McNaughton v. County of Chautauqua et al
ORDER: For the reasons stated, the County Defendants' motion to dismiss (ECF No. 41 ) is GRANTED. Defendants Chautauqua County Sheriff's Office and Sheriff Joseph A. Gerace are dismissed from this action and the Clerk of Court is directe d to terminate them from this case. The crossclaims against those defendants are also dismissed. Additionally, the state law claims against the County of Chautauqua are dismissed. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 10/7/2017. (SC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID F. MCNAUGHTON,
Case # 15-CV-0233-FPG
DECISION & ORDER
COUNTY OF CHAUTAUQUA, et al,
Plaintiff David F. McNaughton brought this action against the County of Chautauqua, the
Chautauqua County Sheriff’s Office, Sheriff Joseph A. Gerace (“the County Defendants”), Doctor
Robert Berke, Doctor Conrad Williams, Physician’s Assistant Roderick Hunt, Family Health
Medical Services, PLLC, and Zenith Medical, P.C. See ECF No. 1. McNaughton alleges that the
defendants are civilly liable to him for medical malpractice, negligence, and Eighth Amendment
violations under 42 U.S.C. § 1983. See ECF No. 1. On January 1, 2017, the County Defendants
moved to dismiss the complaint. See ECF No. 43. For the reasons stated below, the County
Defendants’ motion to dismiss is GRANTED.
David F. McNaughton alleges that, on October 12, 2012, while incarcerated in the
Chautauqua County Jail, he received a course of medical treatment for lower back and left shoulder
pain. See ECF No. 1. That medical treatment was provided by Defendants Burke, Hunt, and
Family Health Medical as subcontractors of Chautauqua County Jail. Id. That treatment included
a series of injections of medication. Id. McNaughton alleges that, through those injections, he
contracted fungal meningitis. Id. McNaughton alleges that he reported experiencing worsening
pain to county officials, but was not permitted to see a doctor for treatment or diagnosis while
incarcerated. Id. On April 15, 2013, McNaughton was released from custody. Id.
One month later, McNaughton was involved in a bike accident. Id. McNaughton alleges
that, following that accident, he sought treatment from Defendant Williams, an employee of
Defendant Zenith Medical. Id. On June 21, 2013, Williams ordered a lumbar MRI. Id. The MRI
displayed an abnormal signal with displacement of the spinal cord, arachnoiditis of the cauda
equine, and abnormalities of intervertebral discs. Id. The MRI report recommended follow-up
examinations, but McNaughton alleges that Williams and Zenith did not order additional
examinations. Id. On July 5, 2013, McNaughton was again incarcerated in Chautauqua County
On July 9, 2013, Zenith Medical faxed McNaughton’s medical records, including the MRI
report, to Chautauqua County Jail. Id. Around this time, McNaughton alleges that he complained
to jail officials of numbness, tingling, and pain in his spine and lower body. Id. McNaughton
alleges that he, again, was not permitted to see a doctor for treatment or diagnosis. Id. Sometime
prior to September 2013, McNaughton was transferred from Chautauqua County Jail to Erie
County. Id. On September 23, 2013, while in the custody of Erie County, McNaughton was
admitted to the Erie County Medical Center. Id. Doctors there performed surgery on McNaughton
to remove an abscess from his spine. Id. As a result, McNaughton is a “T5 paraplegic.” Id.
On February 19, 2015, McNaughton initiated this action in New York State Supreme
Court. See ECF No. 1. On March 18, 2015, the County Defendants removed the case to this
Court. Id. On March 26, 2015, the County Defendants answered the complaint and asserted
crossclaims against Defendants Berke, Hunt, and Family Health Medical Services. See ECF No.
3. On March 31, 2015, Defendants Berke, Hunt, and Family Health Medical Services filed their
answer and crossclaims against the other defendants. See ECF No. 5. On August 18, 2015,
Defendant Williams filed a motion to dismiss. See ECF NO. 9. The Court denied that motion on
January 11, 2016. See ECF No. 17. Currently before the Court is the County Defendants’ motion
to dismiss. See ECF No. 43. McNaughton’s response to the County Defendants’ motion was
originally due by February 20, 2017. See ECF No. 44 (Text Scheduling Order). On February 17,
2017, McNaughton moved for an extension of time to respond, see ECF No. 45, and the Court
granted that request on February 22, 2017. See ECF No. 49. McNaughton’s response was then
due by March 2, 2017. See id. McNaughton has not filed a response. On March 27, 2017, the
County Defendants filed a supplemental memorandum in support of their motion in light of
McNaughton’s failure to respond. See ECF No. 53.
