Nowalk v. Akshar et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KYLE JOHN NOWALK, also known as
Kyle Patrick John Nowalk,
Plaintiff,
9:25-CV-0591
v. 	(ECC/ML)
PRIME CARE MEDICAL INC., Medical/
Mental Health Care for “BCCF”; and
BROOME COUNTY,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
Kyle John Nowalk
Pro Se Plaintiff
Rochester Psychiatric Center
1111 Elmwood Avenue
Rochester, New York 14620-3005
BARCLAY DAMON, LLP 	PAUL A. SANDERS, ESQ.
Counsel for Defendants Prime Care
Medical and Broome County
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 Kyle John Nowalk
(“Plaintiff”) against defendants Prime Care Medical Inc., and Broome County (collectively
“Defendants”), is Defendants’ motion to dismiss for failure to state a claim upon which relief
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may be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 16.) For the reasons set forth
below, I recommend that Defendants’ motion to dismiss be denied.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
In her Decision and Order dated August 11, 2025, United States District Judge Elizabeth
C. Coombe thoroughly outlined the factual allegations contained in Plaintiff’s Amended
Complaint. (Dkt. No. 10 at 2-4.) Plaintiff alleges that from February 6, 2025, through the time
that he commenced the action on or about May 12, 2025, Plaintiff had been incarcerated at
Broome County Jail (“BCJ”). (Dkt. No. 9 at 1.) The Amended Complaint alleges that while
incarcerated, Plaintiff was denied medication to cure his chronic Hepatitis C because the
medication is too expensive, and Plaintiff’s liver has been damaged as a result. (Id. at 1-2.) At
this procedural posture, Plaintiff asserts medical indifference claims pursuant to the Fourteenth
Amendment against Defendants. (Dkt. No. 10 at 5-6; see generally Dkt. No. 9.)
B. 	Parties’ Briefing on the Motion to Dismiss
1. 	Defendants’ Motion to Dismiss
Generally, in support of their motion to dismiss, Defendants assert that Plaintiff has failed
to allege a Monell claim against them. (See generally Dkt. No. 16, Attach. 4.) More specifically,
Defendants argue that a single alleged incident is insufficient to satisfy Monell and the Amended
Complaint fails to allege a formal policy or widespread custom or practice. (Dkt. No. 16, Attach.
4 at 7-8.)
2. 	Plaintiff’s Response
Generally, in opposition to Defendants’ motion to dismiss Plaintiff asserts that since 2022
he has been seeking medication from Defendants to cure his Hepatitis C but has been informed
that it is too expensive. (Dkt. No. 19 at 1.) In his opposition, Plaintiff attached medical records
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that he asserts reflect abnormal liver enzyme levels due to his Hepatitis C. (Id. at 1-2.) Plaintiff
asserts that his rights were violated by Defendants refusing to cure his Hepatitis C. (Id. at 2.)
3. 	Defendants’ Reply
Generally, in further support of their motion to dismiss, Defendants assert that Plaintiff’s
opposition merely restates the conclusory allegations in the Amended Complaint and fails to
allege facts plausibly suggesting a policy, custom, or practice that amounts to a constitutional
violation. (Dkt. No. 23 at 2-3.) Defendants argue that Plaintiff does not identify other incidents
involving similarly situated inmates that amounted to a widespread deprivation of providing
medication and “it is well settled that a single alleged incident is insufficient to satisfy Monell.”
(Id. at 3.) Moreover, Defendants argue that the medical records attached to Plaintiff’s opposition
show an improvement of Plaintiff’s liver enzyme levels over time, “signaling a marked
improvement without the use of antiviral medications.” (Id.)
II. 	LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between
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permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).1
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
1 	Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v.
Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.).
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Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here 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.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
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possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
However, “in a pro se case, the court must view the submissions by a more lenient
standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated
to “‘make reasonable allowances to protect pro se litigants’” from inadvertently forfeiting legal
rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a
result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint]
broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
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four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.2
Moreover, “a pro se plaintiff’s papers in response to a defendant’s motion to dismiss for failure
to state a claim may be considered as effectively amending the allegations of his complaint—to
the extent those papers are consistent with the allegations in the complaint.” See Drake v. Delta
Airlines, Inc., 147 F.3d 169, 170, n. 1 (2d Cir. 1998) (per curiam) (“[W]e deem Drake’s
2 	See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573,
2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to
dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.
R. Civ. P. 12[d] if the “matters outside the pleadings” in consideration consist of [1] documents
attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may never[the]less consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant’s motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
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complaint to include the facts contained in his memorandum of law filed in response to Delta’s
1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (“In his affidavit
submitted in opposition to defendants’ motion to dismiss, Gill asserts that Mooney’s actions
amounted to deliberate and willful indifference. Liberally construed under pro se pleading
standards, Gill’s allegations against Mooney involve more than ordinary lack of due care for the
prisoner’s interests or safety, . . . and therefore state a colorable claim under the Eighth and
Fourteenth Amendments.”) (internal quotation marks and citation omitted); Donhauser v. Goord,
314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Sharpe, M.J.) (“[I]n cases where a pro se plaintiff is
faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the
complaint to the extent they “are consistent with the allegations in the complaint.”) (collecting
district court cases), vacated on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004) (Hurd, J.).
III. 	ANALYSIS
After carefully considering the matter, I recommend that Defendants’ motion to dismiss
be denied.
As Judge Coombe set forth in her Decision and Order dated August 11, 2025:
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 Fed. 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 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,
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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)).
(Dkt. No. 10 at 4-5.)
Contrary to Defendants’ contention, a single incident of unconstitutional activity may be
sufficient to impose liability under Monell, if the incident includes proof that it was caused by an
existing, unconstitutional municipal policy that can be attributed to a municipal policymaker.
Vasquez v. Cnty. of Rockland, 13-CV-5632, 2020 WL 883514, at *14 (S.D.N.Y. Feb. 24, 2020)
(quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)).
Notwithstanding, the Amended Complaint alleges that Plaintiff was repeatedly denied
Hepatitis C medication while incarcerated at BCJ because the medication is too expensive. (Dkt.
No. 9 at 1-2.) Construed liberally, the Amended Complaint alleges that Defendants have a
policy of not administering medication to incarcerated individuals if the cost of the medication
surpasses a monetary threshold. (Id. at 2.)
Courts within the Second Circuit have found that denying medication based on budget
constraints rather than medical needs can establish a deliberate indifference claim. See Colon v.
Cnty. of Nassau, 12-CV-4466, 2014 WL 4904692, at *7 (E.D.N.Y. Sept. 26, 2014) (finding that
the denial of psychiatric medication based on a budget rather than medical needs could establish
the mens rea prong of a deliberate indifference claim); see also Daniels v. Mueller, 23-CV-5654,
2025 WL 949842, at *26 (S.D.N.Y. Mar. 28, 2025) (concluding that “the Court of Appeals has
spoken sufficiently clearly in holding that inmates have [a constitutional] right not to have prison
officials rely on a policy to reject a request for medication when the officials know it might be
medically appropriate to prescribe the medication instead.”); Donohue v. Manetti by Armor Corr.
Health Servs., 15-CV-0636, 2025 WL 974347, at *16 (E.D.N.Y. Mar. 31, 2025) (holding that a
jury could find “credible Plaintiff’s testimony that Dr. Manetti chose not to prescribe Plaintiff
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medication because of his reliance on a purported . . . policy” and thus, could find a deliberate
indifference claim).
Although the allegations contained in the Amended Complaint are sparse, I find that they
sufficiently allege—albeit barely—that Defendants’ policy of denying him medication to cure
his Hepatitis C violated his constitutional rights. As a result, I recommend that the Court deny
Defendants’ motion to dismiss for failure to state a claim upon which relief may be granted.3
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendants’ motion to dismiss for failure to state a claim upon
which relief may be granted (Dkt. No. 16) be DENIED; 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.4
3 	The undersigned notes that if the Amended Complaint is instead construed as alleging a
Monnell claim against Defendants based on a failure-to-train theory, it likely should be dismissed
because the Amended “Complaint does not allege any prior incidents of improper [Hepatitis C
medication] administration resulting in death or serious injury at [BCJ]. In addition, the
[Amended] Complaint’s allegations do not fall into the ‘narrow range of circumstances’ where
failure-to-train liability can result from a single incident because the [Amended] Complaint does
not allege, for example, that detainees regularly receive [Hepatitis C medication] or that death or
serious injury is a highly predictable result of that medication.” Nason v. Franklin Cnty., 25-CV-
0435, 2026 WL 759440, at *8 (N.D.N.Y. Mar. 18, 2026) (Coombe, J.) (citing Connick v.
Thompson, 563 U.S. 51, 63 (2011)).
4 	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.5 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: April __, 2026
Binghamton, New York
5 	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).
28
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Colon v. County of Nassau, Not Reported in F.Supp.3d (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Vassallo v. City of New York, S.D.N.Y., November 22,
2016
2014 WL 4904692
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Randy COLON, Hugh Smith, Edward Vaiana,
Elvi Rodriguez, and Tyron Maynor, Plaintiffs,
v.
COUNTY OF NASSAU; Michael J. Sposato,
Sheriff of Nassau County; Armor Correctional
Health, Inc.; Dr. Kay, M.D.; Dr. Omanu, M.D.;
Dr. Vincent Manetti, M.D.; Nurse Administrator
Hailey; Dr. Santarelli, D .D.S., Defendants.
No. 12–CV–4466 (JS)(SIL).
|
Signed Sept. 26, 2014.
Attorneys and Law Firms
Randy Colon, Elvi Rodriguez, Tyron Maynor, East Meadow,
NY, Hugh Smith, Edward Vaiana, Altona, NY, pro se.
Pablo A. Fernandez, Esq., Nassau County Attorney's Office,
Mineola, NY, for the County Defendants.
John J. Doody, Esq., Suzanne E. Aribakan, Esq., Lewis
Brisbois Bisgaard & Smith, LLP, New York, NY, for the
Armor Defendants.
MEMORANDUM & ORDER
SEYBERT, District Judge.
*1 Currently before the Court is a motion to dismiss
filed by defendants Dr. Kay, M.D.; Dr. Omanu, M.D.; Dr.
Vincent Manetti, M.D.; Nurse Administrator Hailey, R.N.;
Dr. Santarelli, D.D.S. (collectively, the “Individual Armor
Defendants”); and Armor Correctional Health, Inc. (“Armor,”
and together with the Individual Armor Defendants, the
“Armor Defendants”). For the following reasons, the Armor
Defendants' motion is GRANTED IN PART and DENIED IN
PART.
BACKGROUND 1
I. Factual Background
Pro se plaintiffs Randy Colon (“Colon”), Hugh Smith
(“Smith”), Edward Vaiana (“Vaiana”), Elvi Rodriguez
(“Rogriguez”), and Tyron Maynor (“Maynor”) (collectively,
“Plaintiffs”) 2 are a group of former and current inmates
incarcerated at the Nassau County Correctional Center
(the “NCCC”). Plaintiffs assert various federal and state
law claims against the Armor Defendants and additional
defendants Nassau County (the “County”) and the Nassau
County Sheriff, Michael J. Sposato (“Sposato”) (collectively,
“Defendants”), arising out of Defendants' alleged failure to
provide adequate medical care to Plaintiffs while housed
at the NCCC. The Complaint alleges various purported
violations and is organized into sections by the particular
claim and/or defendant. In reciting the facts, the Court will
draw from the Complaint's structure.
A. The County's Contract with Armor
On June 1, 2011, the County and Sposato entered into
a contract with Armor, a “Florida-based health care
corporation,” for Armor to provide medical services for the
inmates at the NCCC. (Compl. at 8 3 , ¶¶ 1, 4.) According
to Plaintiffs, the contract “confines” Armor to a $25 million
budget, which covers “all costs and fees for medications,
salaries, supplies, and even community based health care
services ... and tests and procedures.” (Compl. at 9, ¶ 5.)
Plaintiffs claim that the contract, because it subjects Armor to
a fixed budget, causes Armor “to cut costs wherever possible”
in order to maximize profit, which in turn results in “sub-
standard” healthcare services. (Compl. at 10,
¶ 7.) This, Plaintiffs contend, constitutes deliberate
indifference to the medical needs of the inmates at the NCCC
in violation of the Eighth and Fourteenth Amendments.
B. Dr. Kay
The Complaint also makes the following allegations against
Defendant Dr. Kay. Dr. Kay is the Chief Medical Officer of
the NCCC. (Compl. at 10, ¶ 11.) Plaintiffs allege generally
that, as the Chief Medical Officer, Dr. Kay “adheres to and
enforces” Armor's “company policy” of limiting “medication
dispensing and prescribing” within the budget for the NCCC
“notwithstanding medical need.” (Compl. at 10–11, ¶ 11.)
Plaintiff Smith alleges that Dr. Kay refused to order batteries
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Colon v. County of Nassau, Not Reported in F.Supp.3d (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
for his hearing aids despite the fact that Smith was “in
possession of” medical records that demonstrate that he
requires hearing aids. (Compl. at 11–12, ¶ 14 .) Additionally,
Smith claims that he has “documented” podiatric issues and
is a type 2 diabetic but Dr. Kay “refuses” to send him for
a podiatric or ophthalmological consult. (Compl. at 12, ¶
15.) Plaintiff Colon similarly alleges that he is a type 1
diabetic and that Dr. Kay has “consistently denied podiatric
and ophthalmological preventative care.” (Compl. at 12, ¶
17.) Based on these allegations, Smith and Colon claim that
Dr. Kay was deliberately indifferent to their medical needs in
violation of the Eighth and Fourteenth Amendments and that
he committed medical malpractice under New York state law.
C. Dr. Manetti
*2 The Complaint makes the following allegations against
Dr. Manetti. Dr. Manetti is employed by Armor as a
staff psychiatrist at the NCCC. (Compl. at 14, ¶ 23.)
Plaintiffs allege generally that inmates at the NCCC
with documented psychiatric history “have been denied
psychoactive medication” “based on Armor's strict budget
policies.” (Compl. at 14, ¶ 24.) For example, Plaintiff
Rodriguez alleges that when he was previously housed at the
NCCC, he “was given psych[o]active medication” but that Dr.
Manetti later told him “well, since Armor doesn't want to pay
for it, I guess you don't need it.” (Compl. at 14, ¶ 25.) Plaintiff
Smith similarly alleges that he was denied psychoactive
medication “based on Armor's strict budget policies” despite
a “well documented 10 year psych history.” (Compl. at 14,
¶ 24.) Based on these allegations, Smith and Rodriguez claim
that Dr. Manetti was deliberately indifferent to their medical
needs in violation of the Eighth and Fourteenth Amendments
and that he committed medical malpractice under New York
state law.
D. Nurse Administrator Hailey
The Complaint makes the following allegations against Nurse
Administrator Hailey (“Nurse Hailey”). Plaintiffs allege
that Nurse Hailey “consistently overrules tests, procedures,
consults, and other treatments deemed medially necessary
by Licensed Physicians and Specialized Care Practitioners,”
despite the fact that her nursing license limits her to the
practice of nursing. (Compl. at 15–16, ¶¶ 29–31.) Plaintiff
Maynor claims that a physician at the NCCC referred him
to the Nassau University Medical Center (“NUMC”) for
his elbow. (Compl. at 16, ¶ 32.) Although a physician at
the NUMC opined that surgery for Maynor's elbow was
“medically necessary,” Nurse Hailey “decided unilaterally
that the operation was not medically necessary.” (Compl. at
16, ¶¶ 33, 34.) Based on these allegations, Maynor claims
that Nurse Hailey was deliberately indifferent to his medical
needs in violation of the Eighth and Fourteenth Amendments
and that she “is guilty of practice of medicine without a
license.” (Compl. at 15.)
E. Dr. Santarelli
The Complaint makes the following allegations against Dr.
Santarelli. Dr. Santarelli is a dentist employed by Armor.
(Compl. at 19, ¶¶ 43–44.) Plaintiffs allege generally that
Dr. Santarelli refuses to provide “preventative dentistry”
except for inmates sentenced as county prisoners and that
he performs extractions and other painful procedures without
administering anesthesia. (Compl. at 19, ¶¶ 44, 46.) Smith
alleges that after he chipped his tooth in August 2012, Dr.
Santarelli filed the damaged tooth with a drill without first
administering anesthesia and then refused to give him Tylenol
for the pain. (Compl. at 20, ¶¶ 47–48.) Based on these
allegations, Smith claims that Dr. Santarelli was deliberately
indifferent to his medical needs in violation of the Eighth
and Fourteenth Amendments and that he committed dental
malpractice.
F. Privacy Claims
*3 Plaintiffs also allege that Armor staff “constantly
permit[ ] correction staff [to] access Confidential Medical
Records” and discuss “Mental Health and HIV-related-
and other confidential health matters-with the correctional
staff, without express written consent.” (Compl. at 18, ¶
41.) For example, on August 15, 2012, Captain Ford, the
Chief Administrative Officer, told Plaintiff Vaiana “that
the ‘Facility Physician’ discussed with him details of
[Vaiana's] medical conditions ... without written consent
or release.” (Compl. at 18–19, ¶ 42.) Based on these
allegations, Vaiana contends that the County, Sposato, and
Armor have violated the Health Information Portability and
Accountability Act (“HIPAA”) and “other state and Federal
privacy laws [that] prohibit the dissemination of Confidential
Medical Information to any third party.” (Compl. at 18, ¶ 40.)
The Complaint also states the Court “may wish to consider”
a “conspiracy against rights” claim as well as a civil claim
under the Racketeer Influenced and Corrupt Organizations
Act (“RICO”). (Compl. at 20–21, ¶ 51.)
G. Injunctive and Declaratory Relief
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The Complaint also seeks various forms of injunctive
and declaratory relief. Specifically, the Complaint seeks “a
preliminary and permanent injunction, enjoining, prohibiting
and restraining enforcement of the contract” between
the County and Armor. (Compl. at 28.) It also seeks
a judgment declaring (1) that the contract violates the
Eighth and Fourteenth Amendments and thus is illegal and
unenforceable; (2) that the Individual Armor Defendants are
“guilty” of medical malpractice and deliberate indifference;
and (3) that Defendants “violate Plaintiffs' rights under
HIPAA and other Federal and state privacy laws.” (Compl. at
26–27.)
II. Procedural History
On December 3, 2012, mail sent by the Court to Plaintiffs
Vaiana, Rodriguez, and Maynor at the NCCC was returned
as undeliverable with notations that these plaintiffs were
“DISCHARGED.” (Docket Entries 25–27.) However, Vaiana
subsequently filed a notice of change of address on April
10, 2014, respectively advising the Court that he had been
transferred to the Altona Correctional Facility (the “ACF”) in
Altona, New York. (Docket Entry 54.) Rodriguez and Maynor
have not updated their addresses.
On December 6, 2013, the Armor Defendants moved to
dismiss this action for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 50.)
Plaintiffs have not submitted oppositions. This motion is
currently pending before the Court.
DISCUSSION
The Court pauses for a moment to note that it is fully aware
that Plaintiff Miller, who has been terminated, was likely the
driving force behind the filing of this action. He drafted and
filed the Complaint—as he has done for other inmates in the
past, see, e.g., Burroughs v. Cnty. of Nassau, No. 13–CV–
6784, 2014 WL 2587580, at *5 (E.D.N.Y. June 9, 2014)—and
none of the remaining Plaintiffs have filed an opposition to the
Armor Defendants' motion to dismiss. Additionally, Plaintiffs
Rodriguez and Maynor have failed to update their addresses
with the Court, and nearly two years elapsed before Plaintiff
Vaiana finally provided his updated address after he left the
NCCC. The Court makes these points not as an indictment
with respect to the merits of Plaintiffs' claims, but instead, as
a warning that a failure to prosecute this action, including the
failure to apprise the Court of any future address changes in a
timely fashion or at all, may result in dismissal of this action.
That aside, the Court will turn to the Armor Defendants'
motion. The Court will first set forth the applicable legal
standard before turning to the motion specifically.
I. Legal Standard
*4 In deciding a Rule 12(b)(6) motion to dismiss, the
Court applies a “plausibility standard,” which is guided by
“[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007); accord Harris v. Mills, 572 F.3d 66,
71–72 (2d Cir.2009). First, although the Court must accept
all allegations as true, this “tenet” is “inapplicable to legal
conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d
at 72. Second, only complaints that state a “plausible claim
for relief” can survive a Rule 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679. Determining whether a complaint
does so is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Id.; accord Harris, 572 F.3d at 72. Because Plaintiffs are
litigating pro se, the Court construes the Complaint liberally.
See, Mancuso v. Hynes, 379 F. App'x 60, 61 (2d Cir.2010).
II. Failure to Exhaust Administrative Remedies
The Armor Defendants initially argue that the Complaint
should be dismissed because Plaintiffs have failed to exhaust
their administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”). (Armor's Br., Docket Entry
51, at 8–9.) The Court disagrees.
The PLRA states in relevant part: “No action shall be brought
with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). This exhaustion requirement “applies to
all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532, 122 S.Ct. 983, 984, 152 L.Ed.2d 12 (2002).
Here, Plaintiffs allege that “[e]ach of the issues has been
grieved through the facility process, by one Plaintiff or
another.” (Compl. at 2.) Nonetheless, the Armor Defendants
argue that the Complaint should be dismissed because “there
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is no indication of when or t[o] whom the grievances
were made, no allegations of the outcome of these
purported grievances[,] or that any of the plaintiffs undertook
further action to complain of or appeal any purported
inaction.” (Armor's Br. at 9.) However, failure to exhaust is
an affirmative defense, and the Supreme Court has held that
“inmates are not required to specially plead or demonstrate
exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199,
216, 127 S.Ct. 910, 912, 166 L.Ed.2d 798 (2007). “Dismissal
under Rule 12(b)(6) for failure to exhaust is thus appropriate
only where nonexhaustion is apparent from the face of
the complaint.” Roland v. Smith, 907 F.Supp.2d 385, 388
(S.D.N.Y.2012) (citing McCoy v. Goord, 255 F.Supp.2d 233,
251 (S.D.N.Y.2003)). Here, non-exhaustion is not clear from
the face of the Complaint. In fact, the Complaint specifically
alleges that Plaintiffs grieved “each of the issues.” (Compl. at
2.) Accordingly, the Armor Defendants' motion to dismiss on
the ground of failure to exhaust is DENIED.
III. Section 1983
*5 The Armor Defendants next argue that, even if Plaintiffs
have exhausted their administrative remedies, Plaintiffs have
otherwise failed to state claims for deliberate indifference
to their medical needs under 42 U.S.C. § 1983 (“Section
1983”). (Armor's Br. at 9–18.) The Court will first set forth the
applicable law and then separately address whether Plaintiffs
have sufficiently stated claims against each of the Individual
Armor Defendants and against Armor.
A. Applicable Law
Section 1983 states that:
[e]very person 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,
shall be liable to the party injured ....
42 U.S.C. § 1983. To state a Section 1983 claim, a plaintiff
must allege (1) that the challenged conduct was “committed
by a person acting under color of state law,” and (2) that
such conduct “deprived [the plaintiff] of rights, privileges, or
immunities secured by the Constitution or laws of the United
States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.2010)
(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994)).
Section 1983 does not create any independent substantive
right. Rather, it is a vehicle to “redress ... the deprivation of
[federal] rights established elsewhere.” Thomas v. Roach, 165
F.3d 137, 142 (2d Cir.1999); see also Rosa R. v. Connelly, 889
F.2d 435, 440 (2d Cir.1989).
Here, Plaintiffs claim that the Armor Defendants were
deliberately indifferent to their medical needs in violation
of the Eighth and Fourteenth Amendments. 4 To state a
claim of deliberate indifference to an inmate's medical needs,
a plaintiff must plead two elements: (1) that the alleged
deprivation of medical care was “sufficiently serious” and
(2) that the defendant acted with deliberate indifference, i.e.,
“the charged official must [have] act[ed] with a sufficiently
culpable state of mind.” See Salahuddin v. Goord, 467 F.3d
263, 279–81 (2d Cir.2006).
To determine whether a deprivation is “sufficiently serious,”
the Court must make two inquires. The first inquiry is whether
“the prisoner was actually deprived of adequate medical
care,” keeping in mind that “the prison official's duty is only
to provide reasonable care.” Id. at 279. The second inquiry,
which is an objective question, “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.” Id. at 280.
The second requirement of a deliberate indifference claim
—i.e., that “the charged official ... act[ed] with a sufficiently
culpable state of mind”—is a subjective question. Id. “[T]he
official's state of mind need not reach the level of knowing
and purposeful infliction of harm; it suffices if the plaintiff
proves that the official acted with deliberate indifference
to inmate health.” Id. Deliberate indifference is “equivalent
to subjective recklessness, as the term is used in criminal
law.” Id. In other words, “[t]his mental state requires that
the charged official act or fail to act while actually aware
of a substantial risk that serious inmate harm will result.”
Id. However, “the risk of harm must be substantial and the
official's actions more than merely negligent.” Id. With these
standards in mind, the Court will turn to the allegations
against the Armor Defendants.
B. The Individual Armor Defendants
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*6 The Armor Defendants assert that Plaintiffs have not
sufficiently alleged deliberate indifference claims against the
Individual Armor Defendants. (Armor's Br. at 10–17.) The
Court agrees in part and disagrees in part as discussed below.
1. Dr. Kay
The Complaint alleges that Dr. Kay was deliberately
indifferent to Smith's and Colon's medical needs by (1)
refusing to order batteries for Smith's hearing aids; (2)
refusing to send Smith for a podiatric or ophthalmological
consult; and (3) “consistently” denying Colon podiatric and
ophthalmological “preventative care.” (Compl. at 10–13.)
The Armor Defendants first argue that Smith's and
Colon's allegations regarding the denial of podiatric and
ophthalmological care are insufficient to state a deliberate
indifference claim against Dr. Kay because “the Complaint
concedes that the underlying conditions [of diabetes] are
not serious, but rather are potentially life threatening
issues.” (Armor's Br. at 12 (emphasis in original) (citing
Compl. ¶ 20).) This argument is easily dismissed. Courts in
this Circuit have held that “diabetes is a sufficiently serious
medical condition to meet the objective prong” of a deliberate
indifference claim. Beatty v. Davidson, 713 F.Supp.2d 167,
174 (W.D.N.Y.2010) (collecting cases). Moreover, it is
irrelevant that the Complaint alleges that Smith's and Colon's
conditions were only “potentially” life threatening because a
condition does not need to be life threatening to form the basis
of a deliberate indifference claim. See Regeda v. City of N .Y.,
No. 09–CV–5427, 2012 WL 7157703, at *7 (E.D.N.Y. Sept.
7, 2012) (“[T]he defendants' argument that conditions that do
not threaten death or basic functioning are not sufficiently
serious is inaccurate because a prisoner does not have to
suffer ‘extreme pain’ or a degenerative condition in order to
meet the legal standard for objective seriousness.”), adopted
by 2013 WL 619567 (E.D.N.Y. Feb. 19, 2013); see also
Mims v. Ufland, No. 07–CV–1926, 2007 WL 4208582, at *3
(S.D.N.Y. Nov. 21, 2007) (“The ‘seriousness' inquiry ... is
‘ill-suited for resolution at the pleading stage and will have
to await summary judgment proceedings, at which point a
fully developed medical record will inform the court as to
the nature of the inmate's condition.’ “ (quoting Smith v.
Carpenter, 316 F.3d 178, 188 n. 14 (2d Cir.2003)). Thus,
Smith and Colon have alleged sufficient facts to satisfy
the objective prong of their deliberate indifference claims
regarding the alleged denial of diabetes treatment.
The Armor Defendants also argue that Smith and Colon
have not satisfied the subjective prong of their deliberate
indifference claim because they have not pleaded facts “upon
which a plausible inference may be inferred that Dr. Kay
was aware that” denying podiatric and ophthalmological
care “posed a risk” to “Smith and/or Colon's health or
safety.” (Armor's Br. at 12.) The Court disagrees. Construing
the Complaint liberally, as it must, Smith and Colon
suggest that Dr. Kay denied treatment because of budgetary
constraints. If this is true and if the treatments at issue
were medically necessary, this allegation could support a
conclusion that Dr. Kay was deliberately indifferent to Smith's
and Colon's medical needs. See Liner v. Fischer, No. 11–
CV–6711, 2013 WL 4405539, at *21 (S.D.N.Y. Aug. 7,
2013) (denying motion to dismiss deliberate indifference
claim because “[i]f, 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”); Stevens v. Goord, 535
F.Supp.2d 373, 388 (S.D.N.Y.2008) ( “While disagreements
regarding choice of treatment are generally not actionable
under the Eighth Amendment, judgments that have no sound
medical basis, contravene professional norms, and appear
designed simply to justify an easier course of treatment (in
this case, no treatment) may provide the basis of a claim.”).
Thus, Smith and Colon have alleged sufficient facts to satisfy
the subjective prong of their deliberate indifference claims
regarding the alleged denial of diabetes treatment.
*7 The Court also finds that Smith has alleged sufficient
facts to support a deliberate indifference claim regarding the
alleged denial of batteries for his hearing aids. Plaintiff alleges
that his medical record “shows that he requires hearing aids ...
and Dr. Kay ... refuse[s] to order batteries.” (Compl. at 12, ¶
14.) Although scant, these allegations could support a claim of
deliberate indifference to a serious medical need. See Wheeler
v. Butler, 209 F. App'x 14, 15 (2d Cir.2006) (“[T]he District
Court erred in failing to consider whether the deprivation
of Wheeler's hearing aids could, in and of itself, amount to
cruel and unusual punishment ....”); Degrafinreid v. Ricks,
417 F.Supp.2d 403, 412 (S.D.N.Y.2006) (denying motion
to dismiss deliberate indifference claim regarding denial of
hearing aids), granting reconsideration on other grounds, 452
F.Supp.2d 328 (S.D.N.Y.2006).
In sum, Smith and Colon have stated plausible claims of
deliberate indifference based on the alleged denial of diabetes
treatment and hearing aid batteries. Accordingly, the Armor
Defendants' motion to dismiss Smith's and Colon's claims
against Dr. Kay is DENIED.
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2. Dr. Manetti
The Complaint alleges that Dr. Manetti was deliberately
indifferent to Rodriguez's and Smith's medical needs when
he denied them “psychoactive medication.” (Compl. at 13–
15.) The Armor Defendants move to dismiss these claims
for substantially the same reasons as the claims against Dr.
Kay. They argue that the Complaint does not raise plausible
inferences that the denial of care was “sufficiently serious”
and that Dr. Manetti was aware that the denial of medication
posed a risk to Rodriguez's and Smith's health and safety.
(Armor's Br. at 14–15.) The Court again disagrees.
The Complaint alleges that Rodriguez “was given
psych[o]active medication” but that Dr. Manetti told him
“well, since Armor doesn't want to pay for it, I guess you
don't need it.” (Compl. at 14, ¶ 25.) If true, the fact that
Rodriguez was previously treated for a psychiatric condition
with medication would clearly indicate that his condition was
serious. See Hamm v. Hatcher, No. 05–CV–0503, 2013 WL
71770, at *8 (S.D.N.Y. Jan. 7, 2013) (“Courts have repeatedly
held that treatment of a psychiatric or psychological condition
may present a serious medical need.”). Moreover, if Dr.
Manetti subsequently denied Rodriguez medication based
solely on Armor's budget, and not on actual medical need,
Rodriguez could also establish the subjective prong of a
deliberate indifference claim. Smith's allegations, although
not as compelling as Rodriguez's, also state a deliberate
indifference claim because he alleges that he was denied
psychoactive medication despite a “well documented 10
year psych history” “[b]ased on Armor's strict budget
policies.” (Compl. at 14, ¶ 24.)
In sum, Smith and Rodriguez have stated plausible claims
of deliberate indifference based on the alleged denial
of medication for their alleged psychiatric conditions.
Accordingly, the Armor Defendants' motion to dismiss
Rodriguez's and Smith's deliberate indifference claims
against Dr. Manetti is DENIED.
3. Nurse Hailey
*8 The Complaint alleges that Nurse Hailey was
deliberately indifferent to Maynor's medical needs when
she “decided unilaterally” that he did not need surgery for
his elbow notwithstanding the fact that a “specialized care
provider” at the NUMC opined that surgery was “medically
necessary.” (Compl. at 15–17.)
The Armor Defendants argue that this claim must be
dismissed because it “amounts to nothing more than a
difference of opinion in the course of treatment between two
medical professionals, which does not rise to the level of
a constitutional violation.” (Armor's Br. at 15.) The Court
disagrees. Although it is true that “disagreements” over
medical treatment “implicate medical judgments and not the
Eighth Amendment,” Wright v. Genovese, 694 F.Supp.2d 137,
155 (N.D.N.Y.2010), aff'd, 415 F. App'x 313 (2d Cir.2011),
the Complaint does not simply allege a disagreement between
a physician and an inmate over medical treatment. Rather,
the Complaint alleges that Nurse Hailey-who is not a
physician and who is not authorized to overrule a physician's
medical opinion-“decided unilaterally,” “without even seeing
or examining” Maynor, that Maynor's surgery was not
“medically necessary” despite the fact that a doctor opined
that it was. (Compl.¶¶ 33–35.) Thus, the cases regarding
disagreements in medical treatment are inapplicable here.
The Court finds that these allegations state a claim of
deliberate indifference. If a physician opined that surgery
for Maynor's elbow was “medically necessary,” then Maynor
could establish that his elbow condition was “sufficiently
serious” under the objective prong of the deliberate
indifference claim. Additionally, if Nurse Hailey decided
that surgery was not necessary even though she was not
qualified to make such a determination, then Maynor could
also establish that she acted with deliberate indifference
to Maynor's health. See Stevens, 535 F.Supp.2d at 388.
Accordingly, the Armor Defendants' motion to dismiss
Maynor's claim arising out of Nurse Hailey's alleged denial
of elbow surgery is DENIED.
4. Dr. Santarelli
The Complaint alleges that Dr. Santarelli was deliberately
indifferent when he filed Smith's chipped tooth with a drill
without administering anesthesia or giving him Tylenol.
(Compl. at 19–20.) As discussed below, the Court finds that
this allegation does not state a deliberate indifference claim.
“The Cruel and Unusual Punishments Clause of the Eighth
Amendment imposes a duty upon prison officials to ensure
that inmates receive adequate medical care.” Salahuddin, 467
F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 832,
844, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)). Here, the
Complaint does not allege that Dr. Santarelli failed to address
Smith's medical need—i.e., the need for tooth repair. Rather,
Smith appears to disagree with Dr. Santarelli's decision to
drill his tooth without anesthesia. In this regard, courts have
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found that the administration of anesthesia for minor medical
procedures is not a serious medical need implicating the Eight
Amendment. As the Court in Bout v. Bolden, 22 F.Supp.2d
646 (E.D.Mich.1998), aff'd 225 F.3d 658 (6th Cir.2000)
explained:
*9 Plaintiff's “serious medical need”
was not for anesthesia, but rather for
tooth repair. Plaintiff's disagreement
with the course of treatment-the
decision to drill without anesthesia
rather than further delay treatment
given the minor nature of the repair
and relatively brief period of pain
—does not state a constitutional
claim. Had [the dentist] gratuitously
drilled plaintiff's teeth for no good
medical reason, then the evidence
would clearly support a finding of
willful and wanton infliction of pain
and plaintiff would have supported
a direct claim for cruel and unusual
punishment contrary to the Eighth
Amendment. However, where pain
was an incidental part of a dentist's
chosen course of treatment, the
question is not whether [the dentist]
was indifferent to the incidental pain,
but rather whether he was indifferent
to plaintiff's existing dental condition.
Plaintiff conceivably may have some
other claim against [the dentist]-
for battery, perhaps, for malpractice,
perhaps-but he does not have a
constitutional claim arising out of his
treatment ....
22 F.Supp.2d at 651; see also Buchanan v. United States,
No. 05–CV–0887, 2007 WL 983312, at *4 (M.D.Pa. Mar.
27, 2007) (dismissing as not cognizable inmate's claim “that
the deliberate decision not to administer anesthesia or pain
killing medicine [before cleaning and suturing a laceration]
subjected him to unnecessary pain in violation of the
Eighth Amendment's prohibition against cruel and unusual
punishment”). The Court is persuaded by the reasoning of
these cases. Here, Smith alleges no facts to suggest that
Dr. Santarelli engaged in cruel and unusual punishment in
violation of the Eight Amendment. Smith might have a claim
under some other theory of liability but he does not have
a constitutional claim arising out of his dental treatment
as currently pleaded. Accordingly, the Armor Defendants'
motion to dismiss Smith's claim regarding Dr. Santarelli's
alleged decision to drill his tooth without anesthesia is
GRANTED and this claim is DISMISSED.
C. Armor
The Complaint also alleges that Armor itself was deliberately
indifferent to Plaintiffs' medical needs based upon the alleged
conduct of the Individual Armor Defendants. (Compl. at
17, ¶ 37.) The Armor Defendants move to dismiss this
claim, arguing that Plaintiffs “do not identify an unlawful
or unconstitutional Armor policy or practice” sufficient to
subject it to liability based on the alleged actions of its
employees. (Armor's Br. at 18.) The Court disagrees.
“Anyone whose conduct is ‘fairly attributable to the state’
can be sued as a state actor under § 1983.” Filarsky v.
Delia, 132 S.Ct. 1657, 1661, 182 L.Ed.2d 662 (2012). Thus,
a private employer acting under color of state law may be
held liable under Section 1983 for the acts of its employees
where the unconstitutional act was authorized or undertaken
pursuant to the official policy of the private entity employer
and the employer was jointly engaged with state officials or
its conduct is chargeable to the state. See Cofield v. Armor
Corr. Health, No. 12–CV–1394, 2012 WL 1222326, at *2
(E.D.N.Y. Nov. 2, 2012) (citations omitted).
*10 Armor does not contend that its conduct is not “fairly
attributable to the state.” Rather, as noted above, it argues
that Plaintiffs have not identified an official policy sufficient
to trigger Section 1983 liability. However, the Complaint
alleges generally that the contract between it and the County
subjects Armor to a fixed budget and that Armor consequently
“cut[s] costs wherever possible” in order to maximize
profit. (Compl. at 10, ¶ 7.) In addition, the Complaint also
alleges that Dr. Kay “adheres to and enforces a ‘company
policy’ of Armor, which limits medication dispensing and
prescribing to the facility formulary within the budget for
the contract .... notwithstanding medical need,” and that Dr.
Manetti told Rodriguez “well, since Armor doesn't want to
pay for [psychoactive medication], I guess you don't need
it.” (Compl.¶¶ 11, 25.) Thus, based on these allegations,
Armor is potentially liable under Section 1983. See Cephas
v. Nassau Cnty. Corr. Ctr., No. 12–CV–1445, 2014 WL
537576, at *5 (E.D.N.Y. Feb. 10, 2014) (finding that “plaintiff
identified some pertinent official policy when his Amended
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Complaint referred to the nurse who said, ‘Armor doesn't
give stronger medication or MRIs or treatment’ “ (citation
omitted)).
IV. HIPAA
Plaintiffs claim that Armor violated HIPAA when a facility
physician allegedly discussed Plaintiff Vaiana's medical
condition with Captain Ford. (Compl. at 18–19.) However,
“HIPAA does not provide for either an express or implied
private right of action.” Warren Pearl Constr. Corp. v.
Guardian Life Ins. Co. of Am., 639 F.Supp.2d 371, 377
(S.D.N.Y.2009); see also Cohen v. Cnty. of Nassau, No. 10–
CV–5836, 2011 WL 1630136, at *7 (E.D.N.Y Apr. 27, 2011)
(dismissing inmate's HIPAA claims); Mascetti v. Zozulin,
No. 09–CV–0963, 2010 WL 1644572, at *4 (D.Conn. Apr.
20, 2010) (“Enforcement of [HIPAA] and its regulations is
limited to the Secretary of Health and Human Services; thus,
there is no private right of action.”); Barnes v. Glennon,
No. 05–CV–0153, 2006 WL 2811821, at *6 (N.D.N.Y. Sept.
28, 2006) (“[T]here is no private cause of action stemming
from HIPAA.”). Accordingly, Plaintiffs have no claim under
HIPAA as a matter of law. The Armor Defendants' motion
to dismiss the HIPAA claim is therefore GRANTED and this
claim is DISMISSED.
V. Conspiracy Against Rights
The Complaint also states that “the Court may wish to
consider the feasibility of conspiracy against rights” claim
against the Armor Defendants. (Compl.¶ 51.) Plaintiffs do
not specify the source of this potential claim but the Court
interprets it as being brought under 18 U.S.C. § 241, which
is titled “Conspiracy Against Rights.” However, Plaintiffs'
hypothetical claim would fail because Section 241 is a
criminal statute, which does not provide for a private cause
of action. Sheehy v. Brown, 335 F. App'x 102, 104 (2d
Cir.2009) (“To the extent that Appellants assert claims based
on the violation of federal criminal statutes, such as 18
U.S.C. §§ 241–242, these claims are not cognizable, as
federal criminal statutes do not provide private causes of
action.” (citation omitted)); see also Nichairmhaic v. Dembo,
No. 13–CV–1184, 2013 WL 6385041, at *5 (D.Conn. Dec. 4,
2013) (dismissing discrimination claim based on Section 241
because “Section 241 is a criminal statute ... and the Second
Circuit has held that it does not create a private cause of
action.”). Accordingly, to the extent Plaintiffs assert a claim
under Section 241, this claim is DISMISSED.
VI. RICO
*11 Plaintiffs also urge to “consider” a RICO claim
based upon alleged “damage against [each Plaintiffs']
person.” (Compl. at 21 n. 9.) However, a plaintiff asserting a
RICO violation must plead “(1) the defendant's violation of
[18 U.S.C.] § 1962, (2) an injury to the plaintiff's business or
property, and (3) causation of the injury by the defendant's
violation.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283
(2d Cir.2006) (citations omitted). Here, not only do Plaintiffs
fail to allege any of the elements of a RICO claim, they
concede that there is no injury to a business or property.
Accordingly, to the extent Plaintiffs assert RICO claim, this
claim is DISMISSED.
VII. Injunctive and Declaratory Relief
As noted, Plaintiffs assert various claims for injunctive and
declaratory relief. As an initial matter, to the extent that Smith,
Vaiana, Rodriguez, and Maynor seek injunctive or declaratory
relief, such claims are DISMISSED AS MOOT because
these Plaintiffs have been discharged from the NCCC. See
Salahuddin, 467 F.3d at 272 (“[A]n inmate's transfer from
a prison facility generally moots claims for declaratory and
injunctive relief against officials of that facility.”).
This leaves Colon as the only plaintiff who could pursue
the Complaint's claims for injunctive and declaratory relief.
The Armor Defendants seek to dismiss the claim for a
preliminary and permanent injunction because, according to
the Armor Defendants, “the purported claims of deliberate
indifference do not rise to the level of a constitutional
violation, and thus, amount to nothing more than speculative
and hypothetical allegations” insufficient to demonstrate a
likelihood of success on the merits. (Armor's Br. at 21.)
However, the Court has found that Colon has stated a
deliberate indifference claim, and thus, it is not readily
apparent to the Court that Colon cannot demonstrate a
likelihood of success on the merits. The Armor Defendants'
motion to dismiss the Complaint's claims for injunctive relief
on this ground is therefore DENIED. Nonetheless, the Court
does take note that this case was filed on September 6, 2012,
and more than two years has elapsed without the filing of
a motion for preliminary injunction. The Court therefore
seriously questions whether Colon could demonstrate that
irreparable harm would result without an injunction in the
event that Colon moves for such relief.
VIII. Leave to Replead
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The Second Circuit has stated that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to
amend the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d
42, 53 (2d Cir.1999); see also FED. R. CIV. P. 15(a)(2) ( “The
court should freely give leave [to amend] when justice so
requires.”). “However, a district court has the discretion to
deny leave to amend where there is no indication from a
liberal reading of the complaint that a valid claim might be
stated.” Perri v. Bloomberg, No. 11–CV–2646, 2012 WL
3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (citing Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir.2010)).
*12 Here, the Court has dismissed Smith's deliberate
indifference claim arising out his dental treatment and
Plaintiffs' HIPAA, RICO, and conspiracy against rights
claims. The Court will not grant leave to replead these
claims because amendment would be futile. These claims are
DISMISSED WITH PREJUDICE. 5
IX. State Law Claims
Finally, the Armor Defendants argue that “since plaintiffs
cannot assert a plausible federal-law claim against the
Armor Defendants,” the Court should decline to exercise
supplemental jurisdiction over the remaining state law claims
under 28 U.S.C. § 1367(c)(3). (Armor's Br. at 23.); see
28 U.S.C. § 1367(c)(3) (“The district courts may decline
to exercise supplemental jurisdiction over a claim under
subsection (a) if ... the district court has dismissed all claims
over which it has original jurisdiction ....”). However, the
Court has not dismissed all of Plaintiffs' federal claims.
Accordingly, the Armor Defendants' motion insofar as it seeks
dismissal of the state law claims on jurisdictional grounds is
DENIED. 6
CONCLUSION
For the foregoing reasons, the Armor Defendants' motion
to dismiss is GRANTED IN PART and DENIED IN PART.
Smith's deliberate indifference claim arising out his dental
treatment and Plaintiffs' HIPAA, RICO, and conspiracy
against rights claims are DISMISSED WITH PREJUDICE.
Additionally, the Clerk of the Court is directed to
TERMINATE Dr. Omanu as a defendant in this action.
Given each Plaintiffs' pro se status, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and
therefore in forma pauperis status is DENIED for purposes of
an appeal. Coppedge v. United States, 369 U.S. 438, 444–45,
82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this
Memorandum and Order to pro se Plaintiffs.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 4904692
Footnotes
1 The following facts are taken from the Complaint and are presumed to be true for the purposes of this
Memorandum and Order.
2 Plaintiffs filed the Complaint in this action accompanied by applications to proceed in forma pauperis. On
October 4, 2012, this Court granted in forma pauperis status to each Plaintiff, with the exception of Plaintiff
Daniel Miller (“Miller”), whose application was denied pursuant to the “three strikes” rule under 28 U.S.C. §
1915(g). (Docket Entry 19.) On November 21, 2012, the Court dismissed Miller's claims because he failed to
pay his pro rata share of the filing fee. (Docket Entry 23.) He still has not paid the filing fee, and the Court's
discussion herein is therefore limited to the claims and allegations of the remaining Plaintiffs. Additionally, the
only claims against Defendant Dr. Omanu are those of Miller's. Accordingly, the Clerk of the Court is directed
to TERMINATE Dr. Omanu as a defendant in this matter.
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3 The page numbers of the Complaint are those generated by the Electronic Case Filing system.
4 The Eighth Amendment prohibits “cruel and unusual punishment.” Thus, “it has been held applicable only
to those individuals who have been criminally convicted and sentenced-and are thus being ‘punished’ for
something.” Davis v. Cnty. of Nassau, 355 F.Supp.2d 668, 674 (E.D.N.Y.2005). Here, the Complaint does
not make clear whether the conduct complained of occurred postconviction or while Plaintiffs were housed
at the NCCC as pretrial detainees. The distinction is irrelevant, however, because “[c]laims for deliberate
indifference to a serious medical condition or other serious threat to the health or safety of a person in custody
should be analyzed under the same standard irrespective of whether they are brought under the Eighth or
Fourteenth Amendment.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009).
5 To the extent that Plaintiffs assert HIPAA, RICO, or conspiracy against rights claims against the County
Defendants, such claims are also DISMISSED WITH PREJUDICE because they are futile, notwithstanding
the fact that the County Defendants have not moved to dismiss them.
6 The Armor Defendants have not moved to dismiss the state law claims on the merits and the Court therefore
does not reach these issues. The Armor Defendants do move to dismiss the Complaint insofar as it “seeks
to assert a breach of contract claim by challenging the legality and enforceability of the contract between
Nassau County and Armor.” (Armor's Br. at 23.) However, the Court does not read the Complaint to assert
a breach of contract claim based on this alleged agreement.
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2025 WL 949842
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Mark DANIELS, Plaintiff,
v.
Susan MUELLER, et al., Defendants.
No. 23-CV-5654 (LAP)
|
Signed March 28, 2025
Attorneys and Law Firms
Joshua Lee Morrison, Bonjean Law Group, PLLC, Brooklyn,
NY, Amy Jane Agnew, Law Office of Amy Jane Agnew, P.C.,
New York, NY, for Plaintiff.
Ian Ramage, NYS Office of the Attorney General, New York,
NY, for Defendant Susan Mueller.
Ryan Edward Manley, Lauren Nicole Mordacq, Ryan Thomas
Donovan, Conway, Donovan & Manley PLLC, Albany, NY,
for Defendant Chung Lee.
OPINION AND ORDER
LORETTA A. PRESKA, Senior United States District Judge:
*1 Before the Court are eleven motions for summary
judgment filed by various Defendants in the above-captioned
case and nine related cases. Plaintiff filed an omnibus brief
opposing each motion for summary judgment. (Plaintiff's
Amended Memorandum of Law in Opposition to Defendants’
Motions for Summary Judgment (Omnibus), dated February
5, 2024 (“Pl. Opp'n”) [23-CV-5658, dkt. no. 59].) 1 For the
reasons set forth below, certain of Defendants’ motions are
GRANTED and certain of Defendants’ motions are DENIED.
I. Background
A. Factual Background
The Court assumes familiarity with its decision in related
case Allen v. Mueller, No. 23-CV-5651, 2024 WL 3090141
(S.D.N.Y. June 21, 2024). A streamlined version of the
relevant facts and procedural history follows.
The above-captioned action and the nine related individual
actions that this Opinion addresses arise from a class action
brought by several named New York State Department
of Corrections and Community Supervision (“DOCCS”)
inmates on behalf of a class of individuals in DOCCS
custody whose medications were denied or discontinued
after the institution of the Medications With Abuse Potential
(“MWAP”) Policy. See Allen v. Koenigsmann, No. 19-
CV-8173, 2023 WL 2731733 (S.D.N.Y. Mar. 31, 2023). 2
(See also Allen I, Plaintiff's Memorandum of Law in Support
of Motion for Class Certification, dated May 18, 2022 (“Pl.
