Summary
finding objective prong not met on motion to dismiss where plaintiff alleged a one-day delay in treatment of an infection, but not "that the delay itself caused or exacerbated the infection, caused him extreme pain, or caused any permanent harm"
Summary of this case from Cuffee v. City of N.Y.Opinion
15 Civ. 5688 (NRB)
2016-08-25
Shawn FRITH, Plaintiff, v. The CITY OF NEW YORK and Correction Officer Captain Gibson, Defendants.
Martin Schiowitz, Isaacson, Schiowitz, Korson & Solny, LLP, New York, NY, for Plaintiff. Susan P. Scharfstein, New York City Law Department, Austa Starr Devlin, Milena Shtelmakher, Heidell, Pittoni, Murphy & Bach, LLP, New York, NY, Ana Maria Vizzo, John Charles O'Brien, Jr., Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY, for Defendants.
Martin Schiowitz, Isaacson, Schiowitz, Korson & Solny, LLP, New York, NY, for Plaintiff.
Susan P. Scharfstein, New York City Law Department, Austa Starr Devlin, Milena Shtelmakher, Heidell, Pittoni, Murphy & Bach, LLP, New York, NY, Ana Maria Vizzo, John Charles O'Brien, Jr., Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY, for Defendants.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE
Plaintiff Shawn Frith brings this action against the City of New York (the "City") and "Correction Officer Captain Gibson" ("Captain Gibson"), alleging that, while in custody in a City-operated correctional facility, he was deprived of medical treatment in violation of federal and state law. The City moves to dismiss. For the following reasons, the motion is granted.
The motion is made only on behalf of the City because plaintiff has failed to identify or serve Captain Gibson. The time limit for serving him has long passed. See Fed. R. Civ. P. 4(m). Plaintiff asserts that he would seek leave to amend the Complaint "once the City exchanges his full identity[.]" Pl.'s Opp'n Mem. 11, ECF No. 25 ("Opp'n").
I. BACKGROUND
Plaintiff's Complaint, ECF No. 1, alleges the following facts, which we presume to be true in evaluating the instant motion. On or about August 5, 2014, at approximately 11:00 a.m., plaintiff, who was in the custody of the Otis Bantum Correctional Center ("OBCC") in East Elmhurst, New York, complained to "his Captain" that he believed he had an abscess in his mouth. Compl. ¶¶ 12-13. Plaintiff "was given an emergency pass to be seen right away." Id. ¶ 13. However, when plaintiff went to get treatment, he was "denied by Captain Gibson, without reason" and sent to "Intake." Id. The following day, plaintiff had a Legal Aid attorney inquire why "after days of complaining of pain and swelling," plaintiff was being denied care. Id. Plaintiff was then "finally seen by a doctor" at OBCC, "but was not sent to the hospital until August 7, 2014." Id.
Plaintiff asserts he was seen at Bellevue Hospital and diagnosed with "an infection that went into his temple" requiring the doctor "to drain the infection that could have been fatal." Compl ¶ 13. The next day, "the dentist at [OBCC] extracted three of plaintiff's teeth." Id. However, plaintiff "was later told by a doctor at Bellevue that the teeth should not have been extracted so soon following surgery." Id. Plaintiff claims he "was caused serious personal injuries," including "severe infection, incision to the inside of his mouth requiring stiches, loss of teeth, swelling and severe pain[.]" Id.
The Complaint, filed on July 21, 2015, asserts four causes of action, namely: (1) violation of plaintiff's civil rights pursuant to 42 U.S.C. § 1983 ; (2) negligence; (3) negligent retention and hiring; and (4) negligent and intentional infliction of emotional distress. The City moved to dismiss on February 4, 2016, and the motion was fully briefed on April 1.
II. LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the plaintiff must " ‘state a claim to relief that is plausible on its face’ " by "plead[ing] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Where a plaintiff has not "nudged [his] claims across the line from conceivable to plausible," dismissal is appropriate. Twombly , 550 U.S. at 570, 127 S.Ct. 1955. In applying this standard, we accept as true all factual allegations in the plaintiff's pleadings and draw all reasonable inferences his favor. Anderson News, L.L.C. v. Am. Media, Inc. , 680 F.3d 162, 185 (2d Cir.2012). However, "we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). A complaint alleging a civil rights violation pursuant to 42 U.S.C. § 1983 must contain specific factual allegations demonstrating a deprivation of a constitutional right, or it will be dismissed. Alfaro Motors, Inc. v. Ward , 814 F.2d 883, 887 (2d Cir.1987).
