Davis v. Medical Department of C-73 Rikers Island Correctional Facility et al
MEMORANDUM OPINION AND ORDER. For the foregoing reasons, Defendant's motions to dismiss is GRANTED, and Mr. Davis's second amended complaint is dismissed with leave to replead. If Mr. Davis wishes to file a third amended complaint, he must do so no later than March 14, 2017. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 117. The Court will mail a copy of this order to Plaintiff, along with all unreported decisions cited herein. SO ORDERED. re: 117 MOTION to Dismiss filed by Joseph McReady. Joseph McReady terminated. (Amended Pleadings due by 3/14/2017.) (Signed by Judge Gregory H. Woods on 2/15/2017) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #: _________________
DATE FILED: 2/15/2017
GREGORY H. WOODS, District Judge:
In his second amended complaint, Plaintiff Carl Davis brings a claim against Defendant
Joseph McCready, RPA, alleging that he received constitutionally inadequate medical treatment
while incarcerated at Riker’s Island between June 15, 2014 and June 20, 2014. Defendant has moved
to dismiss Plaintiff’s second amended complaint for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). For the following reasons, Defendant’s motion is GRANTED, and Mr.
Davis’s second amended complaint is DISMISSED.
When Mr. Davis entered the Robert N. Davoren Complex (“RNDC”), a jail on Riker’s
Island, on June 15, 2014, he was seen by Defendant Joseph McCready, RPA. ECF No. 111, Second
Am. Compl. (“SAC”), ¶ 5. Mr. Davis explained to Defendant that he had extreme pain in his legs
and back, foot drop, heart problems, sleeping problems, and breathing problems due to asthma and
having been shot in the chest. SAC ¶ 5-6. Mr. Davis requested pain medication for the
“excruciating pain” in his legs and back, a special therapeutic mattress for his back and sleeping
disorder, and a cane to help him walk. SAC ¶ 6-7. Mr. Davis does not expressly allege whether
Defendant ever granted these requests. He alleges only that Defendant “purposely ignor[ed]” his
“serious medical needs.” SAC ¶ 8.
On approximately June 20, 2014, Mr. Davis was transferred to the Brooklyn Detention
Center. SAC ¶ 9. Mr. Davis alleges that Defendant failed to document his meeting with Mr. Davis
clearly in his medical records before Mr. Davis’s transfer to the Brooklyn Detention Center. Id. Mr.
Davis asserts that he “[s]hould have immediately received the requested medication, mattress and
cane” after the transfer. Id.
Mr. Davis alleges that Defendant “was fully apprised of [his] medical needs and ignored the
risk of ameliorating conditions, extreme pain and debilitating conditions.” SAC ¶ 10. He further
alleges that he “suffered heart pain, loss of breath, loss of sleep, intense & extreme pain, emotional
distress, and other pain as a result of the injury suffered as a result of defendant’s unprofessional
care.” SAC ¶ 11.
Mr. Davis filed his initial complaint on August 5, 2014, bringing claims pursuant to 42 U.S.C.
§ 1983 against the RNDC “medical department” and “medical director.” ECF No. 1. Following an
order from the Court to identify the specific defendants in the proceeding, Mr. Davis filed a first
amended complaint on March 6, 2015, alleging that a number of defendants, including Mr.
McCready, had denied him adequate medical treatment. ECF No. 14. On February 22, 2016, the
Court granted the defendants’ motions to dismiss for failure to allege facts sufficient to state a claim
for deliberate indifference to serious medical needs and granted Mr. Davis leave to replead no later
than March 18, 2016. ECF No. 100.
Following numerous extensions to accommodate Mr. Davis’s transfer to Riverview
Correctional Facility, Mr. Davis filed his second amended complaint on June 29, 2016. ECF No.
111. In his second amended complaint, Mr. Davis names only Mr. McCready as a defendant. Id.
Defendant McCready filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
on August 12, 2016. ECF No. 117. Mr. Davis submitted an affidavit in opposition on November
21, 2016, and Defendant submitted a reply affirmation on December 6, 2016. Dkt Nos. 131, 136.
“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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this plausibility
standard, the plaintiff must “plead[ ] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the Court “must accept all allegations in the complaint as true and draw all inferences in the
nonmoving party’s favor.” LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir.
