Waller v. Dubois et al

Filing 82

OPINION AND ORDER: For the reasons stated above, Defendants' Motion To Dismiss is granted. Because this is the second adjudication of Plaintiffs claims on the merits and he has failed to state a claim, the dismissal is with prejudice. Even pro se plaintiffs are not entitled to file an amended complaint if the complaint "contains substantive problems such that an amended pleading would be futile." Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y . Jan. 3, 2012), aff'd, 523 F. App'x 32 (2d Cir. 2013). Because the Court finds that further amendment would be futile, Plaintiffs claims are dismissed with prejudice. Melvin, 2016 WL 1254394, at *24 n.19 (granting motion to dismiss with pr ejudice where "[the] [p]laintiff has already had two bites at the apple, and they have proven fruitless" (citation, alterations, and quotation marks omitted)). The Clerk of Court is respectfully directed to terminate the pending Motion, (Dk t. No. 72), and to mail a copy of this Opinion & Order to Plaintiffs address listed on the docket. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/29/2019) (jca) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAKEEL QUADEER WALLER,
Plaintiff,
v.
SHERIFF CARL DUBOIS; COUNTY OF
ORANGE; CORRECT CARE SOLUTIONS;
RN NURSE DIANE; DOCTOR SODEN;
DOCTOR ELLIOT WAGNER; MD OSCAR
JERKINS; and COLONEL KENNETH
DECKER,

No. 16-CV-6697 (KMK)
OPINION & ORDER

Defendants.
Appearances:
Shakeel Quadeer Waller
Attica, NY
Pro se Plaintiff
Jeremy J. Hourihan, Esq.
Paul Andrew Sanders, Esq.
Jonathan H. Bard, Esq.
Barclay Damon LLP
Albany, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Shakeel Quadeer Waller (“Plaintiff”), currently an inmate at Attica
Correctional Facility, brings this Action, pursuant to 42 U.S.C. § 1983, against the County of
Orange, Correct Care Solutions (“Correct Care”), Carl DuBois (“DuBois”), Kenneth Decker
(“Decker”), Dr. Marianne Soden (“Dr. Soden”), Dr. Oscar Jerkins (“Dr. Jerkins”), Dr. Elliot
Wagner (“Dr. Wagner”), and Diane Simpkins (“Simpkins”) (collectively, “Defendants”).
Plaintiff alleges that Defendants violated his rights under the Eighth Amendment by failing to
provide him with proper medical care to treat a knee injury suffered while playing basketball at

Orange County Jail. (See Third Am. Compl. (“TAC”) ¶¶ 14, 19, 31–33 (Dkt. No. 66).) Before
the Court is Defendants’ Motion To Dismiss the Third Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (“Defs.’s Mot.”) (Dkt. No. 72).) 1 For the
reasons to follow, the Motion is granted.
I. Background
A. Factual Background
The following facts are taken from the Third Amended Complaint, and are presumed true
for the purpose of resolving the Motion.
On April 2, 2016, Plaintiff was playing basketball in the yard at Orange County Jail when
he slipped and fell on some loose gravel. (See TAC ¶ 15.) As a result of this fall, Plaintiff “was
in severe immediate pain in his right knee.” (Id.) A “medical code” was called in and officers
and medical staff responded. (Id.) Plaintiff was placed in a wheelchair and “taken to medical.”
(Id.) Plaintiff was unable to bend his right knee. (Id.)
At the medical facility, photos were taken of Plaintiff’s knee, which was “extremely
swollen,” and Plaintiff “was in severe pain.” (Id. ¶ 16.) Plaintiff was not taken to an outside
hospital for emergency x-rays, but was instead brought back to his cell. (Id.) The next day,
Plaintiff was taken back to medical and x-rays were taken of his knee injury, which was now
“extremely swollen” and left him in “excruciating pain.” (Id. ¶ 17.) Plaintiff was then returned
to his cell “without any serious medical attention.” (Id.)
The following day, April 4, 2016, Plaintiff was taken back to medical to be seen by Dr.
Wagner, but Dr. Wagner could not locate Plaintiff’s x-rays. (Id. ¶ 18.) Dr. Wagner “briefly

1

All Defendants except for Dr. Wagner have joined in the Motion. As noted below, Dr.
Wagner has been served in this case, but has yet to appear.
2

