Moore v. NYC Health Hospital et al

Filing 48

OPINION AND ORDER: re: 39 MOTION to Dismiss the Fifth Amended Complaint. filed by NYC Health & Hospital, City of New York. For the foregoing reasons, the City's motion to dismiss is GRANTED. Moore is directed to file an ame nded complaint by July 26, 2019. If Moore fails to do so within the time allotted, and cannot show good cause to excuse such failure, this case will be closed. The Clerk of Court is directed to close the motion at Docket Number 39. SO ORDERED. (Signed by Judge J. Paul Oetken on 6/26/2019) Copies Mailed By Chambers. (js) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DANIEL MOORE,
Plaintiff,
18-CV-496 (JPO)
-vOPINION AND ORDER
CITY OF NEW YORK, NYC HEALTH
+ HOSPITAL, CAPTAIN AYANNA
ROBERTSON, C.O. WILLIAMS, C.O.
DIAS, C.O. JAMES, C.O. MORRIS, C.O.
RAYSOR, WARDEN CAROLYN
SAUNDERS, DEPUTY WARDEN
DELIA VAZ, and NATASHA FRAZIER,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Daniel Moore brings this action pro se against the City of New York (“the
City”) and NYC Health + Hospital (“H&H”), along with a group of nine individuals
(collectively, “Defendants”). Moore alleges that Defendants were deliberately indifferent to his
medical needs, in violation of the Fourteenth Amendment. (Dkt. No. 26 at 2, 11.) Defendants
now move to dismiss the operative complaint under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted. (Dkt. No. 39.) 1 For the reasons that
follow, Defendants’ motion is granted.

1

Although the individual Defendants have not yet appeared or responded to the
Complaint, the City and H&H represent that “the arguments in [the memorandum supporting
dismissal] address the claims made against them,” and request that “any relief granted to the City
and H&H be extended to the Individual Defendants.” (Dkt. No. 40 at 1 n.2.) The Court deems
this statement sufficient to put Moore on notice that the pending motion could result in the
dismissal of his claims against all Defendants under Rule 12(b)(6). Cf. Grant v. Cty. of Erie, 542
F. App’x 21, 24 (2d Cir. 2013) (“[A] district court may dismiss an action sua sponte for failure to
state a claim so long as the plaintiff is given notice of the grounds for dismissal and an
opportunity to be heard.”). And Moore was given, and took advantage of, the opportunity to be
heard in response to the potential dismissal of his claims. (Dkt. No. 44.)
1

I.

Background
The following facts are drawn from the operative complaint, as well as the opposition to

the motion to dismiss, and are presumed true for the purpose of this motion. See Feelings v.
Stukes, No. 15 Civ. 1889, 2016 WL 2993202, at *1 (S.D.N.Y. May 23, 2016) (noting that, under
the “duty to liberally construe pro se pleadings,” courts may credit allegations appearing in pro
se opposition papers). 2
Plaintiff Daniel Moore is an inmate at the Five Point Correctional Facility in Romulus,
New York. (Dkt. No. 46.) Moore suffers from medical issues involving his heart, and due to the
fact that his left leg contains a metal rod and screws and is shorter than his right leg. (Dkt. No.
26 (“Compl.”) at 7–8.) During Moore’s pretrial detention at the Otis Bantum Correctional
Center (“OBCC”) on Rikers Island, Moore alleges that his constitutional and statutory rights
were violated in connection with the failure to provide him adequate medical assistance.
(Compl. at 2, 7–11; see Dkt. No. 40 at 5 n.4.) 3

