King v. Spring Valley Police Dept. et al
Filing
189
OPINION AND ORDER re: 85 MOTION to Dismiss plaintiff's Second Amended Complaint filed by J. Lovelin, J. Bajwa, S. Shadi, Marcia Anderson, M. Schiavone, Nurse Skariah, R. Pillai, L. Thomas, J. Thomas, Louis Falco III, J. Mariamma, V. Nayaudupalli, J. Petranker, 175 MOTION to Dismiss second amended complaint (response deadline to be set by the Court) filed by J. Bajwa, Nurse Philipn, M. Schiavone, Nurse Skariah, Nurse Wilda-Stanfort, J. Thomas, E. Mahabir, Dr. Zachariah, Louis Falco III, J. Mariamma, V. Nayaudupalli, J. Lovelin, S. Shadi, S. Daniel, Marcia Anderson, Nurse Niana, Dr. Shinder, R. Pillai, L. Thomas, Nurse Anim, R. Stephen, G. Germain, Nurse Richards, L. Poulous e, Nurse Skorolohorse, J. Petranker, 139 MOTION to Dismiss filed by NP. George, 83 MOTION to Dismiss filed by E. Handler, Dr. Piacente, 134 MOTION to Dismiss plaintiff's Second Amended Complaint as to de fendant Sheila Philip (s/h/a "Nurse Philipn") filed by Nurse Philipn, J. Bajwa, S. Daniel, Louis Falco III (Rockland County Sheriff), NP. The March 1, 2018, Contractor Defendants motion to dismiss on behalf of Handler and Piacente is GRANTED IN PART and DENIED IN PART. (Doc. #83). The March 1, 2018, County Defendants' motion to dismiss on behalf of Falco, Anderson, Skariah, Schiavone, Bajwa, Lissama Thomas, Lovelin, Nayaudupalli, Shaji, Petranker, Pillai, Jacob, and Jess y Thomas is GRANTED IN PART and DENIED IN PART. (Doc. #85). The April 16, 2018, County Defendant Philip's motion to dimiss is GRANTED. (Doc. #134). The April 20, 2018, Contractor Defendant George's motion to dismiss is GRANTED. (Doc. #139). The July 17, 2018, County Defendants' motion to dismiss on behalf of Daniel, Germain, Mahabir, Stephen, Sokolohorsky, Ninan, Richards, Anim, Poulouse, Wilda-Stinfort, Zachariah, and Shinder is GRANTED IN PART and DENIED IN PART. (Doc. #175). Th e only remaining claim is the claim for deliberate indifference to plaintiff's serious medical need (i.e., his hearing loss) against defendants Dr. Zachariah, Dr. Shinder, Nurse Administrator Petranker, and N.P. Handler. These defendants shall f ile answers by December 26, 2018. The Clerk is directed to terminate the pending motions (Docs. ##83, 85, 134, 139 and 175). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good fait h, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. George, G. Germain, J. Lovelin, E. Mahabir, J. Mariamma, V. Nayaudupalli, Nurse Niana, Nurse Philipn, Nurse Philson, Dr. Piacente, R. Pillai, L. Poulouse, N. Prinja, Nurse Richards, M. Schiavone, S. Shadi, Nurse Skariah, Nurse Skorolohorse, R. Stephen, D. Taylor, J. Thomas, L. Thomas, Nurse Wilda-Stanfort, P. Angol and Nurse Anim terminated. (Signed by Judge Vincent L. Briccetti on 12/10/2018) Copies Mailed By Chambers. (mml)
Copy mailed by chambers on 12-11-18 DH
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
JAMES CHRISTOPHER KING,
:
Plaintiff,
:
:
v.
:
:
ROCKLAND COUNTY SHERIFF LOUIS
:
:
FALCO III; DR. SHINDER; DR. PIACENTE;
:
NURSE G. GERMAIN; NURSE J. THOMAS;
:
NURSE J. LOVELIN; DR. ZACHARIAH;
:
NURSE J. MARIAMMA; NURSE NIANA;
:
NURSE R. STEPHEN; NURSE ADMIN. J.
:
PETRANKER; NURSE WILDA-STANFORT;
:
NURSE V. NAYAUDUPALLI; NURSE S.
:
SHADI; NURSE PHILIPN; NURSE L.
:
THOMAS; S. DANIEL; N.P. E. HANDLER;
:
NURSE ANIM; NURSE R. PILLAI; NURSE P. :
ANGOL; NURSE J. BAJWA; NURSE E.
:
MAHABIR; NURSE N. PRINJA; NURSE M.
:
:
SCHIAVONE; NURSE SKOROLOHORSE;
:
NURSE MARCIA ANDERSON; NURSE
:
RICHARDS; NURSE D. TAYLOR; N.P.
:
GEORGE; NURSE L. POULOUSE; NURSE
:
PHILSON; and NURSE SKARIAH,
:
Defendants.
:
--------------------------------------------------------------x
OPINION AND ORDER
16 CV 6315 (VB)
Briccetti, J.:
Plaintiff James Christopher King, proceeding pro se and in forma pauperis, brings this
action under 42 U.S.C. § 1983, alleging defendants were deliberately indifferent to plaintiff’s
serious medical needs in violation of his Fourteenth Amendment rights. 1 Plaintiff names thirtyone defendants who worked at the Rockland County Correctional Facility (the “Jail”) during
plaintiff’s incarceration: Nurse Philip; Nurse J. Thomas; Nurse Lovelin; Nurse M. Jacob; Nurse
1
Plaintiff claims defendants violated his Eighth Amendment rights, but as discussed
below, the Court applies the Fourteenth Amendment here.