2009). The Court, however, is not required to credit “mere conclusory statements” or “[t]hreadbare
recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678. A complaint that offers “labels
and conclusions” or “naked assertion[s]” without “further factual enhancement” will not survive a
motion to dismiss. Id. at 678 (citing Twombly, 550 U.S. at 555).
Because he is proceeding pro se, the Court must liberally construe Plaintiff’s submissions and
interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original); see also, e.g., Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is to be liberally construed . . . .”) (citation omitted). This
mandate “‘applies with particular force when a plaintiff’s civil rights are at issue.’” Bell v. Jendell, 980
F. Supp. 2d 555, 558 (S.D.N.Y. 2013) (quoting Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640
F.Supp.2d 345, 348 (S.D.N.Y. 2009)). However, “the liberal treatment afforded to pro se litigants
does not exempt a pro se party from compliance with relevant rules of procedural and substantive
law.” Id. at 559 (internal quotation marks and citation omitted); see also Rahman v. Schriro, 22 F. Supp.
3d 305, 310 (S.D.N.Y. 2014) (“[D]ismissal of a pro se complaint is nevertheless appropriate where a
plaintiff has clearly failed to meet minimum pleading requirements.” (citing Rodriguez v. Weprin, 116
F.3d 62, 65 (2d Cir. 1997))).
A. Claim for Inadequate Medical Care
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show that the defendant
“acted under color of state law and that [he] deprived him of a right secured by the Constitution or
laws of the United States.” Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir. 2004) (citing Pitchell v. Callan, 13
F.3d 545, 547 (2d Cir. 1994)). “Because the Eighth Amendment is not a vehicle for bringing
medical malpractice claims, nor a substitute for state tort law, not every lapse in prisoner medical
care will rise to the level of a constitutional violation.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.
2003). “In order to establish an Eighth Amendment claim arising out of inadequate medical care, a
prisoner must prove ‘deliberate indifference to his serious medical needs.’” Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).1 This standard has
both an objective and subjective prong: “First, the alleged deprivation must be, in objective terms,
sufficiently serious. Second, the defendant must act with a sufficiently culpable state of mind.” Id.
(internal quotations marks and citations omitted). “An official acts with the requisite deliberate
indifference when that official ‘knows of and disregards 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.’” Id. (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)); see also Caiozzo v. Koreman, 581 F.3d 63, 65-66.
Plaintiff does not specify whether he was a pretrial detainee or a convicted prisoner during the relevant time period.
Pretrial detainees in state custody receive “protection against mistreatment at the hands of prison officials under . . . the
Due Process Clause of the Fourteenth Amendment,” rather than the Eighth Amendment, which is applicable only to
convicted prisoners. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009). Because Mr. Davis was being held in city jails
during the relevant time period and has since been moved to correctional facilities, the Court assumes that he was a
pretrial detainee during the events at issue in his second amended complaint. In any event, Mr. Davis’s status as a
pretrial detainee or a convicted prisoner has no practical effect on the Court’s resolution of Defendant’s motion, because
courts in the Second Circuit analyze claims for constitutionally inadequate medical care “under the same standard
irrespective of whether they are brought under the Eighth or Fourteenth Amendment.” Id. at 72.
1. Sufficiently Serious Deprivation
“Determining whether a deprivation is an objectively serious deprivation entails two
inquiries.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). Courts must first determine
“whether the prisoner was actually deprived of adequate medical care.” Id. If so, the Court must
then consider “whether the inadequacy in medical care is sufficiently serious.” Id. at 280. “If the
unreasonable medical care is a failure to provide any treatment for an inmate’s medical condition,
courts examine whether the inmate’s medical condition is sufficiently serious.” Id. at 280. “In cases
where the inadequacy is in the medical treatment given, the seriousness inquiry is narrower.” Id.
“For example, if the prisoner is receiving on-going treatment and the offending conduct is an
unreasonable delay or interruption in that treatment, the seriousness inquiry focuses on the
challenged delay or interruption in treatment rather than the prisoner’s underlying medical condition
alone.” Id. (internal quotation marks, alteration, and citation omitted).
a. Actual Deprivation
In his second amended complaint, Mr. Davis does not expressly allege that he was deprived
of treatment after complaining of his various afflictions. Instead, he alleges only that he requested
pain medication, a special therapeutic mattress, and a walking cane to alleviate preexisting conditions
and, in a separate paragraph, that Defendant “purposely ignor[ed]” his “serious medical needs.”