2

Along with his affidavit opposing the motion to dismiss (Dkt. No. 44 at 1–2)—
which the Court construes as an opposition brief—Moore also submits an affidavit from John
Hyde, another detainee at OBCC (Dkt. No. 44 at 3). The Court declines to consider the Hyde
affidavit in deciding Defendants’ motion.
If “matters outside the pleadings are presented to and not excluded by the court” on a
Rule 12(b)(6) motion, “the motion must be treated as one for summary judgment under Rule 56”
and “[a]ll parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). “However, if extrinsic evidence submitted on
a motion to dismiss is deemed part of the pleadings, it may be considered in deciding the
motion.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 59 (S.D.N.Y. 2010).
The Hyde affidavit was not “(1) attached to the complaint; (2) incorporated into the
complaint by reference; or (3) integral to the complaint,” id. at 60, and thus the Court does not
treat it as part of the pleadings in deciding this motion to dismiss. Furthermore, the Court
“declines to convert the instant motion into one for summary judgment since discovery has not
yet commenced.” Id. at 61.
3

The Complaint does not specify Moore’s status at the time of the events alleged,
though Defendants allege that Moore was a pretrial detainee at the time in question, according to
publicly available state records. (Dkt. No. 40 at 5 n.4.) Moore does not contest this assertion in
2

On June 30, 2017, Moore arrived at OBCC, which is managed by the New York City
Department of Correction. (Compl. at 7.) Soon thereafter, Moore was seen by the medical staff
at OBCC, who are employed by H&H. (Id.) The medical staff noted the problems with Moore’s
leg and issued Moore a permit for a walking cane. (Id.) On August 11, 2017, Moore’s cane was
allegedly taken from him without explanation, and not returned until November 17, 2017.
(Compl. at 7–8, 14.)
Also at Moore’s initial visit with the medical staff, they indicated that Moore would be
given a “shoe lift,” also known as an orthopedic shoe insert, to treat the issues with his left leg.
(Compl. at 7; see Dkt. No. 40 at 1.) Moore alleges, however, that despite complaining about “the
pain in [his] legs and lower back” to the medical staff, it took “almost a whole year” for him to
be given a pair of custom orthopedic shoes, which he finally received on June 19, 2018. (Compl.
at 7, 11; Dkt. No. 44 at 4.) The delay in obtaining the custom orthopedic shoes, Moore asserts, is
due to the failure of Natasha Frazer 4—the Assistant Coordinator of H&H—to actively supervise
staff at OBCC. (Compl. at 8.)
Finally, Moore alleges that there have been issues with the administration of his heart
medication. (Compl. at 8; see Compl. at 20–23.) According to Moore, the normal procedure for
the administration of medication at OBCC involves the correctional officers producing inmates
to the medical staff for treatment, or escorting the medical staff to detention units where
treatment is required. (Compl. at 8–9.) Moore alleges, however, that the correctional officers

his opposition papers. (See Dkt. No. 44.) Therefore, the Court takes judicial notice of the fact of
Moore’s status as a pretrial detainee at the time of the relevant events, consistent with accepted
practice in this District. See, e.g., Taylor v. City of New York, No. 16 Civ. 7857, 2018 WL
1737626, at *11 n.10 (S.D.N.Y. Mar. 27, 2018); Thomas v. Westchester Cty., No. 12 Civ. 6718,
2013 WL 3357171, at *3 n.9 (S.D.N.Y. July 3, 2013).
4

Although her last name is spelled on the Docket as “Frazier,” the Court will use
the spelling “Frazer,” consistent with the Defendants’ brief.

