Harrison v. City of New York et al

Filing 83

OPINION. The motion to dismiss the SAC against the Individual Defendants is granted. The Plaintiff is granted leave to replead within 20 days. It is so ordered. re: 73 MOTION to Dismiss Second Amended Complaint filed by Jean Richard, Calvin Johnson, Guy Kelly, Raja Sabbah, Charles Appiah. (Signed by Judge Robert W. Sweet on 9/18/2017) (rjm)

UN I TED STATES DIS TRI CT COURT
SOUTH ERN DI STR I CT OF NEW YORK

-----------------------------------------x
JOHNN I E HARRISON ,
Pl ainti f f ,

1 5 Civ . 414 1
OP I NION

- aga i nst THE CI TY OF New YORK , COMMISS I ON ER
JOHN/JANE DOE # 1, DR . CALVI N JOHNSON ,
CHARLES APPIAH R . P.A. , GUY KE LLY P . A.,
PET ER WATCHEL D. O., JEAN RIC HARD M.D.
And RAJA SABBAGH ,
De f endants .

------------ - ---------------------------x
A P P E A R A N C E S:
Pro Se
Johnnie Harr i son
13 - A- 4243
Mid - State Correct i ona l Faci li ty
P . O. Box 2500
Marcy , NY 1 3403

Attorneys for Defendants
He i del l, Pitton i, Mu r phy & Bach , LLP (WP)
81 Main Street
Wh i te Pl a i ns , NY 1 060 1
By : Ana Maria Vizzo
Daniel Ge r ard May
John Ch ar l es O ' Brien , Jr .

Sweet, D.J.

Defendants Charles Appiah , R . P . A .
Raja Sabbagh , M. D.
Kelly")
M. D.

(" R.P.A. Appiah") ,

("Dr . Sabbagh " ) , Guy Kelly , P . A .

Jean Richard , M. D.

("P . A.

(" Dr . Richard " ) and Calv i n Johnson ,

( " Dr. Johnson " ) (collectively , " the In di victual Defendants")

have moved pursuant to Rule 12(b) (6) of the Federal Rules of
Civil Procedure to dismiss Plaintiff ' s Second Amended Complaint
("SAC " ) of Johnnie Harrison , pro se (" Harrison " or the
" Plaintiff " ).

Based on the conclusions set forth below, the motion
of the Individual Defendants is granted, and the SAC is
dismi ssed.

I . Prior Proceedings

The Plaintiff commenced this action by filing a
Complaint on May 21 , 2015 . Si nce fi l ing the initial Complaint ,
the Pl aintiff has twice amended his pleadings and the current
operative pleading is the SAC , which was filed on April 19 ,
2016 . The SAC was drafted using a preprinted form tit l ed
" Amended Complaint under the Civil Rights Act, 42 U.S.C.
1

§

1983 "

and names as defendants the City of New (or " the City"),
Commissioner John/Jane Doe #1

(or "the Commissioner " ) , and the

Individual Defendants.

The SAC alleges nine claims for relief:
§

1983 consp iracy;

indifference;

(2) failure to intervene;

( 4) negligence;

(1)

42

u. s . c .

(3) deliberate

( 5) intentional and negligent

infliction of emotional distress ;

(6) denial of medical care ;

(7) negligent supervision , hiring, monitoring, training and
retention of unfit employees ;
Monell; and (9)

(8) municipal li ~bility under

respondeat superior .

SAC~~

35 - 61 . Plaintiff's

first six cla ims for relief do not specify the defendants to
which they are directed, and it is assumed the Plaintiff is
asserting them against all defendants . See id .

~~

35 -50. The

seventh, eighth and ninth claims for relief are specifically
directed at the City . Id.

II.

~~

51 - 61 .

Facts

The central c laim set forth in the SAC is that the
Defendants deprived the Plaintiff of adequate medical care for
an inguinal hernia, which had been previously diagnosed at

2

-

I

Elmhurst Hospital , whi l e he was i n custody at Rikers Island
between July 21 , 2012 and Septembe r 24 , 20 1 3 . Id .

~~

3 - 34 .

The SAC conta i ns factua l allegations regarding
Plaintiff ' s medical co u rse and interact i on wi th the Individual
Defendants . These factual al l egations are supJ lemented by
excerpts of Pl aintiff ' s medical records , whic

Pl aintiff has

incorporated into the pleading and annexed as exhibits .

