McCray v. State of New York et al

Filing 77

ORDER granting in part and denying in part 24 Motion to Dismiss for Failure to State a Claim; granting 30 Motion to Dismiss for Failure to State a Claim. Signed by Hon. H. Kenneth Schroeder Jr. on 10/24/2023. (KER)Clerk to Follow up by mailing copy to plaintiffs

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
CERIOUS D. MCCRAY,
and
LYDIA R. MCCRAY,

15-CV-409A(Sr)

Plaintiffs,
v.
STATE OF NEW YORK,
et al.,
Defendants.
_________________________________

REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #31.

Plaintiff Cerious McCray, an inmate in the custody of the New York State
Department Of Corrections and Community Supervision (“NYSDOCCS”), and his
mother, Lydia McCray, an employee of NYSDOCCS, commenced this action, pro se, by
filing a 119 page complaint (along with more than 240 pages of exhibits), naming more
than 30 defendants. Dkt. #15. As relevant to the pending motion to dismiss, Cerious
McCray alleges inadequate medical treatment following urethral stricture surgery
performed by defendant Dr. Angell at defendant Arnot Ogden Medical Center (“Arnot”),
on November 5, 2012. Dkt. #15. Cerious McCray returned to Arnot on November 21,

2012 due to bleeding and was examined in the emergency room by Dr. Dewar, who
discharged him back to Elmira. Dkt. #15. Cerious McCray returned to Arnot through the
emergency room on November 22, 2012, at which time Dr. Stewart performed a second
surgical procedure to cauterize a blood vessel. Dkt. #15. On November 23, 2012,
Cerious McCray received a blood transfusion at Arnot. Dkt. #15. Plaintiffs also complain
that Lydia McCray was denied visitation with Cerious McCray at the Elmira Correctional
Facility (“Elmira”), on December 4, 2012 and that they were unable to communicate
with each other between November 5, 2012 and December 12, 2012. Dkt. #15.

Currently before the Court is a motion to dismiss by Arnot (Dkt. #24), and
a motion to dismiss by defendants Alan H. Angell, S. Belloma, P. Braselmann, Paul
Chappius, Jr., A. Cicconi, Kate Dewar, L. Gerard, P. Kwan, J. Seely, A. Stamps, D.
Taft, M. Trabout and Wellman (“individual defendants”). Dkt. #30. For the reasons set
forth below, it is recommended that Arnot’s motion to dismiss be granted in part and the
individual defendants’ motion to dismiss be granted.

DISCUSSION AND ANALYSIS
Dismissal Standard
To survive a motion to dismiss pursuant Rule 12(b)(6) of the Federal
Rules of Civil Procedure, “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 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
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alleged.” Id. Plausibility “depends on a host of considerations: the full factual picture
presented by the complaint, the particular cause of action and its elements, and the
existence of alternative explanations so obvious that they render plaintiff’s inferences
unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
Application of this standard is “a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Ashcroft, 556 U.S.at 679. While
the factual allegations need not be detailed, “a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555.

Evidentiary Standard
In adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration ‘to facts stated on the face of the complaint or incorporated by reference
in the complaint, and to matters of which judicial notice may be taken.’” Leonard F. v.
Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); See also Kramer v. Time
Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). “W here a plaintiff has relied on the
terms and effect of a document in drafting the complaint and that document is thus
integral to the complaint,” the district court may consider the contents of the document
“even if it is not formally incorporated by reference.” Broder v. Cablevision Sys. Corp.,
418 F.3d 187, 196 (2d Cir. 2005) (internal quotations omitted), quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

When a party submits additional evidence in connection with a motion to
dismiss, a district court must either exclude the additional material and decide the
motion on the complaint alone or convert the motion to one for summary judgment
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under Rule 56 of the Federal Rules of Civil Procedure and afford all parties the
opportunity to present supporting material. Friedl v. City of N.Y., 210 F.3d 79, 83 (2d
Cir. 2000). This requirement deters trial courts from engaging in fact finding when ruling
on a motion to dismiss and ensures that when a trial judge considers evidence outside
of the complaint, a plaintiff will have an opportunity to contest such evidence by
submitting evidence that contraverts it. Global Network Comms, Inc. v. City of N.Y., 458
F.3d 150, 155 (2d Cir. 2006), cert. denied, 558 U.S. 1100 (2009).

