Hernandez v. Corizone Medical Dept. Staff
OPINION AND ORDER: re: 79 MOTION to Dismiss filed by Correction Officer Captain Issac, The City Of New York, Correction Officer Adun, New York City Department of Health and Mental Hygiene. For the foregoing reasons, Defendants' m otion to dismiss is GRANTED in part and DENIED in part. The motion is granted as to the claim of municipal liability under Section 1983 against the City of New York and its Health Department; it is denied as to the Section 1983 claim against Correcti on Officer Adun and Correction Officer Captain Isaac. The motion is also denied as to the negligence claim against Defendants Adun, Isaac, John and/or Jane Doe(s), and the City of New York. Remaining Defendants shall file an answer to the remaining c laims on or before June 16, 2017. The Clerk of Court is directed to close the motion at Docket Number 79. SO ORDERED., Correction Officer Adun answer due 6/16/2017; Correction Officer Captain Issac answer due 6/16/2017; New York City Department of Health and Mental Hygiene answer due 6/16/2017; The City Of New York, answer due 6/16/2017. (Signed by Judge J. Paul Oetken on 5/22/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK, et al.,
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Plaintiff Angel Hernandez filed this action on January 2, 2014, proceeding pro se,
alleging that Defendant Corizone Medical Department Staff delivered substandard medical
treatment while he was incarcerated at Rikers Island. (Dkt. No. 2.) This Court granted a motion
to dismiss the initial complaint and also gave Hernandez leave to amend. Hernandez v. Corizone
Med. Dep’t Staff, No. 14 Civ. 192, 2015 WL 273690, at *4 (S.D.N.Y. Jan. 22, 2015).
Thereafter, Hernandez obtained pro bono counsel (Dkt. No. 53), and filed the operative
Sixth Amended Complaint (“Complaint”), alleging deliberate indifference to his medical
condition, under 42 U.S.C. § 1983, against the City of New York, the New York City Health
Department, Correction Officer Captain Isaac, Correction Officer Adun, and other corrections
personnel at Rikers Island, named in the Complaint as Doe Defendants (Dkt. No. 69 ¶¶ 70-77
(“Compl.”)). Hernandez also alleges that all Defendants, except for the New York City Health
Department, were negligent under state law and caused him injury. (Id. ¶¶ 78-86.)
Defendants move to dismiss the Complaint. (Dkt. No. 79.) For the reasons that follow,
the motion is granted in part and denied in part.
Some familiarity with the facts of this case is presumed; the contours of the events are
chronicled in this Court’s earlier Opinion and Order on the first motion to dismiss. See
Hernandez, 2015 WL 273690, at *1. The following facts are taking from the operative Sixth
Amended Complaint and are presumed true for the purposes of this motion.
As relevant to the pending motion to dismiss, Hernandez alleges that Rikers Island staff
manually regulated and maintained the temperature of the water in the inmate showers in the 1
Lower South (“1LS”) building at the Robert N. Davoren Complex at Rikers. (Compl. ¶¶ 12-14.)
The temperature could not be controlled by inmates and was adjusted only by accessing the
locked boiler room, which was staffed by authorized personnel. (Id. ¶ 13) On October 16, 2013,
the staff on duty left the water in the showers in 1LS at a “scalding temperature.” (Id. ¶ 14.)
When Hernandez turned on the shower, the shower head “broke off from the faucet,” and a large
volume of “scalding hot” water cascaded over him, causing “severe skin burns” on his head,
back, and legs. (Id. ¶ 15.)
On or around October 18, 2013, Hernandez’s burns had not healed, and blisters erupted
on his back and right leg. (Id. ¶ 17.) He informed Defendant Correction Officer (“CO”) Adun of
the injuries and the “excruciating pain” they caused; he asked that Adun help him get medical
care. (Id.) That same day, CO Adun told his superior, CO Captain Isaac, what Hernandez had
reported to him, including that Hernandez had blisters on his back and right leg and was
experiencing tremendous, excruciating pain. (Id. ¶ 18.) Hernandez further alleges that Adun and
Isaac were personally in charge of his custody and care—and, based on this first exchange, that
they were aware of this medical condition from start to finish. (Id. ¶¶ 6-8.)
