Smith v. Erie County Holding Center et al
Filing
112
DECISION AND ORDER granting in part 98 MOTION to Amend/Correct the Complaint and Add to Additional Parties and Causes of Action and Amend Case Management Order to Extend All Discovery Deadlines filed by William Smith. Signed by Hon. H. Kenneth Schroeder, Jr on 5/23/2013. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM SMITH, 08-B-0527,
Plaintiff,
08-CV-0485(Sr)
v.
ERIE COUNTY HOLDING CENTER, et al.,
Defendants.
DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Richard J.
Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and
report upon dispositive motions. Dkt. #111.
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging
that during his pretrial detention at the Erie County Holding Center (“ECHC”), and Erie
County Correctional Facility (“ECCF”), beginning in 2006 and continuing through
February of 2008, he was denied appropriate medical care for his chronic mastoiditis;
denied reasonable accommodations for his severe hearing loss; and disciplined for
failing to obey an order he could not hear. Dkt. #7.
By Order entered May 31, 2011, the Court granted plaintiff’s motion to
appoint counsel. Dkt. #87.
Currently before the Court is plaintiff’s motion to amend the complaint and
extend the Case Management Order. Dkt. #98. For the following reasons, the motion is
granted in part.
Good Cause for late amendment - Fed.R.Civ.P 16(b)
Defendants argue that the motion to amend should be denied because
plaintiff has not demonstrated good cause for his failure to amend prior to the deadline
set forth in the Court’s Case Management Order. Dkt. #100, p.4.
Plaintiff declares that the delay of less than four months was due to
appointed counsel’s diligent attempts to review documents and obtain additional
discovery from defendants and third parties to ascertain proper defendants and
appropriate causes of action. Dkt. #97, ¶¶ 20, 23 & 26. Plaintiff notes that defendants
have not yet been able to provide plaintiff’s entire institutional medical file or medical
records from other providers such as the Erie County Medical Center and Buffalo
Hearing and Speech, despite their prior possession of an authorization from plaintiff to
do so; that the Commission on Corrections and the ECHC have yet to respond to
plaintiff’s request pursuant to the Freedom of Information Law; and that it was only
upon receiving medical records and other documents pursuant to their independent
efforts that counsel possessed a good faith basis for the proposed amended complaint.
Dkt. #102, pp.3-6. Given the ongoing paper discovery and the lack of depositions of
any defendants, plaintiff asserts that the amendments to the complaint will neither
prejudice the defendants nor delay the prosecution of this action. Dkt. #102, pp.7-8.
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Fed.R.Civ.P 16(b) requires that the district court enter a scheduling order
setting deadlines for, inter alia, amendment of pleadings and completion of discovery.
The scheduling order cannot not be modified except by leave of the district court upon a
showing of good cause. Fed.R.Civ.P 16(b). “[T]he rule is designed to offer a measure
of certainty in pretrial proceedings, ensuring that at some point both the parties and the
pleadings will be fixed.” Parker v. Columbia Pictures Indus, 204 F.3d 326, 339-340 (2d
Cir. 2000) (internal citation omitted). Accordingly, “a person seeking to amend a
pleading after the date specified in a scheduling order must first show ‘good cause’ for
the amendment under Rule 16(b).” Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D.
Ind. 1995).
“‘Good cause’ means that scheduling deadlines cannot be met despite a
party’s diligence.” Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D. 439, 446
(W.D.N.Y. 1997); see Parker, 204 F.3d at 340 (“finding of ‘good cause’ depends on the
diligence of the moving party.”); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir. 1992) (“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence
of the party seeking the amendment.”). Good cause can be established when a party
does not discover a basis to amend the pleadings or add parties until the scheduling
order’s deadline to do so has passed. See Oxaal v. Internet Pictures Corp.,
00CIV1863, 2002 WL 485704 (N.D.N.Y. Mar. 27, 2002) (good cause established
where, subsequent to scheduling order deadline for amendment of pleadings, Federal
Circuit decision “established new rule of law” which defendant sought to assert as a
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defense in his amended answer); Deghand v. Wal-Mart Stores, 904 F.Supp 1218 (D.