As set forth in the Federal Rules of Evidence, a court may take judicial
notice of a fact that is not subject to reasonable dispute because it is g enerally known
within it’s territorial jurisdiction or because it can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned. Fed.R. Evid. 201(b).
Courts routinely take judicial notice of documents filed in other cases and other courts,
not for the truth of their contents, but to establish their existence and legal effect.
Delgado v. City of N.Y., 19 Civ. 6320, 2021 WL 2473817, at *2 (S.D.N.Y. June 17,
2021); Belsito v. County of Erie, 19-CV-215, 2019 WL 6292143, at *3 (W.D.N.Y. Nov.
25, 2019).

Courts also take judicial notice of public records that are required to be
filed by law which are contained on a state website See Reed Const. Data Inc. v.
McGraw-Hill Cos., Inc., 638 Fed. App’x 43, 47 n.2 (2d Cir. 2016) (taking judicial notice
of public records of business incorporation contained on the Georgia Secretary of
State’s website); In Re Arcimoto Inc., Secs. Litig., 21-CV-2143, 2022 WL 17851834, at
*5 (E.D.N.Y. Dec. 22, 2022) (taking judicial notice of statements contained in public
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records filed with the Florida Division of Corporations); J&J Sports Productions, Inc. v.
Gomez, 18-CV-5119, 2019 WL 4744229, at *5 (E.D.N.Y. Sept. 29, 2019) (taking judicial
notice of entries in NYSDOS Corporation and Business Entity Database).

Section 1983 Claims Against Arnot
Plaintiffs’ complaint alleges that Elmira entered into a contract with Arnot
granting Arnot employees the right to provide medical services to prisoners. Dkt. #1,
¶ 44. The complaint further alleges that Dr. Angell was employed by Arnot and was also
under contract with Elmira. Dkt. #1, ¶¶ 44-45 & 142. In it’s screening order, the Court
allowed the claims against Arnot to move forward based upon the allegation that Arnot
was a private actor under contract with NYSDOCCS to provide medical services to
NYSDOCCS’ inmates. Dkt. #15, p.13, n.7.

Arnot moves to dismiss the § 1983 claims against it because it is not a
state actor and was not acting under color of state law, and because the acts and/or
omissions complained of would have been the responsibility of physicians, who are not
employed by Arnot, but only maintain practice privileges at Arnot. Dkt. #24-4, pp.4-15.
In support of its argument, Arnot submits affidavits detailing Arnot’s corporate status,
employment relationships with defendant physicians; division of responsibilities
between defendant physicians and Arnot nurses; and the absence of a contract
between Arnot and Elmira. Dkt. #24-1; Dkt. #24-2 & Dkt. #24-3.

Plaintiffs respond that it is inappropriate to consider information beyond
the complaint and request an opportunity for discovery. Dkt. #40, p.3. Plaintiffs also
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argue that Arnot bears legal responsibility for its failure to supervise Dr. Angell and for
its discharge of Cerious McCray with internal bleeding. Dkt. #40, pp.6-7.

Arnot replies that this Court should consider the facts presented by
affidavit because plaintiffs have been afforded a reasonable opportunity to respond.
and reiterates that it is not responsible for alleged malpractice committed by a private
physician with hospital privileges or any employees at Elmira. Dkt. #41-1, pp.3-9.

Plaintiffs reiterate that Arnot’s affidavits are inadmissible at this juncture
and request an opportunity to pursue discovery regarding Arnot’s relationship with
Elmira and Dr. Angell, who plaintiffs allege was under contract to provide medical care
to prisoners when he treated Cerious McCray at Arnot, noting that Dr. Dewar, an Arnot
emergency room physician, is represented by the New York State Attorney General.
Dkt. #45, pp.6-11. Plaintiffs assert that Arnot is a state hospital and argue that it could
be considered a state actor even if it is a private hospital. Dkt. #45, pp.11-18. Plaintiffs
further argue that Arnot is vicariously liable because it should have known that Dr.
Angell failed to obtain informed consent and committed malpractice when he caused
and then failed to address Cerious McCray’s internal bleeding. Dkt. #45, pp.20-27.

