Ross v. Correct Care Solutions LLC et al

Filing 58

OPINION & ORDER. The Correct Care Defendants' September 13, 2012 motion is granted in its entirety. The County Defendants' September 12, 2012 motion is denied as to Ross's deliberate indifference and retaliation claims against Yozzo, a nd state law medical malpractice and gross negligence claims against Yozzo and the County. The County Defendants' motion is granted in all other respects. The Clerk of Court will amend the caption to add Westchester County and remove Westchester County Jail. [granting in part and denying in part 37 Motion to Dismiss; granting in part and denying in part 41 Motion to Dismiss]. (Signed by Judge Denise L. Cote on 9/13/2013) Copies Mailed to Christopher Ross By Chambers. (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
:
CHRISTOPHER ROSS,
:
:
Plaintiff,
:
:
-v:
:
CORRECT CARE SOLUTIONS LLC; NEW
:
YORK CORRECT CARE SOLUTIONS
:
MEDICAL SERVICES PC; WESTCHESTER
:
COUNTY JAIL; ROBERT ASTORNIO,
:
WESTCHESTER COUNTY EXECUTIVE;
:
WANDA SMITHSON, DEPUTY
:
COMMISSIONER; DOCTOR PAUL ADLER;
:
MEDICAL LIAISON JUNE YOZZO; LICENSE:
PRACTITIONER BERNADETTE NELSON,
:
:
Defendants.
:
:
-----------------------------------X
APPEARANCES:
For plaintiff:
Christopher Ross, pro se
95-A-8093
Greene Correctional Facility
P. O. Box 975
Coxsackie, NY 12051-0975
For County defendants:
Robert F. Meehan
Christine Lynne D’Alessio
Westchester County Attorney’s Office
148 Martine Avenue
White Plains, NY 10601

1

11 Civ. 8542 (DLC)

OPINION & ORDER

For Correct Care defendants:
James C. Freeman
Kent Hazzard, LLP
111 Church Street
White Plains, NY 10601

DENISE COTE, District Judge:
Plaintiff Christopher Ross (“Ross”), proceeding pro se,
brings this action pursuant to 42 U.S.C. § 1983 for injunctive
relief, declaratory relief, and damages against defendants
Westchester County Jail (“Jail”) County Executive Robert
Astorino (“Astorino”), Deputy Commissioner Wanda Smithson
(“Smithson”), and Medical Liaison June Yozzo (“Yozzo”)
(collectively, “County Defendants”), and against New York
Correct Care Solutions Medical Services P.C. (“NYCCS”), which
provides medical services for the jail, its parent company,
Correct Care Solutions, LLC (“Correct Care”), and two Correct
Care employees, Dr. Paul Adler (“Adler”) and Nurse Bernadette
Nelson (“Nelson”) (collectively, “Correct Care Defendants”)
regarding the medical treatment he received while incarcerated
at the Jail.

Ross principally alleges that the defendants

failed to provide adequate medical care to treat his sleep
apnea.

The two sets of defendants have moved to dismiss the

complaint.

For the following reasons, the motion by the Correct

2

Care Defendants is granted.

The motion by the County Defendants

is granted in part.

BACKGROUND
The following facts are as alleged in the complaint, as
modified by the plaintiff’s opposition to these motions to
dismiss, and are assumed to be true. 1

Upon arriving at the Jail

on February 28, 2011, Ross informed the intake nurse that he
suffers from cardiomyopathy, hypertension, and sleep apnea.
Later that day, he met with defendant Nelson, at which time he
explained that, due to his sleep apnea, he uses a continuous
positive airway pressure (“CPAP”) 2 machine on a regular basis
when at home.

The plaintiff further informed Nelson that during

a previous period of incarceration at the Jail, he had used an
outdated bi-level positive airway pressure (“Bi–PAP”) machine to

1

In opposing the motions to dismiss, the plaintiff abandoned
several of his claims and clarified other contentions. By Order
dated September 14, 2012, the Court provided the plaintiff an
opportunity to amend the complaint or file opposition to the
defendants’ motions to dismiss. The plaintiff did not file an
amended complaint and chose instead to oppose the motions. This
Opinion considers both the opposition and complaint together.
As a result, it will only discuss the abandoned claims briefly,
and will include any supplemental or clarifying statements
contained in the opposition.
2

CPAP is a type of therapy, using a machine to help a person
with obstructive sleep apnea to breath more easily during sleep.
The CPAP machine increases air pressure in the throat so that
the airway does not collapse when the individual breathes in.
3

treat his condition. 3

According to Ross, Nelson wrote a note in

his medical file that read:
Spoke to [inmate] regarding sleep apnea. States diagnosed
2006 after sleep studies and using CPAP machine. States
machine is at his home, but was staying in Connecticut.
States able to sleep without CPAP.
The plaintiff was not given a CPAP machine at the time.

