Richardson v. Correctional Medical Care, Inc. et al

Filing 39

MEMORANDUM-DECISION AND ORDER: ORDERS that Plaintiff's cross-motion to amend (Dkt. No. 30 ) is GRANTED. ORDERS that the County Defendants' motion to dismiss (Dkt. No. 18 ) is GRANTED and Defendants Schenectady County and Dominic D� 39;Agostino may be terminated. ORDERS that Defendant Fricke's motion to dismiss (Dkt. No. 20 ) is DENIED. ORDERS that the CMC Defendants' motion to dismiss (Dkt. No. 19 ) is GRANTED in part as to the deliberate indifference and munici pal liability claims against Correctional Medical Care, Inc., CBH Medical, P.C., and Emre Umar, and the motion is DENIED in part as to Plaintiff's state law claims, and Plaintiff's deliberate indifference claims against Defendants Russell Fricke and John Does 1-3. ORDERS that the CMC Defendants' motion to strike (Dkt. No. 19 ) is DENIED as moot. Signed by U.S. District Judge Mae A. D'Agostino on 3/28/18. (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BERNITA RICHARDSON, as Administratrix of the
Estate of Jimmy Richardson,
Plaintiff,
vs.

9:17-cv-0420
(MAD/TWD)

CORRECTIONAL MEDICAL CARE, INC., et al.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF ELMER R. KEACH, III, P.C.
One Pine West Plaza - Suite 109
Albany, New York 12205
Attorneys for Plaintiff

ELMER R. KEACH, III, ESQ.
MARIA K. DYSON, ESQ.

STEINBERG, SYMER & PLATT, LLP
Steinberg, Symer & Platt, LLP
27 Garden Street
Poughkeepsie, New York 12601
Attorneys for Defendants Correctional Medical
Care, Inc., CBH Medical, P.C., Emre Umar

JONATHAN E. SYMER, ESQ.

THUILLEZ, FORD LAW FIRM
20 Corporate Woods Boulevard - 3rd Floor
Albany, New York 12211-1715
Attorneys for Defendant Russell Fricke

DAISY F. PAGLIA, ESQ.
MOLLY C. CASEY, ESQ.

GOLDBERG SEGALLA, LLP
8 Southwoods Boulevard - Suite 300

CHELSEA E. MANOCCHI, ESQ.
JONATHAN BERNSTEIN,
ESQ.

Albany, New York 12211-2526
Attorneys for Defendants Schenectady County
and Dominic D'Agostino
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION

Plaintiff Bernita Richardson, as administratrix of the estate of Jimmy Richardson, brought
this action alleging federal and state claims against Defendants Correctional Medical Care, Inc.
("CMC"), CBH Medical, P.C. ("CBH"), Emre Umar, John Doe Numbers 1-3 (collectively, the
"CMC Defendants"), Schenectady County, Sheriff Dominic D'Agostino, and John Doe Number 4
(collectively, the "County Defendants"), and Doctor Russell Fricke. See Dkt. No. 30-4.1
Plaintiff's claims arise out of Mr. Richardson's medical care while incarcerated at the Schenectady
County Jail. Presently before the Court are three separate motions to dismiss and a motion to
strike filed by Defendants, as well as a motion to amend filed by Plaintiff.. See Dkt. Nos. 18, 19,
20, 30. For the following reasons, Plaintiff's motion to amend is granted, Defendants' motion to
strike is denied, and Defendants' motions to dismiss are granted in part and denied in part.
II. BACKGROUND2
A.

The Decedent's Medical Care
Jimmy Richardson died on January 17, 2016. See Dkt. No. 30-4 at ¶ 15. In the month

leading up to his death, Mr. Richardson was in Schenectady County Jail two different times.
First, he was admitted on December 18, 2015 and released on December 22, 2015. See id. at ¶¶
16, 19. Second, Mr. Richardson was readmitted to Schenectady County Jail on January 4, 2016,
where he remained until he died in the early morning hours of January 17, 2016. See id. at ¶¶ 20,
32.

