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

OCR transcription for search; preserved printed pages are authoritative

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed sue Cee _ ale 1 of 22
STATES Oe DIS tr UCT

SLED
MAR 12 2025 os )

A;
Ee
pon. LOEWENG SE wees
STERAY | DHS TR 1c

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CINDY ALVES, as Administratrix of the
Estate of CECIL ALVES, Deceased, 1:24-CV-425-JLS-MJR

Plaintiff, REPORT and RECOMMENDATION

NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION, et ai,

Defendants.

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 brought by
defendants pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. (Dkt. No. 2). For the following reasons, it is recommended that defendants’
motion to dismiss be granted with leave for plaintiff to replead certain claims, as discussed
below.

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 several state and federal causes of action against the New York

State Department of Corrections and Community Supervision (“DOCCS’), the New York

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 2 of 22

State Office of Mental Health (“OMH”), and several officers or employees of those
agencies.’ (Dkt. No. 1-2).

The 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. § 1983 (against all
defendants); (2) medical malpractice (against DOCCS, OMH, Sullivan, Stirk, Zaluski, and
Desa); (3) negligence (against all defendants); (4) wrongful death (against Annucci,
Sullivan, Yehl, Stirk, Buster, Maher, Zaluski, Desa, and John and Jane Does); (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);2 (6) cruel and unusual
punishment in violation of plaintiff's decedent’s Eighth Amendment rights, actionable
under 42 U.S.C. § 1983; and (7) negligence in hiring, training, and supervision constituting
deliberate indifference in violation of plaintiffs decedent's Fourteenth Amendment,
actionable under 42 U.S.C. § 1983. (/d.). Plaintiffs complaint seeks damages and
reasonable attorney fees and costs. (/d.).

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).

1 The individual defendants named in the action are (1) Anthony J. Annucci, Acting 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; and (9) John and Jane Does 1-5, who are Wende Correctional Officers. (Dkt. No. 1-2, 1]
5-15). Each defendant is named in his or her individual and official capacities. (/d.).

? Although not explicitly plead at such, the Court construes this claim as being brought pursuant to Monell
v. Dep’t of Soc. Services, 436 U.S. 658 (1978).

-2-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 3 of 22

On May 5, 2024, defendants moved to dismiss plaintiffs complaint. (Dkt. No. 2).
Plaintiff filed a response in opposition to the motion. (Dkt. No. 7). Defendants filed a reply.
(Dkt. No. 8). The Court heard oral argument on August 14, 2024. The Court requested
additional briefing on several issues. Defendants filed a supplemental memorandum,
(Dkt. No. 12), and plaintiff filed a supplemental response (Dkt. No. 13). At the conclusion
of briefing, the Court considered the matter submitted for decision.

BACKGROUND

Plaintiffs brother, Cecil Alves, died by suicide on February 23, 2022, while
incarcerated at Wende Correctional Facility. (Dkt. No. 1-2, J 31).° Plaintiff alleges 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. (/d., TJ
34-49).

At the time of his death, Mr. Alves was 43 years old. (/d., | 33). Mr. Alves came
into DOCCS custody on or about January 21, 2000, following a criminal conviction and
sentence of life imprisonment at the age of 20. (/d., J] 33, 54). During his incarceration,
Mr. Alves suffered “mental health deficiencies” which included an elevated risk of suicide.
(/d., | 34). Mr. Alves underwent mental health screenings and evaluations during his
incarceration which indicated that he had chronic mental health issues and previous
suicide attempt(s). (/d., {| 55-56). Mr. Alves also experienced “a cascade of stressful,

distressing events that further escalated his risk for suicide in the weeks leading up to his

3 The facts in this section are taken from plaintiff's complaint (Dkt. No. 1-2) and are assumed to be true for
purposes of this motion.

-3-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 4of 22

death, including recent grievances that had not been satisfactorily tended to” and time
spent in both solitary confinement and the mental health ward. (/d., [I] 35-36).

