terminate Casalino. It was discussed who would terminate her, and it was decided that Klotz would." (See P. 56.1 ¶¶ 290, 596-98.) Moreover, Klotz spoke with Michelson on January 3, 2007, prior to making her decision to terminate Plaintiff. (Pl. 56.1 ¶ 290.) Later that day, Plaintiff was called into a meeting with Klotz and Tucker and was informed she was terminated. (Def. 56.1 ¶ 299; P. 56.1 ¶ 602.) Klotz later composed a memorandum laying out the performance failures resulting in Plaintiff's termination. (Def. 56.1 ¶¶ 300-02.)
Rule 56 mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). In the face of insufficient evidence, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23.
"It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001), cert. denied, 534 U.S. 993, 122 S.Ct. 460, 151 L.Ed.2d 378 (2001); see also Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir.2000) (instructing that "trial courts should not `treat discrimination differently from other ultimate questions of fact'") (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Accordingly, a plaintiff alleging Title VII discrimination claims "cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts . . . or defeat the motion through mere speculation or conjecture." Jones v. Hirschfeld, 348 F.Supp.2d 50, 59 (S.D.N.Y.2004).
Plaintiff alleges unlawful gender discrimination in the forms of hostile work environment harassment, retaliation, and disparate treatment in violation of Title VII and NYCHRL. The Court addresses each claim in turn. Separate analysis of the Title VII and NYCHRL claims are provided where necessary but are otherwise discussed together.
Here, Plaintiff has simply failed to adduce sufficient evidence to support even a prima facie claim of gender-based workplace harassment. For the reasons below, Plaintiff cannot point to facts sufficient for a reasonable jury to find that (a) the conduct she experienced was based upon her gender, or (b) rose to a level that was sufficiently severe or pervasive. For these reasons, Defendant's motion for summary judgment as to the hostile work environment claim must be granted, whether categorized as a Title VII or NYCHRL claim.
To be actionable, the conduct of which Plaintiff complains must have occurred because of her gender. Brennan, 192 F.3d at 318; Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Incidents, however abusive, that are not gender-related are not relevant to establish a claim against Fidelis that can survive its motion for summary judgment. See Norris v. N.Y.C. Hous. Auth., No. 02 Civ. 6933, 2004 WL 1087600, at *12 (S.D.N.Y. May 14, 2004) ("[R]udeness without any evidence of discriminatory intent does not constitute discrimination.").
Plaintiff's harassment allegations in this case reduce to essentially one verbal encounter with Michelson, which was itself in no way characterized by any gender-specific animus. (Def. R. 56.1 ¶¶ 139-143.) Plaintiff does not allege that Michelson ever made, for example, derogatory comments about women or engaged in any sexually inappropriate behavior. (See generally P. 56.1.) Plaintiff's testimony in this regard does not raise even a direct inference of conduct occurring because of her gender. In fact, Plaintiff concedes that this incident occurred after she left the "BCAP" project in the hands of an executive assistant just before its deadline. (Def. R. 56.1 ¶¶ 151-52.) Apart from this one central interaction, Plaintiff elsewhere suggests that she was "marginalized" and "ignored" by Michelson during meetings and the like. (Def. R. 56.1 ¶ 307.) Plaintiff places particular emphasis on her own reactions, noting that Michelson "berated her and frightened her, reduced her to tears to the point where she could not leave her office." (See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Opp.") at 21.) Plaintiff's own reactions, however, even if credited by the jury as true, cannot themselves demonstrate Michelson's gender animus.
It is not controversial that Casalino may offer "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace" as an "evidentiary route" to raising an inference of discriminatory intent. See Oncale, 523 U.S. at 80-81. Moreover, a jury is certainly permitted to find gender motivation on the basis of disparate treatment itself, derogatory verbal comments alone, or a combination of both. See Pucino v. Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 117-19 (2d Cir.2010). The problem in this case is that Plaintiff has offered insufficient evidence of either to permit a reasonable jury to find that Michelson's conduct occurred because of her gender.
Even if Plaintiff could establish that Michelson's conduct occurred because of her gender, Plaintiff cannot establish to the extent she must that the conduct was sufficiently "severe or pervasive" within the meaning of Title VII. Among the factors courts look to in assessing the severity of any alleged harassment are "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. The Court of Appeals has said that one incident is generally insufficient to support a harassment claim unless it constitutes "an intolerable alteration of the plaintiff's working conditions . . . so as to substantially interfere with or impair his ability to do his job." Mathirampuzha v. Potter, 548 F.3d 70, 79 (2d Cir.2008). For the reasons described above, Plaintiff's allegations essentially reduce to the single September 2006 incident in which Michelson engaged in a verbal altercation with her. (Def. R. 56.1 ¶¶ 139-183.) But Plaintiff continued to work with Michelson through his leave of absence in November 2006 and Plaintiff offers no evidence at all that any further exchange of that sort took place between them. (Def. R. 56.1 ¶¶ 182, 204-08.) The Court finds that a reasonable jury could not conclude, on the evidence Plaintiff has brought forward on this motion, that this incident resulted in an "intolerable alteration of the plaintiff's working conditions." See Mathiramphuzha, 548 F.3d at 79.
Moreover, the Court notes that it cannot wholly divorce the question of whether harassment is severe or pervasive from the question of whether the harassment itself is based on gender. As noted above, abusive incidents that are not gender-related are irrelevant to establish a claim against Fidelis that can survive its motion for summary judgment. See Norris, 2004 WL 1087600, at *12. Such incidents are equally irrelevant in assessing the severity or pervasiveness of any harassment for Title VII purposes. Based on the current record, the Court concludes that no reasonable jury could find that Michelson subjected Plaintiff to gender-based harassment that was severe or pervasive.
Finally, the Court's grant of summary judgment on Plaintiff's harassment claim for Title VII purposes merits a similar grant on Plaintiff's NYCHRL claim. A NYCHRL hostile work environment claim requires that Plaintiff prove "by a preponderance of the evidence that she has been treated less well than other employees because of her gender." Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 39 (1st Dep't 2009) (emphasis added). While it is true that the NYCHRL moves the consideration of severity and pervasiveness from the liability to the damages phase of trial, see id. at 39-40, it remains a requirement of the claim that any harassment be "because of" Plaintiff's gender. Id. at 39. The New York Appellate Division, First Department also recently made clear that summary judgment remains available if a plaintiffs claim of severity is not borderline. See id. at 41 ("[W]e assure employers that summary judgment will still be available where they can prove that the alleged discriminatory conduct in question does not represent a `borderline' situation but one that could only be reasonably interpreted by a trier of fact as representing no more than petty slights or trivial inconveniences."); see also Short v. Deutsche Bank, 79 A.D.3d 503, 913 N.Y.S.2d 64, 66 (1st Dep't 2010) ("The various complaints about [harasser's] conduct in the workplace were nothing more than non-actionable petty slights and minor inconveniences which in any event may be viewed by a reasonable employee as a function of [harasser's] management style, unrelated to gender discrimination," citing Williams, 872 N.Y.S.2d at 41). Because the Court has already determined that Plaintiff cannot establish that Michelson's conduct occurred because of gender, the Court also concludes that Plaintiff fails the NYCHRL summary judgment standard on this harassment claim. Accordingly, Defendant's motion for summary judgment on the NYCHRL harassment claim is also granted.
Here, Plaintiff argues that she engaged in protected activity within the meaning of Title VII when she had a September 13, 2006 meeting with Chief Legal Officer and Corporate Compliance Officer Regina Trainor and Associate Director of Corporate Compliance Robert Fazzolari in which she reported the September 8, 2006 altercation with Michelson. (P. 56.1 ¶ 464.) Plaintiff alleges specifically that she informed Trainor and Fazzolari that "there were women that were afraid to be in the office with Michelson" and said "you have a problem employee who behaves inappropriately towards women and you are now on notice from me that you have to do something about him." (Id. ¶¶ 464-67.) Fidelis does not seriously dispute these facts, except to clarify that Plaintiff's testimony was that she informed Tucker in Human Resources that "there were women that were afraid to be in the office with Michelson," rather than Trainor or Fazzolari in the September 13 meeting. (See Def. Reply 56.1 ¶ 464.) Fidelis also points out that while Trainor later testified that she remembered Plaintiff "putting her on notice, she understood her to mean that she was putting her on notice that Michelson would raise his voice, not that she was raising claims of unlawful harassment." (Id. ¶ 466, 872 N.Y.S.2d 27.) Plaintiff does separately allege that on September 8, 2006 she said to Tucker, "he can't treat people like this, he can't treat women like this. This is what he did to Vicki. I know he did this to Sue. He has done it to other women." (P. 56.1 ¶ 457.) Fidelis does not dispute this testimony.
In the context of a Title VII retaliation claim, "`[p]rotected activity' includes opposition to a discriminatory employment practice or participation in any investigation, proceeding, or hearing under Title VII." Hubbard v. Total Commc'ns, Inc., 347 Fed. Appx. 679, 680-81 (2d Cir.2009). It is clearly established that "informal complaints to supervisors constitute protected activity under Title VII." Sclajani v. PC Richard & Son, 668 F.Supp.2d 423, 427 (E.D.N.Y.2009); see also Amin v. Akzo Nobel Chemicals, Inc., 282 Fed. Appx. 958, 961 (2d Cir.2008); Cruz, 202 F.3d at 566; Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). Here, Plaintiff complained about what she perceived, rightly or wrongly, to be Michelson's gender animus to the head of Human Resources, the Chief Legal Officer, and the Associate Director of Corporate Compliance. (See P. 56.1 ¶¶ 387-88, 464-67.) These complaints, even if informal, fall within the accepted definition of protected activity for Title VII purposes.
To establish that an employee engaged in protected activity sufficient to establish a retaliation claim, however, the employee must also demonstrate:
Spadola v. N.Y.C. Transit Auth., 242 F.Supp.2d 284, 291 (S.D.N.Y.2003); see also Sullivan—Weaver v. N.Y Power Auth., 114 F.Supp.2d 240, 243 (S.D.N.Y.2000) ("Mere subjective good faith belief is insufficient, the belief must be reasonable and characterized by objective good faith."). Whether Plaintiff's belief was objectively reasonable for this purpose is a decision for the trier-of-fact based on the record in the case. See Thomas v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273, 279 (S.D.N.Y.2002). Thus, although the Court has already determined, supra, that Michelson's conduct did not constitute a violation of Title VII, the question on the retaliation claim is whether Plaintiff possessed a good faith, reasonable belief that it did. See Martin v. State Univ. of N.Y., 704 F.Supp.2d 202, 228 (E.D.N.Y.2010).
Finally, the Court notes that to the extent Plaintiff engaged in protected activity under Title VII, Fidelis possessed both constructive and actual knowledge of it. Plaintiff's language, supra, was more than sufficient to alert Human Resources and the Chief Compliance Officer that Plaintiff was making a complaint sounding in gender discrimination. Because Plaintiff complained to the individuals tasked with investigating such complaints, (see Def. 56.1 ¶¶ 34-45), Fidelis' knowledge may be imputed. See Triola v. Snow, 289 Fed. Appx. 414, 417 (2d Cir.2008). Particularly in light of her choice of language in the September 13, 2006 meeting with Trainor and Fazzolari, there can be no serious dispute that "plaintiffs opposition was directed at conduct prohibited by Title VII" and by the NYCHRL. See, e.g., Galdeiri—Ambrosis v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998).
In order to be considered actionable in the retaliation context, an employer's action following Plaintiff's protected activity must be "materially adverse" enough to "dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). This standard is intended to "separate significant from trivial harms" because Title VII "does not set forth `a general civility code for the American workplace.' Id. at 68 (quoting Oncale, 523 U.S. at 80). Even the NYCHRL, which contains no material adversity requirement, nonetheless insists that any such employer action "reasonably deter a person from engaging in protected activity." See Williams, 872 N.Y.S.2d at 34. Here, Plaintiff points to her "marginalization" at work, her October 2006 performance review, and her January 3, 2007 termination. The Court addresses each in turn.
More compelling is Plaintiff's allegation that her October 2006 performance review and her January 3, 2007 termination were adverse employment actions within the meaning of Title VII and the NYCHRL. It is certainly true that a poor review which results in no further adverse action cannot be deemed sufficient to dissuade a reasonable person from complaining of discriminatory treatment. See Ragin v. East Ramapo Cent. Sch. Dist., No. 05 Civ. 6496, 2010 WL 1326779, at *17, aff'd, 417 Fed. Appx. 81 (2d Cir.2011); Martinez-Santiago v. Zurich N. Am. Ins. Co., No. 07 Civ. 8676, 2010 WL 184450, at *11 ("A reasonable employee would not be dissuaded from filing a discrimination complaint merely because her supervisor gave her constructive employment-based criticism."). Here, however, Plaintiff specifically alleges that her October 2006 performance review was expressly the precursor for her January 2007 termination and differs markedly from her generally positive March 2006 review. (See P. 56.1 ¶¶ 188, 195; Opp. at 31.) Under Plaintiff's theory of the case, both the October 2006 performance review and the January 2007 termination are therefore related and "materially adverse" employment actions within the meaning of Title VII and NYCHRL. See Burlington, 548 U.S. at 57. The arguments Defendant makes regarding whether the termination in particular was in any way related to the performance review, (see, e.g., Def. Reply Mem. at 12), are more appropriately left for the discussion of pretext and causation.
Finally, in order to establish a prima facie case of retaliation under Title VII, Plaintiff must demonstrate "a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Kessler, 461 F.3d at 205-06 (citation omitted). For convenience, the Court analyzes the causation requirement on Plaintiff's prima facie case together with her ultimate burden of persuasion in rebutting Fidelis' non-discriminatory reasons for her negative review and subsequent termination.
These facts might ordinarily be fatal to Plaintiff's claim because in most cases where a decision maker cannot be shown to have been aware of the protected activity, any adverse employment action she undertakes is not causally related to that protected activity. See Ragin, 2010 WL 1326779, at *24. Plaintiff, however, disputes material facts as set out by Defendant in its 56.1 Statement. In particular, Plaintiff argues that Fidelis had resolved to terminate Casalino upon Michelson's return from his leave of absence and then went about the process of establishing a pretextual record to support that action. (See, e.g., P. 56.1 ¶ 285.) In addition to pointing out the extent to which Defendant shapes certain of Klotz's testimony in its 56.1 Statement, Plaintiff specifically points to several additional disputed facts: (1) In response to Frawley's e-mail, Trainor sent an e-mail to Klotz, copying Michelson, Lane, Frawley, and Casalino that did not mention any concern over Plaintiff's "ability to act as a supervisor", (P. 56.1 ¶ 286); (2) by the time Klotz returned to work from a vacation on January 3, 2007, it was Lane who had already replaced Plaintiff as medical director at Center Care, (P. 56.1 ¶ 287); (3) Klotz actually testified that prior to arriving to work on January 3, 2007, she had "no plans" to terminate Casalino, that she in fact viewed the Frawley memo and Trainor e-mail as "the final straw" in her decision to terminate Plaintiff, and that she could not remember what else, if anything, she reviewed that day, (Pl. 56.1 ¶ 287-88); (4) Klotz spoke with Michelson in the office the day Plaintiff was terminated, (P. 56.1 ¶ 290); (5) Trainor testified that a meeting was convened on January 3, 2007 which included Trainor, Lane, Frawley, and perhaps even included Michelson, in which "a decision was reached at the meeting to terminate Casalino, and that Klotz would do it," (P. 56.1 ¶¶ 190-92); and (6) Michelson participated in Lane's decision to remove Plaintiff as medical director of Center Care when Lane asked Michelson to "review and comment" on his memo of January 2, 2007 announcing the Center Care change, to which Michelson replied, "Looks good. Is the `unspoken' message too obvious?" (P. 56.1 ¶ 293). In light of these apparently disputed facts, the Court cannot agree with Defendant that Plaintiff "does not cite a single admissible fact in support" of her theory that "the facts support an inference that either Klotz was not the decision-maker or that she was strongly influenced by Lane, Frawley, Trainor and Michelson, and by the input of Michelson reflected in the October review." (See Def. Reply Mem. at 13; Opp. at 33-34.) Because the Court has already determined that Fidelis was on constructive notice of Plaintiff's protected activity, supra, Plaintiff's theory is sufficiently compelling. Moreover, the Court of Appeals has elsewhere instructed that under the McDonnell Douglas framework, "[t]o make out a prima facie case is not a demanding burden." Greenway, 143 F.3d at 52.
Moreover, Plaintiff is permitted to make her case for causation at least in part on the temporal proximity between engaging in the protected activities and suffering an adverse employment action. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001); Hubbard, 347 Fed. Appx. at 681 (finding that four months between protected activity and adverse employment action did not exceed the "outer limit" of when causation may be inferred from temporal proximity); Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (reversing summary judgment where an adverse employment action occurred within two months of plaintiffs complaint to management). Here, Plaintiff seeks to demonstrate that over a two-year engagement at Fidelis, her protected activity, negative review, and termination all took place in what was effectively a four-month period. Moreover, her negative evaluation came less than a month after her complaint regarding Michelson and differs not insubstantially from her generally positive March 2006 performance review. Finally, when the time Michelson spent out of the office on personal leave is excluded, Plaintiff's January 3, 2007 termination follows a mere two months after her September 2006 complaint and October 2006 negative performance evaluation. It is important to note too that Plaintiff is not building her entire case-in-chief or rebuttal of pretext on temporal proximity alone.
Finally, the Court observes that Plaintiff may rely on circumstantial evidence of pretext. "[R]etaliatory intent may also be shown in conjunction with the plaintiffs prima facie case, by sufficient proof to rebut the employer's proffered reason for the termination." Parrish v. Sollecito, 258 F.Supp.2d 264, 268 (S.D.N.Y.2003) (citing Reeves, 530 U.S. at 143-49). The Court of Appeals has noted that to survive summary judgment, a Title VII plaintiff "has no obligation to prove that the employer's innocent explanation is dishonest, in the sense of intentionally furnishing a justification known to be false." Henry, 616 F.3d at 156. Instead, the plaintiff need only show that the defendant "was in fact motivated at least in part by the prohibited discriminatory animus." Id. (citing Gordon, 232 F.3d at 117) (emphasis added). It is well settled that a plaintiff may do so "by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nondiscriminatory reason for its action." Ramos v. Marriott Intern., Inc., 134 F.Supp.2d 328, 343 (S.D.N.Y.2001) (citations and alterations omitted); see also EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 39 (2d Cir.1994).