1
Administrator Petranker; Nurse Nayaudupalli; Nurse Shaji; Nurse L. Thomas; Nurse Pillai;
Nurse Bajwa; Nurse Schiavone; Nurse Anderson; Nurse Skariah; Louis Falco III; Dr. Shinder;
Nurse Germain; Dr. Zachariah; Nurse Ninan; Nurse Stephen; Nurse Wilda-Stinfort; Nurse
Daniel; Nurse Anim; Nurse Mahabir; Nurse Sokorolohorsky; Nurse Richards; and Nurse
Poulouse (collectively, the “County Defendants”); Dr. Piacente; Nurse Practitioner (“N.P.”)
Handler; and N.P. George (collectively, the “Contractor Defendants”); and Nurse Prinja and
Nurse Angol. 2
Now pending are five motions to dismiss the second amended complaint (“SAC”)
pursuant to Rule 12(b)(6) filed by the Contractor Defendants and County Defendants:
1.
March 1, 2018, Contractor Defendants’ motion on behalf of Handler and Piacente
(Doc. #83);
2.
March 1, 2018, County Defendants’ motion on behalf of Falco, Anderson,
Skariah, Schiavone, Bajwa, Lissama Thomas, Lovelin, Nayaudupalli, Shaji,
Petranker, Pillai, Jacob, and Jessy Thomas (Doc. #85);
3.
April 16, 2018, County Defendant Philip’s motion (Doc. #134);
4.
April 20, 2018, Contractor Defendant George’s motion (Doc. #139); and
2
Nurse Philip was sued incorrectly as “Nurse Philipn”; Nurse M. Jacob was sued
incorrectly as “Nurse J. Mariamma”; Nurse S. Shaji was sued incorrectly as “Nurse S. Shadi”;
Nurse Ninan was sued incorrectly as “Nurse Niana”; Nurse Wilda-Stinfort was sued incorrectly
as “Nurse Wilda-Stanfort”; and Nurse Sokolohorsky was sued incorrectly as “Nurse
Skorolohorse.” Furthermore, “Nurse Richards” and “Nurse Taylor” are the same person, herein
Nurse Richards; and “Nurse Angol” and “Nurse Philson” are the same person, herein Nurse
Angol.
2
5.
July 17, 2018, County Defendants’ motion on behalf of Daniel, Germain,
Mahabir, Stephen, Sokolohorsky, Ninan, Richards, Anim, Poulouse, WildaStinfort, Zachariah, and Shinder (Doc. #175).
Defendants Nurses Prinja and Angol were never served with process.
For the reasons set forth below, defendants’ motions are GRANTED IN PART and
DENIED IN PART.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
BACKGROUND
In deciding the pending motions, the Court accepts as true all well-pleaded allegations in
the SAC and draws all reasonable inferences in plaintiff’s favor, as set forth below.
I.
Plaintiff’s Arrest and Incarceration
On December 1, 2015, police officers from the Village of Spring Valley Police
Department arrested plaintiff. During the arrest, officers allegedly punched and kicked plaintiff
in the head, handcuffed him, Tasered him numerous times, and dragged him to a police car.
Emergency medical services officers later transported plaintiff to Good Samaritan Hospital in
Suffern, New York, where an emergency room doctor allegedly diagnosed plaintiff with a
concussion, prescribed Oxycodone, and instructed plaintiff to follow up with a neurologist “as
soon as possible within two days.” (SAC ¶ 223).
On December 2, 2015, plaintiff arrived at the Jail and told Nurse Daniel about the alleged
assault and the Good Samaritan doctor’s recommendation that plaintiff follow up with a
neurologist “as soon as possible.” (SAC ¶ 235).
The next morning, on December 3, 2015, at 8:00 a.m., officers found plaintiff
unconscious in his cell and called emergency medical staff. Dr. Zachariah and Nurses Anim and
3
Anderson came to plaintiff’s aid, and plaintiff was rushed to Nyack Hospital. A Nyack doctor
allegedly diagnosed plaintiff with a concussion and told him to follow up with a neurologist “as
soon as possible” and inform the Jail’s medical staff if the pain continued. (SAC ¶ 242).
II.
Plaintiff Complains of Ear Problems and Seeks Neurological Care
After plaintiff returned to the Jail, he alleges he was in “severe pain” from December 4 to
December 7, 2015. (SAC ¶ 246). Despite his requests for medical attention on December 4,
2015, for “extreme pain,” plaintiff alleges Nurses Wilda-Stinfort and Sokolhorsky walked by
plaintiff’s cell and ignored him. (SAC ¶¶ 247–48). On December 7, 2015, Dr. Zachariah saw
plaintiff, and plaintiff complained about head and neck pain, hearing difficulties, ringing in the
ears, and numbness in his feet and hands, and asked when he would see a neurologist. According
to plaintiff, Dr. Zachariah said he would put plaintiff “on the list to see the neurologist.” (SAC
¶ 253).
According to plaintiff, his pain and insomnia increased the following week, and he
complained to the nurses on duty from December 7 to December 14, 2015: Nurses Angol,
Ninan, Wilda-Stinfort, Richards, Anderson, Schiavone, Poulouse, and Anim. (SAC ¶¶ 255–61).
On December 13, 2015, Nurse Germain gave plaintiff a sick call request form—
essentially, a request for medical attention—and plaintiff filled out the form complaining of pain.
The following day, Dr. Zachariah saw plaintiff for pain, numbness in his hands and feet, and
hearing difficulties, but plaintiff alleges Dr. Zachariah provided no treatment and sent plaintiff
back to his cell.
On December 20, 2015, at 11:30 p.m., plaintiff alleges he woke up with extreme head
and ear pain. About an hour later, officers took plaintiff to the medical department, where
4
plaintiff told Nurse Mahabir that he was in “extreme pain.” (SAC ¶ 267). Nurse Mahabir gave
plaintiff a sick call request form but provided no treatment for pain.
