Alves v. New York State Department of Corrections and Community Supervision et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CINDY ALVES, as Administratrix of the
Estate of CECIL ALVES, Deceased,
Plaintiff,
-v-
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION, et al.,
Defendants.
- 	ES DISH
FILED
LOEWEMG\_rTI~
N- 0151:ti-1
1:24-CV-425-JLS-MJR
REPORT and RECOMMENDATION
This case has been referred to the undersigned by the Honorable John L. Sinatra,
Jr. to handle all pre-trial matters, including preparation of a report and recommendation
on dispositive motions. (Dkt. No. 4). Before the Court is a motion to dismiss plaintiff's
amended complaint brought by defendants pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal 	Rules 	of Civil 	Procedure. 	(Dkt. 	No . 23) . For the 	following 	reasons, 	it 	is
recommended that defendants' motion to dismiss be granted in part and denied in part,
as detailed below.
BACKGROUND and PROCEDURAL HISTORY
Plaintiff Cindy Alves commenced this action as Administratrix of the Estate of Cecil
Alves. On February 21, 2024, plaintiff filed a complaint in New York State Supreme Court,
Erie County, asserting state and federal causes of action against the New York State
Department of Corrections and Community Supervision ("DOCCS") , the New York State
Office of Mental Health ("OMH"), and several officers and employees of those agencies.
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(Dkt. No. 1-2). Plaintiff's brother, Cecil Alves, died by suicide on February 23, 2022, while
incarcerated at Wende Correctional Facility. (Dkt. No. 1-2, ,r 31 ). Plaintiff alleged that Mr.
Alves's death while in the custody and care of DOCCS resulted from the failure of prison
officials and practitioners to provide appropriate treatment or suicide prevention measures
to Mr. Alves despite his known history of mental illness and self-harm risk factors. (Id., ,r,r
34-49). 	Defendants removed the action to District Court on the grounds of federal
question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441 and 1446. (Dkt. No. 1).
Defendants moved to dismiss plaintiff's initial complaint. (Dkt. No. 2). Following
briefing and argument on the motion, this Court issued a Report and Recommendation to
the District Court which recommended dismissal of the complaint while granting plaintiff
leave to replead several of her claims. (Dkt. No. 14). The District Court subsequently
adopted that Report and Recommendation. (Dkt. No . 15) .
On 	May 28, 	2025, 	plaintiff filed 	an amended 	complaint. 1 (Dkt. 	No . 17) . The
amended complaint renews the claim that prison officials and practitioners failed to initiate
appropriate suicide prevention measures and denied Mr. Alves appropriate mental health
treatment, which resulted in his death. (Id.).
The amended complaint alleges the following causes of action: (1) deliberate
indifference to serious medical needs in violation of plaintiff's decedent's Fourteenth
Amendment right to adequate medical care and treatment, actionable under 42 U.S.C. §
1 The individual defendants named in the amended complaint are (1) Anthony J. Annucci , Acti ng
Commissioner of DOCCS ; (2) Ann Marie Sullivan; Commissioner of OMH; (3) Christopher Yehl,
Superintendent of Wende Correctional Facility; (4) Margaret Stirk, OMH Unit Chief assigned to Wende
Satellite Mental Health Unit; (5) Sergeant Rene Buster, Senior Official at Wende Correctional Facility; (6)
Melissa M. Desa, M. D., a physician assigned to Wende Correctional Facility; (7) Christopher Zaluski, a
counselor assigned to Wende Correctional Facility ; (8) Steven Maher, Chief of Investigations for DOCCS
Office of Special Investigations. (0kt. No. 17). Each defendant is named in his or her individual capacity.
(Id.).