John Does 1-3 are unidentified medical staff who were responsible for providing medical
treatment to Mr. Revels, and John Doe Number 4 was employed as a corrections officer at the
Schenectady County Jail. See Dkt. No. 30-4 at ¶¶ 13-14.
1

The following facts are based on the allegations in Plaintiff's proposed amended
complaint. See Dkt. No. 30-4.
2

2

When he entered the jail on December 18, 2015, Mr. Richardson was not particularly
healthy. He suffered from Brugada Syndrome, Chronic Obstructive Pulmonary Disease
("COPD"), hypertension, seizure disorder, chronic pain, and he used a pacemaker, had recently
undergone gastric bypass surgery, and had a history of heart attacks. See id. at ¶ 17. Mr.
Richardson took numerous medications to treat his various conditions, including Norco and
Lortab, which are opioid pain medications. See id. During Mr. Richardson's first period of
detention in Schenectady County Jail in December 2015, he did not receive any of his prescribed
medications. See id. at ¶ 18. As a result, he was experiencing a variety of symptoms, including
withdrawal from his pain medications, before being released on December 22, 2015. See id.
After being admitted to the hospital for severe chest pain, shortness of breath, suicidal
ideations, and diaphoresis, Mr. Richardson was stabilized and readmitted to Schenectady County
Jail on January 4, 2016. See id. at ¶ 20. The following day, Mr. Richardson was evaluated by
Defendant Fricke, the doctor at Schenectady County Jail, who confirmed Mr. Richardson's
medical conditions. See id. Over the following twelve days, Mr. Richardson frequently
complained about chest pain and other medical issues, including severe pain, knee pain, anxiety,
and dizziness. See id. at ¶ 21. Mr. Richardson's medical records indicate that he reported his
complaints on January 7, 9, 10, 11, 12, and 14, 2016. See id. The complaints reflect a sense of
urgency. See id. at ¶ 24. In a January 11, 2016 health services request, Mr. Richardson pleads for
his medication, and says "[I] need to see the Dr. I am hurting so bad. I need help!!!" See id.
Plaintiff also alleges that Mr. Richardson made additional complaints and showed
additional symptoms that were not reflected in his medical records. See id. First, an inmate
reported observing Mr. Richardson repeatedly collapse in the days leading up to his death, but
there is no mention of this in his medical records. See id. at ¶ 22. Second, a different inmate
3

reported that Mr. Richardson was complaining of chest and left arm pain in the days leading up to
his death. See id. at ¶ 23. The inmate sought help from a corrections officer, who called a
medical emergency. See id. Medical staff took Mr. Richardson's blood pressure, but they did not
provide any further treatment or document any of his symptoms, even though the symptoms were
indicative of potentially serious heart problems. See id. Third, Mr. Richardson repeatedly
complained to medical staff that he was not receiving his medications, and he included those
complaints in written health services requests. See id. at ¶¶ 24-26. And on January 12, 2016, one
of Mr. Richardson's medical providers wrote "meds ordered last week, not here yet." See id. at
¶ 26.3 Despite the evidence to the contrary, Mr. Richardson's medical records indicate that he
received his medications the entire time he was in the jail. See id. at ¶ 27.
From January 4 to January 12, 2016, Mr. Richardson received only Tylenol for pain
management, and he was not provided with his prescribed opioid pain medication. See id. at ¶ 28.
Abruptly discontinuing such medication can cause withdrawal symptoms, which is particularly
dangerous for patients with heart problems. See id. at ¶ 17. Eventually, Defendant Fricke
provided Mr. Richardson with high doses of morphine instead of his prescribed medication. See
id. at ¶ 30. Mr. Richardson's toxicology report shows that the level of morphine in his system far
exceeded the therapeutic limit. See id. The high doses of morphine exacerbated Mr. Richardson's
respiratory and cardiac and respiratory problems. See id. at ¶ 31.
Defendant Fricke did not contact Mr. Richardson's treating physicians or any specialist
before changing Mr. Richardson's prescription. See id. Indeed, despite Mr. Richardson's
deteriorating health, his frequent complaints, his clear symptoms, and his history of heart

This excerpt is from a handwritten note, and it is not clear exactly which medications the
note is referencing. See Dkt. No. 1 at ¶ 26.
3

4

problems, medical staff at the jail never contacted Mr. Richardson's treating physicians, referred
him to a specialist, or sent him to the hospital. See id. at ¶ 33. On the night before his death, Mr.
Richardson sought medical assistance by alerting a corrections officer, John Doe Number 4, to the
situation. See id. at ¶ 32. But John Doe Number 4 refused care and instead threatened Mr.
Richardson with disciplinary action. See id. Mr. Richardson died of heart failure in the early
morning hours of January 17, 2016. See id.
B.

