Bell v. Galani et al

Filing 118

ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 116 ) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Defendants' Motion (Dkt. No. 102 ) for summary judgment is GRANTED; and it is further ORDERED, that the Clerk of the Court enter judgment for Defendants; and it is further ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties to this action.. Signed by Senior Judge Lawrence E. Kahn on 9/19/2013. (Attachments: # 1 Report-Recommendation) (ptm) (Copy served on plaintiff by regular mail) (Attachment 1 replaced on 9/19/2013) (ptm, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
LEWIS BELL, SR.,
Plaintiff,
9:10-CV-1577
(LEK/TWD)

v.
DR. SOHAIL A. GILLANI, J. THOMAS,
PAUL DAUGHERTY, JASON BEAN,
LYDIA BRENNAN, JOHN DOE,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

LEWIS BELL, SR., 09-B-3809
Plaintiff pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224

BRIAN J. O’DONNELL, ESQ.

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has
been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn,
Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Plaintiff Lewis Bell, Sr. alleges that Defendants violated his rights by substantially changing his
regimen of psychiatric medications. (Dkt. No. 31.) Plaintiff alleges that the changes in his

medication lead him to attempt suicide. Id. Currently pending before the Court is Defendants’
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 102.)
For the reasons discussed below, I recommend that the Court grant Defendants’ motion and enter
judgment in their favor.
I.

BACKGROUND
A.

Factual Summary

The second amended complaint (the “operative complaint”) alleges that Plaintiff began
psychiatric treatment for post traumatic stress disorder, mood disorder, and major depression
with psychotic episode disorder on March 8, 2005, at St. Mary’s Mental Health Psychiatric
Center in Rochester, New York. (Dkt. No. 31 at 6-7.) Plaintiff was treated with psychiatric and
psychotropic medications and therapy in which a baseline medication regimen was established
that minimized his negative symptomology. Id. at 7. This regimen included five different drugs:
Seroquel1, Trazodone2, Lithium3, Abilify4, and Zoloft5. Id. Plaintiff’s drugs and dosages

1

Seroquel is prescribed for the treatment of schizophrenia and is also used for the
short-term treatment of mania associated with bipolar disorder. The PDR Pocket Guide to
Prescription Drugs 1303 (Bette LaGow, ed., 7th ed. 2005).
2

Trazodone is used to treat depression. United States National Library of
Medicine, http://www.ncbi.nlm.nih.gov/pubmedhealth (last visited Aug. 23, 2013).
3

Lithium is used to treat and prevent episodes of mania in people with bipolar
disorder. United States National Library of Medicine,
http://www.ncbi.nlm.nih.gov/pubmedhealth (last visited Aug. 23, 2013).
4

Abilify is used in the treatment of schizophrenia and to help control the manic
phase of bipolar disorder. The PDR Pocket Guide to Prescription Drugs 1 (Bette LaGow, ed.,
7th ed. 2005).
5

Zoloft is prescribed for major depression. The PDR Pocket Guide to Prescription
Drugs 1646 (Bette LaGow, ed., 7th ed. 2005).
2

remained consistent through August 20, 2008. Id. During 2008, Plaintiff was declared mentally
disabled by the Social Security Administration. Id. at 7-8.
On August 20, 2008, Plaintiff was arrested and incarcerated at the Monroe County Jail.
Id. at 8. At the jail, Plaintiff’s drug regimen continued without change. Id.
In the fall of 2009, Plaintiff was convicted and sentenced to a term of incarceration in the
custody of the New York Department of Corrections and Community Supervision (“DOCCS”).
Id. He was transferred to Wende Correctional Facility. Id. Immediately upon his arrival, his
medication regimen was changed. Id. at 8-9. Specifically, Seroquel was stopped entirely and
Zyprexa6 was added. Id. at 9. Plaintiff complained to mental health staff, none of whom are
named as defendants in this action, that he was suffering adverse effects from the change. Id.
These adverse effects included insomnia, night terrors, and night sweats. Id.
On December 11, 2009, Plaintiff was transferred to Elmira Correctional Facility. (Dkt.
No. 102-10 ¶ 3.) At the time of his arrival, his records showed that he had been diagnosed with
paranoid schizophrenia, depression, hypertension, diabetes, and migraine headaches. (Dkt. No.
102-8 ¶ 5.) Defendant Jason Bean, a Licensed Master Social Worker 2, met with Plaintiff as
soon as he got off the bus at the facility. (Dkt. No. 102-10 ¶ 3.) Defendant Bean is not
authorized to prescribe medication. Id. ¶ 11. Defendant Bean noted that Plaintiff appeared to be
mildly anxious, which Defendant Bean opined was “entirely normal under the circumstances.”
Id. ¶ 7. Plaintiff reported three previous suicide attempts but appeared to have no present
thoughts or intent of suicide or harm to himself or others. Id. The form that Defendant Bean
6

Zyprexa helps manage symptoms of schizophrenia, the manic phase of bipolar
disorder, and other psychotic disorders. The PDR Pocket Guide to Prescription Drugs 1670
(Bette LaGow, ed., 7th ed. 2005).
3

completed during his assessment contained questions about auditory hallucinations. Id. ¶ 8.
Plaintiff did not report any auditory hallucinations and Defendant Bean noted no sign that
Plaintiff was responding to internal stimuli. Id.
Defendant Paul Daugherty, a Nurse Practitioner, met with Plaintiff on December 18,
2009. (Dkt. No. 102-8 ¶¶ 1, 4.) Defendant Daugherty obtained a history from Plaintiff, reviewed
the medical records that came with Plaintiff from the county jail, and performed a psychological
assessment. Id. ¶ 5. Plaintiff complained of continuing feelings of paranoia and depression. Id.
¶ 6. Plaintiff requested that his prescription medications be increased. Id. Defendant Daugherty
is authorized to write prescriptions. Id. ¶ 7. Defendant Daugherty adjusted Plaintiff’s
medications to address Plaintiff’s complaints. Id. Specifically, he discontinued Lithium and
Benadryl and increased Plaintiff’s dosages of Zyprexa, Trazodone, and Zoloft. Id. Defendant
Daugherty believed this regimen would be more effective and involve less risk. Id.
Defendant Bean conducted a follow-up session with Plaintiff on December 31, 2009.
(Dkt. No. 102-10 ¶ 9.) Defendant Bean observed that Plaintiff “appeared to have essentially
normal functioning, although he reported that he was having a terrible time sleeping, and he
reported hearing ‘voices’ which he said had increased in intensity and volume.” Id. At that time,
there was a consensus among Plaintiff’s treatment team to extend his housing time on B Block
Extended, “which is an area within the facility that has more frequent rounds by security staff,
was constructed to be safer in terms of preventing hanging attempts and which is generally
significantly quieter than the rest of the facility.” Id. ¶ 10. Plaintiff reported that the B Block
Extended housing was more comfortable and made him better able to deal with the stressors of
prison life. Id.
4

Defendant Bean did not have any contact with Plaintiff after the December 31, 2009,
appointment. (Dkt. No. 102-10 ¶ 11.)
Plaintiff alleges that on January 16, 2010, he “advised OHM staff” that voices were
telling him to hurt himself and others. (Dkt. No. 31 at 10.)
Plaintiff requested mental health services and was seen by Defendant Lydia Brennan, a
Masters Level Psychologist, on January 20, 2010. (Dkt. No. 31 at 10; Dkt. No. 102-6 ¶¶ 1, 6.)
Plaintiff alleges that he told Defendant Brennan about his deteriorating condition, explained the
changes that had been made in his medication regimen, and asked that he be returned to the
regimen he had received before his transfer into DOCCS custody. (Dkt. No. 31 at 10-11.)
Plaintiff alleges that Defendant Brennan did nothing. Id. Defendant Brennan declares that
Plaintiff reported that the change in his medication had helped with his sleep problems. (Dkt.
No. 102-6 ¶ 6.) Plaintiff told Defendant Brennan that he was not hearing any voices, but stated
that his medication was “wearing off.” Id. He also reported having disturbing nightmares. Id.
Defendant Brennan gave Plaintiff information on sleep hygiene and advised him to give the new
medication time to work because he had only been taking it for a few days. Id.
Defendant Brennan saw Plaintiff again on January 25, 2010. (Dkt. No. 102-6 ¶ 8.)
Plaintiff reported that “nothing is new.” Id. He reported that he was still depressed and having
difficulty sleeping, but that he was not thinking of suicide. Id. He did not report hearing any
voices. Id.
Defendant Brennan saw Plaintiff again on February 17, 2010. (Dkt. No. 102-6 ¶ 9.)
Plaintiff requested Defendant Brennan’s assistance in getting his cell moved because he had a
conflict with one of the correction officers and had received some misbehavior reports. Id. At
5

this meeting, Plaintiff for the first time told Defendant Brennan that he was hearing voices telling
him to hurt himself or others. Id. Plaintiff stated that he knew he did not have to obey the
voices, but that he found them disturbing. Id. Defendant Brennan told Plaintiff that his housing
location was specifically designed to provide extra supervision and support for inmates with
mental health issues and that his cell would not be changed until he demonstrated adequate
stability. Id.
Defendant Daugherty met with Plaintiff on February 22, 2010. (Dkt. No. 102-8 ¶ 8.)
Plaintiff complained of mood swings and an increase in his anxiety level. Id. Defendant
Daugherty adjusted Plaintiff’s medications. Id. Specifically, Defendant Daugherty discontinued
Zyprexa, which Plaintiff had refused to take, and added Vistaril.7 Id.
Defendant Brennan also met with Plaintiff on February 22, 2010. (Dkt. No. 102-6 ¶ 10.)
At that meeting, Plaintiff was still focused on his request to change his housing location. Id.
Defendant Brennan again told Plaintiff that he needed to demonstrate stability before a cell move
would be considered. Id. Defendant Brennan told Plaintiff that he was scheduled for a
psychiatric evaluation to address his report of auditory hallucinations and irritability. Id. They
agreed to meet again after that appointment to discuss those issues further. Id.
Defendant Brennan next met with Plaintiff on February 25, 2010. (Dkt. No. 102-6 ¶ 11.)
Plaintiff told Defendant Brennan that he continued to hear voices but that they had decreased in
intensity and frequency. Id. He reported that his cell had been moved, which reduced his anxiety
and frustration. Id. Defendant Brennan noted that it was difficult to assess the accuracy of
7

