Langer v. The County Of Suffolk et al

Filing 59

MEMORANDUM & ORDER: SO ORDERED that Defendants' summary judgment motion 56 is GRANTED in its entirety. Plaintiff's constitutional claims are DISMISSED with prejudice and her state law medical malpractice claims are DISMISSED without prejudice to refiling in state court. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. Ordered by Judge Joanna Seybert on 8/8/2019. (CM to judgment clerk) (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ELIZABETH LANGER a/k/a ELIZABETH
FRANKEL,
Plaintiff,

MEMORANDUM & ORDER
15-CV-0668(JS)(GRB)

-against–
PATRICIA BUERKLE, STEPHEN JOHN, M.D.,
and VINCENT GERACI, M.D.,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Christopher S. Olson, Esq.
434 New York Avenue
Huntington, New York 11743
For Defendant:

FILED 
CLERK 

8/8/2019 12:05 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Arlene S. Zwilling, Esq.
Suffolk County Attorney
H. Lee Dennison Building-Fifth Floor
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788-0099

SEYBERT, District Judge:
Plaintiff

Elizabeth

Langer

a/k/a

Elizabeth

Frankel

(“Plaintiff”) alleges that defendants Patricia Buerkle, Stephen
John, M.D., and Vincent Geraci, M.D., all medical employees at the
Suffolk

County

Correctional

Facility

(“SCCF”)

(collectively,

“Defendants”) denied her adequate medical care in violation of 42
U.S.C. § 1983.
claim.

She also alleges a state law medical malpractice

Presently pending before the Court is Defendants’ motion

for summary judgment.

(Def. Mot., D.E. 56.)

reasons, Defendants’ motion is GRANTED.

For the following

BACKGROUND
I.

Factual Background1
Plaintiff

serving

a

sentence

substance.

was
for

incarcerated
criminal

at

SCCF

possession

in
of

March
a

controlled

On April 9, 2014, she fell and injured her foot.

56.1 Stmt., D.E. 44, ¶¶ 1-2.)

2014,

(Def.

At approximately 6:30 a.m., non-

party Margaret Mungo, a registered nurse with the Jail Medical
Unit (“JMU”), applied an ice pack and sent Plaintiff to Peconic
Bay Medical Center (“Peconic”), a private hospital.
Stmt. ¶ 3.)

(Def. 56.1

Doctors performed X-rays indicating that she had a

severely comminuted fracture2 of her right calcaneus (heel bone).
She was not admitted--Peconic staff wrapped her foot in an Ace
bandage, prescribed her pain medication, and gave her crutches.
She was released at approximately 10:00 a.m.

(Def. 56.1 Stmt. ¶¶

4-6.)
Plaintiff was given discharge instructions.
Stmt. Ex. D, D.E. 44-4 (“Discharge Instructions”).)

(Def. 56.1

They included

three pages of standard forms.

Page one defined an “Ace Bandage”

and explained how to apply one.

Page two advised on walking with

crutches.

1

Page three gave general instructions for fractures.

Unless noted, all facts are undisputed.

A comminuted fracture occurs when a bone breaks into more than
two pieces.
2

2

The fourth and final page listed the following “Special Advice
for: Elizabeth Frankel”:
Call John Brennan Dr today or the next
business day for an appointment to be seen.
When you call to make the appointment, tell
the secretary that you were referred from this
facility. When you go to see the doctor, bring
these instructions with you.
YOU HAVE A CALCANEUS FRACTURE COMMINUTED.
NEED AN ORTHPEDIC (sic) EVALUATION.

YOU

NO DRIVING WITH PERCOCET, IT IS SEDATING.
FOLLOW UP WITH ORTHOPEDICS THIS WEEK.
FOLLOW UP WITH JAIL MEDICAL IN 1 DAY.
RETURN FOR ANY WORSENING, CHANGES OR ANY OTHER
CONCERNS.
RETURN FOR PROBLEMS WITH FOLLOW UP.
(Discharge Instructions at ECF p. 5 (capitalization in original).)
That

same

day,

when

she

returned

to

the

JMU,

at

approximately 11:00 a.m., she was seen by defendant Patricia
Buerkle,

a

nurse

practitioner.

strength ibuprofen and ice.

