Edwards v. Feldman et al

Filing 86

OPINION & ORDER re: 71 MOTION to Dismiss filed by Feldman, 77 MOTION to Dismiss filed by Orange County Medical Regional. For the foregoing reasons, Defendants' motions to dismiss are GRANTED and Plaintiff 9;s claims against Defendants are DISMISSED. The Clerk of the Court is respectfully directed to (1) terminate the motions at ECF No. 71 & 77; (2) mail a copy of this Opinion and Order to Plaintiff at the address listed on ECF, (3) show service on t he docket, and (4) close this action. SO ORDERED. K. Georgy, Orange County, Orange County Medical Regional, John Doe (Urologist) and Feldman terminated. (Signed by Judge Nelson Stephen Roman on 7/27/2021) (vfr) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

Case 7:17-cv-10116-NSR Document 86 Filed 07/27/21 Page 1 of 10
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 7/27/2021

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----

THEODORE BRANDON EDWARDS,
Plaintiff,

17-cv-10116 (NSR)
OPINION & ORDER

-againstDR. FELDMAN, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge

Plaintiff Theodore Brandon Edwards (“Plaintiff”) commenced this pro se action on or
about December 27, 2017, against Dr. Feldman (“Feldman”), R.N. K. Georgy (“Georgy”),
Orange County Medical Regional (“OCMR” or “ORMC”), and Orange County (“OC”).1 On July
17, 2019, Defendant OCMR moved to dismiss the Complaint, and on July 18, 2019, Defendants
Feldman, Georgy, and OC moved to dismiss the Complaint. (ECF Nos. 45 & 49.) On February
10, 2020, the Court issued an Opinion & Order dismissing the Complaint and granting Plaintiff
leave to amend as to his claims that were dismissed without prejudice. (ECF No. 53.) On March
30, 2020, Plaintiff filed an Amended Complaint against Defendants Feldman and OCMR. (ECF
No. 54), which Defendants again moved to dismiss. (ECF Nos. 71 & 77.) For the following
reasons, Defendants’ motions to dismiss are GRANTED.
BACKGROUND

1
Plaintiff also brought this action against O.C.J. Medical Dept and Dr. John Doe. (ECF No. 2.) The action
was terminated against O.C.J. Medical Dept on April 13, 2018 (ECF No. 11) and, following a Valentin Order (ECF
No. 11) and the Court’s direction to Plaintiff to provide Defendant Orange County with a medical release form (ECF
No. 15), Plaintiff failed to amend the Complaint with the identify of Dr. John Doe.

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Plaintiff is currently a “convicted and sentenced prisoner” incarcerated at Sing Sing
Correctional Facility in Ossining, New York. Plaintiff was previously incarcerated at Orange
County Jail (“OCJ”) and many of the facts from the Amended Complaint occurred while
Plaintiff was incarcerated at OCJ.
On or about October 24, 2017, Plaintiff went to ORMC for testing to determine whether
he had cancer in his left testicle. To conduct testing, ORMC determined that they would
administer various liquids to Plaintiff. Prior to the test, Plaintiff inquired why he needed to ingest
the liquids. The primary nurse told Plaintiff that the liquids were necessary to allow doctors to
take an in-depth look at his left testicle. After receiving the liquids, Plaintiff was placed on a
machine to receive a CT scan. At that time, he was given a “second dose” of liquid
intravenously. Plaintiff was on the radiation machine for a long time.
Plaintiff has been waiting ever since for the results of the CT scan. Plaintiff is frustrated
and worried and has experienced symptoms of radiation sickness such as hair loss, extreme
testicle pain, a cyst on his testicle—which has not been removed—and deteriorating teeth.
Plaintiff also has slurred speech, a painful, purple tongue, and is having a mental breakdown due
to “medical malpractice” and lack of medical professionalism.
A few weeks following the CT scan incident, Plaintiff saw Dr. Feldman at OCJ and Dr.
Feldman informed Plaintiff that the CT scan taken at ORMC had nothing to do with checking
Plaintiff’s left testicle for cancer. On or about December 15, 2017, Plaintiff had a check-up with
Dr. Feldman and Dr. Feldman again informed him that the testing he received on October 24,
2017, had nothing to do with Plaintiff’s testicles and that staff at ORMC only checked Plaintiff’s
pelvis and intestines.