Plaintiff alleges that defendants “failed to properly assess and address the
escalating mental health crises suffered by Mr. Alves immediately prior to his final suicide
attempt.” (/d., J] 80). Plaintiff alleges that Mr. Alves was to be under “constant supervision,”
requiring that a deputy or staff member maintain “uninterrupted visual observation” and
direct supervision of Mr. Alves. (/d., {| 72). Plaintiff alleges that defendant Zaluski and
other unnamed Wende Corrections Officers “were to be stationed outside and near
Plaintiff decedent's cell, to conduct supervision of decedent, and failed in their duties on
the date of Mr. Alves’s death [...].” (/d., J 73).

In the months preceding Mr. Alves’s death, his family members warned the
individual defendants about the deterioration of Mr. Alves’s mental health, his risk of
suicide, and the inadequate mental health and medical care he was receiving. (/d., J] 40-
41). On an unspecified date, plaintiff sent a letter to defendants Stirk and Desa concerning
Mr. Alves’s serious mental health issues and the need to “prevent another suicide
attempt.” (/d., | 43). On December 3, 2021, Mr. Alves’s mother, Rupiya Seepersad, sent
a letter to the Inmate Grievance Program Supervisor, with copies sent to the Acting
Superintendent of Wende Correctional Facility, defendants Annucci, Maher, Zaluski, and
Desa, in which she complained about the handling of a grievance her son made regarding
harassment by prison officers.* (/d., | 42-44; pgs. 32-33). Ms. Seepersad felt that the

“lack of interest” in her son’s grievances “made him more susceptible to self-harm.” (/d.).

4 More specifically, Ms. Seepersad objected to the handling of her son’s recent grievance regarding
harassment by Corrections Officer Baker, who allegedly “aimed mace (s)pray” at Mr. Alves’s face. (Dkt.
No. 1-2, pgs. 32-33). It is noted that the Corrections Officer Baker is not named as a defendant in this
action.

-4-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page5of 22

Her letter states, “My son is hearing impaired [and] cannot read or write. He has a history
of anxiety/depression as well as suicidal attempts. If this harassment continues by your
prison officers, it can end in a fatal tragedy for my son.” (/d.).

Plaintiff further alleges that DOCCS and OMH failed to implement improvements
to policies and procedures at Wende Correctional Facility following the suicide deaths,
and resulting investigations, of several other inmates in the decade prior to Mr. Alves’
death. (/d., J] 62-67). The New York State Commission of Correction Medical Review
Board issued reports of investigations into the deaths by suicide of at least nine individuals
incarcerated at Wende. (/d., [] 62, 63). On October 1, 2021, the Office of the New York
State Attorney General issued a First Report Pursuant to Executive Law Section 70-b by
its Office of Special Investigations, addressing the deaths of individuals in police custody,
including inmates. (/d., {| 64). Plaintiff alleges that from those reports defendants were
informed of violations of prison safeguards which resulted in inmate suicide deaths prior
to the death of Mr. Alves but failed to remedy the wrongful practices. (/d., | 65-69).

DISCUSSION

Defendants move for dismissal of plaintiffs 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.
(Dkt. No. 2-1). More specifically, defendants argue that plaintiffs state common law
claims for medical malpractice, negligence, and wrongful death, are barred by New York
Corrections Law § 24. They further argue that plaintiffs claims against DOCCS, OMH,
and the individual defendants in their official capacities are barred by the Eleventh

Amendment. Defendants also argue that plaintiffs state law claims which would remain

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 6 of 22

against OMH and its defendant employees are insufficiently plead. Lastly, defendants
argue that plaintiffs § 1983 claims against defendants in their individual capacities are
insufficiently plead.

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. /d. 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 plaintiffs 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 alia, “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

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 7 of 22

pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true all
factual allegations and draw all reasonable inferences from those allegations in favor of
the plaintiff. ATS/ Comme’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,” Bell Atl. 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 “[dJetermining 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 Atl. Corp., 550 U.S. at 679.

Application

1. New York Corrections Law § 24

Defendants seek dismissal of plaintiffs New York common law claims against
defendants Annucci, Yehl, Zaluski, Buster, and Maher, who were allegedly employees of
DOCCS at the relevant times, on the grounds that these claims are barred by New York

Corrections Law § 24 and the Court therefore lacks jurisdiction to hear them.

