Swanson v. The City Of New York et al

Filing 30

ORDER granting 21 Motion to Dismiss for Failure to State a Claim; denying 21 Motion to Dismiss for Lack of Jurisdiction. For the reasons discussed in the attached Memorandum and Order, the Court grants the City's motion to dismiss for failu re to state a claim and dismisses Plaintiff's claims under the Fourth and Eighth Amendments and Plaintiff's claims for conspiracy, failure to intervene, supervisory liability, municipal liability, "caused to be subjected" and negl igent and intentional infliction of emotional distress. Plaintiff shall serve Defendants with a signed and sealed summons and the Amended Complaint, in compliance with Rule 4 of the Federal Rules of Civil Procedure, within thirty (30) days of today's date. If Plaintiff fails to serve Defendants in compliance with Rule 4 within thirty days, the Court will dismiss the Amended Complaint. Ordered by Judge Margo K. Brodie on 7/21/2017. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ATLEE SWANSON, individually and as
administratrix of the estate of ALVIN NELSON III,
Plaintiff,

MEMORANDUM & ORDER
16-CV-3231 (MKB)

v.
THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF CORRECTIONS
COMMISSIONER JOSEPH PONTE, CORIZON
HEALTH INCORPORATED and JOHN and JANE
DOES,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Atlee Swanson commenced the above-captioned action on June 17, 2016,
individually and as administratrix of the estate of her son, Alvin Nelson III, alleging that
numerous institutional and individual defendants 1 violated Nelson’s constitutional rights by
denying him adequate medical care and causing his death when he was a pre-trial detainee at
Rikers Island Correctional Facility. (Compl., Docket Entry No. 1.) Plaintiff filed an Amended
Complaint on December 5, 2016, against the City of New York, New York City Department of

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The original Complaint named as Defendants the New York City Department of
Corrections, the New York City Department of Health, Rikers Island Correctional Facility,
Department of Corrections Commissioner Joseph Ponte, the George Motchan Detention Center
(“GMDC”) Facility, “GMDC Medical Clinic/Medical Facility,” Corizon Health Incorporated, and
John and Jane Doe medical personnel. (Compl., Docket Entry No. 1.) The Court held a premotion conference on November 4, 2016, and granted Plaintiff leave to file an Amended
Complaint. (Min. Order dated Nov. 4, 2016.) The Amended Complaint removes as Defendants
the New York City departments and the GMDC Facilities and adds the City of New York. (Am.
Compl., Docket Entry No. 20.)

Corrections Commissioner Joseph Ponte, Corizon Health Incorporated, and John and Jane Doe
employees of Rikers Island, Corizon Health, the New York City Department of Corrections and
the City of New York. (Am. Compl., Docket Entry No. 20.) Plaintiff alleges claims for
violations of Nelson’s Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983,
conspiracy under section 1983, supervisory and municipal liability under section 1983,
“neglect/failure to prevent/intercede & conspiracy to deprive rights” under 42 U.S.C. §§ 1983,
1985 and 1986, “caused to be subjected” under section 1983, medical malpractice, wrongful
death, intentional infliction of emotional distress, negligent infliction of emotional distress,
negligence, loss of consortium and punitive damages. (Id. ¶¶ 85–232.) The City of New York
(the “City”) moves to dismiss the Amended Complaint pursuant to Rules 12(b)(2) and 12(b)(5) of
the Federal Rules of Civil Procedure for lack of personal jurisdiction and insufficient service of
process and, in the alternative, to dismiss Plaintiff’s claims for: (1) inadequate medical care under
the Fourth and Eighth Amendments of the U.S. Constitution,2 (2) conspiracy under sections 1983,
1985 and 1986, (3) supervisory liability, (4) municipal liability, (5) “neglect/failure to
prevent/intercede & conspiracy to deprive rights,” (6) “caused to be subjected” under section
1983 and (7) negligent or intentional infliction of emotional distress for failure to state a claim
pursuant to Rule 12(b)(6). 3 (Def. Mot. to Dismiss (“Def. Mot.”) 2, Docket Entry No. 21; Decl. of

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As the Court explains below, Plaintiff has not explicitly alleged an Eighth Amendment
violation but invokes the language of “cruel and unusual punishment” in the context of her claim
for violations of the Fourth and Fourteenth Amendments. (See Am. Compl. ¶¶ 86–88.)
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The City does not challenge Plaintiff’s claim for deliberate indifference to Nelson’s
medical needs to the extent that Plaintiff brings such a claim pursuant to the Fourteenth
Amendment’s due process clause, nor does it challenge Plaintiff’s claims for medical malpractice,
wrongful death, general negligence or punitive damages. (Def. Mem. in Supp. of Def. Mot.
(“Def. Mem.”) 1, Docket Entry No. 23.)

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J.C. O’Brien in Supp. of Def. Mot. (“O’Brien Decl.”), Docket Entry No. 22.) For the reasons set
forth below, the Court denies the City’s motion to dismiss for insufficient service of process and
personal jurisdiction. The Court grants the City’s motion to dismiss for failure to state a claim
and dismisses Plaintiff’s Fourth and Eighth Amendment claims, conspiracy claims under sections
1983 and 1985, failure to intercede claim under section 1986, as well as Plaintiff’s claims for
supervisory liability, municipal liability, “caused to be subjected” under section 1983 and
negligent and intentional infliction of emotional distress.
I.

Background
a.

Factual background

The Court assumes the truth of the factual allegations for the purpose of deciding this
motion. Plaintiff alleges that between October of 2014 and January 21, 2015, while Nelson was a
pre-trial detainee in the care and custody of Defendants at Rikers Island, Nelson was denied
adequate and timely medical care despite his requests for such care. (See Am. Compl. ¶¶ 27–29.)
In “about the second to third week of October 2014,” Nelson visited the medical staff of
GMDC with a cold, chills and a fever of 105 degrees, and the staff “merely sent [Nelson] back to
his cell and gave him an aspirin or tylenol.” (Id. ¶ 34.) Nelson spoke to Plaintiff about this
incident and said that he had “called for sick call” and was waiting to be treated, that he felt like
he was “burning up” and his voice sounded raspy. (Id. ¶ 35.) The next day, Nelson again
presented to GMDC and complained of the same symptoms, and again, the GMDC staff sent him
back to his cell with aspirin or tylenol. (Id. ¶ 36.) Through October and November of 2014, these
symptoms continued and worsened, and Nelson became physically weaker and complained of
additional symptoms: his right shoulder felt like it was “on fire,” he suffered from a loss of
appetite and was so physically weak that he could not walk. (Id. ¶ 37.)

