Cadwallader v. Devlin, Jr. et al

Filing 58

ORDER denying Defts Barrows, Baulch, Clark, Cleveland, County/Otsego, Devlin, Jr., Dick, Ellwanger, Gilmore, Hubbard, Lamp, Owens, Pierce, Pledger, Jr., Raso, Tilbe & Tourella's 49 Motion to Dismiss; Signed by Sr. District Judge Thomas J. McAvoy dtd 1/07/2016 (cml)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------- --------------------ADRIEN CADWALLADER,
Plaintiff,
v.

3:15-cv-139
(TJM/DEP)

RICHARD J. DEVLIN, JR., COUNTY OF
OSTEGO, ADAM PIERCE, LYNN BAULCH,
LINDA GILMORE, JULIE ANDREWS,
ADAM TILBE, MICHAEL ELLWANGER, JARED
HUBBARD, JAMES RASO, JESSE TOURELLA,
CHRISTOPHER OWENS, KYLE LAMP,
AARON CLEVELAND, PAULA DICK,
MICHAEL CLARK, KEVIN BARROWS,
DAVID PLEDGER, JR., and PATRICK LAPORTE,
Defendants.
------------------------------THOMAS J. McAVOY
Senior United States Judge
DECISION and ORDER
Plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983, alleg ing
that Defendants violated his constitutional rights while he was incarcerated. Presently
before the Court is Defendants’ motion for judgment on the pleadings. See dkt. # 49.
The Court has determined to decide the motion without oral argument.
I.

BACKGROUND
Plaintiff Adrien Cadwallader filed the instant Complaint pursuant to 42 U.S.C. §

1983 on February 9, 2015. See dkt. # 1. This action concerns Plaintiff’s treatment
while incarcerated at the Ostego County Jail. Plaintiff alleges that he was attacked by a
pit bull on January 11, 2012, sustaining serious injuries to his legs. Id. at ¶ 15. He
spent two days in the hospital and was released with a prescription for oral antibiotics.

Id. By January 20, 2012, Plaintiff was back in the hospital with a serious infection of
the wound site in both legs. Id. at ¶ 16. Doctors at St. Peter’s Hospital in Albany, New
York told him that if they failed to control the infection he could lose his leg or even die if
the infection spread. Id. After a week in the hospital, Plaintiff’s infection was controlled
and he was well enough to be released with a prescription for Augmentin, an oral
antibiotic. Id.
Plaintiff was on parole at the time, and as a condition of his parole, Defendant
Patrick LaPorte, his parole officer, ordered him to enter a residential treatment program
for heroin addition upon his release from the hospital. Id. at ¶ 17. LaPorte knew of
Plaintiff’s hospitalization and treatment for infection. Id. at ¶ 18. He also knew of
Plaintiff’s heroin addiction and longstanding mental health issues and treatment needs.
Id. On February 1, 2012, Plaintiff entered the residential treatment program and began
receiving medication for opiate withdrawal. Id. at ¶ 19. He also received therapy and
medication for “several long standing mental health issues including post-traumatic
stress disorder (PTSD), anxiety disorder, depressive disorder, oppositional defiant
disorder and attention-deficit/hyperactivity disorder (ADHD).” Id. He also took
medication to help him sleep because of recurrent PTSD and nightmares associated
with the dog attack. Id.
Several days into his stay at the treatment center, Plaintiff noticed red streaks on
his legs near the site of his bite wound. Id. at ¶ 20. These streaks “reminded him” of
the infection that put him in the hospital in the first place. Id. He advised facility staff,
and tests revealed a methicillin resistant staphylococcus aureus (“MRSA”) infection. Id.
A doctor prescribed Vancomycin, an antibiotic, to be taken twice daily for ten days to
2

treat the MRSA on February 6, 2012. Id. at ¶ 21. The stop date for the medication was
February 16, 2012. Id. The physician also ordered medication to treat the pain from
the wound and infection. Id.
Though the symptoms associated with the MRSA infection began to clear up
with use of the medication, Plaintiff suffered other health issues related to the stress
and anxiety of the dog attack and its aftermath as well as the challenges of heroin
withdrawal and mental health problems. Id. at ¶ 22. Plaintiff eventually suffered a
panic attack that placed him in the hospital and the treatment program discharged him.
Id. at ¶¶ 23-24. The treatment program advised Defendant LaPorte of Plaintiff’s
discharge. Id. at ¶ 24. LaPorte arrived at the center at 9:00 a.m. on February 9, 2012
to arrest Plaintiff for violation of the terms of his parole. Id.
At the time of his discharge and arrest, the treatment center staff gave LaPorte
physicians’ orders for the medications Plaintiff was taking for his MRSA infection, pain
from that infection, heroin withdrawal, PTSD and anxiety. Id. at ¶ 25. The orders
included:
Vistaril 50 mg po prn for anxiety (po means orally, prn means as needed),
Neurontin 300 mg po qid (qid means 4 times a day), a Suboxone taper to
be completed 2/13/12, Augmentin 125 mg po bid x 10 days (bid means
twice a day). Cleanse wound daily with Neosporin and apply telfa and
Kling for C +S, D/C Augmentin, Vancomycin 500 mg po bid x 10 days
(MRSA) (stop date 2/16/12), Ultram 50 mg po q6 hrs prn pain.
Id. at ¶ 25. Plaintiff alleges that clinic staff informed LaPorte of the importance of these
medications and LaPorte reviewed the list of medications when he took Plaintiff into
custody. Id. at ¶ 26. Plaintiff importuned LaPorte to get this list of medications because
of his serious physical and mental-health needs. Id. at ¶ 27. Plaintif f alleges that
3