3

assigned to the medical clinic at OBCC—Officers Dias, James, Raysor, Morris, and Williams—
as well as their area supervisor, Captain Robertson, failed to call Moore to receive his medication
and failed to otherwise insure that the required procedures were employed for Moore to receive
his medication in a timely manner. (Compl. at 9.) Furthermore, Moore alleges that the medical
staff have been “falsifying medical documentation with regards to the time that [his] medication
is actually given to [him],” again due to the inadequate supervision of Frazer. (Compl. at 8.)
The denial of Moore’s heart medication is alleged to have occurred “in excess of 10 times.”
(Dkt. No. 44 at 1.) In addition, Moore alleges that the heart medication was taken from him
during an institutional search on October 24, 2017, and never returned. (Compl. at 8, 16.)
Moore filed a grievance complaint on November 17, 2017, in connection with the
missing walking cane and promised orthopedic insert. (Compl. at 10, 13.) And Moore further
alleges that he has “filed various grievances to address the negligence” of the corrections officers
and medical staff. (Dkt. No. 44 at 1.) But according to Moore, Captain Ayanna Robertson and
the officer in charge of the medical clinic area—Deputy Warden of Programs Delia Vaz—failed
to investigate his complaint or even respond to Moore. (Compl. at 10.) Nor did the Warden of
OBCC at the time—Warden Carolyn Saunders—respond to the grievance complaint or remedy
the failures of the medical staff and correctional officers. (Id.)
Moore initiated this action pro se on January 18, 2018 (Dkt. No. 2), and filed the
operative fifth amended complaint (“Complaint”) on September 19, 2018 (Dkt. No. 26). The
Complaint names as Defendants the City; H&H; Warden Saunders; Deputy Warden Vaz;
Captain Robertson; Corrections Officers Dias, James, Raysor, Morris, and Williams; and the
Assistant Coordinator of H&H, Frazer. (Compl. at 4–6.) Moore asserts violations of his
Fourteenth Amendment rights and statutory rights under 42 U.S.C. § 6010, and seeks damages

4

from Defendants. (Compl. at 2, 11.) On November 21, 2018, the City and H&H moved to
dismiss the Complaint in its entirety under Rule 12(b)(6). (Dkt. No. 39.) In response, Moore
submitted an affidavit, which the Court construes as a brief in opposition to dismissal (Dkt. No.
44), and the motion is now ready for resolution.
II.

Legal Standard
In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient

factual allegations “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must
accept as true all well-pleaded factual allegations in the complaint and “draw[] all inferences in
the plaintiff’s favor.” Allaire Corp. v. Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006) (citation
omitted).
Moreover, courts must afford pro se plaintiffs “special solicitude” before granting
motions to dismiss. Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). “A
document 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) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Therefore, courts interpret a pro se plaintiff’s pleadings “to raise the strongest
arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)
(citation omitted). “Even in a pro se case, however, ‘although a court must accept as true all of
the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere conclusory

5

statements, do not suffice.’” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)).
III.

Discussion
Defendants raise four arguments in support of their motion to dismiss, involving:

(1) exhaustion; (2) the merits of Moore’s constitutional claims; 5 (3) the personal involvement of
individual Defendants; and (4) municipal liability. Although exhaustion is not a proper ground
for dismissal of the claims at this stage in the litigation, dismissal is nonetheless appropriate on
the merits.
A.

Exhaustion

As a defense to all claims asserted by Moore, Defendants argue that he failed to properly
exhaust his administrative remedies, as required by the Prison Litigation Reform Act (“the
PLRA”), 42 U.S.C. § 1997e(a). (Dkt. No. 40 at 11–15.)
However, “failure to exhaust is an affirmative defense under the PLRA, and . . . inmates
are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v.
Bock, 549 U.S. 199, 216 (2007). Therefore, “[t]he only circumstance in which it is appropriate
to dismiss a complaint on nonexhaustion grounds is when it is apparent from the face of the

5

In addition to his Fourteenth Amendment rights, Moore briefly claims violations
of his “rights under 42 U.S.C.A. § 6010, Developmentally Disabled Assistance & Bill of Rights
Act of 1975.” (Compl. at 2.) But Moore does not say anything else about these asserted
statutory rights—or how they are implicated by the facts alleged—in his Complaint or opposition
affidavit. (See Dkt. Nos. 26, 44.) Nor do Defendants mention these statutory rights in their
brief. (See Dkt. 40.)
The statute invoked has been amended multiple times, such that the specific codified
provision under which Moore seeks to bring a claim—42 U.S.C. § 6010—is no longer in effect.
Furthermore, the Supreme Court has previously held that this statutory provision “did not create
rights enforceable under § 1983.” Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 510 (1990) (citing
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)). Accordingly, Moore has failed
to state a claim for violation of any statutory rights under 42 U.S.C. § 6010.

