Busch v. Howard et al

Filing 57

ORDER granting 49 Motion for Summary Judgment. Signed by Chief District Judge Christina Clair Reiss on 8/28/24. (SG)

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
JAMES BUSCH,
Plaintiff,
V.

COUNTY OF ERIE,
GRACE MOKA, RN,
JESSICA HALL, NP,
MIKE MCBRIDE, LPN,
JULIA DIBIASE-JOHNSTON, RN,
LYDIA TORRES, RN,
ALLISON PARK.ER,
HEIDI CORNELL, NP,
DEBRA WESTFIELD, RN,
JOHN DOES 1-10,
SHC SERVICES, INC., and
JOHN DOES 1-10,
Defendants.

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Case No. 1:20-cv-0 1515

OPINION AND ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
(Doc. 49)
Plaintiff James Busch brings this suit against Defendants County of Erie; Grace
Moka, RN; Jessica Hall, NP; Mike McBride, LPN; Julia DiBiase-Johnston, RN; Lydia
Torres, RN; Allison Parker; Heidi Cornell, NP; Debra Westfield, RN; John Does 1-10,
intended to be the individuals/officers responsible for supervising the Plaintiff; SHC
Services, Inc.; and John Does 1-10, intended to be the individuals/medical professionals
responsible for providing medical care to Plaintiff while he was incarcerated.
Plaintiffs claims arise from his contraction of Hepatitis A while at the Erie
County Holding Center and the Erie County Correctional Facility ("ECCF"). In his
Amended Complaint, Plaintiff alleges negligence (Count I); violations of 42 U.S.C.
§ 1983 (Count II); and conspiracy to deprive him of his civil rights (Count III).

In a May 6, 2022 Opinion and Order, the court granted in part and denied in part
Defendants' motion for judgment on the pleadings and dismissed Plaintiffs Monell
claims against the County of Erie. (Doc. 30.) On April 13, 2023, the court entered the
parties' stipulation of dismissal as to SHC Services, Inc. (Doc. 41.)
Pending before the court is Defendants' motion for summary judgment filed on
January 8, 2024. (Doc. 49.) Plaintiff opposed the motion on February 1, 2024. (Doc. 53.)
Defendants replied on February 14, 2024, at which time the court took the pending
motion under advisement. (Doc. 55.)
Plaintiff is represented by Blake Joseph Zaccagnino, Esq. Defendants are
represented by Anthony B. Targia, Esq., and Eric Warren Marriott, Esq.

I.

Whether to Consider the Defendants' Statement of Material Facts.
Plaintiff asks the court to deny Defendants' motion for failure to submit a

statement of material facts as required by Western District ofNew York Local Rule
("W.D.N.Y. Loe. R.") 56(a)(l). Defendants concede this failure but cite the statement of
facts included within their motion's declaration and a statement of material facts
submitted with their reply as a remedy negating the need for dismissal on this basis.
Pursuant to W.D.N.Y. Loe. R. 56, a party moving for summary judgment must file
"a separate, short, and concise statement, in numbered paragraphs, of the material facts as
to which the moving party contends there is no genuine issue to be tried[,]" including
"citation to admissible evidence or to evidence that can be presented in admissible form
at trial[.]" Loe. R. Civ. P. 56(a)(l) (emphasis omitted). "Failure to submit a statement in
compliance with this Rule may constitute grounds for denial of the motion." Id.
The opposing statement "shall include a response to each numbered paragraph in
the moving party's statement, in correspondingly numbered paragraphs[.]" Loe. R. Civ.
P. 56(a)(2). "Each numbered paragraph in the moving party's statement of material facts
may be deemed admitted for purposes of the motion unless it is specifically controverted
by a correspondingly numbered paragraph in the opposing statement." Id. The nonmoving party may also include "additional paragraphs containing a short and concise
statement of additional material facts as to which it is contended there exists a genuine
2

issue to be tried." Id. (emphasis omitted).
In support of their motion, Defendants provide a "factual history" section in their
attorney's declaration that enumerates factual statements with citations to supporting
evidence. See Doc. 49-1 at 4-10. Plaintiff neither disputed these facts nor moved to strike
them but rather submitted his own statement of undisputed facts. (Doc. 54.) Thereafter,
Defendants submitted a statement of material facts and a response to Plaintiffs statement
of undisputed facts. (Doc. 55-1.) In such circumstances where both parties have had an
opportunity to identify undisputed and disputed facts, Defendants' failure to file a
separate statement is not sufficiently egregious to warrant dismissal of their motion. See

City ofNew York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir.2011)
(affirming the Second Circuit's "strong preference for resolving disputes on the merits")
(citation and internal quotation marks omitted).
The Western District of New York Local Rules contemplate the non-moving party
to submit a response and additional material facts concerning "a genuine issue to be
tried." Loe. R. Civ. P. 56(a)(2). Plaintiffs statement, sworn to by his attorney, includes
several facts without record citations, see Doc. 54 at 6, 9 ,r,r 19, 27, as well as excerpts
from an expert witness's opinion. See id. at 5, ,r 17. The court considers Plaintiffs

statement to the extent it is supported by admissible evidence and disregards it to the
extent it is not. See Fed. R. Civ. P. 56(c)(l) (stating that "[a] party asserting that a fact
cannot be or is genuinely disputed must support the assertion" with citations to the
record); Picardv. JABA Assocs. LP, 49 F.4th 170, 181 (2d Cir. 2022) ("Only admissible
evidence need be considered by the trial court in ruling on a motion for summary
judgment, and a district court deciding a summary judgment motion has broad discretion
in choosing whether to admit evidence.") (alteration adopted) (citation and internal
quotation marks omitted).
For the reasons stated above, Plaintiffs request to deny summary judgment based
on non-compliance with W.D.N.Y. Loe. R. 56(a)(l) is DENIED.