(See Opp. at 35-37.) Plaintiff's position is that taken together, the record includes sufficient material, comprised of permissible temporal proximity evidence, circumstantial evidence of disparate treatment of employees, and circumstantial evidence of pretext to establish that retaliation was, at least "in part," a reason for her termination in January 2007. See Henry, 616 F.3d at 156. The same evidence goes to pretext. See Gordon, 232 F.3d at 117. Given the Court of Appeals' recent holding in Hubbard, 347 Fed. Appx. at 681, this Court is constrained to find that true questions of fact exist as to whether, among other issues, Klotz was the actual decision maker in Plaintiff's termination, said termination was actually the result, at least in part, of Plaintiff's protected activity under Title VII, and whether Fidelis' stated legitimate nondiscriminatory reasons are merely pretextual.
Retaliation claims under the NYCHRL are to be liberally construed, do not require an "ultimate action" with respect to employment or a "materially adverse change in the terms or conditions of employment," and are not restricted to the "standard currently applied by the Second Circuit in [Title VII] retaliation claims." Williams, 872 N.Y.S.2d at 33-34 (citations omitted). Accordingly, because the Court has found Plaintiff's Title VII retaliation claim survives Fidelis' motion for summary judgment, so too does Plaintiff's NYCHRL retaliation claim.
To state a prima facie case for gender-based disparate treatment discrimination, Plaintiff must demonstrate: (1) membership in a protected class; (2) that she was qualified for her position; (3) that she experienced an adverse employment action; and (4) circumstances surrounding the adverse employment decision that give rise to an inference of discrimination. See Gregory, 243 F.3d at 689. As with the retaliation claim above, Plaintiff's disparate treatment claim is analyzed using the framework laid out in McDonnell Douglas. If Plaintiff establishes a prima facie case, Fidelis may proffer a legitimate, non-discriminatory reason for the alleged adverse employment action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If Fidelis meets this burden, Plaintiff must then establish, by a preponderance of the evidence, that Fidelis' stated reasons are merely pretext for discrimination. See id.
In order to establish her prima facie case of disparate treatment discrimination, it is critical that Plaintiff demonstrate that any adverse actions taken against her were done under circumstances "giving rise to an inference of discrimination" based on her gender. See Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir.2009). This element is critical in analyzing the NYCHRL claim as well. See Williams, 872 N.Y.S.2d at 41 ("[T]he primary issue for a trier of fact . . . is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender.") (emphasis added). Such inferences may be drawn from direct evidence, statistical evidence, or circumstantial evidence. See generally Sogg v. American Airlines, 193 A.D.2d 153, 603 N.Y.S.2d 21 (1st Dep't 1993). They must, however, be more than inferences that Plaintiff's termination was erroneous or unsupported by the facts alleged they must be inferences that gender discrimination itself was a reason for the termination. See, e.g., Babcock v. N.Y.S. Office of Mental Health, No. 04 Civ. 2261, 2009 WL 1598796, at *15 ("The fact that [employer] may have relied on incorrect information is immaterial to [Plaintiff's] gender discrimination claim."). For the reasons the Court has already identified in discussing her gender harassment allegations under Title VII and NYCHRL, supra, Plaintiff has simply failed to adduce sufficient factual material to allow a reasonable jury to conclude that any adverse action was taken against her specifically on the basis of her gender, outside the specific context of retaliation for protected activities.
Absent other direct, circumstantial, or statistical evidence, Plaintiff has failed to produce sufficient evidence that any adverse employment action Fidelis undertook had an impermissible basis in gender as required by Title VII and the NYCHRL to establish a prima facie disparate treatment claim. See Leibowitz, 584 F.3d at 498; Williams, 872 N.Y.S.2d at 41. Accordingly, Fidelis' motion for summary judgment on these claims is granted.
For the reasons stated above, Defendant's Rule 56 motion for summary judgment [dkt. no. 37] is GRANTED in part with prejudice and DENIED in part. The parties shall confer and inform the Court by letter no later than April 6, 2012 how they propose to proceed.
Raymond Davis, Woodside, NY, pro se.
Aimee Kara Lulich, Brian Jeremy Farrar, New York City Law Department, New York, NY, for Defendants.
VITALIANO, District Judge.
On the afternoon of July 8, 2011 Davis was caught shoplifting at a Marshall's clothing store in Queens. Compl. at 4. When the store security officer confronted plaintiff about the stolen merchandise, he removed a pair of pliers from his pocket and pointed them at the security officer "in a threatening manner." Declaration of Aimee K. Lulich ("Lulich Decl."), Ex. C. Following a brief standoff, Davis fled the store, but was apprehended by police officers a short distance away. When stopped, police officers found both unreceipted Marshall's merchandise and a pair of pliers in Davis's possession. At this point, the stories diverge. Defendants contend, consistent with what is contained in the police report, that Davis resisted arrest by "flailing violently," "refusing to be rear handcuffed" and "assaulting police officer Keyes." Id. Davis, on the other hand, denies actively resisting arrest. According to his complaint and deposition testimony, during the arrest several of the officers threw him up against a wall and kicked and punched him repeatedly in the head, face and back. Compl. at 5; Lulich Decl. Ex. B. Davis further testified that, as a result of this arrest process, he suffered bruises, scrapes, a "busted" lip, and a swollen face. Id.
Once subdued, Davis was transported to the precinct, where he was booked and prepared for processing. As Officer Keyes tells it, Davis again resisted when he attempted to remove Davis's belt, punching and kicking him and causing him to fall and twist his knee. Indeed, medical records show that Officer Keyes received treatment for a "left knee contusion" at Forest Hills Hospital on that same day. See Lulich Decl. Ex. G. Davis, on the other hand, claims that, during booking, the officers stripped him of his clothes, handcuffed him and began to beat him. Compl. at 5. While Davis was handcuffed in the holding cell, officers allegedly punched him in his face multiple times in an effort to remove Davis's pants and sneakers. Finally, according to plaintiff, Officer Keyes engaged in "inappropriate . . . touching" while Davis was in the holding cell by placing his hand inside of Davis's underwear and attempting to touch Davis's anus. Compl. at 5; Lulich Decl. Ex. B. Davis testified that, when Officer Keyes placed his hand inside of his underwear, he, Davis "went crazy" and, as a result, Officer Keyes never actually touched his anus. Id.
Following booking, Davis was transported that same evening to Elmhurst Hospital. According to Davis, the medical records "show[ ][he] made [a] complaint about [his] head and leg and back." Compl. at 7. Medical records do indicate that Davis lodged a complaint about back and wrist pain. More dispositively, however, viewed in their entirely, the hospital records are wholly inconsistent with and offer no support for the type of brutality that Davis alleges. In fact, the medical records leave no doubt that Davis "denie[d] any bleeding/swelling/ecchymosis on the wrist/head area" and that his "forearm appearance [was] normal." See Lulich Decl. Ex. H. Further, the records indicate that plaintiff was classified as "Non— Urgent," he had "no skin abrasions" and his head was "normocephalic and atraumatic." Id. Finally, the hospital records demonstrate that plaintiff actually refused further medical treatment, stating to the doctor, "I am good." Id.
Pursuant to Rule 56, a federal district court must grant summary judgment upon motion and finding, based on the pleadings, depositions, interrogatory answers, admissions, affidavits, and all other admissible evidence that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004). In determining whether the moving party has met this burden, a court must construe all evidence in a light most favorable to the nonmoving party, resolving all ambiguities and inferences in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original); Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 90 (2d Cir.2002). Material facts are those which, given the substantive law, might affect the suit's outcome. Anderson, 477 U.S. at 248.
If the moving party makes a prima facie showing that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and put forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002). In so doing, the nonmoving party may not rely on conclusory allegations or speculation. Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir.2004) (citing D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998)); Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). Thus, to defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (quoting Matsushita, 475 U.S. at 586). Nonetheless, the nonmoving party need not make a compelling showing; it need merely show that reasonable minds could differ as to the import of the proffered evidence. R. B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir.1997).
Construing plaintiff's complaint liberally, plaintiff appears to be pursuing a false arrest claim under § 1983. The record is fatal to any such claim. Where a plaintiff is convicted for an offense for which he was arrested, his claim of false arrest cannot succeed as a matter of law. See Allison v. Farrell, 97 Civ. 2247 (DAB), 2002 WL 88380, at *4 (S.D.N.Y. Jan. 22, 2002); Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir.1986) ("[W]here law enforcement officers have made an arrest, the resulting conviction is a defense to a § 1983 action asserting that the arrest was made without probable cause."). It is undisputed that Davis pled guilty to petit larceny and resisting arrest, crimes for which the subject arrest was made. Plaintiff has not shown, nor is there any reason to believe he could, that this conviction has been reversed on appeal, called into question by a federal court's issuance of a writ of habeas corpus, or otherwise invalidated in any other way. The unassailed conviction slams the courthouse door on this claim. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). Summary judgment dismissing this claim is granted.
Plaintiff claims that officers used excessive force both in effectuating his arrest and in conducting a search of his person at the precinct as part of the booking process. The Court "analyzes claims of excessive force arising in the context of an arrest under the Fourth Amendment's objective reasonableness test, paying careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Phelan v. Sullivan, 2013 U.S.App. LEXIS 19147 at *6 (2d Cir. Sept. 17, 2013) (citation omitted). It is the standard that applies to both the arrest and the post-arrest booking process. Campbell v. City of New York, 2010 U.S. Dist. LEXIS 66389 at *24 (S.D.N.Y.2010). "Officers are entitled to use some degree of force when restraining a suspect during an arrest." Faruki v. City of New York, 517 Fed. Appx. 1, 2 (2d. Cir. Feb 7, 2013); see also Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.")
The Court, as is basic, must resolve all ambiguities in favor of the non-moving party. Such ambiguity, where different versions of the force employed are stated, might arise; that is, if all that was in the record were the bald story-telling by each side. But, here, there is more and it is significant, since, where undisputed medical records directly and irrefutably contradict a plaintiff's description of his injuries, no reasonable jury could credit plaintiff's account of the happening. Bove v. City of New York, 1999 WL 595620 at *6 (S.D.N.Y.1999) (granting summary judgment on an excessive force claim where plaintiff's "allegations [were] completely contradicted by the hospital's records.") In this case, the hospital records from the evening of Davis's arrest demonstrate that, at most, Davis had minor soreness in his wrist. See Lulich Decl. Ex. H. If officers had repeatedly punched plaintiff during the arrest and booking process, as he alleges, it is simply not believable that the hospital records would indicate that Davis had "no skin abrasions" and that his facial appearance was "normocephalic and atraumatic." These medical records, bluntly, directly contradict the version of facts plaintiff gave in his complaint as well as in his deposition (testimony that his face was "swollen" and covered in "knots" as a result of a "brutal beating" administered by the police). Further, the record is utterly devoid of evidence of any kind supporting Davis's description of his injuries other than his own claims. See Bove at *6 ("There are no affidavits from the plaintiff's treating physicians or psychologists, no hospital records in short, nothing to substantiate . . . the alleged `beating' by the NYPD. . . . All the record contains for purposes of this motion are [plaintiff's] bald and conclusory allegations which are insufficient to withstand a motion for summary judgment."); accord Jeffreys v. City of New York, 426 F.3d 549, 552 (2d Cir.2005) ("[I]n the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any `genuine' issues of material fact, without making some assessment of the plaintiff's account.") (citation omitted). Accordingly, plaintiff's excessive force claim is dismissed.
For all of the above reasons, upon their motion, summary judgment is granted in favor of all defendants. This action is dismissed.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
The Clerk of Court is directed to enter judgment and to close this case.
David Christopher Figueroa, New City, NY, pro se.
Eric Dranoff, Saretsky Katz Dranoff & Glass LLP, New York, NY, James Christopher Freeman, Kent Hazzard, LLP, White Plains, NY, for Defendants.
NELSON S. ROMAN, United States District Judge.
Before the Court are the County Defendants and Dr. Piacente's motions to dismiss the SAC for failure to state a cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "County Defendants' Motion" and "Dr. Piacente's Motion", respectively). (See The County Defendants' Brief in Support of the Motion to Dismiss ("Cnty. Defs. Br.") (ECF No. 28); Dr. Piacente's Brief in Support of the Motion to Dismiss ("Def. P. Br.") (ECF No. 36).) For the following reasons, the County Defendants' Motion is GRANTED and Dr. Piacente's Motion is
The following facts are taken from Plaintiff's SAC and are accepted as true for purposes of this motion.
Plaintiff is a pro se detainee who was housed at Rockland County Correctional Center ("Rockland County Jail"), a holding facility within the New York State Department of Corrections and Community Supervision ("DOCCS"), at the time of his alleged injury. Plaintiff initiated this action for alleged violations of his constitutional rights to adequate medical care, sanitary conditions of confinement, and access to the courts. (See SAC at 2-7.)
Plaintiff alleges that he had no toilet paper and his clothes were in the laundry, so he had no way to stop the bleeding. (Id.) When McLaughlin arrived, Plaintiff asked him for some toilet paper to stop the bleeding, but McLaughlin told him to hold his hand over the toilet bowl and let the blood drip. (Id.) Plaintiff then asked to go to medical and McLaughlin told him, "medical is busy and I'll call them when I'm good and ready." (Id.)
During that same "3 to 11 shift", Plaintiff was taken to medical and seen by Nurse Jacob. (Id. at 5.) Plaintiff requested that he be sent to the hospital for stitches, but Jacob advised that she did not have authority to send him to the hospital — only a doctor did — and he was not in. (Id.) She further informed Plaintiff that she did not think the doctor would approve sending him to the hospital for 3-4 stitches. (Id.) Plaintiff then described that intake was "filthy" and that he was "afraid of catching something," particularly because another detainee, Brad Smith, was "throwing his fecal matter around", the staff was making the detainees use the same equipment to clean their cells that were used to clean Mr. Smith's fecal matter, and that the brooms and mops were contaminated.
Within the following two days
Shortly after he was injured, Plaintiff began filing grievances related to his living conditions, including that it was "extremely hot", he had "bite marks up and down [his] leg", there was "no ventilation", "a gnats['] nest growing in the shower", "male semen on the walls", and "fecal matter being thrown around by inmate Brad Smith." (Id. at 6.) Plaintiff also claimed that there was "cross contamination between brooms, maps and dust pans." (Id.) Moreover, Plaintiff also complained that he could not see through his mirror and thus cut himself while he was shaving. (Id.) Plaintiff claims that Byron was deliberately indifferent to the alleged inhumane conditions that existed at the Rockland County Jail. (Id.) Plaintiff also contends that Byron "knew that [he] later did not receive adequate medical care when injury happen [sic] to [him] and [he] did nothing to move [Plaintiff] away from such bacteria infested area." (Id.) Plaintiff claims that Falco and Hickey were also deliberately indifferent to his conditions of confinement because they knew of the alleged unsanitary conditions in intake housing, but "did not care and they knew [Plaintiff] had an open gash on [his] hand", but when he returned from the hospital, they "put [him] back in intake housing." (Id.)
Plaintiff also claims that Byron interfered with his grievance process insofar as Byron "mess[ed] with the mail because some of [Plaintiff's] grievances did not go to the C.O.R.C." (Id. at 7.)
On July 12, 2016, Plaintiff asked Hickey to take a photograph of his injury, but he declined, allegedly stating that "it would never happen." (Id.) On July 20, 2016, Plaintiff also asked Falco to take the photograph of his injury and Falco allegedly told Plaintiff to "fuck off." (Id.) Plaintiff claims that their refusal to take a photograph of his injuries interfered with his ability to support his Section 1983 claims. (Id.)
On a 12(b)(6) motion, dismissal is proper unless the complaint "contain[s] 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 Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679.
The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
Pro se pleadings are afforded great solicitude, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and should be interpreted "to raise the strongest arguments that they suggest," Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a pro se plaintiff's pleading must contain factual allegations that sufficiently "raise a right to relief above the speculative level," Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010), and the Court's duty to construe the complaint liberally is not "the equivalent of a duty to re-write it," Geldzahler v. New York Medical College, 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009).
Like under the Eighth Amendment, deliberate indifference pursuant to the Fourteenth Amendment has both an objective and a subjective prong. Consequently, "the official custodian of a pretrial detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of his deliberate indifference to that need." Weyant, 101 F.3d at 856.
The objective prong under either Amendment remains the same, Darnell, 849 F.3d at 30, mandating that the deprivation be, "in objective terms, sufficiently serious," Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotations omitted). The second prong requires that the official act with "a sufficiently culpable state of mind," see Wilson v. Seiter, 501 U.S. 294, 298 (1991), but this standard differs between the Eighth and Fourteenth Amendments, as the Supreme Court's decision in Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), "altered the standard for deliberate indifference claims under the Due Process Clause," Darnell, 849 F.3d at 30. It is now more properly considered a wens rea prong that requires a showing of recklessness, which is defined objectively. Id. at 32, 35. A pretrial detainee must therefore prove "that the defendant-official 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 defendantofficial knew, or should have known, that the condition posed an excessive risk to health or safety." Id. at 35.
The bulk of Plaintiff's Second Amended Complaint sounds in an assortment of claims regarding conditions-of-confinement in violation of the Fourteenth Amendment. Such claims fall into two categories— housing and medical care — and are analyzed under variations of the same standard.
Plaintiff claims deliberate indifference to his medical needs against Dr. Piacente, and of the County Defendants, McLaughlin and Jacob. (See SAC at 4-5, 8.)
The objective prong is a two part inquiry, Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006), requiring an actual "deprivation of adequate medical care," id. at 279; see Farmer v. Brennan, 511 U.S. 825, 844-47 (1994) (reasonable care is not deprivation), and a determination that the deprivation is sufficiently serious, shown by the existence of "a condition of urgency, one that may produce death, degeneration, or extreme pain," Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citing Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) ("Hathaway III")).
With respect to alleged inadequate treatment, the inquiry focuses on the alleged inadequacy "rather than the prisoner's underlying medical condition alone." Salahuddin, 467 F.3d at 280. Plaintiff alleges that he should have been sent to the hospital immediately and been given stitches. (See SAC at 4-10.) Plaintiff was seen by Jacob and Dr. Piacente. While a cut on the hand is not typically a sufficiently serious injury, Plaintiff has nevertheless met the objective, because of his resulting staph infection that developed because his wound was not closed before he was returned to intake housing. See Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) ("[T]he failure to provide treatment for an otherwise insignificant wound may violate the Eighth Amendment if the wound develops signs of infection, creating a substantial risk of injury in the absence of medical treatment."); see also Vassallo v. City of New York, No. 15-cv-7125(KPF), 2016 WL 6902478, at *9 (S.D.N.Y. Nov. 22, 2016) (finding inadequate treatment for diabetes "resulting in consistently and abnormally elevated blood sugar levels" sufficient for objective prong). Dr. Piacente and Defendant Jacob both declined to send Plaintiff to the hospital to get stitches for his wound open and instead, gave him paper stitches and sent him back to intake housing where an open would could have become infected. The objective prong is satisfied.