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Plaintiff called and complained of this treatment to female GMDC corrections officer
Mitchell, and was told by Mitchell and her captain that Nelson would “just have to wait.” (Id. ¶¶
42–43.) Nelson told Plaintiff that he was being made to wait for weeks to see a doctor and that he
was perceived not to be suffering from anything severe enough to warrant treatment, even though
he was repeatedly coughing up blood, feverish, and unable to walk. (Id. ¶¶ 44–45.) In December
of 2014, Plaintiff continued to inquire into the handling of Nelson’s health, calling the New York
Statement Department of Corrections and Community Supervision (“DOCCS”), Rikers, and
GMDC, as well as New York City’s 311 line. (Id. ¶ 46.) In or around December of 2014, Nelson
saw a doctor at GMDC, who advised him that “so long as you can put your arms over your head
and can touch your toes, then there’s nothing wrong with you.” (Id. ¶ 48.)
Sometime in early January of 2015, a nurse in the GMDC infirmary “felt bad to see
[Nelson] in his continuing worsening state and that no one there was doing anything about it,” and
finally drew Nelson’s blood to send for testing. (Id. ¶ 50.) On January 21, 2015, Nelson was
transported to Bellevue Hospital for treatment. (Id. ¶ 51.)
Between January 21, 2015 and April 6, 2015, Nelson was hospitalized in the Bellevue
Hospital Intensive Care Unit. (Id. ¶ 53.) Doctors at Bellevue Hospital told Nelson and Plaintiff
that Nelson was suffering from terminal stage IV gall bladder cancer that had metastasized to
other organs, and “that it was terminal and that had it been caught earlier and/or had he been
brought to Bellevue earlier, it would not have been terminal and he could have under[gone]
chemotherapy and/or radiation.” (Id. ¶¶ 53–54.) Because Nelson’s cancer had metastasized to his
bile duct, liver, spleen and spine, he suffered from blood clots and a stroke. (Id. ¶ 61.) He
underwent “emergency life-saving surgery . . . from which he then became and remained
paralyzed on the left sized of his body,” and which “directly and proximately caused his wrongful

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death on or about April 6, 2015.” (Id.)
Plaintiff alleges that Defendants were deliberately indifferent to Nelson’s life and health,
conspired to deny him adequate medical care because of his race, denied him adequate care,
subjected him to cruel and unusual punishment, deviated from accepted standards of medical
practice, and failed to train and supervise medical staff and employees who saw Nelson at
GMDC. (Id. ¶ 64.) Plaintiff seeks compensatory and punitive damages for the denial of medical
care, as well as damages for loss of services and companionship with Nelson and Nelson’s two
minor children. (Id. ¶ 65.)
II. Discussion
a.

Standards of review
i.

Rules 12(b)(2) and 12(b)(5)

On a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure, “[a] plaintiff bears the burden of demonstrating personal
jurisdiction over a person or entity against whom it seeks to bring suit.” Troma Entm’t, Inc. v.
Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (citing Penguin Grp. (USA) Inc. v. Am.
Buddha, 609 F.3d 30, 34 (2d Cir. 2010)); see also Thackurdeen v. Duke Univ., 660 F. App’x 43,
44–45 (2d Cir. 2016) (“In opposing a motion to dismiss for lack of personal jurisdiction, plaintiffs
bear the burden of establishing that the court has jurisdiction over defendants.” (citations,
alterations and internal quotation marks omitted)). “To establish personal jurisdiction, [a
plaintiff] must show that [the defendant] has minimum contacts with the forum and was properly
served.” Howell v. Campbell, No. 15-CV-3705, 2016 WL 1241529, at *2 (S.D.N.Y. Mar. 23,
2016) (citing Salmassi e. Kfr. v. Euro-America Container Line Ltd., 08-CV-4892, 2010 WL
2194827, at *4 (S.D.N.Y. June 1, 2010)).

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Rule 12(b)(5) permits a party to move to dismiss the complaint for insufficient service of
process. 4 Fed. R. Civ. P. 12(b)(5). “In considering a Rule 12(b)(5) motion to dismiss for
insufficient service of process, a court must look[] to matters outside the complaint to determine
whether it has jurisdiction.” George v. Prof. Disposables Int’l, Inc., 221 F. Supp. 3d 428, 432
(S.D.N.Y. 2016) (internal quotation marks omitted) (quoting Cassano v. Altshuler, 186 F. Supp.
3d 318, 320 (S.D.N.Y. 2016)); see also Hawthorne v. Citicorp Data Sys., Inc., 219 F.R.D. 47, 49
(E.D.N.Y. 2003) (“Without proper service a court has no personal jurisdiction over a
defendant.”). A court considers whether the plaintiff has complied with Rule 4, which governs
the content, issuance and service of a summons. DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d
54, 64 (S.D.N.Y. 2010). “Once a defendant challenges the sufficiency of service of process, the
burden of proof is on the plaintiff to show the adequacy of service.” Id. (citation omitted); accord
Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).
ii.

Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Concord
Assocs., L.P. v. Entm’t Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time
Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313
(2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).

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Rule 12(b)(4) also provides a mechanism for a defendant to interpose an objection to the
sufficiency of process. “An objection under Rule 12(b)(4) concerns the form of the process rather
than the manner or method of its service. Technically, therefore, a Rule 12(b)(4) motion is proper
only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision
incorporated by Rule 4(b) that deals specifically with the content of the summons.” 5B Fed. Prac.
& Proc. Civ. § 1353 (3d ed.). “A Rule 12(b)(5) motion is the proper vehicle for challenging the
mode of delivery or the lack of delivery of the summons and complaint.” Id.
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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). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St.
Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18
(2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this
principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
b.

Insufficient service of process

The City argues that despite repeated notices to Plaintiff, the City was never served with a
summons in this action. (Def. Mem. 11.) Plaintiff acknowledges that the summons lacked the
seal of the Court and signature of the Clerk of Court, but argues that a technical deficiency does
not warrant dismissal because the City has not suffered prejudice from the error. (Pl. Opp’n
Mem. 26.)
Under Rule 4(b), “[o]n or after filing the complaint, the plaintiff may present a summons
to the clerk for signature and seal.” Fed. R. Civ. P. 4(b). “If the summons is properly completed,
the clerk must sign, seal, and issue it to the plaintiff for service on the defendant.” Id.; see also id.
4(a)(1)(F) & (G) (requiring that a summons be signed by the clerk and bear the court’s seal). “A
summons must be served with a copy of the complaint. The plaintiff is responsible for having the
summons and complaint served within the time allowed by Rule 4(m) [ninety days] and must
furnish the necessary copies to the person who makes service.” Id. 4(c)(1). Rule 4(m) provides
that:

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If a defendant is not served within [ninety] days after the complaint
is filed, the court — on motion or on its own after notice to the
plaintiff — must dismiss the action without prejudice against that
defendant or order that service be made within a specified time. But
if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.
Id. 4(m). “It is clear under the second clause of Rule 4(m) that an extension is always warranted
upon a showing of ‘good cause,’” and “[t]he first clause of Rule 4(m), which makes no mention
of good cause, grants discretion to district courts in a backhanded fashion by dictating that
they . . . must decide to dismiss . . . or decide not to dismiss. But no criteria for this decision are
supplied in the rule itself.” Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007). In
determining whether a discretionary extension is appropriate absent good cause, a court considers
the following factors: (1) whether any applicable statutes of limitations would bar the action once
refiled; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3)
whether the defendant attempted to conceal the defect in service; and (4) whether the defendant
would be prejudiced by extending the plaintiff’s time for service. DeLuca, 695 F. Supp. 2d at 66
(collecting cases); see also Soos v. Niagara County, 195 F. Supp. 3d 458, 467 (W.D.N.Y. 2016);
Howell, 2016 WL 1241529, at *4; Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 58 (E.D.N.Y.
2006).
Although “[t]echnical errors in a summons generally do not render service invalid,” where
the error “actually results in prejudice to the defendant or demonstrates a flagrant disregard of
Rule 4, service will be considered invalid and amendment need not be allowed.” DeLuca, 695 F.
Supp. 2d at 65 (citations omitted); see also Durant v. Traditional Invs., Ltd., No. 88-CV-9048,
1990 WL 336611, at *4 (S.D.N.Y. Mar. 22, 1990) (“When the error in the summons goes to form
rather than substance, amendment . . . should be freely granted . . . as courts should not deny a
plaintiff her day in court due to technical imperfections in service.”); Macaluso v. N.Y.S. Dep’t of