SAC ¶¶ 6, 8. However, because Mr. Davis is proceeding pro se, and his complaint must be construed
liberally, the Court construes Mr. Davis’s allegation that Defendant “purposely ignor[ed]” his
“serious medical needs” to allege that he did not receive the treatment he requested. 2, 3
b. Sufficiently Serious
The seriousness standard envisioned by the Eighth Amendment is that of “unnecessary and
wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976); see also Chance, 143 F.3d at 702
(stating that seriousness standard contemplates a “condition of urgency” that may result in
“degeneration” or “extreme pain” (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994))).
Factors relevant to the seriousness of a medical condition include 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.”
Salahuddin, 467 F.3d at 280 (quoting Chance, 143 F.3d at 702).
Because Mr. Davis alleges that he was experiencing extreme pain and difficulty walking
during the relevant time period, the Court accepts for purposes of this decision that his second
The Court notes that Mr. Davis’s first amended complaint clearly alleged that Defendant McCready denied his requests
for medication and a therapeutic mattress, but provided him with a cane. See ECF No. 14, First Am. Compl., ¶ 11.
Ordinarily, an amended complaint “supersedes the original and renders it of no legal effect.” Int’l Controls Corp. v. Vesco
& Co., 556 F.2d 665, 668 (2d Cir. 1977). However, “[w]here a plaintiff blatantly changes his statement of the facts in
order to respond to the defendant[’s] [original] motion to dismiss . . . [and] directly contradicts the facts set forth in his
original complaint, a court is authorized to accept the facts described in the original complaint as true.” Colliton v.
Cravath, Swaine & Moore, LLP, No. 08-cv-0400 (NRB), 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008) (internal
quotation marks and citation omitted), aff’d, 356 F. App’x 535 (2d Cir. 2009); but see 2002 Lawrence R. Buchalter Alaska Tr.
v. Phila. Fin. Life Assurance Co., 96 F. Supp. 3d 182, 206 (S.D.N.Y. 2015) (“[T]he more usual and benevolent option is to
accept the superseded pleadings but allow the factfinder to consider the earlier pleadings as admissions in due course.”
(citation omitted)). The Court need not decide whether to accept the facts alleged in Mr. McCready’s first amended
complaint as true at this time, as the question of whether Plaintiff actually received a cane would not change the Court’s
decision on Defendant’s motion to dismiss.
In addition to alleging that Defendant failed to provide him with medication, a cane, and a therapeutic mattress, Mr.
Davis alleges that Defendant failed, prior to his transfer to the Brooklyn Detention Center, to clearly document in his
medical records the conversation during which Mr. Davis told Defendant of his ailments and requested those items.
SAC ¶ 9. Although lapses in proper medical record-keeping can support a deliberate indifference claim under the proper
circumstances, nothing in the second amended complaint suggests that this alleged lapse caused Mr. Davis any
substantial harm. Indeed, even complete failures to forward medical records have been held insufficient absent concrete
allegations or proof of resulting harm. See, e.g., Pabon v. Goord, No. 99-cv-5869 (THK), 2003 WL 1787268, at *7
(S.D.N.Y. Mar. 28, 2003) (holding that defendants’ failure to properly forward plaintiff’s medical records to outside
medical consultants did not establish deliberate indifference, because “it [was] apparent that they had no impact on
Plaintiff’s treatment or well-being”); see also Wood v. Housewright, 900 F.2d 1332, 1334-35 (9th Cir. 1990) (finding that the
failure of prison officials to provide a prisoner’s medical records to transferee prison did not rise to level of deliberate
indifference because it did not cause “substantial harm”). Additionally, nothing in the second amended complaint
suggests that Defendant’s failure to document the visit in the way that Mr. Davis thinks proper was the result of
anything more than professional judgment or, perhaps, mere negligence.
