Iacovangelo v. Correctional Medical Care, Incorporated et al
Filing
32
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 16 Motion to Dismiss for Failure to State a Claim; granting 26 Motion. Plaintiffs cross-motion [#26] is granted, but Defendants application to dismiss [#16] is also granted in its entirety, and this action is dismissed with prejudice. The Clerk of the Court is directed to close this action. Signed by Hon. Charles J. Siragusa on 10/2/14. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
FRANK B. IACOVANGELO, Public Administrator,
Monroe County, as Administrator of the Estate of
Marie Viera,
Plaintiff,
DECISION AND ORDER
-vs13-CV-6466 CJS
CORRECTIONAL MEDICAL CARE, INC.,
EMRE UMAR, REGISTERED NURSE TAMARA
AUGELLO, REGISTERED NURSE MARYANNE
MCQUEENEY, MARIA BIUSO, COUNTY OF MONROE,
PATRICK M. O’FLYNN, RON HARLING, DEPUTY
DENISE CESARANO, DEPUTY PETER DECOSTE,
DEPUTY CAROLINE MCCLELLAN and
DEPUTY BOBBIE JO BISHOP,
Defendants.
__________________________________________
INTRODUCTION
This is an action under 42 U.S.C. § 1983 brought by the administrator of the estate
of Maria Viera (“Viera”), who died while she was a pretrial detainee at the Monroe County
Jail in Rochester, New York. Defendant Correctional Medical Care, Inc. (“CMC”) had a
contract with Monroe County to provide medial services at the jail. Generally, Plaintiff
maintains that Viera was a drug-addicted inmate who obviously needed detoxication
treatment, but was deliberately denied such treatment, and who died as a result. Now
before the Court is Defendants’ motion (Docket No. [#16]) to dismiss the Amended
Complaint, and Plaintiff’s cross-motion [#26] for an enlargement of time in which to serve
three of the defendants, nunc pro tunc. Plaintiff’s cross-motion is granted, but Defendants’
application is also granted and this action is dismissed with prejudice.
1
BACKGROUND
Unless otherwise noted, the following facts are taken from the Amended Complaint
in this action, including the attached exhibits.1 The Court will briefly set forth the pertinent
facts from the Amended Complaint, excluding the conclusory statements and legal
conclusions of counsel.2
Tuesday, August 31, 2010
On August 31, 2010, at 5:28 p.m., Viera, age 53, was received at the Monroe
County Jail, in connection with pending criminal charges. In the reception area of the jail,
Viera told Deputy R.S., who is not a party, that she was “under the influence of drugs.”
Based upon what Viera said, R.S. completed a medical screening form, indicating that
Viera had a history of drug and alcohol abuse and that she appeared to be under the
influence of drugs. However, R.S. did not personally observe Viera exhibiting signs of
intoxication or withdrawal, but rather, R.S. filled out the form based on what Viera told her.3
Approximately three hours later, Tamara Augello, R.N. (“Augello”), who was
employed by defendant CMC, examined Viera and performed a medical screening. At that
1
It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited as to what it
can consider. See, Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1
(S.D.N.Y. Sep.24, 2012). (On a 12(b)(6) motion, “a court may consider ‘documents attached to the
complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be
taken, or ... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on
in bringing suit.’ “ Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Brass v.
Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)).”).
2
The following are just some examples of the many conclusory statements in the pleading that
are not supported by factual allegations and which are therefore not accepted as true: “Nurse Augello
did a medical screening that was woefully insufficient and deliberately indifferent to Maria Viera’s wellbeing.” Amended Complaint ¶ 21; “[I]t was evident to anyone . . . that Ms. Viera needed medically
supervised drug and alcohol detoxification.” id. at ¶ 22; “Maria Viera would be alive had she received
adequate health care in the face of her serious medical needs during her three day stay at the Monroe
County Jail.” id. at ¶ 35; “The above-named Individual Defendants’ actions were motivated by bad faith
and malice.” id.at ¶ 43.
3
Amended Complaint, Exhibit 1 at p. 3,
¶ ¶ 5-6.
2
time Augello had the paperwork that was completed by R.S., and was therefore aware that
R.S. had reported that Viera was under the influence of drugs. Augello was supposed to
place Viera’s name on a “detox flow sheet” so that she could be monitored, but failed to
do so. Augello also failed to perform a check concerning any prescription medications that
Viera might have needed, though there are no non-conclusory factual allegations that Viera
actually needed prescription medication.4 When Viera returned to the reception area of
the jail, Deputy R.S. did not place her on “detoxification status,” due to the fact that Augello
had not completed a “detox flow sheet.” Nevertheless, the remainder of Viera’s first night
at the jail was apparently uneventful.
Wednesday, September 1, 2010
The following morning, at approximately 8:30 a.m., Viera was supposed to attend
court for arraignment. However, Viera refused to attend court. In that regard, Viera did not
refuse to attend because she was medically unable to do so, but rather, she indicated that
she did not want to bother going to court, since she assumed that the arraignment judge
would remand her to custody in any event. The judge arraigned Viera in her absence,
remanded her to custody, and scheduled another appearance for the following day.
Ordinarily, following a detainee’s arraignment, defendant Deputy Denise Cesarano
(“Cesarano”), who worked in the jail’s reception area, would receive “post-arraignment
paperwork” that would include an indication as to whether the inmate needed further
screening by medical staff. However, because Viera did not attend her court appearance,
the court did not return Viera’s paperwork to Cesarano, but instead, sent the paperwork to
the jail’s records staff. For this reason, apparently, Viera was not scheduled for a follow-up
4
Amended Complaint at ¶ 23 & Ex. 1 at pp. 3-5,
3
¶ ¶ 7-8.
screening by medical staff.
At around this same time on the morning of September 1st, Cesarano had Viera
change into jail-issued clothing, and she noticed that Viera’s hygiene was poor. Viera also
told Cesarano that she had been using heroin on a daily basis, and had spent the days
prior to her arrest in a crack house. Consequently, at approximately 11:19 a.m., Cesarano
changed Viera’s status on the computer to “detoxification status,” based on Viera’s
statements and on the fact that she was aware of Viera’s history of drug usage from past
encounters with Viera at the jail. However, several hours later, at approximately 2:45 p.m.,
Cesarano removed Viera from the detoxification status list because she had not received
any paperwork from the jail’s medical department.5
Later that day, at approximately 5:30 p.m. Deputy R.S. observed that Viera ate her
dinner.
At around 6:45 p.m., another inmate requested to see a nurse, and R.S.
summoned a nurse, defendant Maryanne McQueeney, R.N. (“McQueeney”), to the
reception area, where Viera was also housed. As R.S. and McQueeney were walking to
see the other inmate, they passed Viera’s cell, and R.S. noticed that Viera was “bending
over the toilet,” apparently due to nausea. R.S. asked Viera “if she wasl alright and [Viera]
nodded in response.”6 Despite Viera’s affirmative response, R.S. later indicated that she
believed that Viera had been “exhibiting clinical signs warranting a nursing assessment,”
although it is not alleged what those signs were, or if they merely consisted of her “bending
over the toilet.” Apparently, however, R.S. did not tell McQueeney that she thought
McQueeney ought to examine Viera. In any event, Viera did not ask for assistance, and
5
Amended Complaint, Ex. 1 at pp. 5-6,
6
Amended Complaint, Ex. 1 at p. 6,
¶ ¶ 11-12.