5 Defendants acknowledge that plaintiff's state law claims against defendants who are alleged to be OMH
employees (namely, defendants Sullivan, Stirk, and Desa) are not subject to Corrections Law § 24. See
McDay v. Eckert, 20-CV-233, 2021 U.S. Dist. LEXIS 130717, at *13-14 (W.D.N.Y. June 25, 2021)

' (explaining that Corrections Law § 24 does not shield non-DOCCS personnel, including employees of the
OMH, from liability).

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 8 of 22

New York Corrections Law § 24 provides:

No civil action shall be brought in any court of the state, except by the

attorney general on behalf of the state, against any officer or employee

of the department, which for purposes of this section shall include

members of the state board of parole, in his or her personal capacity,

for damages arising out of any act done or the failure to perform any

act within the scope of the employment and in the discharge of the

duties by such officer or employee.
N.Y. Correct. Law § 24(1). Section 24 provides immunity for DOCCS employees “from
lawsuits based on acts or omissions within the course of their employment, and requires
that such actions be brought in the New York Court of Claims as a claim against the state.”
Parris v. N.Y. State Dep’t Corr. Serv., 947 F. Supp. 2d 354, 365 (N.D.N.Y 2013). Section
24 does not bar § 1983 claims against DOCCS employees, but it does mandate that state
law claims for damages for acts or omissions committed by DOCCS employees within
the scope of their employment be brought exclusively in the New York Court of Claims.
See Flint v. Jun, 541 F. Supp. 3d 284, 288 (W.D.N.Y. 2021).

The test to determine “whether the defendants’ actions fall within the scope of their
employment is whether the act was done while the servant was doing his master's work
no matter how irregularly, or with what disregard of instructions.” /erardi v. Sisco, 119 F.3d
183, 187 (2d Cir. 1997). Generally, New York law only requires that a defendant's
employee’s conduct be foreseeable within the scope of the employee’s duties. See
Roberts v. Lapp, 02-CV-746, 2005 U.S Dist. LEXIS 48678, at *20 (W.D.N.Y. Mar. 9,
2005). “That is, if a defendant's act is generally foreseeable, that act is considered to be

within the scope of employment, even if the employee’s act constitutes an intentional tort.”

Id.

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 9 of 22

Here, defendants Annucci, Yehl, Buster, and Maher plainly are alleged to have
been employed by DOCCS during the relevant time. Plaintiffs claims against them arise
from acts that took place at the correctional facility and were undertaken in the scope of
their employment. Accordingly, dismissal of plaintiffs causes of action for medical
malpractice, negligence, and wrongful death asserted against these DOCCS employees
is appropriate. See McFadden v. Heller, 22-CV-753, ECF 3, pgs. 23-25 (W.D.N.Y. Sept.
21, 2023) (applying Corrections Law § 24 to find that court lacked subject matter
jurisdiction over inmate’s state law assault and battery claims arising from acts within the
scope of defendant’s employment); Cruz v. New York, 24 F. Supp. 3d 299, 309-311
(W.D.N.Y. 2014) (applying Corrections Law § 24 and dismissing Plaintiffs state law
assault, battery, and negligent supervision claims against various DOCCS employees).

Defendants submit that defendant Zaluski was also an employee of DOCCS
against whom plaintiffs state claims must be dismissed. However, Zaluski’s employer is
not clearly plead in the complaint. Plaintiff alleges only that “Defendant Christopher
Zaluski was a counselor assigned to Wende.” (Dkt. No. 1-2, ] 13). Thus, there is
ambiguity as to whether Zaluski was employed by DOCCS, OMH, or another entity.
Because employees of OMH are not subject to Corrections Law § 24, the Court finds it
premature to recommend dismissal of the state law claims against defendant Zaluski at

this time.®

8 Because the Court later recommends dismissal of plaintiff's state law claims on the grounds of
insufficient pleading, the effect of this finding is limited. In the event that plaintiff files an amended
complaint which corrects the deficiencies in her malpractice, negligence, or wrongful death claims against
defendant Zaluski, and if discovery reflects that Zaluski was a DOCCS employee, defendants may file an
appropriate motion for his dismissal based on Corrections Law § 24. See McDay, 2021 U.S. Dist. LEXIS
130717, at *14 (allowing plaintiff to conduct discovery to determine whether certain defendants were
employed by OMH or DOCCS).