W th regard to Defendants R . P . A. Appiah , Dr . Sabbagh ,
i
P.A . Kel l y , and Dr. Richard , the Pl aintiff i s a ll eg i ng that each
participated in his medical care , and the SAC descr i bed his
limited interactions with each. With regard to Defendant Dr .
I

Johnson , Plaintiff has not a l leged any direct ro l e i n his
treatment or a l leged deprivation of medica l care , but rather is
suing him in h i s capacity as Chief Medical Officer of non defendant Corizon .

Plaintiff's factual allegations as to R. P . A. Appiah ,
in their entirety , are as fo ll ows:
On Ju l y 21 , 20 1 2, Plaintiff was seen by Defendant
Charle[s] Appiah , as an i nitial medical screening
for new admission at City Corrections. Plaintiff
informed Defendant Charle[s ] of the hernia he had
been suffering with for a long period of time and
how doctors at Elmhurst Hospital recommend he
3

receive surgery , and the continuous pain and
1
suffering the hernia was causing him . Defendant
Charles Appiah acknowledged and confi t med the
existence of Plaintiff ' s hernia and serious
medical needs . Defendant Charles Appiah referred
Pl aint i ff to West Faci li ty (WF) for surgery.
Id .

~

6.

Plaintiff incorporated R.P . A . Appiah ' s seven - page
intake physical note into the SAC and annexed it thereto as
"Exhibit B . " The detailed medica l note documents R.P . A. Appiah ' s
evaluation of Pl aintiff as a new admission and includes orders
for a number of diagnostic tests , medication pnescriptions and
referrals to medical spec i alties , i ncluding me tal hea l th ,
nutrition , and , as Plaintiff states in the SAC , surgery to
evaluate Plaintiff ' s reducible , non - tender , inguinal hernia .

Plaintiff's allegations as to Dr . Sabbagh are limited
to the following :
At [August 28 , 2012] appointment , Plaintiff was
seen by Defendant Raja Sabbagh , who acknowledged
the serious med i cal needs and ref erred Plaintiff
to Bellevue Hospital for surgery .
Id .

~

7.

Plaintiff incorporated Dr . Sabbagh ' s August 28 , 2012
medical note into the SAC and annexed it thereto as "Exhibit C . "
According to Dr . Sabbagh's record , Plaintiff had been referred

4

- J

t o him for evaluation of a left inguinal hernia l Dr . Sabbagh
noted that Plaintiff reported a history of a reducible mass that
increased in size with straining.

Id . Ex. C. Dr. Sabbagh's

treatment plan was to refer Plaintiff to Bellevu e Surgery . Id.

Plaintiff alleges that he had two interactions with
P.A. Kelly during the period in question . The S~C states:
Plaintiff went to the medical departJ ent to seek
assistance regarding his condition o rl [September
10, 2012] where he was seen by Defendant Guy
Kelly . Although he acknowledged the Hernia,
complications with bowel movement, and was made
aware by the Plaintiff of the excessive pain the
hernia was causing as well as the unreasonable
delay in treating the hernia. DefendJ nt Guy Kelly
failed to take reasonable action. Pl J intiff was
prescribed more pain relieving medications and
dismissed from the clinic .

Id.

~

8.

Plaintiff incorporated P.A. Kelly's y eptember 10, 201 2
progress note into the SAC and annexed it thereto as "Exhibit
D." In the note,

P . A . Kelly indicates that the reason for the

appointment was pain over the left inguinal du t ing Plaintiff's
last bowel movement, which was three days earlier. P.A . Kelly
further noted that on examination , there was tenderness o ver the
left inguinal but no swelling or redness. The recorded diagnoses
were hernia and constipation . P.A. Kelly's pl J n of treatment was

5

to prescribe the pain reliever Naproxen and the stool softener
Colace.

The second occasion on which

Plaintif~

alleges he was

seen by P.A. Kelly was approximately one year later. As to that
interaction, the SAC states:
On [September 4 , 2013] Plaintiff was seen by
Defendant Guy Kel l y. Defendant Guy Kelly
acknowledged Plaintiff's deteriorating mental and
physical condition as well as the ongoing delay
in addressing the serious medical ne J ds present .
Defendant Guy Kelly gave Plaintiff pain meds and
scheduled him for surgery at Bellevue Hospital
for [September 17 , 2013] .
/

Id.

~

16.

The note documenting the encounter b / tween P.A. Kelly
and Plaintiff is incorporated into the SAC and annexed thereto
as "Exhibit K." That note indicates that

Plain~ iff

presented to

P.A. Kelly with complaints of intermittent pain related to his
hernia that morning and a rash on his chest .