Ross

claims that Nelson falsely wrote that Ross told her that he was
able to sleep without a CPAP.

Ross does not appear to claim

that the remaining portion of Nelson’s medical record -- that
his CPAP machine was at his home, but that he had been staying
elsewhere in Connecticut -- is inaccurate.
On April 19, the plaintiff filed a medical grievance in
which he complained that he had been denied access to
medications and treatment for pain he suffered from a herniated
disk and a nerve problem in his back.

The following day he met

with Dr. Adler at the J-Block clinic.

Ross explained that he

was in need of pain medicine.

Ross also requested that he be

given a prescription for Amlopine -- a blood pressure medication
-- and that he be permitted to use a CPAP machine.

Dr. Adler

told the plaintiff, “Don’t worry about the CPAP machine[;] we
will worry about that later.”
Following the examination by Dr. Adler, the plaintiff’s
April 19 medical grievance was marked “partially
3

A Bi-PAP machine is similar to a CPAP machine.
4

substantiated/action requested granted.”

On April 27, this

finding was overturned by defendant Smithson.

The plaintiff

sought to appeal this finding through an Article 78 proceeding.
He later learned, on June 2, that his motion papers had never
been received by the Westchester County Clerk.

After further

inquiries, the plaintiff mailed the motion papers again.

He was

informed on September 19 that they had been received.
On June 18, the plaintiff attempted to file a grievance
complaining about the failure to provide him with a CPAP
machine; the grievance was not accepted and returned to him.
The plaintiff saw Dr. Adler on June 20, at which time he
complained again about not receiving a CPAP machine.

Dr. Adler

explained that he would need to verify that the machine was
medically necessary.
On June 21, defendant Yozzo visited Ross in his cell to
speak to him about his medical records.

Yozzo told Ross that he

would not be given a CPAP machine because he liked “to sue”
people.

This is apparently a reference to the action filed by

Ross against the Jail and others on May 12, 2010 to complain
principally about the defendants’ failure to treat his sleep
apnea.

See Ross v. Westchester County Jail, No. 10 Civ. 3937

(DLC), 2012 WL 86467 (S.D.N.Y. Jan. 11, 2012).

Yozzo stated in

essence, “Oh you’re the same guy that was in the SHU last year
5

with sleep apnea.

You’re not going to get anything if I can

help it since you like to sue people.”
On June 27, Dr. Adler came to the plaintiff’s cell block
and explained that, according to Yozzo, during the plaintiff’s
prior period of incarceration at the Jail, there had been
fourteen incidents of the plaintiff’s “non-compliance with the
CPAP machine.”

Accordingly, Dr. Adler explained, the plaintiff

would not be receiving a machine.

The plaintiff alleges that

Dr. Adler fabricated the prior instances of “non-compliance”
with the CPAP machine.

Dr. Adler attached a note to Ross’

medical files indicating that during the plaintiff’s previous
period of incarceration he had slept soundly without the
assistance of a CPAP machine on over ten occasions, that his
weight had not changed materially since that time, and that the
plaintiff’s desire was to move to a single room in an airconditioned cell block.

Based on these observations, Dr. Adler

concluded that the use of a CPAP machine was “optional” and not
“medically mandatory” for Ross.
The plaintiff filed a second grievance regarding the
failure to afford him a CPAP machine on June 27 (“June 27
Grievance”).
grievance.

Three days later, he attempted to file a third
The third grievance was rejected on the ground that

it duplicated the June 27 Grievance.
6

The plaintiff received an

answer to the June 27 Grievance on July 5.

The grievance was

marked unsubstantiated due to the fact that, according to the
answer, the plaintiff had informed medical staff upon his
arrival at the facility that he: had not used his CPAP machine
recently prior to being admitted, had been staying in
Connecticut while his CPAP machine was at home in New York, and
was able to sleep without the CPAP machine.

Nonetheless,

Correct Care determined that it would provide the plaintiff a
CPAP machine going forward.
On August 1, the plaintiff filed a grievance asserting that
he continued to have difficulty breathing and was in need of a
CPAP machine.

