United States District Court, Southern District of New York
February 16, 2000
OMETRIUS PEREZ, PLAINTIFF,
THE COUNTY OF WESTCHESTER, R. NAGER, AND EDWARD M. HERMAN, DEFENDANTS.
The opinion of the court was delivered by: Cedarbaum, District Judge.
Ometrius Perez sues the County of Westchester and doctors Ralph
Nager and Edward Herman in their official and personal capacities
under 42 U.S.C. § 1983 for violating his rights under the First,
Fourth, Eighth, and Fourteenth Amendments of the United States
Constitution. Perez contends that he was mistreated in late 1994
and early 1995 while incarcerated at the Westchester County Jail.
Defendants move to dismiss the Second Amended Complaint for
failure to comply with the pleading requirements of Fed.R.Civ.P.
8(a) and for failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6).*fn1 Dr. Nager and Dr. Herman move for summary judgment
on the ground that their actions are protected by qualified
immunity. Nager moves for dismissal on the ground that he was not
properly served with process. Perez moves for reimbursement of
the costs of personally serving Nager and Herman. For the reasons
discussed below, defendants' motions to dismiss the municipal
liability claims and for summary judgment are granted. The
parties' motions with respect to service of process are denied.
As will be explained more fully below, it is difficult to
discern from any of the complaints exactly what Perez alleges to
have happened while he was confined in the Westchester County
Jail. All of the material facts are contained in a single
paragraph of the Second Amended Complaint:
From and after on or about December 13, 1994, until
on or about February 13, 1995, defendants, their
agents, servants and employees, did, without legal
justification therefor, and without plaintiff's
consent and against his will, subject and cause
plaintiff to be subjected to certain restraints and
deprivations, in that they did, among other things,
forcibly, unlawfully, intentionally, willfully,
wantonly, recklessly and maliciously confine
plaintiff, who was known to them then and there to be
suicidal and to be suffering from adjustment
disorder, depression, anxiety and claustrophobia, to
a locked room for extensive periods of time; did
deprive him of all of his personal property,
including his clothing; did prohibit plaintiff from
speaking to anyone, and from being spoken to by
anyone, including members of the staff of the
detention facility and the medical center; did
prohibit plaintiff from sending or receiving
correspondence, including written correspondence to
and from attorneys; did prohibit plaintiff from
making telephone calls; did deny him medical
treatment for the depression, anxiety and
claustrophobia from which he was then and there
suffering; and did deny him access to law books and
other legal materials.
(Compl. ¶ 25.)
The initial complaint in this suit was dismissed pursuant to
Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978), because it "fail[ed] to allege a
single fact from which to infer the existence of a policy or
custom." Perez v. County of Westchester, No. 96 Civ. 9487(MGC),
1997 WL 256932, at *1 (S.D.N.Y. May 16, 1997) (opinion denying
motion for reconsideration).
Perez submitted an amended complaint adding Dr. Herman and Dr.
Nager as defendants. Perez' lawyer was advised in open court that
the factual allegations in the amended complaint were still
inadequate, and was directed to file a further amended complaint
which "state[s] a plain, concise statement of the facts as to
the named defendants that constitutes a violation of the
Constitution of the United States in this case." (Transcript of
Proceedings, Sept. 11, 1998, at 21.)
Perez has submitted a Second Amended Complaint. Defendants once
again move for dismissal.
I. The complaint does not plead a policy or custom.
A claim under § 1983 asserted against a municipality must
allege that a deprivation of the plaintiff's constitutional
rights resulted from a custom or policy of the municipality.
Monell v. Department of Social Services, 436 U.S. 658, 690, 98
S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). Such a claim cannot
be based on a theory of respondeat superior. 436 U.S. at 691, 98
S.Ct. at 2036. Additionally, "there must be proof of such a
custom or policy in order to permit recovery on claims against
individual municipal employees in their official capacities,
since such claims are tantamount to claims against the
municipality itself." Dwares v. City of New York, 985 F.2d 94,
100 (2d Cir. 1993).
Despite being advised by the Court of these requirements on at
least three occasions, Perez' lawyer fails to adequately allege
that Perez' rights were violated as a result of a custom or
policy of the County of Westchester. The newest version of the
complaint has merely been altered to include a conclusory,
boilerplate statement that "[a]t all times hereinafter stated,
defendants, their agents, servants and employees, were acting
under color of law and pursuant to county policy and custom."
(Compl. ¶ 19.) The complaint does not include any facts
demonstrating the existence of a policy or custom. The complaint
does not even generally indicate the nature of the policy or
custom being alleged, such as a failure to train county officers.
This additional allegation, standing alone, is insufficient to
state a claim of municipal liability. See Dwares, 985 F.2d at
100 ("The mere assertion . . . that a municipality has such a
custom or policy is insufficient in the absence of allegations of
fact tending to support, at least circumstantially, such an
inference."); Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir.
1980) (holding that a single incident can establish municipal
liability in the absence of proof of a policy or custom only if
it is "unusually brutal or egregious").
