Anderson v. County of Nassau et al
Filing
28
ORDER: SO ORDERED that Defendants' motions to dismiss Plaintiffs claims in their entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure are GRANTED and Plaintiff's claims are dismissed in their entirety without prejudice for failure to state a claim for relief. Plaintiff is GRANTED leave to file an amended complaint in accordance with the guidance set forth in this Order by April 4, 2018. Further, if Plaintiff does not file an amended complaint by April 4, 2018, all of his federal claims will be dismissed with prejudice, and this case will be closed. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is respectfully requested to send a copy of this Order to the pro se plaintiff. Ordered by Judge Joan M. Azrack on 3/31/2018. (CM to pro se plaintiff) (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------X
PAUL ANDERSON,
For Online Publication Only
ORDER
15-CV-5351 (JMA)(AYS)
Plaintiff,
-againstCOUNTY OF NASSAU, ARMOR
CORRECTIONAL HEALTH OF
NEW YORK, JOSE ARMAS, M.D.,
CHILDA MARGOS, M.D., and SHERIFF
MICHAEL J. SPOSATO,
Defendants.
--------------------------------------------------X
APPEARANCES:
Paul Anderson
251 Sheridan Street
Westbury, NY 11590
Pro Se Plaintiff
John J. Doody
Dale Nicholson McLaren
Lewis Brisbois Bisgaard & Smith, LLP
77 Water Street, Suite 2100
New York, NY 10005
Attorney for Defendants County of Nassau, Armor Correctional Health of N.Y.,
Jose Armas, M.D. and Childa Margos, M.D.
Liora M. Ben-Sorek
Thomas Lai
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
Attorney for Defendants County of Nassau and Sheriff Michael J. Sposato
1
AZRACK, United States District Judge:
Pro se plaintiff Paul Anderson (“Anderson” or “Plaintiff”) brings this action against
defendants the County of Nassau (the “County”), Sherriff Michael J. Sposato
(“Sherriff
Sposato”) (collectively the “County Defendants”), Armor Correctional Health of New York
(“Armor”), Jose Armas, M.D. (“Dr. Armas”), and Childa Margos, M.D. (“Dr. Margos”)
(collectively the “Armor Defendants”) (all the defendants collectively the “Defendants”). The
Complaint alleges deprivation of Plaintiff’s civil rights pursuant to the Eighth and Fourteenth
Amendments of the United States Constitution and 42 U.S.C. § 1983, as well as a state-law
negligence claim.
Presently before this Court are the Defendants’ motions to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (See ECF Nos. 23 and 27.) For the reasons set
forth below, Defendants’ motions are granted.
I. BACKGROUND
A. Documents Considered
As is required in the context of this motion to dismiss, the factual allegations in the
Complaint, though disputed by Defendants, are accepted to be true for purposes of this motion,
and all reasonable inferences are drawn therefrom in favor of the Plaintiff.
While facts to consider in the context of a Rule 12 motion to dismiss are generally limited
to those set forth in the pleadings, a court may consider matters outside of the pleadings under
certain circumstances. Specifically, in the context of a Rule 12(b)(6) motion, a court may
consider: (1) documents attached to the Complaint as exhibits or incorporated by reference
therein; (2) matters of which judicial notice may be taken; or (3) documents upon the terms and
2
effects of which the Complaint “relies heavily” and which are, thus, rendered “integral” to the
Complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see Int’l
Audiotext Network, Inc. v. Am. Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995). Moreover. “[a]
court may take judicial notice of a documents filed in another court not for the truth of the
matters asserted in the other litigation, but rather to establish the fact of such litigation and
related filings.” Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d
Cir. 2006) (quoting Int’l Star Class Yacht Racing Ass’n Tommy Hilfiger U.S.A., Inc., 146 F.3d
66, 70 (2d Cir. 1998)).
Where, as here, the Complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks omitted). Nonetheless,
a pro se Complaint must state a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73
(2d Cir. 2009).
The Court turns now to discuss the facts set forth in Plaintiff’s Complaint, construed in
his favor.
B. Facts
1. Background
Plaintiff, an inmate at the Nassau County Correctional Center (“NCCC”), alleges that he
suffers from several ailments, among them end stage renal disease and back pain due to a
pinched nerve. (Complaint (“Compl.”) at 2.).1 Armor is a private company that provides medical
services to inmates at the NCCC pursuant to a contract with the County. (Declaration of John J.
Doody, ¶ 3, ECF No. 23-1.) Dr. Armas appears to be the sole owner and operator of Armor and
1
For ease of reference, page numbers referenced herein are numbers assigned to pages on electronically filed
documents, and not to the underlying documents themselves.