According to plaintiff, on December 27, 2015, he told Nurse Angol he had a severe
headache and “couldn’t hear out of one of his ears.” (SAC ¶ 271). Two days later, plaintiff was
seen by an unidentified medical staff member, and plaintiff complained of a headache and
hearing difficulties. Plaintiff received Tylenol but no other treatment or examination.
On January 1, 2016, plaintiff allegedly saw Dr. Shinder and told him about the December
1, 2015, assault and the resulting “head trauma” and “problems hearing.” (SAC ¶ 275).
Plaintiff again received no treatment and was sent back to his cell.
On January 10, 2016, plaintiff alleges he was again in “extreme pain,” and Nurse
Germain gave plaintiff a sick call request form. (SAC ¶¶ 280–81). On the form, plaintiff noted
“his ear was hurting really bad” despite taking aspirin and that he was supposed to see a
neurologist for his head injury. (SAC ¶ 282).
The next day, Dr. Shinder examined plaintiff in the presence of Nurse Administrator
Petranker. According to plaintiff, although Petranker told him “there [was] no need to see a
neurologist,” Dr. Shinder said he should see a specialist. (SAC ¶¶ 285–86).
On January 13, 2016, plaintiff alleges he was seen by an unidentified nurse for a severe
headache and ear pain but received no treatment. The next day, on January 14, 2016, plaintiff
lost consciousness in his cell. Plaintiff alleges he was in severe pain and had numbness in his
hands and feet. According to plaintiff, Nurse Prinja, Dr. Shinder, and a non-party sergeant were
called to plaintiff’s cell, and the sergeant kicked plaintiff in his side.
5
III.
Plaintiff Receives Neurological Care for Head Trauma
On January 25, 2016, plaintiff saw two neurologists at Westchester Medical Center who
allegedly diagnosed him with nerve damage and a concussion, prescribed him medication for
pain and sleep problems, and scheduled him for an MRI. Plaintiff also alleges he complained
about hearing loss to the neurologists, but one neurologist told plaintiff to address those
problems with the Jail’s medical personnel, because as a neurologist, he only handled head and
neck complaints. The neurologists prescribed medication for insomnia and pain and scheduled an
MRI.
Plaintiff returned to the Jail. In the following weeks, plaintiff alleges medical personnel
ignored his sick call request forms because he was scheduled for a neurology follow-up
appointment and an MRI. Plaintiff alleges he submitted a February 14, 2016, request form to
Nurse Prinja for head and back pain; a February 16 request form to Nurse Bajwa for extreme
pain; a February 29 request form to an unnamed staff member for chronic pain; and a March 11
request form to Nurse L. Thomas for headaches.
Plaintiff alleges he was seen by medical staff during this time, but they declined to
provide him treatment: N.P. George denied treatment on February 18 and February 29, 2016,
and N.P. Handler denied treatment on March 17, 2016.
On March 18, 2016, plaintiff received an MRI at Westchester Medical Center.
According to the SAC, the MRI showed no fractures.
Plaintiff alleges his pain persisted, and from March 27 to April 4, 2016, the nurses who
dispensed medication “deliberately avoided” him: Nurses L. Thomas, Nayaudupalli, Prinja,
Jacobs, Lovelin, Stephen, Bajwa, J. Thomas, and Pillai. (SAC ¶¶ 331–37). On April 5, 2016,
6
N.P. Handler saw plaintiff for chronic pain but provided no treatment because N.P. Handler
allegedly claimed plaintiff had an upcoming neurology appointment.
On or around April 16, 2016, plaintiff submitted a sick call request form to Nurse Philip
“stating he was having problems with his hearing.” (SAC ¶ 341). Plaintiff does not allege
whether he received treatment.
On May 2, 2016, plaintiff was seen by a neurologist at Westchester Medical Center for
the third time. Plaintiff alleges the neurologist prescribed medication and told plaintiff to follow
up in two to three months. Plaintiff states he experienced “moderate” relief. (SAC ¶ 343).
IV.
Plaintiff’s Complaints Resume Until His Transfer to Downstate Correctional Facility
Plaintiff’s complaints resumed on August 5, 2016, when he submitted a sick call request
form to Nurse Shaji for chronic headaches and dizzy spells. For three days, plaintiff alleges
Nurses Nayaudupalli, Bajwa, Anderson, and L. Thomas “deliberately avoided him.” (SAC
¶¶ 345–47). On August 8, 2016, Nurse Poulouse saw plaintiff and gave him Tylenol. Later that
day, plaintiff submitted another sick call request form to Nurse Shaji for a headache. Although
plaintiff does not specify when, he alleges he was seen by Dr. Piacente and N.P. Handler who
noted plaintiff had “chronic heada[c]hes, no[] follow up with neurologist at this time.” (SAC
¶ 349). According to plaintiff, Dr. Piacente and N.P. Handler provided no treatment.
Plaintiff alleges he was in extreme pain for the rest of August. (SAC ¶ 351).
On September 6, 2016, plaintiff submitted a sick call slip to Nurse Shaji for pain and
ringing in his ears. N.P. Handler examined plaintiff the following day, diagnosed plaintiff with
an ear infection, and prescribed antibiotics. Plaintiff alleges N.P. Handler refused to send
plaintiff to an audiologist because plaintiff “was costing the Jail too much money,” as he was
already seeing a neurologist. (SAC ¶ 356).
7
On November 12, 2016, plaintiff submitted a sick call request form to Nurse A. George 3
for head pain and dizzy spells. Dr. Piacente saw plaintiff two days later but allegedly provided
no treatment because he said plaintiff had an upcoming neurology appointment.