Class Cert. Br.”) [19-CV-8173, dkt. no. 371] at 14.) 3
DOCCS adopted the MWAP Policy in June 2017. (Defendant
Mueller's Local Civil Rule 56.1 Statement of Undisputed
Facts, dated November 15, 2023 (“Mueller 56.1 Stmt.:
Stewart) [23-CV-5668, dkt. no. 19] ¶ 3.) The MWAP
Policy required any DOCCS medical provider who sought to
prescribe certain medications to submit an “MWAP Request”
to the DOCCS Regional Medical Director (“RMD”) in charge
of the medical provider's facility. (See id. ¶ 5.) Before
the DOCCS medical provider had authority to prescribe
the requested medication for long-term use for chronic
conditions, the RMD would have to approve the MWAP
Request. (See id.)
The stated purpose of the MWAP Policy was to control the
prescriptions of medications that DOCCS believed might
carry the risk of abuse or dependence by DOCCS inmates.
(See Declaration of A.J. Agnew in Opposition to Motion
for Summary Judgment, dated December 27, 2023 (“Agnew
Decl.”) [23-CV-5657, dkt. no. 29], Ex. 23 [23-CV-5667, dkt.
no. 29-25] at 2.) Medications that required RMD approval
under the MWAP Policy included Gabapentin (Neurontin),
Lyrica (Pregabalin), Baclofen, Flexeril (Cyclobenzaprine),
Ultram (Tramadol), Percocet, and Oxycodone. (See Mueller
56.1 Stmt.: Stewart ¶ 6.) DOCCS rescinded the MWAP Policy
on February 8, 2021. (See State Represented Defendants’
Local Civil Rule 56.1 Statement of Undisputed Facts,
dated November 16, 2023 (“SRD 56.1 Stmt.: Gradia”) [23-
CV-5660, dkt. no. 24] ¶ 6.)
*2 Plaintiffs in the class action asserted claims under
42 U.S.C. § 1983 alleging deliberate indifference to their
medical needs due to DOCCS's implementation of the MWAP
Policy and the discontinuation and denial of their medications
that ensued. (Allen I, Second Amended Complaint, dated
December 12, 2020 [19-CV-8173, dkt. no. 256] at 137-39.)
Plaintiffs moved for class certification and for a preliminary
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injunction seeking relief from the ongoing effects of the
MWAP Policy, arguing that DOCCs was continuing to deny
effective treatment to patients who had lost their medications
due to the MWAP Policy. (Allen I, Class Cert. Br. at 14; Allen
I, Plaintiff and Plaintiff-Intervenors’ Memorandum of Law in
Support of Motion for Injunctions, dated May 31, 2022 [19-
CV-8173, dkt. no. 378] at 8-9.)
On March 31, 2023, this Court issued an Opinion granting the
Allen I plaintiffs’ motion to certify a class to pursue injunctive
relief but denying the plaintiffs’ motion to certify a class to
pursue damages for liability. See Allen I, 2023 WL 2731733,
at *6. The Court held that plaintiffs in Allen I had failed to
show that the proposed “liability class” had standing to sue
under Article III of the United States Constitution. See id. at
*2.
Also on March 31, 2023, the Court granted the Allen I
plaintiffs’ motion for a preliminary injunction, determining
plaintiffs had demonstrated ongoing constitutional violations,
including medically unjustified discontinuations of MWAP
treatment, and a likelihood of imminent future harm across
the class. Allen I, No. 19-CV-8173, 2023 WL 2752375, at *6
(S.D.N.Y. Mar. 31, 2023).
After a four-day bench trial, this Court converted
the preliminary injunction into a permanent injunction,
concluding that remedying the constitutional violations
in DOCCS’ pain management practices outweighed
the administrative challenges DOCCS would face in
implementing a permanent injunction. Allen I, 700 F. Supp.
3d 110, 145 (S.D.N.Y. 2023). The Court then awarded
attorneys’ fees to Plaintiffs’ counsel. (Allen I, Order, dated
February 22, 2024 [19-CV-8173, dkt. no. 850].)
Recently, the Court of Appeals affirmed this Court's decision
to grant a permanent injunction and award Plaintiffs’ counsel
attorneys’ fees. Daniels et al. v. Moores, No. 24-30, 2025
WL 883035 (2d Cir. Mar. 21, 2025) (summary order). The
Court of Appeals credited the Court's determination that “the
MWAP Policy was still de facto in place, despite being
formally rescinded, because prisoners in DOCCS custody
continued to have their MWAP medications systematically
denied without medical justification and without regard
to medical need.” (Id. at 6.) In addition, the Court of
Appeals found no error in the Court's conclusion that
Plaintiffs suffered Eight Amendment violations and therefore
irreparable harm. (Id. at 7.) In so holding, the Court of
Appeals reiterated that “a deliberate indifference claim can
lie where prison officials deliberately ignore the medical
recommendations of a prisoner's treating physicians” and
where defendants “reflexively rel[ied] on ... the substance
abuse policy when they had been put on notice that the
medically appropriate decision could be, instead, to depart
from the [policy] and prescribe [the medication] to the
plaintiff.” (Id. at 9 (citing Johnson v. Wright, 412 F.3d 398,
404, 406 (2d Cir. 2005).)
Following this Court's denial of certification of a “liability
class,” various plaintiffs filed individual suits for damages
against various DOCCS employees, including RMDs,
physicians, and nurse practitioners (“NPs”). (See, e.g.,
Amended Complaint as Severed from Allen I, filed June
30, 2023 (“AC: Daniels”) [23-CV-5654, dkt. no. 1] at 3-5.)
Similar to the allegations made in the class action, these
plaintiffs each alleged violations of 42 U.S.C. § 1983 based
on deliberate indifference to their medical needs. (See, e.g.,
id. ¶¶ 349-72.) On June 21, 2024, the Court issued its first
decision in one of the individual lawsuits, granting in part and
denying in part defendants’ motion for summary judgment.
Allen v. Mueller, 2024 WL 3090141 at *1.
*3 The Court's instant Opinion addresses the claims of
ten plaintiffs: Plaintiffs Mark Daniels, Shannon Dickinson,
Aaron Dockery, John Gradia, Angel Hernandez, Hugh
Knight, Terry Mathis, Sean Pritchett, Felipe Rivera-Cruz, and
Wayne Stewart. In each of these ten individual actions for
damages, certain Defendants move for summary judgment
to dismiss the claims against them, totaling eleven motions
for summary judgment. Specifically, Defendants Dr. Susan C.
Mueller, Dr. David Dinello, Dr. John Hammer, and NP Kristin
Salotti (collectively the “State Represented Defendants” or
“SRDs”) have filed motions for summary judgment in nine
of the ten actions. 4 In addition, Defendants Dr. Kathleen
Mantaro (23-CV-5661, dkt. no. 24) and Dr. Chung Lee (23-
CV-5662, dkt. no. 12) have each filed a motion for summary
judgment in a single action where they are named as a
defendant.
II. Legal Standard
Summary judgment is appropriate where the moving party
“shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “ ‘It is the movant's burden to
show that no genuine factual dispute exists.’ ” I.M. v. United
States, 362 F. Supp. 3d 161, 189 (S.D.N.Y. 2019) (quoting
Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,
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244 (2d Cir. 2004)). A genuine dispute of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “On a motion for summary
judgment, a fact is material if it ‘might affect the outcome of
the suit under the governing law.’ ” Royal Crown Day Care
LLC v. Dep't of Health & Mental Hygiene of the City of N.Y.,
746 F.3d 538, 544 (2d Cir. 2014) (quoting Liberty Lobby, Inc.,
477 U.S. at 248).
“ ‘In moving for summary judgment against a party who will
bear the ultimate burden of proof at trial, the movant's burden
will be satisfied if he can point to an absence of evidence to
support an essential element of the nonmoving party's claim.’
” In re AXA Equitable Life Ins. Co. COI Litig., 595 F. Supp.
3d 196, 215 (S.D.N.Y. 2022) (quoting Goenaga v. March of
Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)).
In ruling on a motion for summary judgment, a court must
“construe the facts in the light most favorable to the non-
moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya,
Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks and
citations omitted).
“If the movant meets its burden, ‘the nonmoving party must
come forward with admissible evidence sufficient to raise
a genuine issue of fact for trial in order to avoid summary
judgment.’ ” Kayo v. Mertz, 531 F. Supp. 3d 774, 787
(S.D.N.Y. 2021) (quoting Jaramillo v. Weyerhaeuser Co.,
536 F.3d 140, 145 (2d Cir. 2008)). “The non-moving party
‘cannot defeat the motion by relying on the allegations in [its]
pleading, or on conclusory statements, or on mere assertions
that affidavits supporting the motion are not credible.’ ” In re
AXA, 595 F. Supp. 3d. at 215 (quoting Gottlieb v. Cnty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996)). The non-moving
party must “create more than a ‘metaphysical’ possibility that
his allegations [a]re correct; he need[s] to ‘come forward with
specific facts showing that there is a genuine issue for trial.’
” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir. 2012)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586–87 (1986)).
III. Applicable Law
A. Eighth Amendment
*4 The Eighth Amendment to the United States Constitution
prohibits government officials from inflicting “cruel and
unusual punishments” on those in their care. U.S. Const.
amend. VIII. Pursuant to the right to be free from cruel
and unusual punishments, the Eighth Amendment prohibits
prisons officials from acting with “deliberate indifference to
serious medical needs of prisoners[.]” Estelle v. Gamble, 429
U.S. 97, 104 (1976).
A prison official can be held liable for deliberate indifference
in violation of the Eighth Amendment “only when two
requirements are met.” Salahuddin v. Goord, 467 F.3d 263,
279 (2d Cir. 2006) (internal quotations and citations omitted),
abrogated in part on other grounds by Kravitz v. Purcell, 87
F.4th 111 (2d Cir. 2023). The first requirement the plaintiff
must meet “is objective: the alleged deprivation of adequate
medical care must be ‘sufficiently serious.’ ” Id. (quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The second
requirement “is subjective: the charged official must act
with a sufficiently culpable state of mind.” Id. at 280. Put
differently, a plaintiff “must show, for each defendant, that the
defendant acted with deliberate indifference to [his] medical
needs.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003)
(citing Estelle, 429 U.S. at 104).
Satisfying the objective prong entails two inquires. First,
the Court must assess “whether the prisoner was actually
deprived of adequate medical care.” Salahuddin, 467 F.3d at
279. The second part of the objective inquiry asks whether
the deprivation or inadequacy of the plaintiff's medical care
is “sufficiently serious.” Id. at 280.
Determining if the deprivation of medical care is sufficiently
serious is “necessarily contextual and fact-specific” which
requires “tailor[ing] [it] to the specific circumstances of each
case.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)
(cleaned up) (internal quotations and citations omitted). This
includes examining the plaintiff's claim differently depending
on whether he alleges the prison officials completely “fail[ed]
to provide any treatment for [his] medical condition” or
alleges only that the medical treatment he received was
inadequate. See Salahuddin, 467 F.3d at 280.
If the former, the Court must “examine whether the
inmate's medical condition is sufficiently serious.” Id. at
280 (emphasis added). Certain factors courts consider when
evaluating the seriousness of a medical condition include
whether “a reasonable doctor or patient would find [the
condition] important and worthy of comment or treatment,”
whether the condition “significantly affects an individual's
daily activities,” or “the existence of chronic and substantial
pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)
(internal quotations and citations omitted). If, however, the
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plaintiff alleges only “inadequacy [ ] in the medical treatment
[he was] given, the seriousness inquiry is narrower.”
Salahuddin, 467 F.3d at 280. Instead of determining the
seriousness of the plaintiff's underlying condition, the Court
must focus its inquiry “on the challenged delay or interruption
in treatment[.]” Id. (citing Smith, 316 F.3d at 185). Such
inquiry requires the Court to examine “the particular risk
of harm” the plaintiff faced as a result of the deprivation,
“rather than the severity of the [plaintiff's] underlying medical
condition[.]” Smith, 316 F.3d at 186.
*5 Accordingly, the Court inquires how serious the
plaintiff's underlying medical condition is if he alleges he was
entirely denied care, whereas it must assess the “particular
risks attributable” to a provision of allegedly insufficient care
or the “severity of [a] temporary deprivation” in care if that is
the deprivation the plaintiff alleges. Id. at 186-87 (emphasis
added).
To satisfy the subjective prong, i.e., to prove a prison official
was deliberately indifferent to his or her medical needs, a
plaintiff must “show that a particular defendant ‘knows of
and disregards an excessive risk to inmate health or safety.’
” Brock, 315 F.3d at 164 (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)). This standard is akin to a mental
state of subjective recklessness, as used in criminal law. See
Salahuddin, 467 F.3d at 280. The plaintiff may demonstrate
the defendant's knowledge either by proving the official had
actual knowledge of the risks to the plaintiff's health or by
proving “that the risk was obvious or otherwise must have
been known to [the] defendant[.]” Brock, 315 F.3d at 164.
B. Personal Involvement
Plaintiffs assert their Eighth Amendment claims pursuant to
42 U.S.C. § 1983. (See, e.g., AC: Daniels ¶¶ 349-80.) To
prevail on a § 1983 claim for a constitutional violation, “a
plaintiff must plead and prove ‘that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.’ ” Tangreti v. Bachmann,
983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009)). Thus, to establish a
particular defendant's liability, Plaintiffs must “establish that
[the particular defendant] violated the Eighth Amendment
by [his or her] own conduct, not by reason of [his or her]
supervision of others who committed the violation” and
that each particular defendant “knew of and disregarded an
excessive risk to [Plaintiffs’] health or safety.” Id. at 619
(citing Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020)).
Such personal involvement requires “direct participation, or
failure to remedy the alleged wrong after learning of it, or
creation of a policy or custom under which unconstitutional
practices occurred[.]” Black v. Coughlin, 76 F.3d 72, 74 (2d
Cir. 1996) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)).
C. Qualified Immunity
The Supreme Court has held that “[g]overnment officials
are entitled to qualified immunity [from liability] with
respect to ‘discretionary functions’ performed in their official
capacities.” Ziglar v. Abbasi, 582 U.S. 120, 150 (2017)
(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).
Whether a government official can invoke qualified immunity
“turns on the ‘objective legal reasonableness’ of the official's
acts.” Id. at 151 (quoting Harlow v. Fitzgerald, 457 U.S.
800, 819 (1982)). The reasonableness of the official's actions
“must be ‘assessed in light of the legal rules that were clearly
established at the time [the action] was taken.’ ” Id. (quoting
Creighton, 483 U.S. at 639).
To determine whether the official violated rights that were
“clearly established,” the Court “must ask whether it would
have been clear to a reasonable officer that the alleged conduct
was unlawful in the situation he confronted.” Id. at 151-52
(internal quotations and citations omitted). “[I]f a reasonable
officer might not have known for certain that the conduct
was unlawful[,] then the officer is immune from liability.” Id.
As the Supreme Court phrased differently in a previous case,
the “right must be sufficiently clear that every reasonable
official would have understood that what he [was] doing
violate[d] that right.” Taylor v. Barkes, 575 U.S. 822, 825
(2015) (internal quotations and citations omitted).
*6 When confronted with the qualified immunity defense,
the Court must determine the scope of the right that the
plaintiff asserts was clearly established and that the official
violated. There need not exist “a case directly on point”
that addresses facts perfectly analogous to the instant case
before the Court, “but existing precedent must have placed
the statutory or constitutional question beyond debate.” Id.
(internal quotations and citations omitted). In other words,
“the precise conduct at issue need not previously have been
ruled unlawful” for the Court to conclude that the right
was clearly established. Griffin v. Amatucci, 611 F. App'x
732, 734 (2d Cir. 2015) (summary order) (citing Zahrey v.
Coffey, 221 F.3d 342, 357 (2d Cir. 2000)). As the Court
of Appeals has noted in the specific context of claims of
deliberate indifference in violation of the Eighth Amendment,
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assertions of qualified immunity “are not analyzed body-part
by body-part” or with “specificity as to the site and cause
of pain[.]” Collymore v. Myers, 74 F.4th 22, 30 (2d Cir.
2023). Such a “restricted view of the right” alleged to have
been violated would be unnecessarily narrow in determining
whether the right was clearly established at the time of its
alleged violation. See LaBounty v. Coughlin, 137 F.3d 68, 74
(2d Cir. 1998).
On the other hand, “the clearly established right must be
defined with specificity,” and the “dispositive question is
whether the violative nature of particular conduct is clearly
established.” Vega, 963 F.3d at 275 (emphasis in original)
(internal quotations and citations omitted). Accordingly, the
Court must undertake this inquiry “in light of the specific
context of the case, not as a broad general proposition.” Id. In
the context of claims for deliberate indifference, this means
“ ‘sufficiently serious’ medical conditions ‘should not be
defined at a high level of generality.’ ” Collymore, 74 F.4th at
30 (quoting White v. Pauly, 580 U.S. 73, 79 (2017)).
IV. Discussion
The Court will evaluate the eleven summary judgment
motions by individual plaintiff. 5
A. Plaintiff Daniels’ Claim for Deliberate Indifference
State Represented Defendant Dr. Susan Mueller moves for
summary judgment to dismiss the claim against her brought
by Plaintiff Daniels. (23-CV-5654, dkt. no. 14.)
Plaintiff Daniels received lower back and spinal fusion
surgery in 2015. (Declaration of Ian Ramage, dated
November 15, 2023 (“Ramage Decl.: Daniels”) [23-
CV-5654, dkt. no. 17], Ex. E (April 5, 2022 Deposition of
Mark Daniels) [23-CV-5654, dkt. no. 17-5] ¶¶ 26:23-25.)
Following additional back surgery (id. ¶¶ 49:3-18), Plaintiff
Daniels was sent to multiple neurologists for consultation
during 2017, (see Ramage Decl.: Daniels, Ex. J [23-CV-5654,
dkt. no. 17-10] at MD 000406, 000390, 000384, 000381.) To
manage his pain, Plaintiff Daniels was prescribed Neurontin
as early as May 2012. (Report of Dr. Adam Carinci,
dated May 8, 2022 (“Carinci Rpt.” [19-CV-8173, dkt. nos.
348-362], dkt. no. 349-32 at 3.) His records also reflect failed
treatment with Tramadol, Naproxen, Ultram, Flexeril, and
physical therapy. (Id.)
Following an MRI, Dr. Joseph L. Racanelli on December
15, 2016, recommended that Plaintiff Daniels remain on
Gabapentin. (Carinci Rpt., dkt. no. 349-35 at M Daniels
119-20.) On March 16, 2017, Plaintiff reported “neck, hands
and back pain,” “numbness,” and the Gabapentin “hasn't
helped at all, if anything it's worse.” (Id. at M Daniels 122.)
On April 14, 2017, Plaintiff refused Neurontin, saying it was
“making [him] sick.” (Carinci Rpt., dkt. no. 349-36 at M
Daniels 124.)
On June 8, 2017, a few days after the MWAP Policy was
promulgated, Dr. Chung Lee at Shawangunk Correctional
Facility submitted an MWAP request seeking approval
for a continuing prescription of Neurontin. (Id. at M
Daniels 129-32.) Defendant Mueller states that she reviewed
Plaintiff's medical history on DOCCS’ FHS1 computer
system and learned that Plaintiff Daniels was still being
treated by neurosurgery specialists following his spinal
surgery. (See Declaration of Dr. Susan C. Mueller, dated
November 15, 2023 (“Mueller Decl.: Daniels”) [23-CV-5654,
dkt. no. 16] ¶¶ 29-31.) Neurology specialists recommended
that Plaintiff Daniels be prescribed Neurontin. (Id. ¶ 31.)
Defendant Mueller approved Dr. Lee's request to continue
Plaintiff Daniel's Neurontin, noting “no EMG. Will approve
until EMG obtained for presumptive dx.” (Carinci Rpt., dkt.
no. 349-36 at M Daniels 136.)
*7 Plaintiff Daniels complained that at some time between
late July and September of 2017, his Neurontin was
discontinued. (AC: Daniels ¶ 312.) Dr. Mueller states that she
did not discontinue Plaintiff's Neurontin and that she was not
notified that it had been discontinued. (Mueller Decl.: Daniels
¶¶ 38-39.) In his opposition to the motion, Plaintiff Daniels
makes no mention of the 2017 MWAP request (see Pl. Opp'n
at 25), so he has waived this claim.
On September 12, 2017, Dr. Lee began prescribing Cymbalta
for Plaintiff Daniels. (AC: Daniels ¶ 316.) On December
13, 2018, Dr. Nicole Lostritto, an outside neurosurgeon,
performed an electromyography (EMG) on Plaintiff noting
that he was taking Cymbalta instead of Neurontin for his pain
and recommended: “In addition to his Cymbalta, Baclofen
could be trialed to help address his spasticity and modulate
pain receptors.” (Carinci Rpt., dkt. no. 349-36 at M Daniels
144.)
Plaintiff also complains that an MWAP request submitted on
March 12, 2018 by Dr. Lee for Lyrica was not approved by Dr.
Mueller. (See AC: Daniels ¶¶ 325-26; Ramage Decl.: Daniels,
Ex. D [23-CV-5654, dkt. no. 17-4] at MD 00005-06).)
However, Dr. Mueller states that she never received this
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MWAP request and did not review it or disapprove it.
(Mueller Decl.: Daniels ¶¶ 41-42.) Other than the March 12,
2018 MWAP request for Lyrica from Dr. Lee to Dr. Mueller
(Carinci Rpt., dkt. no. 349-36 at M Daniels 147-48), the Court
is unable to locate any emails or other correspondence from
Dr. Lee to Dr. Mueller regarding the 2018 MWAP request for
Lyrica or any entry in Plaintiff's medical record regarding this
request.
With respect to the 2018 MWAP request, Plaintiff Daniels
faults Dr. Mueller because Dr. Lee submitted the MWAP
request for Lyrica to Dr. Mueller and Plaintiff never received
the medication. (Pl. Opp'n at 25; see also Plaintiff's Response
to Defendant's Statement of Undisputed Facts and Plaintiff's
Statement of Additional Material Facts Precluding Summary
Judgment, dated January 5, 2023 (“PSUF: Daniels”) [23-
CV-5654, dkt. no. 28] ¶ 105.) While this might indeed be
true, as noted above, there is no evidence in the record to
support any personal involvement by Dr. Mueller in the 2018
MWAP request. Plaintiff Daniels testified that his Lyrica
request was denied by “Albany.” (Ramage Decl.: Daniels,
Ex. E ¶¶ 146:4-5.) However, he also testified, “I can't say
whose decision it was. I just know that I didn't get it.” (Id. ¶¶
147:5-6.) That Dr. Mueller was the assigned RMD at the time
is insufficient as a basis for finding any personal involvement
on her part. In addition, it is insufficient as a basis for any
subjective intent on the part of Dr. Mueller. Accordingly,
Dr. Mueller's motion for summary judgment as to Plaintiff
Daniels’ claim of deliberate indifference (23-CV-5654, dkt.
no. 14) is granted.
B. Plaintiff Dickinson's Claim for Deliberate
Indifference
State Represented Defendant Dr. Susan Mueller moves for
summary judgment to dismiss the claim against her brought
by Plaintiff Dickinson. (23-CV-5654, dkt. no. 14.)
As Dr. Carinci related:
Mr. Dickinson arrived at DOCCS
on November 15, 2016 [ ]. X-rays
taken on December 20, 2016 showed
mild spondylosis at C6-7 of his
cervical spine with bullet fragments
and impingement in his right shoulder.
[ ] An x-ray of Mr. Dickinson's left
hip taken on March 30, 2017 showed
mild degenerative joint disease which
was more prominent in his left than
right hip. [ ] On December 19, 2016,
DOCCS transferred Mr. Dickinson
to Shawangunk Correctional Facility.
Dr. Chung Lee was assigned as his
medical provider. The records are
not clear, but it seems that Dr. Lee
continued Mr. Dickinson's Baclofen
and Ultram prescriptions and changed
Lyrica to Neurontin 600 mg twice a
day. [ ] Mr. Dickinson began physical
therapy on May 24, 2017 to address
his shoulder impingement. [ ] Dr. Ehab
Essa, the physical therapist, reported
that he tolerated the session well but
reported that he suffered from back
pain.
*8 (Carinci Rpt., dkt. no. 350-8 at 3.)
Plaintiff Dickinson's pain had been managed successfully
with Ultram, Flexeril, Lyrica, and Baclofen since at least
2012. (Id.) Following MWAP, all Plaintiff Dickinson's
medications were discontinued. A June 19, 2017 EMG study
showed Plaintiff Dickinson suffered from abnormal motor
and sensory responses and with sensorimotor neuropathy.
(Carinci Rpt., dkt. no. 350-9 at S. Dickinson 077-80.) Dr.
Lee submitted two MWAP requests for Ultram and Baclofen.
(Id. at S. Dickinson 082-88.) In denying the MWAP requests
for Baclofen, Dr. Mueller merely stated, “please see policy
regarding use of muscle relaxants.” (Id. at S. Dickinson
085.) With respect to the Ultram request, she questioned
how Plaintiff Dickinson's gunshot wound from 1990 and
resulting paraplegia would cause pain and recommended pain
management. (Id. at S. Dickinson 088.)
In her declaration, however, Dr. Mueller stated essentially
that Plaintiff Dickinson had not undergone any diagnostic
testing and that in her medical judgment “Baclofen[ ] is
not effective for treating muscle spasms.” (Declaration of
Dr. Susan C. Mueller, dated November 15, 2023 (“Mueller
Decl.: Dickinson”) [23-CV-5657, dkt. no. 16] ¶ 26.) She
also opined that in her medical judgment “the requested
prescription for Ultram was not appropriate due to an absence
of any indication or complaint of pain by Plaintiff.” (Id. ¶ 41.)
Dr. Mueller added that she did not approve the request for
Ultram because she “did not know what pain the requested
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medication would be treating, as Plaintiff is insensate.” (Id.
¶ 42.)
On August 8, 2017, Dr. Lee submitted an MWAP request
for Neurontin to treat “spinal cord [injury], [due to gunshot
wound,] paraplegia, sensorimotor neuropathy” with eleven
refills. (Carinci Rpt., dkt. no. 350-10 at S. Dickinson 104-06.)
In her response to the MWAP request, Dr. Mueller cited no
patient-specific information but merely instructed Dr. Lee to
find safer alternatives. (Id. at S. Dickinson 106.) Dr. Mueller
approved only a 30-day prescription for Neurontin. (Id.)
In her declaration, however, Dr. Mueller stated that “the
potential risks of long-term treatment with Neurontin
are such that there are safer treatment strategies and
medications that should first be tried to manage Plaintiff's
neuropathy.” (Mueller Decl.: Dickinson ¶ 51.)
On August 9, 2017, Plaintiff Dickinson saw a neurologist,
Dr. Matthew Murnane, who noted that Lyrica had helped
Plaintiff's pain and that Plaintiff Dickinson was then “put
on a low dose of [Neurontin] but it was stopped for unclear
reasons and higher dose not tried.” (Carinci Rpt., dkt. no.
350-8 at 3; Carinci Rpt., dkt. no. 350-10 at S. Dickinson
107.) Dr. Murnane recommended that Plaintiff Dickinson try
Elavil but if it failed, to retry Neurontin at a higher dose and
increase Baclofen. (Carinci Rpt., dkt. no. 350-8 at 3; Carinci
Rpt., dkt. no. 350-10 at S. Dickinson 107-10.) In light of the
expert's recommendation, Dr. Lee submitted another MWAP
request on August 15, 2017 for Baclofen and Neurontin.
(Carinci Rpt., dkt. no. 350-10 at S. Dickinson 112-119.) In
her response denying the MWAP, Dr. Mueller again referred
to the muscle relaxant policy and the MWAP policy. (Carinci
Rpt., dkt. no. 350-8 at 3; Carinci Rpt., dkt. no. 350-10 at
S. Dickinson 114.) In her declaration, Dr. Mueller states
that in her medical training and experience, Baclofen is “not
effective for treating muscle spasms and is instead used to
treat muscle spasticity.” (Mueller Decl.: Dickinson ¶ 60.)
Thus, she found the prescription for Baclofen inappropriate.
(Id. ¶ 64.)
*9 Consistent with the expert's recommendation, Dr. Lee
then tried Elavil but discontinued it two weeks later because
Plaintiff Dickinson stated it made him excessively sleepy and
was not effective for his pain. (Carinci Rpt., dkt. no. 350-8 at
4; Carinci Rpt., dkt. no. 350-10 at S. Dickinson 125-30.) On
September 27, 2017, Dr. Lee made another MWAP request
for Neurontin which Dr. Mueller denied (Carinci Rpt., dkt.
no. 350-8 at 4; Carinci Rpt., dkt. no. 350-10 at S. Dickinson
134-36), directing Dr. Lee “to the televideo and handouts
from 8/17/17” (Carinci Rpt., dkt. no. 350-8 at 4; Carinci Rpt.,
dkt. no. 350-10 at 136).
In her declaration, however, Dr. Mueller stated that “in my
medical judgment, Plaintiff would benefit in the long run
from safer medical alternatives to Neurontin.” (Mueller Decl.:
Dickinson ¶ 73.)
Based on the record before the Court, there is a question of
fact as to whether Dr. Mueller exercised her medical judgment
in denying the MWAP requests—as she stated in her post-
litigation declaration—or whether she relied reflexively on
the MWAP policies—as stated in her denials of the MWAP
requests. As in Ippolito v. Goord, a jury could find that Dr.
Mueller acted with deliberate indifference by “reflexively
rely[ing] on the purported [medical] soundness of the [MWAP
policy] itself, even where [she was] on notice” by Plaintiff's
past successful treatment with MWAP medications and the
recommendation of outside experts and prison doctors “that
a departure [from the MWAP policy] might be medically
appropriate.” No. 05-CV-6683, 2012 WL 4210125, at *13
(W.D.N.Y. Sept. 19, 2012) (internal quotations omitted); see
also Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's
motion for summary judgment as to Plaintiff Dickinson's
claim for deliberate indifference (23-CV-5657, dkt. no. 14) is
denied.
C. Plaintiff Dockery's Claim for Deliberate
Indifference
State Represented Defendants Drs. Susan Mueller, John
Hammer, David Dinello, and NP Kristin Salotti move for
summary judgment to dismiss the claims against them
brought by Plaintiff Dockery. (23-CV-5658, dkt. no. 22.)
As set out at length in Dr. Carinci's expert report, Plaintiff
was diagnosed with Multiple Sclerosis (“MS”) in 2016 while
in DOCCS custody. (Carinci Rpt., dkt. no. 351-1 at 3-8.)
MRIs confirmed the findings, and various expert neurologists
recommended treatment with MWAP medications. (See id.)
Plaintiff Dockery complains about NP Salotti but did not
respond to her motion for summary judgment. (See Pl. Opp'n
at 28-31.) Accordingly, the claims against NP Salotti are
deemed abandoned, and she is entitled to judgment.
With respect to Dr. Hammer, Plaintiff Dockery concedes that
Dr. Hammer spoke to Plaintiff's provider, Dr. Gusman, and
approved the provider's prescription for Neurontin for ten
days, albeit with a change in dosage. (Plaintiff's Response to
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Defendant's Statements of Undisputed Facts and Plaintiff's
Statement of Additional Material Facts Precluding Summary
Judgment, dated January 5, 2023 (“PSUF: Dockery”) [23-
CV-5658, dkt. no. 43] at 22-23.) As Dr. Hammer explained
in his Declaration, he reviewed the MWAP request for
ten days of Neurontin 900 mg bid and discussed Plaintiff
Dockery with Dr. Gusman, Plaintiff's new provider at
Shawangunk Correctional Facility. (Declaration of Dr. John
Hammer (“Hammer Decl: Dockery”) [23-CV-5658, dkt. no.
25] ¶¶ 17-28.) Dr. Hammer noted that the discharge order
from Albany Medical Center the prior month recommended
Neurontin 900 mg in the a.m. and 1800 mg qHS and that
Dr. Gusman stated that “he intended to investigate and
possibly adjust the dosage given to Plaintiff after this ten-day
period.” (Id. ¶ 19.) Dr. Hammer also noted that the dosage
recommend by Albany Medical Center was unusual. (Id.
¶¶ 22-26.) Accordingly, Dr. Hammer approved the MWAP
request for 10 days of Neurontin 900 mg, bid, “to ensure
continuity of care for this patient.” (Id. ¶ 21.) On this record,
no jury could find Dr. Hammer to have been deliberately
indifferent to Plaintiff Dockery's needs. Accordingly, Dr.
Hammer is entitled to judgment.
*10 With respect to Dr. Mueller, Plaintiff Dockery
complains that she denied Dr. Lee's August 8, 2018 MWAP
request for Neurontin. (Amended Complaint as Severed from
Allen I, filed June 30, 2023 (“AC: Dockery”) ¶¶ 328-29.) In
his MWAP request, Dr. Lee noted:
Offender was transferred from COX
infirmary RMU. Was consulted to Dr.
Koenigman [sic] for [N]eurontin &
approved. [MRI] confirmed presence
of multiple subcortical white matter
lesions. Neurontin discontinued on
7-2018. [N]ow, offender can't sleep
× several days, d/t pain & hands/
foot neuropathy, used walker for
ambulatory, used to walk without
walker, tried w/[E]lavil, [T]egretol,
[S]ymbalta not effective.
(Declaration of Michael J. Keane, filed November 15, 2023
(“Keane Decl.: Dockery”) [23-CV-5658, dkt. no. 29], Ex. X
[23-CV-5658, dkt. no. 29-24] at 2.) Dr. Mueller denied the
request stating:
Does not have EMG diagnostic of
peripheral neuropathy. Has recent Tier
3 convictions for drug use most
recently as 7/20/18. According to
medical staff does not appear to be in
pain, but rather malingering and drug
seeking, strongly muscled. Started
bringing walker to medical unit after
Neurontin stopped last month. For how
long and what dates were above-noted
medications used? Need supportive
diagnostics. Suggest alternative safer
treatment modalities for this patient
who is presently abusing illicit drugs.
(Id. at 3.)
Had Dr. Mueller actually reviewed Plaintiff Dockery's
medical records, she would have seen that:
1) His 2016 MRIs showed brain lesions and a
demyelinating process (Carinci Rpt., dkt. no. 351-1 at 1;
see also id. at A Dockery 001-04);
2) Consulting neurologist Antonio Culebras suggested
Neurontin (id. at 3);
3) DOCCS providers treated Plaintiff with Neurontin (id.
at 3);
4) Plaintiff's June 17, 2017, MRI showed similar
demyelinating features (id.; see also id. at A Dockery
011);
5) On June 20, 2017, Plaintiff reported “symptoms
worsening” with the warmer weather and thus requested
an increase in his Neurontin or a change in medication
(id. at 3; see also id. at A Dockery 012);
6) Following the promulgation of MWAP policy, Plaintiff's
Neurontin was ordered tapered on June 20, 2017 (id. at
3; see also id. at A Dockery 012);
7) On July 28, 2017, Plaintiff was admitted to the infirmary
at Coxsackie due to his MS symptoms (id. at 3);
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8) Dr. Kathleen Mantaro submitted an MWAP request for
Neurontin which Dr. Mueller approved for 30 days (id.;
see also id. at A Dockery 022-24);
9) Neurology consultant Dr. Eric Molho suggested that
Plaintiff's Neurontin be increased because of worsening
symptoms (Carinci Rept., dkt. no. 351-2, at 3; id. at
Dockery 029), for which Dr. Miller submitted an MWAP
request which was denied by Dr. Dinello on September
15, 2017 (id. at 3; id. at A Dockery 030-35);
10) On September 21, 2017, upon discharge from the
Albany Medical Center emergency room, the attending
physician wrote:
Diagnostic Impression.
Seems as if the patient's symptoms began to increase
as the patient's Gabapentin was taken off. I do believe
that the symptoms are directly related to the fact that the
patient is no longer Gabapentin [sic], and I do believe
it is medically necessary for the patient to receive this
medication as prescribed by his neurologist. I did speak
with the deputy superintendent of the jail who told me
that [G]abapentin has been taken off of all inmates in this
region and that this patient was deemed to not require it
by the regional medication director.... I recommend that
[G]abapentin is restarted at 600mg twice a day and that
the patient see the facility neurologist in the next week
for discussion regarding dosage.
*11 (Carinci Rpt., dkt. no. 351-2 at A Dockery 044.)
Drs. Miller and Mantaro submitted an MWAP request
for Neurontin citing Plaintiff's emergency room visit and
neurology recommendations (id. at A Dockery 045A-48), but
Dr. Mueller denied the request, suggesting Lyrica instead
(Carinci Rpt., dkt. no. 351-3 at A Dockery 053);
11) Plaintiff grieved these issues (Carinci Rpt., dkt. no.
350-1 at 4), and when Dr. Miller submitted an MWAP
request directly to Chief Medical Officer (“CMO”)
Karl Koenigsmann for Neurontin, Dr. Koenigsmann
approved a 30-day supply (Carinci Rpt., dkt. no. 351-3
at A Dockery 065-68);
12) On January 11, 2018, Plaintiff was admitted to Albany
Medical Center with an MS flare-up and was treated with
Neurontin and a short term of Ultram (Carinci Rpt., dkt.
no. 351-1 at 4);
13) On January 17, 2018, Plaintiff was discharged to
Coxsackie with orders for Neurontin, among other
medications, some of which were tried, but Plaintiff still
had trouble walking (id. at 4-5);
14) In February of 2018, upon transfer to Shawangunk
Correction Facility, provider Dr. Gusman prescribed a
five-day emergency supply of Neurontin and submitted
an MWAP for Neurontin which was approved by RMD
Hammer for ten days (id. at 5; Carinci Rpt., dkt. no.
351-4 at A Dockery 106-08 ¶¶ 30-32);
15) After eight days in the infirmary, provider Dr. Lee
submitted an MWAP request for Neurontin explaining
that all outside neurologists had approved this treatment
which had indeed worked to prevent flare-ups. (Carinci
Rpt., dkt. no. 351-5 at A Dockery 112-13.) Dr. Mueller
suggested sending this request to Dr. Koenigsmann (id.
at A Dockery 115), who approved it with a dosing
change (id. at A Dockery 119-20);
16) On February 18, 2018, Plaintiff saw neurologist
Octavian Adam who recommended an increase in
Plaintiff's Neurontin. (Id. at A Dockery 122.) While the
increase was not effectuated, when Plaintiff's Neurontin
prescription was set to run out, Dr. Lee submitted another
MWAP request for it to Dr. Mueller who did not approve
it, citing “nothing supporting use of Neurontin” (id. at A
Dockery 129-31);
17) Plaintiff grieved this denial arguing that he had already
suffered traumatic flare-ups as a result of being taken off
this medication (id. at A Dockery 133);
18) Upon discontinuation of Neurontin, Plaintiff Dockery
began experiencing severe pain and discomfort, and
on August 10, 2018, Dr. Lee submitted yet another
MWAP request for Neurontin which Dr. Mueller denied,
omitting any mention of Plaintiff's MS (id. at A Dockery
135-37);
19) In December of 2018, Plaintiff Dockery's MRI revealed
new “brain lesions and progression of his MS,” but he
was still not being treated for his pain and symptoms
(Carinci Rpt., dkt. no. 351-1 at 5-6).
Based on this record, there is a question of fact as to whether
Dr. Mueller exercised her judgment in denying the MWAP
request or whether she relied reflexively on the MWAP policy.
While it is true that Plaintiff Dockery received a disciplinary
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ticket on July 20, 2018 for smoking marijuana (id. at 3),
all of the outside specialists and the DOCCS providers
treating Plaintiff recommended Neurontin, and Neurontin
had proved effective in treating Plaintiff's symptoms. As
in Ippolito, a jury could find that Dr. Mueller acted with
deliberate indifference by “reflexively rely[ing] on the
purported [medical] soundness of the [MWAP policy] itself,
even where [she was] on notice” by Plaintiff's past successful
treatment with MWAP medications and the recommendation
of outside experts and prison doctors “that a departure [from
the MWAP policy] might be medically appropriate.” 2012
WL 4210125, at *13 (internal quotations omitted); see also
Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion
for summary judgment as to Plaintiff Dockery's claim for
deliberate indifference (23-CV-5658, dkt. no. 22) is denied.
*12 With respect to Dr. Dinello, Plaintiff Dockery complains
that the doctor refused to approve his Neurontin prescription
on September 14, 2017. (AC: Dockery ¶ 294.) In so doing,
Dr. Dinello stated “the [Neurontin] has not been approved
as there is insufficient medical justification to continue its
use. Please see the MWAP Request Form for additional
information.” (Keane Decl.: Dockery, Ex. Q [23-CV-5658,
dkt. no. 29-17] at Aaron Dockery 031.) In his declaration,
however, Dr. Dinello states:
I did see some support for the use of
Neurontin in the records I reviewed for
this patient. Specifically, it appeared
that a neurologist had recommended
Neurontin for reported episodes of
trigeminal irritation in 2016. However,
it appeared that no diagnostic tests had
been performed to determine the cause
or extent of the neuropathy. There
were safer pain medications that did
not appear to have been tried. The
most recent recommendation from a
neurologist was to treat with either
Tegratol, which Dr. Miller reported
had not been effective and was causing
unacceptable side effects, or Lyrica,
which did not appear to have been
tried. And crucially to my mind, the
medical records indicated that the
patient had recently reported that 600
mg of Neurontin bid, as requested in
the MWAP request, was NOT effective
in controlling his pain.
(Declaration of Dr. David S. Dinello (“Dinello Decl.:
Dockery”) [23-CV-5658, dkt. no. 24] ¶ 29.)
With respect to Dr. Dinello's report that Plaintiff stated the
Neurontin was not effective in controlling his pain, the
actual medical record entry states “requesting an [increase]
in Neurontin or [change] to a different [medication] ‘since
weather is getting more hot, symptoms are worsening.’
” (Keane Decl.: Dockery, Ex. I [23-CV-5658, dkt. no. 29-9].)
Thus, the entry does not indicate that Neurontin was not
effective, as it had been shown to be throughout Plaintiff
Dockery's medical records, but rather that with the hot
weather that Plaintiff's symptoms were worsening.
Similarly, had Dr. Dinello actually reviewed Plaintiff
Dockery's medical records, he would have seen the same
items noted above for Dr. Mueller. Thus, the same result
obtains as in Ippolito: a jury could find that Dr. Dinello
acted with deliberate indifference by “reflexively rely[ing]
on the purported [medical] soundness of the [MWAP policy]
itself, even where [Defendant was] on notice” by Plaintiff's
past successful treatment with MWAP medications and the
recommendation of outside experts and prison doctors “that
a departure [from the MWAP policy] might be medically
appropriate.” 2012 WL 4210125, at *13 (internal quotations
omitted); see also Johnson, 412 F.3d at 406. Accordingly,
Dr. Dinello's motion for summary judgment as to Plaintiff
Dockery's claim for deliberate indifference (23-CV-5658,
dkt. no. 22) is denied.
D. Plaintiff Gradia's Claim for Deliberate Indifference
State Represented Defendants Drs. Hammer, Dinello, and
Mueller move for summary judgment to dismiss the claims
against them by Plaintiff Gradia. (23-CV-5660, dkt. no. 18.)
At the relevant times, Dr. Mueller was the RMD assigned
to the hub that included Eastern Correctional Facility, where
Plaintiff Gradia was housed, and Drs. Hammer and Dinello
were RMDs assigned to other hubs. (See SRD 56.1 Stmt.:
Gradia ¶ 1; Memorandum of Law in Support of State
Represented Defendants’ Motion for Summary Judgment,
dated November 16, 2023 (“SRD MSJ Br.: Gradia”) [23-
CV-5660, dkt. no. 25] at 12; Declaration of Dr. John
Hammer (“Hammer Decl.: Gradia”), dated May 20, 2021 [23-
CV-5660, dkt. no. 19] ¶¶ 17-19; Declaration of Dr. David S.
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Dinello, dated May 20, 2021 (“Dinello Decl.: Gradia”) [23-
CV-5660, dkt. no. 20] ¶ 28.)
*13 Although the Amended Complaint complains of the
denial of pain medications on a variety of dates (see, e.g.,
Amended Complaint as Severed from Allen I, filed June 30,
2023 (“AC: Gradia”) [23-CV-5660, dkt. no. 1] ¶¶ 272-367),
Plaintiff's Amended Memorandum of Law in Opposition to
the motion for summary judgment only discusses two denials
(see Pl. Opp'n at 32-33). Accordingly, the Court will limit its
discussion to those.
As set out by Dr. Carinci, “John Gradia is 51 years old
and ... has a long history of physical ailments ranging
from recurrent prostatitis to serious degenerative lumbar disc
disease, degenerative joint disease in the right knee.” (Carinci
Rpt., dkt. no. 352-7 at 3.) Beginning in April of 2013,
Plaintiff complained of “severe lower back, groin, rectum,
and testicular pain” that prevented him from sleeping. (Id.)
In the April to June time period, he was treated with, inter
alia, Percocet and Ultram, the latter on the recommendation
of Dr. Thomas Stellato, a urology specialist. (Id.) Plaintiff
Gradia continued to complain of severe pain, including in an
October 21, 2013, formal grievance asking that he be afforded
“appropriate pain medication whereas I do not have to suffer
in pain every day.” (Id. at 3-4 (citing id. at J. Gradia 37).)
A January 22, 2014 lumbar spine X-ray was performed
which, when compared to Plaintiff's 2007 X-ray, confirmed
that “considerable disease in Mr. Gradia's spine had
progressed.” (Id. at 4 (citing id. at J. Gradia 50-51).) A March
4 MRI also reflected “significant findings,” and a neurologist
recommended that Plaintiff Gradia be prescribed Neurontin,
which he took with occasional varying effects. (Id.)
X-rays and MRIs in June and July of 2015 again “confirmed
significant disease in [Plaintiff's] spine,” and he received
three expert opinions on a surgical option. (Id. at 5.)
On February 26, 2016, Plaintiff Gradia underwent anterior
lumbar interbody fusion surgery and was given Ultram,
Neurontin, and Motrin for pain management. (Id.) In March
of 2016, Provider Dr. Andola's request for a twelve-month
prescription for Neurontin was approved. (Id. (citing Carinci
Rpt., dkt. no. 352-9 at J. Gradia 114-115).) An April 25, 2016
MRI found a “new left lateral disc herniation at L4-5 ....” (Id.
at 6 (citing Carinci Rpt., dkt. no. 352-9 at J. Gradia 132-33).)
On May 6, 2016, Plaintiff noted that his medication was
not working and asked for an increase of his Neurontin.
(Id. (citing Carinci Rpt., dkt. no. 352-9 at J. Gradia 134).)
An EMG conducted by Dr. George Forrest on May 13,
2016, “suggest[ed] chronic multi-level root irritation.” (Id.
(citing Carinci Rpt., dkt. no. 352-9 at J. Gradia 135-36).)
Plaintiff was treated with Neurontin and Percocet in June
and July 2016; the Percocet was decreased in August, and
Plaintiff Gradia filed a grievance relating to his pain in
September of 2016 where he requested “[t]o be administered
the appropriate amount of pain medication that I was on to
alleviate the constant pain I have to suffer ....” (Id.; Carinci
Rpt., dkt. no. 352-10 at J. Gradia 165.) The September 2016
pain therapy consultant recommended continuing Neurontin
but increasing Percocet; the latter recommendation was not
approved. (Carinci Rpt., dkt. no. 352-7 at 6.)
As Dr. Carinci relates:
On March 1, 2017, Mr. Gradia received a nerve block
and epidural block injection under fluoroscopy at Harris
Anesthesia. [ ] Harris Anesthesia requested he be given
post-operative medication for two weeks until the block
takes full effect. [ ] A day later, he reported sharp pain like
“someone sticking a knife in my rectum and twisting it.” [ ]
Mr. Gradia's Treatment and Medication Chart indicates that
his pain medication was not adjusted as recommended by
the specialist and he continued to receive the same dosage
of Neurontin (TID) and single dose of Percocet a day. [ ] As
Mr. Gradia's pain continued to persist, on April 13, 2017 he
met with Dr. DiRisio again who recommended an injection
at L5-S1 to see if his problem is higher up his spine. [ ]
On April 28, 2017 he was back at Harris Anesthesia for
a pain management consultation where it was suggested
his Neurontin be increased from 900mg to 1200mg and
that he be scheduled for nerve root injections to L3-4 and
L4-5. [ ] On May 19, 2017 Dr. Andola examined Mr. Gradia
and noted worsening symptoms in his back, anus, scrotum,
inner thigh, with chronic burning numbness. [ ] She noted
that he had to stand for three hours during the night because
the pain was worse when he laid down. [ ] Dr. Andola
prescribed the maximum dose of Neurontin (1200mg) and
increased his Percocet dosage to BID for two weeks.
*14 (Id. at 6-7.)
On June 1, 2017, the MWAP Policy was promulgated, at
which time Plaintiff Gradia was treated with Neurontin and
Percocet. (Id. at 7.) On June 7, 2017, Dr. Andola submitted
an MWAP request to renew Plaintiff's Percocet prescription
for five days which, after some back and forth, was denied
by Dr. Mueller. (Id. (citing Carinci Rpt., dkt. no. 352-11 at J.
Gradia at 213-14, 217, 220).) Dr. Hammer responded noting
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that “Dr. Mueller [the assigned RMD] is out today. Was this
an informational email or do you require some assistance
with this case?” (Carinci Rpt., dkt. no. 352-11 at J. Gradia
219.) Dr. Hammer states, without contradiction, that he had
no involvement with the June 2017 Percocet MWAP request
other than that response. (Hammer Decl.: Gradia ¶¶ 16-21.)
On June 16, 2017, Plaintiff Gradia is recorded as telling a
nurse “I don't know why I'm suffering with all this pain
when it was recommended by ‘pain management’ that I
receive my pain medications for two weeks [after] this
injection.” (Carinci Rpt., dkt. no. 352-7 at 7; Carinci Rpt., dkt.
no. 352-11 at J. Gradia 230.)
The first denial at issue in Plaintiff's Opposition is the June
23, 2017 MWAP request submitted by Dr. Andola to renew
Plaintiff's Neurontin prescription for a year, noting his surgery
and that he was currently on Neurontin (Gabapentin). (Pl.