¶ 13.
4
McQueeney did not examine her.7
Later that evening at approximately 10:00 p.m., defendant Deputy Peter DeCoste
(“DeCoste”) placed Viera back on a computerized list of inmates needing detoxification,
although there is no allegation of fact as to why he did so.8 The pleading suggests that
nothing happened as a result of DeCoste placing Viera back on the detoxification list, since
the jail’s medical staff did not have access to the reception unit’s computers at that time,
and no one from the medical staff requested a printout of the detoxification list.
Thursday, September 2, 2010
At approximately 12:40 a.m., defendant Deputy Caroline McClellan (“McClellan”)
opened the door to Viera’s cell to place another inmate into the cell. As McClellan did so,
deputy C.S.9 observed that Viera was awake and looked at the door, but did not say
anything. McClellan observed that Viera did not appear to be in distress. Deputy Bobbie
Jo Bishop (“Bishop”), who was escorting the other inmate being placed into Viera’s cell,
also observed that Viera, who was lying on her left side facing the wall, turned her head
as the other inmate was being placed into the cell. Neither McClellan nor Bishop entered
the cell at that time.
At approximately 2:10 a.m., Sergeant M.L., who is not a party, made rounds and
reported observing nothing unusual.10
7
Amended Complaint, Ex. 1 at p. 6,
¶ 13.
8
Amended Complaint, Ex. 1 at p. 6,
¶ 14.
9
The fatality report refers to McClellan as “Deputy C.M.”. The report, immediately after stating
that C.M. opened the cell door, indicates that “Deputy C.S.” saw that Viera was awake. There is no
other reference to a Deputy C.S., and the Court assumes that this may be a typo, and was intended to
mean Deputy C.M..
10
Amended Complaint, Ex. 1 at pp. 6-7,
¶ 15.
5
Throughout the night, McClellan and Bishop also conducted rounds every fifteen
minutes. During those rounds, McClellan and Bishop observed that Viera continued to lie
on her left side facing the wall, apparently asleep.11
At approximately 5:15 a.m., nurse R.W. came to the reception area for
“detoxification rounds.” At that time, apparently, R.W. entered Viera’s cell and found that
she was unresponsive. Bishop sounded a medical emergency while another deputy
initiated CPR. Additionally, at 5:39 a.m., members of the Rochester City Fire Department
arrived at the scene. However, it was determined that Viera had died during the night and
had been dead for an unspecified “extended period.” An investigation by the New York
State Commission of Correction concluded that Viera died of Myocarditis, which is an
“inflammation of the myocardium,” which is the “the middle muscular layer of the heart
wall.” Merriam Webster’s Medical Dictionary (1993).12
On August 29, 2013, Plaintiff was appointed as administrator of Viera’s estate by
the Monroe County Surrogate’s Court. On September 2, 2013, Plaintiff commenced this
action on the last day of the three-year statute of limitations for actions under 42 U.S.C. §
1983.13
On December 31, 2013, Plaintiff filed the Amended Complaint [#9], which alleges
that Defendants violated Viera’s federal constitutional rights by acting with deliberate
11
Amended Complaint, Ex. 1 at p. 7, ¶ 16.
12
According to the website of the Mayo Clinic, “Myocarditis is usually caused by a viral
infection.” http://www.mayoclinic.org/diseases-conditions/myocarditis/basics/definition/con-20027303
The same website indicates that myocarditis has a variety of causes, including a toxic reaction to the
use of illegal drugs such as cocaine.
13
Defendants indicate that Viera died on September 1, 2010 (Sanders Decl. [#16-1] at ¶ 4, Def.
Memo of Law [#16-2] at p. 23), but the fatality report indicates that she died on September 2, 2010,
between 12:40 a.m. and 5:15 a.m..
6
indifference to her serious medical needs. The pleading maintains that all of the individual
defendants are liable in their individual capacities, and that Monroe County and CMC are
subject to Monell liability. The Amended Complaint demands compensatory and punitive
damages.
To briefly summarize, the Amended Complaint sets forth the facts described above,
as taken from the Commission of Correction’s fatality report, but then alleges that
Defendants’ actions were motivated by “bad faith and malice.”14 Essentially, the pleading
maintains that Viera was so obviously in need of detoxification monitoring15 that
Defendants’ failure to provide it must have been due to deliberate indifference to her
serious medical needs.16 The pleading further contends, “upon information and belief,”17
that Defendants intentionally acted pursuant to a policy of providing sub-standard medical
care to jail inmates, in order to save money.
After commencing the action, Plaintiff served all of the defendants except Augello,
McQueeney and Maria Biuso (“Biuso”), CMC’s supervisor at the Monroe County Jail.
Eventually, on April 2, 2014, Plaintiff served Augello and McQueeney, and on April 11,
2014, Plaintiff served Biuso. In that regard, Plaintiff served Augello and McQueeney 212
days after commencing this action, and served Biuso 221 days after commencing the
14
Amended Complaint
¶ 43.
15
The pleading also contends, in conclusory fashion, that Viera needed “prescription
medication,” which Defendants failed to provide. Amended Complaint ¶ 23. However, the pleading fails
to state what type of medical condition that Viera had which required medication, or what type of
prescription medication that she needed.
16
See, e.g., Amended Complaint at ¶ ¶ 21-22 (“Nurse Augello did a medical screening that was
woefully insufficient and deliberately indifferent to Maria Viera’s well-being. When Ms. Viera presented
herself to Nurse Augello, it was evident to anyone, including other Corrections Officers at the Monroe
County Jail, that Ms. Viera needed medically supervised drug and alcohol detoxification.”).
17
Amended Complaint
¶ ¶ 44-46.
7
action.
On April 17, 2014, Defendants filed the subject motion to dismiss [#16] pursuant to
FRCP 12(b)(6) and FRCP 4(m). The Rule 4(m) motion is brought on behalf of Augello,
McQueeney and Biuso, and maintains that the action must be dismissed against them
because Plaintiff failed to serve them within 120 days after the complaint was filed, without
good reason. With regard to the 12(b)(6) motion, Defendants assert the following points
about the Amended Complaint: 1) it fails to allege activity rising to the level of deliberate
indifference, and pleads negligence at most; 2) it fails to plead that Sheriff Patrick O’Flynn
(“O’Flynn”), Jail Superintendent Ron Harling (“Harling”), CMC’s President Emre Umar
(“Umar”) or Biuso were personally involved in the alleged constitutional violation; and 3) it
fails to plead municipal liability against Monroe County or CMC.
On May 27, 2014, Plaintiff filed a response [#25]18 to Defendants’ motion, along with
a cross-motion [#26] for leave to serve Augello, McQueeney and Biuso beyond the 120
limit allowed in Rule 4(m). With regard to the deliberate indifference claim, Plaintiff
maintains that “drug and opiate withdrawal” is an objectively serious medical condition, and
that Defendants acted with the requisite subjective intent, that was “the equivalent of
criminal recklessness.”19 In that regard, Plaintiff contends that the instant case is similar
to what happened in Livermore v. City of New York, No. 08 CV 4442 (NRB), 2011 WL
182052 (S.D.N.Y. Jan. 13, 2011), which the Court will discuss below. With regard to the
18
The response repeats many of the same conclusory unsupported claims that appear in the
Amended Complaint, and goes further to allege that Viera “suffered in agony for days and ultimately
succumbed to an entirely preventable death.” Pl. Memo of Law [#25] at p. 4. However, the Amended
Complaint does not plausibly plead a causal connection between the alleged failure to provide
“detoxification monitoring” and Viera’s death from Myocardia, and further, Viera never indicated that she
was in pain, let alone agony, or requested any type of medical attention as far as Plaintiff knows.
