Oakley v. Federation Employment and Guidance Service, Inc. et al
Filing
190
MEMORANDUM ORDER: In sum, the Court grants the defendants' motions for summary judgment on Oakley's § 1983 claims and on Oakley's state law negligence claims against defendants Oltchick and Robano-Gross. In contrast, the Court den ies the defendants' motions for summary judgment on Oakley's negligence claims against FEGS, Cohen, Chaffe, Taylor, and Jones. The Clerk of the Court is directed to enter final judgment with respect to defendants Oltchick, Robano-Gross, Limiti, and Green-Gholson. The remaining parties are ordered to continue preparing for the trial scheduled to begin at 9 A.M. on April 23, 2012. (Signed by Judge Jed S. Rakoff on 1/3/2012) (rdz)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x
ROSALIE OAKLEY
I
Plaintiff
10 Civ. 7739 (JSR)
l
-v-
MEMORANDUM ORDER
FEDERATION EMPLOYMENT AND GUIDANCE
SERVICES INC.
STUART OLTCHICK I
YOLANDA L. ROBANO-GROSS ANDREW
COHEN, PETER CHAFFE I SHARON TAYLOR
DAL MARIE JONES, DONNA LIMITII SHEILA
GREEN-GHOLSON
I
I
I
I
I
Defendants.
JED S. RAKOFF
I
U.S.D.J.
Oakley, who is mentally retarded
Plaintiff Rosal
mobility impaired
responsibility
l
l
blind
and
has brought suit against those she claims bear
burns she suffered on September 11 2010.
Defendants include Federation Employment and Guidance Services
Inc.
l
l
("FEGS"), three FEGS policy-level officers - Stuart Oltchick
Yolanda Robano-Gross
l
and Andrew Cohen - Donna Limiti
l
the Director
l
of the Brooklyn Developmental Disabilities Service Office
("BDDSO")
Sheila Green-Gholson
I
and Peter Chaffe
l
l
the Deputy Director of the BDSSO
I
Sharon Taylor, and Dal Marie Jones, who worked at
the FEGS-operated facility where Oakley resided. 1
On February 141
2011 1 the Court dismissed Oakley/s claims under the Americans with
1 Oakley has subsequently dismissed all of her claims against Deputy
Director Green-Gholson.
See Plaintiff/s Memorandum in opposition to
Defendants Motions for Summary Judgment dated September 28 2011 at 24
n.9. AccordinglYI the Court will not consider those claims and directs
the Clerk of the Court to enter final judgment with
to Ms. GreenGholson.
I
1
Disabilities Act and the Rehabilitation Act, but allowed her claims
under 42 U.S.C.
§
1983 and New York State common law to proceed.
On August 16, 30, and 31, 2011, the defendants separately
moved for summary judgment on Oakley's remaining claims.
On
November 15, 2011, the court issued a "bottom-line" order granting
the defendants' motions on all of Oakley's claims under
§
1983 and
on Oakley's claims for negligence against Oltchick, Robano-Gross,
and Cohen.
The Court denied the motions for summary judgment on
Oakley's negligence claims against FEGS, Chaffe, Taylor, and Jones.
This Memorandum explains the reasons for the Court's bottom-line
order and also corrects an oversight in that order.
Specifically,
the Court should not have granted summary judgment on Oakley's
claims for negligence against defendant Cohen.
Because this
Memorandum reinstates the claims for negligence against Cohen,
Cohen will be a defendant at trial.
The Court clarifies that trial
will proceed on the Fourth, Fifth, and Sixth Claims for Relief in
Oakley's complaint, which survive against FEGS, Cohen, Chaffe,
Taylor, and Jones.
The pertinent facts presented at summary judgment, undisputed
except where indicated, are as
lows. 2
At all relevant times,
2Unless otherwise indicated, citations refer to both parties' Rule 56.1
statements. Because different groups of defendants submitted separate
Rule 56.1 statements, citations to a particular Rule 56.1 statement refer
only to that statement and Oakley's response.