Vistaril is an antihistamine used to relieve the symptoms of common anxiety and
tension. The PDR Pocket Guide to Prescription Drugs 142 (Bette LaGow, ed., 7th ed. 2005).
6

Plaintiff’s report of hearing voices because (1) he only reported the voices after he had received
disciplinary sanctions; and (2) he never gave any indication – such as delayed responses, darting
glances, and secrecy about symptoms – that he was responding to inner stimuli. Id. Plaintiff
requested more frequent therapeutic contact. Id. Defendant Brennan told Plaintiff that the
availability of therapeutic callouts was limited, but that he could be evaluated and assessed in the
Residential Crisis Treatment Program if he was experiencing increased mental health symptoms.
Id. Plaintiff declined that offer. Id. The plan continued to be for Plaintiff to receive verbal
supportive therapy twice monthly. Id.
Defendant Brennan next saw Plaintiff on March 15, 2010. (Dkt. No. 102-6 ¶ 12.)
Plaintiff stated that he was frustrated that he had been in the Elmira reception center for so long
and asked why he had not been moved. Id. He questioned why his prescription for Lithium had
been discontinued. Id. Defendant Brennan stated that the Lithium had been discontinued four
months earlier and asked Plaintiff why it was now an issue. Id. Plaintiff stated that his current
medication was not working as well as he would like it to, but did not provide any specific
details. Id. He reported that he was continuing to hear voices but that they were low and were
not instructing him to do anything. Id. Plaintiff did not exhibit any objective signs that he was
responding to internal stimuli. Id.
Defendant Brennan’s last meeting with Plaintiff was on March 29, 2010. (Dkt. No. 1026 ¶ 13.) Plaintiff was still focused on the December 2009 discontinuation of his Lithium
prescription. Id. Plaintiff did not provide any specifics for why the Lithium issue had become
important to him. Id. At this meeting, Plaintiff “had noticeable movement of his mouth similar
to chewing gum.” Id. Defendant Brennan and Plaintiff discussed the need to schedule a
7

psychiatric appointment to assess the side effects of Plaintiff’s medication. Id. Plaintiff reported
that the voices were present but low and that he was not receiving any “command
hallucinations.” Id. This was Defendant Brennan’s final contact with Plaintiff. Id.
Defendant Daugherty saw Plaintiff on March 30, 2010. (Dkt. No. 102-8 ¶ 9.) Plaintiff
complained of mood swings and increased anxiety. Id. Plaintiff reported a tightness of his jaw
and involuntary movement similar to chewing gum. Id. This was a possible side effect of
Plaintiff’s Abilify prescription, so Defendant Daugherty prescribed Cogentin8 to address the side
effect. Id. This was Defendant Daugherty’s final contact with Plaintiff. Id. At no point in any
of his meetings with Defendant Daugherty did Plaintiff report experiencing auditory
hallucinations. Id. ¶ 10. Defendant Daugherty never noted any sign that Plaintiff was responding
to internal stimuli. Id.
On April 8, 2010, Defendant Brennan prepared a Termination Transfer Progress Note to
be included with Plaintiff’s records when he was transferred to a new facility. (Dkt. No. 102-6 ¶
14.) It listed Plaintiff’s diagnosis as paranoid schizophrenia, posttraumatic stress disorder,
borderline personality disorder, diabetes, migraine headaches, and hypertension. Id. It listed
Plaintiff’s medications as Abilify, Cogentin, Zoloft, and Trazodone. Id. Plaintiff’s treatment
team recommended that he continue to receive services at his new facility. Id.
Plaintiff was transferred out of Elmira on April 9, 2010. (Dkt. No. 102-6 ¶ 15.) He
arrived at Clinton Correctional Facility on April 12, 2010. (Dkt. No. 102-5 ¶ 3.)
On April 17, 2010, Plaintiff was seen by Defendant Sohail A. Gillani, M.D., a specialist
8

Cogentin improves muscle control and reduces stiffness. United States National
Library of Medicine, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0000225/ (last visited
Aug. 30, 2013).
8

in psychiatry licensed to practice in the State of New York and board-certified by the American
Board of Psychiatry and Neurology. (Dkt. No. 102-3 ¶¶ 1, 3.) Defendant Gillani reviewed
Plaintiff’s chart and noted that Plaintiff had a record of previous hospitalizations for mental
problems and three previous incidents of self-harm. Id. ¶ 4. Plaintiff’s chart also indicated that
he had diabetes. Id. Plaintiff’s chart indicated that he was taking Abilify (15 mg in the morning
and 10 mg at night), Cogentin (1 mg twice per day), Zoloft (200 mg in the morning), and
Trazodone (200 mg at night). Id. ¶ 5. Defendant Gillani took a history from Plaintiff. Id. ¶ 6.
Plaintiff:
stated that he was a veteran and had been in combat in Desert Storm.
He also stated that he heard voices and had been having flashbacks of
an incident in combat. He was not very specific about the incident
and was able to discuss it calmly, which is unusual. His description
of the voices that he heard was also quite unusual. He said that the
voices were coming from inside his head. Typically psychotic people
who hear voices think that the voices are coming from somewhere
outside of their body, and they often look around for the source of the
voice. [Plaintiff] did not. Also atypically, [Plaintiff]’s voices did not
appear connected with any sort of delusions. Specifically, there was
no disorganization in his speech and the content of his thought was
clear. For example, he was demanding to be admitted to Clinton’s
Intermediate Care Program (ICP) so that he could be in a quiet place
and get some sleep. The one typical feature of [Plaintiff]’s
description of the voices was that they were non-continuous.
Id. As a result of this first contact with Plaintiff, Defendant Gillani: (1) referred Plaintiff to the
ICP; (2) discontinued Plaintiff’s prescription for Trazodone because it “was a secondary
medication” that Plaintiff was using as “a sleep aide,” not “primarily for psychosis,” that “had

9

some serious potential side effects” such as priapism9 and serotonin syndrome;10 and (3) replaced
Plaintiff’s Trazodone prescription with Vistaril, another sleep aide not associated with serious
side effects. Id. ¶ 7. Defendant Gillani explained the reasons for the medication change to
Plaintiff. Id.
On April 23, 2010, Plaintiff was interviewed by Defendant Jessica M. Thomas, a
Licensed Mental Health Counselor. (Dkt. No. 31 at 12; Dkt. No. 102-5 ¶¶ 1, 6.) Defendant
Thomas does not have the authority to prescribe medication. (Dkt. No. 102-5 ¶ 20.) Plaintiff
alleges that he gave Defendant Thomas his medical history, including his propensity toward selfharm when not properly medicated. (Dkt. No. 31 at 12.) Defendant Thomas declares that she:
interviewed [Plaintiff] in order to obtain historical information as
well as his present concerns. He also began screening for increased
programming. During this meeting [Plaintiff]’s report of his
symptoms was not consistent with psychosis. Specifically he
reported that he heard voices that woke him up at night; but [Plaintiff]
did not exhibit any overt signs of internal preoccupation. I
encouraged him to elaborate on his symptoms; however he did not do
so. Instead he simply used terms such as “psychotic break” or
reported that he was schizophrenic. He did state that he was upset
that his prescription for Trazodone had been discontinued, because he
said that it “stopped the voices.” To the best of my knowledge,
auditory hallucinations such as hearing voices are not an indication
for the use of Trazodone.
(Dkt. No. 102-5 ¶ 6.) Plaintiff reported that he had trauma related to service in the Gulf War,
which caused him to sleep only “a couple of hours” each night. Id. ¶ 9. Plaintiff did not report
flashbacks, hypervigilance, or other trauma-related symptoms. Id. Plaintiff stated that he

9

Priapism is “a persistent and often painful erection of the penis.” (Dkt. No. 102-3

¶ 7.)
10

Serotonin syndrome is “characterized by heart palpitations, headaches, nausea,
jittery shaking movements of the body and in rare cases death.” (Dkt. No. 102-3 ¶ 7.)
10

engages in self-harming behavior in order to release emotional pain, but without much specific
detail. Id. ¶ 10.
On May 1, 2010, Plaintiff was interviewed again by Defendant Gillani. (Dkt. No. 31 at
13.) Plaintiff alleges that he told Defendant Gillani that his condition was deteriorating and that
he had self-harm issues when not properly medicated. Id. Defendant Gillani declares that
Plaintiff reiterated that the voices were coming from inside his head. (Dkt. No. 102-3 ¶ 8.) At
this interview, Plaintiff initially reported that the voices he heard were continuous, but later in the
interview reported that they were non-continuous. Id. Plaintiff appeared to have no delusions,
no formal thought disorder, no hallucinatory behavior, and appeared calm and relaxed. Id.
After the May 1, 2010, appointment, Defendant Gillani reviewed Plaintiff’s chart notes
from Elmira and discussed Plaintiff with Defendant Thomas. Id. Defendant Thomas informed
Defendant Gillani that when Plaintiff was “observed on his own in the company of other inmates,
he appeared happy, jovial and relaxed, all of which would be atypical of a truly psychotic
person.” Id. ¶ 9. It appeared to both of them that Plaintiff “was reporting atypical symptoms of
psychosis which did not correlate with objective observations of his behavior and speech.” Id. ¶
8.
After his second appointment with Plaintiff, Defendant Gillani “had a strong doubt . . .
that [Plaintiff] suffered from schizophrenic illness.” (Dkt. No. 102-3 ¶ 10.) In Defendant
Gillani’s view, Plaintiff “did not show any clear and typical psychotic symptoms.” Id. In light of
that opinion and the fact that the Food and Drug Administration warns against the use of Abilify
in patients with diabetes, Defendant Gillani planned to reduce and discontinue Plaintiff’s
prescription for that medication. Id. Further, because Cogentin had been prescribed merely to
11