He also complained that Nelson had falsified his

medical records at the time he was admitted.

The plaintiff

filed another grievance regarding the alleged falsification of
his medical records on August 8; this grievance was returned to
him with an indication that it was too vague.
The plaintiff received a CPAP machine on January 11, 2012. 4
On February 13, Ross had a sleep study conducted to confirm that
he does have sleep apnea and a CPAP machine is medically
mandatory for his condition.
4

January 11, 2012 is the day the Court issued its Opinion in the
2010 action filed by Ross. Ross, 2012 WL 86467. In that
Opinion, all claims against the individual defendants were
dismissed. The sole claim that survived was the claim brought
against Westchester County for its failure to provide Ross with
treatment for sleep apnea for three months in 2009. Id. at *10.
7

The plaintiff filed the complaint in this action on
November 21, 2011.

An Order of January 6, 2012, stayed the case

pending a decision in the above-referenced Article 78
proceeding.

The Article 78 proceeding resulted in an Opinion of

March 2 denying the plaintiff’s request for relief.
The County Defendants moved to dismiss the complaint on
September 12, 2012, and the Correct Care Defendants moved to
dismiss the complaint on September 13.

The plaintiff was given

an opportunity to serve any amended pleading or opposition to
the motion, but warned that he would have no further opportunity
to amend the pleading to address the defects raised in the
September 12 motion.

After several extensions, the plaintiff

filed an opposition.

DISCUSSION
To survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
U.S. 662, 678 (2009) (citation omitted).

Ashcroft v. Iqbal, 556
Applying this

plausibility standard is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.”

Id. at 679.

8

When considering a motion to dismiss under Rule 12(b)(6), a
trial court must “accept all allegations in the complaint as
true and draw all inferences in the non-moving party’s favor.”
LaFaro v. New York Cardothoracic Group, PLLC, 570 F.3d 471, 475
(2d Cir. 2009).

Moreover, pleadings filed by pro se plaintiffs

are to be construed liberally.

Chavis v. Chappius, 618 F.3d

162, 170 (2d Cir. 2010) (citation omitted).

“The rule favoring

liberal construction of pro se submissions is especially
applicable to civil rights claims.”
191, 194 (2d Cir. 2003).

Ortiz v. McBride, 323 F.3d

A complaint must do more, however,

than offer “naked assertions devoid of further factual
enhancement,” and a court is not “bound to accept as true a
legal conclusion couched as a factual allegation.”

Iqbal, 556

U.S. at 678.
A. Federal Deliberate Indifference Claims
The plaintiff asserts claims against individual defendants
Nelson, Dr. Adler, and Yozzo for deliberate indifference to his
serious medical needs in violation of his Eighth and Fourteenth
Amendment rights for their failure to provide him with a CPAP
machine. 5

“There are two elements to a claim of deliberate

indifference to a serious medical condition: [t]he plaintiff

5

Ross’s opposition to these motions abandons his claims with
respect to the treatment he received while incarcerated for back
pain.
9

must show that [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 omitted).

Deliberate

indifference is a mental state akin to recklessness, and is
measured using a subjective test that discerns whether the
defendant was “actually aware of an excessive risk to an
inmate’s health or safety,” id. at 69, and therefore “act[ed]
with a sufficiently culpable state of mind.”

Salahuddin v.

Goord, 467 F.3d 263, 280 (2d Cir. 2006). 6
“As the Supreme Court has noted, the prison official’s duty
is only to provide reasonable care.”

Id. at 279 (citing Farmer

v. Brennan, 511 U.S. 825, 844-47 (1994)).

An inmate is not

entitled to treatment by every available medical alternative as
long as his treatment is reasonable.
U.S. 97, 107 (1976).

See Estelle v. Gamble, 429

Furthermore, a “mere disagreement over the

proper treatment does not create a constitutional claim.

So

long as the treatment given is adequate, the fact that a
prisoner might prefer a different treatment does not give rise
6

In his opposition to these motions, Ross asks the Court to
consider the U.S. Department of Justice Investigation Report
issues on November 19, 2009, regarding conditions at the Jail.
“In considering a motion to dismiss for failure to state a
claim, a district court must limit itself to the facts stated in
the complaint, documents attached to the complaint as exhibits
and documents incorporated by reference in the complaint.”
Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 192 (2d Cir.
2006) (citation omitted). Accordingly, the report will not be
considered in deciding this motion.
10

to an Eighth Amendment violation.”

