Gazzola et al v. County of Nassau et al
Filing
74
MEMORANDUM & ORDER granting in part and denying in part 58 Motion for Summary Judgment; granting in part and denying in part 61 Motion for Summary Judgment; terminating 73 Motion to Amend/Correct/Supplement; terminating 73 Motion for Summ ary Judgment; ORDERED that: 1) The Court GRANTS in part and DENIES in part Armor's (ECF No. 61) and the County's (ECF No. 58) respective motions for summary judgment, with the motions: a. GRANTED with respect to Plaintiff's New York State law claims for intentional infliction of emotional distress and failure to train; and b. GRANTED with respect to Plaintiff's wrongful death claim to the extent that, if proven, Plaintiff may only recover on this claim for funeral and burial expenses. c. DENIED with respect to Plaintiff's Eighth Amendment claims under Monell (under the theories approved herein) and her remaining New York State law claims; 2) The Court DENIES Armor's motion for summary judgment as to Plaintiff's claim for punitive damages; 3) All claims against the Nassau County Correctional Center, Nassau County Sheriff's Department, and the John and Jane Doe Defendants are DISMISSED, and the Clerk of the Court shall TERMINATE these entities as parties to this action; 4) The Clerk of the Court shall TERMINATE the motion pending at ECF No. 73; 5) On or before July 1, 2022, the parties shall file a letter advising whether they wish to be referred to the Court's Trial Ready Rapid Mediation Program; and 6) The parties shall use the caption set forth herein in all future filings. So Ordered by Judge Joanna Seybert on 6/23/2022. C/ECF (Valle, Christine)
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 1 of 47 PageID #: 4288
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
GLORIA GAZZOLA, Individually and as
Administrator of the Estate of
ANTONIO MARINACCIO, JR.,
Plaintiff,
MEMORANDUM & ORDER
16-CV-0909(JS)(AYS)
-againstCOUNTY OF NASSAU; NASSAU COUNTY
CORRECTIONAL CENTER; NASSAU COUNTY
SHERIFF’S DEPARTMENT; MICHAEL J.
SPOSATO,
Individually
and
as
Sheriff of NASSAU COUNTY; ARMOR
CORRECTIONAL HEALTH SERVICES, INC.;
ARMOR CORRECTIONAL HEALTH SERVICES
OF NEW YORK, INC.; NASSAU COUNTY
CORRECTIONS OFFICERS, “JOHN DOES 110,”
in
their
Individual
and
Official
Capacities;
ARMOR
CORRECTIONAL
HEALTH
SERVICE
EMPLOYEES AND AGENTS, “JOHN and JANE
DOES 11-20,” in their Individual and
Official Capacities,
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Harry Chris Demiris, Esq.
400 Post Avenue, Suite L11
Westbury, New York 11590
For Defendant
County of Nassau:
For Defendant
Armor Health:
Andrew Reginald Scott, Esq.
Nassau County Attorney’s Office
1 West Street
Mineola, New York 11501
Dale Nicholson McLaren, Esq.
John J. Doody, Esq.
Lewis Brisbois Bisgaard & Smith, LLP
77 Water Street, 21st Floor
New York, New York 10005
1
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 2 of 47 PageID #: 4289
SEYBERT, District Judge:
On
February
23,
2016,
Gloria
Gazzola
(“Plaintiff”),
individually and as the administrator of the estate of Antonio
Marinaccio, Jr., commenced this action pursuant to 42 U.S.C. §
1983
against
the
County
of
Nassau
(the
“County”)
and
Armor
Correctional Health Services, Inc. 1 (“Armor,” and together with
the County, “Defendants”), among other Defendants.
brings
Monell
claims
against
Defendants
for
Plaintiff
deliberate
indifference to Marinaccio’s medical needs in violation of his
Eighth Amendment constitutional rights, as well as New York State
law claims.
Pending before the Court are Defendants’ respective
motions for summary judgment.
(County Mot., ECF No. 58; County
Support Memo, ECF No. 58-13; County Reply, ECF No. 69; Armor Mot.,
ECF No. 61; Armor Support Memo, ECF No. 61-12; Armor Reply, ECF
No. 70.) For the following reasons, the County’s motion is GRANTED
in part and DENIED in part; and Armor’s motion is GRANTED in part
and DENIED in part.
BACKGROUND
Unless
otherwise
noted,
the
following
facts
are
undisputed. 2
Plaintiff also names Armor Correctional Health Services of New
York, Inc. as a Defendant.
1
The parties’ respective Local Rule 56.1 Statements are equally
unhelpful, Defendants for failing to address facts of obvious
relevance to the legal issues raised herein, such as the New York
2
2
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I.
Facts
This case arises out of the death of Antonio Marinaccio,
Jr.
(“Decedent”)
while
incarcerated
Correctional Center (“NCCC”).
at
the
Nassau
County
The NCCC is a correctional facility
operated by the Nassau County Sheriff’s Department, an agency of
the County. Michael Sposato served as the Sheriff of Nassau County
during
the
relevant
period.
Sheriff
Sposato
was
therefore
responsible for the daily operation of the NCCC.
A.
Pre-Incarceration Medical Examination
From September 19, 2012 up until his incarceration at
the NCCC on April 24, 2015, Decedent received treatment from
Patricia Dellatto, a nurse practitioner, for pain management after
he sustained injuries in a car accident in October 2010.
(Armor
State Commission of Corrections report on the Decedent’s (and
others’) death while in custody at the NCCC; and Plaintiff for
failing to support each statement of fact with admissible evidence,
as the Local Rules require. Further, neither Defendant filed a
response to Plaintiff’s Local Rule 56.1 Counterstatement, as the
Local Rules and this Court’s Individual Rules require.
Rather
than strike the parties’ respective Local Rule 56.1 Statements and
Counterstatements, the Court has independently reviewed the
summary judgment record, including the exhibits attached to the
Declarations of Andrew R. Scott (Scott Decl., ECF No. 58-1), Dale
McLaren (McLaren Decl., ECF No. 61-2), and Harry C. Demiris, Jr.
(Demiris Decl., ECF Nos. 66; Second Demiris Decl., ECF No. 67-2),
to identify the facts relevant to disposition of Defendants’
respective motions. See Holtz v. Rockefeller & Co., 258 F.3d 62,
73 (2d Cir. 2001) (“[W]hile a court “is not required to consider
what the parties fail to point out” in their Local Rule 56.1
statements, it may in its discretion opt to “conduct an assiduous
review of the record.”).
For that reason, the Court cites
sparingly to the parties’ Local Rule 56.1 Statements and
Counterstatements.
3
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Local Rule 56.1 Statement (“Armor 56.1 Stmt.”), ECF No. 61-1, ¶
15; Nurse Dellatto Depo. Tr. at 23:8-11, Ex. H, attached to McLaren
Decl.)
Throughout the course of his treatment, Nurse Dellatto
twice performed an electrocardiogram test, or “EKG,” 3 on Decedent:
once on January 28, 2013, and again on April 14, 2015. 4
56.1 Stmt. ¶ 16.)
(Armor
After the first EKG, which showed changes with
possible myocardial infarction and “right access deviation,” or
electrical activity of the heart shifting to the right,” Nurse
Dellatto referred Decedent to a cardiologist.
Depo. Tr. at 56:20-57:6; id. 67.)
(Nurse Dellatto
Nurse Dellatto’s medical chart
from around this time indicates that Decedent was diagnosed with
“coronary artery disease with shortness of breath and nonspecific
EKG changes . . . showing first degree block.”
(Id. at 69:11-14.)
Nurse Dellatto performed the second EKG on Decedent
shortly before his incarceration at the NCCC.
“nonspecific
abnormal
electrocardiogram”
with
The EKG indicated
an
“unconfirmed
“An electrocardiogram (ECG) [also known as an “EKG”] is one of
the simplest and fastest tests used to evaluate the heart.
Electrodes (small, plastic patches that stick to the skin) are
placed at certain spots on the chest, arms, and legs.
The
electrodes are connected to an ECG machine by lead wires.
The
electrical activity of the heart is then measured, interpreted,
and printed out.
No electricity is sent into the body.”
Electrocardiogram,
Johns
Hopkins
Medicine
https://www.hopkinsmedicine.org/health/treatment-tests-andtherapies/electrocardiogram (last visited June 23, 2022).
3
There is some confusion whether Decedent received more than the
two documented EKGs during his course of treatment with Nurse
Dellatto. (See, e.g., Nurse Dellatto Depo. Tr. at 68, 72.)
4
4
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interpretation.”
(Id. at 100:1-12.)
Based on the results of the
second EKG, as well as her physical examination, Nurse Dellatto
did not find any indication that Decedent was suffering from a
cardiac problem.
(Id. at 100-101.)
Nurse Dellatto believes that
she gave Decedent “a copy of the EKG to show to his lawyer, and
the jail, and the court.”
