Michael v. Perez et al
OPINION AND ORDER re: 17 MOTION to Dismiss the Amended Complaint. filed by Furcus, Ada Perez, Edwin Quinones, Betty Williams. Defendants' motion to dismiss the amended complaint is GRANTED. The Clerk is instructed to terminate the motion (Doc. #17) and close this case. 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). So Ordered. (Signed by Judge Vincent L. Briccetti on 12/1/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADA PEREZ, OFFICER BETTY WILLIAMS,
NURSE FURCUS, and PA EDWIN
QUINONES, sued in their official and
OPINION AND ORDER
16 CV 7850 (VB)
Plaintiff Damien Michael, proceeding pro se and in forma pauperis, brings this action
under 42 U.S.C. § 1983, alleging defendants Ada Perez, Betty Williams, Barbra Furco, 1 and
Edwin Quinones violated his constitutional right to privacy.
Now pending is defendants’ unopposed motion to dismiss the amended complaint
pursuant to Rule 12(b)(6). (Doc. #17).
For the reasons set forth below, defendants’ motion is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
In deciding the pending motion to dismiss, the Court accepts as true all well-pleaded
factual allegations in the amended complaint and draws all reasonable inferences in plaintiff’s
Plaintiff was an inmate at Downstate Correctional Facility (“Downstate”) at all times
relevant to the amended complaint.
Plaintiff incorrectly identified Barbra Furco as “Nurse Furcus” in the complaint.
On July 7, 2016, plaintiff experienced chest pain. Defendant Williams, a corrections
officer, escorted him to the infirmary for an emergency sick call. Defendant Quinones, a
physician’s assistant at Downstate, performed an EKG on plaintiff and found abnormal results.
Quinones, while treating plaintiff, asked him whether he had begun treatment for his hepatitis C
and HIV. Williams and another corrections officer were present when Quinones asked about
plaintiff’s medical conditions.
Plaintiff was taken by ambulance to an off-site hospital. He eventually was cleared and
returned to Downstate. Upon returning to Downstate, plaintiff notified defendant Furco, a nurse
there, that he had missed part of his treatment for a chronic illness. Nurse Furco, in the presence
of Officer Williams and other inmates, replied to plaintiff that he would see the doctor in the
morning and could receive “medication for his HIV” then. (Am. Compl. ¶ 12). Officer Williams
said that Nurse Furco should provide plaintiff with his medication immediately, but “she 2 made
it clear that she wanted [plaintiff] to remain a distance from her and the other officer, as [he had]
HIV and Hepatitis C.” (Am. Compl. ¶ 13).
Plaintiff filed a grievance about the disclosure of his medical information and notified
defendant Superintendent Ada Perez, but received no resolution.
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
It is ambiguous whether “she” refers to Officer Williams or Nurse Furco.
to the assumption of truth and are thus not sufficient 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. 544,
564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 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
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 marks and citation omitted). “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 marks and citation omitted). Nor may the Court “invent factual
allegations” plaintiff has not pleaded. Id.
The Motion to Dismiss
Defendants assert that any disclosure of protected medical information did not violate
plaintiff’s right to privacy because the disclosure occurred in the context of medical treatment of
an inmate, a legitimate penological interest.
The Court agrees.
Although not explicit in the Constitution, “the [Supreme] Court has recognized that a
right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the
Constitution.” Roe v. Wade, 410 U.S. 113, 152 (1973). This right only applies to “personal
rights that can be deemed fundamental or implicit in the concept of ordered liberty.” Id. (internal
quotation marks omitted). Within this right to privacy, the Supreme Court has identified an
“individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589,
“Individuals who are infected with the HIV virus clearly possess a constitutional right to
privacy regarding their condition.” 3 Doe v. City of N.Y., 15 F.3d 264, 267 (2d Cir. 1994).
Generally, intrusions into inmates’ constitutional rights are only valid if they are reasonably
related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987). Thus,
prison officials can disclose constitutionally protected medical information “only to the extent
that their actions are reasonably related to legitimate penological interests.” Powell v. Schriver,
175 F.3d 107, 112 (2d Cir. 1999) (internal quotation marks omitted). “[G]ratuitous disclosure of
an inmate’s confidential medical information as humor or gossip . . . is not reasonably related to
a legitimate penological interest.” Id. (emphasis in original).
The Court addresses each defendant in turn.
Plaintiff alleges his right to privacy was violated when, while in the presence of two
corrections officers, Physician’s Assistant Quinones asked plaintiff about his HIV and hepatitis
It is not clear whether the right to privacy includes disclosure of hepatitis C status. See
Alsaifullah v. Furco, 2013 WL 3972514, at *7–*8 (S.D.N.Y. Aug. 2, 2013) (discussing which
medical conditions warrant a constitutional right to privacy). Because the Court finds the
disclosure of medical information in this case is not a constitutional violation, the Court does not
reach this issue.
