Washington v. Westchester County Department of Correction et al

Filing 46

OPINION AND ORDER re: 34 MOTION to Dismiss filed by Correct Care Solution, Westchester County Department of Correction: For the foregoing reasons, Defendants' motion to dismiss is GRANTED in its entirety. Plaintiff's Se ction 1983 claim is DISMISSED with prejudice. His state-law claims against the individual defendants and Correct Care are DISMISSED without prejudice. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 1/30/2015) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------- X
:
DARRELL WASHINGTON,
:
:
Plaintiff,
:
:
v.
:
:
WESTCHESTER COUNTY DEP’T OF
:
:
CORRECTION, et al.,
:
:
Defendants.
:
-------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 30, 2015
______________

13 Civ. 5322 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
In early 2013, Plaintiff Darrell Washington, who is proceeding pro se and
is currently incarcerated, experienced complications from a severe bacterial
infection while incarcerated at the Westchester County Jail. Plaintiff brought
suit under 42 U.S.C. § 1983, alleging deliberate indifference to his medical
needs in violation of the Eighth Amendment. Plaintiff’s Complaint was
dismissed on April 24, 2014, for failure to state a claim. With the Court’s leave
to file a more particularized pleading, Plaintiff filed an Amended Complaint on
May 26, 2014. Defendants now move to dismiss the Amended Complaint,
again for failure to state a claim. For the reasons discussed herein, that
motion is granted.

BACKGROUND1
The Court assumes familiarity with the facts and procedural history set
forth in its prior decision granting Defendants’ motion to dismiss Plaintiff’s
Complaint, and granting Plaintiff leave to amend, Washington v. Westchester
County Dep’t of Corr., No. 13 Civ. 5322 (KPF), 2014 WL 1778410 (S.D.N.Y.
Apr. 25, 2014), as well as the Court’s rulings therein. For convenience, the
particular facts relevant to this motion are set forth below.
A.

Factual Background
Plaintiff was arrested on or about January 23, 2013. (Am. Compl. 2).

Prior to his arrest, Plaintiff had been prescribed a medication called
Doxycycline, as well as an ointment called Bactroban. (Id. at 3, 17; see also Pl.

1

The facts alleged herein are drawn from Plaintiff’s Amended Complaint (“Am. Compl.”
(Dkt. #31)), and are assumed true for the purposes of this Opinion. Citations to the
Amended Complaint include the page-numbering convention provided by this Court’s
electronic case filing (or “ECF”) system. While the Court ordinarily may not consider
factual allegations contained in opposition papers to a motion to dismiss, given
Plaintiff’s pro se status, the Court will consider new factual allegations contained in
Plaintiff’s opposition. See generally Rodriguez v. Rodriguez, No. 10 Civ. 891 (LGS), 2013
WL 4779639, at *1 (S.D.N.Y. July 8, 2013) (collecting cases); Torrico v. Int’l Bus. Machs.
Corp., 213 F. Supp. 2d 390, 399 n.4 (S.D.N.Y. 2002) (Lynch, J.) (noting that a court
may consider factual allegations contained in a pro se litigant’s opposition papers and
other court filings). In that same vein, the Court will consider facts from the Plaintiff’s
Complaint (Dkt. #2 (“Compl.”)) that have not been repeated in the Amended Complaint.
See Little v. City of New York, No. 13 Civ. 3813 (JGK), 2014 WL 4783006, at *1 (S.D.N.Y.
Sept. 25, 2014) (“The plaintiff thus appears to believe that the Amended Complaint
supplements, rather than replaces, the Original Complaint. Because the plaintiff is
proceeding pro se, the Court will consider the Original Complaint and the Amended
Complaint together as the operative pleading.”); see also Fleming v. City of New York,
No. 10 Civ. 3345 (AT), 2014 WL 6769618, at *3 (S.D.N.Y. Nov. 26, 2014) (“Even though
an amended complaint ordinarily supersedes the original and renders it of no legal
effect, the Court considers both Plaintiff’s original and amended complaints.” (internal
quotation marks omitted)); Camarano v. City of New York, 624 F. Supp. 1144, 1147-48
(S.D.N.Y. 1986) (“[A] pro se civil rights complaint[] should be … given the benefit of
incorporation.” (internal quotation marks and citation omitted)).
For convenience, Defendants’ opening brief in support of the instant motion (Dkt. #36)
will be referred to as “Def. Br.”; Plaintiff’s opposition (Dkt. #41) as “Pl. Opp.”; and
Defendants’ reply brief (Dkt. #44) as “Def. Reply.”