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Envtl. Conserv., 115 F.R.D. 16, 17 (E.D.N.Y. 1986 (stating that “amendments to process are
freely given because courts do not wish to deny plaintiffs their day in court for failure to observe
mere technicalities”); cf. Osrecovery, Inc. v. One Grp. Int’l, Inc., 234 F.R.D. 59, 60 (S.D.N.Y.
2005) (“Although minor or technical defects in a summons in certain circumstances do not render
service invalid, defects that are prejudicial to the defendant or show a flagrant disregard for [Rule
4] do.”).
“Courts in the Second Circuit are split as to whether an unsigned and unsealed summons is
a technical defect or a flagrant disregard of Rule 4.” DeLuca, 695 F. Supp. 2d at 65 (collecting
cases); compare Kriger v. Am. Express Fin. Advisors, No. 98-CV-782E(F), 2000 WL 207119,
at *4 (W.D.N.Y. Feb. 16, 2000) (denying the defendant’s motion to dismiss for insufficient
service where the absence of the clerk’s signature and the court’s seal were “mere technical
defects”) with Macaluso, 115 F.R.D. at 18 (“This [c]ourt . . . does not view service of an
unsigned, unsealed summons not issued by the court clerk as a mere technical defect. Instead, it
amounts to a complete disregard of requirements of process set forth clearly and concisely in Rule
4.”).
Here, the Court need not resolve whether the deficiencies in the summons amount to
technical error or flagrant disregard of Rule 4 because, regardless, the Court exercises its
discretion under Rule 4(m) to allow amendment.
On June 17, 2016, the Clerk of Court directed Plaintiff to submit summonses. (See Notice
dated June 17, 2016.) Plaintiff does not appear to have done so. On August 24, 2016, the City
requested an extension of time to answer the Complaint or move to dismiss. (Def. Letter dated
Aug. 24, 2016, Docket Entry No. 4.) On August 26, 2016, Magistrate Judge Robert Levy granted
the City’s request and directed Plaintiff’s counsel to file a summons and affidavit of service by

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September 12, 2016. (Order dated Aug. 26, 2016.) On October 13, 2016, the City filed a letter
requesting a pre-motion conference in anticipation of a motion to dismiss, and, in the letter, noted
that it had not been properly served. (Def. Pre-Mot. Conf. Letter, Docket Entry No. 6.) The next
day, Plaintiff filed numerous entries titled “SUMMONS returned executed,” which attached
affidavits of service corresponding to each named Defendant and stating that each Defendant had
been served between August 8, 2016 and August 18, 2016. (See Docket Entry Nos. 7–14.) Each
affidavit of service represented that a Defendant had been served by “Elite Legal Services of NY,
Inc.,” and Plaintiff attached a single copy of the summons that was served on the City of New
York. (See Summons, Docket Entry No. 7-1.) The summons provides the case number, the
caption, the name and address of Plaintiff’s attorney and instructions for answering the Complaint
in accordance with the Federal Rules of Civil Procedure. (See id.) The summons does not
include the City’s name and address, bear the Court’s seal or contain the signature of the Clerk of
Court, but the City of New York’s Office of Corporation Counsel appears to have stamped the
summons upon receiving it on August 8, 2016. (See id.)
Plaintiff has not detailed her efforts to serve Defendants in compliance with Rule 4, and
thus has not shown good cause for the deficiencies. (See Pl. Opp’n Mem. 24–25.) The Court
therefore applies the four factors to determine whether to grant Plaintiff further leniency in the
absence of good cause. See Soos, 195 F. Supp. 3d at 467 (applying the factors).
In this case, the three-year statute of limitations applicable to claims under section 1983
will not expire until, at the earliest, October of 2017. See Abbas v. Dixon, 480 F.3d 636, 638 (2d
Cir. 2007) (applying three-year limitations period to actions under section 1983 where the alleged
incidents occurred in New York); (see also Am. Compl. ¶¶ 27–29 (alleging that the initial denials
of medical care occurred in October of 2014)). Next, there is no evidence of prejudice to the City,

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which received the summons and timely appeared in the action. (See Summons (stamped as
received on August 8, 2016).) As to the third factor, there is no evidence that the City attempted
to conceal the defective service; in fact, it appears that the City gave notice of defective service
early in the litigation, (see Order dated Aug. 26, 2016). Finally, as to the fourth factor, the City
has identified no prejudice that it would suffer as a result of a further extension to service.
Because the City has identified no prejudice from the errors in the summons, the sole
result of granting Plaintiff an extension of time would be to require Defendants to defend the case
on the merits. Accordingly, the Court grants Plaintiff thirty days from the date of this
Memorandum and Order to serve a properly signed and sealed summons on each named
Defendant, in compliance with Rule 4 of the Federal Rules of Civil Procedure, and to file both an
affidavit of service and a copy of the summons as it was served on each Defendant. If Plaintiff
fails to serve the summons or file proof of service with the Court within thirty days, the Court will
dismiss the action without prejudice for failure to comply with Rule 4(m).
c.

Fourth Amendment and Fourteenth Amendment claims

Plaintiff alleges in count one of the Amended Complaint that Defendants violated
Nelson’s Fourth Amendment and Fourteenth Amendment rights to be “free from unlawful seizure
of his person and to be free from cruel and unusual punishment.” (Am. Compl. ¶¶ 86–88.) The
City argues that count one invokes the language of the Eighth Amendment’s prohibition on cruel
and unusual punishment, 5 and that neither the Fourth nor the Eighth Amendment is applicable to a

5

As the City notes, the original Complaint contained a count alleging a violation of the
Eighth Amendment, and the Amended Complaint removes the Eighth Amendment title but retains
the language of the claim. (See Def. Mem. 12.) The City does not challenge Plaintiff’s claim to
the extent that it alleges a due process violation, and the Court therefore does not address what it
construes to be Plaintiff’s due process claim for deliberate indifference to Nelson’s medical needs
under the Fourteenth Amendment. To the extent that Plaintiff brings the same claim under the

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pre-trial detainee like Nelson. (Def. Mem. 12.)
“A pretrial detainee’s claims of unconstitutional conditions of confinement are governed
by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eighth Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017) (citing Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003), overruled on other grounds by
Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir. 2009)). This is because “[p]retrial detainees have
not been convicted of a crime and thus ‘may not be punished in any manner — neither cruelly and
unusually nor otherwise.’” Id. (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)); see
also Kingsley v. Hendrickson, 576 U.S. ---, ---, 135 S. Ct. 2466, 2475 (June 22, 2015) (“[M]ost
importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less
‘maliciously and sadistically’” (citations omitted)).
In addition to a due process right, pretrial detainees “retain a limited right to bodily
privacy under the Fourth Amendment.” Harris v. Miller, 818 F.3d 49, 57–58 (2d Cir. 2016).
Courts have considered an inmate’s Fourth Amendment rights in two contexts: first, an allegedly
unreasonable search of the inmate’s person, as in the context of a strip-search, see Harris, 818
F.3d at 53–54; and second, an allegedly unreasonable search or seizure of an inmate’s belongings,
see Hudson v. Palmer, 468 U.S. 517, 526 (1984) (discussing inmates’ Fourth Amendment right to
privacy in the personal effects within their prison cells). Although the Court has not located
precedent that addresses a Fourth Amendment challenge to the “seizure” of a pretrial detainee’s
person, the Supreme Court has explained that “a pretrial detainee can prevail [on a constitutional

