Grimmett v. New York City Department of Correctional Services et al

Filing 91

OPINION AND ORDER: re: 73 MOTION to Dismiss filed by New York City Department of Correctional Services, Allan Matthew, Corizon Correctional Medical Associates of New York, Sharma. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. The Clerk of Court is directed to terminate the motion at Docket No. 73. SO ORDERED. (Signed by Judge J. Paul Oetken on 5/24/2017) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PAUL GRIMMETT,
:
:
:
Plaintiff,
:
:
-v:
CORIZON MEDICAL ASSOCIATES OF NEW :
:
YORK; ALLAN MATTHEW, DDS; DR.
SHARMA, MD, SITE MEDICAL DIRECTOR :
:
OF NEW YORK CITY DEPARTMENT OF
CORRECTIONAL SERVICES, MANHATTAN :
DETENTION CENTER,
:
:
Defendants. :
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15-CV-7351 (JPO) (SN)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Paul Grimmett, proceeding pro se, brings this action pursuant to 42 U.S.C.
§ 1983, alleging that he was denied dental care while incarcerated at Manhattan Detention Center
(“MDC”). Specifically, he alleges that Allan Matthew, D.D.S., and Dr. Sharma, M.D., the MDC
Site Medical Director, were deliberately indifferent to Grimmett’s serious dental condition and
related ear pain and hearing loss in violation of the Eighth and Fourteenth Amendments to the
United States Constitution. He further alleges municipal liability under § 1983 on the part of
Corizon Medical Associates of New York (“Corizon”). Grimmett also raises state medical
malpractice and negligence claims against all Defendants. Defendants move to dismiss
Grimmett’s second amended complaint (“SAC”) pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons that follow, Defendants’ motion is granted in part and denied in part.
I.

Background
A.

Procedural History

Grimmett filed this lawsuit in September 2015. (Dkt. No. 2.) He filed a first amended

complaint (“FAC”) in April 2016 and named as defendants the City of New York, Corizon, Dr.
Matthew, Dr. Sharma, and Acting MDC Warden Cooper. (Dkt. No. 38.) On August 12, 2016,
the Honorable Analisa Torres dismissed the FAC, but granted Grimmett leave to file a second
amended complaint against Dr. Matthew and Dr. Sharma. (Dkt. No. 56.)
On November 18, 2016, Grimmett filed his SAC against Defendants Corizon, Dr.
Matthew, and Dr. Sharma. (Dkt. No. 61.) The SAC asserts claims under § 1983 for deliberate
indifference to Grimmett’s serious medical needs in violation of the Eighth and Fourteenth
Amendments, along with state medical malpractice and negligence claims. Defendants have
moved to dismiss the SAC pursuant to Rule 12(b)(6). (Dkt. No. 73.) The motion is fully
submitted. The case was reassigned to the undersigned on April 5, 2017.
B.

Plaintiff’s Claims 1

Grimmett was first incarcerated at MDC in June 2013. (SAC ¶¶ 2, 9, 11.) On July 2,
2013, Grimmett had a dental appointment with Dr. Matthew. (Id. ¶ 27.) During this
appointment, Grimmett told Dr. Matthew that, before he was arrested, his personal dentist had
recommended “a full mouth extraction” of all his teeth due to preexisting dental problems. (Id.
¶¶ 8, 28.) Grimmett alleges that, at the time of this appointment, he had “swollen gums that were
already infected,” along with “dental caries and badly decayed teeth,” and that Dr. Matthew saw
these conditions. (Dkt. No. 83 at 36.) Dr. Matthew examined Grimmett’s mouth and told him he
1

The following facts are taken from Grimmett’s SAC and opposition brief and are accepted as
true for purposes of this motion. See, e.g., Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987)
(considering facts alleged in affidavit submitted by pro se plaintiff in opposition to motion to
dismiss); Flores v. N.Y.C. Human Res. Admin., No. 10 Civ. 2407, 2011 WL 3611340, at *1 n.1
(S.D.N.Y. Aug. 16, 2011) (“Because of [plaintiff’s] pro se status, . . . the Court may consider
factual allegations [plaintiff] makes in her opposition papers, in addition to the allegations in the
complaint . . . .”). Grimmett has also attached several exhibits to the SAC, which were filed
under seal because they contain Grimmett’s medical and other confidential personal information.
(Dkt. No. 64.) The Court has considered these exhibits to the extent that they are referenced in
or integral to the SAC. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).
2