examined” Plaintiff’s right knee, and determined that Plaintiff should be taken to an outside
medical facility for further treatment. (Id.) However, rather than send Plaintiff to an outside
hospital immediately, Plaintiff was returned to his cell, “taken off bed rest, and was allowed to
move around the facility again as if he didn’t have a severe knee injury.” (Id.)
Plaintiff alleges that “[b]y this time, Defendants Correct Care Solutions, Dubois,
Simpkins . . . , Wagner, [and] Decker[,] who all have a responsibility as correction facility
employees to provide care, custody, and control to inmates housed in their facility, were aware
that [P]laintiff had a severe knee injury.” (Id. ¶ 19.) Plaintiff alleges that Defendants knew of
Plaintiff’s injury because he “had already taken x-rays and [P]laintiff was constantly
complaining of severe pain,” and that it was “obviously apparent [P]laintiff was in terrible pain
just by observing [his] movements in his day to day interactions.” (Id.) Despite this knowledge,
Plaintiff was not moved from his second-floor cell, requiring him to climb stairs regularly, and
was not placed on bed rest or taken to the emergency room. (Id.)
Three days later, on April 7, 2016, Plaintiff “asked medical if they had found his x-rays
yet” and was “told by Correct Care Solutions staff that they did not know.” (Id. ¶ 20.) On April
8, 2016, Plaintiff “complained of severe pain to a Correct Care Solutions Staff member (nurse)”
and asked whether his x-rays had been found. (Id. ¶ 21.) The nurse informed Plaintiff that “the
right Patellar [sic] came off,” and that she was unaware of any statements by Dr. Wagner
regarding a prior injury suffered by Plaintiff. (Id.) However, she did inform Plaintiff that Dr.
Wagner had been fired. (Id.)
“After several more days of complaining about pain,” Plaintiff returned to the medical
facility to see a nurse on April 11, 2016, who informed Plaintiff that his x-rays showed “an old
right knee fracture.” (Id. ¶ 22.) Plaintiff denied ever hurting his knee before. (Id.) The nurse

3

told Plaintiff that he would be sent to an outside facility, but until then he would have to return to
his normal cell, rather than a “medical unit.” (Id.) However, on both April 16 and April 18,
2016, Plaintiff was informed by “Correct Care Solutions staff” that he was “on the list to see the
outside Doctor,” but that the timing had not yet been determined. (Id.)
Seventeen days after Plaintiff’s initial knee injury, and sixteen days since his x-rays were
taken, Plaintiff was walking with crutches and a knee brace and had still not been moved to a
medical unit or gone to an outside medical facility for treatment. (Id. ¶ 23.) Plaintiff “had asked
to be moved on numerous occasions” but was never moved. (Id.) Plaintiff also “continued to
complain of severe pain indicating whatever treatment he was receiving for pain was not
adequate but [P]laintiff’s pain was ignored.” (Id.)
On April 18, 2016, Plaintiff was in recreation watching fellow inmates play handball.
(Id. ¶ 24.) As he turned to leave, Plaintiff’s crutches “hit the steps” and Plaintiff “flipped over
his crutches” and “fell hard on the concrete.” (Id.) Plaintiff “reported to staff” that his head,
neck, and back hurt from the fall, as well as his left wrist and right knee. (Id.) An ambulance
was called and Plaintiff was taken to an outside hospital emergency room. (Id.) At the
emergency room, an MRI, CAT scan, and x-ray were performed on Plaintiff’s right knee, as well
as his left wrist and right thumb. (Id. ¶ 25.) Plaintiff was prescribed Percocet and his knee was
placed in “a proper knee brace.” (Id.) Plaintiff was told he would need to return to see a
specialist the “next day or day after [at the] latest.” (Id.) Plaintiff was then returned to the jail.
(Id.)
Upon his return, Correct Care “nursing staff and Doctor” told Plaintiff that he was
scheduled to see an outside specialist, but that they would not give him additional Percocet,

4

prescribing him Motrin instead. (Id. ¶ 26.) Plaintiff “remained in severe pain due to lack of pain
medication and proper medical care.” (Id.)
After Plaintiff saw an outside specialist, it was determined that emergency surgery was
required, and that the surgery should happen “in the next 2 days.” (Id. ¶ 27.) However, the
surgery did not occur until April 29, 2016. (Id.) The surgeon told Plaintiff that because of the
delay since the initial injury, “there would very likely be permanent damage and [P]laintiff’s
knee would never be the same again.” (Id.) The surgeon also stated that Plaintiff should have
been brought to the emergency room when the injury first occurred. (Id.)
Both before and after the surgery, “Correct Care Solutions and Dr. Jerkins refused to give
[P]laintiff” the pain medication that was prescribed by the outside specialist, and instead gave
Plaintiff “less effective pain medication that did not help [him].” (Id. ¶ 28.) Plaintiff alleges that
Dr. Soden and Dr. Jenkins knew the pain medication was not working and that Plaintiff was still
in severe pain, “but chose to ignore it.” (Id.) Instead of the prescribed pain medication, Plaintiff
was placed “back on the same meds” that had not worked to reduce his pain, despite Plaintiff’s
continuing complaints of pain. (Id. ¶ 29.)
Plaintiff underwent surgery on his knee on April 29, 2016. (Id. ¶ 27.) The surgery lasted
from 7:30 a.m. to 2:00 p.m. and involved 25 stitches and 25 staples. (Id. ¶ 30.) The hospital
provided instructions on proper care and cleaning of his surgical wound. (Id.) These
instructions were given directly to Dr. Soden by phone. (Id.) Plaintiff alleges that the cleaning
and proper dressing of his wound “was never done [until] Plaintiff had to combat an infection
[because of] [im]proper care.” (Id.)
Plaintiff alleges that Defendants thus “showed deliberate indifference” to his serious
injury and that he “was not adequately treated” for his pain. (Id. ¶ 31.) Plaintiff seeks