II.

Undisputed Facts.
On August 8, 2019, Plaintiff was taken into custody and housed at the Erie County
3

Holding Center before transfer to ECCF on August 17, 2019. When he entered these
facilities as a pretrial detainee, he did not have Hepatitis A. According to an October 8,
2019 press release from the Erie County Department of Health, symptoms of Hepatitis A
include fatigue, abdominal pain, fever, dark urine, pale stools, and yellowing of the skin
and eyes. Defendants were aware of these symptoms.
On October 15, 2019, Plaintiff reported "fatigue and generalized body ache"
during a visit with Grace Moka, RN, and reported being "poisoned" possibly from peanut
butter. (Doc. 49-4 at 2) (internal quotation marks omitted). He stated that he was
"freezing, yet warm to the touch" and denied "GI or respiratory symptoms." Id. at 2, 4.
Defendant Moka prescribed Tylenol and advised Plaintiff to increase his fluid intake.
The next day, Plaintiff saw David Julien, FNP, for a knee injury follow-up
appointment. Mr. Julien cleared Plaintiff for work and noted that Plaintiff was "alert and
oriented[,]" had "a pleasant disposition[,]" was not in pain or distress, and was afebrile.
Id. at 8. Plaintiffs Naproxen prescription was thereafter renewed.

On October 18, 2019, Plaintiff reported cold symptoms and completed a request
for a medical visit (a "sick call slip"). The following day, he was seen by Julie DiBiaseJohnston, RN, and complained of"fever and having an infection ... [and] feels like he
was poisoned." Id. at 9. Defendant DiBiase-Johnston reported that Plaintiff denied having
a sore throat, respiratory distress, or a cough but stated that his urine was dark and
stringy, his mucous membrane and lips were dry, and he had poor turgor. Plaintiff stated
that he drinks two cups of water per day. Defendant DiBiase-Johnston advised him to
increase his fluid intake and follow up with medical providers if his symptoms persisted
or worsened.
After Plaintiff submitted a sick call slip on October 21, 2019, reporting multiple
complaints, he was seen by Allison Parker later that same day. She wrote that he
complained of "ongoing malaise, dark urine, body aches, [and soft,] pale stool[,]" id. at
13, he denied respiratory concerns, and he did not present with a fever. He stated he
"feels he has an intestinal parasite[,]" reported "unprotected sex while in community[,]"
and claimed that he intentionally did not report his symptoms to Mr. Julien because he
4

desired a work clearance. Id. at 15. After the appointment, Heidi Cornell, NP, ordered
blood tests and a urinalysis.
Thereafter, during an appointment with Defendant Cornell, Plaintiff stated that he
was experiencing fatigue, body aches, decreased appetite, a fever, abdominal pain,
discolored urine, and pale stools. He reiterated his belief that he had a parasite and denied
alcohol usage or a history of hepatitis. She advised that she would follow up with him
"once labs have been rec[ei]ved and reviewed." (Doc. 49-4 at 19.)
On October 23, 2019, providers reviewed Plaintiffs laboratory results, which
revealed a normal complete blood count, negative STD and HIV results, and a negative
thyroid panel but increased bilirubin, alkaline phosphate, AST, and ALT in his
comprehensive metabolic panel. Debra Westfield, RN, completed an "offsite consult
form" which explained the reason for referral to Erie County Medical Center ("ECMC")
as "evaluation and treatment abdominal pain, fatig[u]e, decreased appe[tite], i[]cteric
urine and fever[.]" Id. at 24. Plaintiff was transported to ECMC that day.
Upon his arrival at ECMC on October 23, 2019, Plaintiff complained of jaundice,
abdominal pain, and poor appetite. He was diagnosed with Hepatitis A. In the evening of
October 24, 2019, an ECMC provider noted that Plaintiff "request[ed] discharge" and
wrote "[p]atient medically cleared and stable for discharge back to facility." (Doc. 49-5 at
35.)
On October 31, 2019, Plaintiff was discharged from ECMC, and correctional
facility medical staff thereafter monitored his liver with routine blood work. The Erie
County Department of Health also conducted contact tracing and determined that no
other inmate in the ECCF men's unit contracted Hepatitis A at the same time as Plaintiff.
Plaintiff testified at a 50-H hearing that he requested a work clearance for the kitchen
after he returned to ECCF, "at the end of [the] monitoring [of] [his] liver levels[,]" and
felt he was "[a]bsolutely[]" able to perform the job. (Doc. 49-2 at 45.)
Defendants assert that Plaintiff contracted Hepatitis A through consuming
unpasteurized wine, citing an ECMC medical record in which he reported to a medical
treatment provider that he "occasionally consumes 'unpasteurized wine' which is
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surreptitiously made in the facility[,]" and the ECMC provider's statement on October
24, 2019, that Plaintiffs illness was "[l]ikely transmitted via poor preparation of present
wine versus poor preparation of food[.]" (Doc. 49-5 at 27, 31.) In a 50-H hearing,
Plaintiff testified that he recalled his statement to the ECMC provider, admitted he has
obtained unpasteurized wine on one occasion from another inmate, and explained that it
is made by placing the juice and sugar inmates receive into a bowl until the mixture
ferments into wine. (Doc. 49-2 at 60-62.) He claimed to have heard of the term "hooch[]"
but not "toilet wine[.]" Id. at 62.
In his deposition, Plaintiff denied that he had ever consumed alcohol made at a
holding center. 1 Plaintiff references an October 24, 2019 ECMC medical record stating
that his Hepatitis A was "[l]ikely transmitted via poor preparation of food[,]" (Doc. 49-5
at 35), and an internal email from an Erie County employee who restated an Erie County
epidemiologist's, Mary Walawander's, opinion that Plaintiff"most likely contracted
Hep[atitis] A inside facility at [the holding center]. (8/26-9/30)[.]" (Doc. 53-15 at 29.) 2
Mary Walawander-Lanning, an epidemiologist from whom Defendants submitted
an affidavit, averred that Hepatitis A is contracted through sexual contact, ingesting the
virus from food or drinks, or contact with objects contaminated with fecal matter. She
explained that unpasteurized wine is "known to be hidden inside of toilets" and Plaintiffs
consumption of it was a potential source of his infection. (Doc. 49-16 at 2, 15.) Alcohol
is contraband at ECCF, and promoting prison contraband at the facility is a Class D
felony. Mike McBride, LPN, testified that he had observed ECCF inmates using their
toilet as a refrigerator during the summer. There is no evidence that Plaintiff had contact
with another inmate who had Hepatitis A or that the food at the facility was determined to