Kansas 1995) (good cause established where defendant did not supplement its
disclosure under Rule 26 to reveal letter suggesting defamation of plaintiff until the
deadline for moving to amend the pleadings or add parties had passed); Robinson v.
Colonie, 91-CV-1355, 1993 WL 191166 (N.D.N.Y. June 3, 1993) (good cause
established where plaintiffs did not learn that they had confused the identity of
defendants until they observed defendants at deposition, which was conducted
subsequent to scheduling order deadline for filing amended pleadings).
In the instant case, in light of counsel’s declaration of diligent attempts to
obtain and review plaintiff’s extensive medical records and public documents relating to
the management of the ECHC and ECCF and applicable standards for accommodating
inmates with hearing loss, the Court finds good cause for the filing of the motion to
amend the complaint subsequent to the deadline set forth in the Case Management
Order.
Leave to Amend the Complaint - Fed.R.Civ.P 15(a)
Fed. R. Civ. P. 15(a) provides that a party may amend a pleading by leave
of court or by written consent of the adverse party. Leave to amend is to be "freely
granted" unless the party seeking leave has acted in bad faith, there has been an
undue delay in seeking leave, there will be unfair prejudice to the opposing party if
leave is granted, or the proposed amendment would be futile. Foman v. Davis, 371
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U.S. 178, 182 (1962); State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856
(2d Cir. 1981); Fed. R. Civ. P.15(a). “Mere delay, however, absent a showing of bad
faith or undue prejudice, does not provide a basis for a district court to deny the right to
amend.” Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). “Absent a
showing that significant additional discovery burdens will be incurred or that the trial of
the matter will be significantly delayed, amendment should be permitted.” W.R. Grace
& Co. v. Zotos Int’l, Inc., 98-CV-838, 2000 WL 1843282 (W.D.N.Y. Nov. 2, 2000). The
decision to grant or deny a motion for leave to amend a pleading is within the discretion
of the district court. Foman, 371 U.S. at 182.
“An amendment to a pleading is futile if the proposed claim could not
withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l
Business Machines, Corp., 310 F.3d 243, 258 (2d Cir. 2002). “To survive a motion to
dismiss, a complaint must contain 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Application of this standard is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a “short and plain statement of the claim showing that the
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pleader is entitled to relief.” This pleading standard “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. “A
pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of
a cause of action will not do.’” Id., quoting Twombly, 550 U.S. at 555.
Leave to Add Defendants - Fed.R.Civ.P 21
Although Fed. R. Civ. P. 15(a) generally governs the amendment of
complaints, where the proposed amendment seeks to add new defendants, Fed. R.
Civ. P. 21 governs. Rush v. Artuz, 00CIV3436, 2001 WL 1313465, at *5 (S.D.N.Y. Oct.
26, 2001). Rule 21 states that “[p]arties may be . . . added by order of the court on
motion of any party . . . at any stage of the action and on such terms as are just.” Fed.
R. Civ. P. 21. “In deciding whether to allow joinder, the Court is guided by the same
standard of liberality afforded to motions to amend pleadings under Rule 15.” Rush,
2001 WL 1313465, at *5 (internal quotation omitted); see Clarke v. Fonix Corp., 98 CIV
6116, 1999 WL 105031, at *6 (S.D.N.Y. March 1, 1999), aff’d 199 F.3d 1321 (2d Cir.
1999).
Section 1983 Claim against Erie County
Plaintiff’s first proposed cause of action seeks to hold Erie County and its
policymakers, County Executive Chris Collins and Sheriff Timothy Howard, liable for the
County’s custom, policy and practice of, inter alia, ignoring serious medical needs of
inmates; failing to maintain sufficient medical staff to provide for serious medical needs
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of inmates; maintaining a policy by which inmates were denied necessary medication or
medical devices for reasons unrelated to legitimate security concerns; failing to budget
for adequate medical care and assistive devices; failing to promulgate or implement
policies or procedures for monitoring medical needs and treatment of inmates; and
failing to designate a coordinator for disabled inmates to ensure compliance with ADA
guidelines, thereby exhibiting deliberate indifference to the serious risk created by these
practices, policies and procedures, or the absence thereof. Dkt. #97-1, ¶ 68.