5

compensatory damages in the amount of $5,000,000, as well as attorneys’ fees and costs, “and
such additional relief as the Court may deem just and proper.” (Id. ¶ 33.)
B. Procedural Background
Plaintiff filed his original Complaint on August 25, 2016. (See Dkt. No. 2.) Plaintiff’s
request to proceed in forma pauperis was granted on December 7, 2016. (See Dkt. No. 6.) On
December 23, 2016, Chief Judge McMahon issued an order directing Plaintiff to amend his
complaint to add detail to his claims. (See Order to Amend (Dkt. No. 7).) After receiving an
extension to file his Amended Complaint, (see Order (Dkt. No. 10)), Plaintiff filed his Amended
Complaint on March 24, 2017, (see Am. Compl. (Dkt. No. 11)). On June 27, 2017, after being
informed of the need for more detail in the pre-motion letter, (See Order (Dkt. No. 21)), counsel
for all Defendants but Dr. Wagner submitted a letter to the Court requesting permission to file
their Motion To Dismiss on behalf of the appearing Defendants pursuant to Federal Rule of Civil
Procedure 12(b)(6), (see Letter from Jonathan H. Bard, Esq., to Court (Dkt. No. 22)). Plaintiff
thereafter filed a Second Amended Complaint on July 6, 2017, wherein he reasserted the
identical factual scenario alleged in the Amended Complaint. (See Second Am. Compl. (“SAC”)
(Dkt. No. 28).) On July 20, 2017, the Court entered an Order that Defendants could file their
Motion To Dismiss by August 12, 2017, and Plaintiff should respond to any motion by
September 12, 2017. (See Mot. Scheduling Order (Dkt. No. 32).)
On August 9, 2017, Defendants filed their Motion To Dismiss and accompanying papers.
(See Dkt. Nos. 39–42.) Dr. Wagner did not join the Motion, though he was served on August 7,
2017. (See Dkt. No. 43.) Plaintiff filed his opposition to Defendants’ Motion on August 23,
2017, (Dkt. No. 45), and Defendants filed a reply on August 31, 2017, (Dkt. No. 46).

6

While the Motion was pending, Plaintiff filed a letter to the Court seeking appointment of
counsel. (See Letter from Plaintiff to Court (Nov. 22, 2017) (Dkt. No. 49).) Plaintiff then
submitted a formal application requesting counsel in this Action, (see Application for Counsel
(Dkt. No. 50)), which the Court denied without prejudice on January 8, 2018, (see Order (Dkt.
No. 54)).
On March 29, 2018, the Court issued an Opinion and Order granting Defendants’
Motion without prejudice. (See Op. & Order on Defs.’ Mot. To Dismiss (“Opinion”) (Dkt. No.
59).) The Court dismissed Plaintiff’s claims against County of Orange and Correct Care for
failure to sufficiently plead municipal liability as required by Monell v. Department of Social
Services, 436 U.S. 658 (1978). (See Opinion 7–10.) The Court dismissed Plaintiff’s Eighth
Amendment claim against Dr. Soden, Dr. Jerkins, and Nurse Simpkins for failure to state a
deliberate indifference claim, (id. at 13–17), and dismissed Plaintiff’s claims against DuBois and
Decker for failure to allege personal involvement in any constitutional deprivation, (id. at 17–
19). Finally, the Court declined to exercise jurisdiction over any state law claims. (See id. at 19–
20.)
Plaintiff filed the operative Third Amended Complaint on June 5, 2018. (See TAC.)
With leave of the Court, (Dkt. No. 69), Defendants filed the instant Motion To Dismiss on
August 23, 2018, (Defs.’ Mot.; Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (“Defs.’
Mem.”) (Dkt. No. 76)). Plaintiff filed a response on September 13, 2018. (Pl.’s Mem. of Law in
Opp’n to Mot. to Dismiss (“Pl.’s Mem.”) (Dkt. No. 78).) Defendants filed a reply on September
18, 2018. (Defs.’ Reply in Further Supp. of Mot. To Dismiss (“Defs.’ Reply”) (Dkt. No. 79).)