Eighth Amendment, that claim is dismissed because, as noted below, “a pretrial detainee’s claims
of unconstitutional conditions of confinement are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth
Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
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claim] by providing only objective [and not subjective] evidence that the challenged
governmental action is not rationally related to a legitimate governmental purpose or that it is
excessive in relation to that purpose.” Kingsley, 576 U.S. at ---, 135 S. Ct. at 2473–74 (explaining
that pretrial detainees are not permitted to be punished but that their rights may be circumscribed
in order to preserve internal order and discipline within detention facilities).
The Court dismisses Plaintiff’s claim for unreasonable seizure under the Fourth
Amendment because the claim is not cognizable. Plaintiff has not pointed to any authority to
support her assertion that Defendants’ denial of adequate medical care to Nelson constituted an
unreasonable seizure under the Fourth Amendment because Nelson was prevented from seeking
outside medical care, and the Court has found no authority to support such a claim. Even
assuming that Plaintiff could bring such a claim, Plaintiff has not articulated the way in which the
alleged seizure was “unreasonable” under the Fourth Amendment or provided “evidence that the
challenged governmental action is not rationally related to a legitimate governmental purpose or
that it is excessive in relation to that purpose.” See Kingsley, 576 U.S. at ---, 135 S. Ct. at 2473–
74. Indeed, it is not clear to the Court what practice or conduct Plaintiff challenges as having
resulted in the unreasonable seizure of Nelson’s person. Accordingly, the Court dismisses
Plaintiff’s Fourth Amendment claim. See Harris, 818 F.3d at 58 (explaining that prison-based
Fourth Amendment claims can challenge the reasonableness of a particular search or of a broader
prison policy).
d.

Conspiracy and failure to intercede claims under sections 1983, 1985 and 1986

Plaintiff alleges in counts two and five of the Amended Complaint that Defendants
conspired to deprive Nelson of his due process and equal protection rights, in violation of 42
U.S.C. §§ 1983 and 1985, and failed to intercede in the violation of Nelson’s rights in violation of

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42 U.S.C. § 1986. (Am. Compl. ¶¶ 95–101, 147–54.)
The City argues that the Amended Complaint does not set forth any factual allegations to
support a claim for conspiracy and “contains nothing more than conclusory claims that the
[D]efendants ‘conspired with each other.’” (Def. Mem. 14.) Plaintiff argues that the Amended
Complaint sufficiently alleges that Defendants conspired to deny Nelson adequate medical care
and then to intentionally cover up the denial of that medical care. 6 (Pl. Opp’n Mem. 22–23.)
i.

Conspiracy under sections 1983 and 1985

“To prove a [section] 1983 conspiracy, a plaintiff must show: (1) an agreement between
two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict
an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); Wolff v. State Univ. of N.Y., --- F. App’x.
---, ---, 2016 WL 8213713, at *1 (2d Cir. Feb. 6, 2016) (citing Pangburn, 200 F.3d at 72);
McDonough v. Smith, No. 15-CV-1505, 2016 WL 7496128, at *11 (N.D.N.Y. Dec. 30, 2016)
(quoting Pangburn, 200 F.3d at 72); Bartels v. Inc. Vill. of Lloyd, 751 F. Supp. 2d 387, 402
(E.D.N.Y. 2010).
To state a claim for conspiracy to interfere with civil rights under section 1985, a plaintiff
must allege (1) a conspiracy, (2) with the intent or purpose to deprive a person of equal protection
of the law, (3) an act in furtherance of the conspiracy, (4) which results in an injury to a person, or
a person’s property, or the deprivation of a federal constitutional right. Sheehy v. Brown, 335 F.
App’x 102, 104 (2d Cir. 2009) (citing Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d

6

Although the Complaint brought claims for conspiracy under sections 1985 and 1986, in
addition to section 1983, count five of the Amended Complaint appears to bring a single claim for
“neglect/failure to prevent/intercede & conspiracy to deprive rights.” (Am Compl. ¶¶ 147–54.)
The Court analyzes the allegations in count five as alleging separate claims for failure to
prevent/intercede under section 1983 and for conspiracy under sections 1985 and 1986.
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1085, 1087 (2d Cir. 1993)). “In order to maintain an action under [s]ection 1985, a plaintiff ‘must
provide some factual basis supporting a meeting of the minds, such that [the] defendants entered
into an agreement, express or tacit, to achieve the unlawful end.’” Webb v. Goord, 340 F.3d 105,
110 (2d Cir. 2003) (citation omitted). In addition, a plaintiff must allege that he is a member of a
protected class and that the conspirators acted with class-based discriminatory motivation. See
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Britt v. Garcia, 457 F.3d 264, 270 n.4 (2d Cir.
2006); Ali v. Connick, 136 F. Supp. 3d 270, 277 (E.D.N.Y. 2015).
Plaintiff has repeatedly alleged that each of the individual Defendants acted “in concert
with one another under color of law” and “conspired with each other to undertake a course of
conduct,” to deny Nelson adequate medical care. (Am. Compl. ¶¶ 96, 144, 150–51.) Plaintiff has
not alleged any facts to support a meeting of the minds, however, and the existing allegations are
insufficient to support a claim sounding in conspiracy under section 1983 or section 1985. See
Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (“A merely conclusory
allegation that [the defendant] acted in concert with a state actor does not suffice to state a
[section] 1983 claim . . . .”); see also Webb, 340 F.3d at 111 (dismissing section 1985 conspiracy
claim because “the plaintiffs have not alleged, except in the most conclusory fashion, that any . . .
meeting of the minds occurred among any or all of the defendants”); Young v. Suffolk County, No.
09-CV-3325, 2013 WL 491982, at *16 (E.D.N.Y. Feb. 11, 2013) (holding that the plaintiff’s
“unsubstantiated allegations of purported collaboration” between the defendants were insufficient
to defeat summary judgment); Arredondo v. County of Nassau, No. 11-CV-710, 2012 WL
910077, at *6 (E.D.N.Y. Mar. 16, 2012) (dismissing complaint where the plaintiff had only made
general allegations that the defendants had an understanding without any facts to support the
claim).

15

Moreover, as relevant to Plaintiff’s claims under sections 1985 and 1986, Plaintiff has not
alleged facts to show that the individuals who allegedly conspired to deprive Nelson of his rights
were employees of different institutional or municipal entities. “[I]t is well settled that there can
be no actionable conspiracy under the civil rights laws if the alleged conspirators are employees
of a single organization and their alleged actions were taken in the course of their employment.”
Ahmed v. Gelfand, 160 F. Supp. 2d 408, 413 (E.D.N.Y. 2001) (citing Girard v. 94th St. and Fifth
Ave. Corp., 530 F.2d 66, 71 (2d Cir. 1976)); see also Farbstein v. Hicksville Pub. Library, 254 F.
App’x 50, 51 (2d Cir. 2007) (affirming dismissal of the conspiracy claim where the coconspirators were both employees of the same public library); Ali v. Connick, 136 F. Supp. 3d
270, 282 (E.D.N.Y. 2015) (explaining that under the intracorporate conspiracy doctrine,
“employees or agents of a single corporate entity, acting within the scope of their employment,
are legally incapable of conspiring together” (first citing Herman v. Moore, 576 F.2d 453, 459 (2d
Cir. 1978); and then citing Girard, 530 F.2d at 72)); Richard v. Fischer, 38 F. Supp. 3d 340, 353
(W.D.N.Y. 2014) (applying the intracorporate conspiracy doctrine to bar inmates’ conspiracy
claims against DOCCS). Here, Plaintiff’s allegations suggest that most or all Defendants who
allegedly deprived Nelson of his rights were employed in some capacity by the City. Without
further allegations that some of the Defendants conspired with others who worked outside of their
institutional entity, the Court finds that the intracorporate conspiracy doctrine would preclude any
City employees’ liability on Plaintiff’s conspiracy claims under sections 1985 and 1986.
In addition, Plaintiff has not plausibly alleged that Defendants acted with discriminatory
motivation, as is required under section 1985. Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 234
(2d Cir. 2002) (denying summary judgment on the plaintiff’s section 1985 conspiracy claim
where he did not “come forward with at least some credible evidence that the actions of the