B.
(Id. at 50:6-8.)
Initial Examination at the NCCC
Decedent arrived at the NCCC on April 24, 2015. At 11:00
p.m. that evening, Armor nurse Katherine McCormack performed an
“intake health screening and assessment” on Decedent.
(Armor
Medical Records at 15, Ex. C, attached to McLaren Decl.) 5
McCormack
took
temperature.
a
complete
(Id.)
set
of
Decedent’s
vitals
Nurse
and
his
According to Nurse McCormack’s treatment
notes, Decedent reported that for the two weeks leading up to his
admission
to
NCCC
he
had
been
expectoration of green mucus.
suffering
(Id. at 22.)
from
a
cough
with
Decedent added that
he “went on a binge until jail” and admitted to using cocaine,
crack, marijuana, and Percocet. 6
(Id. at 13, 16; see also Nurse
McCormack Depo. Tr. at 25, Ex. 9, attached to Second Demiris
Citations are to the exhibits’ internal pagination where
available; otherwise, citations are to the electronically
generated pagination.
5
Nurse Dellatto had invariably prescribed Percocet for Decedent
for pain management, and it is unclear from the record whether
Decedent’s Percocet use prior to his incarceration was physicianapproved.
6
5
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 6 of 47 PageID #: 4293
Decl.) 7
Nurse
McCormack
observed
“disheveled,” and “aggressive.”
Decedent
was
“anxious,”
(Armor Medical Records at 15.)
Based on Decedent’s anxious and disheveled state, as
well as his “significant past medical history of polysubstance,”
or use of multiple forms of drugs and alcohol, and the fact that
he had an EKG prior to his incarceration, Nurse McCormack asked
the supervising doctor, Dr. Sanchez, to order an EKG and a chest
X-ray.
(Nurse McCormack Depo. Tr. at 25-26.)
According to Nurse
McCormack, after confirming that Decedent did not report any chest
pain, Dr. Sanchez declined to order an EKG or chest X-ray.
at 26-27.)
Nurse McCormack further testified that, at her urging,
Dr. Sanchez came into the intake room and spoke to Decedent.
at 28-29.)
(Id.
(Id.
Although she does not recall the specifics, including
whether Dr. Sanchez examined Decedent, she recalls some discussion
about Decedent’s recent EKG.
(Id. 28:24-29:14.)
In the end, Dr.
Sanchez ordered an albuterol nebulizer to treat Decedent’s asthma
but did not order the EKG or chest X-ray.
(Id. at 30.)
Nor did
Dr. Sanchez write a progress note summarizing his visit with
Decedent.
Moreover, Nurse McCormack claims that the assessment
note she created in connection with Decedent’s intake examination,
wherein she recorded that Dr. Sanchez declined to order an X-ray
Plaintiff separately provided an uncorrupted copy of Nurse
McCormack’s deposition testimony at ECF No. 73.
7
6
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and
EKG,
went
incident.
missing
after
Decedent’s
morning,
another
subsequent
cardiac
(Id. at 39-40.)
The
Decedent.
following
Armor
nurse
examined
She observed “wheezes present in lungs” and contacted
an Armor physician’s assistant to order albuterol nebulizer to
treat Decedent’s asthma.
C.
Emergency Medical Treatment
In the early morning hours of April 26, 2015, Decedent
complained of chest pains to the NCCC correctional officer on duty
in Decedent’s cell block.
(See Correction Officer Desk Log, Ex.
2, attached to Second Demiris Decl.)
The correctional officer,
likely Officer Meyer, later told the New York State Commission of
Correction (“NYS COC”) that Decedent told him “I feel like I am
having a heart attack.”
(NYS COC Report on Decedent at 5, Ex. 7,
attached to Second Demiris Decl.)
Officer Meyer called Armor for
an emergency sick call, and Armor Nurse Benny Cador responded.
In his deposition, Nurse Cador summarized his initial
assessment:
The
patient
was
physically
stable,
no
respiratory distress. He walked up from his
bed, he walked to the bars. He was able to - he was alert, oriented times four, he knew
where he was.
He was physically stable to
walk to the bars. . . . I did a set of vitals,
I checked his vitals. He didn’t have a fever.
He did complain that he . . . felt warm . . .
and he felt achy. At first I thought it was
like maybe the flu.
7
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(Nurse Cador Depo Tr. at 62:16-63:4, Ex. I, attached to McLaren
Decl.; see also Armor Medical Records at 3.)
recall
whether
Officer
Meyer
complaining of chest pains.
advised
him
Nurse Cador does not
that
Decedent
was
(Nurse Cador Depo. Tr. at 99:9-11.)
The record on this question is unclear.
(See, e.g., NCCC C.O.
Stmts. at 5, Ex. 5, attached to Second Demiris Decl. (statement of
Correctional Officer Sergeant Thomas Nicholas: “It is to be noted
that Inmate Marinaccio was complaining of chest pains to correction
staff . . . approximately forty five [sic] minutes prior to him
being found unresponsive in his cell.”); id. at 37 (contemporaneous
notes from unidentified correctional officer regarding encounter
with Decedent: “I feel like I’m having a heart attack”; “informed
chest pain”); id. at 48 (contemporaneous notes from unidentified
correctional officer regarding encounter with Decedent: “Don’t
recall stated to RN that Marinaccio was having chest pain”); id.
at 57 (same: “Inmate c/o chest pains”).
In any event, Nurse Cador
promised to have a doctor follow up with Decedent in the morning.
(Nurse Cador Depo. Tr. at 81:19-24.)
A short time after Nurse Cador’s examination, 8 Officer
Minter,
another
NCCC
correctional
officer,
found
Decedent
The length of the interval between Nurse Cador’s initial
examination and Decedent’s cardiac incident is unclear from the
record. Nurse Cador’s treatment notes indicate that his initial
examination occurred at 3:25 a.m., and he was called back to
Decedent’s cell at 3:35 a.m.
(Armor Medical Records at 3.)
8
8
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unresponsive and lying faceup in his cell.
NCCC C.O. Stmts. at 18.)
(Armor 56.1 Stmt. ¶ 7;
Officer Minter activated his body alarm
and notified Armor that there was an emergency.
NCCC C.O. Stmts.)
treatment;
(See generally
Nurse Cador was summoned to provide emergency
however,
he
forgot
the
automated
external
defibrillator, or “AED,” and was forced to return to the nursing
station to retrieve it.
Nurse
Cador’s
(Nurse Cador Depo. Tr. at 105:21-22.)
absence,
the
performed CPR on Decedent.
Nurse
Cador
deployed
the
responding
correctional
(Id. at 111:13-17.)
AED,
and
he
In
officers
Upon his return,
and
the
responding
correctional officers continued alternating between the AED and
CPR “until the emergency services got there.”
(Id. at 111-17,
119:9-11.)
Emergency medical technicians subsequently arrived at
the scene and took over all life-saving efforts. (Armor 56.1 Stmt.
¶ 10.)
Decedent was transferred by EMT to Nassau University
Medical Center and then again to North Shore University Hospital,
where he died on May 2, 2015.
(Armor 56.1 Stmt. ¶ 11.)
The
resulting autopsy performed on Decedent attributed his cause of
death
to
anoxic
encephalopathy
following
cardio-respiratory
arrest, i.e., brain damage following a heart attack.
(Armor 56.`
Stmt. ¶ 13.)
However, he testified at his deposition that the interval was
“maybe forty-five minutes.” (Nurse Cador Depo. Tr. at 63:13-14.)
9
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D.
The New York State Commission of Correction Reports
The NYS COC issued a final report on Decedent’s death
while in custody at the NCCC.
attached to Demiris Decl.)
(See NYS COC Report on Decedent,
Based upon reports from its Medical
Review Board, the NYS COC found that Decedent “received inadequate
health care from Armor Inc. . . . due to having an unrecognized
acute
myocardial
infarction
with
probable
electrocardiogram
changes that could have been detected had he received a proper
medical examination.” (Id. at 2.) Had Armor recognized the “signs
of [Decedent’s] myocardial infarction,” the Report continued, “his
death may have been prevented.”
(Id.)
The Report specifically
found that the lack of a written examination note in the progress
notes by Dr. Sanchez during his initial assessment of Decedent
“represents inadequate documentation” in violation of the NY COC
minimum standards and does not provide evidence that an examination
occurred, and that Nurse Cador’s decision to leave the scene of
Decedent’s
cardiac
incident
abandonment of a patient.
to
retrieve
(Id. at 3, 6.)
the
AED
constituted
The NYS COC made several
recommendations to Armor, including that it conduct a detailed
quality assurance review regarding the medical care provided to
Decedent; and to the County, including that it conduct an inquiry
into the fitness of Armor to serve as a correctional medical care
10
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provider at the NCCC.
(Id. at 6-7.)
Report to Sheriff Sposato.
The NYS COC addressed the
(Id. at 1.)