2

Opp., Ex. A at 1). Plaintiff alleges that he was prescribed these medications
“for treatment [of] the infectious disease MRSA.” (Am. Compl. 3).2 In support
of this allegation, Plaintiff has submitted a medical report dated January 4,
2013 — approximately 19 days prior to his arrest — from Hudson Valley
Hospital (“Hudson Valley”) in Cortland Manor, New York. (See Pl. Opp., Ex. A).
The treating physician indicated that Plaintiff complained of “pain, erythema[,]
tenderness of both knees[,] and one spot on his abdomen,” and reported that
his symptoms began “with a rash on his back two months ago and … several,
painful lesions in the interim.” (Id. at 1). The doctor’s “clinical impression
[wa]s MRSA cellulitis” and his diagnosis was “acute cellulitis.” (Id.). The doctor
prescribed two medications: 20 tabs of Doxycycline (with instructions to take
two tabs daily for 10 days) and Bactroban ointment (with instructions to “apply
to affected area three times a day”). (Id.).
Beginning on January 24, 2013, Plaintiff was incarcerated at the
Westchester County Jail (the “Jail”), in Valhalla, New York. (Am. Compl. 17
(noting an “admit date” of January 24, 2013)). The Jail is operated by
Defendant Westchester County Department of Correction (the “County”).
Defendant Correct Care Solutions, LLC (“Correct Care”) provides medical care
to prisoners at the Jail. (See generally Am. Compl. 14-16, 19-24 (Correct Care
forms from Plaintiff’s records)).

2

MRSA is an acronym for Methicillin-resistant Staphylococcus aureus, a bacterium that
can cause serious infections. See Methicillin-Resistant Staphylococcus aureus (MRSA),
National Institute of Allergy and Infectious Diseases, National Institutes of Health,
http://www.niaid.nih.gov/topics/antimicrobialresistance/examples/mrsa/Pages/
default.aspx (last visited Jan. 27, 2015).

3

When Plaintiff was processed for intake at the Jail, the Doxycycline and
Bactroban were taken from him, along with his various other personal
belongings. (See Am. Compl. 17). Plaintiff informed a correctional officer, an
intake nurse (referred to in the Amended Complaint as “Jane Doe”), and a
doctor on staff (referred to as “John Doe #1”) that Plaintiff was on medication
for MRSA. (Compl. 3; see Am. Compl. 3 (“[H]e informed staff of his infectious
disease.”); id. at 15 (staff referral form noting that Plaintiff had a “Hx [history
of] Doxycycline”); Pl. Opp. 2 (“The intake nurse is Jane Doe[.] John Doe #1 [is]
Corrections Care Doctor [who] denied Plaintiff his medication[.]”)).3 The doctor
informed Plaintiff that he could no longer take the medications he had brought
with him, but that Plaintiff would be prescribed new medications. (See Am.
Compl. 3; Pl. Opp. 2). No such medication was prescribed for Plaintiff’s first
two months at the Jail. (Am. Compl. 3).
On or about March 17, 2013, Plaintiff developed a large abscess on his
leg. (See Am. Compl. 3, 9, 20). The abscess was “very painful.” (Id. at 3). In
response to Plaintiff’s complaint, a doctor performed a blood test, measured the
size of the wound, and placed Plaintiff in quarantine for approximately one
week. (Compl. 3; Am. Compl. 3). The diagnostic test results subsequently
revealed that Plaintiff was infected with MRSA. (Am. Compl. 3). Accordingly, a
doctor prescribed antibiotics and painkillers to Plaintiff, which he took for
approximately three weeks. (Compl. 3). Although he was eventually treated for
3

Although Plaintiff’s opposition brief clarifies the involvement of Jane Doe and John Doe
#1, it does not with respect to the defendant named as “John Doe #2.” (See Pl. Opp. 2;
see also Def. Br. 5-6 (discussing individual defendants and lack of alleged involvement)).

4

the infection, Plaintiff alleges he experienced “pain and suffering for at least 30
days.” (Am. Compl. 3).
B.

Procedural Background
On July 29, 2013, Plaintiff initiated the instant action against

Defendants (Dkt. #2), seeking $1 million in damages to “pay for any further
medical bills and also for pain and suffering” (id. at 5). Defendants moved to
dismiss the Complaint, and on April 24, 2014, the Court granted Defendants’
motion. Washington, 2014 WL 1778410, at *1.
The Court began by denying, without prejudice, Defendants’ motion to
dismiss on the grounds that Plaintiff had failed to exhaust his administrative
remedies, finding that this claim was an affirmative defense as to which
discovery was needed. Washington, 2014 WL 1778410, at *5. The Court then
proceeded to address Plaintiff’s deliberate indifference claim by breaking it
down into two time periods. The Court dismissed, with prejudice, Plaintiff’s
claim for deliberate indifference regarding the medical treatment he received on
or about March 17, 2013, after concluding that “Plaintiff’s allegations establish
that Defendants responded expeditiously and appropriately to his MRSA
infection; [and] additional allegations would not change this fact.” Id. at *8.
However, upon consideration of Plaintiff’s pro se status, the Court granted
Plaintiff leave to file an Amended Complaint with respect to his claim for
deliberate indifference to his serious medical needs upon intake in January
2013. Id. at *7.