III. DISCUSSION
A. Federal Claim
Plaintiff's first cause of action, asserted against both Captain Gibson and the City, alleges that the defendants, acting under color of law, deprived plaintiff of his federal constitutional rights by denying him dental treatment while in custody at OBCC. Compl. ¶¶ 15-24. While plaintiff invokes the Fourth, Fifth, and Fourteenth Amendments in his Complaint, id. ¶ 17, both parties acknowledge in the briefing that the claim should be construed as one of deliberate indifference to plaintiff's serious medical needs, analyzed under the Eighth Amendment's prohibition on the use of "cruel and unusual punishments."
We presume plaintiff was a convicted prisoner at the time of his alleged mistreatment. If, instead, plaintiff were a pretrial detainee, we would undertake an identical analysis under the Due Process Clause of the Fourteenth Amendment. See Caiozzo v. Koreman , 581 F.3d 63, 72 (2d Cir.2009).
1. Captain Gibson
We turn first to the underlying constitutional violation alleged against Captain Gibson. "To state a claim under § 1983 for deprivation of medical treatment in violation of the Eighth Amendment, a plaintiff must show that the defendant acted with ‘deliberate indifference to serious medical needs.’ " Harrison v. Barkley , 219 F.3d 132, 136 (2d Cir.2000) (quoting Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) and Chance v. Armstrong , 143 F.3d 698, 702 (2d Cir.1998) ). This test involves objective and subjective elements. First, the plaintiff must show an objectively serious medical need, which "exists where ‘the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.’ " Id. (quoting Chance , 143 F.3d at 702 ). Second, the plaintiff must show that the serious condition was met with deliberate indifference, namely, that " ‘the prison official knew of and disregarded the plaintiff's serious medical needs.’ " Id. at 137 (quoting Chance , 143 F.3d at 703 ). The level of subjective culpability required is "the equivalent of criminal recklessness." Hernandez v. Keane , 341 F.3d 137, 144 (2d Cir.2003) (quotation marks omitted).
Plaintiff has failed to adequately allege either element. First, he has not shown the asserted delay in dental treatment rises to the level of an objective constitutional violation. In a case alleging a delay in medical treatment—and not the absence of treatment altogether—"it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone[.]" Smith v. Carpenter , 316 F.3d 178, 185 (2d Cir.2003) (emphasis removed). " [A] delay in treatment does not necessarily invoke the Eighth Amendment." Pabon v. Wright , No. 99 Civ. 2196 (WHP), 2004 WL 628784, at *8 (S.D.N.Y.2004), aff'd , 459 F.3d 241 (2d Cir.2006) (quotation marks omitted). The Second Circuit has instead "reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a ‘life-threatening and fast-degenerating’ condition for three days; or delayed major surgery for over two years." Demata v. New York State Corr. Dep't of Health Servs. , No. 99–0066, 198 F.3d 233 (table), 1999 WL 753142, at *2 (2d Cir. Sept. 17, 1999) (citations omitted).
Here, plaintiff asserts a one-day gap between the initial issuance of an "emergency pass" and when he was "finally seen by a doctor" at OBCC. He was seen at Bellevue Hospital one day later. Beyond the conclusory claim that the infection he was treated for "could have been fatal," he does not allege that the delay itself caused or exacerbated the infection, caused him extreme pain, or caused any permanent harm. Cf. Chance , 143 F.3d at 702–03 (six-month delay in treatment for dental condition which led to infection and extreme pain). Plaintiff therefore has not pled that the delay in treatment of his mouth abscess caused injury or a risk of injury objectively serious enough to violate the Eighth Amendment.
Plaintiff does assert that the OBCC dentist later extracted three of his teeth, a procedure that "should not have [happened] so soon following surgery. " Compl. ¶ 13. This is undoubtedly a permanent harm. However, because this procedure took place after plaintiff had received medical attention at both OBCC and Bellevue, it is wholly unrelated to his claim that Captain Gibson (or anyone else) delayed access to treatment. Indeed, plaintiff suggests the tooth extraction should have been delayed.
