MHJ v. Shelley et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
MHJ,
Plaintiff,
9:23-CV-0362
v. 	(BKS/ML)
WELLPATH, Onondaga County Jail Medical
Provider; and JOHN S. DRAPIKOWSKI,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
MHJ
Pro Se Plaintiff
1258 West Belden Avenue, Apt. #1
Syracuse, New York 13204
BARCLAY DAMON, LLP 	PAUL A. SANDERS, ESQ.
Counsel for Defendants 	AMANDA MILLER, ESQ.
2000 Five Star Bank Plaza
100 Chestnut Street
Rochester, New York 14606-2072
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
Currently before the Court, in this civil rights action filed by MHJ (“Plaintiff”) against
defendants Wellpath and John S. Drapikowski1 (collectively “Defendants”), is Defendants’
1 	Pursuant to Chief Judge Sannes’s Decision and Order dated July 5, 2023, John S.
Drapikowski was added as defendant “in place of Onondaga County Jail Chief Deputy John
Doe.” (Dkt. No. 13 at 7.) Hence, there are no remaining claims against Defendant John Doe
Onondaga County Jail Chief Deputy.
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motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 54.) For the
reasons set forth below, I recommend that Defendants’ motion be granted.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
In her Decision and Order dated May 24, 2023, Chief United States District Judge Brenda
K. Sannes thoroughly outlined the factual allegations contained in Plaintiff’s Complaint. (Dkt.
No. 9, Attach. 6 at 4-6.) Plaintiff alleges that while incarcerated at the Onondaga County Justice
Center (“OCJC”) he informed nursing staff of a serious medical condition that necessitates a
daily prescription medication but for over thirty days Defendants failed to provide him with his
necessary medication. (Id.) At this procedural posture, Plaintiff asserts medical indifference
claims pursuant to the Eighth Amendment against Defendants. (Dkt. No. 9, Attach. 6 at 15; see
generally Dkt. No. 1.) On July 5, 2023, Chief Judge Sannes sua sponte added Defendant
Drapikowski as a defendant in place of Onondaga County Jail Chief Deputy John Doe for
purposes of service and discovery only. (Dkt. No. 13 at 7.) Chief Judge Sannes noted that upon
Plaintiff’s discovery of the identity of the officials responsible for the decision not to provide
him with access to his medication, he should file an amended complaint that properly names all
necessary parties. (Id. at 8.)
B. 	Briefing on Defendants’ Motion for Judgment on the Pleadings
Generally, in support of their motion for judgment on the pleadings, Defendants assert
the following two arguments: (1) Plaintiff’s Complaint must be dismissed against Defendant
Wellpath because it fails to allege facts plausibly suggesting a Monell claim; and (2) Plaintiff’s
state law claims, if any, must be dismissed because (a) the Complaint fails to allege compliance
with the General Municipal law, (b) in the alternative, the Complaint fails to plead the requisite
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elements of any State law claim, and (c) in the alternative, the Court should decline to exercise
supplemental jurisdiction. (See generally Dkt. No. 54, Attach. 4.)
More specifically, with respect to their first argument, Defendants assert that the
Complaint fails to sufficiently allege deliberate indifference to support Plaintiff’s claim because
at most Plaintiff alleges an unintentional delay in administration of medication due to the
rejection of his blood sample by the lab. (Dkt. No. 54, Attach. 4 at 9.) Defendants argue that
even if Plaintiff did sufficiently allege an underlying deliberate indifference claim, the Complaint
is devoid of factual allegations plausibly suggesting a formal policy, widespread practice or
custom, or deliberate indifference by supervisory individuals who are alleged to have crafted any
pertinent policies. (Id.) Defendants assert that Plaintiff’s conclusory allegation that Defendant
Wellpath has a widespread custom or practice of not providing incarcerated individuals with
prescribed medications is insufficient and Plaintiff fails to identify any similarly situated
incarcerated individuals who also did not receive their prescribed medication, amounting to a
widespread deprivation. (Id.)
With respect to their second argument, Defendants argue that the Complaint does not
assert any State law claims but that if it is liberally construed as asserting any, they should be
dismissed. (Id. at 10-11.)
The deadline for Plaintiff to respond to Defendants’ motion for judgment on the
pleadings was November 20, 2025. (Dkt. No. 55.)
On December 2, 2025, Defendants filed a letter response noting that Plaintiff had not
served an opposition to their motion and the deadline to do so had passed. (Dkt. No. 56.)
Defendants noted that Plaintiff appears to be unreachable at the address listed on ECF and
requested that the Court grant their motion on the merits. (Id.)
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On December 3, 2025, the Court sua sponte granted Plaintiff an extension of time to
December 22, 2025, to file an opposition to the pending motion. (Dkt. No. 57.) The Court
cautioned Plaintiff that the “failure to file any response to the motion may result in the motion
being granted since the Court will not have the benefit of Plaintiff's response to consider in
making its decision.” (Id.)
To date, Plaintiff has not filed any opposition to Defendants’ motion for judgment on the
pleadings. (See generally docket sheet.)
II. 	LEGAL STANDARD GOVERNING MOTIONS FOR JUDGMENT ON THE
PLEADINGS
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard for granting a Rule 12(c)
motion is identical to that of a 12(b)(6) motion to dismiss. Hayden v. Paterson, 594 F.3d 150,
160 (2d Cir. 2010).
To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual allegations must be
enough to elevate the plaintiff’s right to relief above the level of speculation. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). So while legal conclusions can provide a framework for the
complaint, they must be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). In short, a complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570.
To assess this plausibility requirement, the court must accept as true all of the factual
allegations contained in the complaint and draw all reasonable inferences in the non-movant’s
favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In doing so, the court generally confines
itself to the facts alleged in the pleading, any documents attached to the complaint or
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incorporated into it by reference, and matters of which judicial notice may be taken. Goel v.
Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).
III. 	ANALYSIS
After carefully considering the matter, I recommend that Defendants’ motion for
judgment on the pleadings be granted.2
A. 	Monell Claim Against Defendant Wellpath3
Municipal liability is limited under Section 1983 by Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658 (1978). In Monell, the Supreme Court found that municipal liability
existed “where that organization’s failure to train, or the policies or customs that it has
sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d
207, 219 (2d Cir. 2006). Thus, to successfully state a claim for Monell liability, a plaintiff must
“make factual allegations that support a plausible inference that the [alleged] constitutional
violation took place pursuant either to a formal course of action officially promulgated by the
municipality’s governing authority or the act of a person with policy making authority for the
municipality.” Missel v. Cnty. of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (citing Vives v.
City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008)). “Absent such a custom, policy, or usage, a
2 	Defendants’ motion contained two sentences—with no legal or record citations—arguing
that Plaintiff alleged at most, an unintentional delay in administration of medication and thus,
failed to allege an underlying deliberate medical indifference claim. (Dkt. No. 54, Attach. 4 at
9.) In reaching this recommendation, the undersigned does not address Defendants’ secondary
argument that Plaintiff failed to allege an underlying deliberate medical indifference claim.
(Dkt. No. 9, Attach. 6 at 7-10).
3 	Defendants do not raise the issue of whether Defendant Wellpath is a “state actor” under
Section 1983. As a result, the undersigned assumed, for purposes of this Report and
Recommendation only, that Defendant Wellpath may be sued as a “state actor” under Section
1983, and does not discuss the issue further herein. (See Dkt. No. 9 at 6 n.5 [“The Court
assumes, for purposes of this Decision and Order only, that Wellpath may be sued as a ‘state
actor’ under Section 1983, and will not discuss this issue further herein.”].)
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municipality cannot be held liable on a respondeat superior basis for the tort of its employee.”
Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); see also Los Angeles County, Cal.
v. Humphries, 562 U.S. 29, 36 (2010) (“[I]n Monell the Court held that ‘a municipality cannot be
held liable’ solely for the acts of others, e.g., ‘solely because it employs a tortfeasor.’” (quoting
Monell, 436 U.S. at 691)).
“[I]n keeping with the pleading requirements imposed by Twombly and Iqbal, a plaintiff
must give a factual description of such a policy, not just bald allegations that such a thing
existed.” Bess v. City of New York, 11-CV-7604, 2013 WL 1164919, at *2 (S.D.N.Y. Mar. 19,
2013) (citing Davis v. City of New York, 07-CV-1395, 2008 WL 2511734, at *6 (S.D.N.Y. June
19, 2008)); see also Rowles v. Doe, 558 F. Supp. 3d 66, 71 (W.D.N.Y. Sept. 3, 2021) (“To
survive a motion to dismiss, the plaintiff ‘cannot merely allege the existence of a municipal
policy or custom, but must allege facts tending to support, at least circumstantially, an inference
that such a municipal policy or custom exists.’”) (quoting Triano v. Town of Harrison, N.Y., 895
F. Supp. 2d 526, 535 (S.D.N.Y. 2012) (further quotation omitted)).
Courts in the Second Circuit have held that “[t]o state there is a policy does not make it
so,” and “while a plaintiff need not assert the allegations in the initial complaint with a level of
specificity only made possible through discovery . . . additional facts for Plaintiff’s ‘official
policy’ Monell allegations are required.” Rowles, 558 F. Supp. 3d at 72 (citing, inter alia,
Vassallo v. City of New York, 15-CV-7125, 2016 WL 6902478, at *14 (S.D.N.Y. Nov. 22, 2016)
((internal citation omitted)); Fleming v. City of New York, 18-CV-4866, 2019 WL 4392522, at *8
(S.D.N.Y. Aug. 27, 2019) (“Plaintiff’s conclusory allegations are . . . insufficient to allege that
the Monell Defendants have a longstanding custom, pattern, or practice of . . . being deliberately
indifferent to inmates’ medical needs or physical safety.”)). Simply put, “‘mere allegations of a
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municipal custom, a practice of tolerating official misconduct, or inadequate training and/or
supervision are insufficient to demonstrate the existence of such a custom unless supported by
factual details.’” Rowles, 558 F. Supp. 3d at 72 (quoting Tieman v. City of Newburgh, 13-CV-
4178, 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26, 2015); Simms v. City of New York, 10-CV-
3420, 2011 WL 4543051, at *3 (E.D.N.Y. Sept. 28, 2011) (dismissing plaintiff’s claim against
city, which made “a scant three factual assertions, which, when read together, d[id] not amount
to a plausible claim that any City policy, practice, or custom contributed to [plaintiff's] injury”),
aff'd, 480 F. App’x 627 (2d Cir. 2012)).
As Defendants set forth, the Complaint alleges that during intake Plaintiff informed
nursing staff that he had a serious medical condition that required daily prescription medication
and the nurse asked Plaintiff for the name of the pharmacy where his prescription was filled,
which he provided. (Dkt. No. 1, Attach. 2 at 2-3.) The Complaint alleges that Plaintiff wrote
requests and grievance forms where he complained that he feared his levels had begun to drop
because he had not received his daily prescription medication. (Id. at 3.) Plaintiff alleges that at
some time, he was taken to OCJC medical where a blood sample was drawn. (Id.) The
Complaint alleges that one week laker, Plaintiff was brought to OCJC medical where another
blood sample was taken and he was informed that the last sample was rejected by the lab because
the blood was not frozen upon receipt. (Id.) Plaintiff alleges that he communicated with jail
ministry about not receiving his medication. (Dkt. No. 1, Attach. 2 at 3-4.) The Complaint
alleges that during the week of March 14, 2023, Plaintiff noticed skin lesions and swelling,
which he brought to the attention of a medical provider, who ordered more testing and noted that
the swelling could be caused by salt in Plaintiff’s diet. (Id. at 4.) The Complaint alleges that on
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March 20, 2023, Plaintiff noticed a red pimple that he feared may be “Kaposi Sarcoma.” (Id. at
4-5.)
The Complaint alleges no facts regarding any official policy, custom, or practice, and
pleads no facts concerning Defendant Wellpath’s training, supervision, or deliberate indifference
to a known need for training. (See generally Dkt. No. 1); see also Alston v. New York City Dep’t
of Corr., 24-CV-6444, 2026 WL 751205, at *6 (S.D.N.Y. Mar. 17, 2026) (dismissing the
deliberate indifference to medical needs claim against the Department of Corrections because,
among other things, the amended complaint did not allege any facts “regarding any official
policy, custom, or practice, and pleads no facts concerning DOC’s training, supervision, or
deliberate indifference to a known need for training.”). Plaintiff does not allege any specific
facts beyond his own experience and does not allege that the incidents that happened to him also
happened to others or that Defendant Wellpath has been responsible for similar violations in the
past. (See generally Dkt. No. 1.) Hence, the allegations in the Complaint are insufficient to
impose municipal liability on Defendant Wellpath. Compare Leckie v. City of New York, 19-
CV-6719, 21-CV-7212, 2023 WL 3168699, at *16 (S.D.N.Y. May 1, 2023) (affirming a report
and recommendation that found the plaintiff’s allegations insufficient where he provided “only
conclusory allegations of the existence of an unconstitutional policy denying incarcerated people
adequate dental care, with no specific facts beyond his own experience.”), with Alvarado v.
Westchester Cnty., 22 F. Supp. 3d 208, 217 (S.D.N.Y. Apr. 24, 2014) (holding that the plaintiffs
plausibly alleged a widespread pattern of misconduct by the jail medical provider where seven
incarcerated plaintiffs were uniformly denied methadone or suboxone over the course of nine
months and one plaintiff was falsely informed that the jail did not have a methadone program at
all).
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As a result, I recommend that Plaintiff’s deliberate medical indifference claim against
Defendant Wellpath be dismissed for failure to state a claim upon which relief may be granted.
B. 	State Law Claims
Defendants’ motion argues that “Plaintiff’s Complaint does not assert State law claims.
If it is determined that such claims were intended, they should be dismissed.” (Dkt. No. 54,
Attach. 4 at 10.) The Decision and Order of Chief Judge Sannes dated May 24, 2023, does not
liberally construe the Complaint as alleging any state law claims. (Dkt. No. 9, Attach. 6 at 6; see
generally Dkt. No. 9, Attach. 6.) Indeed, the only claims that Chief Judge Sannes concluded
survived sua sponte review were Eighth Amendment claims against Defendant Wellpath and
Onondaga County Jail Chief Deputy John Doe. (Dkt. No. 9, Attach. 6 at 15.) Hence, there are
no pending state law claims to consider with respect to Defendants’ arguments.
C. 	Claims Against Defendant Drapikowski
As set forth above, Chief Judge Sannes sua sponte added Defendant Drapikowski as a
defendant in place of Onondaga County Jail Chief Deputy John Doe “so that service may
proceed and issue may be joined.” (Dkt. No. 13 at 7.) Chief Judge Sannes directed Plaintiff that,
upon discovery of the identity of “the official(s) ultimately responsible for the decision not to
provide him with access to his medication . . . . he should file an amended complaint that
properly names all necessary parties.” (Dkt. No. 13 at 8.)
Defendants have made no argument with respect to dismissal of the claims Plaintiff
asserts against Defendant Drapikowski. (See generally Dkt. Nos. 54, 56.) Notwithstanding,
Defendants seek dismissal of the Complaint. (Dkt. No. 54 at 1; Dkt. No. 54, Attach. 1 at 2; Dkt.
No. 54, Attach. 4 at 12.)
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Discovery closed on September 30, 2025. (Dkt. No. 52; see generally docket sheet.)
Despite having an opportunity for discovery, Plaintiff has not sought to amend the complaint to
identify the official(s) responsible for the decision not to provide him with access to his
medication. (See generally docket sheet.) It is undisputed that Defendant Drapikowski lacked
personal involvement with the allegations set forth in Plaintiff’s Complaint.4 (Dkt. No. 13 at 7-
8; see generally Dkt. No. 1.)
As a result, I recommend that Plaintiff’s claims against Defendant Drapikowski be
dismissed. Davis v. Kelly, 160 F.3d 917, 921-22 (2d Cir. 1998) (“After an opportunity for
discovery, undisputed allegations that the supervisor lacked personal involvement will ultimately
suffice to dismiss that official from the case.”).
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendants’ motion for judgment on the pleadings (Dkt. No.
54) be GRANTED; and it is further respectfully
RECOMMENDED that the Complaint (Dkt. No. 1) be DISMISSED; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.5
4 	Defendant Drapikowski was added by Chief Judge Sannes solely to replace defendant
Onondaga County Jail Chief Deputy John Doe Defendant for purposes of service and joinder of
issue. (Dkt. No. 13 at 7-8.) Defendants make no motion as to Defendant Drapikowski. If the
assigned District Judge disagrees with the recommendation regarding Defendant Drapikowski,
then the undersigned recommends that the Complaint proceed against Defendant Drapikowski.
5 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report.6 Such
objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human
Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: May __, 2026
Binghamton, New York
6 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).
6
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Alston v. New York City Department of Correction, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 751205
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jesse ALSTON, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF
CORRECTION, New York State Department
of Corrections and Community Supervision,
American Airlines Group Inc., American Eagle
Airlines, New York City Health and Hospitals
Corporation, Jane Doe #1 in her official capacity,
Jane Doe #1 in her individual capacity, John Doe
#1 in his official capacity, John Doe #1 in his
official capacity, and John Does #2-5, Defendants.
24 Civ. 6444 (NRB)
|
Signed March 17, 2026
Attorneys and Law Firms
Ezra B. Glaser, Ezra B. Glaser & Associates, Brooklyn, NY,
for Plaintiff.
Doreen Dufficy, Barbiero Bisch O'Connor & Commander
LLP, Melville, NY, Cynthia Robinson, Joseph Shmulewitz,
Megan E. Verbos, Heidell Pittoni Murphy & Bach LLP, New
York, NY, Rosalie Tanis, Heidell, Pittoni, Murphy & Bach,
White Plains, NY, for Defendant New York City Department
of Correction.
Daniel Shay Kirschbaum, Office of the Attorney General,
New York, NY, for Defendant New York State Department of
Corrections and Community Supervision.
Gregory John Radomisli, Martin Clearwater & Bell LLP, New
York, NY, for Defendant New York City Health and Hospitals
Corporation.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES
DISTRICT JUDGE
*1 Plaintiff Jesse Alston (“plaintiff”) brings this action
against defendants New York City Department of Correction
(“DOC”), New York State Department of Corrections and
Community Supervision (“DOCCS”), New York City Health
and Hospitals Corporation (“HHC”), Jane Doe #1 in her
official and individual capacities, John Doe #1 in his
official and individual capacities, John Does #2-5, American
Airlines Group Inc., and American Eagle Airlines, 1 seeking
monetary damages and alleging that, while being transported
to and subsequently held in custody at Rikers Island, he
was deprived of medical treatment and accommodations in
violation of federal and state law.
Presently before the Court is DOC's motion to dismiss
plaintiff's Amended Complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. 2 DOC contends,
inter alia, that: (i) plaintiff's claim under the Americans
with Disabilities Act (“ADA”) fails because he was not
unreasonably excluded by reason of his disability; (ii)
plaintiff's constitutional claims fail because he has not
demonstrated deliberate indifference or the DOC's personal
involvement; (iii) plaintiff does not adequately plead a claim
for municipal liability pursuant to 42 U.S.C. § 1983 and
Monell; (iv) plaintiff's state law claims are time-barred; and
(v) DOC is a non-suable entity. For the reasons stated herein,
the Court grants DOC's motion to dismiss.
I. Factual Background 3
a. Plaintiff's Travel to Virginia
*2 Plaintiff is a formerly incarcerated individual who,
after being convicted of offenses including robbery, criminal
possession of a weapon, and grand larceny, was incarcerated
in New York state prisons for approximately 18 years
beginning in 1998. AC ¶ 13. On May 26, 2016, plaintiff
was released from custody and placed on parole by the
New York State Division of Parole. Id. ¶ 14. While walking
on a Brooklyn sidewalk in December 2019, plaintiff, a
diabetic, stepped on a nail, resulting in a chronic infection
that eventually required the amputation of his right foot
in March 2020. Id. ¶¶ 15, 32. The infection persisted
despite the amputation, and in July 2021, plaintiff traveled
to Charlottesville, Virginia to obtain medical treatment. Id.
¶¶ 16-17. Plaintiff was admitted to the University Medical
Center in Charlottesville on July 31, 2021, where he
underwent a second amputation, resulting in the removal of
his right leg below the knee. Id. ¶ 18.
Rather than returning to New York by the same means he had
used to travel to Virginia, plaintiff instead contacted DOCCS
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Alston v. New York City Department of Correction, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
“and/or a Magistrate Judge” in August 2021 to surrender in
connection with a parole violation arising from his failure to
notify his parole officer that he had left New York. Id. ¶ 19.
Plaintiff waived his right to contest extradition from Virginia
to New York. Id. ¶ 20. He was discharged from University
Medical Center on August 11, 2021, and detained in a Virginia
jail until August 24, 2021, when New York parole officers,
defendants Jane Doe #1 and John Doe #1, arrived to facilitate
his return to New York. Id. ¶ 21.
a. Plaintiff's Transport to New York
Jane Doe #1 and John Doe #1 accompanied plaintiff
to Richmond International Airport, where he was to be
transported to New York on a flight operated by defendants
American Airlines Group, Inc. and American Eagle Airlines.
Id. ¶ 22. Upon arrival, plaintiff was provided with, and
handcuffed to, a wheelchair. Id. ¶ 23. Because he could not
use a wheelchair inside the aircraft and was not provided
with crutches, plaintiff was required to hop down the aisle to
his seat in the last row. Id. ¶ 24. After landing at LaGuardia
Airport, plaintiff again traversed the aisle by hopping. Id. ¶
25. Plaintiff lost his balance, fell, and landed on his recently
amputated right leg. Id. He experienced sharp, internal pain
and heard a popping sound. Id. Plaintiff informed Jane Doe
#1 that he believed he was injured and requested medical
assistance. Id. ¶ 26. Jane Doe #1 stated that she did not see any
visible blood on his right leg. Id. Upon exiting the aircraft,
plaintiff was placed in a wheelchair and transported out of the
airport. Id. ¶ 27. Plaintiff, still in pain, was transferred to a
halfway house in Queens, New York for approximately four
hours before being transported to Rikers Island (“Rikers”). Id.
b. Plaintiff's Detention at Rikers Island
Upon arrival at Rikers, plaintiff complained of severe pain
stemming from his fall. Id. ¶ 28. At some point over the
next four days, plaintiff's recently amputated right leg became
increasingly red, swollen, and painful, and he requested to
be taken to the hospital. Id. ¶ 29. Defendants John Does
#2-5, HHC medical personnel serving inmates and pre-trial
detainees at Rikers, rewrapped his bandages and assured him
that no serious issue was present. Id. ¶¶ 11, 29. On August 28,
2021, plaintiff was transferred to Bellevue Hospital, one of the
hospitals within HHC's network. Id. ¶ 30. Three days later, on
August 31, 2021, he underwent a third amputation, this time
of his left leg, due to “extensive infection and gangrene.” Id.
¶¶ 30-31. The surgeon, Dr. William Johnson, allegedly stated
that plaintiff's condition worsened due to delayed medical
intervention. Id. ¶ 31.
Plaintiff remained hospitalized until September 10, 2021.
Id. ¶ 32. Diagnostic imaging revealed significant vascular
issues, including arterial occlusions that contributed to poor
healing. Id. ¶ 33. Plaintiff was treated for several conditions,
including wound infections, anemia, and “complications from
uncontrolled diabetes.” Id. ¶ 32. Laboratory testing showed
elevated white blood cell counts and high C-reactive protein
levels indicative of infection and inflammation. Id. ¶ 34.
*3 As alleged, the amputation of plaintiff's left leg was
necessitated by advanced infection and the risk of systemic
spread. Id. ¶ 35. Upon discharge, plaintiff was prescribed
medications including gabapentin, morphine, oxycodone, and
tetracycline. Id. ¶ 36. His discharge plan included follow-up
care at a vascular surgery clinic and physical therapy. Id. ¶ 37.
Plaintiff alleges ongoing medical needs, as well as continuing
pain, psychological distress, and physical limitations arising
from the loss of his left leg. Id. ¶¶ 37-38. Plaintiff advances
no allegations of any mistreatment following the surgery at
Bellevue.
II. Procedural Background
Plaintiff filed his original complaint on August 26, 2024.
ECF No. 1. HHC answered on September 24, 2024. ECF
No. 20. That same day, DOC requested an extension until
November 7, 2024, to answer or otherwise respond to
plaintiff's complaint, which the Court granted. ECF Nos.
22, 25. On September 25, 2024, DOCCS requested a pre-
motion conference for a proposed motion to dismiss plaintiff's
complaint, and DOC made a similar request on November 7,
2024. ECF Nos. 24, 29. Plaintiff responded to the requests
from DOCCS and DOC on November 13, 2024. ECF No.
30. On December 17, 2024, HHC also requested a pre-
motion conference for a proposed motion to dismiss plaintiff's
complaint. ECF No. 31.
On January 9, 2025, the Court held a teleconference with
the parties, permitting DOCCS, DOC, and HHC to make
their motions and granting plaintiff leave to file an amended
complaint by February 6, 2025. The Court also directed the
parties to propose a briefing schedule in which no more than
60 days would elapse between motions and replies.
Plaintiff filed his Amended Complaint on February 5, 2025,
asserting the following causes of action: (i) violations of
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the Americans with Disabilities Act (“ADA”); (ii) deliberate
indifference to his medical needs, in violation of the
Fourteenth Amendment's Due Process and Equal Protection
Clauses; (iii) negligent hiring and retention; (iv) violations
of his constitutional rights as guaranteed under 42 U.S.C. §
1983, including the Fourth and Fourteenth Amendments; and
(v) failure to intervene. ECF No. 32. After the parties failed
to agree on a briefing schedule, ECF Nos. 36, 37, the Court
set one on February 24, 2025. ECF No. 39. In accordance
with that schedule, HHC filed its motion to dismiss, ECF No.
42, along with an accompanying memorandum of law, ECF
No. 47 (“HHC Mot.”), and declaration in support thereof,
ECF No. 43, on March 17, 2025. DOCCS filed its motion
to dismiss, ECF No. 48, and accompanying memorandum
of law, ECF No. 49 (“DOCCS Mot.”), on March 24, 2025.
The next day, DOC filed its motion to dismiss, ECF No. 51,
and accompanying memorandum of law, ECF No. 53 (“DOC
Mot.”). Plaintiff opposed the motions filed by DOCCS and
DOC on May 6, 2025. ECF Nos. 56 (“Pl. DOCCS Opp.”), 57
(“Pl. DOC Opp.”). DOCCS and DOC filed reply memoranda
in support of their respective motions on May 22, 2025. ECF
Nos. 58 (“DOCCS Reply”), 59 (“DOC Reply”).
On December 19, 2025, after realizing that plaintiff had never
filed an opposition to HHC's motion, originally due in May
2025, the Court directed plaintiff to do so by January 6, 2026.
ECF No. 62. Plaintiff complied with that direction. ECF No.
64 (“Pl. HHC Opp.”). HHC filed its reply on January 16,
2026. ECF No. 70 (“HHC Reply”).
This opinion addresses only DOC's motion.
III. Legal Standard
a. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff
must plead sufficient factual allegations “to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While the Court accepts the truth of
the pleaded facts, 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). “Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Brown v. Daikin Am.,
Inc., 756 F.3d 219, 225 (2d Cir. 2014) (quoting Iqbal, 556 U.S.
at 678).
DISCUSSION
*4 DOC moves to dismiss plaintiff's Amended Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Before proceeding to the merits of that motion,
the Court makes two preliminary observations. First, the
Amended Complaint largely fails to plead claims on a
defendant-specific basis. In particular, the first, second,
and fourth causes of action – asserting violations of the
ADA, the Fourteenth Amendment, and 42 U.S.C. § 1983 –
are directed broadly at “Defendants” and do not reference
problematic conduct attributable to any specific defendant.
The Amended Complaint likewise does not identify any
individuals (including Doe defendants) employed by or
affiliated with DOC.
Second, as DOC correctly argues, it is well-established that
DOC is a non-suable entity. See, e.g., N.Y.C. Charter Ch.
17 § 396 (“All actions and proceedings for the recovery of
penalties for the violation of any law shall be brought in the
name of the City of New York and not in that of any agency,
except where otherwise provided by law.”); see also Williams
v. New York City, 2005 WL 1084585, at *9 (S.D.N.Y. July
15, 2005) (“[P]laintiff's claims against the DOC must fail
because the DOC is a non-suable entity under the New York
City Charter.”). Accordingly, the claims against DOC must be
dismissed. In any event, even if the Court construes plaintiff's
claims as brought against the City of New York, those claims
still fail.
DOC argues that plaintiff has failed to state: (i) a claim
under the ADA; (ii) a constitutional claim for deliberate
indifference; and (iii) a Monell claim pursuant to 42 U.S.C.
§ 1983. DOC further contends that plaintiff's state law
claims are time-barred. The Court addresses each argument,
beginning with plaintiff's constitutional claims.
I. Plaintiff's Constitutional Claims
Plaintiff's second cause of action asserts claims pursuant to
Section 1983 and alleges that defendants deprived plaintiff
of his federal constitutional rights by denying him medical
treatment. AC ¶¶ 44-49, 54-55. While plaintiff invokes
the Fourth 4 and Fourteenth Amendments in his Amended
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Complaint, id. ¶ 55, both parties address the substantive
constitutional claims as asserting deliberate indifference
to plaintiff's serious medical needs under the Fourteenth
Amendment's Due Process Clause. 5 Plaintiff's fifth cause of
action is identified as a “failure to intervene” and alleges that
defendants violated plaintiff's constitutional rights by “failing
to intercede and prevent the violation[.]” Id. ¶¶ 56-57.
a. Prerequisite of Personal
Involvement Under Section 1983
*5 A claim arising under 42 U.S.C. § 1983 must allege
the personal involvement of any individual defendant in the
purported constitutional deprivation. Raspardo v. Carlone,
770 F.3d 97, 115-16 (2d Cir. 2014) (“If a defendant has
not personally violated a plaintiff's constitutional rights, the
plaintiff cannot succeed on a § 1983 action against th[at]
defendant ... § 1983 requires individual, personalized liability
on the part of each government defendant.”); see also Grullon
v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show ... the defendant's personal involvement in the
alleged constitutional deprivation.”).
Plaintiff has failed to plausibly allege DOC's personal
involvement in any constitutional deprivation. The Amended
Complaint contains no factual allegations directed at DOC at
all. It identifies no DOC employees, by name, description,
or otherwise, and asserts no claims against any DOC-
affiliated individual. To the contrary, the Amended Complaint
specifically identifies Jane Doe #1 and John Doe #1 as state
parole officers employed by DOCCS, and John Does #2-5 as
HHC medical personnel who served prisoners and pre-trial
detainees at Rikers. AC ¶¶ 7-8, 11. Plaintiff does not identify
a single DOC correction officer or employee.
Liberally construed, plaintiff's allegations concern only
(i) medical care provided by HHC personnel at Rikers
(John Does #2-5), and (ii) accommodations allegedly not
provided by DOCCS personnel during plaintiff's transport
from Virginia to New York (Jane Doe #1 and John Doe
#1). Such allegations, entirely untethered to any conduct
by DOC personnel, are insufficient to establish personal
involvement as required under Section 1983. Dawson v. City
of New York, 2023 WL 6294256, at *2 (S.D.N.Y. Sep.
27, 2023) (dismissing claims against DOC where plaintiff
failed to identify any correction officers by name, description,
or otherwise); Roundtree v. City of New York, 2018 WL
1586473, at *6 (S.D.N.Y. Mar. 28, 2018) (dismissing claims
against correction officers where personal involvement
was unclear and plaintiff's allegations were general and
conclusory). Absent any allegations describing actions taken,
or not taken, by DOC or DOC personnel, the Court cannot
even begin to conduct a deliberate indifference analysis under
the Fourteenth Amendment.
Likewise, the Court is unable to conduct any analysis
concerning a potential failure to intervene claim. As a
threshold matter, failure to intervene is not a standalone cause
of action. Rather, it imposes liability where a government
official could have, but did not, intervene in a constitutional
violation committed by another government official in his
or her presence. Hickey v. City of New York, 2004 WL
2724079, at *16 (S.D.N.Y. Nov. 29, 2004), aff'd, 173 F. App'x
893 (2d Cir. 2006). Stated differently, failure to intervene
is a form of individual, rather than municipal, liability, and
requires a showing of personal involvement. Rindgen v. Cnty.
of Broome, 2025 WL 2772080, at *31 (N.D.N.Y. Sep. 29,
2025) (“Because failure to intervene is a form of individual,
rather than municipal, liability, plaintiff's failure to intervene
claim against the City must be dismissed.”); see also Hardy
v. Baird, 2016 WL 2745852, at *12 (S.D.N.Y. May 10, 2016)
(“Without personal involvement in the alleged violation, [a
defendant] cannot be found liable for failing to intervene.”).
Here, the Amended Complaint identifies no DOC-affiliated
individuals at all, either specifically or generally, and
therefore fails at the outset to the plead personal involvement
required for a failure to intervene claim. Nor does it contain
any non-conclusory allegation that any DOC personnel were
present during, aware of, or had a realistic opportunity to
prevent a constitutional violation but failed to do so. Absent
an underlying constitutional violation, there can be no failure
to intervene. See, e.g., Turner v. City of New York, 2019 WL
6173701, at *9 (S.D.N.Y. Nov. 19, 2019).
*6 Plaintiff's constitutional claims in the Amended
Complaint's second, fourth, and fifth causes of action, as
asserted against DOC pursuant to Section 1983, must be
dismissed.
II. Plaintiff's Monell Claim Against DOC
To the extent plaintiff attempts to assert a claim for municipal
liability against DOC under 42 U.S.C. § 1983 pursuant to
Monell v. Dep't of Social Services of the City of New
York, 436 U.S. 658 (1978), that claim also fails. To hold a
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municipality liable under Monell, a plaintiff must plead and
prove three elements: (i) an official policy or custom which
(ii) causes the plaintiff to be subjected to (iii) a denial of
a constitutional right. Zahra v. Town of Southold, 48 F.3d
674, 685 (2d Cir. 1995). In his opposition, plaintiff attempts
to amend his Monell claim as solely premised on DOC's
purported failure to adequately train its staff under City of
Canton, Ohio v. Harris, 489 U.S. 378 (1989), even though
he did not include a failure to train claim in the Amended
Complaint. See generally Pl. DOC Opp. at 9-11.
At the threshold, plaintiff's Monell claim necessarily fails
because “[i]t is well-settled that a Monell claim cannot
succeed without an underlying violation, and here there
is no constitutional violation.” Mastromonaco v. Cnty. of
Westchester, 779 F. App'x 49, 51 (2d Cir. 2019); see also
DeRaffele v. City of New Rochelle, 2017 WL 2560008, at
*6 (S.D.N.Y. 2017) (“It is well established that a Monell
claim cannot lie in the absence of an underlying constitutional
violation.”). It is similarly well-established that “Monell does
not provide a separate cause of action ... it extends liability
to a municipal organization where that organization's failure
to train, or the policies or customs that it has sanctioned,
led to an independent constitutional violation.” Segal v.
City of New York, 459 F.3d 207, 219 (2d Cir. 2006). As
discussed above, plaintiff has not alleged a constitutional
violation because he alleges no facts establishing the personal
involvement of DOC or any DOC-affiliated individual.
Without an “independent constitutional violation,” Segal, 459
F.3d at 219, plaintiff's municipal liability claim against DOC
based on a purported failure to train must be dismissed.
Even if an underlying claim survived, plaintiff has not
plausibly alleged a Monell claim against DOC under a failure-
to-train theory, necessitating dismissal on this independent
ground. Plaintiff argues for the first time in opposition that the
alleged failure to obtain emergency medical treatment reflects
a “glaring deficiency in the training of medical personnel
at Rikers.” Pl. DOC Opp. at 10. That belated assertion
is insufficient. The Amended Complaint alleges no facts
regarding any official policy, custom, or practice, and pleads
no facts concerning DOC's training, supervision, or deliberate
indifference to a known need for training. The Court need not
credit conclusory assertions, nor may plaintiff further amend
the Amended Complaint through arguments raised for the first
time through his opposition. Plaintiff's attempt to advance a
failure-to-train theory therefore cannot sustain a Monell claim
against DOC.
III. Plaintiff Fails to State a Claim Under the ADA
*7 Plaintiff's first cause of action arises under Title II of the
ADA. AC ¶¶ 39-43. Plaintiff alleges that despite being aware
of his disability, DOC failed to provide adequate medical
care at Rikers. Id. DOC maintains that claims of inadequate
medical care, without more, do not constitute viable ADA
claims. DOC Mot. at 6-7.
To state a prima facie ADA discrimination claim, a plaintiff
must allege that: (i) the plaintiff is a qualified individual with a
disability; (ii) defendant is a public entity subject to the ADA;
and (iii) the plaintiff is being excluded from participation in,
or being denied the benefits of, a service, program, or activity
offered by defendant, or was otherwise discriminated against
by reason of his or her disability. Wright v. New York State
Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016). A plaintiff
may proceed under theories of intentional discrimination
(disparate treatment), disparate impact, or failure to make
reasonable accommodation. Brooklyn Ctr. for Psychotherapy
Inc. v. Phila. Indem. Ins. Co., 955 F.3d 305, 311 (2d Cir.
2020). Under Title II, a defendant discriminates when it fails
to make a reasonable accommodation that would permit a
qualified disabled individual “to have access to and take a
meaningful part in public services.” Powell v. Nat'l Bd. Of
Med. Exam'rs, 364, F.3d 79, 85 (2d Cir. 2004). A plaintiff
must also allege that his or her mistreatment was “motivated
by either discriminatory animus or ill will due to disability.”
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d
98, 112 (2d Cir. 2001). The animus requirement reflects
the purpose of the ADA, which is to “ensure evenhanded
treatment between the disabled and the able-bodied.” Doe v.
Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).
DOC does not dispute that, by reason of his amputation,
plaintiff is a qualified individual with a disability within the
meaning of the ADA. DOC Mot. at 6. While the DOC is a non-
suable entity, the City of New York, as a local government, is
a public entity subject to suit under Title II of the ADA. See
42 U.S.C. § 12131(1)(A). The Court accordingly focuses on
the third element of plaintiff's prima facie case: whether he
was denied the opportunity to participate in or benefit from
defendant's services, programs, or activities, or was otherwise
discriminated against by defendant because of his disability.
Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
The Amended Complaint's ADA theory rests on the allegation
that DOC did not provide plaintiff with adequate medical
care. AC ¶ 43. The Amended Complaint contains no
allegations that plaintiff was excluded from, denied access
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to, or otherwise deprived of any “service[ ], program[ ],
or activit[y]” provided by DOC, as required by the ADA.
Wright, 831 F.3d at 72. Nor does plaintiff allege that he sought
to participate in any such service, program, or activity, or
that he was otherwise denied access to one by reason of
his disability. Id.; see also Henrietta D., 331 F.3d at 273-75
(requiring an ADA plaintiff to allege a denial of meaningful
access to public service). That failure alone is a fundamental
defect warranting dismissal of plaintiff's ADA claim. Burgess
v. Goord, 1999 WL 33458, at *7 (S.D.N.Y. Jan. 26, 1999)
(dismissing ADA claim where inmate did not allege that he
was prevented from using certain prison services because of
his disability).
*8 Further, a “challenge to the adequacy of services
provided, as opposed to a challenge alleging denial of
services,” as here, is not a valid claim under the ADA.
Maccharulo v. New York State Dep't of Corr. Servs., 2010
WL 2899751, at *5 (S.D.N.Y. July 21, 2010). Allegations of
inadequate medical treatment, “even when made by a person
with a serious disability,” do not state a claim under the
ADA. Elbert v. New York State Dep't of Corr. Servs., 751
F. Supp. 2d 590, 595 (S.D.N.Y. 2010) (collecting cases); see
also Freudenberg v. Cnty. of Orange, 2024 WL 4307176,
at *8 (S.D.N.Y. Sep. 25, 2024) (holding that “no matter
how they are packaged,” a plaintiff's allegations that “go
to the substance of the services provided rather than illegal
discrimination” cannot state a valid ADA claim). Here,
plaintiff does not allege that he was denied medical services
because of his disability; rather, his claim concerns only
the adequacy of the medical treatment he received. That
species of claim is not cognizable under the ADA, and to
hold otherwise would allow detainees “to litigate in federal
court virtually every medical malpractice claim arising in
a custodial setting under the auspices of the ADA.” Tardif
v. City of New York, 991 F.3d 394, 405 (2d Cir. 2021).
Accordingly, plaintiff's ADA claim against DOC is dismissed.
IV. Plaintiff's Negligent Hiring and Retention Claim Is
Time-Barred
Plaintiff's third cause of action asserts that DOC was negligent
in retaining and hiring employees who were unfit for their
positions, leading to plaintiff's injuries. AC ¶¶ 50-53. DOC
maintains that this claim is subject to, and barred under,
the one-year-and-90-day statute of limitations applicable to
common law claims asserted against municipalities. DOC
Mot. at 17-18. Specifically, the conduct underlying plaintiff's
allegations against DOC occurred in August 2021, but
plaintiff did not commence the instant action until 2024. See
AC ¶¶ 28-31; ECF No. 1. DOC contends that plaintiff failed to
(i) file a notice of claim within 90 days of the claim's accrual,
and (ii) commence this action within one year and 90 days. Id.
Plaintiff responds that his negligent hiring and retention claim
is “an aspect of” his Section 1983 claims and is therefore
subject to a three-year statute of limitations. Pl. DOC Opp.
at 12.
To the extent that plaintiff's negligent hiring and retention
claim is duplicative of his Monell claim, it is dismissed
for the same reasons as set forth above, supra Section II.
Outside the context of a Monell claim premised on a policy of
negligent hiring or retention, “a general claim of negligence
is not actionable under Section 1983.” D.J. by Comfort v.
Corning-Painted Post Area Sch. Dist., 722 F. Supp. 3d 148,
166 (W.D.N.Y. 2024); see also Gibson v. Pasta City, 2023 WL
8188431, at *3 (S.D.N.Y. Nov. 27, 2023) (“[N]egligence ...
is not a viable basis for a claim of federal constitutional
violation under Section 1983.”). Accordingly, to the extent
that plaintiff's negligent hiring and retention claim arises
under state law, it is barred by New York's one-year-and-90-
day statute of limitations for claims against municipalities.
N.Y. Gen. Mun. Law § 50-i (McKinney). Plaintiff's negligent
hiring and retention claim is therefore dismissed.
CONCLUSION
For the foregoing reasons, DOC's motion to dismiss plaintiff's
claims is granted. The Clerk of Court is respectfully directed
to terminate the motion pending at ECF No. 51. Further, given
that the motions pending at ECF Nos. 42 and 48 will also
be terminated, and given that defendants American Airlines
Group Inc. and American Eagle Airlines are dismissed, the
Clerk of Court is also directed to close this case.
All Citations
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Footnotes
1 During an initial teleconference with the parties, the Court sought an explanation as to why American Airlines
Group Inc. and American Eagle Airlines had not appeared in this action. At the Court's request, plaintiff's
counsel represented that he would follow up. The Court acknowledges that plaintiff's counsel filed an affidavit
of service from a process server in September 2024 which neither contained the title of the individual served
nor a description of the individual's job responsibilities. ECF No. 15. However, the absence of any appearance
by either American Airlines Group Inc. or American Eagle Airlines raises questions as to whether the process
server served an individual authorized to accept service on behalf of those entities. In any event, there is no
indication that plaintiff's counsel pursued his claims against those defendants. For example, plaintiff never
sought a default in the years following the filing of this action in August 2024. Accordingly, American Airlines
Group Inc. and American Eagle Airlines are dismissed, as any further attempt to serve them would be untimely
given that more than three years have passed since the events underlying this action occurred.
2 DOCCS and HHC each moved to dismiss plaintiff's Amended Complaint. ECF Nos. 42, 48. Separate opinions,
also filed today by this Court, address the individual motions filed by DOCCS and HHC.
3 The following facts are drawn from the Amended Complaint, ECF No. 32 (“AC”), and are assumed true for
purposes of resolving the instant motion. Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017).
4 The Amended Complaint includes a lone reference to the Fourth Amendment. AC ¶ 55 (“[Defendants’] actions
violated Plaintiff's due process rights and constitutional rights as guaranteed under 42 U.S.C. § 1983 and
the United States Constitution, including the Fourth and Fourteenth Amendments.”). The Fourth Amendment
is irrelevant to this action. Plaintiff has cited no facts that pertain in any way to “unreasonable searches
and seizures,” and the Fourth Amendment is not cited to or referenced in any of plaintiff's moving papers.
The Court accordingly assumes that this reference was in error and that plaintiff intended to only cite the
Fourteenth Amendment.
5 Deliberate indifference claims brought by pretrial detainees are governed by the Due Process Clause of the
Fourteenth Amendment, while the Cruel and Unusual Punishments Clause of the Eighth Amendment governs
similar claims brought by convicted prisoners. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Haynes v.
City of New York, 2020 WL 4926178, at *6 (S.D.N.Y. Aug. 20, 2020). While the parties assume that plaintiff's
claims arise under the Fourteenth Amendment because his detention at Rikers was in connection with an
alleged parole violation, AC ¶¶ 14, 19, the Court notes that whether an individual detained for a suspected
parole violation is considered a prisoner or pretrial detainee is an “unresolved and difficult question.” Harry
v. Suarez, 2012 WL 2053533, at *2 n.3 (S.D.N.Y. June 4, 2012); see also Reinoso-Delacruz v. Ruggerio,
2019 WL 2062434, at *2 (D. Conn. May 9, 2019) (“This Circuit has not fully addressed whether a probationer
awaiting disposition of his revocation proceeding is considered a prisoner or a pretrial detainee for purposes of
the Eighth Amendment.”). That distinction is irrelevant here, however, as plaintiff does not assert a cognizable
claim under either standard.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Bess v. City of New York, Not Reported in F.Supp.2d (2013)
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2013 WL 1164919
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Curtis BESS, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendant.
No. 11 Civ. 7604(TPG).
|
March 19, 2013.
OPINION
THOMAS P. GRIESA, District Judge.
*1 Curtis Bess, pro se, brings this action under 42 U.S.C.
§ 1983 alleging that defendants, the City of New York and
Corizon Health Services, failed to provide him adequate
medical care during his detention at Otis Bantum Correctional
Center on Rikers Island. Bess originally sued the New York
City Department of Corrections and Prison Health Services
but the court subsequently substituted the City of New York
as a party for NYCDOC, and Prison Health Services has
subsequently changed its name to Corizon Health Services.
Defendants move to dismiss the complaint. The motion is
granted.
The Complaint
Bess alleges that, on an undisclosed date, he was taken into
custody by the police, presumably the New York Police
Department, and placed in the backseat of a police vehicle.
The police vehicle he was riding in, however, was involved in
an accident with a taxi cab and, therefore, he was transferred
to another vehicle which took him to the police station. Bess
alleges that, throughout this process, he made several requests
for medical attention, all of which were ignored.
Eventually, for reasons Bess does not explain, he became an
inmate at Otis Bantum Correctional Center under the care of
NYCDOC. Bess alleges that, while in prison, he continued
to seek medical care. But he alleges that he was repeatedly
denied care and at one point was told “that's not our problem.
You should've fixed the problem when you [were] in police
custody.” It appears that Bess was seen by a doctor at least
once as evidenced by the “request for a second opinion”
form attached to his complaint and his statement on that form
that the treatment he received up to that point had not been
medically appropriate.
Bess alleges that, due to the automobile accident and lack
of subsequent medical care, he suffers from severe back and
neck pain as well as nausea, headaches, and sleeplessness. He
seeks damages of $3,000,000.
Discussion
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
a complaint must plead sufficient facts to state a claim to
relief that is plausible on its face. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662,
(2009). In deciding such a motion, a court must accept as true
the facts alleged in the complaint, but it should not assume
the truth of its legal conclusions. Iqbal, 556 U.S. at 678–
79. A court must also draw all reasonable inferences in the
plaintiffs favor, and it may consider documents attached to
the complaint, incorporated by reference into the complaint,
or known to and relied on by the plaintiff in bringing the
suit. ATSI Commc'ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87,
98 (2d Cir.2007). A complaint filed by a pro se plaintiff is
to be construed liberally and, therefore, interpreted to raise
the strongest arguments that it suggests. See Harris v. Mills,
572 F.3d 66, 72 (2d Cir.2009); Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir.2006).
*2 It is well established that a municipality may not be sued
under 42 U.S.C. § 1983 for acts of its employees unless a
plaintiff can show that these actions were caused by an official
policy or custom of the municipality. Monell v. Dep't of Soc.
Services of City of New York, 436 U.S. 658 (1978). And, in
keeping with the pleading requirements imposed by Twombly
and Iqbal, a plaintiff must give a factual description of such a
policy, not just bald allegations that such a thing existed. See
Davis v. City of New York, 07 Civ. 1395, 2008 WL 2511734
(S.D.N.Y. June 19, 2008).
Here, plaintiff brings claims against a municipality, the City
of New York, and a private entity performing a municipal
function, Corizon. Despite the fact that it is a private entity,
Corizon enjoys the benefit of the Monell requirements for
the same reason it may be named as a defendant in a § 1983
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suit. In providing medical care in prisons, Corizon performs
a role traditionally within the exclusive prerogative of the
state and therefore, in this context, is the functional equivalent
of the municipality. See Buckner v. Toro, 116 F.3d 450, 452
(11th Cir.1997); Conner v. Donnelly, 42 F.3d 220, 224 (4th
Cir.1994); Iskander v. Vill. of Forest Park, 690 F.2d 126, 128
(7th Cir.1982); Mercado v. City of New York, 8 Civ. 2855,
2011 WL 6057839 at *7 n. 10 (S.D.N.Y. Dec. 5, 2011).
Thus, to bring a § 1983 action against either the City of
New York or Corizon, Bess must plausibly allege that the
constitutional violations he alleges were caused by official
policies or customs of those entities. But he has not done so.
Bess's only allegation that speaks to defendants' liability for
the actions of their employees is that “NYCDOC is directly
responsible for my well-being and healthcare while in their
custody. They employ the services of [Corizon] and all of
its staff.” But this contains no allegation at all that these
employees were acting pursuant to anything like an official
policy. Therefore, the allegations in Bess's complaint are not
adequate to support an action against the City of New York
or Corizon under § 1983.
Conclusion
Defendants' motion to dismiss is granted and the complaint is
therefore dismissed.
So ordered.
All Citations
Not Reported in F.Supp.2d, 2013 WL 1164919
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Davis v. City of New York, Not Reported in F.Supp.2d (2008)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 2511734
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Gregory DAVIS, Plaintiff,
v.
CITY OF NEW YORK, New York City
Police Department, Police Officer George
Lopez Police Officer “John Doe”, Defendants.
No. 07 Civ. 1395(RPP).
|
June 19, 2008.
