Warren v. City of New York Department of Correctional Medical Staff et al

Filing 9

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. The Complaint is dismissed as to Drs. Linda Rogers and Matthew Lee pursuant to 28 U.S.C. § 1915(e)(2)(B), and also as to FDNY EMT Ja ne Doe #1 and FDNY EMT Jane Doe #2. No summons shall issue as to these Defendants. Plaintiff is granted leave to amend his Complaint with respect to these Defendants. Any amended complaint must be filed within amended complaint within thirty (30) d ays of this Memorandum & Order. Further, Plaintiffs application for pro bono counsel is denied without prejudice. There is no right to counsel in a civil case. Martin-Trigona v. Lavien, 737 F.2d 1254, 1260 (2d Cir. 1984).Plaintiff 9;s claims against Dr. John Doe, Head Medical Doctor, shall proceed. The United States Marshals Service, however, will not be able to serve Dr. John Doe without further identifying information. Accordingly, the Court hereby requests that Corporatio n Counsel for the City of New York ascertain the full name of Dr. John Doe. Once this information is provided, Plaintiff's Complaint shall be deemed amended to reflect the full name of the unnamed doctor, an amended summons shall be issued, and the Court shall direct service on this defendant. This case is respectfully referred to the Honorable Lois Bloom, United States Magistrate Judge, for pretrial supervision. The Clerk of Court is respectfully directed to serve a copy of this Order, a copy of the Complaint, a copy of the in forma pauperis application, and a copy of the Docket on the Corporation Counsel for the City of New York, Special Federal Litigation Division. The Clerk of Court is also respectfully directed to mail a copy of this Order and a copy of the Docket to Plaintiff. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 5/19/2017. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHARLES D. WARREN,
NOT FOR PUBLICATION
Plaintiff,
-against-

MEMORANDUM & ORDER
17-CV-1125 (PKC) (LB)

CITY OF NEW YORK DEPARTMENT OF
CORRECTION MEDICAL STAFF, CITY
OF NEW YORK FDNY EMT EMERGENCY
AMBULANCE PERSONAL, JOHN DOE,
Head Medical Doctor; JANE DOE #1, FDNY
EMT Ambulance Emergency Response;
JANE DOE #2, FDNY EMT Ambulance
Emergency Response; LINDA ROGERS, M.D.,
Bellevue Hospital and MATHEW LEE, M.D.,
Bellevue Hospital,
Defendants. 1
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PAMELA K. CHEN, United States District Judge:
On February 22, 2017, Plaintiff Charles D. Warren, currently incarcerated at Attica
Correctional Facility, filed this pro se action against Defendants pursuant to 42 U.S.C. § 1983.
The Court grants Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
The Complaint is dismissed in part as set forth below.
BACKGROUND
Plaintiff alleges that on April 28, 2014, while incarcerated on Rikers Island, a physician
identified in the complaint as “John Doe, Head Medical Doctor” denied him adequate medical

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Contrary to Plaintiff’s caption, he provides a list of five individual defendants in the
Complaint. (See Complaint (“Compl.”), Dkt. 1, at ECF 2-3.) Citations to “ECF” refer to the
pagination generated by the Court’s electronic docketing system, and not the document’s internal
pagination.
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treatment for an asthma attack and then later refused to treat him for a second asthma attack on the
same day. (Compl. at ECF 4-5, 7.) Plaintiff waited for the next shift doctor who provided further
medical care. Plaintiff’s condition did not improve and the second doctor called 911. (Id. at 7.)
An ambulance, staffed with two female emergency medical technicians (“EMTs”) from
the New York City Fire Department (“FDNY”) arrived to take defendant to the hospital. (Id.)
While en route to the hospital, Plaintiff alleges that the EMTs injected him with a steroid that
caused a severe allergic reaction and that he stopped breathing and “died.” (Id.) Plaintiff was
taken to Elmhurst Hospital where he was treated by Dr. Linda Rogers and placed in the intensive
care unit. (Id.) Later, he was transferred to Bellevue Hospital, from which he was discharged on
May 2, 2014. (Id. at 7, 9, 10.) He seeks damages of $100 million for his claims. (Id. at 12.)
STANDARD OF REVIEW
In reviewing the Complaint, the Court is mindful that Plaintiff is proceeding pro se and
that his pleadings should be held “to less stringent standards than formal pleadings drafted by
lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980); accord Erickson v. Pardus, 551 U.S. 89, 94
(2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). A complaint, however, must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
Nonetheless, the Court must screen civil complaints brought by prisoners against a
governmental entity or its agents, and dismiss the complaint or any portion of the complaint that
is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915A(a) & (b)(1); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Similarly, pursuant to
the in forma pauperis statute, the Court must dismiss the action for the same reasons or if the
plaintiff “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). The Court should generally not dismiss a pro se complaint without granting the
plaintiff leave to amend if a valid claim could be stated. See Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000).
DISCUSSION
As a prerequisite to a damage award under 42 U.S.C. § 1983, a plaintiff must allege the
defendant’s direct or personal involvement in the alleged constitutional deprivation. “‘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.’” Farid v. Ellen, 593 F.3d 233, 249 (2d
Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006); Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995). Here, Plaintiff does not allege the personal involvement of Dr. Linda
Rogers or Dr. Matthew Lee. Plaintiff’s sole allegation against Dr. Rogers is that she provided
medical treatment at Elmhurst Hospital, and Plaintiff does not allege that Dr. Rogers violated his
constitutional rights. Nor does Plaintiff allege that Dr. Lee violated his constitutional rights.
Plaintiff only attaches to the Complaint a Discharge Summary, dated May 2, 2014, from Bellevue
Hospital that was written by Dr. Matthew Lee. (Compl. at ECF 10.) A § 1983 claim that does not
allege the personal involvement of a defendant fails as a matter of law. See Johnson v. Barney,
360 F. App’x 199, 201 (2d Cir. 2010) (summary order). Therefore, the claims against Drs. Linda
Rogers and Matthew Lee are dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B).
Furthermore, Plaintiff’s negligence claim against FDNY EMT Jane Doe #1 and FDNY
EMT Jane Doe #2 fails to state a federal claim. Merely negligent conduct causing unintended loss