Second, plaintiff has not sufficiently alleged Captain Gibson's deliberate indifference. Plaintiff makes only the general claim that he was denied treatment on August 5 "without reason." He does not claim that he told Captain Gibson of any discomfort or pain. Nor does he plead any other facts to suggest that Gibson, a correction officer undoubtedly untrained in medicine or dentistry, was aware of the urgency of plaintiff's condition or deliberately blocked his access to treatment in order to inflict punishment. Plaintiff claims that, on August 6, "he had a Legal Aid attorney ... inquire why after days of complaining of pain and swelling," plaintiff was being denied emergency dental care. Compl. ¶ 13. This allegation, however, is unconnected to Captain Gibson's state of mind. It also conflicts with his assertion that on August 5, his initial complaint to "his Captain" was met with an "emergency pass to be seen right away." Ultimately, plaintiff does not plausibly allege that Gibson "acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan , 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A bare allegation that plaintiff was denied care "without reason" cannot suffice.
For these reasons, we conclude plaintiff has not pled a sufficiently serious medical condition that was met with deliberate indifference by Captain Gibson.
2. Municipal Liability
Plaintiff also advances his Eighth Amendment claim against the City. He asserts the City was negligent in hiring, retaining, and training correction officers, which proximately caused his injuries. Compl. ¶ 16. He also claims that the City has "established a custom, policy and/or practice of encouraging, approving and/or tolerating ... acts of misconduct against civilians" and made "subsequent attempts to conceal such actions by failing to adequately train, supervise and discipline" its employees. Id. ¶ 18. Plaintiff does not elaborate beyond these conclusory assertions.
In general, municipalities "are not vicariously liable under § 1983 for their employees' actions." Connick v. Thompson , 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). " ‘[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.’ " Wray v. City of New York , 490 F.3d 189, 195 (2d Cir.2007) (quoting Batista v. Rodriguez , 702 F.2d 393, 397 (2d Cir.1983) (brackets in Wray ). The plaintiff must "demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the alleged injury." Roe v. City of Waterbury , 542 F.3d 31, 37 (2d Cir.2008) (quoting Bd. of County Comm'rs v. Brown , 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ).
Plaintiff's attempt to plead a Monell claim fails for many reasons. First, plaintiff has not established an underlying constitutional violation, without which there can be no municipal liability under Section 1983. See City of Los Angeles v. Heller , 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). We have already concluded that Captain Gibson's conduct, as alleged, did not constitute an Eighth Amendment violation. To the extent plaintiff suggests that the conduct of the OBCC dentist—who allegedly prematurely extracted plaintiff's teeth—violated the Eighth Amendment, the claim fares no better. An alleged medical mistake, without more, is not cognizable under the Eighth Amendment. See Carpenter , 316 F.3d at 184 (The Eighth Amendment "is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law[.]"). "Mere medical malpractice is not tantamount to deliberate indifference" unless it also "involves culpable recklessness ... that evinces a conscious disregard of a substantial risk of serious harm." Cuoco v. Moritsugu , 222 F.3d 99, 107 (2d Cir.2000) (quotation marks and brackets omitted). Here, plaintiff does not allege the deliberate indifference of Gibson, the OBCC dentist, or any other municipal employee. Because plaintiff does not show that an individual municipal agent committed an underlying constitutional deprivation, his municipal liability claim cannot succeed.
Second, the Complaint is devoid of any of the allegations necessary to advance a Monell claim. Plaintiff does not identify any policymaking officials or a particular unconstitutional municipal policy attributable to such an official. Instead, he alleges only a single instance in which Captain Gibson denied plaintiff medical treatment "without reason." See Ricciuti v. N.Y.C. Transit Auth. , 941 F.2d 119, 123 (2d Cir.1991) ("[A] single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy."). In this context, the conclusory allegation that a wrongful policy exists is wholly insufficient.