16

individual [defendants] were motivated by racial animus or ill-will”); Mian, 7 F.3d at 1087
(“Furthermore, the conspiracy must also be motivated ‘by some racial or perhaps otherwise classbased, invidious discriminatory animus behind the conspirators’ action.’” (quoting United Bhd. Of
Carpenters, Local 610 v. Scott, 463 U.S. 825, 828–29 (1983))). The Amended Complaint states
only that Defendants’ conduct “was motivated by racial animus and animus/bias against [Nelson]
based on his inmate status, based upon his race, and based upon [] Defendants’ desire to injure,
oppress, frighten, harass and intimidate [Nelson] because of his race . . . to wit: AfricanAmerican/Black.” (Am. Compl. ¶ 89.) These allegations, without more, are insufficient to
plausibly demonstrate that “the conspiracy [was] motivated by racial animus.” Brown v. City of
Oneonta, 221 F.3d 329, 341 (2d Cir. 1999); see also Ali, 136 F. Supp. 3d at 277.
Plaintiff has not stated a claim for conspiracy under section 1983 or section 1985, and the
Court accordingly dismisses the conspiracy claims from the Amended Complaint.
ii.

Failure to intercede claim under section 1986

Plaintiff alleges in count five of the Amended Complaint that Defendants “had the power
and authority to prevent” others from conspiring to deny Nelson adequate and timely medical
care, but that they “willfully and/or negligently neglected and refused to prevent” the unlawful
conduct. (Am. Compl. ¶ 151.) In particular, Plaintiff alleges that “Defendants’ agents” —
“Nurse Jones and the Hispanic doctor/nurse” — “had the knowledge that [Nelson’s] rights were
being violated, that he was being denied timely and proper medical care, that he needed medical
care and that he requested [it], and, had opportunities to intercede on behalf of [Nelson] to prevent
the unlawful conduct committed against him” but refused to do so. (Id. ¶ 152.)
Section 1986 provides a cause of action against anyone who, “having knowledge that any
of the wrongs conspired to be done and mentioned in section 1985 are about to be committed and

17

having power to prevent or aid, neglects to do so.” Mian, 7 F.3d at 1088. Thus, “a [section] 1986
claim must be predicated on a valid [section] 1985 claim.” Id. Because Plaintiff has not stated a
claim for conspiracy under section 1985, the Court dismisses Plaintiff’s claim for failure to
intercede under section 1986.
e.

Supervisory liability claim

Plaintiff alleges in count three of the Amended Complaint that Defendants Ponte and
certain John and Jane Doe “supervisor correction officers, lieutenants, sergeants, captains, deputy
commissioners, assistant deputy commissioners, medical supervisors and/or any and all other
supervisors with knowledge” failed to supervise and train their subordinates, who denied adequate
medical care to Nelson. (Am Compl. ¶¶ 104–08.)
The City argues that Plaintiff has not established the personal involvement of either Ponte
or any of the Doe supervisors. (Def. Mem. 14–15.) Plaintiff argues that she has sufficiently pled
that Ponte is “in complete command and control of the entire [New York City] Department of
Corrections and is in charge of and knows what occurs and does not occur there — including, but
not limited to, the providing of medical care.” (Pl. Opp’n Mem. 23.)
“Liability for supervisory government officials cannot be premised on a theory of
respondeat superior because [section] 1983 requires individualized, personalized liability on the
part of each government defendant.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014)
(citing Iqbal, 556 U.S. at 676). Instead, “[b]ecause vicarious liability is inapplicable to . . .
[section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Id. (quoting Iqbal, 556 U.S. at
676). Thus, “each Government official . . . is only liable for his or her own misconduct.” Id.
(quoting Iqbal, 556 U.S. at 677); see also Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir.

18

2003) (“It is well-settled . . . that the doctrine of respondeat superior standing alone does not
suffice to impose liability on for damages under section 1983 on a defendant acting in a
supervisory capacity.”).
The Second Circuit has held that:
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 [plaintiffs]
by failing to act on information indicating that unconstitutional acts
were occurring.
Raspardo, 770 F.3d at 116 (alteration in original) (quoting Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir. 1995)). In addition, a plaintiff must show that the supervisor’s actions proximately
caused the plaintiff’s constitutional deprivation. Id. “Gross negligence” denotes a higher degree
of culpability than “mere negligence.” Id. (citing Poe v. Leonard, 282 F.3d 123, 140 n.14, 146
(2d Cir. 2002)). “It is ‘the kind of conduct where the defendant has reason to know of facts
creating a high degree of risk of . . . harm to another and deliberately acts or fails to act in
conscious disregard or indifference to that risk.’” Id. (alterations in original) (internal citations
and quotation marks omitted).
Gross negligence is satisfied where “the plaintiff establishes that the defendant-supervisor
was aware of a subordinate’s prior substantial misconduct but failed to take appropriate action to
prevent future similar misconduct before the plaintiff was eventually injured.” Id. (citing, e.g.,
Johnson v. Newburgh Enlarged Sch. Dist, 239 F.3d 246, 255 (2d Cir. 2001) (holding that where
complaint alleged defendant-supervisors were aware teacher assaulted students on four prior
occasions before the teacher’s assault of plaintiff, “a jury could find the supervisors personally
19

involved in the unconstitutional deprivation on the basis that they were . . . grossly negligent in
supervising” the teacher)); see also Poe, 282 F.3d at 146 (holding that the plaintiff failed to
identify issue of fact regarding the defendant-supervisor’s alleged gross negligence where the
supervisor failed to review his subordinate’s personnel file and was aware of inappropriate but not
sexually provocative demands the employee had made to other women); Meriwether v. Coughlin,
879 F.2d 1037, 1047–48 (2d Cir. 1989) (affirming finding of supervisory liability where evidence
showed supervisors knew or should have known that the plaintiff-inmates’ reputations as alleged
planners of violent insurrection would expose them to extreme hostility form the guards, yet took
no precautions for the inmates’ safety). However, a supervisor is not grossly negligent “where the
plaintiff fails to demonstrate that the supervisor knew or should have known of a problematic
pattern of employee actions or where the supervisor took adequate remedial steps immediately
upon learning of the challenged conduct.” Raspardo, 770 F.3d at 117; see also Hayut, 352 F.3d
at 753; Colon, 58 F.3d at 873. “A plaintiff pursuing a theory of gross negligence must prove that
a supervisor’s neglect caused his subordinate to violate the plaintiff’s rights in order to succeed on
her claim.” Raspardo, 770 F.3d at 117 (citing Poe, 282 F.3d at 140).
Here, Plaintiff has not alleged that Ponte or the Doe supervisors participated directly in the
alleged constitutional violation, that they were informed of the wrong and failed to take remedial
action, that they created a policy or custom that allowed their subordinates to act deliberately
indifferent to Nelson’s medical needs, or that they were deliberately indifferent to information
that unconstitutional acts were occurring. At most, Plaintiff alleges that Ponte and the Doe
supervisors were grossly negligent in supervising the other individual defendants who perpetrated
the alleged unconstitutional acts. (See Am. Compl. ¶¶ 107–08.) Even these allegations are
conclusory and fail to demonstrate that Ponte or any other supervisor “knew or should have

20

known of a problematic pattern” that proximately caused the unconstitutional acts leading to
Nelson’s death. See Raspardo, 770 F.3d at 117. Plaintiff alleges only that the supervisor
Defendants “had a duty to supervise” that they failed to exercise “in a reasonable [manner] and
not in a negligent and/or intentionally reckless, wanton, deliberately indifferent and/or malicious
manner.” (Am. Compl. ¶¶ 104, 108.) These allegations do not plausibly state that Ponte and the
Doe supervisors “ha[d] reason to know of facts creating a high degree of risk of . . . harm to
[Nelson] and deliberately act[ed] or fail[ed] to act in conscious disregard or indifference to that
risk.” Raspardo, 770 F.3d at 116. Accordingly, Plaintiff has not stated a claim for supervisory
liability, and the Court dismisses count three of the Amended Complaint.
f.