Defendants argue that Erie County cannot be held vicariously liable for
the acts of the Sheriff or his employees and does not owe plaintiff a duty related to his
care and custody, as that responsibility rests with the Sheriff pursuant to New York
State Correction Law § 500-c. Dkt. #100, pp.7-12. Defendants also argue that the
cause of action is futile because plaintiff’s complaint fails to allege sufficient factual
allegations to demonstrate a policy or custom upon which to predicate liability pursuant
to Monell v. Department of Social Services, 436 U.S. 658 (1978). Dkt. #100, pp.14-19.
Plaintiff responds that the County may be held liable for its custom,
practice and/or policy evincing a deliberate indifference to plaintiff’s medical needs and
disability. Dkt. #102, p.10.
While defendants are correct that “a county is not vicariously liable for the
tortious acts of a sheriff,” a county “can incur section 1983 liability as a consequence of
policies it promulgates.” Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986), cert. denied
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sub nom. County of Monroe v. Weber, 483 U.S. 1020 (1987). More specifically, “New
York counties can be liable for the decisions of the sheriff as final policymaker over
issues related to jail operations.” Sheriff’s Silver Star Assoc. of Oswego Cnty., Inc. v.
Cnty. of Oswego, 56 F. Supp.2d 263, 267 (N.D.N.Y. 1999).
The existence of a municipal policy may be established in one of four
ways: (1) a formal policy officially endorsed by the municipality; (2) actions taken by the
government officials responsible for establishing municipal policies related to the
particular deprivation in question; (3) a practice so consistent and widespread that it
constitutes a custom or usage sufficient to impute constructive knowledge of the
practice to policymaking officials; or (4) a failure by policy makers to train or supervise
subordinates with scienter that such failure may foreseeably lead to specific types of
constitutional violations.” Beckwith v. Erie Cnty. Water Auth., 413 F. Supp.2d 214, 225
(W.D.N.Y. 2006). “Thus, where a policymaking official exhibits deliberate indifference
to constitutional deprivations caused by subordinates, such that the official’s inaction
constitutes a deliberate choice, that acquiescence may be properly thought of as a city
policy or custom that is actionable under § 1983.” Amnesty America v. Town of West
Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (internal quotations omitted).
In the instant case, plaintiff has alleged that the County lacked a policy
and training protocol for appropriately assessing, treating and accommodating inmates
with sensorial disabilities and that the absence of such a policy was noted by the New
York State Commission on Corrections as part of its determination that the medical
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treatment plaintiff received fell short of community standards of medical care. In
particular, plaintiff alleges correspondence between the New York State Commission on
Corrections and Sheriff Howard regarding plaintiff’s medical care and Undersheriff
Doyle’s communication to the New York State Commission on Corrections advising that
they had drafted and were reviewing a policy and procedure for addressing
subspecialty care provider recommendations for treatment. Dkt. #97-1, ¶¶ 46-50.
These factual allegations are sufficient, at this stage of the proceedings, to set forth a
§ 1983 claim against the County. However, inasmuch as a claim against a municipal
officer in his official capacity is merely another way of asserting a claim against the
governmental entity employing that official, plaintiff’s claims against defendants Collins
and Howard in their official capacities, are dismissed as redundant. Beckwith, 413 F.
Supp.2d at 224-25.
Section 1983 Claim against Collins, Howard, Doyle, Benson, Koch, Bienko,
Leary & Gaines
Plaintiff’s second proposed cause of action seeks to hold Chris Collins,
Timothy Howard, Brian Doyle, Michael Benson, Robert Koch, Captain Bienko,
Lieutenant Leary and Sergeant Gaines liable for their inadequate supervision and
training of jail staff regarding appropriate accommodations for hearing impaired inmates
such as plaintiff. Dkt. #97-1.
Defendants argue that plaintiff has failed to allege the personal
involvement of the individual defendants in the alleged deprivation of plaintiff’s
constitutional rights. Dkt. #100, pp.14-16.
