Edwards v. Feldman et al

Filing 67

MEMO ENDORSED ORDER terminating 55 Motion to Dismiss; terminating 63 Motion for Leave to File Document. ENDORSEMENT: On December 27, 2017, Theodore Brandon Edwards ("Plaintiff") filed a Complaint against Dr. Feldman, R.N. K. Georgy, Dr. John Doe, Orange County Medical Regional, and Orange County ("Defendants"). (ECF No. 2.) On February 10, 2020, the Court dismissed Plaintiff's complaint and allowed him to file an Amended Complaint as to any claims that were dis missed without prejudice. (ECF No. 53.) Plaintiff filed an Amended Complaint, dated March 17, 2020, against Dr. Feldman and Orange Regional Medical Center. (ECF No. 54.) On May 4, 2020, Defendant Feldman filed a motion to dismiss the Amended Compl aint. (ECF No. 55.) On May 5, 2020, Defendant Feldman withdrew the motion and instead requested a pre-motion conference. (ECF No. 59; ECF No. 61). The request for a pre-motion conference was served on Defendant on May 5, 2020. (ECF No. 60.) On May 6, 2020, Defendant Orange Regional Medical Center filed a letter motion requesting leave to file a pre-answer motion to dismiss the Amended Complaint. (ECF No. 63.) The request for leave to file a pre-answer motion to dismiss was served on Defendan t on May 7, 2020. (ECF No. 64.) On November 12, 2020, Plaintiff wrote to the Court inquiring as to the status of the case and requesting a conference. (ECF No. 66.) The Court received no correspondence from Plaintiff regarding Defendants' pre -motion requests. The Court has reviewed the correspondence and waives the pre-motion conference requirement. Defendants are permitted to file their motions to dismiss with a briefing schedule as follows: moving papers are to be served (not filed) on December 21, 2020; Plaintiff's opposition papers are to be served (not filed) on February 8, 2021; Defendants' replies are to be served on February 22, 2021. All motion documents shall be filed on the reply date, February 22, 2021. The parties shall mail two courtesy copies of their respective documents to Chambers as the documents are served. As long as the Court's Emergency Individual Rules and Practices remain in effect, parties are additionally directed to email courte sy copies to Chambers. The Clerk of the Court is kindly directed to terminate the motions at ECF No. 55 and 63, mail a copy of this endorsement to Plaintiff, and show service on the docket. So Ordered. (Signed by Judge Nelson Stephen Roman on 11/18/20) (yv) Transmission to Docket Assistant Clerk for processing.

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MEMORANDUM ENDORSEMENT

Edwards v. Feldman et al

11/18/2020

17-cv-10116 (NSR)
On December 27, 2017, Theodore Brandon Edwards (“Plaintiff”) filed a Complaint against Dr.
Feldman, R.N. K. Georgy, Dr. John Doe, Orange County Medical Regional, and Orange County
(“Defendants”). (ECF No. 2.) On February 10, 2020, the Court dismissed Plaintiff’s complaint and
allowed him to file an Amended Complaint as to any claims that were dismissed without prejudice.
(ECF No. 53.) Plaintiff filed an Amended Complaint, dated March 17, 2020, against Dr. Feldman
and Orange Regional Medical Center. (ECF No. 54.)
On May 4, 2020, Defendant Feldman filed a motion to dismiss the Amended Complaint. (ECF No.
55.) On May 5, 2020, Defendant Feldman withdrew the motion and instead requested a pre-motion
conference. (ECF No. 59; ECF No. 61). The request for a pre-motion conference was served on
Defendant on May 5, 2020. (ECF No. 60.)
On May 6, 2020, Defendant Orange Regional Medical Center filed a letter motion requesting leave
to file a pre-answer motion to dismiss the Amended Complaint. (ECF No. 63.) The request for
leave to file a pre-answer motion to dismiss was served on Defendant on May 7, 2020. (ECF No.
64.)
On November 12, 2020, Plaintiff wrote to the Court inquiring as to the status of the case and
requesting a conference. (ECF No. 66.) The Court received no correspondence from Plaintiff
regarding Defendants’ pre-motion requests.
The Court has reviewed the correspondence and waives the pre-motion conference requirement.
Defendants are permitted to file their motions to dismiss with a briefing schedule as follows:
moving papers are to be served (not filed) on December 21, 2020; Plaintiff’s opposition papers
are to be served (not filed) on February 8, 2021; Defendants’ replies are to be served on February
22, 2021.
All motion documents shall be filed on the reply date, February 22, 2021. The parties shall mail
two courtesy copies of their respective documents to Chambers as the documents are served. As
long as the Court’s Emergency Individual Rules and Practices remain in effect, parties are
additionally directed to email courtesy copies to Chambers. The Clerk of the Court is kindly
directed to terminate the motions at ECF No. 55 and 63, mail a copy of this endorsement to
Plaintiff, and show service on the docket.
Dated: November 18, 2020
White Plains, NY