5

The Court cautioned Plaintiff that only a more particularized pleading
could cure the deficiencies in his Complaint. See Washington, 2014 WL
1778410, at *7. Specifically, the Court informed Plaintiff that an amended
complaint capable of surviving a motion to dismiss would require
more details concerning (a) whether he was diagnosed
with MRSA prior to his incarceration; (b) whether he
was in pain or exhibited symptoms of a MRSA infection
at the time of his arrest; (c) whether Defendants were
aware that Plaintiff had MRSA and had symptoms of
MRSA at the time of his incarceration; and (d) whether
Defendants ignored such symptoms or deliberately
withheld medication[.]
Id.4 Finally, the Court dismissed Plaintiff’s state-law claims of negligence
against the County, citing Plaintiff’s failure to comply with the notice of claim
requirements of Section 50-e of the New York General Municipal Law. Id. at *9.
Plaintiff filed his Amended Complaint on May 26, 2014. (Dkt. #31). The
complaint began with several factual averments designed to respond to
Defendants’ failure to exhaust arguments. (Id. at 1-2, 9-11). Plaintiff then
proceeded to allege facts concerning his pre-incarceration diagnosis with
MRSA, his check-in at the Jail and concomitant surrender of medication, the
Jail’s failure to prescribe replacement medications for him, and his subsequent
development of a wound in his leg. (Id. at 2-4, 9-11). Finally, Plaintiff attached

4

In this regard, the Court noted that Plaintiff had not appeared to allege an official policy
or practice to discontinue his medication, as would have been required before municipal
liability could attach. See Washington, 2014 WL 1778410, at *7 n.6; see generally
Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978).
However, the Court did not resolve the issue at that time, noting its decision to allow
Plaintiff to replead his Complaint and Defendants’ failure to make such an argument in
their motion papers. See Washington, 2014 WL 1778410, at *7 n.6.

6

various administrative and medical records relating to his incarceration at the
Jail as exhibits (id. at 5, 14-24), including a medical release form and an
invoice of his personal property.5
Pursuant to the briefing schedule set by the Court (Dkt. #33),
Defendants moved to dismiss on June 27, 2014 (Dkt. #34). Plaintiff filed his
opposition on August 6, 2014 (Dkt. #41), and the motion was fully briefed as of
the filing of Defendants’ reply on August 28, 2014 (Dkt. #44).
In their motion papers, Defendants argue that the Amended Complaint
should be dismissed (i) as to the individual defendants, because Plaintiff failed
to allege their personal involvement in the alleged violation of his constitutional
rights (Def. Br. 4-6); (ii) as to the County and Correct Care, because Plaintiff
failed to allege an unconstitutional policy or practice (id. at 6-7); and (iii) on the
merits, because Plaintiff failed to allege a viable claim for deliberate indifference
(id. at 7-13). In his opposition, Plaintiff clarifies that the Jane and John Doe
defendants were the intake nurse at the Jail and the doctor who denied and/or
failed to replace his medication. (Pl. Opp. 1-2). In addition, Plaintiff includes a
printout of the treating physician’s notes from his January 4, 2013
examination at Hudson Valley, including the clinical impression that Plaintiff
was suffering from MRSA cellulitis. (Pl. Opp., Ex. A).

5

Plaintiff had submitted these documents to the Court prior to the Defendants’ first
motion to dismiss. The Court rejected this attempt, noting that the documents were not
submitted with the Complaint, referred to in that document, or submitted in connection
with the briefing on the motion to dismiss. See Washington, 2014 WL 1778410, at *1
n.2.

7

DISCUSSION
A.

Applicable Law
1.

Motions to Dismiss Under Fed. R. Civ. P. 12(b)(6)

Defendants have moved to dismiss the Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). When considering such a motion, a
court should “draw all reasonable inferences in Plaintiff’s favor, assume all
well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting Selevan
v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009).
A plaintiff will survive a motion to dismiss if he alleges “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 569 (2007); see also In re Elevator Antitrust Litig., 502 F.3d 47,
50 (2d Cir. 2007) (“[W]hile Twombly does not require heightened fact pleading
of specifics, it does require enough facts to nudge [plaintiff’s] claims across the
line from conceivable to plausible.” (internal quotation marks omitted)). The
Court is not, however, bound to accept “conclusory allegations or legal
conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517
F.3d 140, 149 (2d Cir. 2008) (citation omitted).
“In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622
8

F.3d 104, 111 (2d Cir. 2010). “Even where a document is not incorporated by
reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ which renders the document ‘integral’ to the
complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002)
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam)).
“[C]ourts must construe pro se pleadings broadly, and interpret them to
raise the strongest arguments that they suggest.” Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000) (internal quotation marks omitted) (citing Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996)); accord McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999)). That said, the liberal pleading standard
accorded to pro se litigants “is not without limits, and all normal rules of
pleading are not absolutely suspended.” Stinson v. Sheriff’s Dep’t, 499 F. Supp.
259, 262 (S.D.N.Y. 1980).
2.