Because Oakley did not
respond to the separate Rule 56.1 Statement of defendant Limiti/ she has
effectively admitted the facts Limiti presented.
See Gianullo v. City of
N.Y./ 322 F.3d 139/ 140 (2d Cir. 2003) ("If the opposing party then fails
2
Rosal
Oakley resided at a FEGS-operated Individualized
Residential Alternative (hereinafter, the "Brighton House H
)
Defendants' Statement Pursuant to Local Civil Rule 56.1 , 4.
FEGS
In
1992, she had an IQ of less than 20 and was severely visually
impaired.
Id., 6.
Because Oakley had previously resided in the
Willowbrook Developmental Center, she is a member of the
willowbrook class, and the injunction that governs relations
between the State of New York and that class applies to Oakley.
Plaintiff's Combined Local Civil Rule 56.1 Counter-Statement of
Material Facts as to All Defendants, 2.
The willowbrook
Injunction gives Oakley a lifelong right to receive community
residential placement that protects her personal safety.
Id., 13.
The Willowbrook class and the state are the only parties to the
Willowbrook injunction, id. , 15, and the BDSSO is ultimately
responsible for ensuring that Oakley receives the services to which
injunction entitles her.
Id., 10.
On the evening of September 1, 2010, while residing at the
Brighton House, Oakley soiled herself.
Pursuant to Local Civil Rule 56.1 , 45.
FEGS Defendants' Statement
Since defendant Dal Marie
Jones was the only female Direct Care Worker at Brighton House at
the time, she undertook to clean Oakley and change her diaper.
, 46. 3
Id.
While Jones was cleaning Oakley, she noticed that the skin
to controvert a fact so set forth in the moving party's Rule 56.1
statement, that fact will be deemed admitted. H).
3While FEGS acknowledges that Jones cleaned Oakley, Jones may deny it.
3
between Oakley's legs was peeling off.
had appeared earl
that same evening.
Id. ~ 47.
No such peeling
Id. ~ 42.
Another FEGS
employee advised Jones to call the nurse on duty, Sharon Taylor,
and Jones did so at approximately 11:27 PM.
Id.
~~
48-49.
In
response to reports from Jones, Nurse Taylor concluded that Oakley
suffered from a rash that did not
immediate medical
attention, and that they could get Oakley appropriate care the next
morning.
Id.
~~
50-51.
Oakley's expert, Nurse Rosalie M. Yazbeck,
has opined that Nurse Taylor departed from professional standards
by relying on the assessment of Jones, who was not a licensed
medical professional, instead of directly assessing of Oakley's
condition.
Declaration of Jonathan Bauer dated September 28, 2011
Ex. 50.
On the morning of September 2, 2010, Jones found that Oakley's
injury had worsened.
Civil Rule 56.1
FEGS vehic
Id.
~
56.
~
55.
FEGS Defendants' Statement Pursuant to Local
Several FEGS employees loaded Oakley into a
to transport her to another location for medical care.
Nonetheless, someone directed the van to return to
Brighton House.
Id.
After the van returned to Brighton House,
See Jones's Statement of Undisputed Material Facts Pursuant to Local Rule
56.1 ~ 19 ("Jones did not shower Oakley. ") . Jones does not clarify
whether she denies cleaning Oakley at all, or whether she merely denies
showering Oakley rather than bathing her. Nonetheless, Oakley has
produced enough evidence to allow a reasonable jury to find that Jones
showered her.
See Declaration of Jonahthan Bauer dated September 28,
2011 Ex. 35 (incident
in which Jones states, "while I was
showering Rosalie [Oakley] I noticed that the skin between her legs was
peeling") .
4
Nurse Taylor observed Oakley's injury and concluded that Oakley had
sustained burns to her legs.
~
Id.
57.
After Nurse Taylor made
this determination, several FEGS employees, including Chaffe,
transported Oakley to Lutheran Medical Center, where hospital
employees determined that Oakley had suffered a burn.
Id.
~
58.
State regulation requires water temperatures at Brighton House
and other mental health facilit
not to exceed 110°F.
Id.
~
71.
