Rodriguez v. Downtown Hospital of New York City et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION for 34 Report and Recommendations, 19 Motion to Dismiss filed by Downtown Hospital of New York City. Here, neither party has objected to the R & R, which was issued more than a month ago. Therefore , the Court reviews the R & R for clear en-or and finds none. The R & R is adopted in its entirety, and Rodriguez's complaint against the Hospital and Naparst is dismissed with prejudice. The Clerk of the Court is directed to enter judgment and close this case. (Signed by Judge Paul A. Crotty on 9/8/2015) Copies Mailed By Chambers. (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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LUIS RICARDO PAULINO RODRIGUEZ,
Plaintif,
f
-against14 Civ. 5958 (PAC) (SN)
NEW YORK DOWNTOWN HOSPITAL and
THOMAS NAPARST, M.D.,
Defendants.

ORDER ADOPTING REPORT
AND RECOMMENDATION

------------------------------------------------------------)(
HON ORABLE PAUL A. CROTTY, United States District Judge:
Pro se Plaintiff Luis Ricardo Paulino Rodriguez ("Plaintiff' or "Rodriguez") brings this
action against the New York Presbyterian Lower Manhattan Hospital (the "Hospital") and
Thomas Naparst, M.D. ("Naparst") for violations of his constitutional rights while he was a
detainee at the Metropolitan Con·ectional Center ofNew York ("MCC"). 1 Rodriguez alleges that
he received inadequate medical care at the Hospital, and that Naparst and the Hospital were
deliberately indifferent to his serious medical condition in violation of the Fifth Amendment.
Naparst has never been served. The Hospital moves to dismiss the complaint for fai lure to state

a claim.

On July 31, 2015, Magistrate Judge Sarah Netburn issued a Report and Recommendation
1

Rodriguez has also sued the Warden of the MCC and its clinical director, Dr. Bussanich, based on the same
injuries discussed herein. See 13 Civ. 3643. The Court previously den ied Bussanich's motion for judgment on the
pleadings and granted expedited, limited discovery on the issue of Rodriguez's exhaustion efforts. Rodriguez v.
Warden, Metro. Corr. Facility, 20 15 WL 857871 (S. D.N.Y. Feb. 27, 20 15).

On July 31, 2015, Magistrate Judge Sarah Netburn issued a Report and Recommendation
("R & R") on the motion. 2 Magistrate Judge Netbum construes Rodriguez's complaint as raising
two claims: "(1) a Bivens claim for deliberate indifference to a serious medical need; and (2) a
state law claim for negligent medical care." R & R at 6. With respect to the merits, Magistrate
Judge Netburn recommends that the Hospital's motion to dismiss be granted and that the Court
sua sponte dismiss the claim against Naparst. R & Rat 6-9. Magistrate Judge Netburn finds that

the Hospital cannot be subject to a Bivens action under Corr. Servs. Corp. v. Malesko, 534 U.S.
61 (2001), because it is a privately run hospital, and that Naparst cannot be subject to a Bivens
action under Minneci v. Pollard, 132 S. Ct. 617 (2012), because he is a privately employed
individual. Id. at 6-8. Magistrate Judge Netburn also recommends that the Court decline to
exercise supplemental jurisdiction over Rodriguez's state law claims. I d. at 9.
The Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). Where neither party
makes written objections, the Court may adopt the R & R as long as there is no clear error on the
face ofthe record. Wilds v. United Parcel Servs., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y.
2003).

2

For the facts of this case, see Magistrate Judge Netburn's R & R (Dkt. 34).

2

Here, neither party has objected to the R & R, which was issued more than a month ago.
Therefore, the Court reviews the R & R for clear en-or and finds none. The R & R is adopted in
its entirety, and Rodriguez's complaint against the Hospital and Naparst is dismissed with
prejudice. The Clerk of the Court is directed to enter judgment and close this case.
SO ORDERED:

United States District Judge
Dated: September 8, 2015
New York, New York
Copy Mailed By Chambers To:
Luis Ricardo Paulino Rodriguez
c/o Maria Santos
163 E. 178th Street, Apt. D
Bronx, NY 10453

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