Perez argues that under the Supreme Court's decision in
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122
L.Ed.2d 517 (1993), his complaint is only required to contain a
bare assertion that the challenged action was taken pursuant to a
municipal policy or custom without any indication of the nature
of the policy or custom. This contention is without merit.
Leatherman held only that complaints against municipal entities
are not subject to a "heightened pleading standard" beyond the
requirements of Fed.R.Civ.P. 8. Id. However, Rule 8 requires "a
short and plain statement of the claim showing that the pleader
is entitled to relief." Perez' claim, while short, is not plain,
and provides no notice concerning the nature of the policy or
custom under which defendants' actions were allegedly taken. Even
under the liberal notice pleading standard set forth in
Leatherman, the Complaint fails to adequately allege a policy
or custom. See Dwares, 985 F.2d at 100-01; Economic
Opportunity Commission of Nassau County, Inc. v. County of
Nassau, Inc., 47 F. Supp.2d 353, 370-71 (E.D.N.Y. 1999) (granting
motion to dismiss Monell claim because plaintiffs "do not
proffer any facts in support of the conclusory allegation that
the defendants' conduct amounts to a custom or policy, or that
this custom or policy caused the plaintiffs' injuries"); Morales
v. New York City Police Department, No. 97 Civ. 7151 MGC, 2000
WL 10436, at *2 (S.D.N.Y. Jan. 6, 2000) (holding that even under
Leatherman "the plaintiff
must still allege some facts that make possible the inference of
a policy giving rise to municipal liability"); Oparaji v. City
of New York, No. 96 Cv. 6233, 1997 WL 139160, at *3 (E.D.N Y
Mar. 21, 1997), aff'd, 152 F.3d 920 (1998) (same); Wilson v.
103rd Precinct, No. CV 94 4447, 1996 WL 204510, at *1 (E.D.N Y
Apr. 18, 1996), aff'd, 182 F.3d 902 (1999) (same). Accordingly,
the complaint is dismissed with respect to the County of
Westchester and defendants Herman and Nager in their official
II. Dr. Nager and Dr. Herman in their personal capacities are
immune from suit.
Defendants Herman and Nager move for summary judgment on the
ground that their actions are protected by qualified immunity. A
motion for summary judgment will be granted when the moving party
demonstrates that there are no triable issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). Perez cites to no evidence in
opposition to the motion. Summary judgment will thus be granted
if the evidence offered by Herman and Nager demonstrates that
they are entitled to qualified immunity. See Fed. R.Civ.P.
56(e); Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996)
("conclusory statements, conjecture, or speculation by the party
resisting the motion will not defeat summary judgment").
Qualified immunity shields government officials from liability
for damages stemming from their performance of discretionary
official functions "insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see
also Ying Jing Gan v. City of New York, 996 F.2d 522, 531 (2d
Cir. 1993). The defense will generally preclude liability unless
the "contours of the right" were "sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640,
107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
Qualified immunity is designed "to relieve government officials
of the burdens of litigation as well as of the threat of
damages." Ying Jing Gan, 996 F.2d at 532; see also Harlow,
457 U.S. at 818, 102 S.Ct. at 2738. Indeed, "[u]nless the
plaintiff's allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery."
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815,
86 L.Ed.2d 411 (1985). Nevertheless, counsel for Perez contends
that defendants' motion is premature because discovery has not
yet commenced. A nonmoving party may request a continuance to
permit discovery if facts essential to support opposition to a
summary judgment motion are unavailable at the time of the
motion. Fed.R.Civ.P. 56(f). However, Perez does not articulate
any particular discovery that would provide information not now
known by plaintiff with respect to the exercise of medical
judgment by his doctors.*fn3 Moreover, Perez does not dispute
any of the factual statements contained in the doctors'
Resolution of the motion at this time is thus in accordance with
the admonitions of the Supreme Court.
Defendants' evidence in support of their motion shows that they
did not violate any clearly established federal rights in their
treatment of Perez. Herman and Nager submit affidavits explaining
that they exercised their medical judgment when treating Perez
during the time period at issue. They point out that Perez "made
suicidal gestures" and that they placed him in the jail's
Forensic Unit and "had him closely observed." (Nager Aff. ¶ 12;
Herman. Aff. ¶ 9.) In defense of Perez' isolation for a period of
close observation, Dr. Nager explains:
Plaintiff . . . twice made suicidal overtures by
purported attempts to hang himself. Potentially
suicidal patients are required, in the exercise of
good medical and psychiatric practice, to be isolated
for purposes of close observation. It is axiomatic
that their activities must be restricted and observed
for potential recurrence of the suicidal activity.
They cannot have unrestricted access to others by way
of socializing, correspondence, or telephone, while
needing such a heightened level of observation.