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 10 of 22

In opposition, plaintiff argues that she would be able to pursue these claims if it
was determined that defendants’ conduct fell outside their scope of employment.
However, plaintiff has not alleged any conduct that was undertaken by defendants without
a work-related purpose. Plaintiffs complaint speaks only of defendants’ duties to maintain
the correctional facility and protect inmates from risks of harm, which are duties
inarguably within the scope of employment. Indeed, during oral argument, counsel for
plaintiff conceded that her state law claims against the DOCCS employees cannot
proceed.

Thus, it is recommended plaintiff's state law claims against defendants Annucci,

Yehl, Buster, and Maher be dismissed.

2. Sovereign Immunity

Defendants move to dismiss all state and federal claims against DOCCS and
OMH, as well as all claims against defendants in their official capacities, on the grounds
that they are barred by sovereign immunity under the Eleventh Amendment.

The Eleventh Amendment, “with few exceptions, bars federal courts from
entertaining suits brought by a private party against a state in its own name.” Ying Jing
Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993); see Baez v. New York, 56 F.
Supp. 3d 456, 464 (S.D.N.Y. 2014) (“The Eleventh Amendment bars suits against a state
brought by a private citizen in federal court unless the state consents, or Congress has
abrogated the state's sovereign immunity with regard to the specific claim at issue.”). In
enacting Section 1983, Congress did not abrogate the states’ sovereign immunity. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). Nor has the State of New York

consented to be sued in federal court for damages stemming from alleged constitutional

-10-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 11 of 22

violations. See Jones v. N.Y. State Metro Developmental Disabilities Servs. Office, 543
Fed. Appx. 20, 22 (2d. Cir. 2004) (summary order); see also Leiman v. New York, 98-CV-
5538, 2000 U.S. Dist. LEXIS 13586, at *19 (S.D.N.Y. Sept. 20, 2000) (“Eleventh
Amendment immunity applies to claims under state law, as well as to claims arising under
federal law, in the absence of a state statute explicitly waiving the state's immunity to suit
in federal court.”). Additionally, to the extent that a state official is sued for damages in his
official capacity, such a suit is deemed to be a suit against the state, and the official is
entitled to invoke the Eleventh Amendment immunity belonging to the state. See Ying
Jing Gan, 996 F.2d at 529.

Here, the Department of Corrections and Community Supervision and the Office
of Mental Health, as agencies of the State of New York, have immunity against plaintiff's
claims. See Posr v. Court Officer Shield #207, 180 F.3d 409, 414 (2d Cir. 1999) (“An
Official arm of a state enjoys the same Eleventh Amendment immunity from suit in federal
court as is enjoyed by the state itself.”). All claims against the individual defendants in
their official capacities are also barred by sovereign immunity.’ Plaintiff's claims against
the state actors in their individual capacities are not barred by sovereign immunity.

Thus, it is recommended that plaintiffs claims for damages against DOCCS, OMH,
and each defendant in his or her official capacity be dismissed.

3. Insufficient Pleading of State Law Claims

Defendants next argue that plaintiffs state law claims of medical malpractice,
negligence, and wrongful death against DOCCS, OMH, and their employees, which are

not otherwise barred by Corrections Law § 24 or the Eleventh Amendment, should be

7 Indeed, plaintiff concedes these points in response to defendants’ motion. (Dkt. No. 7-2, pgs. 10-11).

-11-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 12 of 22

dismissed as insufficiently plead under Rule 8 of the Federal Rules of Civil Procedure.
Defendants argue that the complaint fails to allege specific facts and instead relies on
group pleadings and conclusory statements. They assert that plaintiff improperly “lumps
together” all defendants and provides no factual basis to distinguish the conduct of one

defendant from another. (Dkt. No. 2-1, pgs. 13-14).

To survive a motion to dismiss, a complaint must contain sufficient factual matter
to state a claim to relief that is plausible on its face. See /qbal, 556 U.S. at 678. Mere
conclusory allegations do not provide an adequate basis for the assertion of a claim. See,
e.g., Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620,
623 (2d Cir. 1972). Rule 8 “requires, at a minimum, that a complaint give each defendant
fair notice of what the plaintiffs claim is and the ground upon which it rests.” Atuahene v.
City of Hartford, 10 Fed. Appx. 33, 34 (2d Cir. 2001) (summary order). “In order to comply
with Rule 8, [a] complaint should offer specification as to the particular activities by any
particular defendant.” Harris v. NYU Langone Med. Ctr., 12-CV-0454, 2013 U.S. Dist.
LEXIS 99328, at *26 (S.D.N.Y. July 9, 2013) (citations and internal quotations omitted).
“Rule 8(a) also requires that a complaint against multiple defendants indicate clearly the
defendants against whom relief is sought and the basis upon which the relief is sought

against the particular defendants.” /d.