3
Dr. Margos appears to be the chief medical officer of Armor at NCCC. (Armor Defendants’
Memorandum of Law In Support of Their Motion to Dismiss the Complaint (“Defs’. Br.”) at 15,
ECF No. 23-2; Compl. at 3.)
Plaintiff alleges that his renal disease requires both dialysis and that he be monitored
weekly by a board certified nephrologist. (Id.) Plaintiff alleges that the weekly nephrologist
monitoring is necessary to review his blood test reports and various critical levels in his body
such as phosphate and potassium as well as fluid retention. (Id. at 2-3.) However, Plaintiff
alleges that due to an alleged policy promulgated by Armor, Dr. Armas, and Dr. Margos,
Plaintiff was denied access to a community-based nephrologist. (Compl. at 3; Declaration of
John J. Doody, ¶ 3, ECF No. [23-1].) Plaintiff does not allege that he suffered any injury (or
exacerbation of his condition) as a result of being denied access to a community-based
nephrologist.
The Court notes that Plaintiff’s complaint is devoid of any allegations that Dr. Armas
personally treated Plaintiff or denied him access to any community-based medical care.
Plaintiff’s allegations against Dr. Armas solely concern his alleged promulgation of policies for
the NCCC. Similarly, Plaintiff’s allegations against Dr. Margos primarily concern her
promulgation of policies for the NCCC. It is unclear to this Court what, if any role Dr. Margos
had in personally treating Plaintiff.
Plaintiff also alleges that he suffers from an “AIV Fistula,” which is caused by his renal
disease and requires him to be monitored by a vascular surgeon. (Compl. at 3.) Plaintiff again
alleges that access to this type of doctor was denied to him to due to the same alleged policy
promulgated by Armor/Dr. Armas, and Dr. Margo that denied him access to a community-based
4
nephrologist. (Id.) Plaintiff does not allege that he suffered any injury (or exacerbation of his
condition) as a result of being denied access to a vascular surgeon.
Next, Plaintiff claims that he suffers from a pinched nerve and is supposed to be
prescribed “Neurontin and Ultram.” (Compl. at 3.) Plaintiff alleges that Armor and Dr. Armas
have a policy of not prescribing pain medications, and therefore will not give Plaintiff “a
sufficient dose of Neurontin, within therapeutic level.” (Id.) Plaintiff does not allege that he
suffered any pain or increase in pain as a result of the denial of Plaintiff’s desired dosage of
medication.
Finally, Plaintiff alleges that he suffered a fall due to a wet floor on both June 30, 2015
and on July 2, 2015. (Compl. at 4.) Plaintiff claims that the July 2, 2015 fall caused pain and
swelling in his right knee. (Id.) Plaintiff alleges that after filing a grievance he was provided
treatment by an orthopedic specialist, who he claims recommended an MRI. (Id.) Plaintiff
claims that as a result of the cost and the Armor/Dr. Armas policy, Dr. Margos refused to
approve the recommended MRI. Plaintiff’s complaint does not include any allegations
concerning the condition of his right knee after the denial of the MRI.
2. Procedural History
Plaintiff commenced this action on September 11, 2015. (See Compl.) On the same day,
Plaintiff submitted an application to proceed in forma pauperis (“IFP”) , which the Court granted
on October 22, 2015. (See ECF No. 7.) On November 20, 2015, the Armor Defendants
requested a pre-motion conference for leave to file a motion to dismiss.2 (See DE [15]. On
January 7, 2016, the Court waived the pre-motion conference and entered a briefing schedule for
the Armor Defendants’ motion to dismiss with the fully briefed motion being due on March 18,
2
The Court notes that the Defendant County of Nassau is represented by both the Nassau County Attorney’s Office
as well as counsel for the Armor Defendants and raises arguments in both motions to dismiss as to why its dismissal
from this matter is warranted.
5
2016. (See ORDER dated 01/07/2016.) On January 8, 2016, the County Defendants requested a
pre-motion conference for leave to file a motion to dismiss, (see ECF No. 20), and on the same
day, the Court waived the pre-motion conference and entered the same briefing schedule as the
Armor Defendants’ motion to dismiss. (See ORDER dated 01/08/2016.)
On January 26, 2017, the District Court directed defense counsel to provide the status of
the case by February 10, 2017, as a review of the docket indicated that the motions to dismiss
had not been filed. (See STATUS REPORT ORDER dated 01/26/2017.) On February 1, 2017,
the Armor Defendants filed a status report explaining that they had timely served Plaintiff with
their motion and subsequently filed an affidavit of service indicating such, but as of February 1,
2017, Plaintiff had still not provided his Opposition. (See ECF No. 24.) The Armor Defendants
further moved the Court to accept their motion to dismiss as fully briefed or in the alternative,
dismiss Plaintiff’s Complaint for failure to prosecute pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure. (Id.)