Arnot responds that plaintffs’ assertions of a contractual relationship
between it and Elmira are conclusory. Dkt. #46, ¶ 32.

A plaintiff proceeding pursuant to 42 U.S.C. § 1983 must allege that a
right secured by the Constitution or laws of the United States was violated by a person
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acting under the color of state law or a state actor. West v. Atkins, 487 U.S. 42, 48-49
(1988). Public employees generally act under color of state law when acting in their
official capacity or while exercising responsibilities pursuant to state law. Id. at 50. Thus,
physicians employed by the state to provide medical services to state prison inmates
act under color of state law and are considered state actors when providing medical
treatment to inmates. Id. at 54-55. It is not determinative that the state employed the
physician pursuant to a contractual arrangement that differs from public employment:
“[c]ontracting out prison medical care does not relieve the State of its constitutional duty
to provide adequate medical treatment to those in custody, and it does not deprive the
State’s prisoners of the means to vindicate their [constitutional] rights.” Id. at 56.
Therefore, a physician under contract to fulfill the state’s obligation to provide essential
medical care to incarcerated individuals also acts under color of state law. Id.

The Court takes judicial notice of the fact that Arnot is a not-for-profit
medical facility. See https://www.arnothealth.org/arnot-ogden-medical-center (Arnot “is
a not-for-profit . . . medical facility”); https://www.guidestar.org/profile/16-0743905
(Arnot “is a not-for-profit . . . medical facility”). “As a general rule, private hospitals do
not act under the color of law for § 1983 purposes.” Sykes v. McPhillips, 412 F.
Supp.2d 197, 200 (N.D.N.Y. 2006) (internal quotation omitted); See Kia P. v. McIntyre,
235 F.3d 749, 756 (2d Cir. 2000) (“The Hospital is owned and administered by a private
corporation; it is not a state or municipal facility.”), cert. denied, 534 U.S. 820 (2001);
See Johnson v. City of N.Y., 20-CV-3083, 2021 WL 4896477, at *9 (S.D.N.Y. Aug. 23,
2021) (“Although private hospitals are regulated by the state and required to obey state

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laws, they are generally not proper § 1983 defendants because they do not act under
color of state law.”) (internal quotation omitted), R&R adopted by 2021 WL 4479384
(Sept. 30, 2021). Moreover, “the mere fact that an otherwise private institution receives
public funding does not make it a state actor for purposes of constitutional claims.”
Thomas v. Mohawk Valley Health Sys., 2020 WL 6504634, at *6 (N.D.N.Y. Nov. 5,
2020) (internal quotation omitted). As a result, plaintiffs’ allegation that Arnot is a
participating hospital under a Medicare provider agreement is insufficient to render
Arnot a state actor.

There are three exceptional circumstances that may confer state actor
status upon a private hospital: (1) when there is a nexus or joint action between the
state and the hospital; (2) when the hospital acts under state compulsion; or (3) when
the hospital’s provision of services constitutes a public function. Parker v. Blackerby,
368 F. Supp.3d 611, 624 (W .D.N.Y. 2019), citing Sykes, 412 F. Supp.2d at 200-01. For
example, a private corporation can be considered to act under color of state law where
it enters into contract with a municipality to provide medical services to incarcerated
individuals. See Sanchez v. Nassau Cty., CV 17-7335, 2019 WL 2438652, at *9
(E.D.N.Y. Feb. 28, 2019), R&R adopted by 2019 WL 1253283 (March 18, 2019);
Sykes, 412 F. Supp.2d at 204 n.1. However, the provision of medical care by a private
hospital to an individual in custody on the same terms as the hospital would provide to
the public at large will not satisfy the state action test. Falls v. (Police Officer) Detective
Michael Pitt, 16-CV-8863, 2021 WL 1164185, at *50 (S.D.N.Y. Mar. 26, 2021); Jones v.
Pryor, 2019 WL 498798, at *3 (N.D.N.Y. Feb. 8, 2019) (collecting cases).

