Campbell v. New York City et al

Filing 4

MEMORANDUM & ORDER: The plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. Plaintiff's claims against the New York City Police Department, Commissioner, the New York City Depa rtment of Corrections, Commissioner, LIU Long Island University Hospital, Brooklyn Campus, and John Doe #1, Long Island University Attending Physician, are hereby dismissed. No summons shall issue as to these defendants, and it is further ORDERED t hat the plaintiff's claims against the City of New York are dismissed unless the plaintiff files an amended complaint stating a plausible Monell claim against the City of New York within 30 days of this Order. If the plaintiff intende d to name as a defendant a different hospital unaffiliated with the State University of New York, the amended complaint shall also name that defendant. It is further ORDERED that the United States Marshals Service is directed to serve the summons and complaint upon the remaining defendants, without prepayment of fees. A courtesy copy of the summons, complaint, and this Order shall be served upon the Corporation Counsel for the City of New York, Federal Litigation Unit. The Court certifi es pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Chief Judge Carol Bagley Amon, on 7/23/2012. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)

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FILED

IN CLERK'S OFFICE
U.S. OISTRIm-:COURT E.O.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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CLIVE CAMPBELL,

JUt. 2 ~ 2012

BROOKLYN OFFICE
NOT FOR PUBLICA nON
MEMORANDUM & ORDER
12 CV 2179 (CBA)

Plaintiff,
-againstNEW YORK CITY; N.Y.C. POLICE DEPARTMENT,
COMMISSIONER; N.Y.C. DEPARTMENT OF
CORRECTIONS, COMMISSIONER; LIU LONG
ISLAND UNIVERSITY HOSPITAL, Brooklyn Campus;
POLICE OFFICER OMAR RACKOFF, 77th PRECINCT;
POLICE SERGEANT MICHAEL MALONE,77th
PRECINCT; JOHN DOE #1, Long Island University
Attending Physician; JOHN DOE #2, Rikers Island Prison
Attending Physician; JOHN DOE #3, Rikers Island Prison
Correction Officer,
Defendants.

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Amon, Chief United States District Judge.
In this pro se action brought pursuant to 42 U .s.C. § 1983 the plaintiff alleges that he was
denied adequate medical care. The plaintiff s request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 is granted. For the reasons discussed below, the plaintiffs claims against the City
of New York, the New York City Police Department ("NYPD"), the New York City Department
of Correction ("NYDOC"), L.I.U. Long Island University Hospital Brooklyn Campus ("the
Hospital"), and JOHN DOE #1, Long Island University Attending Physician, are dismissed. The
plaintiffs claim will proceed against the remaining defendants.
BACKGROUND
The plaintiff alleges that he was arrested on March 16, 2012 by Omar Rackoff, a police
officer with the 77th Precinct. (Comp!. at ~ l.) He alleges that at the time of his arrest, Rackoff

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took his glycoma [sic] drops. (Id. ~ 2.) When the plaintiff informed Rackoffthat he needed his
eye drops, Rackoff stated that "he is the law and refused to give the drops back to [plaintiff]." (Id.)
Two days later, while still in police custody, the plaintiff was taken to a hospital for medical
treatment, where the attending physician allegedly prescribed the wrong medicine for his
glaucoma. (Id. ~~ 13, 15.) That same day, the plaintiff was transferred to Rikers Island
Correctional Center. The plaintiff alleges that at Rikers he was denied the correct prescription eye
drops and was forced to take the "incorrect" medicine from March 19,2012 until March 24, 2012,
when he made bail. (Id. ~~ 26,34.) The plaintiff alleges that he has late stage glaucoma and that
the initial deprivation of his medication, as well as the subsequent use of the wrong medication,
aggravated his condition and caused further damage to his eyes. (Id. ~ 17.) The plaintiff also
alleges that the City of New York failed to properly train its employees to protect his right to
medical care. (ld.

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6, 15.) The plaintiff seeks monetary damages.
STANDARD OF REVIEW

When reviewing a pro se litigant's complaint, a court must construe it liberally and
interpret it as raising the strongest arguments it suggests. See Chavis v. Cha1212ius, 618 F.3d 162,
171 (2d Cir. 2010); Sealed Plaintiffv. Sealed Defendant #1,537 F.3d 185, 191-93 (2d Cir. 2008).
However, under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an inJormapauperis
action where it is satisfied that the action is "(i) frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief."
DISCUSSION

The Court has reviewed the complaint and finds that the claims asserted by the plaintiff
against the City of New York, the NYPD, the NYDOC, LIU Long Island University Hospital

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Brooklyn Campus, and JOHN DOE #1, Long Island University Attending Physician, must be
dismissed because, for various reasons described below, the plaintiff cannot maintain a cause of
action against these defendants under 42 U.S.C. § 1983. The claims against the City of New
York, NYPD Officer Rackoff, NYPD Sergeant Malone, JOHN DOE #2, Rikers Island Prison
Attending Physician, and JOHN DOE #3, Rikers Island Prison Correction Officer, shall go
forward.
A.

