Turner v. Procopio et al

Filing 43

DECISION AND ORDER. United States Magistrate Judge Roemer's Report and Recommendation 40 is ADOPTED IN ITS ENTIRETY. Defendants Bjorck and Waldman's Motions to Dismiss for Failure to State a Claim 28 30 are GRANTED IN PART and DENIED IN PART. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 12/12/2016. A copy of this Order and NEF have been mailed to the pro se Plaintiff. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NICOLE TURNER,
Plaintiff,
Case # 13-CV-693-FPG
v.
DECISION & ORDER
MARK PROCOPIO, et al.,
Defendants.

INTRODUCTION
Pro se Plaintiff Nicole Turner (“Plaintiff”) brings this civil rights action pursuant to 42
U.S.C. § 1983 against multiple defendants. ECF No. 10. Plaintiff alleges that her constitutional
rights were violated when prison staff at Elmira Correctional Facility (“Elmira”) accused her of
carrying contraband when she visited her husband, an Elmira inmate, on July 24, 2010. Id.
Presently before this Court are motions to dismiss filed by Defendants Rebecca Lynn Bjorck and
Justine Waldman, M.D. ECF Nos. 28, 30.
United States Magistrate Judge Michael J. Roemer issued a Report and Recommendation
(“R&R”) in which he recommends that Defendants’ motions be granted in part and denied in
part. ECF No. 40. Specifically, Judge Roemer recommends that Plaintiff’s unlawful search
claim survive dismissal, but that Plaintiff’s false arrest and deliberate indifference claims be
dismissed with prejudice. Defendants each filed objections to the R&R. ECF Nos. 41, 42.
Plaintiff has not filed any objections.1 Because Defendants make similar objections, this Court
will address them together. This Court also assumes the parties’ familiarity with the background
facts of this case and will proceed to a discussion of the pending motions and objections.

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Because Plaintiff has not objected to Judge Roemer’s recommendation that her false arrest and deliberate
indifference claims against Defendants Bjorck and Waldman be dismissed, this Court has reviewed those portions of
the R&R for clear error. Edwards v. Fischer, 414 F. Supp. 2d 342, 346 (S.D.N.Y. 2006) (“If no objections are filed
. . . reviewing courts should review a report and recommendation for clear error.”). This Court finds no clear error
in those recommendations and adopts those portions of the R&R in their entirety.

LEGAL STANDARD
Pursuant to 28 U.S.C. § 636(b)(1)(C), a district court “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” In Camardo v. Gen. Motors Hourly-Rate Empls. Pension Plan, 806
F. Supp. 380, 381-82 (W.D.N.Y. 1992), the court explained:
It is clear from the plain meaning of the rule that objections to a
Report and Recommendation are to be specific and are to address
only those portions of the proposed findings to which the party
objects. It is improper for an objecting party to attempt to relitigate
the entire content of the hearing before the Magistrate Judge by
submitting papers to a district court which are nothing more than a
rehashing of the same arguments and positions taken in the original
papers submitted to the Magistrate Judge.
Thus, if no objections are filed, or if the objections simply reiterate the party’s original
arguments, courts may review the report and recommendation for clear error. United States v.
Gardin, 451 F. Supp. 2d 504, 507-08 (W.D.N.Y. 2006); Gasaway v. Perdue, No. 9:11-CV01272, 2012 WL 1952644, at *2 (N.D.N.Y. May 30, 2012); Edwards v. Fischer, 414 F. Supp. 2d
342, 346 (S.D.N.Y. 2006); United States v. Peldomo, No. 10-CR-0069, 2010 WL 5071489, at
*1-2 (E.D.N.Y. Dec. 7, 2010).
OBJECTIONS
Defendants raise three objections to the R&R. See ECF Nos. 41, 42. Defendants argue
that Judge Roemer erred when he (1) concluded that Plaintiff’s Second Amended Complaint met
the basic pleading requirements pursuant to Rule 8 of the Federal Rules of Civil Procedure (ECF
No. 41-1, at 4-7; ECF No. 42, at 9-11); (2) considered two unsworn letters that Plaintiff
submitted in opposition to Defendants’ motions to dismiss and declined to consider the affidavits
that Defendants submitted in support of their motions to dismiss (ECF No. 41-1, at 7-10; ECF
No. 42, at 4-8); and (3) concluded that Plaintiff’s unlawful search claim should survive dismissal
(ECF No. 41-1, at 10-14; ECF No. 42, at 11-14). These objections are addressed in turn below.
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I.