CMC and CBH
CMC is a corporation that provides medical care at numerous county jails, and Defendant

Umar is the president of CMC. See id. at ¶¶ 7, 11, 34. CMC has "engaged in a well-documented
pattern and practice of providing inadequate and unqualified medical providers at the various
facilities they manage, as well as inadequate medical care in general." See id. at ¶ 34. The
complaint includes pages of troubling allegations regarding CMC's business practices and its
track record of providing inadequate care in county jails throughout New York State. See id. at ¶¶
35-50. But based on the allegations in the complaint, it is not clear what role, if any, CMC had at
Schenectady County Jail during the time in question.
Plaintiff alleges that CBH is responsible for providing medical care at the Schenectady
County Jail. See id. at ¶ 8. Plaintiff also alleges that, "upon information and belief, CBH
Medical, P.C. is owned by Correctional Medical Care, Inc." See id. But the complaint includes
no other allegations regarding CMC's relationship to CBH or CMC's role at the Schenectady
County Jail. Additionally, the complaint does not contain any allegations relating to CBH or its
policies, practices, or history of providing medical care.
C.

Procedural History

5

On April 14, 2017, Plaintiff Bernita Richardson filed the complaint in this action, and she
filed a proposed amended complaint on October 17, 2017. See Dkt. Nos. 1, 30-4. In the proposed
amended complaint, Plaintiff alleges three different causes of action: (1) deliberate indifference to
a serious medical need in violation of the Fourteenth Amendment as to Defendants Fricke and
John Does 1-4; (2) implementation of municipal policies that violated Mr. Richardson's
constitutional rights as to Defendants CMC, CBH, Umar, Fricke, Schenectady County, and
D'Agostino; and (3) conscious pain and suffering and wrongful death as to all Defendants. See
Dkt. No. 30-4 at ¶¶ 55-72.
Defendants filed three separate motions to dismiss. The County Defendants filed one
motion to dismiss. See Dkt. No. 18. Defendant Russell Fricke filed a separate motion to dismiss.
See Dkt. No. 20. Finally, the CMC Defendants move to dismiss, and they also move to strike
certain allegations in the complaint. See Dkt. No. 19. Along with her opposition, Plaintiff filed a
cross-motion to amend the complaint. See Dkt. No. 30.
III. LEGAL STANDARD
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of the party's claim for relief. See Patane v. Clark,
508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must accept as
true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's
favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation
omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to
dismiss is generally limited to the facts presented in the pleading, the court may consider
documents that are "integral" to that pleading, even if they are neither physically attached to, nor
6

incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398
(2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002));
see also Sutton ex rel. Rose v. Wachovia Secs., LLC, 208 Fed. Appx. 27, 29-30 (2d Cir. 2006)
(noting that, on a motion to dismiss, a court may take judicial notice of documents filed in another
court).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief,'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," id. at 555 (citation omitted), and present claims that are "plausible
on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556
U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement
to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at
558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to
plausible, the[] complaint must be dismissed," id. at 570.
IV. DISCUSSION
A.

Motion to Amend
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, leave to amend a complaint

should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). "[A]bsent evidence
of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the
7