~ d.

Ex. K. On

examination, P.A. Kelly noted tenderness over the left inguinal
area but no swelling . Id . P.A. Kelly prescribed the pain
reliever ibuprofen, as well as an ointment to treat Plaintiff's
rash . Id. The record further includes the not tion "9/17/13
Surgery BVH ." Id .

6

-

J

Plaintiff does not allege that he was ever personally
treated by Dr. Richard. Rather,

Plaintiff alleges that he was

seen by non-party physician Dr. Lester Lieberma

on Rikers

Island on September 18, 2012 for issues relating to his hand,

I

lower back, and legs. Following that encounter , the SAC alleges :
Mr. Lieberman made a determination t tt at Plaintiff
was in need of a cane and double mattress. Mr.
Lieberman provided Plaintiff with a ~ eferral,
stating his recommendations. The referral was
I
given to Defendant Jean Richard for final
approval. Although the referral/recommendation
was made by another specialist, Defe +dant Jean
Richard, aware of Plaintiff's serious medical
needs, disregarded the referral and p rescribed
the cane and double pillows instead. f
Id.

'.II 9 & Ex.

E.

Dr. Lieberman's note and the

referra ~

discussed above

are incorporated into the SAC as "E xhibit E." f he referral form
includes what appear to be handwritten notations signed by Dr.
Richard indicating that he reviewed the refer j al and endorsed
the provision of a cane but switched the extr9 mattress to
double pillows, as Plaintiff alleged.

The Plaintiff does not allege any direct involvement
by Dr. Johnson , but appears to be suing him i f his capacity as
Chief Medical Officer of Corizon . Specifically, Plaintiff
alleges that Dr. Johnson, by virtue of other ! awsuits and

I

I
7

- J

notices of claim , was aware of the insufficient training and
improper conduct of medical employees

providin ~

treatment to

individuals in the custody of the Department ofl Correction ,
which resulted in the deprivation of civil rig J ts , and failed to
take corrective action. SAC

~~

21-26.

The instant motion was noticed for and marked fully
submitted on December 22 , 2016 . No opposition

o the motion was

submitted .

III. The Applicable Standard

On a Rule 12(b) (6) motion to dismis , all factual
allegations in the complaint are accepted as ti rue and all
inferences are drawn in favor of the pleader . Mills v . Polar

Molecular Corp . , 12 F . 3d 1170 , 1174

(2 d Cir .

993) . A complaint

I

must contain "sufficient factual matter , accef ted as true , to
' state a claim to relief that is plausib l e on its face. ' "

Ashcroft v. Iqbal , 556 U.S . 662, 663
Corp. v.

Twombly,

550 U.S . 544 , 555

(h uoting Bell Atl.

(2009)
(2007)) .

I

c l aim is facially

plausible when "the plaintiff pleads factual content that allows
the court to draw the reasonable inference

t~at

the defendant is

liable for the misconduct alleged ." Iqbal , 5 d 6 U.S. at 663

8

(quoting Twombly,

550 U. S. at 556) . In other r ords , the factual

allegations must "possess enough heft to show that the pleader
is entitled to relief." Twombly,

550 U.S. at b 57

(internal

quotation marks omitted).

While "a plaintiff may plead facts alleged upon
information and belief ' where the belief is based on factual
I

information that makes the inference of culpability plausible ,'
such allegations must be 'accompanied by a statement of the
facts upon which the belief is founded .'" Mun b z - Nagel v. Guess,
Inc., No. 12 Civ. 1312 (ER), 2013 U. S . Dist. LEXIS 61710 , at *3

(S . D.N. Y. Apr. 30 , 2013)

(quoting Arista Reco l ds, LLC v. Doe 3 ,

604 F.3d 110 , 120 (2d Cir . 2010)); Prince v. L adison Square
Garden , 427 F. Supp . 2d 372 , 384

20~ 6) ;

(S . O.N.Y.

Williams v.

Calderoni , 11 Civ . 3020 (CM), 2012 WL 691832, at *7

(S.D . N. Y.

Mar . 1, 2012)) . The pleadings , however, "mu st contain something
more than

a statement of facts that merely creates a

suspicion [of] a legally cognizable right of action ." Twombly,
550 U.S . at 555 (citation and internal quotation omitted).

In cases where, as here, Plaintiff l s pro se, a court
.

.