The County Defendants move under Federal Rule of Civil Procedure 12(c) to dismiss
McNaughton’s medical malpractice and negligence claims against all defendants as well as
McNaughton’s Eighth Amendment claim against Sheriff Gerace and the Chautauqua County
Sheriff’s Office. See ECF No. 43.
“In deciding a Rule 12(c) motion, we employ the same standard applicable to dismissals
pursuant to Rule 12(b)(6).” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011)
(internal citations and quotation marks omitted). Accordingly, the County Defendants must show
that the complaint contains insufficient facts to state a claim for relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Plausibility “is not akin to a probability
requirement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). Rather,
plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” Id.
“Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief.” Id. A pleading that
consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual enhancement.” Id. at 557.
In considering the plausibility of a claim, the Court must accept factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. Faber v. Metro. Life Ins. Co., 648 F.3d
98, 104 (2d Cir. 2011). At the same time, the Court is not required to accord “[l]egal conclusions,
deductions, or opinions couched as factual allegations . . . a presumption of truthfulness.” In re
NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (internal quotation marks omitted);
see also Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (“As we have repeatedly held,
complaints relying on the civil rights statutes are insufficient unless they contain some specific
allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that
shock but have no meaning.”).
Regarding McNaughton’s failure to respond to the County Defendants’ motion, in the
Second Circuit, “failure to respond to a 12(c) motion cannot constitute default justifying dismissal
of the complaint.” McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000) (internal quotation marks
and citations omitted). Because the Court assumes the truth of the plaintiff’s pleadings, “the
sufficiency of a complaint is a matter of law that the court is capable of determining based on its
own reading of the pleading and knowledge of the law.” Id. at 232-33. If the complaint sufficiently
states a claim on which relief can be granted, the plaintiff’s failure to respond does not warrant
Liability of the Chautauqua County Sheriff’s Office
The County Defendants argue that all claims against the Chautauqua County Sheriff’s
Office must be dismissed. See ECF No. 43 at 11. The County Defendants argue that, because the
police department is considered an “administrative arm” of the municipality, it lacks the capacity
to be sued separately. Id. The Court agrees. “Under New York law, a municipality’s police
department is considered to be an ‘administrative arm’ of the municipality, with no legal identity
separate and apart from the municipality itself.” Cash v. Cty. of Erie, No. 04-CV-0182, 2007 WL
2027844, at *6 (W.D.N.Y. July 11, 2007). Accordingly, the claims against the Sheriff’s Office
must be dismissed. See id.
McNaughton’s Failure to Comply with Notice of Claim Statutes
The County Defendants argue that portions of McNaughton’s medical malpractice and
negligence claims must be dismissed against the County Defendants because McNaughton failed
to comply with New York’s Notice of Claim requirements. See ECF No. 43 at 10. Specifically,
the County Defendants assert that, although the Notice of Claim articulated theories of liability for
medical malpractice and negligence arising out of failure “to properly maintain, handle, and/or
administer injectable medications and equipment,” it did not articulate theories of liability for
medical malpractice or negligence arising out of failure to diagnose. Id. For that reason, the
County Defendants argue that McNaughton’s medical malpractice and negligence claims against
the County Defendants must be limited to failure “to properly maintain, handle, and/or administer
injectable medications and equipment.” The Court agrees.
New York’s Notice of Claim statute requires a plaintiff to file a Notice of Claim for tort
claims brought against a municipality. See Lewis v. Livingston Cty. Ctr. for Nursing and Rehab.,
30 F. Supp. 3d 196, 207 (W.D.N.Y. 2014). “[I]n a federal court, state notice-of-claim statutes
apply to state-law claims.” Hardy v. New York City Health & Hosps., Corp., 164 F.3d 789, 793
(2d Cir. 1999) (emphasis omitted). Further, it applies to theories of liability made within the scope
of those state law claims. Jewell v. City of New York, No. 94-CV-5454, 1995 WL 86432, at *1
(S.D.N.Y. Mar. 1, 1995) (“Any theory of liability omitted from the notice of claim may not be
included in a subsequent lawsuit.”). Notice of Claim requirements “are construed strictly by New
York state courts, and failure to abide by their terms mandates dismissal of the action.” Id. at 208.
On December 27, 2013, McNaughton filed his first Notice of Claim. See ECF No. 43, Ex.
