Opinion
17-CV-8225 (NSR)
03-15-2019
KEVIN WILLIAMS, Plaintiff, v. COUNTY OF ORANGE, COLONEL K. DECKER, DR. MELENDORF Defendants
OPINION & ORDER
Kevin Williams ("Plaintiff"), an incarcerated pro se litigant, commenced this action on October 11, 2017 against Orange County ("County"), Colonel K. Decker ("Decker"), and Dr. Millendorf (sued incorrectly as Dr. Melendorf) ("Millendorf"), (collectively "Defendants"), pursuant to 42 U.S.C § 1983 ("Section 1983"). (ECF No. 1). Plaintiff alleges that Defendants violated his Eighth Amendment right in that Defendants were deliberately indifferent to his medical needs by refusing to permit Plaintiff to obtain a medical consult with a specialty doctor for his medical condition. By Stipulation of Partial Dismissal dated April 14, 2018, Plaintiff dismissed his claims against Dr. Millendorf with prejudice. Thus, the only remaining claims are those asserted against County and Decker.
Presently before the Court is Defendants' Motion to Dismiss the Complaint pursuant to 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). (ECF No. 30.) For the reasons discussed below, Defendants' Motion is GRANTED in its entirety.
BACKGROUND
Plaintiff is an inmate formerly housed at the Orange County Correctional Facility ("OCCF") during the period of September 25, 2015 to June 27, 2016. Plaintiff asserts that, in 2016, he complained of pain to his side on multiple occasions and despite requesting medical attention, was not allowed to see a doctor. It was not until blood was observed in his urine sample that he was taken to be examined by a doctor outside the facility. Plaintiff was taken to the Orange Regional Medical Center emergency room on two occasions wherein he was diagnosed with kidney stones and referred to a urologist. Medical personnel at OCCF, however, did not follow up with the urologist recommendation. Similarly, Decker, presumably a supervisor at OCCF, did not agree with the medical staff of Orange Regional Medical Center regarding the need for a urological consult. On multiple occasions thereafter, Plaintiff visited the medical facility at OCCF and he was routinely sent back to his housing unit without any treatment or pain medication. Subsequently, Plaintiff filed grievances which were denied by the doctors and administrators of OCCF. In response to the grievances, Decker advised Plaintiff he was already receiving the appropriate medical care.
STANDARDS OF REVIEW
I. Rule 12(b)(6)
On a motion to dismiss for "failure to state a claim upon which relief can be granted" (Rule 12(b)(6)), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). To survive a motion to dismiss, a complaint must state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). 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." Twombly 550 U.S. at 556. Although detailed factual allegations are not required, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal 556 U.S. at 667 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). As such, mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" will not suffice. Twombly, 550 U.S. at 555. Nonetheless, "a court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently 'raise a right to relief above the speculative level.'" Jackson v. N.Y. State Dep't of Labor, 709 F. Supp. 2d 218, 223 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555).
When considering a motion to dismiss, the courts impart particular guidelines for a pro se plaintiff, noting that "pro se complaints are held to less stringent standards than those drafted by lawyers ...." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Applying this standard, the court should construe pro se complaints liberally "to raise the strongest arguments it suggests." Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014). However, the duty to liberally construe a plaintiff's complaint does not entail a duty to re-write it. Sharma v. D'Silva, 157 F. Supp. 3d 293, 300 (S.D.N.Y. 2016). A pro se plaintiff must allege more than abstract accusations or "legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000). Rather, to survive a motion to dismiss the pleadings "must contain specific allegations of fact which indicate a deprivation of constitutional rights." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
II. Section 1983
Section 1983 authorizes a suit in law, equity, or "other proper proceeding for redress" against any person who, under color of state law, "subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws...." 42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights," but is a vehicle for vindicating federal rights embedded in the United States Constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). Therefore, a Section 1983 claim has two essential elements: "(1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution." Castilla v. City of New York, No. 09-CV-5446, 2013 WL 1803896, at*2 (S.D.N.Y. April 25, 2013); see also Annis v. Cnty of Westchester, 136 F.3d 239, 245 (2d. Cir. 1998).
