United States District Court, S.D. New York
January 29, 2004.
BERNADETTE DIPACE, et al, Plaintiffs, -v.- GLENN S. GOORD, et al., Defendants
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
To the Hon. William H. Pauley, III United States District Judge
On August 10, 1999, Ralph Tortorici committed suicide while in the
custody of the New York State Department of Correctional Services
("DOCS") at Sullivan Correctional Facility. Plaintiffs, the estate and
survivors of Ralph Tortorici, initially sued the Commissioner of DOCS,
the Commissioner of the New York State Office of Mental Health, and
various mental health practitioners alleging that they were deliberately
indifferent to Tortorici's severe mental illness. Plaintiffs now seek to
amend the complaint to add claims against Corrections Officer Keith
Krause, Corrections Officer John Skinner, and Nurse Cynthia Murphy for
failing to provide cardie-pulmonary resuscitation ("CPR") after
Tortorici's body was discovered. The proposed amended complaint also
contains new claims against the Commissioner of DOCS, Glenn S. Goord,
based on DOCS's policies and procedures relating to emergency medical
treatment. For the reasons below, plaintiffs' motion should be denied.
Ralph Tortorici had a long history of mental illness that was known to
DOCS. See Final Report of the New York State Commission of
Correction, dated June 23, 2000 ("COC Report")
(annexed as Ex. 11 to Declaration of Joan Magoolaghan, filed August
11, 2003 (Docket #33) ("Magoolaghan Decl.")), ¶¶ 3-6 (detailing
Tortorici's contacts with the mental health system, including four
inpatient hospitalizations during his incarceration). Tortorici was last
seen alive in his prison cell at 4:32 a.m. on August 10, 1999.
Id. ¶ 10. At 4:47 a.m., Corrections Officer ("CO") Krause
found Tortorici hanging by his neck from a sheet in his cell.
Id. ¶¶ 1, 10; New York State Police Investigation Report
("Police Report") (annexed as Ex. 7 to Magoolaghan Decl.), Continuation
Sheet ¶ 5. Security and medical staff-including CO Skinner and Nurse
Murphy responded to the "code blue" emergency. COC Report ¶
10; Police Report, Continuation Sheet ¶¶ 11, 20.
A police investigator interviewed CO Krause on the day of the suicide
and noted in the report:
On 8/10/99 Member interviewed CO Krause who stated
that he is assigned as the E North Block rover and
is responsible for completing rounds to check on
inmates locked in their cell. [CO Krause] stated
that he completed rounds all evening and the last
round completed without incident was at 4:32 a.m.
. . . [CO Krause] then started another round at
approximately 4:47 a.m. and located Inmate
Tortorici hanging in his cell. [CO Krause]
immediately radioed for assistance, requested the
control officer to open cell #143, and entered
cell #143. [CO Krause] lifted [Tortorici] slightly
where [CO Krause] was able to pull the looped
sheet off the clothing shelf and lower [Tortorici]
to the floor. [CO Krause] then slipped the loop
from around [Tortorici's] neck. The response team
started to arrive and evaluated [Tortorici].
Police Report, Continuation Sheet ¶ 5. The investigator also
interviewed CO Skinner:
On 8/10/99 Member interviewed CO John Skinner who
stated that he responded to the code blue medical
emergency and found CO Krause kneeling next to
[Tortorici]. CO Skinner checked [Tortorici] for
breathing and a pulse with negative results. A
short time later, RN Murphy arrived and assessed
[Tortorici] for vital signs with negative results.
Id. ¶ 20. As for Nurse Murphy, the report indicated:
On 8/10/99 Member interviewed RN Cynthia Murphy
who stated that she responded to the code blue
medical emergency. Upon arrival RN Murphy found
[Tortorici] lying on his back with his head toward
the cell door. [Tortorici's] eyes were partially
open and there was no radial or carotid pulse. RN
Murphy used a stethoscope and was unable to hear
any heart rate. RN Murphy rolled [Tortorici] and
noticed blanching of the shoulders which is a sign
of obvious death. Lividity was also setting in.
Because of these indications, no resuscitation
efforts were started.
Id. ¶ 11. The COC Report stated that Nurse Murphy's
failure to commence CPR "violated a departmental directive." COC Report
Plaintiffs filed the complaint in this action on July 12, 2002.
See Complaint, filed July 12, 2002 (Docket #1). They filed a
First Amended Complaint on August 1, 2002. See First Amended
Complaint, filed August 1, 2002 (Docket #2). The First Amended Complaint
alleges that Tortorici's suicide was the result of a failure to provide
adequate and appropriate psychiatric care. See id
¶¶ 1, 14-91. No allegations were made regarding any lack of
resuscitation efforts. CO Krause, CO Skinner, and Nurse Murphy were not
named as defendants. Plaintiffs now argue that they learned new facts
during discovery that support claims for deliberate indifference against
these defendants as well as additional claims against Commissioner Goord.
See Plaintiffs' Memorandum of Law in Support of Motion to Add
Parties, filed August 11, 2003 (Docket #32) ("PL Mem."), at 1-2.