Defendant LaPorte told him not to worry. Id. LaPorte would insure that the Otsego
County Jail (the “Jail”) received the medications list and his medical needs would be
taken care of. Id. at ¶ 27. Despite this promise, Plaintiff alleges, LaPorte did not
accompany Plaintiff to the Jail, nor did he give the police officers who took Plaintiff to
the jail copies of the orders. Id. at ¶¶ 28-29. He did not notif y anyone at the Oneonta
Police Department or Otsego County Jail regarding Plaintiff’s medical needs. Id. at ¶
30.
Plaintiff had an anxiety attack while being booked into the Jail on February 9,
2012; he was taken for treatment to A.O. Fox Hospital in Oneonta. Id. at ¶ 31. Doctors
treated Plaintiff for his anxiety and hyperventilation. Id. at ¶ 32. Plaintiff informed them
of his medical history, including his current treatment for MRSA, heroin withdrawal and
anxiety disorder. Id. Plaintiff alleges that he told staff in the emergency room that
LaPorte had the prescriptions the treatment center had provided. Id. at ¶ 33.
After Plaintiff was discharged from the hospital, Oneonta Police took him to the
Oneonta Police Department where they completed booking and held him for several
hours. Id. at ¶ 34. Plaintiff suffered another anxiety attack as officers returned him to
the Ostego County Jail around 8:40 p.m. on February 9, 2012. Id. at ¶ 35. He told
officers of his distress and need for medical care.
When Plaintiff arrived at the Jail he spoke with Defendant Sgt. Adam Tilbe, who
was the booking officer. Id. at ¶ 36. Plaintiff was anxious because he had not yet
received his medications. Id. He told Tilbe that he needed his MRSA medications, and
that he could die if he did not receive them. Id. Tilbe noted that Plaintiff was shaking
during the interview. Id. Tilbe had Plaintiff placed in a holding room near the booking
4

area, and Plaintiff alleges that Tilbe called the Supervising Facility Nurse and informed
her that Plaintiff was shaking and claimed to have difficulty breathing. Id. at ¶ 37.
Plaintiff alleges that he was at that point suffering from the effects of his anxiety attack
and the lack of medication to treat his heroin withdrawal and pain. Id. at ¶ 38. He
repeatedly informed Jail staff of his condition, asking for medical assistance. Id.
At approximately 9:40 p.m., Otsego County Sheriff’s Department staff took
Plaintiff to the emergency room of Bassett Hospital in Oneonta, New York. Id. at ¶ 39.
There, Plaintiff told hospital staff of his MRSA infection and the need for antibiotic
medication to control it. Id. at ¶ 40. He showed the doctor the wounds on his legs and
a red boil-like spot on his abdomen. Id. He also told staff that he had not received any
medication since 6 a.m. and that he suffered from heroin withdrawal, depression and
anxiety. Id. at ¶ 41. Medical staff diagnosed him with depression, anxiety and suicidal
thoughts. Id. at ¶ 42. Plaintiff received an anti-anxiety drug and rested in the ER. Id.
He was discharged from the hospital at around 12:50 a.m. on February 10, 2012. Id. at
¶ 42. Discharge orders indicated that Plaintiff should receive an anti-anxiety drug up to
four times a day to treat restlessness and anxiety, that he should be placed on one-toone observation, and that a health-care provider at the Jail should evaluate Plaintiff in
the morning. Id. at ¶ 43. Plaintiff alleges that these orders were provided to Otsego
Sheriff’s Department Officers at the hospital. Id. at ¶ 44.
Deputies returned Plaintiff to the Jail at approximately 1:15 a.m. on February 10,
2012; a deputy brought with him discharge instructions from the hospital for Plaintiff and

5

gave them to Tilbe. Id. at ¶¶ 45. 1 Defendant Tilbe questioned Plaintiff at approximately
1:30 a.m. as part of the booking process. Id. at ¶ 46. Plaintiff informed Tilbe that he
needed his medications for MRSA, mental health, heroin withdrawal and pain. Id. at ¶
47. He warned Tilbe that he could die without the MRSA antibiotics, and that the other
medication was necessary as well. Id. at ¶ 48. Plaintiff alleges that Tilbe informed him
he would get his medication if the nurse said he could have it. Id. at ¶ 49. Tilbe placed
Plaintiff in a room at the Jail that contained a correction officers’ station and ordered
that he be placed under constant watch. Id. at ¶ 50.
Plaintiff alleges that the discharge instructions informed Tilbe that Plaintiff
needed to take the medications, but Tilbe ignored those instructions. Id. at ¶ 51. Tilbe
also ignored his duty to inform the medical staff of Plaintiff’s serious medical needs. Id.
at ¶ 52. He did not, Plaintiff alleges, inform the supervising nurse or any other Jail
medical personnel that Plaintiff had informed him of his MRSA infection, the antibiotics
prescribed for that condition, or any other of Plaintiff’s symptoms. Id. at ¶ 53. Instead,
Plaintiff was taken to a room where a mattress on a protective plastic tray was placed
on the floor, given jail clothing and directed by Jail staff to sleep on the mattress. Id. at
¶ 54. Bright lights remained on in the room 24 hours a day, and officers were seated at
a desk in a room close to the bed to keep Plaintiff under constant watch. Id. at ¶ 55.
Plaintiff remained in the room for the next eight days, until February 17, 2012.
Id. at ¶ 56. Corrections officers and sergeants frequently congregated in the room, just
a few feet from where Plaintiff was on his bed. Id. at ¶ 56. The officers discussed a