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The Court declines to consider Arnot’s affidavits regarding the lack of a
contractual relationship between Arnot and Elmira without affording plaintiffs the
opportunity to obtain discovery regarding the relationship, if any, between and among
Arnot, Elmira, Dr. Angell and Dr. Dewar. Thus, for purposes of this motion to dismiss,
the Court accepts plaintiffs’ assertion that Arnot is a state actor because it had a
contractual obligation to provide medical services to Cerious McCray.

Even accepting that allegation, however, it is well settled that an employer
is not generally liable for its employees’ actions under the tort theory of respondeat
superior in suits brought under § 1983. Bedard v. Centurion of Vermont, LLC, 5:20-CV161, 2021 WL 4699245, at *3 (D. Vt. Aug. 27, 2021), R&R adopted by 2021 WL
4666331 (Oct. 7, 2021). “Like government employers, private employers are not
responsible, under a theory of respondeat superior, for the constitutional torts of their
employees.” Johnson, 2021 WL 4896477, at *12. “This principle applies fully to
hospitals - public or private - sued under § 1983 for the allegedly unconstitutional
conduct of their employees.” Id.

To hold a hospital liable under § 1983 for conduct committed by its
employees, the plaintiff must show that action pursuant to an official policy caused the
constitutional tort. Id.; See Smith v. Benson, 08-CV-485, 2016 WL 11817187, at *2
(W.D.N.Y. Mar. 21, 2016) (“Private employers are not liable under § 1983 for the
constitutional torts of their employees unless the plaintiff proves that action pursuant to
official policy of some nature caused a constitutional tort.”), quoting Rojas v.
Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990) (internal quotations
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omitted), cert. denied, 502 U.S. 809 (1991); See also, Rojas, 924 F.2d at 409
(recognizing that although Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S.
658, 691 (1978), dealt with municipal employers, its rationale has been extended to
private businesses). In the instant case, plaintiffs have failed to plausibly allege any
hospital policy that caused plaintiff injury. Accordingly, it is recommended that plaintiffs’
§ 1983 cause of action be dismissed against Arnot.

State Law Claims Against Arnot
Upon dismissal of the § 1983 claims, Arnot urges the Court to decline
supplemental jurisdiction over any state law claims. Dkt. #24-4, p.15. However, given
that the state law claims alleged against Arnot derive from a common nucleus of
operative facts as several of the federal claims that remain against other defendants in
this case, it is recommended that the Court exercise supplemental jurisdiction over the
state law claims at this time. See Jones v. Nickens, 961 F. Supp.2d 475, 496 (E.D.N.Y.
2013) (declining to dismiss state law claims against hospital defendants after dismissing
federal claims where state law claims against hospital defendants derived from a
common nucleus of operative fact as the federal claims remaining against other
defendants).

Therefore, pending discovery as to the relationship between Arnot and
Dr. Angell and Dr. Dewar, it is recommended that plaintiffs be permitted to proceed
against Arnot on a theory of vicarious liability for alleged malpractice based upon
plaintiffs’ allegations that: (1) Dr. Angell failed to obtain informed consent from Cerious

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McCray for the surgical procedure; (2) Dr. Angell failed to cauterize a blood vessel
during surgery; (3) Dr. Angell and Dr. Dewar failed to diagnose and repair internal
bleeding in a timely manner; (4) Dr. Angell and/or Dr. Dewar over-prescribed and/or
other Arnot employees improperly administered Iron and/or Motrin and Tylenol to
Cerious McCray. See I.M. v. United States, 362 F. Supp.3d 161, 198 (S.D.N.Y. 2019)
(“Under the doctrine of respondeat superior, a hospital may be vicariously liable for the
medical malpractice of physicians, nurses and other healthcare professionals who act
in an employment or agency relationship to the hospital.”); Cf. Mirshah v. Obedian, 158
N.Y.S.3d 226, 232 (2 nd Dep’t 2021) (“In general, under the doctrine of respondeat
superior, a hospital may be held vicariously liable for the negligence or malpractice of
its employees acting within the scope of employment, but not for negligent treatment
provided by an independent physician.”); But See Salandy v. Bryk, 55 A.D.3d 147, 153
(2nd Dep’t 2008) (“the mere recording or witnessing of a consent by a hospital employee
is a ministerial task that does not subject the hospital to liability.”).