counteract the side effects of Abilify, Defendant Gillani also planned to discontinue it. Id. When
Defendant Gillani explained his reasoning to Plaintiff, Plaintiff “became argumentative.” Id.
On May 26, 2010, Plaintiff had an appointment with Defendant Thomas. (Dkt. No. 102-5
¶ 11.) Plaintiff reiterated that his self-harming behavior was a method of releasing emotional
pain. Id. He stated that it was not intended to end his life. Id. He stated that he had difficulty
processing past abuse. Id. Plaintiff did not report any psychotic symptoms and did not exhibit
any signs of internal preoccupation, such as hesitating as if listening to someone. Id. At this
session, Defendant Thomas informed Plaintiff that his diagnosis had been changed and that he no
longer had a principle diagnosis of psychosis. Id. ¶ 12.
On June 5, 2010, Plaintiff saw Defendant Gillani. (Dkt. No. 102-3 ¶ 11.) Plaintiff did
not report having auditory hallucinations, despite the discontinuation of his Abilify. Id.
Defendant Gillani told Plaintiff that his primary diagnosis had been changed to borderline
personality disorder and alcohol dependence. Id. Plaintiff demanded Trazodone and Abilify and
appeared irritable. Id. As a result, Defendant Gillani increased Plaintiff’s dosage of Zoloft and
continued the Vistaril to address Plaintiff’s irritable mood. Id.
On June 8, 2010, Plaintiff was admitted to the Residential Care Treatment Program at
Clinton with complaints of worsening auditory hallucinations. (Dkt. No. 102-3 ¶ 12.) The
admitting psychiatrist noted that Plaintiff did not demonstrate any formal thought disorder,
delusions, or hallucinatory behavior. Id. Plaintiff’s speech was clear and organized. Id.
Defendant Gillani declares that it is notable that Plaintiff’s “presentation was no different than
while he was taking a high dose of antipsychotic medication” despite being on no antipsychotic
medication at all. Id. Plaintiff was discharged from the Residential Care Treatment Program
12

without any changes in medication. Id.
On June 21, 2010, Plaintiff saw Defendant Thomas again. (Dkt. No. 102-5 ¶ 13.) Prior
to the interview, Defendant Thomas observed Plaintiff in the holding cell. Id. Plaintiff was in
the company of other inmates and appeared calm and relaxed. Id. However, during the
interview, Plaintiff rocked back and forth in his chair, stopping whenever he was frustrated or
trying to make a point. Id. Plaintiff informed Defendant Thomas again that his self-harming
behavior was not an attempt to end his life. Id. Plaintiff blamed a recent disciplinary event on
“the voices.” Id. When asked, Plaintiff replied that he knew the voices were not real and became
upset when asked why he listened to them if they were not real. Id. Defendant Thomas declares
that Plaintiff’s “behavior and presentation continued to be inconsistent with true psychosis.” Id.
On June 28, 2010, Plaintiff was admitted to the Residential Care Treatment Program with
what Defendants characterize as superficial cuts on his left forearm. (Dkt. No. 102-3 ¶ 13.)
Plaintiff refers to these cuts as a suicide attempt, and this suicide attempt is at the center of his
claims against Defendants. (Dkt. No. 107 at 1.) Plaintiff told the admitting psychiatrist that the
voices had commanded him to cut himself. (Dkt. No. 102-3 ¶ 13.) Defendant Gillani declares
that Plaintiff’s “complaints of auditory hallucinations were not associated with typical features of
hallucinations and he had no formal thought disorder, delusions or hallucinatory behavior.” Id.
Plaintiff alleges that he received “inadequate care [and] treatment of his lacerations” and that “he
was placed for [three] days in a strip cell for observation[.]” (Dkt. No. 31 at 13-14.) Plaintiff
alleges that Defendant Gillani did not see Plaintiff for three days. Id. at 14. Plaintiff further

13

alleges that “only after Plaintiff agreed Dr. Gillani placed Plaintiff on 500 mgs Depicote11 and 15
mgs Remeron12 to start after two weeks.” Id. Defendant Gillani declares that he prescribed
Remeron to address anxiety, irritability, and to prevent further impulses of self-harming
behavior. (Dkt. No. 102-3 ¶ 13.)
On June 30, 2013, Plaintiff reported feeling better, stated that he appreciated the
medication changes, and did not complain of hearing voices. (Dkt. No. 102-3 ¶ 13.) He was
discharged from the Residential Care Treatment Program that day. Id.
Defendant Thomas saw Plaintiff on July 7, 2010. (Dkt. No. 102-5 ¶ 14.) By that time
there was a consensus in Plaintiff’s treatment group that he should be accepted into the
Transitional Individual Care Program to receive increased programming. Id. Plaintiff reported
hearing voices but did not report any distress or concern relating to the symptoms. Id. Rather, he
said, his distress was related to past abuse. Id.
On July 17, 2010, Plaintiff was again admitted to the Residential Care Treatment
Program, reporting that he was hearing voices demanding that he kill himself. (Dkt. No. 102-3 ¶
14.) Plaintiff reported that he heard the voices in his right ear and inside his head. Id. Defendant
Gillani declares that a typical auditory hallucination would be heard in both ears. Id. Plaintiff
told Defendant Gillani that he would change his mind about hurting himself if he could stay in
the Residential Care Treatment Program over the weekend. Id. Plaintiff was clear, without
distress, and without any hallucinatory behavior. Id.

11

Depakote is used to control the manic episodes that occur in bipolar disorder. The
PDR Pocket Guide to Prescription Drugs 410 (Bette LaGow, ed., 7th ed. 2005).
12

Remeron is prescribed for the treatment of major depression. The PDR Pocket
Guide to Prescription Drugs 1232 (Bette LaGow, ed., 7th ed. 2005).
14

B.

Procedural History

Plaintiff filed his original complaint in the Western District of New York on December 2,
2010. (Dkt. No. 1.) He filed an amended complaint in the Western District of New York on
December 8, 2010. (Dkt. No. 3.) The case was then transferred to this District. (Dkt. No. 4.)
Plaintiff filed the operative complaint on April 8, 2011. (Dkt. No. 31.) Defendants
moved to dismiss the operative complaint. (Dkt. No. 47.) The Court granted the motion in part
and denied it in part. (Dkt. Nos. 65 and 74.)
As a result of the Court’s order on the motion to dismiss, the only cause of action
remaining at issue in this case is an Eighth Amendment claim against Defendants Gillani,
Thomas, Daugherty, Bean, and Brennan. The Court has previously characterized this claim as
raising two different theories: (1) a claim that Defendants failed to provide constitutionally
adequate medical care by changing Plaintiff’s medication regimen and failing to respond to his
complaints about his deteriorating mental condition; and (2) a claim that Defendants failed to
protect Plaintiff from self-harm. (Dkt. No. 65 at 5-6.)
Defendants now move for summary judgment. (Dkt. No. 102.) Plaintiff has opposed the
motion. (Dkt. No. 107.)
II.

LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, summary judgment is warranted “if the

movant shows that 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). The party moving for summary
judgment bears the initial burden of showing, through the production of admissible evidence, that
no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.
15

2006). Only after the moving party has met this burden is the nonmoving party required to
produce evidence demonstrating that genuine issues of material fact exist. Id. at 273. The
nonmoving party must do more than “rest upon the mere allegations . . . of the [plaintiff’s]
pleading” or “simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11 (1986). Rather, a
dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In determining whether a genuine issue of material13 fact exists, the Court must resolve
all ambiguities and draw all reasonable inferences against the moving party. Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
III.

ANALYSIS
Defendants argue that they are entitled to summary judgment because Plaintiff cannot

prove a constitutional claim for deliberate indifference to a serious medical need.14 (Dkt. No.

13

A fact is “material” only if it would have some effect on the outcome of the suit.
Anderson, 477 U.S. at 248.
14

Although this Court has previously characterized Plaintiff’s complaint as asserting
an Eighth Amendment claim under two different theories (inadequate medical care and failure to
protect), the analysis for those two theories is the same. While claims involving the risk of
suicide have been articulated and addressed as violations of the duty to protect, particularly when
asserted against non-medical personnel, “[t]he bulk of cases dealing with the right of a person in
custody for protection from suicide analyze the issue as an Eighth Amendment claim dealing
with the inadequate provision of medical care.” Kelsey v. City of New York, No. 03-CV-5978,
2006 U.S. Dist. LEXIS 91977, at *13 n.5, 2006 WL 3725543, at *4 n.5 (E.D.N.Y. Dec. 18,
2006), aff'd, 2009 WL 106374 (2d Cir. 2009). The Court will provide Plaintiff with a copy of this
unpublished decision in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
16

102-16 at 16-22.15) Defendants are correct.
The Eighth Amendment to the United States Constitution prohibits “cruel and unusual”
punishments. The word “punishment” refers not only to deprivations imposed as a sanction for
criminal wrongdoing, but also to deprivations suffered during imprisonment. Estelle v. Gamble,
429 U.S. 97, 102-03 (1976). Punishment is “cruel and unusual” if it involves the unnecessary
and wanton infliction of pain or if it is incompatible with “the evolving standards of decency that
mark the progress of a maturing society.” Id. at 102 (quoting Trop v. Dulles, 356 U.S. 86, 101
(1958)). Thus, the Eighth Amendment imposes on prison officials the duty to “provide humane
conditions of confinement” for prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In
fulfilling this duty, prison officials must ensure, among other things, that inmates receive
adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
There are two elements to a prisoner’s claim that prison officials violated his or her
Eighth Amendment right to receive medical care: “the plaintiff must show that she or he had a
serious medical condition and that it was met with deliberate indifference.” Caiozzo v. Koreman,
581 F.3d 63, 72 (2d Cir. 2009) (citation and punctuation omitted). “The objective ‘medical need’
element measures the severity of the alleged deprivation, while the subjective ‘deliberate
indifference’ element ensures that the defendant prison official acted with a sufficiently culpable
state of mind.” Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citation omitted).
Defendants cursorily argue that “Plaintiff has not come forward with sufficient evidence .
. . to establish that he, in fact, suffers from a sufficiently serious condition to meet the [Eighth]
15

Citations to page numbers in Defendants’ memorandum of law refer to the page
numbers in the original document rather than to the page numbers assigned by the Court’s
electronic filing system.
17