After his initial report to CO Adun, Hernandez was examined by a physician’s assistant
(“PA”) at a New York City Correctional Health Services office located at Rikers. (Id. ¶ 19.) He
was diagnosed with “contact dermatitis due to hot water,” and the PA documented multiple pus
blisters and other irritation, including a visible rash. (Id. ¶ 20.) Hernandez was given an
ointment to spread over the affected areas and told to take ibuprofen for pain. (Id.)
Two days later, Hernandez returned to the same medical facility because of worsening
discomfort—the “severe pain” made lying in bed too painful for him to sleep. (Id. ¶ 21.) The
PA noted that Hernandez had developed “scaly erythematous patches on his back,” and that the
blisters and rash caused by the scalding water had begun to spread to other parts of his body.
(Id.) The PA also noted that Hernandez’s skin had become pruritic, which could be an indication
of infection or skin disease. (Id.) On the basis of Hernandez’s severe and worsening condition,
and at Hernandez’s request, the PA issued a referral for an examination and treatment by a
dermatologist through Bellevue Hospital. (Id. ¶ 23.)
In spite of Hernandez’s worsening medical condition and the referral to Bellevue, the
authorities in charge of Hernandez’s custody refused to make arrangements for him to receive
appropriate dermatological care. (Id. ¶ 25.) A month later, around November 22, 2013, he was
brought to a dermatology clinic onsite at Rikers, where a PA again reviewed his case and
documented a worsening condition, including the further spread of blisters and rash, additional
signs of infection, and the outbreak of lesions. (Id. ¶ 26.) The PA diagnosed Hernandez with a
skin infection called “lichen planus v. gultata psoriasis” and ordered that he have a follow-up
visit within six weeks. (Id. ¶ 29.) But the follow-up did not occur. (Id. ¶ 43.)
On November 28, 2013, Angel called a physician to explain that his condition was
worsening. (Id. ¶ 30.) The doctor concluded that the treatments were not working and that
Hernandez’s condition was indeed deteriorating. (Id. ¶ 31.) Hernandez’s blisters and “scales”
grew and began “secreting blood and pus.” (Id. ¶ 32.) He filed a grievance with the New York
City Health Department in December, describing his substandard medical treatment. (Id. ¶ 34.)
He also filed a New York City Department of Correction Inmate Grievance and Request
Program Statement Form, in which he begged for medication to help him “get better.” (Id.
¶¶ 36-37.) In response, the New York City Department of Correction issued an Inmate
Grievance and Request Program Disposition Form, acknowledging that Hernandez “need[ed]
treatment” and directing its provision. (Id. ¶¶ 38-39.) However, no action was taken. (Id. ¶ 40.)
At the end of the December, 2013, Hernandez filed a second “Inmate Grievance.” (Id. ¶¶ 41-42.)
Then, in January, Hernandez penned a letter to the warden about the situation; the letter was
never answered. (Id. ¶¶ 43-44.)
After Hernandez submitted another request to see a dermatologist, a physician onsite at
Rikers issued a referral for evaluation, examination, and treatment. (Id. ¶¶ 46-47.) Around the
same time, the New York City Health Department also issued a dermatology referral. (Id. ¶ 48.)
Still, nothing happened. (Id. ¶ 49.)
It was not until January 17, 2014, that Hernandez was brought in for a dermatology
review. (Id. ¶ 50.) And at the end of January, Bellevue Dermatology was, at last, able to review
photographs of Hernandez’s skin condition—albeit remotely—and recommended that he be
transported for further evaluation in several weeks at the latest. (Id. ¶¶ 51-52, 55.) But, again,
no one approved or arranged for this visit. (Id. ¶ 56.)
In February, Hernandez filed another health grievance form (id. ¶ 58), and got another
referral (id. ¶¶ 60, 65). But, still, he was not transported—instead, Hernandez was sent back to
the clinic at Rikers. (Id. ¶ 59.)
It was only on the last day of March, 2014, that Hernandez was transported offsite to see
a dermatologist at Bellevue. The dermatologist observed extensive scarring caused by the
condition and told Hernandez it was too late to properly treat his condition. (Id. ¶ 68.)
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on
its face.” Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). In determining whether this
standard is satisfied, courts assume that all “factual allegations contained in the complaint” are
true, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007), and “draw all inferences in the light
most favorable to the non-moving party,” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d
Cir. 2007) (citation omitted).