6

complaint that the plaintiff failed to exhaust his administrative remedies.” Randle v. Alexander,
960 F. Supp. 2d 457, 483 (S.D.N.Y. 2013).
Here, Moore’s Complaint alleges that he filed a grievance on November 17, 2017, and
attaches the grievance form as an exhibit. (Compl. at 10, 13.) Furthermore, in his affidavit
opposing the motion to dismiss, Moore attests that he has “filed various grievances to address the
negligence by Department of Corrections staff . . . as well as the medical staff,” and that he has
“exhausted such grievance remedies by appealing [his] complaints to the facility’s commanding
officer . . . as well as . . . [the] Central Office Review Committee.” (Dkt. No. 44 at 1.)
On the basis of these allegations, the Court concludes that it is not apparent from the face
of Moore’s submissions that he failed to exhaust his administrative remedies, and thus
Defendants’ exhaustion argument fails.
B.

Claims Against Individual Defendants

Moore asserts that nine staff members and supervisors at OBCC were deliberately
indifferent to his medical needs in violation of his Fourteenth Amendment rights. 6 (Compl. at 2,
4–6.) Moore alleges that he has suffered from two discrete medical issues at OBCC, which the
individual Defendants have unlawfully disregarded: first, the infliction of leg and lower back
pain caused by the absence of a cane and the delay in receiving an orthopedic shoe insert; and
second, the failure to properly administer his heart medication. (Compl. at 7–11.)
The Eighth Amendment forbids “‘deliberate indifference to serious medical needs of
prisoners.’” Spavone v. New York State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(quoting Estelle, 429 U.S. at 104). Similarly, as relevant here, the Due Process Clause of the

6

Though the Complaint does not mention 42 U.S.C. § 1983, the Court understands
Moore to be asserting claims under this provision for the deprivation of his constitutional rights.

7

Fourteenth Amendment prohibits deliberate indifference to the medical needs of pretrial
detainees in state custody. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009), overruled on
other grounds by Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017).
Significantly, however, “not every lapse in medical care is a constitutional wrong.”
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). “In order for an inmate to state a claim
of constitutional deprivation with regard to his access to medical care during pre-trial detention,
the inmate must demonstrate that his medical needs were objectively ‘sufficiently serious,’ and
that the individual to be charged with the violation was aware of, and deliberately indifferent to,
those needs.” Ceparano v. Suffolk Cnty. Dep’t of Health, 485 F. App’x 505, 507 (2d Cir. 2012).
Moore must sufficiently allege both of these prongs in order for his claims against the individual
Defendants for deliberate indifference to medical needs to survive the motion to dismiss.
1.

Leg and Back Pain

First, Moore asserts that the individual Defendants were deliberately indifferent to the leg
and back pain caused by the delay in providing him with an orthopedic shoe insert and
exacerbated by the deprivation of his cane. (Compl. at 11.) Defendants respond that Moore has
not adequately pleaded either prong of the deliberate indifference standard with respect to this
medical issue. (Dkt. No. 40 at 6–7, 9–10.) The Court need not address whether Moore’s pain
and the delay in treatment were objectively sufficiently serious, because Moore has failed to
adequately plead that the individual Defendants were deliberately indifferent to his needs.
To satisfy this second prong for a claim of deliberate indifference to the needs of a
pretrial detainee under the Fourteenth Amendment—the “knowledge prong”—the plaintiff must
plausibly allege “that the defendant-official acted intentionally to impose the alleged condition,
or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the
pretrial detainee even though the defendant-official knew, or should have known, that the
8

