Lurch, Jr. v. NYCHHC et al

Filing 39

OPINION & ORDER re: 24 MOTION to Compel NYCHHC et al. to to comply with the Court's Valentin Order. filed by Robert Derek Lurch, Jr., 27 MOTION to Dismiss the Amended Complaint. filed by The City Of New York. For t he reasons stated above, Defendant's motion to dismiss is granted. The Clerk of Court is directed to terminate the open motion at ECF No. 27, and the open motion at ECF No. 24 as moot. The Clerk of Court is also respectfully directed to mail a copy of this order to the Plaintiff. (Signed by Judge Andrew L. Carter, Jr on 1/17/2023) (ate)

Case 1:21-cv-01567-ALC Document 39 Filed 01/17/23 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROBERT D. LURCH, JR,
:
:
Plaintiff,
:
:
-against:
:
NEW YORK CITY HEALTH AND HOSPITALS
:
CORPORATION, THE CITY OF NEW YORK,
:
TARA ASHER, PEARLINE THOMPSON, GEORGE:
GAINES, OVUNDUH OKENE, IDA BROWN, MIN :
KANG, CHRISTOPHER TATEM, ALEXANDER
:
ARONOV, and AV TROPE,
:
:
Defendants.
:
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ANDREW L. CARTER, JR., District Judge:

21-CV-1567 (ALC)
OPINION & ORDER

Plaintiff Robert Lurch, proceeding pro se, brings this action under 42 U.S.C. § 1983,
against the City of New York, New York City Health and Hospitals Corporation (“H+H”), and
nine individual defendants (collectively, “Defendants”), for alleged violations of his
constitutional right to adequate medical care. Plaintiff alleges that while detained at a New York
City Department of Correction (“DOC”) facility prior to the ongoing COVID-19 pandemic (from
December 5-22, 2019), Defendants failed to isolate detainees with the flu from detainees who
were asymptomatic or otherwise not ill. Plaintiff further alleges that due to Defendants’ failure to
isolate detainees in the housing unit, he contracted the flu and later developed pneumonia.
Plaintiff alleges that Defendants acted with deliberate indifference to his medical needs by
failing to isolate detainees, thereby violating his constitutional rights.
Defendants move for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim. For the following reasons, Defendants’ motion to dismiss
is GRANTED.

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FACTUAL BACKGROUND
Plaintiff’s Amended Complaint alleges that during his time as a pretrial detainee at the
Vernon C. Bain Center on Rikers Island (“VCBC”), Defendants acted with deliberate
indifference to his medical needs. Amended Complaint at ECF No. 26, p. 8. During Plaintiff’s
time at VCBC (December 5-22, 2019), Plaintiff alleges that several detainees in VCBC housing
area 1AA contracted the flu. Id. When individuals reported their flu symptoms to medical
personnel, Plaintiff alleges that they were “diagnosed and treated for flu like symptoms, given
Theraflu or a similar medication to treat their condition and sent back to a dormitory style
housing unit” with other detainees who exhibited “no symptoms of any respiratory ailment.” Id.
Plaintiff ultimately contracted flu-like symptoms, including “high fever . . . debilitating cough,
extreme fatigue . . . [and] severe chills” that later developed into pneumonia. Id. Plaintiff alleges
that he did not seek medical care at first, because flu medication was available on the housing
unit. Id. at 8-9. However, Plaintiff’s condition worsened over time, and he later sought medical
attention on December 22, 2019 for allegedly “unbearable pain” when he coughed or breathed.
Id. at 9. Plaintiff alleges that DOC’s medical staff performed x-rays and testing, prescribed him
medication, and advised that he should return to the housing unit. Id. Upon Plaintiff’s insistence
that he needed further treatment; Plaintiff was transferred to West Facility for x-rays. Id. at 10.
There, Plaintiff was allegedly diagnosed with pneumonia and spent 7-9 days in an isolation unit.
Id. Plaintiff alleges that he ultimately recovered from his illness but suffers unspecified longterm health effects and mental anguish. Id. at 15. Roughly one year later, during OctoberDecember 2020, Plaintiff alleges that the “excruciating pain” while breathing returned while he
was in DOC custody, and he was prescribed pain medication. Id. at 10. On account of his alleged
injuries, Plaintiff seeks compensatory and punitive damages from Defendants. Id. at 15.