On December 2, 2016, 4 plaintiff was transferred to Downstate Correctional Facility
(“Downstate”). Three days later, he saw a staff doctor at Downstate, who scheduled plaintiff for
an audiology examination when plaintiff complained of hearing loss. On December 14, 2016, an
audiologist conducted a hearing test and allegedly determined plaintiff had permanent hearing
loss and would be “disabled for the rest of his life.” (SAC ¶ 369). Plaintiff alleges he told the
audiologist his hearing began to diminish after he was beaten during his arrest on December 1,
2015.
V.
The Grievance Process
Plaintiff alleges he filed two grievances concerning his medical care at the Jail. 5
The first grievance, filed on January 12, 2016, alleged plaintiff received inadequate
medical care because (i) despite doctors’ recommendations, plaintiff had not seen a neurologist,
and (ii) he had received no treatment for hearing loss. (See Doc. #87-1). Plaintiff alleges on
January 19, 2016, after an investigation, plaintiff’s grievance was denied because he was
3
Nurse A. George is not named in the SAC’s caption.
4
Plaintiff alleges he was transferred on December 2, 2015, but the Court assumes plaintiff
means December 2, 2016. (SAC ¶ 360).
5
“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 L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002)).
8
scheduled to see a neurologist in the coming weeks. Plaintiff appealed, and on January 21, 2016,
the Jail’s denial of plaintiff’s grievance was sustained.
The second grievance, signed by plaintiff on February 20, 2016, but unsigned by a Jail
staff member, alleged (i) plaintiff was in pain, (ii) plaintiff was supposed to get an MRI for his
back, and (iii) plaintiff’s “ear is hurting [and he] need[s] to see [an] ear doctor.” (Doc. #145 at
ECF 2 6). Plaintiff alleges he submitted this grievance to the intake officer on duty that night but
never received a response. (Id. at ECF 25).
DISCUSSION
I.
Legal Standard
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative
complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements,” are not entitled to
the assumption of truth and are thus insufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 554,
564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that defendant is liable for the misconduct alleged.”
6
When noted, citations reflect page numbers assigned by the Court’s Electronic Case
Filing system.
9
Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id.
The Court must liberally construe submissions of pro se litigants, and interpret them “to
raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (per curiam) (internal quotation and citation omitted). Applying the
pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges
civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (internal quotation and citation omitted). Nor may the Court “invent
factual allegations” plaintiff has not pleaded. Id.
II.
Exhaustion of Remedies
The County Defendants and Contractor Defendants argue plaintiff’s failure to exhaust
administrative remedies concerning his allegedly inadequate medical care warrants dismissal.
The Court disagrees.
The Prison Litigation Reform Act of 1995 (“PLRA”) provides “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other federal
law, by a prisoner confined in any jail, prison or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion
requirement “applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
10
To properly exhaust, an inmate must follow all steps that the agency lays out in its
grievance process. Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). However, only
remedies “available” to the prisoner need be exhausted. Williams v. Correction Officer Priatno,
829 F.3d 118, 123 (2d Cir. 2016) (citing Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)). An
administrative remedy is considered unavailable in “three kinds of circumstances:” (i) when “it
operates as a simple dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates”; (ii) when “an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use—i.e., some mechanism exists to provide relief,
but no ordinary prisoner can navigate it”; and (iii) “when prison administrators thwart inmates
from taking advantage of it through machination, misrepresentation, or intimidation.” Ross v.
Blake, 136 S. Ct. at 1859.
Failure to exhaust under the PLRA is an affirmative defense. Jones v. Bock, 549 U.S.
199, 216 (2007). A plaintiff is not required to plead exhaustion, so when “a prisoner indicates
that he has taken some steps toward exhaustion, district courts will normally not infer from his
silence that he failed to take the remaining steps that full exhaustion would require.” Huggins v.
Schriro, 2015 WL 7345750, at *3 (S.D.N.Y. Nov. 19, 2015) (emphasis added), report and
recommendation adopted, 2016 WL 680822 (S.D.N.Y. Feb. 18, 2016). 7 “Dismissal under Rule
12(b)(6) for failure to exhaust is thus appropriate only where nonexhaustion is apparent from the
face of the complaint.” Roland v. Smith, 907 F. Supp. 2d 385, 388 (S.D.N.Y. 2012). If
“ambiguity exists as to whether a plaintiff exhausted his administrative remedies,” courts
generally deny motions to dismiss on this ground. Huggins v. Schriro, 2015 WL 7345750, at *3.
7
Because plaintiff is proceeding pro se, he will be provided with copies of all unpublished
opinions cited in this decision. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
11
Here, plaintiff alleges he submitted two grievances concerning his inadequate medical
care on January 12 and February 20, 2016. At the very least, “ambiguity exists” as to whether
these grievances exhausted plaintiff’s administrative remedies. See Huggins v. Schriro, 2015
WL 7345750, at *3. More specifically, it is unclear whether the Jail addressed all the issues
raised in plaintiff’s first grievance; whether plaintiff’s second grievance was properly filed;
whether the Jail’s handbook set forth procedures concerning a grievance to which no prison
official responds; and whether the Jail’s grievance process was available to plaintiff.
Accordingly, absent a more complete record, the Court cannot conclude as a matter of
law that plaintiff failed to exhaust his administrative remedies.
III.
Personal Involvement
The County Defendants argue plaintiff fails plausibly to allege the personal involvement
of Falco and Skariah.
The Court agrees.
To state a Section 1983 claim, plaintiff must allege defendants’ personal involvement in
an alleged deprivation of plaintiff’s constitutional rights. See Spavone v. N.Y. State Dep’t of
Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013). In other words, plaintiff “must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676.