condition posed an excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d
Cir. 2017). And because Moore is asserting claims against all nine individual Defendants in
their individual capacities (Compl. at 11), “the liability of each therefore depends on a showing
that he or she acted with deliberate indifference,” Hernandez v. Keane, 341 F.3d 137, 144 (2d
Cir. 2003).
Defendants argue that Moore has not adequately pleaded deliberate indifference to the leg
and back pain, because he has not adequately “alleged that any of the Individual Defendants
knew, or should have known, of [his] medical conditions.” (Dkt. No. 40 at 9.) The Court agrees.
According to Moore, he complained “of the pain in [his] legs and lower back to the
doctors and medical staff” at OBCC. (Compl. at 7.) On September 6, 2017, his attorney sent a
letter to the “Warden” at OBCC, informing the Warden that Moore was experiencing pain due to
the lack of a cane or “shoe lift,” and requesting assistance with this issue. (Compl. at 14.)
Additionally, Moore filed a grievance on November 17, 2017, which specifically mentions
experiencing “extreme pain” in connection with the lack of cane and “shoe lift.” (Compl. at 13.)
But according to Moore, Deputy Warden Vaz, Captain Robertson, and Warden Saunders failed
to investigate his grievance or issue any response. (Compl. at 10.)
At no point in his Compliant or opposition affidavit, however, does Moore allege that he
complained directly to H&H Assistant Coordinator Frazer or any of the Corrections Officer
Defendants about the pain, or the lack of cane or orthopedic insert. Nor does he allege any facts
that would allow the Court to infer that these individuals knew, or should have known, about his
condition and its severity. Accordingly, Moore has not adequately alleged that Frazer, Officer
Dias, Officer James, Officer Raysor, Officer Morris, or Officer Williams was deliberately
indifferent to his medical needs regarding the leg and back pain.

9

The alleged knowledge and indifference of Deputy Warden Vaz, Captain Robertson, and
Warden Saunders present a closer question. The Complaint alleges that these supervisor
Defendants were in receipt of the November 2017 grievance, and thus had constructive notice of
Moore’s leg and back pain. In assessing whether this notice is sufficient to establish that these
individuals “knew, or should have known” about the pain Moore was suffering but “recklessly
failed to act,” Darnell, 849 F.3d at 35, it is helpful to consider the doctrine of personal
involvement.
“It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Shomo v.
City of New York, 579 F.3d 176, 184 (2d Cir. 2009). To adequately plead “[t]he personal
involvement of a supervisory defendant” at the motion to dismiss stage, a plaintiff must plausibly
allege that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
As the Second Circuit has recognized, the knowledge prong of a detainee’s disregard of
medical needs claim and the personal involvement inquiry can be interrelated. See Lewis v.
Cunningham, 483 F. App’x 617, 619 (2d Cir. 2012); Hernandez, 341 F.3d at 148 (reasoning that
the fact that personal involvement could not be established under Colon for a defendant who
received—but did not personally investigate or act on—prisoner grievances supported the
conclusion that the defendant was not “deliberately indifferent” to medical needs).

10

And courts in this Circuit have repeatedly held that “as a matter of law, a defendant’s
mere receipt of a letter or grievance, without personally investigating or acting [thereon], is
insufficient to establish personal involvement.” Alvarado v. Westchester Cty., 22 F. Supp. 3d
208, 215 (S.D.N.Y. 2014) (alteration in original) (internal quotation marks omitted); see also
Goris v. Breslin, 402 F. App’x 582, 584 (2d Cir. 2010); Roberts v. City of New York, No. 14 Civ.
5198, 2016 WL 4146135, at *7 (S.D.N.Y. Aug. 2, 2016); Thompson v. Pallito, 949 F. Supp. 2d
558, 575 (D. Vt. 2013) (“The district courts of this circuit appear to be in unanimous agreement
that a supervisory official having received (and ignored) a letter from an inmate alleging
unconstitutional conduct does not, without more, give rise to personal involvement on the part of
that official.”).
Moreover, at least three courts have concluded that allegations that defendants were sent
a grievance complaint are alone insufficient to establish both the personal involvement of the
recipients and the knowledge prong of a deliberate indifference claim. See Dawkins v.
Copeland, No. 17 Civ. 9926, 2019 WL 1437049, at *8 (S.D.N.Y. Mar. 31, 2019) (holding that
the allegation of defendants’ awareness of the challenged conduct—due to the filing of a
grievance complaint that defendants ignored—“is insufficient to properly allege personal
involvement and deliberate indifference”); Thompson, 949 F. Supp. 2d at 579 (“Just as [being
sent a complaint letter to which a defendant did not respond] does not establish [a defendant’s]
personal involvement, such a letter also cannot establish his deliberate indifference.”); Ward v.
Capra, No. 16 Civ. 6533, 2018 WL 1578398, at *6 (S.D.N.Y. Mar. 29, 2018) (“Plaintiff filling
out a grievance and appeal regarding the health care he was being provided does not satisfy [the
knowledge prong of a deliberate indifference claim].”).