7

II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a
complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint,” id. at
563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its
face,” id. at 570, if a plaintiff has not “nudged [his] claim[] across the line from conceivable to
plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at
678–79 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-

8

pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and “draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T&M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d
306, 317 (S.D.N.Y. 2016) (same). Where, as here, a plaintiff proceeds pro se, the court must
“construe[] [his] [complaint] liberally and interpret[] [it] to raise the strongest arguments that [it]
suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quotation marks omitted).
B. Analysis
Liberally construed, the Third Amended Complaint alleges that the delay in treatment of
Plaintiff’s knee, the decision to give him a different pain medication than prescribed by his
specialist, and the failure to accommodate his injury by moving him to a medical unit from his
regular cell, constituted deliberate indifference in violation of the Eighth Amendment.
1. County of Orange and Correct Care Monell Liability
Defendants argue that Plaintiff has failed to state a claim for municipal liability against
either the County of Orange or Correct Care. (See Defs.’ Mem. 6–8.) As a general rule, private
entities like Correct Care are not liable under § 1983, but “conduct that is formally ‘private’ may

9

become so entwined with governmental policies or so impregnated with a governmental
character as to become subject to the constitutional limitations [p]laced upon state action.” Perez
v. Sugarman, 499 F.2d 761, 764 (2d Cir. 1974) (citation omitted); see also Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996) (“The fact that a municipality is
responsible for providing medical attention to persons held in its custody may make an
independent contractor rendering such services a state actor within the meaning of § 1983 with
respect to the services so provided . . . .” (citing West v. Atkins, 487 U.S. 42, 54 (1988)). For
example, when a private company provides medical care in prisons, it “performs a role
traditionally within the exclusive prerogative of the state and therefore . . . is the functional
equivalent of the municipality.” Bess v. City of New York, No. 11-CV-7604, 2013 WL 1164919,
at *2 (S.D.N.Y. Mar. 19, 2013). Correct Care will therefore be treated as a municipal actor for
the purposes of this Motion. See Grimmett v. Corizon Med. Assocs. of N.Y., No. 15-CV-7351,
2017 WL 2274485, at *5 (S.D.N.Y. May 24, 2017) (“Corizon, although a private entity, is
treated as a municipal actor for purposes of this lawsuit.”).
In Monell, the Supreme Court held that municipalities may be sued under § 1983 “where
. . . the action that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by [the municipality’s]
officers.” 436 U.S. at 690. “It is axiomatic that municipalities cannot be held liable pursuant to
§ 1983 on a respondeat superior theory.” Betts v. Shearman, No. 12-CV-3195, 2013 WL
311124, at *15 (S.D.N.Y. Jan. 24, 2013) (italics omitted) (citing Monell, 436 U.S. at 690). “To
hold a [municipal actor] liable under § 1983 for the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New

10

York, 490 F.3d 189, 195 (2d Cir. 2007) (citation and alteration omitted). There are four ways a
plaintiff may allege a policy or custom:
(1) the existence of a formal policy officially endorsed by the municipality; (2)
actions taken or decisions made by municipal officials with final decision making
authority, which caused the alleged violation of [the] plaintiff’s civil rights; (3) a
practice so persistent and widespread that it constitutes a custom of which
constructive knowledge can be implied on the part of the policymaking officials; or
(4) a failure by policymakers to properly train or supervise their subordinates,
amounting to ‘deliberate indifference’ to the rights of those who come in contact
with the municipal employees.
Betts v. Rodriquez, No. 15-CV-3836, 2016 WL 7192088, at *5 (S.D.N.Y. Dec. 12, 2016)
(citation and quotation marks omitted).
The Court concluded that Plaintiff’s prior complaint failed to allege any formal policy or
practice that could establish municipal liability under Monell. (See Opinion 7–10.) In the Third
Amended Complaint, Plaintiff has not included any new allegations of any formal policy or
practice that would substantiate a claim under Monell as to either the County of Orange or
Correct Care. Plaintiff does not allege the existence of a policy put in place by either the County
of Orange or Correct Care to deny or delay someone being held at Orange County Jail from
receiving medical care. Indeed, Plaintiff does not allege that any of the individual Defendants
works for Correct Care. (See TAC ¶¶ 3–10.) Although he does include several general
allegations against “Correct Care Solutions” and “Correct Care Solutions Staff,” (see, e.g., TAC
¶¶ 19, 20, 21, 23, 26, 28), general allegations that municipal employees violated Plaintiff’s rights
are insufficient because municipal liability cannot be established “on a respondeat superior
theory,” Betts, 2013 WL 311124, at *15; see also Connick v. Thompson, 563 U.S. 51, 60 (2011)
(explaining that municipalities “are not vicariously liable under § 1983 for their employees’
actions”); Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable solely because it
employs a tortfeasor.”). Further, although Plaintiff now identifies all of the individual
11