Section 1983 Claims Generally

Plaintiff brings this claim under Section 1983, which establishes liability
for deprivation, under the color of state law, “of any rights, privileges, or
immunities secured by the Constitution.” 42 U.S.C. § 1983. “The purpose of
[Section] 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to
victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). As
such, a “[Section] 1983 claim has two essential elements: [i] the defendant
acted under color of state law; and [ii] as a result of the defendant’s actions, the
9

plaintiff suffered a denial of h[is] federal statutory rights, or h[is] constitutional
rights or privileges.” Annis v. County of Westchester, 136 F.3d 239, 245 (2d
Cir. 1998).
As a prerequisite to an award of damages under Section 1983, a plaintiff
must show the personal involvement of defendants in the alleged constitutional
deprivations. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). To show
personal involvement, a plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading
that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of
a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
A court may consider supervisory personnel “personally involved” if a
plaintiff plausibly alleges facts showing that those defendants: (i) participated
directly in the alleged constitutional violation; (ii) failed to remedy the wrong
after being informed of it; (iii) created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a
policy or custom; (iv) were grossly negligent in supervising subordinates who
committed the wrongful acts; or (v) exhibited deliberate indifference to the
rights of inmates by failing to act on information indicating there were ongoing
unconstitutional acts. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d
Cir. 2013) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).6

6

Courts have disagreed as to whether the five Colon factors continue to apply after Iqbal.
See Landron v. City of New York, No. 14 Civ. 1046 (NRB), 2014 WL 6433313, at *4 n.1
(S.D.N.Y. Nov. 7, 2014) (collecting cases); Vogelfang v. Capra, 889 F. Supp. 2d 489, 502

10

Municipal entities may be sued directly for constitutional violations
pursuant to 42 U.S.C. § 1983, Monell, 436 U.S. at 690, but cannot be held
liable for the acts of their employees under the doctrine of respondeat superior,
Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986). In other words,
“Monell does not provide a separate cause of action for the failure by the
government to train its employees; it 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.”
Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (citing Monell, 436
U.S. at 694). A plaintiff may establish municipal liability under Monell in
several ways, including by presenting evidence of
[i] an express policy or custom, [ii] an authorization of a
policymaker of the unconstitutional practice, [iii] failure
of the municipality to train its employees, which
exhibits a “deliberate indifference” to the rights of its
citizens, or [iv] a practice of the municipal employees
that is “so permanent and well settled as to imply the
constructive acquiescence of senior policymaking
officials.”
Biswas v. City of New York, 973 F. Supp. 2d 504, 536 (S.D.N.Y. 2013) (quoting
Pangburn v. Culbertson, 200 F.3d 65, 71-72 (2d Cir. 1999)).

(S.D.N.Y. 2012) (same); see also Raspardo v. Carlone, 770 F.3d 97, 116-17 (2d Cir.
2014) (declining to decide the degree to which Colon survives Iqbal). Any such
uncertainty, however, does not alter settled law that “[t]he mere fact that a defendant
possesses supervisory authority is insufficient to demonstrate liability for failure to
supervise under [Section] 1983.” Styles v. Goord, 431 F. App’x 31, 33 (2d Cir. 2011)
(summary order) (collecting cases).

11

3.

Section 1983 Claims for Deliberate Indifference

To plead a violation of the Eighth Amendment for deliberate indifference
to a serious medical need, a plaintiff must allege facts that satisfy (i) an
objective requirement that the alleged deprivation results in a serious medical
condition and (ii) a subjective requirement that the defendant, in depriving the
plaintiff of medical treatment, acted with deliberate indifference. Caiozzo v.
Koreman, 581 F.3d 63, 72 (2d Cir. 2009).
With respect to the subjective component, a plaintiff must allege that the
defendant acted with “a sufficiently culpable state of mind,” equivalent to
criminal recklessness. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)
(internal citation omitted). Such a state of mind “entails something more than
mere negligence[, but] something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Hathaway,
99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)) (internal
quotation marks omitted).
Mere allegations of negligence will generally be insufficient to state a
claim of deliberate indifference to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 105-06 (1976) (“[A] complaint that a physician has been negligent
in diagnosing or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment. Medical malpractice does
not become a constitutional violation merely because the victim is a prisoner.”).
Rather, a plaintiff must allege that ‘the charged official … act[ed] or fail[ed] to
act while actually aware of a substantial risk that serious inmate harm will
12