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Case 7-17-cv-10116-NSR Document 55 Filed in NYSD on 05/04/20202 ofPage 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THEODORE BRANDON EDWARDS,
Plaintiff,
v.
ORANGE COUNTY; DR. FELDMAN; ORANGE
REGIONAL MEDICAL CENTER,

NOTICE OF MOTION
TO DISMISS THE AMENDED
COMPLAINT
Case No. 7:17-cv-10116

Defendants.

PLEASE TAKE NOTICE:
MOTION BY:

BARCLAY DAMON, LLP
Attorneys for Defendant Dr. Sorel Feldman
Office and Post Office Address
100 Chestnut Street, Suite 2000
Rochester, New York 14604

DATE, TIME AND PLACE OF HEARING:

, 2020 at ____am/pm
Hon. Nelson S. Roman
United States District Court Judge
United States District Court
Southern District of New York
Federal Building and US Courthouse
300 Quarropas St.
White Plains, NY 10601

SUPPORTING PAPERS:

Declaration of Paul A. Sanders, dated May 4,
2020 with attached exhibits and a
Memorandum of Law dated May 4, 2020.

RELIEF DEMANDED:

An Order dismissing Plaintiff’s Amended
Complaint pursuant to Fed. R. Civ. P. Rule
12(b)(6) with respect to defendants Sorel
Feldman, M.D., and for such other, further,
and additional relief as this Court deems just
and proper.

GROUNDS FOR RELIEF:

Plaintiff’s Amended Complaint fails to state
a cause of action upon which relief can be
granted pursuant to Fed. R. Civ. P. Rule
12(b)(6).

20444740.1

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The Amended Complaint fails to state a cause
of action for deliberate indifference to a
serious medical need, pursuant to 42. U.S.C.
§ 1983.
The Amended Complaint fails to allege any
State law claims.
DEMAND FOR ANSWERING PAPERS:

Pursuant to Local Civil Rule 6.1, any
opposing
affidavits
and
answering
memoranda shall be served within fourteen
(14) days after service of the moving papers,
and any reply affidavits and memoranda of
law shall be served within seven (7) days
after service of the answering papers. In
computing periods of days, refer to Fed. R.
Civ. Pro. 6 and Local Rule 6.4.
Note that the failure to respond to this motion
may result in dismissal of the Amended
Complaint and termination of this action.

DATED:

May 4, 2020

BARCLAY DAMON LLP

By:

s/ Paul A. Sanders
Paul A. Sanders

Attorneys for Defendant Dr. Sorel Feldman
Office and Post Office Address
100 Chestnut Street, Suite 2000
Rochester, New York 14604
Telephone: [phone]
E-mail: [e-mail]
TO:

Theodore Brandon Edwards
Plaintiff Pro Se
DIN No. 17A5263
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562-5442

2
20444740.1

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Case 7-17-cv-10116-NSR Document 63 Filed in NYSD on 05/06/20204 ofPage 1 of 2

ONE CORWIN COURT
POST OFFICE BOX 1479
NEWBURGH, NEW YORK 12550

TEL [phone]
FAX [phone]
TOLL FREE 1-800-344-5655

Writer’s Direct No.
[phone]

E-MAIL: [e-mail]
(FAX AND E-MAIL SERVICE NOT ACCEPTED)

WWW.CMRLAW.COM

Writer’s E-Mail
[e-mail]

