Opinion
18-CV-12063 (JPC)(SN)
08-23-2022
MILTON SIMON, Plaintiff, v. CITY OF NEW YORK DEPARTMENT OF CORRECTIONS, et al., Defendants.
TO THE HONORABLE JOHN P. CRONAN:
REPORT AND RECOMMENDATION.
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE
Milton Simon, proceeding pro se, sues Deputy Warden C. Johnson, Physician's Assistant (“P.A.”) Gerard Auguste, Doctor Devour, Correction Officer M. Mills, Correction Officer A. Alvarez, and C.O. John Doe (Clinic-Post) pursuant to 42 U.S.C § 1983 for violations of the Due Process Clause of the Fourteenth Amendment and Article 1, Section 6 of the New York Constitution. Defendants have moved for summary judgment on all claims under Federal Rule of Civil Procedure 56 and to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants' motion for summary judgment is GRANTED as to Plaintiff's § 1983 claims. Defendants' motion to dismiss Plaintiff's state law claims is also GRANTED.
BACKGROUND
I. Factual Background
It is undisputed that Plaintiff was detained in the custody of the New York City Department of Correction (“DOC”) at the Otis Bantum Correctional Center (“OBCC”) on Rikers Island from March 23, 2016, until December 26, 2017. ECF No. 102, Defendant's Local Civil Rule 56.1 Statement of Undisputed Material Facts (“Def. Rule 56.1”) ¶¶ 1-2. Plaintiff alleges that he was violently assaulted by other detainees on two occasions. First, he claims that on August 22, 2016, at approximately 5:45 a.m. two unidentified individuals entered his dorm, cut the left side of his face while he slept, and fled. ECF No. 13, Amended Complaint (“Am. Compl.”) ¶¶ 22-23. Second, Plaintiff alleges that on October 26, 2016, he was assaulted by another detainee in the facility's law library. Id. ¶ 42.
A. Uncontested Facts
In support of their motion for summary judgment, Defendants submitted a statement of undisputed facts in accordance with Local Civil Rule 56.1. See Def. Rule 56.1. Although Plaintiff submitted a sworn declaration in opposition, he did not submit a counterstatement of undisputed facts. Defendants' Rule 56.1 statements are adopted unless controverted by the Plaintiff's declaration.
Following the alleged August 22, 2016, assault, Plaintiff had multiple medical appointments with providers. On September 19, 2016, he told Defendant Gerard Auguste, a Physician Assistant working with New York City Health and Hospitals, that he wanted to speak to mental health personnel about a “personal issue.” Id. at ¶¶ 3-5. He met with two non-party medical providers concerning the mental health appointments two days later and had a second appointment with P.A. Auguste about a skin condition. Id. at ¶¶ 6-7. He was subsequently seen by medical personnel during sick call rounds on September 26 and 28, when he reported chest congestion and an additional skin condition. Id. at ¶¶ 8-9. Plaintiff did not report the alleged assault until he was seen for a psychosocial evaluation on September 28, telling the evaluator that “he cannot sleep, feels anxious when his cell door opens, does not feel protected by DOC, and sometimes finds himself short of breath.” Id. at ¶¶ 10-11. On October 1, a non-party medical provider wrote that plaintiff's “recent experience of violence from a peer, supports his anxiety” and noted his “flashbacks, fear for his safety, inability to trust the officers and difficulty sleeping.” Id. at ¶ 13.
Despite being seen by medical personnel during sick call rounds on October 12 and 13, Plaintiff did not report his facial injury and numbness to P.A. Auguste until October 17. Id. at ¶¶ 15-17. At an appointment the next day, a non-party provider wrote that he was not in acute distress and observed an “old healed scratch mark on his left jaw area [with] [n]o swelling or redness.” Id. at ¶¶ 19-20.
Plaintiff saw P.A. Auguste for care again after the October 26 incident. Id. at ¶¶ 21, 32. Plaintiff told Auguste that he had been hit on the right side of his face and the lower chin area. Id. at ¶ 33. Auguste noted a right facial and chin contusion and provided Plaintiff with an icepack. Id. at ¶ 34.
