Vassallo v. City Of New York, et al
Filing
62
OPINION AND ORDER re: 49 MOTION to Dismiss the Amended Complaint. filed by Corizon Health, Inc., Daniel O'Connell, Joseph Ponte, Errol Toulon, City of New York, Raleem Moses, Martin Murphy, Corizon, Inc., 46 MOTION to Dismiss . filed by New York City Health And Hospitals Corporation. For the foregoing reasons, the City Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART, and HHC's motion to dismiss is GRANTED. Plaintiff is permitted to file an amended complaint in accordance with this Opinion, if he wishes to, on or before December 22, 2016. The City Defendants can file an answer or other response within 21 days of the filing of the amended complaint. Thereafter, the Court will schedule a pretrial conference in the matter. (As further set forth in this Order.) (Amended Pleadings due by 12/22/2016.) (Signed by Judge Katherine Polk Failla on 11/22/2016) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------- X
:
FRANK VASSALLO,
:
:
Plaintiff,
:
:
v.
:
:
CITY OF NEW YORK, CORIZON HEALTH,
:
INC., CORIZON, INC., NEW YORK CITY
:
HEALTH AND HOSPITALS CORPORATION, :
NEW YORK CITY DEPARTMENT OF
:
CORRECTION COMMISSIONER JOSEPH
:
PONTE, CHIEF OF DEPARTMENT MARTIN :
MURPHY, DEPUTY COMMISSIONER OF
:
OPERATIONS DR. ERROL TOULON, JR.,
:
MANHATTAN DETENTION COMPLEX
:
WARDEN RALEEM MOSES, BELLEVUE
:
HOSPITAL PRISON WARD DEPUTY
:
WARDEN IN COMMAND DANIEL
:
O’CONNELL, JOHN/JANE DOES 1-50,
:
:
Defendants. :
:
------------------------------------------------------ X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: November 22, 2016
______________
15 Civ. 7125 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Frank Vassallo, a diabetic former inmate at the Manhattan
Detention Center (“MDC”) and Bellevue Hospital Center’s Prison Ward (“BPW”),
brings this action under 42 U.S.C. § 1983, alleging deliberate indifference to
his medical needs in violation of the Eighth and Fourteenth Amendments.
Various defendants employed by the City of New York (the “City Defendants”)
and the New York City Health and Hospitals Corporation (“HHC”) have filed two
motions to dismiss Plaintiff’s Amended Complaint (the “FAC”) under Federal
Rule of Civil Procedure 12(b)(6). For the reasons that follow, the City
Defendants’ motion is granted in part and denied in part, and HHC’s motion is
granted.
BACKGROUND 1
A.
Factual Background
1.
Plaintiff’s Incarceration at MDC
The FAC alleges the following facts for the period from December 19,
2014, to December 21, 2014, during which Plaintiff was incarcerated at MDC
(the “MDC Period”): On December 19, 2014, Plaintiff was taken into
Department of Correction (“DOC”) custody for failure to pay child support by
Order of Commitment of the Richmond County Family Court. (FAC ¶ 64). The
Order directed DOC “to [e]nsure that [Plaintiff] receive all appropriate medical
attention and be given all prescribed medications.” (Id. at ¶ 65). At the time
Plaintiff was taken into custody, he was “a well-cared for diabetic, receiving
regular insulin via his insulin pump, receiving boluses as required, and not
suffering from any foot ulcerations, cellulitis, or infection.” (Id. at ¶ 67). DOC
designated Plaintiff for housing at MDC. (Id. at ¶ 66).
In the early morning hours of December 20, 2014, Plaintiff was
interviewed by medical intake personnel at MDC about his social, mental
health, and medical histories. (FAC ¶ 68). As part of his medical history
1
This Opinion draws on facts from the Amended Complaint (“FAC”, Dkt. #42), which
facts are taken as true for purposes of this motion. See Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (when reviewing a complaint for failure to state a claim, the
court will “assume all well-pleaded factual allegations to be true” (internal quotation
marks omitted)). For convenience, the City Defendants’ moving brief is referred to as
“City Br.” (Dkt. #50); HHC’s moving brief as “HHC Br.” (Dkt. #48); Plaintiff’s brief in
joint opposition as “Pl. Opp.” (Dkt. #56); the City Defendants’ reply as “City Reply” (Dkt.
#58); and HHC’s reply as “HHC Reply” (Dkt. #57).
2
interview, Plaintiff informed personnel that: (i) he has had Type I diabetes since
1995; (ii) he has been prescribed and has used an insulin pump since 2005,
which he was wearing at that time, and which automatically monitors his blood
sugar and provides insulin throughout the day; (iii) he had run out of his
insulin after being taken into custody but prior to the intake; (iv) he requires a
special diabetic diet; (v) he was experiencing swelling in his lower extremities
and burning pain at a level of 9 out of 10; and (vi) he was starting to feel
sluggish and experiencing other effects of high blood sugar (collectively referred
to herein as the “Health Disclosure”). (Id.).
At this time, Plaintiff requested an insulin refill for his pump, but was
informed that DOC policy would not permit him to continue using the pump
while in custody. (FAC ¶ 69). He was also told that MDC clinic medical staff
would give him insulin shots instead. (Id.). Plaintiff was not given any insulin
or food at the time of his intake. (Id.). He submitted to a urine drug screen
and was then returned to the intake cell to await his housing assignment. (Id.).
Several hours later, Plaintiff was taken from the intake cell to the MDC clinic,
where he repeated the Health Disclosure that he had provided at intake; he
also requested insulin. (Id. at ¶ 70). A finger stick test was taken and revealed
that Plaintiff’s blood sugar was 189 mg/dl. 2 (Id.). Plaintiff was still not given
any insulin or food at that time. (Id.).
2
In an effort to be comprehensive, Plaintiff includes considerable detail in the FAC
regarding his blood chemistry during the period of his confinement, including, for
example, his hemoglobin A1C levels and milligrams of glucose per deciliter of blood
(mg/dl). (See, e.g., FAC ¶¶ 70, 72, 87-88). Plaintiff also alleges the appropriate blood
sugar levels for a “well-managed” diabetic. (See id. at ¶ 85 (alleging that diabetic’s blood
sugar before meals should be between 70 and 130 mg/dl; two hours after meals, should
3
Plaintiff was next questioned by an individual whom he believed to be a
physician, and repeated his Health Disclosure to this individual. (FAC ¶ 71).
Plaintiff also showed the individual a letter from his treating physician, which
confirmed Plaintiff’s diabetic condition and his need for an insulin pump. (Id.).
Plaintiff again requested insulin, but was provided no insulin either through a
pump refill or a shot. (Id.). He was also not given any food at this time. (Id.).
At approximately 12:36 p.m. on December 20, 2014, nearly 24 hours
after Plaintiff was received into custody, MDC medical personnel performed a
physical examination, including a blood test, on Plaintiff. (FAC ¶ 72). MDC
medical personnel — including Charles Appiah, RPA, Curt Walker, PA, and
Jeanne Israel, RN — tested Plaintiff’s hemoglobin A1C, which was found to be
12.6%. (Id.). The FAC alleges that such a level is “nearly double the goal for
fasting diabetics,” and indicates that Plaintiff was “at a significantly heightened
risk for developing diabetes-related complications such as kidney failure,
blindness and neuropathy.” (Id.). Plaintiff’s blood sugar at that time was 150
mg/dl. (Id.). Plaintiff was given four medications (omeprazole, lisinopril,
hydrochlorothiazide, and simvastatin) to treat his cholesterol, high blood
pressure, and gastric reflux conditions; however, Plaintiff was provided no
insulin or medication to manage his diabetes. (Id.).
be less than 180 mg/dl; and at bedtime, should be between 90 to 130 mg/dl)). This
level of medical detail is usually presented and considered at the summary judgment
stage, not on the pleadings. This Court’s review of other courts’ treatment of such
medical details at the pleadings stage has not revealed perfect consistency in that
treatment. The Court has considered Plaintiff’s blood chemistry details, but does not
believe that, in light of the FAC’s overall allegations, the inclusion or exclusion of such
details would impact the deliberate indifference analysis in this Opinion.