III. Medical Indifference
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. However, the Eighth Amendment's protection extends beyond claims of a disciplinary context and further "imposes a duty on prison officials to ensure that inmates receive adequate medical care." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.2006). The Supreme Court concluded that "deliberate indifference to an inmate's medical needs is cruel and unusual punishment rested on the fact . . . that "[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
To satisfy an Eighth Amendment claim for inadequate medical care, a plaintiff must demonstrate: (1) 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'" and (2) a subjective "deliberate indifference" element measuring whether the prison official acted with a sufficiently culpable state of mind. Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir.2000).
A. Objective Test
To establish that a medical condition was "sufficiently serious" a plaintiff must allege "a condition of urgency, one that may produce death, degeneration, or extreme pain." Coke v. Med., Dep't of Corr. & Cmty. Supervision, No. 17-CV-0866 (ER), 2018 WL 2041388, at *3 (S.D.N.Y. Apr. 30, 2018). There are various relevant factors that the court may consider when deciding whether a medical condition is "sufficiently serious" including: chronic and substantial pain or presence of a medical condition that significantly affects an individual's daily activities. Id. However, an actual physical injury is not necessary to claim inadequate medical care. Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003). Rather, a sustainable inadequate medical care claim can be based on an inmate's exposure to an unreasonable risk of future harm. Id. Nonetheless, as the Supreme Court noted, a prison officials' duty is only to provide reasonable care. Farmer v. Brennan, 114 S. Ct. 1970 (1994).
Additionally, "[m]edical malpractice does not rise to the level of a constitutional violation unless the malpractice involves culpable recklessness - 'an act or a failure to act by [a] prison doctor that evinces a conscious disregard of a substantial risk of serious harm.'" Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)) (internal quotation omitted); see also Estelle v. Gamble, 429 U.S. 97, 105 - 06 (1976) (noting that an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind") (quotations omitted); Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (observing that "negligent malpractice do[es] not state a claim of deliberate indifference"); Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation").
B. Subjective Test
The Supreme Court has explained that an Eighth Amendment violation occurs when a prison official demonstrates "'deliberate indifference' to a substantial risk of serious harm." Farmer 511 U.S. at 837. This standard assesses whether the charged defendant had a mental state of mind equivalent to criminal recklessness wherein the official knew and disregarded an "excessive risk to inmate health or safety." Id.; see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (noting that "deliberately refus[ing]" to treat a medical condition "with conscious disregard of the substantial risk of serious harm" constitutes deliberate indifference). Consequently, mere negligence is insufficient to state a claim of deliberate indifference. Darnell v. Pineiro, 849 F.3d 17, 36 (2d Cir. 2017). Instead, a defendant's conduct must reveal an element of intention or recklessness. Id. ("A detainee must prove that an official acted intentionally or recklessly, and not merely negligently").
DISCUSSION
I. Medical Indifference
Defendants contend that Plaintiff fails to assert sufficient facts to support a plausible claim under the Eighth Amendment. Defendants assert Plaintiff's complaint is devoid of the exact nature of his medical condition or any harm he suffered as a result of not being seen by the urologist. Moreover, Plaintiff fails to assert facts establishing Decker's personal involvement in the alleged constitutional violation. As such, Defendants opine that Plaintiff did not meet the requisite plausibility standard. (Defendants' Memorandum in Law in Support of Summary Judgment ("Def. Mem."), ECF No. 32).
Giving Plaintiff every favorable inference and construing Plaintiff's Complaint in the most favorable light, "taking its factual allegations to be true," the allegations fail to state a plausible claim. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). Plaintiff's underlying medical condition is insufficient. Plaintiff contends he was subjected to pain and discomfort, and must now take daily medication as a result of kidney stones and may possibly require an operation for the condition. Though the Court is sympathetic to Plaintiff's plight, courts in this district have held that kidney stones fail to satisfy the constitutional "serious medical need" standard. See Gonzalez v. Greifinger, No. 95-CV-7932 (RWS), 1997 WL 732446, at *3 (S.D.N.Y. Nov. 25, 1997) (citing to Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988); see also Yearney v. Sidorowicz, No. 13-CV-3604 CM, 2014 WL 2616801, at *6 (S.D.N.Y. June 10, 2014) (citing to Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Therefore, even raising the strongest arguments, Plaintiff's medical condition does not meet the threshold of "sufficiently serious" under the first prong.