19
Pl. Memo of Law [#25] at p. 8.
8
Rule 4(m) application, Plaintiff contends that the Court should extend the time for service,
nunc pro tunc, since he made a good faith effort to serve Augello, Biuso and McQueeney.
On June 17, 2014, Defendants filed papers further supporting their motion to
dismiss and opposing Plaintiff’s cross-motion.
The Court has determined that oral
argument is not necessary.
DISCUSSION
Defendants’ Motion to Dismiss Pursuant to FRCP 4(m)
Augello, Biuso and McQueeney maintain that they are entitled to dismissal under
Rule 4(m), and the law in that regard is clear:
Pursuant to Rule 4(m):
If a defendant is not served within 120 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time. But
if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). A district court also has discretion to enlarge the 120–day
period for service in the absence of good cause.
Green v. Unwin, 563 Fed.Appx. 7 (2d Cir. Apr. 15, 2014) (citation omitted). In this case,
Plaintiff maintains that there is good cause to extend the time for service because he
diligently attempted to discover the identities and addresses of these three defendants,
who no longer are employed by CMC, and because, according to his process server,
these defendants attempted to evade service, which required him to resort to “nail and
mail” service. There does not appear to be any prejudice to Defendants, and there is a
strong policy in this Circuit of resolving disputes on their merits. The Court will, therefore,
9
exercise its discretion and extend the time for service on Augello, Biuso and McQueeney,
nunc pro tunc. Accordingly, Plaintiff’s cross motion for an enlargement of time [#26] is
granted.
Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(6)
Before addressing the merits of the 12(b)(6) application, the Court makes several
general observations about the Amended Complaint. First, as Defendants point out, this
case is unusual in that Plaintiff has no personal knowledge about the key matters that are
alleged in the Amended Complaint. In that regard, Plaintiff is acting in the capacity of
Public Administrator for Monroe County, and as the Administrator of Viera’s estate. Of
course, Ms. Viera, who experienced the events at issue here, is deceased, and she
apparently left no record of her experiences. Consequently, as the Amended Complaint
reveals, the factual basis for the constitutional claim comes from two sources: 1) a “fatality
report” by the New York State Commission of Correction that details the thirty-six hours,
approximately,20 that Viera spent at the jail prior to her death;21 and 2) a newspaper article
that is critical of defendant CMC and other for-profit corporations that provide contract
health services to jails.22
The fatality report indicates that Viera died of Myocarditis, and that jail staff made
errors concerning placing her on “detoxification status.” However, the report does not
20
The Amended Complaint indicates that Viera spent “three days” at the jail, but that is clearly
incorrect. (Amended Complaint ¶ ¶ 35; see also, ¶ 45 (“several days”)). Viera was received at the jail
on August 31, 2010 at approximately 5:28 p.m., and her death was discovered on September 2, 2010
at approximately 5:15 a.m., at which time she had been dead for several hours. Accordingly, she spent
less than 36 hours alive at the jail.
21
Amended Complaint, Exhibit A.
22
Amended Complaint , Exhibit C. The newspaper article questions the legality of such
corporations and maintains that several inmates have died at various prisons and jails where such
corporations have contracted to provide medical services.
10
indicate that such errors were the cause of Viera’s death.23 The report also does not
indicate what treatment, if any, Viera would have received if she had remained on
detoxification status, nor does it indicate that such treatment would have prevented Viera’s
death.24 Furthermore, there is nothing in the report to suggest that any defendant knew
that Viera had Myocarditis, or that she had any other illness, for that matter. At most, the
report indicates that some defendants either observed that Viera was under the influence
of drugs/alcohol, or knew that she had a history of using drugs and needed detoxification.
As far as exhibiting symptoms, the pleading indicates, at most, that on a single occasion
a staff member saw Viera bending over a toilet, immediately after which Viera indicated
that she was alright. Consequently, the pleading’s assertion that Viera “suffered in agony
for days” has no factual support.25
The Amended Complaint nevertheless strongly insinuates that Viera died due to a
lack of “medically supervised withdrawal.”26 However, Plaintiff’s contentions in that regard
are unsupported. For example, apart from a conclusory assertion, the Amended Complaint
does not plead facts to plausibly support the contention that death from Myocarditis is a
23
Amended Complaint, Ex. C at p. 2.
24
The pleading itself similarly fails to explain the detoxification procedures that were allegedly
not followed. At most, the pleading indicates that Viera’s name was not placed on the detoxification
monitoring list, but does not explain how she would have been treated differently if her name had
remained on the list.
25
Pl. Memo of Law [#25] at p. 4.
26
Amended Complaint ¶ ¶ 25, 29. As best as the Court can determine from the pleading,
Plaintiff maintains that Viera should have received “medically monitored alcohol and drug withdrawal,”
though the exact nature of such monitoring is not explained.
11
potential, let alone foreseeable, outcome of failing to provide detoxification monitoring.27
In any event, the Amended Complaint purports to seek recovery only “for the deprivation
of rights secured to Viera before her death.”28
Furthermore, the fatality report was written with the benefit of hindsight, by someone
who had all the facts following an investigation.
However, none of the individual
defendants had all of those facts. Instead, as the report indicates, the various jail
employees encountered Plaintiff during their individual shifts, at various points over the
course of a day and a half, and some of those employees knew nothing about Viera’s past
drug usage or the fact that she claimed to be intoxicated upon entering the jail.29
Moreover, as already mentioned there is no indication that any defendant, or even Viera
herself, knew that she had Myocardia.
Additionally, although the pleading contends, in conclusory fashion, that Defendants
“ignore[d] Maria Viera’s serious medical problems and refused to provide her with
appropriate, necessary medical treatment,”30 the fatality report belies that assertion.
Rather, the fatality report indicates that several defendants acted on their own initiative and
placed Viera’s name on a list for detoxification monitoring, but those notes never made it
to the medical staff during Viera’s brief stay at the jail. At most, the pleading indicates that
27
The pleading states in conclusory fashion that it is “well known that when detainees are
denied appropriate medically supervised withdrawal from drug and alcohol addiction , this can result in
a number of serious health effects, including death,” obviously referring to death from Myocarditis since
that was Viera’s cause of death. Amended Complaint ¶ 25, 29 & Exhibit A at p. 2. However, the Court
ran a Westlaw search of the ALLFEDS, NY-CS-ALL and TP-ALL databases using the terms
“myocarditis,” “withdrawal” and “detoxification” and found no case, book or article linking the
development of myocarditis, or death from myocarditis, to withdrawal from heroin, cocaine or alcohol.
¶ 6 (emphasis added).
28
Amended Complaint
29
At least, there is nothing in the Amended Complaint that plausibly suggests that they knew.
30
Amended Complaint
¶ 41 (emphasis added).
12
certain defendants could have done more.
