Gurrieri v. The County of Suffolk et al
MEMORANDUM AND ORDER granting in part and denying in part 39 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, Defendants' motion to dismiss claims against Defendants Romeo, Rosen, Magyar and Iatauro is denie d; the motion to dismiss claims against DefendantsWebber, DeMarco and Tomarken in their individual capacities is also denied; and the motion to dismiss claims against Defendants Webber, DeMarco and Tomarken in their official capacities is granted. (Ordered by Judge Leonard D. Wexler on 5/27/2014.) (Fagan, Linda)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
THE COUNTY OF SUFFOLK, NEW YORK;
COMMISSIONER EDWARD WEBBER;
SHERIFF VINCENT F. DEMARCO;
COMMISSIONER JAMES L.TOMARKEN, M.D.;
HUNTINGTON HOSPITAL ASSOCIATION;
SARALA K. REDDY, M.D.; SUFFOLK COUNTY
POLICE OFFICER ROBERT J. ROMEO, SHIELD
NO. 5025; SUFFOLK COUNTY POLICE OFFICER
MICHAEL ROSEN, SHIELD NO. 5563; SUFFOLK
COUNTY POLICE OFFICER JAMES L. MAGYAR,
III, SHIELD NO. 4759; SUFFOLK COUNTY
POLICE OFFICER ANN MARIE IATAURO,
SHIELD NO. 3869; SUFFOLK COUNTY
CORRECTIONS OFFICER MICHAEL WYNNE;
SUFFOLK COUNTY DEPARTMENT OF HEALTH
SERVICES PHYSICIAN VINCENT GERACI, D.O.;
SUFFOLK COUNTY CORRECTIONS OFFICER
CHARLES WAGNER, SHIELD NO. 1225; AND
JOHN AND JANE DOES 1-18,
Kreindler & Kreindler LLP
By: Robert J. Spragg, Esq.
Francis G. Fleming, Esq.
Megan Benett, Esq.
750 Third Ave, 32"ct Fl.
New York, NY 10017
Attorneys for Plaintiffs
Bode & Grenier LLP
By: Peter C. Grenier, Esq.
IN CLERK'S OFFICE
U S DISTRICT COURTED N Y
MAY 27 Z014
LONG ISLAND OFFICE
Andre C. Gregorian, Esq.
1150 Connecticut Avenue, N.W., 91h Fl.
Washington, D.C. 20036
Attorneys for Plaintiff
Dennis M. Brown
Suffolk County Attorney
By: Susan A. Flynn, Esq.
H. Lee Dennison Building
P.O. Box 6100 100 Veterans Memorial Highway
Hauppauge, NY 11788-0099
Attorney for Defendants
WEXLER, District Judge:
Plaintiff Michael Gurrieri ("Gurrieri" or "Plaintiff") brings this action including federal
civil rights claims pursuant to 42 U.S.C. § 1983, claims in violation ofthe New York State
Constitution and under New York statutory and common law, including negligence, gross
negligence and medical malpractice. The claims are brought against the County of Suffolk
("County"), Commissioner Edward Webber ("Webber"), Sheriff Vincent F. DeMarco
("DeMarco"), Commissioner James L. Tomarken, M.D. ("Tomarken"), Huntington Hospital
Association ("Huntington Hospital"), Sarala K. Reddy, M.D. ("Reddy"), Suffolk County Police
Officer Robert J. Romeo ("Romeo"), Suffolk County Police Officer Michael Rosen ("Rosen"),
Suffolk County Police Officer James L. Magyar, III ("Magyar"), Suffolk County Police Officer
Ann Marie Iatauro ("Iatauro"), Suffolk County Corrections Officer Michael Wynne ("Wynne"),
Suffolk County Department of Health Services Physician Vincent Geraci, D.O. ("Geraci"), and
Suffolk County Corrections Officer Charles Wagner ("Wagner") (collectively "Defendants").