Buerkle

ordered

prescription

She noted Peconic’s diagnosis and

follow-up recommendation on Plaintiff’s medical chart.

(Def. 56.1

¶ 8; Def 56.1 Stmt. Ex. E, D.E. 44-5 (“April 9 Chart”).)
Peconic

recommended

specialist,

she

Plaintiff

also

follow

completed

a

up

with

consultation

an

Because

orthopedic

request

for

Plaintiff to see an outside orthopedist. There are no orthopedists
on staff in the JMU.

If necessary, the JMU requests appointments

3

with outside medical providers, and those outside providers choose
the date and time of an inmate’s appointment.

(Def. 56.1 Stmt.

¶ 9-10.)
Ten days later, on April 19, 2014, defendant Stephen
John, M.D. saw Plaintiff in the JMU.

Plaintiff was on crutches

and stated that she was in pain and the ibuprofen was not working.
John changed her pain medication and ordered a sonogram to rule
out deep vein thrombosis.

He noted in her medical chart that the

request for an orthopedic consultation was still pending.

(Def.

56.1 Stmt. ¶ 10;3 Def. 56.1 Stmt. Ex. H, April 19 Progress Note,
D.E. 44-8.)

A sonogram performed one day later showed no deep

vein thrombosis.

John did not see Plaintiff again.

(Def. 56.1

Stmt. ¶¶ 11-12.)
On April 30, Buerkle saw Plaintiff again.

She noted on

the chart that Plaintiff was upset she had not been seen by an
orthopedist and that she told Plaintiff to sign a release so her
chart could be forwarded to a consulting orthopedist.

She also

discussed the case with non-party Dr. Crowley, a JMU employee.
They sent Plaintiff back to the Emergency Room at Peconic because
she had not yet seen an outside orthopedist.
¶¶ 13-14.)

(Def. 56.1 Stmt.

Peconic personnel performed a CT scan, which still

indicated the fracture.

In her discharge instructions, she was

There are 2 number 10 paragraphs. This cite is the second
paragraph 10.
3

4

again referred to Dr. John Brennan and told to call him that day
or the next for an appointment.

(Def. 56.1 Stmt. ¶ 15.)

When Plaintiff returned to the JMU, non-party Dr. Dennis
Russo noted her second emergency room visit in her chart.

He

further noted Plaintiff’s statement that since she was scheduled
to be released from jail in two days, following up was a “moot
point” and that she was “OK with continuing her present meds and
setting up a follow up in community after release.”

(Def. 56.1

Stmt. ¶ 16.)
The next day, May 1, 2014--before her release--Plaintiff
had her outside consultation with Brennan.
been a “delay in follow up.”

He noted there had

He examined her and “reviewed the

case with Dr. Gamez who [felt] that she may be a candidate for
surgical intervention.
consultation.”

[He] referred her to [Dr. Gamez] for

(Def. 56.1 Stmt. ¶ 17; Def. 56.1 Stmt. Ex. O,

Brennan Notes, D.E. 44-15.)
On May 2, 2014, Plaintiff was released from SCCF.
did not see Brennan or Gamez again.

She

(Def. 56.1 Stmt. ¶¶ 18-19.)

Approximately two weeks after leaving SCCF, she saw Dr. Edward
Kormylo.
fixation.

He noted that she required open reduction and internal
He further noted that she was “contemplating surgical

management” but that he would “likely need to hold [off] on surgery
until further consolidation of fracture.”

(Def. 56.1 Stmt. ¶ 21;

Def. 56.1 Stmt. Ex. Q, Kormylo Notes, D.E. 44-17.)
5

He ultimately

performed surgery on Plaintiff’s foot on June 2, 2014.

When she

was discharged from the hospital, she had no infection.

However,

Kormylo had documented in his surgical report that she had not
followed

preoperative

understood

instructions

continuing

intravenous

to

stop

drug

smoking;

use

could

that

she

lead

to

infection; and that she was aware that failure to comply with his
instructions could lead to loss of a limb.