1

Plaintiff does not dispute he made a contrary statement to an ECMC provider on October 24,
2019. See Fed. R. Evid. 803(4) (explaining that a "statement that: (A) is made for--and is
reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past
or present symptoms or sensations; their inception; or their general cause[]" is not excluded by
the hearsay rule even if the declarant is available as a witness).
2

It is undisputed that Plaintiff contracted Hepatitis A within the facility. How he contracted it,
whether by self-inflicted injury or by some other means not yet established, is contested.

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be a cause of Plaintiffs Hepatitis A.

III.

Disputed Facts.
Defendants dispute the presence of anyone with Hepatitis A at Erie County

Holding Center or ECCF in October 2019. They note that Plaintiff does not distinguish
between the two facilities at which he was incarcerated at different times and assert that
he does not demonstrate that he had contact with anyone in Erie County with Hepatitis A.
They state Plaintiffs evidence reveals one female inmate who contracted Hepatitis A one
month before Plaintiff became symptomatic; however, Erie County Holding Center and
ECCF house genders separately, and there is no evidence Plaintiff had contact with this
female inmate.
Plaintiff claims that at least four inmates were diagnosed with Hepatitis A in April
and September 2019. 3 He does not claim any contact with these inmates.
Tim Kane, RN, LNC, an expert for Plaintiff, opined that the ECMC providers "did
not use the [Centers for Disease Control and Prevention ("CDC")] recommended
guideline of prisons keeping a watch for 102 days" after a Hepatitis A exposure. (Doc.
53-18 at 7, ,r 18.) Mr. Kane stated that the "nursing staff and medical staff violated a

ECSO policy on assessments of inmates[,]" because nurses did not "obtain a complete set
of vital signs for all symptomatic assessments and assessment of the complaint." Id. at

,r 20. Mr. Kane claims that if Defendants had abided by CDC and ECSO policies,

Plaintiff would have been diagnosed and isolated sooner. Defendants contest this opinion
by challenging it as a claim of medical malpractice insufficient to rise to the level of a
constitutional violation.

3

Plaintiffs evidence appears to document one male inmate diagnosed with Hepatitis A on April
7, 2019, see Doc. 53-15 at 39, 60, one female inmate who tested positive on September 16, 2019,
and one additional confirmed infected female on September 20, 2019. Id at 10, 70. Citing news
articles and press releases, Plaintiff notes that there were Hepatitis A cases in the community.
See Doc. 53-16. He also claims that there was an "outbreak" at Erie County Holding Center and
ECCF but makes this assertion "upon information and beliefl.]" Doc. 53 at 2, ,r 7; see Dellacava
v. Painters Pension Fund a/Westchester & Putnam Cntys., 851 F.2d 22, 26 (2d Cir. 1988)
(rejecting statement based "upon information and belief' as admissible evidence for purposes of
summary judgment) (citation and internal quotation marks omitted).
7

With regard to Plaintiffs hospitalization, Defendants assert that he requested and
was cleared for discharge on October 24, 2019, but the Erie County Department of Health
recommended Plaintiff remain hospitalized for an additional week to prevent Hepatitis A
transmission. Plaintiff contends that he was not released until November 1, 2019, "[a]s a
result of his condition[.]" (Doc. 53 at 2, ,r 10.)