Defendants Romeo, Rosen, Magyar and Iatauro (collectively "Police Officer Defendants") and
Defendants Webber, DeMarco and Tomarken move to dismiss certain claims against them
pursuant to Federal Rules of Civil Procedure ("Fed.R.Civ.P."), Rule 12(b)(6). For the reasons
stated below, the motions are denied, except that the claims against Defendants Webber,
DeMarco and Tomarken in their official capacity are dismissed.
The following relevant facts are taken from Plaintiffs First Amended Complaint ("Am.
Cmplt."): On December 22,2011, Plaintiffwas arrested by Suffolk County Police Officer,
Defendant Romeo, in connection with a domestic dispute complaint lodged by his girlfriend.
Am Cmplt., ~ 27. Prior to his arrest, Plaintiff ingested numerous pills and typed a suicide note.
Am. Cmplt., ~ 28. While at his home, while being transported to the police precinct, and once at
the precinct, Plaintiff told the Suffolk County Police Officers, including Romeo, that he was
contemplating suicide. Am. Cmplt., ~ 29. While at the precinct, Plaintiff told several Suffolk
County Police Officers that he wanted to kill himself, who laughed in response and refused to
provide treatment. Am. Cmplt., ~ 31.
The next morning, on December 23, 2011, Suffolk County Police Officer Defendant
Rosen brought Plaintiff to Huntington Hospital ("Huntington" or "Hospital") to have his hand
examined for an injury sustained just prior to his arrest. Am. Cmplt.,
32. While at Huntington
Hospital, Plaintiff told the medical staff of his intention to commit suicide and asked to see Dr.
Sarala Reddy, a psychiatrist from whom Plaintiff had previously received treatment for bipolar
disorder. Am. Cmplt., ~ 33-34. Suffolk Police Officer Defendant Magyar had custody of
Plaintiff while he was seen by Dr. Reddy. Am. Cmplt., ~ 33. The staff at Huntington Hospital
and Dr. Reddy did not admit Plaintiff. They deemed him "fit for confinement" and did not
instruct the Suffolk County Police Department or anyone else that Plaintiff be placed on suicide
watch or housed in a special observation jail unit. Am. Cmplt., ,-[ 34. Before being taken from
the Hospital, Plaintiff told Defendant Magyar that he wanted to commit suicide but Magyar took
no action. Defendant Magyar brought Plaintiff back to the precinct. Am. Cmplt., ,-[ 35.
From the precinct, Suffolk County Police Officer Defendant Iatauro took Plaintiff to his
arraignment. Plaintiff informed Iatauro while being transported that he was contemplating
suicide, but no action was taken. Am. Cmplt., ,-[ 36. Afterwards, officers of the Suffolk County
Sheriffs office took Plaintiff to the Suffolk County Correctional Facility in Riverhead. Plaintiff
told those officers of his intent to commit suicide but no action was taken. Am. Cmplt., ,-[ 37.
Due to his prior confinements in that jail, the Sheriffs Office and the Suffolk County
Department of Health Services staff at Riverhead Jail were aware of Plaintiffs psychological
history, and upon information and belief, were told he had attempted suicide on December 22,
2011 and that he told the Suffolk County Police Officers, Huntington Hospital and Dr. Reddy of
his intention to commit suicide. Am. Cmplt., ,-[ 39-40.
Once at Riverhead Jail, Plaintiff told the Sheriffs Office personnel and Suffolk County
Department of Health Services personnel that he wanted to kill himself and asked for a referral to
the medical health provider he had previously seen there. They laughed in response and told him
to be quiet. Despite this, neither Sheriffs Office personnel, nor Suffolk County Department of
Health personnel, put Plaintiff on suicide watch and incarcerated him with the general jail
population. Am. Cmplt., ,-[ 41-42. Plaintiff continued to tell Sheriffs Office personnel and
Department of Health personnel that he wanted to kill himself, but they took no action, nor did
they provide Plaintiff with the medication he had been prescribed for his bipolar disorder while
he was held in jail on December 23 and 24, 2011. Am. Cmplt., ,-[ 43-44.
