Opinion
20cv01786 (VEC) (DF)
02-24-2022
YAHKIMA GOMEZ-KADAWID, Plaintiff, v. DR. LEE; DR. ALSABAN; DR. LEANTT, Defendants.
REPORT AND RECOMMENDATION
DEBRA FREEMAN UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE VALARIE CAPRONI, U.S.D.J.:
In this pro se civil rights action, which has been referred to this Court for general pretrial supervision and to report and recommend on dispositive motions, plaintiff Yahkima Gomez-Kadawid (“Plaintiff”) has asserted a claim under 42 U.S.C. 1983 against three defendants whom Plaintiff initially named in the Complaint as Dr. Lee (described by Plaintiff as a “dentist/doctor”), Dr. Alsaban (also described as a “dentist/doctor”), and Dr. Leantt (described as a “doctor/anesthesia”) (collectively “Defendants”). Defendants have since been identified by their counsel as Dr. Jessica Lee (“Lee”), Dr. Sarah Alsabban (“Alsabban”), and Dr. Sarah Leavitt (“Leavitt”). As set out in more detail below, Plaintiff's constitutional claim arises out of events that allegedly occurred at the Bellevue Hospital Center (“Bellevue”), while Plaintiff was in the custody of the City of New York as a pretrial detainee. Plaintiff alleges that, after having been transported to Bellevue from Rikers Island (“Rikers”), Defendants performed a dental surgical procedure on him without his consent, causing him pain and suffering. 1
Plaintiff filed his Complaint while later incarcerated as a convicted prisoner at the Fishkill Correctional Facility. As reflected on the Docket, Plaintiff is currently incarcerated at the Sing Sing Correctional Facility.
Currently before the Court is a motion by Defendants, stated to have been brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, seeking dismissal of the Complaint, in its entirety. (See Dkt. 29 (motion as filed by defendants Alsabban and Leavitt); see also Dkts. 49 (request by defendant Lee to join in the motion), 52 (granting Lee's request).) For the reasons set out below, I recommend: (1) that Defendants' motion be denied without prejudice; (2) that Plaintiff be provided with assistance from Defendants in identifying which individuals performed surgery on him while he was anesthetized; and (3) that Plaintiff then be directed to amend his Complaint to specify each defendant's personal involvement in the claimed constitutional violation and to address certain other issues discussed herein.
BACKGROUND
A. Factual Background
Liberally construed, Plaintiff's Complaint, dated February 9, 2020 (“Compl.”) (Dkt. 2), alleges the following facts, which are taken as true for the purposes of this motion:
See Discussion, infra, at Section I(B).
On May 22, 2017, Plaintiff was examined at Bellevue. (Compl., at ECF 2.) Plaintiff had been brought there from Rikers after he “complain[ed] of a wisdom tooth that was partly coming out[, for which he requested] painkillers, ” and after he was examined by a dentist at Rikers. (Id.) At Bellevue, Plaintiff was examined by defendants Lee and Alsabban, both dentists, who told him that his tooth “needed to be extracted as it was impacted and the source of the pain.” (Id.) Plaintiff, however, alleges that he did not want to have his tooth extracted because, after being told both that “the surgical procedure may not have the results that were 2 expected, ” as well as “what might happen if no treatment was received, ” he believed that “[t]he risks [of having the surgery] were too high.” (Id.)
Where a filed document cited herein, such as Plaintiff's Complaint, is not itself marked with page numbers, this Court will reference the page numbers affixed to the document by the Court's Electronic Case Filing system, using the prefix “ECF ___.”
According to Plaintiff, he was told that an anesthesiologist, Dr. Mastery, would give him medication to “‘calm down.'” (Id., at ECF 3.) Plaintiff alleges, though, that, when he told Dr. Mastery (as well as defendants Lee and Alsabban) that he “didn't want an invasive surgery performed on him, ” Dr. Mastery refused to administer anesthesia to him. (Id.) Nonetheless, Plaintiff alleges that defendant Leavitt, who was also an anesthesiologist, took over Dr. Mastery's role and proceeded to administer the anesthesia. (Id.) Plaintiff asserts in the Complaint that he “never had a chance, ” as he did not have “enough time to discuss his condition and treatment with the defendant health care providers and none of his questions [were] answered to his satisfaction.” (Id.) Plaintiff emphasizes that, “from the beginning[, ] [he] [did] not giv[e] consent for such an invasive surgical procedure.” (Id.; see also id. (alleging that “[h]e did not agree to have the surgery[, ] but they went and did it without any iota of consent by [] [P]laintiff”).) More specifically, Plaintiff alleges that he “did not agree to [the surgery] verbally and most defin[i]tely did not agree to consent [to] the invasive procedure on paper.” (Id.) Plaintiff claims that Defendants “capriciously and maliciously operated on [him] without his permission, thereafter causing [him] the unnecessary and wonton infliction of permanent pain.” (Id., at ECF 3-4.) Plaintiff also claims that Defendants “capriciously neglected to use reasonable care in exercising their skill.” (Id., at ECF 4.)
With respect to his claimed damages, Plaintiff alleges that, as a result of Defendants' actions, he “now has perman[ent] pain and suffering.” (Id.) He asserts that “[e]ven the sof[t]est foods are painful to eat [and that] [his] bottom left row of teeth are extremely sensitive to heat and cold.” (Id.) He also claims to have had “continuous bleeding, severe swelling and 3 infection, ” as well as “perman[ent] los[s] of sensation [in his] lips, gums, teeth, tongue and chin.” (Id.) He alleges that the surgery caused “[d]amage to adjacent structure, teeth, soft tissue and nerves, ” that “[b]etween 5-6 teeth were subsequently chipped and cracked during the invasive extraction, ” and that “a spicula [] was stuck in his gums from the operation site.” (Id., at ECF 4-5.) For his injuries, Plaintiff seeks $300,000.00 in compensatory and punitive damages, and an injunction requiring doctors at Bellevue to “refrain from practicing on pretrial detainees without written consent.” (Id., at ECF 5.)