On November 29, Plaintiff was seen by a non-party medical provider for “numbness/ tingling of the left [face] since sustaining injury to that area on August 22, 2016.” Id. at ¶ 25. He was given an initial diagnosis of paresthesia and referred to a neurologist. Id. at ¶¶ 26-27. At a subsequent appointment with the neurologist, Plaintiff stated that the numbness to his left jaw did not interfere with his ability to chew and swallow. Id. at ¶ 29. The provider confirmed the diagnosis and prescribed medication. Id. at ¶ 30.
B. Contested Facts
The parties dispute whether the August 26 incident occurred, if prison officials were on notice of a threat to Plaintiff's safety either before or after the August 26 incident, the seriousness of Plaintiff's injuries, and the adequacy of his care.
Defendants contend that there is no evidence of the August 26, 2016 assault. ECF No. 103, Defendants' Memorandum of Law (“Def. Mem”) 1. Plaintiff claims that his assailants could not have entered his dorm without the “approval and assistance” of Defendant Correction Officers M. Mills and A. Alvarez, both of whom were assigned to guard the unit. ECF No. 106, Plaintiff's Declaration in Opposition (“Pl. Decl”) ¶¶ 10-12, 14. Plaintiff points to (1) DOC policy that detainees are only admitted to their assigned housing units and (2) the requirement that a correction officer always monitor the dorm floor. Id. He further asserts that surveillance footage of the entrance to the dorm would corroborate his account. Id. at ¶¶ 13,15.
Defendants argue that even if the attack occurred, there was no indication of a particularized threat to Plaintiff beforehand, and he failed to report the incident - or any other threat - to prison officials after. Def. Mem. 2-3, 7. Defendants cite to Plaintiff's admission that he had no prior issues with the detainee who assaulted him on October 26. Id. at 7; ECF No. 101, Ex. 13 76:18-77:9. As such, Defendants assert that they were not aware of any risk to Plaintiff's safety before the second incident. Def. Mem. 7. Plaintiff admits that he “did not make a report of the incident in the manner of which the Corporation Counsel would deem sufficient,” but argues that such a requirement is unrealistic given the generalized violence at Rikers Island. Pl. Decl. ¶¶ 4-7. He further claims that a 311 report filed by an unidentified individual following the August 22 assault should have led officials to investigate and take measures to ensure his safety. Id. at ¶ 17. Defendants were unable to locate any record of the 311 call. ECF No. 110, Defendants' Reply Memorandum of Law (“Def. Rep.”) 3.
Lastly, Plaintiff asserts that Defendants Auguste and Devour refused to provide a medical examination after the two assaults, rejecting his complaints of pain and discomfort. Pl. Decl. ¶¶ 19-20. Defendants counter that there is no evidence that he was seriously injured or that the medical care they provided was inadequate. Def. Mem. 8-10.
II. Procedural Background
On or around November 9, 2016, Plaintiff served a Notice of Claim on the City Comptroller, generally alleging failure-to-protect, indifference to medical needs, and conspiracy claims. See ECF No. 101, Ex. 3 Notice of Claim. While Plaintiff noted the absence of the correction officers assigned to his unit on the morning of August 22, id. at 8, the only defendant identified by name in the Notice is “Dr. Devour,” id. at 20.
Plaintiff filed his Complaint on December 20, 2018. ECF No. 2. Plaintiff filed an Amended Complaint on June 20, 2019, naming three John Doe Officers, Deputy Warden Johnson, Dr. Devour, and P.A. Auguste as individual defendants. Am. Compl. at 1. On July 12, 2019, the Court issued a Valentin order directing the New York City Law Department to determine the identities of the individual defendants. ECF No. 17, Order of Service. On September 6, 2019, the City identified Dr. Devour as P.A. Yves Duverne. ECF No. 22. The Court did not take any action to issue a summons and order service on P.A. Duverne. On September 27, 2019, the City identified Deputy Warden Johnson, Correction Officer Mills, and Correction Officer Alvarez, but informed the Court that it was unable to identify the third John Doe Correction Officer without additional information. ECF No. 24. On September 30, 2019, the Court ordered Plaintiff to provide a more detailed statement to allow the City to identify the third Correction Officer. ECF No. 25. But it failed to take action to issue a summons or order service on the newly identified defendants. Nearly six months later, the Court notified Plaintiff that the Court would dismiss the case without prejudice as to the third Correction Officer absent additional information leading to that Officer's identification. ECF No. 50. The issue of service on the newly-identified defendants was not raised again for nearly 18 months.