FEGS installed a mixing valve and hot water cut off in order to
ensure that water temperatures complied with state regulations,
id., and no incident involving hot water had occurred in the f
years preceding September 1, 2010.
Id.
~
85.
Moreover, the
logbook in which FEGS employees presumably recorded water
temperatures reports almost uniform findings that, during the
relevant period, the water temperature was 110°F.
See Amended
Decl. of Adam R. Goldsmith dated August 29, 2011 Ex. R.
Nonetheless, Oakley has produced evidence that FEGS's system, as
installed, would not have prevented water temperatures from
exceeding 110°F.
See Decl. of Jonathan Bauer dated September 28,
2011 Ex. 18 ("Garside Depo.") at 110:5 111:22.
In fact, during
previous inspections of Brighton House in 2007 and 2008, inspectors
noted that water temperatures had reached 123°F and 131°F,
respectively.
Rule 56.1
~~
FEGS Defendants' Statement Pursuant to Local Civil
75-76.
5
With respect to the individual defendants, at the time of the
accident Oltchick was simply a volunteer in his ro
President of FEGS's board of directors.
rd.
~
9.
as the
He had no
responsibility for managing FEGS programs, had never been to
Brighton House, and had never seen the water temperature logbook.
rd. ~~ 9-10.
Robano-Gross, as a vice president at FEGS, oversaw the
operations of residential programs within the developmental
disabilities services division, but she did not monitor the
specific, day-to-day operations of Brighton House, and she had not
seen the temperature logbook.
rd.
~~ 11-13.
Cohen was responsible for ensuring that the residential sites
were in compliance with regulations, but he had no day to day
management responsibilities at the Brighton House and had never
seen the water temperature logbook for Brighton House.
rd.
~
14.
Nonetheless, Oakley has produced evidence that Cohen was
responsible for "[d]irect[ing] and monitor [ing] all facility
operations to ensure adherence to all agency and related policies"
and for "[e]nsuring the maintenance and up-keep of residential
sites in accord with health and safety standards."
Decl. of
Jonathan Bauer dated September 28, 2011 Ex. 37.
Chaffe managed the Brighton House and oversaw its daily
operations.
Rule 56.1
FEGS Defendants' Statement Pursuant to Local Civil
~ 15.
On both August 9 and August 29, 2010, Chaffe
6
requested that FEGSls facility management department fix the shower
at Brighton House.
Id."
86
1
88.
Limiti is the chief administrative officer of the BDDSO
supervising over a thousand employees.
I
Statement of Material Facts
in Support of Defendants Limiti and Green-Gholson's Motion for
Summary Judgment Pursuant to Local Rule 56.1 , 5.
Even though the
BDDSO is ultimately responsible for ensuring that Oakley receives
the services to which the Willowbrook Injunction entitles her,
Limiti neither provides direct care to individuals with
developmental disabilities
I
nor trains those who do, nor oversees
inspections of facilities in which such care occurs.
Id."
9-11.
In fact, the person tasked with ensuring that the BDSSO provided
Oakley with the services to which Willowbrook Injunction entitled
her is several levels down the administrative hierarchy from
Limiti.
Id."
37 38.
Under Federal Rule of Civil Procedure 56(a), a party
requesting summary judgment must demonstrate that there is "no
genuine dispute as to any material fact" and that she is "entitled
to a judgment as a matter of law."
Celotex
-------------~--------------
judgment will not lie
Fed. R. Civ. P. 56(a); see also
, 477 U.S. 317, 322-23
(1986).
\\[S]ummary
. 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
7
(1986).
Under 42 U.S.C. § 1983, "[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State
. subjects, or causes to be subjected, any citizen of the
United States
. to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured."
The Second Circuit has held that "the
actions of a nominally private entity" qualify as actions "under
color of" State law under
§
1983 when:
(1) the entity acts pursuant to the coercive power of the
state or is controlled by the state ("the compulsion
test"); (2) when the state provides significant
encouragement to the entity, the entity is a willful
participant in joint activity with the state, or the
entity's functions are entwined with state policies (the
"joint action test" or "close nexus test"); or (3) when
the entity has been delegated a public function by the
[s] tate, ("the public function test") .