result.” Bell v. Jendell, No. 12 Civ. 6666 (KMK), 2013 WL 5863561, at *4
(S.D.N.Y. Oct. 31, 2013) (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006) (internal quotation marks omitted) (emphasis in Bell); see also
Farmer, 511 U.S. at 837 (“[T]he official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”).
Accordingly, “not every lapse in medical care is a constitutional wrong.”
Salahuddin, 467 F.3d at 279 (internal citation omitted). A constitutional wrong
requires deliberate indifference, and it is well-settled that the ultimate decision
of whether or not to administer a treatment or medication is a medical
judgment that, without more, does not amount to deliberate indifference. See
Ross v. Correct Care Solutions LLC, No. 11 Civ. 8542 (DLC), 2013 WL 5018838,
at *4 (S.D.N.Y. Sept. 13, 2013) (“[M]ere 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 to an Eighth Amendment violation.” (internal quotation marks and
citation omitted)).
B.

Analysis
1.

The Section 1983 Claim Is Dismissed as to the Individual
Defendants

Defendants correctly note that Plaintiff fails to allege any conduct on the
part of the individual defendants in the Amended Complaint, and, further, that
such conduct is necessary to sustain a Section 1983 against each of those
defendants. (Def. Br. 4-6). In response, Plaintiff explains that the Jane and
13

John Doe Defendants are medical personnel at the Jail whose conduct led to
exacerbation of an existing MRSA infection and a consequent open wound in
his leg. (See Pl. Opp. 2). The Court will permit Plaintiff to clarify his Amended
Complaint through his opposition papers, and will consider the allegations of
personal involvement as to these two defendants to be sufficient. See supra,
n.1. Plaintiff fails to offer similar clarification with respect to Defendants John
Doe #2 and Kevin Cheverko, the latter of whom is the Westchester County
Correction Commissioner and a person almost certainly not involved in the
provision of medical treatment to inmates at the Jail. Because Plaintiff has
failed to identify any conduct on the part of either of these two defendants, and
because in particular Plaintiff has failed to allege any facts that would render
Defendant Cheverko liable under Grullon, the Court will dismiss the Section
1983 claim against these two defendants.
Ordinarily, in a situation in which a plaintiff identifies putative
defendants by position rather than name, the Court would issue an order
pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), directing the
County and Correct Care to assist in identifying the unknown defendants, with
the expectation that Plaintiff would then amend his complaint to include the
names of those defendants. If, however, Plaintiff’s allegations were insufficient
to establish a viable Section 1983 claim, it would be futile to permit
amendment of the complaint for this purpose (and, by extension, to issue a
Valentin order). Cf. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (noting
that district courts should not dismiss a pro se complaint without granting
14

leave to amend unless amendment would be futile). In consequence, the Court
will consider the merits of Plaintiff’s claims before deciding whether a Valentin
order is appropriate.
Plaintiff alleges that his Eighth Amendment rights were violated when
Defendants acted with deliberate indifference to his serious medical needs. His
claim is limited by the Court’s prior ruling to Defendants’ decision to
discontinue Plaintiff’s medications upon his admission into the Jail in January
2013. See Washington, 2014 WL 1778410, at *8 (“Plaintiff’s claim in
connection with his March 2013 MRSA infection is dismissed with prejudice.”).
Also in its prior decision, the Court found that the objective, “serious medical
condition” element of the Eighth Amendment analysis was satisfied, Id. at *5
(“Plaintiff has satisfied the first element of his Eighth Amendment claim.”). The
Court must now determine whether Plaintiff has adequately alleged the second,
subjective element of his Eighth Amendment claim.
As noted, the subjective component of the deliberate indifference
standard requires plausible allegations that “the official charged with deliberate
indifference [had] act[ed] with a ‘sufficiently culpable state of mind’[;] ... the
official must “‘know[ ] of and disregard[ ] an excessive risk to inmate health or
safety; the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.’” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991); Farmer, 511 U.S. at 837). When
alleging medical malpractice, a complaint does not state a claim unless the
15

alleged “malpractice involves culpable recklessness — ‘an act or a failure to act
by [a] prison doctor that evinces a conscious disregard of a substantial risk of
serious harm.’” Id. at 123 (quoting Chance v. Armstrong, 143 F.3d 698, 703
(2d Cir. 1998)).
The Court afforded Plaintiff, who is proceeding pro se, an opportunity to
cure deficiencies identified in his Section 1983 claim, and even provided
guidance to him in that regard. Yet Plaintiff’s allegations regarding the
subjective component of his deliberate indifference claim are largely
indistinguishable from those alleged previously in the Complaint. As before,
Plaintiff contends that he should have been allowed to continue taking his
medication or that he should have been prescribed new medication for
treatment of MRSA long before his condition deteriorated and he received
treatment in March. And Plaintiff’s claim still hinges on the allegation that he
had been prescribed medication for MRSA at the time of his arrest, but that
Defendants discontinued those medications and failed to prescribe him new
ones, despite their promise to do so. (See Compl. 3; Am. Compl. 3; Pl. Opp. 2).
Plaintiff has made two significant additions to the pleadings — the first of
which is contained in Plaintiff’s opposition to the instant motion and aids his
cause, and the second of which is contained in the Amended Complaint and
makes clear the propriety of Defendants’ motion. First, when his pleadings are
liberally construed to include his opposition submission, Plaintiff now
adequately alleges that he had been diagnosed (at least preliminarily) with