.I

is obligated to interpret t h e c l aims as raisi n g the strongest
arguments that they suggest. See Triestman v. Fed . Bureau of

9

Pris ons, 470 F.3d 471 , 474

(2d Cir . 2006) . The obligation to be

lenient while reading a Plaintiff ' s pleadings is particularly

I

important in cases where Plaint i ff is assert i ng a civil rights
claim . See Jackson v . N . Y . S. Dep ' t of Labor , 70
218 , 224

I

F. Supp . 2d

(S . D. N. Y. 2010) . Nevertheless , "even pro se plaintiffs

asserting civil rights claims cannot withstand a motion to
dismiss un l ess their pleadings contain fact u a l allegations
sufficient to raise a
level .' " Id .

' right to relief above t J e specu l ative

(citing Twombly , 550 U.S. at 555) .

As a motion to dismiss a Complaint u Ader Rule 12(b) (6)
challenges only the face of the p l ead i ng , "the Court must limit
its analysis to the four corners of the

complalnt~

in deciding

such a motion . Vassilatos v . Ceram Tech Int ' l , U. S . Dist . LEX I S
6620

(S . D. N. Y. 1993 citing Kopec v . Coughlin , 922 F . 2d 152 , 154-

155 (2d Cir . 1991). However , where documents are attached to a
complaint or incorporated by reference , as Plaintiff ' s medical
records are in this case , the Court may consider those documents
for the purpose of deciding a motion to dismi s . See Chambers v .

Time Warner . Inc ., 282 F . 3d 147 , 152 - 53 (2d C1 r. 2002) ; see also
Rothman v. Gregor , 220 F . 3d 81 , 88

(2d Cir . 2 J OO)

( " For purposes

of a motion to dismiss , we have deemed a complaint to include
any written i nstrument attached to it as an e t hibit

10

. ,, ) .

I
IV .

I

The Motion to Dismiss the Claim for Deli, erate
Indifference to Medical Needs is Granted

At its core , Plaintiff ' s act i on against the moving
defendants is primar i ly premised on an a ll eged deprivation of
medical care in violation of the Eighth or

Four~eenth

Amendments . Whether analyzed under the Eighth or Fourteenth
Amendment , to plead a civil rights violation brought pursuant to
42 U.S.C.

§

1983 for inadequate medical care , a prisoner must

allege "deliberate indifference to [his] serio j s medical needs. "

.

I

Estelle v . Gamble , 429 U. S. 97 , 104 (1976); HaErison v . Barkley,

219 F. 3d 132 , 136 (2d Cir . 2000) . For li abi li t 1 to attach under
this standard , a plaintiff must demonstrate that a health care
provider acted or failed to act with reckless l isregard to the
plaintiff ' s health or safety . Farmer v. Brenna / , 511 U. S . 825-,
836 (1994).

I

In order " (t]o succeed in showing
indifference,

I

de ~ iberate

[Plaintiff] must show that the acts of defendants

involved more than a lack of due care , but ratr er invo l ved
obduracy and wantonness in placing his health in danger ."
LaBounty v . Coughlin, 137 F . 3d 68 , 72-73

11

(2d d ir . 1988) .

"[T]he deliberate indifference stan, ard embodies both
an objective and a subjective prong. " Hathaway v. Coughlin , 99
F . 3d 550, 553 (2d Cir. 1996). To satisfy the ob jective prong ,

"the alleged deprivation must be

' sufficientl~

serious,' in the

sense that 'a condition of urgency, one that may produce death ,
degeneration , or extreme pain ' exists." Id . abI 553 . For the
purpose of this motion , Defendants do not dis , ute that an
inguinal hernia can , in certain contexts with certain symptoms,
constitute a "serious medical condition" in t J e context of
§

1983 claim for deliberate indifference. How J ver , the fact that

the Plaintiff was suffering from a serious medical condition
does not necessarily mean that the alleged de J rivation was
sufficiently serious. The Second Circuit has d eld that "although
we sometimes speak of a 'serious medical cond tion ' as the basis
for an Eighth Amendment claim , such a

conditi ~ n

is only one

I

factor in determining whether a deprivation of adequate medical

I

care is sufficiently grave to establish constitutional
liability ." Salahuddin v . Goard , 467 F . 3d 263, 280 (2d Cir .
2006). Even where a ser i ous medical condition exists, if
Plaintiff has received adequate treatment for the same , there
cannot be said to be a sufficiently serious d l privation of

I

medical care .

12

A difference of opin i o n between a priso n er and prison
officials regarding medical treatment does not , as a matter of
law , constitute deliberate indiffe r ence . Chance v . Armstrong,
143 F . 3d 698 , 703
Supp . 230 , 232

(2d Cir. 1998) ; Mccloud v .