In opposition to Defendants' motion, Plaintiff now also requests that the Court “issue an injunction ordering [him to receive] immediate care through an outside source and specialist, ” to be paid for by “the corporation owning[] or running Bellev[ue] Hospital.” (Supplemental Opposition To Deny Dismissal, dated Jan. 9, 2022 (“Pl. Supp. Opp.”) (Dkt. 54-1), at ECF 9.) As this request does not speak to the sufficiency of Plaintiff's pleading and is not responsive to the arguments raised in Defendants' pending motion, this Court will not address it in this Report and Recommendation.
B. Procedural History
Plaintiff filed his pro se Complaint on February 9, 2020, claiming that defendants Lee, Alsabban, and Leavitt violated his federally protected rights by, as described above, performing a surgical procedure on him without his consent, causing him injury. (See generally Compl.)
Under the so-called “prison mailbox rule, ” a pro se prisoner's papers are deemed filed when they are handed over to prison officials for forwarding to the court. See Houston v. Lack, 487 U.S. 266 (1988). In this case, even though Plaintiff's Complaint was not entered on the Docket until February 28, 2020 (see Dkt. 2), the Complaint itself is dated February 9, 2020 (see Compl., at ECF 7). This Court thus deems the Complaint to have been filed as of February 9, 2020. See Hardy v. Conway, 162 Fed.Appx. 61, 62 (2d Cir. 2006) (Summary Order) (noting that, “in the absence of contrary evidence, district courts in this circuit have tended to assume that prisoners' papers were given to prison officials on the date of their signing.” (citing cases)).
After defendants Alsabban and Leavitt were served with process by the United States Marshals Service (“USMS”) (Dkts. 13, 14), they filed the instant motion to dismiss Plaintiff's Complaint, stating in their Notice of Motion (Dkt. 29) that the motion was being made pursuant 4 to Rule 12(b)(6) of the Federal Rules of Civil Procedure, “for failure to state a cause of action against Defendants” (id.). That motion, which was filed on April 16, 2021, was supported by an attorney declaration (Dkt. 30) and a memorandum of law (Memorandum of Law in Support of Defendants' Motion To Dismiss Plaintiff's Complaint Pursuant to F.R.C.P. 12(b)(6), dated Apr. 16, 2021 (“Def. Mem.”) (Dkt. 31)). Plaintiff filed an opposition to the motion on June 15, 2021 (see Motion To Deny Defendants['] Motion To Dismiss, dated June 15, 2021 (“Pl. Opp.”) (Dkt. 47)), and Alsabban and Leavitt filed a reply on July 8, 2021 (Reply Memorandum of Law in Further Support of Defendants' Motion To Dismiss Plaintiff's Complaint Pursuant to F.R.C.P. 12(b)(6), dated July 8, 2021 (“Def. Reply”) (Dkt. 48)).
Although the USMS was unsuccessful in serving defendant Lee (see Dkt. 12), Lee eventually waived service (see Dkt. 41), and then, through counsel, wrote to the Court on July 14, 2021, to request leave to file a separate motion to dismiss or, alternatively, to join the motion filed by defendants Alsabban and Leavitt, which was still pending (see Letter to the Court from Gabrielle Apfel, Esq., dated July 14, 2021 (“Lee Ltr.”) (Dkt. 49)). By Order dated July 21, 2021, this Court deemed Lee to have joined the pending motion by incorporation of the arguments made in her counsel's letter and gave Plaintiff until August 16, 2021 to file a supplemental opposition, if he wished to do so. (Dkt. 52.) It later became apparent to this Court, however, that Plaintiff likely did not receive a copy of the July 21 Order. Accordingly, on December 23, 2021, this Court issued a follow-up Order, giving Plaintiff until January 21, 2022 to file a supplemental opposition. (Dkt. 53.)
Although Plaintiff did not timely file a supplemental opposition, he apparently served such a submission on Defendants' counsel, who then filed it with the Court on January 25, 2022. (See Letter to the Court from Darshan Patel, Esq., dated Jan. 25, 2022 (Dkt. 54), appending 5 Pl. Suppl. Opp. (Dkt. 54-1).) With leave of Court, Defendants then submitted a letter constituting a supplemental reply. (Letter to the Court from Darshan Patel, Esq., dated Feb. 2, 2022 (“Def. Supp. Reply”) (Dkt. 48).)
With the exception of efforts by Defendants' counsel to procure Plaintiff's medical records, discovery in this action has been stayed pending the resolution of the motion to dismiss. (See Dkt. 37.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
Although defendants Alsabban and Leavitt's motion largely focuses on Rule 12(b)(6) and was ostensibly filed pursuant to that Rule, they lead off their legal arguments by contending that Plaintiff's Complaint fails to satisfy the pleading standards of Rule 8(a) of the Federal Rules of Civil Procedure, which requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Likewise, defendant Lee invokes Rule 8(a) at the start of her letter joining the motion. (See Lee Ltr., at ECF 2.) Accordingly, this Court will address the standards governing motions brought pursuant to both Rule 8(a) and Rule 12(b)(6).
A. Rule 8(a)
Under Rule 8(a), a pleaded claim for relief must be “plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning that the plaintiff must plead enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 6
The fundamental purpose of Rule 8(a), though, is “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted); see also Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) (“The key to Rule 8(a)'s requirements is whether adequate notice is given.” (citation omitted)); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (noting that “the principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial” (citation omitted)). As each defendant must be given fair notice of the claims that he or she is facing, Rule 8(a) generally prohibits “group pleading, ” i.e., where defendants are jointly named in the plaintiff's allegations, without differentiation. See, e.g., Fallon v. 18 Greenwich Avenue, LLC, No. 19cv9579 (MKV), 2021 WL 1105066, at *2 (S.D.N.Y. Mar. 23, 2021) (citing cases). Dismissal under Rule 8(a), however, “is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise intelligible that its true substance, if any, is well disguised.” Salahuddin, 861 F.2d at 42.