Plaintiff's claim against McLaughlin, insofar as he alleges that a 20 minute delay in tending to his lacerated finger constituted deliberate indifference, (see SAC at 4), fails to meet the objective prong. While a delay in providing medical care can constitute deliberate indifference, such a brief delay, as a matter of law, cannot constitute deliberate indifference to the type of injury alleged by Plaintiff. See Tatum v. City of New York, No. 06-CV-4290(BSJ)(GWG), 2009 WL 124881, at *6 (S.D.N.Y. Jan. 20, 2009) (twenty minute delay insufficient); Ravenell v. Van der Steeg, No. 05-CV-4042, 2007 WL 765716, at *4 (S.D.N.Y. Mar. 14, 2007) (15-20 minute delay in treatment of fractured finger insufficient). The other aspect of Plaintiff's claim against McLaughlin likewise fails as McLaughlin's decision to have Plaintiff hold his hand over a toilet bowl to wait for the blood to stop, instead of providing him toilet paper, is not a deprivation of medical care because McLaughlin ultimately brought Plaintiff to see a nurse shortly after he injured himself, still during the same "3-11" shift on July 3, 2016 in which Plaintiff was injured. (See SAC at 4-5.) The claims against Defendant McLaughlin are dismissed.
Though analysis of the second prong under the Fourteenth Amendment has been modified, what remains the same is that negligence, and thus medical malpractice, will not rise to the level of a constitutional violation unless the medical malpractice contains an element of intent or recklessness. Darnell, 849 F.3d at 36 (noting that "any § 1983 claim for a violation of due process requires proof of mens rea greater than mere negligence" and it must be shown that an official "acted intentionally or recklessly").
Plaintiff's claims against Defendant McLaughlin must also fail. Even assuming the 20 minutes in which Plaintiff waited for McLaughlin to respond to him would suffice for the objective prong, Plaintiff has failed to demonstrate that the delay was intended to prolong his pain or exacerbate his injury, or that McLaughlin acted recklessly. Simply put, the facts are wholly inadequate to demonstrate as much.
With respect to Dr. Piacente, however, the result is different. Plaintiff's allegations regarding Dr. Piacente's mental state suffice for the mens rea prong. In coming to this conclusion, the Court has assessed Dr. Piacente's reactions to Plaintiff's injury, the treatment he was provided, and the resulting adverse consequences. "[I]n most cases, the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm," though an "actual physical injury" is not necessary to recover. See Smith, 316 F.3d at 187-88 (finding that defendant's conduct "in exposing an inmate to an unreasonable risk of future harm" sufficient); see also Richardson v. City of New York, No. 15-CV-643(LAK)(AJP), 2015 WL 7752143, at *6 (S.D.N.Y. Nov. 18, 2015) (finding that ignoring potential risk of infection was reckless), report and recommendation adopted by, 2016 WL 1637997 (Apr. 22, 2016). Plaintiff has alleged the requisite mental state with respect to Dr. Piacente, whose conduct cannot be boiled down to simple negligence or medical malpractice. Assuming the truth of Plaintiff's allegations, Dr. Piacente agreed that Plaintiff needed stitches, (see SAC at 8), but told Plaintiff "that he could handle it", (id), and intentionally provided an "easier and less efficacious treatment", paper stitches, Chance, 143 F.3d at 703 (choice of "easier and less efficacious" treatment can suffice).
Plaintiff also appears to assert a deliberate indifference claim against Byron, Hickey, and Falco regarding the alleged unsanitary conditions in intake housing.
Plaintiff's claims fail to meet the requisite burden. Preliminarily, Plaintiff lists a number of unsanitary conditions of confinement, including "no ventilation at all in intake housing", (SAC at 6), that he had "bite marks up and down" his leg, (id), a gnats' nest was "growing in the shower", (id), there "was male semen on the walls", (id), a fellow detainee, Brad Smith, was "throwing around" his feces, (id), and the cleaning supplies provided to the detainees were previously used to clean Mr. Brown's feces, (Id.) Plaintiff also claims that he was in intake housing for a total of 90 days, (Id.), and that intake housing "only holds 16 cells," (Id. at 9.) To assess whether a constitutional violation occurred, however, this Court must understand the severity of the conditions and the duration that Plaintiff was exposed to them. See Darnell, 849 F.3d at 30; see also Jackson v. Sullivan Cnty., 16-CV-3673(JCM), 2018 WL 1582506, at *4 (S.D.N.Y. Mar. 27, 2018) (dismissing conditions of confinement claim in absence of allegations regarding severity and duration). Plaintiff fails to plead that information. As alleged, this Court cannot ascertain whether Plaintiff was in the same cell with Mr. Smith while he was throwing his feces (as there are 16 cells in intake housing) or how often he would do so, whether the cleaning supplies were cleaned after they were used to clean up after Mr. Smith, and the amount of time Plaintiff was exposed to the conditions in the bathroom shower. This prong is insufficiently pled.
Even if Plaintiff had pled the above facts relevant to duration and severity, his claim would still be ripe for dismissal because Plaintiff cannot demonstrate the second prong of the deliberate indifference test. The Second Circuit has explicitly held that, with respect to conditions of confinement, the defendant-official must have acted recklessly or intentionally, see Darnell, 849 F.3d at 35; negligence will not suffice, Jackson, 2018 WL 1582506, at *4. In the absence of allegations suggesting that Byron, Hickey, or Falco intentionally subjected Plaintiff to the conditions or recklessly failed to act when they knew or should have known that the conditions posed an excessive risk to his health or safety, Plaintiff's claims cannot stand. See id. (finding lack of similar allegations defective to the claim). Indeed, Plaintiff's only allegations regarding Byron's state of mind are that he did not "car[e] for to [sic] change [the detainees'] cleaning equipment", that he "knew of the inhumane environment", and "knew that [Plaintiff] later did not receive adequate medical care . . . and he did nothing to move [Plaintiff] away from such bacteria infested area." (See SAC at 6.) As to Defendants Hickey and Falco, Plaintiff merely alleges that they knew of the unsanitary conditions and "did not care" and "put [him] back in intake housing" after he was released from the hospital. (Id.) Such allegations are conclusory at best, and fail to demonstrate that Byron, Hickey, or Falco acted in a manner that rose above the level of negligence. Plaintiff's claims must be dismissed; nevertheless, because Plaintiff's deliberate indifference claims against these Defendants suffers from a facial malady, he will be granted leave to re-plead.
Plaintiff also appears to raise two claims that sound in principals of access to the courts. Specifically, Plaintiff alleges that Byron interfered with the grievance procedure, (see SAC at 6-7), and that Falco and Hickey interfered with his ability to allege a Section 1983 claim by failing to photograph his injury, (id. at 7.) Neither claim survives a motion to dismiss.
To state a First Amendment access to the courts claim, a plaintiff must demonstrate "that the defendant `took or was responsible for actions that hindered [a plaintiff's] efforts to pursue a legal claim.'" Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (alterations in original).
Any claim against Byron that he violated Plaintiff's constitutional rights by interfering with the grievance process cannot stand. "[I]nmate grievance programs created by state law are not required by the Constitution"; thus, a claim alleging interference with the grievance procedures is not cognizable under Section 1983, Harris v. Westchester Cnty. Dep't of Corr., No 06-CV-2011(RJS), 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008); see also Rickett v. Orsino, No. 10-CV-5152(CS)(PED), 2013 WL 1176059, at *20 (S.D.N.Y. Feb. 20, 2013), report and recommendation adopted by, 2013 WL 1155354 (Mar. 21, 2013); Mimms v. Carr, No. 09-CV-5740(NGG)(LB), 2011 WL 2360059, at *10 (E.D.N.Y. Jun. 9, 2011), "absent a showing that the defendants' actions in that regard result in actual prejudice to the inmate's pursuit of a legal action," Abney v. Jopp, 655 F.Supp.2d 231, 234 (W.D.N.Y. 2009); see also Banks v. Cnty. of Westchester, 168 F.Supp.3d 682, 692 (S.D.N.Y. 2016) (noting that plaintiff must demonstrate that "defendant's actions resulted in an actual injury"). Plaintiff's conclusory allegations fail to demonstrate that he was actually prejudiced in the pursuit of any legal action. He has successfully pursued this Section 1983 action in federal court, as this Court is permitting Plaintiff to re-allege his claims against Byron as they concern the unsanitary conditions central to his grievances. An access to the courts claim cannot stand.
Plaintiff's attempt to allege that Hickey and Falco violated his constitutional rights by failing to take photographs of his injuries likewise fails. A refusal to take a photograph requested by a plaintiff does not rise to the level of a constitutional violation. See Chavis v. Chappius, No. 06-CV-5435, 2015 WL 1472117, at *15 (W.D.N.Y. Mar. 31, 2015). Moreover, even if Plaintiff could assert it as the basis of an access to the courts claim, it has not hindered his pursuit of a lawsuit. Despite not having a photograph of his injury, Plaintiff brought this civil rights lawsuit, alleging, inter alia, inadequate medical care. This Court's dismissal of those claims against the County Defendants had nothing to do with Plaintiff's lack of photographic evidence, that the conduct did not rise to the level of a constitutional violation. Moreover, Plaintiff's allegations sufficed to move his case forward on a deliberate indifference claim against Dr. Piacente; the merits of this claim will not rise and fall on the existence of a photograph of Plaintiff's injury. Plaintiff's claims against Hickey and Falco must be dismissed.
A Plaintiff can only recover from a municipality if he demonstrates a claim pursuant to Monell v. Department of Soc. Servs., 436 U.S. 658 (1976) (a "Monell" claim). To state such a claim, plaintiff "must allege that `the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers.'" Ceparano v. Suffolk Cnty. Dept of Health, 485 F. App'x 505, 508 (2d Cir. 2012) (quoting Monell, 436 U.S. at 690) (alterations in original). Critically, a Plaintiff must prove both that there was a constitutional violation and that the constitutional violation "was a result of a municipal policy or custom." Brown v. City of New York, No. 13-CV-6912(TPG), 2016 WL 616396, at *2 (S.D.N.Y. Feb. 16, 2016) (emphasis added). A municipality will not be held liable under the doctrine of respondeat superior. Monell, 436 U.S. at 691.
Where, as here, the complaint contains allegations of a "single incident, especially one involving only actors below the policy-making level" Monell liability cannot be sustained. Simpson v. Town of Warwick Police Dept, 159 F.Supp.3d 419, 439 (S.D.N.Y. 2016) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)); Toliver v. Office-Dep't of Corr. NYC, No. 10-CV-5354(DAB), 2013 WL 3783727, at *5 (S.D.N.Y. July 9, 2013). Plaintiff's SAC contains no allegations from which this Court could infer the existence of a Monell claim. None of the Defendants appear to be in a policy-making position. Moreover, the SAC does not contain a single allegation tying any of the alleged unlawful conduct to an overarching policy or custom. See Simpson, 159 F. Supp. 3d at 439 (dismissing Monell claim where "SAC does not contain a single allegation even a conclusory one that a policy or custom" caused plaintiff's injury); see also Moton v. City of New York, No. 15-C V-6485(GBD)(JLC), 2016 WL 1729046, at *4 (S.D.N.Y. Apr. 26, 2016) (no Monell liability in absence of allegations "that the harm was brought about by any municipal policy"), report and recommendation adopted by, 2016 WL 3554993 (Jun. 24, 2016). Plaintiff's claim against Rockland County must be dismissed.
The Court need not linger on whether to assert supplemental jurisdiction over Plaintiff's state law claims against Defendants McLaughlin, Jacob, Hickey, Falco, Byron, and Rockland County. These claims must fail as the Court has already determined that the Section 1983 claims are ripe for dismissal. See Sklodowska-Grezak v. Stein, 236 F.Supp.3d 805, 810 (S.D.N.Y. 2017) (declining to exercise supplemental jurisdiction over state law claims where federal claims dismissed); Mackenzie v. Donovan, 375 F.Supp.2d 312, 320 (S.D.N.Y. 2005). Such claims are dismissed without prejudice, and to the extent Plaintiff can cognizably plead same, he can do so in state court.
Though "[l]eave to amend should be freely granted", this Court declines to allow Plaintiff leave to amend his claims against Defendants Jacob, McLaughlin, and Rockland County, as an amendment would be futile. See Nognou v. Mayrose, 400 F. App'x 617, 620 (2d Cir. 2010) (summary order) (quoting fin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002)). The conduct of Jacob and McLaughlin do not rise above the level of negligence and medical malpractice; thus, it is not actionable and no amendment would render it otherwise. See id. (affirming denial of leave to amend on ground that "negligence and medical malpractice" not recoverable under Section 1983). Further, as stated, supra, Plaintiff is not permitted to replead his claims against Hickey and Falco as they pertain to the refusal to take a photograph of his injury, as such conduct is not actionable under the Constitution.
In line with the foregoing, Dr. Piacente's Motion is
The County Defendants' Motion, however, is
Should Plaintiff choose to file a Third Amended Complaint against Byron, Hickey, and Falco for deliberate indifference to his conditions of confinement, he must do so on or before August 7, 2018 and in conformity with this Opinion. Failure to do so will result in a dismissal of the claims against Byron, Hickey, and Falco with prejudice.
The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 26 and 34. The Clerk of Court is further respectfully directed to terminate Defendants Bill McLaughlin, Mariamma Jacob, and Rockland County, as all claims against them are dismissed with prejudice. The Clerk of the Court is also directed to mail a copy of this Opinion and Order to Plaintiff at David Christopher Figueroa, Rockland County Correctional Center, 55 New Hempstead Road, New City, New York 10956 and change Plaintiff's address on ECF to reflect same. Plaintiff is reminded that it is his obligation to inform the Court when his address changes.
SO ORDERED.
Steven B. Dorfman, Friedman & Moses, LLP, New York, NY, for Plaintiff.
Allison C. Liebowitz, Simmons Jannace, LLP, Syosset, NY, for Defendant.
Pearl Glassberg entered Staples located at 2892 Ocean Avenue in Brooklyn, New York early in the afternoon on Thursday, September 20, 2007. (Glassberg Interrogs. ¶ 5.) She had been there between ten and twenty times before this visit. (Glassberg Dep. 27:23.) While she was shopping, another customer, assisted by a Staples employee, brought a boxed office chair to a cash register for purchase. (Register Video 13:39:55.04; Barrett Dep. 17:8-13.) With its packaging, the chair was large enough that transporting it required the use of a flatbed handcart called a "U-boat." The U-boat consisted of a rectangular platform on wheels with a ladder-backed handle that extended vertically from one of the platform's short sides. (Register Video 13:40:05.70; Barrett Dep. 14:14-15:4, 24-25; Glassberg Dep. 37:3-4.) The U-boat measured approximately four feet long by two feet wide and the handle projected vertically between three and five feet. (Barrett Dep. 14:14-24, 23:14-15; Glassberg Dep. 36:1-19, 107:21-25.) Both the handle and platform were silver in color, and the platform's wheels elevated it a few inches off of the store's black, carpeted floor. (Barrett Dep. 13:20-17:15; Register Video 13:40:05.70.) Staples allows customers to use U-boats to move large items around the store and parking lot, but employees are trained not to leave them in the checkout aisles because they may present a tripping hazard. (Barrett Dep. 38:3-39:8, 44:15-18.)
The boxed office chair sat atop the U-boat's platform in a white box that rose approximately three feet vertically against the U-boat's handle. (Barrett Dep. 23:9-26:15; Glassberg Dep. 41:12-22.) The box did not occupy the entirety of the U-boat's platform, so that approximately one-and-a-half to two feet of the side of the platform lacking the handle remained exposed. (Glassberg Dep. 36:7-19; Register Video 13:40:04.60.) A portion of the handle remained visible over the box as well. (Glassberg Dep. 41:12-22; Register Video 13:40:04.60.)
To ring up the purchase, the attending employee, accompanied by the customer buying the chair, pulled the U-boat, handle first, into a checkout aisle and positioned it next to a register operated by cashier Alfredia Barrett ("Barrett"). (Barrett Dep. 9:13-14, 19:13-23; Register Video 13:40:06.60.) The handle/chair end of the U-boat faced the far end of the aisle while the unoccupied portion of the platform extended one-and-a-half to two feet toward the aisle's entry point. (Register Video 13:40:06.60) The attending employee positioned the U-boat at an angle so that if a customer were to enter the checkout aisle from the store's interior and approach Barrett's register, she would encounter an ever-diminishing space between the U-boat and the checkout counter: the exposed side of the U-boat's platform as far as a foot or more from the counter, but the side with the handle and box only a few inches from the register. (Register Video 13:30:04.60; Barrett Dep. 18:18-23.)
Seconds after the other customer left, plaintiff approached Barrett's checkout aisle where the U-boat and boxed chair waited in their original position. (Register Video 13:41:57.34-13:42:07.16; Service Video 13:41:57.67-13:42:08.16.) The plaintiff entered the ever-diminishing space between the U-boat and the cash register, and presented her items for purchase. (Id.) Barrett did nothing to influence the plaintiff to come to her register, but she rang up the plaintiff's purchase while waiting for the chair-buying customer to return with the verified price. (Barrett Dep. 29:5-22.) Her transaction completed within less than a minute, the plaintiff turned nearly 180 degrees to her right, towards the very limited space between the handle/ chair end of the U-boat and the cash register, and took a step forward into the unoccupied portion of the U-boat's platform. (Glassberg Dep. 106:14-19.) In so doing, she tripped over the unoccupied portion of the platform and fell to the floor. (Register Video 13:42:59.18; Service Video 13:42:58.90; Barrett Dep. 30:21-31:13; Glassberg Dep. 37:5-38:25, 106:14-107:3.) The plaintiff claims that her fall resulted in a fractured right elbow, pain, and mental anguish. (Compl. ¶ 21.)
The Court should grant summary judgment when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden of showing that there is no triable issue of material fact rests upon the party seeking summary judgment. Gallo v. Prudential Residential Serv., L.P., 22 F.3d 1219, 1223 (2d Cir.1994). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue . . . the burden on the moving party may be discharged by `showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 324-25. The burden then shifts to the nonmoving party to "set forth specific facts demonstrating there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). The nonmovant must identify facts that constitute more than a restatement of elements contained within the pleadings, id. at 248, and "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Jurisdiction over this matter is based on diversity, so state law governs the substantive claim. Erie R. Co. v. Tomkins, 304 U.S. 64 (1938).
Staples argues that it is entitled to summary judgment because it had no duty to warn or protect the plaintiff against the U-boat because, as a matter of law, the U-boat's presence in front of Barrett's cash register was an open and obvious condition that was not inherently dangerous. Although the plaintiff argues that genuine issues of fact exist as to whether the U-boat was open and obvious, her arguments are without merit.