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or injury to life, liberty or property is not sufficient to state a claim under the Due Process Clause
or any other provision of federal law. Daniels v. Williams, 474 U.S. 327, 333 (1986) (due process
protections not triggered by lack of due care by state officials); Davidson v. Cannon, 474 U.S. 344,
347-48 (1986) (although official’s negligence led to serious injury, Constitution does not provide
a due process right to compensate injury arising from negligence). Because the named FDNY
EMTs are New York City employees, in order to proceed on this common law negligence claim
under the Court’s supplemental jurisdiction, see 28 U.S.C. § 1367, Plaintiff must show that he filed
a timely notice of claim, as required by New York law, against the EMTs. 2 The Complaint makes
no mention of Plaintiff having done so. Accordingly, Plaintiff’s negligence claim against FDNY
EMT Jane Doe #1 and FDNY EMT Jane Doe #2 is dismissed.
CONCLUSION
The Complaint, filed in forma pauperis, is dismissed as to Drs. Linda Rogers and Matthew
Lee pursuant to 28 U.S.C. § 1915(e)(2)(B), and also as to FDNY EMT Jane Doe #1 and FDNY
EMT Jane Doe #2. No summons shall issue as to these Defendants.
Plaintiff is granted leave to amend his Complaint with respect to these Defendants.
Any amended complaint must be filed within amended complaint within thirty (30) days of this
Memorandum & Order. With respect to FDNY EMT Jane Doe #1 and FDNY EMT Jane Doe #2,
if Plaintiff did file a timely notice of claim against them, he must state that fact in the amended

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“Under New York law, a notice of claim is a condition precedent to bringing certain tort
actions against a municipality such as the City for damages sustained by reason of the negligence
or wrongful act of the municipality or its officers, agents, or employees.” Matthews v. City of New
York, No. 15-CV-2311 (ALC), 2016 WL 5793414, at *10 (S.D.N.Y. Sept. 30, 2016) (citations
omitted); see also N.Y. Gen. Mun. Law § 50-i. “Generally, ‘in a federal court, state notice-ofclaim statutes apply to state-law claims.’” Matthews, 2016 WL 5793414, at *10 (citation omitted).
A notice of claim must be filed “within ninety days after the claim arises” and must include “the
nature of the claim” and “the time when, the place where and the manner in which the claim arose.”
N.Y. Gen. Mun. Law § 50-e.
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complaint and also attach a copy of the notice of claim to the amended complaint. Failure to attach
a timely notice of claim, if one exists, will lead to the dismissal of the negligence claim with
prejudice.
Further, Plaintiff’s application for pro bono counsel is denied. There is no right to counsel
in a civil case. Martin-Trigona v. Lavien, 737 F.2d 1254, 1260 (2d Cir. 1984). The court cannot
compel an attorney to represent a litigant in a civil case without a fee. While the court may request
a volunteer attorney for a particular case, there must be a threshold showing that the plaintiff’s
claims are likely to be of substance. At this stage in the litigation, Plaintiff has not met this
threshold requirement. Accordingly, this request for pro bono counsel is denied without prejudice.
Plaintiff’s claims against Dr. John Doe, Head Medical Doctor, employed at the Anna M.
Kross Center (“AMKC”) on April 28, 2014, who allegedly denied him medical treatment, shall
proceed. The United States Marshals Service, however, will not be able to serve Dr. John Doe
without further identifying information. The problem encountered by Plaintiff is a common one
as it is frequently difficult for an incarcerated pro se litigant to identify individual prison or law
enforcement officials. In Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (per curiam), the
Second Circuit made clear that a pro se litigant is entitled to assistance from the district court in
identifying unnamed prison or law enforcement defendants.
Accordingly, the Court hereby requests that Corporation Counsel for the City of New York
ascertain the full name of Dr. John Doe, who was employed at AMKC on April 28, 2014, and who
allegedly was involved in the denial of Plaintiff’s request for medical care. The Corporation
Counsel’s Office need not undertake to defend or indemnify this individual at this juncture. This
Order merely provides a means by which Plaintiff may name and properly serve Defendant John
Doe, Head Medical Doctor as instructed by the Second Circuit in Valentin. Once this information

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is provided, Plaintiff’s Complaint shall be deemed amended to reflect the full name of the unnamed
doctor, an amended summons shall be issued, and the Court shall direct service on this defendant.
The Clerk of Court is respectfully directed to serve a copy of this Order, a copy of the
Complaint, a copy of the in forma pauperis application, and a copy of the Docket on the
Corporation Counsel for the City of New York, Special Federal Litigation Division. The Clerk of
Court is also respectfully directed to mail a copy of this Order on Plaintiff. This case is respectfully
referred to the Honorable Lois Bloom, United States Magistrate Judge, for pretrial supervision.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore in forma pauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 19, 2017
Brooklyn, New York

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