opposing party, or futility, Rule 15's mandate must be obeyed.” Monahan v. N.Y.C. Dep't of
Corrs., 214 F.3d 275, 283 (2d Cir.2000) (citing Foman v. Davis, 371 U.S. 178, 182, 83 (1962)).
“An amendment to a pleading is futile if the proposed claim could not withstand a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Annunziato v. Collecto, Inc., 293 F.R.D. 329, 333
(E.D.N.Y. 2013) (citing Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002)).
“Therefore a proposed amendment is not futile if it states a claim upon which relief can be
granted.” Waltz v. Bd. of Educ. of Hoosick Falls Cent. Sch. Dist., No. 12-CV-0507, 2013 WL
4811958, *4 (N.D.N.Y. Sept.10, 2013).
As Defendants have had sufficient opportunity to respond to the proposed amended
complaint, and Plaintiff does not seek to add new defendants or claims, the merits of the motion
to dismiss will be considered in light of the proposed amended complaint. See Haag v. MVP
Health Care, 866 F. Supp. 2d 137, 140 (N.D.N.Y.2012). If the proposed amended complaint
cannot survive the motion to dismiss, then Plaintiff's cross-motion to amend will be denied as
futile.
B.

Deliberate Indifference
As a pretrial detainee at the time of the incidents addressed in the complaint, Plaintiff's

claims are governed by the Due Process Clause of the Fourteenth Amendment, rather than the
Cruel and Unusual Punishments Clause of the Eight Amendment. See Darnell v. Pineiro, 849
F.3d 17, 29 (2d Cir. 2017) (citation omitted). The Supreme Court recently distinguished between
Eighth and Fourteenth Amendment excessive force claims, holding that a pretrial detainee need
not demonstrate that an officer accused of using excessive force was subjectively aware that his
use of force was unreasonable. See Kingsley v. Hendrickson, — U.S. —, 135 S.Ct. 2466, 2470-71
(2015).
8

In Darnell, the Second Circuit extended the Kingsley standard to a pretrial detainee's
allegations related to unconstitutional conditions of confinement. See Darnell, 849 F.3d at 35.
The court reasoned, "[u]nlike a violation of the Cruel and Unusual Punishments Clause [of the
Eighth Amendment], an official can violate the Due Process Clause of the Fourteenth
Amendment without meting out any punishment, which means that the Due Process Clause can
be violated when an official does not have subjective awareness that the official's acts (or
omissions) have subjected the pretrial detainee to a substantial risk of harm." Id.
Although Darnell involved a challenge to conditions of confinement, district courts in this
circuit have also held that Kingsley should be applied to pretrial detainees' claims of deliberate
indifference to serious medical needs. See Villafane v. Sposato, No. 16-CV-3674, 2017 WL
4179855, *19 (E.D.N.Y. Aug. 22, 2017) ("District Courts in this circuit have applied Kingsley to
claims for deliberate indifference to medical needs"); Lloyd v. City of New York, 246 F. Supp. 3d
704, 718 (S.D.N.Y. March 31, 2017) ("The reasoning of Darnell applies equally to claims of
deliberate indifference to serious medical needs under the Fourteenth Amendment"); see also
Torrez v. Semple, No. 17-CV-1211, 2017 WL 3841686, at *3 (D. Conn. Sept. 1, 2017) ("[F]or a
claim of deliberate indifference to mental health needs or unconstitutional conditions of
confinement under the Fourteenth Amendment, a pretrial detainee can satisfy the subjective
element by showing that the defendants 'knew, or should have known, that the condition posed an
excessive risk to health or safety'").
Under either the Eighth or the Fourteenth Amendment, a plaintiff's claim for deliberate
indifference to a serious medical need is analyzed under a two-prong test. "First, 'the alleged
deprivation of adequate medical care must be "sufficiently serious."'" Grimmett v. Corizon Med.
Assocs. of N.Y., No. 15-CV-7351, 2017 WL 2274485, *3 (S.D.N.Y. May 24, 2017) (quoting
9

Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)). "Second, the
defendant must have acted with deliberate indifference, or a 'sufficiently culpable state of mind.'"
Id. (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
1. Objective Prong4
The objective prong requires "that the alleged deprivation of medical treatment is, in
objective terms, 'sufficiently serious'—that is, the prisoner must prove that his medical need was
'a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Johnson v.
Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d
Cir. 1998)). To determine whether inadequate care is "sufficiently serious," a court must
"examine how the offending conduct is inadequate and what harm, if any, the inadequacy has
caused or will likely cause the prisoner." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).
Where a plaintiff alleges that inadequate care was provided—instead of alleging a failure to
provide any treatment—the inquiry focuses on "the particular risk of harm faced by a prisoner due
to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical
condition, considered in the abstract." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003); see
also Ray v. Zamilus, No. 13-CV-2201, 2017 WL 4329722, *8 (S.D.N.Y. Sept. 27, 2017) (finding
that where a "plaintiff suffered from a delay in treatment, rather than a complete lack of treatment,
the objective element must be satisfied by harm that resulted from the delay").