A condition is open and obvious if it is readily observable through the reasonable use of one's own sense. Brown v. Melville Indus. Associates, 34 A.D.3d 611, 611 (2d Dep't 2006). "While the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion. . . ." Tagle, 97 N.Y.2d at 169; Cupo, 1 A.D.3d at 52 ("We do not suggest that a court is precluded from granting summary judgment to a landowner on the ground that the condition complained of by the plaintiff was both open and obvious and, as a matter of law, was not inherently dangerous.") (emphasis in original).
The boxed chair, which was bright white and rose to approximately the same height as the counter a few inches away, made the U-boat even more obvious. The footage additionally demonstrates that the unoccupied portion of the U-boat platform that plaintiff tripped over was unobstructed and in plain view for several yards as the plaintiff approached the register and passed and stood within inches of it. (Register Video 13:42:02.56-13:42:07.16.) The U-boat did not change position between the time the plaintiff approached the register and the time she tripped over it.
New York courts consider such conditions open and obvious as a matter of law and routinely refuse to submit that determination to the discretion of juries. In Gagliardi v. Walmart Stores, Inc., 52 A.D.3d 777 (2d Dep't 2008), the plaintiff was injured when she tripped over a box containing an unassembled chest of drawers that was placed in the defendant store's aisle. The Appellate Division found that the box was open and obvious and dismissed plaintiff's appeal from an order of summary judgment, awarding costs to the defendant. Id. at 777. In Connor v. Taylor Rental Ctr., Inc., 278 A.D.2d 270 (2d Dep't 2000), the plaintiff tripped over the prongs of a forklift, which were lowered to approximately four inches off the ground, in the defendant's parking lot. In dismissing the plaintiff's appeal from summary judgment, again with costs, the court relied on evidence showing that the forklift was in plain view. Id. at 270. In Russell v. Archer Bldg. Ctrs. Inc., 219 A.D.2d 772 (3d Dep't 1995), the plaintiff fell over a display rack in the defendant's store when she stepped backward into it. After the trial court denied the defendant store's motion for summary judgment, the Appellate Division reversed and granted costs to the defendant, relying on a photograph that indicated that the display was readily observable through the reasonable use of one's senses. Id. at 772
Neither was the U-boat inherently dangerous. The U-boat at issue in this case is similar to those commonly used in stores by both customers and employees, and New York courts have found that, as a matter of law, such carts are not inherently dangerous when placed in areas of customer traffic. In Stern v. Costco Wholesale, 63 A.D.3d 1139, 1139 (2d Dep't 2009), the plaintiff tripped and fell over a flatbed cart that "was approximately four feet long and two to three feet wide, had a six-inch-high bed with a handle at one end, and was available for use by both customers and employees." The Appellate Division affirmed summary judgment against the plaintiff, with costs, because the cart in the aisle did not create an inherently dangerous condition. Id. at 1139. That decision also referenced Bernth v. King Kullen Grocery Co., Inc., 36 A.D.3d 844 (2d Dep't 2007), in which the plaintiff fell over a U-boat in the aisle of a grocery store. There, too, the Appellate Division affirmed summary judgment for defendant and awarded costs, because the U-boat in the store aisle was an inherently dangerous condition. Id. at 844.
The plaintiff submits no evidence that the U-boat at issue was used improperly or that it suffered from any defect that made it particularly dangerous among U-boats. Instead, the plaintiff proposes that danger adhered in the U-boat's placement, relying on Barrett's testimony that Staples trains its employees not to allow idle carts to remain in areas of customer traffic for fear of creating a tripping hazard. However, while Staples may recognize some hazard of idle carts in customers' paths, New York courts have determined that U-boats in store aisles are not inherently dangerous. Moreover, a general awareness that a condition may pose a danger under certain circumstances is insufficient by itself to establish that a particular instance of such a condition was inherently dangerous. See Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969 (1994) (citing Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838 (1986) ("[A] `general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall. . . .").
The plaintiff's reliance on Michalski is misplaced, for that case was carefully limited to its own unique circumstances. The Michalski Court did not overturn the longstanding open and obvious doctrine. Rather, it emphasized that the doctrine did not relieve Home Depot of its duty to warn in that particular circumstance because, by shelving items above eye level, Home Depot intentionally arranged the premises in a manner likely to distract Michalski's attention away from patent dangers on the floor, thereby creating a foreseeable risk of harm from an otherwise readily visible condition. No such circumstances were present in this case. Neither the plaintiff's own deposition testimony nor the surveillance footage suggest any facts that would cause the average reasonable customer to be distracted from obvious conditions in the checkout aisle, or that such a customer would be unlikely to anticipate a U-boat style shopping cart in the checkout aisle of a store that is known to sell furniture and other large items. See Anton v. Correctional Medical Services, Inc., 74 A.D.3d 1682, 1682 (2010) (affirming summary judgment for defendant under the open and obvious doctrine where "there [was] nothing in the record to suggest that [plaintiff] would have been prevented from also looking where he was going and seeing what was there to be seen"); Pinero, 294 A.D.2d at 253-54 (declining to follow Michalski's "interesting theory of negligence" where the defendant had no "reason to know or expect that plaintiff might be distracted from observing the presence of the so-called hazardous wagon" that caused her fall).
Plaintiff correctly argues that, while the fact that a condition is open and obvious may relieve a landowner from a duty to warn, a landowner is never relieved of the general duty to maintain reasonably safe premises at all times. See Westbrook v. WR Activities-Cabrera Markets, 5 A.D.3d 69, 72-73 (1st Dept 2004) (citing cases). To establish breach of this duty, the plaintiff must show "that the defendant either created a dangerous condition or had actual or constructive knowledge" of it but failed to alleviate the danger. Segretti v. Shorenstein Co., East, L.P., 256 A.D.2d 234, 235 (1st Dep't 1998). Plaintiff thus attempts to defeat summary judgment by asserting that a factual dispute exists as to whether Staples created the condition that caused the plaintiff's fall. However, for the same reasons that the U-boat was not inherently dangerous, it did not constitute an unsafe condition. See, e.g., Plis v. North Bay Cadillac, 5 A.D.3d 578, 578 (2d Dep't 2004) (holding that the defendant had no duty to warn and did not breach its duty to maintain its property in reasonably safe condition where the plaintiff tripped over a security chain that was open, obvious, and not inherently dangerous). Accordingly, because Staples did not breach its duty to maintain reasonably safe premises, the question of who created the condition is immaterial.
Any objections to this Report & Recommendation ("R & R") must be filed on ECF within fourteen (14) days of the date of this R & R. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 72.
SO ORDERED.
NELSON S. ROMAN, District Judge.
For purposes of this motion, this Court accepts as true the facts as stated in Plaintiff's Second Amended Complaint. Defendant CCS administers medical services at WCJ. Def. CCS Mem. 2-3. Defendant Aramark is employed by Westchester County to provide food services at WCJ. Def. Aramark Mem. 3-4. Plaintiff alleges that on October 28, 2012 at approximately 5 a.m., while he was working in the kitchen at WCJ, an Aramark employee told him to move a cart containing several stainless steel pots of hot grits. Second Am. Compl. 3. While pushing the cart, a wheel of the cart became jammed because of a loose "diamond plated manmade saddle" in the floor and caused the container of hot grits to spill onto Plaintiff's body. Id. Some of the hot grits spilled onto Plaintiff's exposed left forearm, which caused Plaintiff's skin to burn. Id. Plaintiff alleges that after the grits spilled, his burn went untreated for 5 or 6 hours.
According to Plaintiff, he was not seen by medical personnel until 6 hours after the accident, and he was never taken to the hospital. Plaintiff received treatment for his burn at WCJ from CCS employees. Def. CCS Mem. 2. Plaintiff alleges that in the weeks that followed the accident, his bandages were not changed on 6 days: October 30 and 31, and November 1, 15, 16, and 17. He further claims that he was given inadequate medical attention, including being asked to wait while a nurse practitioner ate her lunch before seeing Plaintiff and that medical personnel failed to wear gloves when treating him.
Plaintiff filed a grievance against CCS with the jail on October 31, 2012 in which he claimed that 8 hours passed between his accident and the administration of treatment. CCS Mot. to Dismiss Ex. D. The grievance includes a written statement signed by Plaintiff at 8:25 a.m. on October 28, 2012—less than 4 hours after the accident—in which he states that he had already seen a nurse who "didn't do anything" but told him to "put ice on [the burn]." Id at 9. The Grievance report provides that Plaintiff was taken to the nurse again at 8:15 a.m., where the nurse practitioner applied silvedene cream (an antimicrobial cream), dressed Plaintiff's wound, and ordered daily follow-up consultations until the burned healed. Also included in the grievance is an officer's report, which recounts Plaintiff as saying that the "injury occurred approx. 0500" and that Plaintiff was "advised to apply ice to affected area" after being escorted to the nurse by another officer.
On a motion to dismiss for "failure to state a claim upon which relief can be granted," Fed.R.Civ.P. 12(b) (6), dismissal is proper unless the complaint "contain[s] 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] `not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
"Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal." Thomas v. Westchester, No. 12-CV-6718 (CS), 2013 WL 3357171 (S.D.N.Y. July 3, 2013). The court should read pro se complaints "`to raise the strongest arguments that they suggest,'" Kevilly v. New York, 410 F. App'x 371, 374 (2d Cir.2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006)). See also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) ("even after Twombly, though, we remain obligated to construe a pro se complaint liberally."). "However, even pro se plaintiff's asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level." Jackson v. N. Y. S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y.2010) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). Dismissal is justified, therefore, where "the complaint lacks an allegation regarding an element necessary to obtain relief," and therefore, the "duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to rewrite it." Geldzahler v. New York Medical College, 663 F.Supp.2d 379, 387 (S.D.N.Y.2009) (internal citations and alterations omitted).
Here, Defendant CCS included Plaintiff's grievance report ("Grievance") as an exhibit to its motion to dismiss. The Grievance was submitted to the warden of the WCJ as part of internal complaint procedure as required under the Prison Litigation Reform Act ("PLRA") before a plaintiff may bring certain actions to court.
The Cruel and Unusual Punishments clause of the Eighth Amendment forms the basis of a convicted prisoner's claim that he or she is not being provided adequate medical care.
The first requirement for a showing of an Eighth Amendment violation is that there was a deprivation of care that was sufficiently serious, which is determined by an objective test with two prongs. The first prong is whether the prisoner was actually denied adequate medical care. Salahuddin, 467 F.3d at 279. "[T]he prison official's duty is only to provide reasonable care," id, and thus, "prison officials who act reasonably [when responding to an inmate] cannot be found liable under the Cruel and Unusual Punishments Clause," Farmer, 511 U.S. at 845. Conversely, liability may result where prison officials fail "to take reasonable measures" in response to a medical need. Id. at 847.
Plaintiff alleges that he was denied treatment for five or six hours after the initial incident
Plaintiff claims that the prison officials were notified immediately after the accident of Plaintiff's injury, but did not adequately respond for several hours. However, by Plaintiff's own admission, he was seen by a nurse shortly after the accident and when it became clear a few hours later that the injury required further treatment, Plaintiff's burn was treated further. Even allowing for a few hours of lapse, "[c]ourts in this Circuit have repeatedly held that pain experienced for even longer than two to three hours does not rise to the level of an Eighth Amendment violation." Mitchell v. New York City Dept. of Corrections, No. 10 CV 0292(RJH), 2011 WL 503087, at *4 (S.D.N.Y. Feb.14, 2011) (listing cases where up to 8 to 9 hours of lapse between injury and treatment was not considered serious); Heredia v. Doe, 473 F.Supp.2d 462, 464 (S.D.N.Y.2007) (adopting recommendation to dismiss claim where jail staff did not send plaintiff to hospital after slipping and falling on his back until the day after the fall); Rodriguez v. Mercado, No. 00-CV-8588, 2002 WL 1997885, at *9 (S.D.N.Y. Aug.28, 2002) (dismissing claim where plaintiff was seen within eight or nine hours of the incident by a nurse who prescribed him Tylenol).
Further, "the failure to provide treatment for an otherwise insignificant wound may violate the Eighth Amendment if the wound develops signs of infection, creating a substantial risk of injury in the absence of appropriate medical treatment." Smith, 316 F.3d at 186; accord Odom v. Kerns, No. 99-CV-10668, 2008 WL 2463890, at *7 (S.D.N.Y. June 18, 2008) (cuts and open wounds that eventually became infected could be serious medical needs). If Plaintiff's bandages were not changed on six different occasions in the weeks following his burn as alleged, such failure might result in infection. In fact, in his Grievance, Plaintiff states that his burn was "infested with bacteria from puss discharge not being cleaned with disinfectans [sic] and wrapping has a foul odor." Grievance at 4. Therefore, reading the complaint in the light most favorable to the pro se Plaintiff, there is a plausible allegation of a serious injury in Plaintiff's Complaint.
The second requirement for an Eighth Amendment violation is a subjective test that asks whether the accused Eighth Amendment violator acted with a "sufficiently culpable state of mind." Salahuddin, 467 F.3d at 280. In Eighth Amendment prison-conditions cases, a sufficiently culpable state of mind is "deliberate indifference to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks and citation omitted). A prison official may only be found liable if "the official knows of and disregards an excessive risk to inmate health or safety." Id at 837. "This `deliberate indifference' element is equivalent to the familiar standard of `recklessness' as used in criminal law." Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.2002) (quoting Farmer, 511 U.S. at 839-40). In order to meet this standard, the "charged official [must] act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Farmer, 511 U.S. at 836-37. Mere negligence on the part of a prison official is not sufficient to constitute deliberate indifference. Id at 835-37.
Even if Plaintiff's burn is a serious medical condition, Plaintiff must also show that "defendants acted or failed to act while actually aware of a substantial risk that serious inmate harm would result." Farid v. Ellen, 593 F.3d 233, 248 (2d Cir.2010) (alterations and internal quotation marks omitted). In examining the facts, even in the light most favorable to the Plaintiff, there is no indication that defendant CCS acted with the requisite state of mind. None of CCS's activities could be deemed to reach the level of criminal recklessness. First, the Grievance makes clear that the Plaintiff saw a nurse soon after his accident, and subsequently followed up with a nurse a few hours later. "The bare fact of delay suggests at most negligence, and the Supreme Court in Estelle cautioned that mere negligence is insufficient to state a claim under § 1983." Linden v. Westchester County, No. 93 Civ. 8373(MBM), 1995 WL 686742, at *3 (S.D.N.Y.1995). Even if Plaintiff's wounds were not changed on six occasions over the course of three weeks as alleged, there is nothing more in Plaintiff's complaint that makes a plausible claim that defendants knew and consciously disregarded an excessive risk to Plaintiff's health and safety. His burn was bandaged within hours of the accident and treated thereafter.
Plaintiff also argues that he should have been taken to the hospital to determine the severity of his burns. Failure to seek outside medical advice alone is not sufficient to allege deliberate indifference because "mere disagreement over the proper treatment does not create a constitutional claim." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998). "The prisoner's right is to medical carenot the type or scope of medical care which he personally desires." Gonzales v. Wright, 665 F.Supp.2d 334, 337 (S.D.N.Y.2009) (quoting U.S. ex rel. Hyde v. McGinnis, 429 F.2d 864, 867 (2d Cir.1970)). CCS employees did not believe that Plaintiff's injury warranted a hospital visit, and even if Plaintiff disagreed, such disaccord is not actionable. Thus, Plaintiff has not plausibly alleged that CCS had the requisite state of mind in order to state a claim for deliberate indifference.
For the reasons stated above, Defendant CCS's motion to dismiss is granted with respect to Plaintiff's Eighth Amendment deliberate indifference claim.
Plaintiff also brings this action against Aramark, a food service provider for the WCJ, under 42 U.S.C. § 1983 for "failure to train, no proper protective equipment, old, rundown and not maintained equipment." Second Am. Compl. 5. Plaintiff was working in the kitchen under the instruction of Aramark employees at the time the accident occurred. Plaintiff's claims are that Aramark, through its employees, did not fix a dangerous condition that caused an accident, and that Plaintiff was not properly trained to handle the cart he was asked to push. Reading the complaint liberally, as afforded a pro se plaintiff, it seems that Plaintiff's claim is that Aramark failed to protect Plaintiff from a risk of harm in violation of his Eighth Amendment right to be free from cruel and unusual punishment. With a failure to protect claim, plaintiff must show that he is "incarcerated under conditions posing a substantial risk of harm," Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), and that prison officials "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety." Id. at 837. "Whether . . . prison official [s] had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a fact finder may conclude that . . . prison official[s] knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842. Plaintiff alleges that Aramark, though its employees, was aware of the loose diamond plate in the floor that caused the accident in which he was injured and that Aramark did nothing to remedy the situation. However, the court need not reach the issue of whether Plaintiff properly alleges notice and failure to protect because Aramark is not subject to liability under 42 U.S.C. § 1983 due to the fact that it is not a state actor.
42 U.S.C. § 1983. A private defendant may be considered a state actor through the application of one of three tests: the close nexus test, the state compulsion test, and the public function test.
To find state action under the close nexus test, "there [must be] a sufficiently close nexus between the State and the challenged action of the [] entity so that the action of the latter may be fairly treated as that of the State itself." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (internal citation omitted). Being regulated by the state alone does not elevate the status of a non-state actor to that of a state actor. Id. This test ensures that constitutional standards apply only to action for which the state is "responsible," so that the entity may fairly be treated as the state. Id.
The state compulsion test requires a showing that the state actor has "exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982).
To show state action under the public function test, the action must be "so clearly governmental in nature as to amount to a public function." Jordan v. Federal Bureau of Prisons, No. 09 Civ. 8561(ALC), 2013 WL 1143617, at *12 (S.D.N.Y. Mar.19, 2013). "The public function test as applied is quite stringent and under the doctrine an extraordinarily low number of functions have been held to be public." Doe v. Harrison, 254 F.Supp.2d 338, 343 (S.D.N.Y.2003) (quoting Ruhlmann v. Ulster County Dept. of Social Services, 234 F.Supp.2d 140, 166 (N.D.N.Y.2002)) (internal quotation marks omitted). "Acts of prison employees will [] almost certainly be considered acts of the State whatever the terms of their employment." Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir.2004). However, the Supreme Court held that the negligent acts of a private physician working under contract to provide medical services to prison inmates was considered state action. West v. Atkins, 487 U.S. 42, 54-57, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Further, "[t]he mere fact that a private actor is paid by state funds, or is hired by a state actor, is insufficient to establish state action." Emanuel v. Griffin, No. 13 Civ. 1806(JMF), 2013 WL 5477505, at *5 (S.D.N.Y. Oct.2, 2013).
There is nothing in the complaint that suggests that Aramark should be treated as a state actor. Further, other than conclusory statements that Aramark was apprised of the condition of the floor, Plaintiff makes no allegations that there was systematic failure on Aramark's part to fix potential hazards in the kitchen area that could harm prisoners in violation of the Eighth Amendment. There are no facts to make a plausible claim that Aramark's failure to prevent this accident was due, even in part, to the furtherance of a policy or custom.