(Def. 56.1 Stmt. ¶ 22;

Def. 56.1 Stmt. Ex. R, Surgical Report, D.E. 44-18.)

Plaintiff

developed an infection after the initial surgery which required
multiple follow-up procedures with Kormylo. (Def. 56.1 Stmt. ¶ 24;
Pl. 56.1 Stmt., D.E. 44-22, ¶ 6.)
When deposed, Kormylo testified that Defendants’ actions
failed to satisfy “the standard of care for humanity.”

(Pl. 56.1

Stmt. ¶¶ 8-9; Pl. 56.1 Stmt. Ex. 9, Kormylo Dep., 59:11-24.)
Defendants’ orthopedic expert, Dr. David Weissberg, testified that
the “typical treatment protocol” for a heel fracture is, assuming
the patient is healthy and the skin is in good condition, to
“perform [an] open reduction and internal fixation” “approximately
two weeks” after injury.

(Pl. 56.1 Stmt. Ex. 5, Weissberg Dep.,

13:14-14:4.) He also noted that “[i]n general, calcaneal fractures
are

not

treated

immediately

[because]

there

is

a

very

high

complication rate in terms of infection . . . if you operate on a
fracture such as this . . . too quickly . . . .”
13:6-11.)
6

(Weissberg Dep.

Plaintiff

alleges

that

she

“sustain[ed]

severe

and

serious personal injuries” and “under[went] eight surgeries due to
complications
infections.”

as

a

result

of

the

delay

in

(Am. Compl., D.E. 48, ¶¶ 6, 20.)

treatment

and

She argues that

Defendants’ “failure to provide the required care . . . constituted
deliberate indifference to [her] serious medical needs . . . and
a departure from good and accepted medical standards . . . .”
Compl. ¶ 19.)

(Am.

Plaintiff does not allege any current existing

injury related to these events.
II.

Procedural History
Plaintiff initially filed a Complaint on February 10,

2015.

(Compl., D.E. 1.)

She filed an Amended Complaint on

April 12, 2016 (Am. Compl., D.E. 22) and then, at the direction of
this Court, a complete version of the Amended Complaint on April
27, 2019 (Am. Compl., D.E. 48.)

Defendants filed their motion for

summary judgment on September 20, 2018 and Plaintiff filed her
opposition on October 22, 2018 (Pl. Opp., D.E. 57).
replied on November 2, 2018.

Defendants

(Def. Reply, D.E. 58.)

DISCUSSION
I.

Legal Standard
A.

Summary Judgment
Summary

judgment

will

be

granted

where

the

movant

demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
7

Fed. R. Civ. P. 56(a).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).

In

determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

However, in reviewing the summary judgment

record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”

Sheet Metal Workers’

Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
8

B.

Deliberate Indifference to Medical Needs
As Plaintiff was a prisoner in custody4 at the relevant

time here,
[t]o defeat summary judgment, [she is] obliged
to adduce evidence that defendants were
deliberately indifferent to a serious medical
need.
This standard consists of both
objective
and
subjective
components.
Objectively, the alleged deprivation must be
sufficiently serious, in the sense that a
condition of urgency, one that may produce
death, degeneration, or extreme pain exists.
Subjectively, the charged official must act
with a sufficiently culpable state of mind,
i.e., something more than mere negligence and
akin to criminal recklessness.
Simpson v. Oakes, 640 F. App’x 86, 87–88 (2d Cir. 2016) (internal
quotation marks and citations omitted).
As

to

the

objective

prong,

“[i]f

the

prisoner

is

receiving on-going treatment and the [alleged] offending conduct
is an unreasonable delay or interruption in that treatment, the
seriousness

inquiry

focuses

on

the

challenged

delay

or

Though Plaintiff makes claims under the Eighth and Fourteenth
Amendments, as a prisoner in custody, her claims are analyzed
under the Eighth Amendment only. Compare Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994) (“The Eighth Amendment . . .
applies to prison officials when they provide medical care to
inmates”) with Valdiviezo v. Boyer, 752 F. App’x 29, 32 (2d Cir.
2018) (“The district court erroneously analyzed [the
plaintiff’s] deliberate indifference to medical needs claims
under the Eighth Amendment. [The plaintiff’s] claims should be
analyzed under the Fourteenth Amendment because he was a
pretrial detainee at the time of alleged incidents.”).
4

9

interruption in treatment rather than the prisoner’s underlying
medical condition alone.”
2017

WL

4179855,

at

*19

Villafane v. Sposato, No. 16-CV-3674,
(E.D.N.Y.