“would put [him down] for all of the necessary work that needs to be done.” (SAC ¶ 29; see also
Dkt. No. 83 at 35; SAC Ex. G at 56.) Grimmett alleges that Dr. Matthew intentionally omitted
the real facts of Grimmett’s condition from Grimmett’s medical records so that Dr. Matthew
could avoid providing further treatment. (Dkt. No. 83 at 36.) The medical records from the
initial visit do not mention infection or the need for extraction, though they do indicate “swollen
gums” and some “bone loss.” (SAC Ex. G at 56.) Grimmett alleges that Dr. Matthew never
scheduled the follow-up treatment he promised. (SAC ¶ 147.)
After the initial appointment, Grimmett sent “numerous” dental slips to Dr. Matthew and
to the dental department but received no response for approximately three months. (Id. ¶ 30.)
On October 5, 2013, Grimmett went to the infirmary because he was in “agonizing pain
from an abscess in [his] mouth.” (Id. ¶¶ 31-32.) A nurse directed him to Dr. Sharma. (Id. ¶ 34.)
When Grimmett asked for amoxicillin and ibuprofen to help control the pain and treat the
infection, Dr. Sharma told him that there was no one available to administer any medication. (Id.
¶¶ 35-36.) Grimmett then asked Dr. Sharma to examine his mouth, but the doctor refused. (Id.
¶ 37.) Grimmett described his condition to Dr. Sharma, who replied that he would have to report
to sick call to be seen. (Id. ¶ 38.) Grimmett alleges that, despite the doctor’s representations to
the contrary, Dr. Sharma in fact had “all the keys to the cabinet to provide ‘emergency
medication.’” (Dkt. No. 83 at 47.)
Two days later, on October 7, 2013, Grimmett went to sick call and explained to a
physician assistant (“PA”) that his mouth was in “agonizing pain” and that he could not “hear
anything out of [his] left ear.” (SAC ¶¶ 39-40.) He explained that he had been experiencing that
level of pain for the past two days. (Id. ¶ 46.) The PA told Grimmett that he had a tooth abscess,
prescribed him medication for the pain and infection, and generated dental and ENT referrals.

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(Id. ¶¶ 42-44; id. Ex. G at 59.)
Grimmett went back to sick call the next day because he had not received his pain
medication (SAC ¶¶ 47-48), and again on October 11 because the ibuprofen and penicillin were
not helping his toothache (id. ¶¶ 49, 52). He was prescribed a new regimen of medications,
which included Augmentin and Tylenol with codeine. (Id. ¶¶ 53-55; id. Ex. G at 61-62.)
On October 24, 2013, Mariane Molfetas, D.D.S., a non-party to this lawsuit, extracted
two of Grimmett’s teeth. (SAC ¶ 64; id. Ex. G at 70.) On December 13, 2013, a hearing aid for
Grimmett was approved (SAC ¶ 68; id. Ex. G(2) at 7), and he received the hearing aid on
January 21, 2014 (SAC ¶ 73; id. Ex. G(2) at 11-13). Grimmett was then transferred to
Downstate Reception Center, where a nurse told him that he could have a full extraction once he
got to his “primary facility.” (SAC ¶¶ 75, 78.) On September 12, 2014, after Grimmett was
transferred to Auburn Correctional Facility, where he would stay for at least six months, an oral
surgeon extracted his lower teeth. (Id. ¶¶ 82, 83, 90-93.) A month later, after Grimmett had
completed a course of amoxicillin for an infection in his upper gums, his upper teeth were
removed. (Id. ¶¶ 94-95.) As of May 2015, Grimmett was being fitted for dentures. (Id. ¶¶ 10304.)
II.

Legal Standard
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on
its face.” Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678).

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When evaluating whether a complaint meets these requirements, courts “must accept as
true all of the factual allegations contained in the complaint,” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 572 (2007) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)), and
“draw all inferences in the light most favorable to the non-moving party[],” In re NYSE
Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). Additionally, a complaint “filed pro se is
‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
III.