On that same point, the instant case is also unusual in that, unlike most medical
deliberate indifference actions involving prisoners, Viera never requested medical
assistance. In fact, when a defendant asked Viera “if she was alright,” she indicated that
she was.31 In that regard, there is no indication that Viera was incompetent or otherwise
incapable of expressing her needs. Consequently, the claim here is not based on
Defendants’ failure to provide requested medical assistance, but rather, it is based on
Defendants’ alleged failure to follow a policy that purportedly required the monitoring of
inmates who were experiencing withdrawal from drugs and/or alcohol, whether they
requested it or not. With those points in mind, the Court will now consider the merits of
Defendants’ motion to dismiss.
The general legal principles concerning motions under FRCP 12(b)(6) are well
settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
31
Amended Complaint, Ex. A at
¶ 13.
13
2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this “plausibility standard,” the Court is guided by “two working
principles”:
First, although a court must accept as true all of the allegations contained in
a complaint,32 that tenet is inapplicable to legal conclusions, and threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss, and determining whether a
complaint states a plausible claim for relief will be a context-specific task that
requires the reviewing court to draw on its judicial experience and common
sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not shown—that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950
(2009) (citation omitted). “The application of this ‘plausibility’ standard to particular cases
is ‘context-specific,’ and requires assessing the allegations of the complaint as a whole.”
Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Retirement Plan v.
Morgan Stanley Inv. Management Inc., 712 F.3d 705, 719 (2d Cir. 2013) (citation and
internal quotation marks omitted).
“The Twombly plausibility standard . . . does not prevent a plaintiff from pleading
32
The Court must accept the allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d
Cir.1999), cert. den. 531 U.S. 1052, 121 S.Ct. 657 (2000).
14
facts alleged “upon information and belief” where the facts are peculiarly within the
possession and control of the defendant, or where the belief is based on factual
information that makes the inference of culpability plausible.” Arista Records, LLC v. Doe
3, 604 F.3d 110, 120 (2d Cir. 2010) (citation and internal quotation marks omitted).33
Plaintiff maintains that Defendants violated Marie Viera’s federal constitutional
rights by acting or failing to act with deliberate indifference to her serious medical needs.
The general legal principles governing such claims are well settled:
A convicted prisoner's claim is analyzed under the Eighth Amendment. See
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996) (noting that the Eighth
Amendment governs medical claims of convicted persons because of that
Amendment's prohibition of “cruel and unusual punishment”). In the case of
a pre-trial detainee, the same claim is analyzed under the Due Process
Clauses of the Fifth Amendment for federal detainees and the Fourteenth
Amendment for state detainees. Compare Caiozzo v. Koreman, 581 F.3d 63,
69 (2d Cir.2009) (applying Fourteenth Amendment to state detainee), with
Cuoco v. Moritsugu, 222 F.3d 99, 103, 106 (2d Cir.2000) (applying Fifth
Amendment to federal detainee). However, Plaintiff's status is of no moment
for these purposes, because “[c]laims for deliberate indifference to a serious
medical condition ... should be analyzed under the same standard
irrespective of whether they are brought under the Eighth or Fourteenth
Amendment.” Caiozzo, 581 F.3d at 72.
33
The Amended Complaint contains eight (8) allegations that are made “upon information and
belief. See, Amended Complaint ¶ ¶ 15, 16, 17, 18, 30, 44, 45, & 46. However, only four of those
pertain to Defendants’ potential liability. Those four allegations are as follows: 1) “Upon information and
belief , Ms. Viera showed signs of being in distress during the course of that evening [early morning
hours of September 2, 2010] when she was guarded by Defendants R.S. and Deputy Bobbie Jo Bishop,
who were supposed to make rounds during the evening.”; 2) “Upon information and belief, these
Defendants [Monroe County, O’Flynn and Harling] had a policy and/or practice of not providing
appropriate medical care to detainees at the Monroe County Jail, including providing those detainees
with appropriate medically supervised detoxification”; 3) “Upon information and belief, Correctional
Medical Care, through either express policy, practices or the inaction of its policy makers, had a policy
and/or practice of not providing appropriate medical care to detainees at the Monroe County Jail,
including providing those detainees with appropriate medically supervised detoxification”; 4) “Upon
information and belief, one reason why Maria Viera failed to receive adequate medical treatment was
because of concerns by Correctional Medical Care regarding the expenses involved in properly caring
for her and other detainees.” Amended Complaint ¶ ¶ 30, 44, 45 & 46. As discussed further below,
none of those statements are supported by factual allegations or reasonable inferences.
15
While prison officials should provide adequate medical care to prisoners, “not
every lapse in medical care is a constitutional wrong.” Salahuddin v. Goord,
467 F.3d 263, 279 (2d Cir.2006). To make out a constitutional claim “arising
out of inadequate medical care,” a plaintiff must demonstrate a defendant's
“ ‘deliberate indifference to [his] serious medical needs.’ ” Jones v. Vives,
523 Fed.Appx. 48, 49 (2d Cir.2013) (alteration in original) (quoting Estelle v.
Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); see also
Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir.2003). Thus, to avoid
dismissal under Rule 12(b)(6), “an inmate must allege that: (1) objectively,
the deprivation the inmate suffered was sufficiently serious”; and “(2)
subjectively, the defendant official acted with a sufficiently culpable state of
mind.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir.2013) (internal quotation
marks omitted).
Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013). Further, in that regard,
“Objectively, the alleged deprivation must be sufficiently serious, in the sense
that a condition of urgency, one that may produce death, degeneration or
extreme pain[,] exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d
Cir.1996) (citation and internal quotation marks omitted). Where the
allegation is that the defendant failed to provide any treatment for the
medical condition, “courts examine whether the inmate's medical condition
is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir.2006). Where the challenge is to the adequacy of the treatment provided,
such as in cases where treatment is alleged to have been delayed or
interrupted, the seriousness inquiry focuses on “the particular risk of harm
faced by a prisoner due to the challenged deprivation of care, rather than the
severity of the prisoner's underlying medical condition, considered in the
abstract.” Smith [v. Carpenter], 316 F.3d [178,] 186 [(2d Cir. 2003)].
***
“Subjectively, the official charged ... must act with a sufficiently culpable state
of mind.” Curcione, 657 F.3d at 122 (citation and internal quotation marks
omitted); see also Chance [v. Armstrong], 143 F.3d [698,] 703 [(2d Cir.
1998)]. A person acts with deliberate indifference to an inmate's health or
safety only if he “knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Farmer [v. Brennan], 511 U.S. [825,] 837 [(1994)].
16
Hanrahan v. Mennon, 470 Fed.Appx. 32, 33 (2d Cir. May 18, 2012); see also, Smith v.
Carpenter, 316 F.3d 178, 184 (2d Cir.2003) (“[A] prisoner must demonstrate more than an
inadvertent failure to provide adequate medical care by prison officials to successfully
establish Eighth Amendment liability. An official acts with the requisite deliberate
indifference when that official knows of and disregards an excessive risk to inmate health
or safety, a state of mind equivalent to the familiar standard of ‘recklessness' as used in
criminal law.”) (emphasis added; citations and internal quotations omitted); Youmans v.
City of New York, — F.Supp.2d — , 2014 WL 1612997 at *6 (S.D.N.Y. Mar. 31, 2014) (“In
other words, the charged official must act or fail to act while actually aware of a substantial
risk that serious inmate harm will result.”) (emphasis in original; citations and internal
quotation marks omitted).
Medical deliberate indifference claims are most-often asserted against medical staff.