amended complaint alleges a sufficiently serious medical condition, and thus satisfies the objective
prong of the analysis.4
2. Sufficiently Culpable State of Mind
Although for purposes of this motion the Court has accepted that Mr. Davis’s allegations
satisfy the objective prong of the deliberate-indifference analysis, they fail to satisfy the subjective
prong. “In medical-treatment cases not arising from emergency situations, the official’s state of
mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the
plaintiff proves that the official acted with deliberate indifference to inmate health.” Salahuddin, 467
F.3d at 280 (citing Wilson v. Seiter, 501 U.S. 294, 302 (1991)). “Deliberate indifference is a mental
state equivalent to subjective recklessness” and “requires that the charged official act or fail to act
while actually aware of a substantial risk that serious inmate harm will result.” Nielsen v. Rabin, 746
F.3d 58, 63 (2d Cir. 2014) (quoting Salahuddin, 467 F.3d at 280). Thus, in order to state a claim for
deliberate indifference to his serious medical needs, a plaintiff must allege that the defendant “knew
of and disregarded an excessive risk to [plaintiff’s] health and safety.” Caiozzo, 581 F.3d at 72 (2d
Cir. 2009) (quoting Farmer, 511 U.S. at 837) (alterations and internal quotation marks omitted).
“[T]he official must both be aware of facts from which the inference could be drawn that a
Defendant suggests that Mr. Davis has not sufficiently alleged that Defendant, who is a physician assistant, even had
the authority to provide the treatment he requested. ECF No. 120, Mem. of Law in Supp. of Mot. to Dismiss (“Def.’s
Mem.”) at 7. The Court agrees that Mr. Davis’s allegations on that subject are less than clear; he merely alleges that
Defendant was “duly entrusted, and under contract for the ‘care’ and health of the prisoners” at RNDC. SAC ¶ 4.
However, while a defendant’s lack of authority to make the relevant medical decision can defeat a deliberate indifference
claim, such an outcome is not ordinarily reached at the pleading stage. See, e.g., Ippolito v. Goord, No. 05-cv-6683 (MAT),
2012 WL 4210125, at *7 (W.D.N.Y. Sept. 19, 2012) (granting summary judgment and stating: “In his capacity as a
physician's assistant, Edwards did not have the authority to override Dr. Wright and order that Rebetron therapy be
administered to Ippolito. Accordingly, the claims against Edwards must be dismissed for lack of personal
involvement.”); Jacoby v. Cty. of Oneida, No. 05-cv-1254 (FJS), 2009 WL 2971537, at *4 (N.D.N.Y. Sept. 11, 2009)
(dismissing, on summary judgment, a deliberate indifference claim against a nurse who “lacked the authority to make
medical decisions directly related to Plaintiff”). Accordingly, and particularly in light of the obligation to construe Mr.
Davis’s pleadings liberally and to draw all plausible inferences in his favor, the Court concludes that Mr. Davis’s
allegations suffice at the pleading stage to show that Defendant was empowered to provide the relevant treatment, and
that he denied Mr. Davis the treatment he requested.
substantial risk of serious harm exists, and he must also draw the inference.” Chance, 143 F.3d at 702
(quoting Farmer, 511 U.S. at 837). Negligence is not enough. Estelle, 429 U.S. at 105-06 (1976);
Chance, 143 F.3d at 703.
In dismissing Mr. Davis’s first amended complaint, the Court explained that Mr. Davis had
not pleaded “any factual allegations” regarding Defendant McCready’s state of mind. ECF No. 100,
Opinion and Order dated Feb. 22, 2016, at 8. Mr. Davis has not cured that defect in his second
amended complaint. He now alleges only that he “suffered from ‘deliberate indifference’-as a result
of the defendant purposely ignoring the ‘serious medical needs’ he suffered from.” SAC ¶ 8. That
conclusory allegation is insufficient to withstand a motion to dismiss. See Melvin v. Cty. of Westchester,
No. 14-cv-2995 (KMK), 2016 WL 1254394, at *10 (S.D.N.Y. Mar. 29, 2016) (“It is well established
that conclusory allegations that medical staff defendants were aware of a prisoner’s medical needs
and failed to provide adequate care are generally insufficient to state an Eighth Amendment claim of
inadequate medical care.” (alteration, internal quotation marks, and citation omitted)); Adekoya v.