Discussion
A.

Deliberate Indifference to Serious Medical Needs

Grimmett brings claims for deliberate indifference to his serious medical needs under the
Eighth Amendment, which applies to convicted prisoners, and the Fourteenth Amendment,
which applies to pretrial detainees under state custody. See Darnell v. Pineiro, 849 F.3d 17, 21
n.3, 29 (2d Cir. 2017). Under either provision, a plaintiff must satisfy a two-prong test to make
out such a claim. First, “the alleged deprivation of adequate medical care must be ‘sufficiently
serious.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)). Second, the defendant must have acted
with deliberate indifference, or a “sufficiently culpable state of mind.” Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)).
The Court addresses each prong in turn.
1.

Serious Deprivation of Adequate Medical Care

For a medical condition to be sufficiently serious under the first prong, it must be “‘a
condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’” Chance, 143 F.3d at

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702 (quoting Hathaway, 37 F.3d at 66); see also Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir.
2000) (“A serious medical condition exists where ‘the failure to treat a prisoner’s condition could
result in further significant injury or the unnecessary and wanton infliction of pain.’” (quoting
Chance, 143 F.3d at 702)). In the specific context of dental care, the Second Circuit has held
that “[a] cognizable claim regarding inadequate dental care, like one involving medical care, can
be based on various factors, such as the pain suffered by the plaintiff, the deterioration of the
teeth due to a lack of treatment, or the inability to engage in normal activities.” Chance, 143
F.3d at 703 (citations omitted); see also id. (finding a serious medical condition where plaintiff
“alleged that, as the result of the defendants’ actions, he suffered extreme pain, his teeth
deteriorated, and he has been unable to eat properly”). When an inmate alleges “a temporary
delay or interruption in the provision of otherwise adequate medical treatment,” a court should
focus on “the challenged delay or interruption in treatment rather than the prisoner’s underlying
medical condition alone in analyzing whether the alleged deprivation is, in ‘objective terms,
sufficiently serious,’ to support an Eighth Amendment claim.” Smith v. Carpenter, 316 F.3d
178, 185 (2d Cir. 2003) (quoting Chance, 143 F.3d at 702). Thus, even though “[p]risoners are
not entitled to a ‘perfect plan for dental care,’” Alster v. Goord, 745 F. Supp. 2d 317, 333
(S.D.N.Y. 2010) (quoting Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)), tooth decay and
cavities may qualify as serious medical conditions, see Harrison, 219 F.3d at 137.
Here, Grimmett alleges that he suffered from “swollen gums” that were “infected,” along
with obvious tooth decay and bone loss (Dkt. No. 83 at 36)―dental conditions “that tend[] to
cause acute infections, debilitating pain and tooth loss if left untreated.” Harrison, 219 F.3d at
137; see id. (“Because a tooth cavity will degenerate with increasingly serious implications if
neglected over sufficient time, it presents a ‘serious medical need’ within the meaning of our

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case law.”). He further alleges that the delay in appropriate dental care exacerbated his injuries
or increased the risk of future harm. See Smith, 316 F.3d at 185-86. Specifically, Grimmett
alleges that the delay in care “allowed the infection in [his] gums to fester and develop into a full
blown painfully agonizing oral abscess” (Dkt. No. 83 at 37), and resulted in hearing loss (id. at
34, 40).
Accordingly, Grimmett has satisfied the first prong: “the alleged deprivation of adequate
medical care,” by both Dr. Matthew and Dr. Sharma, is “sufficiently serious.” Spavone, 719
F.3d at 138.
2.