On March 8, 2017, the Court directed the Plaintiff to either “(1) file his opposition to
defendant’s motion to dismiss, or (2) indicate by letter to the Court that plaintiff does not wish to
file an opposition but still intends to prosecute this lawsuit.” (ECF No. 25.) On April 10, 2017,
the Plaintiff filed a response indicating that he still intended to prosecute this lawsuit. (ECF No.
26.) On March 22, 2018, the County Defendants filed their fully briefed motion to dismiss,
which was served on plaintiff on February 5, 2016. (ECF No. 27.) To date, Plaintiff has not
filed opposition to either motion.
6
3. Causes of Action
The Complaint alleges that Defendants, by their deliberate indifference to his medical
needs, subjected Plaintiff to cruel and unusual punishment, in violation of the Eighth and
Fourteenth Amendments.
C. The Motion to Dismiss
Defendants first argue that the Plaintiff has failed to exhaust his administrative remedies
as required by the Prison Litigation Reform Act (“PLRA”). (Defs’. Br. at 11.) Defendants next
contend that Plaintiff has failed to state a claim under 42 U.S.C. § 1983. (Id. at 14.) Defendants
assert that Plaintiff fails to allege that any of the Defendants were acting under the color of state
law or that that any individual defendant performed any act or caused Plaintiff any harm or
exacerbated any of his pre-existing conditions. Id. Defendants further argue that the Plaintiff
has failed to allege any personal involvement by Dr. Armas or Dr. Margos and thus has failed to
state any § 1983 claim against them. Defendants next assert that Plaintiff’s allegations are
conclusory and that he has failed to allege any official policy of depriving inmates adequate
medical treatment. Defendants similarly contend that Plaintiff has failed to state a § 1983 claim
against the County because he has failed to allege any facts that a municipal custom or policy
exists that deprived him of any constitutional right. Lastly, Defendants argue that the Plaintiff
has failed to set forth an Eighth Amendment claim arising out of inadequate medical care.
Defendants’ exhaustion defense cannot be resolved on this motion to dismiss because
plaintiff’s failure to exhaust is not apparent from the face of the complaint. However, as
explained below, plaintiff’s claims fail on the merits because he has not plausibly alleged:
(1) any claims under the Eighth Amendment; (2) personal involvement of the individual
defendants in any alleged violation; or (3) Monell liability against Nassau County or Armor.
7
III. DISCUSSION
A. Standard Applicable on Motions to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting, Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)); see also Arista Records, LLC v. Doe 3, 604 F.3d 110, 119–20 (2d Cir. 2010).
Facial plausibility is established by pleading sufficient factual content to allow a court to
reasonably infer the defendant’s liability. Twombly, 550 U.S. at 556. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at
555. Nor is a pleading that offers nothing more than “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action,” sufficient. Iqbal, 556 U.S. at 678 (2009) (quoting
Twombly, 550 U.S. at 555).
District courts are “obligated to construe pro se complaint [s] liberally,” Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009), interpreting them “to raise the strongest arguments that
they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Courts
may not, however, read into pro se submissions claims inconsistent with the pro se litigant’s
allegations, Phillips v. Girdich, 408 F.3d 124, 127 (2d Cir. 2005) (citation omitted), or arguments
that the submissions themselves do not “suggest,” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006). Pro se status “does not exempt a party from compliance with relevant rules of procedural
and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citation omitted).
With these standards in mind, the Court turns to assess the viability of Plaintiff’s claims.
B. Section 1983
42 U.S.C. §1983 (“Section 1983”) provides as follows:
8
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the United
States ... to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured . . . .
Section 1983 itself creates no substantive rights, but rather provides only a procedure for
redress for the deprivation of rights established elsewhere. Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985) (citation omitted); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). To state
a claim under § 1983, “a plaintiff must allege (1) that the challenged conduct was attributable at
least in part to a person acting under color of state law, and (2) that such conduct deprived the
plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United
States.” Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994) (citations and internal quotation
marks omitted); see also Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).