Municipal liability claim

Plaintiff alleges in count four of the Amended Complaint that Defendants “through their
official policy-makers developed, created, facilitated, enabled and/or maintained policies,
practices and customs exhibiting deliberate indifference to and/or reckless disregard for the lives,
safety, health, physical health” and wellbeing of inmates who were in Defendants’ “exclusive
custody and care,” and those policies led to Nelson’s injuries and death. (Am. Compl. ¶ 112.)
The City argues that Plaintiff’s allegations that Defendants instituted or enabled a policy
or custom that led to Nelson’s constitutional injuries are “speculative and conclusory” and do not
state a claim for municipal liability. (Def. Mem. 15.) Plaintiff argues that Defendants have
displayed a deliberate indifference to the medial needs of the inmates in their care, as evidenced
by the City’s refusal to renew its contract with Corizon at the end of 2015, and that Nelson’s
death was a “highly predictable consequence” of such a policy of deliberate indifference. (Pl.
Opp’n Mem. 19–21.)
To establish a municipal liability claim, “a plaintiff is required to plead and prove three

21

elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.” Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir.
2010) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)). An official
municipal policy or custom may be: (1) a formal policy officially endorsed by the municipality;
(2) actions or decisions made by municipal officials with decision-making authority; (3) a practice
so persistent and widespread that it constitutes a custom of which policymakers must have been
aware; or (4) a failure by policymakers to properly train or supervise their subordinates, such that
the policymakers exercised “deliberate indifference” to the rights of the plaintiff and others
encountering those subordinates. See Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 13–
14 (2d Cir. 2015) (formal policy officially endorsed by the municipality); Matusick v. Erie Cty.
Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Carter v. Inc.
Vill. of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014) (failure to train amounting to deliberate
indifference); Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012) (policymaking official’s
“express” or “tacit” ratification of low-level employee’s actions). “Although there is no
heightened pleading requirement for complaints alleging municipal liability under [section] 1983,
a complaint does not ‘suffice if it tenders naked assertion[s] devoid of further factual
enhancement.’” Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 301–02 (S.D.N.Y. 2015)
(internal citations omitted) (first citing Leatherman v. Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993); and then citing Iqbal, 556 U.S. at 678). To survive
a motion to dismiss a municipal liability claim, “a plaintiff must allege facts tending to support, at
least circumstantially, an inference that . . . a municipal policy or custom exists.” Santos v. New
York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (citing Dwares v. City of New York, 985
F.2d 94, 100 (2d Cir. 1993)).

22

Here, Plaintiff alleges that Defendants’ conduct was “performed and . . . enabled pursuant
to a custom and practice that, while not formally approved in writing by Defendants . . . ha[s]
been adopted and practiced as a practice and custom . . . so widespread so as to have the force of
law.” (Am. Compl. ¶ 120.) Plaintiff also alleges that the City has perpetuated a “policy-inpractice” of failing to train and supervise its employees, “evidencing deliberate indifference” to
their conduct. (Id. ¶¶ 121–23.) The Court understands Plaintiff to assert multiple theories of
municipal liability: (1) a widespread practice sufficient to constitute a policy or custom; (2) a
failure to train employees to identify the medical needs of inmates; and (3) a failure to supervise
or discipline officers despite having notice of inadequate medical care. (Id. ¶¶ 121–40, 142.) The
Court considers the allegations as to each theory.
i.

Widespread practice

As noted above, a plaintiff “need not identify an express rule or regulation,” to impose
municipal liability, but can show that the practice “of municipal officials was so persistent or
widespread as to constitute a custom or usage with the force of law.” Littlejohn v. City of New
York, 795 F.3d 297, 315 (2d Cir. 2015) (quoting Patterson v. County of Oneida, 375 F.3d 206,
226 (2d Cir. 2004)). In other words, a plaintiff can show that there is “a longstanding practice or
custom which constitutes the ‘standard operating procedure’ of the local governmental entity.”
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (citing Pembaur v. City of Cincinnati,
475 U.S. 469, 485–87 (1986)). “[I]solated acts . . . by non-policymaking municipal employees
are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify
municipal liability.” Jones, 691 F.3d at 81 (citations omitted); Edrei v. City of New York, --- F.
Supp. 3d ---, ---, 2017 WL 2367992, at *9 (S.D.N.Y. May 31, 2017) (“Proof of a single incident
of unconstitutional activity is usually insufficient to demonstrate the existence of a policy, . . . .”).

23

Indeed, before the actions of subordinate city employees can give rise to section 1983 liability, the
unlawful practice must be “so manifest as to imply the constructive acquiescence of senior policymaking officials.” Newton v. City of New York, 779 F.3d 140, 156 n.18 (2d Cir. 2015) (quoting
Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 871 (2d Cir. 1992)).
There is no set number of incidents that make a practice “widespread,” and courts have
found a wide range of instances insufficient to plausibly allege a municipal custom. See Jones,
691 F.3d at 85 (finding that the plaintiff showed “two instances, or at the most three” cases of
unconstitutional conduct by a “small number of officers” that occurred “over a period of several
years,” which “fell far short of showing a policy, custom, or usage of officers” or conduct “so
persistent that it must have been known to supervisory authorities”); Giaccio v. City of New York,
308 F. App’x 470, 472 (2d Cir. 2009) (stating that the plaintiff “identifie[d], at most, only four
examples where the defendants might have disclosed positive drug test results,” and holding that
the “evidence [fell] far short of establishing a practice that is so persistent or widespread as to
justify the imposition of municipal liability” (citations and internal quotation marks omitted));
Cruz v. City of New York, No. 15-CV-2265, 2016 WL 234853, at *5 (S.D.N.Y. Jan. 19, 2016)
(“[E]ight cases cited from a municipality (New York) far bigger than Newburgh, makes the
number of cited cases particularly inadequate to demonstrate plausibly a municipal custom.”);
Tieman v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26,
2015) (finding thirteen instances of similar excessive force allegations over a four year period
were insufficient to state a custom where, during that time period “hundreds, if not thousands, of
arrests were made”).
Here, while Plaintiff identifies three other cases in which other plaintiffs allege that the
City provided inadequate medical care at its jails and detention facilities, (see Am. Compl. ¶ 116),