State of Mind

Under the second prong of the deliberate indifference standard, a plaintiff must show that
a defendant acted with a sufficiently culpable state of mind. Until recently, the analysis under
this prong was identical whether the claim was brought under the Eighth Amendment or the
Fourteenth Amendment. See Darnell, 849 F.3d at 33. In February 2017, however, following the
Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), and while the
parties were briefing the instant motion, the Second Circuit held that the analysis differs
depending on whether the inmate is a convicted prisoner or a pretrial detainee. Darnell, 849
F.3d at 35. 2 In particular, under the Eighth Amendment, deliberate indifference is equivalent to
recklessness “according to a more exacting subjective standard akin to that used in the criminal
context, which would require proof of . . . subjective awareness” on the part of the defendant. Id.
at 32 (citing Farmer v. Brennan, 511 U.S. 825, 836-37 (1994)). Deliberate indifference under

2

“Although Darnell involved a challenge to conditions of confinement, the holding of the
decision is broad enough to extend to medical deliberate-indifference claims.” Feliciano v.
Anderson, No. 15 Civ. 4106, 2017 WL 1189747, at *13 (S.D.N.Y. Mar. 30, 2017); see Darnell,
849 F.3d at 33 n.9 (“[D]eliberate indifference means the same thing for each type of claim under
the Fourteenth Amendment.”).
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the Eighth Amendment, therefore, means that a prison official “appreciate[d] the risk to which a
prisoner was subjected.” Id. at 35. In contrast, after Darnell, a plaintiff suing under the
Fourteenth Amendment is required to show only that the prison official acted with objective
recklessness, or that the defendant “knew, or should have known” that “an excessive risk to
health or safety” would result. Id.; see also Lloyd v. City of New York, No. 14 Civ. 9968, 2017
WL 1207838, at *9 (S.D.N.Y. Mar. 31, 2017). As before, however, more than negligence is
required to hold a defendant liable for violating either constitutional provision. Darnell, 849
F.3d at 36.
It is unclear from the SAC whether Grimmett was a pretrial detainee or a convicted
prisoner during the relevant time period. Under either the Eighth or Fourteenth Amendment,
however, Grimmett has made out a claim against Dr. Matthew but has failed to state a claim
against Dr. Sharma.
Dr. Matthew. According to Grimmett, Dr. Matthew deliberately refused to provide
treatment for three months, despite the fact that Grimmett sent “numerous dental slips to [Dr.
Matthew] and to the dental department.” (SAC ¶ 30.) Although the three-month delay on its
own may not be enough to allege deliberate indifference, Grimmett has included additional
allegations—beyond those recited in the FAC—to sufficiently plead that Dr. Matthew also acted
“with a sufficiently culpable state of mind.” Salahuddin, 467 F.3d at 280. In particular,
Grimmett alleges that Dr. Matthew “omit[ted] the real facts of plaintiff’s condition [from his
medical records] so that he would not have to address plaintiff’s serious dental condition” (Dkt.
No. 83 at 36), and that Dr. Matthew “omitted [information] that would have placed plaintiff at a
level to receive required treatment” (id. at 38; see also SAC ¶ 147 (“Plaintiff was never
scheduled for a follow up by [Dr. Matthew] . . . . [F]urthermore, when plaintiff wrote to [Dr.

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Matthew], plaintiff never received a response . . . .”)). Grimmett therefore has alleged facts that,
even under the subjective recklessness standard of the Eighth Amendment, plausibly plead that
Dr. Matthew was deliberately indifferent to Grimmett’s serious medical needs. Accordingly,
Defendants’ motion to dismiss Grimmett’s claim against Dr. Matthew is denied.
Dr. Sharma. Grimmett alleges that Dr. Sharma was deliberately indifferent when
Grimmett reported to sick call on October 5, 2013, in agonizing pain from an abscess in his
mouth (SAC ¶¶ 31-38), and that Dr. Sharma refused to examine Grimmett’s mouth or prescribe
any medication, despite the fact that Dr. Sharma had “all of the keys to the cabinet” (Dkt. No. 83
at 47). Dr. Sharma instead told Grimmett that there was nothing he could do, and that Grimmett
should sign up for sick call. (SAC ¶ 38; Dkt. No. 83 at 43-44.) Indeed, Grimmett went to sick
call two days later, where he was seen by a PA who prescribed him medication for the pain and
infection and generated dental and ENT referrals. (SAC ¶¶ 39, 42, 44, 48; id. Ex. G at 58-59.)
This two-day delay in treatment on its own is insufficient to plead recklessness, and Grimmett’s
allegations that Dr. Sharma “knew, or should have known” that “an excessive risk to health or
safety” would result, Darnell, 849 F.3d at 35, are conclusory. See Feliciano, 2017 WL 1189747,
at *13 (“Instead of seeing [plaintiff] immediately, [the defendant doctor] instructed him to rinse
out his eye with cold water and to sign up for sick call in the morning. Although [plaintiff] did
not receive immediate medical care, this fact is insufficient to establish that [the doctor] knew, or
should have known, that the brief delay put [plaintiff’s] health in jeopardy.” (citation omitted)).
Furthermore, although Grimmett may have preferred to be seen by a doctor rather than a PA
during sick call (SAC ¶ 143; Dkt. No. 83 at 47-48), “mere disagreement over the proper
treatment does not create a constitutional claim,” Chance, 143 F.3d at 703. At the most,
therefore, Grimmett has alleged that Dr. Sharma was negligent. Because negligence alone is