B. Rule 12(b)(6)
A complaint may be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure where it fails to state a claim on which relief may be granted. Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss, the Court must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun &Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); accord Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether the plaintiff will ultimately prevail, but whether his claim, as pleaded, is sufficient to afford him the 7 opportunity to proceed on the evidence. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Thus, the Court's function on a motion to dismiss is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991) (internal quotation marks and citation omitted). At the same time, “[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.” Achtman v. Kirby, McInerney &Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (internal quotation marks and citation omitted, alterations in original). The “plausibility” standard articulated in Twombly applies to motions to dismiss under Rule 12(b)(6), such that, to survive a Rule 12(b)(6) motion, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 570).
Additionally, where the pleading at issue on a Rule 12(b)(6) motion has been drafted by a pro se plaintiff, the Court should be mindful that “the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted, collecting cases); accord Green v. Dep't of Educ. of the City of New York, 16 F.4th 1070, 1074 (2d Cir. 2021); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980) (noting that a pro se party's pleadings are held to a less stringent standard than the pleadings drafted by lawyers); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after Twombly . . . we remain obligated to construe a pro se complaint liberally.”). This is especially true in the context of civil rights complaints. See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); see also Gregory v. Daly, 243 F.3d 8 687, 691 (2d Cir. 2001) (noting that a court must be “mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations”).
II. DEFENDANTS' MOTION TO DISIMSS
Defendants Alsabban and Leavitt argue in their motion that Plaintiff has not satisfied the pleading requirements of Rule 8(a) because his pleading is “vague, sparse, and does not provide each [d]efendant with fair notice of the claims asserted against her” (Def. Mem., at 4), and defendant Lee adds, in the same vein, that Plaintiff's allegations are too “conclusory” (Lee Ltr., at ECF 2). More specifically, Defendants contend that Plaintiff's Complaint is deficient under Rule 8(a) because: (1) by tending to refer collectively to “defendants” in his Complaint, Plaintiff has failed to “articulate and differentiate” the manner in which each defendant separately violated his rights (see Def. Mem., at 4, Lee Ltr., at ECF 2; see also Def. Reply, at ECF 2-3), and (2) Plaintiff has purportedly failed to allege facts establishing that Leavitt had any “personal involvement” at all in the claimed constitutional deprivation (see Def. Mem., at 4-5).
As for their arguments under Rule 12(b)(6), Defendants contend that Plaintiff has not adequately pleaded the elements of a constitutional claim that they were deliberately indifferent to his serious medical needs (see Def. Mem., at 5-9; Lee Ltr., at ECF 2-3; Def. Reply, at ECF 3-6), or the elements of a constitutional claim that they violated his right to medical information (see Def. Mem., at 9-11; Lee Ltr., at ECF 3; Def. Reply, at ECF 6-7). Lastly, Defendants contend that, to the extent that Plaintiff's allegations may be construed to raise statelaw claims of medical malpractice and/or lack of informed consent prior to treatment, Plaintiff has failed to comply with the state-law notice-of-claim requirement or shown that those claims are timely. (Def. Mem., at 11-13; Lee Ltr., at 3; Def. Reply, at 7.) 9
As a threshold matter, this Court finds that, based on the fair import of Plaintiff's allegations, Defendants have significantly mischaracterized Plaintiff's federal claim. Virtually the entirety of Defendants' motion is predicated on a seeming misunderstanding that Plaintiff is attempting to plead a constitutional claim that Defendants were either “deliberately indifferent” to his serious medical needs or failed to secure his “informed consent” before performing a surgical procedure on him. (See Def. Mem., at 5-11; Lee Ltr., at ECF 2-3; see generally Def. Reply.) Fairly read, Plaintiff's Complaint does not suggest that he had serious medical needs to which Defendants were deliberately indifferent, or that he gave consent to surgery without having first been adequately informed of its risks. Rather, Plaintiff's allegations (construed liberally, in light of his pro se status), plead that Defendants forcibly performed a surgical procedure on him without obtaining any consent from him at all, which, if proven (and if not adequately justified by a legitimate governmental interest), would constitute a violation of Plaintiff's federal constitutional right to substantive due process.
Where a state official has been deliberately indifferent to the serious medical needs of a pretrial detainee, the detainee may assert a constitutional claim against that official, under the Due Process Clause of the 14th Amendment. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). In order to prevail on such a claim, the plaintiff must show (1) that the official “denied [him] treatment needed to remedy a serious medical condition, ” and (2) that the official did so “because of his deliberate indifference to that need.” Id.
“[I]n order to permit prisoners to exercise their right to refuse unwanted treatment, there exists a [substantive due process] liberty interest in receiving such information as a reasonable patient would require in order to make an informed decision as to whether to accept or reject proposed medical treatment.” Pabon v. Wright, 459 F.3d 241, 249-50 (2d Cir. 2006). “To establish a violation of the constitutional right to medical information, a prisoner must satisfy an objective reasonableness standard, must demonstrate that the defendant acted with the requisite state of mind, and must make a showing that the lack of information impaired his right to refuse treatment.” Id., at 250.
This Court will not, therefore, labor through a strained analysis of the objective and subjective elements of deliberate indifference, as Defendants do in their motion papers. Nor will 10 this Court trek down a path of analyzing the law that applies in cases where a plaintiff consented to a medical procedure, but asserted that his or her consent was not fully informed. To the extent Defendants' motion to dismiss is based on Plaintiff's supposed failure to plead the elements of a constitutional claim based either on deliberate indifference to his medical needs or the lack of informed consent, I simply recommend that the motion be denied, as missing the mark.
This Court will, however, consider the more general argument that Defendants have raised under Rule 8(a) - that Plaintiff's tendency to engage in group pleading, i.e., to lump Defendants together in describing their conduct, rather than specifying the conduct of each, is insufficient to give Defendants fair notice of the claims against them. This Court will also sua sponte consider a corollary issue: whether Plaintiff's failure to identify exactly which defendant performed the surgery (while Plaintiff was under anesthesia and thus unable to perceive their different roles) should be found fatal to his Section 1983 claim under Rule 12(b)(6), in light of the requirement that each defendant must be alleged to have had direct, personal involvement in whatever constitutional violation is being claimed.