Aug.

22,

2017)

(quoting

Salahuddin v. Goord, 467 F. 3d 263, 280 (2d Cir. 2006)) (emphasis
added), R&R adopted, 2017 WL 4157220 (E.D.N.Y. Sept. 15, 2017);
cf. Salahuddin, 467 F. 3d at 280 (“if the unreasonable medical
care is a failure to provide any treatment for an inmate’s medical
condition, courts examine whether the inmate’s medical condition
is sufficiently serious”) (emphasis added).

“In general, where

temporary delays or interruptions in the provision of medical
treatment have been found to satisfy the objective seriousness
requirement in this Circuit, they have involved either a needlessly
prolonged period of delay, or a delay which caused extreme pain or
exacerbated a serious illness.”

Villafane, 2017 WL 4179855 at *20

(internal quotation marks and citations omitted).
“Although a delay in providing necessary medical care
may in some cases constitute deliberate indifference, [the Second
Circuit] has reserved such a classification for cases in which,
for example, officials deliberately delayed care as a form of
punishment;

ignored

a

life-threatening

and

fast-degenerating

condition for three days; or delayed major surgery for over two
years.”

Demata v. N.Y. State Corr. Dep’t of Health Servs., 198

F.3d 233, at *2 (2d Cir. 1999) (internal quotation marks and
citations omitted) (collecting cases).
10

An inmate’s belief that

“something more should have been done to treat his [or her]
injuries is not a sufficient basis for a deliberate indifference
claim.”

Id.
“The subjective component of deliberate indifference

requires a plaintiff to establish that a defendant ‘kn[e]w of and
disregard[ed] an excessive risk to [his] health or safety.’”
Pizarro v. Gomprecht, No. 10-CV-4803, 2013 WL 990998, at *11
(E.D.N.Y. Feb. 13, 2013), R&R adopted, 2013 WL 990997 (quoting
Chance v. Armstrong, 143 F. 3d 698, 702 (2d Cir. 1998)) (further
citations omitted) (alterations in original).

“Because the Eighth

Amendment is not a vehicle for bringing medical malpractice claims,
nor a substitute for state tort law, not every lapse in prison
medical care will rise to the level of a constitutional violation.”
Smith v. Carpenter, 316 F. 3d 178, 184 (2d Cir. 2003).

“A showing

of medical malpractice is . . . insufficient to support an Eighth
Amendment

claim

unless

the

malpractice

involves

culpable

recklessness, i.e., an act or a failure to act by the prison doctor
that evinces a conscious disregard of a substantial risk of serious
harm.”

Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)

(internal quotation marks and citation omitted).
“Where a dispute concerns not the absence of help, but
the choice of a certain course of treatment, or evidences mere
disagreement with considered medical judgment, [courts] will not
second guess the doctor.” Pizarro, 2013 WL 990998 at *13. “[M]ere
11

differences of opinion between the prisoner and the defendants
concerning the proper course of treatment” do not rise to a
constitutional violation.
II.

Demata, 198 F. 3d at *2.

Defendants’ Actions
A.

Nurse Practitioner Buerkle
Because

Defendants

are

sued

in

their

individual

capacities,5 their liability is premised on a showing that they
personlly acted with deliberate indifference.
F. 3d at 144.

See Hernandez, 341

On the day Plaintiff was injured, when she returned

from Peconic, Buerkle examined her, iced her heel, and prescribed
pain medication.

She was aware of Peconic’s recommendation that

Plaintiff follow up with a specialist, and immediately completed
a consultation request.
saw Plaintiff again.