The standard for establishing the objective prong of a deliberate indifference claim was
not affected by Darnell. See Feliciano, 2017 WL 1189747, at *10. Therefore, "the objective
prong of a deliberate-indifference claim is the same regardless of whether the inmate is a
convicted prisoner or a pretrial detainee." Id. The Court notes, however, that the term "objective
prong" is somewhat misleading in the context of a Fourteenth Amendment deliberate indifference
claim. As the Court explains below, after Darnell, both prongs of such a claim are now analyzed
under an objective standard.
4

10

Generally, complaints of chest pain alone do not constitute a sufficiently serious medical
condition. See, e.g., Hutchinson v. N.Y. State Corr. Officers, No. 02-CV-2407, 2003 WL
22056997, *5 (S.D.N.Y. Sept. 4, 2003). However, a number of district courts in this circuit have
found that heart conditions can be sufficiently serious under certain circumstances. See Smith v.
Outlaw, No. 15-CV-9961, 2017 WL 4417699, *4 (S.D.N.Y. Sept. 30, 2017) (holding that a
prisoner satisfies the objective prong of the deliberate indifference inquiry when he has a preexisting heart condition, presents with chest pain and arm stiffness, has not been provided with
his medication, and is denied treatment); Melvin v. County of Westchester, No. 14-CV-2995, 2016
WL 1254349, *5 (S.D.N.Y. Mar. 29, 2016) (finding that a plaintiff's condition was sufficiently
serious where he presented with severe chest pain, high blood pressure, and a very low pulse
rate); Zikianda v. County of Albany, No. 12-CV-1194, 2015 WL 5510956, *28 (N.D.N.Y. Sept.
15, 2015) ("[F]ailing to treat congestive heart failure, which can cause a patient's heart to stop
beating, surely qualifies as a serious medical need").
It is well established that the state "'is not constitutionally obligated . . . to construct a
perfect plan for [medical] care that exceeds what the average reasonable person would expect or
avail [him]self of' outside of prison." Thompson v. Racette, No. 11-CV-1372, 2012 WL
12884469, *2 (N.D.N.Y. Aug. 2, 2012) (alterations in original) (quoting Dean v. Coughlin, 804
F.2d 207, 215 (2d Cir. 1986)). A mere disagreement with a prescribed course of treatment is not
sufficient to establish a violation of the Eighth or Fourteenth Amendment. See Moolenaar v.
Champagne, No. 03-CV-1464, 2006 WL 2795339, *6 (N.D.N.Y. Sept. 26, 2006). But this is not
a case of Plaintiff simply disagreeing with a particular medication or diagnostic technique.
Plaintiff alleges that Mr. Richardson had a history of heart problems—including Brugada
Syndrome and a history of heart attacks—and he frequently complained to the medical staff of his
11

symptoms, which included chest pain radiating into the left arm, dizziness, and "collapsing
incidents." Despite Mr. Richardson's medical history and his troubling symptoms, Plaintiff
alleges that Mr. Richardson was not provided any of his medications for the majority of the time
he was in Schenectady County Jail, and that he was provided no other treatment for his heart
conditions.
In a similar case in this district, the court found that the objective prong was satisfied
where the plaintiff alleged that the treatment of the decedent's "congestive heart failure . . . was
grossly inadequate from the start." Zikianda, 2015 WL 5510956, at *29; see also Johnson v.
Wright, 234 F. Supp. 2d 352, 360 (S.D.N.Y. 2002) ("Although federal courts are reluctant to
'second guess medical judgments and constitutionalize [medical malpractice claims]' where the
prisoner has actually received medical treatment, deliberate indifference will be found where 'the
medical attention rendered was so woefully inadequate as to amount to no treatment at all'")
(alterations in original) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). In
this case, the Plaintiff's allegations satisfy the objective prong because Mr. Richardson faced a
substantial risk of serious harm due to the deprivation of care.
2. Mental Element Prong
"After Darnell, 'deliberate indifference' is now 'defined objectively,' and the 'Due Process
Clause can be violated when an official does not have subjective awareness that the official's acts
(or omissions) have subjected the pretrial detainee to a substantial risk of serious harm.'" Lloyd,
246 F. Supp. at 719 (quoting Darnell, 849 F.3d at 35). A pretrial detainee suing for deliberate
indifference under the Fourteenth Amendment "is required to show only that the prison official
acted with objective recklessness, or that the defendant 'knew or should have known' that 'an