Sybalski v. Independent Group Home Living Program, Inc., 546 F.3d
255, 257 (2d Cir. 2008)
(internal quotation marks omitted).
Oakley
does not argue that the State required FEGS or its employees to
take any of the actions at issue in this case, so the "compulsion
test" does not apply.
Similarly, the State neither traditionally
nor exclusively performed the function of caring for the mentally
disabled, so Oakley cannot satisfy the "public function test."
Sybalski, 546 F.3d at 259-60.
Thus, Oakley must establish that
defendants qualified as state actors under the "joint action test./I
To satisfy the joint action test, a plaintiff cannot merely
allege that the State provides "substantial funding of the
8
activities of a private entity."
1011 (1982).
Blum v. Yaretsky, 457 U.S. 991,
Neither can a plaintiff argue simply that the State
regulates the private action.
Id. at 1004.
Rather, private action
must be "so governed by state regulation as to be properly
attributed to the state."
omitted).
Sybalski, 546 F.3d at 258 (citation
Moreover, the plaintiff must prove that the state was
involved "with the activity that caused the injury giving
the action."
Id.
se to
(quoting Schlein v. Milford Hosp., Inc., 561 F.2d
427,428 (2dCir. 1977)).
In its decision on the defendants' motions to dismiss, the
Court held that FEGS's assumption of the State's duties under the
Willowbrook Injunction, among other allegations, rendered Oakley's
claim that FEGS qualified as a state actor under the joint action
test sufficiently plausible to continue to discovery.
This
holding, however, did not entail that the Willowbrook Injunction
necessarily transformed FEGS into a state actor.
Indeed, in
Sybalski, the Second Circuit held that a mental health facility was
not a state actor under the joint action test even though the State
had established "substantive rights for patients in mental health
facili
at 258 59.
and procedures for protecting these rights."
546 F.3d
Thus, even though New York law required mental health
facilities to permit patients to receive visitors at reasonable
times, a mental health facility that allegedly violated this
requirement did not qualify as a state actor.
9
Id.
In its Memorandum on the motion to dismiss, the Court did not
rely solely on the Willowbrook Injunction.
Instead,
it also noted
that Oakley alleged that staff from the BDDSO participated
extensively in making decisions about Oakley's care.
Oakley's
continued reliance on the Willowbrook Injunction, then,
is
misplaced in the absence of evidence that the State's oversight of
PEGS's compliance with that injunction rendered "the activity that
caused the injury" attributable to the State.'
evidence, however,
The undisputed
shows that the State does not regulate mental
health facilities containing Willowbrook class members more
extensively than it does other mental health facilities.
Indeed,
the "Medicaid Service Coordination Vendor Contract" between PEGS
and the State makes only sparing reference to Willowbrook class
members, and Oakley does not argue that any such reference
4At times, Oakley appears to argue that violations of the willowbrook
Injunction would give rise to a § 1983 action. See Plaintiff's
Memorandum in Opposition to Defendants' Motions for Summary Judgment
dated September 28, 2011 at 12 ("Ms. Oakley invoked 42 USC § 1983 because
the State is obligated to provide her with residential and other care and
services in a manner that will ensure her safety pursuant to the
Willowbrook Permanent
unction."). According to Oakley's logic, since
only the State has obligations under the willowbrook Injunction, any
violation of that injunction is effectively attributable to the State.
This argument fails, however, because Oakley could not bring a § 1983
action to enforce the willowbrook Injunction, not even against the State
itself. See Batista v.
, 702 F.2d 393, 398 (2d Cir. 1983) ("The
remedy for breach of the Barros agreement is a suit for breach of
contract or enforcement of the decree through judicial sanctions,
including contempt, not an action under § 1983.");
42 U.S.C.
§ 1983 (creating a cause of action based on "deprivation of any rights,
privileges, or immunities secured by the Constitution and laws" (emphasis
added)). Thus, even if FEGS failed to discharge the State's obligations
under the Willowbrook Injunction, that failure alone would not support a
§ 1983 claim, but would instead give rise to a suit to enforce the
injunction.