4
Mr. Appiah contacted Dr. Tahmina Sikder and requested Plaintiff’s
transfer to the medical dorm at DOC’s North Infirmary Command (“NIC”),
which the FAC alleges “houses and is better equipped to treat detainees with
similar medical conditions, for insulin pump management.” (FAC ¶ 73).
Although Plaintiff was initially accepted into the NIC medical dorm, his
admission was later rescinded because DOC policy allegedly did not permit
Plaintiff to be housed at NIC due to his status as a civilly confined prisoner.
(Id.). Because Plaintiff’s medical needs could not be met at MDC, the FAC
alleges, Plaintiff was slated for transfer to BPW. (Id. at ¶ 74).
On December 21, 2014, DOC officers were tasked with transporting
Plaintiff from MDC to BPW and commenced the transport; however, upon
reaching BPW, the officers were informed by medical staff that “more was
required of them than their anticipated ‘3 hour hospital run.’” (FAC ¶ 76). The
FAC alleges that because it was near the end of the officers’ shift, rather than
wait and admit Plaintiff into BPW, the officers returned Plaintiff to MDC in
order for officers from the following shift to transport Plaintiff back to BPW.
(Id.). Plaintiff was not examined or treated by any medical personnel at BPW
before officers returned him to MDC for the next shift’s transport. (Id.).
Several hours later, Plaintiff was returned to BPW, where he was
admitted through the emergency department and transferred to the prison
ward. (FAC ¶ 77). At the emergency room, Plaintiff was found to be
“hypoglycemic with his blood sugar below 40 mg/dl.” (Id.) The FAC notes that,
5
prior to that day, Plaintiff had never been hospitalized for his diabetes. (Id. at
¶ 78).
In short, Plaintiff received no insulin, food, or diabetes medication from
the time of his admission to MDC on December 19, 2014, through the time of
his transfer to BPW on the evening of December 21, 2014. (FAC ¶¶ 72, 75,
106-07).
2.
Plaintiff’s Incarceration at BPW
The FAC alleges the following facts for the period from December 21,
2014, to January 14, 2015, during which Plaintiff was in custody at BPW (the
“BPW Period”):
a.
Plaintiff’s Admission to BPW and Initial Care
Upon Plaintiff’s December 21, 2014 admission to BPW, staff conducted a
medical and social history intake, during which Plaintiff conveyed the name
and contact number for his treating physician, as well as the facts that: (i) he
has had Type I diabetes since 1995; (ii) he has been prescribed and has used
an insulin pump since 2005, but ran out and the MDC medical staff had
refused to refill it; (iii) he had not received any insulin while at MDC; (iv) he had
not had a meal since December 19, 2014; and (v) during the intake he was
feeling sweaty and experiencing swelling in his lower extremities with burning
pain. (FAC ¶ 79). These symptoms are alleged to be well-known complications
from elevated blood sugar levels. (Id.). Plaintiff was told that DOC policy
forbids BPW from refilling his insulin pump and that he would be given insulin
6
shots instead. (Id. at ¶ 80). Plaintiff was not given any insulin or food at that
time. (Id.).
About four hours after his admission to BPW, at approximately 10:13
p.m. on December 21, 2014, Plaintiff was provided juice and his first meal
since his December 19, 2014 admission into MDC; this “made him feel better
for the moment.” (FAC ¶ 82). About an hour later, Plaintiff reported to his
nurse that he was experiencing bilateral foot and leg pain at an 8 out of 10
intensity; upon examination, Plaintiff was confirmed to have bilateral leg
swelling, which was worse in his left leg. (Id. at ¶ 83). Plaintiff again reported
severe throbbing pain about 40 minutes later. (Id.).
At 10:40 p.m. on December 22, 2014, Plaintiff’s blood sugar was tested
and found to be 311 mg/dl. (FAC ¶ 87). In response, BPW medical personnel
gave Plaintiff long-acting insulin, but failed to give him any short-acting insulin
to bring his sugar down quickly; consequently, by 11:19 p.m. on the same
evening, Plaintiff’s blood sugar rose to 588 mg/dl, but personnel took no
action. (Id.). Nearly nine hours later, at 7:45 a.m. on December 23, 2014,
BPW medical personnel re-checked Plaintiff’s blood sugar, which was found
still to be over 450 mg/dl. (Id. at ¶ 88). At that point, personnel provided
Plaintiff with short-term insulin instead of a sliding scale. (Id.). However, as of
9:41 a.m., Plaintiff’s blood sugar was still over 450 mg/dl and, by 10:04 a.m., it
reached 626 mg/dl. (Id.).
On December 29, 2014, Plaintiff was examined and found to have an
“open laceration under [his] right foot” and dry crust under his left foot,
7
indicative of an underlying ulcer. (FAC ¶ 91). Plaintiff had not been receiving
treatment for this ailment despite its progressive worsening. (Id.). Following
this exam, Plaintiff was ordered to be provided with special foot appliances for
his right foot to offload right foot erosion (and to be worn whenever walking);
BPW medical personnel were also directed to advise Plaintiff to remain off his
feet; and personnel were to dress Plaintiff’s right foot to keep it dry in the
shower and to apply lotion topically to his feet. (FAC ¶ 92). However, Plaintiff
was not provided with these foot appliances or dressings, nor was he advised to
stay off his feet. (Id.). An x-ray of Plaintiff’s right foot was performed, which
ruled out osteomyelitis, i.e., a bone infection; however, follow-up studies were
not ordered or performed during Plaintiff’s admission. (Id.).
b.
Plaintiff’s Consultations with Specialists
On January 3, 2015, endocrinologist Nidhi Agrawal, M.D., consulted with
Plaintiff regarding the ulcers and swelling of his feet. (FAC ¶ 93). Dr. Agrawal
reviewed Plaintiff’s medication history, blood sugar levels since admission, and
lab results, but did not physically examine Plaintiff. (Id.). Dr. Agrawal advised
medical staff to “[c]onsider vascular surgery consult for diabetic foot ulcers”;
however, no such consultation was requested. (Id.).
Two days later, Dr. Agrawal returned due to increased swelling of
Plaintiff’s legs and for evaluation of a plantar ulcer on Plaintiff’s right foot,
along with two smaller ulcers on the heel and ball of the foot. (FAC ¶ 94).
Erythematous areas were found over both legs with pitting edema, which the
FAC alleges are indicative of infection. (Id.). Again, Dr. Agrawal advised
8
medical staff to “[c]onsider vascular surgery consult for diabetic foot ulcers”;
however, no such consultation was requested. (Id.). Despite several endocrinal
consultations, Plaintiff’s hyperglycemia was never controlled and “would range
from the 40s to 600s.” (Id. at ¶ 95).
On January 9, 2015, Plaintiff was examined by podiatrist Eric Nelson,
M.D., who found plantar ulcerations and fissures on Plaintiff’s feet. (FAC
¶¶ 96-97). Plaintiff reported that he felt no sensation in his feet and was
worried about infection. (Id. at ¶ 97). Dr. Nelson determined that the
ulcerations on both feet were not infected and that the right foot “ulceration is
secondary to uncontrolled diabetes w/ peripheral neuropathy.” (Id. at ¶ 97).