EMERGENCY MEDICAL TREATMENT AND ACTIVE
LABOR ACT (“EMTALA”) CLAIMS
Plaintiffs’ complaint alleges that medical staff at Arnot, including Dr. Angell
and emergency room physician Dr. Dewar, were negligent and deliberately indifferent to
Cerious McCray’s medical condition when they transferred him from Arnot to the Elmira
infirmary on November 21, 2012 without remedying his continued and excessive
bleeding, in violation of 42 U.S.C. § 1395(dd)(a). Dkt. #1, ¶¶ 152-179. Upon his return
to Elmira, plaintiff alleges that defendants continued to exhibit deliberate indifference to
his continued excessive bleeding until November 22, 2012, when he was again
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transported to Arnot and Dr. Stewart performed a second surgical procedure to
cauterize a blood vessel. Dkt. #1, ¶¶ 180-198.

The individual defendants argue that EMTALA does not apply to them and
that the EMTALA allegations are untimely. Dkt. #30-1, pp.9-11.

Plaintiffs respond that Cerious McCray provided a complaint1 to the
authorities at the Franklin Correctional Facility in October of 2014 for filing with the New
York State Supreme Court, County of Chemung, and the envelope was received timely
by the Chemung County Clerk on November 17, 2014. Dkt. #42, p.35. However, the
Chemung County Clerk advised plaintiff that the New York State Supreme Court was
the wrong forum and suggested that he should file his complaint with the New York
Court of Claims.2 Dkt. #42, p.35. Plaintiffs complain that this deliberate
misrepresentation prevented the papers from being filed properly and caused the
EMTALA statute of limitations to expire. Dkt. #42, p.35. Plaintiffs also argue that the
individual defendants cannot assert the statute of limitations defense on behalf of Arnot.
Dkt. #42, pp.35-36 & Dkt. #45, pp.44-45.

1

Plaintiffs’ provided the Court with a Summons with Notice to the Supreme Court of the
State of New York, Chemung County, with attached complaint and supporting documentation,
dated October 10, 2014. Dkt. #14, p.8.
2

Plaintiffs provided that Court with a letter dated November 20, 2014 in which the Acting
Chief Clerk for the Supreme and County Court of the State of New York, Chemung County,
advised that it had received paperwork pertaining to a medical malpractice action against
NYSDOCCS, et al., but was returning it for filing with the New York Court of Claims. Dkt. #14-2,
p.12.

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Arnot replies that a defendant does not waive its right to assert an
affirmative defense by failing to raise it in a pre-answer motion to dismiss and seeks to
assert the statute of limitations defense along with the individual defendants so as to
preserve judicial resources. Dkt. #46, pp.24-31.

The Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42
U.S.C. § 1395dd, was enacted in 1986 to prevent all hospitals that participate in the
federal Medicare program from “patient dumping,” which is the practice of refusing to
provide emergency medical treatment to patients unable to pay, or transferring them
before emergency conditions are stabilized. Hardy v. New York City Health & Hosp.
Corp., 164 F.3d 789, 792 (2d Cir. 1999). The statute imposes two primary obligations
upon hospitals subject to the statute: (1) when an individual arrives at a hospital
emergency room, the hospital must provide an appropriate medical screening
examination to determine whether an emergency medical condition exists; and (2) if an
emergency medical condition does exist, the hospital must stabilize the medical
condition before transferring or discharging the patient. Id., citing 42 U.S.C. § 1395dd(a)
& (b)(1)(A). EMTALA does not create a federal remedy for misdiagnosis or medical
negligence, but imposes a legal duty for hospitals to provide emergency care to all. Id.
at 792-93. The statute provides for “a civil action against the participating hospital,” but
requires such actions to be brought no more than two years after the date of the
violation. 42 U.S.C. §§ 1395dd(d)(2)(A) & (C).