Attorneys and Law Firms
Mark Lubelsky & Associates, Attn: Mark L. Lubelsky, New
York, NY, for Plaintiff.
Office of the Corporation Counsel, New York City Law Dep't,
Attn: Sabrina Melissa Tann, New York, NY, for Defendants.
OPINION AND ORDER
ROBERT P. PATTERSON, JR., District Judge.
*1 Plaintiff Gregory Davis filed a complaint against
Defendants City of New York, New York City Police
Department (“NYPD”), Police Officer George Lopez and
Police Officer “John Doe” alleging a cause of action under
42 U.S.C. § 1983. Defendants City of New York and NYPD
move to dismiss the complaint in its entirety pursuant to
Rule 56(c) of the Federal Rules of Civil Procedure. For
the following reasons, Defendants' motion for summary
judgment (Doc. No. 12) is granted.
BACKGROUND
On February 26, 2007, Plaintiff initiated this action by filing
the complaint with the Court. (Defs.' Rule 56.1 Stmt. ¶ 4;
Pl.'s Rule 56.1 Stmt. ¶ 4.) The complaint alleges that on or
about March 16, 2004, Police Officers George Lopez and
“John Doe” used excessive force while arresting Plaintiff
near the intersection of Broadway and 136th Street for
minor drug possession, caused him physical injury, and
subsequently denied him medical treatment in violation of
Plaintiff's constitutional rights. (Compl. ¶¶ 15-34; Defs.' Rule
56.1 Stmt. ¶ 2; Pl.'s Rule 56.1 Stmt. ¶ 2.) The complaint also
alleges that the City of New York failed to properly train and
supervise its officers, resulting in the deprivation of Plaintiff s
constitutional rights. (Compl. ¶¶ 65-66; Defs.' Rule 56.1 Stmt.
¶ 3; Pl.'s Rule 56.1 Stmt. ¶ 3.
By letter dated April 25, 2007 and copied to Plaintiff's
counsel, Sabrina Tann, Esq., counsel for Defendant City of
New York, requested an adjournment of the initial pretrial
conference scheduled for the following day on the grounds
that “none of the named defendants in this action have been
served with a copy of the summons and complaint.” (Tann
Decl., Ex. C; Defs.' Rule 56.1 Stmt. ¶ 6.) On May 10, 2007,
Plaintiff served Corporation Counsel of the City of New York,
located at 100 Church Street, New York, New York 10007,
with two copies of the summons and complaint. (Tann Decl.
¶ 7; Defs.' Rule 56.1 Stmt. ¶ 7; Pl.'s Rule 56.1 Stmt. ¶ 7.)
Each of the two summons, dated February 26, 2007, were
addressed to “Police Officer George Lopez,” “Police Officer
John Doe,” “City of New York,” and “The New York City
Police Department” at “100 Church Street, Fourth Floor, New
York, New York 10026.” 1 (Tann Decl., Ex. D; id. ¶ 8; Defs.'
Rule 56.1 Stmt ¶ 8; Pl.'s Rule 56.1 Stmt. f 8.) Plaintiff never
filed any affidavits of service of the summons and complaint
with the Court. (Tann Decl. ¶ 11; Defs.' Rule 56.1 Stmt. ¶ 10;
Pl.'s Rule 56.1 Stmt. ¶ 10.)
On June 12, 2007, Defendants City of New York and NYPD
filed their answer to the complaint. (Tann Decl. ¶ 12; Defs.'
Rule 56.1 Stmt. ¶ 11; Pl.'s Rule 56.1 Stmt. ¶ 11.) In their
answer, Defendants City of New York and NYPD stated
“[u]pon information and belief, the individual identified in the
caption of the complaint as George Lopez, has not been served
with a copy of the Summons and Complaint or requested
representation from the office of Corporation Counsel.” (Tann
Decl., Ex. E; Defs.' Rule 56.1 Stmt. ¶ 12; Pl.'s Rule 56.1 Stmt.
¶ 12.)
*2 On September 11, 2007, at an initial conference with
both counsel present before the Court, Defendants' counsel
stated that service of process had not been effected on the
named defendant George Lopez. (Tann Decl. ¶ 13; Defs.'
Rule 56.1 Stmt. ¶ 13.) At that conference, the Court set a
briefing schedule for Defendants' proposed motion to dismiss
the complaint pursuant to Federal Rule of Civil Procedure
12(c). (Tann Decl. ¶ 15; Defs.' Rule 56.1 Stmt. ¶ 15; Pl.s'
Rule 56.1 Stmt. ¶ 15.) By letter dated September 26, 2007,
Defendants withdrew their request to submit the motion to
dismiss, and by order dated September 26, 2007, the Court
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directed the parties to complete discovery by January 1, 2008
and submit a proposed Pre-Trial order by January 18, 2008.
(Tann Decl., Ex. F; Defs.' Rule 56.1 Stmt. ¶¶ 16-17; Pl's Rule
56.1 Stmt. ¶¶ 16-17.)
Following the Court's September 27, 2007 Order, Plaintiff
failed to seek leave from the Court for a further period in
which to serve Defendant George Lopez with process. (Tann
Decl. ¶ 18; Defs.' Rule 56.1 Stmt. ¶ 18.) Ms. Tann, counsel for
Defendants City of New York and NYPD, has not contacted
Mr. Lopez with respect to the claims asserted against him
in the complaint, nor has Mr. Lopez contacted the office of
Corporation Counsel to request legal representation in this
matter. (Tann Decl. ¶ 19; Defs.' Rule 56.1 Stmt. ¶ 19.) Upon
information and belief of Defendants, to date, George Lopez
has had no notice of this action. (Tann Decl. ¶ 20; Defs.' Rule
56.1 Stmt. ¶ 20.)
On November 19, 2007, Plaintiff served the City of New
York with a first demand for production of documents and
first set of interrogatories. (Pl.s' Affirmation, Ex. C.) On
December 12, 2007, Plaintiff's counsel sought a two-month
stay of discovery on the grounds that counsel, despite ardent
efforts, was unable to contact Plaintiff to assist him with
the prosecution of this matter. (Tann Decl., Ex. G; Defs.'
Rule 56.1 Stmt. ¶ 23; Pl's Rule 56.1 Stmt. ¶ 23.) By letter
dated December 18, 2007, Defendants opposed Plaintiff's
application for a stay and sought leave to file a motion
pursuant to Federal Rule of Civil Procedure 56. (Tann Decl.,
Ex. H; Defs.' Rule 56.1 Stmt. ¶ 24; Pl.'s Rule 56.1 Stmt. ¶
24.) By order dated December 20, 2007, the Court granted
Plaintiff's application in part and stayed discovery until
February 12, 2008. (Pl.s' Affirmation, Ex. B; Pl.s' Rule 56.1
Stmt. ¶ 25.)
Defendants City of New York and NYPD filed the instant
motion for summary judgment on January 18, 2008. At the
time the motion was filed, Plaintiff had not sought to depose
any witnesses in this matter or identified “Police Officer John
Doe.” (Tann Decl. ¶¶ 21, 22; Defs.' Rule 56.1 Stmt. ¶ 21, 22;
Pl.s' Rule 56.1 Stmt. ¶ 21, 22.) Nor had Defendants responded
to Plaintiffs' document demands and interrogatories. (Pl.s'
Rule 56.1 Stmt. ¶ 21 .)
Defendants City of New York and NYPD move for summary
judgment on the grounds that the NYPD is not a suable
entity and that the complaint fails to state a claim against the
City of New York for failure to properly train and supervise
the defendant officers. Defendants also argue that the claims
against Officers Lopez and “John Doe” should be dismissed
pursuant to Federal Rule of Civil Procedure 4(m) because
Plaintiff failed properly to serve Officer Lopez within 120
days of filing this action despite having notice that his service
was defective and also failed to apply for an order extending
the 120-day period.
DISCUSSION
I. Summary Judgment Standard
*3 A court may grant summary judgment only where
the “pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). When considering a motion for summary
judgment, the court must view the facts in the light most
favorable to the nonmoving party and draw all reasonable
inferences in its favor. Anderson v. Liberty Lobby, 477 U.S.
242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Braham v.
Clancy, 425 F.3d 177, 181 (2d Cir.2005). Summary judgment
is inappropriate if, after resolving all ambiguities and drawing
all inferences against the moving party, there remains a
dispute about a material fact “such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248.
II. Plaintiff's Claim against Police Officers George
Lopez and “John Doe”
Defendants move for summary judgment in favor of the
individual police officers against whom Plaintiff alleges §
1983 violations on the grounds that they were never served
with the summons and complaint. Defendants argue that the
claim against the defendant officers should be dismissed
with prejudice because Plaintiff cannot show good cause for
his failure to timely serve, the statute of limitations ran on
Plaintiff's claim on March 16, 2007, and Officer Lopez would
be prejudiced by an extension for service at this time.
A. Whether service was effected on the defendant
officers
Federal Rule of Civil Procedure 4(e)(1) provides that service
of process is effected on an individual in one of three ways:
(1) pursuant to the law of the state in which the district court is
located, or in which the service is effected; (2) by delivering
a copy of the summons and complaint to the individual
personally, or by leaving copies at the individual's “dwelling
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house or usual place of abode with some person of suitable
age and discretion then residing therein”; or (3) by delivering
a copy of the summons and complaint to an agent authorized
by law to receive service of process. Under New York law,
service can be made by delivering the summons “to a person
of suitable age and discretion at the actual place of business ...
and by either mailing the summons to the person to be served
at his or her last known residence or by mailing the summons
by first class mail to the person to be served at his or her actual
place of business.” N.Y. C.P.L.R. 308 (McKinney 2007).
Under this section, “ ‘actual place of business' shall include
any location that the defendant, through regular solicitation
or advertisement, has held out as its place of business.” Id.
Plaintiff argues that he complied with New York law by
serving Police Officers George Lopez and “John Doe” at
the office of Corporation Counsel. Under C.P.L.R. § 311,
Corporation Counsel is an authorized agent permitted to
accept service on behalf of the City of New York. N.Y.
C.P.L.R. § 311. Plaintiff contends because the police officers
are employees of the City of New York, service on the City
is proper. Section 311 of the C.P.L.R., however, pertains
to “personal service upon a corporation or governmental
subdivision” and does not authorize the City of New York
to accept service on behalf of individuals. See id. Nor
is the office of Corporation Counsel the “actual place of
business” for Officer Lopez or the unnamed officer “John
Doe,” under C.P.L.R. § 308. The police precinct to which
they report and where they conduct their business is their
actual place of business. Moreover, Plaintiff made no effort
to serve the officers personally or at their actual residences.
Under these circumstances, service on the City of New York
constitutes improper service on the defendant police officers.
See Moultry v. City of Poughkeepsie, 154 F.Supp.2d 809, 811
(S.D.N.Y.2001) (holding that service on the police officers
who allegedly violated plaintiff's civil rights was not proper
where the summons and complaint were served on an official
in a city office never frequented by the officers, and no effort
was made to serve them personally or leave papers at their
residences).
B. Whether an extension for service should be granted
*4 Under Rule 4(m) of the Federal Rules of Civil Procedure,
a plaintiff must properly serve the defendants within 120 days
of filing of the complaint. Fed.R.Civ.P. 4(m). If a plaintiff
fails to timely serve, the district court must either “dismiss
the action without prejudice as to that defendant or direct that
service is effected within a specified time.” Id. The district
court is required to grant an appropriate extension of time to
effect service if the plaintiff shows good cause for failure to
serve and has discretion to grant such an extension even in the
absence of good cause. Id.; Zapata v. City of New York, 502
F.3d 192, 197 (2d Cir.2007) (holding that under Rule 4(m)
“district courts have discretion to grant extensions even in the
absence of good cause” but are not required to do so). The
policy behind Rule 4(m) and the statute of limitations is to
promote the “diligent prosecution of civil cases.” Nat'l Union
Fire Ins. Co. v. Sun, No. 93 Civ. 7170, 1994 U.S. Dist. LEXIS
11934, at *7 (S.D.N.Y. Aug. 18, 1994); accord Gordon v.
Hunt, 116 F.R.D. 313, 320 (S.D.N.Y.1987) (noting that the
policy behind Rule 4(m) and the statute of limitations is “to
encourage prompt movement of civil actions in the federal
courts”).
In this case, Plaintiff cannot show good cause for failure
to serve the defendant police officers within the 120-day
period. Plaintiff and Plaintiff's counsel were put on notice
on June 8, 2007, when Defendants filed their answer, and
again on September 11, 2007, at the initial pretrial conference
before the Court, that the defendant police officers had not
been served. (Tann Decl. ¶¶ 12, 13.) Despite this notice,
Plaintiff took no steps to serve Officer Lopez, request an
extension of the 120-day period (Tann Decl. ¶ 18), or request
assistance in locating the officers. An attorney's inadvertence,
neglect, or ignorance of the rules does not constitute good
cause for untimely service. McKibben v. Credit Lyonnais,
No. 98 Civ. 3358, 1999 U.S. Dist. 12310, at *9 (S.D.N.Y.
Aug. 9, 1999) (citing Klein v. Williams, 144 F.R.D. 16,
19-20 (E.D.N.Y.1992)). Under the circumstances in this case,
Plaintiff fails to establish good cause for untimely service.
See Bogle-Assegai v. Connecticut, 470 F.3d 498, 508 (2d
Cir.2006) (holding that the plaintiff failed to establish good
cause where she knew that defendants thought service was
improper and made no effort to remedy this defect or ask the
court to extend her time to effect service).
Nor is this a case where an extension should be granted in
the Court's discretion despite the absence of good cause. In
considering whether or not to grant an extension absent a
showing of good cause, the Court must weigh the impact a
dismissal or extension would have on the parties. Zapata,
502 F.3d at 197. Dismissing the complaint without prejudice
in this case would have serious consequences for Plaintiff
because the statute of limitations would bar him from re-
filing. On the other hand, these consequences are attributable
in large part to Plaintiff and his counsel's neglect and failure to
prosecute. Plaintiff's counsel filed the complaint on February
16, 2007, only three weeks shy of the expiration of the three-
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year statute of limitations on his § 1983 claims. Even after
being notified that the defendant officers had not been served,
Plaintiff's counsel failed to make any further attempts to
effect service or seek an extension of the 120-day period.
Importantly, Plaintiff's counsel did not inform the Court that
he had lost contact with Plaintiff until his December 12,
2007 letter requesting a stay of discovery, which the Court
had ordered completed by January 1, 2008. In his letter,
Plaintiff's counsel stated that he had “recently attempted to
contact Mr. Davis on numerous occasions in order to respond
to defendant's [discovery] demands” but had been unable to
reach him by either phone or mail. (PL's Affirmation, Ex.
B.) Although the Court granted counsel's request for a 60-
day stay of discovery to “provide plaintiff the needed time to
effectuate contact” (id.), counsel has not informed the Court
that any contact has been restored. Furthermore, more than
four years have passed since the alleged incident took place.
Officer Lopez never received notice of this litigation, as he
was never served and no depositions were ever taken to make
him aware of the case against him. Were Plaintiff granted
leave to effect service at this point, Officer Lopez would suffer
considerable prejudice in defending against the case, as the
facts would have certainly faded from memory. Under these
circumstances, the Court declines to exercise its discretion to
grant an extension for service under Zapata.
III. Plaintiff's Claim against the City of New York
*5 Plaintiff alleges that the City of New York failed
to properly train and supervise the police officers who
deprived Plaintiff of his constitutional rights. (Compl.¶¶
65-66.) Defendants seek to dismiss Plaintiff's claim against
the City of New York on the grounds that the complaint fails
adequately to state a claim for municipal liability and that,
even if the claim is adequately plead, Plaintiff fails to proffer
any evidentiary support for the claim.
A municipality may not be held liable under 42 U.S.C. §
1983 for the conduct of its employees based on a theory
of respondeat superior. Monell v. Dep't of Social Servs.,
436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Municipal liability attaches only if the plaintiff can show that
a municipal policy or custom caused the deprivation of his
constitutional rights. Id. at 690-91. Where a plaintiff alleges
municipal liability based on a failure to train and supervise,
“the inadequacy of police training may serve as the basis for
§ 1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom
the police come into contact,” and therefore amounts to an
actionable city “policy or custom.” City of Canton v. Harris,
489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
In Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d
517 (1993), the Supreme Court held that district courts may
not apply a “heightened pleading standard” beyond what is
generally required by Federal Rule of Civil Procedure 8(a)
to Section 1983 complaints alleging municipal liability. Id.
at 164. Leatherman appears to reject the pleading standard
applied by the Second Circuit in Dwares v. City of New
York, 985 F.2d 94, 100 (2d Cir.1993), which held that the
allegation of a single incident involving only actors below
the policymaking level does not suffice to state a claim
of municipal liability under Section 1983. See Simpkins v.
Bellevue Hosp., 832 F.Supp. 69, 73 n. 3 (S.D.N.Y.1993);
see also Cooper v. Metro. Transp. Auth., 2006 U.S. Dist.
LEXIS 47970, at *9-10 (S.D.N.Y. July 13, 2006). Since
Leatherman. courts in this district have denied motions
to dismiss complaints alleging that an individual officer's
conduct conformed to official policy or custom or that an
individual officer was empowered to make policy decisions
on behalf of the municipality. See, e.g., Cooper, 2006 U.S.
Dist. LEXIS 47970, at *9-10 (holding that “[u]nder the
Leatherman rule ... Plaintiff's bare allegations that Harrington
was a “policy maker” and that both Harrington and Paul were
empowered to make policy decisions on behalf of Metro-
North/MTA are sufficient” to withstand a motion to dismiss);
Lucas v. New York City, 1995 U.S. Dist. LEXIS 17017, at
*7, 1995 WL 675477 (S.D.N.Y. Nov. 14, 1995) (denying the
motion to dismiss plaintiff's § 1983 claim under Leatherman
to the extent plaintiff alleges he was arrested pursuant to the
long established policy of racially selective law enforcement
attributable to the City). Plaintiff, represented by counsel
in this case, fails adequately to plead a claim of municipal
liability against the City of New York. Even the usual pleading
standard of Rule 8(a) still requires more than conclusory
allegations. Bell Atlantic v. Twombly, --- U.S. ----, ----, 127
S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (stating that
Rule 8(a) “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do”); see also Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (stating that on a motion
to dismiss, a district court is “not bound to accept as true a
legal conclusion couched as a factual allegation”). Plaintiff
makes only the conclusory allegation that the City of New
York “failed to properly train the person(s) who deprived
[Plaintiff] of his civil rights” and “failed to properly supervise
the person(s) who deprived [Plaintiff] of his civil rights .”
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*6 Such conclusory allegations that a municipality failed
to train and supervise its employees is insufficient to
state a Monell claim. See McAllister v. New York City
Police Dep't, 49 F.Supp.2d 688, 705 (S.D.N.Y.1999)
(“Conclusory allegations of a municipality's pattern or policy
of unconstitutional behavior are insufficient to establish
a Monell claim, absent evidence to support such an
allegation.”); Oparaji v. City of New York, 1997 U.S. Dist.
LEXIS 23686, *10, 1997 WL 139160 (E.D.N.Y. Mar. 21,
1997) (dismissing a Monell claim for failure to state a claim
where plaintiff alleged only that the City had a policy, practice
or custom of failing to adequately screen, hire and train police
officers which resulted in the violation of his constitutional
rights).
Plaintiff argues that summary judgment is inappropriate at
this stage because no discovery has taken place. The Court
granted Plaintiff's request for a stay of discovery from
December 20, 2007 to February 12, 2008, and prior to the
stay, Defendants had not responded to Plaintiff's document
demands and interrogatories served on November 19, 2007.
Generally, before summary judgment may be granted, the
nonmoving party “must have had the opportunity to discover
information that is essential to his opposition to the motion ...
[and] only in the rarest of cases may summary judgment be
granted against a plaintiff who has not been afforded the
opportunity to conduct discovery.” Hellstrom v. U.S. Dep't
of Veteran Affairs, 201 F.3d 94, 97 (2d Cir.2000) (internal
quotations omitted). If, however, the allegations of a plaintiff's
Section 1983 claim are insufficient as a matter of law or could
not be aided by discovery, a district court may grant summary
judgment even without discovery. M.B. v. Reish, 119 F.3d 230,
232 (2d Cir.1997) (concluding that the district court's denial of
discovery was within its discretion because plaintiff's claims
were insufficient as a matter of law and plaintiff failed to
present a credible basis to suggest discovery would produce
favorable evidence). In rejecting the heightened pleading
standard for Section 1983 claims in Leatherman, the Supreme
Court noted that “federal courts and litigants must rely on
summary judgment and control of discovery to weed out
unmeritorious claims sooner rather than later.” Leatherman,
507 U.S. at 168-169.
In this case, Plaintiff has not made any showing that further
discovery is likely to lead to evidence supporting Plaintiff's
claim against the City of New York. Moreover, because
Plaintiff's complaint fails to state a claim of municipal liability
upon which relief may be granted, Plaintiff's claim against the
City of New York is insufficient as matter of law. On these
grounds, Defendant City of New York's motion for summary
judgment is granted.
IV. Plaintiff's Claim against NYPD
It is well settled that NYPD, as an agency of the City of New
York, lacks independent legal existence and is therefore not
a suable entity. Jenkins v. City of New York, 478 F.3d 76,
93 n. 19 (2d Cir.2007); see also N.Y.C. Charter § 396 (“All
actions and proceedings for the recovery of penalties for the
violation of any law shall be brought in the name of the city
of New York and not in that of any agency, except where
otherwise provided by law.”). In his memorandum of law
in opposition to Defendants' motion for summary judgment,
Plaintiff concedes that NYPD is a non-suable entity and
discontinues his claim against NYPD. Accordingly, the claim
against NYPD is dismissed.
CONCLUSION
*7 For the foregoing reasons, Defendants' motion for
summary judgment (Doc. No. 12) is granted. The claims
against Defendant Police Officers George Lopez and
“John Doe” are dismissed for non-service, the claims
against Defendant City of New York for failure to state a
claim and insufficiency as a matter of law, and the claims
against NYPD because it is not a suable entity.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2008 WL 2511734
Footnotes
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1 Plaintiff acknowledges that the zip code was written as “10026” in error and that the correct zip code is 10007.
(Tann Decl. at 2 n. 1.)
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00362-BKS-ML Document 58 Filed 05/06/26 Page 26 of 102

Fleming v. City of New York, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 4392522
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Patricia Scott FLEMING, as Administratrix of the
Estate of Patrick Fleming and Individually, Plaintiff,
v.
The CITY OF NEW YORK, New York City Department
of Corrections, Corizon Health, Inc., Physician Affiliate
Group of New York, Elmhurst Hospital Center,
Bellevue Hospital Center, Richard Holman, Nicole
Lanatra, Mary Lynn Nierodzik, Roopalekha Shenoy,
Aaron Stern, Jennifer Wu, Captain Desmond Blake,
Captain Johanne Saint-fleur, Correctional Officer
Timothy Owens, Correctional Officer Fred Rolle,
Correctional Officer Jorel Ward, Correctional Officer
David Whitaker, Correctional Officer John Wisti,
Correctional Officer Curlee Williams, John Does
1-38, Endo International PLC, Endo Health Solutions,
Inc., Maung Maungoo, M.D., M.D. Joon Park, P.A.
Christopher Larosa, Nurse Mahmood, Commissioner
Joseph Ponte, Correctional Officer Reyes, M.D.
Myat Win, M.D. Antonio Martinez, and New York
City Health and Hospitals Corporation, Defendants.
18 Civ. 4866 (GBD)
|
Signed 08/27/2019
Attorneys and Law Firms
Eden P. Quainton, Quainton Law, PLLC, New York, NY, for
Plaintiff.
Susan P. Scharfstein, New York City Law Department,
New York, NY, for Defendants City of New York,
Captain Desmond Blake, Correctional Officer Fred Rolle,
Correctional Officer Jorel Ward, Correctional Officer John
Wisti, Correctional Officer Curlee Williams, Commissioner
Joseph Ponte.
Susan P. Scharfstein, New York City Law Department, New
York, NY, for Defendant New York City Department of
Corrections.
Ana Maria Vizzo, Doreen Dufficy, Heidell, Pittoni, Murphy
& Bach, LLP, Daryl Paxson, Lord Day Lord, White Plains,
NY, for Defendants Corizon Health, Inc., Physician Affiliate
Group of New York, Richard Holman, Nicole Lanatra,
Mary Lynn Nierodzik, Roopalekha Shenoy, Aaron Stern,
Jennifer Wu, Maung Maungoo, M.D., Joon Park, M.D.,
P.A. Christopher Larosa, Nurse Mahmood, Myat Win,
M.D., Antonio Martinez, M.D., New York City Health And
Hospitals Corporation.
Daryl Paxson, Lord Day Lord, White Plains, NY, for
Defendants Elmhurst Hospital Center, Bellevue Hospital
Center.
Angela Rosalee Vicari, Arnold & Porter Kaye Scholer LLP,
New York, NY, for Defendant Endo Health Solutions, Inc.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, United States District Judge:
*1 Plaintiff Patricia Scott Fleming brings this action alleging
that her son Patrick Fleming was subject to assault and
medical malpractice during his pretrial detention at Rikers
Island Correctional Center (“Rikers”) from October 2012
until his release on June 4, 2017. (First Am. Compl.
(“FAC”), ECF No. 6.) Specifically, she brings claims under
the Constitution, enforceable under 42 U.S.C. § 1983; the
Americans with Disabilities Act (the “ADA”), 42 U.S.C.
§§ 12131–12165; and the Rehabilitation Act (the “RA”),
29 U.S.C. § 794a. Plaintiff raises nineteen claims including
twelve state law causes of action. 1
Defendants moved to dismiss Plaintiff's first amended
complaint for failure to state a claim pursuant to Rule 12(b)
(6). 2 (Notice of Mot. (“Med. Defs.' Mot.”), ECF No. 72;
Notice of Mot. (“City Defs.' Mot.”), ECF No. 85.)
The Medical Defendants' motion to dismiss is GRANTED
as to all of Plaintiff's claims under Count Two (ADA
claims), Count Three (RA claims), Count Nine (negligent
hiring and retention), Counts Eleven and Eighteen (§ 1983
Monell claims), Count Seventeen (§ 1983 claim for loss
of familial relationship), and Count Nineteen (declaratory
judgment). The Medical Defendants' motion to dismiss is
also GRANTED as to Counts Fourteen (medical malpractice)
and Fifteen (wrongful death) against Dr. Richard Holman,
Nurse Mahmood, and PA Larosa. The Medical Defendants'
motion to dismiss Count One (§ 1983 claims for deliberate
indifference to medical needs) is GRANTED as to Dr. Joon
Park, and DENIED as to Drs. Maung Maungoo, Myat Win,
and Antonio Martinez.
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*2 The City Defendants' motion to dismiss is GRANTED
as to Count One (§ 1983 claims for deliberate indifference
to safety, unconstitutional conditions of confinement, and
retaliation), Count Ten (negligent hiring and retention),
Counts Eleven and Eighteen (§ 1983 Monell claims), Count
Sixteen (§ 1983 claims for malicious prosecution pursuant to
Brady v. Maryland, 373 U.S. 83 (1963)), Count Seventeen
(§ 1983 claim for loss of familial relationship), and Count
Nineteen (declaratory judgment). 3 The City Defendants'
motion to dismiss is DENIED as to Count One (§ 1983
claims for deliberate indifference to medical needs), Count
Two (ADA claims), Count Three (RA claims), and Count
Seven (negligence).
I. FACTUAL AND PROCEDURAL BACKGROUND 4
Fleming was arrested in October 2012 on charges of “reckless
driving and reckless endangerment” in connection with a
vehicle accident that occurred while he was released on bail
under separate armed robbery charges. (FAC ¶¶ 58–65.) In
May 2015, Fleming plead guilty to one of the armed robberies
that took place in 2011, accepting a nine-year prison term.
(Id. ¶ 76.) In July 2015, the court granted Fleming's motion
to withdraw this plea. (Id. ¶ 84.) On May 25, 2017, Fleming
plead guilty a second time to an armed robbery, receiving a
five-year sentence, which he had already served. (Id. ¶ 182.)
Fleming was released from detention on June 3, 2017. (Id. ¶
186.) He passed away on June 20, 2017, seventeen days after
he was released. (Id. ¶ 193.)
A. Assault Allegations.
Plaintiff alleges that, on April 21, 2015, correctional officers
Defendants John Does 1–3 “instigated, condoned, and turned
a blind eye” to a violent assault on Fleming by three gang
members. (Id. ¶ 72.)
On June 8, 2015, Fleming was brought to court for sentencing
pursuant to his first guilty plea. (Id. ¶ 78.) Plaintiff alleges
that the DOC knew that Fleming had “a protective custody
classification” because of his mental illness, which entitled
him to accommodations that would protect him from physical
injury. (Id. ¶ 79.) Plaintiff Fleming was nonetheless placed in
the general population holding pen. (Id. ¶ 79–80.) According
to Plaintiff, Fleming informed one of the correctional
officers of his protective custody status. (Id. ¶ 80.) Instead
of investigating Fleming's housing status, the correctional
officer responded, “[G]et the f* * * back in the pen.” (Id.)
Plaintiff alleges that the correctional officers then violently
assaulted Fleming. (Id.)
*3 On August 16, 2015, Fleming was transferred to the Anna
M. Kross Center (“AMKC”) at Rikers. (Id. ¶ 88.) During
a preventative search of the facility, Fleming allegedly told
several correctional officers that “he was being threatened
by gangs in the AMKC facility and asked that he not be
housed with gang members in that facility.” (Id. ¶ 89.)
In response, one of the correctional officers allegedly told
Fleming that if he complained again, he would be “smacked
around,” causing Fleming to “unconsciously remove[ ] all
his clothing in protest.” (Id. ¶ 90–92.) The correctional
officers then allegedly brutally assaulted Fleming. (Id. ¶ 92.)
Fleming shared the details of this assault with Plaintiff while
awaiting surgery at Bellevue Hospital to remove his right
testicle, which had been injured during the assault. (Id. ¶
95.) According to Plaintiff, “[a] subsequent investigation of
the August 16 assault exonerated all the correctional officers
involved.” (Id. ¶ 96.)
On October 20, 2016, correctional officers allegedly punched
and kicked Fleming in the stomach and slammed him on
the concrete floor. (Id. ¶ 156.) The attack was so severe that
Fleming had to be rushed to Elmhurst Hospital, “where he
was found to have suffered from traumatic retroperitoneal
bleeding of the abdomen.” (Id.) Plaintiff alleges that these
correctional officers tried to cover up the assault by creating
a false record of the incident and isolating Fleming from
visitation. (Id. ¶ 158.)
B. Solitary Confinement Allegations.
On April 19, 2016, Fleming was placed in solitary
confinement for thirty days after an altercation with another
prisoner. (Id. ¶ 116.) During this thirty-day period, Plaintiff
alleges that Fleming was denied access to medical care,
water, food, and hygiene products. (Id.) She also alleges that
correctional officers failed to refer Fleming to mental health
services despite exhibiting “behaviors and traits that clearly
called for [it].” (Id. ¶¶ 115–16.) According to Plaintiff, the
DOC policy required Rikers medical and correctional staff
to evaluate Fleming within 24 hours of his placement in
solitary confinement, which, on information and belief, never
happened. (Id. ¶ 117.) On May 22, 2019, Fleming was placed
in a cell by himself in Rikers's West Facility. (Id. ¶ 119.)
C. Medical Malpractice Allegations.
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After the April 21, 2015 assault, Plaintiff alleges that Fleming
was prescribed opioid medication for his pain, which “was
medically unnecessary, was prescribed to sedate [Fleming] as
a pretext for treating his mental condition and was recklessly
prescribed without proper warning as to the addictive effect
of opioids.” (Id. ¶ 73.)
After the June 8, 2015 assault, Fleming was taken to Bellevue
Hospital, “where he was diagnosed as suffering from a
herniated disk, abrasions to his face, and hematoma to his
forehead.” (Id. ¶ 82.) At some point thereafter, he was referred
to the clinic at Rikers, where Plaintiff alleges that Dr. Martinez
prescribed him opioid medications “as a pretext for treating
his mental condition. (Id. ¶ 83.)
After the August 16, 2015 assault, Fleming was taken back to
the AMKC clinic, where Plaintiff alleges that Dr. Park failed
to examine him properly, document his injuries, or report
the assault to the DOC's internal affairs division. (Id. ¶ 93.)
Shortly thereafter, he was taken to Elmhurst Hospital and then
to Bellevue Hospital for further examination. (Id. ¶ 94.) The
records of those visits allegedly show that he suffered from
a hematoma to the right side of his forehead, bruises to his
face and arms, and dry blood in his right ear, indicative of
head trauma. (Id.) He also had bruises to the right shoulder
and arm and was placed on a C-collar due to neck pain and
tenderness. (Id.) Finally, Fleming had emergency surgery at
Bellevue Hospital to remove his right testicle, which ruptured
due to trauma to the groin area. (Id. ¶¶ 94–95.) The day
after the surgery, on August 17, 2015, Fleming was diagnosed
with testicular cancer from samples of tissue taken during the
testicular removal surgery. (Id. ¶ 97.) On August 24, 2015, he
was also diagnosed with hepatitis B. (Id.)
*4 Following the surgery, Fleming was admitted to Bellevue
Hospital for several days due to complaints of extreme
mental and emotional distress. (Id. ¶ 98.) On discharge,
he was prescribed hydromorphone (an opioid) along with
several anti-depressant, anti-psychotic, and anti-epileptic
medications. (Id.)
After about a month, Fleming was transferred back to the
North Infirmary Command (“NIC”), where Dr. Martinez and
PA Larosa allegedly “refused to provide [Fleming] treatment
for his hepatitis B.” (Id. ¶ 100.) A couple of months later,
in or about December 2015, Fleming told his mother and
Dr. Martinez about blood he found in his stool. (Id. ¶
101.) Dr. Martinez then allegedly “failed to conduct any
testing or diagnostic evaluation to determine the cause of
the bleeding, and, on information and belief, prescribed
[Fleming] excessive and unnecessary quantities of opioid
medication.” (Id. ¶ 101.)
Between August and October of 2015, Plaintiff alleges that
correctional officers “purposely and recklessly refused to
notify [Fleming] of and/or allow him to report to” scheduled
medical oncology appointments at Bellevue Hospital and
Elmhurst Hospital “in retaliation for [Fleming] having
implicated their fellow officers in the August 16 assault.” (Id.
¶¶ 102–05.) From January 4 to January 30, 2016, Fleming
again missed chemotherapy appointments for the same
alleged reasons. (Id. ¶¶ 105, 109.) As a result, Fleming only
went through three cycles of chemotherapy, in October and
November 2015 and January 2016. (Id. ¶¶ 104, 112.)
On January 30, 2016, Fleming allegedly reported blood in his
stool during a visit to Bellevue Hospital. (Id. ¶ 111.) Again,
Plaintiff alleges that the medical staff 5 there “recklessly
and with deliberate indifference to [Fleming's] medical needs
failed to perform diagnostic tests to determine the source or
cause of the internal bleeding reported by [Fleming].” (Id.)
After that visit, Plaintiff alleges that Fleming refused his
fifth cycle of chemotherapy on multiple occasions out
of “an irrational fear produced by his declining mental
condition.” (Id. ¶ 114.) Plaintiff further alleges that the
Bellevue medical staff “failed to provide [Fleming] with
appropriate psychiatric treatment and/or medication and
repeatedly failed to perform adequate psychiatric evaluations
to ensure that [he] gave informed consent when he
was discharged without completing the full treatment
protocol.” (Id.)
In June 2016, after his release from solitary confinement,
Fleming allegedly complained of excruciating abdominal
pain and blood in his stool to Plaintiff and to medical staff 6
at the jail. (Id. ¶ 120.) Again, Plaintiff alleges that the medical
staff “failed to conduct appropriate testing to determine the
cause of the bleeding, and further failed to make a referral so
that [Fleming's] condition could be appropriately diagnosed
and treated by a qualified outpatient medical provider.” (Id.)
Plaintiff alleges that they prescribed large doses of opioids
“to sedate [Fleming] as a pretext for treating his mental
condition.” (Id. ¶ 121.) Plaintiff also alleges that Nurse
Mahmood “refused to administer to [Fleming] his prescribed
medications” for depression, anxiety, schizophrenia, and
epilepsy. (Id. ¶ 122.)
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*5 That month, Fleming began his first five-day cycle of
intensive “TIP” chemotherapy at Bellevue Hospital, after it
was discovered that his cancer had spread and that his medical
condition deteriorated. (Id. ¶¶ 123–24.) Plaintiff alleges that
Fleming told her that Dr. Nowitzki denied Fleming's request
for a one-day break from the treatment because it made him
“violently ill.” (Id. ¶ 124.)
On July 6, 2016, Fleming allegedly complained again to
medical staff 7 at the jail of excruciating abdominal pain
and blood in his stool. (Id. ¶ 127.) The next day, the staff
conducted a CAT scan, which was allegedly “inconclusive”
because they failed to administer an appropriate contrast
solution and to instruct Fleming not to eat ahead of time. (Id. ¶
128.) The medical staff allegedly failed to properly perform a
second CAT scan with contrast, “which would have evaluated
the progress of Fleming's cancer, which ... had metastasized
and spread to his liver.” (Id.) On July 14, 2016, HHC refused
the Legal Aid Society's (“Legal Aid's”) request to conduct a
second CAT scan on Fleming. (Id. ¶ 129.)
On July 21, 2016, Plaintiff alleges that Fleming was
“discharged on the false pretext that [he] had ‘refused’ ” his
second cycle of TIP chemotherapy, when in fact Fleming had
complained to the attending nurse that he or she was inserting
the drip into the wrong location on Fleming's arm. (Id. ¶
130.) Plaintiff thus alleges, on information and belief, that the
medical staff “made no attempt to examine Fleming or make
an appropriate psychiatric referral to enable [him] to continue
the scheduled TIP chemotherapy.” (Id.) Plaintiff also alleges
that, upon Fleming's return from Bellevue, Dr. Maungoo and/
or Dr. Win failed to refer Fleming to a mental health provider,
to reschedule his chemotherapy, or to fully inform him about
the possible implications of refusing treatment. (Id. ¶ 131.)
At the end of July 2016, Plaintiff alleges that Dr. Maungoo
and/or Dr. Win again ignored Fleming's abdominal pain
and “failed to refer [Fleming] to a qualified practitioner for
diagnosis and treatment.” (Id. ¶ 138.) Similarly, she claims
that they failed to address Fleming's report that he lost his
hearing. (Id. ¶ 140.) According to Plaintiff, the pain was so
unbearable that DOC medical staff deemed Fleming unfit for
his court appearance scheduled on July 28, 2016. (Id. ¶ 141.)
Two months later, on September 20, 2016, Fleming contacted
HHC directly to report that Dr. Maungoo and/or Dr. Win were
ignoring his pain, and that “he feared his cancer had spread
and that without proper medical treatment he would die.” (Id.
¶ 142.) The next day, Fleming was taken to Bellevue Hospital
but was not seen by any doctors. (Id. ¶ 147.)
On September 27, 2016, Fleming was taken to Bellevue
Hospital for his second five-day cycle of TIP chemotherapy.
(Id. ¶ 148.) This time, he was allegedly classified as
“code red,” which meant that he had to be handcuffed,
in a wheelchair, and kept separate from other civilians or
prisoners. (Id.) Plaintiff alleges, however, that upon arriving,
a correctional officer attempted to force Fleming into a room
with an unrestrained prisoner. (Id.) When Fleming verbally
protested and informed the correctional officer “that he feared
for his life and that he was terrified of being in a room with an
unrestrained prisoner,” the officer called additional security
personnel who forcefully restrained and removed Fleming
from the hospital premises. (Id. ¶¶ 149–50.) As a result, the
medical staff 8 at Bellevue Hospital failed to refer Fleming to
a psychiatrist, refused to further treat him, and instead referred
his medical care to Elmhurst Hospital. (Id. ¶ 152–53.) On
October 3, 2016, Fleming filed a grievance with HHC and
DOC. (Id. ¶ 154.)
*6 After the October 20, 2016 assault, Defendant Dr.
Aaron Stern allegedly discovered that Fleming had internal
bleeding in the retroperitoneal region. (Id. ¶ 160.) Plaintiff
alleges, however, that Dr. Stern “failed to perform an
exploratory laparotomy to treat Fleming's internal bleeding
and instead discharged [him] back to [Rikers] still bleeding
internally.” (Id. ¶ 161.)
On November 4, 2016, Fleming was finally able to begin
his second five-day cycle of TIP chemotherapy. (Id. ¶ 162.)
Plaintiff alleges that Defendant Dr. Roopalekha Shenoy
once again denied Fleming's request for a one-day break to
recuperate from the treatment, which along with the hospital
food, was causing him severe nausea. (Id. ¶ 163.) Plaintiff
also alleges that Elmhurst Hospital's tumor board incorrectly
concluded that Fleming's tumor had grown due to refusal to
accept cancer treatment, when in fact his noncompliance was
the result of “psychiatric, mental, nutritional, and institutional
reasons.” (Id. ¶ 165.) According to Plaintiff, Fleming was
discharged without completing the fifth day of the TIP cycle
and without providing informed consent. (Id. ¶ 166.)
In February and March 2017, Fleming began his third
and fourth TIP chemotherapy cycles at Elmhurst Hospital,
respectively, but was again allegedly unable to complete them
for the same reasons as the other two cycles. (Id. ¶¶ 170–72.)
On March 18, 2017, Plaintiff alleges that Fleming told her
that Dr. Maungoo and/or Dr. Win again ignored Fleming's
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complaints of bloody stools and severe back pain, failing to
conduct appropriate tests to discover the source of the bloody
stool, or to refer Fleming to another physician to do so. (Id. ¶¶
173–74.) The next day, Plaintiff sent an ambulance to help her
son at Riker's, but upon arrival the EMTs were allegedly told
that there was no inmate by the name of “Patrick Fleming”
there. (Id. ¶ 175.)
Plaintiff also alleges that, on May 17, 2017, a correctional
officer who was responsible for the DOC's court
transportation unit at Rikers refused to provide a wheelchair
to transport Fleming to a court hearing. (Id. ¶¶ 179–80.) The
hearing therefore had to be postponed a week, until May 25,
2017. (Id. ¶ 182.) The day after his hearing, on May 26,
2017, Fleming was allegedly barely conscious, crying out
in agony, and pointing to his visibly bloated stomach. (Id. ¶
183.) Plaintiff alleges that Dr. Maungoo and/or Dr. Win were
prescribing him Percocet to mask the pain and underlying
symptoms, instead of treating his condition. (Id.) Fleming was
finally sent to Elmhurst Hospital “on the verge of death.” (Id.
¶ 184.) He remained there for eight days, during which time
Drs. Shenoy and Stern failed to adequately test Fleming “to
determine the cause of [his] abdominal pain.” (Id.)
On June 3, 2017, nine days after his last admittance at
Elmhurst Hospital, Fleming received his court discharge
papers, and Plaintiff transferred him to Mt. Sinai hospital for
a second opinion. (Id. ¶ 187.) After several tests at Mt. Sinai,
it was allegedly discovered that Fleming had been suffering
from internal bleeding that could have been treated with a
blood transfusion had it been discovered earlier. (Id. ¶ 188.)
The transfusion was finally performed, but shortly afterwards,
Fleming's liver and kidney failed, and it was determined that
any further treatment would be futile. (Id.) Fleming passed
away in Mt. Sinai's hospice unit on June 20, 2017. (Id. ¶ 193.)
D. Allegations Of Unconstitutional Conditions Of
Confinement.
*7 On March 22, 2017, Fleming returned to his cell to
find that a pipe had been smashed spilling sewage all over
his cell. (Id. ¶ 177.) Defendant John Doe 28 then allegedly
ordered him to “get on his hands and knees and clean the feces
from his cell.” (Id.) Plaintiff alleges that Fleming called her
afterwards to tell her what happened. (Id.)
E. Third-Party Efforts To Secure Proper Medical
Treatment Or Compassionate Release.
Plaintiff alleges that several third parties reached out to the
DOC, HHC, and Commissioner Joseph Ponte to request that
Fleming receive proper medical treatment or compassionate
release. For example, on July 22, 2016, Legal Aid emailed an
HHC physician requesting Fleming's compassionate release.
(Id. ¶ 134.) That same day, New York City Assemblywoman
Linda Rosenthal “wrote to Commissioner Ponte and informed
[him] that [Fleming's] cancer had spread to his liver and that
the ‘urgency of his treatment is immense.’ ” (Id. ¶ 135.) On
July 25, 2016, at the request of Fleming's father, Legal Aid
requested that HHC take Fleming for proper treatment. (Id. ¶
137.) Legal Aid renewed this request on September 20, 2016.
(Id. ¶ 146.)
II. LEGAL STANDARD
“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 Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A court makes
this determination by “construing the complaint liberally,
accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff's favor.”
Schwamborn v. Cty. of Nassau, 348 F. App'x 634, 635 (2d Cir.
2009). Still, the plaintiff must demonstrate “more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678.
A district court should “begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth.” Id. at 679. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Second, “[w]hen there are well-
pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Taveras v. UBS AG, 513 F. App'x
19, 22 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 679).
“In ruling on a motion pursuant to Fed. R. Civ. P. 12(b)(6),
the duty of a court is merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof.” Hogan v. Fischer, 738
F.3d 509, 514 (2d Cir. 2013) (quoting DiFolco v. MSNBC
Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010)).
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III. PLAINTIFF'S MONELL
CLAIMS ARE DISMISSED
Count Eleven alleges that the City and HHC (the “Monell
Defendants”) deprived Fleming of his constitutional rights
under 42 U.S.C. § 1983, pursuant to Monell v. Department
of Social Services, 436 U.S. 658 (1978). (FAC ¶¶ 239–
245.) However, Plaintiff's vague and conclusory allegations
that the Monell Defendants had a “custom, practice, or
pattern” of deliberate indifference to the constitutional rights
of prisoners, and that they failed to train their staff to prevent
such deprivations, are insufficient to plausibly allege a Monell
claim. 9
*8 A municipality may be liable under § 1983 only
“if the governmental body itself ‘subjects’ a person to a
deprivation of rights or ‘causes’ a person ‘to be subjected’
to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60
(2011) (quoting Monell, 436 U.S. at 692.) Accordingly, the
Monell Defendants are liable under § 1983 only if Plaintiff
sufficiently alleges that (1) they officially promulgated or
adopted an official policy to that effect, see Monell, 436
U.S. at 690; (2) an official responsible for establishing a
final policy with respect to the subject matter in question
made a deliberate choice to that effect, see Pembaur v.
City of Cincinnati, 475 U.S. 469, 483–84 (1986) (plurality
opinion); (3) subordinate officials engaged in “a widespread
practice that, although not authorized by written law or
express municipal policy, is ‘so permanent and well settled
as to constitute a custom or usage with the force of law,’
” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)
(citations omitted); or (4) they failed to train or supervise their
employees to a degree that evinces a “deliberate indifference
to the rights of persons with whom [they] come into contact,”
Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007)
(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388
(1989)). Plaintiff must also plausibly allege that there is a
“direct causal link between municipal policy or custom and
the alleged deprivations.” Canton, 489 U.S. at 385 (emphasis
added).
Plaintiff does not allege that the Monell Defendants are
liable under the first or second theories of municipal liability.
Rather, her allegations fall under the third and fourth
theories: (1) the Monell Defendants' subordinates engaged
in “longstanding customs, policies, and practices” including
“the use of excessive force and the deliberate indifference to
and reckless disregard of [inmates'] medical needs, physical
safety and bodily integrity”; and (2) the Monell Defendants
failed “to properly train and supervise prison and medical
staff.” (FAC ¶ 241–42.)
The amended complaint's allegations of widespread
“customs, patterns, and practices” are all stated in
formulaic, boilerplate language, and “upon information and
belief.” (FAC ¶¶ 68, 70, 74, 92, 93, 125, 132, 144, 157.)
These conclusory allegations “upon information and belief”
are insufficient to establish a Monell claim because Plaintiff
does not explain which facts, other than her son's alleged
experiences in prison, support her belief that his alleged
deprivation of rights is part of the Monell Defendants'
existing “customs, patterns, or practices.” See D'Alessandro
v. City of N.Y., 713 F. App'x 1, 10 (2d Cir. 2017) (finding
that Plaintiff “[did] not sufficiently allege a pattern of
similar constitutional violations by the District Attorney's
Office” because he “never mentions specific instances of
prosecutorial misconduct beyond [his] own case”); Missel
v. Cty. of Monroe, 351 F. App'x 543, 545–46 (2d Cir.
2009) (“The allegations that [defendant] acted pursuant
to a “policy,” without any facts suggesting the policy's
existence, are plainly insufficient.”); Twombly, 550 U.S. at
551–53 (noting that allegations “upon information and belief”
are insufficient to overcome a motion to dismiss where
plaintiff does not support them with a statement of facts that
creates a plausible inference of their truth). Nowhere in the
amended complaint does Plaintiff allege specific, plausible
allegations that the Monell Defendants were the “moving
force” behind Fleming's deprivation of rights. Canton, 489
U.S. at 389; see also Montero v. City of Yonkers, N.Y., 890
F.3d 386, 403–04 (2d Cir. 2018) (“[T]he mere assertion that
a municipality has such a custom or policy is insufficient
in the absence of allegations of fact tending to support, at
least circumstantially, such an inference.”) (quoting Dwares
v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993), overruled
on other grounds by Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163 (1993)).
Plaintiff's conclusory allegations are therefore insufficient
to allege that the Monell Defendants have a longstanding
custom, pattern, or practice of using excessive force, or of
being deliberately indifferent to inmates' medical needs or
physical safety.
*9 Plaintiff's “failure to train and supervise” allegation is
also insufficient because Plaintiff does not offer facts to
plausibly allege that they knew “to a moral certainty” that
(1) their employees would confront a given situation, (2) the
situation presents their employees with a difficult choice of
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the sort that training or supervision will make less difficult
or that there is a history of employees mishandling the
situation, and (3) the wrong choice by the employees would
frequently cause the deprivation of a citizen's constitutional
rights. (City Defs.' Mem. at 12 (citing Canton, 489 U.S. at
388; Jenkins v. City of N.Y., 478 F.3d at 94); Med. Defs.'