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LEGAL STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6), “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, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). The plaintiff must allege sufficient facts to show “more than a sheer possibility that a
defendant has acted unlawfully,” and accordingly, where the plaintiff alleges facts that are
‘merely consistent with’ a defendant's liability, “it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). In
considering a motion to dismiss, the court accepts as true all factual allegations in the complaint
and draws all reasonable inferences in the plaintiff's favor. See Goldstein v. Pataki, 516 F.3d 50,
56 (2d Cir. 2008). However, the court need not credit “threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678, 129 S.Ct.
1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also id. at 681, 129 S.Ct. 1937.
The Court construes a pro se litigant’s submissions liberally and interprets them “to raise
the strongest arguments that they suggest.” Fulton v. Goord, 591 F.3d 37, 43 (2d. Cir.
2009) (quoting Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)) (internal quotation marks
omitted).

DISCUSSION
Deliberate Indifference to Medical Needs Claim
As noted in Defendants’ Memorandum of Law in Support of their Motion to Dismiss at
ECF No. 28, Plaintiff’s allegations concerning Defendants’ purported failure to isolate sick
detainees are best construed as claims of deliberate indifference to his medical needs, in violation

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of the Fourteenth Amendment. ECF No. 28 at 8. Plaintiff brings these claims pursuant to the
Eighth Amendment, but because he was a pretrial detainee during the time period at issue, the
claims are covered by the Fourteenth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017) (“A pretrial detainee's claims of unconstitutional conditions of confinement are
governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and
Unusual Punishments Clause of the Eight Amendment.”)
To establish deliberate indifference to a medical need, Plaintiff must satisfy a twopronged test. First, the alleged medical deprivation must be “sufficiently serious, in the sense that
a condition of urgency, one that may produce death, degeneration, or extreme pain[,] exists.”
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotations omitted). This is
commonly known as the ‘objective prong.’ Second, the detainee must establish that the
defendant acted with a culpable state of mind under the so-called ‘subjective prong.’ Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The defendant must have acted intentionally, or
“recklessly failed to act with reasonable care to mitigate the risk” although the defendant “knew,
or should have known, that the condition posed an excessive risk to health or safety.” Id. at 35.
Plaintiff’s complaint fails to satisfy either prong of the deliberate indifference test. Courts
in the Second Circuit have deemed symptoms such as headaches, sore throat, and other flu-like
symptoms as “not sufficiently serious to merit constitutional protections.” See, e.g., Griffin v.
Capra, No. 18 Civ. 10405, 2021 WL 1226428, at *5 (S.D.N.Y. Mar. 31, 2021). Therefore, the
flu symptoms that Plaintiff alleges, without more, are insufficient to show a level of urgency to
trigger constitutional protection.
In Plaintiff’s Amended Complaint and Opposition to the Motion to Dismiss (ECF No.30),
Plaintiff compares his flu-like symptoms to COVID-19, and asserts that medical personnel

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should have tested for COVID-19 in order to “affirmatively state that an individual didn’t suffer
from that variation of the flu or any other variation.” ECF No. 30 at 1. However, the Centers for
Disease Control and Prevention confirmed that the first case of COVID-19 was detected in the
United States on January 20, 2020 in Washington state 1; approximately one month after Plaintiff
recovered from his flu-like symptoms in the instant matter. Thus, Plaintiff’s implication that he
may have had COVID-19 and that medical personnel should have tested for it are unavailing.
Though flu-like symptoms may now call for COVID-19 testing and heightened attention, in
December 2019, this was not the case.
Regarding the subjective prong, Plaintiff does not provide instances of medical personnel
recklessly failing to act with reasonable care. Upon notifying medical personnel of his
symptoms, the Amended Complaint states that Plaintiff was examined, transferred to a different
facility for x-rays, and isolated for 7-9 days in order to recover. Amended Complaint at 8-10.
When his symptoms returned a year later, Defendants prescribed pain medication to treat them.
Amended Complaint at 10. These diligent efforts to examine, diagnose, and treat a detainee
defeat Plaintiff’s claim of deliberate indifference.

Monell Claim
Because Plaintiff’s claim of a constitutional violation failed, the Court also denies
Plaintiff’s Monell claim. The Second Circuit has held that “Monell does not provide a separate
cause of action . . .; it extends liability to a municipal organization where that organization's

See “CDC Museum COVID-19 Timeline,” David J. Sencer CDC Museum, Centers for Disease Control and
Prevention, https://www.cdc.gov/museum/timeline/covid19.html (last visited on Jan. 10, 2023). The Court also
notes that COVID-19 is not a variation of the flu, but another respiratory illness entirely.
1

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failure to train, or the policies or customs that it has sanctioned, led to an independent
constitutional violation.” See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006).

CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss is granted. The Clerk of
Court is directed to terminate the open motion at ECF No. 27, and the open motion at ECF No.
24 as moot. The Clerk of Court is also respectfully directed to mail a copy of this order to the
Plaintiff.
SO ORDERED.
Dated:

New York, New York
January 17, 2023

____________________________________
ANDREW L. CARTER, JR.
United States District Judge