Plaintiff submits seven other NYS COC reports regarding
inmate deaths at NCCC while under Armor’s care during the 2012
through 2016 time period. (NYS COC Final Reports on Inmate Deaths,
Ex. 8, attached to Second Demiris Decl.)
In each report, all of
which are addressed to Sheriff Sposato, the NYS COC makes certain
findings
as
to
the
relevant
incident
recommendations to Armor and the County.
and
corresponding
For example, in one
report the NYS COC found that the decedent’s death “was impacted
by a failure of health care providers from Armor Inc. to adequately
treat chronic illness, recognize and treat serious changes in [the
decedent’s] condition, provide adequate follow up on refusals of
treatment and to provide a prompt transfer to a higher level of
care when indicated.” (Id. at 3.) The NYS COC found these failures
amounted to “systemic deficiencies in the delivery of adequate
medical care.”
(Id.)
In another report, the NYS COC found that
while the decedent died due to a pre-existing medical condition,
“the failure of Armor Inc. health providers to adequately identify
and treat [the decedent’s] illnesses, to recognize the serious
changes in his condition, to provide adequate follow up on refusals
and renewals of medication, and a completely inadequate response
to his sick call requests were contributory to his worsening
health.”
(Id. at 15; see also id. at 30 (finding Armor’s provision
11
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of “incompetent healthcare” contributed to inmate’s death); id. at
42 (finding Armor’s delivery of healthcare that was “incompetent
and deficient” contributed to inmate’s death); id. at 50 (similar);
id. at 61 (finding inadequate evaluation and treatment by Armor).)
The reports consistently recommended that the County conduct an
inquiry into the fitness of Armor to provide correctional medical
care at NCCC.
E.
The NCCC’s Contract with Armor
In 2011, after requesting and evaluating proposals from
several healthcare providers, the County entered into an agreement
with Armor whereby Armor would provide medical, mental health,
dental, and ancillary services to inmates incarcerated at Nassau
County Correctional Facilities.
(County Local Rule 56.1 Statement
(“County 56.1 Stmt.”), ECF No. 58-14, ¶¶ 10-15.) 9
Under the
contract, Armor agreed to provide services in accordance with the
minimum standards of medical service as set forth in the Settlement
Agreement between the Department of Justice and the County, which
had resulted from a years’ long investigation by the DOJ into
conditions at the NCCC.
(Pl. Local Rule 56.1 CounterStatement to
County (“Pl. 56.1 Counterstmt. to County”), ECF No. 67-1, ¶ 48;
Settlement Agreement, Ex. 1; Armor Contract, Ex. 5A, attached to
Demiris Decl.)
The contract was extended through the relevant period in which
Decedent was incarcerated at the NCCC.
9
12
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As relevant here, the contract required Armor to develop
and implement a written “quality improvement program” for medical
and mental health care under the auspices of a Quality Improvement
Committee,
or
QIC,
which
was
responsible
“for
all
quality
improvement activities” consistent with the provisions of the DOJ
Settlement
(Settlement Agreement § 5(a), (b), (c).)
The contract
directed that the QIC be chaired by a physician and “include a
multi-disciplinary review necessary to properly review the status
of health care provided to inmates at NCCC.”
(Id.)
The QIC would
meet and report monthly to Sheriff Sposato and to the “Health
Contract Administrator,” a County employee designated to oversee
administration of and monitor compliance with the contract.
(Id.)
However, since August 2013, the NCCC has been without a Health
Contract Administrator due to the County’s failure to designate
one.
(County Comptroller Audit at 9, Ex. 3, attached to Demiris
Decl.)
Nor did the QIC meet monthly with Sheriff Sposato, as the
contract required.
Indeed, Armor did not implement a quality
improvement plan as required.
(Pl. 56.1 Counterstmt. to County ¶
158.)
Further, the contract obligated Armor to share costs
with the County for off-site medical services.
the
cost
of
off-site
medical
services
Specifically, once
exceeded
the
$750,000
threshold per annum, Armor became responsible for 60% of the costs,
13
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with the County paying the remaining 40%.
(Pl. 56.1 Counterstmt.
to County ¶ 137.)
II.
Procedure
Plaintiff initiated this action on February 23, 2016.
Based on the foregoing allegations, Plaintiff asserted federal
claims pursuant to Section 1983 for violations of Decedent’s Eighth
Amendment rights and Monell liability, as well as state law claims
for failure to train; failure to supervise; failure to provide
adequate medical care; mistakes in medical treatment; deliberate
indifference; vicarious liability; negligence; wrongful death;
failure to treat and/or diagnose; and intentional infliction of
emotion distress.
By order dated October 13, 2016, Judge Spatt 10 dismissed
Plaintiff’s claims against Sheriff Sposato in his official and
individual
Sposato’s
capacity
personal
for
failure
involvement
to
in
adequately
the
alleged
plead
Sheriff
constitutional
deprivations, but permitted Plaintiff’s Monell claim against the
County to proceed.
(Order, ECF No. 20.)
Magistrate Judge Shields
certified that the parties completed discovery after they filed
their joint pre-trial order (“JPTO,” ECF No. 57), and Defendants’
respective motions for summary judgment followed.
10
The case was reassigned to the undersigned on June 30, 2020.
14
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DISCUSSION
I.
Legal Standard
Summary
judgment
is
appropriate
where
there
is
“no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“Material
facts are those which might affect the outcome of the suit under
the governing law, and a dispute is genuine if the evidence is
such
that
a
reasonable
nonmoving party.”
jury
could
return
a
verdict
for
the
Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,
164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499
F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.”
CILP Assocs., L.P.
v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013)
(cleaned up).
“In moving for summary judgment against a party who
will bear the ultimate burden of proof at trial,” as Plaintiff
does here, “the movant may satisfy this burden by pointing to an
absence
of
evidence
to
support
nonmoving party’s claim.”
an
essential
element
of
the
Gummo v. Village of Depew, 75 F.3d 98,
107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986)).
“If, as to the issue on which summary judgment is
sought, there is any evidence in the record from which a reasonable
inference could be drawn in favor of the opposing party, summary
judgment is improper.”
Hetchkop v. Woodlawn at Grassmere, Inc.,
15
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 16 of 47 PageID #: 4303
116 F.3d 28, 33 (2d Cir. 1997).
Moreover, “the court is not to
make assessments of the credibility of witnesses” on a motion for
summary judgment, as “[c]redibility assessments, choices between
conflicting versions of events, and weighing of the evidence are
matters for the jury.”
Id.
On a motion for summary judgment 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.”
147, 156 (2d Cir. 2011).
Nnebe v. Daus, 644 F.3d
In reviewing the 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
No.
Tech.
Inc.,
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)).
When drawing inferences from
evidence in the record in favor of the non-moving party, however,
a court should not accord the non-moving party the benefit of
“unreasonable inferences, or inferences at war with undisputed
facts.”
Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d
334, 342 (S.D.N.Y. 2005) (quoting County of Suffolk v. Long Island
Lighting Co., 907 F.2d 1295, 1318 (2d Cir. 1990)).
16
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II.
Analysis
A.
Section 1983
Section 1983 provides a civil claim for damages against
any person who, acting under color of state law, deprives another
of
any
rights,
privileges,
or
immunities
secured
Constitution or the laws of the United States.
by
the
See 42 U.S.C.
§ 1983; Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).
“The
purpose of § 1983 is to deter state actors from using the badge of
their
authority
guaranteed
to
rights
deprive
and
deterrence fails.”
to
individuals
provide
relief
of
their
to
victims
federally
if
such
Wyatt v. Cole, 504 U.S. 158, 161 (1992).
Further, it is well established that a municipality such as the
County cannot be held liable under Section 1983 on a respondeat
superior theory.
See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 691 (1978); Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir. 2008).
“Rather, municipalities may be liable [under Section
1983] only where ‘execution of a government’s policy or custom’
causes constitutional violations.”
Buari v. City of New York, No.
18-CV-12299, 2021 WL 1198371, at *21 (S.D.N.Y. Mar. 30, 2021)
(quoting Monell, 436 U.S. at 694).
There
are
no
individually
named
defendants
in
this
action, save Sheriff Sposato, who was dismissed as a party in an
earlier order.
Although several “John and Jane Doe” defendants
were named, to date, Plaintiff has not moved to substitute named
17
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defendants for these unidentified individuals.
As a result,
Plaintiff’s claims against these John and Jane Doe defendants are
dismissed at this time.
See Asseng v. County of Nassau, No. 14-
CV-5275, 2021 WL 596620 at *11 (quoting Delrosario v. City of New
York, No. 07-CV-2027, 2010 WL 882990, at *5 (S.D.N.Y. Mar. 4, 2010)
(“Where discovery has closed and the Plaintiff has had ample time
and opportunity to identify and serve John Doe Defendants, it is
appropriate to dismiss those Defendants without prejudice.”));
Gleeson v. County of Nassau, No. 15-CV-6487, 2019 WL 4754326, at
*12 (E.D.N.Y. Sept. 30, 2019) (dismissing the plaintiffs’ Section
1983 claims against John and Jane Doe defendants in identical
circumstances).