Based on the facts described above, Hernandez alleges negligence as against the staff
who maintain and control the water temperature in the showers (including John and Jane Does,
CO Adun, CO Captain Isaac, and the City of New York), 1 and deliberate indifference to a
serious medical condition by CO Adun and CO Captain Isaac, who, Hernandez alleges, were in
Though Hernandez purports to allege negligence as to all Defendants, he does not
reference the New York City Health Department in that cause of action. (Compl. ¶¶ 78-86.) As
a result, the Court interprets the negligence claim as against named Defendants Adun and Isaac,
the Doe Defendants, and the City of New York.
charge of his custody and care. 2 He also alleges Section 1983 municipal liability by the City and
its Health Department for failing to arrange for an offsite examination and treatment. (Compl.
The Court first discusses the deliberate indifference claim under Section 1983, as against
individual Defendants, and then as against the City and its Health Department. It then turns to
the negligence claim.
A deliberate indifference claim comprises two elements. “The first requirement is
objective: the alleged deprivation of adequate medical care must be sufficiently serious.” Betts v.
Rodriquez, No. 15 Civ. 3836, 2016 WL 7192088, at *4 (S.D.N.Y. Dec. 12, 2016) (quoting
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)). This, in turn, involves two inquiries.
“The first inquiry is whether the prisoner was actually deprived of adequate medical care.” Id.
(quoting Salahuddin, 467 F.3d at 279). “Second, the objective test asks whether the inadequacy
in medical care is sufficiently serious”—that is, whether “a reasonable doctor or patient would
find [it] important and worthy of comment, whether the condition significantly affects an
individual’s daily activities, and whether it causes chronic and substantial pain.” Id. (internal
quotation marks omitted) (quoting Salahuddin, 467 F.3d at 280).
The second requirement of a deliberate indifference claim is subjective: “the charged
official must act with a sufficiently culpable state of mind.” Id. (quoting Salahuddin, 467 at
Though the Complaint purports to allege deliberate indifference as against all
Defendants, there is no reference to the Doe Defendants in the description of that cause of action.
(Compl. ¶¶ 70-77.) Accordingly, the Court interprets the deliberate indifference claim as only
against the specifically named Defendants, Adun and Isaac, together with the City and its Health
280). “This mental state requires that the charged official act or fail to act while actually aware
of a substantial risk that serious inmate harm will result.” Id. (quoting Salahuddin, 467 at 280).
“Such ‘awareness may be proven from the very fact that the risk was obvious.’” Id. (internal
quotation marks omitted) (quoting Spavone v. N.Y.S. Dep’t of Corr. Servs., 719 F.3d 127, 138
(2d Cir. 2013)).
Defendants first argue that Hernandez has not met the objective element of the deliberate
indifference analysis. Specifically, as to the first inquiry of the objective prong, they argue that
the operative Complaint merely alleges that Hernandez was “delayed access to a medical
specialist,” and not that he was deprived adequate medical care. (Dkt. No. 80 at 7-8.) They
point to the fact that Hernandez received some medical attention onsite at Rikers throughout the
period of his ailment. (Id. at 8.)
While it is true that Hernandez did see PAs at Rikers, it is also the case that—as
described in the Complaint and with all reasonable inferences drawn in Hernandez’s favor—this
care fell short of that recommended by those same medical professionals. Specifically, despite
repeated referrals to offsite specialists, it took half a year for Hernandez to be treated according
to the plan prescribed by Rikers onsite medical staff. (Compl. ¶¶ 20-23, 29, 43, 46-47, 51-52,
56-57.) And even where some medical care is provided, a claim for deliberate indifference may
nonetheless be asserted where that care is deficient. See Rembert v. Cheverko, No. 12 Civ. 9196,
2014 WL 3384629, at *9 (S.D.N.Y. July 10, 2014). The Court is further mindful that “[w]hether
a delay in medical treatment reaches the level of a constitutional violation is ‘highly factsensitive.’” Simmons v. Pedroza, No. 10 Civ. 821, 2011 WL 814551, at *2 (S.D.N.Y. Mar. 7,
2011) (quoting Davidson v. Harris, 960 F. Supp. 644, 648 (W.D.N.Y. 1997)). In view of this
directive, Hernandez has pleaded enough as to the inadequacy of the care he received and the
unreasonableness of the delay to survive at this stage.