Hill v. Curcione, 657 F.3d

116, 123 (2d Cir. 2011) (citation omitted).
The allegations in the complaint are not sufficient to
state deliberate indifference claims against Nelson or Dr. Adler
with respect to the failure to treat the plaintiff’s sleep
apnea.

While Ross has adequately plead that he suffers from a

serious medical condition, 7 he has not sufficiently alleged that
either Nelson or Dr. Adler acted with a “sufficiently culpable
state of mind.”

Salahuddin, 467 F.3d at 280.

The mental state

necessary to support a deliberate indifference claim “requires
that the charged official act or fail to act while actually
aware of a substantial risk that serious inmate harm will
result.”

Id.

This means that the prison official “must be

subjectively aware that his conduct creates such a risk.”

Id.

at 281.
The complaint does not contain sufficient facts to allege
that either Nelson or Dr. Adler denied him access to a CPAP
machine while actually aware of a substantial risk that serious
harm could befall him as a result.

Despite Ross’s repeated

insistence that he required the assistance of a CPAP machine,
Ross does not dispute that he told Nelson upon his arrival at

7

As this Court has previously held, sleep apnea can be life
threatening and may therefore qualify as a serious medical
condition. See Ross, 2012 WL 86467, at *5.
11

the Jail that he had been staying in Connecticut while his CPAP
machine was elsewhere, at home.

Based on this statement, Nelson

reasonably could have understood that he could sleep safely
without a CPAP machine.

While Ross contends that he never told

Nelson that he was “able to sleep without CPAP,” that
constitutes little more than a disagreement about the
characterization of Ross’s statements.

Having told Nelson, in

effect, that he was not using his CPAP machine, Ross cannot
premise his claim that Nelson acted with deliberate indifference
to his severe medical needs on the fact that she interpreted his
words to mean that he was able to sleep without the machine.
As for Dr. Adler, the complaint indicates that Dr. Adler
initially chose to treat Ross’s more acute problems, then
indicated that he needed to determine whether Ross actually
needed a CPAP machine, and within one week based his decision
that a CPAP was “optional” for Ross on an assessment of Ross’s
medical history given the information available to him at the
time.

That Ross believed that something more should have been

done to treat his medical conditions amounts to a disagreement
with a course of medical treatment, and must be dismissed. 8

See

Hill, 657 F.3d at 123.

8

In his opposition to the motion to dismiss, Ross abandons his
claim that Dr. Adler falsified medical records. Instead, Ross
asserts that defendant Yozzo advised Dr. Adler, apparently
12

By contrast, Ross’s allegations are sufficient to state a
claim for deliberate indifference against Yozzo.

According to

the complaint, although she was informed about his sleep apnea,
Yozzo deliberately refused to provide him with medical treatment
for his sleep apnea on account of his prior complaint and
lawsuits.
B. Supervisory and Municipal Liability for Federal Claims
The plaintiff also seeks to hold defendants Astorino and
Smithson liable as to his claim of deliberate indifference in
their supervisory capacities, along with Westchester County
(“County”), 9 NYCCS, and Correct Care.

With the abandonment of

plaintiff’s claims related to his back pain, Ross’s remaining
allegations principally claim that these defendants failed
appropriately to supervise subordinate officers at the Jail who
did not provide Ross with a CPAP machine for eleven months to
treat his sleep apnea.
It is well established that general respondeat superior
liability does not exist under Section 1983.

Back v. Hastings

inaccurately, that on fourteen occasions in the prior years Ross
was “not in compliance” with the use of the CPAP machine. While
the claims against Dr. Adler are being dismissed, the claims
against Yozzo survive.
9

Ross named the Jail as a defendant, but the Jail does not have
a legal identity separate and apart from the County and,
therefore, cannot be sued. Jones v. Westchester Cnty. Dep’t of
Corr. Med. Dep’t, 557 F.Supp.2d 408, 416 n.4.
13

on Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir.
2004).

An individual supervisor can be held liable, however, if

the plaintiff establishes the “defendant’s personal involvement
in the alleged constitutional deprivation.”

Grullon v. City of

New Haven, 720 F.3d 133, 138 (2d Cir. 2013).

Examples of such

personal involvement include directly participating in the
infraction, and creating a policy or custom under which
unconstitutional practices occurred, or allowing such a policy
or custom to continue.