With respect to her federal claims, then, Plaintiff may
proceed against the County and Armor only on a theory of Monell
liability.
“To prevail against a municipality in a Section 1983
action, a plaintiff must plead and prove three elements: (1) an
official policy or custom that (2) caused the plaintiff to be
subjected to (3) a denial of a constitutional right.”
Kogut v.
County of Nassau, No. 06-CV-6695, 2009 WL 5033937 (E.D.N.Y. Dec.
11, 2009) (citing Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir.
2008)).
The Court first assesses whether there remain triable
issues as to whether Defendants denied Plaintiff his right to
adequate medical care while incarcerated as protected by the Eighth
Amendment to the United States Constitution.
18
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1.
Deliberate Indifference to Medical Needs
i.
Applicable Law
The County 11 owes “a constitutional obligation to provide
medical care to persons it is punishing by incarceration.” Charles
v. Orange County, 925 F.3d 73, 82 (2d Cir. 2019) (citing Estelle
v.
Gamble,
429
U.S.
97,
103
(1976)).
“When
the
state
is
deliberately indifferent to the medical needs of a person it has
taken into custody, it violates the Eighth Amendment’s prohibition
on cruel and unusual punishment.”
Id. (citing Estelle, 429 U.S.
at 104).
To establish that a prison official was deliberately
indifferent to a prisoner’s medical needs in violation of the
Eighth
Amendment,
the
plaintiff
must
show:
(1) the
alleged
deprivation of adequate medical care was “sufficiently serious”;
and (2) the prison official acted with “deliberate indifference to
inmate health.”
Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d
Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994));
see also Alvarez v. Wright, 797 F. App’x 576, 579 (2d Cir. 2019);
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Johnson v.
It is well established that third-party healthcare providers
retained by the County to provide medical care at its prisons are
state actors for purposes of Section 1983.
Ryan v. County of
Nassau, No. 12-CV-5343, 2016 WL 11500151, at *7 (E.D.N.Y. Mar. 31,
2016) (Seybert, J.) (“Since Armor was hired to fulfill the state’s
constitutional obligation to provide necessary medical care for
its inmates, the Court finds that it was a state actor that can be
sued pursuant to Section 1983.” (cleaned up)).
11
19
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Wright, 412 F.3d 398, 403 (2d Cir. 2005); Smith v. Carpenter, 316
F.3d 178, 184 (2d Cir. 2003); Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998).
With respect to the first requirement, often referred to
as the “objective test,” the court must answer two inquiries.
First, the court must determine “whether the prisoner was actually
deprived of adequate medical care,” because the prison official’s
duty under the Eighth Amendment “is only to provide reasonable
care.”
at
Salahuddin, 467 F.3d at 279-280 (citing Farmer, 511 U.S.
844-47).
Second,
“the
objective
test
asks
whether
inadequacy in medical care is sufficiently serious.”
the
Id. at 280.
“Factors relevant to the seriousness of a medical condition include
whether ‘a reasonable doctor or patient would find [it] important
and
worthy
of
comment,’
whether
the
condition
‘significantly
affects an individual's daily activities,’ and whether it causes
‘chronic and substantial pain.’”
702).
Id. (quoting Chance, 143 F.3d at
The “seriousness inquiry” differs where, rather than a
failure to provide any medical treatment, the inmate claims that
“the inadequacy is in the medical treatment given”; for example,
where
“the
offending
conduct
is
an
interruption in [on-going] treatment.”
F.3d at 185).
unreasonable
delay
or
Id. (citing Smith, 316
In the case of delay or interruption in treatment,
the focus is on “the severity of the temporary deprivation alleged
by the prisoner” and the “particular risk of harm faced by the
20
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prisoner due to the challenged deprivation of care.”
Smith, 316
F.3d at 186 (citing Chance, 143 F.3d at 702-03); see also Demata
v. N.Y.S. Corr. Dep’t of Health Servs., 198 F.3d 233 (2d Cir. 1999)
(holding the plaintiff could not sustain an Eighth Amendment claim
for deliberate indifference to serious medical needs where he could
not demonstrate his injuries degenerated as a result of the alleged
deprivation of treatment); Bilal v. White, 494 F. App’x 143, 146
(2d Cir. 2012) (holding the plaintiff could not sustain an Eighth
Amendment claim for deliberate indifference to serious medical
needs
where
“there
[was]
no
evidence
that
[the
plaintiff’s]
conditions worsened over the hours of delay here”).
With respect to the second, “subjective” or “mens rea,”
requirement, at the summary judgment stage the court must determine
whether a reasonable jury could conclude that the prison official
knew of and disregarded “an excessive risk to inmate health or
safety”; that is, the official was “aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”
Farmer, 511 U.S. at
827; see also Salahuddin, 467 F.3d at 280; Hill, 657 F.3d at 122;
Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998).
The
subjective requirement demands the plaintiff show that the charged
official
was
subjectively
aware
that
substantial risk of harm to the inmate.
his
conduct
created
a
Salahuddin, 467 F.3d at
280-81; Farmer, 511 U.S. at 837 (holding a subjective, rather than
21
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an objective, test for deliberate indifference “comports best with
the text of the [Eighth] Amendment,” since that Amendment “does
not outlaw cruel and unusual ‘conditions,’ but rather cruel and
unusual ‘punishments’”).
For that reason, “the risk of harm must
be
official’s
substantial
negligent.”
and
the
actions
more
than
merely
Id. at 280 (citing Farmer, 511 U.S. at 835-37).
“[N]ot every lapse in medical care is a constitutional wrong,” id.
at 279, and “an official’s failure to alleviate a significant risk
that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction
of punishment.”
Farmer, 511 U.S.at 838; see also Estelle, 429
U.S. at 106 (holding a prisoner must demonstrate more than “an
inadvertent failure to provide adequate medical care”).
Since it appears from their briefs that the parties fail
to
recognize
it,
the
Court
must
point
out
that
“[a]
post-
conviction-prisoner’s deliberate indifference claim is analyzed
under the Eighth Amendment while the same claim raised by a
pretrial detainee is analyzed under the Due Process Clause of the
Fourteenth Amendment.”
Horace v. Gibbs, 802 F. App’x 11, 13–14
(2d Cir. 2020) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017)).
This distinction is relevant to the present dispute,
because the Eighth and Fourteenth Amendments “embrace different
definitions of the ‘subjective’ or ‘mens rea prong.’”
(citing Darnell, 849 F.3d at 35).
22
Id. at 14
Whereas under the Eighth
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 23 of 47 PageID #: 4310
Amendment, the subjective requirement obligates the plaintiff to
show that the defendant official acted or failed to act while
actually aware of a substantial risk that serious inmate harm will
result, under the Fourteenth Amendment, “an official does not act
in a deliberately indifferent manner toward an arrestee unless the
official ‘acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the risk
that the condition posed to the pretrial detainee even though the
defendant-official knew, or should have known, that the condition
posed an excessive risk to health or safety.’”
Id. (quoting
Darnell, 849 F.3d at 35) (emphasis omitted); see also Charles, 925
F.3d
at
86–87
(holding
that
while
this
“formulation
of
the
deliberate indifference standard was developed in cases involving
unconstitutional conditions of confinement,” the “same principles”
apply
to
claims
of
unconstitutionally
inadequate
medical
treatment).
ii.
Application
The Court finds there are triable issues of fact as to
Plaintiff’s claim that Defendants were deliberately indifferent to
Decedent’s medical needs.
Defendants cannot establish as a matter
of
undetected
law
that
Decedent’s
heart
condition
was
“sufficiently serious” to establish the “objective test.”
the
“subjective”
or
“mens
rea”
inquiry,
genuine
not
As to
disputes
of
material fact in the summary judgment record preclude a finding as
23
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a matter of law that Armor’s medical providers, namely, Dr. Sanchez
and Nurse Cador, were unaware of facts from which the inference
could be drawn that Decedent faced a substantial risk of serious
harm upon arrival at the NCCC.
To resolve these disputes of fact,
the jury will have to make credibility judgments, which the Court
cannot do at this stage.
Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 122 (2d Cir. 2004) (at summary judgment stage, the court
must “eschew credibility assessments”).
Here, the objective test is straightforward.
Whether
viewed as a failure to provide Decedent any medical treatment -in the sense that Armor did not treat Decedent’s heart condition
-- or as an inadequate course of treatment, a rational jury could
conclude from the evidence submitted that the deprivation of
adequate medical care was sufficiently serious.
dispute
that
Decedent’s
undiagnosed
heart
There is no
condition
was
sufficiently serious. See Adams v. Franklin, 111 F. Supp. 2d 1255,
1270 (M.D. Ala. 2000) (finding medical condition sufficiently
serious where delay in treating plaintiff with heart condition who
was suffering chest pains and shortness of breath resulted in
plaintiff spending “two days in intensive care” and could have
resulted in death).