Mem. at 11 (citing Walker v. City of N.Y., 974 F.2d 293,
297–98 (2d Cir. 1992)).) Here, Plaintiff does not attempt to
allege any of the three prongs required for a “failure to train”
Monell claim. In fact, Plaintiff alleges no facts to support
her sole threadbare statement that the Monell Defendants
had a practice and custom involving “failing to properly
train and supervise prison and medical staff notwithstanding
widespread reports of abuse and clear notice of the need for
corrective action.” (FAC ¶ 242.) This “simple recitation that
there was a failure to train municipal employees does not
suffice to allege that a municipal custom or policy caused
the plaintiff's injury.” Dwares, 985 F.2d at 100–01; see also
Triano v. Town of Harrison, NY, 895 F. Supp. 2d 526, 540
(S.D.N.Y. 2012) (“After Twombly and Iqbal, the Second
Circuit has made clear that Plaintiff must do more than
merely state that the municipality's failure to train caused his
constitutional injury.”). Plaintiff's conclusory and boilerplate
allegation that the Monell Defendants “failed to train” their
prison and medical staff is thus insufficient to plausibly plead
a Monell claim.
Accordingly, Plaintiff fails to state a Monell claim against the
Monell Defendants.
IV. PLAINTIFF'S § 1983 CLAIMS ARE PARTIALLY
DISMISSED AGAINST THE C.O. DEFENDANTS
AND RIKERS MEDICAL DEFENDANTS
Count One alleges that several Rikers correctional officers
(the “C.O. Defendants”) 10 and Rikers medical staff members
(the “Rikers Medical Defendants”) 11 deprived Fleming of
his constitutional rights under 42 U.S.C. § 1983. 12 (FAC ¶¶
195–200.)
Plaintiff's first cause of action alleges that these Defendants
are liable for (1) using excessive force on Fleming, (2) being
deliberately indifferent to Fleming's medical needs, (3) being
deliberately indifferent to Fleming's safety, (4) subjecting
Fleming to unconstitutional conditions of confinement, and
(5) retaliating against Fleming. Those claims arise under
42 U.S.C. § 1983, which permits a civil action against
any “defendant ‘who under color of any statute, ordinance,
regulation, custom, or usage, of any State ..., subjects, or
causes to be subjected, any citizen of the United States ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws [of the United States].’
” Davis v. Shah, 821 F.3d 231, 244 (2d Cir. 2016) (quoting 42
U.S.C. § 1983). 13
To state a claim under the Fourteenth Amendment for
deliberate indifference to medical needs, health or safety,
or unconstitutional conditions of confinement during pretrial
detention, Plaintiff must plausibly allege that (1) “the
challenged conditions were sufficiently serious to constitute
objective deprivations of the right to due process” (the
“objective prong”) and (2) defendants “acted with at least
deliberate indifference to the challenged conditions” (the
“mens rea prong”). Darnell v. Pineiro, 849 F.3d 17, 29–30
(emphasis added) (applying the two-part test to conditions
of confinement claim); see also Isaac v. City of N.Y., No.
17 Civ. 1021 (PGG), 2018 WL 1322196, at *3 (S.D.N.Y.
Mar. 13, 2018) (applying the two-part test to deprivation of
medical care claim). The “deliberate indifference” standard
may be met by showing that defendants “recklessly failed to
act with reasonable care to mitigate the risk that the condition
posed to the pretrial detainee even though the [defendants]
knew, or should have known, that the condition posed an
excessive risk to health or safety.” Darnell, 849 F.3d at 35
(citing Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)); see
also id. at 33 n.9 (noting that “deliberate indifference means
the same thing for” both “claim[s] for deliberate indifference
to medical needs” and claims for “unconstitutional conditions
of confinement”).
A. Plaintiff Has Stated A Claim For Deliberate
Indifference To Medical Needs Against The C.O.
Defendants.
*10 Plaintiff alleges that the C.O. Defendants were
indifferent to Fleming's medical needs because they (1) failed
to refer him to mental health services (FAC ¶¶ 115–17, 151),
(2) denied him food appropriate for a cancer patient (id. ¶
126); and (3) placed him in solitary confinement unsuitable
for a cancer patient (id. ¶ 118).
Plaintiff “does not plead any facts that give rise to
even an inference that the [C.O. Defendants] knew of,
and disregarded, [Fleming's] alleged need for psychiatric
services—for example, facts that the officers were familiar
with psychosis symptoms and that [Fleming] was actually
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exhibiting those symptoms.” (City Defs.' Mem. at 4.)
Although Plaintiff vaguely alleges that “[Fleming] exhibited
behaviors and traits that clearly called for a mental health
referral,” she does not specify what those “behaviors and
traits” were, or the mental illness of which they allegedly were
symptoms. (FAC ¶ 115.) Plaintiff also alleges that Fleming's
April 19, 2016 altercation with another inmate “resulted from
Fleming's deteriorating mental state,” but she does not specify
what that “mental state” was. (Id. ¶ 116.) In fact, Plaintiff
does not offer any “specific information about any particular
mental illness or any diagnoses from a medical professional.”
Selah v. N.Y.S. DOCS Comm'r., No. 04 Civ. 3273 (DC),
2006 WL 2051402, at *4 (S.D.N.Y. My 25, 2006). These
conclusory allegations that Fleming suffered from “some kind
of mental illness[ ] ... [are] insufficient to rise to the level
of a constitutional violation for failure to provide medical
care.” 14 Id. at *5.
Courts in this Circuit have held that prison officials must
provide an inmate with a specific diet only when his or her
treating physician prescribes it as part of treatment for a
diagnosed condition. Mandala v. Coughlin, 920 F. Supp. 342,
355 (E.D.N.Y. 1996) (finding that Plaintiff had a medical
need for a high-fiber diet because “[he] had major surgery
after which the treating physicians advised him that he would
need a special diet to heal properly” (emphasis added));
Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 180 (N.D.N.Y.
1996) (holding that prison officials were not responsible for
depriving plaintiff of soft-food diet because “[his treating
physician], not [defendants], ultimately removed the plaintiff
from his diet ...” (emphasis added)); Johnson v. Harris, 479 F.
Supp. 333, 335 (S.D.N.Y. 1979) (holding that prison officials
violated a brittle diabetic plaintiff's Eight Amendment rights
by denying him a low-sugar and low-carb diet “despite the
fact that [his treating physician] ordered such a diet for
plaintiff” (emphasis added)). In contrast, Plaintiff here does
not allege that Fleming was prescribed a special diet as part
of his cancer or hepatitis B treatment. She only asserts that
Fleming was “unable to tolerate the regular diet” offered in
the prison because of his chemotherapy. (FAC ¶ 126.) Even
assuming this allegation to be true, it is insufficient to find
that Fleming required a special diet as part of his medical
needs, much less that the C.O. Defendants were deliberately
indifferent to this need. Word v. Croce, 169 F. Supp. 2d 219,
226 (S.D.N.Y. 2001) (“Plaintiff's self-diagnosis of irritable
bowel syndrome is insufficient to support a medical condition
requiring a special diet.”)
*11 Regarding solitary confinement, Defendants argue
that “Plaintiff has not alleged any facts showing that it is
objectively dangerous for a cancer patient to be placed in
solitary confinement, or that [they] had knowledge of such
danger.” 15 (City Defs.' Mem. at 4.) Plaintiff summarily
alleges that solitary confinement is “medically dangerous and
inhumane,” and therefore unsuitable for a patient in the early
stages of cancer, whose “immune system is critical to his
ability to fight the progression of the disease.” (FAC ¶ 118.)
This allegation that solitary confinement is inherently hurtful
to cancer patients is insufficient to state a claim for deliberate
indifference to Fleming's medical needs.
But Plaintiff also alleges that Fleming “languished then
in solitary confinement for 30 days where he was denied
appropriate ... medical treatment, as well as access to water,
nutrition, and hygiene.” (Id. ¶ 117 (emphasis added).) The
amended complaint also alleges that Fleming was diagnosed
with testicular cancer on August 17, 2015 and with hepatitis
B on August 24, 2015, several months before he was placed
in solitary confinement on April 19, 2016. (FAC ¶¶ 97,
116.) In between that time, Plaintiff went through at least
five cycles of chemotherapy. (FAC ¶¶ 104–07, 112, 114.)
The C.O. Defendants do not challenge these allegations.
Surely, denying treatment to a cancer and hepatitis B
patient objectively constitutes a serious risk to his health.
Furthermore, given his diagnosis and treatment timeline, the
C.O. Defendants knew, or should have known, that Fleming
was diagnosed with cancer and hepatitis B, and therefore
that placing him in solitary confinement without access to
medical treatment for thirty days could pose a serious risk to
his health. Darnell, 849 F.3d at 35. Accordingly, assuming
these allegations to be true, Plaintiff plausibly alleges that the
C.O. Defendants were deliberately indifferent to Fleming's
medical needs when they placed him in solitary confinement
without access to appropriate medical treatment.
B. Plaintiff Has Not Stated A Claim For Deliberate
Indifference To Medical Needs Against Dr. Park.
Plaintiff alleges that Dr. Park saw Fleming once
“[i]mmediately after the August 16 Assault,” but failed to
“[1] examine [him] thoroughly, ... [2] document [his] injuries
in [his] medical record, and [3] report the assault to the
DOC's internal affairs division so that [his] injuries could be
photographed as part of the internal affairs investigation into
the use of force.” (FAC ¶ 93.) Plaintiff admits that “[s]hortly
after being seen [by Dr. Park], [Fleming] was taken first to
Elmhurst Hospital, then to Bellevue Hospital,” where he was
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treated for the assault injuries. (Id. ¶ 94.) Therefore, Dr. Park's
allegedly insufficient examination caused, at most, a short
delay in Fleming's treatment for the assault injuries. “Without
more, such allegations of a limited delay or interruption in
treatment are insufficient to plead an objectively serious risk
to Plaintiff's health rising to the level of a constitutional
claim.” Narvaez v. City of N.Y., No. 16 Civ. 1980 (GBD), 2017
WL 1535386, at *10 (S.D.N.Y. Apr. 17, 2017). Furthermore,
Dr. Park's alleged failure to document the injuries in Fleming's
medical record and to report the assault to the DOC internal
affairs divisions do not constitute an “objectively serious” risk
to Fleming's health because Plaintiff “fails to plead facts that
could plausibly show how Defendant's record-keeping caused
[further] injuries.” Davis v. McCready, 283 F. Supp. 3d 108,
119 (S.D.N.Y. 2017).
C. Plaintiff Has Stated A Claim For Deliberate
Indifference To Medical Needs Against Drs. Martinez,
Maungoo, and Win.
*12 Plaintiff first alleges that Dr. Martinez was deliberately
indifferent to Fleming's medical needs because, between
August and December 2015, on January 6, 2016, and between
January 7 and January 20, 2016, he “recklessly failed to
investigate the reason for [Fleming's] non-appearance” for
his scheduled appointments with the outpatient oncologist,
despite knowing that Fleming had been diagnosed with
cancer. (FAC ¶¶ 103, 106, 110, 112.) Similarly, she alleges
that Drs. Maungoo and Win failed to reschedule Fleming's
outpatient chemotherapy appointment in July 2016. (Id.
¶ 131.) Defendants argue that “[Plaintiff] does not claim
that these brief delays caused or contributed to her [sic]
injuries or Fleming's death.” (Med. Defs.' Mem. at 20.)
This is underscored by the fact that Fleming attended his
appointments on October 2015, January 7, 2016, and January
30, 2016, although Plaintiff alleges that these appointments
were “unnecessarily and unconscionably delayed.” (FAC
¶¶ 104, 107, 112.) Again, allegations of brief delays or
interruptions in treatment, without more, are not “sufficiently
serious” to constitute a constitutional violation. See Narvaez,
2017 WL 1535386, at *10. Therefore, Plaintiff does not
plausibly allege that Dr. Martinez was deliberately indifferent
to Fleming's medical needs when he failed to follow up on
Fleming's missed outpatient cancer treatment appointments.
Plaintiff also alleges in conclusory fashion that Dr. Martinez,
Dr. Maungoo, and Dr. Win “prescribed opioid medication ...
to sedate [Fleming] as a pretext for treating his mental
condition ... in reckless disregard of the risk of furthering
his addiction to narcotics.” (FAC ¶¶ 83, 121.) Plaintiff's
allegation that her son was addicted to painkillers does not
necessarily mean that these physicians had no reason, other
than to “further his addiction,” to prescribe him opioids. To
the contrary, Plaintiff admits that Dr. Martinez prescribed
Fleming pain killers after the brutal June 8, 2015 assault,
which caused him “significant pain” from “a herniated disk,
abrasions to his face, and hematoma to his forehead.” (Id.
¶¶ 80–82.) Similarly, Drs. Maungoo and Win prescribed
painkillers to Fleming after he complained of “excruciating
abdominal pain.” (Id. ¶ 120.) Surely, Fleming's considerable
pain provided these physicians with a non-pretextual reason
to prescribe him painkillers. Therefore, Plaintiff fails to
plausibly allege that Drs. Martinez, Maungoo, and Win were
deliberately indifferent to Fleming's opioid addiction, even if
they did negligently fail to respond to it. Darnell, 849 F.3d
at 36 (“[A]ny § 1983 claim for a violation of due process
requires proof of a mens rea greater than mere negligence.”)
(citing Kingsley, 135 S. Ct. at 2472 (emphasis added)).
Additionally, Plaintiff alleges that, on August 24, 2015, Dr.
Martinez “recklessly refused to provide Fleming treatment
for his hepatitis B.” (FAC ¶ 100.) Additionally, she claims
that in December 2015, June 2016, July 2016, and September
2016, Drs. Martinez, Maungoo, and Win “failed to conduct
any testing or diagnostic evaluation to determine the cause
of” Fleming's bloody stools and “excruciating abdominal
pain.” 16 (Id. ¶¶ 100–01, 120–21, 127–28, 142.) The Rikers
Medical Defendants' response is that they were aware that
Fleming was being treated for cancer at Bellevue Hospital
and that “mere disagreement over the proper treatment does
not create a constitutional claim.” (Med. Defs.' Mem. at 21,
22.) But Plaintiff is not alleging that she disagrees with Drs.
Martinez, Maungoo, and Win's treatment, but rather that they
completely failed to treat Fleming, despite clear signs that he
increasingly suffered from excruciating abdominal pain, had
ongoing bloody stools, and had been diagnosed with hepatitis
B.
*13 The Second Circuit has held that “if the unreasonable
medical care is a failure to provide any treatment for
an inmate's medical condition,” courts are only required
to “examine whether the inmate's medical condition is
sufficiently serious.” 17 Salahuddin v. Goord, 467 F.3d 263,
280 (2d. Cir. 2006) (emphasis added). “Factors relevant to
the seriousness of a medical condition include [1] whether
‘a reasonable doctor or patient would find [it] important and
worthy of comment,’ [2] whether the condition ‘significantly
affects an individual's daily activities,’ and [3] whether it
causes ‘chronic and substantial pain.’ ” Id. (alterations in
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original) (quoting Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998)). Plaintiff's amended complaint plausibly
alleges that Fleming had excruciating abdominal pain, serious
bloating, and ongoing bloody stools during the relevant
time period. These conditions were undoubtedly worthy of
Drs. Martinez, Win, and Maungoo's comment, significantly
impeded Fleming's daily activities, caused Fleming chronic
and substantial pain, and likely contributed to his death.
Similarly, hepatitis B is a “serious medical condition” that,
if gone untreated, could also cause chronic and substantial
pain, and inability to conduct daily activities. (FAC ¶ 100.)
Plaintiff's allegations regarding Fleming's untreated hepatitis
B diagnosis, abdominal pain, bloating, and bloody stools, are
sufficient to plausibly allege that he suffered from a serious
medical condition, and thus satisfies the objective prong of
the Darnell deliberate indifference analysis.
To satisfy the mens rea prong, this Court must “determine,
without the benefit of medical expertise, whether an
objectively reasonable person in [Drs. Martinez, Maungoo,
and Win's] position would have known, or should have
known, that [his or her] actions or omissions posed an
excessive risk of harm to [Fleming].” Davis, 283 F. Supp.
3d at 120 (citing Darnell, 849 F.3d at 35). In other words,
after Darnell, this Court must distinguish between negligent
medical treatment and something more than negligence,
which would give rise to a constitutional claim. Darnell,
849 F.3d at 36 (“[A]ny § 1983 claim for a violation of
due process requires proof of a mens rea greater than mere
negligence.” (citing Kingsley, 135 S. Ct. at 2472)). This
endeavor is especially difficult at the motion to dismiss stage,
where this Court lacks the benefit of expert testimony and
other relevant facts unearthed through discovery. Davis, 283
F. Supp. at 122 (“Determining whether a reasonable medical
provider would expect the conduct to result in excessive risk,
as opposed to some lower baseline level of risk associated
with any negligent medical conduct, may be difficult in the
context of a motion to dismiss—a stage at which the court
does not have the benefit of expert opinion.”)
Here, Plaintiff plausibly alleges that Fleming told Drs.
Martinez, Maungoo, and Win about his abdominal pain,
bloating, and bloody stools to no avail. She also alleges
that these physicians knew that Fleming was diagnosed with
hepatitis B—a life-threatening disease—but failed to treat
it. (FAC ¶ 97, 100.) Based on these allegations, it cannot
be determined whether, as a matter of law, no reasonable
physician in Drs. Martinez, Maungoo, and Win's position
would have known, or should have known, that his or her
actions or omissions posed an excessive risk of harm to
Fleming.
Accordingly, Plaintiff plausibly alleges that Drs. Martinez,
Maungoo, and Win were deliberately indifferent to Fleming's
medical needs when they refused to treat his hepatitis B and
his abdominal pain, bloating, and bloody stools.
D. Plaintiff Has Not Stated A Claim For Deliberate
Indifference To Safety Against The C.O. Defendants.
Plaintiff alleges that, after Fleming was assaulted by gang
members, the C.O. Defendants failed to protect him “from
a clear danger to his physical safety at the hands of other
prisoners.” (FAC ¶¶ 85, 86, 196.) Defendants first argue that
the gang member assault happened on August 21, 2016, “over
three years before the complaint was filed on June 1, 2018, ...
and as such is time-barred.” (City Defs.' Mem. at 6 (citing
Watkins v. Ramos, 14 Civ. 2748 (LGS), 2016 WL 3197565, at
*8 (S.D.N.Y. June 7, 2016))). Indeed, “[b]ecause the events
at issue here occurred [at Rikers], New York's 3-year residual
statute of limitations for personal injury claims applies” to
Plaintiff's § 1983 claim. Watkins, 2016 WL 3197565, at *8
(citing Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.
2002); N.Y. C.P.L.R. § 214(5) (McKinney 2015)). Plaintiff
does not challenge that her claims based on the August 21,
2015 assault are time-barred.
*14 Plaintiff's amended complaint otherwise contains no
other “timely allegations that [Fleming] was assaulted by
other inmates, but rather only alleges that he was, at times,
in fear of assault by other inmates.” (City Defs.' Mem. at 6.)
“Fear of assault, by itself, does not constitute a ‘sufficiently
serious’ injury sufficient to state a claim for failure to protect.”
Best v. City of N.Y., 11 Civ. 4475 (JMF), 2012 WL 5458054,
at *7 (S.D.N.Y. Nov. 8, 2012). Plaintiff's sole response is that
here, unlike in Best, Fleming had been previously assaulted,
and therefore the C.O. Defendants knew that he was at risk
of being assaulted again. (Mem. of Law in Opp'n to Mots.
To Dismiss of City of N.Y. and Affiliates (“City Opp'n”),
ECF No. 105, at 13–15.) Even if that were true, however,
it does not change the fact that Fleming was not assaulted
by other inmates again, and that the sole basis for Plaintiff's
indifference to safety claim is that Fleming was afraid of a
future assault. Accordingly, Plaintiff has failed to properly
allege that the C.O. Defendants were deliberately indifferent
to Fleming's safety.
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E. Plaintiff Has Not Stated A Claim For
Unconstitutional Conditions of Confinement Against
The C.O. Defendants.
Plaintiff alleges that Fleming was required to clean up sewage
that seeped from a broken sewage pipe in his cell. (FAC
¶¶ 177, 196.) The Second Circuit has held that inmates
may recover damages for prolonged exposure to waste and
unsanitary conditions that last for “several consecutive days.”
Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (holding
that inmate subjected to several days of feces, urine, and
sewage water in his cell, as well as five months of below-
freezing temperatures, sufficiently alleged unconstitutional
conditions of confinement under the Eighth Amendment).
Plaintiff's claim does not withstand the Defendants' motion
to dismiss because, unlike in Gaston, Plaintiff's exposure to
sewage was “intermittent or limited to a matter of hours,”
albeit very unpleasant. Ortiz v. Dep't. of Corr. of City of
N.Y., No. 08 Civ. 2195 (RJS) (HBP), 2011 WL 2638137,
at *7 (S.D.N.Y. Apr. 29, 2011) (R.&.R), adopted by, Ortiz
v. Hernandez, 2011 WL 2638140 (S.D.N.Y. July 5, 2011);
see also Odom v. Keane, No. 95 Civ. 9941 (SS), 1997 WL
576088, at *5 (S.D.N.Y. Sept. 17, 1997) (finding that a toilet
failing to flush between 9 p.m. and 7 a.m. for several months
“does not amount to cruel and unusual punishment”); Evans
v. Fogg, 466 F.Supp. 949, 950 (S.D.N.Y. 1979) (“To be
kept in a refuse-strewn cell for 24 hours and in a flooded
cell ... for two days is a rough experience, but, since neither
condition persisted for more than a limited period of time,
it cannot be said that the condition amounted to cruel and
unusual punishment.”) Accordingly, Plaintiff has failed to
properly allege that the C.O. Defendants subjected him to
unconstitutional conditions of confinement.
F. Plaintiff Has Not Stated A Claim For Retaliation
Under The First Amendment.
To state a claim under § 1983 for retaliation under the
First Amendment, Plaintiff must plausibly allege that (1)
“[Fleming] engaged in constitutionally protected conduct”
and (2) “the conduct was a substantial or motivating factor
for the adverse actions taken by prison officials.” Bennett
v. Goord, 343 F.3d 133, 137 (2d Cir. 2003). The Second
Circuit has defined “adverse action” as “retaliatory conduct
that would deter a similarly situated individual of ordinary
firmness from exercising ... constitutional rights.” Gill v.
Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis
v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation
marks omitted)). Even if Plaintiff can demonstrate adverse
action on the part of the C.O. Defendants, the C.O. Defendants
may avoid liability if they can establish that they would have
taken the adverse action even in the absence of the protected
conduct. Bennett, 343 F.3d at 137.
Regarding the first prong of the Bennett test, Plaintiff alleges
that Fleming engaged in protected speech in the form of
filing a grievance with HHC and Commissioner Ponte, and
prompting New York Assemblywoman Rosenthal and Legal
Aid to send letters of complaint to Commissioner Ponte and
the HHC. (City Opp'n at 15–16; FAC ¶¶ 135, 146, 154,
176.) The Second Circuit has held that filing a grievance
is conduct protected by the First Amendment. See Graham
v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (“filing a
grievance ... is constitutionally protected”); Washington v.
Afify, 681 F. App'x 43 (2d. Cir. 2017) (same); Faulk v.
Fisher, 545 F.App'x 56, 58 (2d Cir. 2013) (same). Similarly,
prompting letters of complaint to be sent to prison officials
also constitutes constitutionally protected conduct. Smith v.
Greene, No. 9:06 Civ. 505 (LEK), 2008 WL 794978, at *4
(N.D.N.Y. Mar. 24, 2008) (finding that letter of complaint sent
to Inspector General's office was conduct protected under the
First Amendment). Plaintiff therefore has plausibly alleged
the first prong of the retaliation test.
*15 However, as the C.O. Defendants point out, Plaintiff's
allegations that Fleming's protected activity motivated
the C.O. Defendants to retaliate against him are wholly
conclusory. (City Def. at 8.) Indeed, Plaintiff only alleges that
“[on] information and belief” the C.O. Defendants “decided
to retaliate against” Fleming by assaulting him on October
20, 2016 and forcing him to clean up sewage in his cell on
March 22, 2017. (FAC ¶ 155, 176–77.) These allegations
are insufficient to withstand a motion to dismiss, even if
the alleged assaults were in close temporal proximity to the
filing of the grievance and the letters of complaint. Afify,
681 F. App'x at 45 (“Although we have held that temporal
proximity between protected conduct and an adverse action
constitutes circumstantial evidence of retaliation, we have
consistently required some further evidence of retaliatory
animus before permitting a prisoner to proceed to trial on
a retaliation claim.” (citing Bennett, 343 F.3d at 138–39)
(emphasis added)). Because Plaintiff does not allege any facts
to support a finding of retaliatory animus on the part of the
C.O. Defendants “other than merely describing their acts as
retaliatory,” she fails to plausibly plead a § 1983 claim for
retaliation under the First Amendment. (City Defs.' Mem. at
8.)
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V. PLAINTIFF'S § 1983 CLAIMS ARE
DISMISSED AGAINST COMMISSIONER PONTE
Counts One and Seventeen allege that Commissioner Ponte,
in his individual capacity, deprived Fleming's and Plaintiff's
constitutional rights under 42 U.S.C. § 1983. (FAC ¶¶
195–200.) “A defendant in a § 1983 action may not be
held liable for damages for constitutional violations merely
because he held a high position of authority.” Victory v.
Pataki, 814 F.3d 47, 67 (S.D.N.Y. 2016) (quoting Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). Rather, the
Second Circuit requires Plaintiff to allege that Commissioner
Ponte was personally involved in the deprivation of Fleming's
constitutional rights. See Iqbal, 556 U.S. at 676 (“Because
vicarious liability is inapplicable to ... § 1983 suits,”
Plaintiff must plausibly allege that “each Government-official
defendant, through the official's own individual actions, has
violated the Constitution.”); Farrell v. Burke, 449 F.3d 470,
484 (2d Cir. 2006) (“[P]ersonal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.”).
Here, Plaintiff's allegations against Commissioner Ponte are
insufficient to establish that he was personally involved in
Fleming's deprivation of rights. First, as Defendants point out,
all but one of Plaintiff's allegations against Commissioner
Ponte involve group pleading. (FAC ¶¶ 196, 204, 220,
230, 234.) These allegations are not sufficient to allege
personal involvement because they “fail to differentiate as
to which defendant was involved in the alleged unlawful
conduct.” Amadou v. Cty. of Spotsylvania, Virginia, 12
Civ. 07789 (ALC), 2016 WL 1064608, at *11 (S.D.N.Y.
Mar. 14, 2016) (citing Atuahene v. City of Hartford, 10
F. App'x 33, 34 (2d Cir. 2001)). Furthermore, Plaintiff's
allegation that Commissioner Ponte “ignored” a letter from
Assemblywoman Rosenthal, dated July 22, 2016, is also
insufficient to state a claim for deliberate indifference to
Fleming's constitutional rights under § 1983. (FAC ¶¶ 135–
36.) Indeed, “Courts in this circuit have repeatedly held that
the receipt of letters or grievances, by itself, does not amount
to personal involvement.” Mateo v. Fischer, 682 F. Supp.
2d 423, 430 (S.D.N.Y. 2010) (collecting cases). Therefore,
without more, Plaintiff's allegation that Commissioner Ponte
ignored Assemblywoman Rosenthal's letter is insufficient
to conclude that he had personal involvement in Fleming's
constitutional rights deprivation.
Accordingly, all claims against Commissioner Ponte in his
individual capacity for deprivation of constitutional rights
pursuant to § 1983 are dismissed.
VI. PLAINTIFF'S § 1983 CLAIMS IN HER
INDIVIDUAL CAPACITY ARE DISMISSED
Count Seventeen alleges that the C.O. Defendants and
the Rikers Medical Defendants deliberately interfered with
Plaintiff's “constitutionally protected liberty interest in her
relationship with [Fleming], a fundamental right to the care,
custody and nurture of her son, and a constitutional right to be
able to make informed choices with and for a progressively
incapacitated son.” (FAC ¶¶ 269–72.)
*16 “The Fourteenth Amendment guarantees a substantive
right under the Due Process Clause to intimate familial
association....” Gorman v. Rensselaer Cty, 910 F.3d 40, 47 (2d
Cir. 2018) (citing Patel v. Searles, 305 F.3d 130, 135–36 (2d
Cir. 2002)). To properly state an intimate association claim,
Plaintiff must allege that her separation from Fleming was “
‘so shocking, arbitrary, and egregious’ that the Due Process
Clause would not countenance it even were it accompanied
by full procedural protection.” Id.; see also Anthony v. City of
N.Y., 339 F.3d 129, 143 (2d Cir. 2003) (citing Tenenbaum v.
Williams, 193 F.3d 581, 600 (2d Cir. 1999)).
“Plaintiff's complaint does not allege that any of the
individual defendants ‘specifically intended’ to target her
relationship with her son.” (City Defs.' Mem. at 17 (citing
FAC, passim).) Last year, the Second Circuit joined “the
consensus view of the circuit courts,” holding that “a claim
under the Due Process Clause for infringement of the
right to familial associations requires the allegation that
state action was specifically intended to interfere with the
family relationship.” Gorman, 910 F.3d at 48 (2d Cir. 2018)
(emphasis added); see also Phillips v. City of Orange, 894
F. Supp. 2d 345, 380 n.32 (S.D.N.Y. 2012) (collecting
cases where district courts in the Second Circuit found
that intimate association claims are limited “to situations
in which the state actor intentionally targets the familial
relationship” (emphasis added)). Accordingly, Plaintiff's §
1983 claim for loss of her familial association with Fleming,
raised in her individual capacity, is dismissed.
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VII. PLAINTIFF'S ADA AND RA CLAIMS
ARE DISMISSED AGAINST HHC
Counts Two and Three allege that Commissioner Ponte, the
City, and several Rikers correctional officers (the “ADA
Defendants”) violated Fleming's rights under the ADA and
the RA because they failed to provide segregated housing and
wheelchair access to “accommodate his mental and medical
disabilities.” (FAC ¶¶ 201–11.) Plaintiff has plausibly alleged
that these deprivations contravene Fleming's rights under
these statutes.
Plaintiff also names HHC in her second and third causes of
action. (Id.) Defendant HHC correctly highlights, however,
that “Plaintiff does not ... plead any facts showing that [it]
[was] responsible for assigning housing, inmate segregation,
or providing wheelchairs.” (Med. Defs.' Mem. at 14.) Because
those facts are the basis of Plaintiff's ADA and RA claims, her
second and third causes of action are dismissed as to HHC.
Title II of the ADA requires 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.
Section 504 of the RA requires that “[n]o otherwise qualified
individual with a disability ... shall, solely by reason of her or
his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance....”
29 U.S.C. § 794(a). Because the standards under both statutes
are generally the same and the subtle distinctions between the
statutes are not implicated in this case, “[courts] treat claims
under the two statutes identically.” Henrietta D. v. Bloomberg,
331 F.3d 261, 272 (2d Cir. 2003).
*17 In order to state a prima facie violation of these acts,
Plaintiff must allege that Fleming (1) “[was] a qualified
individual with a disability”; (2) “[the ADA Defendants]
[are] subject to the acts”; and (3) “[Fleming] was denied
the opportunity to participate in or benefit from [the ADA
Defendants'] services, programs, or activities or [the ADA
Defendants] otherwise discriminated against him by reason
of his disability.” Wright v. N.Y. St. Dep't. of Corrs., 831 F.3d
64, 72 (2d Cir. 2016) (citing Henrietta, 331 F.3d at 272).
The ADA Defendants concede that Fleming was a qualified
individual with a disability, in the form of “an acute medical
condition, and a psychiatric condition[,]” and that they are
subject to the ADA and RA. (City Defs.' Mem. at 23–24; Med.
Defs.' Mem. at 13.)
Plaintiff has plausibly alleged that the ADA Defendants
denied Fleming access to a wheelchair to attend his scheduled
court appearance on May 17, 2017 (FAC ¶¶ 179–82.). In fact,
the hearing allegedly had to be rescheduled because Plaintiff
was deemed too weak to attend without the wheelchair. (Id.)
Furthermore, Plaintiff plausibly states that the ADA
Defendants housed Fleming with the general prison
population on at least two occasions, despite his severe mental
illness and in defiance of his “protective custody status.” (Id.
¶¶ 72, 78–80, 86–91.) The amended complaint explains that
“the court ordered [Fleming] into protective custody” after
the April 21, 2015 assault. (Id. ¶ 72.) According to Plaintiff,
on June 8, 2015, Fleming was taken to the courthouse to
attend his sentencing hearing. The ADA Defendants then
defied the court's protective custody by allegedly forcing
Fleming into the jail's “general population holding pen” to
await his sentencing hearing. (Id. at 78–81.) Plaintiff also
alleges that when Fleming protested, the ADA Defendants
violently assaulted him. (Id.)
Similarly, on August 16, 2015, Plaintiff alleges that the
ADA Defendants forced Fleming into the general population
housing unit at the AMKC facility. (Id. ¶¶ 86–92.) When
Fleming complained that he was being “threatened by
gangs in the AMKC facility and asked that he not be
housed with gang members,” one of the ADA Defendants
allegedly told him that “he would be ‘smacked around’ if he
complained.” (Id. ¶ 90.) According to Plaintiff, “[Fleming]
became frightened, started panicking, and in despair and fear
unconsciously removed all his clothing in protest. Instead of
contacting mental health staff, [one of the ADA Defendants]
responded by physically assaulting [Fleming].” (Id. ¶ 92.)
Taken as true, these allegations raise genuine issues of
material facts concerning (1) whether the ADA Defendants
refused to isolate Fleming pursuant to the court's protective
order, and provide him with a wheelchair; (2) whether
these deprivations denied Fleming “meaningful access”
to his medical care and court appearances; and (3)
whether a reasonable accommodation existed to prevent this
deprivation, such as segregated housing for mentally ill
inmates in the jail and the AMKC facility. Wright, 831 F.3d at
72 (“In examining this claim, we ask whether a plaintiff with
disabilities ‘as a practical matter’ was denied ‘meaningful
access’ to services, programs or activities to which he or
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she was ‘legally entitled.’ ”) (quoting Henrietta, 331 F.3d at
273); Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009) (remanding
case to district court to determine whether a reasonable
accommodation existed, and whether it “might have allowed
[plaintiff] to participate in the” program to which she was
legally entitled). Accordingly, Plaintiff plausibly states a
prima facie failure to accommodate claim under the ADA
and RA against the ADA Defendants for not placing Fleming
in segregated housing for mentally ill patients, and for not
providing him with a wheelchair to attend the May 17, 2017
court hearing.
VIII. PLAINTIFF'S PROSECUTION-
RELATED BRADY CLAIMS ARE DISMISSED
*18 Count Sixteen alleges that police officers Defendants
John Does 36–38 “deliberately suppressed evidence
favorable to [Fleming], including an exculpatory video that
would have established [Fleming's] innocence,” in violation
of his constitutional rights pursuant to Brady v. Maryland,
373 U.S. 83 (1963). (FAC ¶ 265.) She also alleges that
they included “[Fleming] in a grossly suggestive line-up that
caused [Fleming] to be misidentified as the perpetrator of a
series of robberies of which he was innocent.” (Id. ¶ 267.)
As a result of the suppression of this exculpatory evidence,
Plaintiff alleges that Fleming's detention was unreasonably
prolonged. (Id. ¶ 266.)
In Heck v. Humphrey, the Supreme Court held that in order to
recover damages under § 1983 for unconstitutional conviction
or imprisonment, Plaintiff “must prove that [Fleming's]
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.” 512 U.S. 477, 486–87 (1994).
Plaintiff's “prosecution-related claims fail as a matter of law
because [Fleming] pleaded guilty to the armed robbery for
which he was prosecuted.” (FAC ¶ 265.) Applying Heck, the
Second Circuit has “emphatically and properly confirmed that
Brady-based § 1983 claims necessarily imply the invalidity
of the challenged conviction in the trial (or plea) in which the
Brady violation occurred.” Poventud v. City of N.Y., 750 F.3d
121, 132–33 (citing Amaker v. Weiner, 179 F.3d 48, 51–52 (2d
Cir. 1999)).
Accordingly, Plaintiff § 1983 Brady claims are dismissed as a
matter of law because Fleming's conviction was not reversed,
expunged, declared invalid, or called into question by a writ
of habeas corpus.
IX. PLAINTIFF'S NEGLIGENCE
CLAIM IS NOT DISMISSED
Count Seven alleges that Rikers correctional officers and
medical staff, John Does 1–38, were negligent at “overseeing
[Fleming's] day-to-day physical and medical monitoring and
care.” (FAC ¶¶ 223–26.) Defendants argue that this claim is
“inconsistent with plaintiff's factual allegations of intentional
acts of wrongdoing by these same defendants.” (City Defs.'
Mem. at 22.)
But Federal Rule of Civil Procedure 8 “permits pleading
inconsistent theories in the alternative.” Kruse v. Wells Fargo
Home Mortg., Inc., 383 F.3d 49, 55 n. 3 (2d Cir. 2004). “The
flexibility afforded by [Rule 8] is especially appropriate in
civil rights cases, in which complex inquiries into the parties'
intent may sometimes justify raising multiple, inconsistent
claims.” Id. (citing MacFarlane v. Grasso, 696 F.2d 217, 224–
25 (2d. Cir. 1982)). Therefore, a court “may not construe
[one claim] as an admission against another alternative or
inconsistent claim.” Henry v. Daytop Village, Inc., 42 F.3d 89,
95 (2d Cir. 1994) (citing McCalden v. Cal. Library Ass'n., 995
F.2d 1214, 1219 (9th Cir. 1990)). Accordingly, for purposes
of a motion to dismiss, Plaintiff's negligence claim against the
Rikers correctional officers and medical staff is not precluded
by its allegations that they behaved intentionally.
X. PLAINTIFF'S NEGLIGENT HIRING AND
RETENTION CLAIMS ARE DISMISSED
Counts Nine and Ten allege that Commissioner Ponte, the
City, HHC, and Physician Affiliate Group of New York
(“PAGNY”) are liable for negligently hiring correctional
officers and medical personnel. (FAC ¶¶ 231–38.) Under
New York law, however, “[i]f the employee acted within the
scope of her employment, the employer and the employee's
supervisors may be held liable for the employee's negligence
only under a theory of respondeat superior.” Velez v. City of
N.Y., 730 F.3d 128, 137 (2d Cir. 2013) (citing Karoon v. N.Y.C.
Transit Auth, 659 N.Y.S.2d 27, 29 (1st Dep't 1997)). This is
because if the employee was not negligent, there is no basis
for imposing liability on the employer, and if the employee
was negligent, the employer must pay the judgment regardless
of the hiring....” Karoon, 659 N.Y.S.2d at 29. Accordingly,
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Plaintiff's negligent hiring claims are dismissed as a matter of
law.
XI. PLAINTIFF'S MEDICAL MALPRACTICE AND
WRONGFUL DEATH CLAIMS ARE DISMISSED
*19 Counts Fourteen and Fifteen allege that several medical
professionals at Rikers, Elmhurst Hospital, and Bellevue
Hospital, including Dr. Holman, Nurse Mahmood, and PA
Larosa, committed medical malpractice that resulted in the
wrongful death of Fleming. (FAC ¶¶ 254–63.) Specifically,
she alleges that they deviated from the accepted medical
standard of care to detect and treat Fleming's internal
bleeding, psychiatric disorders, and mental illness. (Id. ¶ 255.)
“To establish a claim of medical malpractice under New York
law, [Plaintiff] must prove (1) that [Defendants] breached a
standard of care in the community, and (2) that the breach
proximately caused [Fleming's] injuries.” Milano by Milano
v. Freed, 64 F.3d 91, 95 (2d Cir. 1995) (quoting Arkin v.
Gittleson, 32 F.3d 658, 664 (2d. Cir. 1994)).
Here, Plaintiff's allegations against Dr. Holman, Nurse
Mahmood, and PA Larosa are insufficient to state a claim
for medical malpractice and or wrongful death because they
lack any substantial factual allegations against any of these
Defendants. (Med. Defs.' Mem. at 14–17.) In fact, Dr. Holman
is not mentioned at all in Plaintiff's amended complaint, other
than being listed as one of the Defendants in the caption and
in the fourteenth cause of action. Plaintiff does not even allege
that Dr. Holman saw Fleming as a patient, much less that
he treated him in any way. Similarly, Plaintiff only raises
a wrongful death cause of action against Nurse Mahmood
and PA Larosa for failing to administer Fleming's prescribed
psychiatric medications and for failing to “investigate the
reasons for [Fleming's] non-appearance” at his outpatient
oncology appointments, respectively. (Id. ¶¶ 103, 106, 110,
112, 114, 122.) These allegations are insufficient to plausibly
allege that either of these Defendants deviated from the
accepted medical standard of care that caused his death. Diggs
v. City of N.Y., No. 17 Civ. 1127 (VEC), 2018 WL 5924413,
at *3 (S.D.N.Y. Aug. 17, 2018) (“Where a complaint fails to
contain any substantive allegations concerning a defendant
named in the caption, it fails to state a claim as to that
defendant.” (citing Dove v. Fordham Univ., 56 F. Supp. 2d
330, 335 (S.D.N. Y 1999), aff'd sub nom., Dove v. O'Hare,
201 F.3d 354 (2d Cir. 2000))).
Accordingly, the medical malpractice and wrongful death
claims are dismissed as to Dr. Holman, Nurse Mahmood, and
PA Larosa.
XII. PLAINTIFF'S CLAIM FOR A
DECLARATORY JUDGMENT IS DISMISSED
Count Nineteen seeks a declaratory judgment that
“[Fleming's] plea was not voluntary and was entered into
under duress.” (FAC ¶¶ 276–80.) But declaratory judgment,
like an injunction, is a form of prospective relief that is
only available if Plaintiff shows “a sufficient likelihood
that he [or she] will again be wronged in a similar way.”
Marcavage v. City of N.Y., 689 F.3d 98, 103 (2d Cir. 2012)
(quoting City of L.A. v. Lyons, 461 U.S. 95, 111 (1983)).
Plaintiff's allegations regarding Fleming's plea are entirely
retrospective. Plaintiff does not allege that there is a risk
of future harm. Accordingly, Plaintiff's nineteenth cause of
action for a declaratory judgment is dismissed.
XIII. CONCLUSION
Defendants' motions to dismiss Counts Nine and Ten
(negligent hiring and detention), Eleven and Eighteen (§
1983 Monell claims), Sixteen (§ 1983 claims for malicious
prosecution pursuant to Brady v. Maryland, 373 U.S. 83
(1963)), Seventeen (§ 1983 claim for loss of familial
relationship), and Nineteen (declaratory judgment) are
GRANTED. The Medical Defendants' motion to dismiss
Counts Two (ADA claims) and Three (RA claims) is
GRANTED. The Medical Defendants' motion to dismiss
Counts Fourteen (medical malpractice) and Fifteen (wrongful
death) against Dr. Richard Holman, Nurse Mahmood, and
PA Larosa, and Count One (§ 1983 claims for deliberate
indifference to medical needs) against Dr. Joon Park is
GRANTED. 18
*20 Accordingly, the Clerk of Court is instructed to close
the motions at ECF Nos. 72 and 85.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4392522
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Footnotes
1 Plaintiff raises causes of action for (1) deprivation of Fleming's constitutional rights enforceable under 42
U.S.C. § 1983; (2) violations of Title II of the ADA; (3) violations of Section 504 of the RA; (4) assault and
battery; (5) vicarious liability for assault and battery; (6) negligence in prescribing excessive quantities of
opioid medications; (7) negligence in supervising and overseeing inmates' day-to-day physical and medical
care; (8) vicarious liability for negligence; (9) negligent hiring and detention as to medical personnel; (10)
negligent hiring and detention as to correctional officers; (11) deprivation of Fleming's constitutional rights
pursuant to Monell v. Department of Social Services., 436 U.S. 658 (1978); (12) medical malpractice by
Rikers medical personnel; (13) medical malpractice by Bellevue Hospital medical personnel; (14) medical
malpractice by Elmhurst Hospital medical personnel; (15) wrongful death; (16) deprivation of Fleming's
constitutional rights against John Does 36–38 pursuant to Brady v. Maryland, 373 U.S. 83 (1963); (17)
deprivation of Plaintiff's constitutional rights enforceable under 42 U.S.C. § 1983 (18) deprivation of Plaintiff's
constitutional rights pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978); and (19)
declaratory judgment. (FAC ¶¶ 195–280.)
2 At oral argument on the Defendants' motions to dismiss, Plaintiff withdrew all claims against Bellevue Hospital
Center and Elmhurst Hospital Center. (Tr. of May 21, 2019 Oral Arg. (“Tr.”), ECF No. 122, at 3:6–4:3.)
3 The Supreme Court has held that “a suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official's office.... As such, it is no different from a suit against
the State itself.” Will v. Mich. Dep't of St. Police, 491 U.S. 58, 71 (1989). Accordingly, all of Plaintiff's claims
against Commissioner Ponte in his official capacity are dismissed because they are duplicative of her Monell
claim against the City.
All claims should be dismissed against the DOC because the New York City Charter provides that “all actions
and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the
city of New York and not in that of any agency, except where otherwise provided by law.” (City Defs.' Mem. at
14 (citing N.Y. City Charter Ch. 18 § 396).) Accordingly, all claims against the DOC are dismissed because it
is a non-suable entity. See Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y. 1997) (“where a plaintiff has
named the Department of Corrections as a defendant, he has sued a non-suable entity.” (citations omitted)).
4 The following factual allegations are taken from the amended complaint (as well as documents attached to it
or incorporated by reference) and are deemed to be true for purposes of the Defendants' motions to dismiss.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002).
5 Plaintiff states that Fleming reported the bloody stool “to Dr. Jennifer Wu and/or Dr. Lanatra and/or Dr.
Nierodzik.” (FAC ¶ 111.)
6 Plaintiff states that Fleming reported the abdominal pain and bloody stool “to Dr. Maungoo and/or Dr. Win.” (Id.
¶ 120.)
7 Plaintiff states that Fleming reported the abdominal pain and bloody stool “to Dr. Maungoo and/or Dr. Win.” (Id.
¶ 120.)
8 Plaintiff states that “Dr. Wu and/or Dr. Lanatra and/or Dr. Nierodzik” refused to further treat Fleming. (Id. ¶
153.)
9 Count Eighteen for deprivation of her individual rights under the Fourteenth Amendment, pursuant to Monell,
is also dismissed for the same reasons.
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10 Plaintiff has not served her amended complaint on three (3) named Rikers correctional officers included in
her first cause of action, Defendants (1) Saint-Fleur, (2) Owens, and (3) Whitaker.
11 Plaintiff served her amended complaint on four named Rikers Medical Defendants included in her first cause
of action, Defendants (1) Dr. Maung Maungoo, (2) Dr. Myat Win, (3) Dr. Joon Park, and (4) Dr. Antonio
Martinez.
12 The City and HHC are not subject to § 1983 liability unless Plaintiff plausibly alleges a Monell claim. See
Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell, 436 U.S. at 692 (1978)). Accordingly, because
this Court already determined that Plaintiff failed to do so, Count One is dismissed against the City and HHC.
13 Defendants do not challenge Plaintiff's allegations of excessive force. (City Defs.' Mem. at 2.) Accordingly,
Plaintiff's first cause of action for use of excessive force in violation of the Fourth Amendment stands against
the C.O. Defendants.
14 For the same reasons, this Court also dismisses Plaintiff's vague and conclusory allegation that Drs. Maungoo
and Win “failed to make a mental health referral” for Fleming after his return from Bellevue, despite knowing,
“[o]n information and belief, ... that [Fleming] was severely mentally ill.” (FAC ¶ 131.)
15 Defendant further argues that it is a matter of “common knowledge” that “it is safer for an immune-suppressed
cancer patient to be separated from other prisoners.” This Court need not address this unsupported claim.
16 The amended complaint also states that on July 7, 2016, after complaining for months of abdominal pain
and bloody stools, Drs. Win and Maungoo finally performed a CAT scan on Fleming. According to Plaintiff,
however, they “failed to order or administer an appropriate contrast solution, and failed to properly advise
[Fleming] to abstain from eating before the CAT scan.” (FAC ¶ 128.) Consequently, the CAT scan results
were inconclusive. (Id.) Plaintiff also alleges that Drs. Maungoo and Win refused to re-do the CAT scan,
impeding them from realizing that Fleming's cancer had metastasized to his liver. (Id.)
17 Conversely, “[i]n cases where the inadequacy is in the medical treatment given, the seriousness inquiry is
narrower.” Salahuddin, 467 F.3d at 280. “For example, if the prisoner is receiving on-going treatment and the
offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry focuses
on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition
alone.” Id. (internal citation and quotation marks, and alteration omitted); Smith v. Carpenter, 316 F.3d 178,
185 (2d Cir. 2003).
18 Plaintiff “requests leave to file a Second Amended Complaint in the event the Court finds that any of the factual
allegations are insufficiently plead.” (City Opp'n at 36.) Plaintiff may submit a motion to amend attaching a
proposed amended complaint, provided the amendments submitted are not futile. See AEP Energy Srvs.
Gas Holding Co. v. Bank of Am., N.A., 626 F.3rd 699, 726 (2d Cir. 2010) (“Leave to amend may be denied on
grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable
issues of fact.”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Leckie v. City of New York, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 3168699
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Darrell LECKIE, Plaintiff,
v.
CITY OF NEW YORK; and New York City Health
and Hospital Corporation, HHC Dentist Allan Matthew,
D.D.S, NYC DOC John-Jane Doe Correction Officers
1-10, individually and in their official capacities;
HHC John-Jane Doe Medical Providers 11-20,
individually and in their official capacities, Defendants.
Darrell Leckie, Plaintiff,
v.
Debbie Napoli, R.N. (Provider No. 280), Jordan Laguio,
M.D (Provider No. 104), Khondkar Rakib, D.D.S
(Provider No. 703), Tammy Hyatt, RDH, and John-Jane
Doe 1-10 New York State Department of Correction
and Community Supervision Medical Providers, and
John-Jane Doe 11-20 New York State Department of
Correction and Community Supervision Correction
Officers, “Doe” Ada Compliance Officer; “Doe” IGP
Supervisor, “Doe” Deputy Superintendent for Programs,
“Doe” Deputy Superintendent for Administration,
“Doe” staff members of IGRC, all defendants
individually and in their official capacities, Defendants.
19 Civ. 6719 (PGG) (RWL)
|
21 Civ. 7212 (PGG) (RWL)
|
Signed May 1, 2023
Attorneys and Law Firms
Anna Berezovski, Gary A. Lichtman, New York, NY,
Katherine Elizabeth Smith, The Law Office of Katherine E.
Smith, New York, NY, for Plaintiff in 19 Civ. 6719, 21 Civ.
7212.
Alejandra Rosa Gil, Heidell, Pittoni, Murphy & Bach, White
Plains, NY, Austa Starr Devlin, Laura Anne DelVecchioo,
Heidell, Pittoni, Murphy & Bach, LLP, New York, NY,
Mandy Nguyen, Vigorito, Barker, Patterson, Nichols &
Porter, LLP, New York, NY, Mercedes Cesaratto, New York
City Law Department, New York, NY, for Defendant City of
New York in 19 Civ. 6719.