24

Plaintiff has not plausibly alleged that the unconstitutional deprivation of medical care is so
widespread as to constitute a municipal custom. First, the three cases that Plaintiff identifies do
not appear to have resulted in an adjudication of wrongdoing by the City. (Id. ¶ 116 (citing two
cases that settled and a third that is pending).) Allegations from other complaints, as opposed to
adjudications by courts, do not offer strong support for a municipal liability claim. See Cruz,
2016 WL 234853, at *5 (finding plaintiff’s reliance on five civil cases asserting false arrest and
malicious prosecution claims insufficient to establish a custom or policy for Monell purposes as
“[a]ll of the cases cited settled short of adjudication on the merits”); Tieman, 2015 WL 1379652,
at *17 (finding “unsubstantiated allegations in lawsuits and complaints” in other actions “not
persuasive” for purposes of alleging a widespread policy or custom).
Furthermore, it is not clear from Plaintiff’s description of the cases that the factual
allegations were similar to those here or that the City’s employees engaged in similar conduct
pursuant to the same alleged policy or custom. Even assuming that the City’s employees engaged
in the same conduct in each case, it does not follow that unconstitutional deprivation of medical
care was so widespread as to constitute a municipal policy or custom. See Rubio v. County of
Suffolk, 328 F. App’x 36, 38 (2d Cir. 2009) (“[A] few violations by a small group of subordinate
County employees with no policymaking authority [cannot] amount to the pervasive and
widespread custom or practice necessary for municipal liability.” (alteration in original)).
Plaintiff points to the City’s decision not to renew its contract with Corizon at the end of
2015 as proof that “the systemic deliberate indifference to and reckless disregard for the medical
needs of inmates like [Nelson] was so obvious and so widespread so as to form a custom and
practice,” (Am. Compl. ¶ 117), but provides no evidence that the non-renewal was related to
Corizon’s alleged treatment of inmates. Thus, although Plaintiff plausibly alleges that at least

25

some Defendants were deliberately indifferent to Nelson’s medical needs, Plaintiff fails to allege
corresponding facts from which the Court can infer that Defendants acted pursuant to an informal
municipal policy or custom.
ii.

Failure to train

“[A] city’s failure to train its subordinates satisfies the policy or custom requirement only
where the need to act is so obvious, and the inadequacy of current practices so likely to result in a
deprivation of federal rights, that the municipality or official can be found deliberately indifferent
to the need.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citing City of Canton v.
Harris, 489 U.S. 378, 390 (1989)). To show deliberate indifference, a plaintiff must allege facts
plausibly showing that (1) “a policymaker [knew] ‘to a moral certainty’ that city employees will
confront a particular situation;” (2) “the situation either presents the employee with ‘a difficult
choice of the sort that training or supervision will make less difficult’ or ‘there is a history of
employees mishandling the situation;’” and (3) “the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Wray, 490 F.3d at 195–96
(quoting Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992)); see Reynolds, 506
F.3d at 192 (same).
“[W]here . . . a city has a training program, a plaintiff must . . . ‘identify a specific
deficiency in the city’s training program and establish that that deficiency is “closely related to
the ultimate injury,” such that it “actually caused” the constitutional deprivation.’” Wray, 490
F.3d at 196 (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004)).
“The plaintiff must offer evidence to support the conclusion that the training program was
inadequate, not ‘[t]hat a particular officer may be unsatisfactorily trained’ or that ‘an otherwise
sound program has occasionally been negligently administered,’ and that a ‘hypothetically

26

well-trained officer’ would have avoided the constitutional violation.” Okin v. Vill. of CornwallOn-Hudson Police Dep’t, 577 F.3d 415, 440–41 (2d Cir. 2009) (quoting Canton, 489 U.S. at 390–
91); see Edrei, --- F. Supp. 3d at ---, 2017 WL 2367992, at *10 (finding that the plaintiffs
plausibly alleged a failure-to-train claim where the City armed police officers with powerful longrange acoustic devices and placed those officers in “expectantly volatile protests” without training
them).
Here, Plaintiff fails to allege facts to state a failure-to-train claim. Plaintiff does not
include any allegations about relevant training programs, or lack thereof, for medical health
professionals who work at City jails and detention facilities. Instead, Plaintiff relies on the same
conclusory allegation throughout the Amended Complaint — that Defendants “failed to
adequately screen for hiring and retention and failed to discipline, train, or otherwise supervise
and control their officers, doctors, nurses, medical staff, medical personnel and/or employees.”
(Am. Compl. ¶ 113.) This general and conclusory allegation is insufficient to plausible allege “a
specific deficiency in the [C]ity’s training program . . . [that] is closely related to [the] ultimate
injury, such that it ‘actually caused’ [Nelson’s] constitution deprivation.” See Wray, 490 F.3d at
196. Accordingly, Plaintiff has failed to state a claim for municipal liability based on a failure-totrain theory.
iii. Failure to supervise or discipline
A failure to “supervise city employees may constitute an official policy or custom if the
failure amounts to ‘deliberate indifference’ to the rights of those with whom the city employees
interact.” Wray, 490 F.3d at 195–96 (quoting Canton, 489 U.S. at 388). Similarly, “municipal
inaction such as the persistent failure to discipline subordinates who violate civil rights could give
rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct

27

within the meaning of Monell.” Batista, 702 F.2d at 397 (collecting cases). “Where plaintiffs
seek to hold a municipality liable under a theory of failure to supervise or discipline, . . . they
must also show that the municipal policymaker acted with deliberate indifference.” Pipitone v.
City of New York, 57 F. Supp. 3d 173, 191 (E.D.N.Y. 2014) (citing Canton, 489 U.S. at 388–89);
see Wray, 490 F.3d at 195 (“The failure to train or supervise city employees may constitute an
official policy or custom if the failure amounts to ‘deliberate indifference’ to the rights of those
with whom the city employees interact.” (citing Canton, 489 U.S. at 388)). Under that standard,
“where the need for more or better supervision to protect against constitutional violations was
obvious, but the policymaker failed to make meaningful efforts to address the risk of harm to
plaintiffs,” deliberate indifference “may be inferred.” Cash v. County of Erie, 654 F.3d 324, 334
(2d Cir. 2011) (alterations, citations, and internal quotation marks omitted); see also Crenshaw v.
N.Y.C. Hous. Auth., --- F. App’x ---, ---, 2017 WL 2644637, at *4 (2d Cir. June 20, 2017)
(explaining that where a policymaker “exhibits deliberate indifference to constitutional
deprivations caused by subordinates,” the “acquiescence may be properly thought of as a city
policy or custom that is actionable under § 1983” (internal quotation marks omitted) (citing
Amnesty Am., 361 F.3d at 126)).
Plaintiff has failed to plead a municipal liability claim based on a theory of failure to
supervise or discipline. Plaintiff makes no factual allegations to support her claim that the
individual Defendants were not appropriately supervised or that the institutional Defendants failed
to supervise their employees; she states only that “Defendants knew of the systemic failure/refusal
to provide proper, timely and adequate medical care to inmates like [Nelson], . . . as the City has
been sued for years for failing to provide inmates” with adequate medical care, and that
Defendants foreseeably allowed their employees to “violate the Constitutional rights of inmates”

28

and endanger inmates’ health and safety by failing to punish employees for unlawful conduct.
(Am. Compl. ¶¶ 114, 116.) Plaintiff’s allegations do not allow the Court to infer that there was an
“obvious” need “for more or better supervision to protect against constitutional violations,” or
that Defendants failed to heed that need. See Cash, 654 F.3d at 334.
Because Plaintiff has not adequately alleged any theory of municipal liability, the Court
dismisses Plaintiff’s claim for municipal liability.
g.