10
constrained FEGS's discretion in any way relevant to this case.
See Decl. of Jonathan Bauer dated September 28, 2011 Ex. 14.
Moreover, the procedures for inspecting mental health facilities
containing Willowbrook class members are virtually identical to
those that do not contain such members, and Oakley, once again,
does not argue that any difference between these procedures
relevantly affected FEGS's actions.
Compare Decl. of Adam R.
Goldsmith dated August 29, 2011 Ex. LL/ with id. Ex. MMi see also
FEGS Defendants' Statement Pursuant to Local Civil Rule 56.1
74
~~
73
(noting that the parties do not dispute that these forms'
accuracy) .
In the absence of any evidence that the State, rather than
merely imposing substantive regulatory requirements, meaningfully
participated in "the activity that caused the injury giving rise to
the action,lI the logic that Sybalski applied to mental health
facilities must govern this case.
In Sybalski/ while State law
gave patients at mental health facilities a right to receive
visitors and "established procedures governing the limitations"
facil
ies could place on that right/
lithe administrators of those
facilities ma[d]e the decision about whether such limitations
should be imposed,lI and thus that decision did not qualify as State
action.
546 F.3d at 259.
Here, almost identically, while State
regulations required water temperatures not to exceed 110°F and
provided procedures, such as inspections, for ensuring that FEGS
11
met that requirement, FEGS chose and oversaw the system by which it
attempted to comply with those regulations, and the failure of that
system was attributable to FEGS rather than to the State. s
Accordingly, no reasonable jury could conclude that either FEGS or
its policy-level employees - i.e., Oltchick, Robano Gross, and
Cohen - acted "under color of" State law, and the Court must grant
these defendants' motion for summary judgment on Oakley's
§
1983
claims against them.
The same logic applies to the
§
1983 claims against those FEGS
employees who provided direct care to Oakley, namely, Chaffe,
Taylor, and Jones.
While Oakley argues that the State relied on
the direct services of Chaffe, Taylor, and Jones in order to meet
its obligations under the Willowbrook Injunction, she once again
provides no evidence that the State so extensively regulated the
care these defendants provided that the Court can attribute the
actions that caused the injury to the State. 6
Thus, no reasonable
jury could conclude that Chaffer Taylor, and Jones acted under
color of state law, and the Court must grant these defendants'
5 Oakley appears to focus her arguments on FEGS's hot water system.
Nonetheless, to the extent she bases her § 1983 claims on FEGS's training
or supervision of its employees who provided direct care, she has also
failed to produce evidence showing that the State so thoroughly regulated
this training and supervision that any deficiency was attributable to the
State.
6As noted above/ see supra note 4, Oakley cannot sue under § 1983 for
violation of the
llowbrook Injunction, and must instead show that the
State regulated the provision of services so extensively that the alleged
violations of Oakley's legal rights are attributable to it.
12
motions for summary judgment on Oakley's § 1983 claims against
them.
Limiti is entitled to summary judgment on Oakley's
claim for a different reason.
§
1983
While Limiti, by virtue of her
position, likely undertook any relevant action under color of state
law, Oakley has not submitted any evidence that could meet the
requirement that she show that Limiti was personally involved in
the actions of which she complains.
865, 873 (2d Cir. 1995)
See Colon v. Coughlin, 58 F.3d
(requiring, under
§
1983, a plaintiff to
show that defendants were personally involved in alleged
constitutional deprivations).
The Second Circuit has held that
plaintiffs can establish \\personal involvement" by showing that:
(1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a
policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful acts,
or (5) the defendant exhibited deliberate indifference to
the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
rd.'
Oakley does not allege that Limiti \\participated directly" in
the alleged violations,
\\failed to remedy the wrong," ·created a
policy or custom under which unconstitutional practices occurred,"
7Limiti argues that Ashcroft v.Iqbal, 556 U.S. 662 (2009) precludes
Oakley from relying on some of the theories of personal involvement
advanced in Colon. Nonetheless, because the Court finds that Oakley's
§ 1983 claim cannot succeed even under the test in Colon, it need not
consider what additional effect 19bal would have on those claims.