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1983 (against all defendants); (2) medical malpractice (against Sullivan, Stirk, and Desa);
(3) negligence (against Sullivan , Stirk, and Desa); (4) wrongful death (against Sullivan,
Stirk, and Desa); (5) maintenance of policies, customs, and practices that failed to protect
and constituted deliberate indifference in violation of plaintiff's decedent's Fourteenth
Amendment rights, actionable under 42 U.S.C. § 1983 (against all defendants); (6) cruel
and unusual punishment in violation of plaintiff's decedent's Eighth Amendment rights,
actionable under 42 U.S.C. § 1983 (against all defendants); and (7) negligence in hiring,
training, 	and supervision 	constituting deliberate indifference in violation 	of plaintiff's
decedent's Fourteenth Amendment, actionable under 42 U.S.C. § 1983 (against Annucci,
Sullivan, Yehl, and Stirk) . (Id.) . The amended complaint removes DOCCS, OMH, and
"John Does 1-5" as defendants. (Id.).
On July 11, 2025, defendants moved to dismiss the amended complaint. (Dkt. No.
23). Plaintiff filed a response in opposition (Dkt. No. 26), and defendants filed a reply (Dkt.
No. 29). On September 11, 2025, the Court heard oral argument on the motion. At that
time, the Court considered the matter submitted for decision .
DISCUSSION
Defendants move for dismissal of plaintiff's amended 	complaint under Rules
12(b)(1) and 	12(b)(6) on the grounds that the Court does not have subject matter
jurisdiction over certain claims and that plaintiff fails to state a claim upon which relief can
be granted. 	(0kt. 	No . 23). 	More specifically, defendants argue that plaintiff fails to
plausibly allege an Eighth Amendment claim of deliberate indifference to medical needs,
that plaintiff has not adequately alleged a Monell claim, that plaintiff's state law claims are
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barred by Eleventh Amendment sovereign immunity, and that plaintiff's state law claims
are insufficiently plead . (Id.) .
Rule 12(b)(1) Standard
"Subject matter jurisdiction is a threshold question that must be resolved before
proceeding to the merits." United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014). 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. Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011 ). "In resolving a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), a district court .. . may refer to evidence
outside the pleadings." Carlson v. Geneva City School Dist., 679 F. Supp. 2d 355, 364
(W.D.N.Y. 2010) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
A 	plaintiff 	asserting 	subject 	matter 	jurisdiction 	has 	the 	burden 	of 	proving 	by 	a
preponderance of the evidence that it exists. Id. In reviewing such a motion, the court
must accept as true all material facts alleged in the complaint and draw all reasonable
inferences in the plaintiff's favor. See Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.
2009) .
Rule 12(b)(6) Standard
A defendant may move to dismiss a complaint on the ground that the complaint
fails to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). In order
to state a claim on which relief can be granted, a complaint must contain, inter a/ia, "a
short and plain statement of the claim showing that the pleader is entitled to relief." See
Fed. R. Civ. P. 8(a)(2) . In reviewing a complaint in the context of a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true all
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factual allegations and draw all reasonable inferences from those allegations in favor of
the plaintiff. ATS/ Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Specifically, a complaint must plead "enough facts to state a claim to relief that is plausible
on its face," Be// At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must "allow[] the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice."). The
Supreme Court has further instructed that "[d]etermining whether a complaint states a
plausible claim for relief . .. requires the .. .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 shown-that
the pleader is entitled to relief." Bell At/. Corp., 550 U.S. at 679.
Application
Defendants 	make 	several 	arguments 	in 	favor 	of dismissal 	of the 	amended
complaint. The Court addresses each argument as follows.
Federal Law Claims
First, defendants request that several of plaintiff's causes of action be analyzed as
a single claim of deliberate indifference to medical needs under the Eighth Amendment.
Plaintiff's amended complaint alleges the following causes of action under 42 U.S.C. §
1983: (1) deliberate indifference to serious medical needs in violation of the Fourteenth
Amendment; (2) "maintaining policies, customs, and practices that failed in Defendants'
duty to protect Decedent constituting deliberate indifference in violation of Decedent's
Fourteenth Amendment rights;" (3) cruel and unusual punishment in violation of plaintiff's
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Eighth 	Amendment 	rights; 	and 	(4) 	"negligence 	in 	hiring, 	training, 	and 	supervision
constituting deliberate indifference in violation of Decedent's Fourteenth Amendment
rights." (Dkt. No. 17).