C. Section 1983: Inadequate Medical Care Claims
1. Standard
As an initial matter, the Court notes that it is unclear whether Plaintiff was a pretrial
detainee or an incarcerated prisoner. It is well established that “the Eighth Amendment protects
incarcerated prisoners from cruel and unusual punishment in the form of inadequate medical
care, [and] the Due Process Clause of the Fourteenth Amendment protects pretrial detainees from
inadequate medical care be the state.” Richardson v. Nassau Cty., 277 F. Supp. 2d 196, 201
(E.D.N.Y. 2003). “[R]egardless of the academic distinction between the Eighth and Fourteenth
Amendments, the standard for analyzing a pre-trial detainee’s Fourteenth Amendment claim is
the same as the Eighth Amendment standard.” Id. (internal quotation marks omitted); see also
Broadway v. Town of Southampton, 826 F. Supp. 2d 458, 466 (E.D.N.Y. 2011) (“Claims for
deliberate indifference to a serious medical condition . . . should be analyzed under the same
standard irrespective of whether they are brought under the Eight or Fourteenth Amendment.”).
9
Therefore, “the Second Circuit has applied the Eighth Amendment test for adequate medical care
to a pre-trial detainee’s right to the same.” Myrie v. Calvo/Calvoba, 591 F. Supp. 2d 620, 625
(S.D.N.Y. 2008).
To state an Eighth Amendment claim under Section 1983 based on inadequate medical
care, a prisoner must allege “deliberate indifference to [his] serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). The deliberate indifference standard includes both
objective and subjective components. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The
objective component requires that “the alleged deprivation . . . be sufficiently serious, in the
sense that a condition of urgency, one that may produce death, degeneration, or extreme pain
exists.” Hathaway v. Coughlin, 99 F.3d 550, 554 (2d Cir. 1996) (internal quotation marks and
citation omitted). The subjective component requires that “the charged official . . . act with a
sufficiently
culpable
state
of
mind”
(i.e., “with
deliberate
indifference
to
inmate
health’). Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). “Deliberate indifference is a
mental state equivalent to [criminal] recklessness,” which means that “the charged official [must]
act or fail to act while actually aware of a substantial risk that serious inmate harm will
result.” Id.
Thus, to survive a Rule 12(b)(6) motion to dismiss, “the prisoner must plausibly allege
that the official knew of the prisoner’s serious [medical] need and deliberately disregarded
it.” Villar v. Ramos, 2015 WL 3473413, at *3 (S.D.N.Y. June 2, 2015) (citing Farmer v.
Brennan, 511 U.S. 825, 837 (1994)); Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003))
(additional citation omitted). “[M]ere allegations of negligent malpractice do not state a claim of
deliberate indifference . . . .” Hathaway, 99 F.3d at 553; see also Estelle, 429 U.S. at 106 (“[A]
complaint that a physician has been negligent in diagnosing or treating a medical condition does
10
not state a valid claim of medical mistreatment under the Eighth Amendment.”). “[M]ere
disagreement over the proper treatment [likewise] does not create a constitutional claim. So long
as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does
not give rise to an Eighth Amendment violation.” Chance v. Armstrong, 143 F.3d 698, 703 (2d
Cir. 1998).
2. Plaintiff Fails To Allege a Claim of Deliberate Indifference
Here, Plaintiff’s allegations do not state a plausible deliberate indifference claim. Wholly
absent are any allegations that plausibly suggest that the treatment provided to Plaintiff was not
reasonable.
While Plaintiff details the possibilities of what could happen if Plaintiff is not provided
adequate treatment for his renal disease, Plaintiff does not allege that he has personally
experienced any of these possibilities. Plaintiff has not alleged any injury or exacerbation of his
condition as a result of the allegedly unconstitutional conduct. Similarly, Plaintiff has not
alleged any injury from the Defendants’ denial of an MRI for his right knee.
Moreover, Plaintiff’s claims also fail because they are mere disputes about proper
treatment and do not rise to the level of deliberate indifference. Plaintiff alleges that he was
denied access to outside care for his renal disease and denied sufficient pain medications.
Plaintiff’s pleadings, however, clearly indicate that he regularly received treatment, though he
may have disagreed with the course of treatment.
Plaintiff was provided with, inter
alia, medications and regular monitoring and dialysis.
Such allegations demonstrate that
Defendants were not deliberately indifferent to Plaintiff’s medical needs. See Cephas v. Nassau
Cnty. Corr. Ctr., 2014 WL 537576, at *5–6 (E.D.N.Y. Feb. 10, 2014) (dismissing the plaintiff’s
deliberate indifference claim against Armor because, even though the plaintiff may not have
11
received the medication he wanted, he did receive medication); see also Veloz v. New York, 339
F. Supp. 2d 505, 525 (S.D.N.Y. 2004), aff’d, 178 F. App’x 39 (2d Cir. Apr. 24, 2006) (“While
prisoners have a right to medical care, they do not have a right to choose a specific type of
treatment . . . . Differences in opinion . . . . over the appropriate medication to be prescribed is a
disagreement
over
a
treatment
plan
and
does
not
implicate
the
Eighth
Amendment.”); Muhammad v. Cohen, 2015 WL 1973330, at * 11 (S.D.N.Y. May 1,
2015) (“[P]laintiff’s disagreement with [the physician assistant’s] medical decision as to the
appropriate medication or dosage does not create a § 1983 claim.”).