Defendants as employees of County of Orange, (see TAC ¶¶ 3–10), Plaintiff does not allege that
any of them had “final decision making authority” such that their direct actions could establish
municipal liability, Betts, 2016 WL 7192088, at *5.
Additionally, and as discussed in the Court’s Opinion dismissing Plaintiff’s Second
Amended Complaint, although it is possible that Plaintiff seeks to imply that the lack of
treatment he received was actually part of an implicit and accepted custom at Orange County Jail
or by Correct Care, there are no facts alleged in the Third Amended Complaint that connect his
treatment to a practice or custom at the County of Orange or Correct Care, thus dooming
Plaintiff’s claims. See Thomas v. City of New York, No. 16-CV-2924, 2016 WL 3951094, at *2
(E.D.N.Y. July 20, 2016) (granting a motion to dismiss where the “plaintiff [did] not allege . . . a
policy officially adopted by the City of New York and a causal connection between a policy and
the deprivation of [the] plaintiff’s constitutional rights”); Melvin v. County of Westchester, No.
14-CV-2995, 2016 WL 1254394, at *15 (S.D.N.Y. Mar. 29, 2016) (finding allegations that
Correct Care, among other defendants, “acted pursuant to a policy or custom, without any facts
suggesting the policy’s existence, are plainly insufficient” (citation, alterations, and quotation
marks omitted)); Washington v. Westchester Cty. Dep’t of Correction, No. 13-CV-5322, 2015
WL 408941, at *10 (S.D.N.Y. Jan. 30, 2015) (“[E]ven had [the plaintiff] alleged a viable claim
for deliberate indifference as to any of the individual defendants, he has failed to allege any facts
that would support a Monell policy or practice claim against either [Correct Care or Westchester
County], necessitating dismissal.”).
Finally, Plaintiff includes no allegations suggesting that a failure to train employees
caused his injuries. See Khanukayev v. City of New York, No. 09-CV-6175, 2012 WL 3538729,
at *4 (S.D.N.Y. Aug.13, 2012) (dismissing a failure to train claim where “the complaint [does

12

not] . . . allege . . . the manner in which there was a failure to train”); Araujo v. City of New York,
No. 08-CV-3715, 2010 WL 1049583, at *9 (E.D.N.Y. Mar. 19, 2010) (dismissing failure to train
claim where the plaintiff alleged “no facts to indicate any deliberate choice by municipal
policymakers to engage in unconstitutional conduct”). Accordingly, Plaintiff has failed to
establish municipal liability as to either the County of Orange or Correct Care.
2. Eighth Amendment Claims as to the Individual Defendants
Plaintiff alleges that Defendants “showed deliberate indifference when [he] continued to
complain of serious pain for a serious physical injury and was not adequately treated for his . . .
pain.” (TAC ¶ 31.) Defendants argue that Plaintiff’s claims against Simpkins, Dubois, and
Decker must be dismissed for failure to allege personal involvement. (Defs.’ Mem. 8–10.)
Defendants further argue that Plaintiff has failed to state a claim for deliberate indifference to
any serious medical need with respect to any of the Defendants. (Id. at 10–18.)
a. Standard of Review
“The Eighth Amendment forbids ‘deliberate indifference to serious medical needs of
prisoners.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A convicted prisoner’s claim of deliberate
indifference to his medical needs by those overseeing his care is analyzed under the Eighth
Amendment because it is an allegation that the “conditions of confinement [were] a form of
punishment” and thus is a “violation of [the] Eighth Amendment right to be free from cruel and
unusual punishments.” 2 Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). Here, too, the

2

On February 6, 2018, Defendants provided the Court with a Certificate of Disposition
confirming that Plaintiff was convicted on March 22, 2016, thus making him a convicted
prisoner at the time of the incident occurring on April 2, 2016. (Letter from Jonathan H. Bard,
Esq., to the Court (“Bard Letter”) (Dkt. No. 55).)
13

inquiry proceeds by two steps. “First, the plaintiff must establish that he suffered a sufficiently
serious constitutional deprivation. Second, the plaintiff must demonstrate that the defendant
acted with deliberate indifference.” Feliciano v. Anderson, No. 15-CV-4106, 2017 WL
1189747, at *8 (S.D.N.Y. Mar. 30, 2017).
“The first requirement is objective: the alleged deprivation of adequate medical care must
be sufficiently serious.” Spavone, 719 F.3d at 138 (quotation marks omitted). Analyzing this
objective requirement involves two inquiries: “[t]he first inquiry is whether the prisoner was
actually deprived of adequate medical care,” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006), and the second “asks whether the inadequacy in medical care is sufficiently serious. This
inquiry requires the [C]ourt to examine how the offending conduct is inadequate and what harm,
if any, the inadequacy has caused or will likely cause the prisoner,” id. at 280. To meet the
objective requirement, “the inmate must show that the conditions, either alone or in combination,
pose an unreasonable risk of serious damage to his health.” Walker v. Schult, 717 F.3d 119, 125
(2d Cir. 2013). “There is no settled, precise metric to guide a court in its estimation of the
seriousness of a prisoner’s medical condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir.
2003); Smith v. Outlaw, No. 15-CV-9961, 2017 WL 4417699, at *2 (S.D.N.Y. Sept. 30, 2017)
(same). Nevertheless, the Second Circuit has suggested the following non-exhaustive list of
factors to consider when evaluating an inmate’s medical condition: “(1) whether a reasonable
doctor or patient would perceive the medical need in question as ‘important and worthy of
comment or treatment,’ (2) whether the medical condition significantly affects daily activities,
and (3) ‘the existence of chronic and substantial pain.’” Brock, 315 F.3d at 162 (quoting Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).