12

excessive risk to health or safety' would result." Grimmett, 2017 WL 2274485, at *4 (quoting
Darnell, 849 F.3d at 35).
3. Defendant Fricke and John Does 1-3
It has long been the rule in this circuit that "negligence, even if it constitutes medical
malpractice, does not, without more, engender a constitutional claim." Clay v. Kellmurray, 465
Fed. Appx. 46, 47 (2d Cir. 2012) (quoting Chance, 143 F.3d at 703). Even after Darnell, it
remains the case that "something more than negligence is needed to elevate a claim of medical
misconduct to a constitutional tort." Davis v. McCready, No. 14-CV-6405, 2017 WL 4803918,
*9 (S.D.N.Y. Oct. 23, 2017); see also Darnell, 849 F.3d at 36 ("But any § 1983 claim for a
violation of due process requires proof of a mens rea greater than mere negligence"). But
distinguishing between negligent and reckless medical care is a difficult task, especially at the
motion-to-dismiss stage where courts lack the benefit of expert opinion. See McCready, 2017
WL 4803918, at *9. The distinction between the two "depends on the degree of risk associated
with the practitioner's conduct." Id.
Here, Defendant Fricke was allegedly aware of Mr. Richardson's history of heart
problems, his complaints of chest and arm pain, and his recent hospitalization for chest pain.
However, Plaintiff also alleges that Mr. Richardson was not provided with any medication during
his first stint in the Schenectady County Jail, and he was not provided medication for nine of
fourteen days during his second stint. He was not referred to a cardiologist, hospitalized, or
provided any other treatment for his heart problems until his death on January 17, 2016, from a
cardiac arrhythmia. In Smith v. Outlaw, No. 15-CV-9961, 2017 WL 4417699, *4 (S.D.N.Y. Sept.
30, 2017), the plaintiff had a pre-existing heart condition and complained of chest pain, as well as
stiffness and numbness in the left arm. The court held that although those circumstances did not
13

require the physician's assistant to provide any specific form of treatment, some action should
have been taken. See id. Therefore, the Court found that the plaintiff had sufficiently alleged
objective recklessness. See id. In this case, accepting all allegations as true and drawing all
reasonable inferences in Plaintiff's favor, Dr. Fricke knew or should have known that depriving
Mr. Richardson of his medication and other forms of care would result in an excessive risk to Mr.
Richardson's health.
Plaintiff also alleges that medical staff at the Schenectady County Jail omitted certain
events from Mr. Richardson's medical records and fabricated other records. In particular,
Plaintiff alleges that medical staff failed to record the fact that Mr. Richardson repeatedly
collapsed in the days leading up to his death, that they did not document a medical emergency
caused by Mr. Richardson's chest and arm pain, and that they falsified records pertaining to Mr.
Richardson's medication. Therefore, Plaintiff has alleged that the medical staff acted with a
sufficiently culpable state of mind and were deliberately indifferent to Mr. Richardson's serious
medical needs. See Grimmett, 2017 WL 2274485, at *4 (finding the mental-state prong satisfied
where the plaintiff alleged that a doctor intentionally omitted facts from the plaintiff's medical
records).
5. Municipal Liability
A municipality "may not be held liable under Section 1983 unless the challenged action
was performed pursuant to a municipal policy or custom." Powers v. Gipson, No. 04-CV-6338,
2004 WL 2123490, *2 (W.D.N.Y. Sept. 14, 2004) (citing Monell v. Dep't of Soc. Serv., 436 U.S.
658, 694 (1978)). This is because "[m]unicipalities are not subject to Section 1983 liability solely
on the basis of a respondeat superior theory." Id., at *2. As a result, to demonstrate Monell
liability, a plaintiff must allege a violation of constitutional rights by employees of the
14