See id. at 139. 10

Likewise, Section 1983

10

In Hastings on Hudson, 365 F.3d 107, the Second Circuit held
that personal involvement may be shown by
evidence 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 . . . by failing to act on information
indicating that unconstitutional acts were occurring.
Id. at 127 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)). The Supreme Court’s decision in Iqbal, 556 U.S. 662,
which found that a supervisor can be held liable only “through
the official's own individual actions,” id. at 676, arguably
casts doubt on the continued viability of some of the categories
set forth in Hastings on Hudson and Colon. See Grullon, 720
F.3d at 139 (recognizing that Iqbal “may have heightened the
requirements for showing a supervisor’s personal involvement
with respect to certain constitutional violations”). For the
14

“extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that
it has sanctioned, led to an independent constitutional
violation.”

Okin v. Village of Cornwall–on–Hudson Police

Dep’t., 577 F.3d 415, 439 (2d Cir. 2009); see Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 692 (1978).
Ross’s allegations of supervisory liability on his federal
claims must be dismissed.

First, having found no deliberate

indifference on the part of Dr. Adler or Nelson, the plaintiff’s
supervisory liability claims against their employer Correct Care
are dismissed.

With respect to the County, nothing in the

complaint suggests that Yozzo’s pronouncement that she intended
to deny Ross access to a CPAP machine was in any way a part of
or otherwise related to a policy or custom of the County.

Nor

does the complaint detail what knowledge or role, if any,
defendants Astorino and Smithson had with respect to Yozzo’s
statement or any other aspect of the medical treatment Ross
received for his sleep apnea.

purposes of this case, however, it is not necessary to explore
this issue because the complaint fails to plead that Astorino
and Smithson were personally involved under any of the Hastings
on Hudson categories.
15

C. State Law Claims
The plaintiff also asserts state law claims of negligence,
gross negligence, and negligent infliction of emotional distress
against individual defendants Dr. Adler and Yozzo and a
supervisory liability claim against the County.

The plaintiff’s

negligence claims are governed by New York’s medical malpractice
law.

“[T]o establish a claim of medical malpractice under New

York law, a plaintiff must prove (1) that the defendant breached
the standard of care in the community, and (2) that the breach
proximately caused the plaintiff’s injuries.”

Milano ex rel.

Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995) (citation
omitted).

Gross negligence is adjudicated under the same

standard, with the additional requirement that the defendants’
conduct be shown to “evince[] a reckless disregard for the
rights of others or smack[] of intentional wrongdoing.”
Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt.,
692 F.3d 42, 61 (2d Cir. 2012) (citation omitted).

In order for

the plaintiff to recover under a theory of negligent infliction
of emotional distress in the absence of physical injury he must
prove not only negligence, but also that he suffered
psychological trauma resulting in substantial emotional harm.
Armstrong ex rel. Armstrong v. Brookdale Univ. Hospital, 425
F.3d 126, 137 (2d Cir. 2005).

Subject to certain exceptions,
16

New York makes employers vicariously liable for the torts of
their employees when acting within the scope of their
employment, so long as the negligent or intentional tortious
conduct “is generally foreseeable and a natural incident of the
employment.”

Horvath v. L & B Gardens, Inc., 932 N.Y.S.2d 184,

185 (App. Div. 2011) (citation omitted).

However, “liability

will not attach for torts committed by an employee who is acting
solely for personal motives unrelated to the furtherance of the
employer’s business.”

Id. (citation omitted).

As the Court has already concluded that the conduct that
the plaintiff alleges as to Yozzo is sufficient to state a claim
for deliberate indifference, it follows, a fortiori, that the
plaintiff’s allegations of medical malpractice and gross
negligence are adequately pled in so far as they concern Yozzo’s
failure to treat his sleep apnea.

See Chance v. Armstrong, 143

F.3d 698, 703 (2d Cir. 1998) (allegations of deliberate
indifference must rise above a mere showing of medical
malpractice).

Although the complaint does not specifically

indicate whether Yozzo’s actions were part of her employment or
a result of personal incentives, Yozzo went to Ross’s cell block
to discuss his medical records as the County’s Medical Liaison.
As a result, at this early stage in the proceedings, the

17

plaintiff’s state law claims of medical malpractice and gross
negligence as to the County are adequately pled as well.
By contrast, because nothing in the complaint suggests that
the failure to treat the plaintiff’s sleep apnea by Dr. Adler
was a breach of the standard of care, the plaintiff’s claims as
to him, NYCCS, and Correct Care are dismissed.