Finally, with respect to any supplemental state-law claims that Plaintiff may be attempting to assert, this Court agrees in part, and disagrees in part, with Defendants' characterization of any such claims. To the extent Defendants suggest that Plaintiff may be seeking to plead a state-law claim based on lack of informed consent (see Def. Mem., at 11-12; Lee Ltr., at ECF 3; Def. Suppl. Reply, at 1), this Court once again finds that Defendants have misread Plaintiff's allegations; given that Plaintiff alleges that he gave no consent at all to the surgery, his pleading should be read, instead, to plead the tort of battery. On the other hand, liberally construing Plaintiff's allegations, this Court does find (as Defendants also suggest), that Plaintiff may be attempting to plead a medical-malpractice claim, given his allegation that, in 11 performing the surgery, Defendants “neglected to use reasonable care in exercising their skill.” (Compl., at ECF 4.) Regardless of how Plaintiff's potential state-law claims should be construed, however, this Court will consider the procedural issue raised by Defendants regarding his failure to plead that he timely served a notice of claim on their employer, NYC Health + Hospitals (formerly known as the New York City Health &Hospitals Corporation) (“H+H”) - an argument that would apply equally to a lack-of-informed-consent claim, a battery claim, or a medical-malpractice claim (see Def. Mem., at 11-12, Lee Ltr., at ECF 3) - and will also consider whether Plaintiff's state-law claims are time-barred.
Although Defendants argue in their motion that Plaintiff's potential medical-malpractice claim would be barred by the applicable statute of limitations (see Def. Mem., at 11-12, Lee Ltr., at ECF 3), they do not make a similar argument regarding Plaintiff's potential battery claim, given that they have mischaracterized that claim. Nonetheless, and even though “the statute of limitations is ordinarily an affirmative defense that the defendant must raise at the pleadings stage, ” Walters v. Indus. &Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (internal quotation marks and citation omitted), this Court will consider the timeliness of any battery claim raised in this case, as the Complaint states the date of the events giving rise to the claim, and as a court may dismiss a claim sua sponte on limitations grounds “where the facts supporting the statute of limitations defense are set forth in the papers plaintiff himself submitted, ” id. (internal quotation marks and citations omitted).
A. Sufficiency of Plaintiff's Pleading Under Rule 8(a)
As set out above, Rule 8(a) requires a complaint to provide “fair notice of the grounds for entitlement to relief.” Twombly, 550 U.S. at 561. A complaint generally “fail[s] to meet that minimum requirement where allegations ‘lump[ ] all the defendants together in each claim and provid[e] no factual basis to distinguish their conduct.'” Farmer v. Cnty. of Westchester, No. 18cv2691 (NSR), 2021 WL 4199944, at *6 (S.D.N.Y. Sept. 15, 2021) (quoting Atuahene v. City of Hartford, 10 Fed.Appx. 33, 34 (2d Cir. 2001) (Summary Order) (second and third alterations in original)); Monterey Bay Military Hous., LLC v. Ambac Assurance Corp., 531 F.Supp.3d 673, 728 (S.D.N.Y. 2021) (“It is well-established in this Circuit that plaintiffs cannot 12 simply ‘lump' defendants together for pleading purposes....[Rule 8(a)] . . . is violated where a plaintiff, by engaging in ‘group pleading,' fails to give each defendant fair notice of the claims against it.” (internal quotation marks and citations omitted).)
Nonetheless, a motion to dismiss for group pleading may fail when, “even though the plaintiff refers to defendants generally rather than a particular defendant individually, it is sufficiently clear that in the particular factual context of [the] case . . . the complaint furnishes adequate notice for initial pleading purposes of plaintiff's claim of wrongdoing.” Arias v. E. Hartford, No. 3:20-CV-0895 (JCH), 2021 WL 3268846, at *4 (D. Conn. July 30, 2021) (internal quotation marks and citation omitted; alteration in original). Thus, a complaint may satisfy Rule 8(a)'s notice requirement, even when defendants are referred to collectively when, “given the specific circumstances of the case and drawing all reasonable inferences in the plaintiff's favor, there [is] an understandable explanation for why the [c]omplaint was not more particularized.” Id. (citing Bruce Kirby, Inc. v. Quarter Moon, Inc., No. 3:17cv1389 (JAM), 2018 WL 3614120, at *1-2 (D. Conn. July 27, 2018)).
In his opposition to Defendants' motion, Plaintiff responds to Defendants' challenge to the adequacy of his pleading under Rule 8(a) by arguing that, if his allegations are insufficiently specific regarding the surgery he underwent against his will, this is only “because he was drugged, put under, and rendered unconscious [and] therefore not aware of what subsequently happened.” (Pl. Opp., at ECF 12.) Plaintiff further argues that “this can[not] and should not be his fault.” (Id.)
Given the allegations in this pro se action, and drawing all reasonable inferences in Plaintiff's favor, it is understandable why Plaintiff would not have been able to specify which defendant(s) allegedly performed the surgery in question - according to Plaintiff, he was 13 anesthetized and unconscious while undergoing that surgery. Under these circumstances, I recommend that the Court find that, even though Plaintiff has referred to Defendants collectively with respect to his allegations that they performed surgery on him without his consent, his allegations are sufficient to satisfy the notice requirement of Rule 8(a). See Bruce Kirby, Inc., 2018 WL 3614120, at *2 (“It is true that the complaint here often refers to all four defendants collectively....Nonetheless, in the particular factual context of this case[, ] . . . and in light of well-pleaded facts about the prior association of the . . . defendants, I conclude that the complaint furnishes adequate notice for initial pleading purposes of plaintiff's claim of wrongdoing.”).
This Court will separately analyze, below, the effect on Plaintiff's Section 1983 claims of his inability to specify the precise nature of the personal involvement of defendants Lee and Alasabban in the alleged constitutional violation. (See Discussion, infra, at Section II(B)(2).)