13
or failed to "act on information" about unconstitutional acts.
Instead, she appears to argue that Limiti was "grossly negligent"
because inspectors from the BDSSO failed to test the water
temperature at every spout in Brighton House.
Plaintiff's
Memorandum in Opposition to Defendants' Motions for Summary
Judgment at 25.
Nonetheless, the facts set forth by Limiti, which
Oakley failed to dispute, reveal that Limiti is not personally
responsible for overseeing inspections of Brighton House and
ensuring that they conform to the requirements of state law.
Because Limiti had no duty to ensure that BDSSO inspectors tested
the water temperature at every spout, and thus could not breach
such a duty, Oakley has failed to prove that she was negligent,
much less that she was grossly negligent.
Accordingly, no
reasonable jury could conclude that Limiti was personally involved
in the actions of which Oakley complains, and the Court must grant
Limiti's motion for summary judgment on Oakley's
§
1983 claim.
Having granted summary judgment on all of Oakley's
§
1983
claims, the Court now turns to her claims that PEGS, Oltchick,
Robano-Gross, Cohen, Chaffe, Taylor, and Jones acted negligently
under New York State common law.
With respect to these claims, the
defendants argue that Oakley has failed to produce evidence of
proximate cause, i.e., that Udefendants' negligent act[s] or
omission[s were] a substantial factor in bringing about [Oakley's]
injuries."
Capicchioni v. Morrissey, 613 N.Y.S.2d 499, 500 (3d
14
Dep't 1994).
This argument is persuasive with respect to Oltchick
and Robano-Gross.
As noted above, the undisputed facts establish
that neither Oltchick nor Robano-Gross had any responsibility for
overseeing the daily operations of Brighton House, much less for
ensuring that the Brighton House's system for regulating water
temperatures functioned properly.
In the absence of such a
responsibility, Oakley cannot prove, and no reasonable jury could
find, that these defendants' negligence, rather than the negligence
of those who allegedly failed to properly install, inspect, and
maintain the hot water system, was a "substantial factor" in
causing her injuries.
judgment
Accordingly, the Court grants summary
favor of Oltchick and Robano-Gross on Oakley's
negligence claims.
Nonetheless, this same logic does not apply to Cohen, Chaffe,
Taylor, and Jones.
With respect to Cohen, Oakley has produced
evidence that he was responsible for "[d]irect[ing] and
monitor [ing] all facility operations to ensure adherence to all
agency and related policies" and " [e]nsuring the maintenance and
up-keep of residential sites in accord with health and safety
standards."
37.
Decl. of Jonathan Bauer dated September 28, 2011 Ex.
A jury that concluded that Cohen negligently failed to
discharge these responsibilities by disregarding the maintenance of
Brighton House's hot water system could also conclude that Cohen's
15
negligence was a "substantial factor" in causing Oakley's burns.
Chaf
s
, who managed the Brighton House and oversaw its daily
operations, bore even greater respons
lity for ensuring the
maintenance of Brighton House's hot-water system.
In fact,
in the
month preceding the incident, he twice requested that FEGS's
facility management department fix the shower at Brighton House.
If a jury concluded that Chaffe had been negligent in his approach
to the shower, or to the hot-water system generally, it could
reasonably conclude that Chaffe's negligence proximately caused
Oakley's burns.
With respect to Taylor, Oakley has produced evidence that
Taylor's advice delayed treatment of Oakley's inj
delay in treatment exacerbated those injuries.
and that the
A jury that
concluded that Taylor departed from professional standards when she
provided the relevant advice could reasonably conclude that
Taylor's negligence was a substantial factor in causing the
8 Oakley has produced evidence from which a reasonable jury could conclude
that Cohen failed to maintain Brighton House's system for regulating
water temperature.