In construing the complaint liberally, Plaintiff's complaint could be read as asserting claims under state law for negligence and/or medical malpractice. Pursuant to 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims where it has dismissed all federal claims over which it had original jurisdiction. Having dismissed all of Plaintiff's federal claims under Rule 12(b)(6), it would be inappropriate to adjudicate his state law claims, and thus the Court declines to exercise supplemental jurisdiction over any purported state law claims.
For the foregoing reasons, Defendant Aramark's Motion to Dismiss and Defendants CCS's Motions to Dismiss are GRANTED. The Clerk is respectfully directed to terminate the pending Motions, (Doc. 50 & Doc. 44), and terminate CCS and Aramark from the case.
SO ORDERED.
Angel Maldonado, Beacon, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General of the State of New York, Litigation Bureau, Colleen D. Galligan, Esq., Assistant Attorney General, of counsel, Albany, NY, for the Defendants.
LAWRENCE E. KAHN, District Judge.
Within fourteen days after a party has been served with a copy of a magistrate judge's reportrecommendation, the party "may serve and file specific written objections to the proposed findings and recommendations." FED. R. CIV. P. 72(b); L.R. 72.1(c). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court must review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301, 306-07 & n. 2 (N.D.N.Y.2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument."). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b).
No objections were filed in the allotted time period. See Docket. Accordingly, the Court has reviewed the Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
CHRISTIAN F. HUMMEL, United States Magistrate Judge.
Plaintiff pro se Angel Maldonado ("Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, Dr. Wells and Dr. Ramineni, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. No. 48. Plaintiff opposes this motion. Dkt. No. 61. Defendants filed a reply. Dkt. No. 62. For the following reasons, it is recommended that defendants' motion be granted.
The facts are reviewed in the light most favorable to plaintiff as the nonmoving party. See subsection ll(A), infra. At all relevant times, plaintiff was incarcerated at Mid-State Correctional Facility ("Mid-State"). Plaintiff claims that Dr. Wells and Dr. Ramineni violated his Eighth Amendment right to adequate medical care by failing to treat his possible MRSA infection and not providing him with adequate pain medication. Dkt. No. 1 at 11; Dkt. No. 48-2 at 58.
On or about March 9, 2012, Dr. Wells first saw plaintiff who had complaints of abdominal pain and a history of abdominal stab wound. Dkt. No. 49 at ¶ 6. Dr. Wells determined that plaintiff had a ventral hernia that needed surgical repair. Id. Dr. Wells performed ventral hernia repair on April 11, 2012 at Upstate University Hospital ("Upstate"). Id. at ¶ 7. Upon discharge from Upstate, plaintiff was admitted to the infirmary at Mid-State, and non-defendant physician Dr. Vadlamundi prescribed plaintiff Tylenol # 3 for pain management, as well as an abdominal binder. Dkt. No. 50 at ¶¶ 10-11.
Upon discharge from the infirmary on April 12, 2012, plaintiff was prescribed ibuprofen for pain for three days and was scheduled to follow up with Dr. Ramineni on April 19, 2012. Dkt. No. 50 at ¶ 18. On April 13, nursing staff at Mid-State changed plaintiff's dressing and noted that plaintiff's staples were dry and intact. Id. at ¶ 20. On April 14, plaintiff was given a body check due to a fight with another inmate. Id. at ¶ 21. At that time, it was noted that plaintiff had a small amount of bloody drainage at his incision site, and he was admitted to the infirmary. Id. at ¶ 21. Non-defendant physician Dr. Vadlumondi ordered that a culture of plaintiff's wound be taken, and that plaintiff be placed on Keflex prophylactically to treat a possible infection. Id. at ¶ 22.
On April 16, 2012, plaintiff had no drainage, denied pain, and requested to be discharged from the infirmary. Dkt No. 50 at ¶ 23. Dr. Ramineni saw plaintiff that day and noted no evidence of discharge or infection from the incision site, but ordered that plaintiff continue on Keflex prophylactically and be discharged from the infirmary. Id. at ¶ 23. Plaintiff was seen at emergency sick call the next day, complaining of drainage from his abdominal incision, and drainage of yellow serous fluid just above his navel was noted.
On April 19, 2012, a culture taken from plaintiff's incision tested positive for Methicilin Resistant Staph Aureus ("MRSA")
Dr. Ramineni saw plaintiff on April 24, 2012, and noted that plaintiff's wound was healing and there was no evidence of infection. Dkt. No. 50 at ¶ 29. At that time, Dr. Ramineni removed plaintiff's staples, cleaned his wound, and applied Betadine and a large band aid. Id. Plaintiff was seen later that morning by nursing staff with a small amount of reddish, tan drainage on the suture site where staples were removed. Id. at ¶ 30. Plaintiff was advised to return to the infirmary if his symptoms worsened, he had a fever, or the wound drainage increased or changed. Id Plaintiff was also given ibuprofen to be taken as needed. Id.
Upon return to Mid-State on April 27, 2012, plaintiff was admitted to the infirmary. Dkt. No. 50 at ¶ 37. Plaintiff was placed on contact precautions due to his history of MRSA, which included a positive culture on April 19, 2012, but negative cultures during his admission to Upstate from April 24, 2012 through April 27, 2012. Id. Upon admission to the infirmary on April 27, Dr. Ramineni ordered that plaintiff be given Tylenol # 3 as needed for three days. Dkt. No. 50 at ¶ 38. During plaintiff's stay in the infirmary from April 27, through May 2, plaintiff's dressings were changed daily. Id. at ¶ 39. Plaintiff's wound healed, and he was discharged to general population by non-defendant Mid-State physician, Dr. Rabinowitz, on May 2. Id.
Plaintiff was next seen at sick call on May 8, 2012. Dkt. No. 50 at ¶ 40. At that time, his wound was clean and healing well. Id. Although he had a small amount of serous drainage, according to Dr. Ramineni, it was not medically serious and was expected to resolve on its own. Id. On May 11, 2012, Mid-State received a call from Walsh Regional Medical Unit ("Walsh"), requesting to see plaintiff regarding his hernia repair. Id. at ¶ 42. Plaintiff was sent to Walsh that day. Id.
At Walsh, Dr. Wells saw plaintiff for a follow-up visit, at which time, plaintiff showed no signs of infection and his wound was closing with no further seroma drainage. Dkt. No. 49 at ¶ 15. According to Dr. Wells, "[p]laintiff indicated he still had discomfort from the hernia repair and was advised to use the support garment." Id. Dr. Wells indicated that plaintiff should be rechecked in one month. Id.
On June 21, 2012, plaintiff was seen at sick call concerned about his blood pressure and complaining of dizziness. Dkt. No. 50 at ¶ 47. According to Dr. Ramineni, assessment revealed that plaintiff's incision line had healed and there was no drainage. Id. Plaintiff's medical records indicate that after June 21, plaintiff made no further complaints concerning his hernia repair, no further treatment regarding his hernia repair was indicated, and no further treatment regarding his hernia repair was provided. Id. at ¶ 48.
Plaintiff contends that defendants Dr. Ramineni and Dr. Wells were deliberately indifferent to his medical needs in violation of the Eighth Amendment through their failure to treat his possible MRSA infection and in denying him adequate pain relief medication.
In order for a motion for summary judgment to be granted, the movant must show that (1) there is no genuine issue of any material fact, and (2) the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248.
Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2 nd Cir.2006). As the Second Circuit has stated,
Defendants Dr. Wells and Dr. Ramineni move for summary judgment, contending that plaintiff cannot establish that (1) he suffered from a serious medical need, or (2) defendants acted with deliberate indifference to that medical need. Dkt. No. 48-3 at 1.
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. The prohibition against cruel and unusual punishment includes the right to be free from conditions of confinement that impose an excessive risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). A viable Eighth Amendment claim is twofold; the plaintiff must demonstrate both objective and subjective components. Farmer, 511 U.S. at 834. The objective question asks whether the deprivation of which the inmate complains was sufficiently serious. Id. This component "requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney, 509 U.S. 25, 36 (1993). Thus, the prisoner must show that "the risk of which he complains is not one that today's society chooses to tolerate." Id. at 36. The subjective component requires the inmate to show that the defendant demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Farmer, 511 U.S. at 834. The Supreme Court of the United States has held that, "[w]hether one characterizes the treatment received by [the prisoner] as inhumane conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the `deliberate indifference' standard articulated in Estelle [v.Gamble]." Wilson v. Seiter, 501 U.S. 294, 303 (1991). Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
The Eighth Amendment extends to the provision of medical care. Hathaway, 37 F.3d at 66. "`Because society does not expect that prisoners will have unqualified access to healthcare,' a prisoner must first make [a] threshold showing of serious illness or injury" to state a cognizable claim. Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.2003) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). What constitutes a serious medical condition is determined by factors such as "(1) whether a reasonable doctor or patient would perceive the medical need in question as `important and worthy of comment or treatment,' (2) whether the medical condition significantly affects daily activities, and (3) `the existence of chronic and substantial pain.'" Brock v. Wright, 315 F.3d 158, 162 (2d Cir.2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)). The severity of the denial of care should also be judged within the context of the surrounding facts and circumstances of the case. Smith, 316 F.3d at 185.
Whitcomb v. Todd, No. 04-CV-223 (LEK/DRH), 2008 WL 4104455, at *10 (N.D.N.Y. Sept. 3, 2008). Thus, the Court in Whitcomb concluded that the plaintiff's condition constituted a serious medical condition. Id.
Here, the April 19, 2012 culture tested positive for MRSA. Dkt. No. 50 at ¶ 25. However, the following day, Dr. Ramineni saw plaintiff and noted that he had no signs of infection, and indicated that the he should follow up within one week. Id. at ¶ 26. Dr. Ramineni saw plaintiff on April 24, removed plaintiff's staples, cleaned plaintiff's wound, and applied Betadine and a large band aid. Id. at ¶ 29. Plaintiff was seen later that morning by nursing staff, and he was given ibuprofen to be taken as needed for pain management. Id. at ¶ 30. Later that afternoon, plaintiff was seen at emergency sick call, and he was sent to St. Luke's via ambulance. Id. at ¶ 31. When plaintiff returned to Mid-State later that day, he was sent to the emergency room at Upstate to be seen by Dr. Wells. Id. at ¶ 32. General surgery was consulted, plaintiff underwent a CT scan of the abdomen, was diagnosed with incisional hernia wound site dehiscence and seroma, and was prophylactically placed on intravenous antibiotics. Dkt. No. 49 at ¶¶ 9, 12. Plaintiff was discharged from Upstate on April 27, 2012 with Bactrim to be given twice daily, until his scheduled follow up with Dr. Wells. Id. at ¶ 13.
Here, defendants closely monitored plaintiff, routinely cleaned the infection site and dressings, kept close watch on plaintiff with a series of follow-up appointments, and prescribed plaintiff medicine-both prophylactically and for pain management. Both the level of care and precautionary measures taken demonstrate that plaintiff's possible MRSA infection is a condition which a reasonable patient and doctor would consider "important and worthy of comment or treatment," as considered by the first factor in determining the seriousness of the inmate's medical condition. Whitcomb, 2008 WL 4104455 at *10 (citing Brock, 315 F.3d at 162-63).
Additionally, defendants Dr. Wells and Dr. Ramineni placed plaintiff on contact precautions due to his history of MRSA, which included a positive culture on April 19, 2012, but negative cultures during his admission to Upstate from April 24, through April 27. Dkt. No. 50 at ¶ 37. As in Whitcomb, the precautions taken and frequent medical care and follow-up demonstrate that this medical condition significantly affects plaintiff's daily activities. Whitcomb, 2008 WL 4104455 at *10.
Therefore, the above facts taken together, indicate the possibility of MRSA in plaintiff's incisional wound, and constitute a serious medical condition for a medical indifference claim.
To satisfy the subjective component for claims of inadequate medical care, the plaintiff must prove that the defendants acted with deliberate indifference. Farmer, 511 U.S. at 834. As discussed, deliberate indifference requires the plaintiff "to prove that the prison official knew of and disregarded the prisoner's serious medical needs." Chance, 143 F.3d at 703. Because the prison official must have had knowledge of the risk, the prison official must have been "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05. It has been established that "[d]eliberate indifference is `a mental state equivalent to subjective recklessness,' and requires that the defendant `act or fail to act while actually aware of a substantial risk that serious inmate harm will result," and, therefore, "[m]ere disagreement over proper treatment does not create a constitutional claim" as long as the treatment was adequate. Crum, 2007 WL 3104750 at*4 (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006)). Thus, "disagreements over medications, diagnostic techniques (e.g. the need for X-rays), forms of treatment, or the need for specialists . . . are not adequate grounds for a section 1983 claim." Sonds v. St. Barnabas Hosp. Corr. Health. Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001).
Plaintiff contends that (1) defendant doctors knew of the presence of his infection and (2) failed to treat it adequately. The Court in Crum, found that "[t]here is no evidence, beyond [the plaintiff's] conclusory allegations, that [his] medical needs were ignored," where the plaintiff's "medical records indicate that he was evaluated by various medical personnel on numerous occasions during his time at [the correctional facility]; that he was prescribed medication for his pain; that he was given x-rays and MRIs; and that defendant [doctor] periodically reviewed his medical records." Crum, 2007 WL 3104750 at *4. Similarly, the Court in Atkinson v. Fisher, held that, where "[p]laintiff was evaluated by medical personnel frequently, prescribed pain medication, and given Xrays" and defendant doctors "periodically examined him and reviewed his medical records . . . [p]laintiff has not raised a genuine issue of material fact that [d]efendants were deliberately indifferent to his serious medical need." No. 07-CV-368 (GLS/GHL), 2009 WL 3165544, at *13 (N.D.N.Y. Sept. 25, 2009).
It is clear that defendants took measures to treat and avoid the harm of the possible infection, including prescribing pain medication, including antibacterial medication, cleaning the wound, keeping plaintiff in the infirmary for days at a time, instructing him on how to treat his wound, scheduling follow-up visits, and re-testing the incision site. Dkt. No. 50 at ¶¶ 29, 34, 36, 37, 39. These measures sufficiently prove that defendants did not "disregard[ ] the prisoner's serious medical needs," nor did they deny or delay plaintiff medical care. Chance, 143 F.3d at 703; Estelle, 429 U.S. at 104. Therefore, plaintiff had failed to demonstrate that defendants were deliberately indifference to his serious medical condition.
Insofar as plaintiff argues that the medications defendants prescribed to him for pain management were inadequate, defendants' choice to treat plaintiff's pain with Tylenol # 3 and Ibuprofen, is entirely within their discretion. Sonds, 151 F.Supp at 312 (S.D .N.Y.2001). This is merely a "disagreement over medications," and, therefore, "does not create a constitutional claim." Id.; Chance, 143 F.3d at 703 (2d Cir.1998).
The above facts, taken together, demonstrate that defendants had knowledge of plaintiff's serious medical condition and took sufficient measures to avoid the risk of harm posed by the presence of MRSA in his incisional wound. Therefore, plaintiff fails to demonstrate that defendants were deliberately indifferent to his serious medical needs.
For the reasons stated above, it is hereby
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court "within (14) days after being served with a copy of the . . . recommendation." N.Y.N.D.L.R. 72.1(c) (citing 28 U.S.C. § 636(b)(1)(B)(C)).
Dennis Nelson, Romulus, NY, pro se.
Hon. GLENN T. SUDDABY, District Judge.
Because this Decision and Order is intended primarily for the review of the parties, the Court will not recite in detail Plaintiff's claims and factual allegations, or the procedural history of the action, except where necessary below in Part III of this Decision and Order.
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y.L.R. 72.1(c).
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2),(3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition.
Magistrate Judge Homer correctly recited the legal standards governing motions to dismiss for failure to state a claim in his Report-Recommendation and Order. (Dkt. No. 21, at Part II.A.) As a result, these standards are incorporated by reference in this Decision and Order, which (again) is intended primarily for the review of the parties.
The Court would add only a few words regarding what documents may be considered when construing the pleading sufficiency of a complaint (given that Plaintiff's Complaint in this action attaches two grievance documents): (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.
In his Report-Recommendation and Order, Magistrate Judge Homer correctly recited the legal standards governing dismissals under the "three strikes" provision of 28 U.S.C. § 1915(g). (Dkt. No. 21, at Part II.B). As a result, these standards are incorporated by reference in this Decision and Order, which (again) is intended primarily for the review of the parties.
On December 12, 2011, Magistrate Judge Homer issued a Report-Recommendation recommending that Defendant's first motion to dismiss (for failure to state a claim) be denied but her second motion to dismiss (based on the "three strikes" provision of 28 U.S.C. § 1915[g] ) be granted. (Dkt. No. 21, at Part II.) More specifically, Magistrate Judge Homer recommended that, because Plaintiff had acquired at least three "strikes" before he filed this action, and because he has not alleged facts plausibly suggesting that he was under imminent danger of serious physical injury when he filed this action, the in forma pauperis status (which he was granted improvidently on November 24, 2010) be vacated, Plaintiff's Complaint be dismissed as to all claims, unless he pays the Court's filing fee of $350.00 within thirty (30) days of this Decision and Order. (Id.) In addition, Magistrate Judge Homer recommended that Plaintiff "be
On December 22, 2011, Plaintiff filed his timely Objection to the Report-Recommendation. (Dkt. No. 22.) In his Objection, Plaintiff argues that "I am in serious physical injury [because] I have an infection called Merca[:] the deadly infection that can kill you if not treated right." (Id. at ¶ 4.) In addition, he provides what he calls a "graphic of [his] left leg," consisting of a kidney-shaped balloon contains the words "Merca" and "Whole Left Leg," surrounded by scribbles labeled as an "infection." (Id. at 2.) Finally, Plaintiff states that "I have witnesses that can show you and tell you what my left looks lik[e]." (Id.)
After carefully reviewing all of the papers in this action, including the "imminent danger" portion of Magistrate Judge Homer's Report-Recommendation, the Court concludes that the "imminent danger" portion of the Report-Recommendation is thorough, well-reasoned and correct. (Dkt. No. 21, at 8-11.) Magistrate Judge Homer employed the proper legal standards, accurately recited the facts, and reasonably applied the law to those facts. (Id. ) As a result, the Court adopts the "imminent danger" portion of the Report-Recommendation on de novo review, for the reasons stated therein. (Id.)
In addition, the Court adopts the other portions of the Report-Recommendation under the less-rigorous clearerror standard of review, given that Plaintiff has not, in his Objection, specifically challenged those other portions (including Magistrate Judge Homer's construction of Plaintiff's claims, allegations and arguments, and Magistrate Judge Homer's finding that Plaintiff had acquired at least three "strikes" before filing this action). (Id. at 1-8.)