Approximately three weeks later, Buerkle

She noted Plaintiff’s complaints about not

having yet seen a specialist and had her sign a release so her
chart

could

be

forwarded

to

a

specialist.

She

discussed

Plaintiff’s case with another doctor on staff, Crowley, and they
decided to send Plaintiff back to Peconic because she had not yet
seen a specialist.
Buerkle

did

not

Plaintiff’s medical needs.

show

deliberate

indifference

to

To the contrary, she appears to have

Plaintiff originally named the County of Suffolk as a
defendant. By stipulation, all claims against the County were
discontinued with prejudice. (Order Dismissing Parties,
D.E. 55.)
5

12

taken the steps within her power to address Plaintiff’s issues.
The JMU did not have an orthopedic specialist on site.

Buerkle

thus facilitated Plaintiff’s consultation by completing a request
form, completing a release form, and discussing the case with Dr.
Crowley.

Buerkle followed established protocol.

See Hernandez,

341 F. 3d at 148 (nurse who repeatedly attempted to schedule
physical therapy for inmate and received rejections from outside
institutions was not deliberately indifferent, and not personally
responsible

for

what

“may

be

an

unfortunate

institutional

failure”).

Buerkle also provided care with the ice and pain

medication.
As

to

the

objective

prong,

at

most,

Plaintiff

has

demonstrated that she received an orthopedic consultation not
within one week, as recommended, but within three weeks--a twoweek delay.

Further, once she saw the specialist Brennan three

weeks after her injury, he only opined that “she may be a candidate
for surgical intervention.”

(See Brennan Notes.)

Plaintiff’s

expert testified that if her injury had been treated earlier, it
potentially

could

have

been

addressed

with

a

less

invasive

procedure, and that he “believe[d]” it would have “significantly
reduced the likelihood of the development of the infections that
[Plaintiff] developed.”

(Kormylo Dep. 58:15-59:2.)

Defendants’

expert testified similarly and noted that the “optimal” time to
treat Plaintiff’s fracture would have been at “approximately two
13

weeks.” (Weissberg Dep. 13:3-7; 13:23-14:4.)

He explained that

the less invasive procedure had a “decreased” risk of infection.
(Weissberg Dep. 24:24-25:7.)

He only stated that based upon his

review of her medical records, Plaintiff could “possibly” have
been a candidate for the less invasive procedure.

(Weissberg Dep.

14:13-20.).
Plaintiff argues that there is “unanimity of opinion
from every medical expert who gave testimony during the discovery
phase of this action: namely, [she] sustained a severely comminuted
fracture

of

the

calcaneus

treatment within two weeks.”

and

this

injury

required

surgical

(Pl. Opp. at 15 (emphasis added).)

This claim mischaracterizes the testimony and the record as a
whole.

No medical professional stated that Plaintiff required

surgery in two weeks: not the Peconic doctor who initially examined
her

and

prepared

discharge

instructions,6

not

the

orthopedic

specialist Dr. Brennan, not Plaintiff’s surgeon and expert Dr.
Kormylo,7 and not Defendants’ expert Dr. Weissberg.

Clearly, this

While Plaintiff makes much of the fact that the instruction to
“follow up with orthopedics this week” was capitalized (Pl. Opp.
at 2, 6, 11, 15, and 16), she ignores that many of the
instructions were capitalized, including the directive that she,
an inmate confined in a correctional facility, “no[t] driv[e]
with Percocet.” (Discharge Instructions at 5.) The Court thus
does not find the capitalization argument persuasive.
6

To the extent Dr. Kormylo testified that JMU employees’ actions
did not meet the standard of care “for humanity,” the Court
finds this hyperbolic statement to be tempered by his own
admission that he had no familiarity with the level of care a
7

14

is

not

a

case

punishment,

where

ignored

a

officials
life

deliberately

threatening

and

condition, or delayed major surgery for years.
3d at *2.

delayed

care

as

fast-degenerating
See Demata, 198 F.