A defendant may not be held liable under Section 1983 solely because that defendant
employs or supervises someone who violated the plaintiff’s rights. Ashcroft v. Iqbal, 556 U.S. at
676. However, in this Circuit, a supervisor’s personal involvement may be established by
showing:
(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
12
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 to Falco, plaintiff fails to allege Falco was involved in a personal or supervisory
capacity in the alleged constitutional violation. Plaintiff makes no allegations Falco knew of,
participated in, or failed to act in the face of other defendants’ alleged deliberate indifference to
plaintiff’s serious medical needs, or that Falco negligently supervised Jail staff. See Colon v.
Coughlin, 58 F.3d at 873. Plaintiff’s sole allegation that “[a]s a matter of de facto policy,” the
Jail “tolerates” Eighth Amendment violations (see SAC ¶¶ 394–95) fails to allege facts
suggesting Falco created, continued, or countenanced a policy or custom that caused a
constitutional violation to occur.
As to Nurse Skariah, plaintiff includes Nurse Skariah’s name in the case caption but fails
to make any substantive allegations against her in the body of the complaint.
Accordingly, all claims against Falco and Skariah must be dismissed for plaintiff’s failure
to plead their personal involvement.
IV.
Deliberate Indifference Under the Fourteenth Amendment
Because plaintiff was initially a pretrial detainee, 8 his claim for deliberate indifference is
analyzed under the Due Process Clause of the Fourteenth Amendment, rather than under the
8
Plaintiff was initially a pre-trial detainee. During that time, his right to adequate medical
care arose under the Fourteenth Amendment. At some point during his incarceration at the Jail,
he became a post-conviction detainee, and his right to adequate medical care arose under the
Eighth Amendment. (See Doc. #88 at 10 n.5). Because it is not clear when plaintiff’s detention
status changed, the Court will apply the less stringent Fourteenth Amendment standard.
13
Eighth Amendment, because “[p]retrial detainees have not been convicted of a crime and thus
‘may not be punished in any manner—neither cruelly and unusually nor otherwise.’” Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir.
2007)). To state a deliberate indifference claim under the Fourteenth Amendment, plaintiff’s
allegations must satisfy two prongs: an objective prong and a mens rea prong. Each is discussed
in turn.
A.
Objective Prong
To satisfy the objective prong, plaintiff must plausibly allege “the challenged conditions
were sufficiently serious to constitute objective deprivations of the right to due process.” Darnell
v. Pineiro, 849 F.3d at 29. This occurs when “the conditions, either alone or in combination,
pose an unreasonable risk of serious damage to [plaintiff’s] health.” Id. at 30 (quoting Walker v.
Schult, 717 F.3d 119, 125 (2d Cir. 2013)). “There is no ‘static test’ to determine whether a
deprivation is sufficiently serious; instead, ‘the conditions themselves must be evaluated in light
of contemporary standards of decency.’” Id. (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d
Cir. 1995)).
“Determining whether a deprivation is an objectively serious deprivation entails two
inquiries.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). “The first inquiry is whether
the prisoner was actually deprived of adequate medical care.” Id. Because “the prison official’s
duty is only to provide reasonable care,” prison officials are liable only if they fail “‘to take
reasonable measures’ in response to a medical condition.” Id. at 279–80 (quoting Farmer v.
Brennan, 511 U.S. 825, 827 (1994)). The second inquiry is “whether the inadequacy in medical
care is sufficiently serious.” Id. at 280. “This inquiry requires the court to examine how the
14
offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely
cause the prisoner.” Id. (citation omitted).
If the offending conduct “is a failure to provide any treatment for an inmate’s medical
condition, courts examine whether the inmate’s medical condition is sufficiently serious.”
Salahuddin v. Goord, 467 F.3d at 280. If the offending conduct is “the medical treatment given,”
however, “the seriousness inquiry is narrower.” Id. Courts look to “the alleged inadequate
treatment, not the underlying condition alone,” and consider “the effectiveness of the treatment
the prisoner received, and the harm that resulted from the alleged shortfalls.” Sanders v. City of
New York, 2018 WL 3117508, at *8 (S.D.N.Y. June 25, 2018). However, “[i]t is wellestablished that mere disagreement over the proper treatment does not create a constitutional
claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different
treatment does not give rise to” a constitutional violation. Chance v. Armstrong, 143 F.3d 698,
703 (2d Cir. 1998).
Here, plaintiff claims he was deprived of adequate treatment for two sufficiently serious
conditions—his head trauma and hearing loss. For the following reasons, plaintiff fails to allege
facts suggesting he “was actually deprived of adequate medical care” for his head trauma.
However, he plausibly alleges he was deprived of treatment for his hearing loss and that the
inadequacy was sufficiently serious. See Salahuddin v. Goord, 467 F.3d at 279–80.
i.
Head Trauma
Plaintiff alleges he was seen by Jail medical staff members for his complaints of head and
neck pain sixteen times from December 2, 2015, to November 14, 2016. Plaintiff admits he saw
specialists outside the Jail three times within six months of his head trauma, and that during one
of those visits, he received an MRI, which he says showed no fractures. Plaintiff does not allege
15
how the treatment he received for his head trauma was inadequate. His belief that he should
have received different or additional medical treatment for his injuries is not a sufficient basis for
a deliberate indifference claim. Chance v. Armstrong, 143 F.3d at 703.
Furthermore, to the extent plaintiff claims defendants unconstitutionally delayed his
examination by a specialist for his head trauma, “[t]he Second Circuit has generally found
constitutional violations with respect to delays in providing medical care only when the ‘officials
deliberately delayed care as a form of punishment, ignored a life-threatening and fastdegenerating condition for three days, or delayed major surgery for over two years.’” Valdiviezo
v. City of New York, 2017 WL 1191528, at *4 (S.D.N.Y. Mar. 29, 2017) (quoting Demata v.