Alejandra Rosa Gil, Heidell, Pittoni, Murphy & Bach, White
Plains, NY, Austa Starr Devlin, Laura Anne DelVecchioo,
Heidell, Pittoni, Murphy & Bach, LLP, New York, NY,
Mandy Nguyen, Vigorito, Barker, Patterson, Nichols &
Porter, LLP, New York, NY, for Defendant New York City
Health and Hospital Corporation in 19 Civ. 6719.
Alejandra Rosa Gil, Heidell, Pittoni, Murphy & Bach, White
Plains, NY, for Defendant Matthew Allan in 19 Civ. 6719.
Sarande Dedushi, NYS Office of The Attorney General,
New York, NY, for Defendants Debbie Napoli, R.N., Jordan
Laguio, M.D., Khondkar Rakib, D.D.S., RDH Tammy Hyatt
in 21 Civ. 7212.
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, United States District Judge:
*1 In these actions, Plaintiff Darrell Leckie asserts claims
under 42 U.S.C. §§ 1983 and 1988 for deliberate indifference
to a serious medical need, as well as related statutory and
tort causes of action, against medical providers, correction
officers, and New York State and City government entities.
Leckie alleges that, while he was incarcerated at Rikers
Island and in state prisons, he was denied treatment for his
infected tooth, which required extraction. Leckie alleges that
Defendants’ delay in arranging for the extraction of his tooth
caused him to suffer intense pain, and ultimately led to sepsis
and to a loss of hearing in one ear.
In 19 Civ. 6719 (“Leckie I”), Leckie asserts claims against
the City of New York (the “City”), the New York City Health
and Hospital Corporation (“Health & Hospitals”), Dentist
Allan Matthew, and John/Jane Doe correction officers and
medical providers, individually and in their official capacities
(collectively, the “City Defendants”). The claims in Leckie
I relate to alleged mistreatment at Rikers Island. (Leckie I
Second Am. Cmplt. (“SAC”) (Dkt. No. 110))
In 21 Civ. 7212 (“Leckie II”), Leckie brings claims against
Registered Nurse Debbie Napoli; Dr. Jordan Laguio; Dentist
Khondkar Rakib, Registered Dental Hygienist Tammy Hyatt;
and John/Jane Doe correction officers, medical providers, and
state employees responsible for disability accommodation,
individually and in their official capacities (collectively, the
“State Defendants”). (Leckie II Cmplt. (Dkt. No. 5)) The
claims in Leckie II relate to mistreatment in state prisons
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operated by the New York State Department of Correction and
Community Supervision (the “DOC”).
The Leckie I SAC was filed on February 24, 2021, and
the City Defendants moved to dismiss on March 23, 2021,
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt.
Nos. 110, 115) The Leckie II Complaint was filed on August
27, 2021, and on April 14, 2022, the State Defendants moved
to dismiss pursuant to Federal Rules of Civil Procedure 12(b)
(1) and (6), and to transfer any surviving claims to the
Northern District of New York. (Dkt. Nos. 5, 31) Plaintiff
moved to consolidate the two actions on April 14, 2022.
(Leckie II Dkt. No. 35)
This Court referred the parties’ motions to Magistrate Judge
Robert W. Lehrburger for a Report and Recommendation
(“R&R”). (Leckie I Dkt. No. 124; Leckie II Dkt. No. 38)
On June 30, 2022, Judge Lehrburger issued a thorough 61-
page R&R recommending (1) that the motions to dismiss
be granted in part; (2) that the State Defendants’ motion to
transfer be denied; and (3) that Leckie's motion to consolidate
be granted. (R&R (Dkt. No. 129)) 1
For the reasons stated below, the R&R will be adopted in
part; Defendants’ motions to dismiss will be granted in part;
the State Defendants’ motion to transfer will be denied; and
Leckie's motion to consolidate will be granted.
BACKGROUND 2
*2 The R&R sets out the factual background and procedural
history of the instant actions in detail. (R&R (Dkt. No. 129)
at 2-9) 3 The relevant background and procedural history are
briefly summarized below.
I. FACTUAL BACKGROUND
According to the complaints, Leckie was admitted to City
custody in April 2018, and soon after complained of pain in
his mouth and jaw to Doe Correction Officers and Medical
Providers and to a non-defendant doctor. There was a delay
in producing Leckie for a dental appointment, but on April
24, 2018, Defendant Matthew, a dentist, examined Leckie
and determined that one of his teeth required extraction. No
extraction was performed, however, despite Leckie's repeated
complaints of “great pain” in his mouth and jaw. (R&R (Dkt.
No. 129) at 3; Leckie I SAC (Dkt. No. 110) ¶ 25)
Leckie was transferred to State custody on August 30, 2018,
and immediately complained of jaw pain to multiple State
Defendants. (R&R (Dkt. No. 129) at 3) Defendant Napoli,
a nurse, performed an intake examination that day. The
Leckie II Complaint alleges that Defendant Napoli “failed
to refer ... [P]laintiff to a dental provider”; however, in the
next paragraph, the Complaint alleges that Defendant Rakib,
a dentist, and Defendant Hyatt, a dental hygienist, examined
Leckie the next day, August 31, 2018. (Leckie II Cmplt. (Dkt.
No. 5) ¶¶ 30-31) Rakib and Hyatt determined that Leckie
should be referred to an oral surgeon to extract tooth #31, but
never made the referral. (R&R (Dkt. No. 129) at 4)
Over the next two months, Leckie was transferred back
and forth between City and State custody. He continued to
complain of pain, but was repeatedly ignored or given only
palliative treatment. (Id.) On October 12, 2018, he saw Rakib
and Hyatt again, but they gave him only over-the-counter
pain medications and did not refer him to an oral surgeon.
A week later – on October 19, 2018 – Leckie “presented
to the dental clinic with high fever, nausea, and inability to
eat.” (Id.) Defendants Hyatt and Laguio, a medical doctor,
both saw Leckie. Neither Hyatt nor Laguio referred Leckie
to an oral surgeon. Laguio noted Leckie's medical history
– which indicated that Leckie needed to be referred to an
oral surgeon for a tooth extraction – and diagnosed Leckie
with a dental abscess and dental infection. He prescribed
oral antibiotics and pain medication rather than immediately
referring Leckie for a tooth extraction. (Id. at 4-5)
By October 22, 2018, Leckie's symptoms had worsened to
include high fever, neck swelling, and an inability to move his
jaw. Rakib, Hyatt, and Laguio transferred Leckie to a prison
infirmary. After twelve hours in the infirmary, during which
his condition worsened, Leckie was transferred to Ellenville
Regional Hospital, and then Westchester Medical Center.
Leckie was diagnosed with sepsis and underwent surgery to
drain his abscess. He was intubated for two days as a result of
post-operative complications. The infection caused Leckie to
permanently lose hearing in his right ear. (Id. at 5)
After his hospitalization, Leckie was returned to City custody,
and subsequently transferred back and forth between City
and State custody. While in State custody, Leckie requested
an accommodation related to his hearing loss, but the Doe
disability personnel Defendants ignored or denied his request.
(Id. at 5-6)
II. PROCEDURAL HISTORY
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*3 The Complaint in Leckie I was filed on July 18, 2019, the
First Amended Complaint was filed on December 21, 2019,
and the SAC was filed on February 24, 2021. (Dkt. Nos. 1,
41, 110) The City Defendants moved to dismiss the SAC on
March 23, 2021. (Dkt. No. 115) The Complaint in Leckie II
was filed on August 27, 2021. (Dkt. No. 5) On April 14, 2022,
the State Defendants moved to dismiss and to transfer any
surviving claims to the Northern District of New York. Leckie
cross-moved to consolidate the instant actions. (Dkt. Nos. 31,
35)
This Court referred the Leckie I motion to dismiss and the
Leckie II motion to dismiss to Judge Lehrburger for an
R&R on November 19, 2021 and May 6, 2022, respectively.
(Leckie I, Dkt. No. 124; Leckie II, Dkt. No. 38) Judge
Lehrburger issued his R&R on June 30, 2022. (Dkt. No. 129)
The State Defendants filed objections on July 14, 2022, and
Leckie filed an opposition to the State Defendants’ objections
on July 28, 2022. (Dkt. Nos. 40-41) Neither Leckie nor the
City Defendants have filed objections to the R&R.
III. THE R&R'S RECOMMENDATIONS AND THE
STATE DEFENDANTS’ OBJECTIONS
The Leckie I SAC asserts causes of action for negligence/
medical malpractice as to the City, Health and Hospitals,
and the Doe Defendants; deliberate indifference in violation
of Section 1983 and failure to intervene as to all City
Defendants; and intentional and negligent infliction of
emotional distress as to all City Defendants. Leckie also
asserts a Monell claim against the City and Health &
Hospitals. (Leckie I SAC (Dkt. No. 110) at 6-11) The
Leckie II Complaint asserts causes of action for deliberate
indifference and failure to intervene, in violation of Section
1983, as to all State Defendants; violations of the reasonable
accommodation and disparate treatment provisions of Title
II of the Americans with Disabilities Act (the “ADA”);
retaliation in violation of the ADA; and violations of
the reasonable accommodation and disability discrimination
provisions of Section 504 of the Rehabilitation Act of 1973.
Leckie's ADA and Rehabilitation Act claims are brought
against the Doe State employees responsible for disability
accommodation. (Leckie II Cmplt. (Dkt. No. 5) at 11-21)
In Leckie I, Judge Lehrburger recommends that Leckie's
Monell claim and his claims against the Doe Defendants be
dismissed. Judge Lehrburger recommends that Defendants’
motion otherwise be denied. (R&R (Dkt. No. 129) at 57)
In Leckie II, Judge Lehrburger recommends that Leckie's
claims against Defendant Napoli, the Doe Defendants, and
the individual State Defendants in their official capacities be
dismissed. He further recommends that Leckie's claims under
the ADA, the Rehabilitation Act, and New York state law be
dismissed. The R&R recommends that the State Defendants’
motion to dismiss otherwise be denied. (Id. at 58)
The R&R also recommends that Leckie's motion to
consolidate be granted, and that the State Defendants’ motion
to transfer be denied. (Id. at 10-18)
In their objections to the R&R, the State Defendants contend
that their motion to dismiss Leckie's Section 1983 claims
against Defendants Hyatt and Laguio should be granted
because (1) Leckie has not adequately pled deliberate
indifference to a serious medical need as to Hyatt and Laguio;
and (2) Hyatt and Laguio are entitled to qualified immunity.
(Def. Objs. (Dkt. No. 40))
DISCUSSION
I. LEGAL STANDARDS
A. Review of a Magistrate Judge's Report and
Recommendation
A district court reviewing a magistrate judge's report and
recommendation “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)(1)(C). “ ‘The district
judge evaluating a magistrate judge's recommendation may
adopt those portions of the recommendation, without further
review, where no specific objection is made, as long as they
are not clearly erroneous.’ ” Gilmore v. Comm'r of Soc.
Sec., No. 09 Civ. 6241 (RMB) (FM), 2011 WL 611826,
at *1 (S.D.N.Y. Feb. 18, 2011) (quoting Chimarev v. TD
Waterhouse Inv. Servs., Inc., 280 F. Supp. 2d 208, 212
(S.D.N.Y. 2003)). A decision is “clearly erroneous” when,
“upon review of the entire record, [the court is] left with
the definite and firm conviction that a mistake has been
committed.” United States v. Snow, 462 F.3d 55, 72 (2d Cir.
2006) (quotation marks and citation omitted).
*4 Where a timely objection has been made to a magistrate
judge's recommendation, the district judge “shall make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C). However,
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“[o]bjections that are ‘merely perfunctory responses argued
in an attempt to engage the district court in a rehashing of
the same arguments set forth in the original [papers] will
not suffice to invoke de novo review.’ ” Phillips v. Reed
Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (second
alteration in original) (quoting Vega v. Artuz, 97 Civ. 3775
(LTS)(JCF), 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30,
2002)). “To the extent ... that the party ... simply reiterates
the original arguments, [courts] will review the Report strictly
for clear error.” IndyMac Bank, F.S.B. v. Nat'l Settlement
Agency, Inc., 07 Civ. 6865 (LTS)(GWG), 2008 WL 4810043,
at *1 (S.D.N.Y. Nov. 3, 2008) (citing Pearson-Fraser v.
Bell Atl., No. 01 Civ. 2343 (WK), 2003 WL 43367, at *1
(S.D.N.Y. Jan. 6, 2003) and Camardo v. Gen. Motors Hourly-
Rate Emp. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.
1992)); see also Ortiz v. Barkley, 558 F. Supp. 2d 444,
451 (S.D.N.Y. 2008) (“Reviewing courts should review a
report and recommendation for clear error where objections
are merely perfunctory responses, ... rehashing ... the same
arguments set forth in the original petition.” (quotation marks
and citations omitted)).
Moreover, a party cannot invoke de novo review by citing
new facts or making new arguments that the party could have
raised in the briefing before the magistrate judge but did not.
See Bolling v. City of New York, No. 18CIV5406PGGRWL,
2021 WL 961758, at *6 (S.D.N.Y. Mar. 15, 2021) (“[D]istrict
courts ‘will ordinarily refuse to consider evidentiary material
that could have been, but was not, presented to the magistrate
judge in the first instance.’ ”) (quoting Brown v. Martuscello,
No. 16-CV-6084 (CS)(PED), 2019 WL 3491461, at *2
(S.D.N.Y. Aug. 1, 2019)); United States v. Gladden, 394 F.
Supp. 3d 465, 480 (S.D.N.Y. 2019) (declining to consider a “
‘new argument[ ] raised in objections to a magistrate judge's
report and recommendation that could have been raised
before the magistrate but [was] not.’ ”) (quoting Hubbard v.
Kelley, 752 F. Supp. 2d 311, 313 (W.D.N.Y. 2009)).
B. Rule 12(b)(1) Motion to Dismiss
“[A] federal court generally may not rule on the merits
of a case without first determining that it has jurisdiction
over the category of claim in suit ([i.e.,] subject-matter
jurisdiction) ....” Sinochem Int'l Co. v. Malay. Int'l Shipping
Corp., 549 U.S. 422, 430-31 (2007). “A case is properly
dismissed for lack of subject matter jurisdiction under
Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). Where subject matter
jurisdiction is challenged, a plaintiff “bear[s] the burden of
‘showing by a preponderance of the evidence that subject
matter jurisdiction exists.’ ” APWU v. Potter, 343 F.3d 619,
623 (2d Cir. 2003) (quoting Lunney v. United States, 319 F.3d
550, 554 (2d Cir. 2003)). “In resolving a motion to dismiss
for lack of subject matter jurisdiction under Rule 12(b)(1)[,]
a district court may consider evidence outside the pleadings.”
Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008), aff'd, 561 U.S. 247 (2010) (citing Makarova, 201 F.3d
at 113).
In reviewing a Rule 12(b)(1) motion, a court “must accept
as true all material factual allegations in the complaint, but
[is] not to draw inferences from the complaint favorable to
plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d
107, 110 (2d Cir. 2004). The court “may consider affidavits
and other materials beyond the pleadings to resolve the
jurisdictional issue, but ... may not rely on conclusory or
hearsay statements contained in the affidavits.” Id. A court
may also “consider ‘matters of which judicial notice may be
taken.’ ” Greenblatt v. Gluck, No. 03-CV-597 (RWS), 2003
WL 1344953, at *1 n.1 (S.D.N.Y. Mar. 19, 2003) (quoting
Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.
1993)).
C. Rule 12(b)(6) Motion to Dismiss
*5 “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)). Under this standard,
a plaintiff is required only to set forth a “short and plain
statement of the claim,” Fed. R. Civ. P. 8(a), with sufficient
factual “heft ‘to sho[w] that the pleader is entitled to relief.’ ”
Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)).
To survive a motion to dismiss, a plaintiff's “[f]actual
allegations must be enough to raise a right of relief above the
speculative level,” (Id. at 555), and a plaintiff's claims must
be “plausible on [their] face.” Id. at 570. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’
” Id. (quotation marks omitted) (quoting Twombly, 550 U.S.
at 557) Moreover, where “the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,”
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Twombly, 550 U.S. at 558, or where a plaintiff has “not
nudged [his] claims across the line from conceivable to
plausible, the[ ] complaint must be dismissed.” Id. at 570.
“Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 557). A complaint must
provide factual allegations sufficient “to give the defendant
fair notice of what the claim is and the grounds upon which it
rests.” Port Dock & Stone Corp. v. Oldcastle Northeast Inc.,
507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at
555). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice [to
establish entitlement to relief].” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
In resolving a motion to dismiss, a court may “consider ...
the complaint and any documents attached thereto or
incorporated by reference and documents upon which the
complaint relies heavily.” Bldg. Indus. Elec. Contractors
Ass'n v. City of New York, 678 F.3d 184, 187 (2d Cir. 2012)
(quotation marks and citation omitted). However, “[w]here ...
the allegations pled in the complaint are contradicted by
documents on which the complaint relies[,] the reviewing
court need not accept as true an allegation pled nor draw
inferences in its favor.” Alexander v. Bd. of Educ. of City Sch.
Dist. of City of New York, 107 F. Supp. 3d 323, 331 (S.D.N.Y.
2015), aff'd sub nom. Alexander v. Bd. of Educ. of City of
New York, 648 F. App'x 118 (2d Cir. 2016) (quotation marks
and citation omitted). Moreover, allegations raised for the first
time in an opposition brief cannot defeat a motion to dismiss,
because allegations in an opposition brief do not amend a
complaint. See Capers v. Kirby Forensic Psychiatric Ctr., No.
13-CV-6953(AJN), 2016 WL 817452, at *2 (S.D.N.Y. Feb.
25, 2016) (citing O'Brien v. Nat'l Prop. Analysts Partners, 719
F. Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic that the
Complaint cannot be amended by the briefs in opposition to
a motion to dismiss.”)).
D. Motion to Transfer
*6 Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience
of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought or to any district
or division to which all parties have consented.” In the
Second Circuit, courts apply a two-step analysis: “[f]irst, the
court must determine whether the action could have been
brought in the proposed transferee forum. If so, the court must
determine whether convenience of the parties and witnesses
and the interests of justice favor transfer.” CVS Pharmacy,
Inc. v. AstraZeneca Pharms. L.P., 2020 WL 4671659, at
*4 (S.D.N.Y. Aug. 12, 2020). In making this determination,
courts consider the following factors:
(1) the convenience of witnesses; (2)
the convenience of the parties; (3)
the locus of operative facts; (4) the
availability of process to compel the
attendance of the unwilling witnesses;
(5) the location of relevant documents
and the relative ease of access to
sources of proof; (6) the relative
means of the parties; (7) the forum's
familiarity with the governing law; (8)
the weight accorded to the plaintiff's
choice of forum; (9) trial efficiency;
and (10) the interest of justice, based
on the totality of circumstances.
Salaam v. City of New York, 2021 WL 3077555, at *2
(S.D.N.Y. May 27, 2021) (citing Keitt v. New York City, 882
F. Supp. 2d 412, 458-59 (S.D.N.Y. 2011)).
“The party requesting the transfer bears the burden of making
a ‘strong case for transfer.’ ” Megna v. Biocomp Labs., 220
F. Supp. 3d 496, 497 (S.D.N.Y. 2016) (quoting New York
Marine and Gen. Ins. Co. v. Lafarge North America, Inc., 599
F.3d 102, 113 (2d Cir. 2010)).
E. Motion to Consolidate
Fed. R. Civ. P. 42(a) provides that a district court may
consolidate “actions before the court involv[ing] a common
question of law or fact.” “ ‘A determination on the issue of
consolidation is left to the sound discretion of the Court,’ ” In
re UBS Auction Rate Sec. Litig., No. 08 Civ. 2967 (LMM),
2008 WL 2796592, at *1 (S.D.N.Y. July 16, 2008) (quoting
Albert Fadem Trust v. Citigroup Inc., 239 F. Supp. 2d 344,
347 (S.D.N.Y. 2002)), and involves weighing considerations
of convenience, judicial economy, and cost reduction while
ensuring that the “paramount concern for a fair and impartial
trial” is honored. Johnson v. Celotex Corp., 899 F.2d 1281,
1284-85 (2d Cir. 1990).
II. ANALYSIS
A. Leckie's Motion to Consolidate
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Leckie moves to consolidate any surviving claims in the
instant actions:
[Leckie II] should be consolidated
with [Leckie I], both pending before
Your Honor, as they both involve
common questions of law and facts.
Both cases relate to [Leckie]’s dental
treatment from April 24, 2018 until
December 20, 2018, while [he] went
back and forth between City ...
and State ... custody. Specifically, in
both cases, [P]laintiff alleges that the
City and the State [D]efendants were
deliberately indifferent to his medical
needs, which resulted in substantial
delay of approximately six ... months,
causing severe and permanent injuries.
(Leckie II Pltf. Opp. (Dkt. No. 36) at 10)
The R&R recommends granting the motion to consolidate.
Judge Lehrburger notes that “[a] federal court may
consolidate actions before it if they ‘involve a common
question of law and fact.’ ‘Consolidation is warranted where
it promotes judicial economy and serves to eliminate the
waste associated with duplicative discovery and multiple
trials, and the danger of inconsistent verdicts.’ ” (R&R
(Dkt. No. 129) at 10 (quoting Fed. R. Civ. P. 42(a)(2) and
Stevens v. Hanke, No. 20-CV-4765, 2022 WL 489054, at
*2 (S.D.N.Y. Feb. 17, 2022))) Judge Lehrburger finds that
consolidation is appropriate here because (1) “both cases raise
the common question of whether Leckie's medical condition
was sufficiently serious to form the basis for claims under
§ 1983”; (2) “[b]oth actions implicate facts culminating in
the same injury, raising overlapping questions of causation”;
(3) “discovery efforts already undertaken in Leckie I will be
useful in resolving Leckie II”; and (4) “the State Defendants
do not object to consolidation beyond their contention that
Leckie II should be transferred to the Northern District.” (Id.
at 11-12)
*7 No party has objected to Judge Lehrburger's
recommendation regarding consolidation. Accordingly, this
Court reviews Judge Lehrburger's recommendation for clear
error. See Gilmore, 2011 WL 611826, at *1. The Court
agrees with Judge Lehrburger that both complaints “involve
a common question of law or fact,” Fed. R. Civ. P. 42(a)
– i.e., the seriousness of Plaintiff's medical condition and
the adequacy of the treatment he received – such that
consolidation will “promote[ ] judicial economy and serve[ ]
to eliminate the waste associated with duplicative discovery
and multiple trials, and the danger of inconsistent verdicts.”
Stevens, 2022 WL 489054, at *2. Accordingly, there is no
clear error in the recommendation. This Court will adopt the
recommendation and grant Plaintiff's motion to consolidate.
B. The State Defendants’ Motion to Transfer
The State Defendants have moved to transfer “any surviving
claims ... to the Northern District of New York.” They argue
that transfer is appropriate because (1) “substantially all the
evidence and all the witnesses relating to the incident would
be found in Ulster Correctional Facility, which is located in
the Northern District of New York”; (2) “[a]t the time of the
alleged incident, Defendants were performing their official
duties by rendering treatment to Plaintiff while he was housed
at Ulster Correctional Facility”; (3) “three of the four [State]
Defendants still perform their official duties in correctional
facilities in the Northern District of New York, and only one
[Rakib] currently performs his official duties in the Southern
District of New York”; (4) “the witnesses to the events,
alleged to have occurred at Ulster Correction[al] Facility, also
likely reside in the Northern District of New York”; and (5) “
‘the fact that a claim ... against [the City Defendants] arose in
[the Southern] [D]istrict does not make that district a proper
venue for other parties as to whom the claim arose somewhere
else.’ ” (Leckie II Def. Br. (Dkt. No. 32) at 13-14 (quoting
Wright & Miller, 15 Fed. Prac. & Proc. § 3807 (2d ed. 1986
& Supp. 2003))) Judge Lehrburger recommends that the State
Defendants’ motion to transfer be denied.
Judge Lehrburger begins his analysis by summarizing the
factors to be considered for a discretionary change of
venue: “ ‘inter alia: (1) the plaintiff's choice of forum, (2)
the convenience of witnesses, (3) the location of relevant
documents and relative ease of access to sources of proof, (4)
the convenience of parties, (5) the locus of operative facts,
(6) the availability of process to compel the attendance of
unwilling witnesses, and (7) the relative means of the parties.’
” (R&R (Dkt. No. 129) at 13 (quoting Corley v. United States,
11 F.4th 79, 89 (2d Cir. 2021))) Judge Lehrburger then notes
that “[n]o party disputes that venue is proper in the Southern
District. Accordingly, the applicable standard is that for a
discretionary change of venue.” (Id. at 14-15)
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Judge Lehrburger finds that “the plaintiff's choice of forum
clearly weighs in favor of the case remaining in this Court, as
both actions were filed here, and Plaintiff opposes the motion
to transfer.” (Id. at 15) As to convenience of the witnesses,
Judge Lehrburger finds that this factor “weighs against
transfer,” because witnesses located in the Northern District
have already been deposed, whereas Leckie “contemplates
seeking testimony from medical providers who treated him
for sepsis and dental abscess at Westchester Medical Center,
which is located in the Southern District, ... who have not
yet been deposed.” (Id. at 15-16) As to the location of
documents and access to sources of proof, Judge Lehrburger
“finds [that] this factor til[ts] in favor of maintaining venue
in the Southern District,” because there has already been
“substantial document discovery of Leckie's medical records
and other documents” located in the Northern District,
while records “pertaining to Leckie's treatment, and lack of
treatment, while ... in [City] custody ... are located within
the Southern District.” As to the convenience of the parties,
Judge Lehrburger finds that this factor “is, at best for the State
Defendants, a neutral factor,” given that “Leckie resides in
the Eastern District” and “[Defendant] Rakib at least works
in the Southern District, while Laguio, Hyatt, and Napoli
continue to work in the Northern District.” (Id. at 16-17)
Regarding the need to compel unwilling witnesses, the R&R
finds that this factor is neutral, because Leckie “may need
to compel the testimony of witnesses at Westchester Medical
Center,” and “Defendants have already been willing to offer
their witnesses for remote deposition.” (Id. at 17) Finally, as
to the locus of operative facts, the R&R finds that, “after
consolidation, the events occurring while Leckie was in [City]
custody will be a second ‘center of gravity’ ” in addition to
the Northern District, and that in any event this factor is not
“enough to disturb Leckie's choice of forum.” (Id. at 17) For
all these reasons, the R&R recommends denying the motion
to transfer. (Id. at 17-18)
*8 No party has objected to Judge Lehrburger's
recommendation regarding the motion to transfer.
Accordingly, this Court reviews his recommendation for clear
error. See Gilmore, 2011 WL 611826, at *1.
This Court finds no clear error in Judge Lehrburger's analysis.
Because many of the parties, witnesses, and documents
are located in or near the Southern District, and because
the allegations concern events that occurred while Leckie
was in City custody in the Southern District as well as in
State custody in the Northern District, there is no basis for
disturbing Leckie's choice of forum. Accordingly, this Court
will adopt Judge Lehrburger's recommendation, and the State
Defendants’ motion to transfer will be denied.
C. Motions to Dismiss Leckie's Section 1983
Deliberate Indifference Claims
1. Whether Leckie Has Stated a Claim for
Deliberate Indifference Under Section 1983
a. Defendants’ Arguments
All Defendants but State Defendant Rakib have moved to
dismiss Leckie's Section 1983 deliberate indifference claims,
arguing that he has not alleged a sufficiently serious medical
condition nor culpability on the part of Defendants.
i. The City Defendants’ Arguments
The City Defendants argue that “Plaintiff's SAC fails to
plausibly allege that he was suffering from a serious medical
condition,” because Leckie “does not allege that his dental
pain interfered with eating, sleeping or any other daily
activities, nor does he articulate the severity or length of
his alleged dental pain while in [City] custody.” (Leckie I
Def. Br. (Dkt. No. 117) at 10) According to Defendants,
“Plaintiff's vague allegations that he was experiencing ‘great
pain’ while in [City] custody [are] insufficient to establish a
serious medical condition.” (Id. (quoting Leckie I SAC (Dkt.
No. 110) ¶ 25))
The City Defendants also argue that “Plaintiff did not
plead reckless or intentional action (or inaction) by any
individual defendant.” (Id. at 11) As to Defendant Matthew,
the City Defendants argue that “[P]laintiff concedes that
[Matthew] took x-rays and ordered extraction of tooth #31 on
April 23, 2018.” According to Defendants, “Plaintiff ... has
failed to establish the personal involvement of Dr. Matthew
beyond the initial dental consultation,” and Plaintiff's claim
that “ ‘he continued to complain to [Defendants including
Matthew] over the course of months about the great pain
he was experiencing’ ... is insufficient to establish deliberate
indifference by Dr. Matthew, [because] Plaintiff does not
allege when he complained to Dr. Matthew, what he told
Dr. Matthew about his dental condition, or how Dr. Matthew
responded to these alleged complaints.” (Id. (quoting Leckie
I SAC (Dkt. No. 110) ¶ 25)) The City Defendants further
argue that, at the initial dental consultation, “Matthew
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recommended, and [P]laintiff refused, extraction of tooth
#31.” (Id.) (citing Apr. 24, 2018 Exam Notes (Dkt. No.
116-5))
As to the culpability of the Doe Correction Officers and
Medical Providers, the City Defendants argue that Leckie
“relies on group pleading,” and that “[c]omplaints that rely on
group pleading and fail to differentiate as to which defendant
was involved in the alleged unlawful conduct are insufficient
to state a claim.” (Id. at 12 (quotation omitted)) They also
argue that Leckie “fails to allege what actions, or inactions,
by the John/Jane Doe [D]efendants directly contributed to his
alleged deprivation of medical care,” and that “[P]laintiff's
inability to identify the John/Jane Doe correction officers and
medical providers at this point in the litigation does not excuse
the lack of factual allegations in the SAC.” (Id. at 13-14)
ii. The State Defendants’ Arguments
*9 The State Defendants argue that “Plaintiff fails to state
a claim against Defendants Napoli, Hyatt, or Laguio for
deliberate indifference to medical needs.” (Leckie II Def. Br.
(Dkt. No. 32) at 8) As to Napoli, they state that “Plaintiff
merely alleges that during his intake examination on August
30, 2018, Plaintiff informed Defendant Napoli of his jaw
pain and that she purportedly failed to refer him to a
dental provider, [y]et in the very next paragraph Plaintiff
acknowledges that he was examined by the dentist, Defendant
Rakib, the very next day, August 31, 2018 ... [who] took
his x-rays, and noted that Plaintiff should be referred for
an extraction of tooth 31.” (Id. at 8-9 (citing Leckie II
Cmplt. (Dkt. No. 5) ¶¶ 29-32)) The State Defendants contend
that “[t]he alleged one-day delay in seeing a dentist is the
only ‘delay’ that could be charged to Defendant Napoli, and
it is constitutionally de minim[is], and does not evidence
deliberate indifference in any event.” (Id. at 9)
As to Defendant Laguio, the State Defendants argue that –
according to Leckie's Complaint – “the moment [Plaintiff]
saw Dr. Laguio complaining of fever, nausea, and the inability
to eat on October 19, 2018, Dr. Laguio immediately treated
his conditions with antibiotics, and [Leckie] was then referred
to a hospital only three days later when he did not respond
to the initial antibiotic treatment.” (Id. at 9 (citing Leckie
II Cmplt. (Dkt. No. 5) ¶¶ 41-44, 50)) The State Defendants
further argue that “any alleged delay of treatment chargeable
to Dr. Laguio ... was de minim[is]”; that “the allegations, at
most, reflect a difference of opinion [as to] whether beginning
with a course of antibiotics was appropriate,” which “does not
implicate the Eighth Amendment”; and that “[e]ven assuming
that the initial use of antibiotics was medically incorrect, it
could amount only to medical malpractice.” (Id.)
As to Defendant Hyatt, the State Defendants characterize
Plaintiff's Complaint as alleging “that Nurse Hyatt was
deliberat[ely] indifferent to Plaintiff's medical needs because
she failed to overrule the dentist, Defendant Rakib,
when he allegedly delayed [referring Plaintiff for a tooth
extraction].” (Id. at 10 (citing Leckie II Cmplt. (Dkt. No. 5)
¶¶ 32, 34)) The State Defendants argue that “it would not
be plausible to infer that Nurse Hyatt had the authority to
make such a reference herself, or to overrule the examining
dentist.” (Id.) They also argue that Plaintiff's “allegations
that Nurse Hyatt did not refer Plaintiff to urgent care when
he presented at [the] dental clinic with fever, nausea, and
inability to eat on October 19, 2018, [are] similarly infirm,”
because “[t]he very next paragraph in the Complaint states
that Plaintiff was examined and treated by Dr. Laguio
later that very day.” (Id. (emphasis in original)) According
to the State Defendants, “Plaintiff's allegations ... fail to
establish that there was any delay [in treatment] chargeable to
Defendant Hyatt, let alone one of constitutional significance,
or that Defendant Hyatt possessed a ‘sufficiently culpable
state of mind.’ ” (Id. (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)))
b. The R&R's Recommendations
The R&R recommends that the motion to dismiss Leckie's
deliberate indifference claims against Defendants Matthew,
Hyatt, and Laguio be denied, but that the motion to dismiss
be granted as to Defendant Napoli and the Doe Defendants. 4
i. Sufficiently Serious Medical Need
As to medical need, Judge Lehrburger notes that “untreated
dental conditions have been considered serious medical
conditions in this Circuit.” (R&R (Dkt. No. 129) at 24
(citing Harrison v. Barkley, 219 F.3d 132, 136-37 (2d
Cir. 2000) (“[B]ecause a tooth cavity will degenerate with
increasingly serious implication if neglected over sufficient
time, it presents a serious medical need within the meaning
of our case law.”) (quotation omitted); Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998) (“Any person who has
spent a night tossing and turning in suffering from an
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abscessed tooth knows that dental pain can be excruciatingly
severe.”); Gonzalez v. McGue, No. 99-CV-3455, 2001 WL
13341, at *3 (S.D.N.Y. Jan. 5, 2001) (discussing failure
to treat a “degenerative tooth cavity”); Dean v. Coughlin,
623 F. Supp. 392, 404) (S.D.N.Y. 1985) (“Inmates’ [non-
prophylactic] dental needs – for fillings, crowns, and the like
– are serious medical needs as the law defines that term.”))
Judge Lehrburger finds that – given the applicable case law
– “Leckie's allegations easily establish serious medical need
at the time he was in custody of both [the City] and [the
State],” because (1) while he was in City custody, Defendant
Matthew “recognized that Leckie's tooth had deteriorated to
the point of needing to be extracted”; and (2) while he was in
State custody, “his condition was already sufficiently serious”
when he arrived, and “only worsened from there,” leading to “
‘severe mouth and jaw pain ... high fever, nausea, and inability
eat ...dental abscess and dental infection,’ ” and eventual
sepsis and hearing loss. (Id. at 25 (quoting and citing Leckie
II Cmplt. (Dkt. No. 5) ¶¶ 27, 31-32, 35, 41, 44, 47, 49, 53))
*10 As to the State Defendants’ argument that Leckie's
deliberate indifference claim amounts to no more than a delay
in treatment (see Leckie II Def. Br. (Dkt. No. 32) at 9-10),
Judge Lehrburger finds that “Leckie has pled facts sufficient
to establish that the delay in treatment was sufficiently serious
to state a claim for relief,” because he “plausibly alleges that
treatment was delayed or denied while in [State] custody for
nearly two months,” and that “[a]s a result of that delay,
Leckie had to be hospitalized for sepsis and is left with
permanent hearing loss from the infection originating in
his tooth.” (R&R (Dkt. No. 129) at 26-27 (citing Mattison
v. Johnson, No. 9:17-CV-1198, 2019 WL 6074039, at *5
(N.D.N.Y. Nov. 15, 2019); Smith v. Carpenter, 316 F.3d 178,
187 (2d Cir. 2003); Christian v. Saunders, No. 17-CV-2587,
2018 WL 3300695, at *9-10 (S.D.N.Y. Feb. 28, 2018), report
and recommendation adopted, 2018 WL 1441401 (S.D.N.Y.
Mar. 22, 2018); Grimmett v. Corizon Medical Associates
of New York, No. 15-CV-7351, 2017 WL 2274485, at *4
(S.D.N.Y. May 24, 2017); and Gomez v. Westchester County,
No. 12-CV-6869, 2015 WL 1054902, at *9 (S.D.N.Y. Mar.
10, 2015), aff'd, 649 F. App'x 93 (2d Cir. 2016)))
ii. The Defendants’ Culpability
As to the culpability of City Defendant Matthew,
Judge Lehrburger finds that – given that Dr. Matthew
“[r]ecommend[ed] extraction” – he “knew, and at the very
least should have known, that Leckie was suffering from a
condition that posed an excessive risk to health or safety.”
Accordingly, Plaintiff's allegation that Matthew “failed to
follow up and failed to respond to a follow-up written
request directed to him ... suffice[s] to plausibly state a
claim for deliberate indifference.” (Id. at 29-30 (citing Hayes
v. Charles, No. 10-CV-00380, 2013 WL 4718497, at *6-7
(W.D.N.Y. Sept. 3, 2013) (defendant who failed to schedule a
follow-up appointment to fill plaintiff's cavity for four months
despite written request, and defendant who examined plaintiff
but took no action to secure dental treatment or prescribe
effective painkillers when plaintiff subsequently complained
to him of pain, could be found to have acted with deliberate
indifference)) (further citations omitted))
As to the City Defendants’ argument “that Leckie initially
refused the extraction that Dr. Matthew recommended,”
Judge Lehrburger notes that on a Rule 12(b)(6) motion to
dismiss “the Court cannot consider the document submitted
by Defendants [in support of this argument, as] it is not a
document referenced in Leckie's complaint, one on which
he relied, or [one] that falls under another exception that
would permit the Court to consider a document outside the
complaint.” (Id. at 30-31 (citing Kleinman v. Elan Corp.,
plc, 706 F.3d 145, 152 (2d Cir. 2013); and Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 234 (2d Cir. 2016)) (further
citations omitted))
As to the culpability of State Defendant Napoli, however,
Judge Lehrburger finds that Leckie's “allegations are
insufficient to state a claim for deliberate indifference”: “The
allegation that Napoli failed to refer Leckie to a dental
provider is not plausible, as Leckie alleges in the very
next paragraph of the Complaint that he was examined by
dentist Dr. Rakib and dental hygienist Hyatt the following
day.” (Id. at 33) Judge Lehrburger further finds that Leckie's
“allegations of ignored complaints and palliative care” as to
Nurse Napoli are “conclusory” and “insufficient,” because
“Leckie does not plead Napoli's knowledge of the seriousness
of his condition,” and because “it is not reasonable to infer
that Leckie would direct his complaints to, and receive
follow-up care from, the nurse who performed his general
intake examination, rather than the dental providers he
saw thereafter.” (Id. at 33-34) The R&R recommends that
Plaintiff's deliberate indifference claim against Napoli be
dismissed.
*11 As to the culpability of State Defendant Hyatt, the R&R
concludes that “[t]here are ... sufficient facts to allege [her]
deliberate indifference to Leckie's serious medical needs.” In
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this regard, Judge Lehrburger notes that “Hyatt was present
at Dr. Rakib's exams of Leckie and knew that he needed
his tooth extracted[,] .... yet [s]he did nothing to ensure
that occurred, even though Leckie continued to complain
about pain, [and] even after seeing how his condition had
deteriorated by October 19, 2018.” (Id. at 34 (citing Leckie
II Cmplt. (Dkt. No. 5) ¶¶ 31-32, 35-36, 39, 41-43)) As to
the State Defendants’ argument that “[t]he allegation that
Nurse Hyatt did not refer Plaintiff to urgent care when he
presented at [the] dental clinic ... on October 19, 2018 is ...
infirm.... [because] [t]he very next paragraph in the Complaint
states that Plaintiff was examined and treated by Dr. Laguio
later that very day” (Leckie II Def. Br. (Dkt. No. 32) at 10
(emphasis in original)), Judge Lehrburger finds that “even if
Hyatt referred Leckie to urgent care on October 19, 2018, that
does not absolve her of liability for the period between when
she first saw Leckie on August 31, 2018 to when he saw Dr.
Laguio over a month and a half later.” (R&R (Dkt. No. 129) at
35) Judge Lehrburger rejects the State Defendants’ argument
that “it would not be plausible to infer that Nurse Hyatt had
the authority to make ... a reference [to an oral surgeon]
herself, or to overrule the examining dentist [with respect to
his decision not to make a referral]” (Leckie II Def. Br. (Dkt.
No. 32) at 10), because (1) “the facts as pled do not indicate
any need for Hyatt to ‘overrule’ her superior,” given that the
Complaint alleges that Hyatt's supervisor, Rakib, “recognized
that Leckie's tooth needed to be extracted”; and (2) “it is
no less reasonable to infer that a dental hygienist or nurse
would be able to complete referrals on behalf of the treating
dentist.” (R&R (Dkt. No. 129) at 36 (citing Leckie II Cmplt.
(Dkt. No. 5) ¶¶ 31-33, 35, 39; Iacovangelo v. Correctional
Medical Care, Inc., 624 F. App'x 10, 13 (2d Cir. 2015); and
Leniart v. Borchet, No. 3:20-CV-1098, 2020 WL 5765607, at
*6 (D. Conn. Sept. 28, 2020))) Judge Lehrburger concludes
that, “[a]t the motion to dismiss stage, Leckie is entitled to
the reasonable inference that Hyatt could have taken some
action to initiate a referral to a surgeon; Hyatt's alleged lack
of authority is therefore insufficient for her dismissal.” (Id.)
As to the culpability of State Defendant Laguio, Judge
Lehrburger rejects the State Defendants’ characterization of
Leckie's claim as “involving merely a ‘difference of opinion’
as to proper treatment.” He instead finds that Plaintiff
“has plausibly established that the care provided to him
[by Dr. Laguio] was inadequate in light of the consistent
determination by several medical professionals that extraction
of the infected tooth was the proper course of treatment and
Leckie's subsequent steep decline over the [days] following
[his appointment with Defendant Laguio].” (Id. at 37-38)
And as to the State Defendants’ argument that Leckie has
alleged, at most, malpractice by Laguio, the R&R finds that
“the suggestion that Dr. Laguio believed [Leckie's] condition
[to be] benign violates the requirement on a motion to dismiss
that reasonable inferences be drawn in favor of the non-
moving party”; “the inference Defendants seek to draw is
not plausible in light of Leckie's serious symptoms [and
allegations demonstrating that] .... Dr. Laguio ... knew that
the proper course of treatment was extraction of the infected
tooth, but chose ‘an easier and less efficacious treatment
plan.’ ” (Id. at 38 (quoting Chance, 143 F.3d at 703; citing
Leckie II Cmplt. (Dkt. No. 5) ¶ 43)) Accordingly, the R&R
recommends denying the motion to dismiss the deliberate
indifference claim against Hyatt and Laguio. (Id. at 39)
As to the City and State Doe Defendants, Judge Lehrburger
concludes that “Leckie fails to plead sufficient facts to
allege ... deliberate indifference,” because he “asserts [only]
general allegations of complaints of pain and ignored requests
for medical appointments – and one instance of [City] Doe
Corrections Officers failing to produce him to a dental
appointment.” Leckie does not plead “facts showing, or from
which a reasonable inference could be drawn, that any Doe
Defendant was actually aware of the risk to his health ... or
should have been so aware.” The R&R therefore recommends
dismissal of the deliberate indifference claims “against the
Doe Defendants in both Leckie I and Leckie II.” (Id. at 39)
c. The State Defendants’ Objections
The State Defendants object to Judge Lehrburger's
recommendation that their motion to dismiss be denied as to
the deliberate indifference claims against Laguio and Hyatt.
As to Laguio, the State Defendants complain that Judge
Lehrburger “incorrectly concludes that [he] is somehow
responsible for every alleged delay in providing treatment to
Plaintiff while he was in [State] custody.... The first time State
Defendant Laguio, who is not a dentist, treated Plaintiff for
his tooth infection was October 19, 2018, and he provided
treatment, antibiotics, and pain medication on the same day.
There was thus no delay in treatment chargeable to State
Defendant Laguio.” (Def. Objs. (Dkt. No. 40) at 4-5)
*12 The State Defendants also argue that the “ ‘relatively
short three-day delay’ between the time that Plaintiff saw
State Defendant Laguio ... and the time when he was
transferred to an outside hospital ... [does not] constitute a
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sufficiently serious delay in treatment.” “[U]nlike all cases
relied upon by the R&R for this proposition, Dr. Laguio did
provide treatment for Plaintiff's infection during this three-
day period.” (Id. at 5 (quoting R&R (Dkt. No. 129) at 27))
Finally, the State Defendants argue that “[t]here are no non-
conclusory allegations to show that State Defendant Laguio
treated Plaintiff prior to October 19, 2018, or that he was
aware that hospitalization and emergency tooth extraction
[were] required, rather than a course of antibiotics for the
infection. State Defendant Laguio is not even a dentist....
[Plaintiff's allegations] constitute[ ] only a disagreement in
the course of treatment, which does not rise to the level of an
Eighth Amendment violation.” (Id.)
The State Defendants’ objections regarding Laguio repeat
arguments made in their motion papers. (Leckie II Def. Br.
(Dkt. No. 32) at 9) Accordingly, this portion of the R&R will
be reviewed only for clear error. See Phillips, 955 F. Supp.
2d at 211.
As to Hyatt, the State Defendants argue that the R&R
“erroneously charges her with a two-month delay of treatment
[of] Plaintiff. However, as stated in [the State] Defendants’
motion to dismiss, State Defendant Hyatt is a dental hygienist
and not a dentist, and she “was only present during Plaintiff's
examination[s] by State Defendant Rakib on August 31, 2018
and October 12, 2018.... Hyatt referred Plaintiff to be seen
by a medical provider on the same day he presented with
complaints on October 19, 2018.” (Id. at 6 citing (R&R
(Dkt. No. 129) at 26-28)) The State Defendants contend
that Plaintiff's “allegations ... are insufficient to show that
[Hyatt] was deliberatively indifferent to Plaintiff's medical
needs.... Hyatt did not have the training to make medical
decisions,” and “referred [Leckie] to State Defendant Laguio
for treatment on October 19, 2018, the same day that she saw
him.” (Id.)
The State Defendants’ objections regarding Hyatt will be
reviewed only for clear error because (1) the delay in
treatment argument was made in the State Defendants’
moving papers (see Leckie II Def. Br. (Dkt. No. 32) at 10);
and (2) the lack of training argument is improperly raised for
the first time on appeal. See Phillips, 955 F. Supp. 2d at 211;
Gladden, 394 F. Supp. 3d at 480.
There are no objections to the R&R's other recommendations
concerning Plaintiff's deliberate indifference claims.
Accordingly, those recommendations will likewise be
reviewed only for clear error. See Gilmore, 2011 WL 611826,
at *1.
d. Analysis
As to Defendant Laguio, the R&R correctly finds that Plaintiff
adequately alleges that (1) “Dr. Laguio knew from [Leckie's]
medical records that [Leckie's] infected tooth needed to
be, and had not yet been, extracted, but nonetheless only
prescribed antibiotics and returned Leckie to the general
prison population with no monitoring or plan to actually refer
him to an oral surgeon for the extraction” (R&R (Dkt. No.
129) at 37 (citing Leckie II Cmplt. (Dkt. No. 5) ¶¶ 43, 44, 46));
and (2) after Dr. Laguio decided to only prescribe antibiotics,
“[w]ithin days, Leckie's already serious infection spread
to his blood, requiring hospitalization.” (Id.; see Leckie II
Cmplt. (Dkt. No. 5) ¶¶ 46-47 (“Defendant Laguio returned
Plaintiff to the general population, where his condition further
deteriorated.... Thereafter, on Monday, October 22, 2018,
Plaintiff still had a high fever, his neck had become swollen,
and he was unable to move his jaw.”)) And contrary to the
State Defendants’ Objections, Judge Lehrburger cites Second
Circuit law in support of his conclusion that inefficacious
treatment can amount to deliberate indifference. (R&R (Dkt.
No. 129) at 38-39 (citing Williams v. Vincent, 508 F.2d 541,
544 (2d Cir. 1974) (decision by “prison medical officials
merely to stitch the stump of [plaintiff's] ear” rather than
“sewing the severed portion of the ear back on” could
amount to deliberate indifference))) In sum, there is no error
in Judge Lehrburger's determination that Plaintiff has pled
facts sufficient to show that Defendant Laguio knew that
Leckie's tooth had to be extracted, that Laguio's decision to
instead prescribe antibiotics can plausibly be construed as
deliberate indifference, and that the resulting delay in the
extraction of Leckie's infected tooth led to sufficiently serious
complications so as to provide a basis for liability.
*13 As to Defendant Hyatt, the Leckie II Complaint alleges
that she knew as early as August 31, 2018 “that Plaintiff
must be referred to an oral surgeon for extraction of tooth
#31” and that she was consistently kept apprised of Leckie's
condition, but that Hyatt never referred Leckie for a tooth
extraction. (Leckie II Cmplt. (Dkt. No. 5) ¶¶ 31-42) The State
Defendants’ argument that Hyatt referred Leckie to Laguio
on October 19, 2018 – the same day she saw him – is thus not
persuasive. As Judge Lehrburger points out, “[t]he eleventh-
hour referral (to a non-dentist) is of no moment in light of
the earlier repeated failures to refer Leckie for the treatment
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that Dr. Rakib and Hyatt knew he needed.” (R&R (Dkt. No.
129) at 35-36) As to Hyatt's objection that she lacked the
training necessary to know that a referral for an extraction
was indicated, at this stage of the litigation she cannot
overcome Leckie's well-pled allegation that, regardless of her
educational background, “Hyatt noted that Plaintiff must be
referred to an oral surgeon.” (Leckie II Cmplt. (Dkt. No. 5)
¶ 32) This Court cannot find as a matter of law that a dental
hygienist would not recognize the need to have an infected
tooth extracted. Accordingly, this Court finds no error in the
R&R's recommendation as to Hyatt, and will adopt it.
As to Matthew, Napoli, and the Doe Defendants – given Judge
Lehrburger's detailed analysis of Plaintiff's allegations and his
application of Second Circuit case law – this Court finds no
clear error, and will adopt his recommendations.
In sum, this Court adopts all of the R&R's recommendations
as to Plaintiff's deliberate indifference claims. The motion to
dismiss will be granted as to Napoli and the Doe Defendants,
but otherwise denied.