Nevertheless, non-medical personnel may also be liable for deliberate indifference to
medical needs under certain circumstances:
To establish such a claim plaintiff must prove that prison personnel
intentionally delayed access to medical care when the inmate was in extreme
pain and has made his medical problems known to the attendant prison
personnel or that the inmate suffered a complete denial of medical
treatment. At a minimum, there must be at least some allegations of a
conscious or callous indifference to a prisoner's rights.
Hodge v. Coughlin, No. 92 Civ. 0622 (LAP), 1994 WL 519902 at *11 (S.D.N.Y. Sep. 22,
1994) (citations and internal quotation marks omitted), affirmed, 52 F.3d 310 (2d Cir. Mar.
9, 1995) (table); see also, Jean v. Barber, No. 9:09–cv–430 (MAD/GHL), 2011 WL
2975218 at *5 (N.D.N.Y. Jul. 21, 2011)(“Non-medical personnel may engage in deliberate
indifference if they intentionally deny or delay access to medical care.”) (citations omitted).
17
With these general legal principles in mind, the Court will proceed to consider
whether the Amended Complaint states plausible claims of deliberate indifference to a
serious medical need.
I. The Amended Complaint fails to state an objectively serious
medical condition
At the outset, to the extent that the pleading attempts to rely on Myocarditis as the
objectively serious medical condition, the Court finds that such condition could satisfy the
objective prong of the analysis. However, that is of no benefit to Plaintiff since there is no
indication that any defendant knew that Viera had Myocarditis or any similar condition.
Plaintiff further maintains that Viera’s need for medical detoxification was an
objectively serious condition, since “symptoms associated with alcohol and opiate
withdrawal represent a serious medical condition.”34 For support, Plaintiff cites Livermore
v. City of New York, 2011 WL 182052 (S.D.N.Y. 2011), Mayo v. County of Albany, No.
09-1745-cv357, Fed.Appx. 339, 341-342 (2d Cir. Dec. 17, 2009) (“Mayo”) and Caiozzo v.
Koreman, 581 F.3d 63, 72 (2d Cir. 2009). However, the Court does not agree that those
cases reflect a per se rule that drug/alcohol withdrawal is an objectively serious medical
condition.
In Mayo, the Circuit Court remarked that, “[t]o the extent that withdrawal from heroin
and alcohol addictions presents a serious medical condition, it appears undisputed that
Mayo satisfied the first prong of the test.” Mayo, 357 Fed.Appx. at 341 (emphasis added).
In that regard, the inmate in Mayo was a heroin addict who had informed the jail medical
staff “that she had experienced withdrawal problems on prior attempts to quit drugs,” and
34
Pl. Memo of Law [#25] at p. 7.
18
had taken an opioid drug to help with withdrawal.35 The jail staff further observed the
inmate exhibit “tremors, agitation and visual hallucinations [such as seeing insects,]” but
failed to closely monitor her, as a result of which she attempted suicide by hanging and
suffered permanent brain damage.36 As mentioned above, the parties in Mayo did not
dispute that such symptoms qualified as an objectively serious medical condition, and the
Second Circuit therefore had no reason to analyze the issue. Consequently, Mayo
involved different facts than those presented here, and the statement by the Second Circuit
upon which Plaintiff relies does not establish that withdrawal symptoms are necessarily
objectively serious in all cases.
The Caizzo decision involved a male inmate who was known to the jail medical staff
to be chronic alcoholic, due to the fact that he had been incarcerated “on at least twentyseven separate occasions, and had been treated for chronic alcoholism by the facility’s
medical staff.” Caiozzo, 581 F.3d at 66. Upon entering the jail, the inmate appeared to be
intoxicated, smelled of alcohol and “exhibited abnormal behavior.” Id. The inmate told the
intake nurse that he consumed alcohol every day, and that he was “possessed.” Id. at 6667.
The inmate also apparently told the intake nurse that he had recently been
hospitalized for psychiatric treatment. Id. at 67. However, the intake nurse did not
immediately begin detoxification treatment, because she mistakenly understood that the
inmate had recently consumed alcohol, when he actually had not consumed alcohol for a
day, and was already beginning to experience withdrawal. Later, the inmate began “yelling
35
See, Mayo v. County of Albany, No. 07–cv–823 (GLS–DRH), 2009 WL 935804 at *1
(N.D.N.Y. Apr. 3, 2009).
36
Id. at *1-2.
19
an acting irrationally,” vomited once, and stated that he was experiencing withdrawal. Id.
Still later, the inmate had “some sort of spasm” and fell out of his bunk. Id. at 67-68. The
inmate died a short time later, and his death was attributed to “seizure due to acute and
chronic alcoholism.” Id. at 68. On appeal from the district court’s grant of summary
judgment, the Second Circuit merely observed that, “[h]ere, this is no dispute that Caiozzo
had a serious medical condition.” Id. at 72 (emphasis added). Consequently, Caiozzo,
which involved much different facts, also fails to support Plaintiff’s contention that
drug/alcohol withdrawal always qualifies as an objectively serious medical condition.
The
correct
statement
of
the
law
is
that
whether
an
inmate’s
withdrawal/detoxification amounts to an objectively serious medical condition depends
upon the particular symptoms that the inmate is exhibiting. See, e.g., Smith v. Carpenter,
316 F.3d 178, 185 (2d Cir. 2003) (“Because the objective component of an Eighth
Amendment claim is necessarily contextual and fact-specific, the serious medical need
inquiry must be tailored to the specific circumstances of each case.”) (citation and internal
quotation marks omitted). In that regard, mild withdrawal symptoms, such as vomiting, do
not necessarily qualify as an objectively serious medical condition. See, Avallone v.
Hofman, Nos. 2:06–CV–253, 2:07–CV–1, 2009 WL 2957955 at *5 (D.Vt. Sep. 9, 2009)
(“Avallone's withdrawal symptoms included a seizure, vomiting, diarrhea, and dehydration
for a period of two days. These sorts of symptoms do not generally provide the basis for
an Eighth Amendment claim.”); see also, Feder v. Sposato, No. 11–CV–193 (JFB)(WDW),
2014 WL 1801137 at *8 (E.D.N.Y. May 7, 2014) (“Considering the facts in the light most
favorable to plaintiff, the Court cannot determine as a matter of law whether plaintiff's
condition—physical pain and morphine withdrawal—constituted a serious medical need.
20
Armor's Withdrawal Assessment, signed by Rhim, shows that plaintiff experienced only
“mild nausea, no vomiting and/or diarrhea,” mild anxiety, and “very mild” headaches during
the first six days following his transfer to the NCCC.”).
In the instant case, the only factual allegation concerning Viera’s withdrawal
symptoms is that she was observed, on one occasion, bending over a toilet, presumably
to vomit. There is no suggestion that Viera exhibited other signs of withdrawal, or that she
requested assistance due to withdrawal. Consequently, the Amended Complaint fails to
plausibly allege that Viera’s withdrawal symptoms were “objectively serious.”
Nevertheless, the Court will proceed to consider whether any defendant was
deliberately indifferent to Viera’s condition, assuming arguendo that her withdrawal
symptoms were objectively serious.