(Nager Aff. ¶ 16.) Both doctors point out that clothing and other
personal items such as belts and shoelaces are routinely removed
to prevent their use in further suicide attempts. (Nager Aff. ¶
17; Herman Aff. ¶ 14.) Furthermore, they state that to their
knowledge, the law library cart made its rounds to the area in
which Perez was located and that Perez had access to it. (Nager
Aff. ¶ 18; Herman Aff. ¶ 15.) The medical records are consistent
with the doctors' assertions.
With respect to Perez' release from medical isolation, Nager
and Herman affirm that they exercised their best medical judgment
"as to when close observation no longer appeared medically
necessary, indicated, or sound." (Nager Aff. ¶ 12; Herman Aff. ¶
9.) Once Perez was discharged from close observation, he
"necessarily returned to the correction facility personnel who
decided where he would be detained." (Nager Aff. ¶ 13; Herman
Aff. ¶ 10.)
Perez does not dispute defendants' showing that he was placed
in medical isolation because he was believed to have attempted
suicide and was considered a danger to himself. Nor does he
dispute that he was eventually released to the custody of other
prison officials once the doctors no longer considered him to be
a danger to himself. This action is, at its core, a claim of
medical malpractice.*fn4 Because Perez disagrees with his
diagnosis and treatment, and because he was diagnosed and treated
while incarcerated in a county jail, he asserts that he states a
claim under federal law. However, his doctors' conduct cannot be
said to be contrary to clearly established federal rights. "The
decisions of physicians regarding the care and safety of patients
are entitled to a presumption of correctness." Kulak, 88 F.3d
at 77. Cf. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285,
292, 50 L.Ed.2d 251 (1976) (holding in the Eighth Amendment
context that "[m]edical malpractice does not become a
constitutional violation merely because the victim is a
Accordingly, summary judgment of qualified immunity is
warranted for Dr. Herman and Dr. Nager in their individual
capacities. See Richardson v. Nassau County Medical Center,
840 F. Supp. 219, 221-222 (E.D.N.Y. 1994) (finding physicians immune
where plaintiff was involuntarily confined); Katzman v. Khan,
67 F. Supp.2d 103, 109-10 (E.D.N.Y. 1999) (same); Kulak, 88 F.3d
at 77 (finding physicians immune where plaintiff was not informed
of the risks related to certain medications and was segregated
for his own safety).
III. Service of process
Dr. Nager moves for dismissal on the ground that he was not
properly served with process. It is undisputed that the summons
and complaint were delivered by hand to a secretary at Dr.
Nager's office. However, Nager correctly points out that this is
insufficient to satisfy the requirements of Fed.R.Civ.P. 4(e),
which allows service upon a person of suitable age and discretion
only at an individual's home, not at his or her place of
employment. The question presented is thus whether the service
complied with N.Y. Civ. Prac. L. & R. 308(2) (McKinney 1999).
See Fed. R.Civ.P. 4(e) (allowing service of process according
to either federal law or the law of the state in which the
district court sits).
Section 308(2) permits delivery of a summons to a person of
suitable age and discretion at a person's place of employment. It
requires, however, that a copy of the summons be mailed to the
person's residence or place of business within twenty days of the
personal delivery. Nager claims that he never received a copy of
the summons and complaint by mail. Counsel for Perez asserts that
he mailed Nager these documents contemporaneously with the
delivery to Nager's business.
Nager received sufficient service of process under section
308(2). Even if his denial of receipt by mail is credited,
counsel for Perez nonetheless complied with the requirements of
the provision, and Nager received the copy delivered to the
secretary at his office. The purpose of requiring duplicated
service is to ensure that the summons reaches the defendant. This
purpose was satisfied here, and Nager's motion to dismiss for
insufficient service of process is accordingly denied.
Perez moves for reimbursement of the $80 paid for personal
service on Nager and Herman and for an attorney's fee for the
time spent preparing this motion. In support, he refers to
Fed.R.Civ.P. 4(d), which requires that defendants pay the costs
of service where they do not comply with a proper notice and
request for a waiver of personal service. Although it is true
that defendants refused to waive personal service on advice of
counsel, plaintiff's notice and request did not comply with the
requirements of Rule 4(d). The only request for waiver of
personal service was made by Perez' lawyer in a letter to defense
counsel. Rule 4(d), however, requires, among other things, that
the notice and request be addressed directly to the defendant,
that it be accompanied by a copy of the complaint, and that it
include a prepaid means of compliance in writing. None of these
requirements was met. Accordingly, plaintiff's motion for
reimbursement of service costs and for an attorney's fee is
For the foregoing reasons, Nager's motion to dismiss for
improper service of process is denied. Plaintiff's motion for
reimbursement of service costs and an attorney's fee is denied.
Defendants' motion to dismiss the Second Amended Complaint
pursuant to Fed.R.Civ.P. 8 and 12(b)(6) is granted with respect
to the County of Westchester and Ralph Nager and Edward Herman in
their official capacities. Defendants' motion for summary
judgment on the ground of qualified immunity is granted with
respect to Nager and Herman in their personal capacities.
Accordingly, this action is dismissed.