IV.

Conclusions of Law and Analysis.
A.

Standard of Review.

The court must grant summary judgment when "there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ.
P. 56(a). "A fact is 'material' ... if it 'might affect the outcome of the suit under the
governing law."' Rodriguez v. Vil!. Green Realty, Inc., 788 F .3d 31, 39 (2d Cir. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986)). "A dispute of fact is
'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."' Id. at 39-40 (quoting Anderson, 477 U.S. at 248). The court
"constru[es] the evidence in the light most favorable to the non-moving party[]" and
"resolve[s] all ambiguities and draw[ s] all permissible factual inferences in favor of the
party against whom summary judgment is sought." Lenzi v. Systemax, Inc., 944 F.3d 97,
107 (2d Cir. 2019) (citations and internal quotation marks omitted).
The moving party always "bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted). "Once the moving party demonstrates that there are no genuine issues of
material fact, the nonmoving party must come forth with evidence sufficient to allow a
reasonable jury to find in [its] favor." Spinelli v. City ofNew York, 579 F.3d 160, 166 (2d
Cir. 2009) (alteration in original) (citation and internal quotation marks omitted). "Thus,
a nonmoving party can defeat a summary judgment motion only by coming forward with
evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to
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establish the existence of [an] element at trial." Id. at 166-67 (alterations in original)
(citation and internal quotation marks omitted).
"The function of the district court in considering the motion for summary
judgment is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists." Kaytor v. Elec. Boat Corp., 609 F .3d
537, 545 (2d Cir. 2010) (citation omitted). "A non-moving party cannot avoid summary
judgment simply by asserting a 'metaphysical doubt as to the material facts."' Woodman
v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at
249-50 (citations omitted). However, if the evidence "presents a sufficient disagreement
to require submission to a jury[,]" the court should deny summary judgment. Id. at 25152.
"Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge." Kaytor, 609
F.3d at 545 (citation, emphasis, and internal quotation marks omitted). In this case,
although there are disputed issues of fact, none are material to a resolution of the issues
for which Defendants seek summary judgment. See Anderson, 477 U.S. at 247-48 ("[T]he
mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact.") (emphasis in original).

B.

Whether to Grant Summary Judgment on Plaintiff's § 1983 Claim.
1.

Whether Plaintiff's§ 1983 Claim Should Be Considered Under
the Eighth or Fourteenth Amendment.

To state a§ 1983 claim under the Eighth Amendment's Cruel and Unusual
Punishment Clause, a convicted prisoner must establish that the state was deliberately
indifferent to his or her serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). In contrast, "[a] pretrial detainee's claims of unconstitutional conditions of
confinement are governed by the Due Process Clause of the Fourteenth Amendment,
9

rather than the Cruel and Unusual Punishments Clause of the Eight[h] Amendment."
Darnell v. Pineiro, 849 F .3d 17, 29 (2d Cir. 2017). The rights of pretrial detainees "are at
least as great as the Eighth Amendment protections available to a convicted prisoner."
City ofRevere v. Mass. Gen. Hosp., 463 U.S. 239,244 (1983).
Plaintiff states that he "was a pretrial detainee at the time of his injuries" and
"argues that [although] the evidence establishes his claim under both the Eighth and
Fourteenth Amendments and that many issues of fact on both causes of action
exist, ... this case should be analyzed under the Fourteenth Amendment." (Doc. 53-1 at
6) (emphasis omitted). Defendants reference both Amendments when discussing
Plaintiffs § 1983 failure to treat claim and acknowledge Plaintiffs pretrial status in their
reply, noting that the Second Circuit has determined that the same objective test applies
under both Amendments. See Darnell, 849 F .3d at 30 ("Under both the Eighth and
Fourteenth Amendments, to establish an objective deprivation, 'the inmate must show
that the conditions, either alone or in combination, pose an unreasonable risk of serious
damage to his health[.]") (citation and internal quotation marks omitted).
For the foregoing reasons, the court considers Plaintiffs § 1983 claim as one
asserted by a pretrial detainee under the Due Process Clause of the Fourteenth
Amendment.

2.

Whether Defendants Violated the Due Process Clause of the
Fourteenth Amendment.

"[T]he official custodian of a pretrial detainee may be found liable for violating
the detainee's due process rights if the official denied treatment needed to remedy a
serious medical condition and did so because of his deliberate indifference to that need."
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). As the Second Circuit observed in
Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019):
It is well established that when the state takes a person into custody,
severely limiting his ability to care for himself, and then is deliberately
indifferent to his medical needs, the ... proscription against the
unnecessary and wanton infliction of pain is violated. That is true whether
the deliberate indifference is manifested by prison doctors in their response
to the prisoner's needs, or by prison guards who intentionally deny or delay
10

access to medical care or intentionally deny or delay access to the treatment
once prescribed.