Applying these standards, the Court finds that plaintiffs complaint is deficient. It
fails to provide factual allegations specific to the conduct of any individual defendant
relative to any of the state law causes of action. Plaintiffs claims are conclusory and
improperly grouped. For example, plaintiffs claim of medical malpractice alleges that

“Defendants DOCCS, OMH, Sullivan, Stirk, Zaluski, and Desa” all failed to monitor Mr.

-12-

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 13 of 22

Alves’s condition or refer him to a hospital or higher level of care. (Dkt. No. 1-2, Jf] 94-
96). Plaintiff's medical malpractice claim similarly alleges that, as a result of “Defendants
Annucci, Sullivan, Yehl, Stirk, Burster, Maher, Zaluski, and Desa’s negligent training,
supervision, and retention of its employees,” Mr. Alves was not provided heightened
medical care or adequately supervised. (/d., Jf] 101-03). Such generalized and conclusory
allegations are inadequate and do not give defendants fair notice of the nature of each

claim against them.

Plaintiff argues that “[nJothing in Rule 8 prohibits collectively referring to multiple
defendants where the complaint alerts defendants that identical claims are asserted
against each defendant.” See Smith v. Arrowood, 21-CV-6318, 2022 U.S. Dist. LEXIS
157368, at *12 (W.D.N.Y. Aug. 31, 2022) (citation omitted). However, plaintiffs reliance
on Smith and upon Powell v. City of Jamestown to defend such “group pleading” is
unpersuasive. See 21-CV-721, 2022 U.S. Dist. LEXIS 99749, at *14-15 (W.D.N.Y. June
3, 2022). In Powell, the court acknowledged that “group pleading” may be used in a
situation involving an alleged assault by a group of police officers. /d. The court explained
that in such an instance of excessive force, it would be unreasonable to insist that the
complaint set forth the detailed actions of each officer. Id. Analogous circumstances are
not present here, and plaintiffs failure to specify the alleged actions of individual

defendants which caused harm to Mr. Alves is grounds for dismissal.

Thus, it is recommended that plaintiffs remaining state law claims be dismissed

for failure to state to claim.

-13-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 14 of 22

4. Lack of Personal Involvement in Section 1983 Claims

Next, defendants argue that plaintiff's federal claims should be dismissed because
she has failed to plausibly allege the personal involvement of any individual defendant in

these claims. The Court agrees.

“It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Farrell
v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). Further, 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).

Plaintiffs first cause of action for deliberate indifference to Mr. Alves’s medical
needs alleges that all defendants “by and through its subordinates and/or physician and
other staff failed to ensure the supervision of Plaintiff's decedent, Cecil Alves, resulting in
his death,” thereby violating decedent’s Fourteenth Amendment right to adequate medical
care. (Dkt. No. 1-2, 87). Plaintiff claims that all defendants were either responsible for
establishing medical care policies or provided training and supervision to subordinates,
and that their action or inaction deprived Mr. Alves of adequate medical care or treatment.

(Id., [9] 86-87).

-14-

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 15 of 22

Plaintiff has failed to allege that any defendant took any specific action which led
to plaintiff's suicide or adversely affected his medical care. While plaintiff alleges that Mr.
Alves’s mother wrote a letter to the Inmate Grievance Program, such an allegation alone
does not establish any defendant supervisor's personal involvement in the alleged
deprivation of rights. Indeed, courts have held that 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 Hamilton v. Fischer, 12-CV-6449, 2013
U.S. Dist. LEXIS 1000672, 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 plaintiffs 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's fifth cause of action alleges that all defendants “maintained a policy,
custom, or practice or deliberate indifference to the hiring, supervision, or discipline of its
employees knowing that those employees would come into contact with inmates suffering
from mental health challenges, like [Mr. Alves].” (Dkt. No. 1-2, ] 113). This claim also
lacks specific allegations about actions taken or not taken by any individual defendant
related to the alleged constitutional deprivation. The complaint includes only conclusory

allegations and generalized statements about the alleged violation.