Nor does Plaintiff allege any facts from which it may be reasonably inferred that
Defendants acted with a requisite state of mind, i.e., disregarded a substantial risk to Plaintiff’s
health and safety in not referring Plaintiff to a nephrologist or vascular surgeon and not
authorizing an MRI or more pain medication. Plaintiff’s failure to allege that the denial of the
requested treatment caused him any injury (or exacerbated any of his conditions) is also relevant
to the subjective element of his deliberate indifference claim.
3. Section 1983 Claims Against the Individual Defendants
i. Standard for Alleging Personal Involvement
To state a Section 1983 claim against an individual, the plaintiff must allege the personal
involvement of a defendant in the purported constitutional deprivation. Farid v. Ellen, 593 F.3d
233, 249 (2d Cir. 2010).
Personal involvement may be established by evidence of direct
participation by a supervisor in the challenged conduct, or by evidence of a supervisory
official’s “(1) failure to take corrective action after learning of a subordinate’s unlawful conduct,
(2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in
supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of
12
others by failing to act on information regarding the unlawful conduct of subordinates.” Havut
v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003). “An individual cannot be held liable
for damages under Section 1983 ‘merely because he held a high position of authority’....” Back
v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). A complaint based upon a violation under section
1983 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 (2d Cir. 2010) (summary order). “In this Circuit,
a ‘direct participant’ [in the constitutional violation] includes a person who authorizes, orders, or
helps others to do the unlawful acts, even if he or she does not commit the acts
personally.” Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014).
“In addition to fulfilling one of th[e] requirements [for supervisory liability], a plaintiff
must also establish that the supervisor’s actions were the proximate cause of the plaintiff’s
constitutional deprivation.” Littlejohn, 795 F.3d at 314 (quoting Raspardo v. Carlone, 770 F.3d
115, 116 (2d Cir. 2014)).
ii. Dr. Armas
Plaintiff has not alleged the direct participation of Dr. Armas in any of the alleged
violations of his constitutional rights, nor any basis upon which to find him liable in a
supervisory capacity. Although Plaintiff alleges that Dr. Armas created the policies of denying
pain management medication and access to community-based providers to inmates at the NCCC
notwithstanding medical need, those conclusory allegations, without more, are insufficient to
state a plausible claim for relief. See, e.g. Lindsey v. Butler, 43 F. Supp. 3d 317, 330 (S.D.N.Y.
2014), reconsideration granted on other grounds, 2014 WL 5757448 (S.D.N.Y. Nov. 5,
2014) (“In order to hold supervisors liable for creating a custom or policy fostering a
13
constitutional violation, courts in this Circuit have required that plaintiffs plead more than
conclusory allegations of the existence of the custom or policy.” (citing cases)); Parris v. New
York State Dep’t Corr. Servs., 947 F. Supp. 2d 354, 364 (S.D.N.Y. 2013) (“Conclusory,
unsupported allegations of . . . the existence of a policy are simply insufficient to establish
liability of supervisory prison officials under § 1983.” (quotations, brackets and citation
omitted)); Zembiec v. County of Monroe, 766 F. Supp. 2d 484, 498 (W.D.N.Y. 2011), aff’d 468
F. App’x. 39 (2d Cir. Mar. 15, 2012) (holding that conclusory allegations that a supervisory
official maintained an unconstitutional policy, “absent some factual allegations in support of
those assertions” are insufficient to state a claim for relief). Plaintiff fails to plead any factual
allegations from which it may reasonably be inferred that a custom or policy existed to deny
inmates at the NCCC pain management medication and access to community-based providers
notwithstanding medical need, or that Dr. Armas was aware that any inmate at the NCCC was
denied pain management medication or access to community-based providers that was medically
necessary. Indeed, the factual allegations and documents submitted by Plaintiff in his Complaint
indicate only that Plaintiff was denied access to a nephrologist and vascular surgeon, denied pain
medications at Plaintiff’s desired dosage levels, and not provided with an MRI. Allegations of a
single incident in which plaintiff was denied pain medication and, at most, two (2) incidents
where his request to see an outside specialist was denied, are insufficient to establish the
existence of a custom or policy. See, e.g. Lindsey, 43 F. Supp. 3d at 330-31; Parris, 947 F. Supp.