N.Y. State Corr. Dep’t of Health Servs., 198 F.3d 233 (2d Cir. 1999) (internal quotation
omitted)). Plaintiff concedes he saw a neurologist on January 25, 2016, within two months of
his December 2, 2015, incarceration at the Jail, and received an MRI on March 18, 2016.
Plaintiff does not allege the delay was a form of punishment or that his head trauma was lifethreatening or fast-degenerating. Thus, the alleged delay does not rise to the level of a
constitutional violation.
ii.
Hearing Loss
Plaintiff alleges he complained about hearing loss or ear pain ten times to various Jail
medical staff members: on December 7, 2015 (hearing loss and ringing in the ears, SAC ¶¶ 249–
51); December 14, 2015 (hearing loss, SAC ¶¶ 263–64); December 20, 2015 (ear pain, SAC
¶ 265); December 27, 2015 (hearing loss, SAC ¶ 271); December 29, 2015 (hearing loss, SAC
¶ 272); January 1, 2016 (hearing loss, SAC ¶ 275); January 10, 2016 (ear pain, SAC ¶ 282);
January 13, 2016 (ear pain, SAC ¶¶ 285–86); April 16, 2016 (hearing loss, SAC ¶ 341); and
September 6, 2016 (ringing in the ears, SAC ¶¶ 285–86). Plaintiff also alleges he filed two
16
grievances concerning, among other things, his hearing loss on January 12 and February 20,
2016, and he complained to a neurologist from Westchester County Medical Center on January
25, 2016. According to plaintiff, the only treatment he received for his ears occurred on
September 7, 2016—ten months after his first complaint—for an ear infection.
Turning then to the seriousness of plaintiff’s alleged medical condition, courts have
found the ability to hear is “a basic human need affecting daily activity and sufficiently serious to
warrant treatment by physicians.” See Rennalls v. Alfredo, 2015 WL 5730332, at *11 (S.D.N.Y.
Sept. 30, 2015) (quoting Rosales v. Fischer, 2009 WL 928260, at *12 (S.D.N.Y. Mar. 31, 2009)).
Indeed, three months later, an audiologist allegedly discovered plaintiff suffered from permanent
hearing loss.
Plaintiff therefore plausibly alleges he received no treatment, or at most, inadequate
treatment, for this “sufficiently serious” condition. Salahuddin v. Goord, 467 F.3d at 280.
Accordingly, plaintiff has pleaded facts to satisfy the objective prong for his claim of deliberate
indifference as to his hearing loss but not as to his head trauma.
B.
Mens Rea Prong
To satisfy the mens rea prong, a “pretrial detainee must prove that the defendant-official
acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable
care to mitigate the risk . . . even though the defendant-official knew, or should have known, that
the condition posed an excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d at 35
(emphasis added). Thus, unlike the Eighth Amendment, the Due Process Clause of the
Fourteenth Amendment “can be violated when an official does not have subjective awareness
that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of
harm.” Id.
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“[D]istinguishing between negligent and reckless medical care is a difficult task,
especially at the motion-to-dismiss stage where courts lack the benefit of expert opinion.” Man
Zhang v. City of New York, 2018 WL 3187343, at *8 (S.D.N.Y. June 28, 2018) (quoting
Richardson v. Corr. Med. Care, Inc., 2018 WL 1580316, at *6 (N.D.N.Y. Mar. 28, 2018)).
Courts often look to the “degree of risk associated with the negligent treatment,” id. (quotation
omitted), and have found the mens rea prong satisfied when a plaintiff did not receive treatment
for a documented condition or complaint. See Smith v. Outlaw, 2017 WL 4417699, at *4
(S.D.N.Y. Sept. 30, 2017) (finding mens rea prong satisfied when physician’s assistant took no
action in response to complaints from plaintiff with pre-existing heart condition); Richardson v.
Corr. Med. Care, Inc., 2018 WL 1580316, at *6 (finding mens rea prong satisfied when medical
officer failed to provide treatment or referral to a cardiologist despite plaintiff’s history of heart
issues).
Because plaintiff adequately pleads the objective prong as to his hearing loss only, the
Court’s remaining inquiry is whether plaintiff plausibly alleges defendants had the requisite
mens rea for plaintiff’s claim of deliberate indifference as to his hearing loss. For the following
reasons, plaintiff has satisfied the mens rea prong only as to Dr. Zachariah, Dr. Shinder, Nurse
Administrator Petranker, and N.P. Handler. Plaintiff adequately alleges these defendants knew
or should have known of the risk of excessive harm plaintiff faced from his ear pain and hearing
loss, and these defendants failed to act to mitigate the risk.
i.
Dr. Zachariah
Plaintiff alleges Dr. Zachariah responded when plaintiff lost consciousness in his cell on
December 3, 2015, and was transported to Nyack Hospital. According to plaintiff, Dr. Zachariah
also examined plaintiff on December 7, 2015, and plaintiff told Dr. Zachariah about severe pain
18
in plaintiff’s neck and head, ringing in his ears, and numbness in his hands and feet. Dr.
Zachariah allegedly noted the doctors at Good Samaritan and Nyack Hospitals recommended
plaintiff see a neurologist, and Dr. Zachariah said he would put plaintiff on “the list to see the
neurologist.” (SAC ¶ 253). Plaintiff alleges he returned to Dr. Zachariah a week later with
complaints of pain, hearing loss, and numbness. Therefore, assuming the truth of these
allegations as the Court must at this early stage of the case, Dr. Zachariah was aware of
plaintiff’s complaints of ear pain and hearing loss on December 7 and December 14, 2015, and
his recent hospitalizations, and yet, he provided no treatment, further examination, or referral for
plaintiff’s hearing loss.
ii.