municipality and "(1) 'the existence of a municipal policy or custom . . . that caused his injuries
beyond merely employing the misbehaving officer[s]'; and (2) 'a causal connection—an
"affirmative link"—between the policy and the deprivation of his constitutional rights.'" Harper
v. City of New York, 424 Fed. Appx. 36, 38 (2d Cir. 2011) (quoting Vippolis v. Village of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
"Although Monell dealt with municipal employers, its rationale has been extended to
private businesses." Powell v. Correc. Med. Care, Inc., No. 13-CV-6842, 2014 WL 4229980, *6
(S.D.N.Y. Aug. 15, 2014) (quoting Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 409 (2d
Cir. 1990)); see also Feder v. Sposato, No. 11-CV-93, 2014 WL 1801137, *6 (E.D.N.Y. May 7,
2014) ("Because Armor was hired to fulfill the state's constitutional obligation to provide
necessary medical care for its inmates, Armor . . . [was] 'acting under the color of state law' for
purposes of Section 1983").
"A plaintiff may plead a municipal policy or custom by alleging: (1) a formal policy,
promulgated or adopted by the entity; or (2) that an official with policymaking authority took
action or made a specific decision which caused the alleged violation of constitutional rights; or
(3) the existence of an unlawful practice by subordinate officials that was so permanent or well
settled so as to constitute a 'custom or usage,' and that the practice was so widespread as to imply
the constructive acquiescence of policymaking officials." Shepherd v. Powers, No. 11-CV-6860,
2012 WL 4477241, *9 (S.D.N.Y. Sept. 27, 2012) (internal quotation marks omitted).
Here, Plaintiff alleges that the inadequate care was caused by a policy or custom of CMC.
Indeed, the complaint contains pages of allegations regarding CMC's "pattern and practice of . . .
providing inadequate medical care." See Dkt. No. 1 at ¶ 34. But Plaintiff does not allege that
CMC was responsible for providing medical care at the Schenectady County Jail. Instead, she
15

alleges that CBH had that responsibility; it is not clear what role, if any, CMC played at the jail.
See id. at ¶ 8. Although the complaint alleges, upon information and belief, that CBH is owned
by CMC, it does not provide any further information regarding the relationship between the two
entities. Even if CMC does own CBH, that alone is not sufficient to hold CMC liable for CBH's
conduct. See DeJesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996) ("As a general
matter . . . a corporate relationship alone is not sufficient to bind [a parent corporation for the
actions of its subsidiary]" (alteration in original)). Additionally, the complaint only mentions
CBH a handful of times, and it does not contain any allegations that could allow the Court to
conclude that CBH itself has a custom or practice of providing inadequate care.5
Similarly, Plaintiff's § 1983 allegations against the County Defendants rest entirely on
CMC's alleged custom or practice of providing inadequate medical care. Since Plaintiff does not
allege that CMC was responsible for providing medical care at the Schenectady County Jail,
CMC's policies and practices do not provide a sufficient basis for establishing liability as to the
County Defendants. Therefore, the County Defendants' motion to dismiss Plaintiff's § 1983
claims is granted.
C.

State Law Claims
1. The County Defendants
The County Defendants move to dismiss Plaintiff's state law claims against Schenectady

County and D'Agostino. See Dkt. No. 18-1 at 6, 11. First, the County Defendants argue that
Defendant D'Agostino cannot be held liable for the acts or omissions of corrections officers. See

The CMC Defendants move to strike large chunks of Plaintiff's complaint that are related
to the allegations of municipal liability against CMC. See Dkt. No. 19-2 at 19-23. Since the
Court dismisses the municipal liability claims against CMC and CBH, the motion to strike is
denied as moot.
5