The Court would add only four points. First, as Magistrate Judge Homer correctly stated in his Report-Recommendation, in determining a plaintiff's entitlement to invoke the "imminent danger" exception, the Second Circuit has ruled that imminent danger claims must be evaluated at the time the complaint is filed, rather than at the time of the events alleged.
Third, the bar order recommended by Magistrate Judge Homer (assuming it is interpreted to apply only to future in forma pauperis civil actions by Plaintiff's as a prisoner) is one that is expressly authorized, and indeed, required by statute. See 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil action [in forma pauperis ] . . . if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."). As a result, the Court need not issue an Order to Show Cause before reaffirming the existence of that bar order in this Decision and Order.
Fourth and finally, Plaintiff is advised that, if he does pay the Court's filing fee within thirty days (as required by this Decision and Order), then he will thereafter be sua sponte directed to show cause as to why his Complaint should not be dismissed without prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for alleging facts that can only be liberally construed as plausibly suggesting that he did not appeal the denial of his grievance all the way to up the New York State Department of Corrections and Community Services' Central Office Review Committee, and receive a response from that Committee (or acquire cause to be excused from having to do so), before filing this action on August 7, 2010. (See Dkt. No. 1, at 2, 9 [alleging that the furthest he pursued his grievance was through an "appeal to superintendent," and indicating that his grievance was denied by the Inmate Grievance Resolution Committee on July 20, 2010].)
Dennis Nelson, Elmira, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Charles J. Quackenbush, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendant.
DAVID R. HOMER, United States Magistrate Judge.
The facts are related herein in the light most favorable to Nelson as the non-moving party. See subsection II(A) infra.
Nelson contends that he is in danger due to his "serious physical injury [, specifically] . . . a[ ] non-healing leg ulcer d[ue] to a blood clot and deep vein thrombosis." Compl. ¶ 6. Nelson alleges that defendant Warren has harassed him, causing him pain and suffering. Id. ¶ 7. In an attachment to his complaint, Nelson further elaborates on his claims stating that (1) Warren is putting water in with the medication when they are in the cups prior to delivering them to the inmates; (2) Nelson took exception to Warren's decision about whether he should put pressure on his foot and leg; (3) Warren perspires excessively and sometimes wipes her nose with the back of her hand; (4) Warren takes out her problems at home on the inmates at work; and (5) Warren is generally disliked by Nelson because she is a "screw up." Dkt. No. 1 at 7-8. Nelson's motion to proceed in forma pauperis ("IFP") has been granted. Dkt. No. 2.
Warren first filed a motion to dismiss, claiming that Nelson's assertions were meritless. Dkt. No. 16. Nelson opposed the motion in a one-page document which alleged that due to Warren's perspiration Nelson's leg has been infected and that due to Warren's subpar care, the infection is gangrenous. Dkt. No. 17. Defendant then filed a motion to conditionally dismiss the complaint by revoking Nelson's IFP status. Dkt. No. 18. Nelson opposed that motion contending that he was in imminent danger of physical harm due to Warren's sweat continually dripping into his chronic leg ulcer and medication cup. Dkt. No. 20 at 2.
It appears that Nelson has filed fifty-three other actions in the federal courts of New York since the commencement of his incarceration. See PACER Case Locator (visited Dec. 7, 2011), < http://pcl.uscourts.gov/vie w/? rid=OFvoXU6Nqw5Po1o7I5EmMY4JDiCEV9vT9qOYF1P8=1 = More than one of those actions have concerned the ongoing issues with Nelson's ulcerated leg. Prior to filing the present lawsuit, decisions in this district outlined Nelson's litigation history and revoked his IFP status. See Nelson v. Spitzer, No. 07-CV-1241, 2008 WL 268215, at *1 (N.D.N.Y. Jan. 29, 2008) ("A review of [Nelson's] prior proceedings reveals that [Nelson] does have three `strikes' and, thus, should not be permitted to proceed with his action [IFP].") (citations omitted) (Dkt. No. 18-1 at 34-38); Nelson v. NeSmith, No. 06-CV-117, 2008 WL 3836387, at *5 (N.D.N.Y. Aug. 13, 2008) ("A detailed analysis of [Nelson's] prior litigation history, however, is unnecessary given prior findings by both the Western District of New York and this court, to the effect that while confined as a New York State prison inmate [Nelson] has filed at least three prior civil rights complaints dismissed for lack of merit.") (citations omitted) (Dkt. No. 18-1 at 22-27); Nelson v. Lee, No. 05-CV-1096, 2007 WL 4333776, at *5 (N.D.N.Y. Dec. 5, 2007) (concluding that, based upon a prior decision filed in the Western District of New York in 2004, Nelson has already acquired three strikes and that defendants need not independently establish that strikes previously occurred) (Dkt. No. 18-1 at 15-21). Accordingly, the three strikes bar may be applicable.
Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). However, this "tenet . . . is inapplicable to legal conclusions[; thus, t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (holding that "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.")).
Accordingly, to defeat a motion to dismiss, a claim must include "facial plausibility . . . that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556 (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir.2009) (holding that, "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible. . . .") (citations omitted). Determining whether plausibility exists is "a content specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950-51.
When, as here, a party seeks dismissal against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that `when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally.' " (citations omitted)).
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. This prohibition extends to the provision of medical care. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). The test for a § 1983 claim is twofold. First, the prisoner must show that the condition to which he was exposed was sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Second, the prisoner must show that the prison official demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Id. "[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Id. at 844.
Deliberate indifference requires the prisoner "to prove that the prison official knew of and disregarded the prisoner's serious medical needs." Chance, 143 F.3d at 702. Thus, prison officials must be "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). "Mere disagreement over proper treatment does not create a constitutional claim" as long as the treatment was adequate. Chance, 143 F.3d at 703. Thus, "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists . . . are not adequate grounds for a section 1983 claim." Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001).
Defendant contends first that Nelson has failed to demonstrate an objectively serious medical need with his chronically ulcerated left leg. However, viewing the allegations in the complaint in the light most favorable to Nelson, Nelson's leg required constant care. Having a gaping and oozing wound that, for whatever reason, would not heal constitutes a condition which a reasonable physician and person would find required treatment. See Smith v. Carpenter, 316 F.3d 178, 186-87 (2d Cir.2003) ("the failure to provide treatment for an otherwise insignificant wound may violate the Eighth Amendment if the wound develops signs of infection, creating a substantial risk of injury in the absence of appropriate medical treatment."); Odom v. Kerns, no. 99-CV-10668 (KMK)(MHD), 2008 WL 2463890, at *7-8 (S.D.N.Y. June 18, 2008) ("holding that cuts and open wounds could constitute serious medical need). Additionally, the need for repeated dressing changes may significantly affect daily life activities. Accordingly, viewing the facts in the light most favorable to Nelson, he has demonstrated a serious medical need.
Viewing the evidence in the light most favorable to Nelson, Nelson has sufficiently alleged an Eighth Amendment violation. Assuming the existence of the open leg wound, perspiration to the extent alleged by Nelson into the wound on a regular basis and the manner in which Warren allegedly ignored and denied treatment for Nelson's wound on a regular basis suffice to allege a claim. As in past cases, Nelson's claim concerning his leg cannot be resolved on this record without the fact-finding available on a more complete record afforded by a motion for summary judgment. Although it seems unlikely that, for example, Nelson will be able to proffer sufficient evidence that any action or inaction by Warren caused any exacerbation of Nelson's leg wound, Nelson is entitled to seek to obtain such proof given the allegations of his complaint.
Defendant seeks dismissal of the complaint under 28 U.S.C. § 1915(g), which bars prisoners from proceeding IFP after three or more previous claims have been dismissed as frivolous, malicious, or for failing to state a claim. See28 U.S.C. § 1915(g) (2006).
This "three-strikes" provision contains a narrow exception which permits suits, notwithstanding prior dismissals, when the prisoner is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g); see also Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.2002) (applying imminent danger exception "[w]hen a threat or prison condition is real and proximate, and when the potential consequence is `serious physical injury.') In determining whether the imminent danger provision applies, the court must evaluate whether the claimed danger was still in existence when a complaint was filed and whether such danger was sufficiently serious in light of the liberal standards accorded to pro se plaintiffs to require protection. Chavis v. Chappius, 618 F.3d 162, 169-70 (2d Cir.2010) (citations omitted). Thus, vague, conclusory, non-specific or implausible allegations of imminent danger are insufficient to circumvent the three-strikes bar. Id. at 170 (citations omitted). Additionally, dismissal is not precluded by the fact that Nelson has already been granted IFP status in this action. Dkt No. 7. When a court becomes aware of three prior strikes only after granting IFP status, it is appropriate to revoke that status and bar the complaint under § 1915(g). See McFadden v. Parpan, 16 F.Supp.2d 246, 247 (E.D.N.Y.1998).
As previously determined in this district, the three-strikes rule applies to Nelson's filings. Thus, it must be determined whether Nelson has sufficiently pled a condition which satisfies the imminent danger exception. Nelson's continued complaints of infection in his leg have previously been held insufficient to establish an imminent danger. See Nelson v. Scoggy, No. 06-CV-1146 (NAM/DRH), 2009 WL 5216955, at *2-4 (N.D.N.Y. Dec.30, 2009) (dismissing the case since Nelson had received adequate medical care for his leg and the failure of the wound to heal was the result of Nelson's own acts of interference with the treatment provided and his self-mutilation); see also Cash v. Berstein,
Nelson has failed to allege any specific, factual evidence regarding the timing, cause, treatment, or prognosis of his new alleged infection. Moreover, the causation which Nelson proffers to account for his infection and gangrene—Warren's perspiration—, is fanciful at best. Accordingly, Nelson has failed to provide anything more than vague, conclusory generalizations. There thus exists "no basis for evaluating the imminence or dangerousness of the threat . . . Moreover, unless we require prisoners to demonstrate the actual existence of an imminent threat, otherwise disqualified filers could obtain IFP status simply by adding general allegations of endangerment." Mitchell v. Federal Bureau of Prisons, 587 F.3d 415, 421 (C.A.D.C.2009). As Nelson has failed to plead his case with the specificity required to trigger the three-strikes safety valve, the imminent danger exception does not apply.
Accordingly, defendant's second motion to dismiss conditionally based upon the three-strikes rule should be granted.
For the reasons stated above, it is hereby
For Plaintiff: Nicholas E. Warywoda, Esq., Parker Waichman, 6 Harbor Park Drive, Port Washington, NY 11050.
For the County Defendants: James R. Scott, Esq., Nassau County Attorney's Office, 1 West Street, Mineola, NY 11501.
For the Armor Defendants: John J. Doody, Esq., Sana Suhail, Esq., Lewis Brisbois Bisgaard & Smith, LLP, 199 Water Street, 25th Floor, New York, NY 10038.
Joanna Seybert, U.S.D.J.
After the Court dismissed the claims under Sections 1981 and 1985, and the Section 1983 claim against the County Defendants, the remaining claims proceeded to trial. (
Currently pending before the Court is the Armor Defendants' motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), or alternatively, for a new trial pursuant to Federal Rule of Civil Procedure 59(a)(A). (Armor Mot., Docket Entry 115.) The County Defendants have not moved for any post-trial relief. For the reasons that follow, the Armor Defendants' motion is GRANTED.
The Court assumes familiarity with its March 2016 Order resolving the parties' motions for summary judgment and will discuss the evidence presented at trial as necessary in its analysis. (
The district court may only grant a Rule 50(b) motion when "`there exists such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair-minded [persons] could not arrive at a verdict against [it].'"
To establish a Section 1983 claim, a plaintiff must demonstrate that the defendant violated a "right, privilege, or immunity secured by the Constitution or laws of the United States . . . by a person acting under the color of state law."
The first element requires that the Court assess the seriousness of the deprivation of medical care objectively, including whether "the medical care was inadequate, and if so, . . . how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner."
In order for a municipality or a corporation such as Armor
The Armor Defendants argue that they are entitled to judgment as a matter of law on Plaintiff's Section 1983 claim because the evidence at trial did not establish either element of a deliberate indifference claim. (Armor Br., Docket Entry 117, at 4-5.)
As to the first element, the Armor Defendants maintain that Plaintiff failed to show that Ryan received inadequate medical care. (Armor Br. at 6-9.) Specifically, they contend that "Armor and its staff followed protocol in processing and evaluating the plaintiff upon his arrival to NCCC . . . and there was simply no notice of Ryan's purported suicidal tendencies prior to and at the time of his detention." (Armor Br. at 6.) They point out that there were no signs that Ryan was experiencing symptoms of withdrawal or mental illness when he arrived at NCCC. (Armor Br. at 6;
The next morning, Ryan saw Dr. Manetti and reported that he used heroin two days prior to being remanded to NCCC. (Armor Br. at 8; Armor Records at 20.) He continued to deny suicidal thoughts and prior suicide attempts. (Armor Records at 20.) Dr. Manetti's diagnosis was opiate dependence, and he put in an urgent referral to the medical department to monitor Ryan for symptoms of withdrawal. (Armor Br. at 8; Armor Records at 18, 21.) Dr. Manetti testified at trial that Ryan was not exhibiting any symptoms of withdrawal when he evaluated him, and that he believed that Ryan had actually used heroin more recently than reported. (Trial Tr. (Manetti), Doody Decl., Ex. A, Docket Entry 116-1, 312:13-18.) He declined to continue Ryan's psychotropic medication and recommended that Ryan be housed with the general population. (Armor Records at 19-21.) The Armor Defendants maintain that all of this evidence shows that Ryan received adequate care, and as a result, Plaintiff failed to meet her burden of proof on the first element of her deliberate indifference claim.
Plaintiff argues that the evidence established "an intentional denial or delay of access to medical care." (Pl.'s Opp., Docket Entry 119, at 13.) She contends that Dr. Manetti, following Armor's referral protocol, referred Ryan to the medical department on an urgent basis, even when he knew that it could take as long as twentyfour hours for Ryan to been seen and despite his concerns that Ryan was not being monitored for signs of drug withdrawal. (Pl.'s Opp. at 13; Trial Tr. (Manetti) 346:17-348:10 (testifying regarding his concerns and agreeing that Ryan could wait up to twenty-four hours before he was monitored for withdrawal symptoms).) Further, she points out that Dr. Manetti failed to forward the referral form to the medical department until an hour and a half after his visit with Ryan. (Pl.'s Opp. at 13; Trial Tr. (Manetti) 350:21-351:2.) As a result, Plaintiff argues, Ryan was not being monitored after his visit with Dr. Manetti until he committed suicide. (Pl.'s Opp. at 13.) Plaintiff maintains that, among other things, the evidence established that Dr. Manetti (1) should have sought additional information regarding Ryan's prior treatment for psychological disorders based on his assessment that Ryan was a poor historian, (Trial Tr. (Manetti) 308:2-13 (discussing his characterization of Ryan as a poor historian), 310:4-9 (testifying that the fact that Ryan was a poor historian would be a reason to contact a treating physician or family)), and (2) should have alerted corrections officers that Ryan could experience withdrawal, (Trial Tr. (Manetti) 302:11-24 (agreeing that it was good psychiatric practice to notify corrections officers of imminent withdrawal), 355:23-356:3 (testifying that he did not tell any corrections officer about Ryan's possible withdrawal).)
On reply, the Armor Defendants argue that because Plaintiff's claim is based on a delay or interruption in care, the Court should evaluate the seriousness of the delay or interruption rather than the seriousness of Ryan's condition alone. (Armor Reply, Docket Entry 121, at 2.) They argue that the evidence shows that Dr. Manetti did not believe that obtaining Ryan's medical records was necessary after his initial evaluation, and that he understood that by referring him to medical, he would be seen within twenty-four hours, which he felt was appropriate based on the fact that Ryan was not exhibiting symptoms during his visit. (Armor Reply at 2; Trial Tr. (Manetti) 337:17-338:7 (testifying that Ryan did not "present in a manner in which I was concerned . . . that I needed that history right away"), 393:8-394:7 (testifying that Ryan was not showing any symptoms of withdrawal, but to be cautious, he put in an urgent referral, which in practice, meant Ryan would seen by the end of the day).) Therefore, the Armor Defendants argue, there was no delay in treatment to support a deliberate indifference claim, and even if there was a delay that could be considered the result of negligence by Dr. Manetti or other staff, negligence is not sufficient to prove a constitutional violation. (Armor Reply at 2.)
Alternatively, the Armor Defendants argue that the evidence at trial did not establish that any Armor personnel recklessly disregarded a risk to Ryan's health. (Armor Br. at 9-13.) They contend that "the evidence demonstrated that even if Armor were aware that Ryan might be experiencing signs of withdrawal, they were equally aware that he was subject to ongoing continuous observation patrols as well as 15-minute observations by correctional officers who were trained to recognize the signs and symptoms of withdrawal and advised to notify medical should the inmate appear to be in any distress." (Armor Br. at 10; Trial Tr. (Manetti) 282:18-285:7 (testifying that he participated in suicide prevention training of corrections officers and advised them to call him if any inmate exhibited any suicidal behavior); Trial Tr. (Manetti) 372:14-21 (testifying that corrections officers alerted him to vomiting, cramping, sweating, and signs of agitation by inmates in the past); Trial Tr. (Smith) 235:13-236:19 (testifying that corrections officers were trained to look for signs of withdrawal and would immediately send the inmate to the medical department).)
Further, the Armor Defendants argue that it was reasonable to rely on the corrections officers to notify the mental health or medical departments based on the testimony of several corrections officers who were assigned to Ryan's housing area on the day of his suicide. (Armor Br. at 10; Trial Tr. (Brown) at 435:22-436:4 (testifying that if he determined that an inmate needed medical care, he would alert his supervisor, who would contact the medical department), 442:18-444:8 (testifying that while on the mental health housing tier, he was looking for behavior that would indicate an inmate was depressed and would notice if an inmate was vomiting, sweating profusely, and shaking and would ask the inmate if he needed to go to the medical department); Trial Tr. (Vogt) 482:25-484:6 (testifying that he was trained on signs of suicidal behavior and if an inmate indicated that he planned to hurt himself, the inmate was taken out of his cell and placed in a separate area until mental health department arrived).) Finally, the Armor Defendants point to testimony of several corrections officers that Ryan did not exhibit any unusual behavior that day. (
Plaintiff contends that the appropriate inquiry after the
The Court finds that no reasonable juror could conclude that Dr. Manetti acted with a state of mind sufficient to support a deliberate indifference claim. Focusing on the
The evidence also does not support a finding that Dr. Manetti was, or should have been, aware of a substantial risk of suicide because Ryan did not indicate to him, Nurse Mathews, Nurse Tinglin, or Officer Archer that he was thinking about suicide or had attempted suicide in the past. (Screening Form at 6; Armor Records at 15-16, 20-21.) Ryan was initially deemed a suicide risk after indicating to Officer Archer that he was prescribed psychiatric medication in the past, but he explicitly denied suicidal thoughts or prior suicide attempts. (Screening Form at 6.) Ryan was then housed in the mental health unit and observed every fifteen minutes until he could be assessed by Dr. Manetti. (Screening Form at 6-7.) Thereafter, he was assessed by Nurse Tinglin and Nurse Mathews, to whom he again denied suicidal thoughts or prior suicide attempts. (Armor Records at 15-16.) He also denied suicide thoughts or attempts during his visit with Dr. Manetti. (Armor Records at 20-21.) Viewing the evidence in Plaintiff's favor, Dr. Manetti may have misjudged the risk of suicide or misdiagnosed Ryan. However, that is not enough to establish objective recklessness.