On December 24,2011, Plaintiff attempted to commit suicide by jumping offthe second
level mezzanine of one of the pods of the jail. Am. Cmplt., ~ 45. Plaintiff hit the concrete floor
head first, and suffered a spinal cord fracture, multiple fractures of the vertebrae in his neck and
back and a severe brain injury. Am. Cmplt.,
the waist down. Am. Cmplt.,
46. Plaintiff is now permanently paralyzed from
Plaintiff's amended complaint alleges eight claims, including claims for violations of
Plaintiff's 14'h Amendment rights pursuant to 42 U.S.C. § 1983 against all the individual
defendants, a Monell claim under 42 U.S.C. § 1983 against Suffolk County and Defendants
Commissioner Webber (ofthe Suffolk County Police Department), Sheriff DeMarco (the Suffolk
County Sheriff) and Commissioner Tomarken (of the Suffolk County Department of Health
Services) in their official capacities, a claim for a violation of Plaintiff's due process rights under
the New York State Constitution, negligence, gross negligence against all defendants, and
medical malpractice against Dr. Reddy and Huntington Hospital.
Certain Defendants move to dismiss. Namely, the Suffolk County Police Officer
Defendants - Romeo, Rosen, Magyar and Iatauro - argue that Plaintiff fails to state a claim that
they were deliberately indifferent to Plaintiff's medical needs or negligent, and that they are
entitled to qualified immunity. Defendants Webber, DeMarco and Tomarken argue that Plaintiff
fails to allege the personal involvement required to hold them individually liable under 42 U.S.C.
§ 1983, and that the claims against them in their official capacity are duplicative of the claims
against the County and therefore should be dismissed. For the reasons that follow, Defendants'
motion is denied, except as to the claims against Webber, DeMarco and Tomarken in their
Standards on Motion to Dismiss
In considering a motion to dismiss made pursuant to Rule 12(b)( 6), the court must accept
the factual allegations in the complaints as true, and draw all reasonable inferences in favor of
Plaintiff. Bold Electric, Inc. v. City ofNew York, 53 F.3d 465, 469 (2d Cir. 1995). In Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court rejected the standard set
forth in Conley v. Gibson, 355 U.S. 41 (1957), that a complaint should not be dismissed, "unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief," id. at 45-46. The Supreme Court discarded the "no set of facts"
language in favor of the requirement that plaintiff plead enough facts "to state a claim for relief
that is plausible on its face." Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Although heightened factual pleading is not the new standard, Twombley holds
that a "formulaic recitation of cause of action's elements will not do ... Factual allegations must
be enough to raise a right to relief above the speculative level." Twombley, at 555. A pleading
need not contain "'detailed factual allegations,"' but must contain more than "an unadorned,
the-defendant-unlawfully-harmed-me accusation." Iqbal, at 678, quoting Twombley, at 555, 127
S.Ct. 1955 (other citations omitted). Reciting bare legal conclusions is insufficient, and "[w ]hen
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief." Iqbal, at 679.
"Determining whether a complaint states a plausible claim for relief' is a "context-specific task
that requires the reviewing court to draw on its judicial experience and common sense." Id.
Motion to Dismiss by the Police Officer Defendants
Defendant Police Officers Romeo, Rosen, Magyar and Iatauro move to dismiss, arguing
that they did what they were required to do -- namely take Plaintiff to be seen by a mental health
professional -- and therefore they did not act with deliberate indifference to his medical needs or
with negligence. They also argue they are entitled to qualified immunity. See Defendants'
Memorandum of Law, at 1-5. According to Plaintiffs complaint, the Police Officer Defendants
ignored Plaintiffs allegedly persistent claims of suicidal intentions from the time of his arrest,
through the time he was held in the precinct, through the time he was taken to Huntington
Hospital for a hand injury and discharged on December 23, 2011, and through his arraignment. 1
Plaintiffs complaint alleges to that once he was at the Riverhead JaiV the Sheriffs Office and
the Suffolk County Department of Health Office personnel, despite knowing his psychological
history, failed to place him on suicide watch, placed him with the general jail population and did
not provide him his medication. Am. Cmplt., ~ 37-45. Plaintiff also argues that Dr. Reddy
and/or Huntington Hospital's claim that Plaintiff was "fit for confinement" was unclear, and does
not indicate what, if any, guidance was provided regarding how to treat, handle or confine
Plaintiff following his release from Huntington. Plaintiff jumped from the mezzanine on
December 24, 2011. Am Cmplt., ~ 27-45.