2. Whether the State Defendants Are Entitled
to Dismissal on Qualified Immunity Grounds
The State Defendants argue that “Defendants Napoli, Hyatt,
and Laguio are, at a minimum, entitled to qualified
immunity.” 5 (Leckie II Def. Br. (Dkt. No. 32) at 10)
According to the State Defendants, “[t]he issues on qualified
immunity are: (1) whether Plaintiff has shown facts making
out [a] violation of a constitutional right; (2) if so, whether the
right was ‘clearly established’; and (3) even if the right was
‘clearly established,’ whether it was ‘objectively reasonable’
for the officer to believe the conduct at issue was lawful.” (Id.)
(quoting Gonzalez v. City of Schenectady, 728 F.3d 149, 154
(2d Cir. 2013))
As to these three elements – and without citing any supporting
case law – the State Defendants assert that “Plaintiff has not
alleged a constitutional violation against these defendants”;
that “[a] reasonable official[ ] in the position of Defendant
Nurse[ ] ... Hyatt could have believed that [his or her] alleged
‘delay’ in scheduling Plaintiff to see a medical provider – a
delay counted in hours – did not violate the Constitution”;
and that “a reasonable official in Defendant Laguio's position
could have believed that first attempting to treat Plaintiff's jaw
condition with antibiotics, and referring hi[m] to a hospital
three days later when he failed to improve, did not violate
Plaintiff's constitutional rights.” (Id. at 11)
Judge Lehrburger concludes that Hyatt and Laguio are
not entitled to qualified immunity as a matter of law. In
so concluding, Judge Lehrburger notes that “it is well-
established by the Supreme Court and in this Circuit that
[a] failure to treat, or [a] delay in treating, a degenerative
medical or dental condition can suffice to state a § 1983 claim.
Despite the clearly established law to the contrary, and as
alleged by Leckie, Defendants ... Hyatt, and Laguio failed to
act to ensure Leckie received the tooth extraction that all were
aware he needed to resolve his pain and infection.” (R&R
(Dkt. No. 129) at 45 (citing Estelle v. Gamble, 429 U.S. 97,
104-05 (1976); Harrison, 219 F.3d at 139; Chance, 143 F.3d
at 702-04; Grimmett v. Corizon Med. Assocs. of New York,
No. 15CV7351JPOSN, 2017 WL 2274485, at *4-5 (S.D.N.Y.
May 24, 2017); Dean, 623 F. Supp. at 402)) Judge Lehrburger
further finds that “[b]ecause an incarcerated person's right
to adequate medical care (including dental care) is clearly
established, and the facts alleged indicate [that] Defendants ...
Hyatt and Laguio did not act objectively reasonably in light of
that clearly established law, qualified immunity does not serve
as a basis for dismissal.” (Id. (citing Harrison, 219 F.3d at 136;
Kearsey v. Williams, No. 99-CV-8646, 2005 WL 2125874, at
*7 (S.D.N.Y. Sept. 1, 2005)))
*14 The State Defendants object to the R&R's finding on
qualified immunity as to Hyatt and Laguio. They argue that
“the R&R's recommendation to deny qualified immunity to
State Defendants Hyatt and Laguio rests upon a definition of
the clearly established right regarding adequate medical care
in impermissibly broad terms.” (Def. Objs. (Dkt. No. 40) at
7) The State Defendants also assert that
in their motion to dismiss, State
Defendants Hyatt and Laguio
essentially argued that to defeat their
qualified immunity defense, Plaintiff
must point to clearly established
precedent from the Supreme Court or
Second Circuit, or other persuasive
authority, that established that: (1)
State Defendant Hyatt could have
believed that her alleged ‘delay’
in scheduling Plaintiff to see a
medical provider – a delay counted
in hours – violated the Constitution,
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or (2) that a reasonable official in
Defendant Laguio's position could
have believed that first attempting
to treat Plaintiff's jaw condition
with antibiotics and referring Plaintiff
to a hospital three days later
when he failed to improve, violated
Plaintiff's constitutional rights. No
such precedent exists. Plaintiff's
contentions amount to no more than
a disagreement about the course of
treatment, which does not implicate
the Constitution.
(Id. at 7-8)
Despite this assertion, the State Defendants did not argue
– either “essentially” or otherwise – that “Plaintiff must
point to clearly established precedent from the Supreme
Court or Second Circuit, or other persuasive authority,
that established that: (1) State Defendant Hyatt could have
believed that her alleged ‘delay’ in scheduling Plaintiff to see
a medical provider – a delay counted in hours – violated the
Constitution, or (2) that a reasonable official in Defendant
Laguio's position could have believed that first attempting to
treat Plaintiff's jaw condition with antibiotics and referring
Plaintiff to a hospital three days later when he failed to
improve, violated Plaintiff's constitutional rights.” (Def. Objs.
(Dkt. No. 40) at 7; compare Leckie II Def. Br. (Dkt. No.
32) at 11 (arguing that reasonable officials in Hyatt's and
Laguio's positions could have believed their alleged actions
were constitutional, but not arguing – as the State Defendants
now contend – that it was Plaintiff's burden to identify cases
indicating that reasonable officials in Hyatt's and Laguio's
positions would have believed that their alleged actions were
unconstitutional)) Accordingly, Defendants have presented
a new argument for the first time in an objection, which
warrants only clear error review. See Gladden, 394 F. Supp.
3d at 480.
As Judge Lehrburger notes – and contrary to the State
Defendants’ burden argument – (1) “[s]ince qualified
immunity is an affirmative defense, [D]efendants bear the
burden of showing that the challenged act was objectively
reasonable in light of the law existing at that time,” Varrone
v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997); and (2) “refus[ing]
treatment of a properly diagnosed [dental] condition that
was progressively degenerative, potentially dangerous and
painful, and that could be treated easily and without risk”
constitutes deliberate indifference. Harrison, 219 F.3d at
139; accord Chance, 143 F.3d at 703 (“A cognizable claim
regarding inadequate dental care, like one involving medical
care, can be based on various factors, such as the pain suffered
by the plaintiff, the deterioration of the teeth due to a lack
of treatment, or the inability to engage in normal activities.”)
(citations omitted). (R&R (Dkt No. 129) at 44-45) The State
Defendants have not shown that Hyatt and Laguio's alleged
actions are objectively reasonable in light of this clearly
established precedent; instead, they merely, and incorrectly,
assert that Leckie's allegations plead only a “difference of
opinion.” “[A]t [the] motion to dismiss stage, [this] [C]ourt
[cannot] say as a matter of law that [D]efendant[s’] actions
were objectively reasonable,” JG & PG ex rel. JGIII v.
Card, No. 08 CIV. 5668 (KMW), 2009 WL 2986640, at
*8 (S.D.N.Y. Sept. 17, 2009) (citation omitted), either as to
Hyatt's failure to refer Leckie for a tooth extraction or as to
Laguio's delay in referring Leckie to an oral surgeon and his
decision to prescribe antibiotics instead. For these reasons,
this Court finds no clear error in the R&R's recommendation,
and will adopt it.
D. Defendants’ Motions to Dismiss Leckie's Other
Claims
*15 There are no objections to the R&R's recommendations
regarding other aspects of Defendants’ motions to dismiss.
Summarized below are Defendants’ arguments and the R&R's
corresponding recommendations.
1. Leckie's Failure to Intervene Claims
The City Defendants move to dismiss Plaintiff's failure
to intervene claim, arguing that “Plaintiff's allegation that
‘those defendants who were present but did not actively
participate in the aforementioned unlawful conduct observed
such conduct, had an opportunity to prevent such conduct, had
a duty to intervene and prevent such conduct, and failed to
intervene’ is conclusory and insufficient to sustain a failure
to intervene claim.” (Leckie I Def. Br. (Dkt. No. 117) at 18
(quoting Leckie I SAC (Dkt. No. 110) ¶ 51))
Only the City Defendants moved to dismiss Leckie's failure
to intervene claim. (Leckie I Def. Br. (Dkt. No. 117)
at 18; compare Leckie II Def. Br. (Dkt. No. 32) at 2,
passim) As to Defendants Matthew, Rakib, Hyatt, and
Laguio – the Defendants against whom Leckie's deliberate
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indifference claims survive – Judge Lehrburger recommends
that “Leckie's failure to intervene claims ... be construed as
being pled in the alternative.” “At a later juncture, Leckie will
have to specify which Defendants will be subject to trial under
which theory,” but at the motion to dismiss stage, “courts
allow causes of action for direct participation and failure to
intervene to be pled in the alternative where a plaintiff has
sufficiently pled a constitutional violation, with the caveat
that the plaintiff later specify which defendants he seeks to
hold liable for the direct constitutional violation versus which
he seeks to hold liable for failure to intervene.” (Id. at 40-41
(citing Buari v. City of New York, 530 F. Supp. 3d 356,
393 (S.D.N.Y. 2021); Lanorith v. Truscelli, No. 15-CV-617,
2017 WL 3634600, at *13 (E.D.N.Y. Aug. 22, 2017); and
Cumberbatch v. Port Authority of New York & New Jersey,
No. 03 CIV. 749, 2006 WL 3543670, at *11 (S.D.N.Y. Dec.
5, 2006)))
As to Defendant Napoli and the Doe Defendants, however,
the R&R recommends that Plaintiff's failure to intervene
claims be dismissed. Judge Lehrburger finds that “[t]he
complaint does not establish that Napoli had a reasonable
opportunity to intervene or that she was aware of the
need for Leckie's tooth to be extracted or that the other
Defendants were failing to provide the needed treatment.”
As to the Doe Defendants, Judge Lehrburger concludes that
“[t]he allegations are impermissibly conclusory and fail to
plead facts that would allow a reasonable inference that any
Doe Defendant was present when the named Defendants
failed to provide medical care and had the opportunity to
intervene.” (Id. at 42-43)
This Court finds no error in Judge Lehrburger's conclusions.
2. Leckie's Monell Claims
The City Defendants move to dismiss Plaintiff's Monell
claims against the City and Health & Hospitals. They contend
that “[P]laintiff does not plead any facts demonstrating
that he suffered a constitutional violation by any individual
defendant” (Leckie I Def. Br. (Dkt. No. 117) at 15), and
that “[P]laintiff does not plausibly allege that the alleged
deprivations were caused by a policy or practice attributable
to [t]he City or [Health & Hospitals].” (Id. at 16) And while
acknowledging that “a court may infer a municipal policy
from acts or omissions of the municipality's policymakers,”
they argue that “[P]laintiff does not refer to any specific
incidents, other than Mr. Leckie's, to establish a custom
that resulted in the deprivation of medical care to inmates
that resulted in civil rights violations.” They further contend
that “[P]laintiff does not claim that any of the individual
defendants were acting as final policymakers when they
rendered care to Mr. Leckie.” (Id. at 16-17) Finally, they
argue that “[P]laintiff does not sufficiently allege a causal
connection between the alleged custom or policy of providing
inadequate medical care and [P]laintiff's injuries.” (Id. at 17)
*16 In analyzing Plaintiff's Monell claim, Judge Lehrburger
notes that Plaintiff alleges that the City and Health &
Hospitals “adopted policies of: ‘(i) ignoring the medical
complaints of inmates; (ii) failing to order/perform necessary
medical procedures; [and] (iii) subjecting inmates to cruel and
unusual treatment in allowing inmates to suffer from readily
treatable medical/ dental conditions.’ ” (R&R (Dkt. No. 129)
at 36 (quoting Leckie I SAC (Dkt. No. 110) ¶ 68))
He then sets out the standard for Monell liability:
To prevail on claims of municipal liability under § 1983, “a
plaintiff must identify the existence of a municipal policy
or practice that caused the alleged constitutional violation.
A plaintiff must also demonstrate a sufficient causal
relationship between the violation and the municipal policy
or practice.” .... To prove the existence of a municipal
policy or custom, a plaintiff may allege: “(1) a formal
policy officially endorsed by the municipality; (2) actions
taken by government officials responsible for establishing
the municipal policies that caused the particular deprivation
in question (3) a practice so consistent and widespread that,
although not expressly authorized, constitutes a custom
or usage of which a supervising policy-maker must have
been aware; or (4) a failure by policymakers to provide
adequate training or supervision to subordinates to such
an extent that it amounts to deliberate indifference to the
rights of those who come into contact with the municipal
employees.” .... “Proof of a single incident alleged in a
complaint, especially if it involved only actors below the
policy-making level, does not suffice to show a municipal
policy.”
(Id. at 46-47 (quoting Mitchell v. City of New York, 841
F.3d 72, 80 (2d Cir. 2016) (in turn citing Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 694-95 (1978)); Johnson v.
City of New York, No. 06-CV-9426, 2011 WL 666161 at *3
(S.D.N.Y. Feb. 15, 2011) (citations omitted); and Williams
v. City of New York Department of Correction, No. 19-
CV-9528, 2020 WL 3893929, at *6 (S.D.N.Y. July 10, 2020)
(further quotation omitted)))
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Judge Lehrburger goes on to find that “Leckie only provides
conclusory allegations of the existence of an unconstitutional
policy of denying incarcerated people adequate dental care,
with no specific facts beyond his own experience. He does
not allege that the incidents that happened to him happened
to others, or that the Defendants have been responsible for
similar violations in the past, and so the facts pled are
insufficient to impose municipal liability.” (Id. at 47) Judge
Lehrburger also rejects Leckie's argument that the Court
should “find[ ] municipal liability based upon the allegation
of a single incident in the context of custom and usage and
failure to train and supervise” (Leckie I Pltf. Opp. (Dkt. No.
120) at 20), because (1) “the SAC does not include a claim
for failure to supervise,” and (2) “[t]he brief and conclusory
allegations in the SAC come nowhere near plausibly alleging
facts that could ... ‘demonstrate that a municipality's failure to
train amounts to deliberate indifference to the rights of those
with whom municipal employees will come into contact,’
” as required to make out a Monell claim for failure to
train or supervise. (R&R (Dkt. No. 129) at 47-48 (quoting
Chamberlain v. City of White Plains, 986 F. Supp. 2d 363,
391 (S.D.N.Y. 2013)))
This Court finds no error in Judge Lehrburger's conclusions
regarding Leckie's Monell claim.
3. Section 1983 Claims Against Individual
Defendants in their Official Capacities
*17 The State Defendants argue that Leckie's Section 1983
claims against them in their official capacities “are treated
as claims against the State itself and are barred” by the
Eleventh Amendment. (Leckie II Def. Br. (Dkt. No. 32) at
7 (citing Pennhurst Interstate Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984); Hafer v. Melo, 502 U.S. 21, 25 (1991);
and Will v. Michigan Dep't of State Police, 491 U.S. 58, 71
(1989))) In response, Leckie “agrees to withdraw claims made
against the State Defendants within their official capacities
only.” (Leckie II Pltf. Opp. (Dkt. No. 36) at 22) The R&R
therefore deems these claims “[a]bandoned” and recommends
that “claims under § 1983 against the individual State
Defendants in their official capacities ... be dismissed.” (R&R
(Dkt. No. 129) at 49)
This Court finds no error in Judge Lehrburger's
recommendation.
4. Leckie's Claims under the
ADA and Rehabilitation Act
The State Defendants move to dismiss Leckie's claims under
the ADA and the Rehabilitation Act. (Leckie II Def. Br.
(Dkt. No. 32) at 11-12; Leckie II Cmplt. (Dkt. No. 5) ¶¶
80-117) According to the State Defendants, Leckie's claims
for declaratory and injunctive relief under these statutes are
moot, and he lacks standing to bring such claims, because he
was released from State custody before asserting these claims
in the Leckie II Complaint. (Leckie II Def. Br. (Dkt. No. 32) at
11 (“Plaintiff pleads that he was released from [State] custody
before the complaint was filed, and he thus lacks standing
to seek injunctive relief relating to his incarceration. At a
minimum, Plaintiff's release has rendered any such claims
moot.”) (citing Amador v. Superintendents, No. 03 Civ. 650,
2005 WL 2234050, at *5 (S.D.N.Y. Sept. 13, 2005); City
of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983); and
Verley v. Wright, No. 2 Civ. 1182, 2007 WL 2822199, at *9
(S.D.N.Y. Sept. 27, 2007)))
As to Leckie's claim for damages under the ADA and
the Rehabilitation Act, the State Defendants argue that
“ ‘[n]either Title II of the ADA nor § 504 of the
Rehabilitation Act provides for individual capacity suits
against state officials.’ These claims against Defendants,
therefore, should be dismissed because Plaintiff cannot seek
money damages against individual Defendants.” (Leckie II
Def. Br. (Dkt. No. 32) at 12 (quoting Garcia v. S.U.N.Y.
Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d
Cir. 2001))) In the alternative, the State Defendants argue that
“Plaintiff makes no factual allegations whatsoever against
these Defendants to show that they discriminated against
him because of a disability, that they personally failed to
reasonably accommodate him, or that they retaliated against
him.” (Id.)
Judge Lehrburger concludes that Leckie's ADA and
Rehabilitation Act claims should be dismissed. As to
Leckie's request for declaratory and injunctive relief,
Judge Lehrburger notes that “[i]njunctive relief ... is
generally rendered moot when a prisoner is released from
incarceration,” and that “[t]he same is true for claims of
declaratory relief.” (R&R (Dkt. No. 129) at 49-50 (citing
Khalil v. Laird, 353 F. App'x 620, 621 (2d Cir. 2009), and
Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006))) As
to Leckie's “argu[ment] that injunctive and declaratory relief
would not be moot in the event he is re-incarcerated during
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the pendency of his case,” Judge Lehrburger correctly rejects
this argument as “speculative.” (Id. at 50 (citing Leckie II Pltf.
Opp. (Dkt. No. 36) at 20))
As to Leckie's claim for damages, the R&R recommends
dismissing those claims as not cognizable against the State
Defendants, because “money damages are not an available
remedy against individual defendants under Title II of the
ADA or Section 504 of the Rehabilitation Act.” (Id. at 51
(citing Garcia, 280 F.3d at 107))
*18 This Court finds no error in Judge Lehrburger's
recommendation.
* * * *
For the reasons stated above, this Court will adopt Judge
Lehrburger's recommendations as to Leckie's failure to
intervene claim, Monell claim, Section 1983 claims against
the individual State Defendants in their official capacities, and
ADA and Rehabilitation Act claims.
E. Supplemental Jurisdiction Over Leckie's State Law
Claims
The City Defendants argue that, “if no federal claims
remain after motion practice, the Court should decline to
exercise supplemental jurisdiction over the remaining state
law claims.” (Leckie I Def. Br. (Dkt. No. 117) at 18
(capitalization altered)) The City Defendants do not address
supplemental jurisdiction in the event that some or all of
Leckie's federal claims survive.
The State Defendants argue that this Court lacks subject
matter jurisdiction over Leckie's state law claims because,
“[u]nder N.Y. Corrections Law § 24(1), so long as the alleged
conduct of the corrections employees is within the scope of
their employment and in the discharge of their official duties,
a federal court may not entertain state-law claims for damages
against the corrections employees. Any such claims must be
brought, if at all, as claims against the State itself in the New
York State Court of Claims.” (Leckie II Def. Br. (Dkt. No. 32)
at 7 (citing Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996);
N.Y. Corrections Law § 24(1))).
As to Leckie's surviving state law claims against the City
Defendants – negligence, medical malpractice, negligent
infliction of emotional distress, and intentional infliction
of emotional distress (Leckie I SAC (Dkt. No. 110) ¶¶
39-45, 54-65) – Judge Lehrburger finds that the City
Defendants have “provide[d] no argument to dismiss the[se]
state law claims,” and recommends that this Court exercise
supplemental jurisdiction over them. In so concluding, Judge
Lehrburger notes that “the state law claims are not the focus
of either the SAC or the parties’ briefing[,] .... [that] the
tort claims alleged in the complaint do not involve novel
or complex issues of state law[,] .... [and that] judicial
economy and convenience favor exercising supplemental
jurisdiction, [given that] essentially all of the same evidence
and witnesses would be relevant to both the federal and state
law claims.” (R&R (Dkt. No. 129) at 53-54 (citing Blackrock
Balanced Capital Portfolio v. HSBC Bank USA, National
Association, 95 F. Supp. 3d 703, 709 (S.D.N.Y. 2015), and
Mueller v. Long Island Railroad Co., No. 89 Civ. 7384, 1997
WL 189123, at *3 (S.D.N.Y. April 17, 1997)))
As to Leckie's state law claims against the State Defendants,
the R&R notes that Leckie “generally purports to bring an
action pursuant to, inter alia, ‘the laws of the State of New
York,’ but does not allege any specific state law causes of
action.” Judge Lehrburger finds that this pleading deficiency
“alone is [a] basis for dismissal of any purported state law
claims.” (Id. at 54 (quoting Leckie II Cmplt. (Dkt. No. 5) ¶ 1))
“[T]o the extent any state law claims are alleged,” the R&R
recommends that they “be dismissed for lack of jurisdiction
because N.Y. Corrections Law § 24(1) provides that any
such claims against corrections employees must be brought
against New York State itself in the New York State Court of
Claims.” (Id. at 54-55) The R&R rejects “Leckie's contention
that a reasonable jury could possibly find the State Defendants
acted outside the scope of their employment” (Leckie II Pltf.
Opp. (Dkt. No. 36) at 22-23), finding that “all of the acts
and omissions alleged by Leckie against the individual State
Defendants occurred in the course of performing their jobs
as medical professionals for [the State].” (R&R (Dkt. No.
129) at 56 (citing Davis v. McCready, 283 F. Supp. 3d 108,
123-24 (S.D.N.Y. 2017) (“Courts in the Second Circuit have
long held that Section 24 precludes a plaintiff from raising
state law claims in federal court against state employees in
their personal capacities for actions arising within the scope of
their employment.”); Flint v. Jun, 541 F. Supp. 3d 284, 287-88
(W.D.N.Y. 2021) (same)))
*19 No party has objected to the R&R's recommendations
as to supplemental jurisdiction, and this Court finds no clear
error in Judge Lehrburger's recommendations, which will be
adopted. Accordingly, this Court will exercise supplemental
jurisdiction over the surviving state law claims against the
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City Defendants, but will not exercise jurisdiction over the
state law claims against the State Defendants.
F. Whether Dismissal Should Be With or Without
Prejudice
The R&R recommends that the following claims be dismissed
without prejudice: (1) the deliberate indifference and failure
to intervene claims against the City Doe Defendants; (2)
Leckie's claims for declaratory and injunctive relief under the
ADA and Rehabilitation Act, “as the basis for dismissal is
mootness”; (3) “all claims, if any, asserted under state law as
‘Article III deprives federal courts of the power to dismiss a
case with prejudice where federal subject matter jurisdiction
does not exist’ ”; and (4) the deliberate interference and failure
to intervene claims against the State Doe Defendants. (R&R
(Dkt. No. 129) at 57-59 (quoting Hernandez v. Conriv Realty
Associates, 182 F.3d 121, 123 (2d Cir. 1999)))
The R&R recommends that the following claims be dismissed
with prejudice: (1) the Monell claims against the City and
Health & Hospitals, because “[n]othing in the SAC (or
Leckie's previous pleadings) suggests – let alone plausibly
pleads facts to support – a policy or practice of deliberate
indifference, failure to intervene, or the like with respect
to detainees or prisoners in need of dental or medical
care[,] ... even though the City produced documentation
of its policies and procedures”; (2) “the claims against
Napoli, given that the allegations are that Leckie was seen
the very next day by a dentist and there is no indication
that Napoli had any further involvement”; (3) “claims for
damages under the ADA and Rehabilitation Act, because the
only defendants are individuals, and money damages against
individual defendants are not an available remedy”; and (4)
“all claims against [the State] Defendants in their official
capacities[,] as Leckie has abandoned these claims and they
are barred by the Eleventh Amendment.” (Id.)
This Court concludes that Leckie's claims for declaratory and
injunctive relief under the ADA and the Rehabilitation Act
should be dismissed with prejudice, because the mootness
of those claims cannot be cured in an amended complaint.
See Pierce v. Fordham Univ., Inc., No. 15-CV-4589 (JMF),
2016 WL 3093994, at *7 (S.D.N.Y. June 1, 2016) (denying
leave to amend because “ ‘better pleading will not cure’
the mootness of Plaintiff's claims against the Government
Defendants”) (quoting Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000)), aff'd, 692 F. App'x 644 (2d Cir.
2017); Rodriguez v. Touchette, No. 5:19-CV-143-GWC-
JMC, 2020 WL 2322615, at *7 (D. Vt. May 11, 2020)
(“Because [plaintiff's] action is barred for mootness, failure
to exhaust administrative remedies, and the doctrine of
sovereign immunity, the defects in his Complaint cannot be
cured by amendment.”), report and recommendation adopted,
No. 5:19-CV-143, 2020 WL 3896848 (D. Vt. July 9, 2020).
The preclusive effect of this ruling is, of course, limited to
the facts and analysis underlying the mootness determination.
See Hell's Kitchen Neighborhood Ass'n v. Bloomberg, No. 05
CIV. 4806 (SHS), 2007 WL 3254393, at *6 (S.D.N.Y. Nov.
1, 2007) (construing prior discontinuance “with prejudice” on
mootness grounds as limited to “the question decided therein,
i.e., the mootness of the claims”) (quotation omitted); Bank
v. Spark Energy Holdings, LLC, No. 13-CV-6130 ARR LB,
2014 WL 2805114, at *4-5 (E.D.N.Y. June 20, 2014) (same).
*20 No party has objected to Judge Lehrburger's remaining
recommendations on this point, which this Court will adopt.
CONCLUSION
For the reasons stated above, the R&R is adopted in part.
Defendants’ motions to dismiss (Leckie I, Dkt. No. 115;
Leckie II, Dkt. No. 31) are granted in part and denied in part
as set forth above. Leckie's motion to consolidate (Leckie
II, Dkt. No. 35) is granted. The State Defendants’ motion to
transfer venue (Leckie II, Dkt. No. 31) is denied. The Clerk of
Court is direct to consolidate 19 Civ. 6719 and 21 Civ. 7212,
and to terminate the motions. (19 Civ. 6719, Dkt. No. 115; 21
Civ. 7212, Dkt. Nos. 31, 35).
The Court will conduct a conference in these matters pursuant
to Rule 16 of the Federal Rules of Civil Procedure on May
11, 2023, at 11:00 a.m., in Courtroom 705 of the Thurgood
Marshall U.S. Courthouse, 40 Foley Square, New York, New
York.
All Citations
Not Reported in Fed. Supp., 2023 WL 3168699
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Footnotes
1 The R&R appears on both the Leckie I and Leckie II dockets. References to the R&R in this Order are to
the Leckie I docket.
2 Because the parties have not objected to Judge Lehrburger's factual statement, this Court adopts it in full.
See Silverman v. 3D Total Solutions, Inc., No. 18 CIV. 10231 (AT), 2020 WL 1285049, at *1 n.1 (S.D.N.Y.
Mar. 18, 2020) (“Because the parties have not objected to the R&R's characterization of the background
facts ..., the Court adopts the R&R's ‘Background’ section and takes the facts characterized therein as true.”);
Hafford v. Aetna Life Ins. Co., No. 16-CV-4425 (VEC)(SN), 2017 WL 4083580, at *1 (S.D.N.Y. Sept. 13,
2017) (“The parties do not object to the Magistrate Judge's ... recitation of the facts of this case, and the
Court adopts [the factual statement] in full.”).
3 The page numbers of documents referenced in this Order correspond to the page numbers designated by
this District's Electronic Case Files (“ECF”) system.
4 The R&R also recommends that the motion to dismiss Plaintiff's deliberate difference claim against
State Defendant Rakib be denied. (R&R (Dkt. No. 129) at 34-37) As the State Defendants point out in
their objections, however, “State Defendant Rakib did not move to dismiss Plaintiff's claims for medical
indifference.” (Def. Objs. (Dkt. No. 40) at 3) Accordingly, the R&R will not be adopted as to this
recommendation.
5 Having concluded above that Plaintiff's allegations as to Napoli are insufficient, this Court does not conduct
a qualified immunity analysis as to her. See Rosado v. Vill. of Goshen, No. 7:16-CV-6916 (NSR), 2019 WL
1437522, at *9 (S.D.N.Y. Mar. 31, 2019) (“Given that Plaintiff has failed to state a valid claim, the issue of
qualified immunity is moot.”).
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Simms v. The City of New York, Not Reported in F.Supp.2d (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 4543051
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Reginald SIMMS, Plaintiff,
v.
THE CITY OF NEW YORK, John Doe and
Jane Doe, the names of the last defendants being
fictitious, the true names of the defendants
being unknown to the plaintiffs, Defendants.
No. 10–CV–3420 (NGG)(RML).
|
Sept. 28, 2011.
Attorneys and Law Firms
Osondu O. Anyadike, Ugochukwu Uzoh, Ugo Uzoh, P.C.,
Brooklyn, NY, for Plaintiff.
Brian Jeremy Farrar, New York Law Dept., New York, NY,
for Defendants.
MEMORANDUM AND ORDER
NICHOLAS G. GARAUFIS, District Judge.
*1 Plaintiff Reginald Simms (“Simms”) objects to the
entirety of the Report and Recommendation (“R & R”)
(Docket Entry # 13) of Magistrate Judge Robert Levy
recommending that his complaint against the City of New
York (“City”) be dismissed for failure to state a claim upon
which relief can be granted. 1 (Docket Entry # 16.) For the
following reasons, the court agrees with Judge Levy that
Simms's complaint fails to allege a plausible claim for relief
under 42 U.S.C. § 1983, and grants the City's motion to
dismiss (Docket Entry # 6) with respect to that claim. That
done, the court declines to continue to exercise supplemental
jurisdiction over Simms's remaining state-law claims, which
are dismissed without prejudice.
I. BACKGROUND
On October 14, 2010, Simms filed an amended complaint
(“Complaint”) raising claims against the City under 42
U.S.C. § 1983 and several provisions of the New York State
Constitution. (Docket Entry # 4.) He alleges that certain acts
by the New York City Police Department and the Kings
County District Attorney's Office (“D.A.'s Office”) violated a
number of his individual rights secured by the United States
and New York constitutions. Specifically, Simms alleges that
he was maliciously prosecuted for a burglary he did not
commit. 2 (Am.Compl.¶ 23.) He asserts that he was arrested
by the police in Brooklyn without probable cause; that the
police lied to the D.A.'s Office about the circumstances
surrounding his arrest; and that, based on this information,
the D.A's Office went forward with a prosecution before
eventually dropping the case in July 2007. (Am.Compl.¶¶
9, 10, 12, 16, 17, 20.) Simms alleges that this malicious
prosecution resulted from the City's failure to properly train
its police officers and prosecutors, and that such failure is
endemic. (Am.Compl.¶¶ 27–33.) Simms claims that he was
harmed in various ways by the ordeal and seeks relief in the
form of compensatory and punitive damages. (Am.Compl.¶¶
21, 41.)
The City moved to dismiss the Complaint pursuant to
Rule 12(b) (6) of the Federal Rules of Civil Procedure on
November 24, 2010, and court referred the motion to Judge
Levy for a report and recommendation. (See Docket Entry
of Sept. 23, 2010.) On May 19, 2011, Judge Levy submitted
to the court his recommendation that the City's motion be
granted, and this objection followed.
II. DISCUSSION
Where, as here, a party objects to the entirety of a magistrate
judge's report and recommendation, the court reviews the
report de novo. See 28 U.S.C. § 636(b)(1)(C). Accordingly,
the court now examines the Complaint to determine if it states
a claim upon which relief can be granted.
A plaintiff can only obtain relief for claims that are properly
pled. For a claim to meet the minimum pleading standard set
forth in Rule 8(a)(2) of the Federal Rules of Civil Procedure,
it must contain more than a mere recitation of the elements of
a cause of action or series of legal conclusions. See Ashcroft v.
Iqbal, ––– U.S. ––––, –––– – ––––, 129 S.Ct. 1937, 1949–50,
173 L.Ed.2d 868 (2009). The complaint instead must provide
enough factual content that, when taken as true, would allow
a court to draw a “reasonable inference” that the plaintiff is
entitled to relief. Id. at 1949. This means that a claim for
relief must be plausible; it must raise more than “the mere
possibility of misconduct” by a defendant. Id. at 1949–50.
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*2 Assuming that all of the facts asserted by Simms are
true and construing the Complaint in the light most favorable
to him, see In re Specialists Sec. Litig., 503 F.3d 89, 95 (2d
Cir.2007), the court nevertheless determines that Simms has
failed to allege a plausible § 1983 claim against the City.
To begin with, the constitutional injury Simms alleges—
malicious prosecution—relates only to his treatment by the
police and not to that by the DA.'s Office. To establish a §
1983 claim for malicious prosecution, a plaintiff must show
a violation of his fourth-amendment rights and all of the
elements that make up a malicious prosecution claim under
relevant state law. Manganiello v. Citv of New York, 612 F.3d
149, 160–61 (2d Cir.2010). In New York, these elements
are: (1) initiation or continuation of a criminal proceeding
against the plaintiff; (2) termination of that proceeding in the
plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as motivation for the
prosecution. Id. at 161 (citing Broughton v. State, 37 N.Y.2d
451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)). At
the pleading stage, actual malice may be inferred from a
lack of probable cause. Cf. Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123, 131 (2d Cir.1997) (“[L]ack of probable cause
generally raises an inference of malice sufficient to withstand
summary judgment.”). While it is clear that Simms asserts
facts that, if true, would establish or give rise to a reasonable
inference that the elements of the state tort were met as to the
arresting officers, he does not adequately plead that the D.A .'s
Office lacked probable cause to initiate a prosecution. On
the contrary, by asserting that the arresting officers “falsely
stated to prosecutors ... that plaintiff knowingly entered or
remained unlawfully in a building with intent to commit a
crime therein” (Am.Compl.¶ 16), the Complaint gives rise
to precisely the opposite inference. While it is possible that
the prosecutors knew or suspected that the police were lying
to them, without more asserted facts, such a scenario is not
plausible.
This distinction—between the alleged culpability of the
D.A.'s Office and that of the police—matters because, as
is well known, the City cannot be held vicariously liable
under § 1983 for constitutional torts committed solely by
its employees. Monell v. New York Dep't of Soc. Servs.,
436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Rather, the City is only liable for wrongs for which it is
itself responsible; that is, for those torts caused by official
government policy, custom, or practice. Id.; see also DeCarlo
v. Fry, 141 F.3d 56, 61–62 (2d Cir.1997). As Simms only
sufficiently pleads an injury inflicted by police officers, his
§ 1983 claim turns exclusively on the City's policies and
customs concerning the police department and not on those
related to local prosecutors.
Simms alleges that he was victimized as a result of the
City's failure to properly train its police officers and its
deliberate indifference to the consequences of such failure.
(Am.Compl.¶¶ 27, 29) A municipality's failure to properly
train its employees can under certain circumstances give rise
to Monell liability, see City of Canton v. Harris, 489 U.S.
378, 387–90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), but a
claim based on this theory still must be properly pled under
Iqbal. 3 Here, there is not enough factual material in the
Complaint for the court to reasonably infer that the police
misconduct Simms alleges was the result of anything other
than the individual acts of the arresting officers.
*3 Much of the portion of the Complaint that addresses the
City's alleged failure to train its police officers is conclusory,
and therefore must be disregarded. See Iqbal, 129 S.Ct. at
1949–50. Simms asserts that the City, “acting through the
New York Police Department, had actual or de facto policies,
practices, customs and or usages of failing to properly train,
supervise or discipline its police officers concerning the
correct practices in conducting investigations ... and [the]
obligation to effect an arrest only when probable cause
existsfor such arrest” (Am.Compl.¶ 27.) While this assertion
does specify what type of training the officers lacked, it does
not provide any facts that would allow the court to infer
what city policies, practices, or customs contributed to or
caused the deficiency. Simms's assertion that the failure was
a product of the City's “deliberate indifference” (id. at ¶ 29)
does not cure the problem because it is nothing but a pure
legal conclusion. In sum, these passages contain little more
than boilerplate, which the court cannot accept as true.
Thus, the court is left with a scant three factual
assertions, which, when read together, do not amount
to a plausible claim that any City policy, practice,
or custom contributed to Simms's injury. First, Simms
asserts that police commanders were allowed to set
“productivity goals” for their subordinates. (Am.Compl.¶
31.) It is not reasonable, however, to equate “productivity
goals”—whatever that open-ended concept may mean—with
malicious prosecutions. Even less relevant is Simms's second
assertion that another judge in this courthouse determined
that certain allegations made in an unrelated consolidated
action against the City were sufficient to survive a motion
to dismiss. (See Am. Compl. ¶ 32 (citing Colon v. City
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of New York, Nos. 09–CV–8, 09–CV–9 (JBW), 2009 U.S.
Dist. LEXIS 1105020, at *5, 2009 WL 4263362 (E.D.N.Y.
Nov. 25, 2009) .) Neither the judge nor a jury found as a
fact that the City employed harmful practices or policies.
Instead, the court merely ruled in that a cause action based
on such a theory was properly pled. See Colon. 2009 U.S.
Dist. LEXIS 1105020, at *5, 2009 WL 4263362. Notably,
the plaintiffs alleged different injuries than Simms alleges,
see id., at *2–*3, blamed different City policies, see id.,
and, presumably, included more factual material in their
complaints pertaining to the City's practices, customs, and
policies. Finally, Simms's assertion that he was falsely
arrested a second time (Am.Compl.¶¶ 33–34) is not enough,
even when paired with his allegations about the instant arrest,
to create a reasonable inference that the City failed to train
its police officers. Rather, given the size of the City's police
force, the plausible explanation for these incidents is that
Simms twice had the misfortune of encountering unethical
police officers.
Because Simms has not plausibly alleged that City was itself
responsible for his injury, his § 1983 claim is dismissed.
*4 Simms's § 1983 claim against the City was the only
federal claim remaining in this action. Now that it has been
dismissed, the court is left exclusively with Simms's state-law
claims. The Second Circuit has “generally held that where all
federal claims have been dismissed at a relatively early stage,
the district court should decline to exercise supplemental
jurisdiction over pendent state law claims.” Astra Media
Group. LLC v. Clear Channel Taxi Media, LLC, 414 F.
App'x 334, 337 (2d Cir.2011) (summary order) (citing Second
Circuit cases). It is early in this litigation and the court has
dismissed all of Simms's federal claims. The court therefore
declines to continue to exercise supplemental jurisdiction
over Simms's state-law claims and dismisses them without
prejudice.
III. CONCLUSION
For the foregoing reasons, the City's motion to dismiss is
GRANTED. Simms's § 1983 claim is dismissed and his state-
law claims are dismissed without prejudice to re-file in state
court.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 4543051
Footnotes
1 In oral argument before Judge Levy, Simms withdrew his claims against the other named defendants,
unknown police officers referred to as John Doe and Jane Doe. (See Tr. of Oral Argument (Docket Entry
# 12) at 3–5.)
2 The Complaint also alleges that Simms was falsely arrested, but Simms conceded at oral argument before
Judge Levy that this claim is time-barred by the applicable statute of limitations. (See Tr. of Oral Argument
at 4.)
3 In his objection to the R & R, Simms relies on language in the Second Circuit's decision in Amnesty America
v. Town of West Hartford that suggests that conclusory allegations about a municipality's failure to train its
employees may be sufficient because “it is unlikely that a plaintiff would have information about the city's
training programs or about the cause of the misconduct at the pleading stage.” (Pl's Objection to R & R at
9 (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 130 n .10 (2d Cir.2004)) (internal quotation
marks omitted).) The court notes that Amnesty was decided before Iqbal and Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), which substantially reworked the federal pleading
standards. Since those decisions, courts in this district have generally required that plaintiffs provide more
than a simple recitation of their theory of liability, even if that theory is based on a failure to train. See Araujo v.
City of New York, No. 08–CV–3715 (KAM), 2010 U.S. Dist. LEXIS 26082, at *28, 2010 WL 1049583 (E.D.N.Y.
Mar. 19, 2010); Abreu v. City of New York, 657 F.Supp.2d 357, 361 (E.D.N.Y.2009); Bradley v. City of New
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York, No. 08–CV–1106 (NGG), 2009 U.S. Dist. LEXIS 51532, at *9–*10, 2009 WL 1703237 (E.D.N.Y. June
18, 2009). But see Ferrari v. County of Suffolk, No. 10–CV–4218 (JS), 2011 U.S. Dist. LEXIS 61337, at
*29–*30, 2011 WL 2297125 (E.D.N.Y. June 7, 2011) (Seybert, J.) (citing Amnesty for the proposition that
failure-to-train claims are afforded a lenient pleading standard and noting that Iqbal and Twombly are “context
specific”); Michael v. County of Nassau, No. 09–CV–5200 (JS), 2010 U.S. Dist. LEXIS 82764, at *11 n. 2,
2010 WL 3237143 (E.D.N.Y. Aug. 11, 2010) (Seybert, J.) (same).
The Court declines to give Amnesty the broad reading that Simms urges. For one thing, Amnesty' s
discussion of pleading standards is dictum. The Second Circuit in that case reviewed a grant of summary
judgment. For another, an interpretation of Amnesty that allows plaintiffs to plead only the bare elements of
their cause of action simply cannot be squared with Iqbal and Twombly. It may well be that plaintiffs cannot
be expected to know the details of a municipality's training program without discovery, see Amnesty, 361
F.3d at 130 n. 10, but that does not relieve them from the obligation to plead facts sufficient for a court to
reasonably infer that some type of municipal policy, practice, or custom—including deliberate indifference
to the population's constitutional rights—caused an employee training program to be deficient. The court
does not speculate about what types of facts could meet this standard, but, suffice it to say, allegations
limited to one or two specific constitutional violations by individual officers—all that is asserted here, see
infra—are not enough to give rise to such an inference.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Tieman v. City of Newburgh, Not Reported in F.Supp.3d (2015)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Rivera v. Westchester County, S.D.N.Y., September
23, 2020
2015 WL 1379652
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Steven TIEMAN, Plaintiff,
v.
CITY OF NEWBURGH, Po Joseph Palermo,
Po John Maguire, Po Eric Eltz, Po Patrick Kelly,
Po Anthony Guidice, Po Christopher Lahar,
Town of Newburgh, Sgt William Ransom,
Unknown Police Officers 1–5, Defendants.
No. 13–CV–4178 (KMK).
|
Signed March 26, 2015.
Attorneys and Law Firms
David A. Zelman, Esq., The Law Office of David A. Zelman,
Brooklyn, NY, for Plaintiff.
Roberta D. Asher, Esq., Asher & Associates, New York, NY,
for Plaintiff.
David Lewis Posner, Esq., McCabe & Mack LLP,
Poughkeepsie, NY, for Defendant City of Newburgh.
Carl Steven Sandel, Esq., Drew William Sumner, Esq., Morris
Duffy Alonso & Faley, New York, NY, for Defendants Town
of Newburgh and SGT William Ransom.
OPINION & ORDER
KENNETH M. KARAS, District Judge.
*1 Plaintiff Steven Tieman brought suit against Defendants
City of Newburgh (the “City”); City of Newburgh
Police Officers Joseph Palermo, John Maguire, Eric Eltz,
Patrick Kelly, Anthony Giudice, Christopher Lahar, and
Unknown Police Officers 1–5; the Town of Newburgh (the
“Town”); Town of Newburgh Sergeant William Ransom;
and State Trooper Moises Nales. The City of Newburgh
moves to dismiss all claims against the City and against
Defendants Palermo, Maguire, Eltz, Kelly, Guidice, and
Lahar (collectively, the “City Police Officer Defendants”),
and for the Court to reject Plaintiff's request to file his
Proposed Amended Complaint (“PAC”). The Town of
Newburgh moves to dismiss all claims against the Town
and against Defendant Ransom, and for the Court to reject
Plaintiff's PAC. For the following reasons, the Town's Motion
To Dismiss is granted and the City's Motion To Dismiss is
denied in part and granted in part.
I. Background
A. Factual Background
The following factual summary is derived from Plaintiff's
PAC, which the Court takes as true for the purpose of
these Motions To Dismiss. 1 These claims arise out of an
incident that occurred on June 17, 2010, at approximately
5:45 p.m. (Pl.'s Mem. of Law in Opp'n (“Pl.'s Mem.”)
Ex. A(PAC), at ¶ 10 (Dkt. No. 46).) Plaintiff alleges that
he “was lawfully driving on a public street in Newburgh,
New York, when he was approached by a police officer,
upon information and belief, [Defendant Eltz], who was
wearing plain clothes.” (Id.) 2 Without warning and “for no
apparent reason,” Defendant Eltz “began to yell” at Plaintiff,
and “told him to get out of the car.” (Id. ¶ 11.) Plaintiff
further alleges that he “was frightened and thought he was
being robbed, so he drove away.” (Id.) Defendant Eltz and
other police officers, including Defendants Maguire, Kelly,
Guidice, Lahar, and Palermo, gave chase to Plaintiff. (Id. ¶
12.) “At some point thereafter, and prior to Plaintiff stopping
his vehicle,” Defendants Ransom and Nales joined the chase.
(Id.) “After a brief car chase, [P]laintiff pulled over to the
side of the road, put his pickup truck in park, turned off the
engine, and raised his hands to surrender.” (Id. ¶ 13.) Plaintiff
alleges that, when he stopped his vehicle, Defendant Nales
was located near Plaintiff's vehicle. (Id.)
Next, Plaintiff alleges that “one of the defendant police
officers, on information and belief [Defendant Maguire],
opened the truck door and ordered his police dog to attack
[P]laintiff.” (Id. ¶ 14.) Plaintiff “was thereupon attacked by
the police dog, and punched numerous times by [Defendant
Maguire].” (Id.) Plaintiff alleges that he was “not resisting the
police officers in any way,” but he nonetheless was dragged
from his truck and thrown to the ground by Defendant
Maguire and other officers, and was “beaten severely by the
defendant officers, who at this point were laughing and telling
the dog what a good job he had done.” (Id. ¶ 15.) Plaintiff
alleges that at that point “[t]here were at least fifteen or twenty
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police officers surrounding” him. (Id.) Plaintiff alleges that
though he was “handcuffed and secured by the police officers,
the police dog was again ordered to attack” him, which attack
was “completely unjustified, and resulted in numerous further
physical injuries.” (Id. ¶ 16.)
*2 Plaintiff alleges that the injuries he suffered as a result
of this assault “included deep dog bites and lacerations to
his left side and left leg; bruising to his jaw, head, back, and
arms; lacerations to his right elbow; and a broken left ring
finger (caused by a dog bite).” (Id. ¶ 17.) Plaintiff alleges that
he was arrested, taken to the Newburgh City police station,
then taken for medical treatment at St. Luke's Hospital,
and then to Orange County Jail, where he received further
medical treatment. (Id. ¶ 18.) Plaintiff alleges that his wounds
became infected while in jail, and that he suffered severe and
permanent injuries, including “scarring and weakness in his
limbs,” “severe physical pain,” and “serious and permanent
psychological and emotional injuries, including depression,
flashbacks, nightmares, unreasonable fear of dogs and police
officers, and inability to concentrate.” (Id. ¶¶ 19–21.)
According to Plaintiff, the City “has a policy or practice of
using excessive force when effectuating arrests, and fails to
train and/or discipline its employees to prevent violations of
arrestee's [sic] constitutional rights.” (Id. ¶ 22.) Additionally,
Plaintiff claims that the City “has an extensive history of
lawsuits and other complaints alleging the use of excessive
force by its employees.” (Id. ¶ 23.) In particular, according
to Plaintiff, “[p]ublic court records reveal at least nine suits
filed in the five years before the incident [that is the basis
for this Action] which allege that police officers employed by
[the City] used excessive force during the course of an arrest,”
“[a]t least five” of which incidents “involved allegations of
unnecessary and excessive dog bites.” (Id.) Plaintiff has listed
and described the following lawsuits:
In Burley. et al. v. City of Newburgh, et al., 07–CV–
3336, the plaintiffs alleged that on May 11, 2005, police
officers employed by [the City] falsely arrested one
plaintiff and sprayed him with pepper spray, threw him
to the ground, and kicked him in the face causing him to
lose consciousness. The other plaintiff alleged that police
officers employed by [the City] falsely arrested him, hit
him in the face, and kicked him in the ribs.
In Bryant v. City of Newburgh, et al., 06–CV–4200, the
plaintiff alleged that he was falsely arrested with excessive
force by police officers employed by [the City] on both
May 17, 2005 and June 22, 2006.
In Garcia. et al. v. City of Newburgh, et al., 08–CV–
1198, [the] plaintiff alleged that on March 30, 2007, he
was falsely arrested with excessive force by police officers
employed by [the City], including [Defendant Kelly].
In Cooper. et al. v. City of Newburgh, et al., 09–CV–2234,
four plaintiffs alleged that on March 31, 2007, July 8, 2007,
August 8, 2007, and August 9, 2007, respectively, [City]
police officers arrested one of the plaintiffs with excessive
force. The complaint alleged that during the course of
each arrest, officers directed police dogs to “bite and hold”
causing serious injuries to each plaintiff.
*3 In Follini v. City of Newburgh, et al., 08–CV–
6347, [the] plaintiff alleged that on July 22, 2007, police
officers employed by [the City], including [Defendant
Palermo], falsely arrested [the] plaintiff with excessive
force, including pushing [the] plaintiff to the ground,
repeatedly administering a taser while [the] plaintiff was
on the ground, and administering pepper spray directly to
[the] plaintiff's face.
In Allen v. City of Newburgh[,] et al., 08–CV–6771,
the plaintiff alleged that on August 12, 2007, officers
employed by [the City] arrested him with excessive force,
causing injuries including loss of consciousness, shoulder
dislocation, facial bruising, and muscle spasms.
In Baynes v. City of Newburgh, et al., 08–CV–6442, [the]
plaintiff alleged that on August 25, 2007, police officers
employed by [the City], including [Defendant Palermo]
and [Defendant Kelly], physically assaulted, maced, and
tased[ ] both [the] plaintiff and additional arrestees who
were not resisting arrest.
In Fahey, et al. v. Lt. Peter Leach, et al., 08–CV–8280,
[the] plaintiffs alleged that on September 30, 2007, multiple
[City] police officers assaulted [the] plaintiffs at a gas
station and at the police precinct.
In Whitfield v. City of Newburgh, et al., 08–CV–8516, the
deceased plaintiff, through his estate, alleged that on July 8,
2008, officers employed by [the City] administered a taser
to [the] plaintiff and ordered a police dog to attack [the]
plaintiff multiple times, causing his death.
(Id. ¶¶ 24–32 (italics omitted).) Plaintiff further alleges that
the City “routinely reached settlement agreements” with the
Plaintiffs in these cases. (Id. ¶ 33.) In particular, Plaintiff
claims that “Garcia settled in 2008, Bryant, Cooper and
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Bavnes settled in 2010, Fahey and Allen settled in 2011,
and Follini settled in 2012.” (Id .) Plaintiff further asserts
that while the “amount of each settlement agreement [is] not
publically available, upon information and belief, most, if not
all, of the above-mentioned cases settled for amounts well in
excess of nuisance value.” (Id. ¶ 34.) Additionally, Plaintiff
alleges, upon information and belief, that “the officers that
were the subject of these lawsuits were not disciplined by [the
City] for their actions.” (Id.)