A. McNaughton’s Notice of Claim asserted that Defendant Hunt, at the Chautauqua County Jail,
“administered two sets of injections into claimant’s spine . . . after which claimant began to get
sores on his lip, dizziness, headaches, weakness and balance problems.” Id. The Notice of Claim
further stated that “the fluid in his spine caused paralysis from the chest down and that said
paralysis was caused by the previous injections he received at the jail.” Id. The Notice of Claim
attributed the injuries to
the negligence of the . . . Chautauqua County Jail . . . [in] failing to
properly conduct and supervise the medical personnel providing
treatment to the inmates at the facility, including failing to properly
conduct and supervise the injections . . . to ensure that [Defendant
Hunt] was utilizing safe and appropriate equipment and procedures
to administer the injections, and that the injections were from a safe
and clean batch, and failing to utilize the appropriate procedures and
equipment to administer injections so as to prevent injuries to the
On March 13, 2014, McNaughton filed a second Notice of Claim. See ECF No. 43, Ex. A.
The second Notice of Claim stated that McNaughton’s injuries “were caused as a result of the
negligence, carelessness, recklessness, and/or unlawful conduct” by the County Defendants and
their agents “in failing to properly maintain, handle, and/or administer injectable medications and
equipment used to administer the same.” Id. The second Notice of Claim stated that the County
Defendants “knew or should have known that such medications and/or the equipment used to
administer the same were contaminated with pathogens that cause fungal meningitis.” Id.
Because McNaughton’s Notices of Claim failed to mention theories of malpractice and
negligence liability rooted in the County Defendants’ failure to diagnose, and because
McNaughton can no longer amend his Notice of Claim, McNaughton’s state law claims against
those defendants are limited to liability arising out of the injection of medication. See Jewell, 1995
WL 86432, at *1; see also Clare-Hollo v. Finger Lakes Ambulance EMS, Inc., 99 A.D.3d 1199,
1201 (4th Dep’t 2012) (“It is well settled that a plaintiff may not . . . assert new theories of liability
against a municipal defendant if such theories were not raised in the plaintiff’s notice of claim and
the plaintiff is time-barred from serving a late-notice of claim.”); Crippen v. Town of Hempstead,
No. 07-CV-3478, 2009 WL 803117, at *17 (E.D.N.Y. 2009) (noting that “district courts in the
Second Circuit have routinely found that they lack jurisdiction to even consider” an application
for an extension of time to serve a notice of claim).
State Law Claims Against County Defendants
The County Defendants argue that McNaughton’s medical malpractice and negligence
claims must be dismissed against the County Defendants because McNaughton does not allege
that the County Defendants were directly involved in the challenged conduct and the County
Defendants cannot be held liable under a theory of respondeat superior. See ECF No. 43 at 2930. The Court agrees.1
The County Defendants also assert other grounds for dismissal of the state law claims, but because the Court
finds McNaughton fails to allege that the County Defendants are directly liable and because the County Defendants
cannot be held liable under respondeat superior, there is no need to address the County Defendants’ other arguments
Regarding his medical malpractice claim against the County Defendants, McNaughton
alleges that “[t]he County Defendants . . . through their agents, servants, employees, associates,
and/or subcontractors carelessly and negligently rendered medical care and treatment to the
plaintiff while incarcerated at the Chautauqua County Jail, which was not in accordance with
good and accepted medical practice.” See ECF No. 1 at ¶ 48. He also alleges that
The County Defendants . . . through their agents, servants,
employees, associates, and/or subcontractors carelessly and
negligently rendered medical care and treatment to the plaintiff, by
failing to properly handle the injectable medication and device used
to administer said injectable medication and/or failing to properly
clean plaintiff’s skin prior to the administration of said injectable
Id. at ¶ 50. Regarding his negligence claim against the County Defendants, McNaughton alleges
that the “County Defendants . . . through their agents, servants, employees, associates, and/or
subcontractors as well as the staff and personal under the direction of the defendants, were
negligent in performing their duties.” Id. at ¶ 61.
As an initial matter, McNaughton does not allege that either the County of Chautauqua or
Sheriff Gerace are directly liable for malpractice or negligence.
His allegations simply fail to
implicate the County of Chautauqua or Sheriff Gerace in the conduct that he challenges.
Additionally, neither the County of Chautauqua nor Sheriff Gerace can be held liable under a
theory of respondeat superior. See Barnes v. Cty. of Monroe, 85 F. Supp. 696, 717-18 (W.D.N.Y.