Id. (citing Estelle, 429 U.S. at 104-05). "In order to state a cognizable claim, a prisoner
must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs." Estelle, 429 U.S. at 106.
A "serious medical need" is one that requires urgent treatment and may result in
"death, degeneration, or extreme pain." Charles, 925 F.3d at 86. It may also arise where
"the failure to treat a prisoner's condition could result in further significant injury or the
'unnecessary and wanton infliction of pain[.]'" Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). To
assess seriousness, courts consider "whether a reasonable doctor or patient would find the
injury important and worthy of treatment, whether the medical condition significantly
affects an individual's daily activities, and whether the illness or injury inflicts chronic
and substantial pain." Charles, 925 F.3d at 86. The conditions "must be evaluated in light
of contemporary standards of decency." Darnell, 849 F.3d at 30 (citation and internal
quotation marks omitted). "[I]n most cases, the actual medical consequences that flow
from the alleged denial of care will be highly relevant to the question of whether the
denial of treatment subjected the prisoner to a significant risk of serious harm." Smith v.

Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) (footnote omitted).
"A plaintiff can prove deliberate indifference by showing that the defendant
official 'recklessly failed to act with reasonable care to mitigate the risk that the condition
posed to the pretrial detainee even though the defendant-official knew, or should have

known, that the condition posed an excessive risk to [the plaintiffs] health or safety."'
Charles, 925 F.3d at 87 (alteration and emphasis in original) (quoting Darnell, 849 F.3d
at 35). As a result, a delay in medical care may in certain cases establish deliberate
indifference to medical needs, but "a prisoner's [constitutional] rights are violated only
where 'the delay reflects deliberate indifference to a serious risk of health or safety, to a
life-threatening or fast-degenerating condition or to some other condition of extreme pain
that might be alleviated through reasonably prompt treatment[.]'" Rodriguez v. Ames, 224
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F. Supp. 2d 555, 561 (W.D.N.Y. 2002) (quoting Rodriguez v. Mercado, 2002 WL
1997885, at *9 (S.D.N.Y. Aug. 28, 2002)).
Defendants contend that Plaintiff received reasonable care and there is no
evidence of deliberate indifference to a substantial risk of harm. Plaintiff counters that
Defendants understood that Hepatitis A is a serious medical condition requiring urgent
treatment to prevent harm, were aware of prior Hepatitis A cases, and knew or should
have known that his symptoms were indicative of Hepatitis A. He claims his delayed
diagnosis, unnecessary pain and suffering, and lengthy hospitalization could have been
avoided.
"It is well-established that mere disagreement over the proper treatment does not
create a constitutional claim .... Moreover, negligence, even if it constitutes medical
malpractice, does not, without more, engender a constitutional claim." Chance, 143 F.3d
at 703 (citations omitted). However, "certain instances of medical malpractice may rise to
the level of deliberate indifference; namely, when the malpractice involves culpable
recklessness, i.e., an act or a failure to act by the prison doctor that evinces a conscious
disregard of a substantial risk of serious harm." Id. (citation and internal quotation marks
omitted). "In certain instances, a physician may be deliberately indifferent if he or she
consciously chooses 'an easier and less efficacious' treatment plan." Id. (quoting

Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). "Whether a course of treatment
was the product of sound medical judgment, negligence, or deliberate indifference
depends on the facts of the case." Id.
On October 15, 2019, Plaintiff first reported symptoms of fatigue and body aches.
He was seen by a medical professional on that day. The next day, he presented with no
fever, a good disposition, and intentionally did not report his symptoms to Mr. Julien. On
October 18, 2019, he reported cold symptoms on a sick call slip, and on October 19,
2019, Defendant DiBiase-Johnston recorded symptoms consisting of dark and stringy
urine, dry mucous membranes and lips, and poor turgor. She advised Plaintiff to increase
his fluid intake and follow up ifhis symptoms worsened. On October 21, 2019, Plaintiff
visited Defendant Parker, who noted Plaintiff reported dark urine, pale and soft stools,
12

malaise, body aches, although he did not have a fever. That same day, Defendant Cornell
ordered laboratory testing.
Thereafter, Plaintiff reported continued symptoms to Defendant Cornell. After
Plaintiffs laboratory results were received on October 23, 2019, he was transported to
ECMC for hospitalization on that same day.
Because Plaintiff falsely reported he had recovered from his symptoms on October
16, 2019, and then sought medical treatment on October 18, 2019, for cold symptoms,
any delay in treatment was from October 18 to October 23 when he was transported to
the hospital. During that time period, he was seen three times by medical professionals
and laboratory tests were ordered, reviewed, and acted upon the same day as their receipt.
It is against this backdrop that the court evaluates Plaintiffs Fourteenth Amendment
claim.

a.

Whether Plaintiff Establishes Personal Involvement.

As a threshold issue, in order to survive summary judgment, "[a] plaintiff must
establish a given defendant's personal involvement in the claimed violation in order to
hold that defendant liable in his individual capacity under§ 1983." Patterson v. County of
Oneida, 375 F.3d 206, 229 (2d Cir. 2004). The Second Circuit has held that "personal
involvement" under § 1983 means "direct participation, or failure to remedy the alleged
wrong after learning of it, or creation of a policy or custom under which unconstitutional
practices occurred, or gross negligence in managing subordinates." Black v. Coughlin, 76
F.3d 72, 74 (2d Cir. 1996).
Plaintiff adduces no evidence that Defendants Hall, McBride, Torres, or Westfield
treated him during the relevant period. His § 1983 claims against these Defendants
therefore must be DISMISSED. See Hicks v. City ofBuffalo, 124 F. App'x 20, 23-24 (2d
Cir. 2004) (summary order) ("[Defendant] had no personal involvement in any of the
events ... [t]herefore, he cannot be liable for any aspect of the§ 1983 claim that arises
therefrom.").