At a settlement conference on August 2, 2021, it came to the Court's attention that Correction Officers Mills and Alvarez were never substituted for the John Doe Correction Officers or served. ECF No. 79. On September 3, 2021, the Court ordered service on Correction Officers Mill and Alvarez and amended the caption, noting that the amendment was “without prejudice to any defenses these Defendants may wish to assert.” ECF No. 84.
On January 14, 2022, Defendants moved for summary judgment and to dismiss the Amended Complaint. ECF No. 99. Judge Cronan referred the motion to me for a report and recommendation. ECF No. 81.
DISCUSSION
I. Legal Standard
Under Federal Rule of Civil Procedure 56, the Court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of establishing that no genuine issue of material fact exists. Id. at 256; see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23).
To defeat summary judgment, the non-moving party must produce more than a “scintilla of evidence,” Anderson, 477 U.S. at 252, and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . .” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (“[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” (quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996))). The non-moving party “must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (internal quotation marks omitted). In ruling on a motion for summary judgment, the Court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004), “and extend extra consideration to a pro se plaintiff who is to be given ‘special latitude on summary judgment motions,'” Reyes v. Koehler, 815 F.Supp. 109, 112 (S.D.N.Y. 1993) (quoting McDonald v. Doe, 650 F.Supp. 858, 861 (S.D.N.Y. 1986)).
To survive a Rule 12(b)(6) motion to dismiss, the complaint “must allege sufficient facts . . . to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). 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). But the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a Rule 12(b)(6) motion, the movant bears the burden of proof. Pearl River Union Free Sch. Dist. v. Duncan, 56 F.Supp.3d 339, 351 (S.D.N.Y. 2014). Because a motion to dismiss “challenges the complaint as presented by the plaintiff,” the Court “may review only a narrow universe of materials” in assessing whether the motion should be granted. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). Courts may consider documents and exhibits attached to the complaint or incorporated by reference. Id.
The Court must liberally construe submissions of pro se litigants and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court “invent factual allegations” plaintiff has not pleaded. Id.
II. Section 1983 Claims
The Court construes Plaintiff's complaint as raising three claims pursuant to § 1983: (1) a claim for deliberate indifference to Plaintiff's safety; (2) a claim for deliberate indifference to his medical needs for the failure to provide medical treatment following the assaults; and (3) conspiracy.
A. Legal Standard
“A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight[h] Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). These claims must be evaluated under the Due Process Clause because “[p]retrial detainees have not been convicted of a crime and thus ‘may not be punished in any manner- neither cruelly and unusually or otherwise.'” Id. (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007), rev'd on other grounds, Ashcroft, 556 U.S. at 678). “A detainee's rights are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner.'” Id. (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
“To prevail on a conditions-of-confinement claim, [plaintiff] must show that he suffered a sufficiently serious deprivation and that prison officials acted with deliberate indifference.” Gardner v. Murphy, 613 Fed.Appx. 40, 42 (2d Cir. 2015). As to the first prong, a detainee suffers a “serious deprivation” when they are denied “the minimal civilized measure of life's necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981), including the “basic human needs” of “food, clothing, shelter, medical care and reasonable safety,” Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation and internal quotation marks omitted); see Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).
As to the second prong-that the prison official acted with “deliberate indifference”-a plaintiff must prove that a prison official “acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35; see also Molina v. Cnty. of Westchester, No. 16-cv-3421 (VB), 2017 WL 1609021, at *3 (S.D.N.Y. Apr. 28, 2017) (explaining difference between subjective deliberate indifference standard for convicted prisoners and objective standard for pretrial detainees). “[D]eliberate indifference means the same thing for each type of claim under the Fourteenth Amendment.” Darnell, 849 F.3d at 33 n.9.
B. Failure-to-Protect
“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks omitted). “It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability,” id. at 834, but rather only where the acts or omissions of prison officials are sufficient to demonstrate deliberate indifference, Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996).