Plaintiff contends that Dr. Manetti's decision to refer Ryan to the medical department on an urgent basis put him in jeopardy because the referral "meant that an inmate in the throes of withdrawal could be sitting in his cell for up to 24 hours before being monitored or receiving treatment for drug withdrawal." (Pl.'s Opp. at 8.) However, Dr. Manetti's referral would not have prevented Ryan from receiving treatment if he needed it. Dr. Manetti testified that if an inmate needed medical attention for an acute condition, the medical department would see the inmate on an expedited basis. (Trial Tr. (Manetti) 395:24-396:9 (testifying that an inmate could alert a corrections officer who would contact the medical department, and the medical department would expedite treatment for acute conditions); Trial Tr. (Manetti) 372:14-21 (testifying that on several occasions, corrections officers have notified him that an inmate was vomiting, cramping, sweating, or exhibiting signs of agitation).) While he acknowledged that he was not looking for symptoms of withdrawal when he observed Ryan that day, Officer Brown testified that he would notify his supervisor if he believed an inmate needed medical care and that if an inmate was experiencing symptoms such as vomiting, sweating, or shaking, he would notice. (Trial Tr. (Brown) at 435:22-436:4, 437:22-24, 442:18-444:8.) Officer Vogt also testified that he was familiar with the symptoms of drug withdrawal. (Trial Tr. (Vogt) 486:18-487:3.) While the evidence at trial reflected that corrections officers were not responsible for diagnosing and monitoring inmates for symptoms of drug withdrawal, (Trial Tr. (Manetti) 313:25-314:5), they were responsible for observing them for changes in behavior and ensuring their safety. (Trial Tr. (Manetti) 298:23-299:7; Trial Tr. (Brown) 442:5-444:12; Trial Tr. (Vogt) 479:23-480:11.)
The Armor Defendants also argue that "there was no evidence that Armor implemented any policy or custom that resulted in the violation of Ryan's constitutional rights." (Armor Br. at 13.) They maintain that the evidence related to Armor's urgent referral policy was inadequate for several reasons, including because Ryan was not exhibiting any symptoms of withdrawal when he was seen by Dr. Manetti and because corrections officers testified that if they had noticed any symptoms, they would have taken appropriate action. (Armor Br. at 13-14.)
Plaintiff argues that the evidence regarding Armor's urgent referral policy established the existence of a policy or custom for purposes of Monell liability. (Pl.'s Opp. at 18.) She maintains that "Armor's policy of Dr. Manetti's `urgent' referral being limited to seeing . . . Ryan sometime in 24 hours contributed directly to his death six hours later. Had `urgent' meant `immediately' rather than a day later, . . . Ryan would have survived." (Pl.'s Opp. at 18.) Plaintiff claims that Armor's suggestion that Dr. Manetti did not believe Ryan was in active withdrawal "flies in the face of the evidence," including Dr. Manetti's own testimony that he believed Ryan had used heroin one to two days before arriving at NCCC and that withdrawal typically occurs within twenty-four to forty-eight hours. (Pl.'s Opp. at 18; Trial Tr. (Manetti) 418:18-419:3 (testifying that symptoms of withdrawal usually occur within twenty-four to forty-eight hours and that Ryan committed suicide within one to three days of when Dr. Manetti believed he last used heroin).) Therefore, she argues, because Dr. Manetti followed Armor's urgent referral policy, Ryan was not monitored during the period between his visit with Dr. Manetti and his death, a time period which coincided with when symptoms of withdrawal typically become apparent. (Pl.'s Opp. at 19.)
Viewing the evidence in the light most favorable to Plaintiff, the Court finds that the evidence at trial failed to demonstrate a "direct causal link" between Armor's referral policy and Ryan's death.
The Armor Defendants argue that the punitive damages award should be set aside because "the record is simply devoid of any evidence that Armor acted with callous indifference." (Armor Br. at 15.) Plaintiff responds that there is "testimony that Armor intentionally ignored good medical practice and contemporary community standards in setting a policy of drug withdrawal monitoring that endangered . . . Ryan's life unnecessarily." (Pl.'s Opp. at 19.) She argues that Armor chose not to be provide adequate care for Ryan "by relying on its `protocol' of denying immediate monitoring for 24-hours." (Pl.'s Opp. at 21.) Additionally, she contends that, based on the evidence, the jury was entitled to infer that Armor intentionally ignored Ryan's medical needs. (Pl.'s Opp. at 21.)
"In a § 1983 suit, a jury may award punitive damages if `the defendant's conduct is shown to be motivated by evil motive or intent,' or if the defendant's conduct `involves reckless or callous indifference to the federally protected rights of others.'"
The Court agrees with the Armor Defendants that the punitive damages award must be set aside. Assuming for purposes of this analysis that Dr. Manetti acted in an objectively reckless manner, there is no evidence that he was "motivated by evil motive or intent" or acted with "reckless or callous indifference."
On this point in particular, the Court finds that Plaintiff's characterizations of the evidence are not supported by the record. Plaintiff asserts that "delaying . . . care by 24-hours was a severe departure" from the standard of care and that Armor "chose" not to treat Ryan by relying on its policy of "denying immediate monitoring for 24hours." (Pl.'s Opp. at 20-21.) However, there was no evidence that Armor delayed care for twenty-four hours; Dr. Manetti, based on his assessment, referred Ryan to the medical department on an urgent basis, which meant that Ryan would be seen within twenty-four hours. (Trial Tr. (Manetti) 393:11-394:7.) The implication that Ryan was subject to a twenty-four-hour waiting period or its equivalent—particularly if he began exhibiting symptoms —is inaccurate. The record is also devoid of evidence that Armor "chose" not to treat Ryan by denying him immediate monitoring. (
In the alternative, Armor moves for a new trial pursuant to Federal Rule of Civil Procedure 59(a)(A).
A district court may grant a new trial under Federal Rule of Civil Procedure 59 when the "court is `convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'"
Because the jury found for Plaintiff on the negligence and Section 1983 claim, they completed question number six ("Question 6") on the Verdict Sheet. (
Plaintiff argues that the two pain and suffering awards are not duplicative because the jury found that Ryan suffered two distinct injuries.
On reply, the Armor Defendants argue that while Plaintiff maintains that the pain and suffering awards are for different injuries, "[she] fails to explain how they are different and why [s]he attributes particular pain and suffering to one claim and other pain and suffering to another." (Armor Reply at 5.) Further, they claim that "Plaintiff never . . . presented the jury with any basis to differentiate between components of Ryan's pain and suffering," and in the closing argument, requested one amount for Ryan's pain and suffering. (Armor Reply at 5.) Finally, the Armor Defendants argue that there is no support in the record for Plaintiff's contention that the jury awarded damages for the six-hour period that Ryan allegedly experienced withdrawal, because "there was absolutely no discussion of the symptoms that Ryan actually experienced or the time frame for the onset of these symptoms or how they purportedly progressed." (Armor Reply at 8.)
It is well-established that when awarding compensatory damages, "an injury can be compensated only once"; in other words, "[i]f two causes of action provide a legal theory for compensating one injury, only one recovery may be obtained."
As Armor points out, in the summation, Plaintiff asked for one sum to compensate her for Ryan's pain and suffering and did not urge the jury to award different amounts under each theory. (
Because the Armor Defendants sought a new trial in the alternative, the Court conditionally finds that, if its determination on the Rule 50 motion is reversed, a new trial is warranted.
Having found that a new trial is necessary due to the duplicative pain and suffering awards, the Court will briefly address the remaining ground for a new trial.
The Armor Defendants argue that if the Court finds that the evidence supports an award of punitive damages, the Court should reduce the award because the $7,000,000 punitive damages award "clearly shocks the conscience." (Armor Br. at 22.) Based on a collection of cases from this Circuit and others, the Armor Defendants contend that a punitive damages award of, at most, between $100,000 and $200,000 would be appropriate in this case. (Armor Br. at 24.)
Plaintiff responds that the Court should not disturb the jury's punitive damages award because the award does not run afoul of due process and the conduct constituted "a callous prioritizing of self-interest and profit over the responsibility to others for whom Armor was charged." (Pl.'s Opp. at 26-27.) She also distinguishes the cases cited by the Armor Defendants and reasons that cases involving conduct resulting in death are the appropriate metric to determine whether the punitive damages award is reasonable. (Pl.'s Opp. at 27.)
As discussed, the undersigned does not believe that an award of punitive damages is warranted in this case. Assuming that the Court of Appeals disagrees with that conclusion, the Court conditionally rules that, based on the excessiveness of the punitive damages award, a new trial is necessary. The award "is so high as to shock the judicial conscience and constitute a denial of justice."
SO ORDERED.
Mishael Minnie Pine, Mishael M. Pine, Attorney at Law, New Windosr, NY, for Plaintiff.
Alejandra Rosa Gil, Brendan James Alt, Doreen Dufficy, Heidell, Pittoni, Murphy & Bach, LLP, Daryl Paxson, Lord Day Lord, White Plains, NY, Laura Anne DelVecchioo, Heidell, Pittoni, Murphy & Bach, LLP, New York, NY, for Defendants.
Ronnie Abrams, United States District Judge
The following facts are drawn from the Second Amended Complaint (the "Complaint") and its accompanying exhibits. Compl. (Dkt. 73, 73-1, 73-2); Decl. (Dkt. 62). These facts are assumed to be true for the purposes of resolving Defendants' motion to dismiss. See Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017).
In 2001 and 2002, as a result of a series of gunshot wounds, Stewart injured his wrists and became paraplegic. Compl. ¶¶ 14, 50. Over time, Plaintiff's immobility has caused him to suffer from chronic decubitus ulcers, also known as pressure ulcers or bedsores, which are prone to infection. At some point (and prior to his detention at Rikers), Stewart's right leg had to be amputated "due to an infection in his ulcers that went to the bone." Id. ¶¶ 285, 389. In 2009, the Mount Sinai Rehabilitation Center recommended that he begin using a motorized wheelchair due to his "severe upper extremity pain [and] imbalance," with the goal of "encouraging wound healing and good skin integrity." Id. ¶ 51. Stewart used the motorized wheelchair until 2014, when he was arrested and the wheelchair was confiscated.
After his arrest, Stewart was admitted to Bellevue Hospital Center for treatment of (and surgery on) his ulcers. Id. ¶ 246. The doctors at Bellevue gave Plaintiff a treatment plan for his ulcers that "included the use of the motorized wheelchair; the need for a Hill-Rom rental Clinitron Rite Hite Fluidized air bed with trapeze; and wound care dressing changes, which included instructions for properly cleaning and dressing" the ulcers every three days. Id. ¶¶ 59-60. According to Stewart, Defendants failed to comply with each one of those three requests as described below.
Second, Stewart was not provided with the Clinitron bed or a trapeze to "assist [him] in sitting up in the bed and repositioning himself . . . to avoid additional pressure sores" when he returned to Rikers. Id. ¶¶ 167, 171. Instead, he was transferred "to a bed that had a mattress bigger than the bed frame, no trapeze, and no side rails to prevent him from falling out of the bed." Id. ¶ 171. According to Stewart, the absence of a Clinitron bed and trapeze "made it difficult for [him] to heal his ulcers," and additional bedsores formed. Id. ¶¶ 177-79. As a result, he was readmitted to Bellevue Hospital a few weeks after his initial discharge. Plaintiff alleges that he was "frequently admitted to Bellevue for follow-up care" for his ulcers, as well as for other issues such as urinary tract infections. Id. ¶¶ 182, 277, 280, 290.
Stewart further alleges that, as a consequence of the "defective" manual wheelchair and the non-Clinitron bed, he has "suffered multiple injuries from several falls from the wheelchair and the bed." Id. ¶ 211. For example, he alleges several instances where he fell from his bed or wheelchair, including one time where he fell "as [he] wheeled himself to the law library" and was going down a ramp. Id. ¶ 231. Injuries from his various falls allegedly included "injuries to his back and left knee," id. ¶¶ 223, 227, to "the left side of his head and left foot," id. ¶ 232, and to his ankle, id. ¶ 237. In February or March 2015, after repeated complaints, Stewart finally received a bed with a trapeze. Id. ¶ 186. He also appears to have been provided with bed side rails at some point in 2015. Id. ¶ 242 ("Mr. Stewart remained in a bed without side rails from August 2014 thr[ough] early to mid-2015.").
Third, Plaintiff asserts that Defendants failed to comply with the Bellevue doctors' instructions regarding his wound care. Bellevue had specified a "meticulous wound care" plan for his chronic ulcers. Id. ¶ 250. According to Stewart, Defendants did not follow these instructions. "When Defendants John Doe #1 and John Doe #2 performed the dressing change on Mr. Stewart," it was generally a "basic" "wet-to-dry dressing instead of the three step process ordered by the Bellevue specialist." Id. ¶¶ 256, 344. Stewart purportedly submitted several grievances claiming that the John Does "either would not comply" with the Bellevue plan "or refused to change his dressings period." Id. ¶ 261. The John Does allegedly "disagreed on the care needed for Mr. Stewart." Id. ¶¶ 270-73. During one of Stewart's frequent stays at Bellevue, he asked the wound care specialist to show him how to change his own dressings because he was afraid of infection. He changed his own dressings from March 2015 to May 2016, and his ulcers improved as a result. Id. ¶¶ 286-88.
Plaintiff also identifies a few other ways in which Defendants purportedly failed to provide him adequate medical care. He alleges that his ulcers and frequent falls caused him "extreme chronic pain" in his lower back and extremities. Id. ¶ 289. He admits that he received Tylenol, and then Tylenol with Codeine, for his pain, but he alleges that these prescriptions were "not strong enough." Id. ¶¶ 295-96. Plaintiff asked Defendant Ramos (a doctor who often treated Stewart at Rikers) for stronger medication, but his requests were denied. Id. ¶ 307. On November 24, 2014, a few months after his arrest, a different doctor prescribed him MS Contin which "consistently managed" his pain from that point on. Id. ¶ 310.
Plaintiff, proceeding pro se, filed his original complaint on May 29, 2015, and an amended complaint on January 25, 2016. Stewart asked the Court to request pro bono counsel on his behalf, and that request was granted. Before pro bono counsel appeared, Defendants filed a motion to dismiss. See Dkt. 27. The Court thereafter granted Plaintiff, proceeding through his pro bono counsel, leave to amend his complaint again. The Second Amended Complaint, as filed, is over 75 pages long with more than 450 paragraphs asserting nine causes of action. Defendants now move to dismiss that complaint. See Dkt. 77. Stewart responded in opposition through counsel, and Defendants replied. See Dkts. 87, 90.
"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 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). Although the Court must accept as true all non-conclusory factual allegations and draw all reasonable inferences in Plaintiff's favor, Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008), it need not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).
Stewart asserts his claims under Title II of the ADA and § 504 of the Rehabilitation Act against only the City. He argues that the "City discriminated against [him] on the basis of his disability by denying him reasonable accommodations for his disability" and "by supplying him with a defective replacement wheelchair and defective bed." Compl. ¶¶ 379-80. Specifically, Stewart asserts that the City should have responded to his numerous grievances about his manual wheelchair and requests for his motorized wheelchair by returning the motorized wheelchair to him or, at the very least, by providing him with an "Inmate Mobility Assistant" to help him move around the facility. See id. ¶¶ 384-88, 402.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act "prohibits programs and activities receiving federal financial assistance from excluding, denying benefits to, or discriminating against `otherwise qualified' disabled individuals." McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (quoting 29 U.S.C. § 794(a)). These standards are "generally the same," and any fine distinctions between them are not implicated in this case. See Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016). Thus, this Court will "treat claims under the two statutes identically." Id. (citation omitted). To state a claim under either statute, Plaintiff must allege that "(1) he is a qualified individual with a disability; (2) the defendant is subject to one of the [statutes]; and (3) he was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant because of his disability." Disabled in Action v. Bd. of Elections in N.Y.C., 752 F.3d 189, 196-97 (2d Cir. 2014) (citation and footnote omitted).
In the Complaint, Plaintiff admits that he was able to use the manual wheelchair to travel around the facility, albeit with some difficulty. Compl. ¶¶ 73, 402. And he does not allege a single activity, program, or opportunity that he could not attend or get to at Rikers because he did not have a motorized wheelchair or Inmate Mobility Assistant. Thus, even accepting Plaintiff's non-conclusory factual allegations as true and drawing reasonable inferences in his favor, he has not plausibly alleged that the accommodation that Rikers provided to him—i.e., the manual wheelchair and its subsequent replacements —deprived him of meaningful, effective access to, or otherwise "excluded [him] from," any service, program, or activity at Rikers. See Ramrattan v. Fischer, No. 13-CV-6890 (KPF), 2015 WL 3604242, at *5 (S.D.N.Y. June 9, 2015); see also Atkins v. Cty. of Orange, 251 F.Supp.2d 1225, 1232-33 (S.D.N.Y. 2003). Plaintiff has further failed to allege "any discriminatory animus, or that he was excluded from any public service because of ill will against his disability." Ramrattan, 2015 WL 3604242, at *5. Accordingly, his ADA and Rehabilitation Act claims must be dismissed. See id.
In Plaintiff's opposition papers, he argues for the first time that the City's accommodation of his disability is "so inadequate that it deters [him] from attempting to access" the services at Rikers. See P's Mem. Opp. at 5 (Dkt. 87) (quoting Wright, 831 F.3d at 73). Normally, difficulty or inconvenience is not "tantamount to stating a claim of exclusion or discrimination." Burgess v. Goord, No. 98-CV-2077 (SAS), 1999 WL 33458, at *7 (S.D.N.Y. Jan. 26, 1999); see also Carrasquillo v. City of New York, 324 F.Supp.2d 428, 443 (S.D.N.Y. 2004). In certain circumstances, however, an accommodation that discourages a disabled detainee from attempting to access services can amount to a deprivation of meaningful access to those services and, consequently, to a violation of the ADA or Rehabilitation Act. In Wright v. New York State Department of Corrections, for example, the Circuit held that the plaintiff—an inmate at a facility managed by the New York State Department of Corrections and Community Supervision ("DOCCS")—created a triable issue of fact as to whether he was deprived meaningful access to prison services for two reasons. 831 F.3d at 73. First, the Circuit noted evidence that the disabled plaintiff in that case had been unable to "move freely throughout the DOCCS facility," and, second, it held that this immobility "discourage[d] his participation in prison activities." Id. The Circuit came to these conclusions by considering the plaintiff's testimony that he had been "at times, unable to visit the law library" and had "missed multiple morning sick calls, doctor appointments, and meals." Id. The plaintiff also testified that a number of jobs that he hoped to perform were "unavailable to him," but that he would be able to do them if he were provided a motorized wheelchair. Id. at 70, 73. He further attested that he chose to "avoid[ ] recreational time in the prison yard" because he feared that his inability to maneuver on his own would mean that he could not escape if a fight broke out. Id.