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b.

Whether Plaintiff Proffers Admissible Evidence of
Deliberative Indifference.

Plaintiff has addressed some evidence of personal involvement by Defendants
Cornell, DiBiase-Johnston, Moka, and Parker. Hepatitis A is a serious medical condition,
and Defendant DiBiase-Johnston affirmed the urgent need for a higher level of care for a
symptomatic Hepatitis A patient. There is no evidence, however, that treatment
providers, such as Defendants DiBiase-Johnston or Moka, knew that Plaintiff had
Hepatitis A and disregarded the diagnosis. "[A] complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth [or Fourteenth] Amendment." Estelle, 429 U.S. at
106. Plaintiff was seen each time he requested medical care by medical professionals who
provided escalating treatment and immediately transferred him to the hospital after
receiving his blood test results. See Chance, 143 FJd at 703 ("So long as the treatment
given is adequate, the fact that a prisoner might prefer a different treatment does not give
rise to an Eighth Amendment violation.").
From the date of his reporting cold symptoms on October 15, 2019, until he was
transported for hospitalization on October 23, 2019, there was a period of eight days.
Plaintiff saw a medical professional on five of those days. He intentionally did not
disclose his symptoms to one medical professional, thereby suggesting his symptoms had
been resolved. He does not proffer evidence that he had contact with an inmate infected
with Hepatitis A, nor does he establish that there was an outbreak of hepatitis due to food
contamination. Instead, he reported to medical professionals that he felt he had been
"poisoned" and had an "intestinal parasite[,]" and he admits that he reported he consumed
unpasteurized wine that was provided by another inmate. (Doc. 49-4 at 2, 15.)
Although Plaintiff emphasizes the delay of hospitalization, "delay alone will not
give rise to a constitutional claim unless the delay causes substantial harm[,]" and none is
claimed here. Evan v. Manos, 336 F. Supp. 2d 255, 262 (W.D.N.Y. 2004). Plaintiff has
not produced any evidence of substantial harm, he requested and was cleared for
discharge the day after he was admitted, and stated he was "[a]bsolutely[]" able to
14

perform work assignments shortly after his release. (Doc. 49-2 at 45.)
Based on the undisputed facts, no rational jury could conclude that Defendants
acted with deliberate indifference and deprived Plaintiff of medical care causing
"substantial harm" to him in violation of the Due Process Clause of the Fourteenth
Amendment. 4 Accordingly, the court GRANTS Defendants' motion for summary
judgment on Plaintiffs § 1983 claim based on the alleged failure to treat.

c.

Whether Plaintiff Has Established a Conditions of
Confinement Claim.

To the extent Plaintiff alleges a "conditions of confinement" claim, it also fails.
"Conditions of confinement may be aggregated to rise to the level of a constitutional
violation, but only when they have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such as food, warmth, or exercise."
Darnell, 849 F.3d at 30 (alteration adopted) (citation and internal quotation marks
omitted). For example, "[u]nsanitary conditions, especially when coupled with other
mutually enforcing conditions, such as poor ventilation and lack of hygienic items (in
particular, toilet paper), can rise to the level of an objective deprivation." Id. Courts
"analyze allegedly unconstitutional unsanitary conditions of confinement ... with
reference to their severity and duration, not the detainee's resulting injury." Id.
"[C]orrectional officials have an affirmative obligation to protect inmates from
infectious disease." Jolly v. Coughlin, 76 F.3d 468,477 (2d Cir. 1996). Indeed, "[c]ourts
4

Compare Victor v. Milicevic, 361 F. App'x 212,214 (2d Cir. 2010) (summary order) (affirming
summary judgment on deliberate indifference claims in favor of a doctor who had seen the
plaintiff "on a number of occasions, and she stated that she had prescribed him medications,
approved laboratory testing, and given orders restricting his physical activity"), and Evan v.
Manos, 336 F. Supp. 2d 255,261 (W.D.N.Y. 2004) (granting summary judgment on deliberate
indifference claims for a provider who visited an inmate "nine days after [he] was placed on the
doctor callout list[,]" prescribed pain medication, and ordered x-rays), with Hathaway v.
Coughlin, 37 F.3d 63, 67 (2d Cir. 1994)) ("A jury could also infer deliberate indifference from
the delay of over two years between the discovery of the broken pins [in a hip] and the time [the
provider] asked that [the inmate] be re-evaluated for surgery[.]"), and Williams v. Vincent, 508
F.2d 541,544 (2d Cir. 1974) (concluding that "the allegations support the claim that it was
deliberate indifference towards [plaintiffs] medical needs, rather than an exercise of professional
judgment, which led prison medical officials merely to stitch the stump of his ear" instead of
attempting to save the appendage).