Rule 8
Judge Roemer found that dismissal was not warranted under Rule 8 because Plaintiff’s

Second Amended Complaint “gives Bjorck and Waldman fair notice of [Plaintiff]’s claims and
the grounds upon which they rely.” ECF No. 40, at 6. Specifically, Judge Roemer noted that the
“facts” and “causes of action” sections identified Defendants Bjorck and Waldman by name2 and
specifically accused them of illegal detention, illegal searching, and deliberate indifference. Id.
Defendant Waldman argues, however, that it is “simply impossible” to tell from
Plaintiff’s Second Amended Complaint what actions Defendant Waldman “purportedly
undertook under the color of state law that allegedly caused any harm, injury, or deprivation to
Plaintiff’s constitutional rights.” ECF No. 41-1, at 5. Defendant Waldman also asserts that
Plaintiff “fails to state how [her] activity, rather than the activity of ‘all medical staff’ or the
activity of the medical center in general, might have been transformed into state action.” Id.
Similarly, Defendant Bjorck argues that Plaintiff’s Second Amended Complaint is insufficient
pursuant to Rule 8 because it merely “reiterate[s] the facts alleged in her initial complaint, with
the mere change of listing the names of the medical staff defendants.” ECF No. 42, at 10.
Rule 8 provides that “[a] pleading that states a claim for relief must contain . . . a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). To satisfy Rule 8, the complaint must give the defendant “fair notice” of the plaintiff’s
claim and the grounds upon which it relies. Wynder v. McMahon, 360 F. 3d 73, 77, 79 (2d Cir.
2004). Dismissal “is usually reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.”
Damry v. Nat’l Grid Natural Gas & Elec., No. 1:16-CV-267 (LEK/CFH), 2016 WL 1729044, at
*1 (N.D.N.Y. Apr. 5, 2016) (citing Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).

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Plaintiff’s Second Amended Complaint identifies these defendants as “Rebecca Burd” and “Dr. Schaff.”
ECF No. 10. Defendants advised the Court, however, that their names changed to Rebecca Lynn Bjorck and Justine
Waldman, M.D., and the Clerk of Court amended the caption of this case accordingly.

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This Court agrees with Judge Roemer that Plaintiff’s Second Amended Complaint gives
Defendants Bjorck and Waldman fair notice of the claims against them. It references them by
name and connects them to the alleged actions that violated Plaintiff’s rights, namely, that
Plaintiff was “illegally detained,” “manually searched,” and subject to “deliberate indifference.”
ECF No 10, at 11-13. Accordingly, dismissal is not warranted pursuant to Rule 8.
II.

Materials to Consider in Deciding Defendants’ Rule 12(b)(6) Motions
Judge Roemer’s R&R also analyzed what materials could properly be considered in