16

MRSA at Hudson Valley prior to his incarceration. (See Pl. Opp., Ex. A at 1).7
Coupled with his allegations that he told one or more medical professionals at
the Jail of this diagnosis, and informed them of the medications that had been
prescribed (see Am. Compl. 15), Plaintiff could argue that the failure to provide
him with replacement medication in January 2013 evidenced a culpably
reckless decision to terminate a course of treatment.
The Court is mindful of the competing concerns brought to bear by the
Amended Complaint. On the one hand, the Court is loath to transmogrify
routine medical malpractice claims into constitutional violations, simply
because they involve an incarcerated plaintiff. On the other, the Court
recognizes the possibility that certain medical conditions may be so lifethreatening that advising prison personnel of a diagnosis of that condition and
providing corroborative prescriptions may, particularly at the pleading stage, be
sufficient to state a claim of culpable recklessness if prison officials later fail to
act on that knowledge. As it happens, however, what is — and what is not —
in the Amended Complaint makes clear that Plaintiff has failed to allege
adequately the subjective element of a deliberate indifference claim.
Critically, despite specifically being asked to do so, Plaintiff failed
to provide the Court with “more details regarding”: (i) “whether he was in pain
or exhibited symptoms” in January 2013; (ii) “whether Defendants were aware

7

The Court appreciates the distinction Defendants draw between a clinical impression
and a diagnosis of MRSA. (Def. Reply 2 (“While the clinical impression of ‘MRSA’ was
noted, there were no tests or cultures ordered to confirm its existence.”)). However,
construing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff
has adequately alleged that he had MRSA at the time of his incarceration.

17

that Plaintiff … had symptoms of MRSA at the time of his incarceration”; and
(iii) “whether Defendants ignored such symptoms or deliberately withheld
medication.” Washington¸ 2014 WL 1778410, at *7. For example, Plaintiff does
not allege that medical professionals at the Jail had access to or knowledge of
the Hudson Valley medical report, or that he was exhibiting symptoms or
suffering from pain during his January 2013 medical exam, or that the failure
to prescribe replacement medication for him reflected anything more than
oversight. Cf. Erickson v. Pardus, 551 U.S. 89, 91 (2007) (finding sufficient the
allegation that doctors terminated prisoner’s Hepatitis C treatment because
they suspected him of using illicit drugs).8 Without including details such as
these, the Court is left with no facts that suggest Defendants acted with the
requisite culpable state of mind. See Baskerville v. Blot, 224 F. Supp. 2d 723,
735-36 (S.D.N.Y. 2002) (“[B]ecause [plaintiff’s] assertions do not show that

8

Plaintiff argues that “[D]efendants acted with deliberate indifference by refusing to
provide the required medical care attention that caused him substantial pain and
suffering[,] … knowing that MRSA is responsible for thousands of deaths.” (Pl. Opp. 2).
Plaintiff cites Accolla v. U.S. Gov’t, 636 F. Supp. 2d 304 (S.D.N.Y. 2009), to support this
argument, presumably because Accolla also involved an inmate who had contracted
MRSA. However, the district court in Accolla did not reach the issue of whether medical
staff acted with deliberate indifference because the Court found the inmate’s claims to
be procedurally barred. Id. at 309; see also Accolla v. U.S. Gov’t, 668 F. Supp. 2d 571,
573 (S.D.N.Y. 2009), aff’d, 381 F. App’x 71 (2d Cir. 2010) (summary order). In any
event, the facts of Accolla are otherwise distinguishable because the defendants in
Accolla allegedly “failed to recognize or treat [plaintiff’s] MRSA” where plaintiff exhibited
symptoms such as “a fungal bacterial infection to his right leg and foot,” “another
fungal bacterial infection in his left foot,” and “dizziness and vomiting.” Accolla, 636 F.
Supp. 2d at 305. Here, Plaintiff does not allege that he was exhibiting any symptoms or
experiencing pain during his January 2013 intake examination with prison medical
staff. The Court also notes that a February 2013 “Health Service Request” filled out by
Plaintiff complains only of “nasal congestion/chest congestion.” (Am. Compl. 19). As
noted above, when Plaintiff first mentioned symptoms or pain related to his MRSA
infection in March 2013, he was treated by the medical staff with medication. (See id.
at 20). See also Washington, 2014 WL 1778410, at *8.