Dr. Nelson directed that Plaintiff’s right foot be kept elevated and that his
dressings be changed daily with an antiseptic, but Plaintiff’s right foot was not
kept elevated by BPW medical personnel, nor were his dressings changed daily.
(Id.).
On January 14, 2015, Plaintiff was examined by dermatologist Shields
Callahan, M.D., who found Plaintiff with a two-to-three-centimeter ulcer at the
base of his right second toe, with granulation tissue at the base and without an
active infection. (FAC ¶ 98). Plaintiff’s left foot had linear deep fissures on
plantar surfaces, also without an active infection. (Id.).
Later the same day, podiatrist Mariola Morell, M.D., examined Plaintiff
and made further recommendations regarding foot care for Plaintiff; however,
Plaintiff was discharged from BPW later that evening. (FAC ¶ 99).
9
3.
Plaintiff’s Discharge from BPW and Subsequent Medical Care
On January 14, 2015, Plaintiff was discharged from BPW and released
from DOC custody, after having petitioned the Family Court for compassionate
release due to inadequate medical care and complications arising from
diabetes. (FAC ¶ 100).
The next day, Plaintiff was examined by his own doctor, who diagnosed
Plaintiff with an infection, started him on a course of antibiotics, and
scheduled him for an MRI to determine whether the infection had reached the
bone. (FAC ¶ 103). While the infection did not reach the bone and Plaintiff’s
foot did not require amputation, “the infection was so prevalent” that,
approximately five weeks later, on February 24, 2015, “Plaintiff underwent
surgery to excise the infection and skin graft the wound.” (Id.).
On February 24, 2015, prior to the surgery, a tissue sample was taken of
the infected area. (FAC ¶ 104). Plaintiff was later advised that he had
“contracted a hospital-borne infection — methicillin-resistant staphylococcus
aureus (MRSA) — at BPW.” (Id.). Tissue samples were never taken during
Plaintiff’s detention at BPW and he was never treated there for MRSA. (Id.).
B.
Procedural Background
On March 10, 2015, Plaintiff filed a Notice of Claim with the City of New
York, and on March 11, 2015, Plaintiff filed a Notice of Claim with HHC. (FAC
¶¶ 112-13). HHC held its statutory hearing on May 14, 2015, and the City its
statutory hearing on July 6, 2015. (Id. at ¶¶ 115-16).
10
Plaintiff filed the Complaint in this action on September 10, 2015. (Dkt.
#1). HHC filed a pre-motion letter on October 29, 2015 (Dkt. #35), to which
Plaintiff responded on November 3, 2015 (Dkt. #36). The Court held a joint
Initial Pretrial Conference and Pre-Motion Conference on November 17, 2015
(see Dkt. #40), at which the City Defendants appeared and also sought leave to
move to dismiss (see Tr. of Nov. 17, 2015 Pre-Motion Conf., Dkt. #40, at 17:723). The Court issued an Order on the same day that, inter alia, directed
Defendants to produce Plaintiff’s medical records, and set a scheduling for
amending the Complaint and for motion practice. (See Dkt. #39).
Plaintiff filed the FAC on January 29, 2016 (Dkt. #42), naming: (i) the
City of New York (the “City”); Corizon Health, Inc. and Corizon, Inc. (together,
“Corizon”); Joseph Ponte; Martin Murphy; Errol Toulon; Raleem Moses; Daniel
O’Connell; John and Jane Doe healthcare workers and medical staff at MDC,
and John and Jane Doe DOC officials (collectively, with the City and Corizon,
the “City Defendants”); and (ii) the New York City Health and Hospitals
Corporation, and certain John and Jane Doe healthcare workers and medical
staff at BPW (collectively, “HHC”).
On March 8, 2016, HHC filed a motion to dismiss and memorandum in
support thereof, and the City Defendants did the same on the following day.
(Dkt. #46-50). On April 6, 2016, Plaintiff filed a memorandum jointly opposing
Defendants’ motions to dismiss. (Dkt. #55-56). Defendants filed their reply
memoranda on April 19, 2016. (Dkt. #57-58).
11
DISCUSSION
A.
Applicable Law
1.
Motions to Dismiss Under Federal Rule of Civil
Procedure 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court should “draw all reasonable inferences in [the
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). Thus, “[t]o 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)).
“While Twombly does not require heightened fact pleading of specifics, it
does require enough facts to ‘nudge [a plaintiff’s] claims across the line from
conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007) (per curiam) (quoting Twombly, 550 U.S. at 570). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover,
“the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
12
2.
Materials That May Be Considered in Resolving a Motion
Under Rule 12(b)(6)
“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
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, 153 (2d Cir. 2002)
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam)); see generally Goel v. Bunge, Ltd., 820 F.3d 554, 55859 (2d Cir. 2016) (discussing documents that may properly be considered in
resolving a motion to dismiss).
HHC argues for the first time in its Reply Brief that “Plaintiff has made
his medical records an integral part of his Complaint,” and urges the Court to
consider those records, an electronic copy of which HHC has submitted, in
connection with resolving the present motions or, alternatively, in converting
the present motions practice into one for summary judgment. (See HHC
Reply 2-3). The Court declines to consider Plaintiff’s medical records in
resolving the instant motions. For starters, HHC’s medical records argument is
raised for the first time in reply, despite the fact that it could and should have
been made in its opening brief. Although the Court has discretion to consider
arguments raised for the first time in reply, it is also “free to disregard” them.
13
Am. Hotel Int’l Grp., Inc. v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 375
(S.D.N.Y. 2009); Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710, 720 n.7
(S.D.N.Y. 1997) (“Arguments made for the first time in a reply brief need not be
considered by a court.”).
Moreover, the medical records here are neither “attached to the
complaint as exhibits,” nor “incorporated by reference in the complaint.”
DiFolco, 622 F.3d at 111. Although the Court “may nevertheless consider [the
medical records] where the complaint relies heavily upon its terms and effect,
which renders the document integral to the complaint,” Chambers, 282 F.3d at
153 (emphasis added) (internal quotation marks omitted), upon reviewing the
FAC, the Court finds this not to be the case and, in any event, declines to
consider the records at this stage. See Goel, 820 F.3d at 559 (“Merely
mentioning a document in the complaint will not satisfy this standard; indeed,
even offering limited quotations from the document is not enough.” (internal
quotation marks and alterations omitted)).
3.
Section 1983 Claims Generally
Section 1983 establishes liability for deprivation, under color of state
law, “of any rights, privileges, or immunities secured by the Constitution[.]” 42
U.S.C. § 1983. “The purpose of § 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 § 1983 claim “has two essential
elements: [i] the defendant acted under color of state law; and [ii] as a result of
14
the defendant’s actions, the 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 § 1983, a plaintiff must
show the personal involvement of defendants in the alleged constitutional
deprivations. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing 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.”
Iqbal, 556 U.S. at 678. “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).
4.
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. See Caiozzo v.
Koreman, 581 F.3d 63, 72 (2d Cir. 2009); id. (holding that deliberate
indifference to medical need claims “of a person in custody should be analyzed
under the same standard irrespective of whether they are brought” under the
15
Eighth Amendment (for convicted detainees) or Fourteenth Amendment (for
pretrial detainees)). 3
With respect to the subjective element, 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.” Id. (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
3
The Second Circuit has not indicated post-Caiozzo whether a different standard applies
in the civil detention setting presented here. Cf. Calhoun v. Umeasor, No. 12 Civ. 7238
(AJN), 2014 WL 1229592, at *3 (S.D.N.Y. Mar. 21, 2014) (finding that Caiozzo obviated
the need, when conducting a deliberate indifference to medical needs analysis, to
resolve the factual issue of whether the plaintiff was criminally or civilly confined);
accord James v. Kaskiw, No. 13 Civ. 526 (DNH), 2014 WL 3845086, at *3 (N.D.N.Y. Aug.