Initially, defendants argue that any cause of action based on the Fourteenth
Amendment cannot be sustained because decedent was a convicted prisoner subject to
Eighth Amendment 	protections, 	rather 	than 	a 	pre-trial 	detainee 	protected 	by 	the
Fourteenth Amendment. See Revere v. Mass Gen. Hosp., 463 U.S. 239, 243-44 (1983)
(explaining that Eighth Amendment scrutiny is appropriate after the State has secured a
formal adjudication of guilt in accordance with due process of law). Plaintiff concedes that
her causes of action referring to violations of the Fourteenth Amendment were listed in
error and asks that all references to the Fourteenth Amendment be replaced with the
Eighth Amendment.
Defendants next argue that the facts alleged by plaintiff amount only to a claim of
deliberate 	indifference to 	serious 	medical 	needs. 	The 	Court agrees 	that 	plaintiff's
allegations of failure to protect, cruel and unusual punishment, and negligence in hiring,
training, or supervision are all duplicative of her first cause of action based on the theory
that decedent was denied adequate medical treatment while in custody. Plaintiff's core
factual claims are that defendants provided inadequate care and protection to Mr. Alves
while 	he was 	suffering 	a mental 	health 	crisis. 	These 	allegations are 	appropriately
analyzed as a claim of deliberate indifference to serious medical needs under the Eighth
Amendment. See Zahaf v. N. Y. Dep't of Corr. & Cmty. Supervision, 22-CV-291, 2024
U.S. Dist. LEXIS 177639, at *14 (W.D.N.Y. Sept. 30, 2024) (collecting cases) ("a claim
that those responsible for someone's care failed to monitor a suicide risk raises issues
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related to medical care, and most courts in the Second Circuit have analyzed such claims
under the framework of inadequate medical care"); Boyd v. Delasse, 23-CV-856, 2024
U.S. Dist. LEXIS 30963, at *29 n.3 (N.D .N.Y. Feb. 23, 2024) ("it makes no difference how
the Court analyzes these clai ms because 'deliberate indifference means the same thing '
for any Eighth Amendment claim based on alleged deliberate indifference to a serious
threat to health or safety"). Thus, plaintiff's allegations are viable as a single claim of
deliberate indifference to medical needs in violation of the Eighth Amendment.
Despite defendants' argument to the contrary, the Court concludes that plaintiff
has adequately plead a claim of deliberate indifference to the decedent's medical needs.
"To establish an Eighth Amendment claim arising out of inadequate medical care, a
prisoner must prove deliberate indifference to his serious med ical needs." Lombardo v.
Graham, 807 F. App 'x 120, 122 (2d Cir. 2020). To state a claim, a plaintiff must show
both that his medical need was serious, and that the defendants acted with a sufficiently
culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). To
satisfy the subjective prong of the deliberate indifference analysis, a plaintiff must show
that defendants caused the deprivation "with a state of mind that is the equivalent of
criminal recklessness." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). This
requires a showing that a prison official "knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference." Id.
Regarding mental health needs, "propensities to attempt suicide, harm oneself,
and/or exhibit severe depression or anxiety attacks have been viewed as sufficiently
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serious." See Powell v. City of Jamestown, 21 -CV-721, 2022 U.S. Dist. LEXIS 99749 , at
*47 (W. D.N .Y. June 3, 2022). "In the context of an inmate's risk of suicide, the subjective
prong of the deliberate-indifference standard requires 'a dual showing that the defendant:
(1) subjectively knew the prisoner was at substantial risk of committing suicide; and (2)
intentionally disregarded that risk."' McTerre/1 v. Koenigsmann, 18-CV-1028, 2021 U.S.
Dist. LEXIS 156334, at *20 (W.D.N.Y. Aug . 18, 2021) (citation omitted).
There is no question that the objective prong of a sufficiently serious medical need
has been plausibly alleged here. See Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir.
2000) ("A serious medical condition exists where 'the failure to treat a prisoner's condition
could result in further significant injury or the unnecessary and wanton infliction of pain ."').