Amendment standard.” (Dkt. No. 102-16 at 19.) A “serious medical condition” is “a condition
of urgency, one that may produce death, degeneration, or extreme pain.” Nance v. Kelly, 912
F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting) (citations omitted), accord Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995); Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Relevant factors to consider when determining
whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the
existence of an injury that a reasonable doctor or patient would find important and worthy of
comment or treatment; (2) the presence of a medical condition that significantly affects an
individual’s daily activities; and (3) the existence of chronic and substantial pain. Chance, 143
F.3d at 702. As this Court noted in its decision on Defendants’ motion to dismiss, although there
are no published cases on the topic in the Second Circuit, the First Circuit has held that
depression combined with anxiety attacks or suicide attempts is a serious medical need. Mahan
v. Plymouth Cnty. House of Corr., 64 F.3d 14, 16, 18 (1st Cir. 1995); Torraco v. Maloney, 923
F.2d 231, 235 n.4 (1st Cir. 1991). (Dkt. No. 65 at 12-13.) Defendants have not provided any
evidence or authority to alter the Court’s previous position on this issue. Therefore, the Court
will assume for the purposes of this motion that Plaintiff suffered from a serious medical need.
Regarding the subjective prong, medical mistreatment rises to the level of deliberate
indifference only when it “involves culpable recklessness, i.e., an act or a failure to act . . . that
evinces ‘a conscious disregard of a substantial risk of serious harm.’” Chance, 143 F.3d at 703
(quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). Thus, to establish deliberate
indifference, an inmate must prove that (1) a prison medical care provider was aware of facts
from which the inference could be drawn that the inmate had a serious medical need; and (2) the
18

medical care provider actually drew that inference. Farmer, 511 U.S. at 837; Chance, 143 F.3d
at 702. The inmate then must establish that the provider consciously and intentionally
disregarded or ignored that serious medical need. Farmer, 511 U.S. at 835.
Plaintiff has not raised a triable issue of fact regarding deliberate indifference. It is
important to note that inmates do not have a right to choose a specific type of treatment. Veloz v.
New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004). More specifically, “[d]ifferences in
opinion between a doctor and an inmate patient as to the appropriate pain medication clearly do
not support a claim that the doctor was deliberately indifferent to the inmate’s serious medical
needs.” Wright v. Genovese, 694 F. Supp. 2d 137, 160 (N.D.N.Y. 2010) (punctuation omitted).
Here, Plaintiff has demonstrated, at most, a difference in opinion with his mental health care
providers. In support of the motion for summary judgment, the providers have explained the
medical basis for their decisions. Defendant Brennan, for instance, declares that Plaintiff:
arrived with a very unusual combination of medications that didn’t
appear to me to be indicated for his diagnosis or reported history. His
presentation, i.e. the way he looked, spoke and engaged with staff and
other inmates, in my view, gave no credence to the symptoms he was
reporting. His behavioral history was very functional for someone
allegedly experiencing such extreme psychiatric distress. Based upon
my contact with [Plaintiff], he was offered medications that provided
similar results with fewer risks and his symptoms appeared to
increase or decrease depending upon his disciplinary/housing
situation much more than his medication regime.
(Dkt. No. 102-6 ¶¶ 4-5.)
Defendant Gillani declares that never in his interactions with Plaintiff did Plaintiff
“present with typical psychotic symptoms, nor did he appear to be in any distress because of the
symptoms that he did report. He was noted to get irritable and angry only when he met with

19

frustrations regarding not getting the medication . . . that he demanded.” (Dkt. No. 102-3 ¶ 15.)
Defendant Gillani declares that he discontinued Plaintiff’s prescriptions for Abilify, Cogentin,
and Trazodone because “to a reasonable degree of medical certainty, I considered that prescribing
the medication . . . would be more likely to cause harm than benefit, and the fact that [Plaintiff]
had reported no benefit on a high dose of antipsychotic medication as well as on one occasion
reported no auditory hallucination symptoms while being on no antipsychotics.” (Dkt. No. 102-3
¶ 16.) In Defendant Gillani’s opinion, the June 28, 2010, incident was Plaintiff’s attempt “to
obtain the medically contraindicated medications which he had taken immediately prior to his
incarceration.” (Dkt. No. 102-3 ¶ 18.)
As this Court noted in its decision on Defendants’ motion to dismiss (Dkt. No. 65 at 14),
“determinations of medical providers concerning the care and safety of patients are given a
presumption of correctness.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d
303, 312 (S.D.N.Y. 2001). Plaintiff was given an opportunity to develop the record in this case
to raise a triable issue that, as he alleged, “Defendants’ decisions regarding his medication were
based ‘on factors unrelated to prisoners[’] medical needs[,] namely [the] cost of medication and
contracts related to procur[e]ment of medications . . . .’” (Dkt. No. 65 at 15, citing Dkt. No. 31 at
21.) Plaintiff has not met that burden. Therefore, I recommend that the Court grant Defendants’
motion for summary judgment and enter judgment in their favor.
ACCORDINGLY, it is
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 102) be
GRANTED; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of Kelsey v. City of New York,
20

No. 03-CV-5978, 2006 U.S. Dist. LEXIS 91977, 2006 WL 3725543 (E.D.N.Y. Dec.18, 2006).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72, 6(a).

Dated: August 30, 2013
Syracuse, New York

21

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Page 1
Not Reported in F.Supp.2d, 2006 WL 3725543 (E.D.N.Y.)
(Cite as: 2006 WL 3725543 (E.D.N.Y.))

Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Valerie KELSEY, Theodore Goddard, Individually,
and as Co-Administrators of the Estate of Curtis
Goddard, Plaintiffs,
v.
The CITY OF NEW YORK, P.O. Thomas Marrone,
Shield # 07784, Sergeant George Kallas, Shield #
01144, Lt. James Marron, P.O. Michael Sykora,
Shield # 18496, P.O. Cory Fink, Shield # 14713, P.O.
Martin Halligan, Shield # 18367, P.O. Paul Bernal,
Shield # 10349, P.O. Matthew Lindner, Shield #
19417, P.O. Shawline Senior, Shield # 02385, Defendants.
No. 03-CV-5978(JFB)(KAM).
Dec. 18, 2006.
Kenechukwu Chudi Okoli, Esq., New York, NY, for
plaintiffs.
Jennifer Amy Rossan, Esq., Assistant Corporation
Counsel of the City of New York for Michael A.
Cardozo, Esq., Corporation Counsel of the City of
New York, New York, NY, for defendants.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
*1 Plaintiffs Valerie Kelsey and Theodore Goddard bring this action on behalf of themselves and the
estate of Curtis Goddard, alleging, inter alia, claims
for violation of civil rights under 42 U.S.C. § 1983 and
a pendent wrongful death/negligence claim under state
law. Defendants move for summary judgment on all
claims. For the reasons stated below, summary judg-

ment is granted as to plaintiffs' claim alleging violation of § 1983. Further, with the dismissal of the federal claim from the instant lawsuit, the Court exercises
its discretion to decline jurisdiction over the remaining
state claim arising in negligence, and, thus, dismisses
that claim without prejudice.
I. BACKGROUND
The following facts are undisputed unless otherwise indicated. On August 15, 2002, Curtis Goddard
(“Goddard”) arrived at and entered an apartment on
Beach Channel Drive (“the apartment”), a residence at
which Maria Buffamante (“Buffamante”) lived with
her children. (See Defs.' Rule 56.1 Statement of Material Facts (“Defs.' 56.1 Stmt.”), ¶¶ 7, 11.) Goddard
lived occasionally at the apartment as well, as
Buffamante's boyfriend. (See Pls.' Rule 56.1 Statement of Material Facts (“Pls.' 56.1 Stmt.”), ¶ 7; see
also Defs.' 56.1 Stmt., ¶ 9.) On the previous day,
August 14, 2002, Buffamante had informed Goddard
that their relationship was over. (See Pls.' 56.1 Stmt., ¶
10(a); see also Defs.' 56.1 Stmt., ¶ 10.) At the time
Goddard entered the apartment, it was occupied by
Buffamante, her children, and her friends Tyisha
Safford, Leonar Jesus Espinal and an individual
known as “Blue.” (See Defs.' 56.1 Stmt., ¶ 8.) After
Goddard entered the apartment, Buffamante, Espinal
and “Blue” asked Goddard to leave the premises. (See
id., ¶ 12.) Goddard refused, and brandished a firearm.FN1 (See Defs.' 56.1 Stmt., ¶ 13; see also Pls.' 56.1
Stmt., ¶ 13(b).)
FN1. According to the deposition testimony
of Buffamante, Goddard pulled his gun after
he observed “Blue” reach into his pocket in a
manner appearing to indicate that he was
reaching for a knife. (See Declaration of K.C.
Okoli (“Okoli Decl.”), Ex. J at 71-73.) After
he pulled the firearm, Goddard forced “Blue”
to go out into the hallway outside the apart-