City Agencies

The plaintiff names as defendants in this action the "N.Y.C. Police Department,
Commissioner" and the "N.Y.C. Department of Corrections, Commissioner." It is unclear
whether the plaintiff intends to name the respective agencies as defendants, or whether he intends
to name the Commissioner of each agency in his individual capacity. The Court will address both
possibilities.
To the extent that the plaintiff intends to name the Commissioners in their individual
capacities, the complaint does not allege that they had any direct involvement with, knowledge of,
or responsibility for the alleged deprivation of plaintiff s rights. It is settled law in the Second
Circuit that a plaintiff bringing a civil rights action for money damages must demonstrate each
defendant's direct or personal involvement in the actions which are alleged to have caused the
constitutional deprivation. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006); Wright v. Smith,
21 F.3d 496,501 (2d Cir. 1991); Kneitel v. Hynes, 2011 WL 2747668, at *2 (E.D.N.Y. 2011).
Liability under § 1983 cannot be generally imposed on a supervisor solely based on his position
because there is no respondeat superior or vicarious liability under § 1983. See Iqbal, 556 U.S.
676 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the official's own individual actions, has

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violated the Constitution."); Hernandez v. Keane. 341 F.3d 137, 144 (2d Cir. 2003). Instead, a
plaintiff must "allege a tangible connection between the acts of the defendant and the injuries
suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Because the complaint does not
mention any action taken by the Commissioners that might have contributed to the plaintiffs
alleged injuries, they cannot be held liable under § 1983. Accordingly, the claims against the
Commissioners are dismissed.
To the extent that plaintiff seeks to name the agencies as defendants, his claims must also
be dismissed. The New York City Charter provides that "[a]ll actions and proceedings for the
recovery of penalties for the violation of any law shall be brought in the name of the City of New
York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter
§ 396. The NYPD and NYDOC are non-suable agencies of the City of New York. See Maier v.
New York City Police Dep't, 2009 WL 2915211, at *2 (E.D.N.Y. 2009) (dismissing claims
against the NYPD and NYDOC as non-suable entities); Wingate v. City of New York, 2008 WL
203313, at *2 (E.D.N.Y. 2008) (holding that 113th Precinct ofNYPD is not a suable entity).
Accordingly, the plaintiffs claims against the NYPD and NYDOC are dismissed.
B.

The City of New York

"In order to sustain a claim for relief under 42 U.S.C. § 1983 against a municipal
defendant such as the City of New York, a plaintiff must show the existence of an officially
adopted policy or custom that caused injury, and a direct causal connection between that policy or
custom and the deprivation of a constitutional right." Steele v. City of New York, 2010 WL
1946290, at *1 (E.D.N.Y. 2010) (citing Monell v. Dep't of Social Servs .. 436 U.S. 658,694
(1978)). A single incident described in a complaint, particularly one that involves actors below
the policymaking level, does not raise an inference of the existence of a policy or custom.

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Hartnagel v. City of New York, 2012 WL 1514769, at *4 (E.D.N.Y. 2012); Gordon v. City of
New York Police Dept. 84th Precinct, (E.D.N.Y. 2012) (,"Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell. unless proof of the
incident includes proof that it was caused by an existing, unconstitutional municipal policy, which
can be attributed to a municipal policymaker.'" (quoting City of Oklahoma v. Turtle, 471 U.S.
808, 823-24 (1985».
In support of his claims against the City, the plaintiff alleges only that the City, the NYPD,
and the DOC failed to properly train and supervise its employees to provide the plaintiff with
adequate medical care. (Compl.

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14, 17-18,30.) These allegations, without more, are

insufficient to support a Monell claim against the City, and the isolated incident described in the
complaint is not sufficient to support an inference that the police officer defendants acted pursuant
to a municipal policy or custom. See Walker v. City of New York, 2007 WL 1340252, at *2
(E.D.N.Y. 2007) (dismissing complaint against City of New York where "even liberally
construing plaintiffs claim, nothing suggest[ed] that the alleged constitutional violations were
attributable to any municipal policy or custom"). Accordingly, the plaintiffs claims against the
City shall be dismissed, unless the plaintiff filed an amended complaint within thirty (30) days of
this order that alleges facts suggesting that the alleged constitutional violation can be attributed to
an official municipal policy or custom.
C.