(S . D. N. Y. 1988)

("there is no

De~aney ,

ri~ht

677 F.

to the

I

medical treatment of one ' s choice .

. " ). Nor does the fact

that an i nmate might prefer an alternative trea r ment , or feels
that he did not get the leve l of medical attent J on he preferred .
Dean v.

Coughlin ,

804 F . 2d 207 , 215

(2d Ci r . 1 91 6) .

" [D]isagreements over med i cations , diagnostic techniques

(e.g .,

the need for X- rays) , forms of treatment or the need for
specialists or the timing of their interventio , are not
adequate grounds for a Section 1 983 c l aim " Sands v

.

Barnabas Hosp . Corr . Health Servs. , 15 1 F.
(S . D. N. Y. 2001)

I

Sup ~ .

.

St .

2d 303 , 312

(citing Estelle v . Gamble , 429 U. S . 97 , 107

(1976)) . Moreover , " [p]rison o f f i c i als have broad discretion in
determining the nature and character of medical treatment
afforded to inmates , and inmates do not have the right to the

I

treatment of the i r choice." Brown v . Selwin , 250 F. Supp . 2d
299 , 307

(S . D. N. Y. 1999)

(i nternal quotation marks omitted) .

To satisfy the subject i ve prong of tbe deliberate
i ndifference inquiry , a Pl aintiff must allege that " the charged

13

official must act with a sufficiently culpable state of mind."
Hathaway,

99 F.3d at 553. The required state o / mind, equivalent

to crimina l recklessness, is that the o fficial "knows of and
disregards an excessive risk to inmate health r r safety; the
official must both be aware of facts fr om which the inference
can be drawn that a substantial risk of serious harm exists, and
he must also draw the inference." Hemmings v. Gorczyk, 134 F. 3d
104, 108

(2d Cir. 1998)

(quoting Hathaway)

(inlternal c i tation

omitted).

Insofar as Plaintiff is seeking to J mpose personal
liability on Individual Defendants under

§

19 ·3 , he must allege

that the individual was personally involved i j causing the
alleged constitutional violation while acting under the color of
state law. Hafer v . Melo,

502 U.S. 2 1, 25 (1991); see also

Gaston v. Coughlin , 249 F.3d 156, 164

(2d Cir. 2001)

an individual defendant's personal invo lvement

("Proof of

in the alleged

ll l l

wrong is, of course , a prerequisite to his l' lb.l't y on a claim
f or damages under

§

1 983 .").

Plaintiff has offered no allegations suggesting that

I

R.P.A. Appiah was deliberately indifferent to his medical needs.
The medical record incorporated int o the SAC t ocument ing that

14

encounter further demonstrates that R .P. A . Apl iah performed a
comp l ete evaluation and cons i dered Plaintiff's var i ous med i cal
cond iti ons , including his reducible, no n-t endJ r , ingu in al
I

hernia . SAC Ex. B. R .P. A . Appiah ' s note also ITe flects
prescription of multiple medications and a nu lber of referrals
for further evaluation for Pl aintiff ' s surgic j l , mental health ,
and d iet ary needs . Id. Neither Plaintiff's

li ~ ited

al l egations

as to R . P . A . Appiah nor the medical record documenting their
single encounter , can be construed as a depri lation of medical
care , as R . P . A. Appiah actually made a referral for the very
care that Plaintiff claims he needed . Id . Mor l over , the
a ll egations do not suggest that R . P.A. App i ah knew of and
disregarded a risk to Plaintiff ' s safety as he evaluated
Plaintiff ' s cond itions, including his he r nia , and ordered a plan
of treatment to address those cond itions.

Id.

Absent any al l eged facts wh i ch even suggest that
R . P . A . Appiah deprived Plaintiff of medical care or acted with
the requisite state of mind in disregarding a risk to
Pla i nt iff' s safety , the SAC has not stated a c laim for
I

deliberate indifference as to R . P . A. App i ah . gee Brown v .

DeFrank , 06 Civ . 2235 (AJP) , 2006 U. S . Dist . l EX I S 83345 , at *70
(S .D.N.Y. Nov . 25 , 2006) (dismissing deliberat l

15

indifference

claim against individual provider where Plaintiff failed to
satisfy either the objective or subjective

pron~s

of the

I

deliberate analysis with regard to the treatmen f by the
individual provider) .