Opp'n at 32; Carinci Rpt., dkt. no. 352-11 at J. Gradia
241-244.) Dr. Mueller denied the twelve-month request and
only approved thirty days with two refills. (Carinci Rpt., dkt.
no. 352-11 at J. Gradia 244.) In her Declaration, Dr. Mueller
cites no patient-specific reason for this denial (Declaration of
Dr. Susan C. Mueller, dated November 13, 2023 (“Mueller
Decl.: Gradia”) [23-CV-5660, dkt. no. 21] ¶¶ 37-41), and
indeed cited no reason for the denial on the MWAP (see
Carinci Rpt., dkt. no. 352-11 at J. Gradia 244).
As Dr. Carinci reports:
On July 21, 2017 Mr. Gradia returned to Harris Anesthesia
for pain therapy consultation and was recommended for
injection treatment every 14 days, Ultram 100mg TID,
and follow-up appointment with neurosurgery. [ ] These
recommendations were entered into his AHR on the same
day and noted “agree ... on injection every 14 days.” [ ]
On or around August 25, 2017 Dr. Andola submitted a
MWAP request for a one-month duration of Ultram. [ ]
Dr. Andola specified that the request followed the 7/21/17
pain management consultation recommendation to treat
Mr. Gradia's pain. [ ] Dr. Andola further documented in
the MWAP request form the specialist recommendation
of Neurontin and Percocet (which was previously denied)
be prescribed for his pain management and identified past
treatments attempted of Ibuprofen and Tylenol #3. [ ] RMD
Mueller did not approve the request stating an MRI finding
was not clinically significant, that he never had PT for
his lower back pain and recommended to “explore safer
alternatives as well as continue Pain Management.”
(Carinci Rpt., dkt. no. 352-7 at 7; see also Carinci Rpt., dkt.
no. 352-11 at J. Gradia 250; Carinci Rpt., dkt. no. 352-12 at
J. Gradia 252-54 (MWAP request forms).)
*15 Dr. Dinello also emailed his denial of the MWAP
request stating that there was insufficient medical justification
for the medication. (Carinci Rpt., dkt. no. 352-12 at J. Gradia
256.)
As in Ippolito, a jury could find that Dr. Mueller and Dr.
Dinello acted with deliberate indifference by “reflexively
rely[ing] on the purported [medical] soundness of the [MWAP
policy] itself, even where they [were] on notice” by Plaintiff's
past successful treatment with MWAP medications and the
recommendation of outside experts and prison doctors “that
a departure [from the MWAP policy] might be medically
appropriate.” 2012 WL 4210125, at *13 (internal quotations
omitted); see also Johnson, 412 F.3d at 406. Accordingly,
Dr. Mueller and Dr. Dinello's motion for summary judgment
as to Plaintiff Gradia's claim of deliberate indifference (23-
CV-5660, dkt. no. 18) is denied.
As noted above, Dr. Hammer had no involvement with either
of the complained of MWAP denials (see Hammer Decl.:
Gradia ¶¶ 16-21), and thus is entitled to summary judgment.
E. Plaintiff Hernandez's Claim for Deliberate
Indifference
Dr. Kathleen Mantaro (23-CV-5661, dkt. no. 24) and State
Represented Defendant Dr. Susan Mueller (23-CV-5661, dkt.
no. 29) move for summary judgment to dismiss the claims
against them by Plaintiff Hernandez.
As reported by Dr. Carinci:
Angel Hernandez is a 58-year-old
patient who suffers from various
physical maladies including back pain
with radiating symptoms to the left
side of his body. He is currently in
the custody of DOCCS and residing
in Wallkill Correctional Facility. He
is documented to be suffering from
degenerative disc disease at his L5-
S1, osteoarthritis, and left carpal
tunnel syndrome with numbness and
neuropathy. His medical problem list
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includes pain management, cervical
spine syndromes, back pain with
radiating symptoms. [ ] Mr. Hernandez
has a history of gunshot wounds and
related surgeries to his left arm, as
well as a remote history of opioid
abuse before his incarceration in 2000.
[ ] His medical records show well
documented and longstanding chronic
pain ailments that require consistent
pain management intervention to
control.
(Carinci Rpt., dkt. no. 352-30 at 3.)
Dr. Kathleen Mantaro, Plaintiff Hernandez's provider at
Coxsackie, reports that when she began treatment, Plaintiff
had prescriptions for Ultram and Neurontin, prescribed by
Dr. Miller. (Declaration of Kathleen Mantaro (“Mantaro Decl:
Hernandez”) [23-CV-5661, dkt. no. 27] ¶ 9.) As she reports,
on January 24, 2017, Plaintiff Hernandez reported left arm
numbness, that he had previously had an MRI on the lower
spine, and needed an EMG. Dr. Mantaro ordered an EMG
and renewed his Ultram prescription. (Id. ¶ 10 (citing Ex.
A [23-CV-5661, dkt. no. 27-1] at Mantaro-001).) She noted
that the December 12, 2016 MRI of Plaintiff Hernandez's
lower spine showed “diffuse degenerative changes without
focal abnormality.” (Id. ¶ 11 (citing Ex. A at Mantaro-002).)
Plaintiff's EMG on March 3, 2017, reported normal. (Id.
¶ 12 (citing Ex. A at Mantaro-004-05).) On March 13,
2017, Plaintiff Hernandez complained of back pain, and Dr.
Mantaro ordered several referrals and prescribed Flexeril.
(Id. ¶ 13 (citing Ex. A at Mantaro-003).) Dr. Mantaro
referred Plaintiff for a surgery consultation, and Dr. Chismark,
the surgeon, recommended Celebrex and consideration of
Neurontin, which Dr. Mantaro ordered. (Id. ¶ 14 (citing Ex.
A at Mantaro-006-07).)
*16 On May 1, 2017, Plaintiff Hernandez complained of
shoulder pain, and Dr. Mantaro referred him for an MRI and
an orthopedic consultation; those requests were denied by
Dr. Mueller. (Id. ¶ 15 (citing Ex. A at Mantaro-008-11).)
Following a pain therapy consultation on March 15, 2017,
Dr. Azam, the pain expert, recommended an increase in
Neurontin, among other things. (Id. ¶ 16 (citing Ex. A
at Mantaro-012).) Because she agreed with Dr. Azam's
recommendation, Dr. Mantaro ordered an increase in Plaintiff
Hernandez's Neurontin and further increased his Ultram
and Neurontin on May 24, 2017 in response to continued
complaints of shoulder and lower back pain. (Id. ¶¶ 16-17
(citing Ex. A at Mantaro-012-15).) She also ordered an MRI
and physical therapy referral. (Id. ¶ 18 (citing Ex. A at
Mantaro-013, 015-16).)
The MWAP policy was promulgated on June 1, 2017. (Id. ¶
19.)
At a follow-up appointment on June 15, 2017, Dr. Azam
recommended continuing Neurontin, among other things. (Id.
¶ 20 (citing Ex. A at Mantaro-017).) Dr. Mantaro agreed with
Dr. Azam's recommendations and, on June 27, 2017, ordered
increases in his Ultram and Neurontin prescriptions. (Id. ¶ 21
(citing Ex. A at Mantaro-027, 018).)
On June 26, 2017, Dr. Miller, another provider, submitted
an MWAP request for renewal of Plaintiff Hernandez's
Neurontin prescription. (Id. ¶ 22 (citing Mantaro-019, 021).)
Dr. Mueller denied the request, noting “no EMG or mention
of 5 pt. sensory exam diagnostic of peripheral neuropathy”
and suggesting utilizing “safer agents.” (Id.; Ex. A at
Mantaro-019-21.)
Dr. Miller also submitted an MWAP request to renew
Plaintiff Hernandez's Ultram prescription. That request was
similarly denied by Dr. Mueller. (Id. ¶ 23 (citing Ex. A at
Mantaro-022-24).) In denying the request, Dr. Mueller stated:
“Has not had PT for LBP since 2014. Past success with
steroid injections. Recommend PT for back, counseling to
accept recommended interventional pain procedures.” (Ex. A
at Mantaro-024.) Very shortly after that, Dr. Dinello agreed
with the denial and ordered that Plaintiff be weaned off of
Ultram. (Declaration of Kathleeen Mantaro, dated November
11, 2023 (“Mantaro Decl.: Hernandez”) [23-CV-5661, dkt.
no. 27] ¶ 23 (citing Ex. A [23-CV-5661, dkt. no. 27-1] at
Mantaro-025).)
On June 27, 2017, Dr. Mantaro adjusted Plaintiff's Ultram and
Neurontin prescriptions, and on June 29 noted that Ultram
was not approved and needed to be tapered. (Id. ¶ 25 (citing
Ex. A at Mantaro-027); Ex. A at Mantaro-029.) On July
18, 2017, Dr. Mantaro ordered Plaintiff a Transcutaneous
Electrical Nerve Stimulation (“TENS”) unit to assist with
his back pain and referred him to a follow up with Dr.
Mueller. (Mantaro Decl.: Hernandez ¶ 26 (citing Ex. A at
Mantaro-030).) Finally, on August 2, 2017, at the instruction
of Drs. Mueller and Dinello, Dr. Mantaro ordered taper
schedules of Plaintiff Hernandez's Ultram and Neurontin.
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(Id. ¶ 27 (citing Ex. A at Mantaro-031-032).) Dr. Mantaro
departed DOCCS on or about August 4, 2017. (Id. ¶ 28.)
Plaintiff faults Dr. Mantaro for not appealing the denials
to the CMO or RMD with additional information and for
not prescribing alternative medications. (Pl. Opp'n at 34.)
However, Dr. Mantaro explained:
I had no ability to fill these
prescriptions without approval. The
MWAP policy did not have an appeal
mechanism and my understanding was
there were no other options after
a non-approval but to follow the
recommendations made by my clinical
supervisor Dr. Susan Mueller and Dr.
Dinello.
(Mantaro Decl.: Hernandez ¶ 24.) There is no evidence to the
contrary in the record.
Because Dr. Mantaro was entirely responsive to
Plaintiff Hernandez's pain complaints, including prescribing
medications recommended by surgery and pain management
experts and prescribing a TENS unit after noting that
Plaintiff's MWAP medications had not been approved, she
cannot be found to have been deliberately indifferent on this
record. With respect to the tapering of Plaintiff's medication,
Dr. Mantaro explained, without contradiction, that there was
no formal appeal process from the RMDs’ denial of the
MWAP request. Accordingly, Dr. Mantaro is entitled to
summary judgment, and her motion (23-CV-5661, dkt. no.
24) is granted as to Plaintiff Hernandez's claim of deliberate
indifference.
*17 With respect to Dr. Mueller, in rejecting the June
26, 2017 MWAP request for Neurontin she noted, “[n]o
EMG or mention of 5 pt. sensory exam, diagnostic of
peripheral neuropathy” and suggested using safer agents. (Ex.
A at Mantaro-021.) Similarly in denying Dr. Miller's June
26 MWAP request to renew Plaintiff Hernandez's Ultram
prescriptions, Dr. Mueller recommended “PT for back”
and “counseling to accept recommended interventional pain
procedures.” (Id. at Mantaro-022-24.) However, Dr. Carinci
states that Plaintiff's “medical records show well documented
and longstanding chronic pain ailments that require consistent
pain management intervention to control.” (Carinci Rpt.,
dkt. no. 352-30 at 3 (emphasis added).) Dr. Carinci noted
numerous imagings performed on Plaintiff Hernandez in
2002, 2003, 2004, 2010, 2016, and 2017, documented
his “chronic pain ailments.” (Id. at 3-4.) In addition to
ignoring these imagings, Dr. Mueller also rejected the
recommendations of two experts (one surgeon and one
pain management expert on two occasions) and of DOCCS
providers Drs. Miller and Mantaro, as well as Plaintiff
Hernandez's lengthy history of effective pain management
on his MWAP medications. Based on the record before
the Court, there is a question of fact as to whether Dr.
Mueller exercised her medical judgment in denying the
MWAP requests or whether she relied reflexively on the
MWAP policies. As in Ippolito, a jury could find that Dr.
Mueller acted with deliberate indifference by “reflexively
rely[ing] on the purported [medical] soundness of the [MWAP
policy] itself, even where [she was] on notice” by Plaintiff's
past successful treatment with MWAP medications and the
recommendation of outside experts and prison doctors “that
a departure [from the MWAP policy] might be medically
appropriate.” 2012 WL 4210125, at *13 (internal quotations
omitted); see also Johnson, 412 F.3d at 406. Accordingly,
Dr. Mueller's motion for summary judgment (23-CV-5661,
dkt. no. 29) as to Plaintiff Hernandez's claim of deliberate
indifference is denied.
F. Plaintiff Knight's Claim for Deliberate Indifference
Dr. Chung Lee seeks summary judgment dismissing the claim
against him by Plaintiff Knight. (23-CV-5662, dkt. no. 12.)
As related by Dr. Carinci:
Hugh Knight is currently in the
custody of Shawangunk Correctional
Facility. Mr. Knight is a partial
paraplegic caused by multiple gunshot
wounds from 1990. [ ] In 1991,
he had spinal cord surgery. Mr.
Knight's serious and traumatic injuries
cause him severe and chronic
pain that requires effective pain
management. Mr. Knight has well
documented neuropathy, bilateral leg
pain, radiating shoulder pain, hip pain,
degenerative lower back and cervical
spine disease. [ ] Mr. Knight has
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ambulation issues that require him to
use a wheelchair.
(Carinci Rpt., dkt. no. 355-1 at 3.)
As noted by Dr. Lee, the gunshot wounds initially left Plaintiff
Knight paralyzed. (Declaration of Chung Lee, dated October
18, 2023 (“Lee Decl.: Knight”) [23-CV-5662, dkt. no. 15]
¶ 13.) He later gained partial functionality and was able to
walk with a cane. (Id.) When he transferred to Shawangunk
in 2014, Plaintiff Knight was taking Neurontin which he
continued to May 30, 2015, when he refused it. (Id. ¶ 14
(citing Ex. A [23-CV-5662, dkt. no. 15-1] at Lee001-02,
004).) In October of 2015, Dr. Lee re-prescribed Neurontin
and added Flexeril in response to Plaintiff's complaints of
pain. (Id. ¶ 15 (citing Ex. A at Lee007).) In November of 2015,
because Plaintiff Knight refused to take his Neurontin, it was
discontinued. (Id. ¶ 16 (citing Ex. A at Lee008).)
Following an evaluation at Albany Medical Center for
“progressive peripheral neuropathy,” the attending physician
noted that Plaintiff stated that he had tried different
medications to address his pain (Neurontin, Lyrica, Tramadol,
Toradol, Gabapentin), in different combinations but nothing
had been effective. (Id. ¶ 18.) The specialist prescribed
Elavil, aspirin, and Flexeril. (Id.) Following a neurology
consultation in March of 2016, the neurologist recommended
an increase in Plaintiff Knight's Elavil prescription, which Dr.
Lee ordered. (Id. ¶ 19 (citing Ex. A at Lee028, 029).) Dr. Lee
increased Plaintiff's Elavil on March 14 and 31 of 2016 in an
effort to address Plaintiff's complaints of pain. (Id. ¶ 20 (citing
Ex. A at Lee030, 31).)
Even with the adjustments in his medications, however,
Plaintiff Knight's pain increased in the spring of 2016. For
example, on April 26, 2016, Plaintiff reported “[increased]
pain due to recent need for [greater] ambulation when moved
to C block[;] requesting closer cell to medical so he can walk
to medication call out.” (Carinci Rpt., dkt. no. 355-5 at H
Knight 267.)
These complaints of pain continued without any change in
medication. For example, on May 8, 2016, Plaintiff Knight
failed to appear for a blood pressure check, reporting “too
much pain in leg to move this far.” (Carinci Rpt., dkt. no.
355-6 at H Knight 268.) On May 16, he reported “footpain,”
and the provider noted “may change his cell” closer to the
medical station. (Id. at H Knight 269.) For months, Plaintiff
Knight refused blood pressure checks because pain prevented
him from walking so far. (Id. at H Knight 271 (5/21/16);
H Knight 275 (6/12/16); H Knight 277 (6/26/16); H Knight
282 (10/21/16); H Knight 282 (11/22/16).) Although Dr.
Lee referred Plaintiff to physical therapy for an appointment
on May 6, 2016 (id. at H Knight 274), he failed to adjust
Plaintiff's medication to reduce his pain.
*18 A specialist recommendation dated August 31,
2016, suggested “consider adding Gabapentin [?] for pain
control.” (Id. at H Knight 280.) On September 30, 2016, the
provider noted “severe neuropathy” and re-prescribed Elavil.
(Id. at H Knight 281.)
As set out in Dr. Lee's Declaration, from mid-February of
2017 through October of 2018, Plaintiff Knight presented no
complaints of pain. (Lee Decl.: Knight ¶¶ 21-34; see also
Carinci Rpt., dkt. no. 355-6 at H Knight 295.)
On October 11, 2018, Plaintiff Knight complained of
“excessive, neurotic pain” in his foot and requested “Lyrica
or something like it.” (Lee Decl.: Knight ¶ 35 (citing Ex. A
at Lee099).) On October 30, Dr. Lee prescribed Cymbalta
“which [in his] medical judgment was an appropriate
medication to treat [Plaintiff's] complaints of pain.” (Id. ¶
36 (citing Ex. A at Lee100).) Plaintiff Knight continued on
Cymbalta through the end of 2018, and Dr. Lee renewed his
prescription on January 15, 2019. (Id. ¶¶ 37-38.) Plaintiff
continued on Cymbalta with some changes in timing and
dosage with no complaints of pain through November of
2019, when Dr. Lee retired. (Id. ¶¶ 39-44.)
Plaintiff Knight argues that he had been prescribed Lyrica
in October of 2006 and that prescription was continually
approved until it was discontinued on June 8, 2011. (See Pl.
Opp'n at 35.) He argues that, after his transfer to Shawangunk
in 2014, Dr. Lee was deliberately indifferent to Plaintiff
Knight's pain because Lyrica had been shown to be effective
for Plaintiff, but Dr. Lee failed to prescribe it. (See id. at
35-36.) Although, as noted above, Dr. Lee sent Plaintiff
Knight for various expert consultations and followed the
pain medication recommendations made by the experts,
the record reflects a multi-month period mid-2016 when
Plaintiff continually complained of pain so severe that he
could not walk to have his blood pressure checked, during
which time Dr. Lee failed to prescribe Lyrica or otherwise
adjust Plaintiff's medications to alleviate or decrease his
pain. In light of Dr. Lee's intimate knowledge of Plaintiff
Knight's medical history and Plaintiff Knight's continuing
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complaints, a jury could find that Dr. Lee was deliberately
indifferent to Plaintiff's pain by failing to prescribe effective
pain medication. Accordingly, Dr. Lee's motion for summary
judgment (23-CV-5662, dkt. no. 12) as to Plaintiff Knight's
claim of deliberate indifference is denied.
G. Plaintiff Mathis's Claim for Deliberate Indifference
State Represented Defendant Dr. Mueller moves for summary
judgment to dismiss the claim against her by Plaintiff Mathis.
(23-CV-5663, dkt. no. 14.)
As related by Dr. Carinci: “Mr. Mathis has documented
chronic pain ailments that require pain management,
including extensive disc degermation disease at L1-S1, and
segmental spinal stenosis at L4-S1 with facet arthropathy,
carpel tunnel syndrome in left wrist, and chronic rotator cuff
tendinopathy.” (Carinci Rpt., dkt. no. 356-26 at 3.) Dr. Carinci
also reports that Plaintiff Mathis had been on Neurontin or
Ultram from as early as April 2013 (id.), and had suffered
two laminectomies on his lumbar spine, one in July of 2014,
and one in November of 2016 (id. at 3, 4). After each one,
the surgeons prescribed Neurontin. (Id.) Following an April
29, 2016 spinal X-ray showing extensive disc degeneration
and segmental spinal stenosis with facet arthropathy, Plaintiff
Mathis was on Ultram, which he refused at least once due to
vomiting. (Id. at 4.)
*19 Plaintiff Mathis complains of Dr. Mueller's denial of Dr.
Lee's MWAP requests of June 26, 2017, July 27, 2017, and
September 27, 2017. (See Pl. Opp'n at 37-39.)
On June 26, 2017, following X-rays and an EMG study on
Plaintiff's left wrist, Dr. Lee submitted an MWAP request for
Neurontin with eleven refills, which, as noted above, had been
effective in relieving Plaintiff Mathis's pain. (Carinci Rpt.,
dkt. no. 356-26 at 4; Carinci Rpt., dkt. no. 356-27 at T Mathis
086-089.) In the request, Dr. Lee noted under “Diagnosis,”
“s/p laminectomy x2, radiculopathy 14/5/s1.” (Carinci Rpt.,
dkt. no. 356-27 at T Mathis 087.) He noted specialty
consultations, “ort; laminectomy x2, pai[n]; facet injection
12-9-15,” and “Treatment options attempted/step therapy:”
“surgery, back brace, facet injection, pth & [non-steroidal
anti-inflammatory drugs].” (Id.) Dr. Mueller approved only
a one-month supply, commenting: “Recommend [follow-
up] w/ Pain Management, PT, Neurosurg/Ortho as indicated.
Safer agents indicated such as Lamictal >>>Cymbalta,
Lidoderm patches, Voltaren gel, etc. Please contact me for
Lamictal titrating dosage schedule.” (Carinci Rpt., dkt. no.
356-27 at T Mathis 089-90.)
While Plaintiff Mathis was in the Shawangunk infirmary for
lower back pain, on July 31, 2017, Dr. Lee submitted to Dr.
Mueller an MWAP request for a two-week supply of Ultram
with no refills. (Carinci Rpt., dkt. no. 356-28 at T Mathis
106-07.) Dr. Mueller denied the request, commenting: “You
failed to mention that pt is also on Neurontin 2400 mg. In that
approval, recommended referral to PT, Pain Management,
Neurosurg, etc. None on of these recommendations have been
followed. Will approve 5 day supply only. Please submit new
request accordingly. Also, please updated [sic] form when you
do so, as requested several times in the past.” (Id. at T Mathis
108-109.)
Plaintiff Mathis's pain did not abate. (See, e.g., id. at T Mathis
101 (July 14, 2017 notes of “burning in lower back and legs
going numb severe pain [right] side lower back”); id. at T
Mathis 101 (July 25, 2017 notes of “[complaint of] numbness,
tingling [down] both legs, [and] burning sensation”).)
On September 27, 2017, Dr. Lee submitted an MWAP request
to Dr. Mueller for Neurontin with eleven refills. (Id. at T
Mathis 122-24.) He noted under radiologic testing an August
23, 2017 film showing “ctb; recurrent spinal stenonis.” (Id.)
Again, Dr. Mueller denied the request, commenting: “No
EMG, PE noted. MWAP of 6/27 recommended use of safer
agents with many alternatives listed. Obviously no changes
made in 3 month interim. Please taper to d/c. Please refer
to earlier MWAP and lecture and handouts of 8/17 for
further assistance with management options. Also, once again
you are using incorrect form.” (Id. at T Mathis 125-126.)
In November of 2017, Plaintiff was again admitted to the
infirmary for uncontrolled lower back pain and chest pain. (Id.
at T Mathis 129.)
In denying Dr. Lee's June 26, 2017, July 27, 2017, and
September 27, 2017 MWAP requests, asking for more tests
and advocating “safer alternatives”, Dr. Mueller disregarded
the:
1. Voluminous testing Plaintiff Mathis had undergone
which confirmed his pain;
*20 2. The recommendations of outside experts to treat
Plaintiff's pain with Neurontin and Ultram;
3. Plaintiff's prior effective treatment with Neurontin and
Ultram; and
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4. The recommendation of Plaintiff's treating prison
physician for Neurontin and Ultram.
Accordingly, a question of fact exists as to whether
Dr. Mueller exercised her medical judgment in denying
the MWAP requests—as she stated in her post-litigation
declaration—or whether she relied reflexively on the MWAP
policies—as stated in her denials of the MWAP requests.
As in Ippolito, a jury could find that Dr. Mueller acted
with deliberate indifference by “reflexively rely[ing] on the
purported [medical] soundness of the [MWAP policy] itself,
even where [she was] on notice” by Plaintiff's past successful
treatment with MWAP medications and the recommendation
of outside experts and prison doctors “that a departure [from
the MWAP policy] might be medically appropriate.” 2012
WL 4210125, at *13 (internal quotations omitted); see also
Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion
for summary judgment (23-CV-5663, dkt. no. 14) as to
Plaintiff Mathis's claim for deliberate indifference is denied.
H. Plaintiff Pritchett's Claim for Deliberate
Indifference
State Represented Defendants Dr. David Dinello and Dr.
Susan Mueller move for summary judgment to dismiss the
claims against them by Plaintiff Pritchett. (23-CV-5664, dkt.
no. 16.)
As reported by Dr. Carinci:
Mr. Sean Pritchett is a wheelchair
bound amputee that is currently
residing in Shawangunk Correctional
Facility. He has an above the right
knee amputation that has resulted in
severe nerve pain in his stump and
significant phantom pain. [ ] Mr.
Pritchett's nerve and phantom pain
is a chronic condition that requires
effective pain management control. In
addition, he also suffers from back
pain, degenerative discogenic changes
in his lower back, degenerative joint
disease in his elbow, and severe
degenerative disease in his hip, along
with muscle spasms. [ ] For years, Mr.
Pritchett was treated effectively with
Lyrica to manage his severe nerve and
phantom pain.
(Carinci Rpt., dkt. no. 358-6 at 3.)
Dr. Carinci reported that as early as October of 2007, Plaintiff
was seen by a neurology specialist and reported that his
Neurontin was not helping. (Id.) The specialist recommended
Lyrica, and Plaintiff Pritchett's dosage was increased. (Id.)
After a December 2007 consultation with a pain therapist, the
therapist recommended increasing his Lyrica dosage. (Id. at
3-4; id. at S Pritchett 024.) In 2014, a pain specialist again
recommended Lyrica, and Plaintiff Pritchett's dosage was
increased in August of 2014. (Id. at 4.)
With respect to the MWAPs at issue, Dr. Carinci reports:
In January of 2017, Dr. Lee requested the renewal of Mr.
Pritchett's effective Lyrica medication. The non-formulary
request went to RMD David Dinello who denied the
renewal reasoning that he “will not approve a controlled/
scheduled substance for a chronic pain issue that is not life
or limb threat[en]ing. The risk/benefit ratio is too high.” [ ]
RMD Dinello made this decision without ever treating Mr.
Pritchett or discussing Mr. Pritchett's history with Dr. Lee.
Based on RMD Dinello's denial, on January 30, 2017,
Mr. Pritchett was placed back on Neurontin 1200mg TID
and Cymbalta 30mg PO and was never provided Lyrica
again. [ ] On February 1, 2017 Mr. Pritchett reported to
emergency sick call with nausea, vomiting, headaches due
to the withdrawal of Lyrica. [ ] Two weeks later, Mr.
Pritchett reported to sick call continual diarrhea since being
taken off Lyrica and the pain in his stump had increased.
[ ] On February 21, 2017 Mr. Pritchett again complained to
sick call that he was in severe pain and that he could not
deal with the pain and wanted to see pain management and
a neurosurgeon. [ ] On February 27, 2017 Dr. Lee noted
his increased pain since change from Lyrica to Neurontin
in his medical records, yet nothing was done.
*21 (Id. at 6.)
Dr. Dinello confirmed this reasoning (or lack thereof) in his
declaration:
In response to the request for Lyrica,
and after considering the medical and
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social information, I did not approve
a controlled/scheduled substance for
chronic pain issue such as Plaintiff's
because it was not life or limb
threatening. [ ] It was my medical
judgment that the risks of prescribing
a controlled/scheduled substance with
abuse potential far outweighed the
benefits in a case like Plaintiff's.
Instead, I suggested that Plaintiff could
again be prescribed Gabapentin, if
necessary, because for this patient at
this time, it was a safer drug than the
requested Lyrica.
(Declaration of Dr. David S. Dinello, dated November 15,
2023 (“Dinello Decl.: Pritchett”) [23-CV-5664, dkt. no. 17]
¶¶ 37-38.)
That Dr. Dinello refused an effective medication that Plaintiff
had been taking for many years because the chronic pain
“was not life or limb threatening” might well be the definition
of deliberate indifference to a patient's pain. Accordingly,
Dr. Dinello's motion for summary judgment (23-CV-5664,
dkt. no. 16) as to Plaintiff Pritchett's claim for deliberate
indifference is denied.
Plaintiff Pritchett also complains of Dr. Mueller's September
28, 2017 denial of an MWAP request. 6 As set out in Dr.
Carinci's Report, on June 16, 2017, Dr. Lee submitted an
MWAP request to RMD Mueller for a year's supply of
Neurontin which RMD Mueller approved, but only for three
months. (Carinci Rpt., dkt. no. 358-6 at 5; Carinci Rpt.,
dkt. no. at 358-11 at S Pritchett 177-80.) When Dr. Lee
submitted the follow up request on September 27, 2017, RMD
Mueller did not approve it, stating “Unclear when and why
changed from Lyrica to Neurontin. Recommend change to
safer agent until surgica[l] relief obtained.” (Carinci Rpt.,
dkt. no. at 358-11 at S Pritchett 185-87.) Aside from the fact
that RMD Mueller's reason for denying the MWAP request
is not a medical reason, had she merely reviewed Plaintiff
Pritchett's medication history, she would have seen that it was
Dr. Dinello who ordered Dr. Lee to change from Lyrica, which
had effectively treated Plaintiff's pain for years, to Neurontin,
which was less effective. (See Carinci Rpt., dkt. no. 358-10
at S Pritchett 169-169A.) Dr. Mueller repeated that reason
in her declaration. (Declaration of Dr. Susan C. Mueller,
dated November 13, 2023 (“Mueller Decl.: Pritchett”) [23-
CV-5664, dkt. no. 18] ¶ 27.)
Based on the record before the Court, there is a question
of fact as to whether Dr. Mueller exercised her medical
judgment in denying the MWAP request (for a non-medical
reason)—as she stated in her post-litigation declaration—or
whether she relied reflexively on the MWAP policies then in
effect. As in Ippolito, a jury could find that Dr. Mueller acted
with deliberate indifference by “reflexively rely[ing] on the
purported [medical] soundness of the [MWAP policy] itself,
even where [she was] on notice” by Plaintiff's past successful
treatment with MWAP medications and the recommendation
of outside experts and prison doctors “that a departure [from
the MWAP policy] might be medically appropriate.” 2012
WL 4210125, at *13 (internal quotations omitted); see also
Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion
for summary judgment (23-CV-5664, dkt. no. 16) as to
Plaintiff Pritchett's claim for deliberate indifference is denied.
I. Plaintiff Rivera-Cruz's Claim for Deliberate
Indifference
*22 State Represented Defendant Dr. Susan Mueller moves
for summary judgment to dismiss the claim against her by
Plaintiff Rivera-Cruz. (23-CV-5667, dkt. no. 15.)
As related by Dr. Carinci, “Felipe Rivera-Cruz suffers from
peripheral neuropathy and paraplegia due to gunshot wounds
suffered in 2003. (Carinci Rpt., dkt. no. 360-1 at 3 (citing
id. at Rivera Cruz 025-26).) He is wheelchair bound and
can ambulate about fifty feet with the use of a walker and
knee ankle feet orthotics (“KAFOs”). (Id. (citing id. at Rivera
Cruz 026).) He occasionally suffers from spasms in his lower
extremities. (Id.)
Plaintiff Rivera-Cruz entered the Riker's Island facility in
2011 and took, inter alia, Lyrica for, inter alia, peripheral
neuropathy. (Id.) Upon transfer to Downstate Correctional
Facility in February of 2013, his neuropathy was treated
with, inter alia, Neurontin. (Id.) Later that month when
he transferred to Five Points Correctional Facility, he was
discontinued from Neurontin and placed back on Lyrica.
(Id.) On March 15, Plaintiff Rivera-Cruz complained of
spasms, was started on physical therapy, and on March 28,
started to take Baclofen for muscle spasms. (Id.) In July,
he began taking Elavil to treat his pain. (Id.) Providers
at Five Points continued to treat Plaintiff's neuropathy and
spasms with Lyrica, Elavil, and Baclofen until April 10 when
they switched off Lyrica and back to Neurontin. (Id.) In
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August of 2014, Plaintiff Rivera-Cruz's Neurontin dosage was
increased, and on March 6, 2015, his Neurontin was increased
again as well as Baclofen, and his Elavil was discontinued.
(Id.) When transferred in July of 2015 to Shawangunk
Correctional Facility, Plaintiff continued on Baclofen and
Neurontin, then went off of Neurontin, and then went back on
an increased dose of Neurontin on October 20, 2015. (Id.)
On August 25, 2016, Plaintiff Rivera-Cruz saw Dr. George
Forrest for an EMG. (Id. at 4.) Dr. Forrest confirmed
neuropathy and wrote, “[t]he medications of choice are
Lyrica, Neurontin, Cymbalta, Effexor, and tricyclic anti-
depressants. Neurontin is associated with edema (swelling)
[;] the anti-depressants do not have that side effect.” (Id.)
Plaintiff's providers thereafter discontinued Neurontin and
took him on and off of Elavil. (Carinci Rpt., dkt. no. 360-1 at
4.) Thus, Plaintiff Rivera-Cruz remained only on Baclofen to
treat his ailments. (Id.)
On June 15, 2017 Plaintiff Rivera-Cruz's provider, Dr.
Chung Lee, requested approval for Plaintiff to remain on
Baclofen. (Id. (citing Carinci Rpt., dkt. no. 360-3 at Rivera
Cruz 116-17.) RMD Mueller denied the request stating
only that “information provided does not meet criteria for
approval.” (Carinci Rpt., dkt. no. 360-3 at Rivera Cruz 118.)
Accordingly, Plaintiff Rivera-Cruz's Baclofen prescription
was discontinued, and he lost his “effective pharmacological
treatment for his neuropathy.” (Carinci Rpt., dkt. no. 360-1
at 4.) 7
*23 In her declaration, however, RMD Mueller states the
following with respect to Dr. Lee's MWAP request to continue
Baclofen:
Per my standard practice, I reviewed
the Plaintiff's medical records after
receiving this request. I did not see
an indication that he was suffering
from spasticity. I also noted that
Plaintiff did not appear to have
recently complained of neuropathic
pain, had stated that physical
therapy previously relieved his pain.
But, again, even if he had been
making such complaints, treatment of
neuropathic pain with Baclofen would
have been medically inappropriate.
I further noted that the physician
who performed a recent EMG on
Plaintiff to confirm the presence of
neuropathy had recommended that
Plaintiff's neuropathic pain be treated
with tricyclic antidepressants instead.
(Declaration of Dr. Susan C. Mueller, dated May 20, 2021
(“Mueller Decl.: Rivera-Cruz”) [23-CV-5667, dkt. no. 17] ¶
27.) As Plaintiff Rivera-Cruz argues in opposition, however,
he also suffers from well-documented muscle contractures.
(Agnew Decl., Ex. 80 [23-CV-5667, dkt. no. 29-104] at
RIVERA CRUZ FHS1 25-36, 49, 88, 91, 93, 97, 100-105
and 122.) Between 2016-2017, the FHS1 system documented
at least twenty-one physical therapist notes that memorialize
Plaintiff Rivera-Cruz's muscle contractures. (Ibid.) Muscle
contractures occur when muscle spasticity is uncontrolled.
(Pl. Opp'n at 41 (citing RMD Mueller's Local Civil Rule 56.1
Statement of Undisputed Facts, dated November 15, 2023
(“Mueller 56.1 Stmt.: Rivera-Cruz”) [23-CV-5667, dkt. no.
26] ¶ 14).)
Based on the record before the Court, there is a question of
fact as to whether Dr. Mueller exercised her medical judgment
in denying the MWAP request—as she stated in her post-
litigation declaration—or whether she denied it reflexively for
the non-medical reason that the “[i]nformation provided [did]
not meet criteria for approval”—as stated in her denial of the
MWAP request. (Carinci Rpt., dkt. no. 360-3 at Rivera Cruz
118.) As in Ippolito, a jury could find that Dr. Mueller acted
with deliberate indifference by “reflexively rely[ing] on the
purported [medical] soundness of the [MWAP policy] itself,
even where [she was] on notice” by Plaintiff's past successful
treatment with MWAP medications and the recommendation
of outside experts and prison doctors “that a departure [from
the MWAP policy] might be medically appropriate.” 2012
WL 4210125, at *13 (internal quotations omitted); see also
Johnson, 412 F.3d at 406. Accordingly, Dr. Mueller's motion
for summary judgment (23-CV-5667, dkt. no. 15) as to
Plaintiff Rivera Cruz's claim for deliberate indifference is
denied.
J. Plaintiff Stewart's Claim for Deliberate Indifference
State Represented Defendant Dr. Susan Mueller moves
for summary judgment to dismiss Plaintiff Stewart's claim
against her. (23-CV-5668, dkt. no. 16.)
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Plaintiff Wayne Stewart suffers from paraplegia as a result
of a 2003 gunshot wound and the subsequent amputation
of his right leg and is wheelchair bound. (Carinci Rpt., dkt.
no. 361-18 at 3; Defendant Dr. Susan Mueller's Response to
Plaintiff's Statement of Additional Material Facts Precluding
Summary Judgment, dated March 12, 2024 (“Mueller PSUF
Response: Stewart”) [23-CV-5668, dkt. no. 39] at 2.) As a
result of his injuries, Plaintiff Stewart suffers from chronic
pain. (Carinci Rpt., dkt. no. 361-20 at W Stewart 117.) At the
time of his transfer to DOCCS custody in April 2017, Plaintiff
Stewart's medication was listed as MS Contin. (Carinci Rpt.,
dkt. no. 361-18 at 1.) In June 2017, Plaintiff's MS Contin
was changed to short-acting Percocet. (Plaintiff's Response
to Defendant's Statements of Undisputed Facts and Plaintiff's
Statement of Additional Material Facts Precluding Summary
Judgment, dated January 1, 2023 (“PSUF: Stewart”) [23-
CV-5668, dkt. no. 25] ¶ 157.)
*24 On June 26, 2017, Dr. Chung Lee submitted an MWAP
Request to Dr. Mueller for renewal of Plaintiff Stewart's
Percocet prescription at 5 mg for 30 days to treat his pain.
Mueller 56.1 Stmt.: Stewart ¶¶ 8-9.) Dr. Mueller denied
the request, writing “Nothing on this form to support round
the clock usage of Percocet. Remote [gunshot wounds]
does not equate severe pain necessitating strong narcotic
analgesia.” (Carinci Rpt., dkt. no. 361-20 at W Stewart 104.)
Dr. Mueller suggested Dr. Lee “explore safer avenues” of
treatment with Plaintiff. (Id.) In her declaration, Dr. Mueller
stated “[t]he information provided on the MWAP Request
was not sufficient to justify the renewal of the prescription
for Percocet” and that in her opinion “there was ... nothing
on the MWAP Request form” to support its administration.
(Declaration of Dr. Susan C. Mueller, dated May 20, 2021
(“Mueller Decl.: Stewart”) [23-CV-5668, dkt. no. 17] ¶¶ 23,
26.) Dr. Mueller also referenced information provided by
Dr. Lee on the MWAP Request form regarding Plaintiff's
condition and noted that his medical records indicated he had
broken his leg in 2017. (See id. ¶¶ 25-26.)
Dr. Mueller argues that Plaintiff cannot satisfy the subjective
prong of the deliberative indifference inquiry because the
evidence demonstrates she made a principled decision
“based upon the MWAP Request, her review of the
Plaintiff's medical records, and her medical knowledge and
experience[.]” (Memorandum of Law in Support of State
Represent Defendant's Motion for Summary Judgment, dated
November 15, 2023 (“SRD MSJ Br.: Stewart”) [23-CV-5668,
dkt. no. 20] at 12-13.) However, viewing the record in the
light most favorable to the non-moving party, there is an
issue of fact as to whether Dr. Mueller reviewed Plaintiff
Stewart's medical records to form an independent medical
judgment or instead relied solely on the information presented
in the MWAP Request form and the MWAP policies. While
Dr. Mueller states that she “review[ed] the information
submitted for this patient” (Mueller Decl.: Stewart ¶ 28),
she never specifies what information that included. Similarly,
Dr. Mueller states that generally it was her “practice to
consider all criteria in determining whether prescription of
an MWAP medication would be appropriate” (id. ¶ 18), but
never explains the criteria. There is also no indication that
Dr. Mueller specifically considered the efficacy of Plaintiff
Stewart's prior Percocet treatment or the risk that his pain
would worsen if he was taken off Percocet in favor of an
alternative treatment.
Under these circumstances, a reasonable jury could conclude
that Dr. Mueller disregarded an excessive risk that Plaintiff
Stewart would suffer a great and unnecessary degree of
chronic pain if she did not approve the renewal of his
Percocet prescription. See Brock, 315 F.3d at 164. According,
Dr. Mueller's motion for summary judgment (23-CV-5668,
dkt. no. 16) as to Plaintiff Stewart's claim for deliberate
indifference is denied.
K. Qualified Immunity Defense
In evaluating Defendants’ qualified immunity defense, the
Court first seeks to identify the right that Plaintiffs assert
was clearly established and that Defendants violated. See
Knight v. N.Y. State Dep't of Corr., No. 18-CV-7172, 2022
WL 1004186, at *18 (S.D.N.Y. Mar. 30, 2022). Plaintiffs
assert that the clearly established right each of the Defendants
should have known he or she was violating was each
Plaintiff's right to be free from prison officials’ “deliberate[ ]
indifferen[ce] to an inmate's serious medical needs.” (Pl.
Opp'n at 67.)
In each of their motions for summary judgment, the State
Represented Defendants argue the right was narrower,
defining it in terms of each Plaintiff's specific treatment.
For example, with respect to Plaintiff Gradia, the State
Represented Defendants argue the right RMD Mueller
violated was “in August 2017 to deny a request for Ultram,
and in June 2018 to deny a request for Neurontin—that is,
to deny long-term prescriptions of medications that have
addictive qualities and potentially serious side-effects—in
favor of safer treatment strategies and medications.” (SRD
MSJ Br.: Gradia at 29.) Similarly, for Plaintiff Dockery,
the SRDs define the right violated by RMD Mueller as
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the “denial of an MWAP request seeking to restart Plaintiff
on Neurontin” and the right violated by RMD Dinello as
the “denial of an MWAP request to treat Plaintiff with
Neurontin and recommend[ation] that Neurontin be gradually
tapered over a four week period and replaced with a safer
non-habit forming nerve modulating agent effective in MS
treatment instead.” (Memorandum of Law in Support of State
Represented Defendants’ Motion for Summary Judgment,
dated November 15, 2023 (“SRD MSJ Br.: Dockery”) [23-
CV-5658, dkt. no. 35] at 30-32.)
*25 Dr. Chung Lee does not articulate a particular right,
instead arguing that “[t]he constitutional violation here is
dependent on a myriad of unique facts regarding individual
treatment decisions” and cannot fit within any clearly
established right, thereby entitling him to qualified immunity.
(Defendant Chung Lee's Amended Memorandum of Law
in Support of his Motion for Summary Judgment, dated
November 21, 2023 (“Lee MSJ Br.: Knight”) [23-CV-5662,
dkt. no. 19] at 21.) 8
At a minimum, Plaintiffs have a “right to be free from
deliberate indifference to serious medical needs.” See
LaBounty, 137 F.3d at 74 (rejecting defendants’ narrower
view that the right at issue in the plaintiff's Eighth Amendment
claim was a “right to be free from crumbling asbestos”).
However, because Court of Appeals precedent demands
defining the “clearly established right” with specificity as to
the particular conduct, see Vega, 963 F.3d at 275, the Court
finds that a narrower definition of Plaintiffs’ right at issue is
required.
1. The SRDs’ Qualified Immunity Defense
In Griffin v. Amatucci, an inmate at Upstate Correctional
Facility alleged that a doctor and a nurse at the facility
had violated the Eighth Amendment “by refusing to provide
him with a treating-physician-recommended humidifier for
his ... [CPAP] machine pursuant to a policy of not providing
humidifiers.” 611 F. App'x at 734. The Court of Appeals relied
on Johnson v. Wright and Brock v. Wright to conclude that the
“clearly established right” at issue was a right to be free from a
“reflexive application of [a] ... policy in the face of a contrary
recommendation by [plaintiff's] treating physician[.]” Id. at
735. Given the similarities between the allegations in Griffin
and the ones Plaintiffs have put forth in the instant cases, the
Court finds the Court of Appeals’ reasoning persuasive.
Johnson, on which the Court of Appeals relied in Griffin,
is even more on point to the facts of the instant cases
and provides what this Court finds is the appropriately
tailored right in the assessment of the State Represented
Defendants’ qualified immunity defense. In Johnson, the
plaintiff claimed New York State corrections officials were
deliberately indifferent to his serious medical needs because
the officials had denied a request from the plaintiff's treating
physician to prescribe the plaintiff a particular medication to
treat his Hepatitis C. See Johnson, 412 at 400-02. The officials
had denied the physician's request because a department
policy in effect at the time permitted the officials to deny such
treatment if an inmate had a recent history of substance abuse,
which the plaintiff did. See id. at 401.
In its review of the plaintiff's argument that the officials
had violated the Eighth Amendment, the Court of Appeals
framed the question in the case as whether “the application
of the policy” of denying Hepatitis C medications to inmates
with a history of substance abuse “in plaintiff's case could
have amounted to deliberate indifference to plaintiff's medical
needs.” Id. at 404. In vacating the district court's decision
granting summary judgment to the defendant corrections
officials on this question, the Court of Appeals held that a
jury could find that “the defendants acted with deliberate
indifference by reflexively relying on the medical soundness
of the ... substance abuse policy when they had been put
on notice that the medically appropriate decision could
be, instead, to depart from the [policy] and prescribe” the
medication the inmate's treating physician recommended. Id.
at 406. The Court of Appeals articulated a similar question
of deliberate indifference two years prior in Brock: “whether
following [a] policy” forbidding certain treatments absent
particular symptoms resulted in unconstitutional deliberate
indifference to the plaintiff's medical needs. See Brock, 315
F.3d at 162, 166.
*26 The Court finds that the Eighth Amendment right the
Court of Appeals articulated in Johnson—the right to be free
from reflexive application of a policy denying a medication
to any inmate with substance abuse risk—provides the
clearly established right to analyze the State Represented
Defendants’ qualified immunity argument given the degree
of similarity to the allegations each Plaintiff has put forth.
The Court also concludes that the right defined in Johnson is
defined specifically enough to render it clearly established in
the context of Eighth Amendment claims. See Collymore, 74
F.4th at 30; Vega, 963 F.3d at 275.
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As in Johnson and Brock, the ten related actions that this
Opinion addresses involve (1) a treating physician's request
to implement a particular treatment, (2) senior corrections
officials’ rejection of that request, (3) due to a policy
favoring such rejection. And, as in Johnson specifically,
the treating physicians here sought to prescribe medications
that the officials rejected because the policy in question
favored such rejections due to the risk of substance abuse.
In both Johnson and Brock, the Court of Appeals held that
granting summary judgment for the prison officials would
be inappropriate because a jury could conclude, based on
the evidence, that the prison officials’ deference to policy
constituted deliberate indifference because it was made
without sufficient consideration of the inmate's medical needs
or of the treating physician's recommendation. See Johnson,
412 F.3d at 404-06; Brock, 315 F.3d at 167.
Therefore, the Court finds that the Court of Appeals has
spoken sufficiently clearly in holding that inmates have an
Eighth Amendment right not to have prison officials rely
on a policy to reject a request for a medication when the
officials know it might be medically appropriate to prescribe
the medication instead. Because the Court of Appeals ruled on
this right nearly two decades ago, and later reiterated the right
in Griffin, it should have been “clear to a reasonable officer”
that Defendants’ treatment of Plaintiffs was unlawful. See
Ziglar, 582 U.S. at 152. Accordingly, Plaintiffs’ rights were
clearly established and not subject to the SRDs’ qualified
immunity defense. See id.
2. Dr. Lee's Qualified Immunity Defense
Dr. Lee argues that there can be no clearly established
constitutional right because the violation depends on
Dr. Lee's individual treatment decisions and Dr. Lee
provided “professional, adequate, and reasonable treatment”
to Plaintiff Knight. (See Lee MSJ Br.: Knight at 19-21.)
Dr. Lee would be entitled to immunity “if either (a) [his]
action[s] did not violate clearly established law, or (b) it was
objectively reasonable for [him] to believe that his action did
not violate such law.” Johnson v. Newburgh Enlarged Sch.
Dist., 239 F.3d 246, 250 (2d Cir. 2001) (internal quotations
and citations omitted). However, the Court finds that the
particular right clearly established by law as applicable to
Dr. Lee—as distinct from each Plaintiff's clearly established
right to be free from the RMDs’ reflexive application of
a policy in determining his medical treatment—is the right
to be free from a physician's deliberate indifference to his
medical needs through “consciously choos[ing] an easier
and less efficacious treatment plan.” Chance, 143 F.3d at
703 (internal quotations and citations omitted). The Court of
Appeals not only articulated this right in Chance v. Armstrong
but reaffirmed in Brock that it is a right protected by the
Eighth Amendment. See Brock, 315 F.3d at 167.
*27 As the Court described in detail above, there remain
genuine issues of material fact about whether Dr. Lee's
failure to adjust Plaintiff Knight's medications to alleviate his
pain, in the face of Plaintiff's repeated complaints of pain
so severe he was unable to walk, constituted knowing and
deliberate indifference to Plaintiff's medical needs, including
by consciously choosing an easier, less efficacious treatment
plan than was warranted. See Chance, 143 F.3d at 703. Thus,
at this stage, the Court cannot conclude as a matter of law that
Dr. Lee did not violate a clearly established right.