Dr. Shinder
Plaintiff alleges he saw Dr. Shinder on January 1, 2016, after plaintiff complained about
his head injuries and hearing loss. Plaintiff further complained of ear pain on January 10, 2016,
and Dr. Shinder, along with Nurse Administrator Petranker, saw him the following day.
According to plaintiff, Dr. Shinder also recommended plaintiff see a specialist for his head
trauma. Therefore, Dr. Shinder was allegedly aware of plaintiff’s ear pain and hearing loss but
provided no treatment, further examination, or referral for plaintiff’s hearing loss.
iii.
Nurse Administrator Petranker
Plaintiff alleges he complained of ear pain that had lasted more than a month despite
taking pain medication, and the next day, on January 11, 2016, he saw Nurse Administrator
Petranker and Dr. Shinder. Nurse Administrator Petranker was allegedly aware of plaintiff’s ear
pain and hearing loss but provided no treatment, further examination, or referral for plaintiff’s
hearing loss.
19
iv.
N.P. Handler
Although plaintiff alleges he saw N.P. Handler on March 17, April 5, and August 9,
2016, plaintiff alleges he complained only of a headache, chronic pain, and chronic headaches,
respectively. On September 7, 2016, however, plaintiff alleges he told N.P. Handler he was
suffering from ear pain and hearing loss. While N.P. Handler diagnosed plaintiff with an ear
infection and provided antibiotics, N.P. Handler provided no further treatment or examination for
plaintiff’s ears. Furthermore, plaintiff specifically alleges N.P. Handler refused to send plaintiff
to an audiologist because he was costing the Jail too much money. Viewing these facts in the
light most favorable to plaintiff as the Court must at this stage of the case, plaintiff alleges N.P.
Handler knew or should have known plaintiff faced a serious risk of harm but took no action.
v.
Remaining Defendants
Plaintiff fails to allege facts to suggest the remaining defendants had the requisite mens
rea for plaintiff’s claim of deliberate indifference as to his hearing loss. The SAC’s deficiencies
can be grouped into three categories: (i) failure to allege defendants knew or should have known
of plaintiff’s hearing loss; (ii) failure to allege defendants knew or should have known of the
substantial risk of harm plaintiff faced from his condition; and (iii) failure to allege defendants
failed to act to mitigate the risk plaintiff faced.
First, plaintiff fails to allege certain defendants knew or should have known about his
hearing loss. After January 13, 2016, plaintiff alleges he only notified Jail medical staff twice
about his hearing problems: on April 16 and September 6, 2016. While plaintiff alleges he
complained of pain throughout 2016, this general allegation is not enough to transform possibly
negligent medical care into plausibly reckless medical care. Therefore, despite plaintiff’s
repeated complaints concerning ear pain and hearing loss in December 2015 and January 2016,
20
plaintiff alleges no facts to suggest defendants who interacted with him after January 2016
should have known that plaintiff’s ear pain or hearing loss continued to plague him.
Accordingly, plaintiff’s claims must be dismissed against N.P. George (alleged
interactions on February 18 and February 29, 2016); Dr. Piacente (alleged interactions on August
9 and November 14, 2016); Nurse Stephen (alleged interactions from March 27 to April 4,
2016); Nurse Lovelin (alleged interactions from March 27 to April 4, 2016); Nurse Jacobs
(alleged interactions from March 27 to April 4, 2016); Nurse Pillai (alleged interactions from
March 27 to April 4, 2016); Nurse J. Thomas (alleged interactions from March 27 to April 4,
2016); Nurse Pillai (alleged interactions from March 27 to April 4, 2016); Nurse Nayaudupalli
(alleged interactions from March 27 to April 4 and August 6 and 7, 2016); Nurse L. Thomas
(alleged interactions on March 11, from March 27 to April 4, and August 6 and 7, 2016); Nurse
Bajwa (alleged interactions on February 16, from March 27 to April 4, and August 6 and 7,
2016); and Nurse A. George (alleged interaction on November 12, 2016).
Second, plaintiff fails to allege other defendants knew or should have known about the
substantial risk of harm from his hearing loss. While these defendants allegedly interacted with
plaintiff during the period in which plaintiff complained about ear pain to other defendants,
plaintiff does not allege he made any ear-related complaints to these defendants. Even if the
Court charges these defendants with constructive knowledge of plaintiff’s hearing loss, plaintiff
alleges no facts to suggest these defendants knew or should have known plaintiff’s risk of harm
was substantial. While plaintiff alleges these defendants were on duty when plaintiff complained
about his head trauma or these defendants provided or received sick call request forms regarding
his head trauma, this alleged conduct is not enough to evince recklessness to plaintiff’s hearing
loss.
21
Accordingly, plaintiff’s claims must be dismissed against Nurse Daniel (conducted intake
on December 2, 2015); Nurse Sokolohorse (on duty on December 4, 2015); Nurse Prinja 9 (came
to aid on January 14 for head trauma; received sick call request form on February 14, and alleged
interaction from March 27 to April 4, 2016); Nurse Mahabir (provided sick call request form on
December 20, 2015); Nurse Germain (provided sick call request form on December 20, 2015);
Nurse Ninan (on duty from December 7 to December 14, 2015); Nurse Richards (on duty from
December 7 to December 14, 2015); Nurse Schiavone (on duty from December 7 to December
14, 2015); Nurse Wilda-Stinfort (on duty on December 4 and from December 7 to December 14,
2015); Nurse Anderson (came to aid on December 3 and on duty from December 7 to December
14, 2015); Nurse Anim (came to aid on December 3 and on duty from December 7 to December
14, 2015); and Nurse Poulouse (on duty from December 7 to December 14, 2015, and provided
Tylenol on August 8, 2016).
Finally, plaintiff fails to allege Nurse Angol, 10 Nurse Philip, or Nurse Shaji did not act to
mitigate the risk plaintiff faced from his hearing loss. The Court addresses these sequentially.