Further, reasonable jurors could conclude
that Armor’s alleged delay in treating Decedent’s heart condition
presented a serious risk of harm to Decedent and resulted in the
24
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deterioration of his health and ultimate demise.
See Smith, 316
F.3d at 186-87; Demata, 198 F.3d 233; Bilal, 494 F. App’x at 146.
Turning to the subjective test, the Court begins its
analysis by clarifying that under the Eighth Amendment, which
applies here because Decedent was a convicted prisoner serving out
his sentence, the second prong of the test is not objective, as
Plaintiff
argues
subjective. 12
standard
of
and
So,
what
Armor
appears
Plaintiff’s
a
reasonable
to
concede,
contentions
person
that
would
do
but
rather
“the
lesser
under
the
circumstances” applies, and that Plaintiff “only must show that
the treatment of the decedent was objectively unreasonable” are
plainly wrong.
(Opp’n to Armor at 11.) 13
Equally puzzling is Plaintiff’s reliance on several Eleventh
Circuit decisions, not as persuasive authority, but rather to
establish the standard for her Eighth Amendment claims. (Opp’n to
Armor at 5-6.)
12
To support her interpretation, Plaintiff selectively quotes a
footnote
in
Darnell,
which
reads:
“‘Nothing
about
our
interpretation
of
the
proper
standard
for
deliberate
indifference[]. . . should be construed as affecting the standards
for establishing liability based on a claim that challenged
conditions are punitive.” (Id. at 12 (quoting Darnell, 849 F.3d
at 34, n.12).) However, in full, the footnote states:
13
A pretrial detainee can establish a due
process claim for inhumane conditions of
confinement either by proving an official’s
deliberate indifference to those conditions,
or by proving that that those conditions are
punitive.
Kingsley and its precedents are
clear that the two theories of liability are
distinct. Nothing about our interpretation of
the
proper
standard
for
deliberate
25
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Under
the
correct
standard,
which
asks
whether
a
reasonable jury could conclude that the Armor medical providers
knew of and disregarded “an excessive risk to inmate health or
safety,” the Court focuses on the two primary instances in which
Armor provided medical treatment to Decedent during his brief stay
at the NCCC.
The first instance is Nurse McCormack’s initial
assessment of Decedent upon intake, as well as Dr. Sanchez’s
subsequent examination.
The second instance is Nurse Cador’s
assessment of Decedent shortly before his cardiac incident.
First,
regarding
the
initial
assessment
by
Nurse
McCormack and Dr. Sanchez, at this juncture there are too many
disputes of material fact relating to Dr. Sanchez’s knowledge of
the substantial risks of harm Decedent faced upon admission to the
NCCC.
To start, after Nurse McCormack assessed Decedent, she
indifference for due process purposes should
be construed as affecting the standards for
establishing liability based on a claim that
challenged conditions are punitive.
Darnell, 849 F.3d at 34, n.12 (emphasis added; citation omitted).
Plaintiff blatantly omits the “due process purposes” clause of the
footnote (emphasized above), as well as the footnote’s opening
sentence, both of which make abundantly clear that the Darnell
Court was referring to deliberate indifference claims arising
under the Fourteenth Amendment, not the Eighth Amendment, which it
confirmed can proceed “either by proving an official’s deliberate
indifference to [inhumane] conditions, or by proving that those
conditions are punitive.”
Id.
Moreover, to the extent the
footnote’s message is ambiguous (it is not), since Darnell the
Second Circuit has reiterated that the Eighth and Fourteenth
Amendments “embrace different definitions of the ‘subjective’ or
‘mens rea prong.’” E.g., Horace v. Gibbs, 802 F. App’x 13–14.
26
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recommended Dr. Sanchez order an EKG and a chest X-ray in light of
Decedent’s admitted recent drug binge; anxious, disheveled, and
aggressive state; and the fact that he had a recent EKG prior to
his incarceration.
When Dr. Sanchez demurred, Nurse McCormack
pressed
least
him
to
at
examine
Decedent
in
person.
Nurse
McCormack testified that during that examination, Dr. Sanchez and
Decedent discussed the latter’s recent EKG. Based on Dr. Sanchez’s
awareness of the foregoing facts, reasonable jurors could conclude
that Dr. Sanchez knew of and disregarded an excessive risk to
Decedent’s health by ignoring the potential red flags, and the
recommendations
and
protestations
of
Nurse
McCormack,
that
Decedent was suffering from a serious and deadly heart condition.
While the extent of Dr. Sanchez’s awareness of Decedent’s recent
EKG is disputable, there is sufficient evidence in the record from
which jurors could infer that Dr. Sanchez was aware of the EKG, a
fact bearing on his awareness of the risk Decedent faced upon
admission to the NCCC.
In any event, Armor cannot escape liability because Dr.
Sanchez
failed
confirmed
Nurse
to
“verify
McCormack’s
underlying
suspicion
facts”
that
that
might
Decedent’s
have
serious
medical problem bore further investigation. See Ruffin v. Deperio,
97 F. Supp. 2d 346, 354 (W.D.N.Y. 2000) (“A defendant may not
escape liability if the evidence shows that he ‘merely refused to
verify underlying facts that he strongly suspected to be true, or
27
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 28 of 47 PageID #: 4315
declined to confirm inferences of risk that he strongly suspected
to exist.’” (quoting Farmer, 511 U.S. at 843 n.8)); see also Hudak
v. Miller, 28 F. Supp. 2d 827, 831 (S.D.N.Y. 1998) (finding that
the
subjective
element
required
a
showing
that
the
treating
physician “knew that [the inmate] had some serious medical problem
which bore further investigation”); Staten v. Semple, No. 18-CV1251, 2021 WL 1060225, at *18 (D. Conn. Mar. 19, 2021).
Nurse
McCormack’s
notes
claim
that
portions
of
her
examination
recommending a chest X-ray went “missing” after Decedent’s cardiac
incident gives the Court further pause, as such a claim, if
accepted by the jury, could demonstrate Armor’s awareness that its
course of treatment was reckless for purposes of Plaintiff’s Eighth
Amendment claim. 14
With respect to Nurse Cador’s examination shortly before
Decedent’s cardiac incident, there is a dispute of material fact
as to whether Nurse Cador was aware of Decedent’s complaints of
chest pains, recorded in the Correctional Officer Desk Log, as
well as Decedent’s statement to Officer Meyer that he “felt like
he was having a heart attack.” 15
In the event a jury declined to
However, unlike Nurse Cador’s decision to defer treatment on
Decedent until the morning, there is no evidence in the record
that Dr Sanchez’s decision not to order an EKG or chest X-ray was
motivated by Armor’s profit.
See infra for further discussion
regarding Armor’s profit motive.
14
Armor halfheartedly argues that Decedent’s statement “seems to
be in direct contravention of CPLR § 4519, also known as the Dead
15
28
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 29 of 47 PageID #: 4316
credit
Nurse
Decedent
was
Cador’s
assertion
experiencing
that
chest
he
pains,
was
it
not
advised
could
that
reasonably
conclude that Nurse Cador was both aware of facts indicating
Decedent faced a substantial risk of cardiac injury, and that in
deferring further treatment until the morning, acted on those
facts, thus creating a substantial risk of harm to Decedent. 16
Man’s Statute.” (Armor Reply at 6.) But where, as here, Plaintiff
invokes the Court’s federal question jurisdiction, the Federal
Rules of Evidence apply. And because the Federal Rules of Evidence
abolished many common-law rules, like state Dead Man’s statutes,
they do not apply in this case. Rosenfeld v. Basquiat, 78 F.3d
84, 88 (2d Cir. 1996).
The County briefly argues the statements by unidentified
correctional officers contained in the County’s records are
inadmissible hearsay.
(County Reply at 4-5.)
The County is
correct that certain documents relied on by Plaintiff contain
hearsay and even double hearsay.
“A district court has broad
discretion in choosing whether to admit evidence on summary
judgment.” HLT Existing Franchise Holding LLC v. Worcester Hosp.
Grp., LLC, 609 F. App’x 669, 671 (2d Cir. 2015).
Because
statements like those contained in the Correctional Officer Desk
Log and other correctional officer’s reports on the incident may
be admissible under different exceptions to the hearsay rule that
the County fails to address, the Court considers these statements
for purposes of the present motions.
See Fed. R. Evid. 803(6)
(business records hearsay exception); Fed. R. Evid. 803(8) (public
record hearsay exception); Fed. R. Evid. 803(5) (past recollection
recorded hearsay exception).