2d at 364. Thus, the branch of Defendants’ motion seeking dismissal of Plaintiff's claims against
Dr. Armas pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is GRANTED and
Plaintiff's claims against Dr. Armas are dismissed in their entirety for failure to state a claim for
relief.
14
iii. Dr. Margos
As with Dr. Armas, Plaintiff’s primary allegations against Dr. Margos are that she
promulgated the policies which denied Plaintiff access to community–based medical providers
and his desired pain medications and dosages. However, the mere fact that an individual holds a
high position of authority is not enough to be held liable under Section 1983. See Cofield v.
Armor Corr. Health, Inc., 2013 WL 2416318, *3 (E.D.N.Y. May 31, 2013).
Supervisory officials like Dr. Margos will not be found liable under Section 1983 simply
by virtue of their “high position of authority.” Whitenack v. Armor Med., 2014 WL 5502300, at
*5 (E.D.N.Y. Oct. 30, 2014) (quoting Al–Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065
(2d Cir. 1989)) (citing Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d
Cir. 2004)) (internal quotation marks omitted); see Morgan v. Dzurenda, 2015 WL 5722723, at
*6 (D. Conn. Sept. 19, 2015) (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985))
(“Supervisory officials cannot be held liable under section 1983 solely for the acts of their
subordinates.”).
Rather, liability may generally only be predicated upon the individual
defendant’s personal involvement in the purported constitutional violation. See Patterson v. Cty.
of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (citing Back v. Hastings on Hudson Union
Free School District, 365 F.3d 107, 122 (2d Cir. 2004)); Morgan, 2015 WL 5722723, at
*6 (citing Colon, 58 F.3d at 873). A complaint asserting a § 1983 claim which does not allege
facts establishing the requisite personal involvement “fails as a matter of law.” Gaines, 2013
WL 6410311, at *3 (citing Costello v. City of Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011)).
As explained earlier concerning Dr. Armas, plaintiff’s conclusory allegations about NCCC’s
purported policies are insufficient to plausibly allege the existence of such policies.
15
Broadly construed, Plaintiff’s sole allegation involving Dr. Margos’ personal involvment
is that Dr. Margos refused to send Plaintiff for an MRI. However, this claim relates to a
disagreement in treatment, which does not raise a constitutional violation. See Flemming v. City
of N.Y., 2009 WL 3174060, at *3 (E.D.N.Y. Sept. 30, 2009) (“Whether an MRI should have
been done is a classic example of a matter for medical judgment as to the appropriate course of
treatment and is not actionable under the Eighth Amendment.” (internal quotation marks and
citation omitted)); see also Wright v. Genovese, 694 F. Supp. 2d 137, 155 (N.D.N.Y. 2010).
Accordingly, the Armor Defendants’ motion to dismiss Plaintiff’s deliberate indifference
claims against Dr. Margos is GRANTED and such claims are DISMISSED.
iv. Sherriff Sposato
Here, Plaintiff’s Complaint is devoid of a single allegation concerning Defendant
Michael Sposato, the former Nassau County Sherriff. Even if the Court were to construe
Plaintiff’s grievances as somehow putting Sheriff Sposato on notice of Plaintiff’s claims, such
allegations are insufficient to impose Section 1983 liability upon Sheriff Sposato in a supervisory
capacity. See, e.g. Vogelfang v. Capra, 889 F. Supp. 2d 489, 502 (S.D.N.Y. 2012) (holding that
allegations that the Commissioner and Superintendent of the Department of Corrections failed to
respond to letters from plaintiff were insufficient to establish their “personal involvement for the
purposes of section 1983 liability.” (quotations and citation omitted)); Tafari v. McCarthy, 714
F. Supp. 2d 317, 359 (N.D.N.Y. 2010) (“A prisoner’s allegation that a supervisory official failed
to respond to a grievance is insufficient to establish that the official failed to remedy the violation
after learning of it through a report or appeal or allowed the custom or policy to continue after
learning of it.” (quotations and citation omitted)); Rosales v. Kikendall, 677 F. Supp. 2d 643, 650
(W.D.N.Y. 2010) (“[A] failure to process, investigate or respond to a prisoner’s grievances does
16
not in itself give rise to a constitutional claim.”); Johnson v. Wright, 234 F. Supp. 2d 352, 363
(S.D.N.Y. 2002) (finding that a letter to the Commissioner of the Department of Corrections
complaining that the plaintiff was denied certain medical treatment “cannot create personal
liability.”); Rivera v. Goord, 119 F. Supp. 2d 327, 344 (S.D.N.Y. 2000) (holding that allegations
that a prisoner’s complaints were ignored by a supervisory official are insufficient to establish
liability under Section 1983). “[I]f mere receipt of a letter or similar complaint were enough,
without more, to constitute personal involvement, it would result in liability merely for being a
supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat
superior liability.” Johnson, 234 F. Supp. 2d at 363 (quotations and citation omitted); accord
Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1234 (S.D.N.Y. 2003). “[T]he mere fact that
a defendant possesses supervisory authority is insufficient to demonstrate liability for failure to
supervise under § 1983.” Vogelfang, 889 F. Supp. 2d at 502 (quoting Styles v. Goord, 431 F.