I

Based on the Plaintiff ' s allegations r nd the medical
record annexed to the SAC ,

Dr . Sabbagh saw Pla l ntiff once ,

surgical referral at West Facility on August 28 ,

for a

2012 . SAC 7 &

Ex . C . Dr . Sabbagh 's involvement in Plaintiff' 1 treatment was to
evaluate his hernia and order a referral to Bellevue Surgery .

Id. As with Plaintiff's allegations concern in g R.P.A . Appiah ,
Plaintiff has failed to off er any factual

alle~ations

suggesting

I

Dr . Sabbagh deprived him of any medical care or knew of and
disregarded a substantial risk to his safety. l ccordingly,
Plaintiff has not satisfied either prong of th k deliberate
indifference analysis as to Dr. Sabbagh and his claim against
Dr . Sabbagh must be dismissed. See Brown 2006 U.S.

Dist. LEXIS

83345 , at *70 .

As to P . A . Kelly ,

Plaintiff claims J e was seen by P . A.

Kelly on two occasions . On the first,

which o l curred on

September 10, 2012 , the incorporated medical records indicate
that Plaintiff complained of pain over his left inguinal hernia

16

while defecating and experiencing constipatiom
Kelly examined Plaintiff, noting tenderness

of~r

SAC Ex

the

D

l~ft.

P.A.

inguinal area but no swelling or redness, and prescribed
medications to alleviate Plaintiff's complain J s in the form of a
-

pain killer and stool softener.

I

Id.

Plaintiff acknowledges that

P.A. Kelly prescribed pain medication, but ne J ertheless alleges
that PA Kelly "failed to take reasonable

acti ~ n,"

because the pain relieving medications did no,

presumably

alleviate his

"discomforts," which he alleges had risen to l unbearable
levels." Id.

~

8. However, the medical records which Plaintiff

has incorporated into the complaint contradic J the allegation
that he was in "unbearable" discomfort at the time or that P.A.
.

Kelly was aware of any extreme pain.

.

I

See id. Ex. D. P.A. Kelly

noted that Plaintiff had experienced pain whe{ defecating three
days earlier, and that he was constipated.

Id l At the time of

the examination, P.A. Kelly did not even document pain, but
rather "tenderness." Id. In prescribing a sto j l

softener and a

pain reliever, P.A. Kelly ordered a plan of c J re to treat the
specific complaints Plaintiff presented.

The September 10, 2012 medical reco , d establishes that
there is no basis to support a claim that P.A. Kelly was
deliberately indifferent to Plaintiff's medic l needs at that

17

time. More specifically,

P.A. Kelly provided Plaintiff treatment

for the conditions Plaintiff complained of, a f d there is no
allegation that P.A. Kelly was aware of any risk to Plaintiff
that he disregarded.

Plaintiff's only other interaction with P.A. Kelly was
one year later, on September 4,

2013, when Pl l intiff claims P.A.

Kelly gave him pain medication and scheduled J im for surgery at
Bellevue Hospital.

Id.

~

16 & Ex. K.

I

Plaintiff has not alleged

that P.A. Kelly deprived him of treatment dur l ng this encounter.
Plaintiff alleges that P.A. Kelly scheduled h J m for exactly the
treatment he claims he needed. The September

l,

2013 encounter

does not adequately establish that P.A. Kelly exhibited
deliberate indifference to Plaintiff's medica

needs.

Dr. Richard's only alleged involvement with Plaintiff
was entirely unrelated to treatment of Plaint d ff's hernia and
I

arose out of a visit with Dr. Lieberman regarding "issues with
[Plaintiff's] hand, lower back, and legs." Id.

~

9.

Dr.

Lieberman's note indicates that Plaintiff had chronic pain for
the prior three years in the left wrist and l , wer back after a
motor vehicle accident.

Id. Ex. E. In addition to referring

Plaintiff to a hand specialist and neurosurge d n to evaluate

18

bilateral carpal tunnel syndrome and spinal stenosis
respectively, Dr . Lieberman issued an internal ref err al for

I

Plaintiff to receive a cane and extra mattress f or four weeks .
Id . Dr . Richard changed that prescription to a J ane and double
pillows rather than an extra mattress.

Id.

Plaintiff has not alleged that Dr. Richard deprived
him of medical care , as he does not dispute thar he received a
cane and extra pillows , but alleges that Dr . Richard provided
him with extra pillows instead of a double mattress. See id .
9 . There is no indication that Plaintiff's lon

term hand , lower

back and leg issues were causing him extreme p
decision by a medical professional to give

~

or that the

dou i l~

pillows

instead of an extra mattress constituted a con cious disregard
of a known risk to Plaintiff. Accordingly , Plaintiff has not

I

satisfied either prong of the deliberate indifference analysis
as to Dr. Richard .