Moreover, the

complaint does not allege that the plaintiff suffered lasting
emotional harm as a result of the failure to treat his sleep
apnea.

Accordingly, the plaintiff’s claim of negligent

infliction of emotional distress is dismissed as well.
D. Section 1983 Retaliation
Finally, the plaintiff alleges that defendant Yozzo
retaliated against him for filing grievances by denying him
needed medical care.

To establish a First Amendment claim of

retaliation, a plaintiff must show:
(1) that the speech or conduct at issue was protected, (2)
that the defendant took adverse action against the
plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.
Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (citation
omitted).

In the prison context, “only retaliatory conduct that

would deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights constitutes an
adverse action.”

Wrobel v. Cnty. of Erie, 692 F.3d 22, 31 (2d

Cir. 2012) (citation omitted).

“Otherwise the retaliatory act
18

is simply de minimis and therefore outside the ambit of
constitutional protection.”

Davis v. Goord, 320 F.3d 346, 353

(2d Cir. 2003) (citation omitted); see Wrobel, 692 F.3d at 31.
“[T]his objective test applies even where a particular plaintiff
was not himself subjectively deterred; that is, where he
continued to file grievances and lawsuits.”
389 F.3d 379, 381 (2d Cir. 2004).

Gill v. Pidlypchak,

When considering a prisoner’s

retaliation claims, the court must bear in mind that “prisoners
may be required to tolerate more than average citizens, before a
retaliatory action taken against them is considered adverse.”
Davis, 320 F.3d at 353 (citation omitted).
It is undisputed that the plaintiff has satisfied this
first prong of a retaliation claim.

The First Amendment

protects prisoners from retaliation for the filing of grievances
and lawsuits.

Id. at 352-53.

Moreover, for the purposes of

this motion to dismiss, the plaintiff’s allegations are
sufficient to satisfy the other two prongs of the retaliation
standard.

As noted, the plaintiff alleges that on June 32,

Yozzo told him, “Oh you’re the same guy that was in the [Special
Housing Unit] last year with sleep apnea.

You’re not going to

get anything if I can help it, since you like to sue people.”
The plaintiff further alleges that Yozzo “interfered with
physician instructions and maliciously denied plaintiff medical
19

care and treatment,” including the use of a CPAP machine to
treat his sleep apnea.

It is hardly debatable that the denial

of essential medical treatment is adverse action of the type
that “would deter [a prisoner] of ordinary firmness from
exercising his . . . constitutional rights.”
at 31.

Wrobel, 692 F.3d

Additionally, the alleged statement by defendant Yozzo

provides the needed causal connection between the plaintiff’s
protected activity and the alleged adverse action.
Defendants suggest in their brief in support of dismissal
that, by virtue of her position, defendant Yozzo “is incapable
of denying medical treatment.”

But this assertion rests on

facts that are outside of the pleadings and is inconsistent with
the plaintiff’s assertion that Yozzo personally took steps to
prevent him from obtaining medical treatment.

To the extent

defendants argue that Yozzo’s conduct is shielded by qualified
immunity, a government official may be shielded from liability
under the doctrine of qualified immunity “if h[er] conduct did
not violate clearly established rights or if it would have been
objectively reasonable for the official to believe his conduct
did not violate plaintiff’s rights.”

Reuland v. Hynes, 460 F.3d

409, 419 (2d Cir. 2006) (citation omitted).
out above, that argument is rejected.

For the reasons set

The defendants may renew

their application under this affirmative defense at the time of
20

summary judgment practice if they believe the factual record
supports it.

CONCLUSION
The Correct Care Defendants’ September 13, 2012 motion is
granted in its entirety.

The County Defendants’ September 12,

2012 motion is denied as to Ross’s deliberate indifference and
retaliation claims against Yozzo, and state law medical
malpractice and gross negligence claims against Yozzo and the
County.
respects.

The County Defendants’ motion is granted in all other
The Clerk of Court will amend the caption to add

Westchester County and remove Westchester County Jail.

SO ORDERED:
Dated:

New York, New York
September 13, 2013

__________________________________
DENISE COTE
United States District Judge

21

COPIES MAILED TO:
Christopher Ross
#95-A-8093
Greene Correctional Facility
P. O. Box 975
Coxsackie, NY 12051-0975