B. Sufficiency of Plaintiff's Section 1983 Claim Under Rule 12(b)(6)
As noted above, courts must liberally construe a pro se litigant's submissions, “reading such submissions to raise the strongest arguments that they suggest.” Green, 16 F.4th at 1074 (internal quotation marks and citation omitted). In addition, “the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum” to supplement the allegations made in his pleading. Burgess v. Goord, No. 98cv2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) (internal quotation marks and citation omitted)); see also Sommersett v. City of New York, No. 09cv5916 (LTS) (KNF), 2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (noting that court may consider statements made by a pro se litigant in papers such as legal memoranda “to supplement or clarify the [litigant's] pleaded allegations)). 14
Here, the main thrust of Plaintiff's allegations, as set forth in his Complaint and amplified by his opposition submissions, is that, without first obtaining Plaintiff's consent to anesthetize him and extract his tooth, Defendants did so anyway, by force. (Compl., at ECF 2-4; see also Pl. Opp., at ECF 9 (stating that “Plaintiff told [D]efendants he did not want to undergo any medical surgeries a couple of times, ” but, “[w]hile handcuffed to the metal rail of the bed[, ] [h]e was put under some type of medical drugs by Dr. Lea[vi]tt, rendering him unable to resist”); Pl. Suppl. Opp., at ECF 1 (stating that Defendants “intrud[ed] upon the body of Plaintiff without his oral or written consent by performing oral surgery . . .”).) The Court therefore liberally construes Plaintiff's Complaint as asserting a claim that Defendants violated Plaintiff's right to substantive due process by performing a surgical procedure on him without his consent. Although Defendants have not addressed this claim in their motion, the Court would nonetheless have the authority to dismiss the claim sua sponte, if it fails to state a claim on which relief may be granted, see 28 U.S.C. 1915(e)(2)(B)(ii), 1915A(b)(1); Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1725 (2020), and this Court will therefore consider its viability.
1. The Substantive Due-Process Right To Refuse Medical Treatment
In his opposition (Pl. Opp., at ECF 7), Plaintiff aptly cites to Cruzan ex rel. Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990), a case in which an accident victim in a state hospital was recognized, by the Supreme Court, to have had “a general liberty interest in refusing medical treatment” that was protected by the Due Process Clause of the 14th Amendment, id., at 278-79 (finding that a competent person would have a “constitutionally protected right to refuse lifesaving hydration and nutrition”). This right to refuse medical treatment has since been recognized, as well, in the context of persons in state custody because they were accused or convicted of committing crimes. In Pabon, 459 F.3d 241, for example, a case involving a 15 convicted prisoner, the Second Circuit held that the 14th Amendment protected the plaintiff's “liberty interest in making the decisions that affect[ed] his health and bodily integrity” and afforded him the right to make “decisions regarding the administration of treatment, ” id., at 253; see also id., at 249 (“[T]he Supreme Court has told us that inmates do not abandon their constitutional rights at the prison door.”).
Determining that an individual “has a ‘liberty interest' under the Due Process Clause does not[, however, ] end the inquiry; [rather, ] ‘whether [an individual's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.'” Cruzan, 497 U.S. at 279 (footnote, internal quotation marks, and citation omitted). “A prisoner can establish liability for the violation of a constitutional right only if his individual liberty interest outweighs the relevant countervailing state interests.” Pabon, 459 F.3d, at 252 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). Accordingly, “[w]hile decisions regarding medical treatment are normally private matters to be resolved between an individual and his or her physician, when these decisions occur in the prison [or jail] setting, the government has a role.” Id., at 249.
In a “prison environment, ” there is a legitimate governmental objective “in combating the danger posed by a person to both himself and others.” Washington v. Harper, 494 U.S. 210, 225 (1990). Indeed, in the prison setting, government officials “have not only an interest in ensuring the safety of . . . staff[] and administrative personnel, but also the duty to take reasonable measures for the prisoners' own safety.” Id. In short, “a prisoner's right to refuse medical treatment need not be honored if legitimate penological interests require the prisoner to be treated.” Pabon, 459 F.3d, at 252 (noting that “[o]bvious examples would be the treatment of an 16 infectious disease, avoidance of contaminations, or prevention of disruption by illness-induced behaviors”).
A pretrial detainee, however, is somewhat differently situated than a convicted prisoner, as, under the 14th Amendment, a pretrial detainee “may not be punished at all, ” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017), and thus the court's inquiry cannot turn on whether medical treatment may be justified by legitimate “penological” interests. A pretrial detainee may still be made subject to the conditions and restrictions of government officials, but only “so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520, 536-37 (1979).
“[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.'” Id., at 539 (footnote omitted). On the other hand, if it “is not reasonably related to a legitimate goal - if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees [because they are] detainees.” Id.; accord Almighty Supreme Born Allah v. Milling, 876 F.3d 48, 55 (2d Cir. 2017). Typically, a pretrial detainee's liberty interest in refusing medical treatment may only be “overridden in an emergency, where failure to [treat] forcibly would result in a substantial likelihood of physical harm to that patient, other patients, or to staff members of the institution.” Ambrose v. Dell, No. 12cv6721 (JPO), 2016 WL 894456, at *3 (S.D.N.Y. Mar. 8, 2016) (internal quotation marks and citation omitted). Further, it has been held that, before a pretrial detainee may be subjected to forced medical treatment, “a medical professional must make a finding of medical necessity.” Id. 17
As a pleading matter, a pretrial detainee must “plausibly plead” the following with respect to a claim of a violation of his right of substantive due process: that the defendant “(1) with punitive intent, (2) personally engaged in conduct that caused the challenged [deprivation of a constitutional right].” Turkmen v. Hasty, 789 F.3d 218, 237-38 (2d Cir. 2015) (citation omitted), judgment reversed in part, vacated in part, on other grounds, sub nom. Ziglar v. Abassi, 137 S.Ct. 1843 (2017). The element of “punitive intent” may be inferred from allegations that plausibly suggest that the challenged deprivation was arbitrary or purposeless (and thus not reasonably related to a legitimate governmental interest), see id., at 238, or that it was “excessive” in relation to a legitimate governmental purpose, see Edrei v. Maguire, 892 F.3d 525, 535 (2d Cir. 2018) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)). Where the alleged constitutional violation was forced medical treatment, a plaintiff's allegations may also be sufficient to plead punitive intent where they assert that a false reason was given for the treatment, see Lewis v. Huebner, No. 17cv8101 (KMK), 2020 WL 1244254, at *8 (S.D.N.Y. Mar. 16, 2020) (finding that psychiatric patient had adequately pleaded that a forced injection of medication lacked “a rational connection to a ‘legitimate governmental objective, '” where she alleged that a hospital security officer had fabricated the reason for why she was injected), or where they give rise to a plausible inference that the situation did not pose an emergency, cf. Ambrose, 2016 WL 894456, at *3.