1

The Complaint repeats paragraph 45.
6

variety of topics and used the computer on the desk for jail and personal business. Id.
They also used the computer to stream music and play games. Id. Plaintiff remained
on the mattress at all times, except to walk and to use the sink and toilet in the room .
Id. at ¶ 57. He was fed while on the mattress and was not permitted to have any
personal property, read anything, or make calls to family or attorneys. Id. at ¶ 57.
Officers’ conversations and computer noise prevented him from getting proper sleep,
and he was not permitted to use the toilet or sink in the room where he was held and
could not shower or exercise. Id. at ¶¶ 57-58.
On the morning of February 10, 2012, Defendant LaPorte was at the Jail. Id. at
¶ 59. Plaintiff spoke with him, requesting that LaPorte intervene and get him the
medications he needed. Id. LaPorte told Plainitf f he would speak with the Jail’s
medical staff immediately and give the staff the prescriptions from the treatment facility.
Id. at ¶ 60. He did not do so, nor did he later f ollow up with the Jail about the
prescriptions. Id. at ¶ 61.
Also on February 10, 2012, Defendant Julie Andrews, a psychiatric nurse
practitioner employed by the Defendant County, interviewed Plaintiff at the Jail. Id. at ¶
62. Plaintiff told her that he needed his medications and that he could die from his
MRSA infection without the prescribed antibiotic. Id. at ¶¶ 63-64. He also inf ormed
Andrews that he had not received any of his medications since the previous morning.
Id. at ¶ 65. Andrews told Plaintiff that he would not receive the anxiety medication that
he had received at the facility, but that other possible medications existed. Id. at ¶ 65.
Plaintiff responded that he knew what medications worked for him, and that the
medication suggested by Andrews did not work for him. Id. at ¶ 66. Plaintiff stated that
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“if he couldn’t get his needed medications then there was nothing to talk about and he
left the room.” Id. at ¶ 66.
Plaintiff alleges that Defendant Andrews “deliberately ignored” Plaintiff’s requests
for MRSA medication and the discharge orders from Bassett hospital directing anxiety
medication. Id. at ¶ 67. Plaintiff alleges that she “did nothing to address Plaintiff’s
serious medical needs.” Id. She did not ask Plaintiff about his prior treatments for the
dog-bite infection and the resulting pain, and did not ask about medication and
treatment for heroin withdrawal and anxiety. Id. Andrews failed to notify the Jail’s
Supervising Facility Nurse or any other facility or medical staff about Plaintiff’s medical
needs. Id. at ¶ 68. Instead, she scheduled Plaintif f for an appointment for February 17,
2012, her next scheduled work day at the Jail. Id.
Defendant Lynn Baulch was the Ostego County Jail Supervising Facility Nurse.
Id. at ¶ 69. As of February 10, 2012, she was on call 24 hours a day, seven days a
week. Id. She was the only full-time nurse employed by the Jail, working an eight-hour
day Monday through Friday and two Saturdays a month. Id. at ¶ 75. Facility staff could
contact her regarding inmate medical matters. Id. at ¶ 69. Baulch was responsible for
insuring that Plaintiff’s medical history was documented and evaulated upon his arrival
at the Jail. Id. at ¶ 69. Baulch was also responsible for conducting an initial medical
evaluation of Plaintiff or arranging for that procedure. Id. at ¶ 70. Plaintiff alleges that
Defendant Tilbe informed Baulch that Plaintiff had a serious medical need on February
10, 2012. Id. at ¶ 71. Baulch, however, allegedly failed to make arrangements for
anyone to interview or evaluate Plaintiff regarding these needs. Id. Baulch also failed
to inform anyone at the jail over the next five days that Plaintiff needed to receive
8

medication and treatment. Id. at ¶ 73. The Defendant County also employed a parttime nurse who worked at the jail, but the County did not assign the part-time nurse to
fill in when the full-time nurse was out on sick leave. Id. at ¶ 76. As a result, there was
no medical nurse or physician at the Jail for five consecutive days, as Baluch was out
on sick leave. Id. at ¶ 77.
Plaintiff also alleges that Defendant Richard J. Devlin, Jr., Otsego County Sheriff,
and Defendant Otsego County had deficient policies and procedures for ensuring
proper care of inmates like Plaintiff. Id. at ¶¶ 74, 78-82. Plaintiff alleges that an
insufficient number of medical providers and staff were present at the Jail, causing a
failure to provide a timely and adequate medical evaluation of the Plaintiff. Id. at ¶ 78.
Plaintiff also contends that the Defendants lacked an adequate policy and procedure for
screening inmates who were at a high risk of opiate withdrawal or arrived with
potentially dangerous infections, like the MRSA Plaintiff suffered. Id. at ¶¶ 79, 81.
These policies caused Plaintiff pain and suffering, both from opiate withdrawal and pain
from his infection. Id. at ¶¶ 80, 82.
Plaintiff further alleges that Defendants Sgt. Michael Ellwanger, Corrections
Officers Jared Hubbard, James Raso, Jesse Tourella, Christopher Owens, Kyle Lamp,
Aaron Cleveland, Paula M. Dick, Micahel Clark, Kevin Barrows and David Pledger, Jr.,
observed Plaintiff in the room where he was held and knew of his physical and mental
health issues. Id. at ¶ 83. Plaintiff told each of these defendants that he needed
medical care and access to his prescribed antibiotic to treat his MRSA inf ection. Id. at ¶
84. He showed each defendant “the wounds and abscesses on his legs and abdomen”
each day, demonstrating his worsening condition. Id. Plaintiff also complained of the
9