Rather, it is a “difference[ ] of opinion between

[Plaintiff] and the defendants concerning the proper course of
treatment.”

Id.

Further, while Plaintiff surmises that “[s]urgery . . .
does not come cheap so that one cannot avoid the reasonable
inference that these Defendants were in no hurry to saddle their
employer with a heavy expense when [her] release date was so near,”
(Pl.

Opp.

at

6),

“[c]onclusory

allegations,

conjecture,

and

speculation . . . are insufficient to create a genuine issue of
fact.”

Pizarro, 2013 WL 990998 at *12 (prisoner’s allegation that

facility did not approve his surgery because the state could not
afford it was insufficient to raise a triable issue of material
fact).

Plaintiff points to no specific record facts that could

allow this Court to draw an inference in her favor that the
Defendants postponed her referral to save money.
Plaintiff

has

not

established

the

objective

Accordingly,
or

subjective

components of deliberate indifference as to Buerkle.

correctional facility is legally required to provide.
Dep. 59:7-24.)
15

(Kormylo

B.

Dr. John
John saw Plaintiff once, ten days after her injury. When

Plaintiff complained that she was in pain and the ibuprofen
prescribed by Buerkle was not working, he changed her medication
and ordered a sonogram.

He noted in her chart that the request

for a consultation was pending.

Again, at the time John saw

Plaintiff, no other medical professional had stated that she
required surgery.
the

Court

For the same reasons discussed as to Buerkle,

concludes

that

John

did

not

display

deliberate

indifference to Plaintiff’s medical needs.
C.

Dr. Geraci
“Absent some personal involvement by [a] supervisory

official in the allegedly unlawful conduct of his subordinates, he
cannot be liable under section 1983.”
45.

Hernandez, 341 F.3d at 144–

Supervisor liability can be established in one or more of the

following ways:
(1)

Id. at 145.

actual direct participation in the
constitutional violation, (2) failure to
remedy a wrong after being informed
through a report or appeal, (3) creation
of a policy or custom that sanctioned
conduct amounting to a constitutional
violation, or allowing such a policy or
custom
to
continue,
(4)
grossly
negligent supervision of subordinates
who committed a violation, or (5) failure
to act on information indicating that
unconstitutional acts were occurring.

It is undisputed that Geraci, the chief of the JMU,

16

never examined Plaintiff.

She argues, however, that he had

personal involvement because he testified that “we knew the patient
needed a referral and we made the referral.”

(Pl. Opp. at 11.)

According to Plaintiff, Geraci’s use of “the pronoun ‘we’ clearly
. . . can be interpreted to include himself, thereby making himself
a part of the group that failed to obtain an orthopedic consult”
in time.

(Pl. Opp. at 11.)

constructive

notice

of

She claims Geraci had “actual or
unconstitutional

practices

and

demonstrate[d] gross negligence or deliberate indifference in
failing to act.”

(Pl. Opp. at 14 (quoting Meriwether v. Coughlin,

879 F. 2d 1037 (2d Cir. 1989).)
The Court does not find supervisor liability.

First,

the Court finds no underlying violation for the reasons set forth
above.

Second, even if the Court had found that Buerkle or John

violated Plaintiff’s constitutional rights, Plaintiff has offered
no basis to conclude that Geraci (1) actually directly participated
in a constitutional violation, (2) failed to remedy a wrong after
being informed through a report or appeal, (3) created a policy or
custom

that

sanctioned

conduct

amounting

to

a

constitutional

violation, or allowed such a policy or custom to continue, (4) was
grossly negligent in supervising subordinates who committed a
violation, or (5) failed to act on information indicating that
unconstitutional acts were occurring.

17

Thus, Geraci’s supervision

was not deliberately indifferent.