Plaintiffs devoted the bulk of their initial moving papers to two
potential defenses that they expected would be raised by the proposed
defendants: the statute of limitations, see PL Mem. at 11-16,
and qualified immunity, id. at 16-25. With respect to the first
issue, plaintiffs argued that the claims they propose adding are not
time-barred because the causes of action did not accrue until the
plaintiffs discovered the alleged wrongful conduct or, alternatively,
statute of limitations should be equitably tolled because
information critical to asserting the causes of action was in the sole
control of defendants and not discovered despite plaintiffs' diligent
efforts. See id. at 12-15. On the second issue, plaintiffs
argued that the proposed defendants are not entitled to qualified
immunity because the right to adequate medical care for serious medical
needs was clearly established and no reasonable jury could find that it
was objectively reasonable for the defendants to do nothing to attempt to
save Tortorici's life under the circumstances. See id. at
20-25. As expected, defendants responded that the applicable statute of
limitations and the qualified immunity doctrine render the proposed
amendment futile. See Defendants' Opposition to Plaintiffs'
"Motion to Add Parties," filed September 2, 2003 (Docket #42) ("Def.
Mem."), at 4-23. Both the plaintiffs' moving papers and the defendants'
opposition papers annexed extensive evidence, including deposition
transcripts and documentary evidence. See Magoolaghan Dec!.;
Declaration of Thomas W. White, filed August 11, 2003 (Docket #33)
("White Decl."); Declaration of Daniel Schulze, filed September 2, 2003
(Docket #43) ("Schulze Decl."); Reply Declaration of Joan Magoolaghan,
filed September 5, 2003 (Docket #45) ("Magoolaghan Reply Decl."). The
plaintiffs alone submitted a total of 43 separate exhibits.
In addition, plaintiffs submitted another proposed second amended
complaint with their reply papers that included factual allegations
relating to their argument that the existence of their cause of action
had been fraudulently concealed. See Proposed Second Amended
Complaint (Revised) ("Proposed Am. Compl.") (annexed as Ex. 32 to
Magoolaghan Reply Decl.), ¶¶ 81-100. As a result, the Court allowed
defendants to submit a supplemental memorandum of law in response and
allowed plaintiffs to reply to that submission. See Defendants'
Memorandum of Law in Opposition to Plaintiffs' "Motion to Add
Parties," filed October 3, 2003 (Docket #48) ("Def. Supp. Mem.");
Plaintiffs' Supplemental Memorandum of Law in Support of Motion to Add
Parties, filed October 9, 2003 (Docket #49) ("Pl. Supp. Mem."). The
motion to amend has now been fully briefed.
Because the Court concludes that the defendants are entitled to
qualified immunity and that the proposed amendment to the complaint is
therefore futile, the motion to amend should be denied. It is thus
unnecessary to reach the parties' arguments regarding the statute of
A. Law Governing a Motion to Amend
Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely
given when justice so requires." Nonetheless, leave to amend may be
denied where the proposed amendment would be "futil[e]." Foman v.
Davis, 371 U.S. 178, 182 (1962). A proposed amendment is futile when
it fails to state a claim. See Health-Chem Corp. v. Baker,
915 F.2d 805, 810 (2d Cir. 1990). Thus, it is settled that a court may deny
leave to file a proposed amended complaint where "`it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief" Riciutti v. N.Y.C. Transit
Auth., 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). Where a plaintiff has submitted
a proposed amended complaint, the court "may review that pleading for
adequacy and need not allow its filing if it does not state a claim upon
which relief can be granted." Id.
Normally, a motion to amend is adjudicated without resort to any
outside evidence. See Nettis v. Levitt, 241 F.3d 186, 194 n.4
(2d Cir. 2001) ("Determinations of futility [of amendment] are made under
the same standards that govern Rule 12(b)(6) motions to dismiss.");
see also Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989)
("On a motion to dismiss, the district court must limit itself to a
consideration of the facts alleged on the face of the complaint and to
any documents attached as exhibits or incorporated by reference."
(citations omitted)). This case presents the unusual situation, however,
where the plaintiffs themselves have chosen not to rely on the bare
allegations of the proposed pleading (the sufficiency of which neither
side has addressed) but instead have presented extensive extrinsic
evidence to justify its filing. As already noted, it was plaintiffs
not defendants who first raised the issues of qualified
immunity and the statute of limitations in their motion papers.
See PL Mem. at 11-25. More significantly, it was plaintiffs who
first submitted evidence outside the record, consisting of dozens of
exhibits. See Magoolaghan Decl. Defendants have responded in
kind by also submitting and relying on evidence outside the pleadings in
opposing the motion. See Schulze Decl.
Neither party has objected to the other's submitting such evidence and
both rely heavily on the outside evidence in making their arguments. In
addition, the plaintiffs have not asserted that any additional discovery
is being sought with respect to the matters raised in the amended
complaint. See Magoolaghan Decl. ¶ 29 ("plaintiffs do not
anticipate any further discovery relating to the claims set forth
against" the proposed new defendants). As a consequence, plaintiffs
obviously seek to have the Court's judgment on the futility of the
proposed amended complaint rise or fall depending on whether the proposed
amended complaint could withstand a motion for summary judgment
either on the basis of the statute-of-limitations bar or qualified
This manner of proceeding, while unusual, finds support in cases in
which courts have looked outside the pleadings in order to determine
whether an amended complaint is futile. See, e.g., Milanese v.