It is a closer call as to whether the amended complaint plausibly alleges that any
defendant knew of and intentionally disregarded the risk that Mr. Alves would harm
himself. However, the Court finds the amended complaint to be minimally sufficient to
survive a motion to dismiss.
The amended complaint alleges that defendants "deliberately ignored multiple
warnings raised by various persons that decedent was in need of immediate medical
assistance." (Dkt. No. 17, il 118). More specifically, it alleges that Mr. Alves was assessed
in the emergency department at Erie County Medical Center for injuries related to self-
harm in January 2022, one month before his death, and that defendants Stirk, Buster,
Zaluski, and Desa knew about but failed to comply with the hospital's discharge orders
recommending further evaluation and one-to-one observation. (Id., ,I 171 ). The amended
complaint also alleges that following Mr. Alves's death the New York State Commission
of Corrections issued a report of investigation which found that "Alves['s] documented
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escalation of self-harm behaviors over the previous month should have prompted a
clinical review for possible inpatient admission to Central NY Psychiatric Center." (Id., ,m
94). The report also states that certain "prog ress notes" were inconsistent as to whether
Mr. Alves was assessed for lethality and suicide risk in the months prior to his death. (Id.).
From these allegations, the Court finds that the amended complaint includes a plausible
factual basis for a claim of deliberate indifference to Mr. Alves's serious medical needs.
However, plaintiff has failed to show that each of the named defendants was
individually involved in the alleged violations of the decedent's constitutional rights. It is
well settled that a "plaintiff asserting a 1983 claim against a supervisory official in his
individual capacity must show that the supervisor was personally involved in the alleged
constitutional deprivation." Saxon 	v. 	Attica Med. 	Dep't, 	468 	F. 	Supp. 2d 	480, 	482
(W.D.N .Y. 2007). As stated by the Second Circuit, "there is no special rule for supervisory
liability. Instead, 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) . An individual cannot be held liable for
damages under§ 1983 "merely because he held a high position of authority ." Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
The amended complaint does not sufficiently allege facts to demonstrate the
personal involvement of several high-level officials named as defendants in this case.
Plaintiff alleges that defendant Annucci, Acting Commissioner of DOCCS, was generally
aware of mental health issues of inmates within DOCCS including past suicide deaths,
and that he and other defendants received a letter from Mr. Alves' mother in December
2021 which warned of the heightened risk of suicide for Mr. Alves. (0kt. Nos. 17, ,m 6-9,
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53-55; 17-1 ). Similarly, plaintiff alleges that defendant Sullivan, Commissioner of NYS
OMH, was contacted by Mr. Alves' mother regarding her son's safety and that she spoke
with defendant Sullivan once approximately seven months prior to her son's death
expressing concern that her son was not receiving appropriate mental health treatment
or care. (Dkt. No. 17, ,m 11 ). However, these allegations do not provide a factual basis
for the personal involvement of defendants Annucci or Sullivan. As this Court explained
in 	reviewing the prior motion to dismiss, the mere receipt of a letter or grievance
containing allegations of a constitutional violation does not, without more, demonstrate
personal involvement for a§ 1983 claim. See Marcus v. City of Buffalo, 20-CV-316, 2023
U.S. Dist. LEXIS 139903, at *21 (W.D.N.Y. Aug. 10, 2023) ("Since Tangretiwas decided,
courts within the Second Circuit repeatedly have dismissed claims based on an asserted
notification to a supervisory official of an alleged wrong by way of a letter, grievance, or
appeal of a disciplinary action."); Hamilton v. Fischer, 12-CV-6449, 2013 U.S. Dist. LEXIS
100672, at *17 (W.D.N.Y. July 18, 2013) ("Numerous courts have held that merely
receiving 	a 	prisoner's 	letter 	of 	complaint 	does 	not 	provide 	personal 	involvement
necessary to maintain a§ 1983 claim."); Richardson v. Coughlin, 101 F. Supp. 2d 127,
132-33 (W.D.N.Y. 2000) ("Even assuming that [the superintendent] received plaintiff's
letter [about denial of medical care], yet took no action, plaintiff has still not established
[defendant's] personal involvement in the alleged constitutional deprivation.").