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As of March 17, 2020, Plaintiff remains in extreme pain in his left testicle. His testicle is
the size of a golf ball and feels like it is going to explode. Plaintiff is constantly using the
bathroom approximately twenty-five times per day. Most of his bathroom usage is at night and
interferes with his ability to get steady sleep. Due to coronavirus, Plaintiff has been unable to
obtain a check-up to see if his left testicle is cancerous.
LEGAL STANDARD ON A MOTION TO DISMISS
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss is proper unless the
complaint “contain[s] sufficient factual matter, sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When there are well-pleaded
factual allegations in the complaint, “a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679.
Where a motion to dismiss is unopposed, a court should nevertheless “assume the truth of
a pleading's factual allegations and test only its legal sufficiency.” McCall v. Pataki, 232 F.3d
321, 322 (2d Cir. 2000). While the Court must take all material factual allegations as true and
draw reasonable inferences in the non-moving party's favor, the Court is “not bound to accept as
true a legal conclusion couched as a factual allegation,” or to credit “mere conclusory
statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 662,
678. (quoting Twombly, 550 U.S. at 555) (emphasis added).
The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claim(s)
“across the line from conceivable to plausible.” Twombly, 550 U.S. at 555; see also Iqbal, 556
U.S. at 678 (noting that a claim is facially plausible when the factual content pleaded allows a
court “to draw the reasonable inference that the defendant is liable for the misconduct alleged”)

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While it is not necessary for the complaint to assert “detailed factual allegations,” it still must
allege “more than labels and conclusions.” Twombly, 550 U.S. at 555. The facts in the complaint
“must be enough to raise a right to relief above the speculative level on the assumption that all
the allegations in the complaint are true.” Id.
Generally, “[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. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal
quotations and citation omitted). However, when dealing with a pro se plaintiff, the Court may
consider “materials outside the complaint to the extent that they are consistent with the
allegations in the complaint.” Gayot v. Perez, No. 16-CV-8871 (KMK), 2018 WL 6725331, at *4
(S.D.N.Y. Dec. 21, 2018) (emphasis added) (internal quotations, alterations, and citations
omitted).
Pro se complaints are held to different, more relaxed standards, as courts must construe
pro se pleadings more liberally than they would for non-pro se pleadings. Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009). Further, courts must interpret the pro se plaintiff's pleading “to raise
the strongest arguments that [it] suggest[s].” Harris v. City of New York., 607 F.3d 18, 24 (2d
Cir. 2010) (internal quotations and citation omitted). Nonetheless, in order to be entitled to relief,
a pro se plaintiff’s complaint must contain sufficient factual allegations which would plausibly
entitle them to relief. Jackson v. N.Y.S. Dep't of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y.
2010). To that point, where an allegation lacks an essential, necessary element to the entitlement
of relief, a court’s “duty to liberally construe a plaintiff's complaint [is not] the equivalent of a

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duty to re-write it.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009)
(internal citations and alterations omitted).
DISCUSSION
The Court liberally interprets Plaintiff’s Amended Complaint to allege two causes of
action: (1) claims against ORMC and Dr. Feldman for deliberate indifference to medical needs
pursuant to 18 U.S.C. § 1983 and (2) claims against ORMC and Dr. Feldman for medical
malpractice.
I.