II. The Amended Complaint Fails to Plausibly Allege Subjective Deliberate
Indifference by Any Defendant
Medical Jail Staff: Nurse Augello and Nurse McQueeney
Nurse Augello
The Amended Complaint plausibly alleges that Augello failed to place Viera on the
detoxification flow sheet, to be monitored. Apparently, the Commission of Correction
determined that in doing so, Augello failed to follow CMC’s “Procedure # 153," though it
is unclear to the Court why that would be. In that regard, the fatality report suggests that
Procedure #153 applies where an inmate “admit[s] to daily [alcohol] or drug
consumption.”37 However, according to the report, the only information that Augello had
37
Amended Complaint, Ex. 1 at p. 4. There appears to be a typo in the report, omitting the word
“alcohol.”
21
about Viera was 1) Deputy R.S.’s screening form; and 2) her own observations. As to
R.S.’s screening form, it merely indicated that Viera was “under the influence of alcohol or
drugs,” and that she had “a history of drug or alcohol abuse,” but did not indicate that Viera
used alcohol or drugs “daily” as required for Procedure # 153 to apply.38 Nor is there any
indication that Viera told Augello that she used drugs on a daily basis. Consequently, the
pleading does not plausibly indicate that Augello knew the extent of Viera’s drug use.
Significantly, in that regard, Augello did not know what Cesarano learned the following day,
which was that Viera had been using heroin and crack on a daily basis prior to her arrest.
As to Augello’s own observations, there is nothing to indicate that Viera was
exhibiting signs of intoxication or withdrawal at that time. In that regard, R.S., who
examined Viera shortly before Augello, indicated that she only completed the alcohol/drug
screening form because Viera told her that she was under the influence of drugs; the
fatality report specifically indicates that R.S. did not personally observe Viera exhibiting the
symptoms of intoxication or withdrawal.39
In any event, as Plaintiff admits,40 the Commission of Correction determined that
Nurse Augello’s failure to place Viera on detoxification monitoring was due to her
inexperience, not to any intentional wrongdoing. Plaintiff contends, however, that Auguello
should have recognized her own inexperience, and sought assistance from “a supervisor
38
Amended Complaint, Ex. 1 at p. 3.
39
Amended Complaint, Ex. 1 at p. 3 (“Deputy R.S. stated that she gave an affirmative answer to
the question as Viera self-reported [that] she was under the influence of drugs. Deputy R.S. stated that
she did not observe any of the listed symptoms.”) (emphasis added).
40
Pl. Memo of Law [#25] at p. 11.
22
or doctor,” and that her failure to do so amounts to deliberate indifference.41 Plaintiff
impliedly concedes the weakness of the claim against Augello, but maintains that he
should be permitted to conduct discovery, in light of the “low standard on a motion to
dismiss.”42
However, the Court disagrees with Plaintiff in that regard and finds, as
Defendants maintain, that Auguello’s failure to place Viera on the detox list, as pleaded,
amounts to negligence at most.
The Amended Complaint also alleges, but does not plausibly plead, that Augello
“failed to address Ms. Viera’s need for prescription medication.”43 In that regard, the
pleading does not indicate that Viera told Augello that she was taking prescription
medication, let alone what that medication was or why it had been prescribed to Viera.
Nurse McQueeney
Plaintiff contends that Nurse McQueeney was deliberately indifferent because she
saw Viera vomiting and exhibiting unspecified signs of “distress,” but did not do anything.44
However, to be guilty of a constitutional violation, McQueeney would have needed to be
deliberately indifferent to a known serious medical need, which Plaintiff maintains was drug
and alcohol withdrawal. The facts, though, in the Amended Complaint do not support such
an inference. At the outset, McQueeney was called to the reception area of the jail not to
examine Viera, but to examine another inmate. Moreover, there is nothing to suggest that
McQueeney knew Viera’s history of drug and alcohol usage, or anything else about her.
41
Pl. Memo of Law [#25] at pp. 11-12.
42
Pl. Memo of Law [#25] at p. 12.
43
Amended Complaint at
44
Pl. Memo of Law [#25] at p. 12.
¶ 23.
23
Consequently, there is no basis to infer that McQueeney even knew that Viera had a
serious medical condition.45
Further, even assuming that McQueeney saw Viera
vomiting,46 the corrections officer accompanying McQueeney asked Viera if she was ok,
and Viera nodded in the affirmative.47 Such facts are insufficient to state a deliberate
indifference claim against McQueeney. See, e.g., Avallone v. Hofman, 2009 WL 2957955
at *5 (“Avallone's withdrawal symptoms included a seizure, vomiting, diarrhea, and
dehydration for a period of two days. These sorts of symptoms do not generally provide the
basis for an Eighth Amendment claim.”).
Non-medical Jail Staff: Deputy Cesarano, Deputy DeCoste,
Deputy McClellan and Deputy Bishop
The Amended Complaint contends that Deputies Cesarano, DeCoste, McClellan
and Bishop were deliberately indifferent to Viera’s need for detoxification monitoring.
However, the Court finds that these claims are not plausibly pleaded. With regard to such
claims generally, the Amended Complaint indicates that Viera was denied “detoxification
45
The Amended Complaint makes the conclusory assertion, based on an opinion expressed by
Deputy R.S., that when McQueeney was in the vicinity, Viera “was showing the signs of detoxification.”
Amended Complaint ¶ 28. However, that assertion is unsupported, since the fatality report indicates
only that Viera “was observed to be exhibiting clinical signs warranting a nursing assessment of Viera.”
See, Amended Complaint, Ex. 1 at p. 6, ¶ 13. Consequently, the pleading misstates what is contained
in the report, because R.S. did not indicate that Viera was exhibiting signs of detoxification. That is, the
fatality report does not say what those “clinical signs” were, nor does it indicate that such “clinical signs”
were indicative of drug or alcohol withdrawal. Id. Accordingly, the pleading does not plausibly suggest
that McQueeney was deliberately indifferent to Viera’s need for detoxification monitoring. At most, it
suggests that McQueeney should have looked into why Viera might be vomiting, but the failure to do
so, without more, is not a constitutional violation, especially where Viera indicated that she was ok.
46
The fatality report does not expressly indicate that McQueeney saw Viera bending over the
toilet. Rather, it states that Deputy R.S. saw Viera bending over the toilet. Although R.S. was
purportedly escorting McQueeney to see another inmate, it is certainly possible that R.S. saw Viera and
McQueeney did not. Moreover, it was R.S. who asked Viera if she was ok, not McQueeney.
47
Since McQueeney was already in the cell block at the request of another inmate, there is no
reason to think that she would not also have checked on Viera if Viera had made such a request.
24
monitoring,” which is apparently a form of medical treatment/monitoring to be provided by
medical staff.48 In the situation presented here, it would have been reasonable for nonmedical personnel to assume that Viera, who had just been admitted to the jail, had been
recently and properly evaluated by medical staff concerning the need for detoxification
monitoring. Moreover, since the jail’s medical staff had not placed Viera on detoxification
status, it would have been reasonable for the non-medical jail employees to assume that
the medical staff had determined that she did not need detoxification monitoring.
Consequently, even assuming that such non-medical staff believed that Viera needed
detoxification, it does not appear that they had the power or duty to intervene in her health
care, particularly where she never requested such assistance.49 See, Rivera v. Pataki, No.