2015) (citing D’Amico v. Corr. Med. Care, Inc., 120 A.D.3d 956, 959 (4th Dep’t 2014)) (“To the
extent Plaintiff is attempting to assert claims under New York State law, his claims fail. Monroe
County has not assumed liability for the acts of the Sheriff or his deputies by local law, and
therefore the County cannot be held liable to the extent Plaintiff is alleging a state law claim based
upon a respondeat superior theory.”); see also id. at 719 (citing Schulik v. Cnty. of Monroe, 202
A.D.2d 960, 961 (4th Dep’t 1994)) (“It is well settled that ‘the Sheriff cannot be held personally
liable on the basis of respondeat superior for the alleged negligent acts of his deputies.’ ”).
Accordingly, McNaughton’s state law claims against the County of Chautauqua and Sheriff
Gerace are dismissed.
Eighth Amendment Claim Against County Defendants
The County Defendants argue that McNaughton’s Eighth Amendment claim must be
dismissed against Sheriff Gerace because McNaughton fails to allege that Sheriff Gerace was
personally involved in the challenged conduct. See ECF No. 43 at 9. The Court agrees.
McNaughton seeks relief for the alleged Eighth Amendment violation under 42 U.S.C. §
1983. See ECF No. 1. Section 1983 imposes civil liability on any person who, under the color of
state law, deprives another person of any federal or constitutional “rights, privileges or
immunities.” 42 U.S.C. § 1983. McNaughton alleges that the defendants, including Sheriff
Gerace, violated his Eighth Amendment right by failing to provide him with adequate medical
treatment. ECF No. 1. To sustain such a claim, Plaintiff must demonstrate that Defendants were
deliberately indifferent to his serious medical needs. Farmer v. Brennan, 511 U.S. 825, 828
(1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
This standard includes both an objective and subjective prong. “First, the alleged
deprivation must be, in objective terms, sufficiently serious.” Chance, 143 F.3d at 702 (quoting
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)) (internal quotation marks omitted). Second,
Plaintiff must establish that Defendants acted “with a sufficiently culpable state of mind.” Id. The
second prong is satisfied only when an official “knows of and disregards an excessive risk to
inmate health or safety.” Farmer, 511 U.S. at 837. The official must “be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists” and also “draw
the inference.” Id.
McNaughton’s complaint fails to satisfy that standard with regard to Sheriff Gerace.
McNaughton does not allege that Sheriff Gerace knowingly disregarded an excessive risk to his
health and safety. Indeed, McNaughton does not allege that Sheriff Gerace was personally
involved in the challenged conduct, let alone aware of the details of his medical condition and
treatment. Simply put, McNaughton alleges no facts that implicate the involvement of Sheriff
Gerace in any of the conduct underlying his Eighth Amendment claim. For that reason, the Eighth
Amendment claim is dismissed against Sheriff Gerace.
Crossclaims Against County Defendants
Defendants Berke, Hunt, and Family Health filed a crossclaim against the County
Defendants. See ECF No. 5. The crossclaim asserted that if McNaughton “recovers a verdict
against [Defendants Berke, Hunt, and Family Health], these said defendants request the Court to
have the liability of all defendants and any other tortfeasors and their various culpability
apportioned among them pursuant to Article 14 of the Civil Practice Law and Rules.” Id. at 5.
Defendants Berke, Hunt, and Family Health argue that, even if McNaughton’s claims against the
County Defendants are dismissed, their crossclaim against the County Defendants should not be
dismissed. See ECF No. 48. But Defendants Berke, Hunt, and Family Health plead no factual
allegations against the County Defendants beyond those contained in McNaughton’s complaint.
See ECF No. 5. Thus, the reasons underlying the dismissal of McNaughton’s claims against the
County Defendants apply with equal force to the crossclaim filed by Defendants Berke, Hunt, and
Family Health. See Lopez v. United States, No. 15-CV-9695, 2016 WL 7156773, at *11 (S.D.N.Y.
Dec. 7, 2016) (dismissing crossclaims for failure to state a claim). Accordingly, the crossclaims
against Sheriff Gerace and the Chautauqua County Sherrif’s Office are dismissed. To the extent
that Defendants Berke, Hunt, and Family Health asserted a crossclaim against the County of
Chautauqua for liability arising from McNaughton’s § 1983 claim against it, that crossclaim may
For these reasons, the County Defendants’ motion to dismiss (ECF No. 41) is GRANTED.
Defendants Chautauqua County Sheriff’s Office, and Sheriff Joseph A. Gerace are dismissed from
this action. The crossclaims against those defendants are also dismissed. Additionally, the state
law claims against the County of Chautauqua are dismissed.
IT IS SO ORDERED.
Dated: October 7, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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