18

[defendant] acted intentionally to withhold from him his prescribed
medication ... he has failed to state an Eighth Amendment claim of deliberate
indifference to a serious medical need.”); cf. Chance, 143 F.3d at 704
(“Crucially, [plaintiff] has also alleged that [the doctors] recommended
extraction not on the basis of their medical views, but because of monetary
incentives. This allegation of ulterior motives, if proven true, would show that
the defendants had a culpable state of mind and that their choice of treatment
was intentionally wrong and did not derive from sound medical judgment.”).
What Plaintiff does include with his Amended Complaint further
undercuts his claim of deliberate indifference. Specifically, by incorporating a
medical verification and release form (Am. Compl. 16), Plaintiff has alleged the
very opposite of conscious disregard or culpable recklessness: the Jail
attempted to verify his known prescriptions and was unable to verify a
prescription for Doxycycline or Bactroban. (See Def. Br. 10 (citing Am.
Compl. 16 (verifying only a prescription for Tylenol with Codeine))). This
document is of a piece with Plaintiff’s prior allegations, detailed in the Court’s
prior Opinion, the he was seen promptly by medical staff once he became
symptomatic. See Washington, 2014 WL 1778410, at *8; see also Vail v. City of
New York, No. 12 Civ. 6125 (KMK), — F. Supp. 3d —, 2014 WL 6772264, at
*10-11 (S.D.N.Y. Dec. 2, 2014) (collecting cases for proposition that prompt and
adequate medical care after onset of symptoms can vitiate finding of culpable
recklessness).

19

Construed liberally, Plaintiff’s allegations are that: (i) he was diagnosed
with a MRSA infection prior to his January 2013 incarceration; (ii) he was
prescribed medication in connection with that diagnosis; (iii) he was required to
relinquish this medication upon his surrender to the Jail, though he was
promised replacement medication; (iv) he completed a release form to allow
medical personnel at the Jail to verify his medications; (v) medical personnel
could not verify the medications he had supposedly been prescribed for the
MRSA; (vi) he did not receive replacement medications until after he became
symptomatic, at which point he was promptly quarantined and treated for the
MRSA infection. Bereft of any allegations of ulterior motive or culpable
recklessness, the Amended Complaint asks the Court to examine the
reasonableness per se of the doctor’s decision to suspend Plaintiff’s medication.
This analysis would necessarily require a detour from what is cognizable under
Section 1983 into what is squarely within the purview of a negligence or
medical malpractice claim. See Santana v. Watson, No. 13 Civ. 1549 (SAS),
2014 WL 1803308, at *5 (S.D.N.Y. May 6, 2014) (“[D]eliberate indifference is
more substantial than mere disagreement over a course of treatment,
negligence or even medical malpractice.”); id. at *6 (dismissing complaint at
summary judgment stage where, “[a]t most, the[] facts show that [the nurse]
knew [plaintiff] had a prescription ... and failed to follow up on his
[prescription] request in a timely manner,” but “[t]here [wa]s no indication that
she deliberately denied access ..., or that she knew that the failure to provide
[treatment] posed an excessive risk to [plaintiff’s] health or safety.”). As the
20

Court recognized in connection with the prior motion to dismiss, these facts are
insufficient to state a claim for deliberate indifference. Washington, 2014 WL
1778410, at *7 (citing cases). The Court finds that it would be futile to issue a
Valentin order, because even if Plaintiff were able specifically to identify John
Doe #1 and Jane Doe, he cannot plead a viable federal claim as to either
defendant. Accordingly, the Court dismisses the Section 1983 claim as to all of
the individual defendants.
2.

The Section 1983 Claim Is Dismissed as to the County and
Correct Care9

Turning now to the entity defendants, the County and Correct Care, the
Court begins by noting that they are viewed similarly for Section 1983
purposes. The County is, self-evidently, a municipal entity, and thus a “state
actor.” On these facts, Correct Care is a state actor, too, inasmuch as it has
assumed responsibility for providing medical care to individuals detained by
the County. See Rembert v. Cheverko, No. 12 Civ. 9196 (KBF), 2014 WL
3384629, at *4 n.8 (S.D.N.Y. July 10, 2014) (deciding issue as to Correct Care;
collecting cases); see generally West v. Atkins, 487 U.S. 42, 52 n.10, 57 (1988)
(concluding that private physician hired by North Carolina to provide medical
care to prisoners was “state actor” because he had been hired to fulfill the

9

Several of the documents aggregated as Plaintiff’s Amended Complaint do not list
Correct Care as a defendant. However, because Plaintiff named Correct Care in the
Complaint (Dkt. #2 at 1); because Correct Care is named in certain captions (Dkt. #31
at 7); and because his allegations seem to pertain to Correct Care employees, the Court
will consider Correct Care to be a defendant in the case.