May 6, 2020
Via ECF
Hon. Nelson S. Roman, US District Judg
United States District Court
Southern District of New York
The Hon. Charles L. Brieant Jr.
Federal Building and United States Courthouse
300 Quarropas St.
White Plains, NY 10601-4150
RE:

Theodore Brandon Edwards v. Orange County, et al.
17-cv-10116
Our File No.: 05579-64915

Dear Hon. Sir:
This office represents Orange Regional Medical Center ("ORMC") in the abovereferenced matter. In accordance with Your Honor's Individual Rules of Practice, please allow
this letter to serve as ORMC's request for permission to file a pre-answer motion to dismiss
Plaintiff's amended complaint.
On or about March 13, 2019, ORMC moved to dismiss Plaintiff’s original complaint. By
Decision and Order, dated February 10, 2020, Your Honor granted ORMC’s motion to dismiss.
Plaintiff served an amended complaint on or about March 17, 2020.
Pro se Plaintiff, Theodore Edwards, commenced this action under 42 U.S.C. §1983
seeking to recover damages based on alleged violations of his constitutional rights. With respect
to ORMC, Plaintiff alleges he underwent a CT scan at ORMC on or about October 24, 2017 to
determine if he had a cancerous left testicle. ORMC gave Plaintiff a liquid to assist with the CT
scan. Plaintiff has not received the results of that CT scan. Plaintiff further alleges that the CT
scan performed at ORMC had nothing to do with diagnosing cancer. As a result of that CT scan,
Plaintiff claims he is suffering from radiation sickness. It appears Plaintiff’s sole claim with
respect to ORMC is that Plaintiff underwent an unnecessary CT scan.

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CATANIA, MAHON & RIDER, PLLC

May 6, 2020
Page 2

It is respectfully submitted that ORMC is entitled to dismissal of the amended complaint
as Plaintiff has failed to plead a cognizable claim under 42 U.S.C. §1983. This Court, by Decision
and Order, dismissed Plaintiff’s Section 1983 claim against ORMC with prejudice. See Dkt. 53,
p. 13. As such, Plaintiff should be barred from raising that same claim in his Amended Complaint.
If the Amended Complaint is read to allege a purported state law claim of medical
malpractice, that claim must fail as well. Plaintiff fails to allege the elements of medical
malpractice, specifically “a departure from good and accepted medical practice and evidence that
such departure was a proximate cause of plaintiff’s injury.” Gale v. Smith & Nephew, Inc., 989 F.
Supp. 2d 243, 252 (S.D.N.Y. 2013) (quoting Williams v. Sahay, 783 N.Y.S.2d 664, 666 (App.
Div. 2d Dep’t 2004)). While Plaintiff alleges injury, including radiation sickness, there are no
specific facts which show that the injury was a result of a deviation of the standard of care.
Therefore, Plaintiff’s claim sounding in medical malpractice should be dismissed.
Even if it is determined that Plaintiff’s state law claim is viable, it is respectfully
submitted that the Court should decline to exercise supplemental jurisdiction. Plaintiff has failed
to plead any claims arising under federal law, as such the state law claims should be dismissed.
“As a general rule, the Second Circuit and the Supreme Court “have held that when the federal
claims are dismissed the state claims should be dismissed as well.” Bennett v. Care Correction
Sol. Med. Contracter, No. 15 CIV. 3746 (JCM), 2017 WL 1167325, at *10 (S.D.N.Y. Mar. 24,
2017) (quoting In re Merrill Lynch Ltd. Partnerships Litig., 154 F.3d 56, 61 (2d Cir. 1998)).
Based on the foregoing, ORMC respectfully requests leave to serve a pre-answer motion
to dismiss Plaintiff’s Amended Complaint.
Respectfully Submitted,
/s/ Seamus P. Weir
SEAMUS P. WEIR
SPW/spw/1795948
cc:

Theodore Brandon Edwards #17A5263
Sing Sing C.F.
354 Hunter Street
Ossining, NY 10562-5442

Docket in case#--- CV/CR --17
----- 10116
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NYSD on 11/16/2020
Date: 11 I 16 I 2020

11/16/2020

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