5, 2014). Nor does Plaintiff argue for a different standard based on his civil detention.
(See FAC ¶¶ 9, 127, 152; Pl. Opp. 12-20). In light of Caiozzo’s holding, and for ease of
reference, this Opinion refers only to the Eighth Amendment deliberate indifference
framework, while recognizing that Plaintiff raises his deliberate indifference claim under
both the Eighth and Fourteenth Amendments. (See id.).
16
result.” Bell v. Jendell, 980 F. Supp. 2d 555, 561 (S.D.N.Y. 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 to administer a treatment or medication is a medical judgment that,
without more, does not amount to deliberate indifference. See Ross v. Correct
Care Sols. LLC, No. 11 Civ. 8542 (DLC), 2013 WL 5018838, at *4 (S.D.N.Y.
Sept. 13, 2013).
B.
Analysis
1.
Plaintiff Adequately Pleads a Claim of Deliberate Indifference
as to the MDC Period, But Not as to the BPW Period
a.
The Objective Element Is Satisfied as to Both the MDC
and the BPW Periods
The City Defendants argue that Plaintiff’s claim, properly construed, is
not for the total deprivation of medical care, but rather for delayed or
inadequate medical care. (See City Br. 9). Therefore, the City Defendants
maintain, the seriousness inquiry under the objective element should be
focused only on the unreasonableness of the delay or inadequacy rather than
on the severity of Plaintiff’s underlying condition. (Id. at 9-10). HHC argues
17
that, as to the BPW period, Plaintiff was neither deprived of medical care nor
provided delayed or inadequate care and, accordingly, Plaintiff’s claims fail to
satisfy the objective element. (See HHC Br. 9-12).
The Second Circuit advises district courts that
[d]etermining whether a deprivation is an objectively
serious deprivation entails two inquiries. The first
inquiry is whether the prisoner was actually deprived of
adequate medical care …. Second, the objective test
asks whether the inadequacy in medical care is
sufficiently serious. This inquiry requires the court to
examine how the offending conduct is inadequate and
what harm, if any, the inadequacy has caused or will
likely cause the prisoner.
Salahuddin, 467 F.3d at 279-80. “[I]f 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.
(citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003)). Where,
however, the inadequacy is in the medical treatment given, “the seriousness
inquiry is narrower.” Id. at 280. For example, if the offending conduct is an
unreasonable delay or interruption in treatment, “the seriousness inquiry
‘focuses on the challenged delay or interruption in treatment rather than the
prisoner’s underlying medical condition alone.’” Id. (quoting Smith, 316 F.3d at
185) (alterations omitted). In such scenarios, “it’s the particular risk of harm
faced by a prisoner due to the challenged deprivation of care, rather than the
severity of the prisoner’s underlying medical condition, considered in the
abstract, that is relevant for Eighth Amendment purposes.” Smith, 316 F.3d at
186.
18
The City Defendants are incorrect that Plaintiff fails to raise a claim for
the total deprivation of medical care as to the MDC Period. The FAC makes
clear that despite Plaintiff’s repeated declarations to MDC personnel that he
suffers from diabetes and was experiencing its painful symptoms, he was
deprived of food, insulin, and diabetes medication during the entirety of the
MDC Period. (See FAC ¶¶ 68, 70-72, 75, 106-07). Provision of medicine for
Plaintiff’s unrelated medical needs, such as cholesterol, blood pressure, and
gastric reflux (see id. at ¶ 72), does nothing to negate Plaintiff’s allegations
about a complete lack of care for his diabetes, the medical condition on which
his claims are based. See Smith, 316 F.3d at 185-86 (“There is no need to
distinguish between a prisoner’s underlying ‘serious medical condition’ and the
circumstances of his ‘serious medical need’ when the prisoner alleges that
prison officials have failed to provide general treatment for his medical
condition.”). As to the BPW Period, however, the FAC may be construed as
raising claims based on delayed or inadequate care. (See, e.g., FAC ¶ 84
(alleging that at BPW, Plaintiff’s “blood sugar was not tested with regular
frequency nor was insulin regularly provided.”); id. at ¶ 87 (“Plaintiff should
have been receiving long-acting insulin rather than by sliding scale, as BPW
personnel administered.”); id. at ¶ 90 (alleging delayed podiatry consultation
and surgical evaluation of Plaintiff’s foot)).
The Court finds that Plaintiff’s allegations concerning both the MDC
Period and the BPW Period state claims that satisfy the objective element of the
deliberate indifference analysis. Plaintiff’s diabetes is a sufficiently serious
19
medical condition: a reasonable doctor or patient would find it “important and
worthy of comment”; the condition “significantly affects an individual’s daily
activities”; and it can cause “chronic and substantial pain.” Salahuddin, 467
F.3d at 280 (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998))
(internal quotation marks omitted); see also Beatty v. Davidson, 713 F. Supp.
2d 167, 174 (W.D.N.Y. 2010) (“This Court need not linger on this point:
diabetes is a sufficiently serious medical condition to meet the objective
prong.”) (collecting cases); Colon v. County of Nassau, No. 12 Civ. 4466 (JS),
2014 WL 4904692, at *6 (E.D.N.Y. Sept. 26, 2014) (recognizing that “[c]ourts in
this Circuit have held that diabetes is a sufficiently serious medical condition
to meet the objective prong of a deliberate indifference claim” (internal
quotation marks omitted)).
Even under a narrower seriousness inquiry that focuses on “the
particular risk of harm” faced by Plaintiff due to delayed or inadequate
treatment during the BPW Period, see Smith, 316 F.3d at 186, the objective
element is met. The FAC alleges infrequent blood sugar monitoring and insulin
provision (see, e.g., FAC ¶¶ 84, 88), inadequate insulin treatments (see, e.g., id.
at ¶ 88), and delayed or inadequate treatment by specialists (see, e.g., id. at ¶¶
90, 93-94, 96), allegedly resulting in consistently and abnormally elevated
blood sugar levels (see id. at ¶¶ 86-88), and other diabetes-related
complications (see id. at ¶¶ 92-93). (See also Pl. Opp. 17 (“Plaintiff is not
alleging that there were short-term delays and inadequacies of treatment
surrounded by otherwise acceptable care, but rather that there were short-
20
term provisions of inadequate care surrounded by otherwise non-existent
and/or cursory care.”)). These allegations of harm are sufficiently serious, not
“minor and inconsequential.” Smith at 186; see id (“For example, the failure to
provide treatment for an otherwise insignificant wound may violate the Eighth
Amendment if the wound develops signs of infection, creating a substantial risk
of injury in the absence of appropriate medical treatment.”); see also Roberts v.
C-73 Med. Dir., No. 14 Civ. 5198 (GHW), 2015 WL 4253796, at *5 (S.D.N.Y.
July 13, 2015) (finding that allegations of delayed diabetes treatment and
resulting pain satisfied objective element of deliberate indifference analysis);
Ferguson v. Cai, No. 11 Civ. 6181 (PAE), 2012 WL 2865474, at *4 (S.D.N.Y.
July 12, 2012) (recognizing that “[w]here temporary delays or interruptions in
the provision of medical treatment have been found to satisfy the objective
seriousness requirement in this Circuit, they have involved either a needlessly
prolonged period of delay, or a delay which caused extreme pain or exacerbated
a serious illness”).