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insufficient to make out a deliberate indifference claim even under the Fourteenth Amendment,
see Darnell, 849 F.3d at 36, Grimmett’s § 1983 claim against Dr. Sharma is dismissed.
B.

Municipal Liability Against Corizon Medical Associates 3

Corizon, although a private entity, is treated as a municipal actor for purposes of this
lawsuit. See Bess v. City of New York, No. 11 Civ. 7604, 2013 WL 1164919, at *2 (S.D.N.Y.
Mar. 19, 2013) (“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.”). “It is axiomatic that municipalities cannot be held liable
pursuant to § 1983 on a respondeat superior theory.” Betts v. Shearman, No. 12 Civ. 3195, 2013
WL 311124, at *15 (S.D.N.Y. Jan. 24, 2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690 (1978)). “[T]o hold a city liable under § 1983 for the unconstitutional actions of its
employees, a plaintiff is required to plead and prove three elements: (1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray
v. City of New York, 490 F.3d 189, 195 (2d Cir. 2009) (quotations and citation omitted). There

3

The SAC includes claims against Corizon, despite the fact that Judge Torres granted Grimmett
leave to replead his claims only against Dr. Matthew and Dr. Sharma. The Court could dismiss
these claims on this ground alone. See Palm Beach Strategic Income, LP v. Salzman, 457 F.
App’x 40, 43 (2d Cir. 2012) (summary order) (“District courts in this Circuit have routinely
dismissed claims in amended complaints where the court granted leave to amend for a limited
purpose and the plaintiff filed an amended complaint exceeding the scope of the permission
granted.”); see also Pagan v. N.Y. State Div. of Parole, No. 98 Civ. 5840, 2002 WL 398682, at
*3 (S.D.N.Y. Mar. 13, 2002) (dismissing with prejudice new claims in an amended complaint
that were outside the scope of the court’s order granting the pro se plaintiff leave to amend).
However, given Grimmett’s pro se status, the Court declines to dismiss these claims solely
because they exceed the scope of the leave granted. See Ong v. Park Manor (Middletown Park)
Rehab. & Healthcare Ctr., No. 12 Civ. 974, 2015 WL 5729969, at *22 (S.D.N.Y. Sept. 30,
2015) (“Given Plaintiff’s pro se status, and the Court’s obligation to liberally construe pro se
pleadings, the Court is hesitant to dismiss Plaintiff’s [amended complaints] on this ground.”); see
also Moriates v. City of New York, No. 13 Civ. 4845, 2016 WL 3566656, at *2-3 (E.D.N.Y. June
24, 2016) (“For pro se litigants, broad leave to replead is generally appropriate, since they lack
the legal acumen and experience to differentiate successful claims from unsuccessful ones.”).
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are four ways a plaintiff can allege a policy or custom:
(1) the existence of a formal policy officially endorsed by the municipality; (2)
actions taken or decisions made by municipal officials with final decision making
authority, which caused the alleged violation of plaintiff’s civil rights; (3) a practice
so persistent and widespread that it constitutes a custom of which constructive
knowledge can be implied on the part of the policymaking officials; or (4) a failure
by policymakers to properly train or supervise their subordinates, amounting to
“deliberate indifference” to the rights of those who come in contact with the
municipal employees.
Betts v. Rodriquez, No. 15 Civ. 3836, 2016 WL 7192088, at *5 (S.D.N.Y. Dec. 12, 2016)
(quoting Guzman v. United States, No. 11 Civ. 5834, 2013 WL 5018553, at *3-4 (S.D.N.Y. Sept.
13, 2013)).
As in the FAC, Grimmett alleges in the SAC that Corizon “had an unwritten policy of
avoiding high costs in detainee’s medical bills,” and that this policy is why Dr. Matthew and Dr.
Sharma delayed Grimmett’s access to a dentist for approximately three months. (See FAC ¶ 56;
SAC ¶ 146.) “To state there is a policy,” however, “does not make it so,” and Grimmett has