In this case, Plaintiff alleges that, after being informed by defendant Lee and/or defendant Alsabban of the relative risks of having, and not having, oral surgery (see Compl., at ECF 2 (alleging that he was told that “the surgical procedure [might] not have the results that were expected” and was also told “what might happen if no treatment was received”), he responded that he did not want to have surgery performed, given his belief that the risks of surgery “were 18 too high” (see id.). While Plaintiff does allege that Lee and Alsabban told him that the tooth “needed to be extracted as it was impacted and the source of the pain” (id.), the fact that Plaintiff also alleges that he was advised of the relative risks of proceeding or not proceeding with the surgery gives rise to a plausible inference that the situation did not, at that time, pose a medical emergency. The same inference may be plausibly drawn from Plaintiff's allegation that the first anesthesiologist who was called in, Dr. Mastery, refused to administer anesthesia, when Plaintiff stated that he did not consent. (See id., at ECF 3.)
Moreover, a plausible inference may be drawn from the pleaded facts that, while Plaintiff's condition may have been causing him pain, nothing about his condition posed any threat to other detainees or to Rikers or Bellevue staff. Plaintiff also pleads that, in performing the surgery against his will, Defendants acted “capriciously” and “maliciously” (id.), and, in his opposition (which, as noted above, the Court may consider for the purpose of clarifying or supplementing his pleaded allegations), he asserts that, in proceeding with the surgery against his will, Defendants “either wanted to practice their craft on Plaintiff or they wished him harm, or[, ] at least, were totally unconcerned with his welfare” (Pl. Opp., at ECF 8; see also Pl. Supp. Opp., at ECF 3 (characterizing Defendants' actions as “a capr[i]cious and coordinated intrusive attack on [] Plaintiff whom they thought, because of his mental health[, ] that they could do as they pleased . . .”)). Even though these allegations are speculative as to Defendants' true intent in proceeding with the surgery in the absence of Plaintiff's consent, they do, at a minimum, suggest that Defendants lacked a legitimate governmental interest in performing the surgery.
Taking Plaintiff's allegations as a whole, this Court finds that he has adequately pleaded a substantive due-process violation, at least with respect to the requirement that he allege that, 19 with punitive intent (i.e., with the lack of a legitimate governmental interest), Defendants deprived him of a liberty interest protected by the Due Process Clause of the 14th Amendment.
2. Personal-Involvement Requirement
Still, to state a claim under Section 1983 against an individual government actor, a plaintiff must not only allege a constitutional deprivation, but must also allege facts showing that the individual defendant had a direct and personal involvement in that deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivation[] is a prerequisite to an award of damages under 1983.” (internal quotation marks and citation omitted)). A defendant may not be held liable under Section 1983 solely because that defendant employed or supervised a person who violated the plaintiff's rights. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). “Instead, a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676 (emphasis added)); see also id., at 620 (“To hold a [government] official liable under 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official ....” (emphasis added)).
Here, despite Defendants' arguments to the contrary (see Def. Mem., at 4-5), Plaintiff clearly alleges in his Complaint that defendant Leavitt anesthetized him without his consent (Compl., at ECF 3 (alleging that, after Plaintiff had “complained [that he] didn't want an invasive surgery performed on him, ” Dr. Mastery refused to anesthetize him, but then defendant Leavitt “went and took [Dr. Mastery's] place, [and] administered anesthesia that put [] [P]laintiff 20 under”).) As to the roles of defendants Lee and Alsabban, however, Plaintiff has only been able to assert that, before the surgery, “Dr. Lee was insistent on Plaintiff['s] getting the operation, and [that] Dr. Alsab[b]an would back her up” (Pl. Opp., at ECF 9), and that the surgery was then performed. Plaintiff makes plain that he has not been able to specify that one of these two dentists, or both, actually performed the surgery, as, after he was placed under anesthesia, he did “not know what subsequently happened or who did what.” (Id.)
Nonetheless, a motion to dismiss for group pleading may fail when, “even though the plaintiff refers to defendants generally rather than a particular defendant individually, it is sufficiently clear that in the particular factual context of [the] case . . . the complaint furnishes adequate notice for initial pleading purposes of plaintiff's claim of wrongdoing.” Arias v. E. Hartford, No. 3:20-CV-0895 (JCH), 2021 WL 3268846, at *4 (D. Conn. July 30, 2021) (internal quotation marks and citation omitted; alteration in original). Thus, a complaint may satisfy Rule 8(a)'s notice requirement, even when defendants are referred to collectively when, “given the specific circumstances of the case and drawing all reasonable inferences in the plaintiff's favor, there [is] an understandable explanation for why the [c]omplaint was not more particularized.” Id. (citing Bruce Kirby, Inc. v. Quarter Moon, Inc., No. 3:17cv1389 (JAM), 2018 WL 3614120, at *1-2 (D. Conn. July 27, 2018)).