Plaintiff alleges two other bases for the City's “notice of
allegations of excessive force.” (Id. ¶ 35.) Specifically,
Plaintiff alleges that the City “was also on notice of
allegations of excessive force by its officers through
public forums, including on February 11, 2008,” on which
date “the Newburgh City Council held a public comment
session, at which numerous residents testified regarding
the excessive and unnecessary use of police dogs during
arrests, as well as additional perceived problems within the
Police Department, including the lack of a civilian review
board.” (Id.) Additionally, Plaintiff alleges that “[o]n August
1, 2013, Matrix Consulting Group published their Final
Report entitled ‘An Assessment of the Culture, Community
Relations, Use of Force, Training, Disciplinary Practices
of the Police Department–City of Newburgh, New York,’
“ (the “Matrix Report”). (Id. ¶ 36.) According to Plaintiff,
the Matrix Report stated generally that “discipline guidelines
and decisions are unstructured,” noted that “assigning a
specific investigator and requiring a formal report” was not
“previously required,” and stated that “only 43% of sworn
officers who responded to the polling in the report agreed that
they received appropriate training to do their job well.” (Id.)
*4 Finally, Plaintiff makes a number of general allegations
regarding the City and Town. First, Plaintiff alleges that
the “City of Newburgh and Town of Newburgh have
been aware for years (from lawsuits, notices of claim and
complaints filed with the municipalities themselves and
their police departments) that many of their police officers
are insufficiently trained with respect to the laws and
regulations regarding use of force during an arrest.” (Id. ¶
40.) Plaintiff further alleges that the “municipalities are ...
aware that such improper training has often resulted in a
deprivation of civil rights,” and that despite having such
notice, “the municipalities have failed to take corrective
action,” which “caused the officers in the present case to
violate plaintiff's civil rights.” (Id.) Additionally, Plaintiff
alleges that the City and Town “have been on notice
that the defendant police officers lack the objectivity,
temperament, maturity, and discretion to be members of their
respective police departments,” and despite such notice, “the
municipalities have retained the individual defendants as
police officers.” (Id. ¶ 41.) Plaintiff also alleges that “upon
information and belief, in 2010, Defendants had a policy or
routine practice of using excessive force when effectuating
arrests,” and that upon information and belief, “it was the
policy and/or custom of defendant City of Newburgh to
inadequately train, supervise, discipline, and/or terminate
their officers, staff, agents and employees, thereby failing
to adequately discourage further constitutional violations on
the part of their officers, staff, agents and employees.” (Id.
at ¶¶ 42–43.) Furthermore, Plaintiff alleges that “as a result
of the above described policies and customs, the officers,
staff, agents and employees of defendant [City], believed that
their actions would not be properly monitored by supervisory
officers and that misconduct would not be investigated or
sanctioned, but would be tolerated.” (Id. at ¶ 44.) Plaintiff
concludes that “the above described policies and customs
demonstrate a deliberate indifference on the part of the
policymakers of [the City] to the constitutional rights of
arrestees and were the cause of the violations of Plaintiff's
rights alleged herein.” (Id. ¶ 45.)
B. Procedural Background
Plaintiff filed suit against the City, the City Police Officer
Defendants, the Town, Defendant Ransom, and Defendant
Nales on June 14, 2013. (See Dkt. No. 2.) 3 On January 9,
2014, the Court held a pre-motion conference with all Parties.
(See Dkt. (minute Entry for Jan. 9, 2014).) Following that
conference, Plaintiff submitted a letter explaining the basis
for filing an amended complaint, and attaching his PAC. (See
Dkt. No. 20.) 4 Plaintiff never formally moved to file his PAC,
which contains all of the factual allegations in his Complaint,
as well as additional allegations.
*5 On May 23, 2014, the City moved to dismiss the claims
against the City and the City Police Officer Defendants, and
to oppose the filing of Plaintiff's PAC as to the claims against
the City and the City Police Officer Defendants. (See Dkt.
No. 25.) Similarly, the Town moved to dismiss the claims
against the Town and Defendant Ransom, and to oppose the
filing of Plaintiff's PAC as to the claims against the Town and
Defendant Ransom. (See Dkt. No. 29.)
II. Discussion
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A. 12(b)(5) Motion To Dismiss
The City of Newburgh moves to dismiss the claims against the
City Police Officer Defendants for failure to serve, pursuant
to Federal Rule of Civil Procedure 12(b)(5).
1. Standard of Review
“[A] federal court generally may not rule on the merits of
a case without first determining that it has jurisdiction over
the category of claim in suit (subject-matter jurisdiction)
and the parties (personal jurisdiction).” Sinochem Int'l. Co.
v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430–31,
127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). Valid service is a
prerequisite for a federal court to assert personal jurisdiction
over a claim. See Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987).
“When a defendant moves to dismiss under Rule 12(b)(5),
the plaintiff bears the burden of proving adequate service.”
Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir.2010)
(brackets and internal quotation marks omitted).
In deciding a Rule 12(b)(5) motion, the Court “must look
to matters outside the complaint to determine what steps, if
any, the plaintiff took to effect service.” C3 Media & Mktg.
Grp., L.L.C. v. Firstgate Internet, Inc., 419 F.Supp.2d 419,
427 (S.D.N.Y.2005) (internal quotation marks omitted); see
also PH Int'l Trading Corp. v. Nordstrom, Inc., No. 07–CV–
10680, 2009 WL 859084, at *3 (S.D.N.Y. Mar. 31, 2009) (“A
court may, on a Rule 12(b)(5) motion to dismiss, consider
affidavits and documents submitted by the parties without
converting the motion into one for summary judgment under
Rule 56.” (brackets and internal quotation marks omitted)).
For a plaintiff to satisfy his burden of proving adequate
service, see Mende v. Milestone Tech., Inc., 269 F.Supp.2d
246, 251 (S.D.N.Y.2003), “[c]onclusory statements that a
defendant was properly served are insufficient to overcome
a defendant's sworn affidavit that he was never served,”
Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp.
654, 658 (S.D.N.Y.1997), aff'd, 173 F.3d 844 (2d Cir.1999).
Similarly, defective service is not cured or overcome “on the
mere assertion that a defendant had actual notice.” Weston
Funding, L.L.C. v. Consorcio G Grupo Dina, S.A. de C.V., 451
F.Supp.2d 585, 589 (S.D.N.Y.2006) (internal quotation marks
omitted).
2. Analysis
The Parties agree that service was attempted as follows.
“[A] summons addressed to each defendant was delivered
to the City Clerk's office, 83 Broadway, Newburgh, N.Y.
12550” in August 2013. (Pl.'s Mem. 9.) Plaintiff asserts that
this service was proper because 83 Broadway “is the usual
and typical place to serve Newburgh officers,” the process
server Michael Root of Majestic Process Service, Inc. went
to the police department at 55 Broadway, Newburgh, N.Y.
12550, and was told by a sergeant “that the place to serve
Newburgh officers was 83 Broadway,” and “Mr. Root asked
Ms. [Autumn] Resto, a paralegal at Newburgh City Hall, if
she could accept service on behalf of the officer[s],” “she
checked with a supervisor, read the documents, and agreed to
accept service on behalf of the officers.” (Id. at 9–10; see also
id. Ex. C (Decl. of Michael Root) (“Root Decl.”) ¶¶ 1, 3–7.)
*6 In support of its Motion To Dismiss, the City submitted
an affidavit from Michelle Kelson, Corporation Counsel for
the City of Newburgh. (See Aff. of Michelle Kelson (April 24,
2014) (“April 24 Kelson Aff.”) ¶ 1 (Dkt. No. 27).) Ms. Kelson
avers that she was notified that the City Clerk's office had
received “several summons[es] and one copy of the verified
complaint” for this case, and that there was “one summons
for the City and one for each individual police officer.” (Id.
¶ 2.) Ms. Kelson appended the documentation that that City
Clerk's office received-seven summonses and one copy of the
verified complaint. (Id. at Ex. A.) The City also submitted an
affidavit from Ms. Resto, who averred:
My instructions from the Corporation
Counsel are to take whatever legal
papers are given to me. I do not
offer an opinion as to whether giving
me these papers is proper service. I
have no authority to accept service on
behalf of an individual employee of the
City of Newburgh. I have never been
appointed an agent to accept service on
behalf of any Newburgh employee.
(Aff. of Autumn Resto (“Resto Aff.”) ¶ 3 (Dkt. No. 49).) In
Reply, the City submitted a second affidavit from Ms. Kelson,
who averred:
Employees in my office, including Ms. Resto, have
standing instructions to take legal papers delivered to
this office. No one here, including myself, is authorized
to accept service on behalf of any employee of the
City of Newburgh. Pursuant to CPLR § 311(A) (3), the
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Corporation Counsel's office is a designated agent for
receipt of process for the City but not its employees.
No employee of the Corporation Counsel's office has been
designated as an agent to receive[ ] process pursuant to
CPLR § 318.
The Corporation Counsel's office is on the second floor of
City Hall located at 83 Broadway, Newburgh, New York.
It is a separate building from the police station which is
located a few hundred yards away at 55 Broadway. No
police officers report to City Hall at the beginning or end
of their shifts or receive their work assignments here. All
police officers' place of business is the police department.
The individual defendants in this case are not stationed at
City Hall and, as to the performance of their job duties, City
Hall is just another location within the City to which they
are occasionally dispatched for official police business.
(Aff. of Michelle Kelson (June 17, 2014) (“June 17 Kelson
Aff.”) ¶¶ 2–4 (Dkt. No. 48).)
Under Federal Rule 4(e), Plaintiff could serve the City Police
Officer Defendants pursuant to state law, see Fed.R.Civ.P.
4(e)(1), or by delivering a copy of the summons and of the
Complaint to each individual personally, leaving a copy of
each at each individual's dwelling or usual place of abode
with someone of suitable age and discretion who resides
there, or by delivering a copy of each to an agent authorized
by appointment or law to receive service of process, See
Fed.R.Civ.P. 4(e)(2). The City argues, and Plaintiff does not
contest, that service was not properly effected pursuant to
Rule 4(e)(2). The summons and complaint were not delivered
to each person individually, nor were they delivered to each
individual's dwelling or usual place of abode. Finally, service
was not effected by delivering a copy of the summons and
complaint to an agent authorized by appointment or law to
receive service of process; the evidence shows that Ms. Resto
was not an agent authorized to receive service for the City
Police Officer Defendants, nor does Plaintiff even dispute that
fact. (Resto Aff. ¶ 3.)
*7 Thus, the question is whether the City Police Officer
Defendants were properly served under state law, as is
permissible under Federal Rule of Civil Procedure 4(e)(1).
Section 308 of the New York C.P.L.R. (“CPLR”) governs
personal service upon natural persons, and provides that
service may be effected
1. by delivering the summons within the state to the person
to be served; or
2. by delivering the summons within the state to a person of
suitable age and discretion at the actual place of business,
dwelling place or usual place of abode of the person to be
served and by either mailing the summons to the person to
be served at his or her last known residence or by mailing
the summons by first class mail to the person to be served
at his or her actual place of business in an envelope bearing
the legend “personal and confidential” and not indicating
on the outside thereof, by return address or otherwise, that
the communication is from an attorney or concerns an
action against the person to be served, ... or
3. by delivering the summons within the state to the agent
for service of the person to be served as designated under
rule 318[.]
N.Y. C.P.L.R. § 308. Again, service was not effected by
personal delivery to the City Police Officer Defendants or
by delivery at their dwelling places or usual places of abode,
nor is there any evidence that Ms. Resto was an agent for
service designated under CPLR § 318. Thus, the question is
whether the City Police Officer Defendants were served by
delivery of the summonses to a person of suitable age and
discretion at their actual place of business and by mailing the
summonses to the individuals at their last known residences
or actual places of business. 5
Here, Plaintiff has failed to establish that the City Police
Officer Defendants were served at their “actual place of
business” pursuant to CPLR § 308(2). “A person's ‘actual
place of business' must be where the person is physically
present with regularity, and that person must be shown to
regularly transact business at that location.” Selmani v. City
of New York, 100 A.D.3d 861, 954 N.Y.S.2d 580, 581–82
(App.Div.2012); see also Sajimi v. City of New York, No. 07–
CV–3252, 2011 WL 135004, at *3 (E.D.N.Y. Jan. 13, 2011)
(“The term ‘actual place of business' has been defined as
a place where the defendant is regularly physically present
or regularly transacts business.”); Varela v. Flintlock Const.,
Inc., 148 F.Supp.2d 297, 301 (S.D.N.Y.2001) (“Actual place
of business is statutorily defined as any location that the
defendant, through regular solicitation or advertisement, has
held out as its place of business. For a location to be a
person's actual place of business for service pursuant to CPLR
§ 308(2), that person must be shown to regularly transact
business at that location.” (citation and internal quotation
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marks omitted)). Plaintiff makes no such showing. Indeed,
the only evidence submitted on this issue is from Ms. Kelson,
who averred, “No police officers report to City Hall at
the beginning or end of their shifts or receive their work
assignments here. All police officers' place of business is
the police department. The individual defendants in this case
are not stationed at City Hall and, as to the performance of
their job duties, City Hall is just another location within the
City to which they are occasionally dispatched for official
police business.” (June 17 Kelson Aff. ¶ 4.) Plaintiff has failed
to meet his burden of proving that service was effected at
Defendants' place of business. See GMA Accessories, Inc.
v. Solnicki, No. 07–CV–3219, 2010 WL 3749213, at *4
(S.D.N.Y. Sept. 24, 2010) (noting that the plaintiff has the
burden of showing service was made at the defendant's place
of business and holding that the plaintiff failed to meet this
burden when it failed to submit any evidence). 6 Accordingly,
service was improper under New York law. See Davis v. City
of New York, No. 07–CV–1395, 2008 WL 2511734, at *3
(S.D.N.Y. June 19, 2008) (holding that an attempt to effect
service on individual police officers at the office of the city's
corporation counsel was invalid because the “police precinct
to which they report and where they conduct their business
is their actual place of business” and the plaintiff “made
no effort to serve the officers personally or at their actual
residences”); Moultry v. City of Poughkeepsie, 154 F.Supp.2d
809, 812 (S.D.N.Y.2001) (holding that service was improper
under New York law where the plaintiff tried to serve
police officer defendants at the city chamberlain's office, and
the defendants worked at police department headquarters,
reported to work at headquarters at the beginning and end
of each shift, and “[u]nless they [were] testifying in [c]ity
[c]ourt, the officers ha[d] no official police business in
[c]ity [h]all, and they [did] not work for or with the [c]ity
[c]hamberlain”). Furthermore, even if Mr. Root went to the
Police Department at 55 Broadway, was told by a sergeant to
go to the City Attorney at 83 Broadway, and was told by Ms.
Resto that she could accept service on behalf of the officers, as
Mr. Root declared, service was still improper. (See Root Decl.
¶¶ 3–7.) See Moultry, 154 F.Supp.2d at 811–12 (holding that
service on individual police officers at the city chamberlain's
office was improper even though a clerk for the chamberlain
accepted service on behalf of the individual police officers
and “told the process server that he had come to the right
place, and that she was empowered to accept personal service
for the individual police officers”). 7
*8 Additionally, when effecting service under state law,
a plaintiff must, at the very least, serve a summons and
notice. Specifically, “[i]f the complaint is not served with the
summons, the summons shall contain or have attached thereto
a notice stating the nature of the action and the relief sought,
and ... the sum of money for which judgment may be taken in
case of default.” N.Y. C.P.L.R. § 305(b). Here, Plaintiff served
a summons for the City and summonses for each of the six
individual City Police Officer Defendants, but only one copy
of the Complaint. (See April 24 Kelson Aff. Ex. A.) None
of the summonses contained any notice of the claims. (Id.)
Thus, at least five of the summonses served on the City Police
Officer Defendants did not have attached or contain either a
copy of the Complaint or notice of the claims, and therefore
were invalid under New York law.
Next, Plaintiff argues that, if the Court found service to
be improper, it “should be cognizant of the fact that, at
the time of the filing of this case, Plaintiff was pro se”
and therefore should be granted special leniency regarding
procedural matters. (Pl.'s Mem. 11.) However, Plaintiff was
pro se for only a very short portion of this case. Plaintiff
filed his Complaint pro se on June 14, 2013. (Dkt. No.
2.) On August 21, 2013, Roberta D. Asher 8 entered a
notice of appearance on behalf of Plaintiff. (Dkt. No. 4.) 9
Thus, when service was attempted on August 29, 2013,
Plaintiff was represented by counsel. (Pl.'s Mem. Ex. D.)
Therefore, the Court sees no reason to extend special
solicitude to Plaintiff regarding his inadequate service on
the basis of his temporarily pro se status. Cf. Marchand v.
Simonson, 16 F.Supp.3d 97, 106–07 (D.Conn.2014) (noting
that the court would “take[ ] into consideration [the]
plaintiff's pro se status at the time he filed his amended
complaint,” but that because the plaintiff was represented at
the time he filed opposition to a motion, the court “need
not apply the liberal pro se construction in considering
[the] plaintiff's opposition” (italics omitted)); Neely v. RMS
Residential Mortg. Solution, L.L.C., No. 12–CV–1523, 2013
WL 752636, at *12 (E.D.N.Y. Feb. 26, 2013) (“Although the
[c]ourt liberally construed [the][p]laintiff's pro se [o]riginal
[c]omplaint, since [the] [p]laintiff is now represented by
counsel, the [c]ourt has no obligation to construe the
[p]roposed [a]mended [c]omplaint liberally[.]” (brackets,
italics, and internal quotation marks omitted)); Eaves v.
Strayhorn, No. 09–CV–394, 2010 WL 2521449, at *9
(S.D.Ohio June 15, 2010) (“[The] [p]laintiff cannot use the
initial pro se filing to obscure the fact that he, with counsel,
allowed the statute of limitations to run before re-filing his
complaint.” (italics omitted)); Khan v. Abercrombie & Fitch,
Inc., No. 01–CV–6163, 2003 WL 22149527, at *10 (S.D.N.Y.
Sept. 17, 2003) (refusing to allow a plaintiff to amend her
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complaint at a late stage of litigation despite her argument
she should be afforded deference based on her pro se status,
where she was pro se when the case was filed but “has
been represented by counsel since the earliest stages of [the]
action”).
*9 Prior to 1993, “the former Rule 4(j) ... provided that
if service was not made within 120 days, and the serving
party cannot show good cause why such service was not
made within that period, the action shall be dismissed
as to that defendant without prejudice .” Zapata v. City
of New York, 502 F.3d 192, 195 (2d Cir.2007) (internal
quotation marks omitted). Following the 1993 amendments,
the relevant rule, now codified in Rule 4(m), states, “If a
defendant is not served within 120 days after the complaint is
filed, the court ... must dismiss the action without prejudice
against that defendant or order that service be made within
a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service
for an appropriate period.” Fed.R.Civ.P. 4(m). Thus, the
amendment provided “district courts [with] discretion to grant
extensions even in the absence of good cause.” Zapata, 502
F.3d at 196; see also Henderson v. United States, 517 U.S.
654, 662, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (“[I]n
1993 amendments to the Rules, courts have been accorded
discretion to enlarge the 120–day period even if there is no
good cause shown.” (internal quotation marks omitted)).
Here, Plaintiff has not shown good cause—or indeed even
tried to argue that good cause existed, instead merely arguing
that service was proper and that Plaintiff should get solicitude
as he previously was pro se. (Pl.'s Mem. 9–11.) “Good cause
is deemed to exist in exceptional circumstances where the
plaintiff's failure to serve process in a timely manner was
the result of circumstances beyond its control.” Ligon v. City
of New York, No. 12–CV–2274, 2013 WL 3502127, at *1
(S.D.N.Y. July 12, 2013) (internal quotation marks omitted).
“[A]ttorney inadvertence or negligence does not establish
good cause,” nor does “ignorance of the law.” Novak v. Nat'
l Broad. Co. Inc., 131 F.R.D. 44, 45–46 (S.D.N.Y.1990).
“Additionally, a mistaken belief that service was proper does
not establish good cause.” Bernstein v. Vill. of Piermont, No.
11–CV–3677, 2012 WL 6625231, at *3 (S.D.N.Y. Dec. 20,
2012) (internal quotation marks omitted). The Court sees
no basis for making a finding that there was good cause
for Plaintiff's failure to timely serve the City Police Officer
Defendants.
Thus, the only remaining question is whether, in the absence
of good cause, the Court should exercise its discretion to grant
an extension. Importantly, if the Court were to dismiss the
claims against the City Police Officer Defendants, Plaintiff
would not be able to bring the claims again because they
would be time-barred. Because Section 1983 “does not
provide a specific statute of limitations,” “courts apply the
statute of limitations for personal injury actions under state
law.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir.2013).
“Section 1983 actions filed in New York are therefore subject
to a three-year statute of limitations.” Id. The events giving
rise to this suit occurred on June 17, 2010. (Compl. ¶ 10 (Dkt.
No. 2); PAC ¶ 10.) Thus, the statute of limitations expired
on June 17, 2013, three days after this suit was filed. (See
Dkt. No. 2.) “Where, as here, good cause is lacking, but the
dismissal without prejudice in combination with the statute
of limitations would result in a dismissal with prejudice,”
there must be “sufficient indications on the record that the
district court weighed the impact that a dismissal or extension
would have on the parties.” Zapata, 502 F.3d at 197 (footnote
omitted).
*10 When courts are deciding whether to exercise their
discretion to extend the service deadline in the absence of
good cause, they are to consider the following factors: “(1)
whether the applicable statute of limitations would bar the
refiled action; (2) whether the defendant had actual notice
of the claims asserted in the complaint; (3) whether the
defendant had attempted to conceal the defect in service;
and (4) whether the defendant would be prejudiced by the
granting of plaintiff's request for relief from the provision.”
E. Refractories Co. v. Forty Eight Insulations, Inc., 187
F.R.D. 503, 506 (S.D.N.Y.1999). Regarding the first factor, as
explained above, the applicable statute of limitations would
bar the refiled action, so Plaintiff would be prejudiced if
the Court declined to grant an extension. Though this factor
weighs in favor of an extension, it “does not guarantee an
extension for every case that may be time-barred if refiled.”
Bunim v. City of New York, No. 05–CV–1562 et al., 2006 WL
2056386, at *3 (S.D.N.Y. July 21, 2006) (internal quotation
marks omitted). Therefore, the Court must consider the other
factors. There are no indications that the City Police Officer
Defendants have actual notice of the claims asserted or that
they attempted to conceal the defect in service. However,
there are also no allegations that these Defendants would be
prejudiced if the Court granted an extension. See Alvarado v.
Am. Freightways, Inc., No. 04–CV–9536, 2005 WL 1467893,
at *6 (S.D.N.Y. June 21, 2005) (holding that allowing service
after the statute of limitations has expired does not, by itself,
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constitute prejudice). Here, because Plaintiff “would be time-
barred from refilling and the defendants allege no prejudice if
Rule 4(m) relief is granted, the balance of equities tips in favor
of [Plaintiff].” Id.; see also Gore v. RBA Grp., Inc., No. 03–
CV–9442, 2009 WL 884565, at *7 (S.D.N.Y. Mar. 27, 2009)
(“Since the statute of limitations would bar the plaintiff from
re-filing his suit against [the defendant] and nothing in the
record indicates that an extension of the time for service will
prejudice the defendant, the balance of equities tips in favor
of the plaintiff.”). “Granting ... [P]laintiff[ ] a discretionary
extension also furthers the principle that litigation should
generally be resolved on the merits.” Alvarado, 2005 WL
1467893, at *6. Therefore, the Court will grant Plaintiff 21
days from the date of this Opinion to properly serve the City
Police Officer Defendants, or else face dismissal of his claims
against these Defendants. However, no further extensions will
be given, in the absence of good cause.
B. 12(b)(6) Motion To Dismiss and Opposition to PAC
Next, the City and Town move under Rule 12(b)(6) to dismiss
the Complaint for failure to state a claim under Monell v. Dep'
t of Soc. Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978), and the Town moves to dismiss the
claims against the Town Police Officer Ransom. Additionally,
the Defendants move that the Court deny Plaintiff's request to
file his PAC.
1. Standard of Review
*11 Federal Rule of Civil Procedure 15 supplies the legal
standard applicable to a motion to amend a complaint. Rule
15(a)(2) provides that leave to amend a complaint shall be
“freely” given when “justice so requires.” Fed.R.Civ.P. 15(a)
(2). However, “ ‘[i]t is within the sound discretion of the
district court to grant or deny leave to amend.’ “ Barbata
v. Latamie, No. 11–CV–7381, 2012 WL 1986981, at *2
(S.D.N.Y. June 4, 2012) (quoting Green v. Mattingly, 585
F.3d 97, 104 (2d Cir.2009)). “A district court has discretion
to deny leave for good reason, including futility, bad faith,
undue delay, or undue prejudice to the opposing party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2d Cir.2007) (citing Foman v. Davis, 371 U.S. 178, 182,
83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). However, “[o]utright
refusal to grant the leave without any justifying reason for
the denial is an abuse of discretion.” Jin v. Metro. Life Ins.
Co., 310 F.3d 84, 101 (2d Cir.2002). “When the plaintiff
has submitted a proposed amended complaint, the district
judge may review that pleading for adequacy and need not
allow its filing if it does not state a claim upon which relief
can be granted.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d
119, 123 (2d Cir.1991); see also Alaska Laborers Emp'rs
Ret. Fund v. Scholastic Corp., No. 07–CV–7402, 2011 WL
3427208, at *2 (S.D.N.Y. Aug.3, 2011) (“[A] court should
not grant a plaintiff the right to amend [a complaint] when
such amendment ... could not withstand a motion to dismiss
pursuant to Rule 12(b)(6).” (citations and internal quotation
marks omitted)). The adequacy of the proposed amended
complaint is judged by the same standard as that applied to a
motion to dismiss for failure to state a claim under Rule 12(b)
(6) of the Federal Rules of Civil Procedure. See id.; see also
Gen. Elec. Capital Fin., Inc. v. Bank Leumi Trust Co. of N.Y.,
No. 95–CV–9224, 1999 WL 33029, at *5 (S.D.N.Y. Jan.21,
1999).
“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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). The Supreme Court has held that
“[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (second alteration
in original) (citations omitted). Instead, the Supreme Court
has emphasized that “[f]actual allegations must be enough to
raise a right to relief above the speculative level,” id., and that
“once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in
the complaint,” id. at 563. Plaintiffs must allege “only enough
facts to state a claim to relief that is plausible on its face.” Id. at
570. But if a plaintiff has “not nudged [his] claims across the
line from conceivable to plausible, the [ ] complaint must be
dismissed.” Id.; see also Iqbal, 556 U.S. at 679 (“Determining
whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled
to relief.’ “ (alteration in original) (citation omitted) (quoting
Fed.R.Civ.P. 8(a)(2))).
*12 “[W]hen ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S.
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89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); see
also Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.2013)
(“In addressing the sufficiency of a complaint we accept as
true all factual allegations and draw from them all reasonable
inferences .”); Aegis Ins. Servs., Inc. v. 7 World Trade Co.,
L.P., 737 F.3d 166, 176 (2d Cir.2013) (“In reviewing a
dismissal pursuant to Rule 12(b)(6), we ... accept all factual
allegations in the complaint as true ....“ (alterations and
internal quotation marks omitted)). Further, “[f]or the purpose
of resolving [a] motion to dismiss, the Court ... draw[s]
all reasonable inferences in favor of the plaintiff.” Daniel
v. T & M Prot. Res ., Inc., 992 F.Supp.2d 302, 304 n. 1
(S.D.N.Y.2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d
141, 145 (2d Cir.2012)). However, “the tenet that a court must
accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. Therefore,
“a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id.
at 679.
Moreover, “[i]n adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face
of the complaint, in documents appended to the complaint
or incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” Leonard F. v. Isr.
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal
quotation marks omitted); see also ATSI Commc'ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (noting that
the court “may consider any written instrument attached to
the complaint, statements or documents incorporated into the
complaint by reference, legally required public disclosure
documents filed with the SEC, and documents possessed by
or known to the plaintiff and upon which it relied in bringing
the suit” (citation omitted)).
2. Analysis
a. Section 1983 Claims Against the City and Town
Plaintiff brings claims under 42 U.S.C. § 1983 against the
City and Town. “To state a claim under [§ 1983], the plaintiff
must show that a defendant, acting under color of state law,
deprived him of a federal constitutional or statutory right.”
Sykes v. Bank of Am., 723 F.3d 399, 405–06 (2d Cir.2013).
“Congress did not intend municipalities to be held liable
[under § 1983] unless action pursuant to official municipal
policy of some nature caused a constitutional tort.” Monell,
436 U.S. at 691. Thus, “to prevail on a claim against a
municipality under section 1983 based on acts of a public
official, a plaintiff is required to prove: (1) actions taken
under color of law; (2) deprivation of a constitutional or
statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional
injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir.2008); cf. Salvatierra v. Connolly, No. 09–CV–3722, 2010
WL 5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing
a claim against agencies where the plaintiff did not allege
that any policy or custom caused the deprivation of his
rights), adopted by 2011 WL 9398 (S.D.N.Y. Apr.16, 2010);
Arnold v. Westchester County, No. 09–CV–3727, 2010 WL
3397375, at *9 (S.D.N.Y. Apr.16, 2010) (dismissing a claim
against the county because the complaint “[did] not allege the
existence of an unconstitutional custom or policy”), adopted
sub nom. Arnold v. Westchester Cnty. Dep't of Corr., 2010
WL 3397372 (S.D.N.Y. Aug.15, 2010). The fifth element
reflects the notion that “a municipality may not be held
liable under § 1983 solely because it employs a tortfeasor.”
Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S.
397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see
also Newton v. City of New York, 566 F.Supp.2d 256, 270
(S.D.N.Y.2008) (“As subsequently reaffirmed and explained
by the Supreme Court, municipalities may only be held
liable when the municipality itself deprives an individual
of a constitutional right.”). In other words, a municipality
may not be liable under Section 1983 “by application of
the doctrine of respondeat superior.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 89 L.Ed.2d
452 (1986) (italics omitted); see also Vassallo v. Lando, 591
F.Supp.2d 172, 201 (E.D.N.Y.2008) (noting that “a municipal
entity may only be held liable where the entity itself commits
a wrong”). Instead, there must be a “direct causal link between
a municipal policy or custom and the alleged constitutional
deprivation.” City of Canton v. Harris, 489 U.S. 378, 385,
109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see also City of
St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915,
99 L.Ed.2d 107 (1988) (“[G]overnments should be held
responsible when, and only when, their official policies cause
their employees to violate another person's constitutional
rights.”). “In determining municipal liability, it is necessary to
conduct a separate inquiry into whether there exists a ‘policy’
or ‘custom.’ “ Davis v. City of New York, 228 F.Supp.2d 327,
336 (S.D.N.Y.2002), aff'd, 75 F. App'x 827 (2d Cir.2003).
Normally, “a custom or policy cannot be shown by pointing
to a single instance of unconstitutional conduct by a mere
employee of the [municipality].” Newton, 566 F.Supp.2d at
271; see also City of Okla. v. Tuttle, 471 U.S. 808, 823–24,
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105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion)
(“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can
be attributed to a municipal policymaker.”); Brogdon v. City
of New Rochelle, 200 F.Supp.2d 411, 427 (S.D.N.Y.2002) (“A
single incident by itself is generally insufficient to establish
the affirmative link between the municipal policy or custom
and the alleged unconstitutional violation.”).
*13 A plaintiff may satisfy the “policy or custom”
requirement by alleging one of the following: “(1) a formal
policy officially endorsed by the municipality; (2) actions
taken by government officials responsible for establishing
the municipal policies that caused the particular deprivation
in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom
or usage of which a supervising policy-maker must have
been aware; or (4) a failure by policymakers to provide
adequate training or supervision to subordinates to such
an extent that it amounts to deliberate indifference to the
rights of those who come into contact with the municipal
employees.” Brandon v. City of New York, 705 F.Supp.2d
261, 276–77 (S.D.N.Y.2010) (citations omitted); see also
Roe, 542 F.3d at 36 (describing the second category for
establishing Monell liability); Patterson v. County of Oneida,
375 F.3d 206, 226–27 (2d Cir.2004) (describing methods
of establishing Monell liability). Moreover, a plaintiff also
must establish a causal link between the municipality's policy,
custom, or practice and the alleged constitutional injury. See
Tuttle, 471 U.S. at 824 n. 8 (“The fact that a municipal
‘policy’ might lead to ‘police misconduct’ is hardly sufficient
to satisfy Monell's requirement that the particular policy
be the ‘moving force’ behind a constitutional violation.
There must at least be an affirmative link between[, for
example,] the training inadequacies alleged, and the particular
constitutional violation at issue.” (emphasis in original)); Roe,
542 F.3d at 37 (holding that “a plaintiff must demonstrate
that, through its deliberate conduct, the municipality was
the ‘moving force’ behind the alleged injury.” (quoting
Brown, 520 U.S. at 404)); Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir.1983) (“Absent a showing of a causal
link between an official policy or custom and the plaintiffs'
injury, Monell prohibits a finding of liability against the
[c]ity.”); Johnson v. City of New York, No. 06–CV–9426,
2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting
that after demonstrating the existence of a municipal policy
or custom, “a plaintiff must establish a causal connection-an
affirmative link-between the policy and the deprivation of his
constitutional rights” (internal quotation marks omitted)).
At this stage, of course, Plaintiff need not prove these
elements, but still must plead them sufficiently to make out
a plausible claim for relief. Although there is no heightened
pleading requirement for complaints alleging municipal
liability under § 1983, see Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), a complaint
does not “suffice if it tenders naked assertion [s] devoid
of further factual enhancement,” Iqbal, 556 U.S. at 678
(alteration in original) (internal quotation marks omitted).
Thus, to survive a motion to dismiss, Plaintiff cannot, through
conclusory allegations, merely assert the existence of a
municipal policy or custom, but “must allege facts tending
to support, at least circumstantially, an inference that such a
municipal policy or custom exists.” Santos v. New York City,
847 F.Supp.2d 573, 576 (S.D.N.Y.2012) (citing Dwares v.
City of New York, 985 F.2d 94, 100 (2d Cir.1993)). Put another
way, mere allegations of a municipal custom, a practice of
tolerating official misconduct, or inadequate training and/or
supervision are insufficient to demonstrate the existence of
such a custom unless supported by factual details.
*14 Of the four categories among which a Monell plaintiff
must establish, Plaintiff's allegations do not include the first
two. Plaintiff does not allege that there was a formal policy
calling for the use of excessive force, nor does he allege any
actions by government officials who were responsible for any
offending policies. Rather, Plaintiff's allegations implicate the
third and fourth categories-a consistent practice of use of
excessive force, that supervisors were aware of and tolerated
the use of excessive force, a failure to train officers in the use
of force, and/or a failure to supervise officers with regard to
their use of force when arresting suspects.
Plaintiff makes a number of general allegations against both
the City and Town in his PAC. Plaintiff alleges that the
event in question “was not an isolated incident,” and, in
fact, that the City and Town “have been aware for years
(from lawsuits, notices of claim and complaints filed with
the municipalities themselves and their police departments)
that many of their police officers are insufficiently trained
with respect to the laws and regulations regarding use
of force during an arrest.” (PAC ¶ 40.) Plaintiff further
alleges that the municipalities are “aware that such improper
training has often resulted in a deprivation of civil rights,”
and that “[d]espite such notice, the municipalities have
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failed to take corrective action.” (Id.) Additionally, Plaintiff
alleges that the City and Town “are also liable because
they have been on notice that the defendant police officers
lack the objectivity, temperament, maturity, and discretion
to be members of their respective police departments,” and
retaining the police officers amounts to “gross negligence and
deliberate indifference.” (Id. ¶ 41.) Plaintiff further alleges
that “upon information and belief, in 2010, Defendants had
a policy or routine practice of using excessive force when
effectuating arrests.” (Id. ¶ 42.)
Plaintiff's PAC also contains allegations specifically against
the City, apart from the allegations generally against the
City and Town. First, Plaintiff alleges that the City “has a
policy or practice of using excessive force when effectuating
arrests, and fails to train and/or discipline its employees to
prevent violations of arrestee's [sic] constitutional rights.” (Id.
¶ 22.) Plaintiff also alleges that “upon information and
belief, it was the policy and/or custom of [D]efendant City
of Newburgh to inadequately train, supervise, discipline,
and/or terminate their officers, staff, agents and employees,
thereby failing to adequately discourage further constitutional
violations on the part of their officers, staff, agents and
employees.” (Id. ¶ 43.) Plaintiff alleges that “as a result
of the above described policies and customs, the officers,
staff, agents and employees of [the City] believed that their
actions would not be properly monitored by supervisory
officers and that misconduct would not be investigated or
sanctioned, but would be tolerated,” and that these customs
and policies “demonstrate a deliberate indifference on the part
of the policymakers of Defendant City of Newburgh to the
constitutional rights of the arrestees and were the cause of
the violations of Plaintiff's rights alleged herein.” (Id. ¶¶ 44–
45.) By themselves, these general allegations are “conclusory,
and therefore must be disregarded.” Simms v. City of New
York, No. 10–CV–3420, 2011 WL 4543051, at *3 (E.D.N.Y.
Sept.28, 2011) (dismissing conclusory allegations that did
not provide any facts that would allow the court to infer
what city policies or practices led to the alleged deficiency)
(citing Iqbal, 556 U.S. at 678–79), aff'd, 480 F. App'x.
627 (2d Cir.2012); see also Triano v. Town of Harrison,
895 F.Supp.2d 526, 535–37 (S.D.N.Y.2012) (holding that
“mere allegations of a municipal custom or practice of
tolerating official misconduct are insufficient to demonstrate
the existence of such a custom unless supported by factual
details” and collecting cases); Duncan v. City of New York,
No. 11–CV–3826, 2012 WL 1672929, at *3 (E.D.N.Y. May
14, 2012) (holding that “boilerplate statements” claiming that
New York City had a custom of making and tolerating false
arrests and of using excessive force “[were] insufficient to
state a claim of municipal liability under Monell ”); Moore v.
City of New York, No. 08–CV–8879, 2010 WL 742981, at *6
(S.D.N.Y. Mar.2, 2010) (“Allegations that a defendant acted
pursuant to a policy or custom without any facts suggesting
the policy's existence, are plainly insufficient.” (internal
quotation marks omitted)); Bradley v. City of New York, No.
08–CV–1106, 2009 WL 1703237, at *3 (E.D.N.Y. June 18,
2009) (“The [c]omplaint's conclusory, boilerplate language-
that the [c]ity ‘fail[ed] to adequately train, discipline, and
supervise’ employees and ‘fail[e]d to promulgate and put
into effect appropriate rules and regulations applicable to
the duties and behavior’ of its employees-is insufficient to
raise an inference of the existence of a custom or policy, let
alone that such a policy caused [the][p]laintiffs to be arrested
without probable cause.” (citation omitted)).
*15 The only remaining allegation against the Town is that
it “was a municipal corporation,” and “was the employer
and supervisor” of Defendant Ransom. (PAC ¶ 8.) Therefore,
Plaintiff alleges, the Town “was responsible for [Defendant
Ransom's] training, supervision and conduct,” as well as
“for enforcing the regulations of the Town of Newburgh
Police Department and for ensuring that Town of Newburgh
police personnel obey the laws of the State of New York
and of the United States.” (Id.) This allegation would only
support a claim for vicarious liability, and does not state
a claim for municipal liability under Monell. See City of
Canton, 489 U.S. at 385 (“Respondeat superior or vicarious
liability will not attach under § 1983.” (italics omitted));
Hughes v. Salerno, No. 11–CV–9094, 2012 WL 6097775, at
*4 (S.D.N.Y. Dec.5, 2012) (“Monell does not provide a cause
of action for vicarious liability.”). Therefore, Plaintiff's claim
for municipal liability against the Town is dismissed and the
Court denies Plaintiff's request to file his PAC with regard to
this claim . 10
Plaintiff does offer more specific allegations in support of his
two theories of Monell liability against the City. For example,
Plaintiff alleges that the City “has an extensive history of
lawsuits and other complaints alleging the use of excessive
force by its employees.” (PAC ¶ 23.) As noted, Plaintiff
specifically identifies nine lawsuits he represents were filed
in the five years before the incident in question, at least five
of which “involved allegations of unnecessary and excessive
dog bites.” (Id.; see also id. ¶¶ 24–32.) Plaintiff alleges
that the “City of Newburgh routinely reached settlement
agreements with the plaintiffs in the above-mentioned cases,”
and further alleges that “upon information and belief, most, if
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not all, of the above-mentioned cases settled for amounts well
in excess of nuisance value.” (Id . ¶¶ 33–34.) Plaintiff also
alleges “[u]pon information and believe,” that “the officers
that were the subject of these lawsuits were not disciplined by
[the City] for their actions.” (Id. ¶ 34.)
Additionally, Plaintiff alleges that the City of Newburgh “was
also on notice of allegations of excessive force by its officers
through public forums, including on February 11, 2008,”
when “the Newburgh City Council held a public comment
session, at which numerous residents testified regarding
the excessive and unnecessary use of police dogs during
arrests, as well as additional perceived problems within the
Police Department, including the lack of a civilian review
board.” (Id. ¶ 35.)
Finally, Plaintiff alleges that Matrix Consulting Group
published its final report, titled “An Assessment of the
Culture, Community Relations, Use of Force, Training,
Disciplinary Practices of the Police Department–City of
Newburgh, New York,” on August 1, 2013. (Id. ¶ 36.)
According to Plaintiff,
*16 Among the many findings and
recommendations in the report is that
discipline guidelines and decisions
are unstructured-the report therefore
recommended, inter alia, that the
Chief should direct improvements to
the Internal Affairs process, including
assigning a specific investigator and
requiring a formal report, which was
not previously required. In addition,
only 43% of sworn officers who
responded to the polling in the
report agreed that they received
appropriate training to do their job
well. This report's findings support
the proposition that [the City's]
training and discipline procedures are
inadequate to prevent violations of
arrestees['] constitutional rights.
(Id.)
These allegations fail to plausibly state that there is a City
practice of using excessive force during arrests, generally,
or using police dogs so consistent and widespread as to
constitute a custom or usage. Under the third category of
Monell claims, “an act performed pursuant to a ‘custom’
that has not been formally approved by an appropriate
decisionmaker may fairly subject a municipality to liability
on the theory that the relevant practice is so widespread as
to have the force of law,” Brown, 520 U.S. at 404, which is
to say, that it is a “longstanding practice or custom which
constitutes the ‘standard operating procedure’ of the local
government entity,” Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989);
see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d
Cir.1996) (noting that a municipality's custom “need not
be memorialized in a specific rule or regulation”); Jeffes
v. Barnes, 208 F.3d 49, 61 (2d Cir.2000) (discussing Jett
). Therefore, a plaintiff may establish municipal liability
by demonstrating that a municipality “indirectly caused
the misconduct of a subordinate municipal employee by
acquiescing in a longstanding practice or custom which may
fairly be said to represent official policy.” Miller v. County of
Nassau, 467 F.Supp.2d 308, 314 (E.D.N.Y.2006). To prevail
on this theory of municipal liability, however, a plaintiff
must prove that the custom at issue is permanent and well-
settled. See Praprotnik, 485 U.S. at 127 (noting that the
Supreme Court “has long recognized that a plaintiff may be
able to prove the existence of a widespread practice that,
although not authorized by written law or express municipal
policy, is ‘so permanent and well settled as to constitute a
custom or usage with the force of law’ “ (quoting Adickes
v. S.H. Kress & Co., 398 U.S. 144, 167–68, 90 S.Ct. 1598,
26 L.Ed.2d 142 (1970) (internal quotation marks omitted)));
Davis 228 F.Supp.2d at 346 (explaining that “[w]idespread
means that [the unconstitutional acts in question] are common
or prevalent throughout the [government body]; well-settled
means that the [unconstitutional acts in question] have
achieved permanent, or close to permanent, status.”). As the
Supreme Court emphasized in Monell, Congress enacted §
1983 to impose liability on municipalities “because of the
persistent and widespread discriminatory practices of state
officials,” and out of recognition that such practices could
become “so permanent and well settled as to constitute a
‘custom or usage’ with the force of law.” Monell, 436 U.S. at
691 (citation and internal quotation marks omitted).
*17 The lawsuits cited by Plaintiff in the PAC, even when
combined with the allegations regarding the public forum
comments and the Matrix Report, are insufficient to plausibly
support an inference of a widespread custom. To begin, even
if the civil complaints involved comparable conduct to that
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alleged here, “none result[ed] in an adjudication of liability.”
Walker v. City of New York, No. 12–CV–5902, 2014 WL
1259618, at *3 (S.D.N.Y. Mar.18, 2014); see also Collins v.
City of New York, 923 F.Supp.2d 462, 479 (E.D.N.Y.2013)
(holding that a “litany of other police-misconduct cases”
discussed in the plaintiff's complaint “[were] insufficient
to make a plausible case for Monell liability,” because
they either were different from the misconduct alleged in
the complaint, post-dated the alleged misconduct in the
case at hand, or “involve[d] something less (settlements
without admissions of liability and unproven allegations)
than evidence of misconduct”); accord Strauss v. City of
Chicago, 760 F.2d 765, 768–69 (7th Cir.1985) (holding,
even pre-Twombly and Iqbal, that allegations of complaints
about similar conduct were insufficient to state a claim for
a widespread custom under Monell because “the number
of complaints filed, without more, indicates nothing,” as
“[p]eople may file a complaint for many reasons, or for no
reason at all,” and “[t]hat they filed complaints does not
indicate that the policies that [the plaintiff] alleges exist do
in fact exist”); Rikas v. Babusch, No. 13–CV–2069, 2014
WL 960788, at *3 (N.D.Ill. Mar.12, 2014) (“[T]he fact that
prior lawsuits were filed against [one of the defendants
accused of excessive force] does not support [the plaintiff's]
Monell claim nor does it evidence a widespread municipal
practice.”); Xian Ming Wu v. City of New Bedford, No.
12–CV–11648, 2013 WL 4858473, at *2 (D.Mass. Sept.11,
2013) (holding that a complaint's reference to two other
similar complaints is insufficient to survive a motion to
dismiss). And though numerous cases, discussed below, look
to unsubstantiated allegations in lawsuits and complaints by
residents to establish municipal liability, these cases do so
through the framework of deliberate indifference failure-to-
train and failure-to-supervise cases and their reasoning is
therefore not persuasive here. See e .g., Walker, 2014 WL
1259618, at *3 (holding that failure-to-train cases, such as
Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir.1986),
are inapposite to Monell claims alleging a widespread
custom). Simply put, the fact that there were allegations
of thirteen instances of excessive force during arrests over
four years (none of which involved findings or admissions
of culpability) during which hundreds, if not thousands, of
arrests were made does not plausibly demonstrate that the use
of excessive force during arrest was so frequent and pervasive
to constitute a custom. Walker, 2014 WL 1259618, at *1–3
(holding that the allegation that ten similar complaints were
filed against New York City in the ten preceding years was
insufficient to state a claim because the “paltry number of
complaints (none resulting in an adjudication of liability),
spread over a period so long in a city so large, hardly suggests
the frequency or pervasiveness of the purported custom that
is required to state a Monell claim”). (See also Aff. of David
L. Posner (“Posner Aff.”) Ex. D (Matrix Report), at 59 (Dkt.
No. 26) (noting that the City made “a total of 2,478 arrests in
2012”).) 11
*18 Additionally, in Plaintiff's Memorandum in Opposition,
he argues that the City has a police force of 75, and that
Plaintiff alleges that there were at least 15 to 20 police officers
surrounding him, meaning that “Plaintiff's allegations, taken
as true, would mean that at least one-fifth of the entire
City of Newburgh Police Department was present for the
assault of Plaintiff, and both tolerated the abuse of plaintiff's
constitutional rights and did not fear retribution.” (Pl.'s Mem.
8.) However, the size of the City's police force is not a
fact alleged in the Complaint or PAC, and the Court cannot
consider additional factual allegations contained in Plaintiff's
papers. See Paul v. Bailey, No. 09–CV–5784, 2013 WL
2896990, at *5 (S.D.N.Y. June 13, 2013) (“[A]s a general
rule, ... courts should not consider factual allegations made for
the first time in opposition papers.”); Friedman v. MiraMed
Revenue Grp., L.L.C., No. 12–CV–5328, 2012 WL 5992163,
at *3 (S.D.N.Y. Nov. 19, 2012) (“[T]he [c]ourt declines
to consider the additional facts set forth in [the] plaintiff's
opposition papers that are not in his complaint.”). 12 In any
event, the allegation that 15 to 20 officers were present
during Plaintiff's arrest does nothing to establish that the
alleged excessive force happened as part of a well-established
practice or custom. Instead, this allegation only supports,
at best, a single instance where numerous officers allegedly
used excessive force. This is not an akin to establishing a
custom of use of excessive force. See Tuttle, 471 U.S. at 823–
24 (1985) (plurality opinion) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability
under Monell [.]”); Triano, 895 F.Supp.2d at 532 (“Normally,
a custom or policy cannot be shown by pointing to a single
instance of unconstitutional conduct by a mere employee of
the municipality.” (alteration and internal quotation marks
omitted)). For the above reasons, Plaintiff fails to state a
Monell claim for relief against the City of Newburgh on the
theory that the City of Newburgh has a custom of using
excessive force during arrests so widespread to have the force
of law.
The Court next considers whether Plaintiff has adequately
pleaded a claim for relief against the City under a deliberate
indifference theory, the fourth category of Monell claims.
“Monell's policy or custom requirement is satisfied where
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a local government is faced with a pattern of misconduct
and does nothing, compelling the conclusion that the local
government has acquiesced in or tacitly authorized its
subordinates' unlawful actions.” Reynolds v. Giuliani, 506
F.3d 183, 192 (2d Cir.2007) (citing Jett, 491 U.S. at 737);
see also City of Canton, 489 U.S. at 394–95 (O'Connor,
J., concurring in part and dissenting in part) (“Where ... a
claim of municipal liability is predicated upon a failure to
act, the requisite degree of fault must be shown by proof of
a background of events and circumstances which establish
that the ‘policy of inaction’ is the functional equivalent of
a decision by the city itself to violate the Constitution.”);
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d
Cir.2004) (citing City of Canton for the proposition that a
“municipality can be liable for failing to train its employees
where it acts with deliberate indifference in disregarding
the risk that its employees will unconstitutionally apply
its policies without more training”); Johnson, 2011 WL
666161, at *3 (explaining that a plaintiff may demonstrate
the existence of a custom or policy by alleging “a failure by
policymakers to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with
the municipal employees”). However, such a failure to act,
train, or supervise can constitute a municipal custom “only
where the need to act is so obvious, and the inadequacy
of current practices so likely to result in a deprivation of
federal rights, that the municipality or official can be found
deliberately indifferent to the need.” Reynolds, 506 F.3d at
192 (citing City of Canton, 489 U.S. at 390); see also Marte v.