04 Civ. 1286(MBM), 2005 WL 407710 at *29 (S.D.N.Y. Feb. 7, 2005) (“[T]he Circuit has
held that a non-medical defendant should not intercede in the medical treatment of an
inmate.”) (citing Cuoco v. Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000)); Cuoco v. Moritsugu,
222 F.3d 99, 111 (2d Cir. 2000) (“Cuoco was under medical treatment. Cuoco suggests
no basis on which to conclude that Moore or Hershberger should have challenged the
responsible doctors' diagnosis. One can imagine the repercussions if non-medical prison
officials were to attempt to dictate the specific medical treatment to be given to particular
prisoners—for whatever reason.”). Consequently, while the pleading seemingly contends
that the non-medical jail employees had a duty to contact the medical staff and request
48
The fatality report indicates that nurses came into the cell block area to perform “detoxification
rounds.” Amended Complaint, Exhibit A, ¶ 17.
49
This notion is supported by the fact that Cesarano removed Viera’s name from the
detoxification list when paperwork supporting such treatment was not received from the medical
department. The Court is not suggesting that corrections officers should not notify medical staff when
they believe that an inmate needs assistance. Instead, the Court is indicating that here, the corrections
officers had reason to know that Viera had just been evaluated by the medical staff.
25
detoxification monitoring, i.e., medical assistance, for Viera, their failure to do so under the
facts presented here does not amount to a constitutional violation.
With those general observations in mind, the Court will discuss each of the nonmedical jail employees in more detail below.
Deputy Cesarano
The pleading maintains that Cesarano was deliberately indifferent to Viera’s serious
medical need because she “removed Viera from the ‘detox’ list without making any inquiry
of supervisory or medical personnel.”50 However, the only non-conclusory factual support
on that point is from the fatality report, which indicates that Cesarano “removed Viera from
detoxification on the status board in the computer since no formal paper work was provided
by the facility’s medical department.”51 The reasonable inference, therefore, is that
Cesarano needed such paper work from the medical department in order to maintain Viera
on the detoxification list, and that she only removed Viera’s name from the list because she
did not receive such paperwork.
There is simply no indication that Cesarano was acting recklessly with regard to
Viera’s health. To the contrary, the report emphasizes that Cesarano took it upon herself
in the first instance to place Viera’s name on the detoxification list, pending further
paperwork from the medical department, because she was aware of Viera’s history of drug
use, and because Viera had told her that she had been using drugs at the time of her
arrest. Nor is there any indication, in either the fatality report or the pleading, that
Cesarano observed Viera actually exhibiting symptoms of withdrawal/detoxification.
¶ 26.
50
Amended Complaint
51
Amended Complaint, Ex. 1 at p. 6 (emphasis added).
26
Accordingly, the Court finds that the pleading fails to state a deliberate indifference claim
against Cesarano.
Deputy DeCoste
According to the fatality report, DeCoste’s only involvement in this action came on
the evening of September 1, 2010, when he placed Viera’s name back on the
computerized detoxification list, presumably so that she could receive detoxification
monitoring.52 Notably in that regard, there is no specific indication as to why DeCoste did
so. That is, there is no non-conclusory factual allegation as to what DeCoste might have
observed that would have caused him to place Viera’s name on the detoxification list.53
Nor is there any suggestion that DeCoste was personally aware of the extent of Viera’s
history of drug usage.
As with Cesarano, any suggestion that DeCoste harbored malice toward Viera, or
acted recklessly toward her, is belied by the fact that he took it upon himself to place her
name onto the detoxification list. Nevertheless, Plaintiff maintains that DeCoste was
deliberately indifferent to Viera’s medical needs, because he “did not inform medical staff
[that he had placed Viera on the detoxification list], or otherwise contact medical staff
seeking assistance for Viera.”54 However, for the reasons already discussed concerning
non-medical staff, the Court disagrees and finds that the pleading fails to state a plausible
52
The fatality report indicates that at the relevant time, the jail’s procedure was for the medical
department to request a copy of the deputies’ detoxification list. Amended Complaint, Ex. 1 at p. 6, ¶
14. However, no one from the medical department requested a copy of the detoxification list during
the brief span between the time DeCoste placed Viera’s name on the list and the time that she died.
53
At most, the reasonable inference is that DeCoste might have seen Viera vomit, since R.S.
claimed that, later that evening, he saw Viera bending over the toilet.
54
Amended Complaint
¶ 27.
27
deliberate indifference claim against DeCoste.
Deputies McClellan and Bishop
The Amended Complaint alleges, “upon information and belief,” that Bishop was
deliberately indifferent to Viera’s medical needs because she ignored Viera’s “distress.”55
In that regard, the pleading seems to suggest that Bishop failed to make her rounds as
required.56 However, those allegations are entirely speculative, and are belied by the
fatality report. For example, there is no indication that Bishop observed Viera exhibiting
any signs of distress. Rather, the fatality report indicates that Bishop observed Viera in her
cell, awake and in no apparent distress, at approximately 12:40 a.m., and that during the
rest of the night Viera appeared to be sleeping. Consequently, the Amended Complaint
does not state an actionable deliberate indifference claim against Bishop.
As for McClellan, the pleading lists her name in the caption, indicates that she was
a deputy employed by the Monroe County Sheriff, and states that she was “stationed in the
Jail Booking Room in the early morning hours of September 2, 2010.”57 Otherwise, though,
the Amended Complaint does not mention McClellan. Even assuming, arguendo, that
McClellan is the same “Deputy C.M.” that is mentioned in the fatality report, then she would
be entitled to dismissal for the same reasons as Bishop. Namely, the fatality report
indicates that Deputy C.M. observed Viera alive and in no apparent distress at
approximately 12:40 a.m., and that she thereafter made rounds every fifteen minutes
55
Amended Complaint
¶ 30.
Amended Complaint ¶ 30 (Indicating that Viera “was guarded by” Bishop, who was “supposed
to make rounds during the evening.”).
56
57
Amended Complaint
¶ 17 (misspelling McClellan’s name as “Deputy McClennan”).
28
throughout the night, during which Viera appeared to be asleep.58 Consequently, the
Amended Complaint fails to state an actionable claim against McClellan.
The County of Monroe, Sheriff O’Flynn and Superintendent Harling
The Amended Complaint contends that Monroe County, O’Flynn and Harling are
liable under § 1983 because O’Flynn and Harling were county policymakers who enforced
a policy of not providing medical care to jail detainees.59 However, since the pleading fails
to plausibly plead an underlying constitutional violation, the supervisory and Monell claims
against the County, O’Flynn and Harling also necessarily fail. See, e.g., Dilworth v.
Goldberg, No. 10–CV–2224 (JMF), 2014 WL 3798631 at *11 (S.D.N.Y. Aug. 1, 2014) (“In
the absence of an underlying constitutional violation, a plaintiff cannot state a claim for
supervisory liability or a claim under Monell.”) (citations omitted). In any event, the
allegations concerning a county policy are wholly conclusory, since the pleading offers no
facts to support the existence of a policy to deny medical care to detainees.60 To the
contrary, the pleading indicates that there were written policies in place that were intended
to ensure that drug-addicted inmates received detoxification monitoring.61 Accordingly, the
claims against the County, O’Flynn and Harling must be dismissed.
58
Amended Complaint, Exhibit 1 at p. 7.
59
Amended Complaint
¶ 44.
60
In his memo of law in opposition to Defendants’ motion, Plaintiff further maintains that the
County “failed to have policies that address communications between jail and medical employees
regarding the detoxification of detainees.” Docket No. [#25] at pp. 5-6. However, the Amended
Complaint does not plausibly plead a constitutional violation arising from such a deficiency.