Plaintiffs sixth cause of action alleges that defendants punished Mr. Alves and

denied him medical care in a manner which constituted cruel and unusual punishment in

-15-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 16 of 22

violation of the Eighth Amendment. The complaint alleges that Mr. Alves and his mother
“persistently complained to Defendants DOCCS, OMH, Annucci, Sullivan, Yehl, Stirk,
Buster, Maher, Zaluski, Desa, and Wende Correction Officers John and Jane Does 1-5
over harassing behaviors exhibited by correctional personnel, and lack of appropriate
attention Mr. Alves required considering his physiological and medical needs.” (/d., J
120). Again, the claim fails to provide specific factual allegations about any defendant's
individual actions or personal involvement and contains only generalized and conclusory

allegations of a constitutional violation.

Plaintiffs seventh cause of action alleges that defendants were negligent in hiring,
training, and supervision to a level constituting deliberate indifference under the
Fourteenth Amendment. Plaintiff states that the deficiencies of all defendants “in hiring,
training and adequately supervising their employees [were] highly likely to inflict the
particular injury suffered by the Plaintiff.” (/d., | 126). She further alleges that all
defendants “maintained policies and practices insufficient to mitigate the serious risk to
the safety and security [of] inmates during serious mental health concerns.” (/d., | 130).
Again, plaintiff fails to make specific factual allegations about individual actions or

involvement and includes only conclusory allegations of a constitutional violation.

Moreover, in each of these § 1983 claims, plaintiff asserts the same allegations
against all defendants. In other words, plaintiff claims that the Acting Commissioner of
DOCCS and the Commissioner of OMH committed the exact same unlawful acts as did
corrections officers, a medical doctor, and a counselor. Plaintiff also fails to allege any
specific dates on which relevant conduct occurred, stating only that the acts occurred

sometime during the 22-year span of Mr. Alves’s incarceration.

-16-

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 17 of 22

Plaintiff argues that each defendant personally knew of and disregarded an
excessive risk to Mr. Alves’s health and safety. She claims that defendants were
“informed directly” by Mr. Alves’s family of his deteriorating mental state but failed to take
appropriate actions. However, the only allegations made in the complaint which are not
generalized allege that defendants Sullivan, Stirk, Desa, and Zaluski were responsible for
providing Mr. Alves with mental health care, (/d., § 17), and that defendants Zaluski and
John and Jane Does 1-5 were to be stationed outside and near Mr. Alves’ cell to conduct
supervision of decedent but failed in their duties on the date of his death. (/d., 73). From
these facts, plaintiff may be able to allege one or more plausible claims for relief. However,
these minimal allegations are not tied to any specific cause of action and are insufficient

as plead.

5. Failure to State a Claim on Section 1983 Claims

Defendants next argue that the allegation that defendants did not comply with New
York law or regulations fails to state a constitutional violation actionable under § 1983.
The complaint asserts that defendants failed to adhere to the inmate monitoring
requirements contained in Title 9 of the New York Code of Rules and Regulations, Part
7003, which allegedly required increased supervision and monitoring of Mr. Alves based
on his “various mental health assessments made upon intake related to suicide and

mental deficit issues.” (Dkt. No. 1-2, J] 74-76).

State statutes do not create federally protected entitlements to state-mandated
procedures. See Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003) (‘“[e]levating a
state-mandated procedure to the status of a constitutionally protected liberty or property

interest, would make process an end in itself rather than a requirement whose

-17-

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 18 of 22

constitutional purpose is to protect a substantive interest in which the individual has a
claim of entitlement.”). Thus, plaintiff's allegation that defendants failed to follow the
specified state regulations or interpretive guidance does not support her constitutional

claims.®

The Court also finds that plaintiff has failed to plausibly allege any facts which
would meet the standard of deliberate indifference to medical needs under the Eighth
Amendment. “To establish an Eighth Amendment claim arising out of inadequate medical
care, a prisoner must prove deliberate indifference to his serious medical needs.”
Lombardo v. Graham, 807 Fed. Appx. 120, 122 (2d Cir. 2020) (summary order). To state
a claim, a plaintiff must show both that the medical need was serious, and that the
defendants acted with a sufficiently culpable state of mind. See Smith v. Carpenter, 316
F.3d 178, 183-84 (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." /d.