App’x 31, 33 (2d Cir. June 23, 2011) (summary order)).
Plaintiff has failed to plausibly plead Sheriff Sposato’s personal involvement in any
infringement of his constitutional rights. Accordingly, Plaintiff’s Section 1983 claims against
Sheriff Sposato are dismissed in their entirety for failure to state a claim for relief.
Since Plaintiff did not explicitly state that he is suing Sheriff Sposato in his individual
capacity, the Court will also consider whether Plaintiff has stated a claim against Sheriff Sposato
in his official capacity as Sheriff of Nassau County. In this regard, the Court points out that “an
official-capacity suit is, in all respects other than name, to be treated as a suit against the
[governmental] entity [of which the officer is an agent].” Stancati v. Cty. of Nassau, 2015 WL
1529859, at *2 (E.D.N.Y. Mar. 31, 2015) (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.
Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (alterations in original); Castanza v. Town of
17
Brookhaven, 700 F. Supp. 2d 277, 283–84 (E.D.N.Y. 2010)). Therefore, a suit against Sheriff
Sposato in his official capacity is a suit against the Nassau County Sheriff's Department. It is
well established, however, that as an “administrative arm of a municipality,” the Nassau County
Sheriff's Department is not a suable entity. Campbell v. Sposato, 2015 WL 9267222, at *4
(E.D.N.Y. Nov. 17, 2015). Unlike the Nassau County Sheriff's Department, Nassau County
itself is a suable entity. However, for the same reasons that Plaintiff has failed to set forth a
claim against Armor, which is discussed in greater detail below, Plaintiff's Complaint fails to
establish a claim for municipal liability.
4. Section 1983 Claims Against the County and Armor
“Private employers [acting under color of state law] are not liable under Section 1983 for
the constitutional torts of their employees . . . unless the plaintiff proves that action pursuant to
official . . . policy of some nature caused a constitutional tort.” Rojas v. Alexander’s Dep’t
Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990); see also Green v. City of New York, 465 F.3d 65,
82 (2d Cir. 2006) (finding that a hospital was not vicariously liable for any constitutional torts
that its employees may have committed).
To prevail on a Section 1983 claim against a municipality or private company acting
under color of state law, a plaintiff must show:
“(1) actions taken under color of law;
(2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality [or private company acting under color of state law] caused
the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008); see
also Connick v. Thompson, 563 U.S. 51 (2011) (“Plaintiffs who seek to impose liability on local
governments under Section 1983 must prove that ‘action pursuant to official municipal policy’
caused their injury.”) (quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
18
658, 691 (1978)); Rojas, 924 F.2d at 409 (“Although Monell dealt with municipal employers, its
rationale has been extended to private businesses [acting under color of state law].”).
“Official . . . policy includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the force
of law.” Connick, 563 U.S. at 61. In addition, liability can be established “by showing that a
policymaking official ordered or ratified the employee’s actions—either expressly or
tacitly.” Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012). “Thus, a plaintiff can
prevail against a municipality [or private company acting under color of state law] by showing
that the policymaking official was aware of the employee’s unconstitutional actions and
consciously chose to ignore them.” Id. To establish such deliberate indifference, “a plaintiff
must show that a policymaking official was aware of constitutional injury, or the risk of
constitutional injury, but failed to take appropriate action to prevent or sanction violations of
constitutional rights.” Id.
The Court assumes, for the sake of argument, that Armor—a private company contracted
to perform medical services for prisoners at the NCCC, see, e.g., Briel v. Sposato, 2012 WL
3697806, at *5 (E.D.N.Y. Aug. 21, 2012)—was acting under color of state law for purposes
of Section 1983 with respect to its duties in rendering such medical services to inmates at the
NCCC, including Plaintiff. See West v. Atkins, 487 U.S. 42, 54 (1988) (holding that a physician
employed to provide medical services to state prisoners “acted under color of state law for
purposes of Section 1983 when undertaking his duties in treating [the plaintiff’s] injuries.”)
However, Plaintiff’s conclusory allegations regarding the purported policies of the
County and Armor are insufficient to state a Section 1983 Monell claim against those
defendants. See, e.g., Biswas v. City of New York, 973 F. Supp. 2d 504, 539 (S.D.N.Y.