As to the second inquiry of the objective prong, the Complaint further alleges that
Hernandez’s condition was sufficiently serious by all the relevant metrics. Hernandez alleges
not only that a reasonable doctor “would find” the condition “important and worthy of
comment,” but also that PAs and physicians with whom he consulted actually urged and
recommended additional care and repeatedly remarked that the current course of treatment was
insufficient. (Compl. ¶¶ 20, 26, 29, 31-32, 38, 46-47, 51-52.) See Salahuddin, 467 F.3d at 280.
He also alleges that the condition “significantly affect[ed]” his “daily activities.” Salahuddin,
467 F.3d at 280 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Specifically,
Hernandez alleges that the blisters and rashes made it painful to lie down and nearly impossible
to sleep (Compl. ¶ 21), and that they caused “chronic and substantial,” Salahuddin, 467 F.3d at
280 (quoting Chance, 143 F.3d at 702), even “excruciating” pain (Compl. ¶¶ 17-18).
In discussing the objective element of Hernandez’s deliberate difference claim in its
earlier Opinion and Order dismissing the original complaint in this case, the Court made clear
that Hernandez had to do more than merely allege “that his condition did not improve despite the
treatment he received from doctors at Rikers Island.” Hernandez, 2015 WL 273690, at *3.
Hernandez has dutifully amended his pleadings so as describe a series of medical
recommendations evincing a condition that posed “a substantial risk of serious harm.” Id.
(quoting Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)).
Defendants also challenge Hernandez’s pleading as to the second, subjective element of
the deliberate indifference analysis. Specifically, Defendants argue that the Complaint describes
a mere “difference of opinion between an inmate and prison officials regarding the appropriate
course of medical treatment.” (Dkt. No. 80 at 9.) To that end, they point to cases suggesting that
a delay in a referral to a specialist, specifically a dermatologist, does not constitute deliberate
indifference. (Id. (citing Bryant v. Wright, No. 09 Civ. 2456, 2010 WL 3629443, at *9
(S.D.N.Y. Aug. 31, 2010)).)
But the case relied on by Defendants makes clear that a constitutional violation was not
found because “the timing of the referral d[id] not reflect that the defendants harmed [the
plaintiff] through any delay.” Bryant, 2010 WL 3629443, at *9. Here, in contrast, Hernandez
alleges that that timing of the referral caused him irreversible harm: The physician he ultimately
saw at Bellevue concluded that it was too late to properly treat his condition. (Compl. ¶ 68.)
Causing Hernandez to wait for prolonged periods before receiving recommended medical
treatment, therefore, can—according to the facts alleged here—be understood as entailing
deliberate indifference on the part of CO Adun and CO Captain Isaac to a “substantial risk of
serious harm.” Chance, 143 F.3d at 703.
Defendants further contend that Hernandez does not make out “conscious disregard” as to
the individuals named in the Complaint. (Dkt. No. 80 at 10.) Hernandez alleges that he told CO
Adun of his condition and the “excruciating pain,” and that Adun, in turn, told CO Captain Isaac.
(Compl. ¶¶ 17-18.) He also alleges that these COs were responsible for his custody and care
from start to finish, and—as demonstrated by the months-long failure to heed recommendations
and referrals from multiple medical personnel—failed to take appropriate action to get
Hernandez the medical help he required, despite knowledge of the risk to his health. (Id. ¶¶ 6-8.)
What is more, “the severity of Plaintiff’s apparently visible injuries,” including rash and
bleeding, oozing blisters, can support an inference of deliberate indifference at this early stage of
litigation. Betts, 2016 WL 7192088, at *5; see Walker v. Schult, 717 F.3d 119, 125 (2d Cir.
2013) (“Evidence that a risk was ‘obvious . . . ’ may be sufficient for a fact finder to conclude
that the defendant was actually aware of the risk.” (quoting Brock v. Wright, 315 F.3d 158, 164
(2d Cir. 2003))). And “failure to act” in the face of a “substantial risk of serious harm” to the
plaintiff satisfies the subjective component of a deliberate indifference claim. Cuoco v.
Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (quoting Chance, 143 F.3d at 703). While further
factual development may reveal more detail about the knowledge and involvement—or lack
thereof—of Defendants Adun and Isaac, at this stage, the Court is obligated to read the
Complaint liberally and, as such, finds that Hernandez has alleged enough about their knowledge
and subsequent inaction to meet the subjective requirement.
As a result, the Court finds that Hernandez has adequately pleaded deliberate indifference
as to CO Adun and CO Captain Isaac.
Defendants also challenge the basis for Hernandez’s claim of municipal liability for
“[M]unicipalities cannot be held liable pursuant to § 1983 on a respondeat superior
theory.” Betts v. Shearman, No. 12 Civ. 3195, 2013 WL 311124, at *15 (S.D.N.Y. Jan. 24,
2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). Thus, “to hold a city [or
city agency] liable under 1983 for the unconstitutional actions of its employees, a plaintiff is
required to plead . . . three elements: (1) an official policy or custom that (2) causes the plaintiff
to be subjected to (3) a denial of a constitutional right.” Wray v. City of N.Y. 490 F.3d 189, 195
(2d Cir. 2009) (quotations and citation omitted). In order to make out such a claim, a plaintiff
“must allege facts tending to support . . . an inference that such a municipal policy or custom
exists.” Santos v. N.Y.C., 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012).
Here, however, Hernandez makes merely “conclusory” allegations that the refusal to send
him for offsite treatment “was motivated, at least in part, by a desire . . . to avoid incurring the
costs involved in transport[ation].” (Compl. ¶ 76.) This bare statement is insufficient to allege a
municipal policy sufficient to sustain a claim against the City of New York or its Health
Department. See Santos, 846 F. Supp. 2d at 576.
Hernandez’s contention that his several written grievances put the City on notice as to
what was transpiring with his care is not enough to allege a custom or policy maintained by the
municipality as to the provision of care generally, without alleging more facts as to a widespread
or “persistent” practice or any specifics as to the authority of the recipient of these grievance
forms. Boonmalert v. City of N.Y., No. 16 Civ. 4171, 2017 WL 1378274, at *7 (S.D.N.Y. Apr.
And the Court declines to extrapolate from a United States Justice Department report,
cited for the first time in Hernandez’s opposition papers to this motion, that the City of New
York has any policy or custom that directly bears on Hernandez’s injuries and allegedly
substandard care. (Dkt. No. 87 at 14-15.)
As a result, Hernandez’s claims against the City of New York and its Health Department
must be dismissed for failure to state a claim.
Hernandez also alleges state-law negligence on the part of CO Adun, CO Captain Isaac,
Defendant Does, and the City of New York, stemming from their responsibility to maintain and
regulate the water temperature in the shower. It was, after all, the shower’s scalding water—over
which Rikers staff have exclusive control—that caused Hernandez’s burns in the first instance.
(Compl. ¶¶ 12-15.)
Defendants argue that the Court should dismiss these claims not because they are
improperly pleaded, but because the Court should dismiss the constitutional claims and
subsequently decline to exercise supplemental jurisdiction over the New York state law claims.
(Dkt. No. 80 at 12.) But this argument is unavailing, as the Court has kept alive Hernandez’s
Section 1983 claims against Defendants Adun and Isaac.
Perhaps Defendants do not contest that Hernandez states a negligence claim because it is
plain from the Complaint that he has done so. The three elements of a negligence claim under
New York law are: “(i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and
(iii) injury substantially caused by that breach.” Lombard v. Booz–Allen & Hamilton, Inc., 280
F.3d 209, 215 (2d Cir. 2002).
Here, Defendants in charge of operating and maintaining the showers and regulating the
temperature of the water owed Hernandez a duty; they allegedly breached that duty in their
failure to regulate the temperature; and that failure caused Hernandez’s severe burns. (Compl.
¶¶ 12-15.) The negligence claim therefore survives.
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. The motion is granted as to the claim of municipal liability under Section 1983
against the City of New York and its Health Department; it is denied as to the Section 1983
claim against Correction Officer Adun and Correction Officer Captain Isaac. The motion is also
denied as to the negligence claim against Defendants Adun, Isaac, John and/or Jane Doe(s), and
the City of New York.
Remaining Defendants shall file an answer to the remaining claims on or before June 16,
The Clerk of Court is directed to close the motion at Docket Number 79.
Dated: May 22, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
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