“Most courts that addressed the issue of whether EMTALA creates a
private cause of action against individual physicians have ruled that it does not.”
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Brenord v. Catholic Med. Ctr. of Brooklyn & Queens, Inc., 133 F. Supp.2d 179, 186
(E.D.N.Y. 2001), citing Fisher v. New York Health & Hosps. Corp., 989 F. Supp.444,
448 (E.D.N.Y. 1998) (“The text of the statute virtually precludes the implication of a
private cause of action against physicians” and the “legislative history confirms that
Congress intentionally limited the private action to claims against hospitals.”).
Accordingly, it is recommended that the EMTALA cause of action be dismissed against
the individual defendants for failure to state a claim.

In addition, the Court agrees that plaintiffs’ EMTALA claim is time barred.
Cerious McCray alleges that he was transported to the emergency room at Arnot on
November 21, 2012 and November 22, 2012, but his complaint was not filed until May
6, 2015, which is more than two years after the date of any alleged violation of Arnot’s
EMTALA obligations. While plaintiffs argue that the delay should be excused because
Chemung County3 failed to file a complaint asserting this cause of action in state court,
the deadline set forth in the EMTALA statute has been determined to be a statute of
repose which, in contrast to a statute of limitations, is not subject to equitable tolling.
See Amira v. Maimones Hosp., 21-CV-3976, 2022 WL 18034533, at *13-14 (E.D.N.Y.
Nov. 30, 2022) (collecting cases). Therefore, it is recommended that the motion to
dismiss the EMTALA cause of action be granted as to all defendants, including Arnot.

3

Plaintiffs also argue that this Court improperly dismissed their claim of denial of access
to the courts against the Chemung County defendants without affording them the opportunity to
amend their complaint. Dkt. #42, p.35. Judge Arcara dismissed with prejudice plaintiffs’ claim
that the County defendants denied plaintiffs access to the courts when they returned plaintiffs’
lawsuit to Cerious McCray with a letter recommending that plaintiffs file the lawsuit in the New
York Court of Claims because the Chemung County defendants are protected by the Eleventh
Amendment and absolute quasi-judicial immunity. Dkt. #15, pp.39-40.

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See Dos Santos v. Assurant, Inc., 625 F.Supp.3d 121, 130 (S.D.N.Y. 2022)
(recognizing district court’s authority to dismiss a pro se cause of action sua sponte
where the facts supporting the defense are set forth on the face of the complaint).

CO Wellman
In its screening order, the Court allowed plaintiffs’ claim that Lydia McCray
was denied visitation with Cerious McCray to proceed against CO Wellman. Dkt. #15,
p.30. Plaintiffs’ complaint alleges that Lydia McCray arrived at Elmira on December 4,
2012 to visit Cerious McCray but did not clear the metal detector. Dkt. #1, ¶¶ 201-202.
When Lydia McCray asked CO Wellman to use a hand scanner because she had m any
pins in her hair, he advised that he did not have a hand scanner. Dkt. #1, ¶¶ 201-202.
Lydia McCray informed CO Wellman that she was a CO at the Fishkill Correctional
Facility (“Fishkill”), prompting CO Wellman to ask for her letter of approval to visit an
inmate. Dkt. #1, ¶¶ 201-202.

When Lydia McCray advised that she did not have the lettre with her, CO
Wellman advised that his supervisor required this document, prompting Lydia McCray
to ask to speak to the supervisor or the Deputy of Security. Dkt. #1, ¶¶ 201-202. CO
Wellman responded that no one was available and provided her with the fax number for
Elmira so that she could call Fishkill and have them fax a copy. Dkt. #1, ¶¶ 201-202.
Lydia McCray called Fishkill, but the Deputy of Security was not immediately available.
Dkt. #1, ¶¶ 201-202. Lydia McCray alleges that she pleaded with CO Wellman that she
had traveled five hours because she had not heard f rom her son since his first surgery
a month prior and that he had been rushed back to the hospital tw ice since then after
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suffering substantial blood loss. Dkt. #1, ¶¶ 201-202. CO W ellman advised Lydia
McCray that there were Corrections Officers from Fishkill at Elmira and she should think
about how they might respond if they saw her visiting an inmate. Dkt. #1, ¶¶ 201-202.