15

have long recognized that conditions posing an elevated chance of exposure to an
infectious disease can pose a substantial risk of serious harm[,]" but "[t]he Supreme
Court has made clear that whether a particular danger poses a substantial risk of serious
harm in a prison must be evaluated in light of the steps that the facility has already taken
to mitigate the danger." Chunn v. Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y. 2020).
The parties agree that Plaintiff contracted Hepatitis A while at ECCF, but there is
conflicting evidence regarding how he contracted it. Plaintiff points to no conditions of
his confinement, no unsanitary conditions, or any deprivations of an "identifiable human
need such as food, warmth, or exercise[]" which existed much less which had a causal
relationship with his Hepatitis A. Darnell, 849 F.3d at 30 (citation and internal quotation
marks omitted). If Plaintiff contracted Hepatitis A from drinking unpasteurized wine, he
cannot recover for such a claim. See Nat. Res. Def Council, Inc. v. US. Food & Drug

Admin., 710 F.3d 71, 85 (2d Cir. 2013) ("[A] plaintiff may not establish injury for
standing purposes based on a 'self-inflicted' injury.").
Although Plaintiff claims that there was a Hepatitis A "outbreak" at Erie County
Holding Center and ECCF, Plaintiffs evidence documents only two female inmates who
contracted Hepatitis A during the relevant period who were housed separately from him.
Plaintiff points to no facts that Defendants exposed him to a risk of contracting Hepatitis
A and were deliberately indifferent to it. 5 Plaintiff has thus failed to sustain his burden to
establish that his conditions of confinement gave rise to a Fourteenth Amendment
violation. See Celotex Corp., 477 U.S. at 322 ("Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential
to that party's case[.]").

5 See

Narvaez v. City ofNew York, 2017 WL 1535386, at *9 (S.D.N.Y. Apr. 17, 2017) ("Plaintiff
fails to plead facts showing that any action or inaction on the part of Defendants caused him to
contract Hepatitis A."); Jones v. Goard, 435 F. Supp. 2d 221, 246-47 (S.D.N.Y. 2006)
("[Plaintiffs] bare assertion that he contracted tuberculosis from a cellmate is insufficient to
defeat a motion for summary judgment when the evidence in the record shows that none of his
cellmates had active tuberculosis.").

16

For reasons stated above, Defendants' motion for summary judgment on
Plaintiffs § 1983 claim based on conditions of confinement is GRANTED.

C.

Whether to Grant Summary Judgment on Plaintiff's Conspiracy
Claim.

Defendants argue that the court should dismiss Plaintiffs conspiracy claim
because it is barred by the intracorporate conspiracy doctrine and there is no evidence of
an agreement between Defendants, concerted action to inflict injury, or action in
furtherance of a conspiracy. Plaintiff"relies on the totality of the evidence" in opposition.
(Doc. 53-1 at 33.)
"To prove a§ 1983 conspiracy, a plaintiff must show: (1) an agreement between
two or more state actors or between a state actor and a private entity; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal
causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). "The
intracorporate conspiracy doctrine 'bars conspiracy claims against employees of entities
such as [the Department of Corrections] (when those employees are alleged to have
conspired solely with each other) unless, pursuant to the doctrine's 'scope of
employment' exception, the employees were pursuing personal interests wholly separate
and apart from the entity by whom they were employed."' Richard v. Fischer, 3 8 F.
Supp. 3d 340, 353 (W.D.N.Y. 2014) (citations omitted). "Courts in the Western District
of New York apply the intracorporate conspiracy doctrine to bar inmates' conspiracy
claims against [the Department of Corrections]." Id. (collecting cases).
Because Plaintiffs Amended Complaint states a conspiracy claim against all
Defendants for violation of his "civil rights" and deprivation of his "constitutional
rights[,]" the court construes this as a§ 1983 conspiracy claim. (Doc. 17 at 39.)
Defendants are employees of the County of Erie, and Plaintiff has offered no factual
evidence of an agreement to inflict an unconstitutional injury or evidence that each
Defendant had an independent conspiratorial purpose. In the absence of admissible
evidence to establish the three essential elements of a § 1983 conspiracy claim, that claim
must fail. In addition, any conspiracy claim is barred by the intracorporate doctrine. The
17

court thus GRANTS Defendants' summary judgment motion on Plaintiffs conspiracy
claim.

D.

Whether Plaintiff is Entitled to Punitive Damages.

Defendants request summary judgment on Plaintiffs punitive damages claim.
"[P]unitive damages are intended 'to punish the tort-feasor for his [or her] conduct and to
deter him [or her] and others like him [or her] from similar action in the future."' Racich

v. Celotex Corp., 887 F.2d 393,396 (2d Cir. 1989) (citing Sharapata v. Town ofIslip,
437 N.E.2d 1104, 1105 (N.Y. 1982)). "To sustain a claim for punitive damages in tort,
one of the following must be shown: intentional or deliberate wrongdoing, aggravating or
outrageous circumstances, a fraudulent or evil motive, or a conscious act that willfully
and wantonly disregards the rights of another[.]" Don Buchwald & Assocs., Inc. v. Rich,
723 N.Y.S.2d 8, 9 (N.Y. App. Div. 2001); see also Action S.A. v. Marc Rich & Co., 951
F .2d 504, 509 (2d Cir. 1991) ("[P]unitive damages are appropriate in cases involving
'gross, wanton, or willful fraud or other morally culpable conduct.'") (citing Borkowski v.