Claim of Deliberate Indifference and Negligence
To state a claim for deliberate indifference to a medial need, Plaintiff must show that the
The amended complaint does not specify the exact time any of the events occurred.
According to the amended complaint, the Suffolk County Sheriffs Office took custody
ofPlaintifffrom the arraignment and transported him to Riverhead Jail. Am. Cmplt., ~ 37.
official "knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994);
see also Caiozzo v. Koreman, 581 F.3d 63, 66 (2d Cir. 2009) (acknowledging the Farmer
elements and holding that a subjective standard is to be applied in Fourteenth Amendment
deliberate indifference claims brought by pretrial detainees in state custody). The Court must
accept Plaintiffs allegations as true- namely, that the Police Officer Defendants ignored
Plaintiffs claims that he wanted to commit suicide throughout the following events: when they
first arrested him on December 22, 2011 and learned he had ingested a dangerous amount of pills
and written a suicide note, throughout the period of time they had him at the precinct, while they
transported him to the hospital for his hand injury on the morning of December 23, 2011, upon
his discharge from the hospital, and while being transported to and during his arraignment, until
such time as the Sheriffs Office took custody of him. The Court finds that these allegations
adequately plead a claim for deliberate indifference to Plaintiffs medical needs, as well as for
negligence. Therefore, Defendants' motion to dismiss these claims against Defendants Romeo,
Rosen, Magyar and Iatauro is denied.
The Police Officer Defendants also argue that the they are protected by qualified
immunity and therefore the claims against them should be dismissed. A "police officer is
entitled to qualified immunity where '(1) his conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known, or (2) it was
'objectively reasonable' for him to believe that his actions were lawful at the time of the
challenged act."' Jenkins v. City ofNew York, 478 F.3d 76, 87 (2d Cir. 2007), quoting Cerrone
v. Brown, 246 F.3d 194, 199 (2d Cir. 2001).
Plaintiff's complaint alleges that the Defendants violated his constitutional rights to
"personal security and protection under the Fourteenth Amendment" by failing to adequately
protect and treat plaintiff while he was in Defendants' custody and control. Am. Cmplt., ~51,
59, 69. Defendants stress that they are entitled to qualified immunity since they did bring
Plaintiff to a mental health professional, and that there is no constitutional right to see a mental
health professional "each and every time he expresses suicidal thoughts." See Defendants' Reply
Memorandum ofLaw, at 2. Yet, the thrust of Plaintiff's claims against these Defendants is that
they violated his rights from the time of his arrest, before he was taken to Huntington Hospital,
after he left the hospital, and through and following his arraignment, at which time the Sheriff's
Office took custody of him.
On this motion to dismiss, the Court looks to the facts alleged in Plaintiff's complaint.
Plaintiffs version ofthe facts is presumed to be true, and "the question to be answered is whether
the defendant officer, confronted with the facts as alleged by plaintiff, could reasonably have
believed that his actions did not violate some settled constitutional right." 5 Borough Pawn, LLC
v. City ofNew York, 640 F.Supp.2d 268, 285 (S.D.N.Y. 2009), citing Stephenson v. Doe, 332
F.3d 68 (2d Cir. 2003) and Kelsey v. The County of Schoharie, 567 F.3d 54, 60-61 (2d Cir.
2009). Accepting Plaintiff's facts as true and without more factual development, the Court is
unable to find that the Defendants acted in an objectively reasonable manner as a matter of law.
See Biswas v. City ofNew York, 973 F.Supp.2d 504, 521 (S.D.N.Y. 2013) (motion to dismiss is
too early to determine if the officers were objectively reasonably as a matter of law to benefit
from qualified immunity). Therefore Defendants' motion to dismiss on this basis is denied.