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“Because 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. Thus, it is well
settled that the personal involvement of defendants in an alleged constitutional
deprivation is a prerequisite to an award of damages under § 1983. Gaston v.
Coughlin, 249 F.3d 156, 164 (2d Cir. 2001); Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989).
Personal involvement may be shown by evidence 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 to remedy the wrong; (3) the defendant
created or permitted the continuation of a policy or custom under which unconstitutional
practices occurred; (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 unconstitutional acts
were occurring. Colon, 58 F.3d at 873.
Plaintiff’s allegations regarding correspondence between the New York
State Commission on Corrections and Sheriff Howard regarding plaintiff’s medical care
and Undersheriff Doyle’s communication to the New York State Commission on
Corrections contesting plaintiff’s disability and need for hearing aids and advising that
they had drafted and were reviewing a policy and procedure for addressing
subspecialty care provider recommendations for treatment are sufficient, at this stage of
the proceedings, to set forth the personal involvement of Sheriff Howard and
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Undersheriff Doyle. Dkt. #97-1, ¶¶ 46-50. In addition, plaintiff’s allegation of written
and/or face to face contact with Undersheriff Doyle, First Deputy Superintendent
Benson, Deputy Superintendent Koch, Captain Bienko, Lieutenant Leary and Sergeant
Gaines wherein he discussed his need for hearing aids and inadequate medical
treatment is sufficient, at this stage of the proceedings, to set forth their personal
involvement. Dkt. #87-1, ¶¶ 25, 43. However, plaintiff has not alleged any facts to
suggest the personal involvement of County Executive Chris Collins in the denial of
adequate medical treatment to plaintiff during his incarceration at ECHC or ECCF.
Accordingly, the motion to dismiss is granted with respect to defendant Collins in his
individual capacity.
ADA & Section 504 liability of Collins and Howard
Plaintiff’s seventh and eighth proposed causes of action allege denial of
reasonable accommodations for plaintiff’s hearing loss against Erie County, Chris
Collins and Timothy Howard pursuant to Title II of the ADA and Section 504 of the
Rehabilitation Act. Dkt. #97-1, ¶¶ 101-119.
Defendants argue that the ADA and Section 504 imposes liability against
public entities rather than individual defendants. Dkt. #100, pp.12-13.
Plaintiff responds that it seeks to hold defendants Collins and Howard
liable for these causes of action pursuant to both their individual and official capacity.
Dkt. #102, pp.12-13.
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Because the ADA and Rehabilitation Act do not provide for liability against
individual defendants, plaintiff’s claims under these statutes are dismissed against
defendants Collins and Howard. Fox v. State Univ. of N.Y., 497 F. Supp.2d 446, 451
(E.D.N.Y. 2007); Allah v. Goord, 405 F. Supp.2d 265, 279 (S.D.N.Y. 2005).
Punitive Damages
Defendants argue that punitive damages may not be recovered against
municipalities or municipal employees sued in their official capacity pursuant to 42
U.S.C. § 1983 and that punitive damages are unavailable against municipalities
pursuant to the ADA and Section 504. Dkt. #100, p.20.
Plaintiff concedes that he is not entitled to punitive damages against the
County. Dkt. #102, p.16.
As it is well settled that a municipality cannot be held liable for punitive
damages pursuant to 42 U.S.C. § 1983, City of Newport v. Fact Concerts, Inc., 453
U.S. 247 (1981), and that punitive damages may not be awarded in suits brought
pursuant to Title II of the ADA and Section 504 of the Rehabilitation Act, Barnes v.
Gorman, 536 U.S. 181 (2002), plaintiff’s claim for punitive damages is dismissed
against the County of Erie.
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CONCLUSION
Based on the foregoing, it is ordered that plaintiff’s motion to amend the
complaint (Dkt. #98), be granted except with respect to plaintiff’s claims against
defendants Collins and Howard in their official capacities as to plaintiff’s first cause of
action; defendant Collins in his personal capacity as to plaintiff’s second cause of
action; defendant Collins and Howard as to plaintiff’s seventh and eighth causes of
action; and plaintiff’s claim for punitive damages against the County of Erie.
SO ORDERED.
DATED:
Buffalo, New York
May 23, 2013
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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