Plaintiff also 	alleges 	that 	defendant 	Sullivan 	was 	responsible 	for 	decisions
regarding Mr. Alves's mental health treatment. (Dkt. No. 17, ,r 51). This general allegation
of supervisory responsibility, without more, is insufficient to support liability for the alleged
constitutional violation. See Tangreti, 983 F.3 at 619 (explaining that a plaintiff must show
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the 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).
Plaintiff alleges that defendant Yehl, the Superintendent of Wende Correctional
Facility, was generally responsible for care and custody of inmates and supervision of
staff, and that he was provided reports about at least two suicide deaths at Wende prior
to the date of Mr. Alves's death but did not take action to prevent future inmate suicides .
(0kt. No. 17, im 86, 116, 156-65). Plaintiff alleges that defendant Maher, the Chief of
Investigations for DOCCS Office of Special Investigation, was informed of the suicide risk
for Mr. Alves but failed to act and failed to address properly issues related to Mr. Alves's
suicide following his death. (0kt. No. 17, ,r,r 22, 34, 53 - 55, 112, 156, 163, 170). Such
generalized and conclusory claims do not provide a factual basis for a finding that these
individuals were personally involved in the alleged constitutional violations .
Accordingly, the Court finds that plaintiff's amended complaint fails to demonstrate
the personal involvement of defendants Annucci, Sullivan, Yehl, or Maher in the alleged
constitutional deprivations.
To the extent the amended complaint asserts liability against these supervisory
officials 	based 	on 	creation 	or 	continuation 	of 	a 	policy 	or 	practice 	that 	allowed
unconstitutional deprivations to occur, plaintiff has not put forth facts to support such a
theory. Plaintiff's fifth cause of action, alleging that the defendants maintained customs,
policies, or practices that failed to protect the decedent, appears to be premised on liability
under Monell v. Dep't of Soc. Services, 436 U.S. 658 (1978). Plaintiff's seventh cause of
action, 	which 	alleges 	negligence 	in 	hiring, 	training, 	and 	supervision 	in 	a 	manner
constituting deliberate indifference, appears to be premised on liability under City of
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Canton v. Harris, 489 U.S. 378 (1989). As this Court previously explained in reviewing
plaintiff's initial complaint, a Monell claim against the state or state officials cannot survive
because municipal liability under Monell is limited "to local government units which are
not considered part of the State for Eleventh Amendment purposes ." Florence v. Seggos,
21 -834, 2022 U.S. App. LEXIS 15619, at *8 (2d Cir. 2022) (summary order) (citing Monell,
436 U.S. at 690 n.54)). A plaintiff cannot maintain a Monell claim against the state or
entities of the state because the Eleventh Amendment protects same from suit. See
Strasser v. New York, 10-CV-141, 2012 U.S. Dist. LEXIS 11802, at *11 (N.D.N.Y. Jan.
26, 2012) ("Monell dealt with claims against local municipalities not covered by the
Eleventh Amendment, as distinct from a state and its agencies" and thus provides no
basis for a plaintiff to assert claims against a state or its entities). The same is true under
Harris. 2
Plaintiff acknowledges this limitation and contends that she is not relying on Monell
or Harris theories and is instead asserting claims against the defendants in their individual
capacities based on "supervisory liability" as laid out in Colon v. Coughlin, 58 F.3d 865
(2d Cir. 1995). 3 She alleges that the supervisory defendants were aware of past suicides
and mental health treatment problems within the facilities but failed to act appropriately
2 In Harris, the Supreme Court held that "inadequacy of police training may serve as the basis for§ 1983
liability only where the failure to train amounts to deliberate indifference to the rights of persons with
whom the po lice come into contact. " 489 U. S. at 388. Like Monell, liability under Harris is limited to local
municipalities. See id., at 389 ("Only where a failure to train reflects a 'del iberate' or 'conscious' choice by
a municipality -- a 'policy' as defined by our prior cases -- can a city be liable for such a failure under§
1983") (emphasis added) .