In sum, Plaintiff has plausibly pled that his underlying medical condition
and the risk of (and actual) harm incurred due to delayed or inadequate care
were sufficiently serious to satisfy the Eighth Amendment’s objective element
for both the MDC and the BPW Periods.
b.
The Subjective Element Is Satisfied as to the MDC Period
But Not as to the BPW Period
i.
The MDC Period
Satisfaction of the objective element is, of course, only half of the inquiry.
The City Defendants further argue that the FAC’s allegations fail to satisfy the
21
subjective element of the Eighth Amendment analysis. (See City Br. 10).
Specifically, they contend that Plaintiff pleads no facts from which it can be
inferred that “any of the MDC staff he encountered knew of and disregarded an
excessive risk to his health or safety.” (Id. at 11). In support of this argument,
the City Defendants point out that, “[i]n the short time he was at MDC, Plaintiff
was seen and evaluated by multiple medical staff members, had his blood
sugar level tested, was prescribed several medications, and was promptly
directed to be transferred to [BPW] for the very purpose of ensuring … that
Plaintiff receive ‘continual medical care.’” (Id. at 11 (quoting FAC ¶ 74)).
Furthermore, Plaintiff’s allegations about the aborted initial transfer to BPW
“raise no inference that the officers delayed with actual knowledge that the
delay would result in serious harm” (id.), while his allegations about being
deprived of food are vague and not sufficiently injurious (id. at 12).
These arguments are unpersuasive. Plaintiff has pled sufficient facts to
claim plausibly that at least certain of the City Defendants acted with culpable
recklessness; specifically, that MDC personnel knew of and disregarded an
excessive risk to Plaintiff’s health. See Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011) (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.’” (quoting Farmer, 511 U.S. at 837)).
In Washington v. Westchester County Department of Correction, this Court
found allegations supporting an analogous deliberate indifference claim to be
22
insufficient because that complaint lacked details regarding “(i) whether [the
plaintiff] was in pain or exhibited symptoms [when he was first detained];
(ii) whether Defendants were aware that Plaintiff ... had symptoms of [his
medical condition] at the time of his incarceration; and (iii) whether Defendants
ignored such symptoms or deliberately withheld medication.” No. 13 Civ. 5322
(KPF), 2015 WL 408941, at *8 (S.D.N.Y. Jan. 30, 2015) (internal quotation
marks omitted). Here, by contrast, Plaintiff informed MDC personnel both at
his initial intake, and repeatedly thereafter, that he suffers from diabetes; that
he was experiencing swelling in his legs and severe burning pain; and that he
requires insulin. (See, e.g., FAC ¶¶ 68-71; see also id. at ¶ 71 (alleging that
Plaintiff presented letter from his treating physician confirming his diabetic
condition and need for insulin). Plaintiff’s physical examination approximately
24 hours into his MDC custody confirmed, according to the FAC, that his
diabetes was not being properly treated and that he was “at a significantly
heightened risk for developing complications such as kidney failure, blindness
and neuropathy.” (Id. at ¶ 72). This led to efforts to transfer Plaintiff to a
facility equipped to treat him, but an initial attempt to transfer him to NIC
failed due to an alleged DOC policy and the first attempt to transfer him to
BPW failed due to DOC officers’ alleged malfeasance. (Id. at ¶¶ 73-74, 76).
Despite all of this, during the entirety of Plaintiff’s MDC detention — an
approximately two-day period concluding with Plaintiff’s transfer to BPW —
Plaintiff was provided no food, insulin, or diabetes medication. (See FAC
¶¶ 69-72, 75, 106-07). See also Washington, 2015 WL 408941, at *8 (“[C]ertain
23
medical conditions may be so life-threatening 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.”).
The City Defendants’ arguments listed above do not alter this conclusion.
First, the mere fact that Plaintiff was “seen and evaluated by multiple medical
staff members” and “had his blood sugar level tested” (City Br. 11), but
nevertheless received no food, insulin, or diabetes medication over a two-day
period, lends no support to (and, indeed, may affirmatively undermine) the City
Defendants’ position that MDC personnel were not deliberately indifferent to
Plaintiff’s condition. Next, the City Defendants’ argument that Plaintiff “was
prescribed several medications” while at MDC (id. at 11), is a non-starter:
Plaintiff was prescribed medication for cholesterol, blood pressure, and gastric
reflux (see FAC ¶ 72); none of these medications was intended to treat
Plaintiff’s diabetes (see id.), the medical condition upon which Plaintiff’s
deliberate indifference claim is based. Finally, the City Defendants’ reliance on
Inesti v. Hogan for the proposition that the “deprivation of one to two isolated
meals does not amount to a constitutional violation” is misplaced in this
context. (City Br. 12 (citing Inesti v. Hogan, No. 11 Civ. 2596 (PAC) (AJP), 2013
WL 791540, at *24-25 (S.D.N.Y. Mar. 5, 2013), report and recommendation
adopted, No. 11 Civ. 2596 (PAC), 2013 WL 5677046, at *1 (S.D.N.Y. Sept. 30,
2013))). Plaintiff’s lack of food over an approximately two-day period (see FAC
¶ 75), amounts to significantly more than “one or two isolated meals.” And,
24
more importantly, the Inesti inmate was not a diabetic, nor did he claim to
suffer from a condition so directly and delicately tied to food intake and blood
sugar regulation. See Inesti, 2013 WL 791540, at *1-4, *22-25; Inesti, 2013 WL
5677046, at *1 (describing the plaintiff’s mental health disorder). The City
Defendants’ comparison of denying food to a diabetic versus a non-diabetic is
self-evidently flawed.
In sum, the FAC details how MDC personnel were aware of Plaintiff’s
serious and deteriorating condition, but failed, over approximately two days, to
provide any care by means of food, insulin, or diabetes medication. (FAC
¶¶ 69-72, 75, 106-07). Taken as a whole, these allegations are sufficient to
state a plausible claim that certain of the City Defendants consciously
disregarded a substantial risk of serious harm to Plaintiff. See Hill, 657 F.3d at
122; Chance, 143 F.3d at 703.
ii.
The BPW Period
Plaintiff claims that BPW personnel also failed to manage properly his
diabetes in multiple respects, including by infrequently monitoring his blood
sugar, providing him with the incorrect insulin regimen and untimely specialist
care, and neglecting to maintain sanitary conditions, all of which led to
numerous diabetes-related complications. (See, e.g., FAC ¶¶ 83-84, 87, 89,
102). Plaintiff argues that such inadequate care rises to a constitutional
violation because, given the condition in which he arrived at BPW and
examinations thereafter, HHC personnel knew that a serious risk of harm to
25
Plaintiff existed, but consciously disregarded that risk by providing only
“perfunctory treatment and cursory examinations.” (Pl. Opp. 19).
The City Defendants argue that Plaintiff fails to state a claim against
them as to the BPW Period, because BPW is owned and operated by coDefendant HHC, a municipal corporation distinct from the City and Corizon.
(See City Br. 12). In the alternative, the City Defendants argue that Plaintiff’s
claim fails on the merits because he received “frequent and consistent medical
care,” and any criticism to the contrary amounts merely to “disagreements with
the care provided” and “at worst, negligence amounting to medical
malpractice,” but nothing approaching Eighth Amendment deliberate
indifference. (City Br. 13-14). HHC echoes the latter argument. After
cataloguing the treatment Plaintiff received at BPW (see HHC Br. 9-12, 15-16),
HHC argues that Plaintiff’s allegations “merely describe a situation in which
[Plaintiff] disagrees with the course of treatment provided,” which, “[a]t most …
state[s] a claim for medical malpractice,” but which “fall[s] well short of alleging
that [HHC] acted with the requisite culpable state of mind” (HHC Br. 14, 1617).