deciding Defendants’ motions to dismiss. ECF No. 40, at 7-9. Judge Roemer concluded that, in
light of Plaintiff’s pro se status, the Court could consider the facts contained in two unsworn
letters that Plaintiff submitted in opposition to Defendants’ motions. Id. Attached to one of the
letters are Plaintiff’s medical records from Arnot Ogden Medical Center (“Arnot Ogden”) signed
by Defendants Bjorck and Waldman stating in part: “We conducted a body search for the police
today that was negative.” ECF No. 40, at 8 (citing ECF No. 38, at 5). Judge Roemer noted that
“the letters largely reiterate the allegations within the Second Amended Complaint,” except that
“one letter alleges for the first time that Arnot Ogden and its medical staff are ‘under contract’
with Elmira and the State Police.” ECF No. 40, at 8 (citing ECF No. 32, at 2). Judge Roemer
concluded, however, that “consideration of [Plaintiff]’s new allegation that Arnot Ogden is under
contract with Elmira and the State Police does not alter the Court’s recommendation as to the
disposition of Defendants’ motions.” ECF No. 40, at 8.
Judge Roemer also concluded that the Court could not consider Defendants’ affidavits.
ECF No. 40, at 8-9. Defendant Bjorck submitted her own affidavit stating that she provided
medical treatment to Plaintiff pursuant to directions received from attending physicians, not law
enforcement, and that she does not perform body cavity searches. ECF No. 40, at 8 (citing ECF
No. 28-2, at ¶¶ 4, 6). Defendant Bjorck also submitted an affidavit from an Arnot Ogden risk
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management associate that disputes Plaintiff’s allegation that the hospital is under exclusive
contract with Elmira and the State Police to treat or search individuals in their custody. ECF No.
40, at 8 (citing ECF No. 37-1, at ¶ 5). Defendant Waldman submitted her own affidavit stating
that at the time of the events underlying the Second Amended Complaint, she was an employee
of Arnot Ogden, not of Elmira or the State Police. ECF No. 40, at 8 (citing ECF No. 30-2, at ¶
3). Judge Roemer declined to consider Defendants’ affidavits because they “go well beyond
what the Court may consider on a Rule 12(b)(6) motion.” ECF No. 40, at 9.
Defendant Waldman argues that it was “highly prejudicial” for Judge Roemer to consider
Plaintiff’s unsworn letters because they were not submitted under penalty of perjury and
contained allegations not specifically raised in the Second Amended Complaint. ECF No. 41-1,
at 7-8. She further asserts that “consideration of [Plaintiff]’s new allegations is only exacerbated
by [Judge Roemer]’s decision to exclude from review the affidavits submitted by [Defendants].”
Id. at 10. Similarly, Defendant Bjorck argues that Judge Roemer should have considered her
affidavits because “a court may consider facts outside of the pleadings on a motion to dismiss
where the non-movant knows that these additional facts are being considered, and especially
where the non-movant responds with her own evidentiary submissions.” ECF No. 42, at 7-8.
“In 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 quotation marks and
citation omitted).

Courts generally may not consider affidavits and exhibits submitted in

connection with a Rule 12(b)(6) motion to dismiss. See Friedl v. City of New York, 210 F.3d 79,
83-84 (2d Cir. 2000). In deciding a motion to dismiss a pro se complaint, however, the court
may consider materials outside the complaint, documents submitted with the plaintiff’s
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opposition papers, allegations contained in the plaintiff’s memorandum of law, and affidavits as
long as these items are consistent with the allegations in the complaint. See Lopez v. Cipolini,
136 F. Supp. 3d 570, 579 (S.D.N.Y. 2015); see also Rodriguez v. Rodriguez, No. 10-CV-891,
2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013) (“Although the Court is typically confined to
the allegations contained within the four corners of the complaint, when analyzing the
sufficiency of a pro se pleading, a court may consider factual allegations contained in a pro se
litigant’s opposition papers and other court filings.”) (internal citations and quotation marks
omitted).
This Court agrees with Judge Roemer that it was appropriate to consider Plaintiff’s letters
in deciding the motions to dismiss. As Judge Roemer explained, Plaintiff’s letters reiterate the
allegations set forth in the Second Amended Complaint, and the new allegation that Arnot Ogden
and Elmira had a contractual relationship does not affect the disposition of Defendants’ motions.
Given Plaintiff’s pro se status and the consistency of the allegations in the Second Amended
Complaint and her letters, it was proper to consider Plaintiff’s additional submissions.
Judge Roemer also properly declined to consider Defendants’ affidavits. See Friedl, 210
F.3d at 83 (“[A] district court errs when it considers affidavits and exhibits submitted by
defendants or relies on factual allegations contained in legal briefs or memoranda in ruling on a
12(b)(6) motion to dismiss.”) (internal alterations, quotation marks, and citations omitted).
Defendants’ affidavits present facts and arguments that this Court simply cannot consider at the
motion to dismiss stage, regardless of its consideration of Plaintiff’s letters.
III.

Fourth Amendment Unlawful Search Claim
Plaintiff alleges that Defendants Bjorck and Waldman unlawfully searched her vaginal