Because of those same disputed facts, the Court cannot find
that Dr. Lee is entitled to qualified immunity on the basis
of her objective reasonableness. “[W]here ... the objective
reasonableness of an officer's actions depends on disputed
facts, summary judgment based on qualified immunity is
properly denied.” Knight, 2022 WL 1004186, at *18 (internal
quotations and citations omitted). This is because the question
of reasonableness in a physician's treatment of a prisoner
is “not whether [the physician's] actions were objectively
reasonable based on [the physician's] own version of his [or
her] actions” but on whether the physician's actions “were
objectively reasonable based on the record viewed in the light
most favorable to [the plaintiff] and with all inferences drawn
in [the plaintiff's] favor.” Warren v. Chakravorty, No. 03-
CV-8736, 2006 WL 2067736, at *8 (S.D.N.Y. July 25, 2006)
(denying summary judgment based on a qualified immunity
defense). Taking the record in the light most favorable to
Plaintiff Knight, as the Court must on Dr. Lee's motion, the
Court concludes that a reasonable jury could conclude that Dr.
Lee's failure to prescribe Lyrica or otherwise adjust Plaintiff
Knight's medications during a multi-month period was not
objectively reasonable, given Dr. Lee's intimate knowledge
of Plaintiff's conditions and his earlier prescriptions for pain
medications. Accordingly, Dr. Lee is not entitled to summary
judgment on the basis of qualified immunity. See Newburgh
Enlarged Sch. Dist., 239 F.3d at 250; Knight, 2022 WL
1004186, at *18; Chance, 143 F.3d at 703.
L. Exhaustion of Remedies
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The State Represented Defendants claim that certain of
Plaintiffs Dockery, Gradia, and Pritchett's claims stemming
from specific MWAP denials must be dismissed for
failure to exhaust their administrative remedies. (See SRD
MSJ Br.: Dockery at 16-20; SRD MSJ Br.: Gradia
at 31-32; Memorandum of Law in Support of State
Represented Defendants’ Motion for Summary Judgment,
dated November 16, 2023 (“SRD MSJ Br.: Pritchett”) [23-
CV-5664, dkt. no. 22] at 24-26.)
Under the Prisoner Litigation Reform Act (“PLRA”), “[n]o
action shall be brought with respect to prison conditions under
[42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). “The PLRA's exhaustion requirement
‘applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.’ ”
Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting
Porter v. Nussle, 534 U.S. 516, 532 (2002)).
A court may not excuse a failure to exhaust, even to take
“special circumstances” into account. Ross v. Blake, 136
S. Ct. 1850, 1856 (2016). However, a prisoner cannot be
required to exhaust administrative remedies that are not
available to him. Id. at 1858. “[A]n inmate is required to
exhaust those, but only those, grievance procedures that
are ‘capable of use’ to obtain ‘some relief for the action
complained of.’ ” Id. at 1859 (quoting Booth v. Churner,
532 U.S. 731, 738 (2001)). An administrative procedure is
“unavailable” (1) when it operates as a simple dead end, with
officers unable or consistently unwilling to provide any relief
to aggrieved inmates; (2) when it is so opaque that no ordinary
prisoner can discern or navigate it; and (3) when prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation,
or intimidation. Id. at 1859–60. The Court of Appeals has
remarked “that the three circumstances discussed in Ross do
not appear to be exhaustive” but has declined to “opine on
what other circumstances might render an otherwise available
administrative remedy actually incapable of use.” Williams
v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir.
2016). “[T]he test for deciding whether the ordinary grievance
procedures were available must be an objective one: that is,
would a similarly situated individual of ordinary firmness
have deemed them available.” Lucente v. Cnty. of Suffolk,
980 F.3d 284, 311-12 (2d Cir. 2020).
*28 In addition, “a claim may be exhausted when it is closely
related to, but not explicitly mentioned in an exhausted
grievance.” Colón v. N.Y.State Dep't of Corr. & Cmty.
Supervision, No. 15-CV-7432, 2019 WL 5294935, at *7
(S.D.N.Y. Oct. 17, 2019) (citation omitted). Ultimately, in
order to exhaust under the PLRA, a prisoner must allege facts
sufficient to allow DOCCS to take appropriate responsive
measures. See Johnson v. Testman, 380 F.3d 691, 697 (2d
Cir. 2004), overruled on other grounds by Woodford v. Ngo,
548 U.S. 81 (2006); see also Espinal v. Goord, 558 F.3d 119,
126 (2d Cir. 2009) (“The point is that prison officials [have]
the necessary information to investigate the complaints and
the opportunity to learn which officers were involved in the
alleged incident.”).
First, as to Plaintiff Dockery, the State Represented
Defendants argue that Plaintiff failed to exhaust for RMD
Mueller's August 2018 denial of Neurontin. (SRD MSJ Br.:
Dockery at 18.) 9 However, the State Represented Defendants
acknowledge that Plaintiff Dockery employed the appropriate
administrative procedures with respect to DOCCS’ denial
of Neurontin in September 2017. (Id. at 18-19.) Where “a
prior grievance identifies a specific and continuing complaint
that ultimately becomes the basis for a lawsuit,” Johnson
v. Killian, 680 F.3d 234, 238-39 (2d Cir. 2012), “the prior
grievance is sufficient to exhaust a prisoner's administrative
remedies with respect to continuing violations at the facility.”
Alster v. Fischer, No. 09-CV-6510, 2017 WL 3085842, at *9
(W.D.N.Y. July 20, 2017). The Court concludes that, as in
Johnson, Plaintiff Dockery's September 2017 grievance put
DOCCs on notice of and provided it with an opportunity to
resolve the same problem that continued intermittently over
subsequent years with respect to Plaintiff's pain. 680 F.3d
234 at 238-39. The issue Plaintiff Dockery would have raised
in 2018 was identical to the issue he had raised in 2017—
the denial of Neurontin. Moreover, the record indicates that
Plaintiff's 2017 grievance was not addressed until January
30, 2019. (See Agnew Decl., Ex. 43 [23-CV-5660, dkt.
no. 32-55] at 2.) Accordingly, Plaintiff Dockery's 2017
grievance regarding Neurontin was sufficient to exhaust
his administrative remedies regarding the 2018 denial of
Neurontin.
Second, with respect to Plaintiff Gradia, the State Represented
Defendants claim Plaintiff failed to exhaust his remedies for
the June 2017 MWAP request for Neurontin. (SRD MSJ Br.:
Gradia at 32.) 10 Likewise, the State Represented Defendants
contend that Plaintiff Pritchett failed to exhaust available
remedies as to his claim against RMD Dinello arising from
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the January 2017 request for Lyrica. (SRD MSJ Br.: Pritchett
at 25-26.)
Even assuming Plaintiffs failed to submit grievances for
certain MWAP denials, the Court agrees with Plaintiffs
that the record demonstrates administrative remedies were
unavailable to Plaintiffs. (Pl. Opp'n at 72-73.) As discussed
at length supra Part IV, the record is replete with
instances whereby Plaintiffs in these related actions submitted
complaints and grievances regarding their MWAP denials and
prison officials were either unable or unwilling to provide
any relief, pursuant to the MWAP policy. Plaintiffs should
not be denied the opportunity to pursue their grievances in
federal court where administrative procedures operated as a
dead end to their claims. See Priatno, 829 F.3d at 123-24. 11
Accordingly, the Court declines to dismiss Plaintiffs Dockery,
Gradia, or Pritchett's claims for failure to exhaust.
V. Conclusion
*29 For the reasons set forth above, the motions for
summary judgment before the Court are GRANTED and
DENIED as follows:
1. Plaintiff Daniels: State Represented Defendants’ motion
for summary judgment (23-CV-5654, dkt. no. 14) is
GRANTED.
2. Plaintiff Dickinson: State Represented Defendants’
motion for summary judgment (23-CV-5657, dkt. no.
14) is DENIED.
3. Plaintiff Dockery: State Represented Defendants’
motion for summary judgment (23-CV-5658, dkt. no.
22) is GRANTED in part and DENIED in part. The
motion is GRANTED as to Dr. Hammer and NP Salotti,
and DENIED as to Drs. Mueller and Dinello.
4. Plaintiff Gradia: State Represented Defendants’ motion
for summary judgment (23-CV-5660, dkt. no. 18) is
GRANTED in part and DENIED in part. The motion is
GRANTED as to Dr. Hammer and DENIED as to Drs.
Mueller and Dinello.
5. Plaintiff Hernandez: State Represented Defendants’
motion for summary judgment (23-CV-5661, dkt. no.
29) is DENIED. Dr. Mantaro's motion for summary
judgment (23-CV-5661, dkt. no. 24) is GRANTED.
6. Plaintiff Knight: Dr. Lee's motion for summary judgment
(23-CV-5662, dkt. no. 12) is DENIED.
7. Plaintiff Mathis: State Represented Defendants’ motion
for summary judgment (23-CV-5663, dkt. no. 14) is
DENIED.
8. Plaintiff Pritchett: State Represented Defendants’
motion for summary judgment (23-CV-5664, dkt. no.
16) is DENIED.
9. Plaintiff Rivera Cruz: State Represented Defendants’
motion for summary judgment (23-CV-5667, dkt. no.
15) is DENIED.
10. Plaintiff Stewart: State Represented Defendants’
motion for summary judgment (23-CV-5668, dkt. no.
16) is DENIED.
Counsel for the parties shall confer and inform the Court by
letter no later than April 11, 2025 of how they propose to
proceed.
The Clerk of the Court shall also docket this order in each of
the following cases listed below and close each of the docket
entries listed below.
1. 23-CV-5654, dkt. no. 14
2. 23-CV-5657, dkt. no. 14
3. 23-CV-5658, dkt. no. 22
4. 23-CV-5660, dkt. no. 18
5. 23-CV-5661, dkt. no. 24
6. 23-CV-5661, dkt. no. 29
7. 23-CV-5662, dkt. no. 12
8. 23-CV-5663, dkt. no. 14
9. 23-CV-5664, dkt. no. 16
10. 23-CV-5667, dkt. no. 15
11. 23-CV-5668, dkt. no. 16
SO ORDERED.
All Citations
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Footnotes
1 For omnibus submissions and documents that are relevant to all of the related actions, the Court will use
general definitions. For documents that are specific to only one individual action, the Court will use definitions
which identify the action's Plaintiff.
2 The Court will refer to the class action, 19-CV-8173, as “Allen I.”
3 Page numbers cited herein reflect ECF page numbers, rather than page numbers of the parties’ submissions.
The Court will also cite page numbers using the various methods of pagination used by the parties in their
exhibits (such as MD 000406).
4 Because some of the individual actions name only certain State Represented Defendants as defendants,
their motions naturally only seek to dismiss the claims against the State Represented Defendant(s) named in
that action. Dr. Mueller is named as a defendant in nine of the ten severed actions, Dr. Dinello is a defendant
in three, Dr. Hammer is a defendant in two, and NP Salotti is a defendant in one.
5 Two of the motions seek to dismiss the claims asserted by Plaintiff Hernandez, one filed on behalf of State
Represented Defendant Dr. Susan Mueller and one filed on behalf of Dr. Mantaro.
6 Plaintiff's Opposition incorrectly notes the date of the MWAP as September 28, 2018, (Pl. Opp'n at 40), but
the documents cited establish the date was 2017.
7 Dr. Carinci notes that several months thereafter on May 22, 2019, the “Shawangunk Inmate Liaison
Committee noted that the ‘inmates are complaining that they are not being treated adequately for their injuries
and that regardless of how severe or serious they are, Dr. Lee just about seems to always prescribe Tylenol
or Motrin.’ [ ] Mr. Rivera-Cruz continued to complain of pain and being provided only Tylenol or Motrin. [ ]
After complaining of leg pain on December 3, 2019, he was issued Tylenol and Motrin.” (Id.)
8 Because the Court determines Dr. Mantaro's care did not amount to deliberate indifference and grants her
motion for summary judgment, see supra Part IV.E, the Court need not evaluate her qualified immunity
argument. (See Memorandum of Law in Support of Her Motion for Summary Judgment (“Mantaro MSJ Br.:
Hernandez”) [23-CV-5661, dkt. no. 28] at 19.)
9 The State Represented Defendants also argue that Plaintiff Dockery failed to exhaust his claims against NP
Saloti and RMD Hammer. (Id.) Given the Court's holding that NP Salotti and RMD Hammer are entitled to
summary judgment on these claims (see supra Part IV.C), the Court need not address these exhaustion
arguments.
10 The State Represented Defendants argue Plaintiff Gradia failed to exhaust for all claims except the June
2018 and August 2017 denials (id.), but as discussed supra Part IV.D, the Court confined its decision to
the only two denials addressed in Plaintiffs’ Opposition: the denials in June 2017 and August 2017. (See
Pl. Opp'n at 32-33.)
11 Where the facts regarding exhaustion are in dispute, courts have denied motions for summary judgment
and held an evidentiary hearing for the fact-finder to assess the credibility of witnesses and evidence on
exhaustion. See Jenkins v. Officer S, No. 19-CV-10728 (KMK), 2023 WL 6259667, at *8 (S.D.N.Y. Sept. 26,
2023). Because the Court determines that DOCCs’ administrative procedures involving MWAP operated as a
dead end such that administrative remedies were unavailable to Plaintiffs, there is no need for an evidentiary
hearing.
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Donohue v. Manetti by Armor Correctional Health Services, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 974347
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Thomas DONOHUE, Plaintiff,
v.
Dr. Vincent MANETTI, BY his employer
ARMOR CORRECTIONAL HEALTH
SERVICES, Denise Brady by her employer
Armor Correctional Health Services, Defendants.
2:15-CV-636 (PK)
|
Signed March 31, 2025
Attorneys and Law Firms
Albert Darnell Manuel III, Cobia Malik Powell, Frederick
K. Brewington, Law Offices of Frederick K. Brewington,
Hempstead, NY, for Plaintiff.
Cathleen Kelly Rebar, Jayne L. Pickup, Rebar Kelly, Blue
Bell, PA, for Defendant Dr. Vincent Manetti.
MEMORANDUM AND ORDER
Peggy Kuo, United States Magistrate Judge:
*1 Thomas Donohue (“Plaintiff”) brings this action pursuant
to 42 U.S.C. § 1983, alleging that he was deprived of his rights
under the Eighth and Fourteenth Amendments of the U.S.
Constitution by Dr. Vincent Manetti, Nurse Denise Brady,
and their employer Armor Correctional Health Services
(collectively, “Defendants”). (Compl. at 1, Dkt. 1.)
Before the Court is Defendants’ Motion for Summary
Judgment (“Motion”). (Dkt. 109.) For the reasons set forth
below, the Motion is granted in part and denied in part.
FACTUAL BACKGROUND
Unless otherwise stated, the following facts are taken from
Defendants’ Statement of Undisputed Facts (“Defs. 56.1,”
Dkt. 109-1), Plaintiff's Statement of Disputed Facts (“Pl. 56.1
Opp.,” Dkt. 109-12 at 1–31 1 ), Plaintiff's Counterstatement
of Material Facts (“Pl. 56.1,” 109-12 at 32–45), and exhibits
attached to the Motion (see Declaration of Dale McLaren
(“McLaren Decl.”), Dkt. 109) and Plaintiff's opposition to
the Motion (see Declaration of Frederick K. Brewington
(“Brewington Decl.”), Dkt. 109-13 2 ). Unless otherwise
noted, the facts are agreed upon by the parties.
I. The Parties
Armor Correctional Health Services (“Armor”) provides
medical services to inmates at Nassau County Correctional
Center (“NCCC”) pursuant to a contract with Nassau County.
(Pl. 56.1 ¶¶ 1–2.) Dr. Vincent Manetti worked as a psychiatrist
for Armor from June 2011 to October 2016. (Defs. 56.1 ¶ 25;
Pl. 56.1 Opp. ¶ 25.) Denise Brady began working for Armor
in 2011 as a Licensed Practical Nurse (“LPN”) and became a
Registered Nurse (“RN”) in 2015. (Defs. 56.1 ¶ 50; Pl. 56.1
Opp. ¶ 50.)
Plaintiff was incarcerated at NCCC from September 19, 2014
to June 18, 2015. (Defs. 56.1 ¶ 1, 4, 13; Pl. 56.1 ¶¶ 1, 4, 13;
Memorandum of Law in Support of the Armor Defendants’
Motion for Summary Judgment (“Def. Mem.”) at 3, Dkt.
109-11; Plaintiff Deposition Transcript (“Pl. Tr.”) 13:24, Ex.
D. to McLaren Decl., Dkt. 109-4.)
II. Plaintiff's Arrest and Admission to Nassau County
Correctional Center
After his arrest on September 18, 2014, Plaintiff underwent
a medical evaluation at Nassau University Medical Center
(“NUMC”), where he complained of body aches, tremors,
moderate pain, nausea, restlessness, and anxiety; he also
indicated that he had a history of alcohol and heroin
dependence and had ingested beer and heroin shortly before
his arrest. (NUMC Emergency Physician Record (“NUMC
Record”), Ex. B to McLaren Decl., Dkt. 108-1 at 2.) The
NUMC Record states that Plaintiff is allergic to non-steroidal
anti-inflammatory drugs (“NSAIDs”). (Id.) Plaintiff was
diagnosed with opioid abuse and given a treatment plan of
methadone. (NUMC Patient Discharge Instructions, Ex. B to
McLaren Decl., Dkt. 108-1 at 1.)
*2 The next day, when Plaintiff was transferred to NCCC,
Armor performed its own assessment of Plaintiff's physical
and mental health. 3 (Defs. 56.1 ¶¶ 5, 8; Pl. 56.1 Opp. ¶¶ 5,
8.) Armor medical records dated September 19, 2014 indicate
that Plaintiff has a history of depression and anxiety, for
which he was hospitalized in 1988 and 2011, that he has
taken the psychiatric medications Klonopin and nortriptyline
in the past, and that he was not suicidal. (“Armor Health
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Assessment,” Ex. C to McLaren Decl., Dkt. 108-2 at 6–7;
“Armor Mental Health Screening,” Ex. C to McLaren Decl.,
Dkt. 108-2 at 8.) The records also report that Plaintiff had neck
surgery in 2007 and that he is allergic to NSAIDs. (Armor
Health Assessment at 6.) Plaintiff's complaints at that time
were described as “anxiety, diarrhea, chills, restlessness, [and]
achiness,” and a tremor was noted. (Id.) Plaintiff was assessed
with opioid dependence as a chronic health problem, and the
screener noted that there was “[e]vidence of mental health
condition” but that Plaintiff “presents as stable.” (Id. at 8; see
Defs. 56.1 ¶ 8; Pl. 56.1 Opp. ¶ 8.)
Plaintiff was admitted to the medical floor at NCCC and put
in a psychiatric cell. (Defs. 56.1 ¶ 10; Pl. 56.1 Opp. ¶ 10.)
He was put on a 6-day Valium taper and prescribed Thiamine
to prevent symptoms of alcohol withdrawal. (“Mendelsohn
Report” at 5, Ex. D to Brewington Decl., Dkt. 109-18; Ex C-3
to Brewington Decl., Dkt. 108-5 at 17.)
III. Mental Health Treatment
Despite the initial assessment that Plaintiff was not suicidal,
at some point, he was placed on suicidal precautions, resulting
in his being seen by Dr. Manetti on September 23, 2014.
(Defs. 56.1 ¶ 28; Pl. 56.1 Opp. ¶ 28; Ex. C to McLaren
Decl., Dkt. 108-2 at 18.) During the visit, Plaintiff told Dr.
Manetti, “I feel pain and I don't want to live.” (Id. at 18;
see Defs. 56.1 ¶ 32; Pl. 56.1 Opp. ¶ 32.) Dr. Manetti found
Plaintiff “behaviorally controlled, mood is euthymic”—that
is, he was neither depressed nor euphoric—and noted that
he had suicidal ideations. (Defs. 56.1 ¶ 33–34; Pl. 56.1
Opp. ¶¶ 33–34; Ex. C to McLaren Decl., Dkt. 108-2 at
18.) Dr. Manetti ordered that Plaintiff remain under constant
supervision, which meant that he would be seen by a mental
health professional daily. (Defs. 56.1 ¶¶ 36–38; Pl. 56.1 Opp.
¶¶ 36–38.)
According to his September 23, 2014 note, Dr. Manetti did
not personally prescribe any medication to Plaintiff. (Defs.
56.1 ¶ 37; Pl. 56.1 Opp. ¶ 37.) Plaintiff had been previously
incarcerated at Fishkill Correctional Facility (“Fishkill”),
where he received Ultram 4 and Neurontin 5 twice a day for
pain and nortriptyline or Amitriptyline for his mental health.
(Pl. Tr. 55:19–56:10, 57:2–58:3.) When he was released
from Fishkill in July 2014, Plaintiff was given prescriptions
for Neurontin, Ultram, and Nortryptylene. (Id. 79:8–80:13.)
Plaintiff alleges that, despite this, Dr. Manetti told him,
“Things are different now ... we don't hand out medication
like that.” (Pl. Tr. 103:3–6.) Dr. Manetti denies making that
statement. (Manetti Tr. 131:20–132:19.)
At Dr. Manetti's request, Plaintiff authorized Fishkill to
release his initial psychiatric evaluation and verify his
medications. (Id. 52:4–8; “Sept. 23 Release of Information,”
Dkt. 108-2 at 9; see Defs. 56.1 ¶ 29; Pl. 56.1 Opp. ¶ 29.)
The same evening he saw Dr. Manetti, Plaintiff experienced
“seizure-like activities” and was taken to NUMC. (Pl. 56.1 ¶¶
8, 64.) After a CT scan came back negative, NUMC gave him
medication for seizures and recommended that he follow up
with neurology. (Id. ¶ 9.)
*3 Plaintiff returned to NCCC and on September 24 was
seen by Dr. Manetti's supervisor, Dr. Ronald Longo. (“Longo
Sept. 24 Note,” Ex. C-1 to Brewington Decl., Dkt. 108-3 at
12.) Dr. Longo noted that Plaintiff was no longer suicidal and
that he complained of neck pain. (Id.; see Herrington Report
at 3.)
On September 26, 2014, Plaintiff signed a release authorizing
CVS Pharmacy to verify his current medication. (“CVS
Release,” Ex. C to McLaren Decl., Dkt. 108-2 at 10.)
According to Plaintiff's expert Dr. Nathaniel Mendelsohn, a
call to CVS on that date “confirms that [Plaintiff] last picked
up Nortriptyline on 8/14/14.” (Mendelsohn Report at 6; see
Defs. 56.1 ¶ 11; Pl. 56.1 Opp. ¶ 11.)
Plaintiff went to NUMC again on September 29, 2014 and
was seen for seizures. He was given seizure medication,
discharged, and directed to follow up with neurology. (Ex.
C-3 to Brewington Decl., Dkt. 108-5 at 43.)
On October 3, 2014, at his second meeting with Plaintiff, Dr.
Manetti noted that Plaintiff was hostile, overly dramatic, and
angry, and that Plaintiff demanded benzodiazepines, which
are typically for anxiety, stating, “I want meds because I'm
in jail.” (“Manetti Oct. 3 Note,” Ex. C to McLaren Decl.
at 17; Defs. 56.1 ¶¶ 39, 40, 42; Pl. 56.1 Opp. ¶¶ 39, 40,
42.) Plaintiff acknowledges that this statement appears in the
medical record but denies having made it. (Pl. 56.1 Opp. ¶
42.) Dr. Manetti indicated that Plaintiff did not exhibit signs
of depression. (Defs. 56.1 ¶ 43; Pl. 56.1 Opp. ¶ 43. 6 )
Writing in his note, “no acute need for meds” (Manetti
Tr. 67:14–15), Dr. Manetti did not prescribe Plaintiff any
medication because he did not know what, if any, medications
Plaintiff was previously taking; was concerned that Plaintiff
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might be malingering; and believed that it was inadvisable
to prescribe controlled substances to someone with a history
of polysubstance abuse. (Defs. 56.1 ¶¶ 40, 44, 45 7 ; Manetti
Tr. 56:2–5, 71:7–12.) Dr. Manetti also re-faxed the release
for Plaintiff's records to Fishkill because he had not gotten
a response to the initial request. (Manetti Tr. 73:19–23.) Dr.
Manetti testified at his deposition that he never learned which
medications Plaintiffs was previously taking. (Id. 56:17–25;
see Def. 56.1 ¶ 41; Pl. 56.1 Opp. ¶ 41.)
On October 12, 2014, Plaintiff was again seen at NUMC for
seizures. (See Ex. C-3 to Brewington Decl. at 27.) He was
given seizure medication and Neurontin and told to follow up
with neurology. (See id. at 27, 32.)
A Medication Administration Record indicates that on
October 15, 2014, “Dr. Marcos” prescribed nortriptyline
to Plaintiff, to be taken daily for thirty days. (Ex. C-1
to Brewington Decl., Dkt. 108-3 at 5.) Plaintiff does not
dispute this in his Counterstatement of Facts, expert report,
or deposition testimony. (See Pl. 56.1 ¶ 69 (“On 10/15/14,
nortriptyline 25 mg is started by Dr. Marcos, who is not
a psychiatrist.”); Mendelsohn Report at 6 (same)). He also
testified that he began receiving nortriptyline shortly after he
arrived at NCCC. 8 (See Pl. Tr. 80:7–24.)
*4 Nevertheless, Plaintiff claimed he “was never given
Nortriptyline” (Pl. 56.1 Opp. ¶ 11) and testified that during
his entire stay at NCCC, he “received no mental health
medication.” (Pl. Tr. 87:3–15.)
The prescription for nortriptyline was discontinued on
November 11, 2014 and not renewed. (Mendelsohn Report at
7; Ex. C-1 to Brewington Decl. at 6; Ex. C-5 to Brewington
Decl. at 26.)
On November 30, 2014, Plaintiff filed a grievance, stating
that he had been on mental health medication for depression
and anxiety since the 1980s and had not received psychiatric
medication at NCCC. (“Nov. 30 Grievance,” Compl. at 18.)
On December 10, 2014, the Grievance Coordinator denied
Plaintiff's grievance. (Id.) On December 11, 2014, Plaintiff
appealed the Grievance Coordinator's decision, which the
Chief Administrative Officer denied on December 23, 2014.
(Id.) On December 31, 2014, Plaintiff appealed the Chief
Administrative Officer's decision to the Citizen's Policy and
Complaint Review Counsel at the Commission of Correction.
(Id. at 19). Plaintiff does not know if he ever received a final
decision on the appeal. (Pl. Tr. 99:16–100:3.)
Until his release from NCCC on June 18, 2015, Plaintiff was
seen by various social workers on mental health rounds who
documented his mental state, which indicated that Plaintiff
was often depressed, was asking for medication, or was
asking to see Dr. Manetti. 9
Plaintiff claims that as a result of not being given psychiatric
medication, he “suffered extensive mental anguish and
suffering during his incarceration.” (Pl. 56.1 ¶ 85.) He states
that he attempted suicide in his cell in December 2014 (id.
¶ 82), although the incident was not documented. Plaintiff
experienced panic attacks, was unable eat or sleep, felt like he
was unable to breathe, and endured “crazy depression.” (Id.
¶ 81.)
IV. Pain Management Treatment
Plaintiff suffered from chronic pain in his lower back, neck,
shoulders, and arms. (Defs. 56.1 ¶ 19; Pl. 56.1 Opp. ¶ 19.) On
September 26, 2014, Plaintiff was prescribed Neurontin and
Bengay for pain. (Ex. C-5 to Brewington Decl. at 35; Ex. C-4
to Brewington Decl. at 12.) On November 3, 2014, the pain
medication Ultram was also ordered for Plaintiff. (Id. at 9.)
On December 9, 2014, Neurontin was discontinued (Ex. C-1
to Brewington Decl. at 2), but records indicate that Plaintiff
was taking it again by December 16, 2014 (Ex. C-4 to
Brewington Decl. at 21). Plaintiff's prescription for Neurontin
was discontinued and re-ordered at various times during his
incarceration. (See, e.g., Ex. C to Brewington Decl., Dkt.
108-2 at 15 (Neurontin discontinued on Feb. 6, 2015); Ex. C-1
to Brewington Decl. at 2 (Neurontin discontinued on Dec. 9,
2014).)
*5 On December 17, 2014, Plaintiff's Ultram prescription
was discontinued. (Herrington Report at 4; Deposition
Transcript of Denise Brady (“Brady Tr.”) 93:17–94:11, Ex. F
to McLaren Decl., Dkt. 109-6; Ex. C-1 to Brewington Decl. at
2.) The corresponding order sheet states “Brady noted” next
to the discontinuation order. (See Ex. C-5 to Brewington Decl.
at 29.)
Plaintiff testified that Ms. Brady told him that she was
discontinuing his medication, walked away from him with
a smirk, and came back and gave him ibuprofen—an
NSAID to which he is allergic—instead of his prescribed
Ultram medication. (Pl. Tr. 91:19–94:15.) Ms. Brady denies
discontinuing Plaintiff's medication and states that as an LPN,
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she did not have the authority to do so. (Defs. 56.1 ¶¶ 55, 56;
Pl. 56.1 Opp. ¶¶ 55, 56.) Plaintiff does not dispute that, as an
LPN, Ms. Brady was required to get permission before giving
controlled substances to inmates. (Pl. 56.1 Opp. ¶ 58.) Her
duties included filling medication carts, preparing medication
administration records, distributing medication to inmates,
and picking up orders from doctors. (Defs. 56.1 ¶ 50; Pl.
56.1 Opp. ¶ 50.) She was expected to know what medications
inmates were allergic to. (Defs. 56.1 ¶ 52; Pl. 56.1 Opp. ¶ 52.)
Plaintiff testified that after he took the ibuprofen Ms. Brady
administered, “I had an episode, an allergic reaction. My heart
was racing a million miles a minute, my throat got so tight and
I couldn't breathe; I had an episode where I fainted out, man,
I don't know what happened.” (Pl. Tr. 94:23–95:7.) Plaintiff
testified that the next day, he confronted Ms. Brady, “angrily
cursing and demand[ing] what she ordered [him].” (Id. 95:15–
18.) Ms. Brady replied, “Ibuprofen 800 milligrams,” and
Plaintiff responded: “What, are you stupid, I am allergic to
it, it is on the bottom of the sheet.” (Id. 95:19–21.) Plaintiff
testified that Ms. Brady then said, “Oh, oh,” and left. (Id.
95:22.)
After this incident, no Armor employee gave Plaintiff
ibuprofen again. (Pl. Tr. 96:2–9.)
In the Complaint, Plaintiff describes the incident differently.
He alleges that when he confronted Ms. Brady the day after
his allergic reaction, she responded, “I was hoping you would
have died.” (Pl. 56.1 ¶ 66; Compl. ¶ 33; id. at 16 (attaching
copy of Plaintiff's grievance form dated Dec. 17, 2014).)
Ms. Brady denies having made any of these statements or
giving Plaintiff an NSAID. (Defs. 56.1 ¶ 59.)
Plaintiff filed a grievance on December 17, 2014, stating that
while he was ordered Ultram for pain, he was administered
instead medication that he was allergic to. (Compl. at 20–
21, 16–17.) He requested that he be given medications
“ordered for [him] by specialists” and sought “an order of
protection” against Ms. Brady. (Id. at 20.) Plaintiff states that
his grievance was “accepted” and that Ms. Brady was not
allowed to interact with him anymore. (Id.; Pl. Tr. 101:9–13.)
Ultram was re-ordered for Plaintiff on December 30, 2014.
(Ex. C-5 to Brewington Decl. at 29.) There are gaps in
Plaintiff's receipt of Ultram on various dates in November and
December 2014 and between February 1, 2015, and February
5, 2015. (Pl. 56.1 ¶ 44; Herrington Report at 7–8.) On March
23, 2015, Plaintiff's Ultram dosage was reduced (Herrington
Report at 4; Ex. C-4 to Brewington Decl. at 3), and, on April
10, 2015, it was restored (id. at 5).
*6 Throughout Plaintiff's incarceration at NCCC, he wrote
approximately 78 sick call notes “complaining of untreated
pain, lack of renewal of pain medication, failure of doctors
to treat and the discontinuing of medication, among other
complaints.” (Pl. 56.1 ¶ 11; see Exs. J-1 & J-2 to Brewington
Decl., Dkt. 108-9 & 108-10.) 10
Plaintiff also wrote sick call requests asking that medication
be renewed. For example, on February 4, 2015, Plaintiff
wrote, “My pain med (Tramadol) ran out on 1-29-15.” (Ex.
J-1 to Brewington Decl. at 32.) Several of Plaintiff's sick
call requests state that his pain medication will run out
in the future and that he will need it renewed. (See, e.g.,
Ex. J-1 to Brewington Decl. at 27, 42-44, 46; Ex. J-2 to
Brewington Decl. at 7.) Many of Plaintiff's medications were
also prescribed for short durations “as needed.” (Pl. 56.1 ¶
46.)
V. Plaintiff's Treatment After Leaving NCCC
In June 2015, Plaintiff was transferred to Franklin
Correctional Facility (“Franklin”). (Defs. 56.1 ¶ 13; Pl. 56.1
Opp. ¶ 13.) While at Franklin, Plaintiff was prescribed Ultram
and Neurontin and later Percocet and/or Oxycodone for pain
management, as well as Wellbutrin and Zoloft for his mental
health. (Defs. 56.1 ¶ 14; Pl. 56.1 Opp. ¶ 14.)
Plaintiff was later transferred to Mid-State Correctional
Facility (“Mid-State”) and then to Marcy Correctional
Facility (“Marcy”). (Defs. 56.1 ¶¶ 15, 18; Pl. 56.1 Opp. ¶¶
15, 18.) He was not given pain medication at either facility,
pursuant to a newly instituted New York State policy that
disallowed giving pain medication to inmates. (Defs. 56.1 ¶¶
15, 18; Pl. 56.1 Opp. ¶¶ 15, 18.) Despite his pain levels being
the same at these facilities as they were at NCC and Franklin,
Plaintiff was “able to survive” without pain medication. (Pl.
Tr. 66:4–16; see Defs. 56.1 ¶ 20; Pl. 56.1 Opp. ¶ 20.)
VI. The Parties’ Expert Witness Reports
A. Expert Reports Regarding
Plaintiff's Mental Health Treatment
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Dr. Nathaniel Mendelsohn, a psychiatrist, produced a report
on behalf of Plaintiff on September 17, 2021. (Mendelsohn
Report.) Based on a review of the relevant records and a
psychiatric evaluation of Plaintiff, he concluded that Dr.
Manetti was “grossly negligent” in his psychiatric treatment
of Plaintiff. (Defs. 56.1 ¶ 63; Pl. 56.1 Opp. ¶ 63.) Dr.
Mendelsohn stated that because the anxiety medication
nortriptyline was not a controlled substance, Plaintiff's
substance dependence history did not preclude Dr. Manetti
from prescribing it for him. (Mendelsohn Report at 12.)
He also concluded that Dr. Manetti did not conduct the
necessary diagnostic tests to support the conclusion that
Plaintiff might have been malingering (id. at 11–12), and
that Dr. Manetti deviated from the standard of care in
failing “to gather as much information as possible on the
psychiatric care and treatment rendered to [Plaintiff] prior to
his arrival at Nassau County,” given that Plaintiff provided “a
history that he had prior psychiatric treatment and had been
placed on medication” (id. at 11). Dr. Mendelsohn concluded
that, as a result of Dr. Manetti's deviation from “standard,
customary and ordinary psychiatric treatment,” Plaintiff
suffered “extensive mental anguish and suffering.” (Id. at 13.)
*7 Defendants’ expert Dr. Robert Goldstein, a psychiatrist
and professor of psychiatry, produced a report on November
17, 2021. (“Goldstein Report,” Ex. I to McLaren Decl., Dkt.
109-9; Defs. 56.1 ¶ 64.) Based on his review of the relevant
records, Dr. Goldstein concluded that Dr. Manetti and Armor's
psychiatric care and treatment of Plaintiff “met the standard
of care.” (Defs. 56.1 ¶ 64; Goldstein Report at 14.)
B. Expert Reports Regarding Plaintiff's
Pain Management Treatment
Dr. Ryan Herrington produced a report on behalf of Plaintiff
on April 26, 2021. (“Herrington Report,” Ex. G to Brewington
Decl., Dkt. 109-24.) Dr. Herrington is a primary care
physician and has worked as a correctional facility medical
director. (Defs. 56.1 ¶ 61; Pl. 56.1 Opp. ¶ 61.) After
reviewing Plaintiff's NUMC and Armor records, Herrington
concluded that Defendants “failed to provide continuity in
managing [Plaintiff's] chronic pain, failed to send him for
outside consultations for pain management and failed to
provide adequate pain medication.” (Defs. 56.1 ¶ 61; Pl.
56.1 Opp. ¶ 61.) 11 He further concluded that Defendants’
pain management strategy for Plaintiff was “shockingly short
of reasonable expectation”; that Defendants should have
had a chronic pain clinic, “failed to carry out provider
generated referrals,” to ensure continuity of treatment, and
to diligently continue any pain medication already being
prescribed to Plaintiff; and that Defendants’ “negligent and
deliberately indifferent” treatment caused Plaintiff “undue
and unnecessary additional pain and suffering.” (Herrington
Report at 12–13; see Defs. 56.1 ¶ 62; Pl. 56.1 Opp. ¶ 62.)
On September 21, 2021, Dr. Herrington filed an addendum to
his report, in which he found that Plaintiff was incarcerated in
a “disease amenable” environment and that Armor's practice
was “not only grossly negligent and a clear departure from
good and acceptable correctional medical practice but [was]
furthermore deliberately indifferent to [Plaintiff's] serious
medical needs.” (“Herrington Addendum” at 5, Ex. I to
Brewington Decl., Dkt. 109-27.)
Defendants’ expert Dr. David Mathis, a family doctor and
certified correctional healthcare professional, produced a
report finding that Ms. Brady would not have been qualified
to discontinue Plaintiff's medication. (Defs. 56.1 ¶ 64; Pl.
56.1 Opp. ¶ 64.) Because Dr. Mathis found no evidence that
she had discontinued Plaintiff's medication, he concluded that
Ms. Brady had not violated any standard of care. (Defs. 56.1
¶ 64; Pl. 56.1 Opp. ¶ 64.)
With regard to the pain treatment provided to Plaintiff by
Armor, Dr. Mathis opined that Plaintiff showed no objective
need for pain medication in light of the results of his CT scan.
(Defs. 56.1 ¶ 65; Pl. 56.1 Opp. ¶ 65.) He found that there was
no need to send Plaintiff to an orthopedist because Plaintiff
stated he did not need surgery for his neck and that there was
no evidence that Plaintiff's daily activities were diminished as
a result of his pain. (Defs. 56.1 ¶ 65; Pl. 56.1 Opp. ¶ 65.)
PROCEDURAL BACKGROUND
On February 2, 2015, Plaintiff, acting pro se, filed the
Complaint asserting claims under 42 U.S.C. § 1983 against
“Dr. Vincent Manetti of Armor Health, Nurse Brady of Armor
Health, Sheriff Sposato of Nassau County Correctional
Center and His Employees Janes and John Doe, etc. et
al.” (Compl. at 1, 3.) Plaintiff handwrote and signed the
Complaint (id. at 15), but he did not do so under penalty of
perjury (but see id. at 5).
*8 All defendants filed a Motion to Dismiss. (Dkt. 14.) On
February 24, 2016, the Honorable Joseph F. Bianco denied
the Motion to Dismiss as to Plaintiff's claims against Ms.
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Brady, Dr. Manetti, and Armor, 12 and granted it as to all other
defendants. 13 Donohue v. Manetti, No. 15-CV-636 (JFB)
(GRB), 2016 WL 740439 (E.D.N.Y. Feb. 24, 2016); (see
“Order on Mot. to Dismiss,” Dkt. 25). Plaintiff's motion to
appoint counsel (Dkt. 48) was granted, and pro bono counsel
appeared on behalf of Plaintiff on June 26, 2017 (Dkt. 49). On
November 13, 2018, Plaintiff informed the Court that he had
retained counsel, who entered an appearance on December
20, 2018. (Dkt. 56.)
On November 25, 2019, the parties stipulated to amend the
case caption to its current form. (Dkt. 69.) The parties have
consented to magistrate judge jurisdiction. (Dkt. 71.)
*9 Defendants never filed an answer, 14 but the parties
nevertheless conducted discovery, which was completed on
February 22, 2022. (See Feb. 17, 2021 Min. Entry; Dkt. 101.)
Defendants’ Motion for Summary Judgment was fully briefed
on August 6, 2022, seeking dismissal of Plaintiff's Section
1983 deliberate indifference claims against Dr. Manetti, Ms.
Brady, and Armor. Oral argument was held on March 1, 2023,
after which the parties filed supplemental briefings at the
Court's request. A further oral argument was held on March
21, 2025, and Plaintiff was granted leave to supplement
his briefings on the limited issue of Ms. Brady's alleged
statements (Mar. 21, 2025 Min. Entry), which he did on
March 27, 2025 (Pl. Ltr., Dkt. 130).
DISCUSSION
Defendants contend that the claims should be dismissed
because Plaintiff failed to exhaust administrative remedies
under the Prison Litigation Reform Act of 1995 (“PLRA”),
and because there is no genuine dispute as to any material fact
on any of the claims.
I. Plaintiff's Failure to Exhaust Administrative
Remedies
Defendants argue that the case should be dismissed because
Plaintiff failed to comply with the Prison Litigation Reform
Act of 1995 (“PLRA”), which requires that an inmate exhaust
all administrative remedies before filing an action regarding
prison conditions under Section 1983 or any other federal law.
42 U.S.C. § 1997e(a).
“There is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought in
court.” Jones v. Bock, 549 U.S. 199, 211 (2007). However,
failure to exhaust is an affirmative defense. Id. at 216 (“We
conclude that failure to exhaust is an affirmative defense
under the PLRA, and that inmates are not required to specially
plead or demonstrate exhaustion in their complaints.”).
Federal Rule of Civil Procedure 8(c) requires that “[i]n
responding to a pleading, a party must affirmatively
state any ... affirmative defense....” “Ordinarily in civil
litigation, [an affirmative defense] is forfeited if not raised
in a defendant's answer or in an amendment thereto. An
affirmative defense, once forfeited, is excluded from the
case.” Wood v. Milyard, 566 U.S. 463, 470 (2012) (citations
omitted); see also Satchell v. Dilworth, 745 F.2d 781, 784
(2d Cir. 1984) (“Failure to plead an affirmative defense in the
answer results in the waiver of that defense and its exclusion
from the case.” (internal quotation omitted)). Such a rule “is
intended to notify a party of the existence of certain issues,”
and “a party's failure to plead an affirmative defense bars its
invocation at later stages of the litigation.” Doubleday & Co.
v. Curtis, 763 F.2d 495, 503 (2d Cir. 1985).
The Second Circuit has held that the defense of failure to
exhaust available administrative remedies is an affirmative
defense that is waivable, specifically under the PLRA.
Johnson v. Testman, 380 F.3d 691, 695 (2nd Cir. 2004). It is
especially appropriate to consider the defense waived where
the defendants had “information that was available to them
prior to any discovery taking place” and failed to raise the
issue earlier or represented that prison grievance procedures
were not available. Handberry v. Thompson, 446 F.3d 335,
342 (2d Cir. 2006).
*10 However, even “[i]f a defendant omits an affirmative
defense from his answer or first responsive pleading, a district
court may nevertheless decline to deem the defense waived
if the plaintiff had notice and an opportunity to respond.”
Arciello v. County of Nassau, No. 16-CV-3974 (ADS)(SIL),
2019 WL 4575145, at *4 (E.D.N.Y. September 20, 2019).
“[T]he law is clear that, in the absence of prejudice, a
defendant may raise an affirmative defense in a motion for
summary judgment for the first time.” Id. (citation omitted);
see also Astor Holdings, Inc. v. Roski, 325 F. Supp. 2d 251,
260 (S.D.N.Y. 2003) (the Court may consider the merits
of an affirmative defense “raised for the first time at the
summary judgment stage, so long as the plaintiff has had an
opportunity to respond” (citing Curry v. City of Syracuse, 316
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F.3d 324, 330-31 (2d Cir. 2003))); Wilkins v. Specialized Loan
Servicing, LLC, No. 20-CV-543, 2022 WL 3593154, at *1-2
(S.D.N.Y. August 23, 2022) (same). Waiver of an affirmative
defense “may not be proper where the defense is raised at the
first pragmatically possible time and applying it at that time
would not unfairly prejudice the opposing party.” Am. Fed.
Grp., Ltd. v. Rothenberg, 136 F.3d 897, 910 (2d Cir. 1998).
Because permitting a defendant to raise an affirmative defense
for the first time in a summary judgment motion is tantamount
to granting it leave to amend its answer, courts also consider
factors underlying a request for leave to amend an answer
under Federal Rule of Civil Procedure 15. See S&L Vitamins,
Inc. v. Australian Gold, Inc., 521 F. Supp. 2d 188, 213
(E.D.N.Y. 2007) (citing Block v. First Blood Assocs., 988
F.2d 344, 349–351 (2d Cir. 1993) 15 ). Applying the factors
for whether to permit amendment of an answer, a district
court has discretion to deny a defendant leave to amend
its answer “ ‘where the motion is made after an inordinate
delay, no satisfactory explanation is made for the delay, and
the amendment would prejudice the defendant.’ ” Levy v.
Kosher Overseers Assn. of Am., Inc., No. 92-CV-8377 (DLC),
2000 WL 294842, at *6 (S.D.N.Y. Mar. 21, 2000) (quoting
MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956,
962 (2d Cir. 1998)).
Defendants never filed an answer to the Complaint and, thus,
did not raise any affirmative defenses, including the argument
raised here that Plaintiff failed to exhaust his administrative
remedies under the PLRA. They also did not raise this issue
as a basis for dismissing the Complaint when they filed
their Motion to Dismiss on May 14, 2015. Copies of the
grievances submitted by Plaintiff on November 30, 2014 and
December 17, 2014 were attached to the Complaint. From
these documents and their own records, Defendants could
have ascertained, without the need for discovery, whether
Plaintiff had exhausted his administrative remedies.
By not pointing out Plaintiff's procedural defect until more
than seven and one-half years after the Complaint was filed
and after discovery has been completed, Defendants have
failed to raise at the “first pragmatically possible time” the
issue of Plaintiff's failure to exhaust administrative remedies.
Arciello, 2019 WL 4575145, at *5.
Plaintiff was released from NCCC on June 18, 2015 and from
custody on February 27, 2019. (Pl. Tr. 7:2–9; 28:3–4.) Had
Defendants raised the affirmative defense of Plaintiff's failure
to exhaust administrative remedies earlier, he may have had
the opportunity to remedy it and possibly refile his claim.
Because the three-year statute of limitations for Plaintiff's
Section 1983 claims has long passed, see, e.g., Ormiston v.
Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (“New York's three-
year statute of limitations ... governs Section 1983 actions in
New York ...”), the excessive delay has prejudiced Plaintiff.
*11 Defendants offer no satisfactory explanation for their
delay in raising this defense, stating only that Judge Bianco
granted Plaintiff leave to file an amended complaint within
thirty days and that Plaintiff failed to do so. (Def. Mem. at
3.) Plaintiff's failure to file an amended complaint against
defendants Sposato, John Doe and Jane Doe does not excuse
Defendants’ failure to file an answer to the remaining claims
in the Complaint, nor does it explain why Defendants did not
raise this affirmative defense in their motion to dismiss or any
subsequent proceedings in the intervening seven years.
Accordingly, I find that Defendants have waived their ability
to raise for the first time in the Motion the affirmative
defense of failure to exhaust administrative remedies. See
Learning Care Group, Inc. v. Armetta, 13-CV-1540 (VAB),
2016 WL 3248178, at *8 (D. Conn. June 12, 2016) (finding
that defendants waived their affirmative defenses by failing
to file an answer and failing to raise them in their motion to
dismiss). 16
II. Summary Judgment as to Deliberate Indifference
A. Summary Judgment Legal Standard
Federal Rule of Civil Procedure 56 governs motions for
summary judgment. Rule 56(a) states:
A party may move for summary
judgment, identifying each claim
or defense—or the part of each
claim or defense—on which summary
judgment is sought. The court shall
grant summary judgment if the movant
shows that there is no genuine dispute
as to any material fact and the movant
is entitled to judgment as a matter of
law.
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Fed. R. Civ. P. 56(a). “In ruling on a summary judgment
motion, the district court must ‘resolve all ambiguities,
and credit all factual inferences that could rationally be
drawn, in favor of the party opposing summary judgment’
and determine whether there is a genuine dispute as to a
material fact, raising an issue for trial.” McCarthy v. Dun
& Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007)
(citation omitted) (quoting Kessler v. Westchester Cnty. Dep't
of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006)). “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact.” Id. at 247–48 (emphasis in original). A “dispute about
a material fact is ‘genuine,’ ... if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. at 248.
Allegations in a complaint that are contradicted by a later
deposition cannot create a triable issue of fact. See, e.g.,
Taylor v. Ridley, 904 F. Supp. 2d 222, 232 (E.D.N.Y. 2012)
(collecting cases and granting summary judgment where
allegations in complaint were “unexpectedly inconsistent and
contradictory with his testimony ... at his deposition ... and are
uncorroborated by any independent evidence in the record.”);
AB ex rel. EF v. Rhinebeck Cent. Sch. Dist., 361 F. Supp.
2d 312, 316 (S.D.N.Y. 2005) (“[J]ust as the court should
not accept an affidavit that contradicts deposition testimony,
it should also not allow inconsistent allegations made in
a complaint to defeat summary judgment in the face of
contradictory testimony either.”).
*12 “It is the movant's burden to show that no genuine
factual dispute exists....” Giannullo v. City of N.Y., 322 F.3d
139, 140 (2d Cir. 2003). Once the movant satisfies its burden,
the party opposing summary judgment “must point to specific
evidence in the record” demonstrating a genuine issue for trial
and “cannot rest on allegations in the pleadings.” Salahuddin
v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)), abrogated in part
on other grounds by Kravitz v. Purcell, 87 F.4th 111, 119,
122 (2d Cir. 2023). “A verified complaint is to be treated as
an affidavit for summary judgment purposes, and therefore
will be considered in determining whether material issues of
fact exist, provided that it meets the other requirements for an
affidavit under Rule 56(e).” Colon v. Coughlin, 58 F.3d 865,
872 (2d Cir. 1995).