Lydia McCray subsequently advised the Deputy of Security at Fishkill of
the events at Elmira and was informed that CO Wellman had reported that Lydia
McCray was denied visitation because she did not comply with the rules for scanning
and became belligerent. Dkt. #1, ¶¶ 201-202. Lydia McCray was assured that Cerious
McCray would call her on the evening of December 5, 2012, but he was unable to call
until December 12, 2012 because Elmira had placed a block on Lydia McCray’s
account. Dkt. #1, ¶¶ 201-202.

CO Wellman argues that inmates do not have a constitutional right to
visitation and that the denial of visitation in this instance was justified by Lydia McCray’s
failure to clear the metal detector and failure to provide proper documentation. Dkt.
#30-1, pp.11-12.

Plaintiffs argue that Lydia McCray had permission from the Inspector
General to maintain her familial relationship with Cerious McCray. Dkt. #1, pp.27-28.
Plaintiffs complain that CO Wellman arbitrarily required Lydia McCray to produce
documentation that he was not authorized to demand and wrongfully refused to call a
supervisor who could easily have determined that Lydia McCray was allowed to visit
Cerious McCray. Dkt. #1, pp.27-28 & 37. Plaintiffs also argue that Lydia McCray should
have been afforded more than one chance to clear the metal detector. Dkt. #42, p.27.
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CO Wellman replies that even if he violated regulations, such violation
would not support a claim under 42 U.S.C. § 1983 because the denial of visitation on
one occasion fails to rise to the level of a First Amendment violation and the facts do
not plausibly allege malicious action. Dkt. #50, pp.4-5.

Plaintiffs reply that CO Wellman’s requirement that Lydia McCray produce
documentation was malicious. Dkt. #45, pp.33-34. Plaintiffs also argue that CO
Wellman’s reliance upon Lydia McCray’s failure to clear the metal detector is
disingenuous because she was willing to submit to a more intrusive hand wand
procedure. Dkt. #45, pp.35-36.

In Overton v. Bazzetta, the United States Supreme Court recognized that
“freedom of association is among the rights least compatible with incarceration,” but
otherwise declined to explore or define the right of association, including the right to
maintain familial relationships, because the regulations at issue in that case bore a
rational relation to legitimate penological interests. 539 U.S. 126, 131-32 (2003). The
Court of Appeals for the Second Circuit similarly declined to recognize a First
Amendment right to visitation between inmates and their families, determining that even
assuming such a right, it “must be subject to reasonable restrictions on the tim e, place
and manner of visits.” Mills v. Fischer, 497 Fed. App’x 114, 116 (2d Cir. 2012), cert.
denied, 568 U.S. 1170 (2013).

In Mills, the Court of Appeals determined that the denial of visitation on a
single occasion by a prison guard who mistakenly applied a more stringent rule that was
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not in itself unreasonable did not give rise to a constitutional claim. Id. at 117; See also,
Lopez v. Reynolds, 998 F. Supp. 252, 259 (W .D.N.Y. 1997) (“A prison inmate does not
have a viable § 1983 claim based solely on prison officials’ failure to adhere to the
requirements of prison regulations, directives or policy statements.”). The court
recognized, however, that “the intentional or malicious deprivation of visitation to a
prisoner, even on one occasion, could rise to the level of a constitutional violation.”
Mills, 497 Fed. App’x at 116. Because plaintiffs “alleged only rudeness and not malice,”
the Court of Appeals determined that the complaint failed to state a plausible claim
under the First Amendment. Id. at 117.