Rust-Oleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001) (summary
judgment standard applied where motion to amend was made in response to
summary judgment motion); Health-Chem, 915 F.2d at 810 (same);
Stoner v. N.Y.C. Ballet Co., 2002 WL 523270, at *14 n.10
(S.D.N.Y. Apr. 8, 2002) (denying motion to amend seeking to add claim
which "might survive a motion to dismiss" but would "immediately be
subject to dismissal on a motion for summary judgment"). This procedure
is also analogous to, and consistent with, a court's conversion of a
motion to dismiss into one for summary judgment where the parties have
presented evidence outside the pleadings and are aware that the court
intended to rely on such evidence. See, e.g., In re G. & A.
Books. Inc., 770 F.2d 288, 295 (2d Cir. 1985) ("A party cannot
complain of lack of a reasonable opportunity to present all material
relevant to a motion for summary judgment when both parties have filed
exhibits, affidavits, counter-affidavits, depositions, etc. in support of
and in opposition to a motion to dismiss."), cert. denied,
475 U.S. 1015 (1986); accord Groden v. Random House, Inc.,
61 F.3d 1045, 1052-53 (2d Cir. 1995); see also Fed.R.Civ.P. 12(b).
Accordingly, the Court will accept the plaintiffs' invitation to judge
the proposed complaint based on whether it could survive a motion for
summary judgment from defendants on the issue of qualified immunity or
the statute of limitations. In other words, for purposes of gauging
whether the proposed amendment is "futile," the Court will consider
whether there is an absence of a "genuine issue as to any material fact"
on these issues such that the defendants would be "entitled to a judgment
as a matter of law" under Fed.R.Civ.P. 56(c).
B. Summary Judgment Standard
On a motion for summary judgment, all factual inferences must be drawn
in favor of the non-moving party. See, e.g., Savino v. City of New
York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). While the plaintiffs
are the movant with respect to the motion to amend, the defendants are in
a position equivalent to that of a party moving for summary judgment
inasmuch as it is their burden to show affirmatively that they are
entitled to qualified immunity. See, e.g., Crawford-El v.
Britton, 532 U.S. 574, 587 (1998). Thus, the Court draws all factual
inferences in favor of the plaintiffs. However, to survive a motion for
summary judgment, the plaintiffs "must come forward with `specific facts
showing that there is a genuine issue for trial.'" Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis
omitted) (quoting Fed.R.Civ.P. 56(e)). "Conclusory allegations,
conjecture, and speculation . . . are insufficient to create a genuine
issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d
Cir. 1998) (citation omitted). Thus, the defendants "must prevail if the
[plaintiffs] fail to come forward with enough evidence to create a
genuine factual issue to be tried with respect to an element essential to
[their] case." Alien v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996)
(citing Anderson v. Liberty Lobby, 477 U.S. at 247-48).
C. Section 1983
Plaintiffs' proposed claims are brought under 42 U.S.C. § 1983.
Under this statute, a plaintiff must show that there has been a denial of
a constitutional or federal statutory right and that the deprivation of
such right occurred under color of state law. See
42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section
1983 does not grant any substantive rights but rather "provides only a
procedure for redress for the deprivation of rights established
as in the Constitution. Sykes v. James, 13 F.3d 515, 519
(2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240
(1994). The defendants do not contest that they were acting under color
of state law. Thus, the only issue is whether plaintiffs have shown the
violation of a constitutional right.
D. Qualified Immunity
Even if plaintiffs show the violation of a constitutional right, the
doctrine of qualified immunity shields government employees who are
performing discretionary functions "from liability for civil damages
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 (1982) (citations
omitted). Where a qualified immunity defense is raised, a court must make
a two-fold inquiry. First, the court must determine whether the facts,
"[t]aken in the light most favorable to the party asserting the injury,
. . . show the officer's conduct violated a constitutional right."
Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, even where
such a constitutional right has been violated, the government employee is
entitled to qualified immunity "`if either (a) the defendant's action did
not violate clearly established law, or (b) it was objectively reasonable
for the defendant to believe that his action did not violate such law.'"
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quoting
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d
"A right is clearly established if (1) the law is defined with
reasonable clarity, (2) the Supreme Court or the Second Circuit has
recognized the right, and (3) `a reasonable defendant [would] have
understood from the existing law that [his] conduct was unlawful.'"
Anderson v. Recore, 317 F.3d at 197 (alterations in original)
(quoting Young v. County of Fulton,
160 F.3d 899, 903 (2d Cir. 1998)). For a right to be clearly established, it
is not sufficient for a general constitutional right to have been
recognized; rather, the right must be established in "a more
particularized . . . sense," Anderson v. Creighton,
483 U.S. 635, 640 (1987) that is, "in light of the specific context of the
case," Saucier, 533 U.S. at 201. Thus, the relevant inquiry "is
whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted." Id at 202; see
also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (the "salient
question" is whether the state of the law at the time of the violation
gave officers "fair warning").
