Hartley v. Devlin et al

Filing 31

MEMORANDUM-DECISION AND ORDER: ORDERED that the Clerk shall amend the docket to reflect that defendant "Head Sheriff Devlin" is Richard Devlin, Jr. ORDERED that Magistrate Judge Christian F. Hummel's Report- Recommendation and Or der (Dkt. No. 29 ) is REJECTED IN PART AND ADOPTED IN PART as follows: REJECTED insofar as Devlin's motion to dismiss (Dkt. No. 20 ) was denied as to personal involvement; and ADOPTED in all other respects. ORDERED that Devlin's mot ion to dismiss (Dkt. No. 20 ) is GRANTED and the claim against Devlin is DISMISSED WITHOUT PREJUDICE. ORDERED that Hartley may file an amended complaint consistent with this Memorandum-Decision and Order, which is a wholly-integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court, within thirty (30) days of the date of this Memorandum-Decision and Order. ORDERED that, in the event that Hartley does not fil e an amended complaint, Devlin shall be dismissed with prejudice without further order of the court. ORDERED that State defendants' motion to dismiss (Dkt. No. 22 ) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to the Eight A mendment deliberate indifference claims against Koeningsmann and Kelly; and DENIED in all other respects. ORDERED that the Clerk shall terminate Koeningsman and Kelly from the docket. Signed by Senior Judge Gary L. Sharpe on 3/24/16.{order served via regular mail on plaintiff} (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MICHAEL S. HARTLEY,
Plaintiff,

9:14-cv-1366
(GLS/CFH)

v.
RICHARD DEVLIN, JR.1 et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Michael S. Hartley
Pro Se
13-B-3811
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403
FOR THE DEFENDANTS:
Richard Devlin, Jr.
Lemire, Johnson Law Firm
P.O. Box 2485
2534 Route 9
Malta, NY 12020
Colleen Coppola, Dr. Vadlamudi,
Dr. Zaki, Charles Kelly, Jr., and
Keoningsman
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General

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GREGG T. JOHNSON, ESQ.
BRADLEY J. STEVENS, ESQ.

RYAN W. HICKEY
Assistant Attorney General

The Clerk is directed to amend the docket to reflect that “Head Sheriff Devlin” is
Richard Devlin, Jr. as specified in his answer. (Dkt. No. 12.)

The Capitol
Albany, NY 12224
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Michael S. Hartley commenced this action against
defendant Richard Devlin, Jr., Otsego County Sheriff, and other
defendants (hereinafter referred to as “State defendants”) alleging civil
rights violations pursuant to 42 U.S.C. § 1983. (See generally Compl., Dkt.
No. 1.) Devlin and State defendants separately moved to dismiss. (Dkt.
Nos. 20, 22.) In a Report-Recommendation and Order (R&R) dated
January 19, 2016, Magistrate Judge Christian F. Hummel recommended
that Devlin’s motion be denied and that State defendants’ motion be
granted in part and denied in part. (Dkt. No. 29.) Pending are Devlin’s
objections to the R&R. (Dkt. No. 30.) For the reasons that follow, the R&R
is rejected in part and adopted in part.
II. Background2
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Consistent with the standard of review applicable to a motion to dismiss for failure to
state a claim, the facts are drawn from the complaint and presented in the light most favorable
to Hartley.

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During the period of time relevant to the pending objections, Hartley
was incarcerated at the Otsego County Jail. (Compl. at 3.) After
complaining of pain in his stomach, Hartley was referred to Basset Health
Care in Cooperstown, New York. (Id.) An examination there revealed “an
enlarged and perforated appendix” in need of removal “as soon as
possible.” (Id. at 4.) Upon discharge, a physician recommended that
Hartley return “in a matter of days to determine whether or not the
inflammation had subsided enough to proceed with the required surgery.”
(Id.) Following the contemplated follow-up appointment, “it was decided”
that surgery should be scheduled tout suite. (Id.) A nurse at the County
Jail was tasked with scheduling the surgery, but Devlin “disapproved the
request for a transfer order (medical) so that the surgery could be
completed,” which caused Hartley to endure “excruciating pain for the
duration of [his] time there.” (Id.)
Liberally construed, Hartley alleges that Devlin was deliberately
indifferent to his serious medical need in violation of the Eighth
Amendment. (Id. at 15.) After answering, (Dkt. No. 12), Devlin moved to
dismiss, raising three grounds in support: first, that there was no
constitutional violation; second, that he is shielded from liability by qualified
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immunity; and, third, that he lacked personal involvement in any
deprivation of rights. (Dkt. No. 20, Attach. 1 at 4-11.) Judge Hummel
considered and rejected each of these arguments. (Dkt. No. 29 at 14-15,
19, 23-24.) Relying on facts asserted for the first time in Hartley’s
opposition to the motion to dismiss, Judge Hummel found that personal
involvement was sufficiently alleged. (Id. at 14-15.) Judge Hummel
ultimately recommended the denial of Devlin’s motion. (Id. at 25.)
III. Standard of Review
Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y.S. Div. of Parole, No. Civ.
904CV484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those
cases where no party has filed an objection, or only a vague or general
objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error.3 See id.

3

“[A] report is clearly erroneous if the court determines that there is a mistake of fact or
law which is obvious and affects substantial rights.” Almonte, 2006 WL 149049, at *6.