Plaintiff cites to Garofolo v. State of NY, 135 A.D. 3d 1008, 1109 (3d Dept. 2016), however it does not apply. Garofolo pertains to the doctrine of ostensible agency and holding a hospital or other medical entity vicarious liable for independent contractors in certain circumstances based on a theory of "agency or control in fact, or apparent or ostensible agency." Id.
Even assuming that treatment of Plaintiff's kidney stones was a serious medical need, he still cannot show deliberate indifference by the Defendants to satisfy the subjective prong of the analysis. There are no allegations supporting Defendants' knowledge of and disregarding an excessive risk to Plaintiff's health; let alone acting in a way that resulted "in unquestioned and serious deprivations of basic human needs." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). At best, Plaintiff's allegations amount to a misdiagnosis which is insufficient to state a cause of action under the Eighth Amendment. See Harris v. Westchester Cnty. Med. Ctr., No. 08-CV-1128 (RJH), 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011) ("Allegations of ... misdiagnosis do not state a cause of action under the Eighth Amendment"). Thus, Plaintiff's claims must be dismissed as they do not rise to the level of deliberate indifference.
Moreover, "[d]isagreements over medications, diagnostic techniques..., forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim." Sonds v. St. Barnabas Hops. Corr. Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (emphasis added). Although a delay in referral for a medical diagnosis may constitute an Eighth Amendment violation, these delays are only reserved in situations where "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." Id. In a situation where the plaintiff did receive some care "inadequacy or impropriety of the care that was given will not support an Eighth Amendment claim." Brown v. Selwin, 250 F. Supp. 2d 299, 308 (S.D.N.Y. 1999), aff'd, 29 F. App'x 762 (2d Cir. 2002) (citing to Suarez v. Camden County Board of Chosen Freeholders, 972 F. Supp. 269, 276 (D.N.J.1997).
Plaintiff's "difference[] of opinion regarding medical treatment do[es] not give rise to an Eighth Amendment violation." Atkins v. Cty. of Orange, 372 F. Supp. 2d 377, 408 (S.D.N.Y. 2005) (citing to McCoy McCoy v. Goord, 255 F. Supp. 2d 233, 259 (S.D.N.Y. 2003)). Plaintiff herein does not allege a lack of medical treatment. In fact, Plaintiff admits that he did receive medical treatment and was taken twice to the emergency room at Orange Regional Medical Center. (Complaint ("Compl."), ECF No. 1). Rather, Plaintiff purely disagrees with the medical treatment he received, (Def. Mem. at 8 - 9), which is insufficient to support an Eighth Amendment claim. See Sonds, 151 F. Supp. 2d at 312 ("[D]isagreements over medications, diagnostic technics, forms of treatment, or the need for specialists or the timing of their interventions" do not implicate the Eighth Amendment).
II. Claim Against Colonel Decker
Vicarious liability is inapplicable to Section 1983 suits. Therefore "a plaintiff must plead that each Government-official defendant, through the official's own individual actions" violated the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Accordingly, under Iqbal, "a defendant can be liable under Section 1983 only if that defendant took an action that deprived the plaintiff of his or her constitutional rights," either through direct participation or by creating a custom or policy under which unconstitutional practices occurred. De La Rosa v. N.Y. City 33 Precinct, No. 07-CV-7577(PKCKNF), 2010 WL 1737108, at *4 & n. 2 (S.D.N.Y. April 27, 2010) (citing Bellamy v. Mt. Vernon Hosp., No. 07-CV-1801 (SAS), 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009)).
Defendants argue that Plaintiff has failed to effectively establish the personal involvement of Decker. (Def. Mem. at 3 - 4). Furthermore, they argue that Decker did not act with the required standard of "deliberate indifference." In opposition, Plaintiff contends that Decker acted contrary to the advice of medical professionals, and that Decker, along with other administrators, should have adhered to the consult recommendation of the Orange Regional Medical Center staff. (Memorandum of Law in Opposition to Motion ("Pl. Opp'n"), ECF No. 32).