pain and emotional distress his infection was causing.
Plaintiff’s condition worsened during the first days of his incarceration. He
complained to all of the guards assigned to watch him about his need for medication for
his infection and his withdrawal. Id. at ¶ 85. On February 10, 2012, when Plaintiff was
placed in the room, he could see red streaks on his legs as the infection began
spreading from his leg wounds. Id. Plaintiff was aware of the dangerous nature of this
condition due to his prior treatment. Id. By Saturday, February 11, 2012, Plaintiff could
feel his stomach becoming distended as the infection spread. Id. at ¶ 86. A doctor at
Bassett had noted a red boil-like infection on his abdomen early in the morning on
February 10, 2012, and Plaintiff became extremely concerned about this issue. Id. On
February 12, 2012, the boil began to ooze puss, bled, and grew larger and more
painful. Id. at ¶ 87. None of the corrections officers Plaintiff asked for help did
anything. Id. Plaintiff could not even get rest because of the pain and constant noise
and light in his room. Id.
By Monday, February 13, 2012, the boil was continuing to ooze pus, bleed, and
grow, and Plaintiff began to notice spots on other parts of his body. Id. at ¶ 88. He
believed the infection was spreading. Id. His leg wounds also festered and had
discharge. Id. Blood from his wounds stained his jump suit and his bedding was soiled
from drainage from the abscess. Id. When he complained to Pledger about his
condition, Pledger told him not to touch the area and to go back to bed and lay down.
Id. Plaintiff continued to complain to each corrections officer assigned to him about his
condition and his need for medication. Id. at ¶ 89. All of these officers ignored his
condition and his request for immediate attention. Id. at ¶ 90. Each told him they would
10

“see what I can do,” but then told Plaintiff to “shut up and quit complaining” when he
continued to demand assistance. Id. Plaintiff does allege, however, that at least one of
these defendants reported to Defendants Sergeant Ellwanger and Assistant Jail
Administrator Lt. Pierce that Plaintiff had requested medication attention for his various
conditions. Id. at ¶ 91. Those Defendants did nothing to respond to these complaints.
Id. at ¶ 92. Instead, Sgt. Ellwander instructed the officers not to assist Plaintiff until
instructions from the medical staff came. Id. at ¶ 93. Plaintiff alleges that this help was
not forthcoming; he claims Andrews told several officers that she was angry with
Plaintiff and would not authorize any medication until her next regular day at the Jail.
Id. at ¶ 94. Plaintiff alleges that Ellanger also ordered officers not to permit Plaintiff to
cover his head with a blanket to block out the lights, shower, get band aids or gauze for
his wounds, to make telephone calls, or access any of his property. Id. at ¶ 93.
Finally, on February 14, 2012, Defendant Pierce came to Plaintiff’s room in
response to a report by Defendant Lamp about Plaintiff’s open, bleeding wound. Id. at
¶¶ 95-97. Plaintiff showed Pierce the abscess and told him he needed immediate
medical attention. Id. at ¶ 97. Pierce ordered that Plaintif f be taken to the hospital for
evaluation of the wound. Id. at ¶ 98. After evaluating the abdominal abcess, surgeons
cut away necrotic tissue around the wound site and cleaned and packed the wound. Id.
at ¶ 99. After discharge, Plaintiff returned to the Jail. Id. The discharge orders
provided instructions for daily cleaning and repacking of the wound site, as well as
instructions to allow Plaintiff to shower. Id. at ¶ 100. They also included prescriptions
for pain medication. Id.
Plaintiff was seen by Defendant Linda Gilmore, a nurse at the Jail on February
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14, 2012. Id. at ¶ 101. Gilmore briefly noted some of Plaintiff’s prior medial history and
medications, but Plaintiff alleges that her screening was inadequate. Id. The nurse did
not document all of Plaintiff’s serious medical conditions, including his need for
medication already prescribed. Id. Plaintiff also alleges that Gilmore did not inquire
about Plaintiff’s prior treatment for anxiety and opiate withdrawal, and she did not ask
about any medication prescribed by a doctor during his visits to three hospitals before
his incarceration. Id. at ¶ 102. Gilmore also failed to contact the Supervising Facility
Nurse or facility doctor, and did not make any additional inquiries about Plaintiff’s
medical needs. Id. at ¶ 103.
Plaintiff continued to suffer pain from his infection and surgery, especially when
the dressing in the would was changed. Id. at ¶ 104. From February 14, 2012 until
February 17, 2012, Defendant Gilmore changed the dressing on Plaintiff’s wound but
did not arrange for pain medication, despite Plaintiff’s requests. Id. During that same
period, Plaintiff also failed to receive the anti-anxiety medication prescribed him in the
discharge instructions from Bassett Hospital on February 9, 2012. Id. at ¶ 105. Plaintiff
continued to suffer from anxiety during this period. Id.
Plaintiff returned to Bassett Hospital on February 17, 2012 because of continued
complaints of pain and lack of pain medication and antibiotics from his infection. Id. at
¶ 106. Bassett staff noted that the wound was dirty, discolored and draining. Id.
Medical staff treated Plaintiff and released him back to the Jail. Id. Hospital ER staff
promised Plaintiff to call the Jail to find out why he had not been given pain medicine
prescribed to him on February 14, 2012. Id. at ¶ 107. Plaintiff finally began receiving
the prescribed medication on February 17, 2012 after he returned from the hospital. Id.
12