19
2013) appeal dismissed sub nom, Biswas v. Kwait, 576 F. App’x 58 (2d Cir. Aug. 25, 2014), as
amended (Aug. 28, 2014) (“[C]onclusory, boilerplate allegations are insufficient to state a claim
based on the existence of an official policy.”); Solomon v. Nassau Cty., 759 F. Supp. 2d 251, 263
(E.D.N.Y. 2011) (“Conclusory allegations of municipal custom or policy are insufficient to
satisfy [Monell].”).
Accordingly, the branch of Defendants’ motions seeking dismissal of
Plaintiff's claims against the County and Armor pursuant to Rule 12(b)(6) is granted and
Plaintiff’s Section 1983 claims against the County and Armor are dismissed in their entirety for
failure to state a claim for relief.
C. State-Law Claims
Under 28 U.S.C. § 1367(a), “the district courts shall have supplemental jurisdiction over
all other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States
Constitution.” However, courts “may decline to exercise supplemental jurisdiction over a claim”
if “the district court has dismissed all claims over which it has original jurisdiction.”
Id. § 1367(c); (c)(3); see Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d.
Cir. 2011). The Supreme Court explained: “[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988).
Here, given the absence of a viably pled federal law claim, the interests of judicial
economy, convenience, fairness, and comity weigh in favor of not exercising supplemental
jurisdiction at this time. Accordingly, the Court declines to exercise supplemental jurisdiction
20
over any potential state-law claims contained in Plaintiff’s Complaint and dismisses any such
claims without prejudice.
D. Leave to Amend
The Second Circuit has cautioned that, when a liberal reading of a pro se complaint
“gives any indication that a valid claim might be stated,” the district court should not dismiss the
complaint without granting leave to amend. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010) (internal quotation marks omitted); see Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave [to amend] when justice so requires.”).
It is well settled, however, that
“leave to amend a complaint need not be granted when amendment would be futile.” Ellis v.
Chao, 336 F.3d 114, 127 (2d Cir. 2003); see Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (holding that a “futile request to replead,” even by a pro se litigant, “should be denied”).
An amendment is “futile” if the proposed pleading would not withstand a motion to dismiss.
See Jones v. Phelps Corp., 2014 WL 2195944, at *3 (N.D.N.Y. May 22, 2014).
In an abundance of caution, Plaintiff is granted leave to file an amended complaint in
accordance with this order. Plaintiff is reminded, however, that, “[f]or purposes of Eighth [or
Fourteenth] Amendment claims, the Supreme Court has drawn a ‘distinction between mere
negligence and wanton conduct . . . .’”
Graham v. Poole, 476 F. Supp. 2d 257, 259-60
(W.D.N.Y. 2007) (quoting Whitley v. Albers, 475 U.S. 312, 322 (1986)). It is well-established
that “mere negligence is not actionable, nor is ‘mere medical malpractice . . . tantamount
to deliberate indifference.’”
Green v. McLauglin, 480 F. App’x 44, 48 (2d Cir.
2012) (quoting Chance, 143 F.3d 698, 703 (2d Cir. 1998)); see also Esteile, 429 U.S. at
106 (“Medical malpractice does not become a constitutional violation merely because the victim
is a prisoner”); Salahuddin, 467 F.3d at 280 (stating that deliberate indifference “entails more
21
than mere negligence; the risk of harm must be substantial and the official's actions more than
merely negligent”).
Plaintiff is cautioned that the amended complaint completely replaces the complaint and
therefore must include factual allegations and any claims Plaintiff seeks to pursue against the
Defendants. The amended complaint must be clearly labeled “amended complaint,” bear the
same docket number as this order and must be filed with the Court by April 4, 2018. If Plaintiff
does not timely an amended complaint, all of plaintiff’s federal claims will be dismissed with
prejudice, judgment shall enter, and this case will be closed.
Alternatively, Plaintiff may seek to pursue any valid state law claims he may have,
including negligence, in state court.
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III. CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss Plaintiff’s claims in their
entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure are GRANTED and
Plaintiff’s claims are dismissed in their entirety without prejudice for failure to state a claim for
relief. Plaintiff is GRANTED leave to file an amended complaint in accordance with the
guidance set forth in this Order by April 4, 2018. Further, if Plaintiff does not file an amended
complaint by April 4, 2018, all of his federal claims will be dismissed with prejudice, and this
case will be closed.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21
(1962). The Clerk of the Court is respectfully requested to send a copy of this Order to the pro
se plaintiff.
SO ORDERED.
Dated: Central Islip, New York
March 31, 2018
/s/ (JMA)
Joan M. Azrack
United States District Judge
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