Plaintiff has failed to allege any facts that Decker unconstitutionally interfered with Plaintiff's rights or denied him any form of medical treatment that rises to the level of deliberate indifference. Decker's alleged differing opinion regarding the medical treatment Plaintiff should have received is not a basis for an Eighth Amendment Violation. See Engles v. Dunbar, No. 09-CV-2457 NRB, 2010 WL 5538517, at *6 (S.D.N.Y. Dec. 30, 2010) (holding "[t]he Eighth Amendment is not violated by...differences of opinion regarding medical treatment"). Additionally, a defendant's denial of an administrative grievance or decision not to override the medical personnel's advice are inadequate to establish liability. Battle v. Recktenwald, No. 14-CV-2738 (VB), 2016 WL 698145, at *10 (S.D.N.Y. Feb. 19, 2016). As a result, Plaintiff's claims against Decker for denying his grievance - which consists of one vague statement - is insufficient to establish personal involvement or "to shed any light on...knowledge on the part of the defendant." Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002) (holding that defendant's affirmed denial of plaintiff's grievance is insufficient to establish personal involvement). Because Plaintiff's claims are insufficient to rise to the level of an Eighth Amendment violation against Decker, the claims must be dismissed. Regardless of Decker's personal involvement, Plaintiff's factual allegations are insufficient to assert a plausible claim.
III. Claim for Municipal Liability
To state a Section 1983 claim against a municipality, the plaintiff must allege that an officially adopted policy or custom caused his injury. See Bd. of Cnty. Comm'r of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (stating a plaintiff must demonstrate a "direct causal link between the municipal action and the deprivation of federal rights"). Moreover, in order to survive a motion to dismiss, a plaintiff cannot ambiguously allege the existence of a municipal policy or custom that tolerates misconduct, but "must allege facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists." Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012).
Defendants contend that there is no municipal liability because Plaintiff never alludes to any policy or practice that resulted in a violation of his constitutional rights. Instead, Plaintiff's allegations only address the inadequacy of the medical care he was provided by medical personnel at OCCF. As such, Plaintiff's claim for municipal liability should be dismissed.
Here, Plaintiff's claim against the County of Orange cannot survive Defendant's motion to dismiss. "Congress did not intend municipalities to be held liable [under Section 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep't of Social Srvs. of the City of N.Y., 436 U.S. 658, 691 (1978). Plaintiff names County as a Defendant but fails allege an unlawful custom or practice. Nor does he cite to a custom or policy which deprived him of a constitutional right. See Salvatierra v. Connolly, No. 09-CV-3722, 2010 WL 5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing claim against municipal agencies where plaintiff did not allege that any policy or custom caused the deprivation of his rights). Without "facts tending to support...an inference that such a municipal policy or custom exists," Plaintiff's claim fails. Santos, 847 F. Supp. 2d at 579.
IV. State Law Claims
Defendants submit that although Plaintiff's complaint does not expressly assert state law claims, to the extent that it does, his claims are time-barred pursuant to General Municipal Law Sec. 50-i(1). Plaintiff does not dispute or address this contention in his opposition. Nonetheless, a plaintiff alleging a tort action or state law negligence claim against a municipality must bring the action within one year and 90 days after the happening of the event on which the claim is based. N.Y. Gen. Mun. Law § 50-i(1)(c). Plaintiff was released from Orange County Correctional Facility on June 27, 2016. (Lagitch Dec., ¶4 ("Declaration in Support of Motion"), ECF No. 31). Plaintiff filed his complaint on October 11, 2017. Since his complaint was filed one year and ninety days subsequent to the event on which the claim is based, any state claims alleged by the Plaintiff should be dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED in its entirety. All of Plaintiff's claims are DISMISSED in accordance with this Opinion and Order. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 30, enter judgment in favor of Defendants, and close the case. The Clerk of the Court is further directed to mail a copy of the Opinion to Plaintiff and to show proof of service on the docket. Dated: March 15, 2019
White Plains, New York
SO ORDERED:
/s/_________
NELSON S. ROMÁN
United States District Judge