3 Under Colon, the personal involvement of a supervisory defendant may be shown by evidence that: (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 such 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 rights of inmates by fa iling to
act on information indicating that unconstitutional acts were occurring . Id., 58 F.3 at 873 .
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to address the risks associated with serious mental health crises among inmates. She
also alleges that these defendants oversaw supervision of other Wende employees and
subordinates who committed the alleged constitutional violations. Plaintiff's reliance on
the supervisory liability factors set forth in Colon v. Coughlin is unpersuasive. Following
the Second Circuit's decision in Tangreti v. Bachmann, the Colon test is no longer
recognized as good law. See White v. Gutwein, 20-CV-4532, 2022 U.S. Dist. LEXIS
134545, at *33 (S.D.N.Y. July 28, 2022); Reid v. City of New York, 20-CV-644, 2021 U.S.
Dist. LEXIS 148343, at *20 n.6 (S.D.N.Y. Aug. 6, 2021) ("In Tangreti, the Second Circuit
overturned its decision in Colon v. Coughlin, [ ... ] which had set forth five categories of
evidence that may establish the liability of a supervisory official for a subordinate's
conduct under§ 1983."). Instead, "[t]he focus is on what the supervisor did or caused to
be done, the resulting injury attributable to his conduct, and the mens rea required of him
to be held liable, which can be no less than the mens rea required of anyone else."
Tangreti, 983 F.3d at 618 . A complaint must allege facts showing personal involvement
through the "active conduct" of a supervisory official. See Flannery v. County of Niagara,
763 F. Supp. 3d 383, 401 (W.D.N.Y. 2024), adopted by 763 F. Supp . 3d 381 (W.D.N.Y.
2025). Plaintiff has not done so here.
Nonetheless, plaintiff has adequately alleged facts which support the personal
involvement of defendants Stirk, 	Buster, 	Desa, 	and 	Zaluski. 	Defendant Stirk, 	OMH
Forensic Unit Chief in the Mental Health Unit at Wende Correctional Facility, is alleged to
have participated in and had knowledge of Mr. Alves's treatment, including making direct
decisions about his care and supervision. (Dkt. No. 17, ,m 51, 102-03, 114, 171-72)
Defendant Buster, a corrections officer, is alleged to have been responsible for Mr.
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Alves's care by making decisions about his placement in the mental health observation
unit and failing to maintain observation of Mr. Alves in the days before his death. (Id.).
Defendant Desa , a physician at Wende, is alleged to have been responsible for Mr.
Alves's medical care and to have failed to place him on constant observation or follow the
discharge requests of ECMC regarding additional care. (Id.). Lastly, defendant Zaluski , a
mental health counselor at Wende , is alleged to have provided direct medical care and
supervision to Mr. Alves and failed to take action despite warnings of the elevated risk.
(Id.). These factually specific allegations of active conduct and personal involvement are
sufficient under § 1983.
In sum, the Court concludes that plaintiff's amended complaint has plausibly
alleged a § 1983 claim of deliberate indifference to serious medical needs in violation of
the Eighth Amendment against defendants Stirk, Buster, Desa , and Zaluski. However,
the Court finds that plaintiff's fifth, sixth, and seventh causes of action are duplicative of
her § 1983 deliberate indifference claim, 	or are otherwise inviable, 	and 	should 	be
dismissed. The Court further concludes that all§ 1983 claims alleged against defendants
Annucci, Sullivan, Yehl, and Maher are insufficiently plead and should be dismissed.
State Law Claims
Defendants next argue that plaintiff's state law claims of medical malpractice,
negligence, and wrongful death against defendants Sullivan, Stirk, and Desa must be
dismissed .4 The Court disagrees.
4 Sullivan, Stirk, and Desa are the only defendants named on plaintiff's state law claims. The remaining
defendants are DOCCS employees answerable to suit on state law claims only in the New York Court of
Claims pursuant to N.Y. Corrections Law§ 24. (See Dkt. No . 14, pgs. 7-10).