In Stewart's opposition papers, he articulates his deterrence theory in slightly more detail. See P's Mem. Opp. at 5, 6. But any facts alleged there may not be considered on a motion to dismiss. See Ramrattan, 2015 WL 3604242, at *3. Moreover, even Plaintiff's opposition papers fail to identify a particular activity or program at Rikers that Stewart was deterred from attending. Given Plaintiff's admitted ability "to maneuver the wheelchair from one place to the next," as well as his failure to allege any particular activity or service to which he was deprived meaningful access because of the City's failure to provide him with a motorized wheelchair (or Inmate Mobility Assistant), he has not stated a claim for discrimination under the ADA and Rehabilitation Act. Compl. ¶¶ 73, 402.
Stewart certainly would be more comfortable in a motorized wheelchair, and the manual wheelchairs provided to him were far from an ideal accommodation. The ADA and Rehabilitation Act, however, "do not require `optimal' accommodations"—they require only reasonable ones that give plaintiff's like Stewart effective and meaningful access to programs and activities. See Brooklyn Ctr. for Independence of Disabled v. Bloomberg, 980 F.Supp.2d 588, 641 (S.D.N.Y. 2013) (citation omitted). Plaintiff has failed to allege that the manual wheelchair deprived him of that access. His claims under the ADA and Rehabilitation Act thus must be dismissed. They are dismissed without prejudice, however, because Plaintiff's motion papers suggest that he may have grounds to assert that he was deterred from attending certain prison activities in violation of the statutes. Given this Court's mandate to "freely give leave" to amend "when justice so requires," Fed. R. Civ. R 15(a)(2), the Court dismisses these claims without prejudice and grants Plaintiff leave to amend to remedy the defects identified in this section, to the extent he can make such amendments in good faith.
Plaintiff's remaining federal claims seek relief under 42 U.S.C. § 1983, alleging that Individual Defendants, Corizon, and the City have violated his constitutional rights. "The Eighth Amendment forbids deliberate indifference to serious medical needs of prisoners." Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). For pretrial detainees like Stewart, this right arises under "the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight Amendment." Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
The Individual Defendants' alleged failings fall roughly into two categories. The first category of alleged violations involves Individual Defendants' allegedly negligent care while they were providing medical treatment to Stewart. These purported violations include several instances where Individual Defendants allegedly failed to stabilize Stewart's body during treatment and caused him to fall and injure himself, as well as Stewart's claim that he was erroneously prescribed diabetes medicine that caused him to have an adverse reaction.
Plaintiff cannot state a deliberate-indifference claim based on these allegations for several reasons. As to the diabetes prescription, the Complaint fails to identify how any particular Individual Defendant was involved at all, requiring dismissal of that claim. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) ("It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" (citation omitted)). Moreover, neither the diabetes prescription nor the Individual Defendants' failure to stabilize Plaintiff's body during treatment constitute deprivations of care for objectively serious medical needs. Rather, they are claims for negligence that allegedly occurred during the course of Stewart's medical treatments at Rikers. Such allegations focus on the quality, rather than the deprivation, of medical care. See Estelle, 429 U.S. at 106-07; Darnell, 849 F.3d at 36. Deliberate-indifference claims are "not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, [and] not every lapse in prison medical care will rise to the level of a constitutional violation." Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). Thus, to the extent that Stewart's § 1983 claims are founded on Individual Defendants' allegedly negligent acts in the course of treating Stewart's other medical concerns, they must be dismissed.
The second category of alleged violations involve Stewart's allegations that Individual Defendants and/or other Rikers staff failed to provide him with a motorized wheelchair or Inmate Mobility Assistant; failed to give him a special "Clinitron" bed; did not regularly and properly redress his ulcers; did not promptly or sufficiently address his pain from his ulcers and other injuries; and failed to provide appropriate medical care to him when he was running a fever due to a urinary tract infection.
The Court need not decide whether Stewart's chronic ulcers, pain, and instability due to his paralysis amount to objectively serious medical conditions because, for the reasons explained below, the Complaint fails to allege that Individual Defendants "knew or should have known" that the care they provided for those conditions "posed an excessive risk" to Stewart's health or safety. Darnell, 849 F.3d at 35. Although some Individual Defendants certainly could have provided Plaintiff with better care and superior medical equipment, the care and equipment that Plaintiff did receive demonstrates that they were not deliberately indifferent to his medical needs.
As to Stewart's pain, he admits that, within a few months of arriving at Rikers, his doctors progressed from supplying him with Tylenol, to Tylenol with Codeine, to an MS Contin prescription that Stewart acknowledges manages his pain. That Ramos denied Plaintiff's earlier requests for stronger pain medication does not state a claim for deliberate indifference. See Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011). "Issues of medical judgment cannot be the basis of a deliberate indifference claim where [additional] evidence of deliberate indifference is lacking." Id. The decision to "treat[ ] pain with overthe-counter, as opposed to prescription, medication is a disagreement over treatment that [generally] does not rise to the level of deliberate indifference[.]" Thomas v. Westchester County, No. 12-CV-6718 (CS), 2013 WL 3357171, at *5 (S.D.N.Y. July 3, 2013) (gathering cases). Here, Stewart does not allege any facts suggesting that defendant Ramos's failure to prescribe the specific pain medication that Plaintiff requested was accompanied by a sufficiently culpable state of mind. Stewart's "fe[eling]" that Ramos denied him stronger medication because of the grievances that Stewart had filed against him, Compl. ¶ 307, does not plausibly allege that Ramos knew, or should have known, that his decision not to prescribe stronger medication would pose an excessive risk to Stewart's health or safety, "particularly in light of Plaintiff's receipt of non-prescription pain medication and ongoing medical attention." Thomas, 2013 WL 3357171, at *6.
Similarly, Plaintiff has not adequately alleged that Individual Defendants were deliberately indifferent to his need for additional safety devices on his wheelchair and bed. Although Individual Defendants may have known about some of Stewart's falls from his wheelchair and bed, Plaintiff has not alleged facts establishing that Individual Defendants should have been aware that their failure to provide him with additional safety features posed "a substantial risk of serious harm" to Stewart. See Knight v. Mun. Corp., No. 14-CV-3783 (PAE) (JCF), 2016 WL 4030632, at *6 (S.D.N.Y. July 26, 2016). In other words, the Complaint does not allege any reason why any Individual Defendant should have known that the possibility that Stewart might fall posed an "excessive risk" to his health or safety. See Darnell, 849 F.3d at 32, 35 (emphasis added). The Complaint does not, for example, allege that Individual Defendants knew of, or should have known of, any serious injuries from the falls that Stewart had allegedly experienced from his bed and wheelchair.
To the extent Plaintiff argues that Individual Defendants unconstitutionally delayed his access to medical care or access to better medical equipment and safety features, he has also failed to state a claim. To survive a motion to dismiss on this theory, Stewart must still plausibly allege that Individual Defendants intentionally or recklessly delayed his access to care when they knew or should have known that the delay posed an excessive risk to his health or safety. See Darnell, 849 F.3d at 35; see also Bell v. Jendell, 980 F.Supp.2d 555, 561-62 (S.D.N.Y. 2013) (gathering cases where courts dismissed plaintiffs' deliberate-indifference claims for failing to allege that a delay in care was either intentional or reckless under the mens rea prong). At no point in the Complaint here, however, does Stewart allege facts indicating that any Individual Defendant acted intentionally to delay the provision of medical treatment in a way that subjected Stewart to an excessive risk of harm, or that any Individual Defendant recklessly failed to act with reasonable care to mitigate any excessive risk posed by a subsequent delay in provision of medical treatment, Stewart received medical care at Rikers—and, on referrals from the Rikers medical staff, at Bellevue—on a regular basis. Although he allegedly did not have his dressings changed as often as prescribed, and although it apparently took the administrators months to respond to his complaints about his allegedly defective manual wheelchair and about the lack of safety features on his bed and chair, there is no indication in the Complaint that any Individual Defendant should have known that such delays posed an excessive risk to Stewart.
Plaintiff's arguments in opposition to Defendants' motion rely in large part on Martinez v. Mancusi, where the Circuit held that prison officials acted with "more than mere negligence or poor medical judgment" when they "deliberate[ly] disregard[ed]" other doctors'"explicit medical instructions," and that disregard "result[ed] in serious and obvious injuries." 443 F.2d 921, 924-25 (2d Cir. 1970). According to Stewart, this case stands for the proposition that a deliberate-indifference claim should survive a motion to dismiss so long as the plaintiff alleges that "medical staff members fail[ed] to follow the prescription of another physician." P's Mem. Opp. at 8. But the Circuit in Martinez did not create such a categorical rule. Instead, the court looked to the specific facts at hand and concluded that the allegations amounted to "gross misconduct" by the prison officials. Martinez, 443 F.2d at 924. In Martinez, the prisoner had just received surgery on his leg and was under strict orders not to stand or walk, because moving his leg could make the surgery unsuccessful. Id. at 923. Nonetheless, and without a formal discharge from the hospital, corrections officers handcuffed him and made him walk out of the hospital. Id. The patient was discharged from the prison hospital a day later and was sent back to his cell, where he had to stand for meals, move his leg, and lacked medication or accommodations of any sort. Id. His surgery "ultimately proved unsuccessful" as a result. Id. The blatant disregard of the surgeons' instructions in that case thus constituted a "reckless failure" by prison officials "to inform themselves of a prisoner's medical needs" with serious consequences. See Startz v. Cullen, 468 F.2d 560, 561-62 (2d Cir. 1972) (citing Martinez, 443 F.3d at 924).
Defendants further argue that the Complaint's § 1983 claims must be dismissed against the City. To hold a municipality liable under § 1983 for the unconstitutional acts of its employees, Plaintiff must plead and prove that the violations of his constitutional rights were caused by a policy or custom of the municipality. See Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978); Byrd v. City of New York, No. 17-CV-2166 (AJP), 2018 WL 259316, at *6 (S.D.N.Y. Jan. 2, 2018). Such a claim, however, "cannot lie in the absence of an underlying constitutional violation." Byrd, 2018 WL 259316, at *13 (citation omitted); see also Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). Given this Court's conclusion that Plaintiff has failed to plead sufficient facts to allege an underlying violation of his constitutional rights under the Fourteenth Amendment, Plaintiff's § 1983 claim against the City must also be dismissed.
The Complaint also purports to assert a § 1983 claim against Corizon, which had contracted with the City to provide health services to inmates at Rikers at the time when the events underlying this case occurred. Neither Plaintiff nor Defendants address in their motion papers the theory under which Corizon could be held liable for deliberate indifference. In any event, given that Stewart has failed to state a claim against any Individual Defendant or the City for the reasons explained above, his claim against Corizon too must fail. See generally Bess v. City of New York, No. 11-CV-7604 (TPG), 2013 WL 1164919, at *2 (S.D.N.Y. Mar. 19, 2013); Bektic-Marrero v. Goldberg, 850 F.Supp.2d 418, 432 (S.D.N.Y. 2012).
Stewart has already been given an opportunity to amend his original complaint, Dkt. 6, as well as further opportunity to amend while represented by pro bono counsel after Defendants filed their first motion to dismiss, Dkt. 67. The Court is persuaded that any further amendment to Plaintiff's § 1983 claims would be futile, so those claims are dismissed with prejudice. See Of for v. Mercy Med. Ctr., 676 Fed.Appx. 51, 54 (2d Cir. 2017) (summary order).
"[W]hen the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (footnote omitted). Plaintiff's claims under federal law have all been dismissed. Thus, his remaining state law claims are dismissed without prejudice.
For the foregoing reasons, Defendants' motion to dismiss is granted with prejudice as to Plaintiff's claims under § 1983 and without prejudice to his claims under the ADA and Rehabilitation Act. The Court further declines jurisdiction over, and dismisses without prejudice, Plaintiff's state-law claims. Plaintiff may file a third amended complaint reasserting his claims under the ADA and Rehabilitation Act. He may also reassert his state-law claims to the extent he has a good-faith basis for arguing that the Court still has subject matter jurisdiction over them. Plaintiff's third amended complaint, and a redlined copy comparing the third amended complaint to the second amended complaint, shall be filed no later than April 30, 2018.
SO ORDERED.
Appeal from a judgment of the United States District Court for the Southern District of New York (Nathan, /.).
FOR PLAINTIFF-APPELLANT: Mario Valdiviezo, pro se, Coxsackie, NY.
FOR DEFENDANTS-APPELLEES: Jane L. Gordon, Qian Julie Wang, Assistant Corporation Counsels, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY.
PRESENT: ROBERT A. KATZMANN, Chief Judge, RAYMOND J. LOHIER, JR., Circuit Judge, TIMOTHY C. STANCEU, Judge.
Appellant Mario Valdiviezo, pro se, sued New York City ("the City"), two corrections officers, and two medical staff members under 42 U.S.C. § 1983 for unconstitutional conditions of confinement and deliberate indifference to his serious medical needs. The district court dismissed the complaint for failure to state a claim. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
"We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all the factual allegations in the complaint, that requirement is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
Municipalities, and individuals sued in their official capacity, are liable under § 1983 only if the challenged conduct was "pursuant to a municipal policy or custom," Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (citing Monell v. Dep't of Soc. Serv. of the City of N.Y., 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)), or caused by a "failure to train," Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (citing City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). To satisfy Monell's policy or custom requirement, a plaintiff must show either that the challenged practice "was so persistent or widespread as to constitute a custom or usage with the force of law," or that the "practice of subordinate employees was so manifest as to imply the constructive acquiescence of senior policy-making officials." Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015) (internal quotation marks omitted). To establish municipal liability based on a failure to act, a plaintiff must show "that defendants knew to a moral certainty that the City would confront a given situation; the situation presented the City with a difficult choice or there was a history of its mishandling the situation; and the wrong choice by the City would frequently cause the deprivation of plaintiffs' rights." Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992)). A "general and conclusory allegation" of a municipal policy or custom fails to state a facially plausible Monell claim. Littlejohn, 795 F.3d at 315.
Valdiviezo alleged that the City failed to correct the unsanitary conditions at Rikers, despite receiving numerous grievances from multiple inmates. The constitutionality of housing conditions is assessed by both the severity and duration of the violation. Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017). Valdiviezo plausibly alleged that the unsanitary conditions of the showers at Rikers reached an unconstitutional level. A liberal reading of Valdiviezo's complaint also indicates that the City failed to adequately correct these conditions for at least eighteen months, even after it received several grievances from multiple inmates and attempted some remedy—namely inspecting, painting, and handwashing the showers. A response that is "so patently inadequate to the task [may] amount to deliberate indifference." Reynolds, 506 F.3d at 192-93. Valdivezo's allegation that City officials responded to the grievances by inspecting the showers at least suggests that the City knew "to a moral certainty," id. at 192, about the shower conditions in Valdiviezo's unit. Valdiviezo will ultimately have to provide evidence that the City's response was "patently inadequate to the task," but based on the facts alleged, it is too early for us to conclude as a matter of law that he will be unable to do so.
The district court erroneously analyzed Valdiviezo's deliberate indifference to medical needs claims under the Eighth Amendment. Valdiviezo's claims should be analyzed under the Fourteenth Amendment because he was a pretrial detainee at the time of alleged incidents. See Darnell, 849 F.3d at 29 ("A pretrial detainee's claims are evaluated under the Due Process Clause because, [p]retrial detainees have not been convicted of a crime and thus may not be punished in any manner—neither cruelly and unusually nor otherwise." (internal quotation marks omitted)). A pretrial detainee must satisfy two prongs to prove a deliberate-indifference claim. First, "an `objective prong' showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process." Id. at 29. Second, a subjective prong "showing that the officer acted with at least deliberate indifference to the challenged conditions." Id.
Valdiviezo asserted that his medical care was inadequate in two ways. First, he alleged that Ayou and Boyer delayed calling for medical help, which did not arrive for an hour. Second, Valdiviezo alleged that medical personnel directed detainees to carry him out of the showers, causing him to be dropped twice.
Although the district court analyzed the delay claim under the wrong amendment, its dismissal of the claim was nonetheless correct. For Fourteenth Amendment claims, this Court applies the same standard as the Eighth Amendment to determine whether an alleged action is objectively serious enough to be a constitutional violation. Cf. Darnell, 849 F.3d at 30 (applying Eighth Amendment objective standards to a Fourteenth Amendment conditions-of-confinement claim). In order to meet the objective prong for a claim of deliberate indifference to serious medical needs, the plaintiff must show that he actually did not receive adequate care and that the inadequacy in medical care was sufficiently serious. Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). When the basis for a prisoner's claim "is a temporary delay or interruption in the provision of otherwise adequate medical treatment," this Court examines whether the delay itself created a risk of harm. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). In considering whether a delay caused a risk of harm, a court may consider "[t]he absence of adverse medical effects or demonstrable physical injury." Id. at 187. Although Valdiviezo alleged that he remained in pain during the hour-long wait, he does not allege that the delay exacerbated his injuries from his initial fall. Therefore, the district court correctly dismissed Valdiviezo's claim based on a delay in his medical care.
However, the district court erred in holding that the medical staff's orders to have detainees carry Valdiviezo —causing two drops to the floor, additional pain, and loss of consciousness—did not violate the Fourteenth Amendment. "In cases where the inadequacy is in the medical treatment given," the analysis focuses on the inadequacy itself. Salahuddin, 467 F.3d at 280 (citing Smith, 316 F.3d at 185). The medical staff's decision to permit detainees, who were likely untrained, to carry a man complaining of a neck and back injury could constitute inadequate care, as it could have resulted in more serious injury. See id. ("[F]ailing to take reasonable measures in response to a medical condition can lead to liability." (internal quotation marks omitted)); Smith, 316 F.3d at 188 (a deliberate indifference claim may be based on "conduct. . . exposing an inmate to an unreasonable risk of future harm"). And Valdiviezo alleged that his injuries were exacerbated as a result of the two drops; after the first fall, he was in more pain, and he lost consciousness after the second fall.
We have considered all of Valdiviezo's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is