9
Nurse Prinja was never served with process. While in an Order dated April 3, 2018, the
Court directed the U.S. Marshal’s Office to effect service on Nurse Prinja (Doc. #130), it is
plaintiff’s responsibility to ensure service is made within ninety days and, if necessary, to request
an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012). The
summons was returned unexecuted on May 31, 2018. (Doc. #156). On July 19, 2018, the Court
reminded plaintiff that Nurse Prinja had not been served. (Doc. #183). At plaintiff’s request, the
Court granted plaintiff an extension to serve Nurse Prinja until November 26, 2018. (Doc.
#186). To date, Nurse Prinja has not been served. Accordingly, plaintiff’s claims against Nurse
Prinja must be dismissed. Importantly, however, plaintiff’s claims against Nurse Prinja are
substantially similar to many of the other defendants who were served in this case, and the Court
dismisses the claims against Nurse Prinja on the merits as well.
10
Nurse Angol was never served with process. While in an Order dated July 17, 2018, the
Court directed the U.S. Marshal’s Office to effect service on Nurse Angol (Doc. #180), it is
plaintiff’s responsibility to ensure service is made within ninety days, and, if necessary, to
request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012).
The summons was returned unexecuted on September 24, 2018 (Doc. # 188). Plaintiff’s time to
22
Plaintiff alleges Nurse Angol was on duty from December 7 to December 14, 2015, when
plaintiff complained “to every nurse working in the intake unit” about his pain. (SAC ¶¶ 255–
61). Plaintiff alleges he also told Nurse Angol about his hearing loss on December 27, 2015,
when Nurse Angol was handing out medication. Two days later, plaintiff alleges he was seen by
an unidentified staff member to whom plaintiff again complained of hearing loss. Plaintiff does
not allege Nurse Angol failed to act, and indeed, alleges that two days after he complained to
Nurse Angol, he discussed his hearing loss with another medical staff member.
Plaintiff’s sole allegation against Nurse Philip is that on or around April 16, 2016, Nurse
Philip “took” a sick call request form in which plaintiff noted he “was having problems with his
hearing.” (SAC ¶ 341). Plaintiff does not allege he did not to receive treatment on that occasion
or even that Nurse Philip had a duty to act upon receipt of the sick call request form.
Plaintiff alleges Nurse Shaji received two sick call request forms—one unrelated to ear
problems on August 8, 2016, and the other for pain and ringing in the ears on September 6, 2016.
As to plaintiff’s ear-related complaint, plaintiff does not allege Nurse Shaji failed to act, and
indeed, alleges the following day, he was seen by N.P. Handler.
Accordingly, plaintiff’s claims must be dismissed against Nurse Shaji, Nurse Angol, and
Nurse Philip.
V.
Leave to Amend
Rule 15(a)(2) instructs courts “should freely give leave” to amend a complaint “when
justice so requires.” Liberal application of Rule 15(a) is warranted with respect to pro se
serve Nurse Angol or request an extension expired on October 16, 2018. Accordingly, plaintiff’s
claims against Nurse Prinja must be dismissed. Importantly, however, plaintiff’s claims against
Nurse Angol are substantially similar to many of the other defendants who were served in this
case, and the Court dismisses the claims against Nurse Angol on the merits as well.
23
litigants who “should be afforded every reasonable opportunity to demonstrate that [they have] a
valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000). However, leave to amend may
“properly be denied for . . . futility of amendment.” Ruotolo v. City of New York, 514 F.3d 184,
191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). This is true even when
the plaintiff is proceeding pro se. See Martin v. Dickson, 100 F. App’x 14, 16 (2d Cir. 2004)
(summary order).
The Court has already given plaintiff leave to amend twice. Plaintiff could only cure the
defects in his complaint if his diagnosis and treatment were entirely different than he has alleged,
or he omitted from the SAC other documented complaints to existing defendants or entirely new
defendants. This is highly unlikely as on June 28, 2017, plaintiff was provided a 13-page Excel
spreadsheet listing the name and shift of every medical staff member at the Jail from December
2, 2015, to December 2, 2016. (Doc. #40). Accordingly, the Court finds leave to amend would
be futile, and denies plaintiff leave to amend the SAC.
CONCLUSION
The March 1, 2018, Contractor Defendants’ motion to dismiss on behalf of Handler and
Piacente is GRANTED IN PART and DENIED IN PART. (Doc. #83).
The March 1, 2018, County Defendants’ motion to dismiss on behalf of Falco, Anderson,
Skariah, Schiavone, Bajwa, Lissama Thomas, Lovelin, Nayaudupalli, Shaji, Petranker, Pillai,
Jacob, and Jessy Thomas is GRANTED IN PART and DENIED IN PART. (Doc. #85).
The April 16, 2018, County Defendant Philip’s motion to dimiss is GRANTED. (Doc.
#134).
The April 20, 2018, Contractor Defendant George’s motion to dismiss is GRANTED.
(Doc. #139).
24
The July 17, 2018, County Defendants’ motion to dismiss on behalf of Daniel, Germain,
Mahabir, Stephen, Sokolohorsky, Ninan, Richards, Anim, Poulouse, Wilda-Stinfort, Zachariah,
and Shinder is GRANTED IN PART and DENIED IN PART. (Doc. #175).
The only remaining claim is the claim for deliberate indifference to plaintiff’s serious
medical need (i.e., his hearing loss) against defendants Dr. Zachariah, Dr. Shinder, Nurse
Administrator Petranker, and N.P. Handler. These defendants shall file answers by December
26, 2018.
The Clerk is directed to terminate the pending motions (Docs. ##83, 85, 134, 139 and
175).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Dated: December 10, 2018
White Plains, NY
SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge
25