B. Section 1983 Legal Standard – Deliberate Indifference
“Section 1983 does not itself create substantive rights; rather,
it offers ‘a method for vindicating federal rights elsewhere
conferred.’ ” Donohue, 2016 WL 740439, at *3 (quoting
Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir.
2004)). “To prevail on a claim under Section 1983, a plaintiff
must show: (1) the deprivation of any rights, privileges, or
immunities secured by the Constitution and its laws, (2) by
a person acting under the color of state law.” Id. (quoting 42
U.S.C. § 1983).
Plaintiff brings claims under 42 U.S.C. § 1983 for violations
of his rights under the Eighth and Fourteenth Amendments.
“The Eighth Amendment forbids deliberate indifference to
serious medical needs of prisoners.” Donohue, 2016 WL
740439, at * 6 (quoting Spavone v. N.Y. State Dep't of Corr.
Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citations omitted)).
“Because Plaintiff was a pre-trial detainee, the Fourteenth
Amendment supplies the relevant legal standard,” which
applies to Plaintiff's deliberate indifference claims. Yancey v.
Robertson, 828 F. App'x 801, 803 (2d Cir. 2020) (summary
order) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017)).
In order to succeed on a claim of deliberate indifference
to serious medical needs, a plaintiff must establish both an
objective prong and a mens rea prong. 17 Darnell, 849 F.3d
at 29; see Donohue, 2016 WL 740439, at *6.
1. Objective Component
“For both the Eighth and Fourteenth Amendments, the
objective prong poses the same standard,” Horace v. Gibbs,
802 F. App'x 11, 14 (2d Cir. 2020) (summary order)
(citing Darnell, 849 F.3d at 32), requiring that “the alleged
deprivation of adequate medical care ... be ‘sufficiently
serious.’ ” Salahuddin, 467 F.3d at 279 (internal quotation
omitted). To establish this component, “the inmate [must]
show that he was actually deprived of adequate medical care
by an official's failure to take reasonable measures in response
to a sufficiently serious medical condition.” Thomas v. Wolf,
832 F. App'x 90, 92 (2d Cir. 2020) (summary order) (cleaned
up).
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There are two inquiries within this analysis. The first is
“whether the prisoner was actually deprived of adequate
medical care.” Donohue, 2016 WL 740439, at *6 (quoting
Salahuddin, 467 F.3d at 279–80). “As the Supreme Court has
noted, the prison official's duty is only to provide reasonable
care.” Salahuddin, 467 F.3d at 279. The second is “whether
the inadequacy in medical care is sufficiently serious ...
[which] 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.” Id. at 279–80.
*13 “[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. at 280. Factors to consider when
evaluating the seriousness of an inmate's medical condition
include, but are not limited to, “(1) whether a reasonable
doctor or patient would perceive the medical need in question
as important and worthy of comment or treatment, (2) whether
the medical condition significantly affects daily activities, and
(3) the existence of chronic and substantial pain.” Donohue,
2016 WL 740439, at *6 (quoting Morales v. Fischer, 46 F.
Supp. 3d 239, 247 (W.D.N.Y. 2014) (citation omitted)).
If “the inadequacy is in the medical treatment given, the
seriousness inquiry is narrower. 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 ‘focus[es] on the challenged delay or
interruption in treatment rather than the prisoner's underlying
medical condition alone.’ ” Salahuddin, 467 F.3d at 280
(quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003)).
“For a constitutional violation to occur based on deliberate
indifference to a prisoner's medical need, the deprivation
of medical care must be ‘sufficiently serious’ in the sense
that a condition of urgency, one that may produce death,
degeneration, or extreme pain exists.” Yancey, 828 F. App'x
at 803 (cleaned up and quotation omitted).
2. Mens Rea Component
The mens rea prong requires that the defendant acted with
a “sufficiently culpable state of mind.” Salhuddin, 467
F.3d at 280. “A detainee must prove that an official acted
intentionally or recklessly, and not merely negligently.”
Darnell, 849 F.3d at 36; see, e.g., Adamson v. Miller, 808
F. App'x 14, 18 (2d Cir. 2020) (summary order); Dumel v.
Westchester Cnty., 656 F. Supp. 3d 454, 465 (S.D.N.Y. 2023).
The plaintiff must demonstrate that “the defendants knew
that failing to provide the complained of medical treatment
would pose a substantial risk to [the detainee's] health or that
the defendants should have known that failing to provide the
omitted medical treatment would pose a substantial risk to the
detainee's health.” Darby v. Greenman, 14 F.4th 124, 128 (2d
Cir. 2021) (emphasis in original) (quoting Charles v. Orange
County, 925 F.3d 73, 87 (2d Cir. 2019)); see also Horace, 802
F. App'x at 14; Shakir v. Stankye, 805 F. App'x 35, 40 (2d Cir.
2020) (summary order).
“Courts must be careful,” however, “to not consider departure
from the accepted standard of medical care,” or medical
malpractice, “as serious indifference.” Jones v. Sheriff of
Suffolk Cnty., 518 F. Supp. 3d 650, 657 (E.D.N.Y. 2021).
“ ‘[M]ere disagreement over the proper treatment does not
create a constitutional claim,’ and accordingly, ‘[s]o long as
the treatment given is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth
Amendment violation.” Donohue, 2016 WL 740439, at *7
(alteration in original) (quoting Chance v. Armstrong, 143
F.3d 698, 703 (2d Cir. 1998)); see also Laurent v. Edwin, 528
F. Supp. 3d 69, 87 (E.D.N.Y. 2021). Nonetheless, “judgments
that have no sound medical basis, contravene professional
norms, and appear designed simply to justify an easier course
of treatment ... may provide the basis of a claim.” Ryan v. Cnty.
of Nassau, No. 12-CV-5343 (JS)(SIL), 2016 WL 11500151,
at *7 (E.D.N.Y. Mar. 31, 2016) (alteration in original and
citation omitted); see also Laurent, 528 F. Supp. 3d at 87 (“In
certain instances, a physician may be deliberately indifferent
if he or she consciously chooses an easier and less efficacious
treatment plan, as evident when treatment recommendations
are not derived from sound medical judgment, but ulterior
motives.” (cleaned up and citation omitted)).
*14 To establish individual liability under Section 1983,
a plaintiff must also “establish a given defendant's personal
involvement in the claimed violation in order to hold that
defendant liable in his individual capacity under § 1983.”
Patterson, 375 F.3d at 229.
C. Defendant Manetti
Plaintiff argues that Dr. Manetti's failure to provide him
with any mental health medication—despite Plaintiff's history
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of anxiety, depression, and panic attacks and a 20-year
history of taking mental health medication—along with his
failure to verify the medications that he had been taking,
constitutes deliberate indifference in violation of his Eighth
and Fourteenth Amendment rights. (See Pl. Mem. at 9–19.)
Dr. Manetti's personal involvement in the alleged violations
is not disputed. Rather, Defendants argue that Plaintiff fails
to present evidence in support of his allegations of deliberate
indifference or inadequate medical treatment. (Def. Mem. at
2.)
1. Objective Component
“Courts have repeatedly held that treatment of a psychiatric
or psychological condition may present a serious medical
need.” Hamm v. Hatcher, No. 05-CV-0503 (ER), 2013 WL
71770, at *8 (S.D.N.Y. Jan. 7, 2013) (quoting Cuoco v.
Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)). Plaintiff reports
having severe anxiety, depression, and panic attacks and
having been prescribed medication to treat those conditions
for twenty years. In addition to Plaintiff's testimony, Plaintiff's
NUMC medical records, Armor Health Assessment, and
Armor Mental Health Screening reveal that he reported a
history of these ailments when he was taken into custody.
Dr. Marcos was also able to confirm that Plaintiff was
previously taking nortriptyline before being incarcerated
at NCCC. “[T]he fact that [the plaintiff] was previously
treated for a psychiatric condition with medication would
clearly indicate that his condition was serious.” Colon,
2014 WL 4904692, at *7; see, e.g., Jones v. Rock, No.
12-CV-447 (NAM)(TWD), 2013 WL 4804500, at *15
(N.D.N.Y. Sept. 6, 2013) (finding that plaintiff's allegations
of mood disorder for which he had taken medication and
that he had attempted suicide plausibly established that his
mental health problems were “serious”). Plaintiff's history
of mental health conditions, combined with his suicidal
ideations and attempted suicide while at NCCC, indicate
that his mental health needs were sufficiently serious. See,
e.g., Young v. Choinski, 15 F. Supp. 3d 172, 184 (D.
Conn. 2014) (“[C]ase law within this Circuit recognizes
that ‘depression combined with severe anxiety attacks or
suicide attempts is a serious medical need’ in the context
of deliberate indifference.” (quoting Zimmerman v. Burge,
No. 06-CV-0176 (GLS)(GHL), 2009 WL 3111429, at *8
(N.D.N.Y. Sept. 24, 2009))).
There is also evidence that Plaintiff's anxiety and depression
affected his daily life. Plaintiff asserts that he experienced
panic attacks, could not eat or sleep, and felt anxious and
depressed. (See, e.g., Pl. 56.1 Opp. ¶ 64 (citing Mendelsohn
Report).) His conditions and complaints are documented in
many of the mental health rounds notes. (See generally Exs.
C-1 through C-4 to Brewington Decl., Dkts. 108-3 through
6.) Plaintiff also states that he attempted suicide in December
2014. (See Pl. 56.1 Opp. ¶ 64 (citing Mendelsohn Report).)
*15 Whether Dr. Manetti acted reasonably in choosing
not to provide Plaintiff with medication for his depression
and anxiety “is a more difficult question, which cannot be
resolved as a matter of law.” See Ryan, 2016 WL 11500151,
at *6. The parties have submitted conflicting expert reports.
Dr. Mendelsohn concluded that Dr. Manetti “deviated from
standard, customary, and ordinary care” in discontinuing
his psychiatric medication given that Plaintiff had an active
prescription for the medication when he arrived at NCCC
and exhibited signs of depression and anxiety throughout his
incarceration. (Mendelsohn Report at 11–12.) Additionally,
Dr. Mendelsohn found that because nortriptyline, which
Plaintiff was briefly given by Dr. Marcos, is not a controlled
substance, Dr. Manetti's alleged concern about Plaintiff's
substance dependence would not have precluded him from
prescribing it. (Id. at 12.) Finally, he stated that Dr. Manetti
did not conduct the necessary diagnostic tests to support his
conclusion that Plaintiff might be malingering. (Id. at 11.)
From Dr. Mendelsohn's findings, a reasonable juror could
find that the lack of treatment Plaintiff experienced was
“sufficiently serious.” See, e.g., Ryan, 2016 WL 11500151, at
*6 (finding expert opinion that psychiatrist breached standard
of care by delaying plaintiff's psychological evaluation,
discontinuing his psychotropic medication, and failing to
keep him under constant supervision created factual questions
as to whether psychiatrist had acted reasonably that could not
be resolved on summary judgment).
2. Mens Rea Component
There are also genuine disputes of material fact as to whether
Dr. Manetti had a sufficiently culpable state of mind when he
failed to prescribe Plaintiff mental health medication.
Dr. Manetti testified that he could not recall whether Plaintiff
informed him of his history of anxiety, depression, and
panic attacks. He testified that the record he reviewed
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before meeting with Plaintiff “indicated that he was not on
medications prior to coming to the jail.” (Manetti Tr. 58:22–
59:17; 60:3–16.)
Plaintiff is not required to establish that Dr. Manetti actually
knew that without medication, Plaintiff was at risk of serious
medical conditions; it is enough that Dr. Manetti should have
known that failing to provide him with medication would pose
a substantial risk to his health. See, e.g., Darby, 14 F.4th at
128.
The evidence in the record is such that a reasonable juror
could find that Dr. Manetti either knew or should have known
that Plaintiff was at risk of serious harm without medication
to treat his psychological conditions. While the Sherriff's
Department “New Admission Physical Condition Report”
completed on September 19, 2014 states that Plaintiff did
not have any illnesses and was not currently taking any
medication, the NUMC records, Armor Health Assessment,
and Armor Mental Health Screening records indicate that
Plaintiff reported a history of anxiety and depression. Some of
these records also reveal that Plaintiff had been hospitalized
twice for anxiety and depression and that he had previously
taken Klonopin and nortriptyline. (See Ex. C to Brewington
Decl. at 8.) NCCC officials also made the decision to admit
Plaintiff to the medical floor where he was placed in a
psychiatric cell. (Defs. 56.1 ¶ 10; Pl. 56.1 Opp. ¶ 10.)
A jury could find that Dr. Manetti either reviewed, or should
have reviewed, these records and was thus aware of Plaintiff's
mental health conditions and medication history. Moreover,
Dr. Manetti was aware that Plaintiff was experiencing
suicidal thoughts at least at the time of their first meeting,
where he recommended that Plaintiff continue to be placed
under constant supervision. Plaintiff's “Mental Health Rounds
Progress Note” from the same day states that Plaintiff
felt very depressed. (Ex. C-1 to Brewington Decl. at 13.)
Additionally, daily mental health rounds notes indicate that
Plaintiff repeatedly informed social workers that he was
depressed, anxious, and wanted to speak with Dr. Manetti.
(See Mendelsohn Report at 6–8.)
*16 There is also a genuine dispute as to the reason
Dr. Manetti chose not to prescribe Plaintiff medication.
Plaintiff's treatment records show that at the time of his
evaluation, Dr. Manetti wrote down that Plaintiff had
demanded benzodiazepines “because [he was] in jail,” and
Dr. Manetti believed that Plaintiff might be malingering.
(See Defs. 56.1 ¶¶ 40–45.) Dr. Manetti also testified that
he did not believe that prescribing controlled substances
to someone with a history of substance dependence was
medically advisable. (Manetti Tr. 56:2–5, 71:7–12.) Finally,
Dr. Manetti stated that he wanted to confirm Plaintiff's
prior prescriptions, if any, before prescribing medication to
Plaintiff. (Id. 147:21–148:12.)
Plaintiff asserts that Dr. Manetti stated that he was not
prescribing medication to Plaintiff because it was Armor's
policy not to provide pills to inmates.
Although Plaintiff's sworn deposition testimony is the only
evidence of Dr. Manetti's statement regarding an Armor
policy, “[a] single witness's sworn testimony, if believed by a
jury, can support a verdict, and is enough to raise a genuine
issue of fact precluding summary judgment.” Bradshaw v.
City of N.Y., 855 F. App'x 6, 9 (2d Cir. 2021) (summary
order); see also Young, 15 F. Supp. 3d at 185 (collecting cases
and finding that plaintiff's sworn complaint and deposition
testimony constituted evidence sufficient to consider for
summary judgment purposes). There is no documentary
evidence that directly contradicts Plaintiff's testimony, and
it is not for the Court to determine whether Plaintiff's
account is credible. See, e.g., Scott v. Coughlin, 344 F.3d
282, 289–90 (2d Cir. 2003) (“By finding against [plaintiff]
on the basis of the disparity between some of [plaintiff's]
medical records and statements in his affidavit, the district
court made an impermissible credibility determination and
weighed contradictory proof. The credibility of [plaintiff's]
statements and the weight of contradictory evidence may
only be evaluated by a finder of fact.”); but see, e.g.,
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.
2005) (ruling against plaintiff whose excessive force case
relied “almost exclusively on his own testimony, much of
which is contradictory and incomplete” and noting that “the
mere existence of a scintilla of evidence in support of
the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff.... [Non-moving parties] may not rely on conclusory
allegations or unsubstantiated speculation.... At the summary
judgment stage, a nonmoving party must offer some hard
evidence showing that its version of the events is not wholly
fanciful.” (cleaned up and internal quotations omitted)).
If a jury finds credible Plaintiff's testimony that Dr. Manetti
chose not to prescribe Plaintiff medication because of his
reliance on a purported Armor policy, a jury could find that
that he acted with deliberate indifference. See, e.g., Johnson v.
Wright, 412 F.3d 398, 404 (2d Cir. 2005) (finding that whether
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defendants acted with deliberate indifference to plaintiff's
medical needs by refusing to prescribe him Hepatitis C
medication due to a Department of Corrections policy was
a question of fact to be determined by the jury); Colon,
2014 WL 4904692, at *7 (finding that denial of psychiatric
medication based on Armor's budget rather than medical need
could establish mens rea prong of deliberate indifference
claim); Ryan, 2016 WL 11500151, at *7.
Additionally, whether Dr. Manetti acted recklessly by failing
to make additional efforts to obtain Plaintiff's prior treatment
records is at issue. In his expert report, Dr. Mendelsohn stated
that “[t]he standard of care would have been to gather as much
information as possible on the psychiatric care and treatment
rendered to [Plaintiff] prior to his arrival at Nassau County,”
and that “Dr. Manetti should have made an earnest effort
to obtain past metal health records from Fishkill knowing
[Plaintiff] gave him a history that he had prior psychiatric
treatment and had been placed on medication.” (Mendelsohn
Report at 11.)
*17 Given that, according to Plaintiff, Dr. Manetti failed
make any such effort, a jury could find that he acted with
deliberate indifference to Plaintiff's serious medical needs.
See, e.g., Wright, 412 F.3d at 404 (finding that a jury could
find that defendants knew and disregarded an excessive risk
to plaintiff's health based on evidence that included, inter
alia, defendants’ failure to take “any step whatsoever to
investigate—let alone verify—whether it would be medically
appropriate” to decline to prescribe plaintiff medication
despite his treating physicians’ advice to the contrary).
Finally, the fact that Dr. Marcos prescribed Plaintiff
nortriptyline at NCCC despite his history of substance
dependance could lead a reasonable jury to conclude that
Dr. Manetti's rationale for not prescribing the medication
was pretextual. Id. at 405–06 (finding the fact that plaintiff's
physicians recommended that he be given medication
despite concerns about his compliance undercut defendants’
argument that they were justified in not giving plaintiff
the medication due to compliance concerns); but see, e.g.,
Laurent, 528 F. Supp. 3d at 88 (collecting cases establishing
that deliberate indifference is not met simply because one
doctor's treatment plan for an inmate differs from that of
another doctor).
There are genuine disputes of material fact as to whether
Dr. Manetti was deliberately indifferent to Plaintiff's serious
medical needs. Accordingly, summary judgment on Plaintiff's
claims against Dr. Manetti is denied.
D. Defendant Brady
Plaintiff asserts that Ms. Brady unilaterally discontinued his
Ultram pain medication and gave him an NSAID, which Ms.
Brady knew or should have known he was allergic to. Plaintiff
also alleges that Ms. Brady told him “I was hoping you would
have died” when he reported that he had an allergic reaction
to medication that she had administered to him.
Plaintiff argues that Ms. Brady's unilateral discontinuation of
his Ultram prescription on December 17, 2014 and provision
of an NSAID, to which he is allergic, violate his Eighth and
Fourteenth Amendment rights.
Defendants contend that Ms. Brady did not have the authority
to order or discontinue Plaintiff's medication, and, therefore,
cannot be held liable for deliberate indifference under § 1983.
(Def. Mem. at 21–22.)
1. Discontinuation of Ultram
Plaintiff contends that Ms. Brady deprived him of adequate
medical care by discontinuing Ultram, which, to establish
deliberate indifference, must be sufficiently serious and
caused by an official's failure to take reasonable measures
in response to a medical condition. Salahuddin, 467 F.3d at
279; Thomas, 832 F. App'x at 92. Here, “ ‘sufficiently serious’
means a condition of urgency exists that may produce death,
degeneration, or extreme pain.” Yancey, 828 F. App'x at 803
(quotation omitted).
Plaintiff's Ultram prescription was discontinued on December
17, 2014 and reinstated on December 30, 2014. (See
Herrington Report at 4; Brady Tr. 93:20–94:11; Ex. C-1 to
Brewington Decl. at 2; Ex. C-5 to Brewington Decl. at 29.)
During the time that Plaintiff was without Ultram, he made
four sick call requests. Plaintiff wrote on December 18, 2014,
“I am in constant extreme pain!”; on December 19, he wrote,
“I am in extreme pain!”; on December 25, he wrote, “I am
in constant extreme pain!”; and on December 29, he wrote,
“severe pain I am in every day!” (Ex. J-1 at 21–24.)
Given that Plaintiff alleges a disruption in treatment
rather than a total denial of pain medication, the medical
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consequences of the disruption must be considered. See, e.g.,
Davis v. McCready, 283 F. Supp. 3d 108, 120 (S.D.N.Y. 2017)
(“In evaluating whether a delay in treatment is sufficiently
serious, ‘the actual medical consequences that flow from the
alleged denial of care will be highly relevant.’ ” (quoting
Carpenter, 316 F.3d at 187)); Snyder v. Alam, No. 15-
CV-4033 (VB), 2016 WL 2642226, at *4 (S.D.N.Y. May 6,
2016) (considering only injuries that were a result of delay
in medical treatment where plaintiff claimed that the delay
constituted deliberate indifference to his serious medical
needs).
*18 Plaintiff does not allege that his condition worsened
either temporarily or permanently due to Ultram being
discontinued. His complaints of serious pain were fairly
consistent before, during, and after the period between
December 17, 2014 and December 30, 2014 when Ultram was
discontinued. (See supra n. 10 (listing Plaintiff's complaints
of pain between September 2014 and March 2015).) Indeed,
Plaintiff complained of similarly severe pain for months
beforehand and even up to just five days before Ultram
was discontinued. Plaintiff has not shown how any pain he
experienced was caused by being deprived of Ultram.
“As a threshold matter, the mere fact that plaintiff's underlying
[condition] is a serious medical condition does not mean that
the allegedly incorrect treatment for that condition poses an
objectively serious health risk.” Price v. Reilly, 697 F. Supp.
2d 344, 359 (E.D.N.Y. 2010). Plaintiff has failed to produce
any evidence that ceasing Ultram caused or will cause him any
objective harm. See id. (finding that a plaintiff's medication
dosage claim failed because the plaintiff only alleged that an
allegedly incorrect dosage was “wrong” and was “hurting”
him). Taking Plaintiff's assertions as true, Plaintiff suffered
from severe pain, but there is no indication that his symptoms
worsened to any cognizable degree after December 17, 2014,
when Ultram was discontinued. See, e.g., Jones v. Sheriff
of Suffolk Cnty., 518 F. Supp. 3d 650, 658 (E.D.N.Y. 2021)
(finding that brief delay in administration of pain medication
that “caused plaintiff some degree of pain or discomfort”
would “not [be] constitutionally deficient where plaintiff
suffered neither death nor degeneration of his condition”).
Therefore, there is no evidence that the denial of Ultram from
December 17 to 30, 2014 significantly impacted Plaintiff's
pain such that a reasonable jury could find that his condition
was sufficiently serious.
Moreover, Ms. Brady's duty in this context is to provide
reasonable care. Salahuddin, 467 F.3d at 279. While Plaintiff's
expert has opined that Defendants generally failed to ensure
Plaintiff's continuity of treatment (Herrington Report at 14),
it is not clear that Ms. Brady's purported act of discontinuing
Plaintiff's Ultram was unreasonable per se, nor is it clear
why Ms. Brady should be held individually liable for this
alleged general failure in continuity. Plaintiff's Ultram was
discontinued or reduced on other occasions as well, including
on various dates in November 2014, from February 1 to
February 5, 2015, and from March 23, 2015 to April 10,
2015. (Herrington Report at 4–5, 7–8; Ex. C-4 to Brewington
Decl. at 3; Pl. 56.1 ¶ 44.) Plaintiff does not allege that
he experienced any significant, unusual pain or medical
setbacks on those occasions. Plaintiff also does not elucidate
why adjusting his dosage of Ultram or eliminating it was
unreasonable.
The parties dispute whether Ms. Brady could have
discontinued Ultram unilaterally, because, as an LPN, she was
not authorized to do so. (See Brady Tr. 169:18–170:24.) But
ultimately, that issue is not relevant.
Because Plaintiff has not demonstrated that the
discontinuance of Ultram constituted a sufficiently serious
deprivation of medical care, summary judgment is granted as
to Plaintiff's claim against Ms. Brady related to her denial of
medication.
2. Provision of NSAIDs
a. Objective Component
Plaintiff contends that Ms. Brady acted with deliberate
indifference to his serious medical needs by giving him an
NSAID, which caused him to suffer a severe allergic reaction.
(Pl. Mem. at 10–12.) Plaintiff testified that, after taking the
ibuprofen that Ms. Brady had administered to him, his heart
began racing, his throat closed such that he could not breathe,
and he passed out. (Pl. Tr. 95:3–7.) The allergic reaction is not
documented in Plaintiff's medical records.
*19 Giving Plaintiff an NSAID despite his medical record
reflecting that he was allergic to NSAIDs could constitute a
deprivation of adequate medical care, but Plaintiff must still
demonstrate that the deprivation was sufficiently serious.
In Yancey v. Robertson, the Second Circuit, in affirming
summary judgment entered against plaintiff, found that the
plaintiff had not “met his burden to show that his [allergic
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reaction] was serious enough such that the delay in treatment
here posed an unreasonable risk of severe damage to his
health.” 828 F. App'x at 803–04. While the court “presumed”
that, for purposes of the summary judgment motion, the
plaintiff “indeed suffered from an allergic reaction to cause
him some level of respiratory distress,” id. at 804, this reaction
on its own this did not meet plaintiff's burden.
Unlike the plaintiff in Yancey, Plaintiff did not seek
out medical care for his allergic reaction while he was
experiencing the reaction or afterwards. Plaintiff also does
not claim that his daily activities were significantly affected
by the reaction, that he was in chronic or substantial pain,
that he suffered any long-term effects from the NSAIDs,
or that the symptoms were so acute that he sought out
immediate medical attention. Plaintiff's testimony indicates
that his symptoms subsided by the following day. (See Pl. Tr.
95:3–25.)
Plaintiff does, however, claim that he “fainted out” and lost
track of events for some time, which is more severe than the
allergic reaction the plaintiff in Yancey suffered. 828 F. App'x
at 804. Despite Plaintiff's failure to provide other evidence
of the incident, 18 based on Plaintiff's testimony, a jury could
reasonably conclude that his allergic reaction was sufficiently
serious to create a condition of urgency that might produce
death, degeneration, or extreme pain.
b. Mens Rea Component
Plaintiff fails, however, to identify sufficient support in the
record to establish that Ms. Brady possessed the requisite
mens rea. He alleges in the Complaint that Ms. Brady told
him she wished he “would have died.” (Compl. ¶ 33.) But on
a motion for summary judgment, the Court is not required to
consider the allegations of an unverified complaint that are
not supported by other evidence in the record. See Taylor, 904
F. Supp. at 232.
Plaintiff's sworn testimony at his deposition shows that when
he confronted Ms. Brady the day after his allergic reaction,
demanding to know what medication she had administered to
him, she told him that it was ibuprofen, and when he informed
her that he was allergic to NSAIDs, Ms. Brady said, “Oh, oh,”
and left. (Pl. Tr. 95:19–22.) This description of Ms. Brady's
reaction is insufficient to establish that she acted recklessly
or intentionally in giving him an NSAID. Plaintiff has thus
failed to establish that Ms. Brady had the requisite mens rea
for his claim of deliberate indifference.
*20 Accordingly, the Court grants summary judgment as
to Plaintiff's claims relating to allegations that Ms. Brady
improperly administered medication to which she knew or
should have known he was allergic.
E. Monell Liability
Plaintiff argues that Armor is liable under Section 1983.
Because Plaintiff has set forth sufficient evidence to create a
genuine dispute of material fact, summary judgment is denied
as to this claim.
A municipal entity may be held liable under Section 1983
where a plaintiff demonstrates that the constitutional violation
complained of was caused by a municipal “policy or custom.”
Monell, 436 U.S. at 694–95. “Although the Supreme Court's
interpretation of § 1983 in Monell applied to municipal
government and not to private entities acting under color
of state law, case law has extended the Monell doctrine to
private § 1983 defendants acting under color of state law.”
Gleeson v. Cnty. of Nassau, No. 15-CV-6487 (AMD)(RL),
2019 WL 4754326, at *14 (E.D.N.Y. Sept. 30, 2019) (quoting
Dilworth v. Goldberg, No. 10-CV-2224 (RJH)(GWG), 2011
WL 3501869, at *24 (S.D.N.Y. July 28, 2011)).
A plaintiff can prove the existence of a policy or custom
by establishing “(1) a formal policy; (2) action taken or
decisions made by policymakers that caused the violation;
(3) a practice so persistent and widespread that it constitutes
a ‘custom or usage;’ or (4) a failure to properly train or
supervise [entity] employees.” Gleeson, 2019 WL 4754326,
at *14 (citing Byvalets v. New York City Hous. Auth., No. 16-
CV-6785 (CBA), 2017 WL 7793638, at *14 (E.D.N.Y. July
28, 2017)).
Plaintiff argues that Defendant Armor has a widespread and
well-settled custom of providing inadequate medical care
to inmates. “Since Armor was hired to fulfill the state's
constitutional obligation to provide necessary medical care
for its inmates, the Court finds that it was a state actor that
can be sued pursuant to Section 1983.” Ryan, 2016 WL
11500151, at *7 (internal quotation omitted). In support of his
claim, Plaintiff points to various New York State Commission
of Correction (“NYS COC”) reports that document the
conditions surrounding the deaths of numerous inmates under
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Armor's care between 2012 and 2016. (See generally “NYS
COC Reports,” Ex. H to Brewington Decl., Dkt. 109-24.)
Courts in this District have construed “widespread” to mean
that “the unconstitutional acts in question are common or
prevalent throughout the entity,” and “well-settled” to mean
that “the unconstitutional acts have achieved permanent, or
close to permanent, status.” Gazzola v. Cnty. of Nassau, No.
16-CV-0909 (JS)(AYS), 2022 WL 2274710, at *12 (E.D.N.Y.
June 23, 2022) (internal quotation omitted). “While there is
no magic number of instances of unconstitutional conduct that
will suffice to permit the inference of a broader municipal
policy or custom,” id. (internal quotation omitted), where a
plaintiff supports his claim with government reports “like
the NYS COC,” the Court must ensure that “those reports
are sufficiently connected to the specific facts of the case.”
Isaac v. City of New York, No. 16-CV-4729 (KAM), 2018 WL
5020173, at *17 (E.D.N.Y. Aug. 6, 2018) (quoting Gomez v.
City of New York, No. 16-CV-1274 (NGG)(LB), 2017 WL
1034690, at *11 (E.D.N.Y. Mar. 16, 2017)), R&R adopted,
2018 WL 4583481 (E.D.N.Y. Sept. 24, 2018).
*21 The NYS COC reports detail Armor's repeated failures
to deliver adequate medical care to inmates at NCCC during
the time period when Plaintiff alleges he was subjected to
deliberate indifference to his serious medical conditions.
The reports specifically call attention to “Armor's pattern
of failing to properly manage patients[’] chronic medical
needs.” (NYS COC Reports at 22, 30, 41.) As this Court has
repeatedly found, such evidence sufficiently raises a genuine
issue of material fact as to the existence of a custom of
denying inmates adequate medical care. See, e.g., Gazzola,
2022 WL 2274710, at *12 (finding a genuine dispute as to
whether Armor had a custom of providing inadequate medical
care where the plaintiff provided NYS COC reports about
instances similar to plaintiff's allegations during a similar
time period); Gleeson, 2019 WL 4754326, at *16 (same).
Accordingly, summary judgment as to Plaintiff's Monell
claim is denied.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment is granted as to the claims against Denise Brady
and denied as to the claims against Dr. Vincent Manetti and
Armor Correctional Health Services.
All Citations
Slip Copy, 2025 WL 974347
Footnotes
1 Beginning with number 7, Plaintiff has misnumbered his responses to Defendants’ statements. The Court
uses the Defendants’ numbering system when citing to Plaintiff's responses in his Statement of Disputed
Facts.
2 Because of inconsistencies in page numbering of exhibits attached to the Brewington Declaration, the Court
refers to the ECF pagination.
3 Plaintiff was given an “Initial Mental Health Evaluation” on September 20, 2014, which has been submitted
to the Court only as an exhibit to the report of Defendant's expert Dr. Mathis. (See “Mathis Report” at 96
(ECF pagination), Dkt. 117.)
4 Tramadol is a generic equivalent to Ultram. See, e.g., Alston v. Caraco Pharm., Inc., 670 F. Supp. 2d 279,
281 (S.D.N.Y. 2009).
5 Gabapentin is the generic name for Neurontin. See, e.g., In re Neurontin Mktg., Sales Pracs., & Prod. Liab.
Litig., 612 F. Supp. 2d 116, 122 n.5 (D. Mass. 2009).
6 Plaintiff disputes these statements, but his disagreement is not responsive. (See Pl. 56.1 ¶ 44.)
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7 Plaintiff disputes these statements, but his disagreement is not responsive. (See Pl. 56.1 ¶¶ 41, 45, 46.)
8 Plaintiff's deposition testimony was slightly inconsistent as to when he began receiving nortriptyline. He
testified that he began receiving the medication within a week after he arrived at NCCC: “Q. After that phone
call [by Dr. Marcos to CVS], what medications did Armor prescribe you for your pain? A. They gave me the
Neurontin and she ordered me Ultram and Nortryptylene [sic].” Q. That's for the mental health? A. Right. Q.
The Nortryptylene, is that for anxiety or depression or both? A. A lot of them are like combo. Q. How soon
after you arrived at the facility in 2014 did they start giving you the Neurontin and Ultram? A. I would say
within a week approximately. Q. Was it the same for the mental health medication, the Nortryptylene? A.
Yes.” (Pl. Tr. 80:7–24.)
9 For example:
• On October 10, 2014, Plaintiff stated, “I need meds, I'm stressed.” (Ex. C-1 to Brewington Decl. at 17).
• On October 17, 2014, Plaintiff stated that he was okay but wanted depression medication. (Id. at 20.)
• On October 24, 2014, Plaintiff stated, “I'm depressed still.” (Id. at 21.)
• On October 31, 2014, Plaintiff stated “I'm in pain and my whole life has been a mess.” (Id. at 14.)
• On November 7, 2014, Plaintiff stated “I'm still not getting medication.” (Id. at 32.)
• On December 3, 2014, Plaintiff stated, “I'm depressed and need meds.” (Id. at 34.)
• On January 14, 2015, Plaintiff stated, “I'm feeling better, still anxious.” (Ex C-2 to Brewington Decl. at 8.)
• On February 4, 2015, Plaintiff stated, “still depressed and making it work.” (Id. at 17.)
• On March 6, 2015, Plaintiff stated, “I'm okay waiting for court.” (Id. at 17.)
10 Plaintiff's sick call requests complaining of pain include, inter alia:
• On September 27, 2014, Plaintiff wrote, “massive chronic pain in cervical spine” (Ex J-1 to Brewington
Decl. at 3, Dkt. 108-9).
• On October 7, 2014, he wrote, “I do not sleep, or rest at all due to serious neck trauma.” (Id. at 6).
• On October 21, 2014, Plaintiff wrote that he had “crushing pain in base of neck.” (Id. at 8.)
• On October 23, 2014, he wrote, “Loss of about 50% or more of left arm strength (numb and in pain) and
about 30% of left leg since seizure.” (Id. at 9.)
• On November 20, 2014, he wrote, “severe pain and numbness in both arms and left leg!” (Id. at 12.)
• On November 22, 2014, Plaintiff wrote, “I have been experiencing massive pinched nerve migraine
headaches every day along with problems with lft. side of my body!” (Id. at 13.)
• On December 4, 2014, he wrote, “I am in extreme amounts of pain all day and night....” (Id. at 17.)
• On December 12, 2014, Plaintiff wrote, “[E]xcruciating migraine headaches and severe neck pain and
lower back and leg pains.” (Id. at 20.)
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• On February 3, 2015, he wrote, “I am in excruciating pain in my cervical spine and lumbar spine from
bulged discs w/ pinched nerves.” (Id. at 31.)
• On March 20, 2015, Plaintiff wrote, “Extreme pain in lower back....” (Id. at 43.)
11 Plaintiff “disputes” this statement but does not dispute that this was the conclusion that Herrington reached.
(See Pl. 56.1 Opp. ¶ 61.)
12 Although the Complaint (which has never been amended) does not name Armor as a defendant in its caption,
Judge Bianco noted that Plaintiff had “plausibly alleged that Armor had a custom or policy of denying inmates
adequate medical care,” Donohue, 2016 WL 740439, at *6, and concluded that the claims against Armor
could proceed along with those against Manetti and Brady, id.
Federal Rule of Civil Procedure 10(a) mandates that the caption of a pleading contain the names of all parties.
Rapp v. Fowler, 537 F. Supp. 3d 521, 526 (S.D.N.Y. 2021) (“ ‘[T]hough seemingly pedestrian,’ Rule 10(a)
‘serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside
lightly.’ ” (quoting Fed. R. Civ. P. 10(a))). However, “where a party has actual notice of a suit and is correctly
identified in the body of the complaint, courts have typically held that an error in the caption is a technical
defect.” Nationwide Mut. Ins. Co. v. Kaufman, 896 F. Supp. 104, 109 (E.D.N.Y. 1995). Courts “should be
guided by whether a reasonably knowledgeable layperson could conclude, from the circumstances, that he
or she had been made a party to a lawsuit.” Id.
Here, the Complaint contained sufficient factual allegations against Armor such that it has defended itself in
this action as if it had been formally named a defendant. For example, on March 30, 2015, John J. Doody,
Esq., entered an appearance on behalf of “Defendants Armor Correctional Health Services of New York,
Inc. i/s/h/a ‘Armor Correctional Health Services,’ Dr. Vincent Manetti, by his employer Armor Correctional
Health Services, [and] Nurse Jane Brady, by her employer Armor Correctional Health Services.” (Notice of
Appearance at 1, Dkt. 7.) Defendants argued in their Motion to Dismiss that Plaintiff had failed to state a
claim under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978) by failing to establish that Armor had
a custom of providing insufficient medical care. (Mot. To Dismiss at 8, Dkt. 16.) At Plaintiff's deposition on
August 12, 2019, Dale McLaren, Esq. introduced himself as counsel for Armor. (Pl. Tr. 3:7-15.) In the Motion,
Defendants again argue against Monell liability. Although Defendants claim that Judge Bianco “mistakenly”
included Armor as a remaining defendant in the Order on the Motion to Dismiss (Def. Supp. Br. at 2 (Dkt.
119)), Defendants never requested a correction or reconsideration.
Accordingly, the Court considers the failure to include Armor as a defendant in the caption of this case to
be a technical defect and respectfully direct the Clerk of Court to amend the caption now to name Armor
as a defendant.
13 Plaintiff was granted leave to amend the Complaint with regard to Sposato, John Doe and Jane Doe but
failed to do so, and the claims against these defendants were dismissed on May 14, 2019. (Dkt. 61.)
14 Plaintiff argues that by failing to file an answer, Defendants “essentially defaulted.” (Plaintiff's Memorandum
of Law Opposing Summary Judgment (“Pl. Mem.”) at 3, Dkt. 109-29.) The Court rejects this argument, as
Defendants have vigorously defended themselves notwithstanding this lacuna in their pleadings.
15 In Block, the defendants raised the affirmative defense of statute of limitations for the first time on summary
judgment. 988 F.2d at 350. Although they had not moved to amend their answer to include the statute of
limitations as an affirmative defense, the district court construed their summary judgment motion also as a
motion to amend their answer and applied the analysis under Rule 15(a). The Second Circuit affirmed the
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district court's decision to grant defendants leave to amend their answer on the basis that the plaintiff did not
demonstrate bad faith or prejudice. Id. at 350–51.
16 Defendants request, in the alternative, leave to file an answer now. (Defendants’ Reply in Support of Motion
for Summary Judgment at 4–5, Dkt. 121.) For the reasons stated above applicable to consideration of a
motion to amend, the Court denies Defendants’ request.
17 Although “[c]ourts have traditionally referred to this second element as the ‘subjective prong,’ ” as discussed
below, it “might better be described as the ‘mens rea prong’ or ‘mental element prong.’ ” Darnell, 849 F.3d
at 32.
18 Courts have found that the lack of corroborating evidence can be insufficient to grant summary judgment.
See, e.g., Bradshaw, 855 F. App'x at 9 (“A single witness's sworn testimony, if believed by a jury, can support
a verdict, and is enough to raise a genuine issue of fact precluding summary judgment.”); Coughlin, 344 F.3d
at 289–90 (“By finding against [plaintiff] on the basis of the disparity between some of [plaintiff's] medical
records and statements in his affidavit, the district court made an impermissible credibility determination and
weighed contradictory proof. The credibility of [plaintiff's] statements and the weight of contradictory evidence
may only be evaluated by a finder of fact.”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 832708
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Theodore HUDSON, Plaintiff,
v.
Christopher ARTUZ, Warden Philip
Coombe, Commissioner Sergeant
Ambrosino Doctor Manion Defendants.
No. 95 CIV. 4768(JSR).
|
Nov. 30, 1998.
Attorneys and Law Firms
Mr. Theodore Hudson, Great Meadow Correctional Facility,
Comstock.
Alfred A. Delicata, Esq., Assistant Attorney General, New
York.
MEMORANDUM AND ORDER
BUCHWALD, Magistrate J.
*1 Plaintiff Theodore Hudson filed this pro se action
pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's
complaint alleges defendants violated his constitutional rights
while he was an inmate at Green Haven Correctional
Facility. 1 Plaintiff's complaint was dismissed sua sponte by
Judge Thomas P. Griesa on June 26, 1995 pursuant to 28
U.S.C. § 1915(d). On September 26, 1995, the Second Circuit
Court of Appeals vacated the judgment and remanded the case
to the district court for further proceedings.
The case was reassigned to Judge Barbara S. Jones on
January 31, 1996. Defendants moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996.
Thereafter, the case was reassigned to Judge Jed S. Rakoff
on February 26, 1997. On February 26, 1998, Judge Rakoff
granted defendants' motion to dismiss, but vacated the
judgment on April 10, 1998 in response to plaintiff's motion
for reconsideration in which plaintiff claimed that he never
received defendants' motion to dismiss.
By Judge Rakoff's Order dated April 14, 1998, this case was
referred to me for general pretrial purposes and for a Report
and Recommendation on any dispositive motion. Presently
pending is defendants' renewed motion to dismiss. Plaintiff
filed a reply on July 6, 1998. For the reasons discussed
below, plaintiff's complaint is dismissed without prejudice,
and plaintiff is granted leave to replead within thirty (30) days
of the date of the entry of this order.
FACTS
Plaintiff alleges that he was assaulted by four inmates in the
Green Haven Correctional Facility mess hall on March 14,
1995. (Complaint at 4.) He alleges that he was struck with
a pipe and a fork while in the “pop room” between 6:00
p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends
that the attack left him with 11 stitches in his head, chronic
headaches, nightmares, and pain in his arm, shoulder, and
back. (Id.) Plaintiff also states that Sergeant Ambrosino
“failed to secure [the] area and separate” him from his
attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz
is that he “fail [sic] to qualify as warden.” (Complaint at
4.) Plaintiff names Commissioner Coombes as a defendant,
alleging Coombes “fail [sic] to appoint a qualified warden
over security.” (Amended Complaint at 5.) Plaintiff further
alleges that Dr. Manion refused to give him pain medication.
(Complaint at 5.) Plaintiff seeks to “prevent violent crimes”
and demands $6,000,000 in damages. (Amended Complaint
at 5.)
Defendants moved to dismiss the complaint, arguing that: (1)
the Eleventh Amendment bars suit against state defendants
for money damages; (2) the plaintiff's allegations fail to state
a claim for a constitutional violation; (3) the defendants are
qualifiedly immune from damages; and (4) plaintiff must
exhaust his administrative remedies before bringing this suit.
DISCUSSION
I find that plaintiff's complaint runs afoul of Rules 8 and
10 of the Federal Rules of Civil Procedure and dismiss the
complaint without prejudice and with leave to amend. Federal
Rule 8 requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to
give fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Powell v. Marine Midland
Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v.
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the
“principal function of pleadings under the Federal Rules is to
give the adverse party fair notice of the claim asserted so as
to enable him to answer and prepare for trial”).
*2 Rule 10 of the Federal Rules of Civil Procedure requires,
inter alia, that the allegations in a plaintiff's complaint be
made in numbered paragraphs, each of which should recite,
as far as practicable, only a single set of circumstances.
Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule
10 also requires that each claim upon which plaintiff seeks
relief be founded upon a separate transaction or occurrence.
Id. 2 The purpose of Rule 10 is to “provide an easy mode
of identification for referring to a particular paragraph in a
prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL
392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright &
A. Miller, Federal Practice and Procedure, § 1323 at 735
(1990)).
A complaint that fails to comply with these pleading rules
“presents far too heavy a burden in terms of defendants'
duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of”
a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y.1996). It may therefore be dismissed by the court.
Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When
a complaint does not comply with the requirement that it
be short and plain, the court has the power to, on its own
initiative, ... dismiss the complaint”). Dismissal, however, is
“usually reserved for those cases in which the complaint is
so confused, ambiguous, vague, or otherwise unintelligible
that its true substance, if any, is well disguised.” Id. In those
cases in which the court dismisses a pro se complaint for
failure to comply with Rule 8, it should give the plaintiff leave
to amend when the complaint states a claim that is on its
face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d
Cir.1995).
In determining whether a nonfrivolous claim is stated, the
complaint's allegations are taken as true, and the “complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to
be liberally construed in his favor when determining whether
he has stated a meritorious claim. See Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it
is difficult to determine the actual substance of the plaintiff's
complaint, outright dismissal without leave to amend the
complaint is generally disfavored as an abuse of discretion.
See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of
New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.
Mar.12, 1997).
Here, plaintiff's pro se complaint fails to satisfy the
requirements of Federal Rules 8 and 10. The complaint is
often illegible and largely incomprehensible, scattering what
appear to be allegations specific to plaintiff within a forest
of headnotes copied from prior opinions. Defendants have
answered with a boilerplate brief, which is perhaps all a
defendant can do when faced with such a complaint. The
Court is left with an insurmountable burden in attempting to
make a reasoned ruling on such muddled pleadings.
*3 Although plaintiff's complaint is substantially
incomprehensible, it appears to plead at least some claims
that cannot be termed frivolous on their face. For example,
plaintiff clearly alleges that inmates assaulted him and that
Dr. Manion refused to provide him medical attention. He also
appears to assert that Sergeant Ambrosino failed to protect
him from the attack or take steps to prevent future attacks.
(Plaintiff's Reply at 5). It is well established that an inmate's
constitutional rights are violated when prison officials act
with deliberate indifference to his safety or with intent to
cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d
Cir.1991). It is similarly well established that an inmate's
constitutional rights are violated when a prison doctor denies
his request for medical care with deliberate indifference to
the inmate's serious medical needs. Estelle v. Gamble, 429
U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v.
Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S.
1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although
plaintiff provides few facts to support his allegations, I
disagree with defendants' assertion that outright dismissal is
appropriate because it “appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Defendant's Memorandum at 5 (quoting
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)).
Because plaintiff's complaint does not comply with Rules 8
and 10, it is hereby dismissed without prejudice, and plaintiff
is granted leave to replead within thirty (30) days of the date
of the entry of this Order. In drafting his second amended
complaint, plaintiff is directed to number each paragraph and
order the paragraphs chronologically, so that each incident in
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
which he alleges a constitutional violation is described in the
order that it occurred. Plaintiff is also directed to specifically
describe the actions of each defendant that caused plaintiff
harm, and to do so in separate paragraphs for each defendant.
Plaintiff's complaint shall contain the facts specific to the
incidents plaintiff alleges occurred, and not any facts relating
to any case that has been decided previously by a court of law.
Plaintiff's complaint shall also contain a clear statement of the
relief he seeks in addition to monetary damages.
CONCLUSION
For the reasons set forth above, plaintiff's complaint is
dismissed without prejudice, and plaintiff is granted leave to
replead within thirty (30) days of the date of the entry of this
Order.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 1998 WL 832708
Footnotes
1 Plaintiff is presently incarcerated at Sullivan Correctional Facility.
2 Rule 10 states:
(b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered
paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set
of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim
founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a
separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:25-cv-00591-ECC-ML Document 43 Filed 04/28/26 Page 68 of 107

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Disagreement Recognized by United House of Prayer for All People v.
Therrien Waddell, Inc., D.C., March 26, 2015
647 F.3d 419
United States Court of Appeals, Second Circuit.
L–7 DESIGNS, INC., Plaintiff–Appellant,
v.
OLD NAVY, LLC, Defendant–Appellee.
Docket No. 10–573–cv
|
Argued: Feb. 7, 2011.
|
Decided: June 1, 2011.
Synopsis
Background: Manager of design services and intellectual
property rights filed action against retailer alleging wrongful
termination and trade disparagement to its claims for breach
of contract, breach of the implied covenant of good faith and
fair dealing, and fraud. Retailer counterclaimed. The United
States District Court for the Southern District of New York,
Denny Chin, J., 2010 WL 157494 and 2010 WL 532160,
dismissed action. Plaintiff appealed.
Holdings: The Court of Appeals, Shira A. Scheindlin, District
Judge, of the United States District Court for the Southern
District of New York, sitting by designation, held that:
[1] manager stated claim that retailer had breached duty to
negotiate licensing agreement in good faith and
[2] wrongful termination claim had been stated.
Affirmed in part, vacated in part, and remanded.
Procedural Posture(s): On Appeal; Motion to Dismiss;
Motion to Dismiss for Failure to State a Claim.
West Headnotes (17)
[1] Federal Civil Procedure Matters
considered
On a motion for judgment on the pleadings, a
court considers the complaint, the answer, any
written documents attached to them, and any
matter of which the court can take judicial notice
for the factual background of the case. Fed.Rules
Civ.Proc.Rule 12(c), 28 U.S.C.A.
797 Cases that cite this headnote
[2] Federal Civil Procedure Matters
considered
On a motion for judgment on the pleadings,
a complaint is deemed to include any written
instrument attached to it as an exhibit, materials
incorporated in it by reference, and documents
that, although not incorporated by reference, are
integral to the complaint.