21

state’s constitutional obligation to attend to the necessary medical care of
prison inmates).
Plaintiff’s potential claims against the County and Correct Care
presuppose the existence of an independent constitutional violation; because
this Court has found that none has been identified, Plaintiff’s Monell claims
must be dismissed as to them. See, e.g., Mitchell v. County of Nassau, 786 F.
Supp. 2d 545, 563 (E.D.N.Y. 2011) (“In order to state a viable Monell claim ...
plaintiff must establish some constitutional violation.” (collecting cases)).
However, even had Plaintiff alleged a viable claim for deliberate indifference as
to any of the individual defendants, he has failed to allege any facts that would
support a Monell policy or practice claim against either entity, necessitating
dismissal on this independent basis as well. See Kampfer v. County of Fulton,
107 F.3d 3, 1997 WL 48990, at *2 (2d Cir. 1997) (unpublished table decision)
(“Having been granted a second opportunity to correct the defects in his
complaint, [plaintiff] filed an amended complaint that suffers from at least as
many difficulties as the original complaint. He again fails to ... allege any basis
for avoiding the barrier[] of … Monell.”); see also Mostafa v. City of New York,
No. 13 Civ. 155 (PAE), 2014 WL 4792066, at *2 (S.D.N.Y. Sept. 25, 2014)
(dismissing Monell claim with prejudice where plaintiff’s amended complaint
did not “attempt to … satisfy the requirements of Monell so as to state a claim
against the City”).

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3.

The Section 1983 Claim Is Dismissed With Prejudice

The remaining issue is whether the dismissal of Plaintiff’s Section 1983
claim should be with or without prejudice. Here, too, the Court must construe
the record as broadly in favor of Plaintiff’s claims as the facts will permit. See
Cuoco, 222 F.3d at 112 (“‘A pro se complaint is to be read liberally. Certainly
the court should not dismiss without granting leave to amend at least once
when a liberal reading of the complaint gives any indication that a valid claim
might be stated.’” (internal citation omitted)). As Plaintiff has already been
afforded a chance to cure deficiencies, along with a roadmap outlining that
cure, and has still failed to do so, the Court will not grant him further leave to
amend. See, e.g., Sanchez v. Blustein, Shapiro, Rich & Barone LLP, No. 13 Civ.
8886 (CS), 2014 WL 7339193, at *9 (S.D.N.Y. Dec. 23, 2014) (“[Pro se]
Plaintiff’s failure to fix deficiencies in his previous pleadings, after being
provided notice of the deficiencies, is alone sufficient ground to deny leave to
amend sua sponte.”).
Moreover, after reviewing the record, the Court concludes that a more
particularized pleading will not cure the deficiencies identified herein and in
the Court’s April 24, 2014 Opinion. Even construed broadly, the facts as
alleged fail to suggest the culpable state of mind required to plead a claim for
deliberate indifference. Cuoco, 222 F.3d at 112 (“[W]e do not find that the
complaint suggests that the plaintiff has a claim that she has inadequately or
inartfully pleaded and that she should therefore be given a chance to

23

reframe[.]”). Accordingly, Plaintiff’s remaining Section 1983 claim is dismissed
with prejudice.
4.

The Court Declines Supplemental Jurisdiction over Plaintiff’s
State-Law Claims

Finally, to the extent that the Amended Complaint alleges state-law torts
(such as medical malpractice) against Correct Care and the individual
defendants, the Court dismisses those claims without prejudice to their
refiling. The Court previously dismissed Plaintiff’s state-law claims against
Defendant County for failure comply with the requirements of Section 50-e of
the New York General Municipal Law. See Washington, 2014 WL 1778410, at
*9.10 Having now dismissed the federal claim, the Court exercises its discretion
under 28 U.S.C. § 1367 to decline jurisdiction over Plaintiff’s remaining statelaw claims. See Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med.
Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir.
2013) (“[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors ... will point toward declining to exercise
jurisdiction over the remaining state-law claims.” (citation omitted)). These
claims are dismissed without prejudice to their potential refiling in state court.

10

N.Y. Gen. Mun. Law § 50-e states in relevant part:
In any case founded upon tort where a notice of claim is required
by law as a condition precedent to the commencement of an action
or special proceeding against a public corporation, as defined in
the general construction law, or any officer, appointee or employee
thereof, the notice of claim shall comply with and be served in
accordance with the provisions of this section within ninety days
after the claim arises.

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CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in
its entirety. Plaintiff’s Section 1983 claim is DISMISSED with prejudice. His
state-law claims against the individual defendants and Correct Care are
DISMISSED without prejudice.
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
SO ORDERED.
Dated:

January 30, 2015
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

A copy of this Opinion and Order was mailed by Chambers to:
Darrell Washington
13-A-5530
Mid-State Correctional Facility
P.O. Box 2500
Marcy, NY 13403

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