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(Cite as: 2006 WL 3725543 (E.D.N.Y.))
ment, and then locked the door. (See id. at
73.)
New York City Police Department Sergeant
George Kallas and Police Officers Thomas Marrone,
Michael Sykora, Cory Fink, Martin Halligan, and Paul
Bernal responded to a call regarding a dispute with a
firearm at the apartment. (See Defs.' 56.1 Stmt., ¶ 5.)
As the officers arrived at the apartment, “Blue” informed them that there was an individual with a gun
inside the apartment. (See Defs.' 56.1 Stmt., ¶ 14; see
also Pls.' 56.1 Stmt., ¶ 14.) Although it is disputed
whether or not the police officers knocked on the
apartment door, it is undisputed that the door was
opened by Espinal, and the occupants of the apartment, save Goddard, ran out. (See Defs.' 56.1 Stmt., ¶
15; see also Pls.' 56.1 Stmt., ¶ 15.) The officers entered the apartment, and observed Goddard run towards the kitchen.FN2 (See Defs.' 56.1 Stmt., ¶ 16.)
FN2. Plaintiffs dispute whether or not Sergeant Kallas followed the other officers into
the apartment, but do not cite anything from
the record to substantiate this claim, as required in a statement submitted pursuant to
Rule 56.1. Local Civil Rule 56.1(d) (“Each
statement made by the movant or opponent
pursuant to Rule 56.1(a) and (b), including
each statement controverting any statement
of material fact, must be followed by citation
to evidence which would be admissible, set
forth as required by Federal Rule of Civil
Procedure 56(e).”). Notwithstanding that
defect, the Court notes that the factual dispute regarding whether Sergeant Kallas followed the other officers into the apartment
has no bearing on the adjudication of the instant motion for summary judgment.
The officers attempted to arrest Goddard in the
kitchen, who resisted and refused to be handcuffed.
(See id.., ¶ 17.) The officers were eventually successful in restraining and handcuffing Goddard. (See

id., ¶ 22.) The officers searched Goddard and seized a
sock filled with ammunition, a ski mask, his gun, and a
razor blade.FN3 (See Defs.' 56.1 Stmt., ¶¶ 22-23, 28;
see also Pls.' 56.1 Stmt., ¶¶ 22-23, 28.)
FN3. Plaintiffs dispute the location from
which these items were recovered. (See Pls.'
56.1 Stmt., ¶¶ 22-23, 28.) However, plaintiffs
do not dispute the fact that these items were
in fact seized by the officers from Goddard,
which is all that is necessary to address the
instant motion for summary judgment.
*2 Goddard was escorted out of the apartment
with his hands cuffed behind his back. (See Defs.' 56.1
Stmt., ¶ 24.) As he was being escorted out of the
apartment, Goddard attempted to grab Officer Barnal's
gun, while exclaiming “shoot me, kill me.” (See id., ¶
25.) Officer Marrone held Goddard until he was able
to confirm that Officer Bernal had control of his gun.
(See id., ¶ 26.) Goddard was brought out into the
hallway, and was positioned facing the wall, approximately four to five feet from a stairwell door.
(See Defs.' 56.1 Stmt., ¶ 27; see also Pls.' 56.1 Stmt., ¶
27(a)). While placed facing the wall, Goddard was
surrounded by Officers Sykora, Fink, Hallagan and
Bernal in a semi-circle. (See Defs.' 56.1 Stmt., ¶ 29.)
Sergeant Kallas instructed the officers to physically
hold onto Goddard. (See id., ¶ 30.) Pursuant to that
order, Officer Sykora held onto Goddard while he was
stood against the wall. (See id., ¶ 32.)
Sergeant Kallas requested that the Emergency
Services Unit and an ambulance respond to the scene
to assist with an emotionally disturbed person (EDP).
(See Defs.' 56.1 Stmt., ¶ 31; see also Pls.' 56.1 Stmt., ¶
31.) Kallas and Lieutenant Marron then went down the
hall to interview the occupants of the apartment. (See
Defs.' 56.1 Stmt., ¶ 39.) After approximately five
minutes, Goddard was turned around, so that he faced
the surrounding officers. (See Defs.' 56.1 Stmt., ¶ 33.)
Officer Sykora spoke to Goddard to ascertain what
had happened prior to the arrival of the police at the

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(Cite as: 2006 WL 3725543 (E.D.N.Y.))
apartment. (See id.) The parties agree that Goddard
was relatively calm, although plaintiffs point to evidence in the record indicating that he was sweating
and fidgety. (See Defs.' 56.1 Stmt., ¶ 34; see also Pls.'
56.1 Stmt., ¶ 34.) Officer Sykora released his physical
hold on Goddard. (See Defs .' 56.1 Stmt., ¶ 35.)
Goddard then made a sudden move at Sykora, and
Officer Fink pushed Sykora out of the way, in order to
prevent contact. (See Defs.' 56.1 Stmt., ¶¶ 36-37; see
also Pls .' 56.1 Stmt., ¶¶ 36-37.) Goddard proceeded to
escape from the officers, and ran towards the stairwell
door. (See Defs.' 56.1 Stmt., ¶ 37.) According to defendants, Officer Shawline Senior was standing next
to the stairwell door, and attempted to grab Goddard
as he ran through the stairwell door, but failed. FN4 (See
Defs.' 56.1 Stmt., ¶ 38.)
FN4. Plaintiffs assert that no officer attempted to grab Goddard when he escaped,
citing the deposition testimony of Officer
Fink. (See Pls.' 56.1 Stmt., ¶ 38.) That testimony proceeded as follows:
Q. When Mr. Goddard came off the wall,
did you attempt to grab him?
A. No.
Q. Did you see any officer attempt to grab
him?
A. No.
(Okoli Decl., Ex. D at 32.) On the other
hand, defendants cite the deposition of
Officer Senior, who testified that she attempted to grab Goddard but her hand
slipped off his shirt, and Officer Bernal,
who testified that he observed Goddard run
through the door while being grasped by
Officer Senior. (See Affirmation of Jennifer Rossan (“Rossan Decl.”), Ex. J at 58;

Ex. L. at 16-21.)
Sykora, Fink, Bernal, Halligan, Marrone, Lindner
and Marron immediately chased after Goddard as he
ran up the stairway to the rooftop of the building,
while rear-cuffed. (See Defs.' 56.1 Stmt., ¶ 42.) Officer Sykora observed Goddard lean over a fence on
the roof, and then twist his body so that he fell off the
rooftop. (See id., ¶ 44.) Goddard died as a result of
injuries he assumed from the fall. (See Okoli Decl.,
Ex. O.)
The New York Police Department investigated
the incident, and disciplined Officer Sykora for failing
and neglecting to safeguard a prisoner, resulting in the
loss of the prisoner. (See Pls.' 56.1 Stmt., ¶ 54.) The
report noted that Sykora was responsible for securing
Goddard, and that the circumstances warranted him
physically holding on to Goddard. (See Okoli Decl.,
Ex. M.) Further, the report noted that it was Sykora's
duty to maintain physical control of Goddard, since he
was the one holding Goddard when Kallas gave him
the order to not let go of him. (See id.) The same report
investigated the actions of Fink, Kallas, Marrone,
Halligan, Bernal, Linder, Senior and Marron, but
found that discipline was not warranted as to those
officers. (See id.)
*3 Valerie Kelsey and Theodore Goddard, the
co-administrators of Curtis Goddard's estate, filed the
instant action, against the City of New York and the
individual officers mentioned above, alleging causes
of action under 42 U.S.C. §§ 1983 and 1985, based
upon the following: (1) deliberate indifference to
Goddard's safety needs; (2) the failure by the City to
train and supervise the defendants; (3) the use of excessive force when handcuffing Goddard; and (4) a
conspiracy by the defendants to not recapture Goddard
after his escape from custody and/or a conspiracy to
let Goddard fall from the rooftop. In addition, the
complaint alleged a pendent claim fornegligence
arising under state law.

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(Cite as: 2006 WL 3725543 (E.D.N.Y.))

Defendants moved for summary judgment on all
claims. In plaintiffs' opposition papers, they explicitly
abandoned all claims except “1) damages for wrongful
death based upon defendants' deliberate indifference
to his safety needs, pursuant to 42 U.S.C. § 1983, and
2) damages for the wrongful death of the decedent due
to the negligence of the individual defendants.” (Pls.'
Opp. Br., at 2.)
The case was re-assigned to the undersigned from
the Honorable Carol B. Amon on February 10, 2006.
The Court held oral argument on the instant motion as
to the two remaining claims on August 11, 2006.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure
56(c), a court may not grant a motion for summary
judgment unless “the pleadings, depositions, answers
to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is
entitled to judgment as a matter of law.”
FED.R.CIV.P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006).
The moving party bears the burden of showing that he
or she is entitled to summary judgment. See Huminski
v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). The court
“is not to weigh the evidence but is instead required to
view the evidence in the light most favorable to the
party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty America v.
Town of West Hartford, 361 F.3d 113, 122 (2d
Cir.2004) (citation omitted); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986) (stating that summary judgment is
unwarranted if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”).
Once the moving party has met its burden, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material
facts ... [T]he nonmoving party must come forward

with specific facts showing that there is a genuine
issue for trial.” Caldarola v. Calabrese, 298 F.3d 156,
160 (2d Cir.2002) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)).
III. DISCUSSION
*4 As a threshold matter, the Court notes that
defendants moved for summary judgment on all
claims contained within the Amended Complaint. In
their opposition papers, plaintiffs explicitly abandoned all of their claims, save two: (1) plaintiffs' claim
under 42 U.S.C. § 1983 against the individual officers,
alleging deliberate indifference to Goddard's safety
needs under the Fourteenth Amendment; and (2)
plaintiffs' state law negligence claim for the alleged
wrongful death of Goddard, as against both the City of
New York and the individual officer defendants. (See
Memorandum of Law of Plaintiffs in Opposition to
Defendants' Motion for Summary Judgment (“Pls.'
Opp. Mem.”) at 1-2.) The Court proceeds to address
defendants' motion with respect to each of the remaining claims in turn.
A. Failure to Protect Under 42 U.S.C. § 1983
Section 1983 “is not itself a source of substantive
rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United
States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 145 n. 3,
99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Section
1983provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law.