First, Oakley has provided evidence that that system,
as installed, might not have prevented water temperatures from
110°F. See Decl. of Jonathan Bauer dated September 28, 2011 Ex. 18
("Garside Depo.") at 110:5 111:22. In fact, during previous
ions
of Brighton House in 2007 and 2008, inspectors found that the water
temperature had reached 123°F and 131°F, respectively.
FEGS Defendants'
Statement Pursuant to Local Civil Rule 56.1 ~~ 75-76. Moreover, the
logbook in which FEGS employees presumably recorded water
reports almost uniform findings that, during the relevant period, the
water temperature was exactly 110°F. See Amended Decl. of Adam R.
Goldsmith dated August 29, 2011 Ex. R. A jury could reasonably conclude
that Cohen should have reviewed this logbook in discharging his duties
and that, had he done so, he would have become suspicious of Brighton
House's monitoring efforts.
16
additional injury that resulted from the delay in treatment. 9
Finally, because Oakley has produced evidence that Jones
administered the cleaning that allegedly burned Oakley,lO a jury
could find that any negligence on the part of Jones directly caused
Oakley's injuries.
Accordingly, the Court denies these defendants'
motions for summary judgment on Oakley's negligence claims.
Since
a jury could conclude that the negligence of multiple FEGS
employees proximately caused Oakley's injuries, it could also find
FEGS liable on a theory of respondeat superior.
N.Y.2d 656, 666-67 (1957)
.11
Bing v. Thunig, 2
Thus, the Court denies FEGS's motion
for summary judgment on Oakley's negligence claims.
Finally, the remaining defendants argue that, because the
Court has granted summary judgment on or dismissed all of Oakley's
federal claims, the Court should remand the remainder of this case
to state court.
28 U.S.C.
§
1367(c) provides that a district court
"may decline to exercise supplemental jurisdiction over a claim" if
"the district court has dismissed all claims over which it has
9 Oakley's expert, Nurse Rosalie M. Yazbeck, has opined that Nurse Taylor
departed from professional standards by relying on the assessment of
Jones who was not a licensed medical professional, instead of direct
assessing of Oakley's condition. Declaration of Jonathan Bauer dated
September 28, 2011 Ex. 50.
lOSee Declaration of Jonahthan Bauer dated September 28, 2011 Ex. 35
(incident report in which Jones states, "while I was showering Rosalie
[Oakley] I noticed that the skin between her legs was peelinglf) .
11 Jones appears to argue that the doctrine of respondeat superior
prevents Oakley from bringing a negligence claim against Jones because
such a claim can proceed against FEGS, Jones's employer. Nonetheless, in
the absence of support for this interpretation of the doctrine the Court
finds that Oakley can bring claims against both employer and employee.
I
l
17
original jurisdiction"
is triggered,
(emphasis added).
Once a court's discretion
"the exercise of discretion 'is informed by whether
remanding the pendent state claims comports with the underlying
objective of most sensibly accommodat[ing]
convenience, fairness, and comity.'"
the values of economy,
Itar-Tass Russian News Agency
v. Russian Kurier, Inc., 140 F.3d 442, 445 (2d Cir. 1998)
(quoting
Executive Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545,
1557 (9th Cir. 1994)).
Here, retaining the case will best promote
the values of economy and convenience.
The Court is familiar with
the underlying facts and can bring the case to trial more quickly
than could a court without such familiarity.
Accordingly, the
Court denies the remaining defendants' request for remand to state
court.
In sum, the Court grants the defendants' motions for summary
judgment on Oakley's
§
1983 claims and on Oakley's state law
negligence claims against defendants Oltchick and Robano-Gross.
In
contrast, the Court denies the defendants' motions for summary
judgment on Oakley's negligence claims against FEGS, Cohen, Chaffe,
Taylor, and Jones.
The Clerk of the Court is directed to enter
final judgment with respect to defendants Oltchick, Robano-Gross,
Limiti, and Green-Gholson.
The remaining parties are ordered to
continue preparing for the trial scheduled to begin at 9 A.M. on
April 23, 2012.
SO ORDERED.
18
Dated:
New York, New York
January ~, 2012
19
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