Plaintiff filed his complaint, pro se, on February 9, 2015. The Complaint raises
three claims, all of them alleging that Defendants violated Plaintiff’s constitutional rights
through deliberate indifference to his serious medical needs while incarcerated.
Plaintiff also filed a motion for leave to proceed in forma pauperis and a motion for
appointed counsel. See dkt. #s 2, 3. T he Court granted those motions on March 24,
2015. See dkt. # 4. The Court appointed pro bono counsel for Plaintiff on June 26,
2015. See dkt. # 40. That counsel moved to withdraw his appearance on August 13,
2015, and the Court granted the motion. See dkt. #s 46-47. Plaintiff’s current
attorneys entered their appearances on November 6, 2015. See dkt #s 52-53. In the
meantime, Defendants Lynn Baulch, Michael Clark, Aaron Cleveland, County of
Otsego, Richard J. Devlin, Jr., Paula Dick, Michael Ellwanger, Linda Gilmore, Jared
Hubbard, Kyle Lamp, Christopher Owen, Adam Pierce, David Pledger, Jr., James
Raso, Adam Tilbe and Jesse Tourella filed an answer and a motion for judgment on the
pleadings. See dkt #s 31, 49. Defendants Patrick LaPorte and Kevin Barrows also filed
answers to the Complaint. See dkt. #s 35, 37. Barrows joined in the other Defendants’
motion for judgment on the pleadings. See dkt. # 49. LaPorte did not. Id. Af ter delays
for Plaintiff to obtain new counsel, the parties have briefed the motion, bringing the case
to its present posture.
II.

LEGAL STANDARD
Defendants have filed a motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c). “In deciding Rule 12(c) motions,” the Court
“employ[s] the same standard applicable to Rule 12(b)(6) motions to dismiss,

13

“‘accept[ing] all factual allegations in the [C]omplaint as true and draw[ing] all
reasonable inferences in [the nonmoving party’s] favor.’” Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 78 (2d Cir. 2015) (quoting L-7 Designs, Inc. v. Old Navy,
LLC, 647 F.3d 418, 428 (2d Cir. 2011)). This tenet does not apply to legal conclusions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.
“To survive a 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.” Id. (quoting Bell
Atl. v. Twombly, 550 U.S. 544, 570 (2007)).
III.

ANALYSIS.
Defendants seek dismissal of the Complaint, arguing that Plaintiff has failed to

make out a claim that they were deliberately indifferent to a serious medical need, and
that even if he had, they are entitled to qualified immunity. They raise various grounds,
which the Court will address as appropriate.
A.

Plaintiff’s Constitutional Claim

A plaintiff seeking to prevail under Section 1983 must show that Defendant
“deprived Plaintiff of a federal or constitutional right while acting under the color of state
law.” Cox, 654 F.3d at 272. In this context, Plaintiff’s claim is that he suffered “cruel
and unusual punishment” in violation of the Eighth Amendment. Hernandez v. Keane,
341 F.3d 137, 144 (2d Cir. 2003). Cruel and unusual punishm ent “‘includes
punishments that involve the unnecessary and wanton infliction of pain.’” Id. (quoting
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Prisoners are not entitled to

14

“‘unqualified access to health care[.]” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 9
(1992). Still, a prisoner “can nevertheless prevail on an Eighth Amendment claim
arising out of medical care by showing that a prison official acted with ‘deliberate
indifference’ to the inmate’s serious medical needs.” Id. (quoting Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994)). Courts in the Second Circuit hav e described this
standard as “embodi[ng] both an objective and subjective” standard. Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). “Objectively, the alleged deprivation must
be ‘sufficiently serious,’ in the sense that ‘a condition of urgency, one that may produce
death, degeneration, or extreme pain’ exists.” Id. (quoting Hathaway v. Coughlin, 37
F.3d 63, 66 (2d Cir. 1994)). “Subjectively, the charged official must act with a
sufficiently culpable state of mind.” Id. “An official acts with deliberate indifference
when that official ‘knows of and disregards an excessive risk to inmate health or safety;
the official must both be 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.’” Chance,
143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Defendants first argue that Plaintiff cannot demonstrate that he suffered a
deprivation sufficiently serious to make out a claim. Defendants argue that Plaintiff
admits that he was not denied access to medical care during the period between
February 7 and February 17, 2012 because the Complaint alleges that Plaintiff received
extensive medical treatment, either at the facility itself or when he was transported to
Bassett Hospital. Defendants contend that Plaintiff’s only complaint is with the
particular treatments he received. Since a Plaintiff cannot make out an Eighth
Amendment claim on the basis that he would have preferred different treatment,
15