While Plaintiff’s allegations as to the BPW Period may support a claim for
negligence or medical malpractice, something Defendants acknowledge, the
allegations do not support an inference of culpable recklessness in satisfaction
of the subjective element of a deliberate indifference analysis. 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
26
over a course of treatment, negligence[,] or even medical malpractice.”); cf.
Brown v. McElroy, 160 F. Supp. 2d 699, 706 (S.D.N.Y. 2001) (holding that “the
fact that a plaintiff feels that more should have been done for his condition is
not a sufficient basis for a deliberate indifference claim”).
Unlike the allegations concerning the MDC Period, as to which Plaintiff
alleges a total deprivation of medical care for his diabetes, the FAC describes
the extensive medical care that Plaintiff received at BPW, including blood sugar
level monitoring (FAC ¶ 87); insulin treatment (id. at ¶¶ 87-88); examinations of
his foot condition (id. at ¶¶ 91-92); and treatment by multiple specialists,
including two podiatrists, an endocrinologist, and a dermatologist (id. at ¶¶ 9398). At bottom, the FAC alleges that this care was inadequate because it was
characterized by delay, irregularity, misdiagnoses, and suboptimal treatment
options, but these allegations do not rise to the level of a constitutional
violation. See Demata v. N.Y. State Corr. Dep’t of Health Servs., 198 F.3d 233
(Table), 1999 WL 753142, at *2 (2d Cir. Sept. 17, 1999) (“Although a delay in
providing necessary medical care may in some cases constitute deliberate
indifference, this Court has reserved such a classification for cases in which,
for example, officials deliberately delayed care as a form of punishment,
ignored a ‘life-threatening and fast-degenerating’ condition for three days, or
delayed major surgery for over two years.” (internal citations omitted)); Sonds v.
St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y.
2001) (“A difference of opinion between a prisoner and prison officials regarding
medical treatment does not, as a matter of law, constitute deliberate
27
indifference.”); Williams v. Williams, No. 13 Civ. 3154 (RA), 2015 WL 568842, at
*7 (S.D.N.Y. Feb. 11, 2015) (“[A]llegations of a negligent misdiagnosis do not
satisfy the subjective requirement of the deliberate indifference analysis
because they do not suggest that the defendant acted with a conscious
disregard to inmate health or safety.”).
For example, in Roberts v. C-73 Medical Director, the diabetic inmate’s
claim for deliberate indifference was principally based on a treating physician’s
failure to stabilize his blood sugar levels with appropriate care and her denial of
specialist care until his condition worsened and, even then, only on an
infrequent basis. See No. 14 Civ. 5198 (GHW), 2015 WL 4253796, at *5-6
(S.D.N.Y. July 13, 2015). The Court held that while the inmate’s poor physical
condition at intake supported “an inference that a serious risk of harm
existed,” the allegations did not show that the physician “drew that inference
and then consciously disregarded it.” Id. “In fact, plaintiff acknowledges that
when his condition worsened, [the physician] referred him to a specialist,
which does not support a contention that she acted with deliberate
indifference.” Id.; see also Roberts v. City of N.Y., No. 14 Civ. 5198 (GHW),
2016 WL 4146135, at *5 (S.D.N.Y. Aug. 2, 2016) (reaffirming reasoning and
holding as to treating physician upon amended complaint).
By contrast, the court in Colon v. County of Nassau, found plausible
claims of deliberate indifference where two diabetic inmates alleged that a
physician denied them necessary, specified medical care because of budgetary
constraints. See No. 12 Civ. 4466 (JS), 2014 WL 4904692, at *6 (E.D.N.Y.
28
Sept. 26, 2014). “If this is true and if the treatments at issue were medically
necessary, this allegation could support a conclusion that [the named
physician] was deliberately indifferent to [plaintiffs’] medical needs.” Id. (citing
Liner v. Fischer, No. 11 Civ. 6711 (PAC), 2013 WL 4405539, at *21 (S.D.N.Y.
Aug. 7, 2013) (denying motion to dismiss deliberate indifference claim because
“if, as plaintiff alleges, he was denied necessary medication for almost two
years due to ‘budget cuts,’ this delay could potentially be a factor in support of
a finding of deliberate indifference”) (alterations omitted)).
Here, although Plaintiff’s treatment during the BPW Period, based on the
facts alleged, should have been more consistent, timely, and thorough, there is
no indication that any of the treatment deficiencies were a result of “a
conscious disregard of a substantial risk of serious harm” to Plaintiff. See
Estelle, 429 U.S. at 105-06 (recognizing that “an inadvertent failure to provide
adequate medical care,” such as “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”).
2.
Plaintiff Has Failed to Plead Municipal Liability
a.
Applicable Law
Municipal entities may be sued directly for constitutional violations
pursuant to § 1983, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
(1978), but cannot be held liable for the acts of their employees under the
doctrine of respondeat superior, see Pembaur v. City of Cincinnati, 475 U.S.
469, 478 (1986). In other words, “Monell does not provide a separate cause of
29
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 N.Y., 459 F.3d 207, 219 (2d Cir. 2006)
(emphasis in original) (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 N.Y., 973 F.
Supp. 2d 504, 536 (S.D.N.Y. 2013) (quoting Pangburn v. Culbertson, 200 F.3d
65, 71-72 (2d Cir. 1999)).
b.
Plaintiff Allegations of Municipal Liability Are
Inadequate
Plaintiff raises Monell claims against the City, Corizon, and HHC. (See
FAC ¶¶ 119-23). HHC is a municipal corporation subject to municipal liability.
See Rookard v. Health and Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)
(addressing HHC); Sussman v. N.Y. City Health & Hosps. Corp., No. 94 Civ.
8461 (DBS), 1997 WL 334964, at *7 n.3 (S.D.N.Y. June 16, 1997) (same).
Corizon, although a private entity, is here treated as a municipal actor for
purposes of Monell. See Bess v. City of N.Y., No. 11 Civ. 7604 (TPG), 2013 WL
1164919, at *2 (S.D.N.Y. Mar. 19, 2013) (“Corizon enjoys the benefit of the
30
Monell requirements for the same reason it may be named as a defendant in a
§ 1983 suit. In providing medical care in prisons, Corizon performs a role
traditionally within the exclusive prerogative of the state and therefore, in this
context, is the functional equivalent of the municipality.” (collecting cases));
Law v. Corizon Med. Servs., No. 13 Civ. 5286 (KBF), 2014 WL 2111675, at *5
(S.D.N.Y. May 12, 2014) (same).
Plaintiff’s claim against HHC presupposes the existence of an
independent constitutional violation arising during the BPW Period; because
this Court has found that none has been identified, Plaintiff’s Monell claim is
dismissed as to HHC. See City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (recognizing that municipal liability requires that an individual
municipal agent committed an underlying constitutional deprivation); Ferguson
v. Cai, No. 11 Civ. 6181 (PAE), 2012 WL 2865474, at *6 (S.D.N.Y. July 12,
2012) (“Because the Court has concluded that [the plaintiff’s] constitutional
rights have not been violated, his claim of municipal liability pursuant to
Monell is, a fortiori, also meritless.”).