Plaintiff has not alleged that Dr . J r hnson played any
direct role in his medical care . It appears th t he seeks to
hold Dr . Johnson liable for alleged constitutional vio l ations in
his capacity as Chief Medical Officer of Coriz b n. As Plaintiff

is seeking to hold Dr . Johnson individually

19

li~ble ,

Plaintiff

must nevertheless allege personal involvement by Dr . Johnson in
his alleged deprivation of care. See Gaston, J 49 F.3d at 164.

I
The personal involvement of a supervisory defendant
may be shown by evidence that the defendant " 1
1) directly
participated in the violation ;

(2) failed to

1emedy the

violation after learning of it through a repont or appeal;

(3)

I

created a custom or policy fostering the violation or allowed
the c u stom or policy to continue after lear ni l g of it; or (4)
was grossly negligent in supervising subordinates who caused the
violation ." Sealey v. Giltner, 11 6 F. 3d 47, 51
(citing Williams v . Smith, 781 F. 2d 319 ,
"Liability may not be premised On the

(2d Cir . 1997)

I

323 - ~ 4)

respond ~,l at
~

(2d Cir. 1986).
superi'or or

. nor may : defendant be

v i car i ous liability doctrines,

liable merely by his connection to the events through links in
the chain of command." Prince v . Edwards, 2000 U.S. Dist. LEXIS

I
(S .D.N.Y. Ma y 17, 2000)

6608 , *19 , No. 99 Civ . 8650 (DC)

(internal quotation marks and citation omitted) .

Plaintiff has not alleged that Dr.
participated in any deprivation of his

medica~

ohnson
care that could

form the basis of a co nstituti ona l violation. He also has not
alleged that Dr. Johnson received any reports or appeals that

20

would have put him on notice of any deprivation of medica l care
to Plaintiff. Although Plaintiff has made con lusory allegations
that Dr. Johnson was aware , through "lawsuits, notices of
claims, and complaints" that medical employees were
insufficiently trained and supervised,

result ~ ng

in the

deprivation of human rights, he has offered n d factual support
for these allegations . SAC

~

21 .

The bare allegation that Dr. Johnso d failed to
adequately train and supervise the individual medical providers,
absent any factual support , is insufficient to establish
supervisory liability for deliberate indiffer J nce t o a medical
need . There are no specific factual allegatio 1s that Dr. J o hnson
had any personal involvement in the training Gr supervision of
the individual medical providers . Even if Pla l ntiff had alleged
that Dr. Johnson was directly involved in the training or
supervision of the medical providers who trea ted Plaintiff,
there is no allegation suggesting that Dr. Johnson was "grossly
negligent " in any way. Plaintiff has not, the re fore,

established

supervisory liability on behalf of Dr. Johns o t . See Reid v .
Artus ,

984 F . Supp. 191, 195 (S . D.N.Y. 1997)

( dismissing a

prisoner ' s section 19 83 claim against a superf isory official
when the pleadings failed to establish "any factual basis upon

21

which a fact finder could reasonably conclude personal
invo lvement by the supervisory official defendant[ , ]
that [defendant] created or continued a policy ! r custom whi c h
allowed the violation to occur , or that [defendant] was grossly
negligent in managing the subordinates who caus k d the unlawful
condition.").

V. The Motion to Dismiss the Remaining Causes of Action is
Granted

The SAC purports to set forth eight J dditional ca uses
of action .

SAC~~

35-61. Plaintiff ' s sixth cau e of action f or

"denial of medical care" is redundant of his d /liberate
indifference claim . See id .

~~

49-50. Additionally,

Plaintiff ' s

claims for Monell liability, respondeat superi or , and negligent
·
· ·
·
·
· ·
I
·
·
supervis i· o n , h iring, monitoring, training an d retention o f un f it

employees are specifically pled as to the City of New York only
and inapplicable to the moving defendants . See id .

~~

51-61 .

As to Plaintiff ' s remaining claims s b unding in
·
·
·
'
I
·
·
conspiracy , f ai 1 ure to intervene , neg l igence , an d intentiona 1

and negligent inflicti on of emotional distress
30 ,

see id.

~~

35-

43 - 48, each fails to adequately allege to state a claim upon

22

which relief can be granted and must therefore be dismissed as
to the moving defendants.