Motion to Dismiss by the Supervisor Defendants
Individual Claims Under § 1983
It is well-settled in this Circuit that the "personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under§ 1983." Houston v.
Nassau County, 2012 WL 729352, *5 (E.D.N.Y. 2012), citing McKinnon v. Patterson, 568 F.2d
930, 934 (2d Cir.1977); see Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1987). Merely being a
supervisor of one of the actors is not sufficient. Leshore v. Commissioner of Long Beach P.D.,
2012 WL 1032643, *6 (E.D.N.Y. 2012). "The personal involvement of a supervisory defendant
may be shown by evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the violation through a report
or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4)
the defendant was grossly negligent in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to
act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995), citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting
Williams v. Smith, 781 F.2d 319,323-24 (2d Cir.1986)); see also Grullon v. City ofNew Haven,
720 F.3d 133, 139 (2d Cir. 2013) (outlining Colon factors); Corbett v. City ofNew York, 2013
WL 5366397, *18 (E.D.N.Y. 2013).
In his complaint, Plaintiff alleges Defendants Webber, Demarco and Tomarken3 "knew
At the relevant times of the complaint, Defendant Webber was the Commissioner of the
Suffolk County Police Department, Defendant DeMarco was the Sheriff of the Suffolk County
Sheriff's Office, and Defendant Tomarken was the Commissioner of the Suffolk County
and approved of the practices" of the other Defendants who allegedly violated Plaintiffs rights.
See First, Second and Third Causes of Action of Am. Cmplt;
63, 72. The Complaint
further alleges that the constitutional violations resulted from the "longstanding customs, policies
and practices" of Defendants Webber, DeMarco and Tomarken in their official capacities.
Fourth Cause of Action of Am. Cmplt.,
81 & 82.
The Second Circuit has stated that a supervisory defendant may be liable under § 1983
when "the defendant created a policy or custom under which unconstitutional practices occurred,
or allowed the continuance of such a policy or custom." Colon, 58 F.3d at 873. See Scott v.
Fisher, 616 F.3d 100, 110 (2d Cir. 2010) (a supervisor may be liable under section 1983 for
creating a policy or custom under which unconstitutional practices occurred, or by allowing such
a policy or custom to continue); Pratt v. Bloomberg, 2012 WL 1358770, *2 (S.D.N.Y. 2012).
Accepting the factual allegations of Plaintiffs complaint as true and drawing all reasonable
inferences in favor of Plaintiff, the Court finds that Plaintiff sufficiently alleges involvement by
these Defendants under the Colon factors. The trial of this matter will determine whether these
Defendants either created or continued policies that violated Plaintiffs constitutional rights. At
this time, Defendants' motion to dismiss the claims against Defendants Webber, DeMarco and
Tomarken is denied, without prejudice to renew at the time of trial.
Claims in their Offical Capacity
Defendants Webber, DeMarco and Tomarken also move to dismiss the claims against
them in their official capacity. The Court finds these claims are duplicative of Plaintiffs claims
against the County, and are therefore dismissed. See Bristol v. Queens County, 2013 WL
Department of Health Services. Am. Cmplt., ~ 6-8.
1121264, *6 (E.D.N.Y. 2013) (plaintiffs claims against County defendants in their official
capacities fail since such claims are duplicative of the claims asserted against the County), citing
Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (holding that
suit against those in their official capacities "generally represent only another way of pleading an
action against an entity ofwhich an officer is an agent") (other citations omitted).
For the reasons set forth above, Defendants' motion to dismiss claims against Defendants
Romeo, Rosen, Magyar and Iatauro is denied; the motion to dismiss claims against Defendants
Webber, DeMarco and Tomarken in their individual capacities is also denied; and the motion to
dismiss claims against Defendants Webber, DeMarco and Tomarken in their official capacities is
s/ Leonard D. Wexler
c---- LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Central Islip, New York
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