alleged no facts from which the Court can plausibly infer that Corizon had such an unwritten
policy. Shearman, 2013 WL 311124, at *16; see also Zherka v. City of New York, 459 F. App’x
10, 12 (2d Cir. 2012) (summary order) (“It has long been well-settled that ‘the mere assertion
that a municipality has such a custom or policy is insufficient in the absence of allegations of fact
tending to support, at least circumstantially, such an inference.’” (quoting Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir. 1995))). In addition, the SAC lacks allegations that would
allow the Court to infer that any such policy was the cause of Grimmett’s alleged constitutional
injuries. Although Grimmett alleges that Corizon’s contract with the New York City Department
of Correctional Services was terminated “due to a pattern of violations of detainee’s Civil and
Constitutional rights” (SAC ¶ 148; Dkt. No. 83 at 50), there is no indication that the termination
was due to a policy of avoiding costs. The two press clippings that are attached to and
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referenced in the SAC concern the inadequate treatment that one MDC inmate received and
problems with Corizon employee background checks, respectively, but do not support
Grimmett’s contention that the company had an unwritten cost-cutting policy. (Dkt. No. 83 at
49-50; SAC Ex. I.)
Grimmett also alleges that Dr. Matthew and Dr. Sharma were “final decision makers”
and were therefore granted municipal policymaking authority. (Dkt. No. 83 at 35, 48.) Even if
Dr. Matthew and Dr. Sharma were “final decision makers” with respect to Grimmett’s care,
which is what Grimmett appears to allege, that allegation is insufficient to plead that they were
final policymakers with regard to Corizon’s billing policies. In particular, allegations that Dr.
Matthew and Dr. Sharma chose a treatment plan for Grimmett that would keep costs down is not
enough to plausibly plead that they possessed final authority to establish pricing policy. See
Hurdle v. Bd. of Educ. of City of N.Y., 113 F. App’x 423, 427 (2d Cir. 2004) (summary order)
(“Even if [the defendant] was the decisionmaker with regard to [the plaintiff’s] transfer, that does
not establish that she had the authority to set the policy authorizing involuntary employee
transfers.”). Accordingly, even accepting Grimmett’s factual allegations as true and liberally
construing his pleadings, the Court concludes that Grimmett has failed to plausibly allege the
existence of a policy or custom. Accordingly, his § 1983 claim against Corizon is dismissed.
C.

State Law Claims

Liberally construed, the SAC also asserts claims against Defendants under New York law
for medical malpractice and negligence. (SAC ¶ 145; Dkt. No. 83 at 51.) Defendants do not
contest that the Court has supplemental jurisdiction over Grimmett’s state law claims under 28
U.S.C. § 1367; instead, they request that the Court decline to exercise supplemental jurisdiction
on the ground that Grimmett has failed to state a federal claim under § 1983. (Dkt. No. 77 at 16;

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Dkt. No. 86 ¶ 23.) However, because the Court has not dismissed all of Grimmett’s federal
claims, it will retain supplemental jurisdiction over his state law claims. See, e.g., Rodriguez v.
Cnty. of Westchester, No. 15 Civ. 9626, 2017 WL 118027, at *11 (S.D.N.Y. Jan. 11, 2017).
Defendants have not moved to dismiss Grimmett’s medical malpractice or negligence claims on
their merits. Accordingly, Defendants’ motion to dismiss Grimmett’s state law claims on
jurisdictional grounds is denied.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. The Clerk of Court is directed to terminate the motion at Docket No. 73.
SO ORDERED.
Dated: May 24, 2017
New York, New York

COPY MAILED TO PRO SE PARTY BY CHAMBERS

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