14

“The second requirement is subjective: the charged officials must be subjectively reckless
in their denial of medical care.” Spavone, 719 F.3d at 138. Under the second prong, the
defendant must “appreciate the risk to which a prisoner was subjected,” and had a “subjective
awareness of the harmfulness associated with those conditions to be liable for meting out that
punishment.” Darnell, 849 F.3d at 35; see also Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014)
(“Deliberate indifference is a mental state equivalent to subjective recklessness,” and it “requires
that the charged official act or fail to act while actually aware of a substantial risk that serious
inmate harm will result.” (quotation marks omitted)). In other words, “[i]n medical-treatment
cases not arising from emergency situations, the official’s state of mind need not reach the level
of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official
acted with deliberate indifference to inmate health.” Nielsen, 746 F.3d at 63 (quotation marks
omitted). “[M]ere negligence” is not enough to state a claim for deliberate indifference. Walker,
717 F.3d at 125 (quotation marks omitted); see also Vail v. City of New York, 68 F. Supp. 3d
412, 424 (S.D.N.Y. 2014) (same). Relatedly, “mere disagreement over the proper treatment does
not create a constitutional claim,” and accordingly, “[s]o long as the treatment given is adequate,
the fact that a prisoner might prefer a different treatment does not give rise to an Eighth
Amendment violation.” Chance, 143 F.3d at 703.
b. Nurse Simpkins, Sheriff DuBois, and Colonel Decker
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013) (citations omitted). To establish personal involvement, a plaintiff must show 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
15

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.
Id. at 139 (citation, italics, and quotation marks omitted). In other words, “[b]ecause vicarious
liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676. Therefore, Plaintiff must plausibly allege that Defendants’ actions fall into one
of the five categories identified above. See Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL
365493, at *4 (S.D.N.Y. Jan. 24, 2017) (holding that the five categories “still control[] with
respect to claims that do not require a showing of discriminatory intent” post-Iqbal).
Plaintiff makes no allegations regarding any conduct by Simpkins, DuBois, and Decker
anywhere in the Complaint. Plaintiff alleges only that Simpkins, DuBois, and Decker, along
with all other Defendants, “have a responsibility as correctional facility employees to provide
care, custody, and control to inmates,” and that were “aware that [P]laintiff had a severe knee
injury” because he had already had x-rays taken and was constantly complaining of severe pain.
(TAC ¶ 19.) Plaintiff also alleges that “17 days . . . elapsed” between when Simpkins, DuBois,
and Decker, along with all other Defendants “had taken x-rays of [P]laintiff’s right knee and
determined that either [P]laintiff’s ‘right patellar [sic] had come off’ or that [P]laintiff had a
‘right knee fracture.’” (Id. ¶ 23.)
Plaintiff’s general allegations that all Defendants were aware of his serious medical needs
and ignored them, cannot establish personal involvement in a violation of Plaintiff’s
constitutional rights. See Tracey v. City of Geneva, No. 17-CV-6567, 2018 WL 1509355, at *3
(W.D.N.Y. Mar. 26, 2018) (“A complaint that lumps all the defendants together . . . and provides
16

no factual basis to distinguish their conduct fails to satisfy [Rule 8].” (citations, quotation marks,
and alterations omitted)); Leneau v. Ponte, No. 16-CV-776, 2018 WL 566456, at *15 (S.D.N.Y.
Jan. 25, 2018) (“[C]omplaints that rely on group pleading and fail to differentiate as to which
defendant was involved in the alleged unlawful conduct are insufficient to state a claim.”
(citations and quotation marks omitted)). Without any allegations that Simpkins, DuBois, or
Decker directly participated in Plaintiff’s treatment or otherwise directly permitted a violation of
his constitutional rights, Plaintiff’s claims against them must fail. See Falls v. Pitt, No. 16-CV8863, 2018 WL 3768036, at *6 (S.D.N.Y. Aug. 8, 2018) (holding personal involvement not
established where the plaintiff failed to allege the defendants were “present” for the alleged
violation or “participated directly” in or “somehow permitted” the alleged violation (citation
omitted)); Lara-Grimaldi v. County of Putnam, No. 17-CV-622, 2018 WL 1626348, at *11
(S.D.N.Y. Mar. 29, 2018) (holding personal involvement not established where the “[c]omplaint
contain[ed] no allegations whatsoever that [the defendant] was involved in . . . or somehow
permitted” the violation).
Additionally, even if Plaintiff’s conclusory allegations were sufficient to establish that
Simpkins, DuBois, and Decker were aware that Plaintiff suffered a serious injury, there are no
allegations that they had any involvement in Plaintiff’s treatment that could establish they were
deliberately indifferent to his medical needs. See Burroughs v. Mitchell, 325 F. Supp. 3d 249,
274 (N.D.N.Y. 2018) (“[The] [p]laintiff’s conclusory allegation that [the defendant] refused to
treat him or send him to a hospital fails to plausibly suggest that the defendant was deliberately
indifferent to any serious medical need.”); Jimenez v. Sommer, No. 14-CV-5166, 2017 WL
3268859, at *8 (S.D.N.Y. July 28, 2017) (holding “conclusory assertion” that the defendant “was
aware of [the plaintiff’s injury] but failed to recommend proper medical treatment” fails to