E. Deliberate Indifference
To establish a violation of the Eighth Amendment arising out of
inadequate medical treatment, a prisoner is required to prove "deliberate
indifference to [his] serious medical needs." Estelle v.
Gamble, 429 U.S. 97, 104 (1976). The deliberate indifference
standard consists of both an objective and a subjective prong. See
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) ("Hathaway
I"), cert. denied, 513 U.S. 1154 (1995).
Under the objective prong, the alleged medical need must be
"sufficiently serious." Id. (citations omitted). A serious
medical need is "a condition of urgency, one that may produce death,
degeneration or extreme pain." Id. (internal quotation marks
and citation omitted).
Under the subjective component, the prisoner must show that the
defendant officials acted with a "sufficiently culpable state of mind" in
depriving the prisoner of adequate medical treatment. Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) ("Hathaway II").
"[T]he subjective element of deliberate indifference `entails something
more than mere negligence . . . [but] something less than acts or
omissions for the very purpose of causing harm or with knowledge that
harm will result.'" Id. (quoting Farmer v. Brennan,
511 U.S. 825, 835 (1994)).
In order to be found "sufficiently culpable," the official must
"know of and disregard an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also
draw the inference." Farmer, 511 U.S. at 837.
As reflected in Hathaway II and the case law cited therein,
it is beyond dispute that in August 1999 case law clearly established
that deliberate indifference to an inmate's serious medical needs
amounted to a violation of the Eighth Amendment. See 99 F.3d at
553. But the existence of such case law by itself is not sufficient to
determine whether the proposed defendants in this case are entitled to
qualified immunity. This is because the right at issue must be clearly
established "in light of the specific context of the case."
Saucier, 533 U.S. at 201. On the other hand, to defeat
qualified immunity, it is not necessary to show a decision squarely on
point indicating the violation of a constitutional right. See
Anderson v. Creighton, 483 U.S. at 640. Thus, if there were no cases
at all regarding the constitutional obligation to perform CPR on an
inmate, it would not mean that plaintiffs' claims necessarily would fail.
It turns out, however, that case law does exist on the specific subject
of a government official's constitutional obligations when confronted
with an apparently lifeless person in his or her custody. It is
appropriate to examine such case law both to determine the nature of the
substantive constitutional right and to determine whether the case law
gave the three proposed defendants here "fair warning" of their
constitutional obligations in such a situation. Hope, 536 U.S.
at 741. With respect to the latter issue, only case law arising prior to
August 1999 is relevant inasmuch as the qualified immunity question is
resolved based upon the law established at the time of the incident in
question. See, e.g., Hanrahan v. Doling, 331 F.3d 93, 98 (2d
Furthermore, while it is unclear the extent to which district court
decisions, id at 98 n.6, or the case law of other circuits,
Poe v. Leonard, 282 F.3d 123, 141 n.15 (2d Cir. 2002), may be
taken into account in evaluating whether a right is clearly established,
such case law is relevant in determining whether there has been a
F. Cases Involving the Constitutional Obligation to Perform
Heflin v. Stewart County, 958 F.2d 709, 711 (6th Cir.),
cert. denied, 506 U.S. 998 (1992), like the present case,
involved a situation where a pretrial detainee was found hanging in his
cell and no effort was made to perform CPR or other resuscitation
efforts. The Sixth Circuit affirmed a jury verdict that a sheriff and his
deputy were deliberately indifferent to the decedent's serious medical
needs because they left the decedent hanging for at least twenty minutes
after discovering him, there was some evidence that the medical examiner
heard a heartbeat, and there was evidence of animus between the sheriff
and the decedent. Id. at 711-16. The court also affirmed the
district court's determination that the officers were not entitled to
qualified immunity. Id. at 717-18. However, one court has
stated that "[w]hether Heflin remains good law after
Farmer v. Brennan is highly questionable." Clinton v.
County of York, 893 F. Supp. 581, 586 (D.S.C. 1995), on the ground
that Heflin was decided prior to Farmer and applied
only the objective prong of the deliberate indifference analysis,
Clinton is the case most similar factually to the present
case. In Clinton, officers discovered an inmate hanging by a
noose fashioned from a bed sheet. After they cut him down, they laid the
inmate's body on a mattress pad and checked for vital signs. They found
no pulse or breathing. The officers did not attempt CPR because they
believed that the inmate was already dead. 893 F. Supp. at 583-84. The
court granted summary judgment in favor of the officers,
holding that absent any allegations of ill will, the officers'
failure to perform CPR was at most negligence, not deliberate
indifference. Id. at 586-87. In so ruling, Clinton
cited to an unpublished decision of the Fourth Circuit, Ward v.
Holmes, 1994 WL 313624 (4th Cir. June 30, 1994), in which the Fourth
Circuit held on similar facts that "[b]ased on the absence of pulse and
respiration, in combination with [the inmate's] appearance and the
temperature of his body, [the defendants] believed that [the inmate] was
dead. . . . Because the officers believed that [the inmate] was dead,
their failure to attempt to resuscitate him was at most negligence."
Id. at *7.