N.Y.C. Police Dep ‘ t, No. 10–CV–3706, 2010 WL 4176696,
at *2 (S.D.N.Y. Oct. 12, 2010) (noting that a municipality's
failure to train its employees can support § 1983 liability only
where “ ‘the failure to train amounts to deliberate indifference
to the rights of persons with whom the police come into
contact.’ “ (quoting City of Canton, 489 U.S. at 388)).
*19 In City of Canton, the Supreme Court established
the “deliberate indifference” standard in the context of a
claim for failure to train, but “the stringent causation and
culpability requirements set out in that case have been applied
to a broad range of supervisory liability claims,” including
claims for failure to supervise and failure to discipline.
Reynolds, 506 F.3d at 192 (citing Amnesty Am., 361 F.3d
at 127 (failure to supervise); Berry v. City of Detroit, 25
F.3d 1342, 1354 (6th Cir.1994) (failure to discipline)); see
also Connick v. Thompson, ––– U.S. ––––, ––––, 131 S.Ct.
1350, 1360, 179 L.Ed.2d 417 (2011) (noting that “deliberate
indifference” is a “stringent standard” requiring “proof that a
municipal actor disregarded a known or obvious consequence
of his action” (internal quotation marks omitted)). 13 In
this context, the Supreme Court has held that “where
a policymaking official exhibits deliberate indifference to
constitutional deprivations caused by subordinates, such that
the official's inaction constitutes a ‘deliberate choice,’ that
acquiescence may ‘be properly thought of as a city ‘policy
or custom’ that is actionable under § 1983.' “ Amnesty Am.,
361 F.3d at 126 (quoting City of Canton, 489 U.S. at 388);
see also Vann v. City of New York, 72 F.3d 1040, 1049 (2d
Cir.1995) (holding that a plaintiff “may establish the pertinent
custom or policy by showing that the municipality, alerted
to the [unconstitutional action by its employees], exhibited
deliberate indifference”); Sorlucco v. N.Y.C. Police Dep't, 971
F.2d 864, 871 (2d Cir.1992) (stating that municipal liability
lies where the subordinate's misconduct is “so manifest as to
imply the constructive acquiescence of senior policy-making
officials”).
Plaintiff has attempted to allege two types of deliberate
indifference claims: failure to train and failure to supervise/
discipline. Indeed, “[a] § 1983 plaintiff injured by a police
officer may establish the pertinent custom or policy by
showing that the municipality, alerted to the possible use of
excessive force by its police officers, exhibited deliberate
indifference.” Vann, 72 F.3d at 1049. To establish deliberate
indifference for a failure to supervise and/or discipline claim,
the plaintiff must “show that the need for more or better
supervision to protect against constitutional violations was
obvious,” which may be established “by showing that there
were repeated complaints of civil rights violations,” and
“deliberate indifference may be inferred if the complaints
are followed by no meaningful attempt on the part of the
municipality to investigate or to forestall further incidents.”
Shepherd v. Powers, No. 11–CV–6860, 2012 WL 4477241,
at *9 (S.D.N.Y. Sept.27, 2012) (internal quotation marks
omitted). The Second Circuit has set out three requirements
that must be met before a municipality may be liable under
either theory: first, that a policymaker knows “ ‘to a moral
certainty’ “ that his or her employees will confront a given
situation; second, “ ‘that the situation either presents the
employee with a difficult choice of the sort that training
or supervision will make less difficult or that there is a
history of employees mishandling the situation;’ “ and third,
“ ‘that the wrong choice by the city employee will frequently
cause the deprivation of a citizen's constitutional rights.’ “
Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir.2007)
(quoting Walker v. City of New York, 974 F.2d 293, 297–98
(2d Cir.1992)).
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*20 Applying these principles to this case, the Court
concludes that Plaintiff has sufficiently alleged that the need
for more or better supervision was obvious. There is no bright
line rule for how many complaints of civil rights violations
is sufficient to show the need for more supervision, nor is
there a bright line rule for how recent those complaints must
be. The City asserts that the complaints relied on by Plaintiff
regarding excessive force incidents that occurred between
2005 and 2008 are too sparse and too remote to support
an inference of obviousness. (Def.'s Mem. of Law in Supp.
of Dismissal (“City's Mem.”) 10 (Dkt. No. 28); Newburgh's
Reply Br. in Supp. of 12(b)(5) and 12(b)(6) Dismissal (“City's
Reply”) 5–6 (Dkt. No. 47).) However, the City provides no
authority to support the notion that a plaintiff must cite a
certain number of complaints in a certain time period to
make out a Monell claim. Indeed, the case law supports
Plaintiff's position here. For example, in McCants v. City of
Newburgh, No. 14–CV–556, 2014 WL 6645987 (S.D.N.Y.
Nov.21, 2014), clarified on denial of reconsideration, 2014
WL 7398910 (S.D.N.Y. Dec.9, 2014), the court denied a
motion to dismiss a Monell claim on deliberate indifference
grounds. In that case, the court found it sufficient that the
plaintiff's pleadings referred to other lawsuits demonstrating
that the municipality “was on notice to the possible use of
excessive force by its police officers on seventeen different
occasions.” Id. at *4. There, the seventeen excessive force
claims were made “in the seven-year time period prior to”
the incident resulting in the suit. Id. In Farrow v. City of
Syracuse, No. 12–CV–1401, 2014 WL 1311903, (N.D.N.Y.
Mar. 31, 2014), the Northern District of New York noted
in dicta that were the court deciding a motion to dismiss,
the fact that “at least 15 excessive force complaints ha[d]
been filed against the [c]ity in the past 5 years” would be
sufficient state a plausible failure to train case. Id. at *8 n.
7; see also Shepherd, 2012 WL 4477241, at *10 (holding,
on a motion to dismiss where the complaint relied on a
Department of Justice (“DOJ”) report finding evidence of
unconstitutional activity in 2008 to support a claim that such
a custom existed in 2010, that the court “[was] obligated to
draw all reasonable inferences in [the] [p]laintiff's favor and
thus [took] as true for purposes of th[e] motion practice the
assertion that the deficiencies found by the DOJ existed at the
time of the alleged assault against [the][p]laintiff”). The Court
does not see any material difference between the seventeen
excessive force claims in seven years in McCants, the fifteen
excessive force claims in five years in Farrow, 14 and the
thirteen claims alleged in nine lawsuits in five years here. 15
While there may be questions about the quantum of proof
Plaintiff has regarding these other complaints at summary
judgment, Plaintiff's allegations allow the Court to plausibly
infer that the City was on notice that the police officers were
using excessive force in making arrests. See Osterhoudt v.
City of New York, No. 10–CV–3173, 2012 WL 4481927, at
*1 (E.D.N.Y. Sept. 27, 2012) (“Mere allegations have little, if
any, probative force and by themselves would hardly prevent
summary judgment. But in the context of Rule 12, where
plausibility is in issue, it is hard to ignore these cases, which
suggest that the conduct complained of is not limited to the
four corners of [the plaintiff's] complaint.”).
*21 However, an allegation of numerous claims of excessive
force by itself is insufficient to raise an inference of deliberate
indifference due to failure to supervise. Instead, a plaintiff
must allege that “meaningful attempts to investigate repeated
claims of excessive force are absent.” Hart v. City of
Binghamton, No. 10–CV–1064, 2012 WL 1565085, at *5
(N.D.N.Y. May 2, 2012) (internal quotation marks omitted).
Put another way, “[f]or deliberate indifference to be shown,
the response must amount to a persistent failure to investigate
the complaints or discipline those whose conduct prompted
the complaints.” Id. (internal quotation marks omitted); see
also Lawrence v. City of Rochester, No. 09–CV–6078, 2015
WL 510048, at *7 (W.D.N.Y. Feb.6, 2015) (“Deliberate
indifference may be inferred from the failure to train or
supervise based on proof of repeated complaints of civil rights
violations that are followed by no meaningful attempt on the
part of the municipality to investigate or to forestall.” (internal
quotation marks omitted)); Aretakis v. Durivage, No. 07–
CV–1273, 2009 WL 249781, at *29 (N.D.N.Y. Feb. 3, 2009)
(same). Here, Plaintiff does not offer any allegations plausibly
establishing that the City failed to investigate the listed
complaints of excessive force. The only allegation Plaintiff
makes regarding the City's response to the other lawsuits
and the complaints made in the public forum is that “[u]pon
information and belief, the officers that were the subject of
these lawsuits were not disciplined by [the City] for their
actions.” (PAC ¶ 34.) This is insufficient.
There are two ways to plausibly plead deliberate indifference
with respect to failure to supervise/discipline. First, a plaintiff
may plead (1) that there was a pattern of allegations of or
complaints about similar unconstitutional activity and (2)
that the municipality consistently failed to investigate those
allegations. Second, a plaintiff may plead (1) that there
was a pattern of actual similar constitutional violations and
(2) the municipality consistently failed to discipline those
involved. However, what Plaintiff alleges here is (1) that
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there was a pattern of allegations of or complaints about
similar unconstitutional activity and (2) that those allegedly
involved were not disciplined. This does not plausibly plead
a claim for deliberate indifference. There is no basis for the
Court to conclude that Plaintiff plausibly alleged that the
past conduct was actually unconstitutional, and therefore it
would not be deliberately indifferent of the City to fail to
punish police officers for conduct that was not improper
or that they did not commit. Indeed, to plausibly allege a
deliberate indifference failure to discipline claim under the
second strategy, Plaintiff must allege a consistent pattern of a
failure to discipline unconstitutional action. See Posr v. City
of New York, 835 F.Supp. 120, 125 (S.D.N.Y.1993) (holding,
in granting a motion to dismiss a failure to discipline case,
that while “[i]t is true that a consistent failure to discipline can
give rise to a finding that a municipality has a policy of not
disciplining,” “[n]o court ... has ever held that a municipality
is required to discipline every officer upon a finding of
wrongdoing”), aff'd, 22 F.3d 1091 (2d Cir.1994); see also
Hart, 2012 WL 1565085, at *4 (holding, in the context of a
summary judgment motion, that “while [the][p]laintiff [had]
cited to numerous cases concerning citizen complaints of
the use of excessive force,” he “[had] not provided evidence
tending to indicate that any [of] the [ ] complaints were
of substance,” thus the “failure to find any of the officers
engaged in excessive force alleged in the complaints does not
mean a fortiori, that the [c]ity was deliberately indifferent
to the well being of its citizens”); cf. Bertuglia v. City of
New York, 839 F.Supp.2d 703, 738 (S.D.N.Y.2012) (denying a
motion to dismiss a deliberate indifference claim where “[t]he
plaintiffs have pleaded that the [c]ity has a longstanding, de
facto policy of never disciplining prosecutors who commit
specified types of prosecutorial misconduct and not otherwise
training them to avoid misconduct”). Finally, Plaintiff's
allegation that the Matrix Report concluded that the City's
“discipline guidelines and decisions are unstructured” and
recommended that certain changes be made is insufficient
to plausibly plead that there was a consistent failure to
investigate allegations of misconduct or punish incidents
of unconstitutionally excessive force to meet the stringent
standard of deliberate indifference. In particular, Plaintiff
alleges no causal link between the allegedly “unstructured”
discipline guidelines and the unconstitutional practice of not
investigating allegations of use of excessive force. For the
above reasons, the Court holds that Plaintiff has not plausibly
alleged a failure to supervise/discipline case against the City.
*22 The Court now turns to the additional requirements for
a failure to train claim. To allege a failure to train claim,
a plaintiff must plausibly allege a specific deficiency in
the municipality's training. In Amnesty America, the Second
Circuit suggested that to state a claim for a municipality's
failure to train its employees, a plaintiff “need only plead
that the city's failure to train caused the constitutional
violation,” because “[i]t is unlikely that a plaintiff would have
information about the city's training programs or about the
cause of the misconduct at the pleading stage.” 361 F.3d at
130 n. 10. However, since Twombly and Iqbal, “courts in
this district have generally required that plaintiffs provide
more than a simple recitation of their theory of liability, even
if that theory is based on a failure to train.” Simms, 2011
WL 4543051, at *2 n. 3 (collecting cases), aff'd sub nom.
Simms v. City of New York, 480 F. App'x 627 (2d Cir.2012);
see also Simms, 480 F. App'x at 631 n. 4 (“While it may
be true that § 1983 plaintiffs cannot be expected to know
the details of a municipality's training programs prior to
discovery, this does not relieve them of their obligation under
Iqbal to plead a facially plausible claim.” (citation omitted));
Santos, 847 F.Supp.2d at 577 (“Because the existence of
a municipal policy or practice, such as a failure to train
or supervise, cannot be grounded solely on the conclusory
assertions of the plaintiff, [the plaintiff's] claims against the
[c]ity are dismissed with prejudice.” (citation omitted)). To
state a claim for municipal liability based on failure to train,
Plaintiff therefore must allege facts that support an inference
that the municipality failed to train its police officers, that it
did so with deliberate indifference, and that the failure to train
caused his constitutional injuries. See Acosta v. City of New
York, No. 11–CV–856, 2012 WL 1506954, at *11 (S.D.N.Y.
Apr. 26, 2012) (dismissing Monell claim where plaintiff
merely alleged that the city “failed to train its police officers as
to display a deliberate indifference,” because plaintiff “failed
to set forth factual allegations that would support a plausible
inference that the [c]ity's ‘policies' or ‘customs' caused ... [the]
alleged violations of [the] plaintiff's rights”); Simms, 2011
WL 4543051, at *2 (dismissing failure to train claim where
there was “not enough factual material in the [c]omplaint for
the court to reasonably infer that the police misconduct [the
plaintiff] allege [d] was the result of anything other than the
individual acts of the arresting officers”); Johnson, 2011 WL
666161, at *4 (holding that a complaint that “contain[ed] only
an unsupported conclusory allegation that the [c]ity failed
to train the individual [d]efendants” could not withstand a
motion to dismiss because the plaintiff did not plead any facts
that “plausibly allege[d] a specific deficiency in the training
or supervision program” (internal quotation marks omitted));
Araujo v. City of New York, No. 08–CV–3715, 2010 WL
1049583, at *9 (E.D.N.Y. Mar. 19, 2010) (dismissing failure
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to train claim where the plaintiff alleged “no facts to indicate
any deliberate choice by municipal policymakers to engage
in unconstitutional conduct”).
*23 Other than Plaintiff's boilerplate assertions discussed
above, the sole fact Plaintiff pleaded with respect to the
City's failure to train its officers is that, “only 43% of sworn
officers who responded to the polling in the [Matrix Report]
agreed that they received appropriate training to do their
job well.” (PAC ¶ 36.) This factual allegation is just not
enough to nudge Plaintiff's claim from possible to plausible.
The polling data is not specific as to training regarding the
use of excessive force. Nor has Plaintiff pleaded any facts
suggesting that an alleged training deficiency caused his
constitutional injury, for example by identifying “procedural
manuals or training guides” or by “highlight[ing] relevant
particular aspects of police training or supervision.” Marte,
2010 WL 4176696, at *3. The allegation that, three years
after the incident in question took place, only 43% of
officers who responded to polling stated that they received
appropriate training to do their job well does not allow
the Court to plausibly conclude that, at the time of the
incident, the City's training as to the use of force during
arrest was insufficient and that that insufficiency led to
Plaintiff's injuries. See Hunter v. City of New York, 35
F.Supp.3d 310, 325–26 (E.D.N.Y.2014) (dismissing a Monell
failure to train claim because the pleadings did not plausibly
state a claim that there was “a specific deficiency in the
city's training program and that the deficiency is closely
related to [the plaintiff's] ultimate injury, such that it actually
caused [the plaintiff's] constitutional deprivation” (internal
quotation marks omitted)); Triano, 895 F.Supp.2d at 539
(dismissing a Monell failure to train claim where the plaintiff
“merely alleged that the [t]own fail[ed] to train its employees,
without providing any supporting factual detail about alleged
deficiencies in the training program, or regarding other
instances of police misconduct which could be attributed to
a failure to train”); Khanukayev v. City of New York, No. 09–
CV–6175, 2012 WL 3538729, at *4 (S.D.N.Y. Aug.13, 2012)
(dismissing a failure to train claim where “the complaint
[does not] ... allege ... the manner in which there was a
failure to train”); Doe v. City of New York, No. 09–CV–
9895, 2012 WL 2900483, at *2 (S.D.N.Y. July 2, 2012)
(“The [a]mended [c]omplaint contains no facts elaborating
on (or even theorizing as to) the defective nature of the
NYPD training program, let alone an allegation as to how
a defect in training or supervision caused her harm.”);
Simms, 2011 WL 4543051, at *3 (“While this assertion does
specify what type of training the officers lacked, it does
not provide any facts that would allow the court to infer
what city policies, practices, or customs contributed to or
caused the deficiency.”); Johnson, 2011 WL 666161, at *4
(dismissing a failure to train claim where plaintiff did not
plead “any facts that plausibly allege[d] a specific deficiency
in the training or supervision program that accounts for
deprivation of [his] constitutional rights” and “[did] not
identify procedural manuals or training guides, nor [did he]
highlight relevant particular aspects of police training or
supervision” (internal quotation marks omitted)); Brown v.
City of New York, No. 09–CV–2337, 2010 WL 4077925,
at *2 (S.D.N.Y. Oct.13, 2010) (dismissing a failure to train
claim where the plaintiff “[did] not allege any ... specific
deficiencies in the officers' training, nor [did] he allege any
facts from which the court could infer that such ... deficiencies
existed”); Williams v. City of New York, 690 F.Supp.2d 338,
345–46 (S.D.N.Y.2010) (dismissing a plaintiff's failure to
train claim where the plaintiff's complaint “once mention[ed]
the [c]ity's inadequate training program,” but did “not set forth
a single factual allegation relating to the program”). For the
foregoing reasons, Plaintiff fails to state a claim against the
City under Monell. However, the Court will give Plaintiff one
last chance to plead a Monell claim against the City.
b. Claims against Defendant Ransom
*24 Plaintiff's PAC contains the following allegation against
Defendant Ransom. The City Police Officers “gave chase to
[P]laintiff in a number of police vehicles,” and “[a]t some
point soon thereafter, and prior to Plaintiff stopping his
vehicle,” Defendant Ransom joined the chase. (PAC ¶ 12.)
That is the only allegation specifically referring to Defendant
Ransom. However, the Complaint and PAC also contain a
number of allegations against “the defendant police officers,”
a term defined in the Complaint as the City Police Officer
Defendants and unknown police officers 1–5, (Compl.¶ 4),
and not defined in the PAC. Plaintiff alleges that, after he
pulled over, Defendant Maguire “opened the truck door and
ordered his police dog to attack [P]laintiff,” and Plaintiff
was attacked by the police dog and punched by Defendant
Maguire. (PAC ¶ 14.) Plaintiff further alleges that although
he was “not resisting the police officers in any way,” he
was “dragged from the truck and thrown to the ground
by [Defendant Maguire] and additional officers,” and was
“thereupon beaten severely by the defendant officers, who at
this point were laughing and telling the dog what a good job
he had done.” (Id. ¶ 15.) Then, after Plaintiff was handcuffed
and secured, “the police dog was again ordered to attack”
Plaintiff. (Id. ¶ 16.) Additionally, Plaintiff alleges that “the
defendant police officers are liable for failing to intervene ...
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because (1) the officers had a realistic opportunity to intervene
and prevent the harm, (2) a reasonable person in the officers'
position would have known that the plaintiff's constitutional
rights were being violated, and (3) the officers did not take
reasonable steps to intervene.” (Id. ¶ 39.)
In response to the Town's Motion To Dismiss, Plaintiff
argues that Defendant Random “does not deny being present
at the scene,” and cites to Defendant Ransom's testimony
at Plaintiff's criminal trial to establish his presence at the
scene. (Pl.'s Mem. 11–13.) Plaintiff then argues that this
is sufficient at the pleading stage because Plaintiff has
sufficiently alleged that Defendant Ransom was present
and Plaintiff need not plead the “specific involvement of
each and every officer while he was being assaulted and
bitten by a police dog [.]” (Id. at 12.) However, there is
simply no basis for the Court to consider the testimony
given at trial in the manner that Plaintiff would like. This
testimony, attached as Exhibit B to Plaintiff's Memorandum
in Opposition, is not attached to the PAC, nor is it integral
to the PAC or incorporated by reference into the PAC.
See Rosenblum v. Thomson Reuters (Markets) L.L.C., 984
F.Supp.2d 141, 146 (S.D.N.Y.2013) (“In considering a motion
to dismiss for failure to state a claim pursuant to Rule 12(b)
(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, ...
documents incorporated by reference in the complaint [,
and] a document, not incorporated by reference, where the
complaint relies heavily upon its terms and effect, thereby
rendering the document integral to the complaint.” (footnotes
and internal quotation marks omitted)). “To be incorporated
by reference, the complaint must make a clear, definite
and substantial reference to the documents[.]” Bill Diodato
Photography L.L.C. v. Avon Products, Inc., No. 12–CV–847,
2012 WL 4335164, at *3 (S.D.N.Y. Sept. 21, 2012) (internal
quotation marks omitted). “[T]o be integral to a complaint,
the plaintiff must have (1) actual notice of the extraneous
information and (2) relied upon the documents in framing
the complaint.” Id. (internal quotation marks omitted). Here,
Plaintiff clearly has notice of the document, since he is the
one who submitted it to the Court. See Madu, Edozie &
Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106,
124 (S.D.N.Y.2010) (“[T]here is no dispute that, pursuant to
the first prong of the integrality test, plaintiffs had ‘actual
notice’ of the extraneous information since they enclosed
the extrinsic documents with their opposition brief.”). The
Complaint and PAC make no reference whatsoever to
Defendant Ransom's testimony at Plaintiff's criminal trial,
and thus do not incorporate this document by reference.
Moreover, there is no evidence that Plaintiff relied on this trial
testimony in framing the Complaint or PAC. And, the fact that
it was Plaintiff, himself, who submitted this document as an
attachment to his opposition memorandum, counsels against
the Court considering it. Id. at 122–23 (noting that “[c]ourts in
[the Second] Circuit have made clear that a plaintiff may not
shore up a deficient complaint through extrinsic documents
submitted in opposition to a defendant's motion to dismiss”
and collecting cases).
*25 Finally, the Court “may also consider matters of which
judicial notice may be taken, even if the corresponding
documents are not attached to or incorporated by reference
in the complaint.” Munno v. Town of Orangetown, 391
F.Supp.2d 263, 268 (S.D.N.Y.2005). However, even if this
trial testimony is appropriate for judicial notice, the Court
would consider it “only to establish [its] existence and legal
effect, or to determine what statements [it] contained not for
the truth of the matters asserted.” Liang v. City of New York,
No. 10–CV–3089, 2013 WL 5366394, at *5 (E.D.N.Y. Sept.
24, 2013) (alterations and internal quotation marks omitted)
(quoting Twine v. Four Unknown N.Y. Police Officers, No.
10–CV–6622, 2012 WL 6184014, at *7 (S.D.N.Y. Dec. 12,
2012)); see also Roth v. Jennings, 489 F.3d 499, 509 (2d
Cir.2007) (“If the court takes judicial notice, it does so in
order to determine what statements [the document] contained
—but again not for the truth of the matters asserted.” (internal
quotation marks omitted)).
“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.” Wright
v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotation
marks omitted). There are two ways a plaintiff can establish
personal involvement of a police officer in the use of
excessive force. “A police officer is personally involved in
the use of excessive force if the officer either: (1) directly
participates in an assault; or (2) is present during the assault,
and fails to intercede on behalf of the victim even though
he had a reasonable opportunity to do so.” Vesterhalt v.
City of New York, 667 F.Supp.2d 292, 297 (S.D.N.Y.2009).
Additionally, to be liable the officer must “observe[ ] or
ha[ve] reason to know that an individual's constitutional
right has been violated[.]” Brooks v. County of Nassau, –––
F.Supp.3d ––––, 2014 WL 5093277, at *5 (E.D.N.Y. Oct.9,
2014) (internal quotation marks omitted).
Plaintiff does not allege that Defendant Ransom directly
participated in the assault, therefore the question is whether
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he sufficiently alleges that Defendant Ransom was present
and failed to intercede, even though he had a reasonable
opportunity to do so. First, Plaintiff's allegation that all “the
defendant police officers are liable for failing to intervene ...
because (1) the officers had a realistic opportunity to intervene
and prevent the harm, (2) a reasonable person in the officers'
position would have known that the plaintiff's constitutional
rights were being violated, and (3) the officers did not take
reasonable steps to intervene” is a conclusory allegation
that does nothing more than provide a formulaic recitation
of the elements of a cause of action, and is therefore not
entitled to the presumption of truth. (PAC ¶ 39.) See Iqbal,
556 U.S. at 678 (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.... In keeping with [this] principle[ ] a court
considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.”);
Twombly, 550 U.S. at 555 (“[A] formulaic recitation of the
elements of a cause of action will not do.”). To state a
claim against each individually named defendant, Plaintiff
must include allegations as to that defendant. See Ochre
L.L.C. v. Rockwell Architecture Planning & Design, P.C., No.
12–CV–2837, 2012 WL 6082387, at *6 (S.D.N.Y. Dec. 3,
2012) (“Where a complaint names multiple defendants, that
complaint must provide a plausible factual basis to distinguish
the conduct of each of the defendants.”), aff'd, 530 F. App'x
19 (2d Cir.2013); Appalachian Enters., Inc. v. ePayment
Solutions, Ltd., No. 01–CV–11502, 2004 WL 2813121, at *7
(S.D.N.Y. Dec.8, 2004) (“A plaintiff fails to satisfy Rule 8,
where the complaint lumps all the defendants together and
fails to distinguish their conduct because such allegations fail
to give adequate notice to the defendants as to what they did
wrong.” (alterations and internal quotation marks omitted)).
*26 In a claim for excessive force or for failure to intervene
with respect to excessive force, courts in the Second Circuit
have allowed plaintiffs to use a flexible approach, recognizing
the difficulty that plaintiffs may have in pleading who did
what. For example, “[a] plaintiff need not establish who,
among a group of officers, directly participated in the attack
and who failed to intervene.” Jeffreys v. Rossi, 275 F.Supp.2d
463, 474 (S.D.N.Y.2003), aff'd sub nom. Jeffreys v. City of
New York, 426 F.3d 549 (2d Cir.2005). However, this does
not eliminate Plaintiff's burden to allege facts supporting a
plausible inference of personal involvement by Defendant
Ransom. For example, it is sufficient to allege “who was
present during the assaults, and that these defendants either
directly participated in the excessive force or failed to
intervene.” Snoussi v. Bivona, No. 05–CV–3133, 2010 WL
3924255, at *3 (E.D.N.Y. Feb. 17, 2010) (emphasis added),
adopted by 2010 WL 3924683 (E.D.N.Y. Sept.29, 2010). But,
a plaintiff fails to state a claim for which relief can be granted
if he does not make any factual allegations that any officer
“was present” or “had an opportunity to intercede.” K.D. ex
rel. Duncan v. White Plains Sch. Dist., 921 F.Supp.2d 197,
207 (S.D.N.Y.2013) (discussing failure to intervene in the
context of an alleged due process violation). In assessing the
sufficiency of Plaintiff's claims, the Court is also mindful that
the activities he describes—being handcuffed, thrown on the
ground, beaten, and attacked by a dog—“are likely to have
prevented [P]laintiff from identifying which of the defendant
officers specifically engaged in the bad acts.” Snoussi, 2010
WL 3924255, at *3 (brackets and internal quotation marks
omitted).
Here, though, Plaintiff fails to meet this liberal standard
with respect to his allegations against Defendant Ransom.
Plaintiff merely pleads that Defendant Ransom joined the
police chase. (PAC ¶ 12.) Plaintiff does not sufficiently
plead personal involvement, because he does not even plead
that Defendant Ransom was present at the scene of the
alleged unconstitutional conduct, and therefore also does
not sufficiently plead that a reasonable person in Defendant
Ransom's position would know that Plaintiff's rights were
being violated and that Defendant Ransom had a reasonable
opportunity to intervene but failed to do so. Plaintiff argues
that Defendant Ransom was at the scene, relying not on
allegations in the Complaint or PAC but rather on a document
outside the pleadings that the Court is not permitted to
consider, and based on an inference he suggests that “[a]t no
point does Ransom claim that he left the scene, so he was
presumably also present when Plaintiff was thrown to the
ground and beaten, and attacked by the police dog a second
time while in handcuffs.” (Pl.'s Mem. 12.) However, Plaintiff
never alleged that Defendant Ransom was at the scene. But,
in light of Plaintiff's citation to Defendant Ransom's trial
testimony, the Court will give Plaintiff one more opportunity
to amend his Complaint to include any additional allegations
against Defendant Ransom.
III. Conclusion
*27 For the above reasons, the Town's Motion To Dismiss
is granted; the claims against the Town are dismissed with
prejudice, and the claims against Defendant Ransom are
dismissed without prejudice. The City's Motion To Dismiss
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is granted in part and denied in part. In particular, the
claims against the City are dismissed without prejudice, but
Plaintiff may file his PAC against the City Police Officer
Defendants. Plaintiff shall properly serve the City Police
Officer Defendants within 21 days of the date of this Opinion,
or else face dismissal of the claims against those Defendants.
Additionally, Plaintiff is given 21 days to file an amended
complaint to supplement his allegations against Defendant
Ransom and the City. The Clerk of the Court is respectfully
requested to terminate the pending Motions. (See Dkt. Nos.
25, 29.)
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1379652
Footnotes
1 As explained below, Plaintiff's PAC will be accepted unless it would be subject to dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6). Because the PAC contains all of the factual allegations contained in
Plaintiff's original Complaint, as well as additional allegations, the Court will merely address the sufficiency of
the factual allegations in the PAC. If any portion of the PAC would be subject to dismissal, the corresponding
portion of the Complaint necessarily will also be dismissed under Rule 12(b) (6).
2 Plaintiff asserts that he was lawfully driving that evening, but he was “convicted of driving while impaired by
alcohol in violation of Vehicle and Traffic Law § 1192(1), criminal possession of a controlled substance in
the seventh degree, resisting arrest, unlawful fleeing a police officer in a motor vehicle in the third degree
(two counts) and reckless driving in conjunction with this incident.” (Mem. of Law in Supp. of the Town of
Newburgh and Sergeant William Ransom's Mot. To Dismiss (“Town's Mem.”) 2 n. 1 (Dkt. No. 30); see also
Newburgh's Reply Br. in Supp. of 12(b) (5) and 12(b)(6) Dismissal (“City's Reply”) 1–2 (Dkt. No. 47).) Whether
Plaintiff was driving lawfully is not relevant to the instant Motions, so the Court declines to assess whether,
and to what extent, it should consider these seemingly undeniable facts put forth by Defendants. However,
counsel for Plaintiff may someday be called upon to explain the good faith basis for this allegation.
3 In June 2014, the Court so ordered a stipulation between Plaintiff and Defendant Nales to dismissal of the
claims against that Defendant. (See Dkt. No. 35.)
4 Plaintiff's PAC also is filed as an attachment to Plaintiff's Memorandum of Law in Opposition, (see Dkt. No.
46 Ex. A), and as an attachment to an affidavit submitted by the City in connection with its Memorandum
of Law, (see Dkt. No. 26 Ex. A).
5 The Court notes that Plaintiff only asserts that service was proper pursuant to N.Y. C.P.L.R. § 308(2). (See
Pl.'s Mem. 9–11 .)
6 Mr. Root's declaration that 83 Broadway is the usual and typical place to serve all Newburgh officers and
employees, (Root Decl. ¶ 3), is the type of “conclusory statement[ ]” that is insufficient to carry the burden
that service was adequate. Doe v. Alsaud, 12 F.Supp.3d 684, 687–88 (S.D.N.Y.2014) (internal quotation
marks omitted).
7 Under New York law, when serving a corporation, a process server may rely on the representations of
employees of the corporation with respect to who may accept service on the corporation's behalf. See Melkaz
Int'l Inc. v. Flavor Innovation Inc., 167 F.R.D. 634, 642 n. 6 (E.D.N.Y.1996). Here, however, Mr. Root was
serving individuals and, indeed, not even serving them at their place of business.
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8 The Clerk of the Court is respectfully requested to change the name of the attorney appearing for Plaintiff
from Stacy Nicole Baden to Roberta D. Asher, as indicated on the notice of appearance. (See Dkt. No. 4.)
9 Plaintiff's second counsel, David A. Zelman, entered a notice of appearance on Plaintiff's behalf on December
19, 2013. (Dkt. No. 18.)
10 In its Memorandum of Law in Support of its Motion To Dismiss, the Town argued that the Complaint and PAC
“are devoid of factual allegations supporting the inference that the alleged policies actually exist.” (Town's
Mem. 6.) Though Plaintiff responded to the City's arguments regarding his Monell claims, he did not respond
to the Town's arguments regarding municipal liability. (See generally Pl.'s Mem.) The Town argues in reply
that “Plaintiff's failure to raise any argument in opposition to the Town's motion constitutes an abandonment
of the claim, and as such, the claims against the Town must be dismissed.” (Town of Newburgh and Sergeant
William Ransom's Reply Br. in Further Supp. of their Mot. To Dismiss (“Town's Reply”) 3 (Dkt. No. 50) (citing
Hanig v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710, 724 (S.D.N.Y.2005)).) Though the Court dismisses
Plaintiff's Monell claims against the Town on the merits, it alternatively holds that Plaintiff has abandoned
this claim, as Plaintiff offered no response to the Town's arguments in support of its Motion To Dismiss the
Monell claim. See Baity v. Kralik, ––– F.Supp.3d ––––, 2014 WL 5010513, at *16 (S.D.N.Y. Sept.30, 2014)
(holding that the court “could find [the][p]laintiff to have abandoned any claim that Monell liability applies”
when the plaintiff's memorandum in opposition made no mention of the defendant's arguments on that issue,
and collecting cases); Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 392 (S.D.N.Y.2013) (holding,
in the context of a § 1983 Monell claim, that “[a] court may, and generally will, deem a claim abandoned when
a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed”).
11 The City puts forward several documents not attached to Plaintiff's Complaint or PAC, specifically, a redacted
settlement stipulation from one of the cases Plaintiff refers to in the PAC, releases signed by some plaintiffs in
the cases referred to by Plaintiff in the PAC, and an excerpt of the Matrix Report. (See Aff. of David L. Posner
(“Posner Aff.”) Ex. B–D (Dkt. No. 26).) The Court considers the Matrix Report because it is incorporated
by reference into the PAC, as Plaintiff specifically cites to the Report and its findings. See Wilson v. Med.
Unit Officials at George R. Vierno Ctr. Jail at 09–09 Hazen St., No. 10–CV–1438, 2011 WL 6780934, at
*2 (E.D.N.Y. Dec. 27, 2011) (“Because they are explicitly cited in [the] plaintiff's complaint, the court shall
deem the ultrasound reports incorporated by reference and shall consider them in assessing [the] defendants'
motion to dismiss.”); Harrison v. Metro. Life Ins. Co., 417 F.Supp.2d 424, 431 (S.D.N.Y.2006) (considering a
document outside the complaint where the plaintiff “cites to” the document in her complaint and specifically
quoted from one part of it). Furthermore, Plaintiff does not dispute the veracity of the Report provided by
the City.
The other documents provided by Defendants, however, are not material to the Court's determination of the
City's Motion, so the Court need not assess whether they are properly considered.
12 “[W]here a pro se plaintiff has submitted other papers to the [c]ourt, such as legal memoranda, the [c]ourt may
consider statements in such papers to supplement or clarify the plaintiff's pleaded allegations.” Sommersett
v. City of New York, No. 09–CV–5916, 2011 WL 2565301, at *3 (June 28, S.D.N.Y.2011) (italics and internal
quotation marks omitted). Here, however, Plaintiff was not pro se when he submitted the PAC, so the Court
does not have an obligation read the PAC with the special solicitude due to pro se plaintiffs. See Neely,
2013 WL 752636, at *12 (“Although the [c]ourt liberally construed [the][p]laintiff's pro se [o]riginal [c]omplaint,
since [the][p]laintiff is now represented by counsel, the [c]ourt has no obligation to construe the [p]roposed
[a]mended [c]omplaint liberally[.]” (brackets, italics, and internal quotation marks omitted)).
13 The Supreme Court has emphasized that a “municipality's culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train.” Connick, 131 S.Ct. at 1359; see also Tuttle, 471 U.S. at
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822–23 (“[A] ‘policy’ of ‘inadequate training’ “ is “far more nebulous, and a good deal further removed from
the constitutional violation, than was the policy in Monell.” ).
14 Indeed, the fifteen cases referred to in Farrow were filed against the city in the preceding five years, so the
underlying claims likely occurred even outside that timeframe.
15 Unlike in cases such as Perez v. N.Y.C. Dep't of Corr., No. 10–CV–2697, 2012 WL 3704744 (E.D.N.Y.
Aug.27, 2012), there is no doubt here that the City knew about the complaints. Id. at *3 (reasoning that
“[w]hile a court may consider complaints made against a municipality and its response to them to determine
whether the municipality acted with deliberate indifference,” the plaintiff's claims must be dismissed because
the “plaintiff does not allege who, if anyone, at [the department of corrections] and/or the [c]ity knew about the
alleged incidents, or how and through whom these entities may have responded to the alleged incidents”).
Additionally, the Court concludes that it can consider all of the other lawsuits cited by Plaintiff, not just the ones
involving police dogs, as Plaintiff alleges a custom involving a broad array of unconstitutionally excessive
force during arrest, resulting not only in him being attacked by a police dog, but also being punched and
beaten severely during his arrest. (See PAC ¶¶ 14–16.)
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Vassallo v. City of New York, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Guzman v. City of New York, S.D.N.Y., November 13,
2024
KeyCite Overruling Risk
Overruling Risk Darnell v. Pineiro, 2nd Cir., February 21, 2017
2016 WL 6902478
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Frank VASSALLO, Plaintiff,
v.
CITY OF NEW YORK, Corizon Health, Inc.,
Corizon, Inc., New York City Health and Hospitals
Corporation, New York City Department of
Correction Commissioner Joseph Ponte, Chief of
Department Martin Murphy, Deputy Commissioner
of Operations Dr. Errol Toulon, Jr., Manhattan
Detention Complex Warden Raleem Moses, Bellevue
Hospital Prison Ward Deputy Warden in Command
Daniel O'Connell, John/jane Does 1-50, Defendants.
15 Civ. 7125 (KPF)
|
Signed 11/22/2016
Attorneys and Law Firms
Philip Michael Hines, Held & Hines, LLP, Brooklyn, NY, for
Plaintiff.
Omar Hani Tuffaha, New York City Law Department, David
Rosen, Nicole Teresa Attia, Heidell, Pittoni, Murphy & Bach,
LLP, New York, NY, Daniel Gerard May, Heidell, Pittoni,
Murphy & Bach, LLP, White Plains, NY, for Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
*1 Plaintiff Frank Vassallo, a diabetic former inmate at the
Manhattan Detention Center (“MDC”) and Bellevue Hospital
Center's Prison Ward (“BPW”), brings this action under 42
U.S.C. § 1983, alleging deliberate indifference to his medical
needs in violation of the Eighth and Fourteenth Amendments.
Various defendants employed by the City of New York
(the “City Defendants”) and the New York City Health and
Hospitals Corporation (“HHC”) have filed two motions to
dismiss Plaintiff's Amended Complaint (the “FAC”) under
Federal Rule of Civil Procedure 12(b)(6). For the reasons that
follow, the City Defendants' motion is granted in part and
denied in part, and HHC's motion is granted.
BACKGROUND 1
A. Factual Background
1. Plaintiff's Incarceration at MDC
The FAC alleges the following facts for the period from
December 19, 2014, to December 21, 2014, during which
Plaintiff was incarcerated at MDC (the “MDC Period”): On
December 19, 2014, Plaintiff was taken into Department of
Correction (“DOC”) custody for failure to pay child support
by Order of Commitment of the Richmond County Family
Court. (FAC ¶ 64). The Order directed DOC “to [e]nsure
that [Plaintiff] receive all appropriate medical attention and
be given all prescribed medications.” (Id. at ¶ 65). At the
time Plaintiff was taken into custody, he was “a well-cared
for diabetic, receiving regular insulin via his insulin pump,
receiving boluses as required, and not suffering from any
foot ulcerations, cellulitis, or infection.” (Id. at ¶ 67). DOC
designated Plaintiff for housing at MDC. (Id. at ¶ 66).
In the early morning hours of December 20, 2014, Plaintiff
was interviewed by medical intake personnel at MDC about
his social, mental health, and medical histories. (FAC ¶ 68).
As part of his medical history interview, Plaintiff informed
personnel that: (i) he has had Type I diabetes since 1995;
(ii) he has been prescribed and has used an insulin pump
since 2005, which he was wearing at that time, and which
automatically monitors his blood sugar and provides insulin
throughout the day; (iii) he had run out of his insulin after
being taken into custody but prior to the intake; (iv) he
requires a special diabetic diet; (v) he was experiencing
swelling in his lower extremities and burning pain at a level
of 9 out of 10; and (vi) he was starting to feel sluggish and
experiencing other effects of high blood sugar (collectively
referred to herein as the “Health Disclosure”). (Id.).
*2 At this time, Plaintiff requested an insulin refill for his
pump, but was informed that DOC policy would not permit
him to continue using the pump while in custody. (FAC ¶ 69).
He was also told that MDC clinic medical staff would give
him insulin shots instead. (Id.). Plaintiff was not given any
insulin or food at the time of his intake. (Id.). He submitted
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to a urine drug screen and was then returned to the intake
cell to await his housing assignment. (Id.). Several hours later,
Plaintiff was taken from the intake cell to the MDC clinic,
where he repeated the Health Disclosure that he had provided
at intake; he also requested insulin. (Id. at ¶ 70). A finger stick
test was taken and revealed that Plaintiff's blood sugar was
189 mg/dl. 2 (Id.). Plaintiff was still not given any insulin or
food at that time. (Id.).
Plaintiff was next questioned by an individual whom he
believed to be a physician, and repeated his Health Disclosure
to this individual. (FAC ¶ 71). Plaintiff also showed
the individual a letter from his treating physician, which
confirmed Plaintiff's diabetic condition and his need for an
insulin pump. (Id.). Plaintiff again requested insulin, but was
provided no insulin either through a pump refill or a shot.
(Id.). He was also not given any food at this time. (Id.).
At approximately 12:36 p.m. on December 20, 2014,
nearly 24 hours after Plaintiff was received into custody,
MDC medical personnel performed a physical examination,
including a blood test, on Plaintiff. (FAC ¶ 72). MDC medical
personnel—including Charles Appiah, RPA, Curt Walker,
PA, and Jeanne Israel, RN—tested Plaintiff's hemoglobin
A1C, which was found to be 12.6%. (Id.). The FAC alleges
that such a level is “nearly double the goal for fasting
diabetics,” and indicates that Plaintiff was “at a significantly
heightened risk for developing diabetes-related complications
such as kidney failure, blindness and neuropathy.” (Id.).
Plaintiff's blood sugar at that time was 150 mg/dl. (Id.).
Plaintiff was given four medications (omeprazole, lisinopril,
hydrochlorothiazide, and simvastatin) to treat his cholesterol,
high blood pressure, and gastric reflux conditions; however,
Plaintiff was provided no insulin or medication to manage his
diabetes. (Id.).
Mr. Appiah contacted Dr. Tahmina Sikder and requested
Plaintiff's transfer to the medical dorm at DOC's North
Infirmary Command (“NIC”), which the FAC alleges “houses
and is better equipped to treat detainees with similar medical
conditions, for insulin pump management.” (FAC ¶ 73).
Although Plaintiff was initially accepted into the NIC medical
dorm, his admission was later rescinded because DOC policy
allegedly did not permit Plaintiff to be housed at NIC due
to his status as a civilly confined prisoner. (Id.). Because
Plaintiff's medical needs could not be met at MDC, the FAC
alleges, Plaintiff was slated for transfer to BPW. (Id. at ¶ 74).
*3 On December 21, 2014, DOC officers were tasked with
transporting Plaintiff from MDC to BPW and commenced
the transport; however, upon reaching BPW, the officers were
informed by medical staff that “more was required of them
than their anticipated ‘3 hour hospital run.’ ” (FAC ¶ 76).
The FAC alleges that because it was near the end of the
officers' shift, rather than wait and admit Plaintiff into BPW,
the officers returned Plaintiff to MDC in order for officers
from the following shift to transport Plaintiff back to BPW.
(Id.). Plaintiff was not examined or treated by any medical
personnel at BPW before officers returned him to MDC for
the next shift's transport. (Id.).
Several hours later, Plaintiff was returned to BPW, where
he was admitted through the emergency department and
transferred to the prison ward. (FAC ¶ 77). At the emergency
room, Plaintiff was found to be “hypoglycemic with his blood
sugar below 40 mg/dl.” (Id.) The FAC notes that, prior to that
day, Plaintiff had never been hospitalized for his diabetes. (Id.
at ¶ 78).
In short, Plaintiff received no insulin, food, or diabetes
medication from the time of his admission to MDC on
December 19, 2014, through the time of his transfer to BPW
on the evening of December 21, 2014. (FAC ¶¶ 72, 75,
106-07).
2. Plaintiff's Incarceration at BPW
The FAC alleges the following facts for the period from
December 21, 2014, to January 14, 2015, during which
Plaintiff was in custody at BPW (the “BPW Period”):
a. Plaintiff's Admission to BPW and Initial Care
Upon Plaintiff's December 21, 2014 admission to BPW, staff
conducted a medical and social history intake, during which
Plaintiff conveyed the name and contact number for his
treating physician, as well as the facts that: (i) he has had
Type I diabetes since 1995; (ii) he has been prescribed and has
used an insulin pump since 2005, but ran out and the MDC
medical staff had refused to refill it; (iii) he had not received
any insulin while at MDC; (iv) he had not had a meal since
December 19, 2014; and (v) during the intake he was feeling
sweaty and experiencing swelling in his lower extremities
with burning pain. (FAC ¶ 79). These symptoms are alleged
to be well-known complications from elevated blood sugar
levels. (Id.). Plaintiff was told that DOC policy forbids BPW
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from refilling his insulin pump and that he would be given
insulin shots instead. (Id. at ¶ 80). Plaintiff was not given any
insulin or food at that time. (Id.).
About four hours after his admission to BPW, at
approximately 10:13 p.m. on December 21, 2014, Plaintiff
was provided juice and his first meal since his December
19, 2014 admission into MDC; this “made him feel better
for the moment.” (FAC ¶ 82). About an hour later, Plaintiff
reported to his nurse that he was experiencing bilateral foot
and leg pain at an 8 out of 10 intensity; upon examination,
Plaintiff was confirmed to have bilateral leg swelling, which
was worse in his left leg. (Id. at ¶ 83). Plaintiff again reported
severe throbbing pain about 40 minutes later. (Id.).
At 10:40 p.m. on December 22, 2014, Plaintiff's blood sugar
was tested and found to be 311 mg/dl. (FAC ¶ 87). In response,
BPW medical personnel gave Plaintiff long-acting insulin,
but failed to give him any short-acting insulin to bring his
sugar down quickly; consequently, by 11:19 p.m. on the
same evening, Plaintiff's blood sugar rose to 588 mg/dl, but
personnel took no action. (Id.). Nearly nine hours later, at
7:45 a.m. on December 23, 2014, BPW medical personnel re-
checked Plaintiff's blood sugar, which was found still to be
over 450 mg/dl. (Id. at ¶ 88). At that point, personnel provided
Plaintiff with short-term insulin instead of a sliding scale.
(Id.). However, as of 9:41 a.m., Plaintiff's blood sugar was
still over 450 mg/dl and, by 10:04 a.m., it reached 626 mg/
dl. (Id.).
*4 On December 29, 2014, Plaintiff was examined and
found to have an “open laceration under [his] right foot” and
dry crust under his left foot, indicative of an underlying ulcer.
(FAC ¶ 91). Plaintiff had not been receiving treatment for this
ailment despite its progressive worsening. (Id.). Following
this exam, Plaintiff was ordered to be provided with special
foot appliances for his right foot to offload right foot erosion
(and to be worn whenever walking); BPW medical personnel
were also directed to advise Plaintiff to remain off his feet;
and personnel were to dress Plaintiff's right foot to keep it dry
in the shower and to apply lotion topically to his feet. (FAC
¶ 92). However, Plaintiff was not provided with these foot
appliances or dressings, nor was he advised to stay off his
feet. (Id.). An x-ray of Plaintiff's right foot was performed,
which ruled out osteomyelitis, i.e., a bone infection; however,
follow-up studies were not ordered or performed during
Plaintiff's admission. (Id.).
b. Plaintiff's Consultations with Specialists
On January 3, 2015, endocrinologist Nidhi Agrawal, M.D.,
consulted with Plaintiff regarding the ulcers and swelling
of his feet. (FAC ¶ 93). Dr. Agrawal reviewed Plaintiff's
medication history, blood sugar levels since admission, and
lab results, but did not physically examine Plaintiff. (Id.).
Dr. Agrawal advised medical staff to “[c]onsider vascular
surgery consult for diabetic foot ulcers”; however, no such
consultation was requested. (Id.).
Two days later, Dr. Agrawal returned due to increased
swelling of Plaintiff's legs and for evaluation of a plantar
ulcer on Plaintiff's right foot, along with two smaller ulcers
on the heel and ball of the foot. (FAC ¶ 94). Erythematous
areas were found over both legs with pitting edema, which
the FAC alleges are indicative of infection. (Id.). Again,
Dr. Agrawal advised medical staff to “[c]onsider vascular
surgery consult for diabetic foot ulcers”; however, no such
consultation was requested. (Id.). Despite several endocrinal
consultations, Plaintiff's hyperglycemia was never controlled
and “would range from the 40s to 600s.” (Id. at ¶ 95).
On January 9, 2015, Plaintiff was examined by podiatrist
Eric Nelson, M.D., who found plantar ulcerations and fissures
on Plaintiff's feet. (FAC ¶¶ 96-97). Plaintiff reported that
he felt no sensation in his feet and was worried about
infection. (Id. at ¶ 97). Dr. Nelson determined that the
ulcerations on both feet were not infected and that the right
foot “ulceration is secondary to uncontrolled diabetes w/
peripheral neuropathy.” (Id. at ¶ 97). Dr. Nelson directed that
Plaintiff's right foot be kept elevated and that his dressings be
changed daily with an antiseptic, but Plaintiff's right foot was
not kept elevated by BPW medical personnel, nor were his
dressings changed daily. (Id.).