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(Cite as: 2006 WL 3725543 (E.D.N.Y.))
42 U.S.C. § 1983. For claims under § 1983, a
plaintiff must prove “that (1) the challenged conduct
was attributable at least in part to a person who was
acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the
Constitution of the United States.” Snider v. Dylag,
188 F.3d 51, 53 (2d Cir.1999) (citation omitted).
Plaintiffs' remaining § 1983 claim alleges a violation of Goddard's substantive due process rights
under the Fourteenth Amendment. Specifically,
plaintiffs allege that the defendant officers failed to
protect Goddard from himself, while he was in custody. When in the custody of police, an arrestee has
the right to care and protection, including protection
from suicide. FN5 Cook ex rel. Estate of Tessier v.
Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115
(11th Cir.2005) (“[P]retrial detainees like [plaintiff]
plainly have a Fourteenth Amendment due process
right ‘to receive medical treatment for illness and
injuries, which encompasses a right to psychiatric and
mental health care, and a right to be protected from
self-inflicted injuries, including suicide.’ ”) (quoting
Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th
Cir.1994) (citations omitted)); see also Hare v. Corinth, Miss., 74 F.3d 633, 647 & 648 n. 3 (5th Cir.1996)
(collecting cases involving claims for failure to protect
individuals in custody from suicide). In the detainee
suicide context, the relevant inquiry is whether defendants were deliberately indifferent to the medical
need of the detainee to be protected from himself. See
Weyant, 101 F.3d at 856.
FN5. The bulk of cases dealing with the right
of a person in custody for protection from
suicide analyze the issue as an Eighth
Amendment claim dealing with the inadequate provision of medical care. See, e. g.,
Woodward v. Correctional Medical Servs. of
Ill., Inc., 368 F .3d 917, 926 (7th Cir.2004);
Olson v. Bloomberg, 339 F.3d 730, 735 (8th
Cir.2003). Although Eighth Amendment
protections only apply to individuals who

have been convicted, the Second Circuit has
explicitly noted that pretrial detainees are
protected by the Due Process Clause, and
their rights to medical treatment are “at least
as great as those of a convicted prisoner.”
Weyant v. Okst, 101 F.3d 845, 856 (2d
Cir.1996) (citations omitted). “Thus, the official custodian of a pretrial detainee may be
found liable for violating the detainee's due
process rights if the official denied treatment
needed to remedy a serious medical condition and did so because of his deliberate indifference to that need.” Id. (citation omitted); see also Cuoco v. Motisgugu, 222 F.3d
99, 106 (2d Cir.2000) (noting that standards
from Eighth Amendment context apply to
claims brought by pretrial detainees under
the Fourteenth Amendment). Based on this
logic, other Circuits have applied the same
standards applicable to prisoner suicide cases
arising under the Eighth Amendment to
claims brought by individuals in custody
prior to conviction under the Fourteenth
Amendment. See, e.g., Cook ex rel. Estate of
Tessier v. Sheriff of Monroe Cty, Fla., 402
F.3d 1092, 1115 (11th Cir.2005); Barrie v.
Grand Cty, Ut., 119 F.3d 862, 868 (10th
Cir.1997); Partridge v. Two Unknown Police
Oficers of the City of Houston, 791 F.2d
1182, 1187 n. 20 (5th Cir.1986).
*5 Defendants argue that summary judgment
should be granted in their favor on plaintiffs' § 1983
claim because no jury could reasonably find that defendants acted with deliberate indifference to the
safety needs of the decedent.FN6 “ ‘Deliberate indifference’ describes a mental state more blameworthy
than negligence; but a plaintiff is not required to show
that the defendant acted for the ‘very purpose of
causing harm or with knowledge that harm will result.’ “ Hernandez v. Keane, 341 F.3d 137, 144 (2d
Cir.2003) (quoting Farmer v. Brennan, 511 U.S. 825,
835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)); Brock

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(Cite as: 2006 WL 3725543 (E.D.N.Y.))
v. Wright, 315 F.3d 158, 164 (2d Cir.2003) (
“[N]egligence is not deliberate indifference.”) “Deliberate indifference is ‘a state of mind that is the
equivalent of criminal recklessness.’ “ Hernandez,
341 F.3d at 144 (quoting Hathaway v. Coughlin, 99
F.3d 550, 553 (2d Cir.1996)). “[D]eliberate indifference involves unnecessary and wanton infliction of
pain, or other conduct that shocks the conscience.”
Hathaway, 99 F.3d at 553 (2d Cir.1996). In order for
the plaintiffs to satisfy their burden to show deliberate
indifference, they must demonstrate that each charged
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.” Johnson v.
Wright, 412 F.3d 398, 403 (2d Cir.2005) (quoting
Farmer, 511 U.S. at 837); accord Phelps v. Kapnolas,
308 F.3d 180, 185-86 (2d Cir.2002).
FN6. This argument assumes, arguendo, that
the defendants owed a duty to protect to the
plaintiff from himself at the time of the accident, even though he was no longer in their
physical custody because of his escape. The
general rule is that the Fourteenth Amendment solely imposes a limitation on the
State's power to act, and does not create an
affirmative obligation on the State to protect
the public from harm. DeShaney v. Winnebago Dep't of Soc. Servs., 489 U.S. 189, 196
(1989) (“[T]he Due Process Clauses [of the
Fifth and Fourteenth Amendments] generally
confer no affirmative right to governmental
aid, even where such aid may be necessary to
secure life, liberty, or property interests of
which the government itself may not deprive
the individual.”) Since state actors did not
directly kill the decedent-he committed suicide-in order for plaintiffs to proceed, they
must demonstrate that they are not subject to
the general rule that “a State's failure to protect an individual against private violence

simply does not constitute a violation of the
Due Process Clause.” Id. at 197; accord Pena
v. DePrisco, 432 F.3d 98, 107-08 (2d
Cir.2005). However, defendants concede that
they did owe a duty when they had decedent
in custody, based upon the “special relationship” theory of liability which escapes
the general rule asserted by DeShaney, under
which a State has a constitutional obligation
to protect an individual from private actors.
See Ying Jing Gan v. City of New York, 996
F.2d 522, 533 (2d Cir.1993). Under the
“special relationship” theory, the Supreme
Court and Second Circuit have both “recognized that a constitutionally significant special relationship generally involves some
type of custody or other restraint on the individuals' ability to fend for themselves.” Matican v. City of New York, 424
F.Supp.2d 497, 504 (E.D.N.Y.2006) (citing
DeShaney, 489 U.S. at 200 (“The affirmative
duty to protect arises not from the State's
knowledge of the individual's predicament or
from its expressions of intent to help him, but
from the limitation which it has imposed on
his freedom to act on his own behalf.”); Ying
Jing Gan, 996 F.2d at 533 (“Special relationships that have been recognized to give
rise to a governmental duty to protect against
third-person attacks have included custodial
relationships such as a prison and inmate or a
mental institution and involuntarily committed patient, and the relationship between a
social service agency and a foster child.”)
Although the defendants concede that their
affirmative action of taking Goddard into
custody formed a special relationship which
engendered a duty to protect, they argue that
the “special relationship” and accompanying
duty terminated at the moment that decedent
voluntarily removed himself from custody by
escaping. The defendants have not been able
to provide any authority directly supporting

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the proposition that an individual's escape
from custody terminates the duty to protect
under the Fourteenth Amendment. However,
the Court does not reach the issue of whether
the duty is terminated because, even assuming arguendo that the defendant officers had
a duty to protect the decedent, the facts of this
case do not permit a jury determination of
deliberate indifference, as discussed infra.

his life ended through “suicide by cop.” In fact, the
actions of Sergeant Kallas support the conclusion that
the defendant officers were aware of Goddard's suicidal tendencies because he requested emergency
services to respond to assist with an emotionally disturbed person. Thus, the proper inquiry in the instant
motion for summary judgment is whether a rational
jury could find that insufficient preventative measures
were taken by the defendant officers, such that they
were deliberately indifferent to the risk of suicide.

In the detainee suicide context, deliberate indifference may exist pursuant to one of two broad fact
scenarios. See Rellergert v. Cape Girardeau County,
Mo., 924 F.2d 794, 796 (8th Cir.1991). First, state
officials could be deliberately indifferent to the risk of
suicide by failing to discover an individual's suicidal
tendencies. See id. (collecting cases). Alternatively,
the detaining authorities could have discovered and
have been aware of the suicidal tendencies, but could
be deliberately indifferent in the manner by which
they respond to the recognized risk of suicide, an
inquiry which focuses on the adequacy of preventative
measures. See id. In the instant case, defendants argue
that they were not deliberately indifferent in either
respect, specifically they argue: (1) that the decedent's
acts were more “homicidal” than “suicidal,” and so
that plaintiffs cannot establish that defendants were
deliberately indifferent to decedent's suicidal tendencies; and (2) that the actions of the officers in dealing
with the threat of suicide were reasonable and did not
exhibit “deliberate or willful lack of concern” to the
safety needs of decedent.

*6 Where officers take affirmative and deliberate
steps to protect inmates from suicide, other circuits
have generally found deliberate indifference lacking,
even in the face of potentially negligent actions by the
officers and/or a failure to comply with standard policies or procedures. For example, in Rellergert, 924
F.2d at 797, the Eighth Circuit assumed, drawing all
inferences in favor of a plaintiff's jury verdict, that an
officer let an inmate out of his sight with a bedsheet,
notwithstanding the fact that the inmate was on suicide
watch. The Eighth Circuit noted that the evidence
supported the statement that the officer had conflicting
responsibilities to which he had to attend, which prevented him from leaving his observation booth and
monitoring the inmate. See id. Under these facts, the
Eighth Circuit affirmed the district court's judgment
notwithstanding the verdict, noting that while “the
jury might reasonably conclude that [the defendant
officer] acted imprudently, wrongly, or negligently,”
the evidence could not support a finding of deliberate
indifference as a matter of law. See id. at 797-98.

As a threshold matter, the Court rejects defendants' argument that the record does not support a
finding that the officers were aware of Goddard's
suicidal tendencies. The defendants do not dispute that
Goddard exclaimed “shoot me, kill me” to the defendant officers when he was trying to grab Officer
Bernal's gun. (See Defs.' 56.1 Stmt., ¶ 25.) Viewing
that statement in a light most favorable to the plaintiffs, a reasonable jury could conclude that decedent
was exhibiting a readily ascertainable desire to have

Similarly, in Brown v. Harris, 240 F.3d 383, 390
(4th Cir.2001), the Fourth Circuitasserted the proposition that even where an officer is aware of the substantial risk of serious harm, he or she may avoid
liability “if he responded reasonably to the risk of
which he knew.” The Fourth Circuit noted that the
defendant officer had responded to the decedent's
medical needs-volatility from drug withdrawal and a
suicide risk of some kind-by placing him under
“medical watch,” which involved constant video