In the Section 1983 context, a plaintiff may not state a claim by relying on the doctrine of res ipsa loquitur, Quick v. Short, No. 87cv0695 (CSH), 1990 WL 29427, at *8 (S.D.N.Y. Mar. 15, 1990), and thus Plaintiff may not rely on the mere fact that the surgery evidently occurred to prove that one or more of the defendants performed it, see, e.g., Smith v. Cpl. Louriero, No. 3:16-CV-0741, 2017 WL 2952819, at *3 (M.D. Pa. June. 9, 2017) (finding that, where plaintiff alleged that he was either unconscious or “blacked out” at the time of his arrest and transport to the hospital, but later woke up to discover that he had suffered injuries, he could not rely on a res ipsa loquitor theory to establish that the defendants had used excessive force against him, as, with respect to a Section 1983 claim, a plaintiff “must specifically identify the act that caused his injury” (internal quotation marks and citation omitted)), report &recommendation adopted, 2017 WL 2926020 (M.D. Pa. July 7, 2017). Rather, in order to proceed with his constitutional claims, Plaintiff must plead the specific conduct in which each defendant engaged. See Tangreti, 983 F.3d, at 620.
This Court, however, takes note of the fact that Plaintiff may have a viable due-process claim against defendants Lee and Alsabban, and that the information that would enable him to assert that claim against those defendants (i.e., information identifying who performed the surgery) is apparently not within his knowledge or possession. In light of the Court's duty to 21 assist a pro se plaintiff in identifying defendants, especially where the pro se litigant is incarcerated and may thus have particular difficulty uncovering the information on his own, see Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997), it would be appropriate for the Court to allow Plaintiff to obtain some necessary discovery here, prior to subjecting his due-process claim against these defendants to dismissal, see id., at 76 (finding it an abuse of discretion for district court to have dismissed complaint of pro se prisoner who was unable to identify arresting officers, without first allowing plaintiff the opportunity to obtain responses to interrogatories or enlisting the aid of the City of New York to unseal plaintiff's case file so that the officers could be identified).
Accordingly, and so as to streamline this aspect of the discovery process, I recommend that the Court direct counsel for Defendants to inform Plaintiff and the Court, within a specified time, of the identity of the person or persons who performed the surgical procedure on Plaintiff at Bellevue on May 22, 2017 (and that Defendants' counsel further be directed to reach out, if necessary, to Defendants' employer (H+H), to obtain this information). I additionally recommend that, once Plaintiff is informed of the identity of the dentists or other persons who participated in his surgery, he be directed, also within a specified time, not only to amend his Complaint, as needed, to name as defendants those individuals who performed the surgical procedural on him, but also to allege facts regarding their personal involvement in the claimed violation of his constitutional rights. If the Court adopts this recommendation, but Plaintiff fails to amend his Complaint within the time permitted, then I recommend that his Section 1983 due-process claim be dismissed as against defendants Lee and Alsabban, and that he only be permitted to proceed with that claim against defendant Leavitt. 22
C. Viability of Plaintiff's State-Law Claims
In light of the fact that Plaintiff alleges that he never consented at all to the surgery that was performed on him, this Court construes Plaintiff's Complaint as asserting a state-law claim of battery as against all Defendants, as opposed to a claim of lack of informed consent prior to treatment. See Armstrong ex rel. Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., 425 F.3d 126, 134 (2d Cir. 2005) (“[A] completely unpermitted touching by a medical practitioner of a patient is a battery ....[W]e conclude that battery applies in the medical context only where the patient or her guardian gives no consent and the doctor intends to cause a bodily contact that a reasonable person would find offensive.” (internal quotation marks and citation omitted)); T.P. ex rel. Patterson v. Elmsford Union Free Sch. Dist., No. 11cv5133 (VB), 2012 WL 860367, at *10 (S.D.N.Y. Feb. 27, 2012) (“A completely unpermitted touching by a medical practitioner of a patient is a battery.”); Cerilli v. Kezis, 16 A.D.3d 363 (2d Dep't 2005) (“The plaintiffs' allegations that the defendant doctor performed a biopsy over the express objections of the injured plaintiff . . . state a cause of action sounding in battery.”); Cross v. Colen, 6 A.D.3d 306, 307 (1st Dep't 2004) (holding that a medical procedure that goes beyond the scope of the patient's consent - like a procedure performed without any consent - is a battery, and noting that “[t]he absence of consent is inconsistent with consent that is not sufficiently informed, and precludes a claim of lack of informed consent”).
This Court further liberally construes the Complaint to assert a state-law claim of medical malpractice as against defendants Lee and Alsabban. Under New York law, a defendant commits medical malpractice where he or she deviates from accepted medical practice, causing injury to the plaintiff. See Vivar v. City of New York, No. 18cv5987 (VSB), 2020 WL 1505654, at *14 (S.D.N.Y. Mar. 30, 2020). On this point, this Court notes that, if Plaintiff were 23 complaining solely about the fact that the surgery had been performed against his will, that would not, in itself, constitute a malpractice claim. See VanBrocklen v. Erie Cnty. Med. Ctr., 96 A.D.3d 1394 (4th Dep't 2012) (“It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided ‘no consent at all.'” (citation omitted)). Here, though, Plaintiff appears to challenge both the fact that the surgery was performed, and the manner in which it was performed. In particular, Plaintiff alleges that Defendants “neglected to use reasonable care in exercising their skill” (Compl., at ECF 4); that, during the extraction surgery, several of his other teeth were “chipped and cracked” (id.), and that Plaintiff “also had a spicula that was stuck in his gums from the operation site” (id., at ECF 5). These allegations, read together, are sufficient to give rise to a plausible inference that the surgery was not performed in accordance with acceptable medical standards, and fairly suggest that Plaintiff may be seeking to hold defendants Lee and Alsabban liable for medical malpractice, as well as battery.
As Defendants point out, however (see Def. Mem., at 11-12; Lee Ltr., at ECF 4), H+H employees may not be sued for actions arising out of the scope of their employment “unless a notice of claim has been filed with [H+H] within ninety days after the claim arises.” Pastorello v. City of New York, No. 95cv0470 (CSH), 2001 WL 1543808, at *8 (S.D.N.Y. Dec. 4, 2001) (citing N.Y. Gen. Mun. Law § 50-e(1)(a) and N.Y. Unconsol. § 7401(2)). “The 24 notice-of-claim requirement does not apply to federal claims brought under Section 1983[, but, ] in a federal court, state notice-of-claim statutes [do] apply to state-law claims.” Mejia v. N.Y.C. Health & Hosps. Corp., No. 16cv9706 (GHW), 2018 WL 3442977, at *14 (S.D.N.Y. July 17, 2018) (internal quotation marks and citation omitted, italics in original). Thus, “[a] plaintiff cannot avoid the statutory notice of claim requirement[] simply by bringing an action in federal court.” Walter v. N.Y.C. Health Hosp. Corp., No. 02cv0751 (DF), 2005 WL 324242, at *3 (S.D.N.Y. Feb. 9, 2005). Rather, the plaintiff must plead in his complaint that, with respect to his state-law claims, he has complied with the notice-of-claim requirement. See Hardy v. N.Y.C. Heath & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999). A “[f]ailure to comply with th[is] requirement[] ordinarily requires a dismissal for failure to state a cause of action.” Id., at 794.