Deliberate Indifference to Medical Needs
Section 1983 provides that “[e]very person who, under the color of any statute,

ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Section
1983 “is not itself the source of substantive rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United States Constitution and federal statutes it
describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Paterson v. Cty. of
Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under Section 1983, a plaintiff must
allege (1) the challenged conduct was attributable to a person who was acting under color of state
law and (2) “the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution.”
Castilla v. City of New York., No. 09 Civ. 5446(SHS), 2013 WL 1803896, at *2 (S.D.N.Y. Apr.
25, 2013); see also Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).
While Plaintiff indicates that he is currently a sentenced and convicted individual
incarcerated at Sing Sing, he does not explicitly state in his Complaint whether he was a detainee
or convicted and sentenced individual at the time the incident occurred. Regardless of his

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classification, however, the Constitution requires that prison officials “provide humane
conditions of confinement” and “ensure that inmates receive adequate food, clothing, shelter, and
medical care.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). A “pretrial detainee’s claims of
unconstitutional conditions of confinement are governed by the Due Process Clause of the
Fourteenth Amendment,” whereas an inmate’s claims arise under “the Cruel and Unusual
Punishments Clause of the Eight Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017).
In either case, to set forth a Section 1983 claim for conditions of confinement, a plaintiff
must show that an individual “acted with deliberate indifference to the challenged conditions.”
Sanders v. City of New York, No. 16 Civ. 7426 (PGG), 2018 WL 3117508, at *6 (S.D.N.Y. June
25, 2018). This deliberate indifference test contains an objective prong and a subjective prong.
Darnell, 849 F.3d at 29. Under the deliberate indifference test, “[t]he objective prong is the same
under either [the Eighth or Fourteenth] analysis: It requires that the deprivation at issue be, ‘in
objective terms, sufficiently serious.’” Simmons v. Mason, No. 17-CV-8886 (KMK), 2019 WL
4525613, at *9 (S.D.N.Y. Sept. 18, 2019). A plaintiff “must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious damage to his health.” Darnell,
849 F.3d at 30. “There is not ‘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. at 29 (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)). When, as
here, a plaintiff has alleged deliberate indifference to medical needs that is premised on “a
temporary delay or interruption in the provision of otherwise adequate medical treatment, it is
appropriate to focus on the challenged delay or interruption in treatment rather than the
prisoner’s underlying medical condition alone” if analyzing the nature of the deprivation. Smith

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v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998)).
Conversely, the subjective prong differs between the Fourteenth and Eighth Amendment
analyses. Under the Eighth Amendment, a convicted prisoner must show that a correction officer
“kn[ew] of and disregard[ed] an excessive risk to inmate health and safety; the official must both
[have been] aware of facts from which the inference could [have been] drawn that a substantial
risk of serious harm exists, and he must [have] also draw[n] the inference.” Farmer, 511 U.S. at
837. On the other hand, under the Fourteenth Amendment, a plaintiff must plausibly allege that
“the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to
act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even
though the defendant-official knew, or should have known, that the condition posed an excessive
risk to health or safety.” Strange v. Westchester Cty. Dep’t of Corr., No. 17-CV-9968 (NSR),
2018 WL 3910829, at *2 (S.D.N.Y. Aug. 14, 2018) (internal quotations omitted). This standard
is “defined objectively” and “can be violated when an official does not have subjective
awareness that the official’s acts . . . have subjected the detainee to a substantial risk of harm.”
Darnell, 849 F.3d at 30. Because it is unclear whether pro se Plaintiff was a pretrial detainee or a
convicted prisoner at the time the events in the Amended Complaint occurred, the Court will
apply the more lenient Fourteenth Amendment standard.
A. ORMC
In its February 10, 2020, Opinion, the Court dismissed all Section 1983 claims against
ORMC and noted that “regardless of the test applied, Plaintiff has failed to establish that ORMC
and its employees are state actors under Section 1983.” (ECF No. 53 at 13.) The Court dismissed
the claims with prejudice, noting that “even if granted leave to amend, the Court cannot conclude