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surveillance. See id. Although it was noted that the
officer failed to place the inmate in a paper gown, as
was the ordinary custom with suicidal detainees, the
court stated that the officer's failure to take certain
precautions do not create a jury issue as to deliberate
indifference “if his actions were nonetheless reasonable in response to the risk of which he actually knew.”
Id. The officer “simply took less action than he could
have, and by his own admission, should have ... at
most [the defendant officer's] failure to take additional
precautions was negligent, and not deliberately indifferent, because by placing [the decedent] on constant
video surveillance, he simply did not ‘disregard [ ] an
excessive risk to [decedent's] health or safety.’ “ Id. at
390-91 (quoting Farmer, 511 U.S. at 837). Accordingly, the Fourth Circuit concluded that there was no
basis for a reasonable finder of fact to conclude that
the defendant officer acted with deliberate indifference. See id. at 391.
Moreover, in Liebe v. Norton, 157 F.3d 574, 578
(8th Cir.1998), the Eighth Circuit held that prison
officials did not demonstrate deliberate indifference
and were entitled to qualified immunity where a detainee classified as a suicide risk was able to hang
himself on a metal-framed electrical conduit in a
temporary holding cell. In affirming the district court's
decision to grant summary judgment for the defendants, the Eighth Circuit recognized the high burden
imposed by the deliberate indifference standard and
emphasized that the court must closely examine the
actions taken by the officials to prevent suicide, even
if other steps were omitted:
*7 Appellant contends that the district court erred in
focusing on the efforts which [the prison official]
undertook. Instead, Appellant points to all of the
actions which [the official] should have taken. Unfortunately, [the official] did not have the benefit of
twenty-twenty hindsight, as we do now. Thus, we
must examine those precautionary actions which
were undertaken. Appellant seems to ignore the fact
that [the official] did classify [the detainee] as a

suicide risk, and he did take the preventive measures
of placing him in the temporary holding cell and
removing his shoes and belt. Additionally, [the official] periodically checked on [the detainee]. While
[the official] may have been negligent in not
checking on [the detainee] more often, or in failing
to notice the exposed electrical conduit in the temporary holding cell, we cannot say as a matter of law
that his actions were indifferent. To the contrary,
[the official's] actions constituted affirmative, deliberate steps to prevent [the detainee's] suicide.
Despite [the official's] ultimate failure to prevent
that suicide, [the official] did not act with deliberate
indifference.
Id. at 578.
Finally, in Rhyne v. Henderson County, 973 F.2d
386, 393-94 (5th Cir.1992), the Fifth Circuit held that,
as a matter of law, a jury could not find deliberate
indifference whereofficials checked suicidal inmates
only every ten minutes. The Fifth Circuit noted that,
although under the facts of the case, periodic checks
may have been in fact inadequate and could form the
basis of a sound negligence claim, the periodic checks
reflected concern, rather than apathy for inmate safety,
and no evidence indicated that frequent periodic
checks were obviously inadequate. See id.
Viewing the facts of this case in a light most favorable to the plaintiffs, even though the steps taken
by the police in hindsight were insufficient to prevent
Goddard from committing suicide, there is no reasonable basis for a jury to find that the defendant
officers exhibited deliberate indifference to Goddard's
safety needs. It is undisputed that the defendants took
a number of affirmative steps towards protecting
Goddard, including the following: (1) they seized
dangerous items that he possessed, including a firearm
and a razor blade; (2) they handcuffed him behind his
back; (3) they called for the assistance of the Emergency Services Unit (“ESU”); (4) they cornered him
against a wall in the hallway, surrounded by four

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police officers while they waited for ESU; and (5)
after Goddard escaped, seven officers immediately
chased him as he ran up the stairway to the roof. (See
Defs.' 56.1 Stmt., ¶¶ 22-23, 27-29, 42; see also Pls.'
56.1 Stmt., ¶¶ 22-23, 27-29, 42.) These actions exhibited concern, rather than apathy, for Goddard's
safety needs.
The real focus of plaintiffs' deliberate indifference claim is the failure of Officer Sykora to physically hold Goddard, rather than merely surrounding
him with officers. Although in hindsight it may have
been more prudent for Sykora to maintain a physical
hold on Goddard, despite the fact that he appeared to
be calming down, a reasonable finder of fact could not
conclude that the steps taken were obviously inadequate to the risk that Goddard would be able to extricate himself from custody and take his own life by
running up the stairwell and jumping off the roof of
the building.FN7 See Taylor v. Wausau Underwriters
Ins. Co., 423 F.Supp.2d 882, 896-97 (E.D.Wis.2006)
(finding lack of deliberate indifference as a matter of
law where it was not foreseeable that the actions of the
state official-allowing cell to be dark for a few
minutes-would allow for decedent's suicide). In light
of the significant steps taken to protect Goddard, including the belief that surrounding him against a wall
would be sufficient to prevent him from escaping, the
mere fact that these measures failed does not provide a
basis from which a reasonable jury could conclude
that the defendants were deliberately indifferent. See
Rellergert, 924 F.2d at 797 (“It is deceivingly inviting
to take the suicide, ipso facto, as conclusive proof of
deliberate indifference. However, where suicidal
tendencies are discovered and preventive measures
taken, the question is only whether the measures taken
were so inadequate as to be deliberately indifferent to
the risk.”).
FN7. Although plaintiffs argue there is evidence that Officer Sykora knew the stairwell
door was broken from previous experience in
the building, plaintiffs have not pointed to

any evidence in the record which would
suggest that Sykora or the other police officers were aware that, if Goddard was able
to escape to the stairwell doorway while
handcuffed, he would be able to obtain ready
access to the roof.
*8 Although plaintiffs place emphasis on the fact
that Officer Sykora's decision to release his physical
hold on Goddard was contrary to Sergeant Kallas'
instruction, the failure to follow that instruction, by
itself, does not provide a sufficient basis for a jury to
find deliberate indifference. For example, in Belcher
v. Oliver, 898 F.2d 32, 35-36 (4th Cir.1990), the officers' failure to follow the instruction of the police
chief to remove shoelaces and belts from prisoners
resulted in a prisoner's suicide. In reversing the district
court's denial of summary judgment, the Fourth Circuit noted that “a failure to carry out established procedures, without more, does not constitute ‘deliberate
disregard for the possibility’ that [the prisoner] ‘would
take his own life.’ “ Id. at 36 (quoting State Bank of St.
Charles v. Camic, 712 F.2d 1140, 1146 (7th
Cir.1983)). One would not generally view a handcuffed prisoner, whose weapons had been removed
and was surrounded by police in a hallway, to be at
risk for suicide. Given all the other steps taken by the
officers to prevent Goddard from harming himself, the
failure to follow Sergeant Kallas' instruction to hold
Goddard cannot support a finding of “deliberate indifference” by a jury.FN8
FN8. To the extent that plaintiffs' claim of
deliberate indifference attaches to the decision of Officer Fink to push Officer Sykora
out of the way when decedent lunged at him,
the Court notes that in that context of emergency situations in which officers must make
quick decisions, a higher level of culpability
is required to make a showing of deliberate
indifference. County of Sacramento v. Lewis,
523 U.S. 833, 851 (1998) ( “[A]ttention to
the markedly different circumstances of

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normal pretrial custody and high-speed law
enforcement chases shows why the deliberate
indifference that shocks in one case is less
egregious in the other.... As the very term
‘deliberate indifference’ implies, the standard is sensibly employed only when actual
deliberation is practical ...”) (internal citations and footnote omitted). There is absolutely no evidence that Officer Fink sought to
facilitate Goddard's escape by pushing
Sykora out of Goddard's way as he charged
forward; rather, the only evidence in the
record, and the only reasonable inference
from the facts, is that it was a sudden reaction
to ensure officer safety. Consequently, the
Court finds that the decision made by Officer
Fink in the heat of the moment out of his
concern for officer safety cannot rise to the
level of culpability required for a finding of
deliberate indifference, as a matter of law.
In sum, had the officers acted differently, the
tragedy of Goddard's death might have been prevented. The Court is cognizant of the great caution
that district courts must exercise in granting summary
judgment, especially where state of mind is the core
issue. See Bryant v. Maffuci, 923 F.2d 979, 985 (2d
Cir.1991); Quarles v. General Motors Corp., 758 F.2d
839, 840 (2d Cir.1985). However, the record does not
include evidence from which a reasonable jury could
find that the defendant officers were deliberately indifferent such that the plaintiffs' constitutional claim
may proceed. Far from being deliberately indifferent,
the officers took several steps, though insufficient in
hindsight, to ensure Goddard would not hurt himself
or others once in custody. A reasonable jury could not
find deliberate indifference where the officers removed dangerous items from Goddard, handcuffed
him, called for ESU, and surrounded him with at least
four officers while waiting for ESU. As the Fourth
Circuit noted in Belcher, “[w]e do not for one moment
dismiss the pain of these events for those involved”
and “hold only that their tragic character cannot be

ameliorated by efforts to affix constitutional blame
where it does not belong.” Belcher, 898 F.2d at 36.
That is precisely the situation here. Accordingly,
summary judgment is granted with respect to plaintiffs' remaining claim arising under § 1983.FN9
FN9. Defendants argue that, in deciding the
motion for summary judgment, the Court
should not consider the testimony of the police liability expert. Specifically, defendants
assert that “the expert testimony is speculative, conjectural, illogical, and not grounded
in any authoritative source or expertise.”
(Defendants' Reply Brief, at 18.) The Court
finds that, even if the expert's testimony is
admissible, the conclusory assertions contained therein are insufficient to create any
issues of fact on the question of deliberate
indifference.
B. Qualified Immunity
Defendants also argue that, even if the Court
found a constitutional duty to prevent someone from
escaping custody and that their conduct violated
Goddard's constitutional right to be free from harm to
himself even after escaping custody, their conduct
should still be entitled to qualified immunity. The
Court agrees.
*9 It is well settled that a police officer may be
shielded from liability for civil damages if “his conduct did not violate plaintiff's clearly established
rights or if it would have been objectively reasonable
for the official to believe that his conduct did not
violate plaintiff's rights.” Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir.2003). “The availability of the defense [of qualified immunity] depends
on whether a reasonable officer could have believed
his action to be lawful, in light of clearly established
law and the information he possessed.” Weyant v.
Okst, 101 F.3d at 858 (internal quotation marks, citation and alterations omitted).