C treatment. This interaction occurred in the infirmary, while plaintiff was in pain, and after
plaintiff’s EKG returned abnormal results. The facts as alleged show Quinones disclosed the
medical information in the course of providing emergency medical treatment to an inmate, a
legitimate penological interest.
To the extent that plaintiff alleges such inquiry should have been made without
corrections officers present, courts in this Circuit have found having officers present during
medical treatment serves the legitimate penological interest of protecting civilian staff from the
threat of violence. See, e.g., Murray v. RC II Nephew, 2015 WL 1730178, at *6 (N.D.N.Y. Apr.
14, 2015). 4
Accordingly, plaintiff has failed to state a claim against defendant Quinones.
Plaintiff alleges Nurse Furco violated his right to privacy when she told him, in front of
other inmates and a corrections officer, that he would resume his HIV medication when he met
with the doctor the next morning.
As discussed above, Furco’s disclosure reasonably related to the legitimate penological
interest of inmate treatment. Plaintiff initiated the disclosure by asking about his medication and
Furco gave a fulsome answer. Furco’s response referring to the medication as one for HIV,
although possibly insensitive, does not rise to the level of a constitutional violation because her
disclosure was made in the course of providing plaintiff with medical care and not to ridicule or
harass plaintiff or to otherwise make light of his conditions.
Accordingly, plaintiff has failed to state a claim against defendant Furco.
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).
Although Officer Williams was allegedly present when other prison employees disclosed
plaintiff’s medical information, plaintiff does not allege that Williams herself further disclosed
this information to anyone else. Even construing plaintiff’s ambiguous allegation to imply that
Williams asked plaintiff to “remain a distance from her and the other officer, as [he had] HIV
and Hepatitis C” (Am. Compl. ¶ 13), there is no allegation that anyone else who did not already
know plaintiff’s health status heard that statement.
Thus, plaintiff has failed to state a claim against defendant Williams.
Plaintiff has failed to allege Superintendent Perez was personally involved in the conduct
of which he complains and thus has failed to state a claim against Perez.
“[I]n 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). Supervisor
liability can be premised on allegations that “the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong” or “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).
Here, plaintiff alleged superintendent Perez was informed of his grievance. However, the
claim against Perez fails because, as explained above, the disclosures at issue did not violate
plaintiff’s constitutional rights. Superintendent Perez cannot be held liable for failing to remedy
a constitutional violation which never occurred. See Ramos v. Artuz, 2003 WL 342347, at *11
(S.D.N.Y. Feb. 14, 2003) (“[P]laintiff’s claim of supervisory liability cannot survive here
because . . . there was no constitutional violation.”).
Accordingly, plaintiff’s Section 1983 claim for violation of his constitutional right to
privacy is dismissed as to all defendants.
Leave to Amend
The Court should freely grant leave to amend a complaint “when justice so requires.”
Fed. R. Civ. P. 15(a). Moreover, when a pro se plaintiff fails to state a cause of action, the Court
“should not dismiss without granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (internal quotation marks and citation omitted).
Here, plaintiff has been given ample opportunity to defend his complaint or show he has
a valid claim. By Order dated October 17, 2016, the Court ordered plaintiff to file an amended
complaint to add the identity of two John Doe defendants. (Doc. #6). Plaintiff filed such an
amended complaint. (Doc. #8). In response to defendants’ motion to dismiss the amended
complaint (Doc. #17), plaintiff twice requested, and was granted, an extension of time to file his
opposition to the motion. (Docs. ##20, 21). The Court sua sponte granted a final extension of
time to oppose the instant motion. (Doc. #27).
Despite these extensions, plaintiff did not oppose defendants’ motion to dismiss the
amended complaint. The Court has already given plaintiff a reasonable opportunity to show he
has a valid claim, or explain deficiencies in the motion to dismiss, but plaintiff failed to do so in
Furthermore, even a liberal reading of the amended complaint does not suggest that
plaintiff would be able to state a valid claim if given another opportunity to do so. Because all
disclosures occurred in furtherance of providing plaintiff medical treatment, a legitimate
penological interest, any additional amendment would be futile.
Accordingly, the Court declines to grant plaintiff leave to amend.
Defendants’ motion to dismiss the amended complaint is GRANTED.
The Clerk is instructed to terminate the motion (Doc. #17) and close this case.
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 1, 2017
White Plains, NY
Vincent L. Briccetti
United States District Judge
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