Moreover, it appears from the
parties’ JPTO that Plaintiff intends to call as witnesses the
correctional officers who likely made these statements in their
reports and to the NYS COC. See Hill v. Laird, No. 06-CV-0126,
2016 WL 3248332, at *7 (E.D.N.Y. June 13, 2016) (“[T]he Court may
consider hearsay on a motion for summary judgment where there is
a showing that admissible evidence will corroborate the hearsay at
trial.” (citing Isaacs v Mid Am. Body & Equipment Co., 720 F. Supp.
255, 256 (E.D.N.Y. 1989)).
16
29
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Moreover, evidence in the record supports the theory
that Armor was disinclined to send inmates to hospitals for medical
treatment based on cost considerations.
If proved at trial, i.e.,
if Plaintiff proves Nurse Cador deferred treating Decedent until
the following morning to save costs on off-site medical care, the
jury could find the subjective prong of Plaintiff’s deliberate
indifference claim satisfied based on Armor’s profit motives.
See
Chance, 143 F.3d at 703 (“In certain instances, a physician may be
deliberately indifferent if he or she consciously chooses ‘an
easier and less efficacious’ treatment plan.” (quoting Williams v.
Vincent, 508 F.2d 541, 544 (2d Cir. 1974)); Colon v. County of
Nassau, No. 12-CV-4466, 2014 WL 4904692, at *7 (E.D.N.Y. Sept. 26,
2014)
(Seybert,
J.)
(“[I]f
Dr.
Manetti
subsequently
denied
Rodriguez medication based solely on Armor’s budget, and not on
actual medical need, Rodriguez could also establish the subjective
prong of a deliberate indifference claim.”); Jones v. Westchester
County Dep’t of Corr. Med. Dep’t, 557 F. Supp. 2d 408, 415
(S.D.N.Y. 2008).
As a result, the Court finds there are triable issues of
material fact regarding Plaintiff’s Eighth Amendment claim for
deliberate indifference to medical needs.
2.
Next,
Monell’s Policy Requirement
the
Court
turns
to
Monell’s
requirement
that
Plaintiff demonstrate the County and Armor violated Decedent’s
30
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 31 of 47 PageID #: 4318
Eighth Amendment rights pursuant to a policy or custom.
For
substantially the same reasons as Judge Donnelly’s well-reasoned
decision in Gleeson v. County of Nassau, No. 15-CV-6487, 2019 WL
4754326 (E.D.N.Y. Sept. 30, 2019), which neither party cites, the
Court finds Plaintiff can proceed on her Monell claims against the
County and Armor.
i.
The
Applicable Law
plaintiff
can
satisfy
the
municipal
“policy
or
custom” requirement by alleging:
(1) a formal policy officially endorsed by the
municipality; (2) actions or decisions made by
municipal
officials
with
decision-making
authority; (3) a practice so persistent and
widespread that it constitutes a custom
through which constructive notice is imposed
upon policymakers; or (4) a failure by
policymakers to properly train or supervise
their subordinates, such that the policymakers
exercised ‘deliberate indifference’ to the
rights of the plaintiff.
Ying Li v. City of New York, 246 F. Supp. 3d 578, 636 (E.D.N.Y.
2017) (citing Second Circuit decisions); see also Vives v. City of
New York, 524 F.3d 346, 353 (2d Cir. 2008) (official policy); Hu
v. City of New York, 927 F.3d 81, 105 (2d Cir. 2019) (action by
official
with
policymaking
authority);
Lucente
v.
County
of
Suffolk, 980 F.3d 284, 297-308 (2d Cir. 2020) (persistent and
widespread
custom
and
practice);
Amnesty
Am.
v.
Town
of
W.
Hartford, 361 F.3d 113, 127 (2d Cir. 2004) (failure to train or
supervise); Reynolds v. Giuliani, 506 F.3d 183, 191-93 (2d Cir.
31
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 32 of 47 PageID #: 4319
2007) (failure to supervise); Vann v. City of New York, 72 F.3d
1040, 1049 (2d Cir. 1995) (failure to supervise); Batista v.
Rodriguez,
702
F.2d
393,
397
(2d
Cir.
1983)
(failure
to
discipline).
“In order to establish Monell liability based upon a
‘persistent and widespread’ practice by a subordinate municipal
employee (or employees) other than a policymaker, the employee’s
unconstitutional conduct must be ‘so manifest as to imply the
constructive acquiescence of senior policy-making officials.’”
Lucente, 980 F.3d at 297-98 (quoting Sorlucco v. N.Y.C. Police
Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992)).
“In other words,
there must be ‘sufficient instances of tolerant awareness by
supervisors of abusive conduct to support an inference that they
had a policy, custom or usage of acquiescence in such abuse.’”
Id. at 298 (quoting Jones v. Town of East Haven, 691 F.3d 72, 82
(2d Cir. 2012)).
A
policy
or
failure
to
supervise
custom
if
the
“may
failure
constitute
amounts
to
an
official
‘deliberate
indifference’ to the rights of those with whom the city employees
interact.”
Wray v. City of New York, 490 F.3d 189, 195-96 (2d
Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378, 388
(1989)). To prevail on this theory, the plaintiff must demonstrate
that
“the
policymaker
was
aware
of
a
subordinate’s
unconstitutional actions, and consciously chose to ignore them,
32
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effectively ratifying the actions.”
(citation omitted).
Amnesty Am., 361 F.3d at 126
“Thus, where a policymaking official exhibits
deliberate indifference to constitutional deprivations caused by
subordinates, such that the official’s inaction constitutes a
‘deliberate choice,’ that acquiescence ‘may be properly thought of
as a city policy or custom that is actionable under § 1983.’”
Id.
(quoting City of Canton, 489 U.S. at 388).
ii.
Application to Armor
Plaintiff argues that Armor had a widespread and wellsettled custom of providing inadequate medical care to prison
inmates.
(Opp’n to Armor at 24 (“[D]efendants are liable for Mr.
Marinaccio’s death because the defendants had policies or customs
of delivering inadequate healthcare to NCCC inmates.”).) 17
To
support her theory, Plaintiff points to the NYS COC reports and
the Nassau County Comptroller Audit Report on Armor.
(Id. at 20.)
Courts in this district “have defined ‘widespread’ to
mean that the unconstitutional acts in question are ‘common or
prevalent throughout the [entity]’ and “well-settled” to mean that
the unconstitutional acts “have achieved permanent, or close to
Plaintiff also appears to allege that Armor’s formal policy of
requiring approval from its corporate office in Florida before
referring patients to the hospital caused Decedent’s death here.
However, unlike in Gleeson, there is no evidence that Armor
clinicians intended to refer Decedent to see an off-site specialist
but failed to do so timely due to Armor’s policy. 2019 WL 4754326,
at *14-15. As a result, it cannot be said that this policy caused
the constitutional tort alleged here.
17
33
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permanent, status.”
Gleeson, 2019 WL 4754326, at *15 (quoting
Fowler v. City of New York, No. 13-CV-2372, 2019 WL 1368994, at
*14 (E.D.N.Y. Mar. 26, 2019)).
While there is “no ‘magic number’
of instances of unconstitutional conduct that will suffice to
permit the inference of a broader municipal policy or custom,”
Fowler, 2019 WL 1368994, at *14, where the plaintiff relies on
government reports, like the NYS COC and Comptroller Audit relied
on here, the Court must ensure “those reports are sufficiently
connected to the specific facts of the case,” Isaac v. City of New
York, No. 16-CV-4729, 2018 WL 5020173, at *17 (E.D.N.Y. Aug. 6,
2018) (quoting Gomez v. City of New York, No. 16-CV-1274, 2017 WL
1034690,
at
*11
(E.D.N.Y.
Mar.
16,
2017)),
report
and
recommendation adopted, 2018 WL 4583481 (E.D.N.Y. Sept. 24, 2018).
The NYS COC reports and Comptroller Audit detail similar
instances of Armor’s failure to deliver adequate medical care to
inmates at the NCCC during the same period in which Decedent’s
incident occurred.
systemic.
The NYS COC referred to these deficiencies as
Accordingly, the Court finds Plaintiff has raised a
genuine issue of material fact as to whether Armor has a widespread
and well-settled custom of providing inadequate medical care to
prison inmates.
Gleeson, 2019 WL 4754326, at *15.
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iii. Application to the County
Plaintiff may proceed against the County on a failureto-supervise
theory
of
Monell
liability. 18
Specifically,
a
reasonable jury could find that the NYS COC reports alerted the
County, through its policymaker Sheriff Sposato, to a potentially
serious problem of unconstitutional conduct, such that the need
for
greater
supervision
was
obvious.
Indeed,
these
reports
consistently recommended that the County conduct an inquiry into
the fitness of Armor to provide correctional medical care at the
NCCC.
But “[r]ather than address the obvious need for closer
supervision,” there is support in the record for the proposition
that the County “scaled back its oversight.”
4754326, at *17.