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IV. Discussion
Devlin’s objections to the R&R are threefold. First, he argues that
Judge Hummel “erroneously relie[d] upon [Hartley]’s April 10, 2015
‘opposition arguments’ which do not constitute amendments to [the
c]omplaint.” (Dkt. No. 30 at 3-4.) Second, Devlin contends that Hartley
has failed to establish his personal involvement in any alleged wrongdoing.
(Id. at 4-5.) Third, qualified immunity, argues Devlin, shrouds him as a
matter of law. (Id. at 5-6.) While Devlin’s second and third arguments are
merely a rehashing of previously made arguments triggering only clear
error review, his first objection is specific and warrants de novo review.
See Almonte, 2006 WL 149049, at *6-7. And because State defendants
filed no objections, the recommendations as to their motion to dismiss are
considered under the clear error standard. See id.
Contrary to Devlin’s claim “that an opposition to a Rule 12 motion to
dismiss is not a valid means of amending a complaint,” (Dkt. No. 30 at 34), a court may, in its discretion, consider a pro se prisoner’s response to a
motion to dismiss as “effectively amend[ing]” the pleading, Jones v.
Fischer, No. 9:11-cv-774, 2013 WL 4039377, at *2 n.8 (N.D.N.Y. Aug. 7,
2013); see Gadson v. Goord, No. 96 Civ. 7544, 1997 WL 714878, at *1 n.2
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(S.D.N.Y. Nov. 17, 1997). De novo review of this issue requires an
analysis of whether Hartley has sufficiently alleged Devlin’s personal
involvement in the claimed Eighth Amendment violation.
To sustain an award of damages for a violation of § 1983, the plaintiff
must establish that the defendant was personally involved in a
constitutional deprivation. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006). While direct participation in the alleged wrongdoing will always
support the personal involvement showing, defendants in positions of
supervision are not liable merely because of their place in the management
hierarchy. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). To
establish the personal involvement of supervisors that do not directly
participate in the constitutional deprivation, the plaintiff must show that the
defendant: “after being informed of the violation through a report or appeal,
failed to remedy the wrong”; “created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a
policy or custom”; “was grossly negligent in supervising subordinates who
committed the wrongful acts”; or “exhibited deliberate indifference to the
rights of inmates by failing to act on information indicating that

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unconstitutional acts were occurring.” Id.4
Here, a single factual allegation regarding Devlin is made by Hartley
in the complaint. That allegation — that Devlin “disapproved the request
for a transfer order (medical) so that surgery could be completed,” (Compl.
at 4) — is insufficient to establish Devlin’s personal involvement in a
deliberate indifference claim. Moreover, while the court recognizes that
Hartley made further factual allegations regarding Devlin’s involvement in
his response to the motion to dismiss, (Dkt. No. 23 at 3), it declines to
consider the new allegations as effectively amending the complaint for
pragmatic reasons. As a result, Devlin’s motion to dismiss is granted for
lack of personal involvement. However, the claim against Devlin is
dismissed without prejudice, and Hartley is granted leave to amend his
complaint within thirty (30) days to include the new factual allegations
regarding Devlin. Any such amended complaint will replace the existing
amended complaint, and must be a wholly-integrated and complete
pleading that does not rely upon or incorporate by reference any pleading
or document previously filed with the court.

4

A debate about the impact of Ashcroft v. Iqbal, 556 U.S. 662 (2009), on the Colon test
for personal involvement continues to simmer in the Second Circuit. See Jones v. Smith, No.
9:09-cv-1058, 2015 WL 5750136, at *8 n.6 (N.D.N.Y. Sept. 30, 2015).

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The court has carefully reviewed the remainder of the R&R for clear
error and has found none.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk shall amend the docket to reflect that
defendant “Head Sheriff Devlin” is Richard Devlin, Jr.; and it is further
ORDERED that Magistrate Judge Christian F. Hummel’s ReportRecommendation and Order (Dkt. No. 29) is REJECTED IN PART AND
ADOPTED IN PART as follows:
REJECTED insofar as Devlin’s motion to dismiss (Dkt. No. 20)
was denied as to personal involvement; and
ADOPTED in all other respects; and it is further
ORDERED that Devlin’s motion to dismiss (Dkt. No. 20) is
GRANTED and the claim against Devlin is DISMISSED WITHOUT
PREJUDICE; and it is further
ORDERED that Hartley may file an amended complaint consistent
with this Memorandum-Decision and Order, which is a wholly-integrated
and complete pleading that does not rely upon or incorporate by reference

8

any pleading or document previously filed with the court, within thirty (30)
days of the date of this Memorandum-Decision and Order; and it is further
ORDERED that, in the event that Hartley does not file an amended
complaint, Devlin shall be dismissed with prejudice without further order of
the court; and it is further
ORDERED that State defendants’ motion to dismiss (Dkt. No. 22) is
GRANTED IN PART and DENIED IN PART as follows:
GRANTED as to the Eight Amendment deliberate indifference
claims against Koeningsmann and Kelly; and
DENIED in all other respects; and it is further
ORDERED that the Clerk shall terminate Koeningsman and Kelly
from the docket; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 24, 2016
Albany, New York

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