17

“indicate that [the defendant] had the requisite culpable state of mind to satisfy the subjective
prong of a deliberate[] indifference claim” (citation omitted)); Melvin, 2016 WL 1254394, at *10
(collecting cases for the proposition that “[c]onclusory allegations that medical staff defendants
were aware of a [prisoner’s] medical needs and failed to provide adequate care are generally
insufficient to state an Eighth Amendment claim of inadequate medical care” (citation omitted)).
Finally, as discussed in the Court’s Opinion, to the extent Plaintiff seeks to hold DuBois and
Decker liable because they held positions of authority, mere “linkage in the prison chain of
command” does not suffice to establish personal involvement. See Richardson v. Goord, 347
F.3d 431, 435 (2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)); see
also Keitt v. City of N.Y., 882 F. Supp. 2d 412, 444 (S.D.N.Y. 2011) (“Mere ‘linkage in the
prison chain of command is insufficient to implicate a state commissioner of corrections or a
prison superintendent in a § 1983 claim.’” (quoting Richardson v. Goord, 347 F.3d 431, 435 (2d
Cir. 2003))). Plaintiff’s claims against Simpkins, DuBois, and Decker are therefore dismissed.
c. Dr. Jerkins and Dr. Soden
The Court found that Plaintiff’s prior compliant failed to state a deliberate indifference
claim with respect to the delay in his surgery and treatment while he awaited surgery. (See
Opinion 13–14.) The Court found that based on Plaintiff’s own allegations, “Plaintiff’s medical
needs were not ignored,” as he “was seen by Dr. Wagner and Dr. Jerkins, as well as numerous
unnamed nurses and doctors, who determined that the use of Motrin, combined with bed rest,
crutches, and a knee brace, would be appropriate to treat Plaintiff’s knee injury,” and that
“Plaintiff’s request to see an outside doctor for further evaluation was not denied, and indeed was
facilitated within less than three weeks.” (Opinion 13–14.) The Court also held that the “alleged
delay in scheduling surgery was minimal, with less than one month transpiring between the

18

injury and the surgery,” during which time Plaintiff’s doctors “were exploring other medical
treatments, prescribing him pain medication, and allowing for [him] to have access to medical
care.” (Id. at 15.) Finally, the Court concluded that to the extent Plaintiff sought to establish a
deliberate indifference claim based on his treatment following surgery, Plaintiff’s allegations that
he was prescribed a different pain medication than the one recommended by his specialist, and
that his wound was not properly cleaned and dressed, do not establish an Eighth Amendment
violation. (Id. at 16–17.)
Plaintiff’s allegations against Dr. Soden and Dr. Jerkins regarding treatment of his injury,
scheduling of his surgery, and aftercare following his surgery are substantively identical to his
prior complaint. The Court expressly considered Plaintiff’s general allegations that his surgery
was improperly delayed, (see Opinion 14–15; TAC ¶¶ 23, 27), that the prison medical staff,
including Dr. Jerkins and Dr. Soden, prescribed him different pain medication than that
recommended by his specialist despite the fact that it did not work as well, (see Opinion 15–17;
TAC ¶ 28), and that Dr. Soden failed to properly treat his wound after surgery, resulting in
infection, (see Opinion 16; TAC ¶¶ 30–31). (See also Opinion 2–3.) To the extent Plaintiff
includes additional allegations regarding the care he received, they are directed at “medical
staff,” (TAC ¶ 15), or “Correct Care Solutions staff,” (id. ¶¶ 20–22), rather than at any specific
Defendant. None of these general allegations can be attributed to Dr. Soden or Dr. Jerkins,
particularly those that specifically allege conduct by Correct Care employees, because Plaintiff
alleges that Dr. Soden and Dr. Jerkins are employed by County of Orange. (TAC ¶¶ 7, 9.)
Plaintiff does not include any new facts specifically attributable to Dr. Soden and Dr. Jerkins
that could alter the prior conclusion that these allegations failed to state a claim for deliberate
indifference. See Williams v. Williams, No. 13-CV-3154, 2015 WL 568842, at *5 (S.D.N.Y.