11

As these courts have explained, an allegation that a plaintiff “filed a grievance” is not the
same as alleging that any particular defendant “received or read his grievance,” and thus does not
establish that particular defendants “knew or should have known about” plaintiff’s medical
condition. Dawkins, 2019 WL 1437049, at *8. In other words, alleging that a defendant was
merely sent a grievance does not plausibly establish that the defendant “was made aware of and
intentionally disregarded a risk to [plaintiff’s] health.” Thompson, 949 F. Supp. 2d at 579. And
because being sent a grievance does not give rise to deliberate indifference under the second or
fifth Colon factors, see 58 F.3d at 873, it also fails to satisfy the knowledge prong of a deliberate
indifference claim.
The Court adopts the same reasoning here. Where a plaintiff alleges that a particular
defendant’s involvement in an alleged constitutional deprivation is limited to being sent a
grievance or letter—and does not allege that the defendant personally investigated or acted on
the grievance—those allegations are not sufficient to establish either the defendant’s personal
involvement or deliberate indifference to the plaintiff’s medical needs.
In this case, Moore alleges that he filed his November 2017 “grievance by placing a copy
. . . in a ‘grievance box’ and the ‘wardens’ box,” but that Deputy Warden Vaz and Captain
Robertson “failed to investigate [his] grievance,” and Vaz, Robertson, and Warden Saunders
“never responded to [him] in writing or person and have allowed” the neglect to continue.
(Compl. at 10.) Moore further alleges that, of multiple grievances filed that were appealed to
Saunders, “[n]o response was ever received.” (Dkt. No. 44 at 1.)
The gravamen of these allegations is that Moore submitted grievances that the three
supervisors should have received, but that they did not investigate or otherwise respond to his

12

submissions. As explained above, such allegations are insufficient to establish either the
personal involvement or the deliberate indifference of Vaz, Robertson, and Saunders.
In conclusion, Moore has failed to adequately plead the knowledge prong of his leg-andback-pain claims against any of the individual Defendants. The claims asserted against the
individual Defendants for indifference to his leg and back pain are thus dismissed.
2.

Heart Medication

Moore also alleges deliberate indifference to the proper administration of his heart
medication. (Compl. at 8.) The Court need not address whether this issue was “objectively
‘sufficiently serious,’” however, because Moore has again failed to sufficiently allege that the
Individual Defendants were “aware of, and deliberately indifferent to,” the alleged issues
regarding the administration of his medication. Ceparano, 485 F. App’x at 507.
Defendants argue that Moore has not adequately pleaded deliberate indifference to the
missed heart medication, because he “does not allege that any of [the individual] Defendants
were aware or should have been aware [of] any risk of harm that results from the . . . missed
doses of medication,” or “acted recklessly disregarding” such risk. (Dkt. No. 40 at 10.) The
Court agrees, and addresses below Moore’s allegations of deliberate indifference as to the
various groups of individual Defendants.
Moore alleges that the five Officer Defendants have failed to ensure that he received his
medication on schedule as prescribed, by either failing to bring him to the medical clinic or
failing to escort medical staff to Moore’s unit. (Compl. at 9.) But Moore does not allege any
facts supporting the inference that these individuals “knew, or should have known, that the”
interruption in receiving his heart medication “posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35. The Complaint does not reference whether Moore complained to the