Plaintiff suggests that the United States Supreme Court's decision in Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), adopted a rule allowing a bare allegation that individual officers' conduct conformed to a municipal policy, custom, or practice to support this prong of a Monell claim in the face of a motion to dismiss. Opp'n 9 (citing Smith v. City of New York , 04 Civ. 3286 (TPG), 2010 WL 3397683, at *17 (S.D.N.Y. Aug. 27, 2010) and Colon – Rodriguez v. N.Y.C. Dep't of Corr. , 07–cv–8126 (GBD)(MHD), 2009 WL 995181, at *6 (S.D.N.Y. Apr. 13, 2009) ). We do not agree. Leatherman rejected the application of a "heightened pleading standard" to Monell claims. Leatherman , 507 U.S. at 168, 113 S.Ct. 1160. It does not provide any basis to excuse Monell claims from the plausibility standard articulated in Iqbal and Twombly . See Plair v. City of New York , 789 F.Supp.2d 459, 469 (S.D.N.Y.2011) ("Following Iqbal and Twombly , Monell claims must satisfy the plausibility standard."). See also In re Dayton , 786 F.Supp.2d 809, 822–23 (S.D.N.Y.2011) (dismissing Monell claim where factual assertions constituted a "boilerplate recitation of the elements of a Monell claim"); Guzman v. City of New York , No. 10 Civ. 1048(DLC), 2011 WL 2652572, at *5 (S.D.N.Y. July 7, 2011) (dismissing Monell claim); Cuevas v. City of New York , No. 07 Civ. 4169 (LAP), 2009 WL 4773033, at *3–4 (S.D.N.Y. Dec. 7, 2009) (same); Santiago v. City of New York , 09 CIV 0856(BMC), 2009 WL 2734667, at *3 (E.D.N.Y. Aug. 18, 2009) (same).
Third, plaintiff offers no predicate for his failure to train claim. Although a city's "failure to train or supervise city employees may constitute an official policy or custom if the failure amounts to ‘deliberate indifference’ to the rights of those with whom the city employees interact," Wray , 490 F.3d at 195, plaintiff does not allege such deliberate indifference by the City. See Connick , 563 U.S. at 62, 131 S.Ct. 1350 (explaining that "[a] pattern of similar constitutional violations by untrained employees" is " ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train" (quoting Brown , 520 U.S. at 409, 117 S.Ct. 1382 )).
Plaintiff's reliance on Gashi v. County of Westchester , No. 02 Civ. 6934(GBD), 2005 WL 195517 (S.D.N.Y. Jan. 27, 2005), see Opp'n 9-10, is misplaced. In Gashi , the plaintiff alleged repeated, brutal abuse by correction officers in a county jail, including denial of medical attention that had been repeatedly requested over two-and-a-half weeks. Id. at *2–3. Judge Daniels held that the plaintiff adequately pled a Monell claim against the county, given his allegations that the jail's commissioner was (1) a policymaking official, id. at *13, who (2) "knew of his subordinates' propensity to abuse Plaintiff and deliberately did nothing to effectively curtail it," id. at *14. Here, plaintiff does not allege either the participation of policymaking officials in his single episode of deprivation or an official's knowledge of Captain Gibson's propensity to abuse plaintiff and deliberate failure to intervene.
Fourth, even if plaintiff adequately pled an underlying constitutional violation and the existence of a municipal policy, he has not alleged any connection between the purported policy and Captain Gibson's conduct in this case. See Brown , 520 U.S. at 404, 117 S.Ct. 1382 (A plaintiff "must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.").
For these reasons, plaintiff's claim against the City is dismissed.
B. Pendent Claims
Plaintiff's second, third, and fourth claims allege common-law torts of negligence, negligent retention and hiring, and negligent and intentional infliction of emotion distress under New York law. "It is well settled that where ... the federal claims are eliminated in the early stages of litigation, courts should generally decline to exercise pendent jurisdiction over remaining state law claims." Klein & Co. Futures, Inc. v. Bd. of Trade , 464 F.3d 255, 262 (2d Cir.2006). See Carnegie – Mellon Univ. v. Cohill , 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims."). Because we dismiss plaintiff's federal claim, we decline to exercise pendent jurisdiction over the related state-law claims.
IV. CONCLUSION
For the foregoing reasons, the City's motion to dismiss is granted. The Clerk of the Court is directed to terminate the motion pending at Docket Number 21, to enter judgment for defendants, and to close this case.