and anal areas and x-rayed her stomach to assist the State Police in its search for contraband.
ECF No. 10, at 11. Judge Roemer determined that the conduct Plaintiff complains of constitutes
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state action and recommended that Plaintiff’s unlawful search claim against Defendants Bjorck
and Waldman survive dismissal. ECF No. 40, at 11-14.
To state a claim for relief under § 1983, a plaintiff must allege that (1) he or she was
deprived of a constitutional or legal right and (2) the deprivation was committed under color of
state law, meaning that there was some kind of state action. Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50 (1999). When the defendant is a private actor, the state action requirement
may be satisfied if the defendant’s alleged conduct is “fairly attributable to the state.” Fabrikant
v. French, 691 F.3d 193, 207 (2d Cir. 2012) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838
(1982)). The Second Circuit has identified three tests to assist in determining whether a private
defendant’s actions are fairly attributable to the state: (1) the “public function test,” which
examines whether the state has delegated a public function to the private actor; (2) the
“compulsion test,” which examines whether the state controls the private actor or whether the
private actor acted pursuant to the state’s coercive power; and (3) the “joint action test” or the
“close nexus test,” which examines whether the state significantly encourages the private actor,
the private actor willfully participates in joint activity with the state, or the private actor’s
functions are entwined with state policies. Fabrikant, 691 F.3d at 207 (citations omitted).
Here, Judge Roemer concluded that Defendants Bjorck and Waldman acted under color
of state law pursuant to the public function test when they “searched [Plaintiff] for contraband at
the behest of the police.” Id. at 11. Judge Roemer also concluded that Plaintiff plausibly alleged
state action under the coercion and joint action tests because a warrant was allegedly presented to
the medical staff authorizing the search, Defendants Bjorck and Waldman signed medical
records stating that they “conducted a body search for the police” (ECF No. 38, at 4-5), and a
State Police officer remained in the room while Plaintiff was searched. Id. at 12. Judge Roemer

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concluded that these allegations “raise an inference that the State Police compelled Bjorck and
Waldman to carry out the search or, at a minimum, significantly encouraged them to do so.” Id.
Defendants Bjorck and Waldman argue that Judge Roemer’s conclusions were improper
because Plaintiff’s Second Amended Complaint does not specifically allege that they acted on
behalf of the police or based on the allegedly improper search warrant. ECF No. 41-1, at 12-13;
ECF No. 42, at 12. However, Plaintiff’s Second Amended Complaint states that
[a] warrant was presented to Plaintiff by Mark Procopio. Nurse 1
Jane Doe said “it can’t be good” and that “it doesn’t even have the
time it was issued.” However, Nurse 1 Jane Doe, Nurse 2 Jane
Doe, Rebecca [Bjorck], and Dr. [Waldman] carried out the search
even after Nurse 1 Jane Doe acknowledged Plaintiff was being
illegally detained. Plaintiff’s anal and vaginal areas were manually
searched and Plaintiff was x-rayed in the abdominal area. State
Police Officer Angelique Heppner remained in the room.
ECF No. 10, at 11.
Plaintiff has alleged state action under the public function test because she accuses
Defendants Bjorck and Waldman of searching her, which is a power traditionally reserved to the
State. See Rodriques v. Furtado, 950 F.2d 805, 814 (1st Cir. 1991) (noting that the “power of
search” is “traditionally reserved exclusively to the State” and finding that private physician who
conducted vaginal search of drug suspect pursuant to search warrant was a state actor for
purposes of § 1983 claim); Warner v. Grand Cnty, 57 F.3d 962, 964 (10th Cir. 1995) (private
individual acted under color of state law when she conducted a strip search for contraband at a
police officer’s request).
Plaintiff has also alleged state action under the coercion and joint action tests because she
asserts that the search warrant was acknowledged and announced in front of Defendants Bjorck
and Waldman and that a State Police officer remained in the room during the search.
Additionally, Defendants Bjorck and Waldman signed medical records indicating that they
searched Plaintiff for the police. ECF No. 38, at 4-5. This Court agrees with Judge Roemer that
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“[c]onfronted by the police and given a search warrant, Bjorck and Waldman might very well
have believed they had no choice but to search [Plaintiff] for contraband.” ECF No. 40, at 12;
Rodriques, 950 F.2d at 814 (private physician engaged in state action when he searched the
plaintiff for drugs because the search warrant police gave him represented “coercive power” and
‘”significant encouragement”) (citations omitted). Accordingly, Defendants’ motions to dismiss
the unlawful search claim against them are DENIED.
CONCLUSION
For the reasons stated, this Court accepts and adopts Judge Roemer’s R&R (ECF No. 40)
in its entirety. Defendants Bjorck and Waldman’s motions to dismiss (ECF Nos. 28, 30) are
GRANTED IN PART and DENIED IN PART. Specifically, Plaintiff’s unlawful search claim
against Defendants Bjorck and Waldman may go forward, but Plaintiff’s false arrest and
deliberate indifference claims against them are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.
Dated: December 12, 2016
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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