The Long Island University Hospital and John Doe #1

The plaintiff names as a defendant "L.I.U. Long Island University Hospital Brooklyn
Campus" but, as far as the Court can tell, there is no such hospital. The Court presumes that the
plaintiff intended to name University Hospital of Brooklyn at Long Island College Hospital
("Long Island College Hospital") which is a part of the State University of New York ("SUNY")

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Downstate Medical Center. See http://www.downstate.edullich/ (Last visited June 19,2012). If
this is the hospital the plaintiff intends to name, then the plaintiff s § 1983 claims against the
Hospital are barred by the sovereign immunity protection of the Eleventh Amendment because
this hospital is a branch of SUNY. See Dube v. State University of New York 900 F.2d 587,
594-95 (2d Cir. 1990) (Eleventh Amendment bars § 1983 suit against SUNY, which is an integral
part of the State of New York); Ding v. Bendo et aI., 2006 WL 752824, at * 3-4 (E.D.N.Y. 2006)
(dismissing plaintiff s § 1983 claims against SUNY Downstate Medical Center because "SUNY
and the defendant doctors in their official capacity enjoy immunity from suit under the Eleventh
Amendment"); Cassells v. Univ. Hosp. at Stony Brook, 1987 WL 3717 (E.D.N.Y. 1987) (holding
that Eleventh Amendment barred suit against State University Hospital).
Similarly, insofar as the plaintiff asserts claims against the John Doe #1, the attending
physician at the Long Island College Hospital, in his official capacity as a physician, the Eleventh
Amendment shields the physician from suit as well. See Ding, 2006 WL 752824, at *4 (holding
that Eleventh Amendment immunity extends to SUNY doctors acting in their official capacity);
Castells, 1987 WL 3717, at *4 (holding that SUNY employees are "also entitled to claim Eleventh
Amendment immunity from damages for actions taken in their official capacities. ").
To the extent that the plaintiff seeks to assert a claim against John Doe #1 in his individual
capacity, that claim would fail on the merits. The plaintiff alleges only that "the attending
physician (JOHN DOE #1) refused to contact the Veteran Hospital to find out the medication I
was prescribed and did prescribe me the wrong medication causing further damage to my eyes."
(Compl.

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15.) At best, this allegation would support a finding that the attending physician was

negligent. However, allegations of negligent medical treatment, even those which rise to the level
of medical malpractice, do not state a valid claim for medical mistreatment under the Eighth

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Amendment. Martinez v. Ravikumar, 616 F. Supp. 2d 455, 458-59 (S.D.N.Y. 2009) ('''Medical
malpractice does not become a constitutional violation merely because the victim is a prisoner. '"
(quoting Estelle v. Gamble, 429 U.S. 97,107 (1976)); Smith v. Carpenter, 316 F.3d 178, 184 (2d
Cir. 2003) ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice
claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the
level of a constitutional violation.").
For these reasons, any claims brought by the plaintiff against the Long Island College
Hospital and the John Doe attending physician at the Long Island College Hospital are dismissed.
If the plaintiff intended to name a different hospital unaffiliated with the State University of New
York, the plaintiff shall file an amended complaint within 30 days ofthe date of this order naming
the correct hospital.

CONCLUSION
Accordingly, it is hereby:
ORDERED that plaintiffs claims against the New York City Police Department,
Commissioner, the New York City Department of Corrections, Commissioner, LlU Long Island
University Hospital, Brooklyn Campus, and John Doe #1, Long Island University Attending
Physician, are hereby dismissed. No summons shall issue as to these defendants, and it is further
ORDERED that the plaintiffs claims against the City of New York are dismissed unless
the plaintiff files an amended complaint stating a plausible Monell claim against the City of New
York within thirty (30) days of this Order. If the plaintiff intended to name as a defendant a
different hospital unaffiliated with the State University of New York, the amended complaint shall
also name that defendant. The amended complaint must be captioned, "Amended Complaint,"
and shall bear the same docket number as this order. It is further

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ORDERED that the United States Marshals Service is directed to serve the summons and
complaint upon the remaining defendants, without prepayment of fees, and it is further
ORDERED that a courtesy copy of the summons, complaint, and this order shall
be served upon the Corporation Counsel for the City of New York, Federal Litigation Unit.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for purpose of
an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

DareC;.1~NeWYOrk
2. ~ 2012

S/Chief Judge Amon
Carol Bagley lillof '\ I
Chief Judge, tJnit~s District Court

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