13

Officer Defendants about the disruption in receiving his medication or told them of the risks
attendant to missed doses. Moreover, Moore alleges that the disruptions to his medication
regimen occur when OBCC is on “lockdown” (Dkt. No. 44 at 1), suggesting that the failure to
ensure his receipt of medication is born out of disruptions to the operation of the facility as a
whole, rather than reckless indifference to Moore’s needs.
As for H&H Assistant Coordinator Frazer, Moore alleges that she “has not been actively
supervising [the medical] staff,” resulting in disruptions to his receipt of medication. (Compl. at
8.) But the Complaint does not adequately plead that Frazer knew, or should have known, about
Moore’s heart medication and the disruptions he experienced, or had any way of knowing that
the disruptions posed an excessive risk to his health and yet recklessly failed to act.
With respect to Deputy Warden Vaz and Captain Robertson, the Complaint alleges that
they were aware of the November 2017 grievance. (Compl. at 10.) But that grievance document
does not specifically reference any issues with the administration of Moore’s heart medication.
(See Compl. at 13.) And the Complaint contains no additional allegations regarding the
knowledge or reckless indifference of these supervisors as to the heart medication.
Finally, Moore alleges that he “filed various grievances” regarding “the negligence by
Department of Corrections staff . . . at OBCC as well as the medical staff” which were appealed
to Warden Saunders. (Dkt. No. 44 at 1.) But Moore does not allege any details about these other
“grievances,” such as whether they informed Saunders of the nature of the medication or the
severity of the risk to his health posed by the disruption in administration. And as explained
above, the submission of a grievance alone is insufficient to establish personal involvement or
the knowledge prong of a deliberate indifference claim.

14

Ultimately, the Court concludes that Moore has not plausibly alleged that any of the
individual Defendants were deliberately indifferent to the risks he faced from the improper
administration of his heart medication. Accordingly, the claims against Frazer, Officer Dias,
Officer James, Officer Raysor, Officer Morris, Officer Williams, Deputy Warden Vaz, Captain
Robertson, and Warden Saunders are dismissed to the extent they are premised on deliberate
indifference to the improper administration of Moore’s heart medication.
C.

Municipal Liability

Moore also asserts claims against the City and H&H. (Compl. at 1.) In order to survive a
motion to dismiss on these claims, Moore must properly allege municipal liability. See Mejia v.
N.Y.C. Health & Hosps. Corp., No. 16 Civ. 9706, 2018 WL 3442977, at *12 (S.D.N.Y. July 17,
2018) (noting that H&H is subject to municipal liability as a public benefit corporation).
Significantly, however, “a prerequisite to municipal liability under Monell is an
underlying constitutional violation by a state actor.” Dawkins, 2019 WL 1437049, at *8 (citation
omitted). Because Moore’s Complaint fails to state any constitutional deprivation by the
individual Defendants, his Monell claims against the City and H&H are dismissed.
IV.

Leave to Amend
Under Second Circuit precedent, “[a] pro se complaint should not [be] dismiss[ed]

without [the Court’s] granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d
290, 295 (2d Cir. 2015) (alterations in original) (quoting Chavis, 618 F.3d at 170). “[R]eading
the pro se complaint and opposition papers liberally” in this case, the Court “cannot conclude
that amendment would be futile.” Id. Accordingly, the Court grants Moore an opportunity to
amend the complaint, provided that he does so by July 26, 2019.

15

V.

Conclusion
For the foregoing reasons, the City’s motion to dismiss is GRANTED.
Moore is directed to file an amended complaint by July 26, 2019. If Moore fails to do so

within the time allotted, and cannot show good cause to excuse such failure, this case will be
closed.
The Clerk of Court is directed to close the motion at Docket Number 39.
SO ORDERED.
Dated: June 26, 2019
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

COPY MAILED TO PRO SE PARTY BY CHAMBERS

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