749 Cases that cite this headnote
[3] Federal Civil Procedure Matters
considered
On motion for judgment on the pleadings, email
exhibits were “attached” to answer, even if they
were only “part of” counterclaims that were filed
in same document. Fed.Rules Civ.Proc.Rules
10(c), 12(c), 28 U.S.C.A.
20 Cases that cite this headnote
More cases on this issue
[4] Federal Civil Procedure Matters
considered
Emails of which plaintiff had notice well before
defendant attached them to its answer because
plaintiff sent or received them were “integral”
to negotiation exchange that plaintiff identified
as basis for its complaint, and thus could be
considered by court on motion for judgment on
the pleadings. Fed.Rules Civ.Proc.Rules 10(c),
12(c), 28 U.S.C.A.
190 Cases that cite this headnote
More cases on this issue
[5] Federal Courts Judgment on the pleadings
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
A district court's decision to grant a motion for
judgment on the pleadings is reviewed de novo.
Fed.Rules Civ.Proc.Rule 12(c), 28 U.S.C.A.
18 Cases that cite this headnote
[6] Federal Civil Procedure Judgment on the
Pleadings
Federal Civil Procedure Determination of
Motion
Federal Civil Procedure Matters deemed
admitted
When deciding a motion for judgment on
the pleadings, the same standard applicable to
dismissals pursuant to a motion to dismiss for
failure to state a claim upon which relief can be
granted is employed; thus, all factual allegations
in the complaint are accepted as true and all
reasonable inferences are drawn in the plaintiff's
favor. Fed.Rules Civ.Proc.Rule 12(b)(6), (c), 28
U.S.C.A.
741 Cases that cite this headnote
[7] Contracts Agreement to make contract in
future; negotiations in general
Under New York law, parties who enter into
binding preliminary agreements accept a mutual
commitment to negotiate together in good faith
in an effort to reach final agreement; these
agreements do not commit the parties to reach
their ultimate contractual objective, but, instead,
they create an obligation to negotiate the open
issues in good faith in an attempt to reach the
objective within the agreed framework.
17 Cases that cite this headnote
More cases on this issue
[8] Contracts Agreement to make contract in
future; negotiations in general
Under New York law, parties who enter
into binding preliminary agreements may not
renounce the deal, abandon the negotiations, or
insist on conditions that do not conform to the
preliminary agreement.
16 Cases that cite this headnote
More cases on this issue
[9] Contracts Agreement to make contract in
future; negotiations in general
In effect, an agreement to agree under New York
law buys a party an assurance that the transaction
will falter only over a genuine disagreement, thus
allowing a party strapped for time or money to
go ahead with arrangements with a sufficient
degree of confidence in the outcome; the parties
may abandon the transaction as long as they
have made a good faith effort to close the deal
and have not insisted on conditions that do not
conform to the preliminary writing.
11 Cases that cite this headnote
More cases on this issue
[10] Contracts Sufficiency of allegations to
show breach
Federal Civil Procedure Contract cases in
general
To state a claim for breach of contract for failure
to negotiate in good faith, a plaintiff must allege
the specific instances or acts that amounted to the
breach; generalized allegations and grievances
will not suffice to survive a motion for judgment
on the pleadings. Fed.Rules Civ.Proc.Rule 12(c),
28 U.S.C.A.
36 Cases that cite this headnote
[11] Damages Breach of contract
Damages Breach of contract
On a claim under New York law for breach of
contract for failure to negotiate in good faith,
out-of-pocket costs incurred in the course of
good faith partial performance are appropriate,
although lost profits are not available where no
agreement is reached.
49 Cases that cite this headnote
[12] Copyrights and Intellectual
Property Performance and breach
Manager of design services and intellectual
property rights stated claim that retailer had
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
breached duty under New York law to negotiate
licensing agreement in good faith on allegations
that retailer did not participate in negotiations
for nine months and never provided single
substantive comment with respect to draft license
at any time in particular year.
More cases on this issue
[13] Copyrights and Intellectual
Property Performance and breach
Manager of design services and intellectual
property rights stated claim that retailer had
breached duty under New York law to
negotiate licensing agreement in good faith
on allegations that retailer had made repeated
material representations that it would negotiate
terms of license agreement in good faith, which it
subsequently learned were false, such as retailer's
assurances to manager that its legal team already
was working on licensing agreement template,
and its multiple promises to get back to manager,
which either never happened or only occurred
after substantial delay.
2 Cases that cite this headnote
More cases on this issue
[14] Copyrights and Intellectual
Property Performance and breach in
general
Manager of design services and intellectual
property rights stated claim that retailer had
breached duty under New York law to negotiate
licensing agreement in good faith on allegations
that retailer had proposed terms it knew to be in
bad faith and economically unfair to manager,
believing they would be rejected, and then
reneged when manager did accept.
More cases on this issue
[15] Copyrights and Intellectual
Property Performance and breach
Design service provider stated wrongful
termination claim under New York law on
allegations that retailer's termination letter
provided only notice of termination, effective
immediately, although agreement had required
notice of material breach, 30 days' opportunity to
cure, failure to cure material breach, and notice
of termination.
4 Cases that cite this headnote
More cases on this issue
[16] Federal Courts Altering, amending,
modifying, or vacating judgment or order;
proceedings after judgment
Motions for reconsideration are generally
reviewed under an abuse of discretion standard.
7 Cases that cite this headnote
[17] Federal Courts Pleading
A denial of leave to amend that is based on a legal
interpretation, such as for futility, is reviewed de
novo. Fed.Rules Civ.Proc.Rule 15, 28 U.S.C.A.
3 Cases that cite this headnote
Attorneys and Law Firms
*421 Virginia R. Richard (Lori J. Van Auken on the
briefs), Winston & Strawn LLP, New York, NY, for Plaintiff–
Appellant.
Bruce P. Keller (Shannon R. Selden on the brief), Debevoise
& Plimpton LLP, New York, NY, for Defendant–Appellee.
Before: DENNIS JACOBS, Chief Judge, PETER W. HALL,
Circuit Judge, SHIRA A. SCHEINDLIN, * District Judge.
Opinion
SHIRA A. SCHEINDLIN, District Court Judge:
Plaintiff–Appellant L–7 Designs (“L–7”) appeals from a
judgment on the pleadings of the United States District
Court for the Southern District of New York (Denny Chin,
Judge ), entered on January 21, 2010, dismissing five counts
asserted in L–7's Complaint (the “Complaint” or “Compl.”),
each arising out of a Creative Services Agreement (the
“Agreement”) entered into between L–7 and Defendant–
Appellee Old Navy (“Old Navy”) in September of 2007. We
conclude that the District Court erred in dismissing Count
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III against Old Navy for failure to negotiate in good faith an
alleged agreement to develop and launch a TODD OLDHAM
branded line of merchandise (the “Branded Line”) to be sold
exclusively in Old Navy stores. The District Court also erred
in dismissing Count I for declaratory judgment that Old Navy
wrongfully terminated the parties' Agreement under which L–
7's principal, Todd Oldham, was to provide design services
to Old Navy. Accordingly, we affirm in part and vacate in
part the District Court's judgment, and we remand for further
proceedings; in so doing we reverse in part the order of the
District Court that dismissed the Complaint and reinstate the
Complaint to the extent provided in this Opinion.
BACKGROUND 1
I. Materials Properly Considered on a
Motion for Judgment on the Pleadings
One of the critical issues in this appeal is whether the District
Court properly considered not only the Complaint, Old Navy's
Answer, and the written documents attached to the Complaint
in deciding Old Navy's Rule 12(c) motion, but also five
email exhibits to Old Navy's Counterclaims—exhibits that
were “attached” to Old Navy's Answer only by virtue of the
*422 fact that its Answer and Counterclaims were filed in
the same document. L–7 argues the District Court improperly
considered the exhibits without converting Old Navy's 12(c)
motion to one for summary judgment, as required by Rule
12(d).
[1] [2] [3] [4] On a 12(c) motion, the court considers
“the complaint, the answer, any written documents attached
to them, and any matter of which the court can take judicial
notice for the factual background of the case.” Roberts v.
Babkiewicz, 582 F.3d 418, 419 (2d Cir.2009). “A complaint
is [also] deemed to include any written instrument attached
to it as an exhibit, materials incorporated in it by reference,
and documents that, although not incorporated by reference,
are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57,
67 (2d Cir.2004) (citations omitted) (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)). There
is no question that the email exhibits were “attached” to
Old Navy's Answer, even if they were only “part of” Old
Navy's Counterclaims. See Fed.R.Civ.P. 10(c) (“a copy of a
written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes”) (emphasis added). Moreover,
these emails—of which L–7 had notice well before Old Navy
attached them to its Answer (because L–7 sent or received
them)—were “integral” to the negotiation exchange that L–
7 identified as the basis for its Complaint. See Sira, 380
F.3d at 67 (document not expressly cited in complaint was
“incorporated into the pleading because [it] was integral to
[plaintiff's] ability to pursue” his cause of action); Chambers,
282 F.3d at 153 (document “integral” to complaint where
complaint “relie[d] heavily upon its terms and effect”)
(quotation marks omitted); Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir.1991) (necessity of translating
motion into one under Rule 56 “largely dissipated” where
plaintiff had “actual notice” of information in documents and
“relied upon [them] in framing the complaint”). “Plaintiffs'
failure to include matters of which as pleaders they had
notice and which were integral to their claim—and that
they apparently most wanted to avoid—may not serve as a
means of forestalling the district court's decision on [a 12(b)
(6) ] motion.” Cortec, 949 F.2d at 44. For these reasons,
in reviewing de novo Old Navy's motion for judgment on
the pleadings, we draw all facts—which we assume to be
true unless contradicted by more specific allegations or
documentary evidence—from the Complaint and from the
exhibits attached thereto, 2 and we also consider the emails
attached to Old Navy's Counterclaims. See Blue Tree Hotels
Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide,
Inc., 369 F.3d 212, 222 (2d Cir.2004) (discrediting allegation
“belied” by letters attached to the complaint); Hirsch v. Arthur
Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995) (“General,
conclusory allegations need not be credited ... when they are
belied by more specific allegations of the complaint.”). The
facts thus derived, viewed in the light most favorable to L–
7, are as follows.
II. The Parties
L–7's principal, Todd Oldham, is a world famous artist,
fashion and graphic designer, photographer, writer, and
television personality. He formed L–7 in 1989 to manage
his design services and intellectual property rights, including
eight U.S. federal registrations for the mark TODD
OLDHAM. “[A] luminary in the fashion and design industry
for over twenty years,” Oldham is “considered one of
the most important designers of fashion and *423 home
furnishings working today” and “the singular talent behind
the internationally famous TODD OLDHAM brand.” Compl.
¶ 8. For more than a decade, Oldham and L–7 have
collaborated on a variety of TODD OLDHAM branded
merchandise. 3
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Old Navy, a subsidiary of Gap Inc., operates a chain of retail
apparel stores, with more than a thousand stores throughout
the United States and Canada. For at least the last five years,
Old Navy has been suffering declining sales. One of its
strategies for increasing sales has been to increase its appeal
to younger consumers.
III. The Agreement
In the spring of 2007, L–7 approached Old Navy to discuss
the possibility of entering into a relationship with L–7, and
Old Navy, “enthusiastic about this possibility,” ultimately
requested that Oldham become the company's new Design
Creative Director. Id. ¶ 26. In order to induce Oldham to
join Old Navy's design team, Old Navy proposed to introduce
a TODD OLDHAM branded line of clothing, and to pay
royalties to L–7 in the form of five percent of the Branded
Line's sales. Faced with continuing declining sales, Old Navy
pushed Oldham to enter into an agreement quickly so that it
could publicly announce both Oldham's appointment as Old
Navy's Design Creative Director and also the launching of the
Branded Line.
On September 21, 2007, the parties entered into the
Agreement, 4 under which L–7 was to perform certain
“Services” and provide certain “Deliverables,” as set forth in
a “Scope of Work” (the “SOW”) attached to the Agreement.
Agreement § 1. Under the SOW, Oldham would provide
design services for Old Navy for three years in exchange for
an annual “fee” of $2 million; in addition, Oldham would
receive a guaranteed bonus of $0.5 million in year one and,
in years two and three, 1.25 percent of the year's incremental
sales (not to exceed $6 million). SOW §§ 1, 2. Section
5 provided that during the term of the Agreement, “either
party may terminate this Agreement, effective immediately
upon notice thereof, in the event of a material breach of this
Agreement that remains uncured after thirty (30) days written
notice of the breach to the other party.”
IV. The Licensing Agreement
Section 5 of the SOW, entitled “Todd Oldham Branded Line,”
provided as follows:
a. In September 2007, the parties will announce publicly
that Todd Oldham/[L–7] shall be serving as Design
Creative Director of Old Navy and that it is the intent of the
parties to develop and launch a line of products that will
bear TODD OLDHAM Marks to be sold exclusively at Old
Navy stores at a future time.
b. [L–7] and Old Navy acknowledge and agree that the
specific terms and conditions related to this proposed
line of products bearing TODD OLDHAM Marks are
to be negotiated and agreed upon by the parties in a
separate agreement. The parties plan to enter into a separate
agreement related to these products by October 1, 2008.
c. The parties agree that this separate agreement will
contain at least the following: (1) royalty fees paid to [L–
7] of 5% of Old Navy's retail sales for this particular line
only (not all Old Navy products) and (2) agreement and
final *424 approval by both Old Navy and [L–7] as to the
collections and products to be sold by Old Navy.
On September 21, 2007, Old Navy announced via a press
release that it intended to launch the Branded Line. On
October 3, 2007, Monika Fahlbusch (the Old Navy executive
assigned to the Branded Line) emailed Vital Vayness (L–7's
representative) to “recommend we plan to begin [discussion
on the license agreement for the Branded Line] in our new
fiscal year—say in April? We have until October so there is no
rush....” Ex. 19. Thereafter, L–7 and Oldham performed their
obligations under the Agreement, and Old Navy executives
publicly and privately praised Oldham's performance as
Design Creative Director.
V. April–October 2008 Negotiations
On April 2, 2008, L–7 (Vayness) “initiated negotiations to
finalize” the licensing agreement for the Branded Line by
emailing Fahlbusch (Old Navy) L–7's standard form license
agreement and a term sheet that outlined a three-year initial
term and annual guaranteed minimum royalties (the “April
Proposal”). Compl. ¶ 44. The email suggested that Old Navy
“formulate [its] initial thoughts, needs and objectives” and
then “present to [Oldham] in [M]ay” while Fahlbusch (Old
Navy), Vayness (L–7), and Old Navy's attorney “begin work
on the language of the contract.” Ex. 17.
Commencing in May 2008, Old Navy made “material
representations” that were “false, as [L–7] subsequently
learned.” Compl. ¶ 47; accord Ex. 19. For example in
May of 2008, Fahlbusch (Old Navy) assured Vayness (L–7)
that she was “already working with our legal team on the
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licensing agreement template.” Ex. 19. But throughout the
late spring and summer of 2008, L–7 repeatedly followed
up with Fahlbusch and Old Navy's Executive Vice President,
Douglas Howe, seeking feedback on the April Proposal and
on a “redirection” Old Navy was taking in its “approach,”
with little or no followup. Exs. 19–20. During one meeting in
June of 2008 at which Oldham (L–7), Howe (Old Navy), and
Tom Wyatt (another Old Navy executive) were present, Old
Navy proposed postponing discussions of the Branded Line.
Nevertheless, on June 12, 2008, Vayness (L–7) indicated to
Fahlbusch (Old Navy) that “things are proceeding in the right
direction with the branded line.” Ex. 19.
In a late July 2008 email, Fahlbusch (Old Navy) suggested
that the reason for Old Navy's delay in getting back to L–
7 was that “next steps” on the Branded Line license would
be “impacted by who is named President.” Id. Vayness (L–
7) responded the same day, reminding Fahlbusch (Old Navy)
that “we have a provision in the contract calling for the license
agreement to be entered into by October 1st.” Id.
On September 2, 2008, Vayness (L–7) emailed Fahlbusch
(Old Navy) seeking Old Navy's feedback on the terms set
forth in L–7's April 2008 email, indicating that L–7 was
“ready to discuss [11 points] as early as possible.” Ex. 20. L–
7 followed up with emails and telephone calls to Fahlbusch
(Old Navy) on September 7, 9, and 10, 2008. On September
10, 2008, Fahlbusch (Old Navy) recommended that Oldham
start working “directly” with Howe “as it seems we all have
a different understanding of the numerous conversations in
recent months related to the branded line.” Id.
On September 30, 2008, Wyatt (Old Navy) advised L–7 in
a telephone call for the first time that Old Navy wished to
postpone the signing of a license for the Branded Line “
‘indefinitely.’ ” Compl. *425 ¶ 52 (quoting Wyatt). 5 In
response, L–7 stated that it expected Old Navy to provide
it with definitive dates to restart negotiations, enter into
the licensing agreement, and launch the Branded Line, and
compensation for the postponement of the initial October 1,
2008 signing date. Old Navy failed to provide a response
within a week as promised.
VI. Fall 2008 Notice of Breach and Demand for Damages
On October 7, 2008, L–7 advised Old Navy's in-house
counsel that Old Navy was in material breach of the
Agreement for failing to negotiate in good faith. See Ex.
23. Counsel for Old Navy responded a week later, stating
Old Navy's view that the Agreement “does not obligate Old
Navy to enter into a separate license agreement for Todd
Oldham branded products” and that although Old Navy did
not “foreclose the possibility of engaging in discussions about
Todd Oldham branded products in the future if business
conditions permit, [Old Navy is] not currently in a position
to make a commitment to any such future discussions.” Ex.
24. The next day, Wyatt, then President of Old Navy, told
Oldham that Old Navy was “ ‘very, very sorry’ but because
of economic conditions, Old Navy could not follow through
with the promised license for a TODD OLDHAM branded
line of apparel to be carried exclusively in Old Navy stores.”
Compl. ¶ 55.
After waiting thirty days from Old Navy's receipt of L–
7's October 7th notice of breach, outside counsel for L–
7 sent a letter to Old Navy requesting that Old Navy
remedy the damage to L–7 caused by Old Navy's breach
by (1) compensating L–7 for lost royalties and reputational
damages (estimated at $75 million) and (2) paying Oldham
his expected fees for the second and third years of the
Agreement ($4 million).
VII. Old Navy's December 2008 Response
On December 3, 2008, counsel for Old Navy responded,
denying that Old Navy was obligated to enter into a license
agreement or had failed to negotiate in good faith. Counsel for
Old Navy explained that, in the course of their negotiations,
differences emerged in the parties'
positions, including on such essential
issues as the types of products to be
included in the line, how many stores
would be included in a launch, the
staffing necessary to support such a
line, and, most importantly, the timing
of any such launch.
Ex. 26. According to Old Navy's counsel, “business
circumstances made an extensive launch in the immediate
near term unfeasible.” Id. Thereafter, from December 15,
2008 to February 6, 2009, Old Navy engaged in “sham
negotiations,” falsely representing that it fully intended to
enter into a license agreement. Compl. ¶ 124.
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VIII. The Old Navy January 2009 Proposal
The parties met once in December 2008 and several times
in January 2009 to “work out the details of the license
agreement,” a further draft of which L–7 supplied to Old
Navy on December 15, 2008. Compl. ¶ 60. On January 8,
2009, one hour before a scheduled conference call, Old Navy
proposed a launch at 100 Old Navy stores (“As you know,
our history of presenting third party-branded product in our
stores is relatively short ...”); a one-year *426 commitment
beginning in the spring of 2010; no additional personnel
resources; and a one-year projected royalty of $1.5 million
(“... our previous discussions have never contemplated any
royalty minimum guarantees, and, as a general rule, our
company has not and will not agree to minimum guarantees.
This has been consistent in all of our recent agreements.”) (the
“January Proposal”). Ex. 27.
IX. January 2009 Discussions 6
Oldham responded immediately by email to Old Navy's
January Proposal:
[Your projections] seem
EXTREMELY uncommitted to me.
This feels like an effort to absolve old
navy's contractual responsibilities and
not a commitment to build a new brand
that was made to me when i joined and
what you reiterated to me last month.
100 stores will not work. the 1 million
in launch dollars will not be effective.
the one year commitment is too brief as
there are so many hiccups in launching
a brand.... i hope that we can get this
resolved but we are very far away from
a reasonable plan. the volume of work
necessary to bring a project of this
scale to bloom is at great odds with
your financial projections.
Counterclaims Ex. A. In the discussions that followed, L–7
asked for a minimum guarantee of $37.5 million for a three-
year term and then reduced the request to $20 million for a
two-year term. On January 16, 2009, L–7 inquired of Old
Navy whether it had “made any changes to any of its positions
as stated [in the January Proposal].” Id. Ex. E. Old Navy
responded the next day:
To date, we have not been
presented with any comprehensive
counteroffer and instead there has
been a [sic] insistence on large
guaranteed minimum payments that
we have explained are unacceptable
and inconsistent with our business
plans and practices....
Id. Ex. D. Additional emails were exchanged, and on January
29, 2009, the parties held a conference call, during which
they agreed to talk again after speaking with their respective
“principals.” Ex. 28. The same day, L–7 emailed Old Navy
a “revised proposal” reflecting Oldham's input on the points
discussed during the call. Id.
X. February 2009 Communications
Four days later, on February 2, 2009, Old Navy responded
to L–7's January 29th email, advising L–7 that “despite
our best efforts to negotiate an agreement that would be
reasonable and mutually acceptable, we have not reached and
will not be able to reach common ground on key business
terms,” reiterating that minimum guaranteed payments were
“inconsistent with our business plans and practices.” Id.
Vayness (L–7) responded the same day, explaining his
“surprise” at Old Navy's email given that the January 29,
2009 call was “completely amicable, polite, professional, and
[ ] friendly” and that none of the points discussed during
that call “was left off as a deal breaker.” Id. The email
went on to list items as to which L–7 contended there was
agreement (“number of stores,” “products,” “timeline and
term,” “marketing,” “royalty rate,” and “territory”); items
that it was “now prepared” to accept, including no minimum
guaranteed royalties; two points that needed clarification
(“personnel” and “development budget”); and one issue “to
be agreed to,” namely ownership of “designs.” *427 7 Id.
On February 6, 2009, Old Navy advised L–7 that material
“open issues” remained, and that, in light of the nature of the
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negotiations, Old Navy did not believe that a “collaborative
partnership” could be established. Compl. ¶ 62.
XI. Old Navy's Termination of the Agreement
On February 18, 2009, L–7 commenced this lawsuit against
Old Navy, filing under seal a complaint alleging breach
of contract, breach of the implied duty of good faith and
fair dealing, and fraud. Two days later, on February 20,
2009, counsel for Old Navy sent L–7 a letter terminating the
Agreement (“Termination Letter”) on the grounds that L–7
had
materially breached the [Agreement]
by filing a lawsuit against Old Navy,
by failing to provide meaningful input
on design processes and procedures,
by failing to participate meaningfully
in meetings with the Old Navy creative
team and by otherwise failing to
perform its obligations under the
[Agreement].
Ex. 29. Old Navy did not provide L–7 with an opportunity
to cure its alleged breaches. Prior to the February 20th
Termination Letter, Old Navy had voiced no complaints about
Oldham's performance under the Agreement; instead, he was
continuously praised.
PROCEDURAL HISTORY
L–7 filed its first complaint in the District Court on February
18, 2009, under seal. On April 17, 2009, L–7 filed under seal
the amended Complaint at issue in this appeal, adding claims
for (I) wrongful termination and (II) trade disparagement to
its claims for (III) breach of contract, (IV) breach of the
implied covenant of good faith and fair dealing, and (V) fraud.
Old Navy filed its Answer and Counterclaims on May 1,
2009, and L–7 filed a Reply on May 8, 2009. Old Navy's
motion for judgment on the pleadings was fully submitted on
August 21, 2009. On September 9, 2009, the District Court
stayed depositions and ruled that “a new discovery cut-off
will be set after the pending [Rule 12(c) ] motion is decided.”
Special Appendix to L–7 Appellate Brief (“L–7 App. Brief”)
at 66. In an opinion dated January 19, 2010, it granted Old
Navy's motion, dismissing L–7's Complaint with prejudice. It
issued a slightly amended opinion on January 21, 2010. L–7
moved to amend the judgment and replead two weeks later.
The District Court denied L–7's motion in an opinion dated
February 16, 2010.
I. Motion for Judgment on the Pleadings
A. Count III: Breach of Contract for
Failure to Negotiate in Good Faith
The District Court first dismissed L–7's claim for breach of
contract for Old Navy's failure to enter into the licensing
agreement. 8 It nonetheless concluded that Section 5 of the
SOW “undoubtedly did create [an] obligation on the part of
the parties to negotiate a license agreement in good faith,”
L–7 Designs, Inc. v. Old Navy, LLC, No. 09 Civ. 1432, 2010
WL 157494, at *8 (S.D.N.Y. Jan. 19, 2010). However, it
found that the “record” of the “detailed documentation of
the negotiations between *428 Old Navy and L–7 over the
anticipated license agreement,” combined with the detailed
allegations of the Complaint, “show, unequivocally, that L–
7's claim that Old Navy failed to negotiate in good faith is
not plausible.” Id. First, based on the fact that “the parties
exchanged numerous telephone calls and emails and, as L–
7 acknowledged, progress in the negotiations was made,” it
concluded that Old Navy “negotiated for some ten months.”
Id. Although “the parties seemed to reach an impasse and
negotiations broke down” in the fall of 2008, “the parties
resumed talks and met several times in December 2008
and January 2009” before L–7 rejected Old Navy's January
Proposal. Id.
Second, the District Court concluded that because “L–7 was
making extraordinarily high demands,” it was “not surprising
that Old Navy resisted these demands,” noting that at the
agreed-upon five percent royalty rate “some $200 million in
sales of Todd Oldham branded products would had to have
been generated in one year to generate” even the reduced
royalty request proposed by L–7 ($20 million over two years).
Id.
Third, L–7's only non-conclusory, specific “allegation” was
“its assertion that Old Navy decided to ‘renege’ on its own
January 8, 2009, proposal, and that this decision ‘is itself
damning evidence of [Old Navy's] bad faith.’ ” Id. at *9
(quoting L–7's Memorandum of Law in Opposition to Old
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Navy's Motion for Judgment on the Pleadings (“L–7 12(c)
Opp.”) at 23). But, the District Court concluded, the emails
attached to Old Navy's Counterclaims rendered this assertion
“not plausible” because they showed that “L–7's purported
acceptance of the January 8th proposal on February 2, 2009,
clearly was not [ ] an acceptance of the proposal ‘in its
entirety.’ ” Id. (quoting Compl. ¶ 61).
Fourth, because “insisting on ‘terms to the point of
impasse’ [is] not sufficient to show bad faith,” L–7 could
not argue that “Old Navy's refusal to agree to a minimum
guarantee [was] evidence of bad faith.” Id. (citing Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 96 F.3d 275, 279 (7th
Cir.1996)). 9
B. Count I: Wrongful Termination
The District Court also dismissed Count I—a request for
declaratory judgment (1) that Old Navy failed to provide
(i) written notice of its claims of breach or (ii) 30
days' opportunity to cure any claimed breach; (2) that
the Termination Letter did not effect a termination of the
Agreement; and (3) that Old Navy wrongfully terminated
the Agreement in retaliation for L–7's lawsuit against it. The
District Court offered three reasons why “the claim fails
as a matter of law,” 2010 WL 157494, at *9. First, “Old
Navy did provide written notice of termination.” Id. at *10
(citing the Termination Letter). Second, while acknowledging
Old Navy's admission that it failed to provide a 30–day
cure period, the District Court found that it was relieved
of this obligation because, for two reasons, notice of cure
would have been futile. Initially, the District Court reasoned,
“[i]t is difficult to imagine that Oldham could perform [his]
duties after he sued Old Navy.” Id. (citing Allbrand Discount
Liquors, Inc. v. Times Square Stores Corp., 60 A.D.2d 568,
399 N.Y.S.2d 700, 701 (2d Dep't 1977), for the proposition
that “when one party ‘will not live up to the contract, the
aggrieved party is *429 relieved from the performance of
futile acts' ”). In particular,
Oldham could not very well continue to help Old Navy
creatively, including with respect to public relations
matters, while pursuing a lawsuit against Old Navy.
( [Agreement] § 1). Among other things, Oldham was
supposed to, under the [Agreement], “[m]otivate, inspire,
coach, and share vision, insight and passion with Old
Navy's creative team,” and he was supposed to “[p]rovide
input” to Old Navy's president and leadership team. (Id.).
Id. Notice of breach would also have been futile, the
District Court reasoned, because “[e]ven a withdrawal of the
complaint—and it is highly unlikely that L–7 would have
withdrawn the complaint if Old Navy had sent L–7 a notice to
cure—would not have undone the harm caused by the public
filing of a lawsuit against Old Navy.” Id. Third, Count I failed
because “even assuming the failure to give a cure period was
a breach, in the context here it surely was not a material one.”
Id.
After then dismissing Counts II and V of the Complaint for
trade disparagement and fraud, the District Court granted Old
Navy's motion for judgment on the pleadings and dismissed
L–7's claims with prejudice. Judgment was entered in favor
of Old Navy on January 21, 2010.
II. Motion to Amend and Replead
L–7 filed a motion to amend the judgment and replead
on February 5, 2010 “based on information contained in
documents produced by Old Navy following the close of
briefing” on the Rule 12(c) motion. L–7 Motion to Amend and
Replead at 1. The District Court denied the motion, reasoning
that L–7 had already had “two bites at the apple, as it has
already filed two complaints”; “the request is untimely, as L–
7 has had the documents for months” yet “never indicated a
desire to amend its amended complaint prior to the granting
of the motion for judgment on the pleadings”; and, because
“the additional documents L–7 now seeks to rely on” would
not change the District Court's conclusions, “the proposed
amendment therefore would be futile.” L–7 Designs, Inc. v.
Old Navy, LLC, No. 09 Civ. 1432, 2010 WL 532160, at *2
(S.D.N.Y. Feb. 16, 2010). L–7 filed a timely notice of appeal
on February 17, 2010.
DISCUSSION
I. Motion for Judgment on the Pleadings
A. Standard of Review
[5] [6] We review de novo a district court's decision to
grant a motion for judgment on the pleadings pursuant to
Rule 12(c). See Hayden v. Paterson, 594 F.3d 150, 160 (2d
Cir.2010). In deciding a Rule 12(c) motion, we “employ[ ] the
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same ... standard applicable to dismissals pursuant to [Rule]
12(b)(6). Thus, we will accept all factual allegations in the
[C]omplaint as true and draw all reasonable inferences in
[Plaintiff's] favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d
Cir.2009) (quotation marks and citation omitted). 10
*430 In Ashcroft v. Iqbal, the Supreme Court set forth
a “two-pronged approach” to evaluate the sufficiency of a
complaint. 129 S.Ct. at 1949–50. “First, although a court
must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions,
and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quotation
marks and alterations omitted). “Second, only a complaint
that states a plausible claim for relief survives a motion
to dismiss, and 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.” Id. (quotation marks and alteration
omitted). “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, 129 S.Ct. at 1949
(quotation marks omitted). Plausibility thus depends on a host
of considerations: the full factual picture presented by the
complaint, the particular cause of action and its elements, and
the existence of alternative explanations so obvious that they
render plaintiff's inferences unreasonable. See id. at 1947–52.
B. Counts II, IV, and V
We affirm the District Court's dismissal of the trade
disparagement and common law fraud claims substantially
for the reasons articulated by the District Court. We also
affirm dismissal of the claim for breach of the implied duty
of good faith and fair dealing, but for a different reason. See
infra note 18.
C. Count III: Breach of Contract for
Failure to Negotiate in Good Faith
1. Applicable Law
[7] [8] Under New York law parties who enter into binding
preliminary agreements, such as Section 5 of the SOW,
“accept a mutual commitment to negotiate together in good
faith in an effort to reach final agreement....” Teachers Ins.
& Annuity Ass'n of Am. v. Tribune Co., 670 F.Supp. 491, 498
(S.D.N.Y.1987). These agreements do not commit the parties
to reach their ultimate contractual objective; instead, such
agreements create an “obligation to negotiate the open issues
in good faith in an attempt to reach the ... objective within
the agreed framework.” Adjustrite Sys., Inc. v. GAB Bus.
Servs., Inc., 145 F.3d 543, 548 (2d Cir.1998) (quotation marks
omitted). This obligation bars a party from “renouncing the
deal, abandoning the negotiations, or insisting on conditions
that do not conform to the preliminary agreement.” Tribune,
670 F.Supp. at 498.
[9] “In effect, an agreement to agree buys a party an
assurance that the transaction will falter only over a genuine
disagreement, thus allowing a party strapped for time or
money to go ahead with arrangements with a sufficient
degree of confidence in the outcome.” P.A. Bergner & Co.
v. Martinez, 823 F.Supp. 151, 156 (S.D.N.Y.1993); see also
Penguin Grp. (USA) Inc. v. Steinbeck, No. 06 CV 2438, 2009
WL 857466, at *2 (S.D.N.Y. Mar. 31, 2009) (“The linchpin
of negotiation is not that one side capitulates to the other,
but that there is a good faith, honest, articulation of interests,
positions, or understandings.”); *431 Venture Assocs. Corp.,
96 F.3d at 278 (“The parties may want assurance that their
investments in time and money and effort will not be wiped
out by the other party's foot-dragging or change of heart
or taking advantage of a vulnerable position created in the
negotiation.”). “[T]he parties may abandon the transaction as
long as they have made a good faith effort to close the deal
and have not insisted on conditions that do not conform to the
preliminary writing.” Adjustrite, 145 F.3d at 548.
[10] To state a claim for breach of contract for failure to
negotiate in good faith, a plaintiff must “allege the specific
instances or acts that amounted to the breach”; “generalized
allegations and grievances” will not suffice to survive a
motion for judgment on the pleadings. U.S. ex rel. Smith v.
New York Presbyterian Hosp., No. 06 Civ. 4056, 2007 WL
2142312, at *16 (S.D.N.Y. July 18, 2007); accord Prospect St.
Ventures I, LLC v. Eclipsys Solutions Corp., 23 A.D.3d 213,
804 N.Y.S.2d 301, 302 (1st Dep't 2005).
[11] Although lost profits are not available where no
agreement is reached, see Goodstein Constr. Corp. v. City of
New York, 80 N.Y.2d 366, 374, 590 N.Y.S.2d 425, 604 N.E.2d
1356 (1992), out-of-pocket costs incurred in the course of
good faith partial performance are appropriate, see Arcadian
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Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 74 n. 2 (2d
Cir.1989).
2. Application
[12] L–7 stated a plausible claim that Old Navy breached
its obligation to negotiate the license agreement in good
faith. The three bases alleged for this claim were that Old
Navy (1) “failed to participate in negotiations from April
2008 to December 15, 2008 and never provided a single
substantive comment with respect to the draft license at any
time in 2008,” L–7 12(c) Opp. at 5; 11 (2) made “repeated
material representations that it would negotiate the terms of
the license agreement in good faith,” which L–7 subsequently
learned were “false,” Compl. ¶ 47; and (3) “proposed terms
it knew to be in bad faith and economically unfair to [L–
7], believing they would be rejected, and then reneged when
[L–7] did accept,” L–7 12(c) Opp. at 23. These are legally
cognizable theories for breach of the duty to negotiate in
good faith. Moreover, drawing all reasonable inferences in L–
7's favor, the non-conclusory allegations in L–7's Complaint,
combined with the exhibits attached thereto, render each one
plausible. 12
First, L–7 plausibly alleged that Old Navy—who in June
of 2008 proposed postponing negotiations—was engaged
in dilatory tactics from April 2008 until December 15,
2008, during which time it failed to provide any substantive
comments on L–7's draft license agreement. The emails
exchanged between Vayness (L–7) and Fahlbusch (Old Navy)
from April 2008 until September 10, 2008—when Fahlbusch
finally “recommend[ed]” that Vayness and Oldham work
“directly with [Howe] in terms of the branded line,” Ex.
21—support *432 the plausible inference that Fahlbusch
was repeatedly putting L–7 off for undisclosed or pretextual
reasons (discussed further below). The mere exchange of
telephone calls and emails—most of which were initiated by
L–7 (according to L–7's exhibits) and some of which Old
Navy did not respond to (according to L–7's uncontradicted
allegations)—does not make the inference that “Old Navy
negotiated for some ten months,” 2010 WL 157494, at *8,
so obvious that L–7's opposing inference of dilatory tactics is
rendered implausible. 13
Similarly, whether or not L–7 agreed to Old Navy's alleged
request to postpone discussions in June of 2008—a question
of fact left open by the pleadings 14 —that would not defeat
L–7's allegations that Old Navy was engaged in dilatory
tactics. “[A]ssuming the pleaded facts to be true and read[ing
those facts] in [L–7's] favor,” Sepúlveda–Villarini v. Dep't
of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir.2010)
(Souter, J.), it suggests the converse—that L–7, eager to
execute the licensing agreement on terms as favorable to it as
possible, and trusting that its negotiating partner in good faith
believed a postponement of discussions would be mutually
advantageous, was negotiating in good faith. It is reasonable
to infer that, once L–7 became suspicious of what it believed
to be dilatory tactics on Old Navy's part, it took a firmer
stance, clarifying that while Old Navy may have “thought that
[Oldham] agreed to postpone the finalizing of an agreement,”
the “idea of postponing immediate discussions” was merely
“discussed,” and that the parties should work to ensure that
the Agreement did not “become breached,” Ex. 22.
[13] Second, L–7 plausibly alleged that, commencing in
May 2008, Old Navy made repeated material representations
that L–7 subsequently learned were false, such as Fahlbusch's
(Old Navy's) assurances to Oldham that she was already
working with Old Navy's legal team on the licensing
agreement template, or her multiple promises to get back
to L–7, which either never happened or only occurred after
substantial delay. 15 L–7's Complaint also suggests that,
instead of revealing “its true purpose, which was to avoid
entering *433 into the license agreement as required under
the [Agreement],” Compl. ¶ 121 (emphasis added), Old
Navy advanced pretextual reasons for its decision to delay
negotiations (economic conditions) and, ultimately, to cut
off negotiations (L–7's insistence on minimum guaranteed
royalties). See Teachers Ins. & Annuity Assoc. of Am. v. Butler,
626 F.Supp. 1229, 1233–34 (S.D.N.Y.1986) (upholding a
finding of bad faith, after a six-day non-jury trial, where
evidence suggested that defendant “deliberately intended” not
to close on an agreement that was no longer “economically
favorable” to it due to a decline in interest rates, “seiz[ing]
on” other terms of the agreement “as a pretext for not going
forward with” it at the eleventh hour). That Old Navy's “true
purpose” was to avoid negotiating at all can be inferred
from the fact that Old Navy informed L–7 (1) that it wished
to postpone the signing of a license indefinitely, (2) that
it could not make a commitment to any discussions, and,
ultimately, (3) that it “could not follow through with the
promised license,” Compl. ¶ 55.
Moreover, L–7's Complaint and the exhibits attached thereto
support the inference that Old Navy's purported reasons
for withdrawing from negotiations—i.e., that minimum
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guaranteed royalties were “inconsistent with [Old Navy's]
business plans and practices,” Ex. 28—were pretextual. As
of December 3, 2008, minimum guaranteed royalties were
not one of the four “essential issues” on which “differences
[had] emerged in the parties' positions” according to Old
Navy, Ex. 26 (describing “the timing of [the] launch” as the
“most important [ ]” issue); and assuming the truth of L–7's
uncontradicted documentary evidence, none of the points that
had “yet to be resolved” after the January 29th conference call
—including minimum guaranteed royalties—“was left off as
a deal breaker” to L–7, Ex. 28.
[14] Third, L–7 plausibly alleged that Old Navy's January
Proposal was designed to be “economically unfair” to L–7 so
that L–7 would reject it, pointing to Old Navy's “reneging”
on its offer when L–7 ultimately signaled—after several
counteroffers—that it would accept the bulk of the January
Proposal. See L–7 12(c) Opp. at 23. While the District Court
concluded as a matter of law that L–7 did not “accept”
Old Navy's January Proposal, we are inclined to see a fact
question as to whether L–7 plausibly alleged that Old Navy's
January Proposal was designed to elicit L–7's rejection. See
Venture Assocs., 96 F.3d at 280 (business owner would be
acting in bad faith if its purpose in demanding more than
prospective buyer would pay “was to induce [prospective
buyer] to back out of the deal”). Whether or not L–7 “rejected
key terms of Old Navy's” January Proposal or “made a
series of counter-demands” before attempting to resurrect it,
2010 WL 157494, at * 9, 16 the well-pled fact remains that,
when L–7 finally acquiesced to Old Navy's insistence on no
minimum guaranteed royalties and appeared willing to accept
an offer substantially on Old Navy's terms, Old Navy balked.
In light of the (1) documentary evidence that Old Navy's first
proposal for the Branded Line did not come until January of
2009, after the intervention of outside counsel; (2) allegations
that Old Navy's sluggish negotiations from December 15,
2008 to February 6, 2009 were a “sham,” Compl. ¶ 124; (3)
documentary evidence that L–7 was slowly retreating *434
from and ultimately abandoned its insistence on minimum
guaranteed royalties, a supposed sticking point for Old Navy;
and (4) allegations that, under new management and in a
deteriorating retail environment, Old Navy had decided it did
not want to close any deal with Oldham, the Complaint raised
the plausible inference that Old Navy's January Proposal was
designed to elicit L–7's rejection. For all of these reasons, L–
7 stated a claim for breach of contract for failure to negotiate
in good faith. 17
D. Count I: Wrongful Termination
[15] L–7 stated a claim for declaratory judgment for all three
prongs of Count I. First, L–7 stated a claim for declaratory
judgment that Old Navy failed to comply with the notice and
cure provisions of the Agreement. Before either party could
terminate the Agreement, section 5 required (1) notice of a
material breach, (2) 30 days' opportunity to cure, (3) failure
to cure the material breach, and (4) notice of termination. See
Agreement § 5. But Old Navy's Termination Letter provided
only notice of termination—effective immediately—without
providing L–7 with notice of its alleged breaches and 30 days'
opportunity to cure. Old Navy conceded as much in its motion
for judgment on the pleadings. See Old Navy's Memorandum
of Law in Support of Motion for Judgment on the Pleadings
at 23. Therefore, this claim should have survived.
Second, for the same reasons, L–7's claim for declaratory
judgment that the Termination letter did not effect a
termination of the Agreement should have survived.
Third, L–7 stated a claim for declaratory judgment that
Old Navy wrongfully terminated the Agreement. Old Navy
notified L–7 that it had “materially breached the [Agreement]
by [ (1) ] filing a lawsuit against Old Navy” and (2) by
failing to satisfy certain unspecified performance obligations.
Ex. 29. “[B]ringing suit to determine the meaning of an
agreement is not a breach of that agreement absent some
explicit contractual provision that the party will not bring
suit.” Prudential Equity Grp., LLC v. Ajamie, 538 F.Supp.2d
605, 611–12 (S.D.N.Y.2008). Moreover, as L–7 explained
to the District Court, “none of the vague, unspecified issues
mentioned in the Termination Letter had been previously
raised with L–7.... To the contrary, Mr. Oldham had been
repeatedly and widely praised by Gap and Old Navy
executives and staff throughout his Old Navy tenure.” L–
7 App. Brief at 50 (citing multiple allegations in, and
documentary evidence supporting, the Complaint). Old Navy
made no argument, and pointed to no evidence, contradicting
these well-pled facts. Therefore, accepting L–7's allegations
as true and drawing every inference in its favor, L–7 plausibly
alleged that it was in compliance with the Agreement, which
was therefore wrongfully terminated.
The District Court dismissed Count I upon its determination
that Old Navy had no duty to provide L–7 with an opportunity
to cure because such cure would have been futile. (Of
course, if the alleged grounds for L–7's termination did not
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constitute breach or material breach, then it is irrelevant
whether L–7 could have *435 “cured.”) Thus, the District
Court concluded that Oldham was unlikely to have been able
to “perform [his] duties after he sued Old Navy” and unlikely
to have withdrawn his complaint if Old Navy had sent a notice
of breach. But this appears to be speculative. That conclusion,
and the conclusion that withdrawal of the complaint could not
have “undone the harm caused by the public filing of a lawsuit
against Old Navy,” 2010 WL 157494, at *10 (emphasis
added), rests on the public nature of the litigation. However,
it is undisputed that both of L–7's complaints were filed under
seal. For all of these reasons, Count I survives Old Navy's
12(c) motion as a matter of law.
II. Motion to Amend the Judgment and Replead
[16] [17] We generally review motions for reconsideration
under an “abuse of discretion” standard. See Devlin v. Transp.
Commc'n Int'l Union, 175 F.3d 121, 131–32 (2d Cir.1999).
However, a denial of leave to amend that is based on a
legal interpretation, such as for futility, is reviewed de novo.
See Gorman v. Consol. Edison Corp., 488 F.3d 586, 592
(2d Cir.2007); Littlejohn v. Artuz, 271 F.3d 360, 362 (2d
Cir.2001).
The District Court erred in denying L–7's motion for leave
to replead its bad faith negotiation claim based on futility. 18
However, in light of our finding that Count III stated a claim
for relief, this error was harmless because that Count of L–7's
April 17, 2009 Complaint is reinstated.
CONCLUSION
For the foregoing reasons, we affirm in part and vacate in
part the District Court's judgment, and we remand for further
proceedings; in so doing we reverse in part the order of
the District Court that dismissed the Complaint and reinstate
Count I and Count III (on the three bases discussed in this
Opinion).
All Citations
647 F.3d 419
Footnotes
* The Honorable Shira A. Scheindlin, of the United States District Court for the Southern District of New York,
sitting by designation.
1 We set forth the pleadings in great detail to demonstrate the unusual amount of material the District Court
had before it on this 12(c) motion.
2 All exhibits cited herein are exhibits to the Complaint unless otherwise noted.
3 For example, Oldham entered into a licensing agreement with Mattel, Inc. for a special collector's edition of
a Barbie doll.
4 By its terms, the Agreement is governed by New York law.
5 The Complaint alleges that Howe, Old Navy's then-executive vice president, expressed this to L–7. See
Compl. ¶ 52. An October 7, 2008 email from Vayness (L–7) to Wyatt, however, indicates that Wyatt made
the statement. See Ex. 23.
6 L–7's Complaint and exhibits attached thereto largely omit reference to the parties' January 2009 discussions.
The “facts” set forth below are primarily drawn from the five email exhibits to Old Navy's Counterclaims.
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7 Citing this email, L–7 alleges in the Complaint that “[o]n February 2, 2009, L–7 ... accepted Old Navy's
January 8, 2009 proposal in its entirety.” Compl. ¶ 61. As the text of the email makes clear, however, this
was not quite so.
8 We affirm this portion of the District Court's dismissal of Count III.
9 The District Court then concluded that, because Count IV (breach of the implied duty of good faith and fair
dealing) was “essentially identical” to Count III “as both are based on the allegation that Old Navy failed to
negotiate a license agreement in good faith,” Count IV failed to state a claim “[f] or the [same] reasons.” 2010
WL 157494, at *9.
10 We note that, as plaintiffs carefully heed the admonition to support “legal conclusions” with factual allegations
—lest they be deemed “conclusory” and therefore denied a presumption of truthfulness, Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)—trial judges, and appellate judges who review
their determinations, are constantly faced with the task of evaluating competing inferences to be drawn from
those facts. In this sense, Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 586, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007), have rendered even more important (and more difficult) both trial judges' adherence to
the most fundamental pleading principles—namely, accepting as true all factual allegations and drawing all
reasonable inferences from those facts in plaintiffs' favor—and appellate judges' subsequent de novo review
of the decisions of the district courts.
11 See also L–7 12(c) Opp. at 23 (Old Navy “fail[ed] to engage [L–7] in negotiations on the license with [L–7]
for more than one year.”).
12 Citing Adjustrite, 145 F.3d at 548, Defendant argues that the District Court could find, as a matter of law
based on Old Navy's proposal of terms “consistent with” Section 5 of the SOW, that it negotiated in good
faith. However, the only term specified in the September 2007 agreement with which Old Navy's proposal
could have “conform [ed]” was the five percent royalty fee. That the January Proposal included this royalty
provision does not establish as a legal matter that it acted in good faith, especially in light of L–7's well-pled
allegations that the January negotiations were designed to induce L–7's rejection.
13 Nor is the inference that “progress in the negotiations was made,” 2010 WL 157494, at *8, so obvious from
L–7's June 12th email that “things are proceeding in the right direction with the branded line” that L–7's
reasonable, opposing inference must be discredited. Drawing all reasonable inferences in L–7's favor, and
taking into account its allegations that Old Navy was stalling, the June 12th email suggests that L–7, frustrated
with Old Navy's non-responsiveness, was politely encouraging Old Navy to entertain L–7's proposals, while
communicating its view that the parties still had a long way to go.
14 In the “Facts” section of its opinion, the District Court stated that “Old Navy wanted to postpone the launch
[of the Branded Line] and L–7 was prepared to do so, from October 1, 2008, to February 1, 2009.” 2010 WL
157494, at *2. However, in making this factual determination, it cited a draft email from Vayness (L–7) to
Howe (Old Navy) on Oldham's behalf. See Ex. 22 (entitled “2nd draft email to [Howe]”). The email Vayness
(L–7) actually sent states only his “underst[anding]” that Howe “thought that [Oldham] had agreed to postpone
the finalizing of an agreement.” Id. (emphasis added). The draft email written by Oldham's representative
about a June meeting for which he (the representative) was not present and where “the idea of postponing
the discussion ... was discussed” does not establish, at the motion for judgment on the pleadings stage, that
“L–7 was prepared” to postpone the launch of the Branded Line by four months, 2010 WL 157494, at *2.
15 A reasonable inference to draw from Old Navy's lack of communication and failure to supply counter-
proposals or comments—on a draft license agreement that Old Navy's legal team was supposedly “already
working” on as early as May 2008—is that Fahlbusch's (Old Navy's) representation was false.
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16 The District Court concluded that L–7's requests for minimum guaranteed royalties constituted “extraordinarily
high demands” to which Old Navy's resistance was “not surprising,” 2010 WL 157494, at *8. But L–7 argues,
and we are inclined to agree, that this factual determination was made without the benefit of discovery or
expert testimony.