Regarding mental health needs, “propensities to attempt suicide, harm oneself,
and/or exhibit severe depression or anxiety attacks have been viewed as sufficiently

serious.” See Powell, 2022 U.S. Dist. LEXIS 99749, at *47. “In the context of an inmate's

8 In fact, plaintiff concedes that the alleged violations of state regulations listed in the complaint do not, on
their own, give rise to liability under § 1983. (Dkt. No. 7-2, pgs. 14-15).

- 18 -

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 19 of 22

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.” McTerrell v.
Koenigsmann, 18-CV-1028, 2021 U.S. Dist. LEXIS 156334, at *20 (W.D.N.Y. Aug. 18,

2021) (citation omitted).

Here, plaintiffs claims of deliberate indifference to Mr. Alves’ mental health needs
are substantively deficient because they lack any plausible allegation that a defendant or
defendants intentionally disregarded the risk that Mr. Alves would harm himself. Plaintiff
is cautioned to closely consider the requirements of the deliberate indifference standard

if she elects to amend and re-plead these claims.

6. Monell Liability

Plaintiffs fifth cause of action asserts that all defendants “maintained a policy,
custom, or practices of deliberate indifference to the hiring, supervision, or discipline of
its employees,” which resulted in a deprivation of Mr. Alves’s access to adequate medical
care and treatment. (Dkt. No. 1-2, J] 113-17). The Court understands this cause of action
as an assertion of municipal liability pursuant to Monell v. Dept. of Soc. Servs., 438 U.S.
658 (1978). Defendants argue that plaintiffs Monell claim, to the extent one has been
made, is not viable and must be dismissed.

A claim for Monell liability 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, *8 (2d Cir. 2022) (summary order) (citing Monell, 436
at 690 n.54)). Likewise, Monell does not apply to state officials acting in their official

capacities. See Will, 491 U.S. at 71 (“[NJeither a State nor its officials acting in their official

-19-

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 20 of 22

capacities are ‘persons’ under [section] 1983.”). 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).

Thus, plaintiff cannot maintain a Monell claim against DOCCS, OMH, or any
employee of those agencies in his or her official capacity.

7. Leave to Amend

Plaintiff requests an opportunity to amend her complaint to correct any deficiencies
found by the Court. (Dkt. No. 7-2, pgs. 15-16). Plaintiff has not submitted a proposed

amended complaint.

When considering a request for amendment, “[t]he court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, leave to amend is not
required where “[t]he problem with [the plaintiff's] causes of action is substantive” such

that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

Several claims for which dismissal is recommended here — namely the state law
claims against DOCCS employees, and all claims against DOCCS, OMH, and employees
of those agencies in their official capacities — cannot be cured by better pleading because
they are plainly barred by New York Corrections Law § 24 and the Eleventh Amendment.
Therefore, it is recommended that these claims be dismissed with prejudice. Conversely,
the Court cannot rule out that plaintiffs § 1983 and state law claims against defendants

in their individual capacities could be replead with the requisite specificity of factual

-20-

Case 1:24-cv-00425-JLS-MJR Document14 _ Filed 03/12/25 Page 21 of 22

allegations. Thus, it is recommended that plaintiff be given an opportunity to file an

amended complaint relative to these claims.

In sum, the Court finds that plaintiffs complaint should be dismissed without

prejudice pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

CONCLUSION

For the foregoing reasons, it is recommended that defendants’ motion to dismiss
(Dkt. No. 2) be granted and plaintiff's complaint be dismissed without prejudice. It is
further recommended that plaintiff be given leave to replead her claims as described
above.

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
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 novo arguments, case law

and/or evidentiary material which could have been, but were not, presented to the

-21-

Case 1:24-cv-00425-JLS-MJR Document14 Filed 03/12/25 Page 22 of 22

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.

SO ORDERED.

Dated: March [2 , 2025

Buffalo, New York Can
Dy beef \ }

MICHAEL J. RGEMER
United States Magistrate Judge

« 22