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First, 	defendants 	submit 	that 	plaintiff 	has 	not 	complied 	with 	New 	York's
requirement to provide a certificate of merit for this medical malpractice action. See N.Y.
CPLR § 3012-a(a)(1) - (3). 5 Defendants argue that plaintiff's medical malpractice claim
should be dismissed or, in the alternative, plaintiff should be directed to comply with CPLR
§ 3012 within 30 days. See Colon v. N. Y. State OOCCS, 15-CV-7432, 2019 U.S. Dist.
LEXIS 180653, at *17-18 (S.D.N.Y. Oct. 17, 2019) ("a number of district courts in this
Circuit have held that '[a] state statute requiring a certificate of merit-such as N.Y.
C.P.L.R. § 3012-a(a)-is substantive law that applies in a federal diversity action."').
Counsel for plaintiff does not dispute her obligation under§ 3012-a(a) and states she will
immediately provide such a certificate to defendants. In the event the recommendations
contained herein are adopted by the District Court, plaintiff is hereby directed to comply
with the requirements of CPLR § 3012-a within 30 days.
Defendants also argue that the elements of a medical malpractice claim have not
been adequately alleged. A medical malpractice claim in New York requires a showing
that there was "(1) a deprivation or departure from accepted medical practice, and (2)
evidence that such departure was a proximate cause of injury." Ongley v. St. Lukes
Roosevelt Hosp. Ctr., 725 Fed. Appx. 44, 46 (2d Cir. 2018). Here, despite defendants'
arguments, 	plaintiff 	has 	alleged 	that 	Mr. 	Alves's 	mental 	health 	care 	was 	grossly
5 The statute requires that "[i]n any action for medical[ .. . ] malpractice, the complaint shall be
accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has
reviewed the facts of the case and has consulted with at least one physician [ ... ] who is licensed to
practice in this state or any other state and who the attorney reasonably believes is knowledgeable in the
relevant issues involved in the particular action, and that the attorney has concluded on the basis of such
review and consultation that there is a reasonable basis for the commencement of such action [ . .. ]."N.Y.
CPLR § 3012-a(a)(1) .
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insufficient and that it caused his death. (Dkt. No. 17, ~m 129-130). This allegation is
minimally sufficient at the pleading stage.
Defendants argue that plaintiff's negligence claim against defendants Sullivan,
Stirk, and Desa is duplicative of her medical malpractice claim. They submit that courts
generally differentiate between medical malpractice and ordinary negligence based on
whether the conduct can be assessed on the basis of common everyday experience, or
instead, whether it requires special skills not possessed by ordinary lay persons. See
Miller v. Albany Med. Ctr. Hosp., 464 N.Y.S.2d 297, 298-99 (3d Dept. 1983). However,
"there is no prohibition against simultaneously pleading both an ordinary negligence
cause of action and one sounding in medical malpractice." lngutti v. Rochester Gen.
Hosp., 145 A.D.3d 1423, 1424 (4th Dept. 2016). Indeed, "an action for personal injuries
may be maintained, in the proper case, on the dual theories of medical malpractice or
simple negligence where a person is under the care and control of a medical practitioner
or a medical facility." Id. Here, plaintiff's negligence claim is based on the alleged failure
of the named defendants to implement policies and maintain constant observation in a
manner that would have prevented Mr. Alves's death, rather than alleged failings in
defendants' 	medical 	or 	treatment 	decisions. 	Similar 	allegations 	have 	supported
negligence claims. See Huntley v. State, 62 N.Y.2d 134, 137 (1984) (upholding common
law negligence award for plaintiff where defendant failed in its duty to supervise a suicidal
psychiatric patient). 	Thus, 	the 	Court finds 	it appropriate to 	allow plaintiff's medical
malpractice and negligence claims to move forward to discovery.
Defendants 	next 	argue 	that 	plaintiff's 	wrongful 	death 	claim 	cannot 	proceed
because plaintiff has not alleged plausible pecuniary losses related to Mr. Alves's death.