“Caused to be subjected”

Plaintiff alleges in count six of the Amended Complaint that Defendants “directly and
proximately caused [Nelson] to be subjected to . . . unlawful seizure of his person, cruel and
unusual punishment, denial of medical treatment, denial of due process” and various other
injuries, in violation of section 1983. (Am. Compl. ¶¶ 155–59.) The City argues that Plaintiff
fails to allege a valid claim in count six. (Def. Mem. 17.) Plaintiff does not respond to this
argument.
To the extent that Plaintiff seeks to bring a claim for a violation of Nelson’s due process or
other constitutional rights, that claim appears to be duplicative of her claim in count one. The
Court otherwise dismisses any claim for “caused to be subjected,” which is not a cognizable claim
under section 1983.
h.

Intentional and negligent infliction of emotional distress

Plaintiff alleges in count nine of the Amended Complaint that Defendants “engaged in
extreme and outrageous conduct and intentionally, recklessly, wantonly, maliciously and/or
negligently caus[ed] [Nelson], Plaintiff and [Nelson’s] two minor children to suffer severe
emotional distress.” (Am. Compl. ¶ 203.)
The City argues that Plaintiff’s allegations are conclusory and that in New York, negligent

29

infliction of emotional distress and intentional infliction of emotional distress are theories of
recovery that can only be invoked when other tort remedies are not available. (Def. Mem. 17.)
Plaintiff does not respond to the City’s argument.
i.

Intentional infliction of emotional distress claim

To state a claim for intentional infliction of emotional distress in New York, a plaintiff
must allege that the defendant engaged in “extreme and outrageous conduct, which so transcends
the bounds of decency so as to be regarded as atrocious and intolerable in a civilized society.”
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 157 (2d Cir. 2014) (quoting Freihofer v. Hearst
Corp., 65 N.Y.2d 135, 143 (1985)). “To prevail on such a claim, a plaintiff must establish that
there was ‘extreme and outrageous conduct,’ that the conduct was undertaken with ‘intent to
cause, or disregard of a substantial probability of causing, severe emotional distress,’ and that the
conduct did in fact cause severe emotional distress.” Id. at 157–58 (quoting Howell v. N.Y. Post
Co., 81 N.Y.2d 115, 121 (1993)); see also Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)
(“Under New York law, a claim for intentional infliction of emotional distress requires a showing
of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial
probability of causing, severe emotional distress; (3) a causal connection between the conduct and
the injury; and (4) severe emotional distress.”). “Whether the conduct alleged may reasonably be
regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine
in the first instance.” Stuto, 164 F.3d at 827.
Moreover, intentional infliction of emotional distress is a “highly disfavored [tort] under
New York law,” Turley, 774 F.3d at 158 (quoting Nevin v. Citibank, N.A., 107 F. Supp. 2d 333,
345–46 (S.D.N.Y. 2000)), and it is “to be invoked only as a last resort,” id. (quoting McIntyre v.
Manhattan Ford, Lincoln–Mercury, Inc., 682 N.Y.S.2d 167 (App. Div. 1998)). “[A]lthough the

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New York Court of Appeals has not set forth detailed guidelines for when the tort [of intentional
infliction of emotional distress] may be available, it has cautioned that a claim for [intentional
infliction of emotional distress] may not be sustainable ‘where the conduct complained of falls
well within the ambit of other traditional tort liability.’” Id. at 159 (quoting Fischer v. Maloney,
43 N.Y.2d 553, 557–58 (1978)); see also Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015)
(“[U]nder New York law, an intentional infliction tort ‘may be invoked only as a last resort . . . to
provide relief in those circumstances where traditional theories of recovery do not.’” (citations
omitted)); Lloyd v. City of New York, --- F. Supp. 3d ---, ---, 2017 WL 1207838, at *19 (S.D.N.Y.
Mar. 31, 2017) (quoting Salmon, 802 F.3d at 256). For example, “[o]ther New York courts have
applied this dictum to exclude claims for intentional infliction where a cause of action for
defamation may be asserted on the facts of the case.” Turley, 774 F.3d at 159 (collecting cases).
Here, Plaintiff fails to plead a claim for intentional infliction of emotional distress because
her allegations are wholly conclusory and state only the elements of the claim, without factual
allegations to explain what particular conduct was “extreme and outrageous” and from what facts
the Court can infer that Defendants intended to cause, or recklessly disregarded the risk of
causing, severe emotional distress. See Turley, 774 F.3d at 159; (id. ¶¶ 202–207). In addition,
Plaintiff’s claim for “negligent and/or intentional infliction of emotional distress” stems from the
same conduct as her claims for wrongful death, negligence, medical malpractice and loss of
consortium — namely, Defendants’ alleged deliberate indifference to Nelson’s medical needs and
the resulting injuries and death to Nelson. The Court therefore dismisses Plaintiff’s claim for
intentional infliction of emotional distress.
ii.

Negligent infliction of emotional distress claim

“Under New York law, a plaintiff may establish [a claim for negligent infliction of

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emotional distress] in one of two ways: (1) the ‘bystander’ theory; or (2) the ‘direct duty theory.’”
Lloyd, --- F. Supp. at ---, 2017 WL 1207838, at *20 (quoting Baker v. Dorfman, 239 F.3d 415,
421 (2d Cir. 2000)). The “bystander theory” provides that
A defendant’s conduct is negligent [where it creates] an
unreasonable risk of bodily harm to a plaintiff and such conduct is a
substantial factor in bringing about injuries to the plaintiff in
consequence of shock or fright resulting from his or her
contemporaneous observation of a serious physical injury or death
inflicted by the defendant’s conduct on a member of the plaintiff’s
immediate family in his or her presence.
Baker, 239 F.3d at 421 (emphasis added) (quoting Bovsun v. Sanperi, 61 N.Y.2d 219, 224
(1984)). Under the “direct duty” theory, “a plaintiff suffers emotional distress caused by [a]
defendant’s breach of a duty which unreasonably endangered [the plaintiff’s] own physical
safety.” Id. (citation and internal quotation marks omitted).
Plaintiff has not stated a claim for negligent infliction of emotional distress under either
theory. Based on the facts in the Amended Complaint, Plaintiff did not suffer an “unreasonable
risk of bodily harm” from any “contemporaneous observation” of Defendants’ alleged conduct
toward Nelson, which conduct would have to have caused “serious physical injury or death” in
Plaintiff’s presence. See Baker, 239 F.3d at 421. Nor has Plaintiff pled a direct duty theory,
under which Defendants would have had to “unreasonably endanger” Plaintiff’s “own physical
safety.” See id.
The Court therefore dismisses Plaintiff’s claim for negligent infliction of emotional
distress.
III. Conclusion
For the foregoing reasons, the Court denies the City’s motion to dismiss for insufficient
service of process and personal jurisdiction. The Court grants the City’s motion to dismiss for
failure to state a claim and dismisses Plaintiff’s Fourth and Eighth Amendment claims, conspiracy
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claims under sections 1983 and 1985, failure to intercede claim under section 1986, as well as
Plaintiff’s claims for supervisory liability, municipal liability, “caused to be subjected” under
section 1983 and negligent and intentional infliction of emotional distress.
The Court grants Plaintiff thirty days from the date of this Memorandum and Order to
serve Defendants with a signed and sealed summons and the Amended Complaint pursuant to
Rule 4 of the Federal Rules of Civil Procedure. If Plaintiff fails to serve Defendants in
compliance with Rule 4 within thirty days, the Court will dismiss the Amended Complaint. If
Plaintiff properly serves Defendants within thirty days, her claims for deliberate indifference to
Nelson’s medical needs, medical malpractice, wrongful death, general negligence, loss of
consortium and punitive damages will proceed.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: July 21, 2017
Brooklyn, New York

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