In the context of a failure-to-protect claim, the two-prong test requires that a plaintiff demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm, and that the defendant knew, or should have known, of the substantial risk to his safety. See Id. “Generally, in assessing whether the risk of an inmate's violence against other inmates is ‘sufficiently serious,' to trigger constitutional protection, the focus of inquiry must be, not the extent of the physical injuries sustained in an attack, but rather the existence of a ‘substantial risk of serious harm.'” Blake v. Kelly, No. 12-cv-7245 (ER), 2014 WL 4230889, at *5 (S.D.N.Y. Aug. 26, 2014) (cleaned up). To prove deliberate indifference, “[a] detainee must demonstrate that the prison official acted purposefully or with an objectively reckless disregard of the risk to the inmate; mere negligence is insufficient.” House v. City of New York, No. 18-cv-6693 (PAE)(KNF), 2020 WL 6891830, at *14 (S.D.N.Y. Nov. 24, 2020). “Absent clear notice of a risk of harm to the prisoner, ‘[c]ourts routinely deny deliberate indifference claims based upon surprise attacks.'” Fernandez v. N.Y.C. Dep't of Corr., No. 08-cv-4294 (KMW), 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010) (quoting Zimmerman v. Macomber, No. 95-cv-882, 2001 WL 946383, at *3 (S.D.N.Y. Aug. 21, 2001)).
The Court assumes that Plaintiff asserts this claim against all Defendants. Even affording Plaintiff the deference to which he is entitled, he has failed to raise a triable issue of material fact as to whether he faced a substantial risk of serious harm that Defendants disregarded. Plaintiff does not contend that he was threatened by other inmates before the August 22, 2016 incident.Rather, he argues that the only way the assault could have occurred was because the officers left their post in violation of DOC policy. This “amounts to negligence.” Pl. Decl. ¶ 12. “[M]ere negligence will not suffice” to state a deliberate indifference claim. Hayes, 84 F.3d at 620; see also Grant v. Burroughs, No. 96-cv-2753 (MGC), 2000 WL 1277592, at *3 (S.D.N.Y. Sept. 8, 2000) (where no evidence that defendant knew of a risk, his “negligent supervision of the area [where the attack occurred] is not sufficient for liability under § 1983”).
For this reason, Plaintiff cannot show that Deputy Warden Johnson was personally involved in the August 22 incident. Rahman v. Fisher, 607 F.Supp.2d 580, 585 (S.D.N.Y. Apr. 10, 2009) (“Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983”). Despite his claim that the Deputy Warden was “personally involved in . . . all matters of security,” Pl. Decl. ¶ 3, Plaintiff points to no evidence that Johnson learned of a risk to Plaintiff and failed to act, created a policy or custom that created a risk to Plaintiff, or was grossly negligent in managing Correction Officers Mills and Alvarez. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1985).
Plaintiff has also not raised a triable issue of fact regarding the October 26, 2016 incident. He admitted in his Notice of Claim that he had no prior conflicts with the individual who assaulted him. See, e.g., Zimmerman, 2001 WL 946383, at *6 (denying claim where plaintiff did “not suggest that [defendant] knew or should have known” that he would be attacked by inmate, and plaintiff admitted “that he himself was surprised”). “Absent clear notice of a risk of harm to the prisoner, courts routinely deny deliberate indifference claims based upon surprise attacks.” Fernandez, 2010 WL 1222017, at *4 (concluding no deliberate indifference where plaintiff not involved in prior altercation with assailant, assailant had not previously made threats, and there was no other reason for officers to be on notice of a risk of an altercation).
Instead, Plaintiff argues that the assault on August 22 should have put officials on notice of the risk of further violence. But Plaintiff admits that he “did not make a report” of the August 22 incident. Pl. Decl. ¶ 4. And there is no evidence of the alleged 311 report filed by a third party. This first record of any report of the assault is to non-party medical personnel at the end of September and then to P.A. Auguste on October 17. On this record, the October 26 attack is properly considered a surprise attack, and no reasonable jury could find that Defendants were deliberately indifferent to a substantial risk of serious harm. Rivera v. Royce, No. 19-cv-10425 (PMH), 2021 WL 2413396, at *8 (S.D.N.Y. June 11, 2021) (“It is well-established that prison officials cannot be deliberately indifferent to a surprise attack.”); Charles v. Rockland Cnty. Off, of the Sheriff, No. 16-cv-166 (VB), 2019 WL 1299804, at *3-4 (S.D.N.Y. Mar. 21, 2019) (granting summary judgment on Fourteenth Amendment failure-to-protect claim where “the surprise attack was a surprise to everyone involved, including plaintiff”).