The Second Circuit has repeatedly held that "in orde r
to state a claim of conspiracy under

§

19 83 the complaint must

contain more than mere conclusory allegations ." See Dwares v.
City of New York , 985 F . 2d 94 , 99 (2d Cir . 1 991 ; Spear v . West
3)
Hartford,

954 F . 2d 63 , 67

(2d Cir . 1992) . A P aintiff should not

plead mere evidence , he should make an effort to provide some
"details of time and place and the alleged ef ect of the
conspiracy ." Dwares , 985 F . 2d 94 , 100 .

The SAC does not allege any details to support a claim
for conspiracy . The Plaintiff does not allege any specific acts
by any of the moving defendants which suggest that any
defendants acted in concert with any other ind ividual for any
purpose. Plaintiff ' s allegations are

and insuffi cient

to state a claim for conspiracy .

Plaintiff ' s allegations as to his f J ilure to intervene
claim state only "Defendants had a reasonable opportunity to
prevent the v i olat i ons of Plaintiff ' s constit j tional rights, but
they failed to intervene . Accordingly, the Defendants are liable

23

to Plaintiff for failing to intervene to preve1 t the violation
of Plaintiff's const ituti onal rights." SAC!!

~ 8 - 39.

There are

no specific allegations as to any of the moving defendants, and
no allegations of how and when the individual J oving defendants
cou l d have or should have intervened. As Plaintiff's c laim for
failure to intervene consists on l y of legal co d clusions , without

I

any factual allegations as to the moving defendants, it must be
dismissed. See Ashcroft, 556 U.S. at 678

("A p l eading that

offers ' labels and conclusions ' or 'a formulaic recitation of
the elements of a cause of action will not do.
Atl. Corp ., 550 U.S. at 555

1

")

(citing Bell

(2007).

Plaintiff's state law claim for negl i gence states only

"Defendants are liable to Plaintiff because De t endants owed
Plaintiff a cognizab l e duty of care as a matter of law and
breached that duty." SAC ! 44. Once again, the SAC offers n o
specific allegations as to any of the moving defendants or how
they were negligent to Plaintiff. Plaintiff of bers nothing more
than a formulaic recitation of the elements of a negligence
claim, which is, as a matter of law, insuffici Fnt to state a
cla im. See Ashcro ft,

556 U.S. at 678 .

24

To the extent that Plaintiff ' s claim b or negligence
could be construed as a claim for medical malpractice against
the individual moving defendants , the statute of limitations for
a medical malpractice claim in New York against a non - municipal
provider is two years and six months. NY CLPR 214-a . As
Plaintiff commenced this action on May 21 , 2015 , the statute of
limitations expired for any medical malpractice claims arising
of treatment prior to November 21, 2012. Accordingly, the only
alleged treatment provided by any of the moving defendants which
could be the basis for a timely claim is P . A . K!elly ' s September
4, 2013 encounter during which , according to t e SAC , he
prescribed Plaintiff pain medication and scheduled him for
surgery at Bellevue Hospital.

SAC~

16 . Plaint'ff has offered no

allegation or facts suggesting that this treatment amounts to a
departure from the standard of care which caused him any injury .
The claim premised on medical malpractice is d'smissed
I

.

See

Torres v . City of New York , 154 F . Supp . 2d 814, 819 (S.D . N. Y.

2001)

("Under New York law, the requisite elemJ nts of proof in a

medical malpractice action are (1) a deviation or departure from
accepted practice, and (2) evidence that such d eparture was a
proximate cause of injury or damage . ") .

25

I

Plaintiff ' s fifth claim for intentiof al and negligent
infliction of emotional distress must also be dismissed as it is
insufficiently pled . See SAC !! 45 - 48 . "Under New York law, the
torts of intentional and negligent infliction of emotional
distress share three common elements :

conduct ,

(1) extr kme and outrageous

(2) a causal connection between the c f nduct and the

injury, and (3) severe emotional distress ." See Simpson v .
Uniondale Union Free Sch . Dist. , 702 F . Supp . Qd 122, 1 3 4
(E.D.N.Y. 2010). The SAC is devoid of factual allegations to
support any of these three elements and , as discussed above , a
formulaic recitation of the legal elemen .t s of

i
t

hese causes of

action is insufficient to state a claim. See Al hcroft , 556 U. S.
at 678.

26

Conclusion

The motion to dismiss the SAC agains

the Individual
I

Defendants is granted. The Plaintiff is grante d lea ve to replead
within 20 days.

It is so o rdered.

New York, NY
September,,/ -1 2017
J

ERT W. rET

U.S.D. ~ .

27