61
Amended Complaint ¶ ¶ 21, 23. To the extent that Plaintiff is asserting that Defendants
adopted a sham detoxification policy and then instructed employees to ignore the policy, the pleading
does not contain facts to make such a theory plausible.
29
CMC, Umar and Biuso
The Amended Complaint contends that CMC, Umar and Biuso had a policy to
provide inadequate medical care to prisoners, in order to save money.62 In support of that
claim, the pleading indicates that other persons have successfully sued CMC, and that the
New York State Commission of Correction has criticized certain aspects of CMC’s
operations.63 More specifically, the pleading alleges that the Commission of Correction
previously “found deficiencies in staffing and care of detainees” in facilities at which CMS
was providing care, including the Monroe County Jail (inmate spent five days “seriously ill”),
the Broome County Jail (inmate died from heroin withdrawal), the Tioga County Jail
(inmate committed suicide) and the Ulster County Jail (inmate did not receive “timely
mental health assessment”).64 The pleading does not indicate the dates of these alleged
prior instances of deficient medical care. Again, however, the supervisory and Monell
claims against these defendants necessarily fail, since the pleading fails to plausibly state
an underlying constitutional violation.
However, even assuming arguendo that the pleading adequately stated an
underlying violation by one of CMC’s employees, either Augello or McQueeney, it still does
not state a plausible claim for supervisory or Monell liability. The applicable legal
principles are well settled:
Under the standards of Monell v. Department of Social Services, 436 U.S.
Amended Complait ¶ ¶ 32, 45. Even though CMC is a private entity, it may be sued under a
municipal liability theory. See, Powell v. Correctional Medical Care, Inc., No. 13 cv 6842, 2014 WL
4229980 at *6 (S.D.N.Y. Aug. 15, 2014) (“Although Monell dealt with municipal employers, its rationale
has been extended to private businesses.”) (citation omitted).
62
63
Amended Complaint
¶ ¶ 32-34.
64
Amended Complaint
¶ 33.
30
658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality can be held liable
under Section 1983 if the deprivation of the plaintiff's rights under federal law
is caused by a governmental custom, policy, or usage of the municipality.
Absent such a custom, policy, or usage, a municipality cannot be held liable
on a respondeat superior basis for the tort of its employee.
Thus, isolated [unconstitutional] acts . . . by non-policymaking municipal
employees are generally not sufficient to demonstrate a municipal custom,
policy, or usage that would justify municipal liability. On the other hand, such
acts would justify liability of the municipality if, for example, they were done
pursuant to municipal policy, or were sufficiently widespread and persistent
to support a finding that they constituted a custom, policy, or usage of which
supervisory authorities must have been aware, or if a municipal custom,
policy, or usage would be inferred from evidence of deliberate indifference
of supervisory officials to such abuses. A plaintiff alleging that she has been
injured by the actions of a low-level municipal employee can establish
municipal liability by showing that a policymaking official ordered or ratified
the employee's actions—either expressly or tacitly. Thus, a plaintiff can
prevail against a municipality by showing that the policymaking official was
aware of the employee's unconstitutional actions and consciously chose to
ignore them. A municipal policymaking official's “deliberate indifference” to
the unconstitutional actions, or risk of unconstitutional actions, of municipal
employees can in certain circumstances satisfy the test for a municipal
custom, policy, or usage that is actionable under Section 1983.
To establish deliberate indifference a plaintiff must show that a policymaking
official was aware of constitutional injury, or the risk of constitutional injury,
but failed to take appropriate action to prevent or sanction violations of
constitutional rights. Deliberate indifference is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.
Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012) (emphasis added; citations,
internal quotation marks and footnote omitted).
In this action, the pleading does not allege the existence of a formal policy, but
contends that an informal policy or practice can be inferred from the fact that other inmates
31
have suffered harm due to particular instances of inadequate medical care.
More
specifically, the pleading indicates that CMC has, for years, provided contract medical care
at jails in counties “across New York,” including Albany, Broome, Rensselaer,
Schenectady,Tioga and Ulster. According to the hearsay newspaper article attached to
the Amended Complaint as Exhibit C, between 2009 and 2011 there were a total of nine
inmate deaths at jails where CMC provided medical care.65 Using brief quotes taken out
of context, the newspaper article suggests that CMC provided sub-standard care in all nine
instances where inmates died.
66
Of the nine deaths, five were suicides, three involved
medical issues including cardiac arrythmia and diabetes/pneumonia, and one cause of
death was “undetermined.”67 Viera’s death is included in the nine, and the cause of death
is listed as myocarditis, suggesting that CMC failed to treat her for that condition, but as
already discussed there is no indication in the pleading that any CMC staff member knew
that Viera suffered from myocarditis. Notably, although CMC reportedly provides medical
services at thirteen jails across New York State, the nine deaths occurred at just six of
those jails: Ulster County (2), Monroe County (2), Dutchess County (2), Schenectady
County (1), Broome County (1) and Tioga County (1).
The Court finds that given the very large number of inmates that CMC employees
must have treated over the years on a continuous basis, nine unrelated deaths, five of
which were by suicide and one of which was due to an undetermined cause, over the
course of several years does not plausibly suggest the existence of a policy of providing
65
Amended Complaint, Ex. C at p. 1.
66
Amended Complaint, Ex. C at p. 3.
67
Id.
32
sub-standard care in order to save money, such as is alleged here. See, Tanzi v. Town of
Marlborough, 2014 WL 2815777 at *8 (N.D.N.Y. Jun. 23, 2014) (Holding that a small
number of isolated incidents does not plausibly suggest a municipal custom or policy)
(collecting cases); McNulty v. Yaneka, No. 11-CV-08320 (ER), 2013 WL 684448 at *9
(S.D.N.Y. Feb. 25, 2013) (“Plaintiff’s speculative and conclusory allegations of an unlawful
custom or practice are insufficient to support a claim of municipal liability against CMC.
Plaintiff’s theory that CMC has a policy of making medical decisions based on cost is
based on mere conjecture.”).
Apart from failing to plausibly allege the existence of such a policy, the pleading also
fails to plausibly allege that any conduct by CMC in this action was motivated by a desire
to cut costs. In that regard, Plaintiff essentially alleges that since CMS is a for-profit
corporation, it is plausible to think that it intentionally endangered inmates’ health to cut
costs in any instance in which an inmate received sub-standard care,68 even though one
could offer the same speculation about any for-profit medical provider. Consequently, the
Court finds that the claims against CMC, Umar and Biuso must be dismissed.
Leave to Re-Plead is Denied
Although Plaintiff has not requested the opportunity to file a second amended
complaint, the Court believes that any further attempt to replead would be futile in any
event, since the informational sources which Plaintiff relied upon in bringing this action do
not provide a basis for a plausible deliberate indifference claim that would also comply with
Rule 11. See, Longman v. Wachovia Bank, N.A., 702 F.3d 148, 151 (2d Cir. 2012) (district
court has discretion to deny leave to amend sua sponte). Accordingly, leave to replead is
68
See, Pl. Memo of Law [#25] at p. 16.
33
denied.
CONCLUSION
Plaintiff’s cross-motion [#26] is granted, but Defendants’ application to dismiss [#16]
is also granted in its entirety, and this action is dismissed with prejudice. The Clerk of the
Court is directed to close this action.
So Ordered.
Dated: Rochester, New York
October 2, 2014
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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