Defendants insist that Plaintiff has not stated a constitutional claim.
As a general matter an Eighth Amendment claim may proceed if a defendant,
“with deliberate indifference, expose[s] [a detainee]” to conditions which “pose an
unreasonable risk of serious damage to [her] future health.” Helling v. McKinney, 509
U.S. 25, 35 (1993). Thus, “[a] serious medical condition exists where ‘the failure to
treat a prisoner’s condition could result in further significant injury or the unnecessary
and wanton infliction of pain.’” Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)
(quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Since medical
conditions “vary in severity . . . a decision to leave a condition untreated will be
constitutional or not depending on the facts of the particular case.” Id. at 136-137.
Therefore, “a prisoner with a hang-nail has no constitutional right to treatment, but if
prison officials deliberately ignore an infected gash, ‘the failure to provide appropriate
treatment might well violate the Eighth Amendment.’” Id. (quoting Chance, 143 F.3d at
702). In Harrison, for example, the Second Circuit noted that “[o]rdinarily, a tooth cavity
is not a serious medical condition, but this is at least in part because a cav ity is so
easily treatable.” Id. at 137. Immediate treatment is often unnecessary, but it “is a
degenerative condition, and if it is left untreated indefinitely, it is likely to produce agony
and to require more invasive and painful treatment, such as root canal therapy or
extraction.” Id. “Consequently, because a tooth cavity will degenerate with increasingly
serious implications if neglected over sufficient time, it presents a ‘serious medical
need’ within the meaning of our case law.” Id.
Here, as explained above, Plaintiff alleges that he arrived at the Otsego County
Jail after being diagnosed with various ailments. He had been prescribed medication to
16

treat those conditions, and he allegedly informed jail officials of that fact. One of those
medications was an antibiotic used treat a serious MRSA infection that he obtained via
a dog bite. Plaintiff further alleges that, despite these doctor’s orders and desp ite his
repeated requests that he be provided the medication, the Defendants did not provide
him with the antibiotics. As a result, Plaintiff’s infection worsened, spread, and caused
him not only great pain, but to require surgery at a local hospital. Plaintiff’s dog bite,
which Defendants left untreated even though Plaintiff repeatedly made them aware that
he had a prescription to fight the MRSA he had developed, is similar to both the
untreated gash and the toothache described above: while initially treatable, failing to
provide Plaintiff with his medication caused a simple condition to deteriorate to the point
where Plaintiff had an open, festering wound that required surgery to repair. Plaintiff
received no timely treatment of the infection even though Defendants were aware of the
condition; that represents a conscious disregard of a substantial risk of serious harm.
Plaintiff has alleged that he suffered from a serious medical condition that implicates
the Eighth Amendment.
Defendants next argue that, even if Plaintiff did suffer a serious medical
condition, he has not alleged a culpable state of mind for any of the Defendants.
Defendants contend that Plaintiff’s complaint alleges that he received medical attention,
admitting that Defendants transported him to the hospital for treatment when
necessary; he therefore cannot contend that he was deprived of essential medical care.
Instead, Defendants insist, Plaintiff attempts to cast his disagreements with the
prescribed course of medical treatment provided by the Defendants as a constitutional
claim. Such disagreements, they argue, do not make out a constitutional claim.
17

Defendants are correct that medical malpractice does not ordinarily rise to the
level of a constitutional violation. See Hathaway, 99 F.3d at 553 (citing Estelle v.
Gamble, 428 U.S. 97, 106 (1976)). A Plaintiff does not make out a constitutional claim
by arguing that he should have received different treatment. Still “while ‘mere medical
malpractice’ is not tantamount to deliberate indifference, certain instances of medical
malpractice may rise to the level of deliberate indifference; namely, when the
malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison
doctor that evinces a ‘conscious disregard of a substantial risk of serious harm.’” Id.
(quoting Farmer, 511 U.S. at 839-40).
The Court finds that Plaintiff has alleged that Jail officials in charge of his health
care did more than commit simple medical malpractice. He has alleged that the
Defendants recklessly disregarded his medical condition, ignored the prescriptions
provided by his doctors, and allowed a serious infection to remain untreated for days,
leading to a dangerous decline. He has alleged that those charged with providing him
care had knowledge of that condition, both from the medical records they received and
from his own complaints, but that they did nothing while an infection festered and
eventually required surgery. Such conduct, if proved, would demonstrate culpable
recklessness. The motion must be denied in this respect as well.
In the end, Defendants argue as well that none of the conduct Plaintiff alleges on
the part of any official amounts to deliberate indifference, and thus fails to satisfy the
“subject” standard. “An official acts with deliberate indifference when that official
‘knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk
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of serious harm exists, and he must also draw the inference.’” Chance, 143 F.3d at 702
(quoting Farmer, 511 U.S. at 837). Making all inferences in favor of the Plaintiff, the
Court finds the Plaintiff’s allegations sufficient to state a claim against each of the
Defendants. The Court will address them in turn.
As to Defendant Gilmore, the Court reads the Complaint to allege that she, as a
nurse, performed a screening that made her aware of Plaintiff’s serious medical
conditions, but that she did not take any adequate measures to insure that he actually
received treatment for those conditions. She did nothing to obtain medication
prescribed by doctors which would have prevented the worsening of his conditions, and
did not even record the need for such treatment. Gilmore did not even bother to make
any inquiries to others who treated Plaintiff about the conditions he reported. She did
not respond to requests for pain medication, or even adequately change the dressing
on his wounds. These allegations make plausible that Gilmore was deliberately
indifferent to a serious medical need, and the motion will be denied in this respect.
Plaintiff has also alleged culpable conduct on the part of Defendant Tilbe.
Defendants contend that Plaintiff has simply alleged that Tilbe booked Plaintiff into the
Jail and then had him immediately transported to the hospital. Plaintiff has also
alleged, however, that he made Tilbe aware of his dangerous medical condition and the
prescription antibiotics necessary to treat that condition. Moreover, Plaintiff contends
that Tilbe saw discharge instructions outlining his medical needs, but did nothing to
provide for them. He thus alleges that, despite Tilbe’s awareness of his various medical
needs, Tilbe did nothing to insure that those needs were met. Plaintiff has therefore
alleged deliberate indifference to a serious medical need. His allegations of an
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infection so bad he needed surgery to prevent dire consequences demonstrates injury
as a result. The motion will be denied with respect to Defendant Tilbe.
Defendants argue that Defendant Pierce cannot be liable because Plaintif f
admits that Pierce had him transported to the hospital for his second visit, which
resulted in surgery. Plaintiff alleges, however, that Pierce was aware of his need for
medication and did nothing to make sure that he received that medication. Making all
inferences in Plaintiff’s favor, the fact that Pierce later ordered Plaintiff transported to
the hospital does not mitigate this alleged earlier failing; Plaintiff’s Complaint contends
that he would not have needed transport to the hospital if Pierce had not prevented him
from receiving medication. The motion will be denied with respect to Defendant Pierce
as well.
Defendants likewise argue that Plaintiff does not allege that Defendants
Ellwanger, Hubbard, Raso, Torruella, Owens, Lamp, Cleveland, Dick, Clark, Pledger,
and Barrows–the corrections officers who guarded him during the period in question–
engaged in any culpable conduct. Defendants insist that Plaintiff has alleged only that
they placed him under constant observation, which does not amount to a claim that
they disregarded any known risk to his health and safety. The Court disagrees. With
regard to Defendant Ellwander, a supervisor of the other officers, Plaintiff alleges that
he was aware of Plaintiff’s need for medical treatment and did nothing to ensure that he
received it, as well as actively preventing him from receiving some treatment. With
regard to the other Defendant corrections officers, Plaintiff alleges that he made these
officers aware of his specific medical needs, showing them evidence of the worsening
condition of his wounds, but they refused to take any action to assist him. Such
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allegations are sufficient to state a claim for deliberate indifference, and the motion will
be denied in this respect as well.
B.