On January 14, 2015, Plaintiff was examined by
dermatologist Shields Callahan, M.D., who found Plaintiff
with a two-to-three-centimeter ulcer at the base of his right
second toe, with granulation tissue at the base and without
an active infection. (FAC ¶ 98). Plaintiff's left foot had linear
deep fissures on plantar surfaces, also without an active
infection. (Id.).
Later the same day, podiatrist Mariola Morell, M.D.,
examined Plaintiff and made further recommendations
regarding foot care for Plaintiff; however, Plaintiff was
discharged from BPW later that evening. (FAC ¶ 99).
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3. Plaintiff's Discharge from BPW and Subsequent
Medical Care
On January 14, 2015, Plaintiff was discharged from BPW
and released from DOC custody, after having petitioned the
Family Court for compassionate release due to inadequate
medical care and complications arising from diabetes. (FAC
¶ 100).
The next day, Plaintiff was examined by his own doctor, who
diagnosed Plaintiff with an infection, started him on a course
of antibiotics, and scheduled him for an MRI to determine
whether the infection had reached the bone. (FAC ¶ 103).
While the infection did not reach the bone and Plaintiff's foot
did not require amputation, “the infection was so prevalent”
that, approximately five weeks later, on February 24, 2015,
“Plaintiff underwent surgery to excise the infection and skin
graft the wound.” (Id.).
*5 On February 24, 2015, prior to the surgery, a tissue
sample was taken of the infected area. (FAC ¶ 104).
Plaintiff was later advised that he had “contracted a hospital-
borne infection—methicillin-resistant staphylococcus aureus
(MRSA)—at BPW.” (Id.). Tissue samples were never taken
during Plaintiff's detention at BPW and he was never treated
there for MRSA. (Id.).
B. Procedural Background
On March 10, 2015, Plaintiff filed a Notice of Claim with the
City of New York, and on March 11, 2015, Plaintiff filed a
Notice of Claim with HHC. (FAC ¶¶ 112-13). HHC held its
statutory hearing on May 14, 2015, and the City its statutory
hearing on July 6, 2015. (Id. at ¶¶ 115-16).
Plaintiff filed the Complaint in this action on September 10,
2015. (Dkt. #1). HHC filed a pre-motion letter on October 29,
2015 (Dkt. #35), to which Plaintiff responded on November
3, 2015 (Dkt. #36). The Court held a joint Initial Pretrial
Conference and Pre-Motion Conference on November 17,
2015 (see Dkt. #40), at which the City Defendants appeared
and also sought leave to move to dismiss (see Tr. of Nov.
17, 2015 Pre-Motion Conf., Dkt. #40, at 17:7-23). The Court
issued an Order on the same day that, inter alia, directed
Defendants to produce Plaintiff's medical records, and set
a scheduling for amending the Complaint and for motion
practice. (See Dkt. #39).
Plaintiff filed the FAC on January 29, 2016 (Dkt. #42),
naming: (i) the City of New York (the “City”); Corizon
Health, Inc. and Corizon, Inc. (together, “Corizon”); Joseph
Ponte; Martin Murphy; Errol Toulon; Raleem Moses; Daniel
O'Connell; John and Jane Doe healthcare workers and
medical staff at MDC, and John and Jane Doe DOC
officials (collectively, with the City and Corizon, the “City
Defendants”); and (ii) the New York City Health and
Hospitals Corporation, and certain John and Jane Doe
healthcare workers and medical staff at BPW (collectively,
“HHC”).
On March 8, 2016, HHC filed a motion to dismiss and
memorandum in support thereof, and the City Defendants
did the same on the following day. (Dkt. #46-50). On April
6, 2016, Plaintiff filed a memorandum jointly opposing
Defendants' motions to dismiss. (Dkt. #55-56). Defendants
filed their reply memoranda on April 19, 2016. (Dkt. #57-58).
DISCUSSION
A. Applicable Law
1. Motions to Dismiss Under Federal Rule of Civil
Procedure 12(b)(6)
When considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a court should “draw all reasonable
inferences in [the plaintiff's] favor, assume all well-pleaded
factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal
quotation marks omitted). Thus, “[t]o 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)).
“While Twombly does not require heightened fact pleading of
specifics, it does require enough facts to ‘nudge [a plaintiff's]
claims across the line from conceivable to plausible.’ ” In
re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007)
(per curiam) (quoting Twombly, 550 U.S. at 570). “Where
a complaint pleads facts that are ‘merely consistent with’
a defendant's liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’ ” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
Moreover, “the tenet that a court must accept as true all of the
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allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Id.
2. Materials That May Be Considered in Resolving a
Motion Under Rule 12(b)(6)
*6 “In considering a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6), a district court may consider
the facts alleged in the complaint, documents attached to
the complaint as exhibits, and documents incorporated by
reference in the complaint.” DiFolco v. MSNBC Cable LLC,
622 F.3d 104, 111 (2d Cir. 2010). “Even where a document
is not incorporated by reference, the court may nevertheless
consider it where the complaint ‘relies heavily upon its terms
and effect,’ which renders the document ‘integral’ to the
complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153
(2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am.
Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)); see
generally Goel v. Bunge, Ltd., 820 F.3d 554, 558-59 (2d Cir.
2016) (discussing documents that may properly be considered
in resolving a motion to dismiss).
HHC argues for the first time in its Reply Brief that
“Plaintiff has made his medical records an integral part of his
Complaint,” and urges the Court to consider those records, an
electronic copy of which HHC has submitted, in connection
with resolving the present motions or, alternatively, in
converting the present motions practice into one for summary
judgment. (See HHC Reply 2-3). The Court declines to
consider Plaintiff's medical records in resolving the instant
motions. For starters, HHC's medical records argument is
raised for the first time in reply, despite the fact that it could
and should have been made in its opening brief. Although the
Court has discretion to consider arguments raised for the first
time in reply, it is also “free to disregard” them. Am. Hotel Int'l
Grp., Inc. v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 375
(S.D.N.Y. 2009); Playboy Enters., Inc. v. Dumas, 960 F. Supp.
710, 720 n.7 (S.D.N.Y. 1997) (“Arguments made for the first
time in a reply brief need not be considered by a court.”).
Moreover, the medical records here are neither “attached to
the complaint as exhibits,” nor “incorporated by reference in
the complaint.” DiFolco, 622 F.3d at 111. Although the Court
“may nevertheless consider [the medical records] where the
complaint relies heavily upon its terms and effect, which
renders the document integral to the complaint,” Chambers,
282 F.3d at 153 (emphasis added) (internal quotation marks
omitted), upon reviewing the FAC, the Court finds this not
to be the case and, in any event, declines to consider the
records at this stage. See Goel, 820 F.3d at 559 (“Merely
mentioning a document in the complaint will not satisfy
this standard; indeed, even offering limited quotations from
the document is not enough.” (internal quotation marks and
alterations omitted)).
3. Section 1983 Claims Generally
Section 1983 establishes liability for deprivation, under color
of state law, “of any rights, privileges, or immunities secured
by the Constitution[.]” 42 U.S.C. § 1983. “The purpose of
§ 1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed
rights and to provide relief to victims if such deterrence fails.”
Wyatt v. Cole, 504 U.S. 158, 161 (1992). As such, a § 1983
claim “has two essential elements: [i] the defendant acted
under color of state law; and [ii] as a result of the defendant's
actions, the plaintiff suffered a denial of h[is] federal statutory
rights, or h[is] constitutional rights or privileges.” Annis v.
County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998).
As a prerequisite to an award of damages under § 1983, a
plaintiff must show the personal involvement of defendants
in the alleged constitutional deprivations. See Farid v. Ellen,
593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke, 449
F.3d 470, 484 (2d Cir. 2006)). To show personal involvement,
a plaintiff must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678. “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’ ” Id. (citing
Twombly, 550 U.S. at 555).
4. Section 1983 Claims for Deliberate Indifference
*7 To plead a violation of the Eighth Amendment for
deliberate indifference to a serious medical need, a plaintiff
must allege facts that satisfy (i) an objective requirement
that the alleged deprivation results in a serious medical
condition and (ii) a subjective requirement that the defendant,
in depriving the plaintiff of medical treatment, acted
with deliberate indifference. See Caiozzo v. Koreman, 581
F.3d 63, 72 (2d Cir. 2009); id. (holding that deliberate
indifference to medical need claims “of a person in custody
should be analyzed under the same standard irrespective of
whether they are brought” under the Eighth Amendment (for
convicted detainees) or Fourteenth Amendment (for pretrial
detainees)). 3
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With respect to the subjective element, a plaintiff must allege
that the defendant acted with “a sufficiently culpable state
of mind,” equivalent to criminal recklessness. Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal citation
omitted). Such a state of mind “entails something more than
mere negligence[, but] something less than acts or omissions
for the very purpose of causing harm or with knowledge that
harm will result.” Id. (quoting Farmer v. Brennan, 511 U.S.
825, 835 (1994)) (internal quotation marks omitted).
Mere allegations of negligence will generally be insufficient
to state a claim of deliberate indifference to a serious medical
need. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (“[A]
complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment. Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner.”). Rather, a plaintiff must
allege that “the charged official ... act[ed] or fail[ed] to act
while actually aware of a substantial risk that serious inmate
harm will result.” Bell v. Jendell, 980 F. Supp. 2d 555, 561
(S.D.N.Y. 2013) (quoting Salahuddin v. Goord, 467 F.3d
263, 280 (2d Cir. 2006) (internal quotation marks omitted)
(emphasis in Bell)); see also Farmer, 511 U.S. at 837 (“[T]he
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.”).
Accordingly, “not every lapse in medical care is a
constitutional wrong.” Salahuddin, 467 F.3d at 279 (internal
citation omitted). A constitutional wrong requires deliberate
indifference, and it is well-settled that the ultimate decision of
whether to administer a treatment or medication is a medical
judgment that, without more, does not amount to deliberate
indifference. See Ross v. Correct Care Sols. LLC, No. 11 Civ.
8542 (DLC), 2013 WL 5018838, at *4 (S.D.N.Y. Sept. 13,
2013).
B. Analysis
1. Plaintiff Adequately Pleads a Claim of Deliberate
Indifference as to the MDC Period, But Not as to the
BPW Period
a. The Objective Element Is Satisfied as
to Both the MDC and the BPW Periods
*8 The City Defendants argue that Plaintiff's claim, properly
construed, is not for the total deprivation of medical care, but
rather for delayed or inadequate medical care. (See City Br.
9). Therefore, the City Defendants maintain, the seriousness
inquiry under the objective element should be focused only
on the unreasonableness of the delay or inadequacy rather
than on the severity of Plaintiff's underlying condition. (Id.
at 9-10). HHC argues that, as to the BPW period, Plaintiff
was neither deprived of medical care nor provided delayed
or inadequate care and, accordingly, Plaintiff's claims fail to
satisfy the objective element. (See HHC Br. 9-12).
The Second Circuit advises district courts that
[d]etermining whether a deprivation
is an objectively serious deprivation
entails two inquiries. The first inquiry
is whether the prisoner was actually
deprived of adequate medical care ....
Second, the objective test asks whether
the inadequacy in medical care
is sufficiently serious. This inquiry
requires the court to examine how the
offending conduct is inadequate and
what harm, if any, the inadequacy has
caused or will likely cause the prisoner.
Salahuddin, 467 F.3d at 279-80. “[I]f the unreasonable
medical care is a failure to provide any treatment for an
inmate's medical condition, courts examine whether the
inmate's medical condition is sufficiently serious.” Id. (citing
Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003)).
Where, however, the inadequacy is in the medical treatment
given, “the seriousness inquiry is narrower.” Id. at 280. For
example, if the offending conduct is an unreasonable delay
or interruption in treatment, “the seriousness inquiry ‘focuses
on the challenged delay or interruption in treatment rather
than the prisoner's underlying medical condition alone.’ ”
Id. (quoting Smith, 316 F.3d at 185) (alterations omitted).
In such scenarios, “it's the particular risk of harm faced
by a prisoner due to the challenged deprivation of care,
rather than the severity of the prisoner's underlying medical
condition, considered in the abstract, that is relevant for
Eighth Amendment purposes.” Smith, 316 F.3d at 186.
The City Defendants are incorrect that Plaintiff fails to raise a
claim for the total deprivation of medical care as to the MDC
Period. The FAC makes clear that despite Plaintiff's repeated
declarations to MDC personnel that he suffers from diabetes
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and was experiencing its painful symptoms, he was deprived
of food, insulin, and diabetes medication during the entirety
of the MDC Period. (See FAC ¶¶ 68, 70-72, 75, 106-07).
Provision of medicine for Plaintiff's unrelated medical needs,
such as cholesterol, blood pressure, and gastric reflux (see id.
at ¶ 72), does nothing to negate Plaintiff's allegations about a
complete lack of care for his diabetes, the medical condition
on which his claims are based. See Smith, 316 F.3d at
185-86 (“There is no need to distinguish between a prisoner's
underlying ‘serious medical condition’ and the circumstances
of his ‘serious medical need’ when the prisoner alleges that
prison officials have failed to provide general treatment for
his medical condition.”). As to the BPW Period, however, the
FAC may be construed as raising claims based on delayed or
inadequate care. (See, e.g., FAC ¶ 84 (alleging that at BPW,
Plaintiff's “blood sugar was not tested with regular frequency
nor was insulin regularly provided.”); id. at ¶ 87 (“Plaintiff
should have been receiving long-acting insulin rather than
by sliding scale, as BPW personnel administered.”); id. at
¶ 90 (alleging delayed podiatry consultation and surgical
evaluation of Plaintiff's foot)).
*9 The Court finds that Plaintiff's allegations concerning
both the MDC Period and the BPW Period state claims that
satisfy the objective element of the deliberate indifference
analysis. Plaintiff's diabetes is a sufficiently serious medical
condition: a reasonable doctor or patient would find
it “important and worthy of comment”; the condition
“significantly affects an individual's daily activities”; and it
can cause “chronic and substantial pain.” Salahuddin, 467
F.3d at 280 (citing Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998)) (internal quotation marks omitted); see also
Beatty v. Davidson, 713 F. Supp. 2d 167, 174 (W.D.N.Y.
2010) (“This Court need not linger on this point: diabetes is
a sufficiently serious medical condition to meet the objective
prong.”) (collecting cases); Colon v. County of Nassau, No. 12
Civ. 4466 (JS), 2014 WL 4904692, at *6 (E.D.N.Y. Sept. 26,
2014) (recognizing that “[c]ourts in this Circuit have held that
diabetes is a sufficiently serious medical condition to meet the
objective prong of a deliberate indifference claim” (internal
quotation marks omitted)).
Even under a narrower seriousness inquiry that focuses on
“the particular risk of harm” faced by Plaintiff due to delayed
or inadequate treatment during the BPW Period, see Smith,
316 F.3d at 186, the objective element is met. The FAC alleges
infrequent blood sugar monitoring and insulin provision (see,
e.g., FAC ¶¶ 84, 88), inadequate insulin treatments (see, e.g.,
id. at ¶ 88), and delayed or inadequate treatment by specialists
(see, e.g., id. at ¶¶ 90, 93-94, 96), allegedly resulting in
consistently and abnormally elevated blood sugar levels (see
id. at ¶¶ 86-88), and other diabetes-related complications
(see id. at ¶¶ 92-93). (See also Pl. Opp. 17 (“Plaintiff is not
alleging that there were short-term delays and inadequacies
of treatment surrounded by otherwise acceptable care, but
rather that there were short-term provisions of inadequate
care surrounded by otherwise non-existent and/or cursory
care.”)). These allegations of harm are sufficiently serious,
not “minor and inconsequential.” Smith at 186; see id (“For
example, 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.”);
see also Roberts v. C-73 Med. Dir., No. 14 Civ. 5198 (GHW),
2015 WL 4253796, at *5 (S.D.N.Y. July 13, 2015) (finding
that allegations of delayed diabetes treatment and resulting
pain satisfied objective element of deliberate indifference
analysis); Ferguson v. Cai, No. 11 Civ. 6181 (PAE), 2012 WL
2865474, at *4 (S.D.N.Y. July 12, 2012) (recognizing that
“[w]here temporary delays or interruptions in the provision
of medical treatment have been found to satisfy the objective
seriousness requirement in this Circuit, they have involved
either a needlessly prolonged period of delay, or a delay which
caused extreme pain or exacerbated a serious illness”).
In sum, Plaintiff has plausibly pled that his underlying
medical condition and the risk of (and actual) harm incurred
due to delayed or inadequate care were sufficiently serious
to satisfy the Eighth Amendment's objective element for both
the MDC and the BPW Periods.
b. The Subjective Element Is Satisfied as to the
MDC Period But Not as to the BPW Period
i. The MDC Period
Satisfaction of the objective element is, of course, only half
of the inquiry. The City Defendants further argue that the
FAC's allegations fail to satisfy the subjective element of the
Eighth Amendment analysis. (See City Br. 10). Specifically,
they contend that Plaintiff pleads no facts from which it can be
inferred that “any of the MDC staff he encountered knew of
and disregarded an excessive risk to his health or safety.” (Id.
at 11). In support of this argument, the City Defendants point
out that, “[i]n the short time he was at MDC, Plaintiff was seen
and evaluated by multiple medical staff members, had his
blood sugar level tested, was prescribed several medications,
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and was promptly directed to be transferred to [BPW] for the
very purpose of ensuring ... that Plaintiff receive ‘continual
medical care.’ ” (Id. at 11 (quoting FAC ¶ 74)). Furthermore,
Plaintiff's allegations about the aborted initial transfer to
BPW “raise no inference that the officers delayed with actual
knowledge that the delay would result in serious harm” (id.),
while his allegations about being deprived of food are vague
and not sufficiently injurious (id. at 12).
*10 These arguments are unpersuasive. Plaintiff has pled
sufficient facts to claim plausibly that at least certain
of the City Defendants acted with culpable recklessness;
specifically, that MDC personnel knew of and disregarded an
excessive risk to Plaintiff's health. See Hill v. Curcione, 657
F.3d 116, 122 (2d Cir. 2011) (the official must “ ‘know[ ]
of and disregard[ ] 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.’ ” (quoting
Farmer, 511 U.S. at 837)).
In Washington v. Westchester County Department of
Correction, this Court found allegations supporting an
analogous deliberate indifference claim to be insufficient
because that complaint lacked details regarding “(i) whether
[the plaintiff] was in pain or exhibited symptoms [when
he was first detained]; (ii) whether Defendants were aware
that Plaintiff ... had symptoms of [his medical condition] at
the time of his incarceration; and (iii) whether Defendants
ignored such symptoms or deliberately withheld medication.”
No. 13 Civ. 5322 (KPF), 2015 WL 408941, at *8 (S.D.N.Y.
Jan. 30, 2015) (internal quotation marks omitted). Here,
by contrast, Plaintiff informed MDC personnel both at his
initial intake, and repeatedly thereafter, that he suffers from
diabetes; that he was experiencing swelling in his legs and
severe burning pain; and that he requires insulin. (See, e.g.,
FAC ¶¶ 68-71; see also id. at ¶ 71 (alleging that Plaintiff
presented letter from his treating physician confirming his
diabetic condition and need for insulin)). Plaintiff's physical
examination approximately 24 hours into his MDC custody
confirmed, according to the FAC, that his diabetes was not
being properly treated and that he was “at a significantly
heightened risk for developing complications such as kidney
failure, blindness and neuropathy.” (Id. at ¶ 72). This led to
efforts to transfer Plaintiff to a facility equipped to treat him,
but an initial attempt to transfer him to NIC failed due to an
alleged DOC policy and the first attempt to transfer him to
BPW failed due to DOC officers' alleged malfeasance. (Id. at
¶¶ 73-74, 76).
Despite all of this, during the entirety of Plaintiff's MDC
detention—an approximately two-day period concluding
with Plaintiff's transfer to BPW—Plaintiff was provided no
food, insulin, or diabetes medication. (See FAC ¶¶ 69-72,
75, 106-07). See also Washington, 2015 WL 408941, at *8
(“[C]ertain medical conditions may be so life-threatening that
advising prison personnel of a diagnosis of that condition
and providing corroborative prescriptions may, particularly
at the pleading stage, be sufficient to state a claim of
culpable recklessness if prison officials later fail to act on that
knowledge.”).
The City Defendants' arguments listed above do not alter
this conclusion. First, the mere fact that Plaintiff was “seen
and evaluated by multiple medical staff members” and “had
his blood sugar level tested” (City Br. 11), but nevertheless
received no food, insulin, or diabetes medication over a
two-day period, lends no support to (and, indeed, may
affirmatively undermine) the City Defendants' position that
MDC personnel were not deliberately indifferent to Plaintiff's
condition. Next, the City Defendants' argument that Plaintiff
“was prescribed several medications” while at MDC (id. at
11), is a non-starter: Plaintiff was prescribed medication for
cholesterol, blood pressure, and gastric reflux (see FAC ¶ 72);
none of these medications was intended to treat Plaintiff's
diabetes (see id.), the medical condition upon which Plaintiff's
deliberate indifference claim is based. Finally, the City
Defendants' reliance on Inesti v. Hogan for the proposition
that the “deprivation of one to two isolated meals does not
amount to a constitutional violation” is misplaced in this
context. (City Br. 12 (citing Inesti v. Hogan, No. 11 Civ. 2596
(PAC) (AJP), 2013 WL 791540, at *24-25 (S.D.N.Y. Mar. 5,
2013), report and recommendation adopted, No. 11 Civ. 2596
(PAC), 2013 WL 5677046, at *1 (S.D.N.Y. Sept. 30, 2013))).
Plaintiff's lack of food over an approximately two-day period
(see FAC ¶ 75), amounts to significantly more than “one or
two isolated meals.” And, more importantly, the Inesti inmate
was not a diabetic, nor did he claim to suffer from a condition
so directly and delicately tied to food intake and blood sugar
regulation. See Inesti, 2013 WL 791540, at *1-4, *22-25;
Inesti, 2013 WL 5677046, at *1 (describing the plaintiff's
mental health disorder). The City Defendants' comparison
of denying food to a diabetic versus a non-diabetic is self-
evidently flawed.
*11 In sum, the FAC details how MDC personnel were
aware of Plaintiff's serious and deteriorating condition, but
failed, over approximately two days, to provide any care
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by means of food, insulin, or diabetes medication. (FAC
¶¶ 69-72, 75, 106-07). Taken as a whole, these allegations
are sufficient to state a plausible claim that certain of the
City Defendants consciously disregarded a substantial risk of
serious harm to Plaintiff. See Hill, 657 F.3d at 122; Chance,
143 F.3d at 703.
ii. The BPW Period
Plaintiff claims that BPW personnel also failed to manage
properly his diabetes in multiple respects, including by
infrequently monitoring his blood sugar, providing him with
the incorrect insulin regimen and untimely specialist care, and
neglecting to maintain sanitary conditions, all of which led to
numerous diabetes-related complications. (See, e.g., FAC ¶¶
83-84, 87, 89, 102). Plaintiff argues that such inadequate care
rises to a constitutional violation because, given the condition
in which he arrived at BPW and examinations thereafter,
HHC personnel knew that a serious risk of harm to Plaintiff
existed, but consciously disregarded that risk by providing
only “perfunctory treatment and cursory examinations.” (Pl.
Opp. 19).
The City Defendants argue that Plaintiff fails to state a
claim against them as to the BPW Period, because BPW
is owned and operated by co-Defendant HHC, a municipal
corporation distinct from the City and Corizon. (See City
Br. 12). In the alternative, the City Defendants argue that
Plaintiff's claim fails on the merits because he received
“frequent and consistent medical care,” and any criticism to
the contrary amounts merely to “disagreements with the care
provided” and “at worst, negligence amounting to medical
malpractice,” but nothing approaching Eighth Amendment
deliberate indifference. (City Br. 13-14). HHC echoes the
latter argument. After cataloguing the treatment Plaintiff
received at BPW (see HHC Br. 9-12, 15-16), HHC argues that
Plaintiff's allegations “merely describe a situation in which
[Plaintiff] disagrees with the course of treatment provided,”
which, “[a]t most ... state[s] a claim for medical malpractice,”
but which “fall[s] well short of alleging that [HHC] acted with
the requisite culpable state of mind” (HHC Br. 14, 16-17).
While Plaintiff's allegations as to the BPW Period may
support a claim for negligence or medical malpractice,
something Defendants acknowledge, the allegations do not
support an inference of culpable recklessness in satisfaction
of the subjective element of a deliberate indifference analysis.
See Santana v. Watson, No. 13 Civ. 1549 (SAS), 2014
WL 1803308, at *5 (S.D.N.Y. May 6, 2014) (“[D]eliberate
indifference is more substantial than mere disagreement
over a course of treatment, negligence[,] or even medical
malpractice.”); cf. Brown v. McElroy, 160 F. Supp. 2d 699,
706 (S.D.N.Y. 2001) (holding that “the fact that a plaintiff
feels that more should have been done for his condition is not
a sufficient basis for a deliberate indifference claim”).
Unlike the allegations concerning the MDC Period, as to
which Plaintiff alleges a total deprivation of medical care for
his diabetes, the FAC describes the extensive medical care
that Plaintiff received at BPW, including blood sugar level
monitoring (FAC ¶ 87); insulin treatment (id. at ¶¶ 87-88);
examinations of his foot condition (id. at ¶¶ 91-92); and
treatment by multiple specialists, including two podiatrists,
an endocrinologist, and a dermatologist (id. at ¶¶ 93-98). At
bottom, the FAC alleges that this care was inadequate because
it was characterized by delay, irregularity, misdiagnoses, and
suboptimal treatment options, but these allegations do not
rise to the level of a constitutional violation. See Demata v.
N.Y. State Corr. Dep't of Health Servs., 198 F.3d 233 (Table),
1999 WL 753142, at *2 (2d Cir. Sept. 17, 1999) (“Although a
delay in providing necessary medical care may in some cases
constitute deliberate indifference, this Court has reserved
such a classification for cases in which, for example, officials
deliberately delayed care as a form of punishment, ignored
a ‘life-threatening and fast-degenerating’ condition for three
days, or delayed major surgery for over two years.” (internal
citations omitted)); Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (“A
difference of opinion between a prisoner and prison officials
regarding medical treatment does not, as a matter of law,
constitute deliberate indifference.”); Williams v. Williams,
No. 13 Civ. 3154 (RA), 2015 WL 568842, at *7 (S.D.N.Y.
Feb. 11, 2015) (“[A]llegations of a negligent misdiagnosis
do not satisfy the subjective requirement of the deliberate
indifference analysis because they do not suggest that the
defendant acted with a conscious disregard to inmate health
or safety.”).
*12 For example, in Roberts v. C-73 Medical Director,
the diabetic inmate's claim for deliberate indifference was
principally based on a treating physician's failure to stabilize
his blood sugar levels with appropriate care and her denial of
specialist care until his condition worsened and, even then,
only on an infrequent basis. See No. 14 Civ. 5198 (GHW),
2015 WL 4253796, at *5-6 (S.D.N.Y. July 13, 2015). The
Court held that while the inmate's poor physical condition
at intake supported “an inference that a serious risk of harm
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existed,” the allegations did not show that the physician
“drew that inference and then consciously disregarded it.”
Id. “In fact, plaintiff acknowledges that when his condition
worsened, [the physician] referred him to a specialist, which
does not support a contention that she acted with deliberate
indifference.” Id.; see also Roberts v. City of N.Y., No. 14
Civ. 5198 (GHW), 2016 WL 4146135, at *5 (S.D.N.Y. Aug.
2, 2016) (reaffirming reasoning and holding as to treating
physician upon amended complaint).
By contrast, the court in Colon v. County of Nassau, found
plausible claims of deliberate indifference where two diabetic
inmates alleged that a physician denied them necessary,
specified medical care because of budgetary constraints. See
No. 12 Civ. 4466 (JS), 2014 WL 4904692, at *6 (E.D.N.Y.
Sept. 26, 2014). “If this is true and if the treatments at
issue were medically necessary, this allegation could support
a conclusion that [the named physician] was deliberately
indifferent to [plaintiffs'] medical needs.” Id. (citing Liner
v. Fischer, No. 11 Civ. 6711 (PAC), 2013 WL 4405539, at
*21 (S.D.N.Y. Aug. 7, 2013) (denying motion to dismiss
deliberate indifference claim because “if, as plaintiff alleges,
he was denied necessary medication for almost two years due
to ‘budget cuts,’ this delay could potentially be a factor in
support of a finding of deliberate indifference”) (alterations
omitted)).
Here, although Plaintiff's treatment during the BPW Period,
based on the facts alleged, should have been more consistent,
timely, and thorough, there is no indication that any of the
treatment deficiencies were a result of “a conscious disregard
of a substantial risk of serious harm” to Plaintiff. See Estelle,
429 U.S. at 105-06 (recognizing that “an inadvertent failure
to provide adequate medical care,” such as “a complaint that
a physician has been negligent in diagnosing or treating a
medical condition[,] does not state a valid claim of medical
mistreatment under the Eighth Amendment”).
2. Plaintiff Has Failed to Plead Municipal Liability
a. Applicable Law
Municipal entities may be sued directly for constitutional
violations pursuant to § 1983, see Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 690 (1978), but cannot be held liable for
the acts of their employees under the doctrine of respondeat
superior, see Pembaur v. City of Cincinnati, 475 U.S. 469, 478
(1986). In other words, “Monell does not provide a separate
cause of action for the failure by the government to train its
employees; it extends liability to a municipal organization
where that organization's failure to train, or the policies
or customs that it has sanctioned, led to an independent
constitutional violation.” Segal v. City of N.Y., 459 F.3d 207,
219 (2d Cir. 2006) (emphasis in original) (citing Monell, 436
U.S. at 694).
A plaintiff may establish municipal liability under Monell
in several ways, including by presenting evidence of “[i]
an express policy or custom, [ii] an authorization of a
policymaker of the unconstitutional practice, [iii] failure of
the municipality to train its employees, which exhibits a
‘deliberate indifference’ to the rights of its citizens, or [iv]
a practice of the municipal employees that is ‘so permanent
and well settled as to imply the constructive acquiescence of
senior policymaking officials.’ ” Biswas v. City of N.Y., 973
F. Supp. 2d 504, 536 (S.D.N.Y. 2013) (quoting Pangburn v.
Culbertson, 200 F.3d 65, 71-72 (2d Cir. 1999)).
b. Plaintiff Allegations of
Municipal Liability Are Inadequate
*13 Plaintiff raises Monell claims against the City, Corizon,
and HHC. (See FAC ¶¶ 119-23). HHC is a municipal
corporation subject to municipal liability. See Rookard v.
Health and Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)
(addressing HHC); Sussman v. N.Y. City Health & Hosps.
Corp., No. 94 Civ. 8461 (DBS), 1997 WL 334964, at *7 n.3
(S.D.N.Y. June 16, 1997) (same). Corizon, although a private
entity, is here treated as a municipal actor for purposes of
Monell. See Bess v. City of N.Y., No. 11 Civ. 7604 (TPG),
2013 WL 1164919, at *2 (S.D.N.Y. Mar. 19, 2013) (“Corizon
enjoys the benefit of the Monell requirements for the same
reason it may be named as a defendant in a § 1983 suit.
In providing medical care in prisons, Corizon performs a
role traditionally within the exclusive prerogative of the state
and therefore, in this context, is the functional equivalent of
the municipality.” (collecting cases)); Law v. Corizon Med.
Servs., No. 13 Civ. 5286 (KBF), 2014 WL 2111675, at *5
(S.D.N.Y. May 12, 2014) (same).
Plaintiff's claim against HHC presupposes the existence of
an independent constitutional violation arising during the
BPW Period; because this Court has found that none has
been identified, Plaintiff's Monell claim is dismissed as to
HHC. See City of Los Angeles v. Heller, 475 U.S. 796,
799 (1986) (recognizing that municipal liability requires
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that an individual municipal agent committed an underlying
constitutional deprivation); Ferguson v. Cai, No. 11 Civ.
6181 (PAE), 2012 WL 2865474, at *6 (S.D.N.Y. July 12,
2012) (“Because the Court has concluded that [the plaintiff's]
constitutional rights have not been violated, his claim of
municipal liability pursuant to Monell is, a fortiori, also
meritless.”).
As to the MDC Period, and the municipal City Defendants,
Plaintiff seeks to establish Monell liability principally on the
basis of (i) the City Defendants' alleged official policies,
including of prohibiting diabetic prisoners' insulin pumps
to be used or refilled while in custody and of prohibiting
civilly committed individuals to be admitted to the NIC
infirmary (see Pl. Opp. 23; FAC ¶¶ 125-26); (ii) the City
Defendants' widespread practice and customs, including of
“failing to employ obvious measures to reduce the risk of
abuses alleged,” failing to supervise adequately and train
properly medical staff and corrections officers, and failing
to ensure prompt and adequate medical services to inmates
in compliance with the City's Minimal Standards for Health
Care (see Pl. Opp. 24-25; see generally FAC ¶¶ 131-48);
and (iii) the City Defendants' failure to train and supervise
personnel, including “to ensure that they perform” duties
related to inmate medical care “in strict accordance with
[inmates'] civil rights and doctors' medical orders” and on
how to handle difficult circumstances that are often presented
(see Pl. Opp. 26-27; see generally FAC ¶¶ 119-48).
None of these allegations as pled is sufficient to state a claim
for Monell liability against the municipal City Defendants.
Plaintiff's allegations concerning the two official policies
principally targeted—barring use of an insulin pump and
precluding civilly confined inmates from receiving treatment
at NIC—suffer from at least two defects. First, the FAC
fails to plead facts showing that these policies caused the
constitutional violation. See Monell, 436 U.S. at 693-94
(holding that municipal liability claim must allege that
officially adopted policy or custom caused the constitutional
violation); see also Bd. of County Comm'r of Bryan County
v. Brown, 520 U.S. 397, 404 (1997) (holding that plaintiff
must demonstrate a “direct causal link between the municipal
action and the deprivation of federal rights”). Here, given the
alternate medical treatments available, such as insulin shots
or care at a different facility, the FAC fails to allege sufficient
facts to plead a “direct causal link” between the alleged insulin
pump or civil custody policies and the constitutional violation
here recognized, i.e., the total deprivation of medical care for
Plaintiff's diabetes during the MDC Period.
*14 Second, the “official policy” allegations lack sufficient
factual detail. The FAC offers little beyond, “[Plaintiff] was
told that he would not be allowed to continue using his
insulin pump while in custody due to DOC policy” (FAC ¶
69; see id. at ¶¶ 3, 125), and “DOC policy did not permit
Plaintiff to be housed at [NIC]” because “Plaintiff was civilly
confined” (id. at ¶ 73). “To state there is a policy does not
make it so. And while a plaintiff need not assert the allegations
in the initial complaint with a level of specificity only made
possible through discovery,” Betts v. Shearman, No. 12 Civ.
3195 (JPO), 2013 WL 311124, at *16 (S.D.N.Y. Jan. 24,
2013), additional facts for Plaintiff's “official policy” Monell
allegations are required. Cf. Colon, 2014 WL 4904692, at *10
(finding municipal liability adequately pled where complaint
alleged that contract between municipality and medical
provided subjected provider to a fixed budget that caused it
to cut costs and that provider's policy “limit[ed] medication
dispensing and prescribing to the facility formulary within the
budget for the contract ... notwithstanding medical need”).
Relatedly, Plaintiff's allegations concerning the City's (i)
training and supervision failures, and (ii) widespread custom
and practice of failing to ensure prompt and adequate
medical services, a reduced risk of abuse, and the like,
are inadequately pled. “[C]onclusory allegations that a
municipality failed to train and supervise its employees [are]
insufficient to state a Monell claim.” Davis v. City of N.Y., No.
07 Civ. 1395 (RPP), 2008 WL 2511734, at *5-6 (S.D.N.Y.
June 19, 2008); Connick v. Thompson, 563 U.S. 51, 61 (2011)
(“A municipality's culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”).
Under the pleading requirements imposed by Twombly and
Iqbal, Plaintiff must give a factual description of the injurious
policy or custom, “not just bald allegations that such a thing
existed.” Bess, 2013 WL 1164919, at *2.
Here, Plaintiff's allegations consist essentially of a recitation
of the inadequate medical treatment received and generic
claims that such inadequacies were a product of harmful
customs and practices or failures to train or supervise. (See
generally FAC ¶¶ 124-48; Pl. Opp. 23-27). Such boilerplate
allegations are insufficient to state a Monell claim. See Triano
v. Town of Harrison, 895 F. Supp. 2d 526, 535-37 (S.D.N.Y.
2012) (holding that “mere allegations of a municipal custom
or practice of tolerating official misconduct are insufficient to
demonstrate the existence of such a custom unless supported
by factual details”); Plair v. City of N.Y., 789 F. Supp.
2d 459, 469 (S.D.N.Y. 2011) (rejecting as inadequately
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pled the plaintiff's “conclusory” allegations that the City
“permitted, tolerated and was deliberately indifferent to a
pattern and practice of staff brutality ... which constituted
a municipal policy, practice or custom and led to plaintiff's
assault” (alterations omitted)); cf. Anderson v. City of N.Y.,
657 F. Supp. 1571, 1574 (S.D.N.Y. 1987) (“Plaintiff cannot
infer a policy from the alleged violation of his own civil
rights.”).
Plaintiff's claim for failure to train (see Pl. Opp. 26-27),
suffers from the additional pleading defect of nowhere
identifying “[a] pattern of similar constitutional violations
by untrained employees,” which is “ordinarily necessary to
demonstrate deliberate indifference for purposes of failure
to train.” Connick, 563 U.S. at 62 (internal quotation marks
omitted). Plaintiff identifies two examples of diabetic inmates
dying due to DOC negligence in recent years (see Pl. Opp.
27), but nowhere details which deficient training program
or manners of supervision caused the violations suffered by
both Plaintiff and these other inmates. Consequently, Plaintiff
fails to plead adequately that the municipal City Defendants
were aware that their training would fail to prevent the
violations here suffered by Plaintiff. See Connick, 563 U.S.
at 62 (“Without notice that a course of training is deficient
in a particular respect, decisionmakers can hardly be said to
have deliberately chosen a training program that will cause
violations of constitutional rights.”). For all of these reasons,
Plaintiff's Monell claims against the City, Corizon, and HHC
are dismissed.
3. The Court Dismisses Certain of the Claims Against
Certain of the Individual Defendants
*15 The FAC names John and Jane Does 1-25, “site
directors, physicians, nurses, physician assistants, clinicians,
therapists, and other medical staff ... employed by the City,
Corizon and/or HHC who were assigned to MDC and BPW
on the subject dates and were responsible for the provision
of appropriate medical care to patients at MDC and BPW,
including Plaintiff, on said dates” (FAC ¶ 55); as well as
John and Jane Does 26-50, “DOC officers, including but not
limited to assistant deputy wardens, captains, and correction
officers, between December 19, 2014[,] and January 14, 2015,
who participated in and/or had knowledge of and failed to
protect Plaintiff from and/or intervene in the denial of timely
and adequate medical care on those dates” (id. at ¶ 58).
As established above, the FAC plausibly pleads a deliberate
indifference claim as to the MDC Period, but not as to
the BPW Period. Accordingly, Plaintiff's § 1983 claims are
upheld as to the John and Jane Doe individual defendants
responsible for Plaintiff's care at MDC and dismissed as to
those responsible for Plaintiff's care at BPW.
The FAC also names five “senior officials” in their individual
and official capacities: (i) DOC Commissioner Ponte; (ii)
DOC Chief of Department, Martin Murphy; (iii) DOC Deputy
Commissioner of Operations Dr. Errol Toulon, Jr.; (iv) MDC
Warden Raleem Moses; and (v) BPW Deputy Warden Daniel
O'Connell. (See FAC ¶¶ 44, 50-53). Plaintiff's allegations
regarding these senior officials boil down to the claim that
“[t]hese supervisory officials knew or should have known that
the pattern of abuse set forth in the [FAC] existed in their jails
and hospital prison wards. Their failure to take measures to
curb this pattern of brutality constitutes acquiescence in the
known unlawful behavior of their subordinates.” (Pl. Opp.
22).
“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show, inter alia, the defendant's personal involvement
in the alleged constitutional deprivation.” Grullon v. City of
New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (collecting
cases); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973)
(“The rule in this circuit is that when monetary damages
are sought under § 1983, the general doctrine of respondeat
superior does not suffice and a showing of some personal
responsibility of the defendant is required.”), abrogated
on other grounds by Graham v. Connor, 490 U.S. 386,
393 (1989). A court may consider supervisory personnel
“personally involved” if a plaintiff plausibly alleges facts
showing that those defendants: (i) participated directly in
the alleged constitutional violation; (ii) failed to remedy
the wrong after being informed of it; (iii) created a policy
or custom under which unconstitutional practices occurred,
or allowed the continuance of such a policy or custom;
(iv) were grossly negligent in supervising subordinates who
committed the wrongful acts; or (v) exhibited deliberate
indifference to the rights of inmates by failing to act on
information indicating there were ongoing unconstitutional
acts. See Grullon, 720 F.3d at 139 (citing Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995)).
Plaintiff's deliberate indifference claims have been dismissed
as to the BPW Period; accordingly, there can be no
supervisory liability for those claims. Cf. Farid, 593 F.3d at
249 (recognizing that a defendant's personal involvement in
a constitutional deprivation is a prerequisite to a damages
award under § 1983); see Houston v. Schriro, No. 11 Civ. 7374
(LAP), 2014 WL 6694468, at *14 (S.D.N.Y. Nov. 26, 2014)
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(holding that there can be no supervisory liability for § 1983
claims that have been dismissed).
Turning to the MDC Period, the FAC fails to allege sufficient
facts to plausibly demonstrate the personal involvement of
the named supervisory officials. The FAC merely recites
the duties that inhere in each of the supervisor's positions
and attempts to bootstrap these responsibilities into generic
claims of personal involvement. See Colon, 58 F.3d at
874 (dismissing claim against DOCS Commissioner because
“[t]he bare fact that [he] occupies a high position in the New
York prison hierarchy is insufficient to sustain [plaintiff's]
claim”); Walker v. Schriro, No. 11 Civ. 9299 (JPO), 2013 WL
1234930, at *15 (S.D.N.Y. Mar. 26, 2013) (“A defendant's
status as warden or commissioner of a prison, standing alone,
is ... insufficient to establish personal involvement under
section 1983.”); id. (“[P]roof of ‘linkage in the prison chain
of command’ is insufficient.” (quoting Ayers v. Coughlin, 780
F.2d 205, 210 (2d Cir. 1985))); see generally Ramrattan v.
Fischer, No. 13 Civ. 6890 (KPF), 2015 WL 3604242, at *9-10
(S.D.N.Y. June 9, 2015).
*16 As discussed, the FAC fails to plead adequately any
official policy, custom or practice, or deficient training or
supervision, that led to the constitutional violation here
recognized. Likewise, the FAC fails to allege sufficient
facts concerning which of these officials were responsible
for creating which particular policies or customs, how
they were grossly negligent in supervision, or in what
specific manner they failed to act to prevent Plaintiff's
injury. Generic allegations that these officials “exercised
policymaking, supervisory, and disciplinary authority on
behalf of DOC,” are insufficient to support a finding
of supervisory liability. See Collins v. Goord, 438 F.
Supp. 2d 399, 420 (S.D.N.Y. 2006) (rejecting claims of
supervisory liability against DOC Commissioner and prison
superintendent because “entirely conclusory allegations”
claimed that officials “were aware of and acquiesced to the
unlawful practices”). Accordingly, Plaintiff's claims against
the named “senior official” defendants are dismissed.
4. The Court Dismisses Certain of Plaintiff's State
Law Claims
Plaintiff raises nine pendent state law claims in connection
with his medical care during the MDC and BPW Periods. (See
generally FAC ¶¶ 164-232). The City Defendants and HHC
make no merits argument in favor of dismissing these claims.
(See City Br. 20-21; HHC Br. 17). Rather, they presuppose
the absence of a viable federal claim and argue exclusively
that the Court should decline to exercise its supplemental
jurisdiction. (Id.).
Having upheld Plaintiff's federal claim as to the MDC Period,
the Court presently declines to dismiss the state law claims
arising from the MDC Period. By contrast, having dismissed
Plaintiff's federal claim as to the BPW Period, the Court
exercises its discretion under 28 U.S.C. § 1367 to decline
jurisdiction over Plaintiff's state-law claims for care received
during the BPW Period. See Pension Benefit Guar. Corp.
ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan
Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013).
5. Plaintiff Is Granted Leave to Amend in Part
Plaintiff requests leave to amend the FAC if the Court finds
it deficient. (See Pl. Opp. 29). This request is granted in part
and denied in part.
The Court has found that the FAC's allegations concerning
the BPW Period fail to demonstrate “a conscious disregard
of a substantial risk of serious harm,” Hill, 657 F.3d at 123
(quoting Chance, 143 F.3d at 703), and thereby fail, as a
matter of law, to state a valid claim for deliberate indifference
under the Eighth and Fourteenth Amendments. In light of the
Court's reasoning, set forth supra, the Court finds that any
effort to replead would be futile and, thus, denies Plaintiff
leave to amend the FAC with regard to the BPW Period.
See Foman v. Davis, 371 U.S. 178, 182 (1962) (holding
that leave to amend should be “freely given,” but not if
amendment would be futile); Ellis v. Chao, 336 F.3d 114, 127
(2d Cir. 2003) (“[I]t is well established that leave to amend
a complaint need not be granted when amendment would be
futile.”). Accordingly, all of Plaintiff's federal claims as to
the BPW Period are dismissed with prejudice. See Ferguson,
2012 WL 2865474, at *6 (finding municipal liability claim
a fortiori meritless where no constitutional violation found);
Houston, 2014 WL 6694468, at *14 (applying same reasoning
for supervisory liability claim). Plaintiff's state law claims
based on the BPW Period are dismissed without prejudice to
their potential refiling in state court.
With regard to the MDC Period, the Court has found that the
FAC plausibly pleads a claim for deliberate indifference in
violation of the Eighth and Fourteenth Amendments, but not
for Monell or supervisory liability based on that violation.
As currently pled, both of these theories of liability are
supported by insufficient facts and also suffer from serious
defects related to causation, e.g., that the deprivation of
care here recognized to be a constitutional violation was
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due to a specific policy, widespread practice or custom, or
training or supervision failures, see Monell, 436 U.S. at
693-94 (holding that municipal liability claim must allege that
officially adopted policy or custom caused the constitutional
violation); see also Bryan County, 520 U.S. at 403 (holding
that plaintiff must demonstrate a “direct causal link between
the municipal action and the deprivation of federal rights”).
Nonetheless, because Plaintiff did not have the benefit of
a pre-motion submission from the City Defendants before
amending his original complaint (see Tr. of Nov. 17, 2016
Pre-Motion Conf., Dkt. #40, at 17:14-19; see also Dkt. #42),
the Court grants Plaintiff leave to amend the FAC as to the
MDC Period only. In so doing, the Court expects that Plaintiff
will take seriously the pleading deficiencies discussed in this
Opinion, and will refrain from repleading these claims if those
deficiencies cannot credibly be remedied.
*17 Accordingly, Plaintiff's claims for the MDC Period
against the municipal City Defendants (City, Corizon) and the
named “senior official” Defendants (Ponte, Murphy, Toulon,
and Moses) are dismissed without prejudice to replead;
Plaintiff's claims against BPW Deputy Warden O'Connell are
dismissed with prejudice. Plaintiff's § 1983 claims are upheld
as to the John and Jane Doe healthcare workers and DOC
officers assigned to and responsible for Plaintiff's care at
MDC. (See FAC ¶¶ 55, 58). Finally, as the City Defendants
did not move to dismiss Plaintiff's state law claims based on
the merits, those claims endure insofar as they arise from the
MDC Period.
CONCLUSION
For the foregoing reasons, the City Defendants' motion to
dismiss is GRANTED IN PART and DENIED IN PART, and
HHC's motion to dismiss is GRANTED. Plaintiff is permitted
to file an amended complaint in accordance with this Opinion,
if he wishes to, on or before December 22, 2016. The City
Defendants can file an answer or other response within 21
days of the filing of the amended complaint. Thereafter, the
Court will schedule a pretrial conference in the matter.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 6902478
Footnotes
1 This Opinion draws on facts from the Amended Complaint (“FAC”, Dkt. #42), which facts are taken as true for
purposes of this motion. See Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (when reviewing
a complaint for failure to state a claim, the court will “assume all well-pleaded factual allegations to be
true” (internal quotation marks omitted)). For convenience, the City Defendants' moving brief is referred to
as “City Br.” (Dkt. #50); HHC's moving brief as “HHC Br.” (Dkt. #48); Plaintiff's brief in joint opposition as “Pl.
Opp.” (Dkt. #56); the City Defendants' reply as “City Reply” (Dkt. #58); and HHC's reply as “HHC Reply” (Dkt.
#57).
2 In an effort to be comprehensive, Plaintiff includes considerable detail in the FAC regarding his blood
chemistry during the period of his confinement, including, for example, his hemoglobin A1C levels and
milligrams of glucose per deciliter of blood (mg/dl). (See, e.g., FAC ¶¶ 70, 72, 87-88). Plaintiff also alleges
the appropriate blood sugar levels for a “well-managed” diabetic. (See id. at ¶ 85 (alleging that diabetic's
blood sugar before meals should be between 70 and 130 mg/dl; two hours after meals, should be less than
180 mg/dl; and at bedtime, should be between 90 to 130 mg/dl)). This level of medical detail is usually
presented and considered at the summary judgment stage, not on the pleadings. This Court's review of other
courts' treatment of such medical details at the pleadings stage has not revealed perfect consistency in that
treatment. The Court has considered Plaintiff's blood chemistry details, but does not believe that, in light of the
FAC's overall allegations, the inclusion or exclusion of such details would impact the deliberate indifference
analysis in this Opinion.
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3 The Second Circuit has not indicated post-Caiozzo whether a different standard applies in the civil detention
setting presented here. Cf. Calhoun v. Umeasor, No. 12 Civ. 7238 (AJN), 2014 WL 1229592, at *3 (S.D.N.Y.
Mar. 21, 2014) (finding that Caiozzo obviated the need, when conducting a deliberate indifference to medical
needs analysis, to resolve the factual issue of whether the plaintiff was criminally or civilly confined); accord
James v. Kaskiw, No. 13 Civ. 526 (DNH), 2014 WL 3845086, at *3 (N.D.N.Y. Aug. 5, 2014). Nor does Plaintiff
argue for a different standard based on his civil detention. (See FAC ¶¶ 9, 127, 152; Pl. Opp. 12-20). In light
of Caiozzo’s holding, and for ease of reference, this Opinion refers only to the Eighth Amendment deliberate
indifference framework, while recognizing that Plaintiff raises his deliberate indifference claim under both the
Eighth and Fourteenth Amendments. (See id.).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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