Under N.Y. Gen. Mun. Law. § 50-e(1)(a):
[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises.This requirement has been extended to state-law claims against employees of H+H. See N.Y. Unconsol. Law § 7401(1), (2), (6); N.Y. Gen. Mun. Law § 50-k(6); see also N.Y. Unconsol. Law § 7384(1) (H+H is a public benefit corporation created by New York State law); N.Y. Gen. Constr. Law § 65(b)(3) (definition of public corporation includes a public benefit corporation).
There appears to be no question here that, at the relevant time, Defendants were H+H employees and that Plaintiff is suing them for actions taken within the scope of their H+H employment. Plaintiff, however, has not alleged that he ever filed a notice of claim with H+H with respect to any state-law claims that he may be seeking to advance here, let alone that he did so within 90 days from the date that his state-law claims arose. For this reason, Plaintiff's pleading is deficient, and, unless he can remedy the deficiency, this state-law claims must be dismissed.
In addition, under New York law, both battery and medical-malpractice claims against H+H employees must be commenced within one year and 90 days from the date when the claims accrued. See N.Y. Gen. Mun. Law. §§ 50-i(1), 50-k(6); N.Y. Unconsol. Law § 7401(2), (6); see 25 also Roundtree v. NYC, No. 19cv2475 (JMF), 2021 WL 1667193, at *4 (S.D.N.Y. Apr. 28, 2021) (regarding claims of battery and malpractice). Further, under New York law, both types of claims accrue on the date of the conduct at issue. See Quiles v. City of New York, No.01cv10934 (LTS) (THK), 2003 WL 21961008, at *6 (S.D.N.Y. Aug. 13, 2003) (regarding claim of battery); Nykorchuck v. Henriques, 78 N.Y.2d 255, 258 (1991) (regarding claim of medical malpractice).
In this case, the surgery that is the focus of Plaintiff's Complaint, and that would form the basis of both battery and medical-malpractice claims, is alleged to have been performed on May 22, 2017. (See Compl, at ECF 2.) It is thus clear from the face of the Complaint that the claims are time-barred, as the one-year and 90-day limitations period for each type of claim would have therefore expired on August 20, 2018, and Plaintiff did not file his Complaint until February 9, 2020 (see supra, at n.5), one year, five months, and 20 days later. Accordingly, even apart from any failure to file a notice of claim, Plaintiff may not proceed with these claims unless he can demonstrate entitlement to equitable tolling of the applicable limitations period or that Defendants should be estopped from relying on the limitations bar.
“Under New York law, the doctrines of equitable tolling or equitable estoppel ‘may be invoked to defeat a statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.'” Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (citation omitted). To be eligible for equitable tolling or equitable estoppel under New York law, the plaintiff needs to show “that the action was brought within a reasonable period of time after the facts giving rise to the equitable tolling or equitable estoppel claim ‘have ceased to be operational.'” Id. (citation omitted).
As the Second Circuit has cautioned against dismissing the complaint of a pro se litigant without first affording him at least one chance to amend, see Abbas, 480 F.3d at 640, I recommend that, in affording Plaintiff leave to amend his Complaint to remedy the deficiencies in his federal claims against defendants Lee and Alsabban (as discussed above), the Court also 26 give Plaintiff an opportunity to replead his state-law claims for battery and medical malpractice, so as to allege that he timely filed the requisite notice of claim and to plead facts capable of giving rise to a plausible inference that he is entitled to relief from the governing statutes of limitations. If he does not do so, then I recommend that these state-law claims be dismissed.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend:
(1) that Defendants' motion to dismiss (Dkts. 29, 49) be denied at this time;
(2) that Defendants' counsel be directed to assist Plaintiff in identifying who performed the surgery on him on May 22, 2017, by reaching out to H+H, if necessary, to obtain that information, and then by providing Plaintiff and the Court with that information within two weeks of the date of the Court's order; and
(3) that Plaintiff be directed to amend his Complaint within two weeks of receiving that information, so as:
(a) to specify the roles played by defendants Lee and Alsabban in the alleged constitutional violation, as necessary to satisfy the Section 1983 requirement that Plaintiff plead each defendant's personal involvement in the violation, and
(b) with respect to any state-law claims that Plaintiff may be seeking to assert for battery or medical malpractice, to plead that he timely served the required notices of claim on H+H, and to provide any reasons why the applicable statutes of limitations for those state-law claims should be equitably tolled or why Defendants should be equitably estopped from relying on the statutes of limitations.
I further recommend that, if Plaintiff fails to file an amended complaint within the period of time set by the Court, then his federal claim against defendants Lee and Alsabban, as well as any state-law claims that may reasonably be found to have been included in his Complaint, be 27 dismissed, but that he be permitted to proceed with a federal, substantive due-process claim against defendant Leavitt.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie Caproni, Thurgood Marshal United States Courthouse, 40 Foley Square, New York, New York, 10007, if required by Judge Caproni's Individual Practices. Any requests for an extension of time for filing objections must be directed to Judge Caproni. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
If Plaintiff does not have access to cases cited herein that are reported only on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of [cases and other authorities cited therein that are unpublished or reported exclusively on computerized databases] as cited in a decision of the Court and were not previously cited by any party.”). 28
The Clerk of Court is directed to mail a copy of this Report and Recommendation to
Plaintiff, at the address reflected on the Docket and shown below.
29