Borkowski, 355 N.E.2d 287 (N.Y. 1976) (mem)).
Plaintiff cannot recover punitive damages against the County of Erie because it is
a municipality. See Krause v. Buffalo & Erie Cnty. Workforce Dev. Consortium, Inc., 425
F. Supp. 2d 352, 391 (W.D.N.Y. 2006) ("[P]unitive damages cannot be recovered from a
municipal entity or municipal employees sued in their official capacity.") (citing lvani

Contracting Corp. v. City ofNew York, 103 F.3d 257,262 (2d Cir. 1997); see also
Corvetti v. Town ofLake Pleasant, 46 N.Y.S.3d 679,687 (N.Y. App. Div. 2017)
("[P]unitive damages are not available against a municipality[.]"). The court thus
GRANTS summary judgment and DISMISSES Plaintiffs claim for punitive damages
against the County of Erie to the extent that request is based on Plaintiffs federal
constitutional claims.

E.

Whether to Exercise Supplemental Jurisdiction With Regard to
Plaintiff's State Law Negligence Claims.

Defendants argue that the court should dismiss Plaintiffs negligent hiring,
retention, supervision, and training claim because there is no evidence that the individual
18

Defendants had the propensity for injury-causing conduct prior to the relevant period.
They claim they moved for summary judgment on all Plaintiffs claims, including any
remaining negligence claims, and assert those claims must fail because Plaintiff did not
plead the existence of a special duty.
Plaintiff contends Defendants' motion should be denied because they "did not
move for summary judgment regarding [his] negligence claims not based on respondeat
superior and not under[§ 1983.]" (Doc. 53-1 at 33) (emphasis omitted). 6
Plaintiffs Amended Complaint contains a claim for negligence asserted against all
Defendants, within which there are claims for negligent training, supervision, hiring, and
retention asserted against County of Erie, SHC Services, Inc., and John Does 1-10. See
Doc. 17. It does not assert a special duty. Defendants' motion for summary judgment
asserts that it seeks judgment as a matter of law on all claims, see Doc. 49-15 at 2; 7
however, it does not separately analyze Plaintiffs state law negligence claim. See Fed. R.
Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which summary judgment is sought.")
(emphasis supplied); Cookv. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 n.2 (2d
Cir. 1995) ("We ... do not address the issue because it has not been argued in the instant
matter.").
"In general, where the federal claims are dismissed before trial, the state claims
should be dismissed as well." Drake v. Village ofLima, 530 F. Supp. 3d 285,294
(W.D.N.Y. 2021) (internal quotation marks omitted) (quoting Delaney v. Bank ofAm.
6

In the court's May 9, 2022 Opinion and Order, it denied as moot Defendants' request to dismiss
Plaintiffs negligence claim against the County of Erie to the extent it was based on respondeat
superior liability or negligence under § 1983 because Plaintiff reported he does not allege such
claims.
7

"[Defendants] respectfully submit that there are no material facts in dispute that would prevent
a finding of summary judgment in favor of [them] pursuant to F.R.C.P. §[ ]56."; see also Doc. 49
at 2 (stating as relief sought, "An Order and/or Judgment pursuant to, inter alia, Rule 56 of the
Federal Rules of Civil Procedure, dismissing the Plaintiffs Complaint as against the Defendant,
with prejudice, upon the grounds detailed within the accompanying declaration of counsel and
memorandum of law; and, for such other further and different relief, not inconsistent herewith, as
may be just, equitable and proper.").

19

Corp., 766 F.3d 163, 170 (2d Cir. 2014)); see Lundy v. Cath. Health Sys. ofLong Island,
Inc., 711 F.3d 106, 118 (2d Cir. 2013) (noting that the supplemental jurisdiction analysis

will usually "point toward a declination[]" once federal claims have been dismissed)
(citation omitted).
As the court has dismissed each of Plaintiffs federal claims, it declines to exercise
supplemental jurisdiction over his negligence claims. See Edmonds v. Seavey, 379 F.
App'x 62, 64 n.1 (2d Cir. 2010) ("As there existed no independent basis for subject
matter jurisdiction over appellant's remaining state law claims, the district court was well
within its discretion to decline to exercise supplemental jurisdiction over those claims.")
(citing Matican v. City ofNew York, 524 F.3d 151, 154-55 (2d Cir. 2008)).
CONCLUSION

For the foregoing reasons, the court GRANTS Defendants' motion for summary
judgment on Plaintiffs § 1983 and conspiracy claims asserted against all Defendants, as
well as his punitive damage claim asserted against the County of Erie to the extent
requested based on Plaintiffs federal constitutional claims. (Doc. 49.) It declines to
exercise jurisdiction over Plaintiffs state law negligence claims and any related claims,
and those claims are DISMISSED WITHOUT PREJUDICE to refile in state court.
SO ORDERED.
Dated this

2-f

/h
day of August, 2024.

Christina Reiss, District Judge
United States District Court

20