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The necessary elements of a cause of action to recover damages for wrongful death are:
"(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant
by which the decedent's death was caused, (3) the survival of distributees who suffered
pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal
representative of the decedent." Chong v. N. Y.C. Transit Auth., 83 A.D.2d 546 (2nd Dept.
1981 ). To defendants' point, Mr. Alves was incarcerated on a life sentence and was
without present or future earning capacity to support his heirs or distributees. He also did
not have medical expenses as he was in the care and custody of DOCCS at the time of
his death. However, the amended complaint alleges that Mr. Alves's heirs incurred funeral
and burial expenses as a result of his death, which constitute a pecuniary loss. (Dkt. No.
17, ~ 152). Thus, plaintiff has adequately alleged the elements of a wrongful death claim
and the Court finds no basis for dismissal.
Lastly, defendants assert that plaintiff's state law claims are barred by sovereign
immunity because a state actor sued in his or her official capacity is deemed a suit against
the state and the official 	is entitled to 	invoke Eleventh Amendment immunity. The
amended complaint explicitly states that these claims are made against defendants
Sullivan, 	Stirk, 	and 	Desa 	in 	their 	individual, 	not 	official, 	capacities. 	Despite 	this,
defendants assert that plaintiff's averments that defendants were acting in furtherance of
their duties as officers, agents, or employees of OMH amounts to an admission that they
are being sued in their official capacity. The Court rejects defendants' argument, as claims
against state actors in their individual capacities, even though they are acting under color
of law, are not barred by sovereign immunity. See Farid v. Smith, 850 F.2d 917, 921 (2d
Cir. 1988) (explaining that the Eleventh Amendment protects prison officials from suits for
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damages in their official capacity but not in their individual or personal capacity). In fact,
in reviewing plaintiff's initial complaint, this Court expressly found that plaintiff's individual
capacity claims could proceed. (Dkt. No. 14, pg. 11) ("Plaintiff's claims against state
actors in their individual capacities are not barred by sovereign immunity.").
In 	sum, 	the 	Court concludes that plaintiff's 	state 	law claims 	should 	not be
dismissed.
CONCLUSION
For the foregoing reasons, it is recommended that defendants' motion to dismiss
plaintiff's amended complaint (Dkt. No. 23) be granted in part and denied in part as
discussed herein.
Further, it is hereby ORDERED that, in the event this Report and Recommendation
is adopted by the District Court, plaintiff shall comply with the requirements of N.Y. CPLR
§ 3012-a, with regard to her medical malpractice claim, within 30 days of the issuance of
the District Court's decision and order.
Pursuant to 28 U.S.C. §636(b)(1 ), it is hereby ORDERED that this Report and
Recommendation be filed with the Clerk of Court.
Unless otherwise ordered by Judge Sinatra, any objections to this Report and
Recommendation must be filed with the Clerk of Court within fourteen days of service of
this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a),
and 6(d) of the Federal Rules of Civil Procedure, and Local Rule of Civil Procedure 72.
Any requests for an extension of this deadline must be made to Judge Sinatra.
Failure to file objections, or to request an extension of time to file objections,
within fourteen days of service of this Report and Recommendation WAIVES THE
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RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. 	See Small v. Sec'y of Health
& Human Servs., 892 F .2d 15 (2d Cir. 1989).
The District Court will ordinarily refuse to consider de nova arguments, case law
and/or evidentiary material which could have been, 	but were not, 	presented to the
Magistrate Judge in the first instance. See Paterson-Leitch Co . v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985 , 990-91 (1st Cir. 1988).
Pursuant 	to 	Local 	Rule 	of 	Civil 	Procedure 	72(b), 	written 	objections 	"shall
specifically identify the portions of the proposed findings and recommendations to which
objection is made and the basis for each objection, and shall be supported by legal
authority. " Failure to comply with these provisions may result in the District Court's
refusal to consider the objection.
Dated:
SO ORDERED.
December 16, 2025
Buffalo, New York
4 ~ 	~	-Q~MICHAEL J. ROE 	ER 	~
United States Magistrate Judge
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