Another case similar to Clinton is Reed v. Woodruff
County, 7 F.3d 808, 809 (8th Cir. 1993), where a prisoner was found
hanging in his cell and no resuscitation efforts were undertaken. The
court held that the only evidence in the record was that the prisoner was
dead and in the absence of evidence that resuscitation efforts would have
succeeded, there was no constitutional violation. Id. at 811.
More recently (and after the incident involving Tortorici), two cases
denied qualified immunity based at least in part on a failure to perform
life-saving medical treatment. In Jackson v. Johnson,
118 F. Supp.2d 278, 283-85 (N.D.N.Y. 2000), appeal dismissed in relevant
part, 2001 WL 735902 (2d Cir. June 27, 2001), aides in a youth
detention facility physically restrained Jackson, the fourteen-year-old
plaintiff, twice in a short period of time, rendering him unconscious
both times. The second restraint continued for approximately 20 minutes
after Jackson "went limp" because the aides thought he was "feigning."
Id. at 285. After the second restraint was terminated, Jackson
did not respond to smelling salts and CPR was not performed until
Emergency Medical Technicians arrived with an ambulance. Id. As
a result of the incident, Jackson was comatose for approximately two
months and suffered serious and permanent
physical and mental injuries. Id. Jackson asserted,
inter alia, that the aides who restrained him improperly denied
him immediate medical treatment. The district court denied defendants'
motion for summary judgment on claims of excessive force and deliberate
indifference, id. at 287-91, and held that the defendants were
not entitled to qualified immunity, id. at 294-95. Included in
its discussion was the observation that if the aides "thought that
Jackson was in medical distress, they should have acted upon that
perception." Id. at 291. Jackson, however, does not
establish that the failure to attempt to resuscitate an inmate is
objectively unreasonable in all circumstances. Rather, it demonstrates
that such a failure may constitute deliberate indifference in a situation
where the defendants not only disregarded an excessive risk to an
inmate's health but also caused the risk and continued to do so in the
face of obvious evidence that they were causing serious harm.
Id. at 283-85, 289-91.
In another recent case, corrections officers ordered inmates to stop
performing CPR on a fellow inmate who had a heart attack in the yard,
despite positive results brought about by their efforts. Tlamka v.
Serrell, 244 F.3d 628, 630-31 (8th Cir. 2001). Due to this order,
the inmate's condition deteriorated immediately, yet no further efforts
were made to resuscitate him until he was transported to a prison nurse,
up to ten minutes later. Id. at 631. The Eighth Circuit held
that such inaction and affirmative denial of care "would rise to a
showing of deliberate indifference." Id. at 633. In examining
whether the officers nevertheless were entitled to qualified immunity,
the court held that it was well-settled that "an intentional delay in
obtaining medical care for an inmate could give rise to a violation" and
any reasonable officer would know that delaying emergency medical
treatment for ten minutes for no reason was a violation of the Eighth
Amendment. Id. at 634-35.
G. Whether Defendants Either Violated the Constitution or Are
Entitled to Qualified Immunity
With this background in mind, we will examine how the case law applies
to the facts adduced as to each proposed defendant.
1. CO Krause
CO Krause is the corrections officer who first discovered Tortorici
hanging in his cell during his routine rounds at 4:47 a.m. Upon
discovering Tortorici hanging, CO Krause attempted to use his radio to
call a "code blue" indicating an emergency and to get the
door to Tortorici's cell opened. COC Report ¶ 10; Police Report,
Continuation Sheet ¶ 5; Deposition of Keith K. Krause, March 27, 2003
("Krause Dep.") (annexed as Ex. 26 to Magoolaghan Decl.), at 37-39. His
radio was not working, however, so he had to run approximately 150 feet
to the control room, where he pounded on the door and screamed to the
officer inside that he had a code blue. Krause Dep. at 37. The control
room officer inside then opened the cell door as CO Krause ran back to
Tortorici's cell. Id. From the time CO Krause left Tortorici's
cell until the time he returned, less than 30 seconds elapsed.
Id. at 39.
CO Krause then entered the cell, lowered Tortorici's body to the
ground, and removed the sheet from around his neck. Krause Dep. at 37,
39. CO Krause had some training in CPR, although he did not think he was
certified at the time of this incident. Id. at 25-21.
Nonetheless, he did not commence CPR because he "thought the inmate was
dead" and he heard the doors opening, meaning that other personnel had
arrived on the scene. Id. at 39-40. He testified that he was
not trained to determine if an individual is dead or not. Id.
at 40. He believed his
responsibility in this situation was "to call a code blue . . .
and to make sure that medical assistance gets to the inmate."
Id. at 41.
In light of recent case law, it would be reasonable to conclude today
that prison officials have a duty to administer life-saving care even in
the absence of a pulse or respiration where circumstances indicate the
possibility of a very recent death and the individuals are available to
give such care. See, e.g., Tlamka, 244 F.3d at 632-35;
Jackson, 118 F. Supp.2d at 289-91, 294-95. Given the expected
imminent arrival of medical personnel, however, it might not be the case
that the Constitution imposes that obligation on an individual officer
under the circumstances in which CO Krause found himself.