19

Feb. 11, 2015) (“[C]ourts have repeatedly declined to find that a medical provider was
deliberately indifferent to an inmate’s medical needs” when a plaintiff challenges “the type and
quantity of pain medication.”); Thomas v. Westchester County, No. 12-CV-6718, 2013 WL
3357171, at *5 (S.D.N.Y. July 3, 2013) (“While not changing [the plaintiff’s] bandages daily
may potentially amount to negligence, nothing alleged in the [plaintiff’s papers] makes it
plausible that [the defendants] knew of and consciously disregarded an excessive risk to [the]
[p]laintiff’s health and safety.”); Williams v. Smith, No. 02-CV-4558, 2009 WL 2431948, at *9
(S.D.N.Y. Aug. 10, 2009) (“[A] prison doctor who relies on his medical judgment to modify or
disagree with an outside specialist’s recommendation of how to treat an inmate is not said to act
with deliberate indifference.”), reconsideration denied, 2009 WL 5103230 (S.D.N.Y. Dec. 23,
2009).
Plaintiff arguably asserts one new Eighth Amendment claim based on failure to reassign
him to a medical cell that would prevent him from having to use stairs and walk long distances.
(TAC ¶¶ 23, 31.) However, Plaintiff has not alleged the personal involvement of any Defendant
in the decision not to move him, or alleged that any individual Defendant had the authority to
reassign him but chose not to, or that he asked any specific Defendant to move him to a different
cell and was refused. Because Plaintiff has not alleged any Defendant’s personal involvement in
his cell assignment, this claim must also fail. See Falls, 2018 WL 3768036, at *6 (holding
personal involvement not established where the plaintiff failed to allege the defendants were
“present” for the alleged violation or “participated directly” in or “somehow permitted” the
alleged violation (citation omitted)); Lara-Grimaldi, 2018 WL 1626348, at *11 (holding
personal involvement not established where the “[c]omplaint contain[ed] no allegations
whatsoever that [the defendant] was involved in . . . or somehow permitted” the violation).

20

Accordingly, Plaintiff’s Eighth Amendment claims as to Dr. Soden and Dr. Jerkins are
dismissed.
3. State Law Claims as to All Moving Defendants
Defendants contend that if the Third Amended Complaint can be construed as raising any
state law claims, those claims should be dismissed because Plaintiff has not complied with the
notice-of-claim requirements. (See Defs.’ Mem. 18–21.) However, the Court does not need to
reach the merits of these claims because it declines to exercise supplemental jurisdiction over
any state law claims.
Federal district courts have supplemental jurisdiction over state law claims “that are so
related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
“Federal courts may exercise jurisdiction over related state-law claims when an independent
basis of subject-matter jurisdiction exists.” Chenensky v. N.Y. Life Ins. Co., 942 F. Supp. 2d 388,
391 (S.D.N.Y. 2013) (citing Montefiore Med. Ctr. v. Teamsters Local, 642 F.3d 321, 332 (2d
Cir. 2011)). The Supreme Court has held that “if the federal claims [in an action] are dismissed
before trial . . . the state claims should be dismissed as well,” United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966), but “[t]he decision whether to exercise supplemental
jurisdiction is entirely within the court’s discretion and is not a litigant’s right,” Chenensky, 942
F. Supp. 2d at 391 (citations and quotation marks omitted). “District courts weigh several factors
in determining whether to exercise supplemental jurisdiction, including ‘the values of judicial
economy, convenience, fairness and comity.’” Id. (quoting Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988)). “In weighing these values, courts look to ‘the circumstances of each

21

particular case."' Id. at 391-92 (alteration omitted) (quoting City of Chicago v. Int '! Coll. of

Surgeons, 522 U.S. 156, 173 (1997)).
Because the Court dismisses all federal claims against the moving Defendants, the Court
declines to exercise supplemental jurisdiction over any possible state law claims against those
Defendants at this time.
III. Conclusion
For the reasons stated above, Defendants' Motion To Dismiss is granted. Because this is
the second adjudication of Plaintiffs claims on the merits and he has failed to state a claim, the
dismissal is with prejudice. Even pro se plaintiffs are not entitled to file an amended complaint if
the complaint "contains substantive problems such that an amended pleading would be futile. "

Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3,
2012), aff'd, 523 F. App' x 32 (2d Cir. 2013). Because the Court finds that further amendment
would be futile, Plaintiffs claims are dismissed with prejudice. Melvin , 2016 WL 1254394, at
*24 n.19 (granting motion to dismiss with prejudice where "[the] [p]laintiffhas already had two
bites at the apple, and they have proven fruitless" (citation, alterations, and quotation marks
omitted)).
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.
72), and to mail a copy of this Opinion & Order to Plaintiffs address listed on the docket.
SO ORDERED.
Dated: Marcl0 '1 , 2019
White Plains, New York
KE
ETH M. KARAS
UNITED STA TES DISTRICT JUDGE

22