Monell Liability

Defendants next argue that Plaintiff has not pled facts sufficient to support a
claim that his injuries were the result of an official policy or custom, and any claim
brought against the County of Ostego pursuant to 42 U.S.C. § 1983 must be dismissed.
Municipal liability is limited under Section 1983 by Monell v. Dep’t of Soc. Servs., 436
U.S. 658 (1978). In that case, the Suprem e Court found that municipal liability existed
“where that organization’s failure to train, or the policies or customs that it has
sanctioned, led to an independent constitutional v iolation.” Segal v. City of New York,
459 F.3d 207, 219 (2d Cir. 2006). To prevail, a plaintiff must “identify a municipal
‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of County Commr’s v. Brown,
520 U.S. 397, 403 (1997). “A government’s official policy may be ‘made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy.’” Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 142 (2d Cir.
1999) (quoting Monell, 436 U.S. at 694). “Official municipal 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 v.
Thompson, 141 S. Ct. 1350, 1359 (2011). Claim s against the County would thus be
proved by showing that Plaintiff’s rights were violated “pursuant to a governmental
custom, policy, ordinance, regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393,
397 (2d Cir. 1983). Plaintiff must demonstrate “(1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Id.
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Defendants contend that Plaintiff’s allegations are insufficient to establish either that the
Defendant County had insufficient medical staff at the Jail or that the County failed
adequately to train employees. Indeed, Defendants contend, the allegations in the
Complaint establish that the County’s policies led to proper medical treatment for the
Plaintiff.
The Court will also deny the Defendants’ motion on these grounds. Making all
inferences in the Plaintiff’s favor, the Court reads the Complaint to allege that the
Plaintiff arrived at the Defendant County’s Jail suffering from at least one serious
medical condition. Plaintiff alleges that he informed the intake officer of his medical
needs, including his need for prescription medication, but the Jail did nothing to confirm
his need for those medications and to see that he received them. This inaction led to a
festering wound and spreading, dangerous infection that would not have appeared with
proper treatment. The Complaint further alleges that Plaintiff was seen by medical
providers who likewise did nothing to ensure that he received necessary medications.
This failure to provide medications led to serious and dangerous complications to
Plaintiff’s MRSA infection, as well as exacerbated the symptoms associated with heroin
withdrawal and mental illness. Moreover, as explained above, Plaintiff alleges that
these failings were not just the result of the acts of disinterested or malfeasant
employees, but were the consequence of policies and/or practices in place at the jail
that failed to assess and address the needs of inmates with health concerns like those
faced by the Plaintiff. See Complt. at ¶¶ 78-79, 81. These allegations certainly make it
plausible that Plaintiff’s injuries were caused by policies and/or practices that violated
his constitutional rights.
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C.