In any event, it is plain that any such right was not clearly
established in 1999 because the law in this area was not "defined with
reasonable clarity," Anderson v. Recore, 317 F.3d at 197. The
Clinton case by itself makes this point. The factual
circumstances of Clinton, decided in 1995, are not materially
distinguishable from the facts here: prison officials who believed that
an inmate found hanging in his cell was already dead. See
893 F. Supp. at 583-84. As noted, the Clinton court concluded
explicitly that the officials' failure to administer CPR was at most
negligence, not deliberate indifference. Id. at 586-87. While
the Sixth Circuit found a constitutional violation by the officers in
Heflin. CO Krause's conduct was far different from the reaction
of the Heflin officers, who left the inmate hanging for twenty
minutes. 958 F.2d at 711-16. In addition, other case law has specifically
held that summoning medical assistance is a constitutionally appropriate
response where a person in custody is without vital signs. See Price
v. County of San Diego, 990 F. Supp. 1230, 1235, 1242-44 (S.D. Cal.
1998) (officers placed arrestee in a physical restraint, rendering him
unable to breathe and causing his heartbeat to stop,
but did not remove restraint or administer CPR); see also
id. at 1243 ("the constitution does not impose a duty on peace
officers to administer CPR personally").
In addition to the unpublished decision cited in Clinton, an
unpublished decision from the Eighth Circuit, Bahner v.
Carmack, 1997 WL 94705 (8th Cir. Mar. 6, 1997), reached a result
similar to Clinton refusing to find that a corrections
officer acted with deliberate indifference in failing to enter the cell
or perform CPR on an inmate until another officer had arrived
approximately 7 minutes later. Id. at *l-*2. Instead,
Bahner found that the officer's conduct amounted only to
negligence. Id. at *2. While normally the Court would not cite
an unpublished decision of a circuit court, Bahner is relevant
not for any precedential value but rather for the evidence it provides
with respect to the qualified immunity issue: if a circuit court
even in an unpublished opinion disclaims the existence of a
right, it would be virtually impossible to conclude that the purported
right had been "defined with reasonable clarity," Anderson v.
Recore, 317 F.3d at 197.
Given this case law and in particular the Clinton
decision and the case it cites it cannot be said that in August
1999 the law had "defined with reasonably clarity that CO Krause had the
constitutional obligation to administer CPR when he believed Tortorici
was dead and reasonably expected that emergency help was on its way. Nor
could we find that "a reasonable defendant would have understood from the
existing law that his conduct was unlawful," Anderson v.
Recore, 317 F.3d at 197.
Because this Court cannot conclude that the state of the law at the
time of the incident gave CO Krause "fair warning that [his] alleged
treatment of [Tortorici] was unconstitutional," Hope, 536 U.S.
at 741, CO Krause is entitled to qualified immunity from suit.
2. CO Skinner
CO Skinner responded to the code blue medical emergency and was next to
arrive on the scene following CO Krause. Police Report, Continuation
Sheet ¶ 20. CO Skinner had been trained and certified in CPR prior to
August 10, 1999. Deposition of John T. Skinner, March 25, 2003 ("Skinner
Dep.") (portions annexed as Ex. 27 to Magoolaghan Decl. and portions as
Ex. F to Schulze Decl.), at 40-41. CO Skinner testified unequivocally at
his deposition that when he arrived at the scene: "I didn't detect either
[a pulse or breathing] and I checked the second time to make sure."
Id. at 39. The investigatory report also indicates that he
checked for a pulse and respiration and found neither. Police Report,
Continuation Sheet ¶ 20. This statement is supported by a
contemporaneous note written by DOCS investigator Steven Shaner at the
time of his interview with CO Skinner, which states: "I checked for a
pulse, respiration, which I detected none." Report of Interview of John
Skinner by Steven Shaner, dated August 10, 1999 ("Shaner Report")
(annexed as Ex. 28 to Magoolaghan Decl.), at 1; see Deposition of Steven
Shaner, June 3, 2003 ("Shaner Dep.") (portions annexed as Ex. 17 to
Magoolaghan Decl. and portions as Ex. E to Schulze Decl.), at 28-29.
Plaintiffs now assert that Tortorici was alive at the time CO Skinner
examined him. P1. Mem. at 5, 7-8. The sole basis for this assertion is a
contradictory note written by Shaner that appears immediately following
the above-quoted note. That second note states: "I think I felt a pulse,
but I'm not sure." Shaner Report at 1. Based on this second note,
plaintiffs now argue that Ralph Tortorici "was alive at the time of his
discovery, and that, but for the deliberate indifference to his life
shown by the proposed defendants, it is highly probable that he would
have survived his suicide attempt." PL Mem. at 7-8. However, plaintiffs
have submitted no
medical evidence indicating that Tortorici actually had a pulse or
was breathing at the time CO Skinner arrived. Nor have they pointed to
any other witness who has stated that Tortorici had any such vital signs.
At his deposition, Shaner testified that CO Skinner never reviewed or
endorsed these interview notes. See Shaner Dep. at 18. When CO
Skinner was asked about this statement at his deposition, he testified
that he did not remember making such a statement to the investigator.
Skinner Dep. at 89. As noted, CO Skinner also unequivocally denied in his
sworn testimony that he had felt a pulse or detected breathing.