See Hernandez, 341 F. 3d at

145.
In sum, while Defendants did not bring Plaintiff to a
specialist within one week, over the course of the three weeks
before her release, they: examined her multiple times, listened to
and noted her complaints, iced her injury, prescribed medication,
changed her medication when she reported it was not working,
requested a consultation, followed up with the request and had her
sign a release, ordered a sonogram to rule out other injuries, and
sent her back to the hospital to receive additional care. Notably,
when Plaintiff was released and had control over her own medical
care, she did not see Kormylo for two weeks--approximately the
same

amount

of

delay

she

alleges

amounted

to

deliberate

indifference from Defendants. The Court thus finds that Defendants
are entitled to summary judgment.
III. Qualified Immunity
Plaintiff argues that if summary judgment in favor of
Defendants is denied as to deliberate indifference, then it would
be “entirely illogical to separately grant summary judgment on
qualified immunity grounds.”

(Pl. Opp. at 22.)

This Court has

granted summary judgment in favor of Defendants, but will briefly
discuss qualified immunity arguments in the alternative.
“Qualified immunity will defeat a federal claim unless
a plaintiff pleads facts showing (1) that the official violated a
18

statutory or constitutional right, and (2) that the right was
clearly

established

at

the

time

of

the

challenged

conduct.”

Gonzalez v. Hasty, 755 F. App’x 67, 69 (2d Cir. 2018) (internal
quotation marks and citation omitted).

“The doctrine is broad in

scope, and as the Supreme Court has repeated on several occasions,
qualified immunity protects all but the plainly incompetent or
those who knowingly violate the law.”

Jones v. Rivera, No. 16-

CV-4495, 2017 WL 2389591, at *3 (E.D.N.Y. June 1, 2017).
Although Plaintiff conclusorily argues that Defendants
were deliberately indifferent and thus qualified immunity should
not attach, she points to no case demonstrating that a two-week
delay

in

follow-up

with

constitutional violation.

an

orthopedic

referral

rises

to

a

At most, she submits that “far less

serious injuries/conditions (i.e. migraine headaches) have been
found to meet the objective prong of serious medical needs.”
Opp. at 16.)

This is insufficient.

(Pl.

“While qualified immunity

does not require a case directly on point for a right to be clearly
established, existing precedent must have placed the statutory or
constitutional question beyond debate.”

Gonzalez, 755 F. App’x at

69 (internal quotation marks and citation omitted).

“In practice,

this means that officials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines.”

Jones,

2017 WL 2389591 at *3-4 (internal quotation marks and citations
omitted) (explaining that “the dispositive question is whether the
19

violative nature of particular conduct is clearly established . .
. in light of the specific context of the case, not as a broad
general

proposition.”)

(alterations

in

quotation marks and citation omitted).

original;

internal

The Court finds it is far

from “beyond debate” that Defendants actions here amounted to an
Eighth Amendment violation, as explained in more detail in the
previous discussion.

As Plaintiff has not demonstrated that

Defendants violated a clearly established constitutional right,
they are entitled to qualified immunity.
IV.

State Law Claims
As a result of the Court’s conclusions as to Plaintiff’s

constitutional

claims,

only

medical malpractice remain.

Plaintiff’s

state

law

claims

for

“Although the dismissal of state law

claims is not required when the federal claims in an action are
dismissed, a federal court may decline to exercise supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C.
§ 1367(c)(3).”

Manginelli v. Homeward Residential, Inc., No. 13-

CV-2334,

WL

2013

6493505

(E.D.N.Y.

Dec.

9,

2013)

(citations

omitted). The Court has weighed the relevant factors in exercising
its

discretion

in

this

regard--i.e.,

the

values

of

judicial

economy, convenience, fairness, and comity--and in light of the
dismissal of Plaintiff’s federal claims, the Court declines to
exercise supplemental jurisdiction over Plaintiff’s state law
medical malpractice claims.

As a result, the Court does not reach
20

the parties’ arguments regarding a timely Notice of Claim under
New York General Municipal Law § 50.
CONCLUSION
For the foregoing reasons, Defendants’ summary judgment
motion

(D.E.

56)

is

GRANTED

in

its

entirety.

Plaintiff’s

constitutional claims are DISMISSED with prejudice and her state
law medical malpractice claims are DISMISSED without prejudice to
refiling in state court.

The Clerk of the Court is directed to

enter judgment accordingly and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
8 , 2019
Central Islip, New York

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