As to the MDC Period, and the municipal City Defendants, Plaintiff seeks
to establish Monell liability principally on the basis of (i) the City Defendants’
alleged official policies, including of prohibiting diabetic prisoners’ insulin
pumps to be used or refilled while in custody and of prohibiting civilly
committed individuals to be admitted to the NIC infirmary (see Pl. Opp. 23;
FAC ¶¶ 125-26); (ii) the City Defendants’ widespread practice and customs,
including of “failing to employ obvious measures to reduce the risk of abuses
31
alleged,” failing to supervise adequately and train properly medical staff and
corrections officers, and failing to ensure prompt and adequate medical
services to inmates in compliance with the City’s Minimal Standards for Health
Care (see Pl. Opp. 24-25; see generally FAC ¶¶ 131-48); and (iii) the City
Defendants’ failure to train and supervise personnel, including “to ensure that
they perform” duties related to inmate medical care “in strict accordance with
[inmates’] civil rights and doctors’ medical orders” and on how to handle
difficult circumstances that are often presented (see Pl. Opp. 26-27; see
generally FAC ¶¶ 119-48).
None of these allegations as pled is sufficient to state a claim for Monell
liability against the municipal City Defendants. Plaintiff’s allegations
concerning the two official policies principally targeted — barring use of an
insulin pump and precluding civilly confined inmates from receiving treatment
at NIC — suffer from at least two defects. First, the FAC fails to plead facts
showing that these policies caused the constitutional violation. See Monell,
436 U.S. at 693-94 (holding that municipal liability claim must allege that
officially adopted policy or custom caused the constitutional violation); see also
Bd. of County Comm’r of Bryan County v. Brown, 520 U.S. 397, 404 (1997)
(holding that plaintiff must demonstrate a “direct causal link between the
municipal action and the deprivation of federal rights”). Here, given the
alternate medical treatments available, such as insulin shots or care at a
different facility, the FAC fails to allege sufficient facts to plead a “direct causal
link” between the alleged insulin pump or civil custody policies and the
32
constitutional violation here recognized, i.e., the total deprivation of medical
care for Plaintiff’s diabetes during the MDC Period.
Second, the “official policy” allegations lack sufficient factual detail. The
FAC offers little beyond, “[Plaintiff] was told that he would not be allowed to
continue using his insulin pump while in custody due to DOC policy” (FAC
¶ 69; see id. at ¶¶ 3, 125), and “DOC policy did not permit Plaintiff to be
housed at [NIC]” because “Plaintiff was civilly confined” (id. at ¶ 73). “To state
there is a policy does not make it so. And while a plaintiff need not assert the
allegations in the initial complaint with a level of specificity only made possible
through discovery,” Betts v. Shearman, No. 12 Civ. 3195 (JPO), 2013 WL
311124, at *16 (S.D.N.Y. Jan. 24, 2013), additional facts for Plaintiff’s “official
policy” Monell allegations are required. Cf. Colon, 2014 WL 4904692, at *10
(finding municipal liability adequately pled where complaint alleged that
contract between municipality and medical provided subjected provider to a
fixed budget that caused it to cut costs and that provider’s policy “limit[ed]
medication dispensing and prescribing to the facility formulary within the
budget for the contract ... notwithstanding medical need”).
Relatedly, Plaintiff’s allegations concerning the City’s (i) training and
supervision failures, and (ii) widespread custom and practice of failing to
ensure prompt and adequate medical services, a reduced risk of abuse, and the
like, are inadequately pled. “[C]onclusory allegations that a municipality failed
to train and supervise its employees [are] insufficient to state a Monell claim.”
Davis v. City of N.Y., No. 07 Civ. 1395 (RPP), 2008 WL 2511734, at *5-6
33
(S.D.N.Y. June 19, 2008); Connick v. Thompson, 563 U.S. 51, 61 (2011) (“A
municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.”). Under the pleading requirements
imposed by Twombly and Iqbal, Plaintiff must give a factual description of the
injurious policy or custom, “not just bald allegations that such a thing existed.”
Bess, 2013 WL 1164919, at *2.
Here, Plaintiff’s allegations consist essentially of a recitation of the
inadequate medical treatment received and generic claims that such
inadequacies were a product of harmful customs and practices or failures to
train or supervise. (See generally FAC ¶¶ 124-48; Pl. Opp. 23-27). Such
boilerplate allegations are insufficient to state a Monell claim. See Triano v.
Town of Harrison, 895 F. Supp. 2d 526, 535-37 (S.D.N.Y. 2012) (holding that
“mere allegations of a municipal custom or practice of tolerating official
misconduct are insufficient to demonstrate the existence of such a custom
unless supported by factual details”); Plair v. City of N.Y., 789 F. Supp. 2d 459,
469 (S.D.N.Y. 2011) (rejecting as inadequately pled the plaintiff’s “conclusory”
allegations that the City “permitted, tolerated and was deliberately indifferent
to a pattern and practice of staff brutality … which constituted a municipal
policy, practice or custom and led to plaintiff’s assault” (alterations omitted));
cf. Anderson v. City of N.Y., 657 F. Supp. 1571, 1574 (S.D.N.Y. 1987) (“Plaintiff
cannot infer a policy from the alleged violation of his own civil rights.”).
Plaintiff’s claim for failure to train (see Pl. Opp. 26-27), suffers from the
additional pleading defect of nowhere identifying “[a] pattern of similar
34
constitutional violations by untrained employees,” which is “ordinarily
necessary to demonstrate deliberate indifference for purposes of failure to
train.” Connick, 563 U.S. at 62 (internal quotation marks omitted). Plaintiff
identifies two examples of diabetic inmates dying due to DOC negligence in
recent years (see Pl. Opp. 27), but nowhere details which deficient training
program or manners of supervision caused the violations suffered by both
Plaintiff and these other inmates. Consequently, Plaintiff fails to plead
adequately that the municipal City Defendants were aware that their training
would fail to prevent the violations here suffered by Plaintiff. See Connick, 563
U.S. at 62 (“Without notice that a course of training is deficient in a particular
respect, decisionmakers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.”). For all of
these reasons, Plaintiff’s Monell claims against the City, Corizon, and HHC are
dismissed.
3.
The Court Dismisses Certain of the Claims Against Certain of
the Individual Defendants
The FAC names John and Jane Does 1-25, “site directors, physicians,
nurses, physician assistants, clinicians, therapists, and other medical staff …
employed by the City, Corizon and/or HHC who were assigned to MDC and
BPW on the subject dates and were responsible for the provision of appropriate
medical care to patients at MDC and BPW, including Plaintiff, on said dates”
(FAC ¶ 55); as well as John and Jane Does 26-50, “DOC officers, including but
not limited to assistant deputy wardens, captains, and correction officers,
between December 19, 2014[,] and January 14, 2015, who participated in
35
and/or had knowledge of and failed to protect Plaintiff from and/or intervene in
the denial of timely and adequate medical care on those dates” (id. at ¶ 58). As
established above, the FAC plausibly pleads a deliberate indifference claim as
to the MDC Period, but not as to the BPW Period. Accordingly, Plaintiff’s
§ 1983 claims are upheld as to the John and Jane Doe individual defendants
responsible for Plaintiff’s care at MDC and dismissed as to those responsible
for Plaintiff’s care at BPW.
The FAC also names five “senior officials” in their individual and official
capacities: (i) DOC Commissioner Ponte; (ii) DOC Chief of Department, Martin
Murphy; (iii) DOC Deputy Commissioner of Operations Dr. Errol Toulon, Jr.;
(iv) MDC Warden Raleem Moses; and (v) BPW Deputy Warden Daniel O’Connell.
(See FAC ¶¶ 44, 50-53). Plaintiff’s allegations regarding these senior officials
boil down to the claim that “[t]hese supervisory officials knew or should have
known that the pattern of abuse set forth in the [FAC] existed in their jails and
hospital prison wards. Their failure to take measures to curb this pattern of
brutality constitutes acquiescence in the known unlawful behavior of their
subordinates.” (Pl. Opp. 22).