Specifically, he stated: "I didn't detect either [a pulse or breathing]
and I checked the second time to make sure." Id. at 39.
The question thus becomes whether, in the face of the above evidence, a
reasonable jury could conclude that CO Skinner in fact detected a pulse
or breathing. The Court will assume arguendo that the second
note would be admissible at trial on the ground that Shaner's notes of
his interview, although hearsay, would constitute a past recollection
recorded, see Fed.R.Evid. 803(5), and that the alleged
statement from CO Skinner would be the statement of a party-opponent,
see Fed.R.Evid. 801(d)(2). The second note, however,
constitutes but the thinnest wisp upon which to rest plaintiffs' claim
that CO Skinner knew Tortorici was alive and thus "[knew] of and
[disregarded] an excessive risk to inmate health or safety,"
Farmer, 511 U.S. at 837. The second note refers to a statement
that was not sworn and that does not even indicate that CO Skinner "knew"
Tortorici had a pulse or breathing. Instead, it states only that he
"think[s]" he felt a pulse "but [is] not sure." Arrayed against this
single equivocal note is CO Skinner's own sworn testimony that he in fact
did not detect a pulse or breathing. In addition,
the report written by Shaner, which was based on the notes he had
made of the interviews, itself states that CO Skinner did not detect a
pulse or breathing.
It would be pointless to conduct a trial on this issue, however,
because no reasonable jury could use the single, equivocal, hearsay note
in the investigator's report to make a factual finding that CO Skinner in
fact felt a pulse at the time he discovered Tortorici's body. As the
Second Circuit has held, "some evidence is not sufficient to
withstand a properly supported motion for summary judgment; a plaintiff
opposing such a motion must produce sufficient evidence to support a
rational finding" with respect to the material fact at issue.
Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994)
(emphasis in original and citations omitted); see also Niagara
Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir.
2003) ("The `mere existence of a scintilla of evidence' supporting the
non-movant's case is . . . insufficient to defeat summary judgment."
(quoting Anderson v. Liberty Lobby, 477 U.S. at 252)). In this
case, the only evidence plaintiffs have mustered would be insufficient to
support a finding that CO Skinner felt a pulse or breathing.
In the absence of a pulse or breathing, CO Skinner was in a situation
similar to CO Krause and the same "deliberate indifference" analysis that
applies to CO Krause thus applies to CO Skinner as well. The only
arguably material difference in their situations was that CO Skinner at
one point allegedly stated that he did not attempt CPR because he did not
have the CPR equipment on the scene. See Inspector General's
Office Investigative Report, dated January 2, 2000 (annexed as Ex. 14 to
Magoolaghan Decl.); accord Shaner Report at 1-2. In response,
plaintiffs have pointed to evidence that a face mask necessary to perform
CPR was kept in the "immediate vicinity" of the cell block where
Tortorici was housed, see PL Mem. at 5; see also
Skinner Dep. at 75-76, though they have provided no evidence that
CO Skinner himself knew it was there. Again, the Court would be prepared
to find a constitutional obligation on an officer in CO Skinner's
situation to perform CPR, provided the officer could do so without an
unreasonable danger to him or her-self. But even if CO Skinner
was in a position to perform CPR, it would not alter the fact that the
law was not clear in this area and that, indeed, case law at the time
actually suggested that there was no such constitutional obligation. In
the absence of any evidence from which a reasonable jury could conclude
that Tortorici had vital signs or that CO Skinner harbored ill will
against Tortorici, CO Skinner is in a position identical to CO Krause:
both encountered a body without vital signs, with medical help known to
be on the way. For the same reasons already stated with respect to CO
Krause, CO Skinner is entitled to qualified immunity from suit.*fn1
3. Nurse Murphy
Nurse Murphy responded to the code blue medical emergency and arrived
at Tortorici's cell at approximately 4:52 a.m. COC Report ¶ 10;
Police Report, Continuation Sheet ¶ 11. Nurse Murphy was trained and
certified in CPR prior to August 10, 1999. See Deposition of
Cynthia Murphy, March 27, 2003 ("Murphy Dep.") (portions annexed as
Ex. 29 to Magoolaghan Decl. and portions as Ex. H to Schulze Decl.), at
12-13. She testified that when she entered the cell: "I . . . went to
the patient's left side, checked his radial pulse, I checked the
[carotid] pulse, I then checked the apical pulse, I checked his eyes."
Id. at 37. She could not hear a heartbeat even with a
stethoscope. Police Report, Continuation Sheet ¶ 11; see
Murphy Dep. at 38. She rolled Tortorici over and noticed blanching of the
shoulders, "a sign of obvious death," and reported that lividity had
begun setting in. Police Report, Continuation Sheet ¶ 11; Murphy Dep.
at 37, 39. Thus, she did not commence life-saving measures. Police
Report, Continuation Sheet ¶ 11; COC Report ¶ 10.