17 Because L–7's claim for breach of the implied covenant of good faith and fair dealing (Count IV) is based on
the same facts as its claim for breach of contract, it should have been dismissed as redundant. See Harris
v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir.2002); Fasolino Foods Co. v. Banca Nazionale
del Lavoro, 961 F.2d 1052, 1056 (2d Cir.1992) (“[B]reach of [the duty of good faith and fair dealing] is merely
a breach of the underlying contract.”).
18 We affirm the District Court's denial of L–7's motion for leave to replead trade disparagement and fraud.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Nason v. Franklin County, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 759440
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bonnie NASON, as Administrator of the
Estate of Alisha Patricia Nason, Plaintiff,
v.
FRANKLIN COUNTY, Franklin County
Sheriff's Department, Glenn Schroyer, Md, Lisa
Clark, Rn, and John/Jane Does 1-3, Defendants.
9:25-cv-435 (ECC/CBF)
|
Signed March 18, 2026
Attorneys and Law Firms
Rob Rickner, Esq., for Plaintiff
Stephen M. Groudine, Esq., for Defendants
MEMORANDUM-DECISION AND ORDER
Elizabeth C. Coombe, United States District Judge
*1 Plaintiff Bonnie Nason, as administrator of the Estate of
Alisha Patricia Nason (Nason), began this action by filing a
Complaint against Defendants Franklin County (County), the
Franklin County Sheriff's Department (Sheriff's Department),
Glenn Schroyer, 1 Lisa Clark, and three unidentified
individuals on April 4, 2025. Complaint (Compl.), Dkt.
No. 1. The Complaint alleges violations of the Fourth and
Fourteenth Amendments pursuant to 42 U.S.C. § 1983 and
New York state law in connection with Nason's death while
detained in the Franklin County Jail.
Presently before the Court is a motion to dismiss the
Complaint pursuant to Federal Rules of Civil Procedure 12(b)
(1) and 12(b)(6) filed by the named defendants (Defendants).
Dkt. No. 7. The motion is fully briefed. See Dkt. Nos. 7-9, 12,
13. For the following reasons, the motion to dismiss is granted
in part and denied in part.
I. FACTS AND PROCEDURAL HISTORY 2
On December 27, 2023, Nason 3 “was first incarcerated in
the Franklin County Jail.” Compl. ¶ 16. “Nason suffered from
opiate addiction and had been receiving methadone to manage
the illness.” Id. Defendants Glenn Schroyer, MD and Lisa
Clark, RN provided medical care at the jail. Id. at ¶¶ 13, 14.
On approximately January 4, 2024, Defendant Schroyer
prescribed “Sublocade in place of methadone” for Plaintiff.
Compl. ¶ 17. “Sublocade is an opiate addiction management
medication that only requires an injection every 30 days”
and “releases buprenorphine slowly over time.” Id. at ¶ 18.
“Sublocade has a Food and Drug Administration (‘FDA’)
required Risk Evaluation and Mitigation Strategy (‘REMS’).”
Id. at ¶ 20. “A REMS is a strategy to manage known or
potential risks associated with a drug and is required by the
FDA to ensure the benefits of the drug outweigh its risks.”
Id. “Sublocade is administered monthly only by subcutaneous
injection in the abdominal region by a healthcare provider and
is only available through a restricted distribution called the
Sublocade REMS.” Id.
“Sublocade operates by creating a mass in the injection site.”
Compl. ¶ 22. “It must be injected subcutaneously into the
patient's abdomen.” Id. “There, the medication forms a solid
mass that dissolves over time.” Id. “The training to administer
Sublocade comes with multiple stark warnings.” Id. at ¶ 23.
“If it is injected intramuscularly, it dissolves faster than it
should, causing an overdose.” Id. “If injected intravenously,
or allowed to otherwise leak into the bloodstream, the
medication becomes clots that can cause numerous problems,
like pulmonary embolisms.” Id. Those “trained to administer
Sublocade learn[†] one lesson, repeatedly: Sublocade is
administered monthly only by subcutaneous injection in the
abdominal region.” Id. at ¶ 24. “An injection anywhere
else carries a serious risk of death.” Id. After “Sublocade
is administered, particularly for the first time, the patient
must be monitored carefully for signs of respiratory distress,
overdose, and other serious symptoms.” Id. at ¶ 25. “The
manufacturer encourages Narcan prescriptions along with
Sublocade, so that an overdosing patient can save themselves
in the event the medication dissolves too quickly.” Id.
*2 “On January 6, 2024, at 10:35 a.m., Nurse Clark gave ...
Nason a 300mg injection of Sublocade intramuscularly,” and
not “subcutaneously in the abdomen,” creating “an immediate
danger of death by overdose and embolisms from blood
clots.” Compl. ¶ 26. “Nason was then left without any medical
staff to monitor him, and without Narcan.” Id. at ¶ 27. “By the
evening, he started feeling sick and demonstrating obvious
signs of overdose, and he asked for medical help repeatedly,
but his requests were ignored, either because there was no
medical staff, or because the correction officers did not want
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to get” him help. Id. at ¶ 28. “The Sublocade was dissolving
too quickly, giving him 30 days of medication all at once.”
Id. at ¶ 29. “Nason died within 24 hours of receiving the
Sublocade injection.” Id. at ¶ 30. “Nason died from lethal
levels of buprenorphine, the active ingredient in Sublocade,
and from fluid collecting in his lungs.” Id. at ¶ 29.
On April 2, 2024, Plaintiff, as proposed administrator of
Nason's estate, served the County with a notice of claim
for injuries that “includ[ed] physical and emotional pain and
suffering before death, wrongful death, loss of enjoyment of
life, and economic damages.” 4 Dkt. No. 7-2 at 1, 2. 5
On December 23, 2024, the Franklin County Surrogate's
Court filed a decree granting letters of administration with
limitations to Plaintiff as administrator of Nason's estate,
“limited to the prosecution and defense of the cause of
action set forth in the petition.” Dkt. No. 7-8 at 1. The
petition included a “[l]awsuit against state of NY for
wrongful death.” 6 Id. at 3. On March 19, 2025, Plaintiff, as
“Administrator” of Nason's estate, served an “amended notice
of claim” on Franklin County. Dkt. No. 7-6 at 1.
On October 2, 2025, more than two months after Defendants
filed their motion to dismiss, the Surrogate's Court filed
an amended decree granting letters of administration to
Plaintiff as Administrator of Nason's estate, “limited to the
prosecution and defense of the cause of action set forth in the
petition.” Dkt. No. 12-2 at 1. The attached petition included
a “[l]awsuit against County of Franklin for causes of action,
inter alia, medical negligence, negligent hiring, wrongful
death, violations of the United States Constitution and New
York State Constitution, and, to the extent necessary, fil[ing]
a late notice of claim.” Dkt. No. 12-2 at 3.
II. LEGAL STANDARD
“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)
(citing Fed. R. Civ. P. 12(b)(1)). “In resolving a motion to
dismiss under Rule 12(b)(1), the district court must take
all uncontroverted facts in the complaint ... as true, and
draw all reasonable inferences in favor of the party asserting
jurisdiction.” Tandon v. Captain's Cove Marina of Bridgeport,
Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citation omitted).
A court may also “refer to evidence outside the pleadings”
and “take judicial notice of documents in the public record,
including state court filings.” Krajisnik Soccer Club, Inc. v.
Krajisnik Football Club, Inc., No. 20-cv-1140 (LEK/TWD),
2021 WL 2142924, at *2 (N.D.N.Y. May 26, 2021) (quoting
Makarova, 201 F.3d at 113 and Windward Bora, LLC v. Bank
of N.Y. Mellon, No. 19-cv-858, 2020 WL 7042761, at *2
(E.D.N.Y. Nov. 30, 2020)).
*3 To survive a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, “a complaint must
provide ‘enough facts to state a claim to relief that is plausible
on its face.’ ” Mayor & City Council of Balt. v. Citigroup,
Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Although
a complaint need not contain detailed factual allegations, it
may not rest on mere labels, conclusions, or a formulaic
recitation of the elements of the cause of action, and the
factual allegations ‘must be enough to raise a right to relief
above the speculative level.’ ” Lawtone-Bowles v. City of New
York, No. 16-cv-4240, 2017 WL 4250513, at *2 (S.D.N.Y.
Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court
must accept as true all well-pled factual allegations in the
complaint and draw all reasonable inferences in the plaintiff's
favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir.
2014) (citing ATSI Comm'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
III. DISCUSSION
The Complaint asserts two federal claims under 42 U.S.C.
§ 1983 against Defendants: (1) deprivation of due process
under the Fourteenth Amendment, Compl. at ¶¶ 34–40 and
(2) failure to intervene and conspiracy to deprive Nason of
his rights, id. at ¶¶ 41–46. The Complaint also asserts three
claims under New York law: (1) medical negligence against
all Defendants except the Sheriff's Department, id. at ¶¶ 47–
51; (2) negligent hiring, screening, retention, supervision, and
training against the County and the Sheriff's Department, id.
at ¶¶ 52–23; and (3) deprivation of due process under the New
York State Constitution against all Defendants, id. at ¶¶ 54–
57.
A. Jurisdiction
Defendants move to dismiss for lack of subject matter
jurisdiction because (1) Plaintiff was not the duly appointed
administrator of Nason's estate when she filed the Complaint,
Defendants’ Memorandum of Law (Def. Mem.) at 10–11,
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Dkt. No. 7-9, and (2) regarding the state law claims, Plaintiff
did not comply with New York's notice of claim requirements
for suits against municipalities, 7 id. at 8–10. Plaintiff
responds that (1) although “the letters of administration had
a technical defect,” that defect has been corrected, and at
most, that defect affects capacity to sue, a non-jurisdictional
requirement, Plaintiff's Memorandum of Law (Pl. Mem.) at
14–15, Dkt. No. 12, and (2) the New York State Court of
Appeals has plainly decided that next of kin may serve notices
of claim, id. at 11.
1. Notice of Claim
Defendants argue that Plaintiff did not comply with New
York County Law § 52 and New York General Municipal
Law § 50-e because she was only a proposed administrator
of Nason's estate when she first served the County with
a notice of claim, and although she was the administrator
of Nason's estate when she served the amended notice of
claim, her authority was limited to a suit against New York
State. Def. Mem. 8–10. According to Defendants, “a notice
of claim alleging wrongful death may only be filed after
‘the appointment of a representative of the decedent's estate.’
” Id. at 9 (quoting New York General Municipal Law §
50-e). Plaintiff responds that the New York State Court of
Appeals decided this issue in Winbush v. City of Mount
Vernon, 306 N.Y. 327 (1954), and next of kin may serve a
notice of claim on municipalities in wrongful death actions
before appointment as an administrator. Pl. Mem. 11–12.
Defendants reply that “[c]ourts in New York State, well after”
Winbush “have repeatedly and recently held that a proposed
administrator does not have the legal capacity to act on behalf
of an estate” for notice of claim purposes, citing decisions
from Orange and Nassau County Courts. Defendants’ Reply
Memorandum of Law (Def. Reply) at 4, Dkt. No. 13.
*4 New York County Law § 52 states: “[a]ny claim or
notice of claim against a county for ... injury or death ...
alleged to have been caused or sustained in whole or in
part by or because of any misfeasance, omission of duty,
negligence or wrongful act on the part of the county, its
officers, agents, servants or employees, must be made and
served in compliance with [New York General Municipal
Law § 50-e].” New York General Municipal Law § 50-e
states: “[i]n any case founded upon tort where a notice of
claim is required by law as a condition precedent to the
commencement of an action or special proceeding against a
public corporation ... or any officer, appointee or employee
thereof, the notice of claim shall ... be served in accordance
with the provisions of this section within ninety days after the
claim arises; except that in wrongful death actions, the ninety
days shall run from the appointment of a representative of the
decedent's estate.”
“The primary purpose of [New York General Municipal
Law § 50-e], as often stated by the courts, is to give to a
municipality prompt notice of ... claims, so that investigation
may be made before it is too late for investigation to be
efficient.” Winbush, 306 N.Y. at 333. “While no one except
an administrator or executor may bring a death action, there is
no reason, in statute or in reason, why a person, who is one of
the next of kin to be benefited by a death action, may not file
a notice of claim....” Id. at 334; see Cook v. Maine-Endwell
Cent. Sch. Dist., 236 A.D.3d 1167, 1171 n.3 (3d Dep't 2025)
(noting that “it has long been established that the next of kin
—and even a nonrelative friend—may file and serve a timely
notice of claim”) (citing Winbush, 306 N.Y. at 330–34).
Here, Plaintiff served the County with a notice of claim on
April 2, 2024, and that was less than 90 days after Nason's
death. See Dkt. No. 7-2 at 1. Plaintiff later served the County
with an amended notice of claim on March 19, 2025, and that
was less than 90 days after she was appointed administrator
of Nason's estate. See Dkt. No. 7-6 at 1. Both of the notices
of claim were acceptable because Plaintiff was Nason's next
of kin and served notice within the time period prescribed by
New York General Municipal Law § 50-e.
Defendants do not dispute that Plaintiff complied with the
notice requirements except that she served the first notice
when she was merely the proposed administrator, and she
served the second notice when she was the administrator,
but her authority was for a suit against New York State.
As a result, the gist of their argument appears to be that
they received notice too early. Def. Mem. at 9 (“notice of
claim alleging wrongful death may only be filed after ‘the
appointment of a representative of the decedent's estate’ ”).
But “there is no reason, in statute or in reason” why next of kin
may not serve the notice of claim before appointment as the
administrator. Winbush, 306 N.Y. at 334. The New York State
Court of Appeals has never overruled Winbush, and the Third
Department Appellate Division cited it favorably last year.
See Cook, 236 A.D.3d at 1171 n.3. That clear statement of
law is binding on this Court. 10012 Holdings, Inc. v. Sentinel
Ins. Co., Ltd., 21 F.4th 216, 221 (2d Cir. 2021) (“In construing
New York law, we are ‘bound ... by the law of New York as
interpreted by the New York Court of Appeals....’ ”) (quoting
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Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d
45, 48 (2d Cir. 2013)). The decisions from lower New York
courts cited by Defendants do not affect this. Accordingly,
Plaintiff's motion is denied on this basis.
2. Authority to Bring Suit
Defendants argue that only “the decedent's duly appointed
personal representative” may bring wrongful death suits in
New York, and that Plaintiff “does not have the legal authority
or standing to bring this cause of action,” because when the
complaint was filed, Plaintiff was not yet the duly appointed
administrator of Nason's estate and “the state of NY” is not
a defendant. Def. Mem. at 10–11. Plaintiff admits that the
letters of administration appointing her administrator “had a
technical defect,” but argues that defect was corrected. Def.
Mem. at 15. Plaintiff also responds that even if she were
not the duly appointed administrator, this would affect only
capacity to sue and that is a non-jurisdictional issue that could
be cured by substitution. Def. Mem. at 14–15.
*5 Standing and capacity to sue are “distinct concepts.”
Fletcher v. City of New London, No. 3:16-cv-241, 2017
WL 690533, at *3 (D. Conn. Feb. 21, 2017). Standing is
jurisdictional and requires the plaintiff to “have suffered an
‘injury in fact’ that is ‘fairly traceable to the challenged action
of the defendant’ and ‘it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.’ ” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992)). “[S]tanding in federal court is a question
of federal law, not state law,” and “no matter its reasons,” the
fact that a state “thinks that a private party should” or should
not have standing “cannot override [federal] settled law to the
contrary.” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013).
On the other hand, capacity to sue, “involves a party's
personal right to litigate in federal court.” Fletcher, 2017 WL
690533, at *3. Unlike jurisdictional issues including standing,
that “can be raised at any time, lack of capacity must be
raised ‘by a specific denial, which must state any supporting
facts that are peculiarly within the party's knowledge.’ ” Id.
(quoting Fed. R. Civ. P. 9(a)). Moreover, “[l]ack of capacity
is generally not considered jurisdictional and is therefore
waived if not specifically raised.” E.R. Squibb & Sons, Inc. v.
Accident & Cas. Ins. Co., 160 F.3d 925, 936 (2d Cir. 1998).
Capacity to sue for a representational plaintiff like Plaintiff, is
determined “by the law of the state where the court is located.”
Fed. R. Civ. P. 17(b)(3). New York law therefore applies here.
See DuBois v. Beaury, No. 1:20-cv-86 (FJS/CFH), 2020 WL
7024393, at *1 (N.D.N.Y. Nov. 30, 2020) (applying New York
law pursuant to Fed. R. Civ. P. 17(b)(3)).
In New York, for wrongful death actions, “[t]he personal
representative, duly appointed in this state or any other
jurisdiction, of a decedent who is survived by distributees may
maintain an action to recover damages for a wrongful act,
neglect or default which caused the decedent's death against a
person who would have been liable to the decedent.” N.Y. Est.
Powers & Trusts Law § 5-4.1(l). A “personal representative”
is “a person who has received letters to administer the estate
of a decedent.” N.Y. Est. Powers & Trusts Law § 1-2.13. “The
Court of Appeals has instructed, repeatedly, that [New York's
wrongful death] statute must be construed ‘strictly.’ ” In re
September 11 Litig., 760 F. Supp. 2d 433, 443 (S.D.N.Y. 2011)
(collecting cases).
When Plaintiff filed the Complaint, she had standing to sue
because she sought damages for an “injury in fact,” that is
Nason's death, and she alleged that the injury was “fairly
traceable” to actions taken by the Defendants. See Fletcher,
2017 WL 690533, at *6 (explaining that “while the Estate
lacked capacity and was not the real party in interest, it did
have standing” to sue for wrongful death); see also id. at *4
(stating that it was “incorrect” to “equate [a] lack of capacity
with a lack of standing and subject matter jurisdiction,” and
refusing to dismiss the complaint filed by the pro se plaintiff
for initial lack of capacity); Purcell ex rel. Est. of Tyree v.
City of New York, No. 18-cv-3979, 2020 WL 2559796, at *6–
7 (E.D.N.Y. May 19, 2020) (rejecting argument “equat[ing]
Plaintiff's lack of a capacity with a lack of standing, which
would trigger a jurisdictional defect”).
Nonetheless, New York law is clear that only a duly appointed
personal representative of the decedent's estate may bring a
wrongful death action. Carrick v. Cent. Gen. Hosp., 51 N.Y.2d
242, 250 n.2 (1980) (“It is well established that the existence
of a qualified administrator is essential to the maintenance of
the action and that the statutory right to recover for wrongful
death does not even arise until an administrator has been
named through the issuance of letters of administration.”)
(citation omitted). When Plaintiff filed the Complaint, she
did not have the capacity to sue because she had received
letters of administration, but they were limited to a wrongful
death suit against New York State. Plaintiff did not become
a qualified administrator and duly appointed representative
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until the Surrogate Court issued her the amended letters of
administration on October 2, 2025.
*6 The proper remedy is to allow Plaintiff to substitute
herself in her capacity as the duly appointed representative
of Nason's estate by amending the Complaint. “A Rule
17(a) substitution of plaintiffs should be liberally allowed
when the change is merely formal and in no way alters the
original complaint's factual allegations as to the events or
participants.” Advanced Magnetics, Inc. v. Bayfront Partners,
Inc., 106 F.3d 11, 20 (2d Cir. 1997). The Second Circuit
allowed amendment where:
First, “[t]he complaint's only pertinent flaw was the identity
of the party pursuing those claims.” In other words, the
proposed amended complaint sought only to substitute
one name for another; the factual and legal allegations
of the complaint would remain unaltered. Second, there
was no indication of “bad faith or ... an effort to
deceive or prejudice the defendants.” Finally, the proposed
substitution did not threaten to prejudice the defendants,
who had timely notice of the substance of the allegations,
the relevant parties, and their claims.
Cortlandt St. Recovery Corp. v. Hellas Telecommunications,
S.a.r.l, 790 F.3d 411, 422 (2d Cir. 2015) (quoting Advanced
Magnetics, 106 F.3d at 20–21) (citations omitted). Those
requirements are all present here. Plaintiff is therefore
directed to amend the complaint within 30 days to substitute
herself in her capacity as the duly appointed representative
of Nason's estate, and the Defendants’ motion to dismiss is
denied on this basis.
B. Merits
1. Uncontested Claims
Plaintiff does not contest the dismissal of all claims against
the Sheriff's Department because it is an administrative arm
of the County. Pl. Mem. at 22; see Arrotta v. Ulster Cnty.
Sheriffs Dep't/Emps., No. 22-cv-638 (GLS/TWD), 2022 WL
4235463, at *5 (N.D.N.Y. Sept. 14, 2022) (“[U]nder New
York law, departments that are merely administrative arms
of a municipality do not have a legal identity separate and
apart from the municipality and, therefore, cannot sue or
be sued.”) (alteration in original) (quotation and citation
omitted). Defendants’ motion is therefore granted on this
basis, and all claims against the Sheriff's Department are
dismissed. Plaintiff also does not contest the dismissal of
the § 1983 claims against Schroyer and the unidentified
defendants. Pl. Mem. at 22. Defendants’ motion is therefore
granted on this basis, and the § 1983 claims against Schroyer
and the unidentified defendants are dismissed. Further, the
Plaintiff does not contest the dismissal of the § 1983 failure
to intervene and conspiracy claim against all Defendants,
Pl. Mem. at 22, and that claim is dismissed against all
Defendants. Finally, Plaintiff does not contest dismissal of
the state law claim for negligent hiring, screening, retention,
supervision, and training against the County and the Sheriff's
Department, Pl. Mem. at 22, and that claim is dismissed.
2. § 1983 Due Process – Deliberate Indifference
a. Individual Liability
Defendants seek dismissal of Plaintiff's § 1983 claim against
Clark arguing that she did not sufficiently plead subjective
intent, the allegations “reflect at most negligent conduct,” and
she cannot establish deliberate indifference. Def. Mem. at 12.
Plaintiff responds that Defendants do not accurately state the
deliberate indifference requirements and that the allegations
in the Complaint demonstrate at least reckless conduct. Pl.
Mem. at 16–17.
A Fourteenth Amendment due process claim relying on
deliberate indifference to the medical needs of a pretrial
detainee “must meet two requirements: (1) that [the detainee]
had a serious medical need ... and (2) that [the defendants]
acted with deliberate indifference to such need[†].” Charles
v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019) (citing Estelle
v. Gamble, 429 U.S. 97, 105 (1976)).
*7 “[D]eliberate indifference ... can be shown by something
akin to recklessness, and does not require proof of a
malicious or callous state of mind.” Charles, 925 F.3d at
86 (citing Darnell v. Pineiro, 849 F.3d 17, 33–34 (2017)).
“Deliberate indifference ... can be established by either a
subjective or objective standard....” Id. at 87. “A plaintiff can
prove deliberate indifference by showing that the defendant
official ‘recklessly failed to act with reasonable care to
mitigate the risk that the condition posed to the pretrial
detainee even though the defendant-official knew, or should
have known, that the condition posed an excessive risk
to [the plaintiff's] health or safety.’ ” Id. (alteration in
original) (quoting Darnell, 849 F.3d at 35). In the context
of pretrial detention, a plaintiff “can allege either that the
defendants knew that failing to provide the complained
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of medical treatment would pose a substantial risk to
[the detainee's] health or that the defendants should have
known that failing to provide the omitted medical treatment
would pose a substantial risk to the detainee's health.” Id.
Nonetheless, a “plaintiff must show ‘something more than
mere negligence’ to establish deliberate indifference in the
Fourteenth Amendment context.” Id. (quoting Wyant v. Okst,
101 F.3d 845, 856 (2d Cir. 1996)). “Thus, ‘mere medical
malpractice is not tantamount to deliberate indifference, but
it may rise to the level of deliberate indifference when it
involves culpable recklessness, i.e., an act or a failure to act ...
that evinces a conscious disregard of a substantial risk of
serious harm.’ ” Id. (quoting Cuoco v. Moritsugu, 222 F.3d
99, 107 (2d Cir. 2000)). Whether a defendant “knew or should
have known of the substantial risk of harm to the detainee is
a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence.” Id.
Here, Plaintiff has alleged a deliberate indifference claim
against Clark. According to the Complaint, Nason was a
pretrial detainee with a serious medical need, that is to
have his opiate addiction managed with Sublocade in a safe
manner. The Complaint also adequately alleges that Clark was
deliberately indifferent to that need by alleging that (1) the
FDA has a risk mitigation strategy for Sublocade, (2) training
to administer Sublocade includes “stark warnings,” (3)
Clark failed to heed the warnings, (4) Clark administered
Sublocade improperly, and (5) Clark failed to monitor or
treat Nason, resulting in his death. Compl. ¶¶ 20, 23–
25, 37. Viewing the allegations as true and drawing all
reasonable inferences in Plaintiff's favor as required at
this stage of the litigation, these allegations are sufficient
to allege “culpable recklessness” demonstrating deliberate
indifference. Accordingly, Defendants’ motion to dismiss is
denied as to Clark on the § 1983 deliberate indifference claim.
b. Municipal Liability
Defendants argue that the Complaint does not allege facts
sufficient to support § 1983 liability for the County under
Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
Def. Mem. at 20–21. Plaintiff responds that the Complaint
adequately alleges Monell liability based on a failure-to-train
theory. Pl. Mem. at 18–19.
“To hold a [municipality] liable under § 1983, a plaintiff is
required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.” Lucente v. Cnty.
of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (alteration in
original) (quoting Wray v. City of New York, 490 F.3d 189,
195 (2d Cir. 2007) and citing Monell, 436 U.S. at 690–91).
“To establish a municipal policy, practice, or custom, a
plaintiff must provide evidence of (1) a formal policy
endorsed by the municipality; (2) actions taken or decisions
made by the municipality's policymakers, which caused the
alleged civil rights violation; (3) a practice so widespread
that it constitutes ‘a custom or usage;’ or (4) a failure by
the municipality's policymakers to properly train or supervise
their subordinates.” Beckwith v. City of Syracuse, 642 F.
Supp. 3d 283, 292–93 (N.D.N.Y. 2022) (citing Green v.
City of New York, 465 F.3d 65, 80–82 (2d Cir. 2006)).
A “pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate
indifference for purposes of failure to train.” Connick v.
Thompson, 563 U.S. 51, 62 (2011) (quoting Bd. of Cnty.
Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409
(1997)). The Supreme Court has, however, “left open the
possibility that, ‘in a narrow range of circumstances,” a
pattern of similar violations might not be necessary to
show deliberate indifference.” Id. at 63 (quoting Bryan
Cnty., 520 U.S. at 409). In other words, the “Court sought
not to foreclose the possibility, however rare, that the
unconstitutional consequences of failing to train could be so
patently obvious that a city could be liable under § 1983
without proof of a pre-existing pattern of violations.” Id.
*8 As an initial matter, the requirements articulated in
Connick apply to motions to dismiss. See Simms v. City
of New York, 480 F. App'x 627, 630–31 (2d Cir. 2012)
(affirming district court's decision to dismiss complaint and
applying Connick's requirements). Applying Connick here,
the Complaint does not sufficiently allege Monell liability
under a failure-to-train theory. The Complaint does not allege
any prior incidents of improper Sublocade administration
resulting in death or serious injury at the Franklin County
Jail. In addition, the Complaint's allegations do not fall
into the “narrow range of circumstances” where failure-
to-train liability can result from a single incident because
the Complaint does not allege, for example, that detainees
regularly receive Sublocade or that death or serious injury is a
highly predictable result of that medication. See Connick, 563
U.S. at 63 (explaining the limits of the exception to the pattern
requirement). Accordingly, Defendants’ motion to dismiss is
granted as to the County on the surviving § 1983 claim.
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3. Medical Negligence
Defendants argue that Plaintiff's medical negligence claim
against the County should be dismissed because the County
cannot be liable under a respondeat superior theory given
that the Complaint does not allege that Schroyer and Clark
were County employees. Def. Mem. at 16. Plaintiff responds
that, drawing all reasonable inferences in her favor, she
“is obviously claiming that these Defendants were County
employees. Pl. Mem. at 19.
As Plaintiff points out, when deciding a motion to dismiss for
failure to state a claim, this Court must draw all reasonable
inferences in Plaintiff's favor. EEOC v. Port Auth., 768 F.3d
247, 253 (2d Cir. 2014). The Complaint alleges that Schroyer
and Clark “provided medical care in the Franklin County
Jail.” Compl. ¶¶ 13, 14. Although the Complaint could have
specifically alleged that Schroyer and Clark were County
employees—and may be amended to do so—it is a fair
inference that Schroyer and Clark were County employees.
Accordingly, Defendants’ motion is denied on this basis.
4. New York State Constitution Due Process
Defendants argue that Plaintiff's claims under the New York
State Constitution should be dismissed because they are
duplicative of her § 1983 claims. Def. Mem. at 21–22.
Plaintiff responds that her claim is not duplicative as to the
County because no other claim would allow her to bring a due
process violation claim on a respondeat superior theory. Pl.
Mem. at 20–21.
“The New York State Constitution provides a private right of
action where remedies are otherwise unavailable at common
law or under § 1983.” Allen v. Antal, 665 F. App'x 9, 13 (2d
Cir. 2016) (citing Brown v. State of New York, 89 N.Y.2d 172,
192 (1996)). Even when § 1983 provides a remedy against
individuals for a constitutional violation, a plaintiff may still
bring a due process claim against a municipality under the
New York State Constitution relying on a respondeat superior
theory. See Buari v. City of New York, 530 F. Supp. 3d 356,
409 (S.D.N.Y. 2021) (allowing a due process claim under
the New York State Constitution to proceed on a respondeat
superior theory against a municipality even after dismissing
the individual defendants); see id. (collecting cases).
Here, the New York State Constitution is the only means for
Plaintiff to assert a respondeat superior theory against the
County for a due process violation. Accordingly, Defendants’
motion is denied as to this claim.
5. Punitive Damages
Defendants argue that Plaintiff may not seek punitive
damages from government entities and individuals acting in
their official capacity. Def. Mem. at 22–23. Plaintiff does not
respond. See generally Pl. Mem.
Municipalities are immune from punitive damages in § 1983
actions. City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
271 (1981). Municipalities are also immune from punitive
damages for actions under New York law. Sharapata v. Town
of Islip, 56 N.Y.2d 332, 339 (1982). Accordingly, to the extent
that Plaintiff seeks punitive damages against the County or
the individual Defendants acting in their official capacities,
the motion to dismiss that portion of the prayer for relief is
granted.
IV. LEAVE TO AMEND
*9 Plaintiff seeks, in the alternative, to amend the
Complaint. Pl. Mem. at 21. Except for circumstances not
relevant here, Federal Rule of Civil Procedure 15(a) allows a
party to “amend its pleading only with the opposing party's
written consent or the court's leave.” Fed. R. Civ. P. 15(a)
(1)–(2). A court should “freely give leave when justice so
requires, but it may, in its discretion, deny leave to amend
‘for good reason, including futility, bad faith, undue delay,
or undue prejudice to the opposing party.’ ” MSP Recovery
Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d
Cir. 2023) (quoting Bensch v. Est. of Umar, 2 F.4th 70, 81 (2d
Cir. 2021)).
Here, the Court will permit Plaintiff to file an amended
complaint within 30 days, but she may not amend her claims
against the Sheriff's Department because amendment would
be futile. The amended complaint must substitute Plaintiff
as the duly appointed representative of Nason's estate. In
addition, the amended complaint will replace the existing
complaint, and it must be a complete pleading that does
not rely upon or incorporate by reference any pleading or
document previously filed with the court. See Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)
(“It is well established that an amended complaint ordinarily
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Nason v. Franklin County, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
supersedes the original, and renders it of no legal effect.”)
(quoting Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d
Cir. 1977)).
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motion to dismiss, Dkt. No.
7, is GRANTED IN PART and DENIED IN PART; it is
further
ORDERED that Plaintiff's claims against the Franklin
County Sheriff's Department are DISMISSED WITH
PREJUDICE; it is further
ORDERED that Plaintiff's § 1983 claims against Defendant
Schroyer and the unidentified defendants; Plaintiff's § 1983
claim against Defendant Franklin County; Plaintiff's § 1983
claim for failure to intervene and conspiracy; and Plaintiff's
state law claim for negligent hiring, screening, retention,
supervision, and training are DISMISSED WITHOUT
PREJUDICE; it is further
ORDERED that any portion of Plaintiff's prayer for relief
seeking punitive damages against the County or the individual
Defendants acting in their official capacities is DISMISSED
WITH PREJUDICE; it is further
ORDERED that Plaintiff is granted leave to amend to the
extent authorized in this Memorandum-Decision and Order;
it is further
ORDERED that Plaintiff must amend the Complaint to
substitute herself in her capacity as the duly appointed
representative of Nason's estate within 30 days.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 759440
Footnotes
1 The Complaint does not spell Schroyer's name consistently, and this decision uses the spelling in the caption.
2 These facts are drawn from the Complaint. The Court assumes the truth of, and draws reasonable inferences
from, the well-pleaded factual allegations, see Lynch v. City of New York, 952 F.3d 67, 74–75 (2d Cir. 2020),
but does not accept as true any legal conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3 “Nason was a transgender man who was receiving gender-affirming care, and went by J.B. Nason, but as
of the time of his death had not changed his name.” Compl. ¶ 10. Consistent with the Complaint, masculine
pronouns are used for Nason.
4 The Court takes judicial notice of the notices of claim as documents incorporated by reference in the
Complaint and integral to it. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (“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.”); Subaru Distributors Corp. v. Subaru of Am., Inc., 425 F.3d
119, 122 (2d Cir. 2005) (“In determining the adequacy of the complaint, the court may consider any written
instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as
documents upon which the complaint relies and which are integral to the complaint.”).
5 Unless otherwise noted, citations to page numbers refer to pagination generated by the Court's ECF system.
6 The Court takes judicial notice of the decree granting letters of administration and the decree granting
amended letters of administration as public records. See Williams v. New York City Hous. Auth., 816 F. App'x
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532, 534 (2d Cir. 2020) (noting that courts “may consider public records that may be judicially noticed in ruling
on motions made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure”).
7 Defendants do not explicitly state that this is a jurisdictional argument, and there appears to be a split in
authority about whether New York's notice of claim requirements are jurisdictional or procedural, Yennard
v. Herkimer BOCES, No. 6:16-cv-556 (GTS/ATB), 2017 WL 11317859, at *14 (N.D.N.Y. Mar. 27, 2017)
(collecting cases), but it is not necessary to reach that issue.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Vasquez v. County of Rockland, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 883514
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Kim VASQUEZ, Plaintiff,
v.
The COUNTY OF ROCKLAND, Sgt. Karl Mueller,
Sgt. John Kleber, Correction Officer John Kezek and
Correction Officer Paul Obacz, in Their Individual
and Official Capacities as Correction Officers
Employed By the County of Rockland, Defendants.
CIVIL ACTION NO. 13 Civ. 5632 (SLC)
|
Signed 02/24/2020
Attorneys and Law Firms
Kim Vasquez, Dumfries, VA, pro se.
Ari Isaac Bauer, P.E.L.S, New York, NY, Rebecca Grace
Baldwin Mantello, Catania, Mahon, Milligram & Rider,
PLLC, Newburgh, NY, for Defendants.
OPINION & ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
SARAH L. CAVE, United States Magistrate Judge.
I. INTRODUCTION
*1 This is a Section 1983 action brought by Kim Vasquez
(“Vasquez”), a former inmate of the Rockland County Jail,
against the County of Rockland and several corrections
officers. Vasquez alleges that, during a prior incarceration
at the same jail, he had commenced a federal civil rights
action asserting violations of his right to free exercise of his
religion under the First Amendment. He alleges that, during
his detention in 2012, in retaliation for bringing the prior civil
rights action, corrections officers subjected him to religious
persecution and an assault that resulted in physical injuries,
and then were deliberately indifferent to his medical needs.
Defendants have denied all of Vasquez's allegations and now
move for summary judgment.
For the reasons set forth below, Defendants’ motion is
GRANTED.
II. BACKGROUND
A. Factual Background
The Court summarizes below the facts, which are undisputed
unless otherwise indicated, from the documents Defendants
have submitted in support of their motion (ECF Nos. 97–
100), Defendants’ statement pursuant to Local Civil Rule 56.1
(ECF No. 101), and Vasquez's submissions in response to
the motion. (ECF Nos. 102, 103, 110). The Court describes
the facts “in the light most favorable to” Vasquez, the non-
movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30
(2d Cir. 2018) (internal quotation omitted); Vasquez v. Reilly,
No. 15 Civ. 9528 (KMK), 2018 WL 2768648, at *1 (S.D.N.Y.
June 7, 2018).
When filing a summary judgment motion, Local Rule 56.1(a)
requires the moving party to submit a “short and concise
statement, in numbered paragraphs, of the material facts as
to which the moving party contends there is no genuine
issue to be tried.” Local Civ. R. 56.1(a). In response, the
non-moving party must submit “a correspondingly numbered
paragraph responding to each numbered paragraph in the
statement of the moving party, and if necessary, additional
paragraphs containing a separate, short and concise statement
of additional material facts as to which it is contended that
there exists a genuine issue to be tried.” Local Civ. R. 56.1(b).
“A pro se litigant is not excused from this rule,” Brandever
v. Port Imperial Ferry Corp., No. 13 Civ. 2813, 2014 WL
1053774, at *3 (S.D.N.Y. Mar. 13, 2014), and “[a] nonmoving
party's failure to respond to a Rule 56.1 statement permits
the court to conclude that the facts asserted in the statement
are uncontested and admissible.” T.Y. v. N.Y.C. Dep't of
Educ., 584 F.3d 412, 418 (2d Cir. 2009); Vasquez, 2018
WL 2768648, at *1 n.1. In this case, Defendants served and
filed their Rule 56.1 statement (ECF No. 101), along with a
statement pursuant to Local Civil Rule 56.2 notifying Vasquez
of the potential consequences of not responding to the motion.
(See ECF No. 97-1 (Notice to Pro Se Litigant); ECF No.
98 (Certificate of Service)). Despite this notice, Vasquez did
not submit a response to Defendants’ 56.1 Statement, and
therefore, the Court may conclude that the facts in Defendants
56.1 Statement are uncontested and admissible. See Vasquez,
2018 WL 2768648, at *1 n.1; Brandever, 2014 WL 1053774,
at *3.
*2 In the absence of a response from Vasquez that meets
the requirements of the Federal Rules of Civil Procedure and
this Court's Local Civil Rules, the Court must still afford
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“special solicitude” to Vasquez, a pro se litigant, and exercise
its discretion “to conduct an assiduous review of the record,”
including his testimony, in deciding Defendants’ motion.
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001);
Vasquez, 2018 WL 2768648, at *1 n.1 (collecting cases in
which courts conducted independent review of the record
where a pro se plaintiff had failed to submit a proper Rule 56.1
statement). To the extent that Vasquez, in the submissions
he has made in apparent response to Defendants’ motion,
makes factual allegations without citations to the record or
that contradict his sworn testimony, the Court will disregard
those allegations. See Holtz, 258 F.3d at 73 (explaining that
the court is not required to search the record to find genuine
issues of material fact that a non-moving party failed to raise);
Vasquez, 2018 WL 2768648, at *1 n.1 (disregarding plaintiff's
factual assertions in opposition papers that lacked citation or
contradicted his sworn testimony); Berry v. Marchinkowski,
137 F. Supp. 3d 495, 502 n.1 (S.D.N.Y. 2015) (same).
1. Events prior to July 14, 2012
In 2007, Vasquez, who is a practicing Muslim, was serving a
two-year term at the Rockland County Correctional Facility
(the “Jail”). 1 (ECF Nos. 12 ¶¶ 18, 19; 97-10 at 19,
32; 97-15 at 2–3). In 2010, he and two other inmates
commenced a Section 1983 lawsuit against the County of
Rockland and Reverend Teresa Clapp, the Jail's chaplain,
alleging that between March and May 2007, Reverend Clapp
had distributed two religious booklets (the “Tracts”) that
contained defamatory statements about the Muslim faith.
(ECF Nos. 97-15 at 2–3; 101 ¶ 19). The plaintiffs voluntarily
withdrew their claims against the County of Rockland, and in
2011, the Honorable Robert P. Patterson, Jr. of this District,
granted in part and denied in part Reverend Clapp's motion for
summary judgment, dismissing the claims against her in her
official capacity. (ECF No. 97-15 at 3–4). The claims against
Reverend Clapp in her personal capacity proceeded to trial,
following which a jury rendered a verdict in her favor as to
each of the three plaintiffs’ claims. (ECF No. 97-15 at 14–20).
In 2009, after being charged with drug possession and driving
under the influence, Vasquez pled guilty to a felony charge
and enrolled in a Drug Treatment Alternative to Prison
program (“DTAP”). (ECF Nos. 97-10 at 12–17; 101 ¶¶ 2–4).
In about May 2012, while he was in the final stage of DTAP,
he was committed to the Jail for a term of 58 days. (ECF No.
97-12 at 13–19, 44).
Vasquez converted to Islam sometime in 1999 or 2000. (ECF
No. 97-10 at 78–79). He testified that, as a Muslim, before
he prays, he and his belongings must be cleaned through a
process called ablution. 2 (ECF No. 97-10 at 35). If he or
his belongings came into contact with a dog, he believed
that he would become “impure” and would need to perform
research to learn “exactly” what cleansing steps he would
need to perform. (ECF No. 97-10 at 43). He understood that
cleansing following contact with a dog had to be performed
“more intensely more times than a regular wash.” (ECF No.
97-10 at 35). Vasquez testified that, in 2009, “[r]ight before
the incident,” he owned two dogs himself. (ECF No. 97-10
at 117).
2. Events of July 14, 2012
On July 14, 2012, Vasquez was an inmate in the D-Wing
at the Jail. (ECF Nos. 97-10 at 26, 29; 101 ¶ 7). On that
date, from about 2:20 p.m. to 2:50 p.m., a K-9 search team
conducted a drug search of D-Wing. (ECF Nos. 97-9; 101
¶¶ 8–9). The officers who conducted the search were acting
within the scope of their employment at the time. (ECF No.
101 ¶ 10). While the K-9 search was in progress, Vasquez and
the other inmates were escorted out of D-Wing. (ECF Nos.
97-10 at 32; 101 ¶ 12). From where he was sitting during the
search, he was unable to see the officers conducting the K-9
search. (ECF Nos. 97-10 at 31–32; 101 ¶ 13).
*3 Once the K-9 search was completed, Vasquez returned
to his living space to find that his crackers appeared to have
bite marks from an animal. (ECF No. 97-10 at 34). He was
concerned that the dog had touched his belongings, which
would render him unable to pray using any items, such as
his prayer rug, that the dog had touched. (ECF No. 97-10
at 43–44). With the time to begin his prayers approaching,
Vasquez asked the officers where the dog had licked, but did
not get an immediate answer. (ECF No. 97-10 at 35–38).
He placed the crackers on the floor, and, he alleges, another
inmate named Adam Gerber kicked the crackers “under the
door” and out into the common area. (ECF Nos. 97-10 at
38; 97-12 at 24). Sergeant Karl Mueller, a Defendant in this
action, and several officers whose identities Vasquez did not
know, entered D-Wing, handcuffed Vasquez, and escorted
him out of the area. (ECF Nos. 97-10 at 38–40; 97-12 at 27;
101 ¶¶ 25–26). Vasquez's disciplinary records indicate that
the other officers were Defendants Sergeant John Kleber and
Corrections Officers John Kezek and Paul Orbacz. (ECF No.
97-11 at 5). Vasquez claimed that the officers “hit [his] nose
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and face into the wall” while Sergeant Mueller handcuffed
him. (ECF No. 97-10 at 39).
The officers then escorted him out of D-Wing to the “dirty
tank,” a holding cell that had two benches, a toilet, and a sink.
(ECF Nos. 97-10 at 66–67; 101 ¶ 27). En route to the dirty
tank, Vasquez claims that the officers “banged” his head into
at least two doors. (ECF Nos. 97-10 at 55–58, 63; 97-12 at 36–
37). Vasquez claims that, when he reached the dirty tank, his
head was not bleeding, but he felt “dizzy” and was “throwing
up and heaving.” (ECF Nos. 97-10 at 52; 97-12 at 41–42).
Once he was in the dirty tank, Vasquez alleges that Sergeant
Mueller “took his nails and planted them into [his] chest and
[ ] scraped downward,” causing “blood spots” on his chest.
(ECF Nos. 97-10 at 67–68; 97-12 at 42).
Suspecting he had a concussion, Vasquez asked for medical
attention. (ECF No. 97-12 at 41). At about 4:00 pm, about an
hour after being placed in the dirty tank, a nurse examined
Vasquez. (ECF Nos. 97-8 at 71; 101 ¶ 29). She observed “no
visual injuries,” but noted that Vasquez was complaining of a
headache and vomiting. (ECF No. 97-8 at 71). He asked to go
to a hospital outside the Jail, but she determined there was “no
reason” to do so. (Id. at 72). The nurse gave Vasquez Tylenol
and put him on the sick call list to see a doctor on his next
visit. (Id. at 71). The nurse saw him again later the same day
and gave him another dose of Tylenol. (Id. at 71–72). Vasquez
did not receive any treatment for the scratches on his chest,
which healed on their own. (ECF No. 97-10 at 86–87).
3. Events after July 14, 2012
On July 16, 2012, a doctor examined Vasquez at the Jail. (ECF
No. 97-8 at 57, 72). The doctor observed some “tenderness”
and decreased range of motion in Vasquez's neck, and noted
that he complained of a “neck spasm.” (ECF No. 97-8 at
72). The doctor prescribed a four-day regimen of Motrin and
Flexeril. (ECF No. 97-8 at 57, 72). 3 The doctor saw Vasquez
again on July 25, at which time he complained of weakness
from fasting for Ramadan, but did not complain any injuries
enduring from the July 14 incident. (ECF No. 97-8 at 69).
Although Vasquez claims that the nurse and doctor advised
him that he might have a concussion (ECF Nos. 97-10 at 75;
97-12 at 48–50), that diagnosis is not reflected in the infirmary
records. (ECF No. 97-8 at 69).
As a result of the July 14 incident, Vasquez was charged with
causing a disturbance and throwing food, for which he was
held in the dirty tank pending a hearing. (ECF Nos. 97-10 at
71; 97-11 at 2; 101 ¶ 42). In their disciplinary reports, the
officers described Vasquez's conduct as “throwing a box of
crackers” and causing a disturbance. (ECF No. 97-11 at 5).
On July 16, 2012, a disciplinary hearing was held, at which
Vasquez was found guilty of both infractions, sentenced to 30
days in “lock in,” 30 days loss of commissary, and a $25.00
disciplinary surcharge. (ECF Nos. 97-10 at 71–72; 97-11 at
21; 101 ¶¶ 43–45). While in lock in, Vasquez had to remain
in a cell for 23 hours a day and was allowed out for one hour
for recreation and 15 minutes for shower and telephone use.
(ECF. Nos. 97-10 at 72; 97-11 at 21). Ultimately, Vasquez was
released from the Jail on July 26, 2012, and thus served only
twelve (12) days in lock in. (ECF Nos. 97-10 at 73–74; 97-12
at 44; 97-13 at 2).
*4 Based on the July 14 incident, Vasquez filed a grievance
with the Jail. (ECF Nos. 97-13 at 2; 101 ¶ 38). He claimed that
after he inquired about whether the search dog had touched his
property, Sergeant Mueller and the other officers “ambushed”
him and bent his wrist “improperly” while escorting him to
the dirty tank, and that Sergeant Mueller “dug his nails” into
his chest and neck. (ECF No. 97-13 at 2). He admitted that he
received medical attention, but claimed that his requests to see
a psychiatrist for his sleeping problems were “ignored.” (ECF
No. 97-13 at 2). He requested medical attention outside the
Jail to evaluate his symptoms of a concussion and sleep loss.
(Id.) Lieutenant John Byron investigated Vasquez's grievance
and found that he had been removed from D-Wing after
causing a disturbance, and had been examined that day by
medical staff, who concluded that no further medical attention
was required. (ECF Nos. 97-14 at 2; 101 ¶ 40). Lieutenant
Byron therefore found that his complaint was unsubstantiated,
and his grievance was denied. (ECF Nos. 97-14 at 2; 101 ¶
41).
At his examination pursuant to Section 50-H of New York
General Municipal Law, on August 29, 2013, Vasquez
testified that the dizziness and headaches went away after
about one month. (ECF No. 97-12 at 53). He claimed that as
a result of the incident he continues to suffer from difficulty
sleeping, post-traumatic stress, and sexual dysfunction. (ECF
No. 97-12 at 60–63). He has been prescribed Paxil, 4
Remeron, 5 Trazodone, 6 and Cialis 7 for these symptoms.
(Id.)
At his deposition on September 29, 2016, Vasquez testified
that he was still traumatized from the July 14, 2012 incident,
and was experiencing trouble sleeping, sexual dysfunction,
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and urination issues, for which he was taking medication that
was alleviating his symptoms. (ECF No. 97-10 at 82, 104).
He testified that the scratches had healed, although he “might
have a little blemish.” (ECF Nos. 97-10 at 86–87; 101 ¶ 32).
With regard to the officers’ actions, he testified none of the
officers said anything to him about his religion or the prior
lawsuit, but he was “certain they knew about it because it was
pretty big” and because “when [he] ask[ed] a question about
his religion, [he] got beat up.” (ECF Nos. 97-10 at 48–49; 101
¶¶ 33–36).
B. Procedural Background
On July 11, 2013, Vasquez, through counsel, filed a civil
action in New York State Supreme Court, Rockland County,
asserting claims under Section 1983 against the County of
Rockland, Sergeant Mueller, and Correction Officers John
Does 1–3. (ECF No. 2 at 7–18). On or about July 19, 2013, the
County of Rockland and Sergeant Mueller accepted service of
the summons and complaint. (ECF No. 2 ¶ 8). On August 12,
2013, the County of Rockland and Sergeant Mueller timely
removed the action to this Court. (ECF No. 2 at 1).