I therefore recommend that the Court grant Defendants' motion for summary judgment on Plaintiff's failure-to-protect claim.
C. Indifference to Medical Needs
To survive Defendants' motion for summary judgment, Plaintiff must show (1) “that his medical condition is an objectively serious one,” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003), and (2) “for each defendant, that the defendant acted with deliberate indifference to [his] medical needs,” id. “[A] serious medical need ‘exists where ‘the failure to treat a prisoner's condition could result in significant injury or the unnecessary and wanton infliction of pain.'” Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) (quoting Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)). While this “fact-specific” inquiry “must be tailored to the specific circumstances of each case,” id. at 185, the Court of Appeals has weighed factors including “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain,” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). Mere disagreement over the proper treatment, negligence, or even medical malpractice does not establish deliberate indifference for purposes of prevailing on a constitutional claim. Id. at 703.
Plaintiff has failed to raise a triable issue of fact as to whether Defendants acted with deliberate indifference to his medical needs. First, the uncontested facts indicate that neither Plaintiff's cut resulting from the August 22 assault nor his bruises from the October 26 altercation were objectively serious. Plaintiff did not seek medical care following the August 22 assault and instead cleaned the cut himself. Despite multiple medical appointments after that incident, Plaintiff did not report his facial numbness to P.A. Auguste until October 17, almost two months after the alleged incident. A reasonable jury could conclude that Plaintiff's delay in seeking treatment indicates that the injury was not significant. Furthermore, P.A. Auguste noted that Plaintiff did not appear to be in acute distress, describing the wound as a scratch mark. When Plaintiff was seen by a neurologist in early December, he told the doctor that the numbness did not interfere with his ability to chew and swallow. Cf. Brock, 315 F.3d at 161, 163 (reversing grant of summary judgment to Chief Medical Officer where a keloid on the right side of plaintiff's face was a source of chronic pain that prevented him from brushing his teeth, eating, yawning or smiling). There is also no evidence that the five-week delay between Plaintiff's appointment with P.A. Auguste and his eventual referral to a neurologist exacerbated his paresthesia or created any unreasonable risk of future harm to his health. Smith, 316 F.3d at 188-89 (affirming district court's determination that jury could properly consider evidence regarding the absence of adverse medical effects where plaintiff presented no evidence that two episodes of missed medication resulted in permanent or ongoing harm to his health). Plaintiff testified at his deposition that the injuries resulting from the October 26 assault were “nothing major.” ECF No. 101, Ex. 13 79:22-25.
Even if the paresthesia diagnosis was objectively serious, Plaintiff has not adduced evidence indicating that Defendants were deliberately indifferent to his medical needs. Plaintiff does not allege that he received no medical care for his paresthesia, but rather that the care he received was delayed and inadequate. However, P.A. Auguste referred Plaintiff for a follow-up appointment by a non-party medical provider the day after he first complained of his facial numbness, and a month later a second medical provider referred him to a neurologist to confirm a paresthesia diagnosis. The neurologist saw Plaintiff approximately a week later, confirmed the diagnosis, and prescribed medication. “Generally, where the dispute concerns not the absence of help, but the choice of a certain course of treatment . . . a court will not second guess the doctors.” Johnson v. Wright, 234 F.Supp.2d 352, 361 (S.D.N.Y. 2013) (internal quotation marks omitted); see also Melvin v. Cnty. of Westchester, No. 14-cv-2995, 2016 WL 1254394, at *7 (S.D.N.Y. Mar. 29, 2016) (“treatment of a prisoner's medical condition generally defeats a claim of deliberate indifference”). Courts have also held that referrals to another provider for treatment is not an act of deliberate indifference. James v. Gage, No. 15-cv-106, 2019 WL 1429520, at *14 (S.D.N.Y. Mar 29, 2019); Norman v. Mount Vernon Hosp., No. 17-cv-9174 (KMK), 2020 WL 4432063, at *8 (S.D.N.Y. July 31, 2020).