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id. at 6 (citing Barr v. Albany County, 50 N.Y.2d 247, 257 (1980)). Second, the County
Defendants argue that state law claims against the County must be dismissed because it may not
be held vicariously liable for the acts of corrections officers. See id. at 11 (citing De Ratafia v.
County of Columbia, No. 13-CV-174, 2013 WL 5423871, *10 (N.D.N.Y. Sept. 26, 2013)).
Plaintiff fails to address these arguments in her opposition to the County Defendants'
motion to dismiss. Since Plaintiff does not assert any other basis for liability under state law
against the County Defendants, Plaintiff's state law claims against the County Defendants are
dismissed. See Robinson v. Fischer, No. 09-CV-8882, 2010 WL 5376204, *10 (S.D.N.Y. Dec.
29, 2010) ("Federal courts have the discretion to deem a claim abandoned when a defendant
moves to dismiss that claim and the plaintiff fails to address in their opposition papers defendants'
arguments for dismissing such a claim"); see also Div. 1181 Amalgamated Transit Union–N.Y.
Emps. Pension Fund v. R & C Transit, Inc., No. 16-CV-2481, 2018 WL 794572, *4 (E.D.N.Y.
Feb. 7, 2018) (collecting cases).
2. The CMC Defendants
The CMC Defendants argue that Plaintiff's state law claims should be dismissed because
Plaintiff did not file a certificate of merit along with her complaint as required by C.P.L.R. §
3012-a. See Dkt. No. 19-2 at 16. The statute "requires counsel to submit a certificate of merit
declaring that he or she has consulted with at least one licensed physician who is knowledgeable
regarding the relevant issues in the action, has reviewed the case," and has concluded that there is
a reasonable basis for commencement of an action. Calcagno v. Orthopedic Assoc. of Dutchess
Cty., PC, 148 A.D.3d 1279, 1280 (3d Dep't 2017). However, "the mere failure to timely file [a
certificate of merit] does not support dismissal of [an] action," id., and Plaintiff submitted a

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certificate of merit on November 13, 2017, see Dkt. No. 37. Therefore, the CMC Defendants'
motion to dismiss Plaintiff's state law claims is denied.
D.

Punitive Damages
The CMC Defendants argue that Plaintiff has failed to allege facts that would support an

award of punitive damages. See Dkt. No. 19-2 at 18-19. "To recover punitive damages under §
1983 against a government official in his individual capacity, the Plaintiff must show that the
official acted with a malicious or evil intent or in callous disregard of the Plaintiff's federally
protected rights." Helijas, 2016 WL 5374124, at *17 (quoting Pritchard v. Town of New
Hartford, No. 14-CV-1477, 2016 WL 4523986, *4 n.2 (N.D.N.Y. Aug. 22, 2016)). In this case,
the question of whether Defendants possessed such "callous disregard" is better addressed with
the benefit of an evidentiary record. See id.; see also Phelan ex rel. Phelan v. Torres, No. 04-CV3538, 2005 WL 4655382, *15 (E.D.N.Y. Sept. 20, 2005) ("Generally, the issue of whether to
award punitive damages is an issue for the jury to decide based on an evaluation of plaintiff's
proof of 'sufficiently serious misconduct'") (quoting Smith v. Wade, 461 U.S. 30, 52 (1983)).
V. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's cross-motion to amend (Dkt. No. 30) is GRANTED; and the
Court further

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ORDERS that the County Defendants' motion to dismiss (Dkt. No. 18) is GRANTED
and Defendants Schenectady County and Dominic D'Agostino may be terminated;6 and the Court
further
ORDERS that Defendant Fricke's motion to dismiss (Dkt. No. 20) is DENIED; and the
Court further
ORDERS that the CMC Defendants' motion to dismiss (Dkt. No. 19) is GRANTED in
part as to the deliberate indifference and municipal liability claims against Correctional Medical
Care, Inc., CBH Medical, P.C., and Emre Umar, and the motion is DENIED in part as to
Plaintiff's state law claims, and Plaintiff's deliberate indifference claims against Defendants
Russell Fricke and John Does 1-3; and the Court further
ORDERS that the CMC Defendants' motion to strike (Dkt. No. 19) is DENIED as moot;
and the Court further
ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: March 28, 2018
Albany, New York

The County Defendants do not move to dismiss the deliberate indifference claim against
John Doe Number 4.
6

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