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Thus, when a qualified immunity defense is
raised, a court must conduct a two-fold inquiry. First,
the court must ascertain whether the facts, “[t]aken in
the light most favorable to the party asserting the
injury, ... show the officer's conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201,
121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Second, even
if a constitutional right has been violated, the court
should still find qualified immunity exists “ ‘if either
(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for
the defendant to believe that this action did not violate
such law.’ “ Anderson v. Recore, 317 F.3d 194, 197
(2d Cir.2003) (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.2001)).
The Court has already concluded that, taking the
proof in the light most favorable to plaintiffs, they
have failed to demonstrate a violation of a constitutional right in this case under the deliberate indifference standard. Although the inquiry could end there,
the Court will proceed to analyze the defendants'
conduct under the second part of the qualified immunity test because it demonstrates that, even if
Goddard's constitutional right was violated, the officers are entitled to qualified immunity.
Under the second part of the qualified immunity
test, “[a] right is clearly established if (1) the law is
defined with reasonable clarity, (2) the Supreme Court
or the Second Circuit has recognized the right, and (3)
‘a reasonable defendant [would] have understood
from the existing law that [his] conduct was unlawful.’
“ Anderson, 317 F.3d at 197 (alterations in original)
(quoting Young v. County of Fulton, 160 F.3d 899, 903
(2d Cir.1998)); accord LaBounty v. Coughlin, 137
F.3d 68, 73 (2d Cir.1998). Moreover, the right must be
clearly established “in light of the specific context of
the case.” Saucier, 533 U.S. at 201.
As noted earlier, the Second Circuit has found

that pretrial detainees have the right to medical
treatment for serious medical needs under the Fourteenth Amendment, see, supra, note 5, which would
clearly include treatment to prevent suicide. Thus, a
pretrial detainee's right to be free from deliberate
indifference by police officers to suicide, while in
custody, is a clearly established right. Here, however,
Goddard committed suicide after he escaped from
police custody.FN10 As discussed supra, the Court is
unaware of any Supreme Court or Second Circuit
cases which have found that a detainee has the right to
medical attention, including prevention of suicide,
after he has escaped from custody. See, supra, note 6;
see also Purvis v. City of Orlando, 273 F.Supp.2d
1321, 1327 (M.D.Fla.2003) (“[Police officer] cannot
be held accountable for [arrestee's] actions subsequent
to his escape” where “[officer] had no way of knowing
[arrestee] would jump the fences he jumped, or enter
the retention pond where he drowned.”). Although
such a right may exist, the Court does not find any
basis to conclude that such a right was “clearly established” at the time the incident took place in the instant
case.
FN10. In its earlier discussion of the duty
owed to Goddard by defendants the Court
assumed, without deciding, that Goddard
remained in custody even after he had escaped. See, supra, note 6. The Court made
that assumption for the sole purpose of considering plaintiffs' claim that defendants
were deliberately indifferent toward Goddard's medical need.
*10 Even assuming arguendo that such a right
was clearly established, the officers here would still be
shielded by qualified immunity because it was objectively reasonable for them to believe that their conduct
was not deliberately indifferent to Goddard's needs.
See McKenna v. Wright, 386 F.3d 432, 437 (2d
Cir.2004) (“[T]o establish their qualified immunity
defense, the defendants must show that it was ‘objectively reasonable’ for them to believe that they had not

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acted with the requisite deliberate indifference.”)
(citation omitted). As noted earlier, the key decision
being challenged here is Officer Sykora's decision not
to maintain a hold on Goddard while they waited for
ESU to arrive. Against the backdrop of the deliberate
indifference standard, that decision cannot be viewed
as objectively unreasonable in light of the other evidence in the case. See Rellergert, 924 F.2d at 797
(“While we conclude that the law is clearly established
that jailers must take measures to prevent inmate suicides once they know of the suicide risk, we cannot
say that the law is established with any clarity as to
what those measures must be.”) In particular, the
officers took substantial steps to ensure Goddard's
safety-they seized dangerous items from him, handcuffed him, called ESU, cornered him against a wall in
the hallway, and surrounded him with officers. It is
also undisputed that Officer Sykora was initially
physically holding Goddard when he was standing
facing the wall and, after approximately five minutes,
turned Goddard outward to begin speaking with him in
order to find out what had happened prior to the arrival
of the police. (See Defs.' 56.1 Stmt., ¶¶ 32-33; see also
Pls.' 56.1 Stmt., ¶¶ 32-33.) Although plaintiffs point to
evidence that Goddard was sweating and fidgety, they
also admit he was otherwise calm. (See Pls.' 56.1
Stmt., ¶ 34.)
Under such circumstances, the decision to release
the physical grasp on Goddard in the hallway (especially when he had calmed down), while he was still
handcuffed and surrounded by officers, should not
deprive the officers of qualified immunity. In fact, one
might conclude that, if the officers had continued to
physically hold Goddard even after he calmed down,
that could have agitated and unnecessarily provoked
him, and exacerbated the situation, rather than
de-escalating the situation by releasing the hold. This
type of split-second judgment call in an extremely
difficult situation is exactly the type of discretionary
decision, within the bounds of objectively reasonable
conduct under the deliberate indifference standard,
that should beprotected under the doctrine of qualified

immunity. In particular, the Court notes that, unlike
decisions by prison officials usually made under the
controlled circumstances of a detention facility, see
supra, the decisions here had to be made quickly in the
context of a temporary detention in the hallway of a
residential building. See Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 309 (4th Cir.2004) (finding that
the defendant officers were not deliberately indifferent
to the medical needs of an arrestee who died while in
transport to a detention center where “the record ...
contains no evidence suggesting that these officers
recognized that their actions were inappropriate under
the circumstances” ) (emphasis added). These officers' inability to spend a substantial period of time
deliberating about the best course of action in this
uncontrolled hallway environment must be taken into
consideration and, under the circumstances of the
instant case, it is clear that the officers did not possess
a sufficiently culpable state of mind to deprive them of
qualified immunity. Accordingly, even if plaintiffs
could establish that Goddard's constitutional rights
were violated, the defendants would be entitled to
dismissal of the claims under the doctrine of qualified
immunity.
C. Supplemental Jurisdiction
*11 Having granted summary judgment dismissing plaintiffs' federal claim under § 1983, the only
remaining claim is plaintiffs' negligence claim arising
under state law. Under 28 U.S.C. § 1367(c)(3), the
Court must consider whether it should continue to
exercise jurisdiction over the remaining state claim. In
determining whether to continue to retain jurisdiction,
district courts consider factors such as judicial
economy, convenience, fairness and comity. See
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1191 (2d Cir.1996). Although a court possesses
the discretion to retain jurisdiction, “in the usual case
in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the
pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining

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state-law claims.” Valencia ex rel. Franco v. Lee, 316
F.3d 299, 305 (2d Cir.2003) (citing Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)); Baylis
v. Marriott Corp., 843 F.2d 658, 665 (2d Cir.1988)
(“When all bases for federal jurisdiction have been
eliminated from a case so that only pendent state
claims remain, the federal court should ordinarily
dismiss the state claims.”) (quoting Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966)).
In the instant case, the Court exercises its discretion to decline jurisdiction over the remaining state
claim. Although discovery has been completed and the
instant case has proceeded to the summary judgment
stage, it is not clear to the Court why the discovery
would need to be repeated if the negligence claim is
litigated in state court. See Adee Motor Cars, LLC v.
Amato, 388 F.Supp.2d 250, 255 (S.D.N.Y.2005) (exercising discretion to decline jurisdiction over state
claims after summary judgment was granted as to all
federal claims, noting that there was no indication that
discovery would need to be repeated). Moreover,
addressing the plaintiffs' negligence claim would
require this court to perform at least some non-obvious
interpretations of New York State law, including, inter
alia, whether plaintiffs' recovery is barred by what
defendants allege was the commission of a class A
misdemeanor, escape in the third degree, under
Johnson
v.
State,
253
A.D.2d
274
(N.Y.App.Div.1999), or whether decedent's emotional
state removes this action from the ambit of Johnson.
Resolution of this and similar issues is best left to state
courts.FN11 Valencia, 316 F.3d at 305 (“ ‘[N]eedless
decisions of state law should be avoided both as a
matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading
of applicable law.’ ”) (quoting Gibbs, 383 U.S. at
726); see also Rounseville v. Zahl, 13 F.3d 625,
631-32 (2d Cir.1994) (finding that although the state
law at issue was well-settled, the application of the
law to the facts of the case at hand was potentially
novel and was therefore more appropriately resolved
in state court); Adee Motor Cars, 388 F.Supp.2d at

256 (refraining from exercising jurisdiction over remaining state claim and noting that resolution of the
claim would “involve at least some nonobvious interpretations of New York state law ... the resolution
of these issues would be best left to state courts”).
Finally, “since New York's CPLR § 205 allows a
plaintiff to recommence a dismissed suit within six
months without regard to the statute of limitations,
plaintiff[s] will not be unduly prejudiced by the dismissal of [their] state law claims.” Trinidad v. New
York City Dept. of Correction, 423 F.Supp.2d 151,
169 (S.D.N.Y.2006) (citing Mayer v. Oil Field Systems Corp., 620 F.Supp. 76, 77-78 (S.D.N.Y.1985)).
Accordingly, plaintiffs' state law claim is dismissed
without prejudice.
FN11. It is important to note that the Court's
analysis of the officers' conduct under the
“objectively reasonable” standard for purposes of addressing qualified immunity is not
the same analysis that would be conducted
under the state negligence standard. As noted
earlier, the question of objective reasonableness for qualified immunity purposes is
conducted against the backdrop of the “deliberate indifference” standard under the
circumstances of this case. In other words,
the question is whether an objectively reasonable officer could believe that he was not
being deliberately indifferent to Goddard's
needs. See McKenna, 386 F.3d at 437. That
analysis is obviously different than simply
examining whether an officer's conduct was
negligent under state law. See Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir.2003) (“
‘Deliberate indifference'describes a mental
state more blameworthy than negligence.”).
IV. CONCLUSION
*12 For the foregoing reasons, summary judgment is GRANTED as to plaintiffs' federal claims
arising under 42 U.S.C. § 1983. Further, pursuant to
28 U.S.C. § 1367(c)(3), the Court declines to retain

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Page 14
Not Reported in F.Supp.2d, 2006 WL 3725543 (E.D.N.Y.)
(Cite as: 2006 WL 3725543 (E.D.N.Y.))
jurisdiction over the remaining claim arising under
state law, and dismisses such claim, without prejudice.
The Clerk of the Court shall close this case.
SO ORDERED.
E.D.N.Y.,2006.
Kelsey v. City of New York
Not Reported in F.Supp.2d, 2006 WL 3725543
(E.D.N.Y.)
END OF DOCUMENT

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.