On December 2, 2013, Vasquez filed the Amended
Complaint, substituting Sergeant Kleber and Correction
Officers Kezek and Orbacz in place of the Correction Officer
John Does 1–3. (ECF No. 12). In the Amended Complaint,
Vasquez asserts that the County of Rockland is liable for the
acts of Sergeants Mueller and Kleber and Officers Kezek
and Orbacz 8 under the doctrine of respondeat superior, for
failure to provide adequate training, hiring, supervision, and
control, and under a theory of joint and several liability.
(ECF No. 12 ¶¶ 37–45). Vasquez alleges that the Individual
Defendants engaged in excessive force, retaliated against him,
and subsequently denied him medical treatment, in violation
of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment
rights. (ECF No. 12 ¶¶ 46–52). He seeks $10 million in
damages. (ECF No. 12 ¶ 52). On December 10, 2013, the
Defendants filed answers to the Amended Complaint. (ECF
Nos. 15, 16).
*5 On June 26, 2014, the parties consented to the jurisdiction
of the Honorable Henry B. Pitman, United States Magistrate
Judge, for all further proceedings. (ECF No. 28). On July 30,
2014, after Vasquez refused to cooperate with his counsel,
Judge Pitman granted his counsel's motion to withdraw. (ECF
No. 32 at 5). Since that date, Vasquez has acted pro se in this
litigation.
On January 10, 2018, Defendants timely filed a motion
for summary judgment. (ECF Nos. 97–101). In response,
Vasquez made several filings, although none could
be construed as a responsive Rule 56.1 statement or
memorandum of law explaining why summary judgment
should not be granted in Defendants’ favor. (ECF Nos. 102–
105, 109, 113, 115). Instead, Vasquez claimed that Defendants
did not serve him with their summary judgment motion. (ECF
Nos. 115, 118, 119). Judge Pitman found Vasquez's assertion
“self-serving,” “not credible,” and “insufficient to overcome
the presumption of receipt that results from defendants’
affidavit of service.” (ECF No. 117 at 1). In the same Order,
Judge Pitman informed Vasquez that Defendants’ summary
judgment motion was “unopposed, fully submitted and ripe
for decision.” (Id. at 2). Vasquez moved for a “prompt
hearing” as well as reconsideration, which Judge Pitman
denied. (ECF Nos. 104, 119, 122). This action has now been
reassigned to the undersigned.
III. DISCUSSION
A. Legal Standards
1. Motion for summary judgment
Under Federal Rule of Civil Procedure 56, summary
judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017); Byrd v. City
of New York, No. 17 Civ. 2166 (AJP), 2018 WL 259316, at *3
(S.D.N.Y. Jan. 2, 2018). “On a motion for summary judgment,
the moving party bears the initial burden of establishing that
no genuine factual dispute exists,” and if the movant satisfies
that burden, “the burden shifts to the nonmoving party to ‘set
forth specific facts showing that there is a genuine issue for
trial’ ... and to present such evidence that would allow a jury to
find in his favor.” Blue v. City of New York, No. 14 Civ. 7836
(VSB), 2018 WL 1136613, at *5 (S.D.N.Y. Mar. 1, 2018)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)).
To overcome a summary judgment motion, the nonmoving
party “ ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’ ” Blue, 2018 WL
1136613, at *5 (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving
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party must “cit[e] to particular parts of materials in the record”
to show that “a fact ... is genuinely disputed.” Fed. R. Civ.
P. 56(c)(1); see Blue, 2018 WL 1136613, at *5; Byrd, 2018
WL 259316, at *3. Where a party “fails ... to properly address
another party's assertion of fact as required by Rule 56(c),
the court may,” inter alia, “ ‘consider the fact undisputed
for purposes of the motion,’ or ‘grant summary judgment
if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to
it.’ ” Fed. R. Civ. P. 56(e)(2), (3); see Blue, 2018 WL 1136613,
at *5.
Presented with a motion for summary judgment, the Court
does not resolve contested issues of facts, but rather
determines whether any disputed issue of material fact exists.
See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834
F.2d 54, 58 (2d Cir. 1987); Byrd, 2018 WL 259316, at *5.
The applicable substantive law determines which facts are
material “and which facts are irrelevant.” Byrd, 2018 WL
259316, at *4. The Court must “view the evidence in the
light most favorable to the nonmoving party and draw all
reasonable inferences in its favor, and may grant summary
judgment only when no reasonable trier of fact could find in
favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d
77, 79 (2d Cir. 1995) (internal citations omitted); Wandering
Dago, 879 F.3d at 30; Vasquez, 2018 WL 2768648, at *1.
Summary judgment must be denied “if there is any evidence
in the record that could reasonably support a jury's verdict for
the non-moving party.” Marvel Characters, Inc. v. Simon, 310
F.3d 280, 286 (2d Cir. 2002); see Byrd, 2018 WL 259316,
at *5 (“If, as to the issue on which summary judgment is
sought, there is any evidence in the record from any source
from which a reasonable inference could be drawn in favor of
the nonmoving party, summary judgment is improper.”).
*6 As explained above (see supra Section II.A.), the Court
has afforded Vasquez, a pro se litigant, “special solicitude”
on this motion. Graham v. Lewinski, 848 F.2d 342, 344 (2d
Cir. 1988). This includes reading the pleadings and other
submissions Vasquez has made “liberally and interpret[ing]
them to ‘raise the strongest arguments that they suggest.’
” 9 McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994)); see Hughes v. Rowe, 449 U.S. 5, 9 (1980)
(noting that submissions of pro se litigants are “held ‘to less
stringent standards than formal pleadings drafted by lawyers’
”) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
Still, Vasquez's “pro se status does not exempt [him] from
compliance with relevant rules of procedural and substantive
law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006) (internal citation omitted); Bennett v. James,
737 F. Supp. 2d 219, 226 (S.D.N.Y. 2010) (nonmoving pro
se litigant “must produce specific facts to rebut the movant's
showing and to establish that there are material issues of
fact requiring a trial” (internal quotations omitted); Lee v.
Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (nonmoving
pro se plaintiff's “ ‘bald assertion,’ completely unsupported by
evidence, is not sufficient to overcome a motion for summary
judgment”) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d
Cir. 1991)).
2. Section 1983 liability
A plaintiff asserting a claim under 42 U.S.C. § 1983 must
show that, “while acting under color of state law, Defendants
deprived him of a federal constitutional or statutory right.”
Blackson v. City of New York, No. 14 Civ. 462 (VEC), 2014
WL 6772256, at *2 (S.D.N.Y. Dec. 2, 2014) (citing McKithen
v. Brown, 481 F.3d 89, 99 (2d Cir. 2007)). To recover damages
under Section 1983, a plaintiff must allege “sufficient facts
to demonstrate that defendants were personally or directly
involved in the alleged violation.” Harris v. Westchester Cty.
Dep't of Corr., No. 06 Civ. 2011 (RJS), 2008 WL 953616, at
*9 (S.D.N.Y. Apr. 3, 2008). 10
Proof that an individual defendant was involved in the alleged
violation is “a prerequisite to finding liability on a claim
for damages under [S]ection 1983.” Thomas v. Connolly,
No. 10 Civ. 2401 (PAC) (MHD), 2012 WL 3758457 at *10
(S.D.N.Y. Aug. 30, 2012). A defendant's involvement may be
established by evidence that:
*7 (1) the defendant participated
directly in the alleged constitutional
violation, (2) the defendant, after being
informed of the violation through a
report or appeal, failed to remedy
the wrong, (3) the defendant created
a policy or custom under which
unconstitutional practices occurred,
or allowed the continuance of a
policy or custom, (4) the defendant
was grossly negligent in supervising
subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference to the
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rights of the inmate[ ] by failing
to act on information indicating that
unconstitutional acts were occurring.
Brandon v. Kinter, 938 F.3d 21, 37 (2d Cir. 2019) (quoting
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)); see
Thomas, 2012 WL 3758457, at *11.
3. Municipal liability
To prove municipal liability against the City of New York,
Vasquez must establish that action pursuant to official
municipal policy caused his alleged constitutional injury.
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 691 (1978); Blue, 2018 WL 1136613, at *18; Triano v.
Town of Harrison, 895 F. Supp. 2d 526, 531 (S.D.N.Y. 2012)
(“[T]here must be a ‘direct causal link between a municipal
policy or custom and the alleged constitutional deprivation.’
”). Failure to establish an underlying constitutional violation
necessarily defeats a Monell claim. Askins v. Doe, 727 F.3d
248, 253 (2d Cir. 2013); Blue, 2018 WL 1136613, at *18;
Byrd, 2018 WL 259316, *12–13.
B. Application of Legal Standards
Vasquez claims that, in retaliation for bringing the prior
civil rights action that alleged violations of his right to free
exercise of his Muslim religion, corrections officers at the
Jail subjected him to religious persecution and an assault
that resulted in physical injuries, and then were deliberately
indifferent to his medical needs. (ECF No. 12 ¶¶ 28, 46–
51). He also argues that the County of Rockland is liable
under theories of respondeat superior, failure to train and
supervise, and joint and several liability, for the actions
of the corrections officers. (Id. ¶¶ 37–45). For purposes
of analyzing the motion for summary judgment, the Court
interprets Vasquez's claims as asserting that the Individual
Defendants are liable under Section 1983 for (1) retaliation
under the First Amendment, 11 (2) excessive force, and (3)
deliberate indifference. The Court addresses those claims in
order, before turning to whether the County of Rockland is
liable under Monell for the Individual Defendants’ actions.
1. First Amendment retaliation claim
To prevail on his First Amendment retaliation claim, Vasquez
“must establish ‘(1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against
the plaintiff, and (3) that there was a causal connection
between the protected [conduct] and the adverse action.’ ”
Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting
Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal
citations omitted)); Vasquez v. Rockland Cty., No. 15 Civ.
8912, 2017 WL 456473, at *5 (S.D.N.Y. Feb. 1, 2017); 12
Turner v. Sidorowicz, No. 12 Civ. 7048 (NSR), 2016 WL
3938344, at *4 (S.D.N.Y. July 18, 2016). Vasquez bears
the burden of proving that “the protected conduct was a
substantial or motivating factor” in Defendants’ imposition
of discipline. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996). “[M]ere negligence is not enough to support a claim of
retaliation. A plaintiff must show some evidence of retaliatory
intent to cause the adverse effect.” Brandon, 938 F.3d at
40. The burden then shifts to Defendants to establish “that
the disciplinary action would have occurred ‘even absent the
retaliatory motivation,’ which [they] may satisfy by showing
that [Vasquez] ‘committed the ... prohibited conduct charged
in the misbehavior report.’ ” Holland, 758 F.3d at 226
(quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)
(internal citation omitted)).
*8 In this case, Vasquez has not proffered any evidence
supporting his claim that the Individual Defendants used
excessive force, were deliberately indifferent to his medical
needs, or took disciplinary action against him because of his
religion. Although his protected religious observation—his
need to perform ablutions as to items touched by a dog before
he could pray—led to the incident involving the thrown
crackers, which in turn prompted the disciplinary action,
“such an attenuated link” cannot constitute a “substantial
or motivating factor” for retaliation. Holland, 758 F.3d at
225. Vasquez admitted during his testimony that none of
the Individual Defendants said anything to him about his
religion before, during, or after the incident. (ECF No. 97-10
at 49). There is no evidence in the record that any of
the Individual Defendants were aware of the prior lawsuit.
(ECF No. 101 ¶ 20). Instead, Vasquez bases his claim on
nothing more than speculation that “they knew about [his
prior lawsuit] because it was pretty big.” (ECF No. 97-10 at
48.) His “otherwise conclusory assertion” that the Individual
Defendants disciplined him because he asked “a question
about [his] religion” does not create a genuine issue of
material fact sufficient to defeat summary judgment. (ECF
No. 97-10 at 49); Holland, 758 F.3d at 226; see Vasquez, 2017
WL 456473, at *5 (dismissing First Amendment retaliation
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claim where Vasquez failed to allege that the officers
who disciplined him were aware of his grievance); Turner,
2016 WL 3938344, at *4 (granting summary judgment
where inmate “failed to submit any evidence regarding [his]
retaliation claim”).
2. Excessive force claim
With respect to Vasquez's excessive force claim, “the primary
source of substantive protection is the Eighth Amendment.”
Cox v. Malone, 199 F. Supp. 2d 135, 140 (S.D.N.Y. 2002)
(citing Whitley v. Albers, 475 U.S. 312, 327 (1986)), aff'd 56
F. App'x 43 (2d Cir. 2003). To establish an Eighth Amendment
violation,
an inmate must meet both an objective
and a subjective requirement. To
meet the objective requirement, the
alleged violation must be sufficiently
serious by objective standards....
The objective component is context-
specific, turning upon contemporary
standards of decency.... To meet the
subjective requirement, the inmate
must show that the prison officials
involved had a wanton state of mind
when they were engaging in the
alleged misconduct.
Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (internal
citations omitted). “When prison officials maliciously
and sadistically use force to cause harm,” a plaintiff
need not demonstrate significant injury because, in those
circumstances, “contemporary standards of decency always
are violated.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
“Thus, the malicious use of force to cause harm constitutes an
Eighth Amendment violation per se.” Cox, 199 F. Supp. 2d
at 140 (citing Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.
1999)). “[A] de minimis use of force will rarely suffice to state
a constitutional claim.” Romano v. Howarth, 998 F.2d 101,
105 (2d Cir. 1993). Therefore, “[n]ot every push or shove,
even if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights.” Lebron
v. Mrzyglod, No. 14 Civ. 10290 (KMK), 2019 WL 3239850,
at *14 (S.D.N.Y. July 18, 2019) (quoting Jeanty v. Cty. of
Orange, 379 F. Supp. 2d 533, 540 (S.D.N.Y. 2005)).
a. Subjective test
“[N]egligence does not rise to the level of an Eighth
Amendment constitutional violation,” which “occurs when
a prison official demonstrates ‘deliberate indifference’ to a
substantial risk of serious harm.” Beauvoir v. Falco, 345
F. Supp. 3d 350, 364 (S.D.N.Y. 2018) (quoting Farmer
v. Brennan, 511 U.S. 825, 828 (1994) (internal citations
omitted)). To satisfy this standard, “a defendant's conduct
must reveal an element of intention or recklessness.”
Beauvoir, 345 F. Supp. 3d at 364 (citing Darnell, 849 F.3d at
36).
Applying the analysis set forth in Beauvoir, the Court
first considers what the extent of Vasquez's alleged injuries
reveals, if anything, about the Individual Defendants’ intent.
Beauvoir, 345 F. Supp. 3d at 365. According to Vasquez's
own testimony, although he felt “dizzy” and was “throwing
up and heaving” from the two instances when he claims the
officers “bang[ed]” his head into the doors en route to the
“dirty tank,” he admitted that he was not bleeding and did
not describe any cuts, bumps, or abrasions. (ECF No. 97-10
at 52–53; ECF No. 97-12 at 41–42). The medical records
from his two examinations by the nurse the same day confirm
that he had “no visual injuries,” only that he had a headache
and had vomited, for which there was “no reason” to see
a doctor outside the Jail. (ECF No. 97-8 at 72). Two days
after the incident, Vasquez exhibited only some “tenderness”
and decreased range of motion in his neck, and two weeks
later, he did not complain of any lingering injuries from the
incident. (ECF No. 97-8 at 57, 69, 72). Vasquez also admitted
that the scratches from Sergeant Mueller healed on their own.
(ECF No. 97-10 at 86–87). Having considered Vasquez's
testimony in comparison to all of the infirmary records, the
Court finds that Vasquez's alleged injuries, at most, “are very
minor indications of a malicious or deliberately indifferent
intent,” and therefore, “this factor weighs in Defendants’
favor.” Beauvoir, 345 F. Supp. 3d at 367; see James v. Phillips,
No. 05 Civ. 1539 (PKC) (KNF), 2008 WL 1700125, at *4–
5 (S.D.N.Y. Apr. 9, 2008) (where plaintiff was shoved into
a cell door leading to swelling of chin and bruising of knee,
the court found that “[n]o reasonable jury could conclude that
[defendant] acted maliciously or sadistically to cause harm”);
DeArmas v. Jaycox, No. 92 Civ. 6139 (LMM), 1993 WL
37501, at *4 (S.D.N.Y. Feb. 8, 1993) (where plaintiff had
“no bruise, no swelling, no redness, no pain, and no other
indications of physical injury,” the court found “[n]o evidence
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of malicious purpose or sadism” as is required to establish
excessive force claim). 13
*9 Second, the Court evaluates the record to determine
“whether force was applied in a good faith effort to maintain
or restore discipline, or whether there were ulterior motives
driving the use of force.” Beauvoir, 345 F. Supp. 3d at
367 (quoting Hudson, 503 U.S. at 7). Vasquez's contentions
alone—which is all he has offered—are an insufficient basis
for the Court to conclude that the Individual Defendants’
conduct was malicious or sadistic. See Beauvoir, 345 F. Supp.
3d at 368 (plaintiff's self-serving, uncorroborated testimony
was insufficient to establish that corrections officers acted
maliciously and sadistically to defeat summary judgment);
Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002)
(“a pro se party's bald assertions unsupported by evidence, are
insufficient to overcome a motion for summary judgment”);
see also Robinson v. Henschel, No. 10 Civ. 6212 (PGG),
2014 WL 1257287, at *6 (S.D.N.Y. Mar. 26, 2014) (crediting
plaintiff's description of his hand being “slammed” repeatedly
against wall, but finding that force was “de minimis”); Reid
v. Coughlin, No. 86 Civ. 1351 (LAP), 1994 WL 23152,
at *4 (S.D.N.Y. Jan. 26, 1994) (explaining that “regardless
of whether or not [defendant's] motive was malevolent,
the actions in which that motive was manifested were
legally insignificant and not ‘repugnant to the conscience of
mankind’ ”). There is no evidence in the record that Vasquez
and any of the Individual Defendants “had any preexisting
relationship that might support an inference that [they] pushed
[Vasquez] out of personal resentment or malice.” Cox v.
Fischer, 248 F. Supp. 3d 471, 486 (S.D.N.Y. 2017); James,
2008 WL 1700125, at *4 (“This is not a case where the officer
and inmate had a history of unpleasant interactions.”).
Third, the Court must weigh the competing interests of
“the need to maintain or restore discipline through force
against the risk of injury.” Hudson, 503 U.S. at 6 (internal
citation omitted). To the extent that the Individual Defendants
used force, the record indicates that it was “applied in
a good faith effort to maintain or restore discipline” by
extracting Vasquez from the D-Wing, where he had caused a
disturbance, and relocating him to a segregated cell. Figueroa
v. Puerschner, No. 13 Civ. 4309 (JGK), 2015 WL 505406,
at *4 (S.D.N.Y. Feb. 6, 2015) (granting summary judgment
dismissing excessive force claim where plaintiff suffered
fractured thumb while corrections officers installed shield on
his cell to prevent his misbehavior); Robinson, 2014 WL
1257287, at *5 (granting summary judgment where force
that officer used in “slamm[ing]” plaintiff's hand against wall
during pat frisk was necessary given plaintiff's refusal to obey
and could not “be characterized as wanton”). “It is not within
the Court's province to write or advocate particular rules in the
prison system,” but rather, “to ensure that when an individual
loses certain liberty interests as a penalty for committing
offenses against society, that individual is not deprived of
the ‘concepts of dignity, civilized standards, humanity, and
decency’ that animate the Eighth Amendment.” Beauvoir,
345 F. Supp. 3d at 370 (quoting Hudson, 503 U.S. at 12).
Therefore, even if the Court were to conclude that the
Individual Defendants “were chiding or bullying [Vasquez]
more than was strictly necessary, their conduct did not
egregiously depart from the aim of maintaining order, and it
did not encroach the realm of violating [Vasquez's] dignitary
interests.” Beauvoir, 345 F. Supp. 3d at 370. Therefore,
the Court finds that this factor also weighs in favor of the
Individual Defendants.
Fourth, evaluation of the need for force and the amount of
force used “requires asking whether or not the measure taken
inflicted disproportionate pain and suffering, and whether the
force exposed [Vasquez] to a ‘sufficiently substantial risk of
serious damage to his future health.’ ” Beauvoir, 345 F. Supp.
3d at 370 (quoting Farmer, 511 U.S. at 843). Here, the effects
of the force the Individual Defendants used were minor, and
“whatever force was applied, was not applied for long,” such
that this factor weighs in favor of the Individual Defendants.
Beauvoir, 345 F. Supp. 3d at 371.
Fifth, considering the threat the Individual Defendants
reasonably perceived, the Court notes that although they
reasonably believed that Vasquez had caused a disturbance
in D-Wing, he was not being violent or belligerent, and
therefore posed only a minimal threat of physical harm to any
corrections officers or other inmates. At most, he posed “a
modest threat of disorder in an environment where he had no
right to do so and where maintenance of civility and discipline
is of utmost importance.” Beauvoir, 345 F. Supp. 3d at 371.
The Court therefore finds that this factor weighs only slightly
in favor of the Individual Defendants.
*10 Sixth and finally, the Court inquires whether the
Individual Defendants made any “good-faith efforts to temper
the severity of the situation before resorting to a forceful
response.” Beauvoir, 345 F. Supp. 3d at 371. Vasquez testified
that, in response to his questions about whether the search
dog had touched any of his belongings, at least one officer
said “okay,” in an apparent acknowledgement of his question.
(ECF No. 97-10 at 36). After the crackers were kicked out
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of his cell—Vasquez testified it was another inmate, but the
officers reasonably believed it to be Vasquez—the Individual
Defendants handcuffed him, removed him from D-Wing, and
transported him to the segregated cell. (Id. at 39). While
reasonable minds might disagree about whether the officers
could have done more to assuage Vasquez's concerns about
the dog, as set forth above, it is not the place of this Court
to second-guess the Individual Defendants’ decision about
how to maintain order in the circumstances here. See Hudson,
503 U.S. at 6 (explaining that “prison administrators should
be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve the internal order and discipline and to
maintain institutional security”). Therefore, this factor is at
most neutral in the Court's analysis.
Having taken into consideration the six factors above in
the subjective test for an excessive force claim, the Court
finds that the undisputed facts indicate that the Individual
Defendants “did not have the requisite culpable state of
mind,” and that “there is no other fact on the record that could
allow a jury to find a mens rea of deliberate indifference,
recklessness, or knowing willingness of a serious risk of
harm.” Beauvoir, 345 F. Supp. 3d at 372.
b. Objective test
The objective test focuses on the harm to Vasquez in light of
“ ‘contemporary standards of decency,’ ” and asks “whether
the alleged violation is ‘sufficiently serious’ to warrant Eighth
Amendment protections.” Beauvoir, 345 F. Supp. 3d at 372
(quoting Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009)
and Blyden, 186 F.3d at 262). As explained above, the injuries
Vasquez describes are of a de minimis character comparable
to those other courts have rejected as insufficient to support
a Section 1983 excessive force claim. Peters v. Huttel, 15
Civ. 9274 (NSR), 2019 WL 6619602, at *13 (S.D.N.Y.
Dec. 5, 2019) (finding that undisputed evidence showed
that gate closure that struck plaintiff's shoulder leaving no
visible injuries and only “tender[ness] to touch” was not a
“sufficiently serious use of force”); Cox, 248 F. Supp. 3d
at 485–86 (finding that officer who “slammed [the inmate]
into bunk beds, pulled his right arm behind his back, pushed
his fact towards a wall, and shoved him into two lockers”
causing superficial abrasions and no lasting injuries did not
violate Eighth Amendment); Perry v. Stephens, 659 F. Supp.
2d 577, 582 (S.D.N.Y. 2009) (finding that slap that caused
“a little bruise” and “minor pain” that abated after a few
days were not sufficiently serious or harmful injuries “to
reach constitutional dimensions”); James, 2008 WL 1700125,
at *4–5 (finding that “shov[ing]” plaintiff into a cell door,
causing a swollen chin and bruised knee did not constitute
excessive force); Kalwasinski v. Artuz, No. 02 Civ. 2582
(LBS), 2003 WL 22973420, at *4 (S.D.N.Y. Dec. 18, 2003)
(finding that a bump and swelling on the head, headaches,
scratches, bruises, and abrasions, resulting from a push to
floor were “at most minor and superficial” and did not violate
Eighth Amendment); Warren v. Westchester Cty. Jail, 106 F.
Supp. 2d 559, 569 (S.D.N.Y. 2000) (finding that a push and
two punches did not constitute excessive force).
Even if, when viewed in the light most favorable to Vasquez,
the Individual Defendants’ conduct “may not appear entirely
professional,” their actions were not “sufficiently serious to
amount to a constitutional violation.” D'Attore, 2013 WL
1180395, at *6 (granting summary judgment where plaintiff
suffered de minimis injury as a result of his wheelchair
being pushed “recklessly” in a hallway). “Where, as here, a
plaintiff alleges only a degree of roughness that is common in
prison contexts, and has not claimed a lasting or even fleeting
injury resulting from the defendant's conduct, courts in this
circuit have routinely held that such conduct is insufficiently
serious to support an Eighth Amendment claim.” Vogelfang v.
Capra, 889 F. Supp. 2d 489, 507 (S.D.N.Y. 2012). Comparing
Vasquez's alleged injuries to these precedents, the Court finds
that “no reasonable jury could reach any other conclusion”
than that the force the Individual Defendants used “was such a
grave departure from ‘contemporary standards of decency’ or
that [Vasquez's] injur[ies] [were] serious enough to invite an
Eighth Amendment violation.” Peters, 2018 WL 6619602, at
*13; Beauvoir, 345 F. Supp. 3d at 372. Accordingly, the Court
finds that the Individual Defendants are entitled to summary
judgment in their favor on Vasquez's excessive force claim.
c. Qualified immunity
*11 The Individual Defendants argue that even if the Court
were to find a genuine issue of material fact as to whether
they used excessive force, qualified immunity protects them
from liability. (ECF No. 99 at 15–18). “Qualified immunity
protects government officials performing discretionary
functions, such as arrests, ‘from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’ ” Berman v. Williams, No. 17 Civ. 2757
(JGK), 2019 WL 4450810, at *7 (S.D.N.Y. Sept. 17, 2019)
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(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see
Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified
immunity defense has evolved, it provides ample protection
to all but the plainly incompetent or those who knowingly
violate the law.”) “Requiring the alleged violation of law to be
clearly established balances the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Wood v.
Moss, 572 U.S. 744, 758 (2014) (internal citations omitted).
A right is clearly established when “it would be clear to
a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194,
202 (2001) (citation omitted), overruled on other grounds,
Pearson v. Callahan, 555 U.S. 223 (2009); see Mullenix
v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam) (right
is clearly established when “existing precedent place[s] the
conclusion that [the defendant] acted unreasonably in the[ ]
circumstances beyond debate”); McKay v. City of New York,
32 F. Supp. 3d 499, 506 (S.D.N.Y. 2014); Berman, 2019
WL 4450810, at *7. In evaluating whether the law was
clearly established, “the salient question ... is whether the
state of the law” at the time of the defendant's conduct
“gave [the defendant] fair warning that [his] alleged treatment
of [the plaintiff] was constitutional.” Hope v. Pelzer, 536
U.S. 730, 741 (2002). “If the state of the law at the time
of the defendant's conduct did not give fair warning that
such conduct was unlawful, then the defendant is entitled
to qualified immunity.” Jones v. Muniz, 349 F. Supp. 3d
377, 383 (S.D.N.Y. 2018). The “clearly established law must
be particularized to the facts of the case.” White v. Pauly,
137 S. Ct. 548, 552 (2017) (per curiam) (internal citation
omitted). “The dispositive question is whether the violative
nature of particular conduct is clearly established ... in light
of the specific context of the case, not as a broad general
proposition.” Mullenix, 136 S. Ct. at 308 (internal citations
omitted). A case presenting the exact same facts is not
required, see Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011),
but the right must be “sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Mullenix, 136 S. Ct. at 308.
Law enforcement officers may be entitled to qualified
immunity even if they have used excessive force. See,
e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“Even
law enforcement officials who reasonably but mistakenly
conclude that [their conduct is lawful] are entitled to
immunity.”); Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir.
2003) (Supreme Court precedent is “clear that even officers
who are found to have used excessive force may be entitled
[to] qualified immunity ...”). Because an inmate's right
to be free from excessive force is a clearly established
right, the relevant qualified immunity inquiry is whether a
reasonable officer in the position of the Individual Defendants
would have known that their conduct constituted excessive
force. See Green v. Montgomery, 219 F.3d 52, 59 (2d Cir.
2000) (“It is beyond dispute that the right to be free from
excessive force has long been clearly established.”). As set
forth above, the Court finds that the Individual Defendants
are entitled to summary judgment on the excessive force
claim because the Individual Defendants have shown “that
no reasonable jury, viewing the evidence in the light
most favorable to [Vasquez], could conclude that [their]
actions were objectively unreasonable in light of clearly
established law.” O'Brien v. Barrows, 556 F. App'x 2, 4
(2d Cir. 2014) (affirming grant of summary judgment for
defendants dismissing excessive force claim on qualified
immunity grounds). Because Vasquez has not established
a constitutional violation, “there is no necessity for further
inquiries concerning qualified immunity.” Saucier, 533 U.S.
at 201 (2001), modified by Pearson, 555 U.S. at 236
(2009); see Blandon v. Capra, No. 17 Civ. 65 (KMK),
2017 WL 5624276, at *12 n.19 (S.D.N.Y. Nov. 20, 2017)
(where plaintiff failed to state a claim under Eighth and
Fourteenth Amendments, qualified immunity analysis was
unnecessary); Toliver v. City of New York, No. 10 Civ. 5803
(LTS), 2012 WL 6013098, at *8 (S.D.N.Y. Dec. 3, 2012)
(where summary judgment was granted to certain individual
defendants, qualified immunity inquiry was unnecessary).
*12 Furthermore, even if “reasonable corrections officers
could have disagreed as to the constitutionality” of the force
the Individual Defendants used in this case, they would
still be entitled to the protection of qualified immunity.
See Ross v. Corr. Officers John and Jane Does 1–5, 610
F. App'x 75, 78 (2d Cir. 2015) (summary order) (holding
that corrections officer was entitled to qualified immunity
where “reasonable corrections officers” could have disagreed
about the constitutionality of his conduct). As the Second
Circuit has explained, “if the court determines that the only
conclusion a rational jury could reach is that reasonable
officers would disagree about the legality of the defendants’
conduct under the circumstances, summary judgment for
the officers is appropriate.” Lennon v. Miller, 66 F.3d 416,
421 (2d Cir. 1995) (explaining that “the ultimate legal
determination whether ... a reasonable [ ] officer should
have known he acted unlawfully is a question of law better
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left for the court to decide”). For the reasons set forth
above, “ ‘no reasonable jury, looking at the evidence in the
light most favorable to, and drawing all inferences most
favorable to, [Vasquez], could conclude that it was objectively
unreasonable for the [Individual Defendants]’ to believe that
[they] were acting in a fashion that did not clearly violate
an established federally protected right.” Robison v. Via, 821
F.2d 913, 921 (2d Cir. 1987) (quoting Halperin v. Kissinger,
807 F.2d 180, 189 (D.C. Cir. 1986)); see Jenkins v. Medert,
No. 16 Civ. 1491 (MAD/DJS), 2018 WL 5728050, at *5
(N.D.N.Y. July 2, 2018) (holding that, even if a question of
fact existed as to the amount of force used, qualified immunity
applied because “no reasonable corrections officer” could
have known that the force used “was objectively unreasonable
under the circumstances”). Given the absence of a dispute
about the material facts in this case, the Court concludes
that the Individual Defendants’ conduct is reasonable under
the circumstances such that they are entitled to qualified
immunity as to Vasquez's excessive force claim. See Lennon,
66 F.3d at 421.
3. Deliberate indifference claim
The claim of a convicted prisoner, like Vasquez, that
corrections officers were deliberately indifferent to his
medical needs “is analyzed under the Eighth Amendment
because the right [he] seeks to vindicate arises from the Eighth
Amendment's prohibition of cruel and unusual punishment.”
Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (internal
citations omitted), overruled on other grounds, Darnell, 849
F.3d at 35; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994) (inmate must demonstrate “ ‘deliberate indifference to
[his] serious medical needs’ ”) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)); Thomas, 2012 WL 3758457, at *10.
“[N]ot every lapse in medical care is a constitutional wrong.”
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). To
establish a deliberate indifference claim, Vasquez must satisfy
a two-prong test: (1) that “he suffered a sufficiently serious
constitutional deprivation,” and (2) that the Defendants “acted
with deliberate indifference.” Taylor v. Goorde, 548 F. App'x
696, 698 (2d Cir. 2013); Feliciano v. Anderson, No. 15 Civ.
4106 (LTS) (JLC), 2017 WL 1189747, at *8 (S.D.N.Y. Mar.
30, 2017).
a. Objective element
The first, or “objective” prong of a deliberate indifference
claim “asks whether the deprivation of medical care was
sufficiently serious.” Feliciano, 2017 WL 1189747, at *9.
This prong itself has two components. First, the Court
must evaluate whether Vasquez “ ‘was actually deprived of
adequate medical care,’ keeping in mind that only ‘reasonable
care’ is required.” Barnes v. Ross, 926 F. Supp. 2d 499,
505 (S.D.N.Y. 2013) (quoting Salahuddin, 467 F.3d at 279).
“ ‘[P]rison officials who act reasonably’ ” in response
to an inmate's health risk “ ‘cannot be found liable.’ ”
Salahuddin, 467 F.3d at 279–80 (quoting Farmer, 511 U.S.
at 845). Second, the Court inquires “whether the inadequacy
in medical care is sufficiently serious,” i.e., “one that may
produce death, degeneration, or extreme pain.” Johnson v.
Wright, 412 F.3d 398, 403 (2d Cir. 2005) (internal citation
omitted). “[I]n cases of delayed or inadequate care, ‘it's
the particular risk of harm faced by a prisoner due to the
challenged deprivation of care, rather than the severity of
the prisoner's underlying medical condition, considered in
the abstract, that is relevant.’ ” Sledge v. Fein, No. 11 Civ.
7450 (PKC), 2013 WL 1288183, at *5 (S.D.N.Y. Mar. 28,
2013) (quoting Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.
2003)).
i. Adequate care
In analyzing the objective element of a deliberate indifference
claim, the Court first looks to “whether the prisoner was
actually deprived of medical care.” Barnes, 926 F. Supp.
2d at 505. “Adequate care is ‘reasonable care’ such that
‘prison officials who act reasonably cannot be found liable.’ ”
Martinez v. Aycock-W., No. 12 Civ. 4574, 2016 WL 407294,
at *5 (S.D.N.Y. Feb. 1, 2016) (quoting Farmer, 511 U.S.
at 845). Vasquez does not name as defendants any medical
professionals at the Jail, and thus the Court interprets his claim
as alleging that the Individual Defendants were deliberately
indifferent to his medical needs and prevented him from
timely receiving medical care.
*13 The record here demonstrates that Vasquez received
adequate care and the nurse and doctor who treated him
“acted reasonably, which is all that is required under the
Eighth Amendment.” Cruz v. Corizon Health Inc., 13 Civ.
2563 (CS), 2016 WL 4535040, at *5 (S.D.N.Y. Aug. 29,
2016); see Figueroa, 2015 WL 505406, at *5 (finding no
deliberate indifference where inmate was immediately x-
rayed and given painkiller after incident for which he suffered
non-displaced thumb fracture). The infirmary records show
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that Vasquez saw the nurse twice—once within an hour of
arriving in the segregated cell, and again later that day. (ECF
Nos. 97-8 at 71–72; 101 ¶ 29). After observing “no visual
injuries,” she gave Vasquez Tylenol and put him on the sick
call list to see a doctor on his next visit, finding “no reason” for
him to see an external doctor. (ECF No. 97-8 at 72.) Vasquez
did not receive any treatment for the minor scratches on his
chest, which healed on their own. (ECF No. 97-10 at 86–87).
Vasquez also twice saw the Jail's doctor, who two days after
the incident observed “tenderness” and a decreased range of
motion in Vasquez's neck, for which he prescribed a four-day
regimen of Motrin and Flexeril. (ECF No. 97-8 at 57, 72). By
the time Vasquez saw the doctor again on July 25, he did not
make any complaints about injuries enduring from the July
14 incident. (ECF No. 97-8 at 69).
Essentially, Vasquez's claim rests on his disagreement with
the medical professionals who treated him about whether
he had a concussion that warranted further examination
and treatment. (ECF Nos. 97-10 at 75). Such a complaint,
however, is not cognizable under the Eighth Amendment.
See Berman, 2019 WL 4450810, at *7 (granting summary
judgment dismissing claim of inadequate medical care where
plaintiff was “immediately” taken to medical clinic, seen,
and treated and medical records disproved plaintiff's claim
that defendants failed to provide medical care “such that no
reasonable jury could find in plaintiff's favor”); Feliciano,
2017 WL 1189747, at *11 (finding plaintiff who was
examined and given painkiller within two hours of incident
failed to establish deprivation of adequate medical care);
Estevez v. City of New York, No. 16 Civ. 073, 2017
WL 1167379, at *5 (S.D.N.Y. Mar. 28, 2017) (dismissing
claims of inadequate medical care where doctors “promptly
treated” plaintiff); Figueroa, 2015 WL 505406, at *5 (finding
no deliberate indifference where an inmate immediately
received treatment from nurse, who x-rayed him and gave
him a painkiller for a minor finger fracture, for which
he felt pain for 1.5 weeks). Even if the doctor and nurse
misdiagnosed symptoms of a concussion, the Court finds that
their diagnoses were reasonable based on the information
before them, and does not give rise to liability under the
Eighth Amendment. See Feliciano, 2017 WL 1189747, at
*12 (finding that plaintiff's “disagreement with the medical
professionals caring for him is insufficient to demonstrate
that he suffered a serious deprivation of medical care”);
Cruz 2016 WL 4535040, at *5 (granting summary judgment
dismissing a deliberate indifference claim where the doctor's
diagnosis “was reasonable based on the statistical information
available to him”); Idowu v. Middleton, No. 12 Civ. 1238,
2013 WL 4780042, at *7 (S.D.N.Y. Aug. 5, 2013) (holding
that “alleged misdiagnosis” did not constitute deprivation of
adequate medical care).
ii. Sufficiently serious condition
The Court also finds that Vasquez has failed to establish the
second inquiry under the objective prong, that his injuries
were sufficiently serious, i.e., “that the alleged deprivation
of proper care created such a condition of urgency that it
might have produced ‘death, degeneration, or extreme pain.’
” Cruz, 2016 WL 4535040, at *6 (quoting Johnson, 412 F.3d
at 403) (internal citation omitted). Vasquez's alleged injuries
amounted to a headache and vomiting, neck tenderness, and
scratches on his chest. (ECF No. 97-8 at 57, 69, 71–72).
There is no evidence in the record that he suffered any bumps
or cuts on his head or neck. All of the symptoms appeared
to dissipate within a month, and Vasquez admitted that the
scratches healed on their own. (ECF Nos. 97-8 at 57, 69, 72;
97-10 at 86–87; 97-12 at 53). The evidence in the record fails
to establish that these injuries were sufficiently serious. See
Feliciano, 2017 WL 1189747, at *11 (finding that plaintiff's
headaches were not “life-threatening and fast-degenerating”);
Figueroa, 2015 WL 505406, at *5 (granting motion for
summary judgment dismissing deliberate indifference claim
where nondisplaced thumb fracture that caused swelling and
pain for less than two weeks was not “sufficiently serious”).
Accordingly, the Court finds that Vasquez has failed to
establish a basis on which a rational jury could find that
his alleged deprivation of medical treatment resulted in a
condition of urgency or extreme pain as is required to sustain
an Eighth Amendment claim.
b. Subjective element
*14 The second, mens rea or mental-element prong of a
deliberate indifference claim requires an inmate plaintiff to
prove “that the charged official acted with a sufficiently
culpable state of mind.” Cruz, 2016 WL 4535040, at *4
(citing Salahuddin, 467 F.3d at 280–81). This state of mind
“more closely resembles recklessness as the term is used in
the civil context, which does not require the defendant to
be subjectively aware of the harm resulting from his acts
or omissions.” Feliciano, 2017 WL 1189747, at *13. “[A]
defendant possesses the requisite mens rea when he acts
or fails to act under circumstances in which he knew, or
should have known, that a substantial risk of serious harm”
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would result. Id. (citing Darnell, 849 F.3d at 35). Vasquez
must establish that the Defendants’ “actions [were] more than
merely negligent.” Darnell, 849 F.3d at 36; Salahuddin, 467
F.3d at 280; Feliciano, 2017 WL 1189747, at *13. Thus, “a
complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim.”
Estelle, 429 U.S. at 106. Similarly, “[i]t is well-established
that [neither] mere disagreement over the proper treatment,”
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998), nor
“[m]edical malpractice ... become a constitutional violation
merely because the victim is a prisoner.” Estelle, 429 U.S. at
106; see Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151
F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (“[D]isagreements over
medications, diagnostic techniques.... forms of treatment, or
the need for specialists or the timing of their intervention, are
not adequate grounds for a Section 1983 claim.”). To prove an
Eighth Amendment claim, an inmate “must demonstrate that
the defendants act[ed] or fail[ed] to act while actually aware
of a substantial risk that serious inmate harm w[ould] result.”
Farid v. Ellen, 593 F.3d 233, 248 (2d Cir. 2010) (internal
citations omitted). Prison officials are not liable under Section
1983 “if they responded reasonably to the risk, even if the
harm ultimately was not averted.” Farmer, 511 U.S. at 844.
The Court finds that Vasquez has failed to demonstrate
facts that any of the Individual Defendants or the
medical professionals who treated him acted with deliberate
indifference to his health. As set forth above, a nurse
examined and treated Vasquez twice on the day of the
incident, the first time within an hour of his arrival in the
segregated cell after the incident. (ECF No. 97-8 at 71). The
Jail's doctor examined him twice and prescribed medications
for his symptoms. (ECF No. 97-8 at 57, 69). There is no
evidence that any of the Individual Defendants delayed or
limited Vasquez's access to examination and treatment. As
explained above, that Vasquez disagrees with the diagnoses
and treatment he was provided does not give rise to liability
for deliberate indifference under the Eighth Amendment.
See Cruz 2016 WL 4535040, at *5 (granting summary
judgment dismissing deliberate indifference claim where
doctor's diagnosis “was reasonable based on the statistical
information available to him”); Idowu, 2013 WL 4780042,
at *7 (holding that “alleged misdiagnosis” did not constitute
deprivation of adequate medical care).
Having failed to establish either the subjective or the
objective elements of a deliberate indifference claim, the
Court concludes that Vasquez has failed to demonstrate a
genuine issue of material fact, and the Individual Defendants
are entitled to summary judgment dismissing his Eighth
Amendment claim.
4. Municipal liability
A municipality such as the County of Rockland may be
sued directly for constitutional violations under Section 1983,
Monell, 436 U.S. at 690, but cannot be held liable for
acts of its employees “by application of the doctrine of
respondeat superior.” Pembaur v. City of Cincinnati, 475
U.S. 469, 478 (1986); Byrd, 2018 WL 259316, at *9 n.13
(collecting cases rejecting respondeat superior as a basis
for municipal liability under Section 1983); Cruz, 2016 WL
4535040, at *8. Claims based on a violation of Monell do
not “create a stand-alone cause of action under which a
plaintiff may sue over governmental policy, regardless of
whether he suffered an infliction of a tort resulting from
the policy.” Askins, 727 F.3d at 253. Therefore, Vasquez's
claim based on “municipal liability under Monell cannot
survive without an underlying constitutional violation.” Blue,
2018 WL 1136613, at *18. Because each of Vasquez's claims
against the Individual Defendants fails, he has not established
a basis on which the County of Rockland bears liability. See
id.; Frost v. City of New York, No. 15 Civ. 4843 (NRB),
2019 WL 1382323, at *2 (S.D.N.Y. Mar. 27, 2019) (granting
summary judgment dismissing municipal liability claims
where underlying constitutional claims were dismissed);
Byrd, 2018 WL 259316, at *13 (same); Cruz, 2016 WL
4535040, at *9 (same). Even if he had established that the
Individual Defendants’ conduct equated to a constitutional
violation, Vasquez has proffered no evidence to show that
any of their conduct occurred pursuant to a County of
Rockland policy or practice. See City of Oklahoma City
v. Tuttle, 471 U.S. 808, 823–24 (1985) (“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[ ] [that] can be attributed to a municipal
policymaker.”); Mitchell v. City of New York, 841 F.3d 72,
80 (2d Cir. 2004) (affirming summary judgment dismissing
municipal liability claim).
IV. CONCLUSION
*15 For the reasons set forth above, the Defendants’ motion
for summary judgment pursuant to Federal Rule of Civil
Procedure 56 is GRANTED in its entirety and all of Vasquez's
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claims are dismissed. The Clerk of the Court is respectfully
directed to close this case.
I further decline to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c)(1)(A), as Vasquez has not “made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
All Citations
Not Reported in Fed. Supp., 2020 WL 883514
Footnotes
1 The Jail is located at 55 New Hempstead Road, New City, New York. (ECF Nos. 12 ¶ 15; 97-10 at 24; 101 ¶ 1).
2 “Ablution is a cleansing process required before prayers in the Islamic and Muslim religions.” Lopez v. State
of New York Dep't of Corr. Servs., No. 94 Civ. 6708, 1996 WL 396152, at *1 n.2 (S.D.N.Y. July 15, 1996). If
a Muslim is “unable to make the appropriate ablutions,” he may postpone the prayer. Chatin v. State, No. 96
Civ. 420 (DLC), 1998 WL 196195, at * 2 (S.D.N.Y. Apr. 23, 1998).
3 Flexeril, also known as cyclobenzaprine, is a short-term muscle relaxant taken orally. See Flexeril Tablet,
WEBMD, https://www.webmd.com/drugs/2/drug-11372/flexeril-oral/details (last visited February 10, 2020).
4 Paxil, also known as paroxetine, is used to treat depression, panic attacks, and anxiety disorders. See
Paxil CR, WEBMD, https://www.webmd.com/drugs/2/drug-32900/paxil-cr-oral/details (last visited February
10, 2020).
5 Remeron, also known as mirtazapine, is used to treat depression. See Remeron Tablet, WEDMD, https://
www.webmd.com/drugs/2/drug-13707/remeron-oral/details (last visited February 10, 2020).
6 Trazodone is used to treat depression. See Trazodone HCL, WEDMD, https://www.webmd.com/drugs/2/
drug-11188/trazodone-oral/details (last visited February 10, 2020).
7 Cialis, also known as tadalafil, is used to treat male sexual function problems. See Cialis, WEBMD, https://
www.webmd.com/drugs/2/drug-77881/cialis-oral/details (last visited February 10, 2020).
8 Where appropriate, the Court refers to Mueller, Kleber, Kezek, and Orbacz collectively as the “Individual
Defendants.”
9 Although Vasquez had the benefit of counsel at the beginning of this case and counsel drafted the operative
Amended Complaint, Vasquez has been pro se since July 30, 2014, that is, for most of this litigation, through
discovery and motion practice. (ECF No. 70 at 2). Magistrate Judge Pitman also observed that Vasquez has
undergone treatment for mental illness, which may have further impeded his ability to represent himself in
this action. (See ECF Nos. 70 at 3; 117).
10 As an inmate asserting a Section 1983 claim, Vasquez was required to first exhaust his administrative
remedies in accordance with Section 803 of the Prison Litigation Reform Act (the “PLRA”). See Ruggiero
v. Cty. of Orange, 467 F.3d 170, 173 (2d Cir. 2006). Although Defendants asserted in their Answers an
affirmative defense of failure to exhaust (see ECF Nos. 15 at 5; 16 at 5), they do not argue in their Motion
that Vasquez has failed to exhaust his administrative remedies as to any of his claims. (See ECF No.
99 at 2–3). Therefore, the Court deems the argument waived and finds that Vasquez has exhausted his
claims for purposes of its analysis of this motion. See Ruggiero, 467 F.3d at 175 (holding that exhaustion is
excused where “defendants have either waived the defense of failure to exhaust or acted in such a[ ] way
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as to estop them from raising the defense”); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) (finding
that government had waived exhaustion defense in statements to court during hearing); Banks v. Cty. of
Westchester, 168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (“failure to exhaust administrative remedies in
compliance with the PLRA is an affirmative defense” that “ ‘may be waived by a defendant, or forfeited by
failure to raise the defense.’ ”) (quoting Arnold v. Goetz, 245 F. Supp. 2d 527, 532 (S.D.N.Y. 2003)).
11 Defendants interpret Vasquez's complaint as also raising a claim under the First Amendment that his right to
free exercise of religion was violated. (ECF No. 99 at 20-22). To the Court, however, Vasquez's complaint,
for which he had the benefit of counsel in preparing, only asserts that the Individual Defendants retaliated
against him on the basis of his religion, and does not contain any allegations that he was precluded from
freely exercising his religion. (ECF No. 12 at ¶¶ 28 (alleging that Individual Defendants “had a dog search”
Vasquez's property “[i]n retaliation for his prior lawsuit”); 49 (alleging that the Individual Defendants “exacted
retaliation at the Plaintiff as the result of his exercising his protected rights to allege that his First Amendment
Rights were violated”)). Therefore, the Court will analyze only whether Vasquez's retaliation claim survives
Defendants’ motion for summary judgment. (See supra Section III.A.1.).
12 The cited case involved, inter alia, Vasquez's claims that his First Amendment rights were violated when he
attempted to file a grievance relating to conduct of corrections officers at the Jail. The Honorable Kenneth M.
Karas granted the County of Rockland's motion to dismiss the complaint. Vasquez, 2017 WL 456473, at *1, 9.
13 To the extent Vasquez asserts that his difficulty sleeping, stress, and sexual dysfunction were caused by
the incident at the Jail, such emotional injuries “cannot form the basis of an excessive force claim.” D'Attore
v. City of New York, No. 10 Civ. 6646 (WHP), 2013 WL 1180395, at *5 (S.D.N.Y. Mar. 15, 2013) (rejecting
claims of “mental anguish” and “heightened anxiety” as basis for excessive force claim); Davis v. United
States, No. 03 Civ. 1800 (NRB), 2004 WL 324880, at *10 n.6 (S.D.N.Y. Feb. 18, 2004) (excessive force claim
requires physical injury).
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