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that Plaintiff could plausibly allege that the mishandling of medical testing conducted by
ORMC’s employees amounts to state action.” (Id.) Accordingly, to the extent Plaintiff is seeking
to bring a Section 1983 claim against ORMC for deliberate indifference, that claim is dismissed.2
B. Dr. Feldman
Liberally construed, the Amended Complaint alleges that Plaintiff was subject to
unnecessary radiation exposure at ORMC and that Plaintiff received inadequate treatment as to
his left testicle. As to Plaintiff’s injuries based on exposure to radiation, Plaintiff has failed to
plead any personal involvement on the part of Dr. Feldman.
Plaintiff pleads that undue delay in receiving medical treatment resulted in serious pain to
his left testicle. However, Plaintiff also indicates that he had check-ups with Dr. Feldman and
fails to indicate what deficiencies in those check-ups worsened his pain. See Cuffee v. City of
New York, 2017 WL 1232737, at *9 (S.D.N.Y. Mar. 3, 2017), adopted by, 2017 WL 1134768
(S.D.N.Y. Mar. 27, 2017) (explaining that plaintiff’s deliberate indifference claims failed
because he had “given simply no indication as to how the delay in his treatment . . . worsened his
condition”). Accordingly, the Court finds Plaintiff fails to meet the objective test.
Even if Plaintiff properly pled the objective prong, he fails to meet the subjective prong.
There are no allegations in the Amended Complaint that suggest Dr. Feldman acted intentionally
or recklessly with respect to a serious or unreasonable risk. In fact, as indicated above, Dr.
Feldman had check-ups with Plaintiff regarding his left testicle. Accordingly, Plaintiff’s
deliberate indifference claims are dismissed.
II.

Medical Malpractice

The Court notes that Plaintiff’s claim would fail on the merits for the same reasons it did in its February
10, 2020 Opinion. The Amended Complaint is nearly identical to Plaintiff’s original Complaint and fails to allege
any facts suggesting ORMC is a state actor or that the medical testing amounted to state action.
2

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Under New York Law, “[t]he essential elements of a medical malpractice claim are 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)).
A. Merits
The Amended Complaint again fails to allege facts suggesting that the care provided by
ORMC or Dr. Feldman resulted from deviations from accepted medical practices. The crux of
the Amended Complaint is that ORMC subjected Plaintiff to unnecessary radiation and
Defendants failed to examine and treat Plaintiff’s testicle. However, nothing in the Amended
Complaint suggests that a CAT scan was a departure from good and accepted medical practice.
Further, while Plaintiff indicates his left testicle worsened, nothing in the Amended Complaint
indicates that Dr. Feldman provided Plaintiff with care that deviated from accepted medical
practices or that Dr. Feldman’s care caused the testicle to worsen. Accordingly, Plaintiff’s
medical malpractice claims are dismissed.
B. Supplemental Jurisdiction
Further, even if Plaintiff had sufficiently plead his medical malpractice claims, the Court
alternatively declines to exercise supplemental jurisdiction over Plaintiff’s state-law claims,
given that Plaintiff has failed to sufficiently plead any claims arising under federal law. See In re
Merrill Lynch Ltd. Partnerships Lit., 154 F.3d 56, 61 (2d Cir. 1998) (“[The Second Circuit] and
the Supreme Court have held that when [] federal claims are dismissed the ‘state claims should
be dismissed as well.’”); Bennett v. Care Corr. Sol. Med. Contractor, No. 15 Civ. 3746 (JCM),
2017 WL 1167325, at *10 (S.D.N.Y. Mar. 24, 2017) (dismissing state-law claims where Court
would only retain jurisdiction over these claims based on supplemental jurisdiction).

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CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are GRANTED and Plaintiff’s
claims against Defendants are DISMISSED. The Clerk of the Court is respectfully directed to (1)
terminate the motions at ECF No. 71 & 77; (2) mail a copy of this Opinion and Order to Plaintiff
at the address listed on ECF, (3) show service on the docket, and (4) close this action.

Dated: 7/27/2021

SO ORDERED: ~)

White Plains, NY

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NELSON S. ROMAN
Uni ted States District Judge

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