In the instant case, even assuming that CO Wellman erred in requiring
Lydia McCray to produce a letter of approval before allowing her to visit Cerious
McCray on December 4, 2012, plaintiffs have not plausibly alleged that CO Wellman’s
error was malicious. See Al-Haj v. Singer, No. 19-CV-3135, 2021 WL 4442854, at *4
(S.D.N.Y. Sept. 28, 2021) (dismissing complaint of denial of visit from siblings where
complaint did not contain factual allegations of malicious intent or assert continuing
problem); Malave v. Weir, 3:16-cv-9, 2018 WL 500644, at *7 (D.Conn. Jan. 22, 2018)
(finding that “there is no clearly established constitutional right of a prisoner or the
prisoner’s spouse against the suspension by prison officials of in-person visitation or
telephone communications for a period as long as eight months.”), aff’d, 750 Fed. App’x
65 (2d Cir. 2019). In total, plaintiffs allege one month elapsed between the prior visit
and the visit that was denied, followed by eight days without telephone communication.
As a result, it is recommended that the motion to dismiss be granted as to CO
Wellman.
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ADA
Plaintiff’s complaint alleges that on December 20, 2012, while attempting
to locate Cerious McCray to appear as a witness for a Tier III disciplinary hearing on
behalf of Rakin Paulin, CO Stamp alerted “all areas” that Cerious McCray was missing,
even though several porters informed CO Stamp that Cerious McCray was in the law
library. Dkt. #1, ¶¶ 202-203. Cerious McCray alleges that Corrections Officers were
aware that he was related to Rakin Paulin and willfully deprived them of the right to be
free from association discrimination under the Americans with Disability Act of 1990
(“ADA”), “because they both were black, known complainers[,] and suffered from
mental health disabilities.” Dkt. #1, ¶¶ 204-205. Cerious McCray received a
misbehavior report for remaining in the law library without being on the callout. Dkt. #1,
¶ 204. He alleges that the disciplinary hearing was scheduled for December 24, 2012 to
prevent him from attending a medical callout and that the punishment imposed, to wit,
30 days keeplock, delayed his opportunity for transfer to a facility closer to his family
and affected his ability to contact his family over the holidays, in violation of his right to
be free from association discrimination under the ADA. Dkt. #1, ¶¶ 209 & 213. Cerious
McCray also alleges that Nurse Seeley violated the ADA by feeding him pork and
subjecting him to confinement in a filthy cell “because of his race . . . and because of
his disabilities and in retribution for his protest activities.” Dkt. #1-1, ¶ 219.

Although the screening order did not recognize a claim under the ADA or
Rehabilitation Act, defendants argue that any such claim must be dismissed against all
of the individual defendants because neither statute allows for claims against
individuals. Dkt. #30-1, pp.8-9.
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Plaintiffs respond that they are attempting to bring the ADA claims against
the State, Elmira and Arnot Ogden Medical Center. Dkt. #42, p.32.

In as much as “neither Title II of the ADA nor § 504 of the Rehabilitation
Act provides for individual capacity suits against state officials,” the Court recommends
that any such claim be dismissed against the individual defendants. Garcia v. S.U.N.Y.
Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); See Goe v. Zucker,
43 F.4th 19, 35 (2d Cir. 2022), citing Perros v. County of Nassau, 238 F. Supp.3d 395,
402 n.3 (E.D.N.Y. 2017) (“[I]t is well-established that there is no individual liability under
the ADA or the Rehabilitation Act, whether the individual is sued in their official or
individual capacity.”).

CONCLUSION
For the reasons set forth above, it is recommended that any cause of
action against Arnot pursuant to 42 U.S.C. § 1983 be dismissed; the EMTALA claim be
dismissed; the denial of visitation claim against CO Wellman be dismissed; and any
claim under the ADA or Rehabilitation Act be dismissed against the individual
defendants.

Therefore, it is hereby ORDERED pursuant to 28 U.S.C. § 636(b)(1) that:

This Report, Recommendation and Order be filed with the Clerk of the
Court.

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ANY OBJECTIONS to this Report, Recommendation and Order must be
filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this
Report, Recommendation and Order in accordance with the above statute,
Fed.R.Civ.P. 72(b) and Local Rule 72(b).

The district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not presented to
the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v.
Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).

Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order. Thomas v.
Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Wesolek v. Canadair Ltd.,
838 F.2d 55 (2d Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b) of the Local Rules
for the Western District of New York, "written objections shall specifically identify the
portions of the proposed findings and recommendations to which objection is made and
the basis for such objection and shall be supported by legal authority." Failure to
comply with the provisions of Rule 72(b) may result in the District Judge's refusal to
consider the objection.

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The Clerk is hereby directed to send a copy of this Report,
Recommendation and Order to the attorneys for the parties.

SO ORDERED.

DATED:

Buffalo, New York
October 24, 2023
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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