Defendants Devlin and Baulch

Defendants next argue that no allegations in the Complaint can plausibly
establish that either Defendant Devlin or Defendant Baulch were personally involved in
any constitutional violation, and they should be dismissed from the Complaint.
Defendants, in reply to Plaintiff’s response in opposition to their motion, contend that
Plaintiff has not addressed this argument and has therefore conceded that his claims
against these Defendants are inadequate. Since the Plaintiff has opposed the motion,
the Court will nevertheless test the adequacy of the allegations against Devlin.2
Plaintiff’s claims against Defendant Devlin consist of allegations that Defendant
was responsible for the inadequate policies and/or practices at the jail that caused his
injuries. See Complt. at ¶¶ 74, 78-82. Defendants argue that Plaintiff has not alleged
any individual actions by Devlin that caused a violation of Plaintiff’s constitutional rights.
While Defendants are correct that “[p]ersonal involvement of the defendant in the
alleged deprivation is a prerequisite to recovery of damages under § 1983,” courts have
also concluded that an actor can have “personal involvement” if “the defendant (1)
created or permitted the continuance of a policy that caused the alleged deprivation, (2)
failed to remedy the alleged deprivation after learning of it, or (3) was grossly negligent
in managing subordinates who caused the alleged deprivation.” K & A Radiologic Tech.
Servs. v. Commissioner of the Dep’t of Health, 189 F.3d 273, 278 (2d Cir. 1999). Here,

2

This is especially so because the Court would not dismiss the claims against
Devlin with prejudice in any case. Defendants contend that more facts must be plead
to establish a plausible claim against him. Under those circumstances, the Court
generally permits a Plaintiff, if he can, to file an amended complaint that states facts
sufficient to raise a plausible claim.
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the Court reads the Complaint to allege that Defendant Devil was responsible for
creating and/or permitting policies to continue that caused a violation of Plaintiff’s
constitutional rights. As such, Plaintiff has alleged facts sufficient to make plausible
that he is entitled to recover against the Defendant, and the motion will be denied in this
respect as well.
Plaintiff’s allegations against Defendant Baulch are that she, as Supervising
Facility Nurse at the Jail, was in charge of insuring that a prisoner, like Plaintiff, who had
a serious medical need, received a proper evaluation and proper medical treatment.
Complt. at ¶ 69. She either performed the evaluation herself or arranged for another to
do so. Id. at ¶ 71. Plaintiff thus alleges that Baulch was made aware of his various
medical issues and his need for treatment, but that she did nothing for five days to get
that evaluation for Plaintiff. Id. at ¶¶ 73, 76-77. Making all inferences in Plaintiff’s favor,
the Court finds that the Complaint alleges that Plaintiff’s failure to receive proper
medication and treatment was in part a result of Baulch’s failure to act as her job
required her to act. The Court finds that Plaintiff alleges that Baulch was aware of
Plaintiff’s need for such attention and consciously disregarded that risk. Such
allegations state a plausible claim for deliberate indifference to a serious medical need,
and the motion will be denied in this respect as well.
D.

Qualified Immunity

Finally, Defendants contend that they are entitled to qualified immunity.
“Qualified immunity is an affirmative defense that shields government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
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Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir. 2003) (quoting McCardle v. Haddad, 131
F.3d 43, 50 (2d Cir. 1997)). Qualified immunity applies when “‘it was ‘objectively
reasonable’ for [the officer] to believe that [his or her] actions were lawful at the time of
the challenged act.’” Betts v. Shearman, 751 F.3d 78, 83 (2d Cir. 2014) (quoting
Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)). A court should resolve
questions of qualified immunity at the earliest possible stage of the litigation. Drimal v.
Tai, 786 F.3d 219, 225 (2d Cir. 2015). To survive a motion to dismiss based on
qualified immunity, a plaintiff must plead facts sufficient to meet the Iqbal plausibility
standard which show “(1) that the alleged official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.’” Wood v. Moss, 134 S.Ct. 2056, 2066-67 (2014) (quoting Ashcroft v. al-Kidd,
563 U.S. ___, ___, 131 S. Ct. 2074, 2077 (2011)). A def endant asserting qualified
immunity can prevail if “the facts supporting the defense appear on the face of the
complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). At the sam e time, “a
defendant presenting an immunity defense on a Rule 12(b)(6) motion . . . must accept
[that] . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not
only those that support his claim, but also those that defeat the immunity defense.” Id.
at 436.
Defendants argue that Plaintiff fails to allege any facts “that would substantiate a
theory that any of the County Defendants’ actions violated any clearly established law.”
Defendants’ Brief, dkt. # 49-1 at 18. Defendants’ position is that, since the Defendants
provided Plaintiff with medical treatment and he disagrees with the treatment provided,
he cannot plausibility allege any deliberate indifference occurred. The Court has
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already found that the Plaintiff has pled facts sufficient to allege a violation of his
constitutional rights by Jail officials who refused to provide him necessary and
prescribed medical treatment for a serious medical need of which they were aware.
The question here is whether the facts alleged in the Complaint make plausible that a
reasonable correctional officer in Defendants’ positions would know that his or her
conduct was unlawful. Defendants offer no argument as to why it was objectively
reasonable for them to believe their conduct was lawful under the circumstances.
Plaintiff has alleged that each of the Defendants were aware of the infection and
medical issues he faced; no reasonable officer or health care provider under those
circumstances could not believe that failing to provide him with prescribed medication
and treatment for a serious infection that appeared to be spreading would amount to
deliberate indifference to a serious medical need and violate the law. Plaintiff has
therefore alleged facts which make it plausible that the affirmative defense of qualified
immunity does not apply in this case. This conclusion applies to all the Defendants,
whether they are liable, as the officers, for directly ignoring the need for treatment as
Plaintiff suffered from serious pain, or for failing to insure that Plaintiff received proper
care and treatment, as well as the intake officers, examining nurses, and policy makers.
The motion will be denied in this respect as to all defendants. The Court of course
recognizes that Defendants may raise the issue again at an appropriate point in the
litigation.
IV.

CONCLUSION
For the reasons stated above, the Defendants’ motion for judgement on the

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pleadings, dkt. # 49, is denied.
IT IS SO ORDERED.
Dated: January 7, 2016

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