Plaintiff also alleges in his Amended Complaint that P.A. Auguste failed to document lip laceration and swelling following the October 26 incident but has produced no evidence to substantiate this claim. At the very most, this failure constitutes medical malpractice, which does not rise to the level of a constitutional violation. Chance, 143 F.3d at 703; see also Veras v. Jacobson, No. 18-cv-6724 (KMK), 2020 WL 5659551, at *7 (S.D.N.Y. 2020).
Therefore, I recommend that the Court grant Defendants' motion for summary judgment on Plaintiff's indifference to medical needs claim.
D. Conspiracy Claim
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). The plaintiff can make this showing “through ‘either direct or circumstantial evidence.'” Randle v. Alexander, 170 F.Supp.3d 580, 591 (S.D.N.Y. 2016) (quoting Stein v. Janos, 269 F.Supp.2d 256, 261 (S.D.N.Y. 2003)). “To survive a motion for summary judgment, plaintiff's evidence of a Section 1983 conspiracy ‘must, at least, reasonably lead to the inference that [the defendants] positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.'” Stein, 269 F.Supp.2d at 261-62 (quoting Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)).
Plaintiff does not point to any evidence, either direct or circumstantial, of a conspiracy between his assailants and the Defendants. House, 2020 WL 6891830, at *20. His allegations of a conspiracy are pure speculation that Correction Officers Mills and Alvarez opened the door to the dorm area and abandoned their posts because they knew that the unidentified individuals intended to attack him. Pl. Decl. ¶ 18. Conjecture and speculation are insufficient to defeat a motion for summary judgment. Flores, 885 F.3d at 122. Accordingly, I recommend that the Court grant Defendant's motion for summary judgment on Plaintiff's § 1983 conspiracy claim.
III. State Constitutional Claims
Plaintiff also alleges a constitutional tort claim pursuant to Article 1, Section 6 of the New York Constitution. New York General Municipal Law requires that plaintiffs serve a notice of claim against any officer, appointee, or employee of a public corporation within 90 days after the claim arises. N.Y. Gen. Mun. Law § 50-e(1). Plaintiffs are required to commence the action within a year and 90 days from the date on which the cause of action accrues. N.Y. Gen. Mun. Law § 50(i). State notice-of-claim requirements apply to state tort claims brought as pendent claims in a federal action. Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999). Despite noting a “lack of clarity in New York law,” courts in this District have generally held that state constitutional claims are subject to the notice of claim requirement, particularly where plaintiffs concede or abandon the issue. Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F.Supp.2d 679, 709 (S.D.N.Y 2011); Bernstein v. Vill. of Wesley Hills, 95 F.Supp.3d 547, 585 (S.D.N.Y. 2015). “Notice of claim requirements ‘are construed strictly by New York state courts,'” and “[f]ailure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action.” Hardy, 164 F.3d at 793-94 (quoting AT&T Co. v. N.Y.C. Dep't of Hum. Res., 736 F.Supp. 496, 499 (S.D.N.Y. 1990)).
While Plaintiff timely filed his notice of claim on or about November 9, 2016, within 90-days of the August 22 incident, he failed to comply with the requirement that individual defendants be named in the notice “either by their particular names or as ‘Doe' defendants.” Jackson v. City of New York, 29 F.Supp.3d 161, 181 (E.D.N.Y. Mar. 17, 2014). Plaintiff vaguely references the correction officers assigned to monitor his dorm the morning of the assault but does not mention Deputy Warden Johnson or P.A. Auguste. Only Dr. Devour is named in the notice. As a result, these “Individual Defendants were not on notice of these claims.” Id. at 181. Furthermore, Plaintiff filed his federal action on December 18, 2018, more than one year and 90 days after the cause of action accrued.
I therefore recommend that the Court dismiss Plaintiff's state constitutional claims for failure to comply with the notice of claim requirements. To the extent any state law claims could be deemed to survive, I further recommend that the Court decline to exercise supplemental jurisdiction over them.
CONCLUSION
I recommend that the Court GRANT Defendants' motion for summary judgment on Plaintiff's § 1983 failure-to-protect, indifference to medical needs, and conspiracy claims. I further recommend that the Court GRANT Defendants' motion to dismiss Plaintiff's state constitutional law claims.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John P. Cronan at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).