Contractor
Gleeson, 2019 WL
For example, the County left vacant the Health
Administrator
position,
a
position
designated
to
oversee administration of and monitor compliance with the contract
between Armor and the County.
Further, the QIC responsible for
quality improvement activities consistent with the provisions of
Following Gleeson, the Court declines to adopt Plaintiff’s
position, accepted by the Eleventh Circuit in Ancata v Prison
Health Services Inc., 769 F.2d 700 (11th Cir. 1985) but not adopted
by this Circuit, that respondeat superior, absent a municipal
policy, is a viable theory of liability in cases involving the
failure to provide adequate medical care.
Gleeson, 2019 WL
4754326, at *16. Further, the Court rejects Plaintiff’s official
policy theory, premised on the County’s decision to approve and
renew its contract with Armor, on the grounds that the County’s
decision to approve and renew the contract with Armor is too far
removed from the incident giving rise to this action. Id. at *16,
n.24.
18
35
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the DOJ Settlement did not meet monthly with Sheriff Sposato, as
the contract required.
As the Comptroller Audit found, the County
“failed to provide adequate oversight to ensure that Armor was in
compliance with its contract with the County.” (County Comptroller
Audit at ii.)
For these reasons, Plaintiff has raised a genuine
issue of material fact as to whether these failures to supervise
Armor amount to deliberate indifference to the rights of inmates
at the NCCC.
*
*
*
Accordingly, Defendants’ respective motions for summary
judgment as to Plaintiff’s Monell claims are DENIED, and Plaintiff
is permitted to proceed with Monell claim pursuant to the theories
approved herein.
3.
Armor
Damages
raises
two
damages-related
arguments.
First,
Armor argues that Plaintiff cannot recover reasonable attorney’s
fees under 42 U.S.C. § 1988, because Plaintiff cannot prevail on
her Section 1983 claims.
However, because Plaintiff’s Section
1983 claims can proceed to trial, Armor’s contention is premature.
Second, Armor argues that it is immune from Plaintiff’s
claim for punitive damages.
It is well established that punitive
damages may be imposed under Section 1983 against an individual
defendant who acts with “reckless or callous disregard for the
plaintiff’s rights.”
Smith v. Wade, 461 U.S. 30, 51 (1983).
36
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However, punitive damages may not be imposed on municipalities.
Newport v. Fact Checkers, Inc., 453 U.S. 247, 263 (1981).
The
Supreme Court’s conclusion in Fact Checkers that Section 1983 did
not authorize punitive damages awards from municipalities rested
on two considerations.
First, historically, courts in the United
States “that had considered the issue prior to 1871,” the year
Section 1983 was enacted, “were virtually unanimous in denying
such damages against a municipal corporation.” Id. at 260. “Given
that municipal immunity from punitive damages was well established
at common law by 1871,” the Court found the absence of “evidence
that
Congress
telling.
intended
Id. at 263-66.
to
disturb
this
common-law
immunity”
Nor did “consideration of public policy
dictate a contrary result.”
Id. at 266.
Rather, the Court
reasoned that the “award of punitive damages against a municipality
‘punishes’ only the taxpayers,” and would therefore have little
deterrent effect on misbehavior by government officials.
Id. at
267-70.
Essentially, Armor argues that, as a “state actor” for
Section 1983 purposes, it steps into the County’s shoes and should
be entitled to the same protections against punitive damages that
are afforded the County.
courts
have
found,
the
(Armor Reply at 10.)
rationale
behind
However, as several
the
Supreme
Court’s
conclusion that Section 1983 does not authorize punitive damages
awards from municipalities is less persuasive when applied to
37
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 38 of 47 PageID #: 4325
private entities.
See Segler v. Clark County, 142 F. Supp. 2d
1264, 1268 (D. Nev. 2001) (finding a private corporation that
contracted to provide medical care to inmates in Nevada prisons
could be subject to imposition of punitive damages); Campbell v.
Pennsylvania Sch. Boards Ass’n, No. 18-CV-0892, 2018 WL 3092292,
at *6 (E.D. Pa. June 20, 2018) (same as to voluntary school board
association); Phelan ex rel. Phelan v. Torres, No. 04-CV-3538,
2005 WL 4655382, at *16 (E.D.N.Y. Sept. 20, 2005) (same as to nonprofit contractor for the State of New York); Barbara Kritchevsky,
Civil Rights Liability of Private Entities, 26 Cardozo L. Rev. 35,
68-69 (2004).
Historically, private corporations have been subject to
punitive damages.
Kritchevsky, supra, at 77 n.293 (collecting
cases and treatises for proposition that corporations were not
immune from liability for punitive damages in 1871).
Further, an
award of punitive damages against Armor “would not punish taxpayers
in the way such a decision would affect a municipality.
Instead,
punitive damages would be assessed against [Armor,] which would
bear the burden of payment as a private corporation” and may be
deterred as a result.
Segler, 142 F. Supp. 2d at 1269. 19
Although Armor does not make the argument, the Court recognizes
that local governmental entities may opt to indemnify government
officials for punitive damages, thus potentially undermining the
taxpayer rationale at the municipal level. See Martin A. Schwartz,
Should Juries Be Informed That Municipality Will Indemnify
Officer’s [Section] 1983 Liability for Constitutional Wrongdoing?,
19
38
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The Court will not cloak Armor in the protection against
punitive damages afforded to municipalities just because it has
been deemed a state actor for Section 1983 purposes.
Accordingly,
Armor’s motion for summary judgment as to Plaintiff’s claims for
punitive damages is DENIED.
B.
New York State Law Claims
1.
Wrongful Death
Next, the Court addresses Plaintiff’s New York State law
claim for wrongful death.
“To prevail on a claim for wrongful
death under New York law, a plaintiff must establish the following
elements: ‘(1) the death of a human being, (2) the wrongful act,
neglect or default of the defendant by which the decedent’s death
was
caused,
(3) the
survival
of
distributees
who
suffered
pecuniary loss by reason of the death of decedent, and (4) the
appointment of a personal representative of the decedent.’”
Ryan
v. County of Nassau, No. 12-CV-5343, 2016 WL 11500151, at *8
(E.D.N.Y. Mar. 31, 2016) (Seybert, J.) (quoting Chong v. N.Y.C.
Tran. Auth., 441 N.Y.S.2d 24, 25 (N.Y. App. Div. 2d Dep’t 1981)).
Armor contends that Plaintiff has failed to submit any evidence to
support her claim for pecuniary loss, while the County appears to
86 Iowa L. Rev. 1209, 1249 n.49 (2001) (including Nassau County in
list of states and municipalities that permit indemnification for
punitive damages, albeit only for police officers). However, the
Supreme Court acknowledged this fact in Fact Checkers and did not
believe it undermined its decision. 453 U.S. at 269 n.30.
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argue that it cannot be held liable for Armor’s allegedly negligent
conduct in treating Decedent. 20
First, the Court disagrees with the County that it cannot
be held liable for wrongful death here.
Plaintiff may hold the
County liable for wrongful death under the doctrine of respondeat
superior, provided the County’s employees committed the allegedly
tortious acts while acting within the scope of their employment.
Perez v. City of New York, 912 N.Y.S.2d 691, 692 (N.Y. App. Div.
2nd Dep’t 2010); see also Triolo v. Nassau County, 24 F.4th 98,
111 (2d Cir. 2022); 62 N.Y. Jur. 2d Government Tort Liability §
43.
In the present action, there is no competent evidence
that County employees, i.e., the responding correctional officers,
committed a tortious act while responding to the medical emergency
that led to Decedent’s death.
However, the Court must determine
whether the County can be vicariously liable for the negligent
acts of its independent contractor, Armor.
While “[t]he general
rule is that a party who retains an independent contractor, as
distinguished from a mere employee or servant, is not liable for
the
independent
contractor’s
negligent
acts,”
Kleeman
v.
To the extent the County argues that Plaintiff’s wrongful death
claim fails because she never amended the Complaint to name the
John and Jane Doe individuals who allegedly provided Decedent with
inadequate medical treatment, such argument misses the mark,
because Plaintiff is proceeding under a respondeat superior theory
of liability.
20
40
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Rheingold, 614 N.E.2d 712, 715 (N.Y. 1993) (citations omitted),
there are several exceptions to this general rule.
One exception of particular relevance in this instance
is the exception for nondelegable duties.
that
delegates
responsible,
independent
a
duty
such
as
for
the
contractor
which
the
“[A] municipality
municipality
maintenance
remains
Id.
of
its
vicariously
is
legally
roads,
liable
to
for
an
the
contractor’s negligence.” Rangolan v. County of Nassau, 749 N.E.2d
178, 182 (N.Y. 2001).
Here, it is undisputed that the County was
mandated by New York State and County law to provide for the care
and safety of the inmates held at the NCCC, and that Sheriff
Sposato was responsible for the daily operation of the NCCC under
applicable law.