“It is well settled that, in order to establish a defendant's individual
liability in a suit brought under § 1983, a plaintiff must show, inter alia, the
defendant’s personal involvement in the alleged constitutional deprivation.”
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (collecting
cases); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973) (“The rule in this
circuit is that when monetary damages are sought under § 1983, the general
36
doctrine of respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required.”), abrogated on other
grounds by Graham v. Connor, 490 U.S. 386, 393 (1989). 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. See
Grullon, 720 F.3d at 139 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)).
Plaintiff’s deliberate indifference claims have been dismissed as to the
BPW Period; accordingly, there can be no supervisory liability for those claims.
Cf. Farid, 593 F.3d at 249 (recognizing that a defendant’s personal involvement
in a constitutional deprivation is a prerequisite to a damages award under §
1983); see Houston v. Schriro, No. 11 Civ. 7374 (LAP), 2014 WL 6694468, at
*14 (S.D.N.Y. Nov. 26, 2014) (holding that there can be no supervisory liability
for § 1983 claims that have been dismissed).
Turning to the MDC Period, the FAC fails to allege sufficient facts to
plausibly demonstrate the personal involvement of the named supervisory
officials. The FAC merely recites the duties that inhere in each of the
37
supervisor’s positions and attempts to bootstrap these responsibilities into
generic claims of personal involvement. See Colon, 58 F.3d at 874 (dismissing
claim against DOCS Commissioner because “[t]he bare fact that [he] occupies a
high position in the New York prison hierarchy is insufficient to sustain
[plaintiff’s] claim”); Walker v. Schriro, No. 11 Civ. 9299 (JPO), 2013 WL
1234930, at *15 (S.D.N.Y. Mar. 26, 2013) (“A defendant’s status as warden or
commissioner of a prison, standing alone, is ... insufficient to establish
personal involvement under section 1983.”); id. (“[P]roof of ‘linkage in the
prison chain of command’ is insufficient.” (quoting Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir. 1985))); see generally Ramrattan v. Fischer, No. 13 Civ. 6890
(KPF), 2015 WL 3604242, at *9-10 (S.D.N.Y. June 9, 2015).
As discussed, the FAC fails to plead adequately any official policy,
custom or practice, or deficient training or supervision, that led to the
constitutional violation here recognized. Likewise, the FAC fails to allege
sufficient facts concerning which of these officials were responsible for creating
which particular policies or customs, how they were grossly negligent in
supervision, or in what specific manner they failed to act to prevent Plaintiff’s
injury. Generic allegations that these officials “exercised policymaking,
supervisory, and disciplinary authority on behalf of DOC,” are insufficient to
support a finding of supervisory liability. See Collins v. Goord, 438 F. Supp. 2d
399, 420 (S.D.N.Y. 2006) (rejecting claims of supervisory liability against DOC
Commissioner and prison superintendent because “entirely conclusory
allegations” claimed that officials “were aware of and acquiesced to the
38
unlawful practices”). Accordingly, Plaintiff’s claims against the named “senior
official” defendants are dismissed.
4.
The Court Dismisses Certain of Plaintiff’s State Law Claims
Plaintiff raises nine pendent state law claims in connection with his
medical care during the MDC and BPW Periods. (See generally FAC ¶¶ 164232). The City Defendants and HHC make no merits argument in favor of
dismissing these claims. (See City Br. 20-21; HHC Br. 17). Rather, they
presuppose the absence of a viable federal claim and argue exclusively that the
Court should decline to exercise its supplemental jurisdiction. (Id.).
Having upheld Plaintiff’s federal claim as to the MDC Period, the Court
presently declines to dismiss the state law claims arising from the MDC Period.
By contrast, having dismissed Plaintiff’s federal claim as to the BPW Period, the
Court exercises its discretion under 28 U.S.C. § 1367 to decline jurisdiction
over Plaintiff's state-law claims for care received during the BPW Period. 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).
5.
Plaintiff Is Granted Leave to Amend in Part
Plaintiff requests leave to amend the FAC if the Court finds it deficient.
(See Pl. Opp. 29). This request is granted in part and denied in part.
The Court has found that the FAC’s allegations concerning the BPW
Period fail to demonstrate “a conscious disregard of a substantial risk of
serious harm,” Hill, 657 F.3d at 123 (quoting Chance, 143 F.3d at 703), and
thereby fail, as a matter of law, to state a valid claim for deliberate indifference
39
under the Eighth and Fourteenth Amendments. In light of the Court’s
reasoning, set forth supra, the Court finds that any effort to replead would be
futile and, thus, denies Plaintiff leave to amend the FAC with regard to the
BPW Period. See Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that leave
to amend should be “freely given,” but not if amendment would be futile); Ellis
v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) (“[I]t is well established that leave to
amend a complaint need not be granted when amendment would be futile.”).
Accordingly, all of Plaintiff’s federal claims as to the BPW Period are dismissed
with prejudice. See Ferguson, 2012 WL 2865474, at *6 (finding municipal
liability claim a fortiori meritless where no constitutional violation found);
Houston, 2014 WL 6694468, at *14 (applying same reasoning for supervisory
liability claim). Plaintiff’s state law claims based on the BPW Period are
dismissed without prejudice to their potential refiling in state court.
With regard to the MDC Period, the Court has found that the FAC
plausibly pleads a claim for deliberate indifference in violation of the Eighth
and Fourteenth Amendments, but not for Monell or supervisory liability based
on that violation. As currently pled, both of these theories of liability are
supported by insufficient facts and also suffer from serious defects related to
causation, e.g., that the deprivation of care here recognized to be a
constitutional violation was due to a specific policy, widespread practice or
custom, or training or supervision failures, see Monell, 436 U.S. at 693-94
(holding that municipal liability claim must allege that officially adopted policy
or custom caused the constitutional violation); see also Bryan County, 520 U.S.
40
at 403 (holding that plaintiff must demonstrate a “direct causal link between
the municipal action and the deprivation of federal rights”). Nonetheless,
because Plaintiff did not have the benefit of a pre-motion submission from the
City Defendants before amending his original complaint (see Tr. of Nov. 17,
2016 Pre-Motion Conf., Dkt. #40, at 17:14-19; see also Dkt. #42), the Court
grants Plaintiff leave to amend the FAC as to the MDC Period only. In so
doing, the Court expects that Plaintiff will take seriously the pleading
deficiencies discussed in this Opinion, and will refrain from repleading these
claims if those deficiencies cannot credibly be remedied.
Accordingly, Plaintiff’s claims for the MDC Period against the municipal
City Defendants (City, Corizon) and the named “senior official” Defendants
(Ponte, Murphy, Toulon, and Moses) are dismissed without prejudice to
replead; Plaintiff’s claims against BPW Deputy Warden O’Connell are dismissed
with prejudice. Plaintiff’s § 1983 claims are upheld as to the John and Jane
Doe healthcare workers and DOC officers assigned to and responsible for
Plaintiff’s care at MDC. (See FAC ¶¶ 55, 58). Finally, as the City Defendants
did not move to dismiss Plaintiff’s state law claims based on the merits, those
claims endure insofar as they arise from the MDC Period.
CONCLUSION
For the foregoing reasons, the City Defendants’ motion to dismiss is
GRANTED IN PART and DENIED IN PART, and HHC’s motion to dismiss is
GRANTED. Plaintiff is permitted to file an amended complaint in accordance
with this Opinion, if he wishes to, on or before December 22, 2016. The City
41
Defendants can file an answer or other response within 21 days of the filing of
the amended complaint. Thereafter, the Court will schedule a pretrial
conference in the matter.
SO ORDERED.
Dated:
November 22, 2016
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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