As was true for CO Krause and CO Skinner, the only evidence in the
record is that Nurse Murphy believed that Tortorici was dead based on her
evaluation of him. Perhaps as an argument that Nurse Murphy harbored ill
will towards inmates, plaintiffs argue that Nurse Murphy has a "personal
policy against administering CPR to prisoners." Plaintiffs' Reply
Memorandum of Law in Support of Motion to Add Parties, filed September 5,
2003 (Docket #44) ("PL Reply Mem."), at 9; see also PL Mem. at
19. But the deposition testimony plaintiffs rely on for this statement
demonstrates that Nurse Murphy had a policy of not performing
mouth-to-mouth resuscitation to inmates due to the risk of
disease; she clearly stated that she performed CPR on inmates with the
aid of an "ambu-bag." Murphy Dep. at 69-70.
Plaintiffs also point to the fact that Nurse Murphy violated a DOCS
directive in failing to commence CPR. Pl. Mem. at 5, 16-20; see
also COC Report ¶ 11; Division of Health Services, Policy No.
1.41, Do Not Resuscitate, dated April 1, 1996 (annexed as Ex.
30 to Magoolaghan Decl.), ¶ I.B (requiring "First Responders" to
"immediately commence CPR on "any person
found unresponsive and without pulse or respirations"). But the
violation of this state policy does not provide a basis for finding that
there was a violation of the federal Constitution.
Finally, plaintiffs have submitted a declaration from a psychologist,
Thomas W. White, which states, "[B]ased on my participation in countless
suicide investigations over the course of my career, it is impossible for
lividity to set in within twenty minutes of a person's death." White
Decl. ¶ 9. This statement, however, merely constitutes evidence
contradicting Nurse Murphy's view that lividity had set in. It says
nothing about whether Tortorici was in fact dead or had a pulse
or respiration when Nurse Murphy examined him. Thus, this
statement would be insufficient to allow a jury to conclude that
Tortorici was in fact alive at the time Nurse Murphy found him.
In sum, taking all evidence in their favor, plaintiffs at best have
made the case that Nurse Murphy was faced with a body without pulse or
respiration but one that theoretically might still have
benefitted from a resuscitation effort, such as CPR. And, as the Court
previously noted with respect to CO Krause, the Court would be prepared
to hold that a trained prison employee's failure to commence such efforts
where there is no danger to the employee and when faced with a
person who might benefit from such efforts constituted a
violation of the Eighth Amendment's "deliberate indifference" standard
(although it is unclear that plaintiffs have mustered enough evidence to
show that Tortorici might have benefitted from resuscitation efforts by
the time Nurse Murphy arrived). Such a ruling, however, would be of no
assistance to plaintiffs for the same reasons already stated as to CO
Krause: case law existing in 1999 disagreed with this premise and
declares that the failure to conduct CPR does not constitute a
constitutional violation. See, e.g., Clinton, 893 F. Supp. at
586-87. Because of the lack of clarity
in the law at that time, Nurse Murphy is entitled to qualified
immunity from suit.
4. Commissioner Goord
Plaintiffs' proposed amended complaint also seeks to add three new
claims against Commissioner Goord for failing to ensure that prison staff
were adequately and appropriately trained in the administration of CPR.
See Proposed Am. Compl. ¶¶ 22, 147-55. In their proposed
amended complaint, plaintiffs allege that Commissioner Goord "developed
and maintained an ineffective and inadequate system of suicide prevention
and emergency medical responses" that, inter alia, "fails to
assure that DOCS' employees are adequately trained in protocols for
suicide prevention and emergency medical response." Id. ¶¶
148, 151, 154. According to plaintiffs, these failings deprived Tortorici
of his Fifth, Eighth, and Fourteenth Amendment rights. See id
Plaintiffs did not discuss in their moving papers beyond a mere
mention the new allegations against Commissioner Goord.
See Pl. Mem. at 5-6. They made no argument regarding the legal
bases for the new claims against Goord in the proposed amended complaint
beyond a generic reference to supervisory liability. See id. at
23. Not surprisingly, the defendants did not discuss the allegations in
their responsive papers.*fn2
Given the disposition of the claims against the three proposed new
defendants, it seems unlikely that the complaint could state a claim
against Commissioner Goord, thus rendering the proposed claims "futile."
In a related context, the Second Circuit has suggested that where
"evidence fail[s] to establish [the] basis for [a] claim against
individual defendants," summary judgment is appropriately granted to an
institutional defendant. Escalera v. Lunn, ___ F.3d ___,
2004 WL 50789, at *9 (2d Cir. Jan. 12, 2004) (citing
McCullough v. Wvandanch Union Free Sch. Dist., 187 F.3d 272,
281-82 (2d Cir. 1999)). The Court need not reach this issue, however,
because the plaintiffs' moving papers simply do not address the proposed
amendment as to Commissioner Goord in sufficient detail to permit the
Court to grant the motion to amend. In other words, their papers do not
demonstrate that these claims meet the requirements of Fed.R.Civ.P.
For the foregoing reasons, plaintiffs' motion to amend should be
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from service of
this Report and Recommendation to file any objections. See also
Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with copies sent
to the Hon. William H. Pauley, III, 500 Pearl Street, New York, New York
10007, and to the undersigned at 40 Centre Street, New York, New York
10007. Any request for an extension of time to file objections must be
directed to Judge Pauley. If a party fails to file timely objections,
that party will not be permitted to raise any objections to this Report
and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140