Holder, 751 F. Supp. 2d 688, 697 (S.D.N.Y. 2010) (finding conclusory allegations that the defendants
were aware of the plaintiff’s medical needs and failed to provide adequate care insufficient to defeat
a motion to dismiss); Hidalgo v. Kikendall, No. 08-cv-7536 (DC), 2009 WL 2176334, at *4 (S.D.N.Y.
July 22, 2009) (Chin, J.) (dismissing complaint where defendant’s name only appeared twice in the
complaint, in “conclusory statements that [he] displayed deliberate indifference to [the plaintiff’s]
Without more detailed allegations, and particularly in light of the fact that Defendant saw
Mr. Davis only once during his brief five-day stay at RNDC, the complaint does not plausibly allege
that Defendant was both aware of facts from which the inference could be drawn that a substantial
risk of serious harm existed and that he also drew that inference. Therefore, the motion to dismiss is
granted with respect to Mr. McCready’s deliberate indifference claim.
B. Other Claims
In addition to deliberate indifference, the second amended complaint makes passing
reference to “Due Process,” “Equal Protection,” and negligence. With respect to the reference to
due process, the Court assumes that Mr. Davis intended only to refer to the Due Process Clause of
the Fourteenth Amendment insofar as it is the source of protection against constitutionally
inadequate medical care for pretrial detainees in state custody. See Caiozzo, 581 F.3d at 69. The
second amended complaint does not otherwise allege that Defendant placed any burden or restraint
on Mr. Davis’s life, liberty, or property interests, or that he interfered with any other fundamental
right. Accordingly, the Court does not construe Mr. Davis’s second amended complaint to raise any
additional due process claim.
To the extent that Mr. Davis intended to raise a claim premised on the Equal Protection
Clause of the Fourteenth Amendment, that claim fails. To state such a claim, a plaintiff must allege
“purposeful discrimination directed at an identifiable or suspect class” or that, as a “class of one,
he was “intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.” Barone v United States, No. 12-cv-4103 (LAK), 2014 WL
4467780, at *23 (S.D.N.Y. Sept. 10, 2014) (citations omitted). Mr. Davis does not allege that he was
treated in any particular manner as a result of membership in any identifiable or suspect class; in fact,
he does even allege that he is a member of any particular class. He also does not allege any
differential treatment as compared to others similarly situated. As a result, to the extent that the
second amended complaint can be construed to raise an equal protection claim, it is dismissed.
Finally, to the extent that the second amended complaint can be construed to raise a statelaw negligence claim, the Court declines to exercise supplemental jurisdiction over it. See First Capital
Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 183 (2d Cir. 2004) (“[I]f the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should
be dismissed as well.” (quoting Castellano v. Bd. of Trustees, 937 F.2d 752, 758 (2d Cir. 1991))).
LEAVE TO REPLEAD
Courts must “freely give leave” for a plaintiff to replead his claims when “justice so
requires.” Fed. R. Civ. P. 15(a)(2). Mr. Davis has already received two opportunities to amend his
complaint. Nonetheless, despite the fact that Mr. Davis has amended his complaint twice, and
chosen to oppose Defendant’s motion to dismiss rather than amend a third time, the Court will give
Mr. Davis an additional opportunity to replead, because it is not clear that amendment would be
futile. See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 191 (2d Cir. 2015).
However, Mr. Davis should not expect that the Court will provide him with any further
opportunities to amend, since “[t]hree bites at the apple is enough.” Official Comm. of Unsecured
Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003) (quoting Salinger
v. Projectavision, Inc., 972 F. Supp. 222, 236 (S.D.N.Y. 1997)).
If Mr. Davis believes that he can cure the deficiencies identified in this opinion, he may file a
third amended complaint no later than March 14, 2017. If Mr. Davis fails to file a third amended
complaint by that date, the action will be dismissed and judgment will enter.
For the foregoing reasons, Defendant’s motions to dismiss is GRANTED, and Mr. Davis’s
second amended complaint is dismissed with leave to replead. If Mr. Davis wishes to file a third
amended complaint, he must do so no later than March 14, 2017.
The Clerk of Court is directed to terminate the motion pending at Dkt. No. 117.
The Court will mail a copy of this order to Plaintiff, along with all unreported decisions cited
Dated: February 15, 2017
New York, New York
GREGORY H. WOODS
United States District Judge
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