N.Y. Correct. Law § 500-c (“[T]he sheriff of each
county shall have custody of the county jail of such county.”).
Thus, in these circumstances, the County cannot escape vicarious
liability for the allegedly tortious acts of Armor that Plaintiff
claims led to Decedent’s wrongful death. 21
Next,
the
Court
addresses
Armor’s
contention
that
Plaintiff has not established her claim for pecuniary loss beyond
funeral and burial expenses.
“[T]o defeat a motion for summary
judgment in a wrongful death case, the plaintiff must offer proof
The Court finds the County’s motion for summary judgment as to
Plaintiff’s claims for “mistakes in medical care,” “failure to
treat/diagnose,” and “negligence” fails for the same reasons.
21
41
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of pecuniary loss,” such as loss of support, voluntary assistance,
or inheritance.
Singleton v. City of Newburgh, 1 F. Supp. 2d 306,
317 (S.D.N.Y. 1998) (citing Gonzalez v. New York City Housing
Auth., 572 N.E.2d 598 (N.Y. 1991)).
Here, Plaintiff’s Local Rule
56.1 Counterstatement is silent on whether Decedent’s distributees
suffered pecuniary loss by reason of his death.
Instead, to
supports her claim of pecuniary loss, Plaintiff points to the
deposition
testimony
Gloria Gazzola.
of
Decedent’s
sister
and
administrator,
(Gazzola Depo. Tr., attached to Demiris Decl.)
But Gazzola’s testimony undermines her claim for pecuniary loss.
Gazzola testified that her brother lived with his mother for
“[m]ost of his life,” did not have any children or dependents, and
had not worked for more than five years.
(Id. at 6-11.) 22
Thus,
in this case, Plaintiff has not “presented evidence that she -- or
any
other
person
[Decedent’s]
--
death”
suffered
beyond
Singleton, 1 F. Supp. at 317.
pecuniary
funeral
loss
and
as
a
burial
result
of
expenses.
As a result, Plaintiff’s damages
for wrongful death, if any, will be limited to funeral and burial
expenses proven at trial.
Accordingly, the County’s motion for summary judgment as
to Plaintiff’s wrongful death and related negligence claims is
Out of an abundance of caution, the Court has also reviewed the
Complaint and the parties’ JPTO for proof of pecuniary loss but
finds none.
22
42
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DENIED, and Armor’s motion for summary judgment as to Plaintiff’s
wrongful death claim is GRANTED to the extent Plaintiff is limited
to recovering for funeral and burial expenses on this claim.
2.
Intentional Infliction of Emotional Distress
Next, Defendants ask the Court for summary judgment on
Plaintiff’s intentional infliction of emotional distress claim.
Intentional infliction of emotional distress has four elements:
“(i) extreme and outrageous conduct; (ii) intent to cause, or
disregard
of
a
substantial
probability
of
causing,
severe
emotional distress; (iii) a causal connection between the conduct
and injury; and (iv) severe emotional distress.”
Greenaway v.
County of Nassau, 97 F. Supp. 3d 225, 239-40 (E.D.N.Y. 2015)
(quoting Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115 (N.Y. 1993)).
To constitute “extreme and outrageous conduct,” it must “go beyond
all possible bounds of decency” and be “atrocious, and utterly
intolerable in a civilized community.”
at 239-40 (citations omitted).
Greenaway, 97 F. Supp. 3d
The tort “may be invoked only as
a last resort, to provide relief in those circumstances where
traditional theories of recovery do not.”
Salmon v. Blesser, 802
F.3d 249, 256 (2d Cir. 2015) (internal citation and quotation marks
omitted).
Here,
the
record
does
not
sustain
an
intentional
infliction of emotion distress claim. First, “[i]t is well settled
that public policy bars claims sounding in intentional infliction
43
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of emotional distress against a government entity” like the County.
J.H. v. Bratton, 248 F. Supp. 3d 401, 416 n.10 (E.D.N.Y. 2017).
Further, “no reasonable juror would find that the evidence on this
record establishes conduct ‘so outrageous in character, and so
extreme
in
decency.’”
degree,
as
to
go
beyond
all
possible
bounds
of
Gleeson, 2019 WL 4754326, at *18 (quoting Chanko v.
Am. Broad. Cos. Inc., 27 N.Y.3d 46, 56 (N.Y. 2016) (granting
summary judgment on intentional infliction of emotional distress
claims in analogous circumstances)).
Accordingly, Defendants’ respective motions for summary
judgment as to Plaintiff’s claims for intentional infliction of
emotional distress are GRANTED.
3.
Remaining Claims and Defendants
Plaintiff asserts several additional claims under New
York State law and against untenable Defendants such as the NCCC
and the Nassau County Sheriff’s Department.
To begin, it is well established that Plaintiff cannot
maintain claims against the Nassau County Sheriff’s Department,
because it is an administrative arm of the County that cannot be
sued separately.
Anderson v. Incorporated Village of Hempstead,
No. 15-CV-1485, 2022 WL 267875, at *5, n.4 (E.D.N.Y. Jan. 28,
2022); Dudek v. Nassau County Sheriff’s Dep’t, 991 F. Supp. 2d
402, 410 (E.D.N.Y. 2013).
For the same reason, Plaintiff cannot
maintain her claims against the NCCC.
44
Adesola v. County of Nassau
Case 2:16-cv-00909-JS-AYS Document 74 Filed 06/23/22 Page 45 of 47 PageID #: 4332
Sheriff’s Dep’t, No. 12-CV-1026, 2012 WL 928316, at *3 (E.D.N.Y.
Mar. 13, 2012). Accordingly, Plaintiff’s claims against the Nassau
County Sheriff’s Department and the NCCC are DISMISSED.
Second, with
claim,
“a
cause
of
respect
action
to
Plaintiff’s
sounding
in
failure-to-train
negligence
is
legally
sustainable against a city when the injured party demonstrates
that he was injured due to the negligent training and supervision
of a law enforcement officer.”
14-CV-4084,
2015
WL
3948836,
Noonan v. City of New York, No.
at
*8
(S.D.N.Y.
June
26,
2015)
(quoting Barr v. Albany County, 406 N.E.2d 481, 485 (N.Y. 1980)).
However, Plaintiff has not adduced any evidence regarding Armor or
the County’s allegedly negligent training program, and her claims
cannot proceed on “conclusory allegations of a deficiency in
training.”
2d
301,
Id. (citing Rodriguez v. City of New York, 649 F. Supp.
307-08
(S.D.N.Y.
2009)
(finding
that
conclusory
allegations insufficient to sustain a Section 1983 failure to train
claim also “doom the plaintiff’s [parallel] state law claim for
failure to train”)).
As a result, Plaintiff’s failure-to-train
claims grounded in New York State law are DISMISSED.
*
*
*
To the extent not expressly addressed, the Court has
considered the parties’ remaining arguments and finds them to be
without merit.
45
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CONCLUSION
Accordingly, for the stated reasons, IT IS ORDERED that:
1)
The Court GRANTS in part and DENIES in part Armor’s (ECF
No. 61) and the County’s (ECF No. 58) respective motions
for summary judgment, with the motions:
a.
GRANTED with respect to Plaintiff’s New York State
law claims for intentional infliction of emotional
distress and failure to train; and
b.
GRANTED with respect to Plaintiff’s wrongful death
claim to the extent that, if proven, Plaintiff may
only recover on this claim for funeral and burial
expenses.
c.
DENIED with respect to Plaintiff’s Eighth Amendment
claims under Monell (under the theories approved
herein)
and
her
remaining
New
York
State
law
claims;
2)
The Court DENIES Armor’s motion for summary judgment as
to Plaintiff’s claim for punitive damages;
3)
All
claims
against
the
Nassau
County
Correctional
Center, Nassau County Sheriff’s Department, and the John
and Jane Doe Defendants are DISMISSED, and the Clerk of
the Court shall TERMINATE these entities as parties to
this action;
46
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4)
The Clerk of the Court shall TERMINATE the motion pending
at ECF No. 73;
5)
On or before July 1, 2022, the parties shall file a
letter advising whether they wish to be referred to the
Court’s Trial Ready Rapid Mediation Program; and
6)
The parties shall use the following caption in all future
filings:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
GLORIA GAZZOLA, Individually and as
Administrator of the Estate of
ANTONIO MARINACCIO, JR.,
Plaintiff,
MEMORANDUM & ORDER
16-CV-0909(JS)(AYS)
-againstCOUNTY OF NASSAU; ARMOR CORRECTIONAL
HEALTH SERVICES, INC.; and ARMOR
CORRECTIONAL HEALTH SERVICES OF NEW
YORK, INC.
Defendants.
-----------------------------------X
SO ORDERED.
/s/_JOANNA SEYBERT___________
Joanna Seybert, U.S.D.J.
Dated: June 23 , 2022
Central Islip, New York
47
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